ITT INDUSTRIES INC
MORTGAGE, SECURITY AGREEMENT CHEEKTOWAGA, NY
<DOCUMENT>
<TYPE>EX-10.4
<SEQUENCE>5
<FILENAME>y69756exv10w4.txt
<DESCRIPTION>MORTGAGE, SECURITY AGREEMENT CHEEKTOWAGA, NY
<TEXT>
<PAGE>

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                                    MORTGAGE,
                        SECURITY AGREEMENT AND FINANCING
                      STATEMENT (INCLUDING FIXTURE FILING)

                          Dated as of December 15, 2004

                                     between

                                  REXUS L.L.C.,
                                  as Mortgagee

                                       and

                              ITT INDUSTRIES, INC.,
                                  as Mortgagor

LOCATION OF MORTGAGED PROPERTY:

Street Address: 175 Standard Parkway
                Cheektowaga, New York 14227
County:         Erie
Block:          1
Lot:            28

                              Record and Return to:

                                    Jones Day
                              222 East 41st Street
                               New York, NY 10017
                      Attention: Leonard C. Pojednic, Esq.

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<PAGE>

                        MORTGAGE, SECURITY AGREEMENT AND
                 FINANCING STATEMENT (INCLUDING FIXTURE FILING)

      THIS MORTGAGE, SECURITY AGREEMENT AND FINANCING STATEMENT (INCLUDING
FIXTURE FILING), dated as of December 15, 2004 (this "Mortgage"), between REXUS
L.L.C., a Delaware limited liability company with an address at Societe
Generale, (Canada), as Lessor Administrator, 1501 McGill College, Bureau 1800,
Montreal, Quebec, H3A 3MB, Canada, as the Mortgagee (the "Mortgagee"), and ITT
INDUSTRIES, INC., an Indiana corporation, with an address at 4 West Red Oak
Lane, White Plains, New York 10604, as Mortgagor (the "Mortgagor"). For purposes
of this Mortgage, capitalized terms used herein and not otherwise defined herein
or in Schedule IV hereto shall have the meanings assigned to them in Appendix A
to the Master Lease (as defined below), and the rules of interpretation set
forth in such Appendix A shall apply to this Mortgage.

      WHEREAS, pursuant to a Participation Agreement, dated as of the date
hereof (as amended, supplemented, amended and restated or otherwise modified
from time to time, the "Participation Agreement"), among the Mortgagee, the
Mortgagor, and others as Investors, the Investors and the Mortgagee have agreed
to finance the acquisition of the certain properties described therein,
including the real property described on Schedule I hereto (such real property
described on Schedule I hereto, the "Land"), and the payment of certain
transaction expenses in connection therewith;

      WHEREAS, subject to the terms and conditions set forth in the
Participation Agreement, on the date hereof the Mortgagee purchased from the
Mortgagor the Land;

      WHEREAS, Mortgagee and Mortgagor have executed that certain Master Lease
and Deed of Trust, Deed to Secure Debt and Mortgage dated as of the date hereof
(the "Master Lease"), as supplemented by that certain Lease Supplement, dated as
of the date hereof (the "Related Lease Supplement"), pursuant to which the
Mortgagee leased the Land, all Improvements thereon and all other improvements
now thereon or which hereafter may be constructed thereon and all Appurtenant
Rights with respect thereto and all Equipment (collectively, the "Subject
Property") to the Mortgagor; and

      WHEREAS, pursuant to the terms of this Mortgage, the Mortgagor will grant
a continuing security interest and mortgage in the Subject Property to the
Mortgagee;

      NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:

      SECTION 1.Grant of Mortgage Lien and Security Interest: Assignment of
Rents. To secure to the Mortgagee the payment and performance of the Obligations
in a principal amount not to exceed FIVE MILLION AND 00/100 U.S. Dollars
($5,000,000), the maximum amount of principal indebtedness which is or under any
contingency may be secured hereby, together with

<PAGE>

all other sums described below which may from time to time become due and
payable to the Mortgagee by reason of the exercise of its rights and remedies
under the Operative Documents:

            (a)   Subject to the terms and conditions of the Master Lease, as
                  supplemented by the Related Lease Supplement (including,
                  without limitation, the Mortgagor's rights thereunder so long
                  as no Lease Event of Default has occurred and is continuing),
                  the Mortgagor has caused the Mortgagee to hold title to the
                  Subject Property and does hereby mortgage, grant, bargain,
                  sell, convey, assign, transfer and set over to the Mortgagee,
                  with power of sale, to the extent permitted by Applicable Law:
                  (i) all of the Mortgagor's right, title and interest from time
                  to time in the Subject Property of whatever nature (including
                  without limitation Mortgagor's leasehold interest under the
                  Master Lease, all condemnation and insurance proceeds from the
                  Subject Property and all Profits as defined below); and (ii)
                  all of the Mortgagor's right, title and interest in and to all
                  proceeds of the conversion, whether voluntary or involuntary,
                  of any of the above-described property into cash or other
                  liquid claims, including, without limitation, all awards,
                  payments or proceeds, including interest thereon, and the
                  right to receive the same, which may be made as a result of
                  casualty, any exercise of the right of eminent domain or deed
                  in lieu thereof, the alteration of the grade of any street and
                  any injury to or decrease in the value thereof, the foregoing
                  being referred to hereinafter as the "Security Property".

                  TO HAVE AND TO HOLD the Security Property, subject however to
                  Permitted Property Liens (which shall include the items set
                  forth on Schedule II), unto the Mortgagee, its successors and
                  assigns forever.

                  (i)   Protective Advances. The Mortgagee shall have the right,
                        but not the obligation, to make protective advances with
                        respect to the Security Property for the payment of
                        taxes, assessments, insurance premiums or costs incurred
                        for the protection of the Security Property, and such
                        protective advances, together with interest thereon at
                        the Overdue Rate from the date of each such advance
                        until it is repaid in full, shall be secured by this
                        Mortgage to the fullest extent and with the highest
                        priority contemplated by Applicable Law.

                  (ii)  Mortgage. Subject to the limitation set forth in the
                        next succeeding sentence, the Mortgagor and the
                        Mortgagee intend that this Mortgage shall secure
                        Mortgagor's obligation to repay the unpaid balance of
                        advances made by the Mortgagee and/or the holder hereof
                        under the Master Lease and other Operative Documents to
                        the fullest extent and with the highest priority
                        contemplated by Applicable Law. The Obligations secured
                        hereby shall include, without limitation, all Basic
                        Rent, Accrual Rent and Fixed Rent as well as all
                        Supplemental Rent due from Mortgagor under the

                                     - 2 -
<PAGE>

                        Master Lease. The maximum amount of the Obligations
                        secured by this Mortgage, exclusive of interest thereon
                        (whether or not identified as interest and including
                        specifically all Accrual Rent under the Master Lease),
                        and exclusive of advances made for the payment of real
                        estate taxes, assessments, insurance premiums and costs
                        incurred for the protection of the Security Property and
                        all other protective advances as described in Section
                        1(a)(i) above, all of which are also secured by this
                        Mortgage, shall not exceed FIVE MILLION AND 00/100 U.S.
                        DOLLARS ($5,000,000).

            (b)   Subject to the terms and conditions of the Master Lease, as
                  supplemented by the Related Lease Supplement (including,
                  without limitation, the Mortgagor's rights thereunder so long
                  as no Lease Event of Default has occurred and is continuing),
                  the Mortgagor hereby grants to the Mortgagee a security
                  interest in the Mortgagor's interest in that portion of the
                  Security Property (the "UCC Property") subject to the Uniform
                  Commercial Code of the State of New York (the "UCC"). This
                  Mortgage shall also be deemed to be a security agreement and
                  shall support any financing statement showing the Mortgagee's
                  interest as a secured party with respect to any portion of the
                  UCC Property described in such financing statement. The
                  Mortgagor agrees, at its sole cost and expense, to execute,
                  deliver and file from time to time such further instruments as
                  may be requested by the Mortgagee to confirm and perfect the
                  lien of the security interest in the collateral described in
                  this Mortgage.

            (c)   The Mortgagor hereby irrevocably assigns, conveys, transfers
                  and sets over unto the Mortgagee (subject, however, to the
                  Master Lease, as supplemented by the Related Lease Supplement,
                  and the rights of the Mortgagor thereunder) all and every part
                  of the rents, issues and profits (collectively, the "Profits")
                  that may from time to time become due and payable on account
                  of any and all subleases or other occupancy agreements now
                  existing, or that may hereafter come into existence with
                  respect to the Subject Property or any part thereof, including
                  any guaranties of such sublease or occupancy agreements
                  (collectively, the "Subleases") provided, that, unless a Lease
                  Event of Default is continuing, the Mortgagor shall have the
                  right to collect and retain such Profits. Upon request of the
                  Mortgagee, the Mortgagor shall execute and cause to be
                  recorded, at its expense, supplemental or additional
                  assignments of any Subleases of the Subject Property. Upon the
                  occurrence and during the continuance of a Lease Event of
                  Default, the Mortgagee is hereby fully authorized and
                  empowered in its discretion (in addition to all other powers
                  and rights herein granted), to apply for and collect and
                  receive all such Profits and enforce such guaranty or
                  guaranties, and all money so received under and by virtue of
                  this assignment shall be applied as further security for the
                  payment and performance of the Obligations secured hereby.

                                     - 3 -
<PAGE>

            (d)   Notwithstanding that this Mortgage is an absolute assignment
                  of the Profits and the Subleases and not merely the collateral
                  assignment of, or the grant of a lien or security interest in,
                  the Profits and the Subleases, the Mortgagee grants to the
                  Mortgagor a revocable license to enforce all of its rights and
                  remedies under the Subleases, to collect and receive the
                  Profits and to retain, use and enjoy such Profits. Such
                  license shall be automatically revoked upon the occurrence and
                  during the continuance of any Lease Event of Default.

      SECTION 2. Remedies. (a) Upon the occurrence and during the continuance of
a Lease Event of Default, each of which is also a default under this Mortgage,
the Mortgagee may exercise any one or more of the following rights and remedies
as it, in its sole discretion, may deem necessary or appropriate:

                  (i)   collect interest on all past due sums at the Overdue
                        Rate;

                  (ii)  either in person or by agent, with or without bringing
                        any action or proceeding, or by a receiver appointed by
                        a court, and without regard to the adequacy of security,
                        enter upon and take possession of the Security Property,
                        or any part thereof, in its own name, and do any acts
                        which it deems necessary or desirable to preserve the
                        value, marketability or rentability of the Security
                        Property, or any part thereof or interest therein, to
                        increase the income therefrom or to protect the security
                        hereof and, with or without taking possession of the
                        Security Property, to sue for or otherwise to collect
                        the Profits thereof, including, without limitation,
                        those past due and unpaid, and to apply the same, less
                        costs and expenses of operation and collection,
                        including, without limitation, reasonable attorneys'
                        fees, upon any Obligations secured hereby, all in such
                        order as the Mortgagee may determine. The entering upon
                        and taking possession of the Security Property, and the
                        collection of such Profits and the application thereof
                        as aforesaid, shall not cure or waive any Lease Event of
                        Default or notice of a Lease Event of Default hereunder
                        or invalidate any act done in response to such Lease
                        Event of Default and, notwithstanding the continuance in
                        possession of the Mortgagee or the collection, receipt
                        and application of Profits by the Mortgagee, the
                        Mortgagee shall be entitled to exercise every right
                        provided for herein or by law upon the occurrence and
                        during the continuance of any Lease Event of Default,
                        including, without limitation, to the extent permitted
                        by Applicable Law, the right to exercise the power of
                        sale;

                  (iii) to the extent permitted by Applicable Law, utilize the
                        procedures set forth in Article 14 of the New York Real
                        Property Actions and Proceedings Law and commence a
                        non-judicial foreclosure by power of sale. To the extent
                        permitted by Applicable Law, Mortgagor waives any right
                        granted pursuant to Section 1421 or

                                     - 4 -
<PAGE>

                        any other provision of the New York Real Property
                        Actions and Proceedings Law to challenge Mortgagee's
                        election to enforce this Mortgage by means of such
                        non-judicial foreclosure by power of sale;

                  (iv)  foreclose this Mortgage in the manner provided by
                        Applicable Law for the foreclosure of mortgages on real
                        property;

                  (v)   declare immediately due and payable without notice or
                        demand, except as otherwise required hereunder or under
                        Applicable Law, all amounts payable by the Mortgagor
                        hereunder or under the other Operative Documents which
                        are then unpaid, with all interest and sums accrued and
                        accelerate payment thereof notwithstanding contrary
                        terms of payment stated therein and exercise all other
                        rights and remedies available hereunder, under
                        Applicable Law, in equity or otherwise;

                  (vi)  in any action to foreclose this Mortgage, and upon
                        notice to the Mortgagor or anyone under the Mortgagor
                        and without regard to the adequacy of its security or
                        the then value of the Security Property or the interest
                        of the Mortgagor therein, apply to any court having
                        jurisdiction to appoint a receiver or receivers of the
                        Security Property and the Mortgagor hereby irrevocably
                        consents to such appointment and, to the extent
                        permitted by Applicable Law, waives notice of any
                        application therefor. Any such receiver or receivers
                        shall have all the usual powers and duties of receivers
                        in like or similar cases and all the powers of the
                        Mortgagee provided for in Section D(a)(ii) above, to the
                        extent permitted by Applicable Law, and shall continue
                        as a receiver and exercise all such powers until the
                        date of confirmation of sale of the Security Property
                        unless such receivership is sooner terminated by the
                        Mortgagee in its sole discretion or as a court of
                        competent jurisdiction shall direct.

                  Upon the occurrence and during the continuance of a Lease
                  Event of Default, the Mortgagee shall be entitled to enforce
                  payment and performance of any Obligations secured hereby and
                  to exercise all rights and powers hereunder or any laws now or
                  hereafter in force notwithstanding that some or all of said
                  Obligations secured hereby may now or hereafter be otherwise
                  secured, whether by mortgage, deed of trust, pledge, lien,
                  assignment or otherwise. To the extent permitted by Applicable
                  Law, neither the acceptance nor the enforcement hereof,
                  whether by court action or pursuant to the power of sale or
                  other powers herein contained, shall prejudice or in any
                  manner affect the Mortgagee's right to realize upon or enforce
                  any other security now or hereafter held by the Mortgagee;
                  and, to the extent permitted by Applicable Law, the Mortgagee
                  shall be entitled to enforce the rights and remedies provided
                  for

                                     - 5 -
<PAGE>

                  herein and any other security now or hereafter held by the
                  Mortgagee in such order and manner as it may in its absolute
                  discretion determine. No remedy conferred upon or reserved to
                  the Mortgagee is intended to be exclusive of any other remedy,
                  but each shall be cumulative and shall be in addition to every
                  other remedy given hereby or now or hereafter existing at law
                  or in equity or by statute. To the extent permitted by
                  Applicable Law, every power or remedy given hereby to the
                  Mortgagee or to which the Mortgagee may be otherwise entitled,
                  may be exercised, concurrently or independently, from time to
                  time and as often as may be deemed expedient by the Mortgagee,
                  and the Mortgagee may pursue inconsistent remedies.

            (b)   Upon the occurrence and during the continuance of a Lease
                  Event of Default, the Mortgagee, in addition to and not in
                  lieu of or in diminution of the rights and remedies provided
                  above shall have all of the rights and remedies of a secured
                  party under the UCC, which rights and remedies may be
                  exercised without application to any court to the extent
                  permitted by the UCC.

            (c)   It is the intent of the parties hereto that the Master Lease
                  be treated as a secured borrowing as provided in Section 1,
                  and that, upon the occurrence and during the continuance of a
                  Lease Event of Default, the Mortgagee shall have remedies
                  provided for herein. In the event that, notwithstanding the
                  intention of the parties, a court of competent jurisdiction
                  determines that, for the purpose of remedies, the transaction
                  contemplated by the Master Lease constitutes a leasing
                  arrangement, the parties hereto acknowledge and agree that the
                  Mortgagee shall have, as a result of such determination, in
                  addition to the remedies set forth in this Section 2, all of
                  the rights and remedies of a landlord provided for in Article
                  XVI of the Master Lease, provided that the parties hereto
                  acknowledge and agree that it is their intent that the Master
                  Lease be construed as provided in Section 1.

      SECTION 3. Mortgagee Grant. (a) The Mortgagee hereby conditionally grants
a Lien to the Mortgagor against all of the Mortgagee's right, title and interest
in and to the Security Property, which Lien shall be effective only if the
Mortgagee shall become the subject of any bankruptcy, insolvency or similar
proceeding and such proceeding shall result in the rejection of the Master
Lease. Such Lien shall secure the satisfaction of the Mortgagor's right to
damages and other claims arising out of the rejection of the Master Lease to the
extent and in the manner provided for pursuant to the Operative Documents.

      (b) The Mortgagor agrees that the conditional Lien created in paragraph
(a) of this Section will terminate upon the termination of the Master Lease with
respect to the Subject Property for any reason other than a rejection of the
Master Lease in connection with a bankruptcy, insolvency or similar proceeding
with respect to the Mortgagee. Mortgagor covenants to promptly deliver any
releases or reconveyances reasonably required by Mortgagee to evidence such
termination of Lien.

                                     - 6 -
<PAGE>

      (c) The Lien created in paragraph (a) of this Section is junior and
subordinate in all respects to the Liens granted by the Mortgagor in favor of
the Mortgagee pursuant to this Mortgage and the other Operative Documents.

      SECTION 4. Applicable Law; Certain Particular Provisions. This Mortgage
shall be governed by and construed in accordance with the laws of the State of
New York ("Applicable Law"); and each of the Mortgagee and the Mortgagor agree
to submit to jurisdiction and the laying of venue for any suit on this Mortgage
in such state. The terms and provisions set forth in Schedule III attached
hereto are hereby incorporated by reference as though fully set forth herein. In
the event of any conflict between the terms and provisions contained in this
Mortgage and the terms and provisions set forth in Schedule III, the terms and
provisions set forth in Schedule III shall govern and control.

      SECTION 5. No Merger of Title. There shall be no merger of the Master
Lease (as amended by the Related Lease Supplement) or of the leasehold estate
created thereby by reason of the fact that the same Person may acquire, own or
hold, directly or indirectly, in whole or in part, (a) the Master Lease (as
amended by the Related Lease Supplement) or the leasehold estate created thereby
or any interest in the Master Lease (as amended by the Related Lease Supplement)
or such leasehold estate, or (b) the fee estate or ground leasehold estate in
the Subject Property, except as may expressly be stated in a written instrument
duly executed and delivered by the Mortgagee.

      SECTION 6. Satisfaction of the Mortgage, Security Interest and Assignment
of Rents and Subleases. If the Mortgagor complies with the provisions of this
Mortgage and irrevocably pays and performs all of the Obligations secured
hereby, in accordance with the provisions of the Master Lease, as supplemented
by the Related Lease Supplement, and the other Operative Documents and in the
manner and at the times set forth therein, without deduction, fraud or delay,
then and from thenceforth this Mortgage and the estate hereby granted and
created in favor of the Mortgagee, shall cease and become void, anything
hereinbefore contained to the contrary notwithstanding.

      SECTION 7. Maximum Interest Rate. No provision of this Mortgage or any
transaction related thereto shall require the payment or permit the collection
of interest or any other amount in excess of the maximum permitted by Applicable
Law. If any excess of interest or any other amount in such respect is herein or
any other Operative Document provided for, the Mortgagor shall not be obligated
to pay such excess interest or any other amounts in excess of the amount
permitted by applicable law, and the right to demand the payment of any such
excess shall be and hereby is waived, and this provision shall control any other
provision of this Mortgage and the other Operative Documents.

      SECTION 8. Security Agreement and Fixture Financing Statement. This
Mortgage is both a real property mortgage and a "security agreement" within the
meaning of the UCC. The Subject Property includes both real and personal
property and all other rights and interests, whether tangible or intangible in
nature, of Mortgagee in the Subject Property. In Section 1(b), Mortgagor has
granted to Mortgagee, as security for the Obligations, a security interest in
the UCC Property to the full extent that the UCC Property may be subject to the
UCC. The information contained in this Section 9 is provided in order that this
Mortgage shall comply with

                                     - 7 -
<PAGE>

the requirements of the UCC for mortgages to be effective as financing statement
filed as a fixture filing. The name of the "debtor" is ITT INDUSTRIES, INC.; the
name of the "secured party" is REXUS L.L.C.; the mailing address of the "secured
party" from which information concerning the security interest may be obtained
and the mailing address of the "debtor" are as set forth in the first paragraph
herein. The types, or the items, of collateral covered hereby consist of the UCC
Property identified in Section 1 which constitute fixtures or personal property.
The Mortgagee is the record owner of the Land.

      SECTION 9. Notices. For purposes of this instrument as a fixture filing,
and for all other purposes, unless otherwise specifically provided herein, all
notices, offers, acceptances, rejections, consents, requests, demands or other
communications to or upon the respective parties hereto shall be in writing and
shall be deemed to have been given as set forth in Section 26.4 of the Master
Lease.

      SECTION 10. Counterpart Execution. This Mortgage may be executed in any
number of counterparts and by each of the parties hereto in separate
counterparts, all such counterparts together constituting but one and the same
instrument.

                      [Signature Blocks on Following Page]

                                     - 8 -
<PAGE>

         IN WITNESS WHEREOF, each of the parties hereto has caused this Mortgage
to be duly executed by an officer thereunto duly authorized as of the date and
year first above written.

                                REXUS L.L.C., as Mortgagee

                                     By: /s/ Larry Bowman
                                         -----------------
                                     Name: Larry Bowman
                                     Title: President

                                ITT INDUSTRIES, INC., as Mortgagor

                                     By: /s/ Donald Foley
                                         -----------------
                                     Name: Donald Foley
                                     Title: Senior Vice President, Treasurer and
                                     Director of Tax

                                     N - 2

<PAGE>

                                   Schedule I

                                Legal Description

                                    PARCEL 1

      ALL THAT TRACT OR PARCEL OF LAND, situate in the Town of Cheektowaga,
County of Erie and State of New York, being part of Lot No. 23, Township 11,
Range 7 of the Holland Land Company's Survey, further described as part of the
premises designated and subdivided on map filed in Erie County Clerk's Office
under Cover of Maps No. 553, more particularly bounded and described as follows:

      BEGINNING at a point in the easterly line of said Subdivision Tract
distant southerly, at right angles, 20 feet from the southerly line of lands of
the former Lehigh Valley Railroad Company, now Conrail; thence southerly along
the easterly line of said Subdivision Tract 1354.22 feet to the northerly line
of Wojcik Avenue as said line is extended easterly in a direct line; running
thence westerly along the northerly line of Wojcik Avenue and said line extended
and forming an interior angle of 90 degrees 35' 50" with the last described
line 388.2 feet to the easterly line of Walkowiak Avenue; running thence
northerly along the easterly line of Walkowiak Avenue and said line extended
northerly in a direct line and forming an interior angle of 90 degrees with the
last described line 1206.09 feet to a point therein 20.0 feet southerly at right
angles from the southerly line of lands of Conrail (formerly the Lehigh Valley
Railway Company); running thence easterly along a line drawn parallel with the
southerly line of said railway company's land and forming an interior angle of
100 degrees 12' 10" with the last described line 428.70 feet to the point or
place of beginning.

                                    PARCEL 2

      ALL THAT TRACT OR PARCEL OF LAND, situate in the Town of Cheektowaga,
County of Erie and State of New York, being parts of Lots Nos. 15 and 23,
Township 11, Range 7 of the Holland Land Company's Survey, bounded and described
as follows:

      BEGINNING at the point or intersection of the northerly line of Wojcik
Avenue, as described in deed to the Town of Cheektowaga recorded in Erie County
Clerk's Office in Liber 1450 of Deeds at page 288, with the easterly line of the
lands shown upon map filed in said Clerk's Office under Cover of Maps No. 553;
running thence easterly along said northerly line of Wojcik Avenue 365.14 feet
to the westerly line of lands conveyed to Niagara, Lockport & Ontario Power
Company by deed recorded in said Clerk's Office in Liber 1392 of Deeds at page
474; running thence northerly along the westerly line of lands so conveyed to
said power company and forming an interior angle of 93 degrees 43' with the
last described line 1271.80 feet to an angle therein; running thence northerly
along the westerly line of lands so conveyed to said power company and forming
an exterior angle of 184(0) 50' 10" with the last described course 158.08 feet
to the southerly line of lands conveyed to Buffalo General Electric Company by
deed recorded in said Clerk's Office in Liber 1894 of Deeds at page 49; running
thence westerly along

<PAGE>

the southerly line of lands so conveyed to Buffalo General Electric Company and
forming an interior angle of 71 degrees with the last described course 459.28
feet to the easterly line of the lands shown upon said map filed under Cover No.
553; running thence southerly along the easterly line of the lands, shown upon
said map and forming an interior angle of 110 degrees 48' with the last
described line 1268.64 feet to the point or place of beginning.

      EXCEPTING THEREFROM a triangular parcel of land situate in the Town of
Cheektowaga, County of Erie and State of New York, being a part of Lots 15 and
23, Township 11, Range 7 of the Holland Land Company's Survey, bounded and
described as follows:

      BEGINNING at the point of intersection of the southerly line of lands
conveyed by Philip Stephan by executors to the Buffalo General Electric Company
by deed dated June 16, 1926 and recorded in the Office of the Clerk of the
County of Erie in Liber 1894 of Deeds at page 49 and the westerly line of lands
conveyed by same grantors to the Niagara, Lockport and Ontario Power Company by
deed dated January 15, 1917 and recorded in the Office of said Clerk in Liber
1392 of Deeds at page 474; thence southerly along the lands so conveyed to said
Niagara, Lockport and Ontario Power Company, 73.47 feet to a point; thence
westerly, and forming an exterior angle of 107 degrees 25' with the last
described line 117.01 feet to a point on the southerly line of lands conveyed to
the Buffalo General Electric Company as above mentioned at a point on said
southerly line, 118.08 feet westerly measured along said southerly line from the
point of beginning; thence easterly along the southerly line of lands so
conveyed to said Buffalo General Electric Company, and forming an interior angle
of 36 degrees 25' with the last described line 118.08 feet to the point of
beginning.

                                    PARCEL 3

      ALL THAT TRACT OR PARCEL OF LAND, situate in the Town of Cheektowaga,
County of Erie and State of New York, being part of Farm Lot 23, Township 11,
Range 7 of the Holland Land Company's Survey, more particularly bounded and
described as follows:

      BEGINNING at the intersection of the east line of land as shown on a
subdivision map filed in the Erie County Clerk's Office under Cover No. 812 with
the south line of Wojcik Street, as a sixty (60) foot highway; running thence
easterly along the south line of said Wojcik Street 361.83 feet to the west line
of lands of the Niagara, Lockport and Ontario Power Company; running thence
southerly along the said west line of the lands of the Niagara, Lockport and
Ontario Power Company and forming an interior angle of 86(0) 17' with the last
described line 692.31 feet; thence west on a line parallel with William Street
and forming an interior angle of 93 degrees 02' 50" with the last described
line 324.10 feet to a point in the said east line of lands as shown on said
subdivision map under Cover No. 812; running thence northerly along said east
line of lands on map under Cover No. 812 and forming an interior angle of
90 degrees 04' 20" with the last described line 687.10 feet to the point or
place of beginning.

                                     - 2 -
<PAGE>

                                    PARCEL 4

      ALL THAT TRACT OR PARCEL OF LAND, situate in the Town of Cheektowaga,
County of Erie and State of New York, being part of Farm Lot 23, Township 11,
Range 7 of the Holland Land Company's Survey, and being more particularly
described as follows:

      COMMENCING at the intersection of the east line of lands as shown on map
filed in the office of the Clerk of the County of Erie under Map Cover No. 812
and the north line of Wojcik Street, as said north line is projected easterly;
running thence southerly along said east line of lands under Cover No. 812 as
aforesaid 15 feet; running thence easterly on a line which is parallel to the
said north line of Wojcik Street as said north line is extended or projected
easterly and forming an exterior angle of 90 degrees 34' 20" with the last
described line 364.31 feet to a point in the west line of lands of the Niagara
Mohawk Power Corporation; running thence northerly along said west line of the
Niagara Mohawk Power Corporation's lands and forming an interior angle of
93 degrees 43' with the last described line 15.03 feet to its intersection with
the said north line of Wojcik Street as said north line is extended or projected
easterly; running thence westerly along the said north line of Wojcik Street as
the same is projected easterly and forming an interior angle of 86 degrees 17'
with the last described line 365.14 feet to a point in the east line of lands as
shown under Cover No. 812 as aforesaid at the point or place of beginning.

                                    PARCEL 5

      ALL THAT TRACT OR PARCEL OF LAND, situate in the Town of Cheektowaga,
County of Erie and State of New York, being part of Lot No. 23, Township 11,
Range 7 of the Holland Land Company's Survey, and being further bounded and
described as follows:

      COMMENCING at the intersection of the east line of lands shown under Map
Cover 812 and the north line of Wojcik Street as projected easterly; thence
southerly along the east line of Map Cover 812 a distance of 60 feet to a point
(said point being the southeast corner of subdivision lot No. 51, Block S, Map
Covers 553 and 812); thence easterly and along the southerly line of lands
conveyed to the Town of Cheektowaga by deed recorded in the Erie County Clerk's
Office in Liber 1450 of Deeds at page 288 and forming an interior angle of
89 degrees 25' 40" with the last described line a distance of 361.83 feet to a
point in the west line of lands now owned by Niagara Mohawk Power Company;
thence northerly along the lands of the Niagara Mohawk Power Company and forming
an interior angle of 93 degrees 43' with the last described line a distance of
60.13 feet to its intersection with the north line of Wojcik Street as said line
is extended or projected easterly; thence westerly along said north line of
Wojcik Street as extended easterly and forming an interior angle of 86 degrees
17' with the last described line 365.14 feet to a point in the east line of
Cover No. 812, at the point of beginning.

      EXCEPTING land conveyed by Town of Cheektowaga to Ashland Oil & Refining
Company by deed recorded in Deed Liber 5291, page 317.

                                     - 3 -
<PAGE>

                                    PARCEL 6

      ALL THAT TRACT OR PARCEL OF LAND, situate in the Town of Cheektowaga,
County of Erie and State of New York, being part of Lot No. 23, Township 11 and
Range 7 of the Holland Land Company's Survey and according to maps filed in the
Erie County Clerk's Office under Covers Nos. 553 and 812 is known as subdivision
lots Nos. 51 and 52 in Block "S", and being further bounded and described as
follows:

      BEGINNING at a point in the easterly line of Starlite Avenue (formerly
Dombrowski Avenue) at the southwest corner of the aforesaid Subdivision Lot No.
51, thence easterly at right angles to Starlite Avenue and along the south line
of said Subdivision Lot No. 51, 123.60 feet to the southeast corner of said
Subdivision Lot; thence northerly and forming an interior angle of 90 degrees
34' 20" with the last described line and along the east line of Sublots 51 and
52 as aforesaid 60.0 feet to the northeast corner of Sublot 52; thence westerly
along the north line of Sublot 52 and forming an interior angle of 89 degrees
25' 40" with the last described line 124.20 feet to the east line of Starlite
Avenue; thence southerly at right angles to the last described line 60.0 feet to
the point or place of beginning.

                                     - 4 -
<PAGE>

                                   Schedule II

                       Additional Permitted Property Liens

                                      NONE

<PAGE>

                                  Schedule III

                              Local Law Provisions

      1. NYRPL 291-f. Section 291-f of the New York State Real Property Law
shall apply to any cancellation, abridgement, modification, or prepayment of any
Lease, it being intended that Mortgagee shall have the benefit of Section 291-f.

      2. Commercial Property. Mortgagee represents that this Mortgage does not
encumber real property principally improved or to be improved by one or more
structures containing in the aggregate not more than six (6) residential
dwelling units, each having its own separate cooking facilities.

      3. Trust Fund. Mortgagor agrees that it will receive the advances secured
by this Mortgage and will hold the right to receive such advances as a trust
fund to be applied first for the purpose of paying the cost of improvement, if
any, and will apply the same first to the payment of such costs before using any
part of the total of the same for any other purpose and will comply with Section
13 of the New York Lien Law. To the extent permitted by Applicable Law,
Mortgagor will indemnify and hold Mortgagee harmless against any loss or
liability, cost or expense, including, without limitation, any judgments,
attorneys' fees, costs of appeal, bonds, arising out of or relating to any
proceeding instituted by any claimant alleging a violation by Mortgagee or
Mortgagor of any Section of Article 3A of the New York Lien Law. The provisions
of this Section 3 shall survive the payment and performance of Mortgagor's
obligations under this Mortgage and the other Operative Documents.

      4. Maximum Principal Indebtedness. NOTWITHSTANDING ANYTHING CONTAINED
HEREIN TO THE CONTRARY, THE MAXIMUM PRINCIPAL INDEBTEDNESS WHICH IS OR UNDER ANY
CONTINGENCY MAY BE SECURED BY THIS MORTGAGE IS FIVE MILLION AND 00/100 U.S.
DOLLARS ($5,000,000), TOGETHER WITH (I) TAXES, CHARGES OR ASSESSMENTS WHICH MAY
BE IMPOSED BY LAW UPON THE SUBJECT PROPERTY, (II) PREMIUMS ON INSURANCE POLICIES
COVERING THE SUBJECT PROPERTY, AND (III) EXPENSES INCURRED IN UPHOLDING THE LIEN
OF THIS MORTGAGE INCLUDING, BUT NOT LIMITED TO, (A) THE EXPENSES OF ANY
LITIGATION TO PROSECUTE OR DEFEND THE RIGHTS AND LIEN CREATED BY THIS MORTGAGE,
(B) ANY AMOUNT, COST OR CHARGE TO WHICH THE MORTGAGEE BECOMES SUBROGATED, UPON
PAYMENT, WHETHER UNDER RECOGNIZED PRINCIPLES OF LAW OR EQUITY, OR UNDER EXPRESS
STATUTORY AUTHORITY, AND (C) INTEREST AT THE OVERDUE RATE (OR REGULAR INTEREST
RATE) AND PENALTIES PROVIDED FOR HEREIN OR IN THE OTHER OPERATIVE DOCUMENTS.

                                     - 2 -
<PAGE>

      5. Last Dollars Secured; Priority. This Mortgage secures only a portion of
the Obligations. The parties agree that any payments or payment on account of
the Obligations shall be and be deemed to be applied first to the portion of the
Obligations that is not secured hereby, it being the parties' intent that the
portion of the Obligations last remaining unpaid shall be secured hereby.

                                     - 3 -
<PAGE>

                                   Schedule IV

                                  Defined Terms

      "Appurtenant Rights" means, with respect to the Land and the Subject
Property, (i) all agreements, easements, rights of way or use, rights of ingress
or egress, privileges, appurtenances, tenements, and other rights and benefits
at any time belonging or pertaining to the Land and the Subject Property,
including the use of any streets, ways, alleys, vaults or strips of land
adjoining, abutting, adjacent or contiguous to the Land and (ii) all permits,
licenses and rights, whether or not of record, appurtenant to the Land and (iii)
all of the Mortgagor's right, title and interest in all general intangibles
relating to the design, development, operation, management and use of the
Subject Property, all certificates of occupancy, zoning variances, building, use
or other permits, approvals, authorizations and consents obtained from and all
materials prepared for filing or filed with any Governmental Authority in
connection with the development, use, operation or management of the Subject
Property, all construction, service, engineering, consulting, leasing,
architectural and other similar contracts concerning the design, construction,
management, operation, occupancy and/or use of the Subject Property, all
architectural drawings, plans, specifications, soil tests, feasibility studies,
appraisals, environmental studies, engineering reports and similar materials
relating to any portion of or all of the Subject Property, and all payment and
performance bonds or warranties or guarantees relating to the Subject Property,
all to the extent assignable.

      "Equipment" means any equipment the removal of which could reasonably be
expected to affect the value or utility of the Land or the Subject Property,
taken together or separately, including heating, electrical, switch gear, power
supply, lighting, plumbing, ventilation, air conditioning and air cooling
systems, refrigerating equipment, generators, locking and unlocking equipment,
communication systems, sprinkler system and fire prevention systems, security
systems and fixtures of all kinds; provided, however, that the term "Equipment"
shall expressly exclude all inventory, furniture and furnishings.

                                     - 4 -

</TEXT>
</DOCUMENT>
