Loading...
HomeMy WebLinkAbout977298228180 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Zions First National Bank One South Main Street, Suite 300 Salt Lake City, Utah 84133 Attn: Todd Harris 977298 7/2/2014 3:13 PM LINCOLN COUNTY FEES: $63.00 PAGE 1 OF 18 BOOK: 835 PAGE: 455 MORTGAGE JEANNE WAGNER LINCOLN COUNTY CLERK 11111111111 I111111111 THIS MORTGAGE SECURES A NOTE WHICH PROVIDES FOR A VARIABLE INTEREST RATE MORTGAGE WITH ABSOLUTE ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING THE PARTIES TO THIS MORTGAGE WITH ABSOLUTE ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this "Mortgage made as of July 1, 2014, are BROADWAY MEDIA, LLC, a Utah limited liability company "Mortgagor for the benefit of ZIONS FIRST NATIONAL BANK, a national banking association "Mortgagee Mortgagor hereby agrees that, except as expressly defined differently herein, capitalized terms that are used herein that are defined in the Loan Agreement (as hereinafter defined) or in the Loan Documents (as defined in the Loan Agreement) shall have the meaning specified in the Loan Agreement and the Loan Documents. ARTICLE 1. GRANT 1.1 GRANT. For the purposes of and upon the terms and conditions in this Mortgage, Mortgagor irrevocably grants, conveys, assigns, mortgages and warrants to Mortgagee and its successors and assigns forever all of that real property located in the County of Lincoln, State of Wyoming, described on Exhibit A attached hereto, together with all right, title, interest, and privileges of Mortgagor in and to all streets, ways, roads, and alleys used in connection with or pertaining to such real property; all development rights or credits, air rights, water, water rights, all pending water rights petitions or applications submitted to the State Board of Control and the State Engineer and water stock related or appurtenant to the subject real property, whether documented or undocumented; all minerals, oil and gas, and other hydrocarbon substances in, on or under the real property; all appurtenances, easements, rights and rights of way appurtenant or related thereto; all buildings, other improvements and fixtures now or hereafter located on the real property, including, but not limited to, all apparatus, equipment, and appliances used in the operation or occupancy of the real property, it being intended by the parties that all such items shall be conclusively considered to be a part of the real property, whether or not attached or affixed to the real property (the "Improvements all interest or estate which Mortgagor may hereafter acquire in the property described above, and all additions and accretions thereto, and the proceeds of any of the foregoing (all of the foregoing being collectively referred to as the "Subject Property"). The listing of specific rights or property shall not be interpreted as a limit of general terms. TO HAVE AND TO HOLD the Subject Property unto Mortgagee, its successors and assigns forever; PROVIDED, ALWAYS, that if Mortgagor shall fully pay and perform all of the indebtedness and obligations secured hereby according to the terms thereof, then this Mortgage shall thereafter be null and void. 1.2 WARRANTY OF TITLE; USE OF PROPERTY; WATER RIGHTS. Mortgagor warrants that it is the sole owner of good and marketable unencumbered fee simple title to the real property collateral, subject only to those exceptions approved by Mortgagee in writing pursuant to the Loan Agreement. 1 Mortgagor warrants that the Subject Property is not used principally for agricultural or farming purposes. ARTICLE 2. OBLIGATIONS SECURED 2.1 OBLIGATIONS SECURED. Mortgagor makes this Mortgage for the purpose of securing the following obligations "Secured Obligations (a) Payment to Mortgagee of all sums at any time owing under that certain Promissory Note (the "Note of even date herewith, in the principal amount of ELEVEN MILLION AND NO /100THS DOLLARS ($11,000,000.00), with a maturity date of July 1, 2019, executed by Mortgagor, Broadway Media LS, LLC, a Utah limited liability company, and Humpy Peak Holdings, LLC, a Utah limited liability company, as the "Borrowers and payable to the order of Mortgagee, as lender; and (b) Payment and performance of all covenants and obligations of Mortgagor under this Mortgage; and (c) Payment and performance of all covenants and obligations on the part of Borrowers under that certain Loan Agreement "Loan Agreement of even date herewith by and between Borrowers and Mortgagee, as lender, and arising under all Loan Documents; and (d) Payment and performance of all future advances and other obligations that the then record owner of all or part of the Subject Property may agree to pay and/or perform (whether as principal, surety or guarantor) for the benefit of Mortgagee, when such future advance or obligation is evidenced by a writing which recites that it is secured by this Mortgage; and (e) All modifications, extensions and renewals of any of the obligations secured hereby, however evidenced, including, without limitation: (i) modifications of the required principal payment dates or interest payment dates or both, as the case may be, deferring or accelerating payment dates wholly or partly; or (ii) modifications, extensions or renewals at a different rate of interest whether or not, in the case of a note, the modification, extension or renewal is evidenced by a new or additional promissory note or notes. 2.2 OBLIGATIONS. The terms "obligations" and "Secured Obligations" are both used herein in their broadest and most comprehensive sense and shall be deemed to include, without limitation, all interest and charges, prepayment charges (if any), late charges and loan fees at any time accruing or assessed on any of the Secured Obligations. 2.3 INCORPORATION. All terms of the Secured Obligations and the documents evidencing such obligations are incorporated herein by this reference. All persons who may have or acquire an interest in the Subject Property shall be deemed to have notice of the terms of the Secured Obligations and to have notice, if provided therein, that: (a) the Note or the Loan Agreement may permit borrowing, repayment and re- borrowing so that repayments shall not reduce the amounts of the Secured Obligations; and (b) the rate of interest on one or more Secured Obligations may vary from time to time. ARTICLE 3. ASSIGNMENT OF LEASES AND RENTS 3.1 ASSIGNMENT. Mortgagor hereby irrevocably assigns to Mortgagee all of Mortgagor's right, title and interest in, to and under: (a) all present and future leases of the Subject Property or any portion thereof, and all other agreements of any kind relating to the use, management, leasing, operation or occupancy of the Subject Property or any portion thereof, whether now existing or entered into after the date hereof (the "Leases and (b) the rents, revenue, income, issues, deposits and profits of the 2 Subject Property, including, without limitation, all amounts payable and all rights and benefits accruing to Mortgagor under the Leases (the "Payments The term "Leases" shall also include all subleases, and other agreements for the use and occupancy of the Subject Property, all guarantees of and security for the lessees' performance thereunder, and all amendments, extensions, renewals or modifications thereto which are permitted hereunder. This is a present and absolute assignment, not an assignment for security purposes only, and Mortgagee's right to the Leases and Payments is not contingent upon, and may be exercised without possession of, the Subject Property. 3.2 GRANT OF LICENSE. Mortgagee confers upon Mortgagor a license (the "License to collect and retain the Payments as they become due and payable, until the occurrence of a Default (as hereinafter defined). Upon a Default, the License shall be automatically revoked and Mortgagee may collect and apply the Payments pursuant to Section 6.10 of this Mortgage, entitled Application of Other Sums, without notice and without taking possession of the Subject Property. Mortgagor hereby irrevocably authorizes and directs the lessees under the Leases to rely upon and comply with any notice or demand by Mortgagee for the payment to Mortgagee of any rental or other sums which may at any time become due under the Leases, or for the performance of any of the lessees' undertakings under the Leases, and the lessees shall have no right or duty to inquire as to whether any Default has actually occurred or is then existing hereunder. Mortgagor hereby relieves the lessees from any liability to Mortgagor by reason of relying upon and complying with any such notice or demand by Mortgagee. 3.3 EFFECT OF ASSIGNMENT. The foregoing irrevocable assignment shall not cause Mortgagee to be: (a) a mortgagee in possession; (b) responsible or liable for the control, care, management or repair of the Subject Property or for performing any of the terms, agreements, undertakings, obligations, representations, warranties, covenants and conditions of the Leases; or (c) responsible or liable for any waste committed on the Subject Property by the lessees under any of the Leases or any other parties; for any dangerous or defective condition of the Subject Property; or for any negligence in the management, upkeep, repair or control of the Subject Property resulting in loss or injury or death to any lessee, licensee, employee, invitee or other person. Mortgagee shall not directly or indirectly be liable to Mortgagor or any other person as a consequence of: (i) the exercise or failure to exercise by Mortgagee, or any of their respective employees, agents, contractors or subcontractors, any of the rights, remedies or powers granted to Mortgagee hereunder; or (ii) the failure or refusal of Mortgagee to perform or discharge any obligation, duty or liability of Mortgagor arising under the Leases. ARTICLE 4. SECURITY AGREEMENT AND FIXTURE FILING 4.1 SECURITY INTEREST. Mortgagor hereby grants and assigns to Mortgagee as of the date hereof a security interest, to secure payment and performance of all of the Secured Obligations, in all of the following described personal property in which Mortgagor now or at any time hereafter has any interest (collectively, the "Collateral All goods, building and other materials, supplies, inventory, work in process, equipment, machinery, fixtures, furniture, furnishings, signs and other personal property and embedded software included therein and supporting information, wherever situated, which are or are to be incorporated into, used in connection with, or appropriated for use on the Subject Property or in any existing or future improvements on the Subject Property; together with all Payments and other rents and security deposits derived from the Subject Property; all inventory, accounts, cash receipts, deposit accounts, accounts receivable, contract rights, licenses, agreements, general intangibles, payment intangibles, software, chattel paper (whether electronic or tangible), instruments, documents, promissory notes, drafts, letters of credit, letter of credit rights, supporting obligations, insurance policies, insurance and condemnation awards and proceeds, proceeds of the sale of promissory notes, any other rights to the payment of money, trade names, trademarks and service marks arising from or related to the ownership, management, leasing, operation, sale or disposition of the Subject Property or any business now or hereafter conducted thereon by Mortgagor; all development rights and credits, and any and all permits, consents, approvals, licenses, authorizations and other rights 3 granted by, given by or obtained from, any governmental entity with respect to the Subject Property; all water and water rights, wells and well rights, canals and canal rights, ditches and ditch rights, springs and spring rights, and reservoirs and reservoir rights appurtenant to or associated with the Subject Property, whether decreed or undecreed, tributary, non tributary or not non tributary, surface or underground or appropriated or unappropriated, and all shares of stock in water, ditch, lateral and canal companies, well permits and all other evidences of any of such rights; all deposits or other security now or hereafter made with or given to utility companies by Mortgagor with respect to the Subject Property; all advance payments of insurance premiums made by Mortgagor with respect to the Subject Property; all plans, drawings and specifications relating to the Subject Property; all loan funds held by Mortgagee, whether or not disbursed; all funds deposited with Mortgagee pursuant to any loan agreement; all reserves, deferred payments, deposits, accounts, refunds, cost savings and payments of any kind related to the Subject Property or any portion thereof; all of Mortgagor's right, title and interest, now or hereafter acquired, to the payment of money from Mortgagee to Mortgagor under any swap, derivative, foreign exchange or hedge transaction or arrangement (or similar transaction or arrangement howsoever described or defined) at any time entered into between Mortgagor and Mortgagee in connection with the Loan, as defined in the Loan Agreement; together with all replacements and proceeds of, and additions and accessions to, any of the foregoing; together with all books, records and files relating to any of the foregoing. As to all of the above described personal property which is or which hereafter becomes a "fixture" under applicable law, this Mortgage constitutes a fixture filing under the Wyoming and Utah Uniform Commercial Code, as amended or recodified from time to time (the "UCC and is acknowledged and agreed to be a "mortgage" under the UCC. The filing of a financing statement covering the Collateral shall not be construed to derogate from or impair the lien or provisions of this Mortgage with respect to any property described herein which is real property or which the parties have agreed to treat as real property. Similarly, nothing in any fmancing statement shall be construed to alter any of the rights of Mortgagee under this Mortgage or the priority of Mortgagee's lien created hereby, and such financing statement is declared to be for the protection of Mortgagee in the event any court shall at any time hold that notice of Mortgagee's priority interest in any property or interests described in this Mortgage must, in order to be effective against a particular class of persons, including but not limited to the Federal government and any subdivision, agency or entity of the Federal government, be filed in the Uniform Commercial Code records. 4.2 REPRESENTATIONS AND WARRANTIES. Mortgagor represents and warrants that: (a) Mortgagor has, or will have, good title to the Collateral; (b) Mortgagor has not previously assigned or encumbered the Collateral, and no financing statement covering any of the Collateral has been delivered to any other person or entity; (c) Mortgagor's principal place of business is located at the address shown in that certain Section entitled Notices; and (d) Mortgagor's legal name is exactly as set forth on the first page of this Mortgage and all of Mortgagor's organizational documents or agreements delivered to Mortgagee are complete and accurate in every respect. 4.3 COVENANTS. Mortgagor agrees: (a) to execute and deliver such documents as Mortgagee deems necessary to create, perfect and continue the security interests contemplated hereby; (b) not to change its name, and as applicable, its chief executive office, its principal residence or the jurisdiction in which it is organized and /or registered without giving Mortgagee prior written notice thereof; (c) to cooperate with Mortgagee in perfecting all security interests granted herein and in obtaining such agreements from third parties as Mortgagee deems necessary, proper or convenient in connection with the preservation, perfection or enforcement of any of its rights hereunder; and (d) that Mortgagee is authorized to file financing statements in the name of Mortgagor to perfect Mortgagee's security interest in the Collateral. No materials, equipment, furnishings, fixtures or articles of personal property located on the Subject Property, or any other part of the Improvements which constitute a portion of the Collateral shall be purchased or installed under any security agreement executed by Mortgagor wherein 4 the right is reserved or accrues to anyone to remove or repossess such property or to have a security interest superior to that in favor of Mortgagee as evidenced by this Mortgage. Mortgagor shall not execute any security agreement on any materials, equipment, furnishings, fixtures or articles used in the construction or operation of the Improvements, or on articles of personal property located therein, so that the ownership thereof will not vest unconditionally in Mortgagor, free from encumbrances. Mortgagor shall deliver to Mortgagee upon written request the contracts, bills of sale, statements, receipted vouchers and agreements under which Mortgagor claims title to such materials, fixtures or articles. 4.4 RIGHTS OF MORTGAGEE. In addition to Mortgagee's rights as a "Secured Party" under the UCC, Mortgagee may, but shall not be obligated to, at any time without notice and at the expense of Mortgagor: (a) give notice to any person of Mortgagee's rights hereunder and enforce such rights at law or in equity; (b) insure, protect, defend and preserve the Collateral or any rights or interests of Mortgagee therein; (c) inspect the Collateral; and (d) endorse, collect and receive any right to payment of money owing to Mortgagor under or from the Collateral. Notwithstanding the above, in no event shall Mortgagee be deemed to have accepted any property other than cash in satisfaction of any obligation of Mortgagor to Mortgagee unless Mortgagee shall make an express written election of said remedy under the UCC, or other applicable law. 4.5 RIGHTS OF MORTGAGEE ON DEFAULT. Upon the occurrence of an Event of Default (hereinafter defined) under this Mortgage, then in addition to all of Mortgagee's rights as a "Secured Party" under the UCC or otherwise at law: (a) Mortgagee may (i) upon written notice, require Mortgagor to assemble any or all of the Collateral and make it available to Mortgagee at a place designated by Mortgagee; (ii) without prior notice, enter upon the Subject Property or other place where any of the Collateral may be located and take possession of, collect, sell, lease, license and dispose of any or all of the Collateral, and store the same at locations acceptable to Mortgagee at Mortgagor's expense; (iii) sell, assign and deliver at any place or in any lawful manner all or any part of the Collateral and bid and become the purchaser at any such sales; (b) Mortgagee may, for the account of Mortgagor and at Mortgagor's expense: (i) operate, use, consume, sell or dispose of the Collateral as Mortgagee deems appropriate for the purpose of performing any or all of the Secured Obligations; (ii) enter into any agreement, compromise, or settlement, including insurance claims, which Mortgagee may deem desirable or proper with respect to any of the Collateral; and (iii) endorse and deliver evidences of title for, and receive, enforce and collect by legal action or otherwise, all indebtedness and obligations now or hereafter owing to Mortgagor in connection with or on account of any or all of the Collateral; and (c) In disposing of Collateral hereunder, Mortgagee may disclaim all warranties of title, possession, quiet enjoyment and the like. Any proceeds of any disposition of any Collateral may be applied by Mortgagee to the payment of expenses incurred by Mortgagee in connection with the foregoing, including reasonable attorneys' fees, and the balance of such proceeds may be applied by Mortgagee toward the payment of the Secured Obligations in such order of application as Mortgagee may from time to time elect. Notwithstanding any other provision hereof, Mortgagee shall not be deemed to have accepted any property other than cash in satisfaction of any obligation of Mortgagor to Mortgagee unless Mortgagor shall make an express written election of said remedy under the UCC, or other applicable law. Mortgagor agrees that Mortgagee shall have no obligation to process or prepare any Collateral for sale or other disposition. 4.6 POWER OF ATTORNEY. Mortgagor hereby irrevocably appoints Mortgagee as Mortgagor's attorney -in -fact (such agency being coupled with an interest), and as such attorney -in -fact Mortgagee may, without the obligation to do so, in Mortgagee's name, or in the name of Mortgagor, prepare, execute and file or record financing statements, continuation statements, applications for registration and like papers necessary to create, perfect or preserve any of Mortgagee's security interests and rights in or to any of the Collateral, and, upon a Default hereunder, take any other action required of Mortgagor; provided, however, that Mortgagee as such attomey -in -fact shall be accountable only for such funds as are actually received by Mortgagee 4.7 POSSESSION AND USE OF COLLATERAL. Except as otherwise provided in this Section or the other Loan Documents, so long as no Default exists under this Mortgage or any of the Loan Documents, Mortgagor may possess, use, move, transfer or dispose of any of the Collateral in the ordinary course of Mortgagor's business and in accordance with the Loan Agreement. ARTICLE 5. RIGHTS AND DUTIES OF THE PARTIES 5.1 TITLE. Mortgagor represents and warrants that, except as disclosed to Mortgagee in a writing which refers to this warranty, Mortgagor lawfully holds and possesses fee simple title to the Subject Property without limitation on the right to encumber, and that this Mortgage is a first and prior lien on the Subject Property. 5.2 TAXES AND ASSESSMENTS. Subject to Mortgagor's rights to contest payment of taxes as may be provided in the Loan Agreement, Mortgagor shall pay prior to delinquency all taxes, assessments, levies and charges imposed by any public or quasi- public authority or utility company which are or which may become a lien upon or cause a loss in value of the Subject Property or any interest therein. Mortgagor shall also pay prior to delinquency all taxes, assessments, levies and charges imposed by any public authority upon Mortgagee by reason of its interest in any Secured Obligation or in the Subject Property, or by reason of any payment made to Mortgagee pursuant to any Secured Obligation; provided, however, Mortgagor shall have no obligation to pay taxes, assessments, levies and charges which may be imposed from time to time upon Mortgagee and which are measured by and imposed upon Mortgagee's net income. 5.3 TAX AND INSURANCE IMPOUNDS. Provided that the following provision applies only following the occurrence of a Default, Mortgagor, shall, until all Secured Obligations have been paid in full, pay to Mortgagee monthly, together with the payments due under the Note, an amount estimated by Mortgagee to be equal to: (a) all taxes, assessments, levies and charges imposed by any public or quasi public authority or utility company which are or may become a lien upon the Subject Property or Collateral and will become due for the tax year during which such payment is so directed; and (b) premiums for fire, hazard and insurance required or requested pursuant to the Loan Documents when same are next due. If Mortgagee determines that any amounts paid by Mortgagor are insufficient for the payment in full of such taxes, assessments, levies, charges and/or insurance premiums, Mortgagee shall notify Mortgagor of the increased amounts required to pay all amounts when due, whereupon Mortgagor shall pay to Mortgagee within thirty (30) days thereafter the additional amount as stated in Mortgagee's notice. All sums so paid shall not bear interest, except to the extent and in any minimum amount required by law; and Mortgagee shall have the ongoing right to apply said funds to the payment of, or at the sole option of Mortgagee release said funds to Mortgagor for the application to and payment of, such sums, taxes, assessments, levies, charges, and insurance premiums. Mortgagee shall have the sole and absolute discretion (by reason of the Default that imposes this impound requirement or by reason of any other Default) to apply all or any part of said sums to any Secured Obligation and/or to cure such Default, in which event Mortgagor shall be required to restore all amounts so applied, as well as to cure any other events or conditions of Default not cured by such application. Upon assignment of this Mortgage, Mortgagee shall have the right to assign all amounts collected and in its possession to its assignee whereupon Mortgagee shall be released from all liability with respect thereto. Within ninety-five (95) days following full repayment of the Secured Obligations (other than full repayment of the Secured Obligations as a consequence of a foreclosure or conveyance in lieu of foreclosure of the liens and security interests securing the Secured Obligations) or at such earlier time as Mortgagee may elect, the balance of all amounts collected and in Mortgagee's possession shall be paid to Mortgagor and no other party shall have any right or claim thereto. 6 r 5.4 PERFORMANCE OF SECURED OBLIGATIONS. Mortgagor shall promptly pay and perform each Secured Obligation when due. If Mortgagor fails to timely pay or perform any portion of the Secured Obligations (including taxes, assessments and insurance premiums), or if a legal proceeding is commenced that may significantly affect Mortgagee's rights in the Property, then Mortgagee may (but is not obligated to), at Mortgagor's expense, take such action as it considers to be necessary to protect the value of the Property and Mortgagee's rights in the Property, including the retaining of counsel, and any amount so expended by Mortgagee will be added to the Secured Obligations and will be payable by Mortgagor to Mortgagee on demand, together with interest thereon from the date of advance until paid at the rate then applicable under the Note (including any default rate if a Default shall have occurred). Mortgagor shall promptly pay and perform each Secured Obligation when due. 5.5 LIENS, ENCUMBRANCES AND CHARGES. Mortgagor shall immediately discharge any lien not approved by Mortgagee in writing that has or may attain priority over this Mortgage. Subject to the provisions of the Loan Agreement regarding mechanics' liens, Mortgagor shall pay when due all obligations secured by or which may become liens and encumbrances which shall now or hereafter encumber or appear to encumber all or any part of the Subject Property or Collateral, or any interest therein, whether senior or subordinate hereto. 5.6 DAMAGES; INSURANCE AND CONDEMNATION PROCEEDS. (a) The following (whether now existing or hereafter arising) are all absolutely and irrevocably assigned by Mortgagor to Mortgagee and, at the request of Mortgagee, shall be paid directly to Mortgagee: (i) all awards of damages and all other compensation payable directly or indirectly by reason of a condemnation or proposed condemnation for public or private use affecting all or any part of, or any interest in, the Subject Property or Collateral; (ii) all other claims and awards for damages to, or decrease in value of, all or any part of, or any interest in, the Subject Property or Collateral; (iii) all proceeds of any insurance policies (whether or not expressly required by Mortgagee to be maintained by Mortgagor, including, but not limited to, earthquake insurance and terrorism insurance, if any)-payable by reason of loss sustained to all or any part of the Subject Property or Collateral; and (iv) all interest which may accrue on any of the foregoing. Subject to applicable law, and without regard to any requirement contained in Subparagraph (d) of that certain Section entitled Maintenance and Preservation of the Subject Property, Mortgagee may at its discretion apply all or any of the proceeds it receives to its expenses in settling, prosecuting or defending any claim and may apply the balance to the Secured Obligations in any order acceptable to Mortgagee, and/or Mortgagee may release all or any part of the proceeds to Mortgagor upon any conditions Mortgagee may impose. Mortgagee may commence, appear in, defend or prosecute any assigned claim or action and may adjust, compromise, settle and collect all claims and awards assigned to Mortgagee; provided, however, in no event shall Mortgagee be responsible for any failure to collect any claim or award, regardless of the cause of the failure, including, without limitation, any malfeasance or nonfeasance by Mortgagee or its employees or agents. (b) At its sole option, Mortgagee may permit insurance or condemnation proceeds held by Mortgagee to be used for repair or restoration but may condition such application upon reasonable conditions, including, without limitation: (i) the deposit with Mortgagee of such additional funds which Mortgagee determines are needed to pay all costs of the repair or restoration, (including, without limitation, taxes, financing charges, insurance and rent during the repair period); (ii) the establishment of an arrangement for lien releases and disbursement of funds acceptable to Mortgagee (the arrangement contained in the Loan Agreement for obtaining lien releases and disbursing loan funds shall be deemed reasonable with respect to disbursement of insurance or condemnation proceeds); (iii) the delivery to Mortgagee of plans and specifications for the work, a contract for the work signed by a contractor acceptable to Mortgagee, a cost breakdown for the work and a payment and performance bond for the work, all of which shall be acceptable to Mortgagee; and (iv) the delivery to Mortgagee of evidence acceptable to Mortgagee (aa) that after completion of the work the income from the Subject Property will be sufficient to pay all expenses and debt service for the Subject Property; (bb) of 7 the continuation of Leases acceptable to and required by Mortgagee; (cc) that upon completion of the work, the size, capacity and total value of the Subject Property will be at least as great as it was before the damage or condemnation occurred; (dd) that there has been no material adverse change in the financial condition or credit of Mortgagor since the date of this Mortgage; and (ee) of the satisfaction of any additional conditions that Mortgagee may reasonably establish to protect its security. Mortgagor hereby acknowledges that the conditions described above are reasonable, and, if such conditions have not been satisfied within thirty (30) days of receipt by Mortgagee of such insurance or condemnation proceeds, then Mortgagee may apply such insurance or condemnation proceeds to pay the Secured Obligations in such order and amounts as Mortgagee in its sole discretion may choose. 5.7 MAINTENANCE AND PRESERVATION OF THE SUBJECT PROPERTY. Subject to the provisions of the Loan Agreement, Mortgagor covenants: (a) to insure the Subject Property and Collateral against such risks as Mortgagee may require and, at Mortgagee's request, to provide evidence of such insurance to Mortgagee, and to comply with the requirements of any insurance companies providing such insurance; (b) to keep the Subject Property and Collateral in good condition and repair; (c) not to remove or demolish the Subject Property or Collateral or any part thereof, not to alter, restore or add to the Subject Property or Collateral and not to initiate or acquiesce in any change in any zoning or other land classification which affects the Subject Property without Mortgagee's prior written consent or as provided in the Loan Agreement; (d) to complete or restore promptly and in good and workmanlike manner the Subject Property and Collateral, or any part thereof which may be damaged or destroyed, without regard to whether Mortgagee elects to require that insurance proceeds be used to reduce the Secured Obligations as provided in that certain Section entitled Damages Insurance and Condemnation Proceeds; (e) to comply with all laws, ordinances, regulations and standards, and all covenants, conditions, restrictions and equitable servitudes, whether public or private, of every kind and character which affect the Subject Property or Collateral and pertain to acts committed or conditions existing thereon, including, without limitation, any work, alteration, improvement or demolition mandated by such laws, covenants or requirements; (f) not to commit or permit waste of the Subject Property or Collateral; and (g) to do all other acts which from the character or use of the Subject Property or Collateral may be reasonably necessary to maintain and preserve its value. 5.8 DEFENSE AND NOTICE OF LOSSES, CLAIMS AND ACTIONS. At Mortgagor's sole expense, Mortgagor shall protect, preserve and defend the Subject Property and Collateral and title to and right of possession of the Subject Property and Collateral, the security hereof and the rights and powers of Mortgagee hereunder against all adverse claims. Mortgagor shall give Mortgagee prompt notice in writing of the assertion of any claim, of the filing of any action or proceeding, of the occurrence of any damage to the Subject Property or Collateral and of any condemnation offer oraction. 5.9 ACTIONS BY MORTGAGEE. From time to time and without affecting the personal liability of any person for payment of any indebtedness or performance of any obligations secured hereby, Mortgagee, without liability therefor and without notice, may: (a) release all or any part of the Subject Property from this Mortgage; (b) consent to the making of any map or plat thereof; and (c) join in any grant of easement thereon, any declaration of covenants and restrictions, or any extension agreement or any agreement subordinating the lien or charge of this Mortgage. 5.10 ASSIGNMENT, DUE ON SALE OR CHANGE OF CONTROL. Except as expressly permitted in this Mortgage or the Loan Documents, Mortgagor shall not, without the prior written consent of Mortgagee, mortgage, assign, convey, transfer, sell or otherwise dispose of or encumber the Subject Property or the Collateral (as each is defined in this Mortgage) or Mortgagor's interest or ownership in the Subject Property or the Collateral, or any part of the Subject Property or the Collateral, or the income to be derived from the Subject Property or the Collateral. Mortgagee has approved the Loan in material reliance upon the ownership and control of Mortgagor and the Subject Property being the same as exists as of the closing date (which is the date of the Note unless stated differently in the Loan Documents). Accordingly, other than with the prior written consent of Mortgagee, it is and shall be a Default under this Mortgage, the Note and all of the Loan Documents for there to be any sale, transfer 8 or conveyance or change in control (collectively a "conveyance of (1) any ownership interest or beneficial interest (regardless of the percentage interest conveyed or whether such interest is held as a partner, member, shareholder, beneficiary or otherwise) or (2) any controlling interest (regardless of the percentage interest conveyed or whether such interest is held as a partner, member, shareholder, beneficiary or otherwise) in any of the following: (i) Mortgagor or in the Subject Property, or (ii) the operation, management, income, or profits of or fee title to the Subject Property (whether held directly or indirectly), or (iii) any entity holding an ownership or beneficial or controlling interest in the Mortgagor or in the Subject Property or (iv) any entity which through one or more intermediaries holds any ownership interest or beneficial interest, or controlling interest (direct or indirect) in the Mortgagor or the Subject Property. "Control" or a "controlling interest" hereunder means the ability of any person or entity to (1) direct the business operations or voting procedures for any entity, (2) cause the election, selection or the appointment of entity officers or managers, (3) cause the appointment of the management managing any entity or (4) cast a majority of the votes in any election or decision making process for any entity or (5) do any of the foregoing for any intermediary entity holding any ownership or beneficial or majority interest (whether direct or indirect) in the Mortgagor or in the Subject Property. This Assignment, Due On Sale or Change Of Control provision does not prohibit (a) a conveyance of personal property which is part of the Collateral under the Loan due to obsolescence or ordinary wear and tear or fire or casualty and which is promptly replaced by Mortgagor with personal property of equal or greater value, or (b) Mortgagor leasing any portion of any of the Subject Property to a tenant which is expressly permitted pursuant to (i) the Loan Documents, and /or (ii) any assignment of leases which is part of the Loan Documents, provided, however, Mortgagee holds a security interest in the lease and a subordination and non disturbance agreement is granted in favor of Mortgagee on a Mortgagee- approved form. If this Assignment, Due On Sale or Change Of Control provision is breached, at the option of Mortgagee and without demand or notice, the full principal indebtedness of the Note and the other obligations of the Loan Documents shall immediately become due and payable to Mortgagee. Any acceleration of the indebtedness secured by the Subject Property because of a Default under this provision, shall be deemed a prepayment for all purposes whether or not the accelerated Loan balance is actually paid at the time of the subject conveyance; and if the Note or any Loan Document contains a yield maintenance provision or a prepayment fee or prepayment premium (collectively a "yield maintenance clause such yield maintenance clause and all sums due thereunder shall also be immediately due and payable upon such acceleration. 5.11 RELEASES, EXTENSIONS, MODIFICATIONS AND ADDITIONAL SECURITY. Without notice to or the consent, approval or agreement of any persons or entities having any interest at any time in the Subject Property and Collateral or in any manner obligated under the Secured Obligations "Interested Parties Mortgagee may, from time to time, release any person or entity from liability for the payment or performance of any Secured Obligation, take any action or make any agreement extending the maturity or otherwise altering the terms or increasing the amount of any Secured Obligation, or accept additional security or release all or a portion of the Subject Property and Collateral and other security for the Secured Obligations. None of the foregoing actions shall release or reduce the personal liability of any of said Interested Parties, or release or impair the priority of the lien of and security interests created by this Mortgage upon the Subject Property and Collateral. 5.12 RELEASE OF ASSIGNMENT. When this Mortgage has been fully released, the last such release shall operate as a reassignment of all future rents, issues and profits of the Subject Property to the person or persons legally entitled thereto. 5.13 SUBROGATION. Mortgagee shall be subrogated to the lien of all encumbrances, whether released of record or not, paid in whole or in part by Mortgagee pursuant to the Loan Documents or by the proceeds of any loan secured by this Mortgage. 5.14 RIGHT OF INSPECTION. Mortgagee, its agents and employees, may enter the Subject Property at any reasonable time for the purpose of inspecting the Subject Property and Collateral and ascertaining Mortgagor's compliance with the terms hereof. 9 5.15 UNLAWFUL USE, CONTROLLED SUBSTANCES AND PROHIBITED ACTIVITIES. Mortgagor shall not use, occupy, or permit the use or occupancy of the Subject Property by Mortgagor or any lessee, tenant, licensee, permitee, agent, or any other person in any manner that would be a violation of any applicable federal, state or local law or regulation, regardless of whether such use or occupancy is lawful under any conflicting law, including without limitation any law relating to the use, sale, possession, cultivation, manufacture, distribution or marketing of any controlled substances or other contraband (whether for commercial, medical, or personal purposes), or any law relating to the medicinal use or distribution of marijuana (collectively, "Prohibited Activities Any lease, license, sublease or other agreement for use, occupancy or possession of the Subject Property (collectively a "lease with any third person "lessee shall expressly prohibit the lessee from engaging or permitting others to engage in any Prohibited Activities. Mortgagor shall upon demand provide Mortgagee with a written statement setting forth its compliance with this section and stating whether any Prohibited Activities are or may be occurring in, on or around the Subject Property. If Mortgagor becomes aware that any lessee is likely engaged in any Prohibited Activities, Mortgagor shall, in compliance with applicable law, terminate the applicable lease and take all actions permitted by law to discontinue such activities. Mortgagor shall keep Mortgagee fully advised of its actions and plans to comply with this section and to prevent Prohibited Activities. This section is a material consideration and inducement upon which Mortgagee relies in extending credit and other fmancial accommodations to Mortgagor. Failure by Mortgagor to comply with this section shall constitute a material non curable Event of Default. Notwithstanding anything in this Mortgage, the Note or the other Loan Documents regarding rights to cure Events of Default, Mortgagee is entitled upon breach of this section to immediately exercise any and all remedies under this Mortgage, the Note the other Loan Documents, and by law. In addition and not by way of limitation, Mortgagor shall indemnify, defend and hold Mortgagee harmless from and against any loss, claim, damage, liability, fine, penalty, cost or expense (including attorneys' fees and expenses) arising from, out of or related to any Prohibited Activities at or on the Subject Property, Prohibited Activities by Mortgagor or any lessee of the Subject Property, or Mortgagor's breach, violation, or failure to enforce or comply with any of the covenants set forth in this section. This indemnity includes, without limitation any claim by any governmental entity or agency, any lessee, or any third person, including any governmental action for seizure or forfeiture of any of the Subject Property (with or without compensation to Mortgagee, and whether or not any of the Subject Property is taken free of or subject to Mortgagee's lien or security interest). ARTICLE 6. DEFAULT PROVISIONS 6.1 EVENT OF DEFAULT. For all purposes hereof, the terms "Default" and "Event of Default" shall have the meaning of "Event of Default" specified in the Loan Agreement. 6.2 RIGHTS AND REMEDIES. At any time after an Event of Default, Mortgagee shall have all the following rights and remedies: (a) With or without notice, to declare all Secured Obligations immediately due and payable; (b) With or without notice, and without releasing Mortgagor from any Secured Obligation, and without becoming a mortgagee in possession, to cure any breach or Default of Mortgagor and, in connection therewith, to enter upon the Subject Property and do such acts and things as Mortgagee deems necessary or desirable to protect the security hereof, including, without limitation: (i) to appear in and defend any action or proceeding purporting to affect the security of this Mortgage or the rights or powers of Mortgagee under this Mortgage; (ii) to pay, purchase, contest or compromise any encumbrance, charge, lien or claim of lien which, in the sole judgment of Mortgagee, is or may be senior in priority to this Mortgage, the judgment of Mortgagee being conclusive as between the parties hereto; (iii) to obtain insurance; (iv) to pay 10' any premiums or charges with respect to insurance required to be carried under this Mortgage; or (v) to employ counsel, accountants, contractors and other appropriate persons; (c) To commence and maintain an action or actions in any court of competent jurisdiction to foreclose this instrument or to obtain specific enforcement of the covenants of Mortgagor hereunder, and Mortgagor agrees that such covenants shall be specifically enforceable by injunction or any other appropriate equitable remedy and that for the purposes of any suit brought under this subparagraph, Mortgagor waives the defense of laches and any applicable statute of limitations; (d) To apply to a court of competent jurisdiction for and obtain appointment of a receiver of the Subject Property as a matter of strict right and without regard to the adequacy of the security for the repayment of the Secured Obligations, the existence of a declaration that the Secured Obligations are immediately due and payable, or the filing of a notice of default, and Mortgagor hereby consents to such appointment; (e) To enter upon, possess, manage and operate the Subject Property or any part thereof, to take and possess all documents, books, records, papers and accounts of Mortgagor or the then owner of the Subject Property, to make, terminate, enforce or modify Leases of the Subject Property upon such terms and conditions as Mortgagee deems proper, to make repairs, alterations and improvements to the Subject Property as necessary, in Mortgagee's sole judgment, to protect or enhance the security hereof; To resort to and realize upon the security hereunder and any other security now or later held by Mortgagee concurrently or successively and in one or several consolidated or independent judicial actions or lawfully taken non judicial proceedings, or both, and to apply the proceeds received upon the Secured Obligations all in such order and manner as Mortgagee determines in its sole discretion; (fl (g) Upon sale of the Subject Property at any foreclosure sale, Mortgagee may credit bid (as determined by Mortgagee in its sole and absolute discretion) all or any portion of the Secured Obligations. In determining such credit bid, Mortgagee may, but is not obligated to, take into account all or any of the following: (i) appraisals of the Subject Property as such appraisals may be discounted or adjusted by Mortgagee in its sole and absolute underwriting discretion; (ii) expenses and costs incurred by Mortgagee with respect to the Subject Property prior to foreclosure; (iii) expenses and costs which Mortgagee anticipates will be incurred with respect to the Subject Property after foreclosure, but prior to resale, including, without limitation, costs of structural reports and other due diligence, costs to carry the Subject Property prior to resale, costs of resale (e.g. commissions, attorneys' fees, and taxes), costs of any hazardous materials clean -up and monitoring, costs of deferred maintenance, repair, refurbishment and retrofit, costs of defending or settling litigation affecting the Subject Property, including the time value of money during any anticipated holding period by Mortgagee; (iv) declining trends in real property values generally and with respect to properties similar to the Subject Property; (v) anticipated discounts upon resale of the Subject Property as a distressed or foreclosed property; (vi) the fact of additional collateral (if any), for the Secured Obligations; and (vii) such other factors or matters that Mortgagee (in its sole and absolute discretion) deems appropriate. In regard to the above, Mortgagor acknowledges and agrees that: (w) Mortgagee is not required to use any or all of the foregoing factors to determine the amount of its credit bid; (x) this Section does not impose upon Mortgagee any additional obligations that are not imposed by law at the time the credit bid is made; (y) the amount of Mortgagee's credit bid need not have any relation to any loan -to -value ratios specified in the Loan Documents or previously discussed between Mortgagor and Mortgagee; and (z) Mortgagee's credit bid may be (at Mortgagee's sole and absolute discretion) higher or lower than any appraised value of the Subject Property; 11 (h) Upon the completion of any foreclosure of all or a portion of the Subject Property, commence an action to recover any of the Secured Obligations that remains unpaid or unsatisfied. 6.3 JUDICIAL FORECLOSURE. Mortgagee may obtain a judicial decree foreclosing Mortgagor's interest in all or any part of the Subject Property. 6.4 NON JUDICIAL SALE. Mortgagee may foreclose Mortgagor's interest in all or any part of the Subject Property by non judicial sale, and specifically by "power of sale" or "advertisement and sale" foreclosure as provided by statute. 6.5 DEFICIENCY JUDGMENT. If permitted by applicable law, Mortgagee may obtain a judgment for any deficiency remaining in the indebtedness due to Mortgagee after application of all amounts received from the exercise of the rights provided in this Article 6. Mortgagor shall be liable to Mortgagee for any deficiency remaining owed whether the property is sold through a judicial foreclosure or through a non judicial sale. 6.6 SALE OF THE PROPERTY. To the extent permitted by applicable law, Mortgagor hereby waives any and all rights to have the Subject Property marshalled. In exercising its rights and remedies, Mortgagee shall be free to sell all or any part of the Subject Property, together or separately in one sale, or by separate sales. Mortgagee shall be entitled to bid at any public sale on all or any portion of the Subject Property. 6.7 NOTICE OF SALE. Mortgagee shall give Mortgagor reasonable notice of the time and place of any public sale of the personal property or of the time after which any private sale or other intended disposition of the personal property is to be made. Reasonable notice shall mean notice that is at least ten (10) days before the time of the sale or disposition. 6.8 ELECTION OF REMEDIES. Election by Mortgagee to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action or to perform an obligation of the Mortgagor under this Mortgage, after Mortgagor's failure to perform, shall not affect Mortgagee's right to declare a default and exercise its remedies. Nothing under this Mortgage or otherwise shall be construed so as to limit or restrict the rights and remedies available to Mortgagee following Default, or in any way to limit or restrict the rights and ability of Mortgagee to proceed directly against Mortgagor and /or against any other co- maker, guarantor, surety, or endorser, and /or to proceed against any other collateral, directly or indirectly securing the indebtedness. 6.9 APPLICATION OF FORECLOSURE SALE PROCEEDS. Except as may be otherwise required by applicable law, after deducting all costs, including, without limitation, cost of evidence of title and attorneys' fees in connection with sale and costs and expenses of sale and of any judicial proceeding wherein such sale may be made, all proceeds of any foreclosure sale shall be applied: (a) to payment of all sums expended by Mortgagee under the terms hereof and not then repaid, with accrued interest at the rate of interest specified in the Note to be applicable on or after maturity or acceleration of the Note; (b) to payment of all other Secured Obligations; and (c) the remainder, if any, to the person or persons legally entitled thereto. 6.10 APPLICATION OF OTHER SUMS. All sums received by Mortgagee under that certain Section entitled Rights and Remedies or that certain Section entitled Grant of License, less all costs and expenses incurred by Mortgagee or any receiver under either of said Sections, including, without limitation, attorneys' fees, shall be applied in payment of the Secured Obligations in such order as Mortgagee shall determine in its sole discretion; provided, however, Mortgagee shall have no Liability for funds not actually received by Mortgagee. 6.11 NO CURE OR WAIVER. Neither Mortgagee's nor any receiver's entry upon and taking possession of all or any part of the Subject Property and Collateral, nor any collection of rents, issues, profits, insurance proceeds, condemnation proceeds or damages, other security or proceeds of other security, or other sums, nor the application of any collected sum to any Secured Obligation, nor the exercise or 12 failure to exercise of any other right or remedy by Mortgagee or any receiver shall cure or waive any breach, Default or notice of default under this Mortgage, or nullify the effect of any notice of default or sale (unless all Secured Obligations then due have been paid and performed and Mortgagor has cured all other defaults), or impair the status of the security, or prejudice Mortgagee in the exercise of any right or remedy, or be construed as an affirmation by Mortgagee of any tenancy, lease or option or a subordination of the lien of or security interest created by this Mortgage. 6.12 PAYMENT OF COSTS, EXPENSES AND ATTORNEYS' FEES. Mortgagor agrees to pay to Mortgagee immediately and without demand all costs and expenses incurred by Mortgagee pursuant to that certain Section entitled Rights and Remedies (including, without limitation, court costs and attorneys' fees, whether incurred in litigation or not) with interest from the date of expenditure until said sums have been paid at the rate of interest then applicable to the principal balance of the Note as specified therein. 6.13 POWER TO FILE NOTICES AND CURE DEFAULTS. Mortgagor hereby irrevocably appoints Mortgagee and its successors and assigns, as its attomey -in -fact, which agency is coupled with an interest, (a) to execute and/or record any notices of completion, cessation of labor, or any other notices that Mortgagee deems appropriate to protect Mortgagee's interest, (b) upon the issuance of a deed pursuant to the foreclosure of the lien of this Mortgage or the delivery of a deed in lieu of foreclosure, to execute all instruments of assignment or further assurance with respect to the Subject Property and Collateral, Leases and Payments in favor of the grantee of any such deed, as may be necessary or desirable for such purpose, (c) to prepare, execute and file or record financing statements, continuation statements, applications for .registration and like papers necessary to create, perfect or preserve Mortgagee's security interests and rights in or to any of the Subject Property and Collateral, and (d) upon the occurrence of an event, act or omission which, with notice or passage of time or both, would constitute a Default, Mortgagee may perform any obligation of Mortgagor hereunder; provided, however, that: (i) Mortgagee as such attomey -in -fact shall only be accountable for such funds as are actually received by Mortgagee; and (ii) Mortgagee shall not be liable to Mortgagor or any other person or entity for any failure to act (whether such failure constitutes negligence) by Mortgagee under this Section. 6.14 REMEDIES CUMULATIVE. All rights and remedies of Mortgagee provided hereunder are cumulative and are in addition to all rights and remedies provided by applicable law or in any other agreements between Mortgagor and Mortgagee. No failure on the part of Mortgagee to exercise any of its rights hereunder arising upon any Default shall be construed to prejudice its rights upon the occurrence of any other or subsequent Default. No delay on the part of Mortgagee in exercising any such rights shall be construed to preclude it from the exercise thereof at any time while that Default is continuing. Mortgagee may enforce any one or more remedies or rights hereunder successively or concurrently. By accepting payment or performance of any of the Secured Obligations after its due date, Mortgagee shall not thereby waive the agreement contained herein that time is of the essence, nor shall Mortgagee waive either its right to require prompt payment or performance when due of the remainder of the Secured Obligations or its right to consider the failure to so pay or perform a Default. ARTICLE 7. MISCELLANEOUS PROVISIONS 13 7.1 ADDITIONAL PROVISIONS. The Loan Documents contain or incorporate by reference the entire agreement of the parties with respect to matters contemplated herein and supersede all prior negotiations. The Loan Documents grant further rights to Mortgagee and contain further agreements and affirmative and negative covenants by Mortgagor which apply to this Mortgage and to the Subject Property and Collateral and such further rights and agreements are incorporated herein by this reference. 7.2 MERGER. No merger shall occur as a result of Mortgagee's acquiring any other estate in, or any other lien on, the Subject Property unless Mortgagee consents to a merger in writing. 7.3 OBLIGATIONS OF MORTGAGOR, JOINT AND SEVERAL. If more than one person has executed this Mortgage as "Mortgagor the obligations of all such persons hereunder shall be joint and several. 7.4 WAIVER OF MARSHALLING RIGHTS. Mortgagor, for itself and for all parties claiming through or under Mortgagor, and for all parties who may acquire a lien on or interest in the Subject Property and Collateral, hereby waives all rights to have the Subject Property and Collateral and/or any other property which is now or later may be security for any Secured Obligation "Other Property marshalled upon any foreclosure of the lien of this Mortgage or on a foreclosure of any other lien or security interest against any security for any of the Secured Obligations. Mortgagee shall have the right to sell, and any court in which foreclosure proceedings may be brought shall have the right to order a sale of, the Subject Property and any or all of the Collateral or Other Property as a whole or in separate parcels, in any order that Mortgagee may designate. 7.5 RULES OF CONSTRUCTION. When the identity of the parties or other circumstances make it appropriate the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. The term "Subject Property" and "Collateral" means all and any part of the Subject Property and Collateral, respectively, and any interest in the Subject Property and Collateral, respectively. 7.6 NO WAIVER. No previous waiver and no failure or delay by Beneficiary in acting with respect to the terms of the Note or this Mortgage shall constitute a waiver of any breach, default, or failure of condition under the Note, this Mortgage or the obligations secured thereby. A waiver of any term of the Note, this Mortgage or of any of the obligations secured thereby must be made in writing and shall be limited to the express written terms of such waiver. In the event of any inconsistencies between the terms of the Note and the terms of any other document related to the loan evidenced by the Note, the terms of the Note shall prevail. 7.7 SUCCESSORS IN INTEREST. The terms, covenants, and conditions herein contained shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties hereto; provided, however, that this Section does not waive or modify the provisions of that certain Section entitled Assignment, Due on Sale or Change of Control. 7.8 EXECUTION IN COUNTERPARTS. To facilitate execution, this document may be executed in as many counterparts as may be convenient or required. It shall not be necessary that the signature or acknowledgment of, or on behalf of, each party, or that the signature of all persons required to bind any party, or the acknowledgment of such party, appear on each counterpart. All counterparts shall collectively constitute a single document. It shall not be necessary in making proof of this document to produce or account for more than a single counterpart containing the respective signatures of, or on behalf of, and the respective acknowledgments of, each of the parties hereto. Any signature or acknowledgment page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures or acknowledgments thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature or acknowledgment pages. 7.9 SEVERABILITY/INVALIDITY OF CERTAIN PROVISIONS. If any provision of this Mortgage is invalid, illegal, or unenforceable, such provision shall be severable from the rest of this Mortgage and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. If the lien of this Mortgage is invalid or unenforceable for any part of the obligations secured by this Mortgage, or if the lien is invalid or unenforceable for any part of the Subject Property, the unsecured or partially secured portion of the debt shall be completely paid prior to the payment of the remaining portion of the debt, and all payments made on the debt, whether voluntarily or under foreclosure or other enforcement action or procedure, shall be considered to have been first paid on and applied to the full payment of that portion of the obligations secured by this Mortgage that is not secured or fully secured by the lien of this Mortgage. 14 7.10 ADVERTISING. In connection with the Loan, Mortgagor hereby agrees that Lender and its affiliates "Zions may publicly identify details of the Loan in Zions advertising and public communications of all kinds, including, but not limited to, press releases, direct mail, newspapers, magazines, journals, e- mail, or internet advertising or communications. Such details may include the name of the Subject Property, the address of the Subject Property, the amount of the Loan, the date of the closing and a description of the size /location of the Subject Property. 7.11 FORCED PLACE INSURANCE NOTICE. WARNING: UNLESS MORTGAGOR PROVIDES LENDER WITH EVIDENCE OF THE INSURANCE COVERAGE AS REQUIRED BY THIS MORTGAGE OR OTHER LOAN DOCUMENT, LENDER MAY PURCHASE INSURANCE AT MORTGAGOR'S EXPENSE TO PROTECT LENDER'S INTEREST. THIS INSURANCE MAY, BUT NEED NOT, ALSO PROTECT MORTGAGOR'S INTEREST. IF THE COLLATERAL BECOMES DAMAGED, THE COVERAGE LENDER PURCHASES MAY NOT PAY ANY CLAIM MORTGAGOR MAKES OR ANY CLAIM MADE AGAINST MORTGAGOR. MORTGAGOR MAY LATER CANCEL THIS COVERAGE BY PROVIDING EVIDENCE THAT MORTGAGOR HAS OBTAINED PROPERTY COVERAGE ELSEWHERE. MORTGAGOR IS RESPONSIBLE FOR THE COST OF ANY INSURANCE PURCHASED BY LENDER. THE COST OF THIS INSURANCE MAY BE ADDED TO BORROWERS' CONTRACT OR THE LOAN BALANCE. IF THIS COST IS ADDED TO BORROWERS' CONTRACT OR THE LOAN BALANCE, THE INTEREST RATE PAYABLE UNDER THE DEFAULT RATE WILL APPLY TO THE ADDED AMOUNT. THE EFFECTIVE DATE OF THE COVERAGE MAY BE THE DATE MORTGAGOR'S PRIOR COVERAGE LAPSED OR THE DATE MORTGAGOR FAILED TO PROVIDE PROOF OF COVERAGE. THE COVERAGE PURCHASED BY LENDER MAY BE CONSIDERABLY MORE EXPENSIVE THAN INSURANCE MORTGAGOR CAN OBTAIN ON ITS OWN AND MAY NOT SATISFY ANY NEED FOR PROPERTY DAMAGE COVERAGE OR MANDATORY LIABILITY INSURANCE REQUIREMENTS IMPOSED BY APPLICABLE LAW. 7.12 NO ORAL COMMITMENTS NOTICE. Under Utah and Wyoming law, most agreements, promises and commitments made by Lender concerning loans and other credit extensions which are not for personal, family or household purposes or secured solely by a borrower's residence must be in writing, express consideration and be signed by Lender to be enforceable. 7.13 CHOICE OF LAW. This Mortgage shall be construed in accordance with the laws of the State of Wyoming, except to the extent that federal laws preempt the laws of the State of Wyoming. 7.14 INCORPORATION. Exhibit A all as attached, are incorporated into this Mortgage by this reference. 7.15 NOTICES. All notices, demands or other communications required or permitted to be given pursuant to the provisions of this Mortgage shall be in writing and shall be considered as properly given if delivered personally or sent by first class United States Postal Service mail, postage prepaid, except that notice of Default shall be sent by certified mail, return receipt requested, or by Overnight Express Mail or by overnight commercial courier service, charges prepaid. Notices so sent shall be effective three (3) days after mailing, if mailed by first class mail, and otherwise upon receipt at the address set forth below; provided, however, that non receipt of any communication as the result of any change of address of which the sending party was not notified or as the result of a refusal to accept delivery shall be deemed receipt of such communication. For purposes of notice, the address of the parties shall be: Mortgagor: Broadway Media, LLC 595 South Riverwoods Parkway, Suite 400 Logan, Utah 84321 ATTN: Dell Loy Hansen 15 With a copy to: Wasatch Acquisitions and Capital, Inc. 595 South Riverwoods Parkway, Suite 400 Logan, Utah 84321 ATTN: Dylan Olsen With a copy to: Olson Hoggan, P.C. 130 South Main, Suite 200 Logan, Utah 84321 ATTN: Robert B. Funk Mortgagee: Zions First National Bank One South Main Street, Suite 300 Salt Lake City, Utah 84133 ATTN: Todd Harris i Any party shall have the right to change its address for notice hereunder to any other location within the continental United States by the giving of thirty (30) days notice to the other party in the manner set forth hereinabove. Mortgagor shall forward to Mortgagee, without delay, any notices, letters or other communications delivered to the Subject Property or to Mortgagor naming Mortgagee, "Lender" or any similar designation as addressee, or which could reasonably be deemed to affect the ability of Mortgagor to perform its obligations to Mortgagee under the Note or the Loan Agreement. [Remainder of this page is left blank intentionally. Signatures are on the following page.] 16 [Mortgage Signature Page —Broadway Media, LLC, as Mortgagor] IN WITNESS WHEREOF, Mortgagor has executed this Mortgage as of the day and year set forth above. "MORTGAGOR" BROADWAY MEDIA, LLC, a Utah limited liability company (ALL SIGNATURES MUST BE ACKNOWLEDGED) STATE OF UTAH COUNTY OF SALT LAKE 1282994 The foregoing instrument was acknowledged before me this day of 2014, by Dell Loy Hansen, as the Manager of Broadway Media, LLC, a Utah limited liability company, as a duly au orized act for and on behalf of said company. He is personally known to me or has produced satisfactory identification and did not take an oath. Not ry ublic, S JOSEPH VAN SAXTON Notary Public State of Utah COMMISSION #650789 M Commission Expires Dec. 14, 2015 17 of U ah k Printed Name My Commission Expires: 11-1 aD S Parcel 1: Parcel 2: Exhibit A DESCRIPTION OF SUBJECT PROPERTY Exhibit A to Mortgage with Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing executed by Broadway Media, LLC, as Mortgagor for the benefit of Zions First National Bank, as Mortgagee. All the certain real property located in the Town of Kemmerer, County of Lincoln, State of Wyoming, described as follows: Commencing at the Northwesterly Corner of Block 19 of the First Addition to the Town of Kemmerer, Lincoln County, Wyoming and running thence South 63 °26' West, 60 feet; Thence South 84 °38' West, 131.14 feet to the point of beginning; Thence North 11 °36' East, 120.00 feet to a point on the Southerly right of way boundary line of Wyoming State Highway #30 North; Thence in a Westerly direction along said right of way boundary following a 1.027 curve to the left, a distance of 501.33 feet; Thence South 11 °26' West, 273 feet; Thence along a curve to the left with a radius of 250.00 feet and an internal angle of 180.00 feet, a distance of 785.40 feet; Thence North 11 °36' East, 130.00 feet to the point of beginning, being situated in the Southeast quarter of Section 14, Township 21 North, Range 116 West of the 6th P.M. Commencing at the Northwesterly corner of Block 19 of the First Addition to the Town of Kenunerer, Lincoln County, Wyoming and running thence South 63 °26' West, 30.00 feet to the point of beginning. Thence South 63 °26' West, 30.00 feet; Thence South 84 °38'30" West, 131.14 feet; Thence North 11 °26' East, 120.00 feet; Thence South 72 °45' East, 19.92 feet; Thence South 17 °36' West, 12.26 feet; Thence North 89 °38' East, 80.88 feet; Thence South 26 °34' East, 83.65 feet to the point of beginning. 18