ACT Deed of Mortgage by Megadox


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									Deed of Mortgage secured by Real Estate - ACT

Deed of Mortgage secured by Real Estate - ACT

1      Purpose of Agreement;
2      Covenant to repay;
3      The Mortgagor declares;
4      Repayment Terms
5      Evidence
6      Covenant to pay interest;
7      Payments;
8      Mortgage money payable on demand;
9      Premises as security;
10     Covenant for redemption;
11     Mortgagor to remain in possession;
12     Covenant of title and other covenants by Mortgagor;
13     Licensed Premise;
14     Building Works;
15     Strata Titles Covenants;
16     Crown Lands;
17     Agricultural Lands;
18     Powers and covenants of trustee;
19     Powers of Lender in the event of default of Mortgagor;
20     Power to appoint Receiver;
21     Powers of the Receiver;
22     Power to sell;
23     Power of attorney of Mortgagor;
24     Notices and service;
25     Powers on acquisition of premises etc.
26     Mortgagor’s liability for costs;
27     Independence of variations and modifications;
28     Limited period fixed rate mortgage;
29     Standard variable rate mortgage;

30   Set off;
31   Settlement and discharge;
32   Release of Mortgagor;
33   Substitution;
34   Assignment and Succession;
35   Mortgagor contact details;
36   References to any other statutes;
37   Divisibility of Agreement;
38   Headings;
39   Dispute resolution;
40   Waiver;
41   Jurisdiction

Deed of Mortgage secured by Real Estate - ACT

This deed is made between [name] of [address]                           (“Lender”)


[name] of [address] (“Mortgagor”)

The Parties agree:


These are the definitions that apply to this Deed of Mortgage unless the context
requires a different interpretation:

       “Act”                                the relevant transfer of land act in the
                                            jurisdiction in which the Land is situated;

       “Agreement”                          the instant Deed of Mortgage as
                                            amended, supplemented or varied from
                                            time to time;

        “Rate of Interest”                  the Higher Rate; and if no rate is
                                            mentioned then at the rate of interest
                                            mutually agreed in writing between the
                                            Lender and the Mortgagor and failing
                                            agreement the rate of interest
                                            determined by the Lender in its absolute
                                            discretion and failing agreement on the
                                            rate of interest determined by the
                                            Lender in its absolute discretion, an
                                            interest rate not more than 1.25% of the
                                            home loan interest rate determined by
                                            Commonwealth Bank of Australia.

       “Indebtedness”                       means
                                            (i)   the Mortgage money;
                                            (ii)  Interest thereon;
                                            (iii) All other money, costs, charges,
                                                  damages and expenses owing to
                                                  the Lender under this Agreement
                                                  and would include:
                                                  a. All sums advanced by the
                                                      Lender     to  protect   the
                                                      mortgaged property;

                                                       b. All amounts expended by the
                                                           Lender to cure or attempt to
                                                           cure the Mortgagor’s failure in
                                                           its performance of obligations
                                                           and covenants in the instant
                                                (iv)   All other money, interests, legal
                                                       and statutory costs, charges,
                                                       damages and expenses owing to
                                                       the Lender for the time being
                                                       under this Agreement;
                                                (v)    Any further advances or credit

“Mortgage” any charge or lien on any property for securing money or money’s worth;

“Mortgage Money”                                money or money’s worth secured by a

      “Mortgaged Premises”                      the whole or any part of the Land and
                                                other property charged by this
                                                Agreement with payment of the money
                                                secured and more particularly described
                                                [Property Address]

      “Agricultural lands”                      any part of the mortgaged premises,
                                                which is used for farming, horticultural,
                                                agricultural or pastoral purposes;

“Lender”     the Mortgagee and will include his representatives and successors in title;

“Mortgagor” the Borrower and will include his representatives and successors in title;

“Mortgage Money”                                [A$]

“Term of Mortgage”                              [number] Years

“Limited period fixed rate Mortgage”            [Yes] [No]

“Standard variable rate Mortgage”               [Yes] [No]

“Interest”   - Higher Rate: 4% above the Lower Rate
                                             - Lower Rate: [%]

      “Repayment Date”                          the last day of the Term of Mortgage.

      “Mortgagor's Covenants”                   all or any of the covenants and
                                                agreements contained in or implied by

                                              this Agreement to be observed and
                                              performed by the borrower.

     “Receiver”                               the receiver or receiver and manager
                                              appointed under this Agreement;

     “Trust”                                  the trust created by the trust deed;

     “Trust Deed”                             the trust deed {dated}.

     “Trustee Covenantor”                     [Name of the Trustee]

     “Beneficiaries”                          the beneficiaries of the trust;

     “Trust property”                         the property which is subject to the trust

1.   Purpose of this Agreement:

     The purpose of this Agreement, effective from the date it is signed, is to set out
     the contractual terms under which the Lender will make available money as loan
     to the Mortgagor on certain terms and conditions and on the repayment of the
     said loan being secured by a first charge by way of mortgage on the land
     together with all buildings constructed and to be constructed thereon and the
     payment of all indebtedness to the Lender subject to a limit prescribed in the
     body of the Agreement and on the terms and conditions hereinafter appearing.

2.   Covenant to repay:

     In pursuance of the instant Agreement and in consideration of the covenants
     hereinafter appearing, the Lender will advance mortgage money to the Mortgagor,
     who hereby agrees to repay to the Lender of all Indebtedness by the Repayment

3.   The Mortgagor declares:

     3.1   The Mortgagor is lawfully seized and possessed of the land and premises
           situated at and more particularly described in the Definitions above; and

     3.2   there are no environmental liabilities affecting the mortgaged premises
           and the use of the mortgaged premises complies with all environmental

     3.3   The Mortgagor has this day deposited the title deeds relating to the said
           mortgaged premises, which are free from any legal limitation, disability or

           incapacity, and the Mortgagor shall be liable to the Lender as principal
           debtor by way of instant Agreement;

4.   Repayment Terms:

     The Mortgagor will be liable to repayment of the defined Indebtedness as follows:

     4.1   The Mortgagor will pay interest and principle together through {monthly}

     4.2   The first of such instalment will be paid on [Date];

5.   Evidence:

     A certificate signed on behalf of the Lender of the amount due, unless manifestly
     incorrect, shall be conclusive evidence for all purposes against the Mortgagor.

6.   Covenant to pay interest:

     6.1   The Mortgagor will pay no interest to the Lender for any period of the year in
           which the instant mortgage has been created.

     6.2   The Mortgagor will pay to the Lender interest on the mortgage money
           compoundable by monthly rests from the date of instant Agreement;

7.   Payments:

     7.1   Mortgagor shall make all payments under this Agreement, without set-off or
           counter-claim and without any deductions of taxes, duties, charges, fees,
           deductions, withholdings or restrictions;

     7.2   In case the Mortgagor is obliged by law to make any such deduction, the
           amount due from the Mortgagor shall be increased to the extent necessary
           to ensure that the Lender receives a net amount equal to the amount it
           would have received had no such deduction been required to be made.

8.   Mortgage money payable on demand:

     8.1   The Lender is entitled to make demand or seek to enforce the repayment
           of the mortgage money any time before the repayment date in case the
           Mortgagor fails to observe and perform the Mortgagor's Covenants
           contained in this agreement.

      8.2    If that happens, the Mortgagor will pay to the Lender on demand:

             8.2.1 so much of the mortgage money as remains unpaid; and
             8.2.2 interest on the mortgage money as for the time being remains
                   unpaid at the applicable rate of interest calculated from the date the
                   Mortgage has become effective or the date from which the
                   payment of interest had become due; and
             8.2.3 all other money secured.

9.    Premises as security:

      That in further pursuance of the instant Agreement and for the consideration
      aforesaid, the Mortgagor hereby grants all rights, liberties, privileges, easements,
      advantages and appurtenance whatsoever to the said land and premises or any
      part thereof and all the estate, right, title, interest to the Lender absolutely but
      subject to the provision for redemption hereinafter contained.

10.   Covenant for redemption:

      That if the Mortgagor shall pay to the Lender the mortgage money with interest and
      in the manner hereinbefore mentioned and also all the other money, costs, charges
      and expenses, the Lender shall upon the request and at the costs, charges and
      expenses of the Mortgagor, retransfer all rights, liberties, privileges, easements,
      advantages and appurtenance whatsoever to the mortgaged land and premises or
      any part thereof to the Mortgagor.

11.   Mortgagor to remain in possession:

      11.1   The Lender shall allow the Mortgagor to inspect and make copies or
             abstracts of or extracts from the documents of title relating to the
             mortgaged premises, which shall be in the custody of the Lender;

      11.2   Until default be made by the Mortgagor in payment of the said mortgage
             money or interest or any part thereof the Mortgagor shall remain in the
             possession of or in receipt of the rents and profits of, the mortgaged

12.   Covenant of title and other covenants by Mortgagor:

      12.1   The Mortgagor has good right and full power to grant and mortgage the said
             land and building and other premises hereby granted or transferred to the
             use of the Lender;

      12.2   If default shall be made in payment of the mortgage money or interest at the
             appointed time, the Lender may at any time thereafter enter into the

       mortgaged premises and shall thenceforth quietly possess and enjoy the
       same and receive the rents income and profits thereof without any lawful
       interruption or disturbance whatsoever by the Mortgagor;

12.3   The Mortgagor shall maintain any development or building approvals
       relating to the mortgaged premises reasonably required by the Lender;

12.4   It shall be lawful for the Lender, after taking possession, to make
       improvements thereon as they may in their discretion think proper and the
       Mortgagor will on redemption pay the Lender the costs thereof in addition to
       the mortgaged money and interest thereon;

12.5   In case the Lender enters into the possession of the mortgaged premises,
       the Mortgagor shall be deemed to be the licensee of the Lender and the
       Mortgagor shall pay to the Lender reasonable occupational compensation
       and it shall be lawful for the Mortgagee to eject the Mortgagor on giving one
       month’s notice to quit;

12.6   The mortgaged premises are free, absolutely discharged, sufficiently saved,
       and kept harmless and indemnified from and against all encumbrances by
       the Mortgagor.

12.7   The Mortgagor, will from time to time do and execute all such acts, deeds
       and things whatsoever for further assuring the said premises to the use of
       the Lender in manner as may be reasonably required.

12.8   The Mortgagor shall at all times, during the continuance of this Agreement,
       keep the mortgaged premises in a good and substantial state of repairs;

12.9   The Mortgagor shall pay all the Government and Municipal revenue, ground
       rents and taxes, duties and all charges of a public nature payable in respect
       of the mortgaged premises immediately as they shall become due.

12.10 Any default in such payments shall be charged upon the mortgaged
      premises in addition to the mortgage money and interest thereon.

12.11 The Mortgagor shall promptly deliver to the Lender copies of all notices
      relating to the mortgaged premises received by the Mortgagor from any
      local public or other competent authority; and

12.12 not permit any subsequent mortgage or encumbrance against the
      mortgaged Premises to have priority to or rank equally with this
      Agreement; and

12.13 not cause or permit any person to acquire any interest in the mortgaged
      premises; and

12.14 not subdivide, consolidate or dedicate for any public purpose, the
      mortgaged premises, or accept the surrender or cause the termination
      before its expiration, of any lease of the mortgaged premises; and

12.15 not consent to the subletting, give a licence to use or occupy or part with
      possession of the mortgaged premises; or

12.16 cause or permit any person to acquire any easement, profit a prendre or
      covenant which burdens the mortgaged premises; or

12.17 release or vary an easement, profit a prendre or covenant which benefits
      the mortgaged premises; and

12.18 If the mortgaged premises is subject to a lease, the Mortgagor shall
      ensure that the tenant obtains the consent of the Lender in addition to
      that of the Mortgagor in each circumstance where the lease contemplates
      that the tenant will obtain the Mortgagor’s consent and, without limitation,

      12.18.1     disposition by the tenant of any interest in the lease;
      12.18.2     variation or replacement of the lease by the tenant and
      12.18.3     termination of the lease by the tenant and Mortgagor before its
      12.18.4     determination of the rent or other money or consideration
                  payable under the lease,

      is permitted without the Lender’s written consent.

12.19 The Mortgagor will keep the entire mortgaged premises insured in some
      well-known Fire Insurance Company to be approved by the Lender against
      loss or damage by fire and riot in the sum equal to the full value of the

12.20 The Premium for such Insurance shall be borne by the Mortgagor;

12.21 The Mortgagor, will, on demand, deliver to the Lender, the policy of such
      insurance along with receipt of the premium so paid, duly endorsed and
      assigned with full benefit in favour of the Lender;

12.22 Mortgagor will not commit any default whereby the said insurance may be
      rendered void or voidable or an increased premium become payable

12.23 In case at any time, default shall be made in insuring or keeping the said
      premises insured as aforesaid then the Lender shall insure the mortgaged
      premises and the Mortgagor will repay to the Lender every sum of money
      expended for that purpose by them with interest thereon at the rate as

12.24 Until such repayment by the Mortgagor, the same shall be a charge upon
      the mortgaged premises in addition to the Mortgage money and interest

12.25 The Mortgagor shall when reasonably required by the Lender obtain or
      permit the Lender to obtain an environmental assessment report from a
      person approved by the Lender; and

12.26 Promptly comply with any reasonable recommendation contained in any
      environmental assessment report relating to compliance with
      environmental legislation;

12.27 The Mortgagor shall not cause or permit the carrying out of any building
      works without the approval of the Lender and except in accordance with
      any conditions subject to which the Lender’s approval is given;

12.28 If the Mortgagor carries out any building works, he will:

      12.28.1     carry out the building works with reasonable speed, with due
                  care and skill and in accordance with the approved plans;

      12.28.2     comply with all applicable laws and directions of any relevant
                  governmental body to the satisfaction of the Lender and the
                  relevant government bodies, including, without limitation, the
                  obtaining of all necessary consents and the fulfillment of any
                  conditions to which the consents are subject; and

      12.28.3     promptly obtain any appropriate certificate or other evidence
                  that the building works have been carried out in compliance
                  with those laws and directions;
      12.28.4     not encroach upon any adjoining land or street;

      12.28.5     observe the provisions of any easement or restrictive covenant
                  which burdens the mortgaged premises;

      12.28.6     complete the building works within the time agreed with the
                  Lender or, if no time has been agreed, within a reasonable

      12.28.7     keep proper records and books of account relating to the
                  building works;

      12.28.8     permit the Lender and its representatives at all reasonable
                  times to enter upon the mortgaged premises to inspect the
                  building works and any building documents;

      12.28.9     upon demand give to the Lender or its representative any
                  information relating to the building works it reasonably requires
                  including, without limitation, copies of the building documents;

      12.28.10    give at least 5 business days’ notice to the Lender of any
                  proposed material variation to, or replacement of, any building
                  contract or approved plan and obtain the Lender’s consent to
                  any variation or replacement; and

      12.28.11    indemnify the Lender against any claim, liability, cost or
                  expense caused or contributed to by any inspection, approval
                  or acceptance of the approved plans or the carrying out of the
                  building works.

12.29 The Lender assumes no liability to the Mortgagor for any matter relating
      to the approved plans or the carrying out of the building works
      notwithstanding that the Lender may have purported to approve the
      approved plans or any variation or replacement of them or to inspect and
      approve or accept any aspect of the building works;

12.30 No approval or acceptance by the Lender will imply the exercise by or on
      behalf of the Lender of any care or skill and not relieve the Mortgagor
      from its obligations to ensure good design and workmanship and proper
      carrying out of the building works;

12.31 The Mortgagor shall hold as bailee for the Lender the building documents
      relating to the building works;

12.32 That in the event of:

      12.32.1      any damage happening           to   the   mortgaged   premises,
                   howsoever at any time; or

      12.32.2       any happening so as to materially impair the security; or

      12.32.3      the Mortgagor is adjudged insolvent or is unable to pay its
                   debts within the meaning of the Corporations Act 2001 or
                   admits in writing its inability to pay its debts; or

      12.32.4      any default shall be committed by the Mortgagor in the
                   observance and performance of any of the covenants herein
                   contained or failure to provide proof thereof at the request and
                   to the reasonable satisfaction of the Lender; or

      12.32.5      execution is levied upon the mortgaged premises or any part
                   thereof; or

      12.32.6       a receiver is appointed thereof;

      12.32.7       in the opinion of the Lender any works for which the
                    Mortgage Money was advanced are not carried out or
                    performed to the satisfaction of the Lender;

      12.32.8       the Mortgagor applies the Mortgage Money for any purpose
                    other than the purpose for which advanced by the Lender;

      12.32.9       the Mortgagor carries on any business at the mortgaged
                    premises at a loss and in the opinion of the Lender further to
                    carry on that business may endanger any security given by
                    the Mortgagor;

      12.32.10      any judgment is obtained against the Mortgagor in any Court
                    which remains unsatisfied for 28 days from its date and
                    without lodgement of notice of appeal having been made
                    within the proper time;

      12.32.11      an inspector is appointed under the Corporations Act 2001 to
                    investigate the affairs of the Mortgagor;

Then and in any of the aforesaid cases, the whole of the indebtedness shall, at the
sole option of the Lender, become immediately payable as if the due date had been
elapsed and all rights and remedies would become available to the Lender under
the terms of the instant Agreement upon default being made in payment of the
mortgage money and interest hereby secured.

And if the Mortgagor is a company, the Mortgagor will not, without the consent of
the Lender:

12.33 permit its Directors to approve any transfer issue or other dealing with the
      shares stock or debentures of the Mortgagor; or

12.34 call up or receive any premium or uncalled capital of the Mortgagor in
      advance of calls; or

12.35 apply any premium or capital called up or received other than in or
      towards payment of the Mortgage Money secured by the instant
      Agreement; or

12.36 reduce the capital of the Mortgagor;

12.37 alter the Constitution of the Mortgagor; or

12.38 repay any money now or at any time owing by the Mortgagor to any
      shareholder or any related corporation of the Mortgagor; or

      12.39 purchase any assets from or sell any assets to any subsidiary or related
            corporation of the Mortgagor; and

      12.40 further mortgage charge or otherwise encumber the mortgaged premises
            or any part thereof; and

      12.41 the Lender will not be called upon to produce the duplicate Certificate or
            Certificates of Title thereto for the purposes of registration of any
            document or instrument whatsoever nor for any other purpose unless all
            indebtedness due and payable under this Mortgage are first duly paid and
            satisfied in full and all covenants conditions and agreements on the part
            of the Mortgagor expressed or implied are performed, observed and
            complied with.

      12.42 Assign, transfer, part with or otherwise dispose of the right to receive
            rents and profits of or from the mortgaged premises or any part or any
            payments or other benefits under or by virtue of any lease or tenancy of
            the mortgaged premises or any part or parts thereof.

      The Mortgagor however, will

      12.43 give the Lender upon request the full details of its shareholdings; and
      12.44 allow the Lender at all reasonable times to inspect the share register of
            the Mortgagor; and
      12.45 do all things necessary to enable registration under the Act. This includes
            the Mortgagor immediately complying with any orders and requisitions;
      12.46 deliver to the Lender and verify full particulars of leases and such
            particulars contain information as the Lender may require about any
            tenancies. This includes names of lessees and licensees and the rents
            and occupation, fees for each portion of the mortgaged premises and the
            start dates and ends of such tenancies;
      12.47 provides its financials and consolidated accounts together with such other
            information as the Lender may reasonably require from time to time;

13.   Licensed Premises:

      If the mortgaged premises are a licensed premises, within the meaning of any
      statute governing the sale, disposal and/or consumption of liquor or are premises
      in relation to which any licence under the provisions of the Liquor Legislation is
      held, the Mortgagor at his own expense will:

      13.1   Carry on or cause to be carried on the business for which any licence is
             held; and

      13.2   Comply with the provisions and requirements of the Liquor Legislation
             and other statutes relating to the business carried on at the licensed
             premises; and

      13.3   Apply for renewals of licences and permits necessary or desirable for the
             conduct of the business;

      13.4   If and when required by the Lender, use his best endeavours to obtain a
             transfer to the Lender or its nominee of any licence and/or permit in
             relation to the mortgaged premises;

      13.5   The Mortgagor will not, without the prior written consent of the Lender:

             13.5.1      Change the use of the mortgaged premises;

             13.5.2      Remove or apply to remove the licence from the mortgaged
                         premises to any other premises;
             13.5.3      Surrender the licence; or

             13.5.4      Mortgage, charge, assign, transfer, lease or part with
                         possession of the licensed premises or any part of them to
                         any person or attempt to do so.

14.   Building Works:

The Lender may carry out any building works in any manner the Lender thinks fit and in
doing so may:

      14.1 adhere to or vary the approved plans; and

      14.2 increase or reduce the estimated costs of carrying out the building works;

      14.3 use any materials, plant and equipment of the Mortgagor upon the
           mortgaged premises in the carrying out of the building works;

      14.4 enter into any contracts or arrangements in relation to the building works;

      14.5 expend the balance of any money held by the Lender and intended to
           form part of the Mortgage money towards the carrying out of the building

      14.6 the Mortgagor shall cause and permit the building documents to be
            delivered to the Lender;

      14.7 the Lender will not be liable to the Mortgagor if the Lender does not carry
            out or complete any building works or having begun to do so, stops.

15.   Strata Titles Covenants:

      If the mortgaged premises or any part thereof are or become the subject of a
      Strata Title issued under or governed by the relevant state or territory strata titles
      act (“Strata Titles Act”) in which the Land is situated the Mortgagor covenants

      15.1 That the Mortgagor will at all times during the continuance of this

             15.1.1    Approve and assign the full rights of insurance given to him in
                       favour of the Lender;
             15.1.2    Give to the Lender any policy and receipts for money paid and
                       other evidence of such insurance;
             15.1.3    Comply with the requirements of the insurance company relating
                       to the property so as to prevent the invalidation of that policy;
             15.1.4    Not transfer or change such insurance to any other insurance
                       office without first obtaining the consent of the Lender in writing;

      15.2 The Mortgagor will comply with all by-laws of and pay all levies required
           thereby to the company formed in accordance with the Strata Titles Act
           by the proprietors of the building of which the mortgaged premises forms
           part (hereinafter referred to as the "Strata Company"); and

      15.3 Will observe and perform all the provisions of the Strata Titles Act and will
           punctually pay and satisfy all statutory and other charges and obligations
           for the mortgaged premises (including the performance by the Mortgagor
           of any covenants or other obligations implied by Statute).

      15.4 That it will be lawful but not obligatory upon the Lender in its uncontrolled
           discretion to exercise the power to vote of the Mortgagor at meetings of
           the Strata Company and that the Lender shall not be answerable or
           accountable to the Mortgagor for the failure to exercise such power and
           shall not be liable for any losses arising by reason of such exercise or
           failure to exercise such power.

      15.5 Notwithstanding any other provisions contained herein, the amount of
           Mortgage Money shall become due and payable on demand upon the
           happening of any one or more of the events stated in the Strata Titles Act
           or an order of a referee under the Strata Titles Act is made which in the
           reasonable opinion of the Lender detrimentally affects or prejudices the
           mortgaged premises or the Mortgage Money;

      15.6 The Lender may obtain from the Strata Company all such information
           relating to the mortgaged premises as the Lender may from time to time

      15.7 To give and deliver to the Lender copies of any notices which the
           Mortgagor may receive from the Strata Company for the mortgaged
           premises forthwith upon the Mortgagor receiving the same;

      15.8 All the Mortgagor's right and interest in and to all licences leases or rights
           of user of any portion of or any privilege relating to the common property
           are ASSIGNED to the Lender for the repayment of the Mortgage Money;

      15.9 The Lender may assign and transfer all or any of the Mortgagor's rights
           and interests assigned by the preceding clause;

      15.10 All the definitions contained in the Strata Titles Act apply to this clause.

16.   Crown lands:

      16.1   If the mortgaged premises is a Crown land, the Mortgagor shall:

             16.1.1    not permit anything to occur which would make the Mortgagor’s
                       holding in that Crown land liable to forfeiture;

             16.1.2    promptly give to the Lender full particulars of any notification of
                       forfeiture of the Mortgagor’s holding immediately upon becoming
                       aware of it;

      16.2   If the Mortgagor’s holding is forfeited:

             16.1.3    use its best endeavours to ensure the reversal of the forfeiture;

             16.1.4    cause or permit to be fulfilled any conditions attaching to any
                       reversal of a forfeiture;

      16.3    not surrender to the Crown the whole or part of any land or any lease
             from the Crown under the Crown lands legislation;

      16.4   not apply for or consent to any alteration, modification, addition to or
             revocation of:

             16.1.5    the conditions attaching to the Mortgagor’s holding; or
             16.1.6    the purpose of the Mortgagor’s holding,

              if that alteration, modification, addition to or revocation would decrease
              the value of that holding;

       16.5   immediately upon receipt, give a copy of any notice of a determination or
              a redetermination of rent payable under the Crown lands legislation in
              relation to the Mortgagor’s holding; and

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