Exhibit 10.34


 


THIS INSTRUMENT PREPARED BY


AND RETURN TO:


 


Darrell D. Garvey, Esquire 

Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 

450 South Orange Avenue, Suite 800 

Orlando, Florida 32801


 


Borrower Name: MB Margate Lakewood I, L.L.C.


Project: Lakewood Mall, Margate, Florida 

Loan No.: 00-1100240


 


THIS IS AN ASSUMPTION AND
RATIFICATION OF THAT CERTAIN MORTGAGE AND SECURITY AGREEMENT BY LAKEWOOD
ASSOCIATES, LTD., A FLORIDA LIMITED PARTNERSHIP (“LAKEWOOD ASSOCIATES”) TO AND
IN FAVOR OF NATIONWIDE LIFE INSURANCE COMPANY, AN OHIO CORPORATION DATED MARCH 2,
2004 AND RECORDED MARCH 4, 2004, IN OFFICIAL RECORDS BOOK 37010, PAGE 340
OF THE PUBLIC RECORDS OF BROWARD COUNTY, FLORIDA AND WHICH SECURES THE NOTE
EXECUTED BY LAKEWOOD ASSOCIATES, IN THE ORIGINAL PRINCIPAL AMOUNT OF TWELVE
MILLION ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($12,100,000.00) TO AND IN
FAVOR OF LENDER AND DATED MARCH 2, 2004 (THE “RENEWAL NOTE”).


 


FULL INTANGIBLE TAXES IN
THE AGGREGATE AMOUNT OF TWENTY-FOUR THOUSAND TWO HUNDRED AND NO/100 DOLLARS
($24,200.00) WERE PAID AT THE TIME SAID MORTGAGES WERE RECORDED. THE CURRENT
OUTSTANDING BALANCE OF THE NOTE SECURED BY THE MORTGAGE IS ELEVEN MILLION SEVEN
HUNDRED FOURTEEN THOUSAND NINE HUNDRED SIXTY-THREE AND 33/100 DOLLARS
($11,714,963.33). DOCUMENTARY STAMP TAX ON SAID OUTSTANDING AMOUNT IN THE SUM
OF FORTY-ONE THOUSAND TWO AND 50/100 DOLLARS ($41,002.50) HAS BEEN PAID
SIMULTANEOUSLY WITH THE RECORDING OF THIS ASSUMPTION AND RATIFICATION
INSTRUMENT.


 


ASSUMPTION AND RATIFICATION AGREEMENT 


 


(Lakewood Shopping Center, Margate, Florida)


 


THIS ASSUMPTION AND
RATIFICATION AGREEMENT (hereinafter referred to as the “Agreement”)
is made and entered into as of this day of January, 2006, by and between NATIONWIDE LIFE INSURANCE COMPANY, an Ohio
corporation, having its principal office at One Nationwide Plaza, Columbus,
Ohio 43216, Attention: Real Estate Investment Department, 34T (hereinafter
referred to as “Lender”), and MB MARGATE
LAKEWOOD I, L.L.C., a Delaware limited liability company whose
address is c/o The Inland


 


1

















 


Real Estate Group, Inc., 2901
Butterfield Road, Oak Brook, Illinois 60523 (hereinafter referred to as “Borrower”).


 


WITNESSETH:


 


WHEREAS,
Lender is the owner and holder of that certain Mortgage and Security
Agreement by Lakewood Associates, Ltd., a Florida limited partnership (“Lakewood
Associates”) to and in favor of Lender dated as of March 2, 2004 and
recorded March 4, 2004 in Official Records Book 37010, Page 340,
Public Records of Broward County, Florida which encumbers certain real property
located in Broward County, Florida (the “Mortgage”), more particularly
described on Exhibit A  attached
hereto (hereinafter referred to as the “Property”); and


 


WHEREAS, the Mortgage secures that certain Note executed by
Lakewood Associates to and in favor of Lender in the original principal sum of
TWELVE MILLION ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($12,100,000.00) dated March 2,
2004 (the “Original Note”), as renewed by that certain Renewal Note executed by
Borrower to and in favor of Lender dated of even date herewith in the sum of
ELEVEN MILLION SEVEN HUNDRED FOURTEEN THOUSAND NINE HUNDRED SIXTY-THREE AND
33/100 DOLLARS ($11,714,963.33) (the Original Note as renewed is hereinafter
referred to as the “Note “); and


 


WHEREAS, the Note and the loan contemplated by the Note is
also evidenced and/or secured by the following instruments (which, together
with the Note and the Mortgage, are hereinafter sometimes referred to as the “Loan
Documents”):


 


A.                                   That certain
Assignment of Leases, Rents and Profits by Lakewood Associates to Lender dated March 2,
2004 and recorded March 4, 2005 in Official Records Book 37010, Page 379,
Public Records of Broward County, Florida;


 


B.                                     Uniform Commercial
Code Financing Statement naming Lakewood Associates as Debtor, and Lender as
Secured Party, recorded March 4, 2004 in Official Records Book 37010, Page 391,
Public Records of Broward County, Florida;


 


C.                                     Uniform Commercial
Code Financing Statement naming Lakewood Associates as Debtor, and Lender as
Secured Party, filed on March 9, 2004 under File Number 200406341344 in
the Office of the Secretary of State of the State of Florida;


 


D.                                    Indemnity
Agreement executed by Lakewood Associates to and in favor of Lender, dated March 2,
2004 (the “Indemnity Agreement”); and


 


E.                                      Guaranty Agreement
executed by Lakewood Associates to and in favor of Lender, dated March 2,2004
(the “Guaranty”).


 


WHEREAS, Lakewood Associates have requested that Lender
consent to a transfer of the Property to Borrower, subject to the lien of the
Loan Documents, and to an assumption of the Loan Documents by Borrower; and


 


2

















 


WHEREAS,
Lender has agreed to such matters, but only upon the terms and
conditions hereinafter set forth.


 


NOW THEREFORE, in consideration of the premises hereof, and the
mutual covenants contained herein, and of the sum of TEN AND NO/100 DOLLARS
($10.00) in hand paid by Lakewood Associates and Borrower to Lender, the
receipt and sufficiency of which is hereby acknowledged, it is agreed as
follows:


 


1.                                        ACKNOWLEDGEMENTS
OF BORROWER. In order to induce Lender to enter into this Agreement, Borrower
hereby acknowledges that the principal balance of the indebtedness represented
by the Note on the date hereof is ELEVEN MILLION SEVEN HUNDRED FOURTEEN
THOUSAND NINE HUNDRED SIXTY-THREE AND 33/100 DOLLARS ($11,714,963.33); (a) and
acknowledges and represents to and in favor of Lender that said indebtedness is
due to Lender in accordance with the terms of the Note, free from any defense,
claim or right to set-off; (b) that other than the Mortgage and the other
Loan Documents, Borrower has placed no mortgages, liens or other encumbrances
against the Property; and (c) that there are no suits, judgments, bankruptcies
or executions pending against Borrower in any court which could in any way
adversely affect the title to the Property.


 


2.                                        CONSENT TO
TRANSFER. Lender hereby consents to the transfer of the Property by Lakewood
Associates to Borrower, subject to the terms and conditions of this Agreement. The
foregoing consent by Lender shall not be deemed to constitute any waiver of Lender’s
right pursuant to the terms of the Loan Documents to withhold or condition its
consent to any subsequent transfer of the Property.


 


3.                                        ASSUMPTION BY
BORROWER. Borrower hereby assumes each and every obligation of Lakewood
Associates under the Loan Documents whenever accruing, including, particularly,
but without limitation, the obligations of the Note and the exclusions from non-recourse
liability set forth in the Loan Documents, and Borrower agrees to perform all obligations
of Borrower under the Loan Documents and to pay to Lender the sums due and to become
due under the Loan Documents as fully as if Borrower had executed the Loan Documents
on the date thereof as Borrower. Notwithstanding anything contained herein to
the contrary, Borrower does not assume any liability for or with respect to (i) any
breach by Lakewood Associates of any of its representations or warranties
contained in the Loan Documents, or (ii) the payment or performance (or
nonpayment or failure to perform) by Lakewood Associates of any of its
covenants, agreements or obligations under or pursuant to the Loan Documents,
the payment or performance of which became due (or the nonpayment or failure to
perform occurred) prior to the date of Borrower’s purchase of the Property and agreement
to assume the obligations of Lakewood Associates hereunder. Lender hereby consents
to the assumption by Borrower as contemplated herein.


 


4.                                        MORTGAGE
AMENDMENTS.


 


(a)                                   Borrower hereby
acknowledges and agrees that the transfer of the Property from Lakewood
Associates to Borrower constitutes the permitted one-time transfer set forth in
Paragraph 32.A. of the Mortgage and, accordingly, the permitted one-time right


 


3

















 


to transfer set forth in
Paragraph 32.A. of the Mortgage is hereby extinguished and terminated.


 


(b)                                   The address for
the Borrower for sending notices under the Mortgage, as set forth in Paragraph
43, is hereby amended and restated as follows:


 


c/o The Inland Real
Estate Group, Inc.

2901 Butterfield Road 

Oak Brook, Illinois 60523


 


5.                                        RELEASE OF LAKEWOOD
ASSOCIATES. Lender agrees that Lakewood Associates is and shall be released from
any and all personal liability under the Note, Mortgage and other Loan
Documents for any cause, claim or event arising on or after the effective date
of this Agreement; provided, however, that nothing herein shall affect,
diminish or impair the obligations of Borrower under the Note, Mortgage or
other Loan Documents.


 


6.                                        EFFECTIVE DATE. This Agreement
is and shall be effective as of transfer of the Property from Lakewood
Associates to Borrower.


 


7.                                        ASSUMPTION FEES. Borrower agrees
that all costs and expenses associated with the execution, delivery and
recordation of this Agreement, including, but not limited to, an assumption fee
in the amount of one percent (1%) of the outstanding principal balance of the Loan,
attorney’s fees, recordation costs and documentary stamp and intangible taxes,
if applicable (together with all interest and penalties thereon, if any), and
expenses of title update, shall be paid by Borrower. Borrower agrees to defend,
indemnify and hold harmless the Lender from and against any and all such costs
and expenses, and agrees that the Lender shall not in any way be held liable
for such costs and expenses.


 


8.                                        NO NOVATION. It is the intent
of the parties hereto that this Agreement shall not constitute a novation or in
any way adversely affect the lien of the Mortgage or other Loan Documents.


 


9.                                        BINDING EFFECT. This Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
the parties hereto.


 


10.                                  GOVERNING LAW. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Florida.


 


11.                                  NO JOINT VENTURE. Nothing
contained herein or in any of the other Loan Documents nor the act of any party
hereto shall be construed to create a partnership or joint venture between
Borrower and Lender. The relationship between Borrower and Lender is the relationship
of “debtor” and “creditor”, respectively. Furthermore, nothing contained herein
shall be deemed a taking of possession of the Property, nor shall this
Agreement in any way be deemed to make Lender a mortgagee in possession.


 


12.                                  WAIVER OF JURY TRIAL. Borrower and Lender
hereby knowingly, voluntarily and intentionally waive the right either of them or
their heirs, personal representatives, successors or assigns may have to a
trial by jury in respect to any litigation


 


4

















 


arising out of, under or in connection with
the Mortgage, this Agreement and any agreement contemplated to be executed in
connection herewith, or any course of conduct, course of dealing, statements
(whether verbal or written) or actions of any party. This provision is a
material inducement to Lender’s consenting to the transfer of the Property and
the assumption of the Mortgage by Borrower.


 


13.                                LENDER CERTIFICATIONS. Lender hereby certifies
to Borrower the following:


 


(a)                                    To the best of
Lender’s knowledge, Lakewood Associates is not in default under the Loan
Documents and no condition exists that, with the passage of time, the giving of
notice or both, would constitute a default under the Loan Documents.


 


(b)                                   The principal
balance of the indebtedness represented by the Note on the date hereof is
ELEVEN MILLION SEVEN HUNDRED FOURTEEN THOUSAND NINE HUNDRED SIXTY-THREE AND
33/100 DOLLARS ($11,714,963.33) and the next monthly payment of interest is due
on February 1,2006.


 


(c)                                    Lender
acknowledges that Borrower will rely upon the certifications of Lender
hereunder in connection with its acquisition of the Property.


 


14.                                MISCELLANEOUS. Any reference in
the Loan Documents to the Property shall hereafter be construed to mean that
certain real property located in Broward County, Florida, more particularly
described on Exhibit A. Any reference in the Loan
Documents to the “Note” shall be construed to mean the Original Note as amended
by the Renewal Note. Any reference in the Loan Documents to the “Mortgage”
shall be construed to mean the Mortgage as assumed and modified hereby. Except
as expressly set forth herein, the Loan Documents shall remain in full force
and effect in strict accordance with the terms thereof, and nothing herein
contained shall affect or be construed to affect the lien, charge or
encumbrance of the Mortgage or the other Loan Documents, or the priority
thereof over other liens, charges, encumbrances and conveyances, or to release
or affect the liability of any party or parties who may now or hereafter be
liable under or on account of the Loan Documents. This Agreement shall be
binding upon and shall inure to the benefit of, the representatives, successors
and assigns of the parties hereto. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts
each of which, when so executed, shall be an original, but all such
counterparts shall constitute but one and the same instrument.


 


[SIGNATURES BEGIN ON NEXT PAGE]


 


5

















 


IN WITNESS WHEREOF, this Agreement has been executed by the
parties hereto in manner and form sufficient to bind them as of the day and
year first above written.


 


	
  Signed, sealed and delivered in the 

  presence of the following witnesses:

  	
  “LENDER”:

  
	
   

  	
   

  
	
   

  	
  NATIONWIDE LIFE INSURANCE 

  COMPANY, an Ohio corporation

  
	
   

  	
   

  
	
  /s/ Sarah Bennett

  	
   

  	
   

  
	
  Signature of Witness

  	
   

  
	
   

  	
   

  
	
  Sarah
  Bennett

  	
   

  	
  By:
  

  	
   

  	
  /s/
  Peter A. Lynch

  
	
  Printed Name of Witness

  	
   

  	
  Printed Name: 

  	
  PETER A. LYNCH

  
	
   

  	
  Title: 

  	
   

  	
  OFFICER,
  MORTGAGE LOAN ADMIN

  
	
   

  	
   

  	
   

  	
  PEAL ESTATE INVESTMENTS

  
	
   

  	
   

  
	
  /s/
  Beth Callahan

  	
   

  	
   

  
	
  Signature of Witness

  	
   

  
	
   

  	
  [CORPORATE SEAL]

  
	
  Beth
  Callahan

  	
   

  	
   

  
	
  Printed Name of Witness

  	
   

  
						



 


 


STATE OF OHIO 

COUNTY OF FRANKLIN


 


The foregoing instrument was acknowledged before me
this 13th day of January, 2006, by Peter A Lynch, as Officer MLA of NATIONWIDE LIFE INSURANCE COMPANY, an Ohio
corporation, on behalf of the corporation. He is personally known to me or has
produced as identification and did not take an oath.


 


	
  

  	
  (NOTARY SEAL)

  	
  /s/ Sarah Benneth

  
	
   

  	
  Notary Public

  	
   

  
	
  SARAH BOOR BENNETT

  	
  Printed Name:

  	
   

  
	
  Notary Public State of Ohio

  	
  Commission No.:

  	
   

  
	
  My
  Commission Expires 08-12-06

  	
  My Commission Expires:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
							



 


6

















 


	
  Signed, sealed and delivered 

  in the presence of:

  	
   

  
	
   

  	
  “BORROWER”:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MB MARGATE LAKEWOOD I, L.L.C.,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Minto Builders (Florida), Inc., a Florida 

  corporation, its sole member

  
	
   

  	
   

  
	
  /s/ Doris E. Ahern

  	
   

  	
   

  
	
  Name:

  	
  Doris E. Ahern

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
   

  	
  /s/
  Valerie Medina

  
	
   

  	
   

  	
   

  	
  Name: 

  	
   

  	
  Valerie
  Medina

  
	
   

  	
  Its: 

  	
   

  	
  Assistant
  Secretary

  
	
  /s/
  LaVenia Smith

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  LaVenia
  Smith

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (Corporate Seal)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
											



 


	
  STATE
  OF 

  	
  ILLINOIS

  	
   

  
	
  COUNTY
  OF

  	
  Du
  PAGE

  	
   

  
				



 


The
foregoing instrument was acknowledged before me this 23rd day of
January, 2006, by VALEMA MEDINA, as ASS’T SEC’Y of Minto Builders (Florida),
Inc., a Florida corporation, as sole member of MB MARGATE
LAKEWOOD I, L.L.C., a Delaware limited liability company, on behalf
of the company. He/She is personally known to me or has produced as
identification.


 


	
  (NOTARY SEAL)

  	
   

  	
  /s/ Doris E. Ahern

  
	
   

  	
  Notary Public

  	
   

  
	
   

  	
  Printed Name:

  	
  Doris E. Ahern

  
	
   

  	
  Commission No.:

  	
   

  
	
   

  	
  My Commission Expires:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
							



 


OFFICIAL
SEAL


DORIS
E AHERN


NOTARY
PUBLIC STATE OF ILLINOIS


MY
COMMISSION EXPIRES [ILLEGIBLE]


7

















 


	
  Signed, sealed and delivered in the 

  presence of the following witnesses:

  	
  “LAKEWOOD ASSOCIATES”:

  
	
   

  	
   

  
	
   

  	
  LAKEWOOD ASSOCIATES, LTD.,

  a Florida limited partnership

  
	
   

  	
   

  
	
  /s/ Charles
  F. Rogers

  	
   

  	
   

  
	
  Signature of Witness

  	
   

  
	
   

  	
   

  
	
  Charles F. Rogers

  	
   

  	
  By:
  

  	
  /s/
  W. Douglas Pitts

  
	
  Printed Name of Witness

  	
   

  	
  Printed Name: 

  	
  W. DOUGLAS PITTS

  
	
   

  	
  Title: 

  	
  President
  of Newcaster Devcorp, Inc., a Florida

  corporation, its general partner

  
	
   

  	
   

  
	
  /s/
  Vilma I. Amell

  	
   

  	
   

  
	
  Signature of Witness

  	
   

  
	
   

  	
  [Seal]

  
	
  Vilma
  I. Amell

  	
   

  	
   

  
	
  Printed Name of Witness

  	
   

  
						



 


	
  STATE
  OF 

  	
  Florida

  	
   

  
	
  COUNTY
  OF

  	
  Miami
  - Dade

  	
   

  
				



 


The foregoing instrument was acknowledged before me
this 25th day of January, 2006, by W. Douglas Pitts, as President of
Newcaster Devcorp, Inc.,
a Florida corporation, general partner of LAKEWOOD ASSOCIATES, LTD., a Florida limited partnership, on behalf of
the partnership. He/She is personally known to me or has produced as
identification 


 


 


 


	
  

  	
  OFFICIAL NOTARTY SEAL

  
	
  VICTOR L STOSIK

  
	
   

  
	
  COMMISSION NUMBER

  
	
  DD085573

  
	
  MY COMMISSION EXPIRES

  
	
  FEB. 3, 2006

  



 


8

















 


EXHIBIT A


 


LEGAL DESCRIPTION


 

















 


EXHIBIT ”A”


 


LEGAL DESCRIPTIONS:


 


PARCEL No. 1


 


PORTION OF “MARGATE REALTY NO. 1”, ACCORDING TO THE PLAT THEREOF, AS
RECORDED IN PLAT BOOK 42, AT PAGE 42,TOGETHER WITH: PORTION OF TRACT “A”, “LAKEWOOD
COMMERCIAL”, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 120, AT
PAGE 27, BOTH OF THE PUBLIC RECORDS OF BROWARD COUNTY, FLORIDA, ALL BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:


 


COMMENCE AT THE CENTERLINE INTERSECTION OF
LAKEWOOD CIRCLE WITH WEST ATLANTIC BOULEVARD, BOTH AS SHOWN ON SAID PLAT OF “LAKEWOOD
COMMERCIAL”, (SAID POINT OF COMMENCEMENT BEING ON A CURVE AND BEARING NORTH 05
DEGREES 34 MINUTES 35 SECONDS EAST, FROM THE RADIUS POINT OF THE NEXT DESCRIBED
CURVE); THENCE NORTHWESTERLY, ALONG A CIRCULAR CURVE TO THE LEFT, HAVING A RADIUS
OF 5729.58 FEET AND A CENTRAL ANGLE OF 00 DEGREES 20 MINUTES 10 SECONDS, FOR AN
ARC DISTANCE OF 33.61 FEET (LAST MENTIONED COURSE BEING COINCIDENT WITH PORTION
OF THE CENTERLINE OF SAID WEST ATLANTIC BOULEVARD); THENCE NORTH 05 DEGREES 14
MINUTES 25 SECONDS EAST, RADIAL TO THE LAST DESCRIBED CURVE, FOR 65.00 FEET,TO
THE POINT OF BEGINNING OF THE FOLLOWING DESCRIBED PARCEL OF LAND; THENCE NORTH
05 DEGREES 34 MINUTES 35 SECONDS EAST, FOR 94.77 FEET,TO A POINT OF CURVATURE;
THENCE NORTHEASTERLY AND NORTHERLY, ALONG A CIRCULAR CURVE TO THE LEFT, HAVING
A RADIUS OF 1041.00 FEET AND A CENTRAL ANGLE OF 04 DEGREES 07 MINUTES 30
SECONDS, FOR AN ARC DISTANCE OF 74.95 FEET,TO A POINT OF TANGENCY; THENCE NORTH
01 DEGREES 27 MINUTES 05 SECONDS EAST, FOR 11.96 FEET; THENCE NORTH 88 DEGREES
32 MINUTES 55 SECONDS WEST, AT RIGHT ANGLES TO THE LAST AND NEXT MENTIONED
COURSES, FOR 179.81 FEET; THENCE SOUTH 01 DEGREES 27 MINUTES 05 SECONDS WEST,
FOR 177.61 FEET,TO A POINT ON A CURVE, SAID POINT BEARS NORTH 03 DEGREES 33
MINUTES 21 SECONDS EAST, FROM THE RADIUS POINT OF THE NEXT DESCRIBED CURVE;
THENCE NORTHWESTERLY, ALONG A CIRCULAR CURVE TO THE LEFT, HAVING A RADIUS OF
5789.58 FEET AND A CENTRAL ANGLE OF 01 DEGREES 12 MINUTES 25 SECONDS, FOR AN
ARC DISTANCE OF 121.96 FEET, TO A POINT ON SAID CURVE; THENCE NORTH 80 DEGREES
39 MINUTES 37 SECONDS WEST, FOR 39.97 FEET, TO A POINT ON A CURVE, SAID POINT
BEARS NORTH 01 DEGREES 57 MINUTES 24 SECONDS EAST, FROM THE RADIUS POINT OF THE
NEXT DESCRIBED CURVE; THENCE NORTHWESTERLY, ALONG A CIRCULAR CURVE TO THE LEFT,
HAVING A RADIUS OF 5794.58 FEET AND A CENTRAL ANGLE OF 00 DEGREES 42 MINUTES 22
SECONDS, FOR AN ARC DISTANCE OF 71.41 FEET, TO A POINT OF TANGENCY; THENCE
NORTH 88 DEGREES 44 MINUTES 58 SECONDS WEST, FOR 163.60 FEET; THENCE SOUTH 46
DEGREES 15 MINUTES 02 SECONDS WEST, FOR 7.07 FEET; THENCE NORTH 88 DEGREES 44
MINUTES 58 SECONDS WEST, FOR 187.54 FEET, TO A POINT OF INTERSECTION WITH
THE WEST LINE OF SECTION 31,TOWNSHIP 48 SOUTH, RANGE 42 EAST; THENCE
CONTINUE NORTH 88 DEGREES 44 MINUTES 58 SECONDS WEST, ALONG THE LAST MENTIONED
COURSE, FOR 2.05 FEET (LAST MENTIONED SEVEN COURSES BEING COINCIDENT WITH THE
NORTHERLY RIGHT-OF-WAY LINE OF SAID WEST ATLANTIC BOULEVARD); THENCE SOUTH 01
DEGREES 27 MINUTES 05 SECONDS WEST, FOR 7.00 FEET; THENCE NORTH 88 DEGREES 44
MINUTES 58 SECONDS WEST, ALONG A LINE PARALLEL WITH AND 53.00 FEET NORTH OF, AS
MEASURED AT RIGHT ANGLES TO,THE SOUTH LINE OF THE SOUTH 1/2 OF THE NORTHEAST
1/4 OF SECTION 36, TOWNSHIP 48 SOUTH, RAGE 41 EAST, ALSO BEING THE
NORTHERLY RIGHT-OF-WAY LINE OF SAID WEST ATLANTIC BOULEVARD, FOR 177.20 FEET;
THENCE NORTH 01 DEGREES 11 MINUTES 38 SECONDS EAST, FOR 50.33 FEET, TO A POINT
ON A NON-TANGENT CURVE HAVING A CHORD BEARING OF NORTH 07 DEGREES 12 MINUTES 24
SECONDS WEST; THENCE NORTHERLY, ALONG ACIRCULAR CURVE TO THE LEFT, HAVING A
RADIUS OF 200.00 FEET AND A CENTRAL ANGLE OF 16 DEGREES 54 MINUTES 35 SECONDS,
FOR AN ARC DISTANCE OF 59.03 FEET,TO A POINT OF REVERSE CURVATURE; THENCE
NORTHERLY, ALONG A CIRCULAR CURVE TO THE RIGHT, HAVING A RADIUS OF 200.00 FEET
AND A CENTRAL ANGLE OF 16 DEGREES 54 MINUTES 35 SECONDS, FOR AN ARC DISTANCE OF
59.03 FEET,TO A POINT OF TANGENCY; THENCE NORTH 01 DEGREES 14 MINUTES 53
SECONDS EAST, FOR 261.11 FEET,TO A POINT ON A NON-TANGENT CURVE, HAVING A CHORD
BEARING OF NORTH 66 DEGREES 37 MINUTES 12 SECONDS WEST;


 

















 


THENCE NORTHWESTERLY, ALONG A CIRCULAR CURVE TO THE RIGHT, HAVING A RADIUS
OF 500.00 FEET AND A CENTRAL ANGLE OF 07 DEGREES 35 MINUTES 45 SECONDS, FOR AN
ARC DISTANCE OF 66.29 FEET; THENCE NORTH 01 DEGREES 46 MINUTES 27 SECONDS EAST,
FOR 83.46 FEET; THENCE SOUTH 88 DEGREES 32 MINUTES 55 SECONDS EAST, FOR 12.00
FEET; THENCE NORTH 01 DEGREES 27 MINUTES 05 SECONDS EAST, AT RIGHT ANGLES TO
THE LAST MENTIONED COURSE, FOR 70.12 FEET, TO THE SOUTHWEST CORNER OF PARCEL “A”,
“LEMON TREE LAKE”, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 82,
AT PAGE 16, OF THE PUBLIC RECORDS OF BROWARD COUNTY, FLORIDA; THENCE SOUTH 88
DEGREES 32 MINUTES 55 SECONDS EAST, FOR 400.00 FEET; THENCE NORTH 72 DEGREES 49
MINUTES 27 SECONDS EAST, FOR 77.65 FEET, TO A POINT ON A CURVE, SAID POINT
BEARS SOUTH 40 DEGREES 03 MINUTES 00 SECONDS WEST, FROM THE RADIUS POINT OF THE
NEXT DESCRIBED CURVE (LAST MENTIONED TWO COURSES BEING COINCIDENT WITH THE
COMMON BOUNDARY LINES OF SAID PLATS OF “LEMON TREE LAKE” AND LAKEWOOD
COMMERCIAL”); THENCE SOUTHEASTERLY, EASTERLY AND NORTHEASTERLY, ALONG A
CIRCULAR CURVE TO THE LEFT, HAVING A RADIUS OF 320.00 FEET AND A CENTRAL ANGLE
OF 41 DEGREES 52 MINUTES 05 SECONDS, FOR AN ARC DISTANCE OF 233.84 FEET, TO A
POINT OF TANGENCY; THENCE NORTH 88 DEGREES 10 MINUTES 55 SECONDS EAST, FOR
233.64 FEET, TO A POINT OF CURVATURE; THENCE NORTHEASTERLY, ALONG A CIRCULAR
CURVE TO THE LEFT, HAVING A RADIUS OF 530.00 FEET AND A CENTRAL ANGLE OF 10
DEGREES 10 MINUTES 49 SECONDS, FOR AN ARC DISTANCE OF 94.17 FEET, TO A POINT OF
TANGENCY; THENCE NORTH 78 DEGREES 00 MINUTES 06 SECONDS EAST, FOR 144.62 FEET
(LAST MENTIONED FOUR COURSES BEING COINCIDENT WITH THE SOUTHERLY RIGHT-OF-WAY LINE
OF LAKESIDE DRIVE, AS SHOWN ON SAID PLAT OF “LAKEWOOD COMMERCIAL”); THENCE
SOUTH 01 DEGREES 27 MINUTES 05 SECONDS WEST, FOR 269.14 FEET; THENCE NORTH 88
DEGREES 32 MINUTES 55 SECONDS WEST, AT RIGHT ANGLES TO THE LAST AND NEXT
MENTIONED COURSES, FOR 71.00 FEET; THENCE SOUTH 01 DEGREES 27 MINUTES 05
SECONDS WEST, FOR 357.63 FEET, TO A POINT ON A CURVE, SAID POINT BEARS NORTH 06
DEGREES 02 MINUTES 37 SECONDS EAST, FROM THE RADIUS POINT OF THE NEXT DESCRIBED
CURVE; THENCE NORTHWESTERLY, ALONG A CIRCULAR CURVE TO THE LEFT, HAVING A
RADIUS OF 5794.58 FEET AND A CENTRAL ANGLE OF 00 DEGREES 48 MINUTES 12 SECONDS,
FOR AN ARC DISTANCE OF 81.24 FEET, TO THE POINT OF BEGINNING (LAST MENTIONED
COURSE BEING ALONG THE NORTHERLY RIGHT-OF-WAY LINE OF SAID WEST ATLANTIC
BOULEVARD).


 


LYING AND BEING IN SECTION 36, TOWNSHIP 48 SOUTH, RANGE 41 EAST
AND SECTION 31, TOWNSHIP 48 SOUTH, RANGE 42 EAST, CITY OF MARGATE, BROWARD
COUNTY, FLORIDA. LESS AND EXCEPT THEREFROM: THE LAND DESCRIBED IN THAT CERTAIN
WARRANTY DEED TO THE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, FILED JUNE 21,
2004 IN OFFICIAL RECORDS BOOK 37682, PAGE 1905 OF THE PUBLIC RECORDS OF BROWARD
COUNTY, FLORIDA.


 

















 


PARCEL No. 2


 


A PORTION OF SECTION 36, TOWNSHIP 48 SOUTH, RANGE 41 EAST, BEING A
PORTION OF THE SHOPPING CENTER TRACT, AS SHOWN ON THE PLAT OF “MARGATE REALTY
NO. 1”, AS RECORDED IN PLAT BOOK 42, AT PAGE 42, OF THE PUBLIC RECORDS OF
BROWARD COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:


 


COMMENCE AT THE EAST 1/4 CORNER
OF SAID SECTION 36 AND RUN NORTH 88 DEGREES 44 MINUTES 58 SECONDS WEST,
ALONG THE SOUTH LINE OF THE SOUTH 1/2 OF THE NORTHEAST 1/4 OF SAID SECTION 36,
FOR 1076.68 FEET; THENCE NORTH 00 DEGREES 36 MINUTES 05 SECONDS WEST, ALONG THE
EASTERLY RIGHT-OF-WAY LINE OF STATE ROAD No. 7, FOR 228.03 FEET, TO THE POINT
OF BEGINNING OF THE FOLLOWING DESCRIBED PARCEL OF LAND; THENCE CONTINUE NORTH
00 DEGREES 36 MINUTES 05 SECONDS WEST, ALONG THE LAST DESCRIBED COURSE, FOR 145.50
FEET; THENCE SOUTH 88 DEGREES 44 MINUTES 58 SECONDS EAST, FOR 200.00 FEET;
THENCE SOUTH 00 DEGREES 36 MINUTES 05 SECONDS EAST, FOR 145.50 FEET; THENCE
NORTH 88 DEGREES 44 MINUTES 58 SECONDS WEST, FOR 200.00 FEET, TO THE POINT OF
BEGINNING.


 


LYING AND BEING IN THE CITY OF MARGATE, BROWARD COUNTY, FLORIDA.


 


PARCEL No. 3


 


A PORTION OF SECTION 36, TOWNSHIP
48 SOUTH, RANGE 41 EAST, BEING A PORTION OF THE SHOPPING CENTER TRACT, AS SHOWN
ON THE PLAT OF “MARGATE REALTY NO. 1”, AS RECORDED IN PLAT BOOK 42, AT PAGE 42,
OF THE PUBLIC RECORDS OF BROWARD COUNTY, FLORIDA, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS: COMMENCE AT THE EAST 1/4 CORNER OF SAID SECTION 36
AND RUN NORTH 88 DEGREES 44 MINUTES 58 SECONDS WEST, ALONG THE SOUTH LINE OF
THE SOUTH 1/2 OF THE NORTHEAST 1/4 OF SAID SECTION 36, FOR 1076.68 FEET;
THENCE NORTH 00 DEGREES 36 MINUTES 05 SECONDS WEST, ALONG THE EASTERLY RIGHT-OF-WAY
LINE OF STATE ROAD No. 7, FOR 428.53 FEET, TO THE POINT OF BEGINNING OF THE
FOLLOWING DESCRIBED PARCEL OF LAND; THENCE CONTINUE NORTH 00 DEGREES 36 MINUTES
05 SECONDS WEST, ALONG THE LAST DESCRIBED COURSE, FOR 355.50 FEET; THENCE SOUTH
88 DEGREES 44 MINUTES 58 SECONDS EAST, FOR 200.00 FEET; THENCE SOUTH 00 DEGREES
36 MINUTES 05 SECONDS EAST, FOR 355.50 FEET; THENCE NORTH 88 DEGREES 44 MINUTES
58 SECONDS WEST, FOR 200.00 FEET, TO THE POINT OF BEGINNING.


 


LYING AND BEING IN THE CITY OF MARGATE, BROWARD COUNTY, FLORIDA.


 

















 


	
   

  	
   

  	
  OR
  BK 37010 Pages 340 - 378

  
	
   

  	
   

  	
  RECORDED
  03/04/04 13:30:38

  
	
  Prepared
  by and return to:

  	
   

  	
  BROWARD
  COUNTY COMMISSION

  
	
  Darrell
  D. Garvey, Esquire

  	
   

  	
  DOC
  STMP-M: $42350.00

  
	
  Lowndes,
  Drosdick, Doster, Kantor & Reed, P.A.

  	
   

  	
  INT
  TAX: 11 $24200.00

  
	
  450
  South Orange Avenue, Suite 800

  	
   

  	
  DEPUTY
  CLERK 1924

  
	
  Orlando,
  Florida 32801

  	
   

  	
  #1,
  39 Pages

  



 


 


	
   

  	
  Borrower
  Name:

  	
  Lakewood
  Associates, Ltd.

  
	
   

  	
  Project
  Name:

  	
  Lakewood
  Shopping Center

  
	
   

  	
   

  	
  Margate,
  Florida

  



 


MORTGAGE
AND SECURITY AGREEMENT


 


THIS MORTGAGE AND SECURITY AGREEMENT (hereinafter referred to as the “Mortgage”)
is made, executed and delivered as of the 2nd day of
March 2004, by LAKEWOOD ASSOCIATES,
LTD., a Florida limited partnership, whose address is c/o Courtelis
Company, 701 Brickell Avenue, Suite 1400, Miami, Florida 33131
(hereinafter referred to as “Borrower”), to and in favor of NATIONWIDE LIFE INSURANCE COMPANY, an Ohio corporation, its
successors and assigns hereof (hereinafter referred to as “Lender”), having its
principal office at One Nationwide Plaza, Columbus, Ohio 43215-2220, Attention:
Real Estate Investment Department, 34T, or at such other place either within or
without the State of Ohio, as Lender may from time to time designate;


 


WITNESSETH:


 


WHEREAS, Borrower is justly indebted to Lender in the original principal sum of
TWELVE MILLION ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($12,100,000.00) with
interest thereon, which Loan is evidenced and represented by that certain Note
of even date herewith from Borrower to Lender in the amount of the Loan
(hereinafter referred to as the “Note”), both principal and interest being
payable as therein provided, with the first payment on the Note becoming due
and payable on the date of disbursement, and all amounts remaining unpaid
thereon being finally due and payable on April 1, 2024, and the term “Note”
shall include all other notes given in substitution, modification, increase,
renewal or extension of the original Note described herein, in whole or in
part; and


 


WHEREAS, Lender, as a condition precedent to the extension of credit and the
making of the Loan has required that Borrower provide Lender with security for
the repayment of the Loan as well as for the performance, observance and
discharge by Borrower of various terms, covenants, conditions and agreements
made by Borrower to, with, in favor of and for the benefit of Lender with
respect to the Loan and such security;


 


NOW THEREFORE, in consideration of and in order to secure
the repayment of the Loan evidenced and represented by the Note, together with
interest on the Loan, as well as the payment of all other sums of money secured
hereby, as hereinafter provided; to secure the observance, performance and
discharge by Borrower of all terms, covenants, conditions and


 

















 


agreements
set forth in the Note, this Mortgage and in the other Loan Documents (hereafter
defined); in order to charge the properties, interests and rights hereinafter
described with such payment, observance, performance and discharge; and in
consideration of the sum of ONE AND NO/100 DOLLAR ($1.00) paid by Lender to
Borrower, and other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged by Borrower, Borrower does hereby
grant, bargain, sell, convey, assign, transfer, pledge, deliver, hypothecate,
warrant and confirm unto Lender forever, all of Borrower’s right, title and
interest in and to the following described properties, including all rights,
interests, replacements, substitutions and additions thereto, therein or
therefore (collectively, the “Mortgaged Property”):


 


(a)                                All that certain piece, parcel or tract of
land or real property of which Borrower is now seized and in actual or
constructive possession, situated in the City of Margate, County of Broward and
State of Florida, and being more particularly described on Exhibit A
attached hereto and by this reference made a part hereof (the “Real Property”);


 


(b)                               All buildings, structures and other
improvements of any kind, nature or description now or hereafter erected,
constructed, placed or located upon the Real Property (the “Improvements”),
including, without limitation, any and all additions to, substitutions for or
replacements of such Improvements;


 


(c)                                All minerals, royalties, gas rights, water, water
rights, water stock, flowers, shrubs, lawn plants, crops, trees, timber and
other emblements now or hereafter located on, under or above all or any part of
the Real Property;


 


(d)                               All and singular, the tenements,
hereditaments, strips and gores, rights-of-way, easements, privileges, profits
and other appurtenances now or hereafter belonging or in any way appertaining
to the Real Property, including, without limitation, all right, title and
interest of Borrower in any after-acquired right, title, interest, remainder or
reversion in and to the beds of any ways, streets, avenues, roads, alleys,
passages and public places, open or proposed, in front of, running through,
adjoining or adjacent to the Real Property (the “Appurtenances”);


 


(e)                                Any and all leases, licenses, contracts,
rents, license fees, royalties, issues, revenues, profits, proceeds, deposits,
income and other benefits, including accounts receivable, termination fees, of,
accruing to or derived from the Real Property, Improvements and Appurtenances,
and any business or enterprise presently situated or hereafter operated thereon
and therewith and all of Borrower’s right, title and interest under any and all
lease guaranties, letters of credit, and any other credit support furnished to
Borrower in connection with any of the foregoing (the “Rents”);


 


(f)                             Any and all awards, payments or settlements,
including interest thereon, and the right to receive the same, as a result of:
(a) the exercise of the right of eminent domain; (b) the alteration
of the grade of any way, street, avenue, road, alley, passage or public place;
(c) any other injury, damage, casualty or claim relating to the taking of,
or decrease in the value of, the Real Property, Improvements or Appurtenances;
or (d) proceeds of insurance awards, to the extent of all amounts which
may be secured by this Mortgage at the date of any such award or payment
including but not limited to Reasonable Attorneys’ Fees (as hereinafter
defined), costs


 


2

















 


and
disbursements incurred by Lender in connection with the collection of such
award or payment;


 


(g)                                 All fixtures, materials, equipment,
machinery, apparatus, appliances, and other property whatsoever now or
hereafter attached to, installed in, or used in connection with the buildings
and other improvements now erected or hereafter to be erected on said land,
including, but not limited to, furnaces, steam boilers, hot-water boilers, oil
burners, pipes, radiators, air conditioning and sprinkler systems, gas and
electric fixtures, carpets, rugs, shades, awnings, screens, elevators, motors,
dynamos, cabinets and all other furnishings, tools, equipment and machinery,
appliances, building supplies, materials, and all fixtures, accessions and
appurtenances thereto, and all renewals or replacements of or substitutions for
any of the foregoing, all of which property and things are hereby declared to
be permanent fixtures and accessions to the freehold and part of the realty
conveyed herein as security for the indebtedness herein mentioned; and


 


(h)                                All agreements or contracts relating to any
interest rate cap agreements, swaps or other interest hedging agreements;


 


TO HAVE AND
TO HOLD the foregoing
Mortgaged Property and the rights hereby granted for its use and benefit unto
Lender and its successors and assigns in fee simple forever.


 


In order to secure the
repayment of the Loan evidenced and represented by the Note, together with
interest on the Loan, as well as the payment of all other sums of money secured
hereby, as hereinafter provided; and to secure the observance, performance and
discharge by Borrower of all covenants, conditions and agreements set forth in
the Note, this Mortgage and in the other Loan Documents; and in order to charge
the properties, interests and rights hereinafter described with such payment,
observance, performance and discharge; and in consideration of the sum of TEN
AND NO/100 DOLLARS ($10.00) paid by Lender and other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
Borrower hereby grants Lender a security interest in all Fixtures, Goods
(including, without limitation, Consumer Goods, Inventory, Equipment and Farm
Products), Accounts, Chattel Paper (including, without limitation, Electronic
Chattel Paper and Tangible Chattel Paper), Instruments, General Intangibles
(including, without limitation, Payment Intangibles and Software), Letters of
Credit, Letter-of-Credit Rights, Documents, As-Extracted Collateral, Money and
Deposit Accounts of every kind, and all proceeds thereof, including, without
limitation, any and all licenses, permits, franchises, trademarks, trade names,
service marks or logos, plans, specifications, maps, construction contracts,
instruments, insurance policies, fittings and fixtures of every kind, which is,
are or shall hereafter be located upon, attached, affixed to or used or useful,
either directly or indirectly, in connection with the complete and comfortable
use, occupancy and operation of the Real Property, Improvements or
Appurtenances as a shopping center project (the “Existing Use”), or any other
business, enterprise or operation as may hereafter be conducted upon or with
said Real Property, Improvements or Appurtenances, including, without
limitation, any and all licenses, permits or franchises, used or required in
connection with such use, occupancy or operation as well as the proceeds
thereof or therefrom regardless of form, all security deposits and advance
rentals under lease agreements now or at any time hereafter covering or
affecting any of the Property and held by or for the benefit of Borrower, all
monetary deposits which Borrower has been required to give to any public or
private utility with respect to utility services


 


3

















 


furnished
to the Real Property or Improvements, all rents, issues and profits from leases
of all or any part of the Real Property or Improvements, all proceeds
(including premium refunds) of each policy of insurance relating to the Real
Property or Improvements, all proceeds from the taking of the Real Property or
Improvements or any part thereof or any interest therein or right or estate
appurtenant thereto by eminent domain or by purchase in lieu thereof, all
amounts deposited in escrow for the payment of ad valorem taxes, assessments,
charges, ground rentals and/or premiums for policies of insurance with respect
to the Real Property or Improvements, all proceeds and other amounts paid or
owing to Borrower under or pursuant to any and all contracts and bonds relating
to the construction, erection or renovation of the Real Property or
Improvements, all oil, gas and other hydrocarbons and other minerals produced
from or allocated to the Real Property and all products processed or obtained
therefrom, the proceeds thereof, and all accounts and general intangibles under
which such proceeds may arise, together with any sums of money that may now or
at any time hereafter become due and payable to Borrower by virtue of any and
all royalties, overriding royalties, bonuses, delay rentals and any other
amount of any kind or character arising under any and all present and future
oil, gas and mining leases covering the Real Property or any part thereof
(collectively, the “Fixtures and Personal Property”) which term expressly
excludes any toxic waste or substance deemed hazardous under federal, regional,
state or local laws, codes, ordinances, statutes, rules, regulations, decisions
or orders). The Mortgaged Property and the Fixtures and Personal Property are
herein together referred to as the “Property”.


 


Except as otherwise
expressly provided in this Mortgage, all terms in this Mortgage relating to the
Property and the grant of the foregoing security interest which are defined in
the Uniform Commercial Code of the State (the “UCC”) shall have the meanings
assigned to them in Article 9 (or, absent definition in Article 9, in
any other Article) of the UCC, as those meanings may be amended, revised or
replaced from time to time. Notwithstanding the foregoing, the parties intend
that the terms used herein which are defined in the UCC have, at all times, the
broadest and most inclusive meanings possible. Accordingly, if the UCC shall in
the future be amended or held by a court to define any term used herein more
broadly or inclusively than the UCC in effect on the date of this Mortgage,
then such term, as used herein, shall be given such broadened meaning. If the
UCC shall in the future be amended or held by a court to define any term used
herein more narrowly, or less inclusively, than the UCC in effect on the date
of this Mortgage, such amendment or holding shall be disregarded in defining
terms used in this Mortgage.


 


Borrower hereby covenants
and warrants with and to Lender that Borrower is indefeasibly seized of the
Property and has good right, full power, and lawful authority to convey and
encumber all of the same as aforesaid; that Borrower hereby fully warrants the
title to the Property and will defend the same and the validity and priority of
the lien and encumbrance of this Mortgage against the lawful claims of all
persons whomsoever; and Borrower further warrants that the Property is free and
clear of all liens and encumbrances of any kind, nature or description, save
and except only (with respect to said Real Property, Improvements and Appurtenances)
for real property taxes for years subsequent to 2004 (which are not yet due and
payable) and those exceptions accepted by Lender as set forth in the title
insurance commitment or proforma policy issued to Lender precedent to the
issuance of a Lender’s Policy of Title Insurance insuring the first lien
priority of this Mortgage (the “Permitted Exceptions”).


 


4

















 


If Borrower shall pay to Lender the Loan evidenced by the Note, and if
Borrower shall duly, promptly and fully perform, discharge, execute, effect,
complete and comply with and abide by each and every one of the terms,
covenants, conditions and agreements of the Note, this Mortgage and all other
Loan Documents, then this Mortgage and the estates and interests hereby granted
and created shall cease, terminate and be null and void, and shall be
discharged of record at the expense of Borrower.


 


Borrower, for the benefit of
Lender and its successors and assigns, does hereby expressly covenant and agree
as follows:


 


1.                                     Payment of Principal and Interest. Borrower shall pay the principal of the
Loan evidenced by the Note, together with all interest thereon, in accordance
with the terms, covenants and conditions of the Note, promptly at the times, at
the place and in the manner that said principal and interest shall become due,
and shall promptly and punctually pay all other sums required to be paid by
Borrower pursuant to the terms, covenants and conditions of the Note, this
Mortgage, the Assignment of Leases, Rents and Profits of even date herewith (the
“Assignment”) and all other documents and instruments executed as further
evidence of, as additional security for or executed in connection with the Loan
evidenced by the Note (collectively, the “Loan Documents”).


 


2.                                     Performance of Other Obligations. Borrower shall perform, comply with and
abide by each and every one of the terms, covenants, conditions and agreements
contained and set forth in the Note, this Mortgage, and the other Loan
Documents, shall comply with all Laws, (hereafter defined) and shall perform
all of its obligations under any term, covenant, condition, restriction or
agreement of record affecting the Property, and to insure that at all times the
Property constitutes one or more legal lots capable of being conveyed without
violation of any subdivision or platting laws, codes, ordinances, statutes,
rules, regulations, or other laws relating to the division, separation or
subdivision of real property.


 


3.                                     Preservation and Maintenance of Property;
Accessibility; Hazardous Waste.


 


(a)                                  Borrower shall keep all Improvements now
existing or hereafter erected on the Real Property in good order and repair,
only to be used for the Existing Use, and not to do or permit any waste,
impairment or deterioration thereof or thereon, nor to alter, remove or
demolish any of the Improvements or any Fixtures and Personal Property attached
or appertaining thereto, without the prior written consent of Lender, except
for improvements required by lease(s) with tenant(s) nor to initiate, join in
or consent to any change in any private restrictive covenant, zoning ordinance
or other public or private restrictions limiting or defining the uses which may
be made of the Property or any part thereof, nor to do or permit any other act
whereby the Property shall become less valuable, be used for purposes contrary
to applicable Law or be used in any manner which will increase the premium for
or result in a termination or cancellation of the insurance policies
hereinafter required to be kept and maintained on the Property. In furtherance
of, and not by way of limitation upon, the foregoing covenant, Borrower shall
effect such repairs as Lender may reasonably require, and from time to time
make all needful and proper replacements so that the Improvements,
Appurtenances, Fixtures and Personal Property will, at all times, be in good
condition, fit and proper for the respective purposes for which they were
originally erected or installed. In connection with the making of


 


5

















 


such
repairs, Borrower shall use contractors who are properly licensed, who carry
workers’ compensation insurance and appropriate liability insurance, who
generally have a good reputation for completing their work in a neat, prompt
and workmanlike manner, and use only new or re-manufactured goods of a quality
as good or better than that originally used on the Property. As provided
herein. Borrower shall insure that no liens are filed against the Property that
relate in any way to the repair work provided for herein.


 


(b)                                Borrower at all times shall keep the Property
and ground water of the Property free of Hazardous Materials (as hereinafter
defined) and any liens arising in connection therewith. Borrower shall not and
shall not knowingly permit its tenants or any third party requiring the consent
of Borrower to enter the Property, to use, generate, manufacture, treat, store,
release, threaten release, transport on or over, emit or dispose of Hazardous
Materials in, on, over, under or about the Property including the ground water
of the Property in violation of any federal, regional, state or local law,
code, ordinance, statute, rule, regulation, decision or order currently in
existence or hereafter enacted or rendered (collectively, “Hazardous Waste Laws”).
Borrower shall give Lender prompt Written Notice (as hereinafter defined) of
any claim by any person, entity, or governmental agency that a significant
release or disposal of Hazardous Materials has occurred in, on, over, under or
about the Property, including the ground water of the Property, in excess of
those permitted by the Hazardous Waste Laws, whether caused by the Borrower,
any tenant or any third party. Borrower, through its professional engineers and
at the Borrower’s sole cost, shall promptly and thoroughly investigate any
suspected release of Hazardous Materials in, on, over, under or about the
Property, including the ground water of the Property. Borrower shall forthwith
remove, repair, remediate, clean up, and/or detoxify any Hazardous Materials
found in, on, over, under or about the Property or in the ground water of the
Property to the extent such actions are required by any applicable Hazardous
Waste Laws, and whether or not Borrower was responsible for the existence of
the Hazardous Materials in, on, over, under or about the Property or the ground
water of the Property. Hazardous Materials shall include, but not be limited
to, substances defined as “hazardous substances”, “hazardous materials”, or “toxic
substances” in The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by The Superfund Amendments and
Reauthorization Act of 1986, The Hazardous Materials Transportation Act, The
Resource Conservation and Recovery Act of 1976, as amended by The Used Oils
Recycling Act of 1980, The Solid Waste Disposal Act Amendment of 1984, The
Toxic Substances Control Act, The Clean Air Act, The Clean Water Act or under
any Hazardous Waste Laws (as defined in the Indemnity Agreement of even date
herewith executed by Borrower). In addition, Borrower shall not incorporate any
underground storage tanks into the Real Property without the prior written
consent of Lender, and shall insure that all tanks currently on the Real
Property comply with current Hazardous Waste Laws and underground storage tank
regulations and are properly registered.


 


Borrower hereby agrees to
indemnify and defend Lender and hold Lender harmless from and against any and
all losses, liabilities, damages, injuries, costs, expenses, fines, fees,
suits, actions, debts, obligations, and claims of any and every kind
whatsoever, including Reasonable Attorneys’ Fees (collectively, “Losses”) paid,
incurred or suffered by, or asserted against, Lender for, with respect to, or
as a direct or indirect result of, the presence in, on, over, under or about,
or the escape, seepage, leakage, spillage, discharge, emission or release from,
the Property of any Hazardous Materials (including, without limitation, any
losses, liabilities, damages, injuries,


 


6

















 


costs,
expenses or claims asserted or arising under any Hazardous Waste Laws),
regardless of the source of origination and whether or not caused by, or within
the control of. Borrower AND INCLUDING ANY CLAIMS
OF LENDER’S NEGLIGENCE OR STRICT LIABILITY, but excluding Lender’s
willful misconduct or gross negligence.


 


Liability under this
Section 3(b) and similar provisions in this Mortgage and the other
Loan Documents concerning Hazardous Materials shall survive repayment of the
Note and satisfaction of this Mortgage; provided, however, Borrower shall have
no liability under this Section 3(b) regarding Hazardous Materials if
either (i) the Property becomes contaminated subsequent to Lender’s
acquisition of the Property by taking possession after a default by Borrower,
foreclosure, acceptance by Lender of a deed in lieu thereof, or subsequent to
any transfer of ownership of the Property which was approved or authorized by
Lender in writing, pursuant to this Mortgage, provided that such transferee
assumes in writing all of the obligations of Borrower with respect to Hazardous
Materials pursuant to the Loan Documents, or (ii) at such time Borrower
provides Lender with an environmental assessment report acceptable to Lender,
in Lender’s sole discretion, showing the Property to be free of Hazardous
Materials and not in violation of any Hazardous Waste Laws. The burden of proof
under this Section 3(b) with regard to establishing the date upon
which any Hazardous Materials was released in, on, over, under or about the
Property shall be upon Borrower.


 


(c)                               Borrower at all times shall maintain the
Property in full compliance with all federal, state, county, regional or local
laws, codes, ordinances, rules, regulations, decisions and orders currently in
existence or hereafter enacted or rendered, governing accessibility for the
disabled, including but not limited to: The Architectural Barriers Act of 1968;
The Rehabilitation Act of 1973; The Fair Housing Act of 1988; The Americans
with Disabilities Act; and The Florida Elimination of Architectural Barriers
Act (collectively, the “Accessibility Laws”).


 


Borrower hereby agrees to
indemnify and defend Lender and hold Lender harmless from and against any and
all Losses paid, incurred or suffered by, or asserted against Lender for, with
respect to, or as a direct or indirect result of, the non-compliance of the
Property with the Accessibility Laws whether or not caused by, or within the
control of, Borrower, AND INCLUDING ANY CLAIMS
OF LENDER’S NEGLIGENCE OR STRICT LIABILITY, but excluding Lender’s
willful misconduct or gross negligence.


 


Liability under this
Section 3(c) and similar provisions in this Mortgage and the other
Loan Documents concerning Accessibility Laws shall survive repayment of the
Note and satisfaction of this Mortgage; provided, however, Borrower shall not
be liable under this Section 3(c) for compliance with any
Accessibility Laws if such Accessibility Laws first become effective, or such violations
result from alterations or improvements to the Property that are performed
subsequent to Lender’s acquisition of the Property by taking possession after a
default by Borrower, foreclosure or acceptance of a deed in lieu thereof or
subsequent to any transfer which was approved or authorized by Lender pursuant
to this Mortgage, provided that such transferee assumes in. writing all
obligations pertaining to the Accessibility Laws pursuant to this Mortgage and
the other Loan Documents. The burden of proof under this
Section 3(c) with regard to establishing the date upon which such
non-compliance with any Accessibility Laws occurred at the Property shall be
upon Borrower.


 


7

















 


Lender, and/or its agents, shall have the right and shall be permitted,
but shall not be required, at all reasonable times, to enter upon and inspect
the Property to insure compliance with the foregoing covenants, and any and all
other terms, covenants, conditions and agreements set forth in this Mortgage.


 


4.                                      Payment of Taxes, Assessments and Other
Charges. Borrower shall pay
all taxes, assessments and other charges as already levied or assessed, or that
may be hereafter levied or assessed, upon or against the Property, when the
same shall become due and payable according to Law, before delinquency, and
before any interest or penalty shall attach thereto, and to deliver official
receipts evidencing the payment of the same to Lender not later than thirty
(30) days following the payment of the same. Borrower shall have the right to
contest, in good faith and in accordance with applicable Laws and procedures,
the proposed assessment of ad valorem taxes or special assessments by
governmental authorities having jurisdiction over the Property; provided, however,
Borrower shall give Written Notice of its intent to bring such an action to
Lender, and Lender may, in its sole discretion, require Borrower to post a bond
or other collateral satisfactory to Lender (and acceptable to the title company
insuring this Mortgage) as a result of Borrower’s act,


 


5.                                      Payment of Liens, Charges and Encumbrances. Borrower shall immediately pay and
discharge from time to time when the same shall become due, all lawful claims
and demands of mechanics, materialmen, laborers, realtors, brokers and others
which, if unpaid, might result in, or permit the creation of, a lien, charge or
encumbrance upon the Property or any part thereof, or on the Rents, arising
therefrom and, in general, to do or cause to be done everything necessary so
that the lien of this Mortgage shall be fully preserved, at the sole cost of
Borrower, without expense to Lender. Borrower shall have the right to contest,
in good faith and in accordance with applicable Laws and procedures, mechanics’,
materialmen’s and other such liens filed against the Property; provided
however, that Borrower shall give Written Notice to Lender of its intent to
bring such action, and Lender may, in Lender’s sole discretion, require
Borrower to post a bond or other collateral satisfactory to Lender (and
acceptable to the title company insuring this Mortgage) as a result of Borrower’s
act.


 


6.                                  Payment of Junior Encumbrances. Borrower shall permit no default or
delinquency under any other lien, imposition, charge or encumbrance against the
Property, even though junior and inferior to the lien of this Mortgage;
provided however, the foregoing shall not be construed to permit any such
additional lien or encumbrance against the Property, other than the Permitted
Exceptions.


 


7.                                  Payment of Mortgage Taxes. Borrower shall pay any and all taxes which
may be levied or assessed directly or indirectly upon the Note and/or this
Mortgage (except for income taxes payable by Lender) or the Loan secured
hereby, without regard to any Law which may be hereafter enacted imposing
payment of the whole or any part thereof upon Lender, its successors or
assigns. Upon violation of this covenant, or upon the rendering by any court of
competent jurisdiction of a decision that such a covenant by Borrower is
legally inoperative, or if any court of competent jurisdiction shall render a
decision that the rate of said tax when added to the rate of interest provided
for in the Note exceeds the then maximum rate of interest allowed by Law, then,
and in any such event, the debt hereby secured shall, at the option of Lender,
its successors or assigns, become immediately due and payable, anything
contained in this Mortgage or in the


 


8

















 


Note secured hereby notwithstanding, without the imposition of a
Prepayment Premium (as defined in the Note). The additional amounts which may
become due and payable hereunder shall become a part of the Loan secured by
this Mortgage.


 


8.                                     Hazard Insurance. Borrower shall continuously, during the term
of this Mortgage, keep the Improvements, Appurtenances, and Fixtures and
Personal Property, now or hereafter existing, erected, installed and located in
or upon the Real Property, insured with extended coverage insurance (provided,
however, Borrower is not required to maintain such insurance for the Real
Property currently occupied by Burger King, Bank of America or Crabby Jack’s
for so long as Borrower owns only the Real Property occupied by such tenants and
not the Improvements located upon such Real Property), excluding tenant
improvements owned by tenants against loss or damage resulting from fire,
windstorm, flood, sinkhole, earthquake, mine subsidence, acts of terrorism, and
such other hazards, casualties, contingencies and perils including, without limitation,
other risks insured against by persons operating like properties in the
locality of the Property, or otherwise deemed necessary or advisable by Lender,
on such forms and with such deductibles as may be required by Lender, covering
the Property in the amount of the full replacement cost thereof, (without
taking into account any depreciation) less excavating and foundation costs, and
covering all loss or abatement of rental or other income, without a provision
for co-insurance, in an amount equal to the scheduled rental income of the
Property for at least twelve (12) months, or if applicable, business
interruption insurance in an amount sufficient to pay debt service on the Note,
operating expenses, taxes and insurance on the Property for a period of twelve
(12) months, and covering loss by flood (if the Property lies in a Special Flood
Hazard Area as designated on the Department of Housing and Urban Development’s
Maps, or other flood prone designation) in an amount equal to the amount
available under the Federal Flood Insurance Program which currently is $500,000.00
per building, and earthquake insurance with a deductible amount of no more than
ten percent (10%) of the policy amount, if the Property is located within
one-half (1/2) mile of an Alquist-Priolo Special Earthquake Study Zone or if,
in the judgment of Lender’s inspecting architect, the Property lies in an area
of anticipated significant seismic activity, and “Ordinance or Law Coverage” or
“Enforcement” endorsements in amounts satisfactory to Lender if any of the
Improvements or the use of the Property shall at any time constitute -legal
non-conforming structures or uses or the ability to rebuild the Improvements is
restricted or prohibited, and comprehensive boiler and machinery insurance (without
exclusion for explosion), if applicable, in amounts as shall be reasonably
required by Lender and covering all boilers or other pressure vessels,
machinery and equipment located at or about the Property (including, without
limitation, electrical equipment, sprinkler systems, heating and air
conditioning equipment, refrigeration equipment and piping). All such insurance
shall be carried with a company or companies licensed to do business in the
state where the Property is located, which is acceptable to Lender, which
company or companies shall have a rating at the time this Mortgage is executed
equivalent to at least A:X as shown in the most recent Best’s Key Rating Guide.
The original policy or policies and renewals thereof (or, at the sole option of
Lender, duplicate originals or certified copies thereof), together with
receipts evidencing payment of the premium therefor, shall be deposited with,
held by and are hereby assigned to, Lender as additional security for the Loan
secured hereby. Each such policy of insurance shall contain a noncontributing
loss payable clause in favor of and in a form acceptable to Lender, and shall
provide for not less than thirty (30) days prior Written Notice to Lender of
any intent to modify, non-renew, cancel or terminate the policy or policies, or
the expiration of such policies of insurance, or the exclusion of any


 


9

















 


individual
risk such as acts of terrorism. If the insurance required under this
Section 8 or any portion thereof is maintained pursuant to a blanket
policy, Borrower shall furnish to Lender a certified copy of such policy,
together with an original Evidence of Insurance Certificate (Acord
Form 27} for hazard insurance indicating that Lender is an additional
insured under such policy in regard to the Property and showing the amount of
coverage apportioned to the Property, which coverage shall be in an amount
sufficient to satisfy the requirements hereof. Not less than fifteen (15) days
prior to the expiration dates of each policy required of Borrower hereunder,
Borrower will deliver to Lender a renewal policy or policies marked “premium
paid” or accompanied by other evidence of payment and renewal satisfactory to
Lender. In the event of foreclosure of this Mortgage or other transfer of title
to the Property in extinguishment of the Loan secured hereby, all right, title
and interest of Borrower, in and to any insurance policies then in force
including any rights to unearned premiums, and in and to insurance proceeds
then payable, shall pass to the purchaser or grantee.


 


In the event of loss by
reason of hazards, casualties, contingencies and perils for which insurance has
been required by Lender hereunder, Borrower shall give immediate notice thereof
to Lender. Lender is hereby irrevocably appointed attorney-in-fact coupled with
an interest for Lender to, at its option, make proof of loss and/or to file a
claim thereunder. Each insurance company concerned is hereby notified,
authorized and directed to make payment for such loss directly to Lender,
instead of to Borrower and Lender jointly, and Borrower hereby authorizes
Lender to adjust and compromise any losses for which insurance proceeds are
payable under any of the aforesaid insurance policies and, after deducting the
costs of collection, to apply the proceeds of such insurance, at its option,
and subject to the terms of any Major Tenant Leases, either: (a) to the
restoration or repair of the insured Improvements, Appurtenances, and Fixtures
and Personal Property, provided that, in the opinion and sole discretion of
Lender, such restoration or repair is reasonably practical and, provided
further, that, in the opinion and sole discretion of Lender, either:
(i) the insurance proceeds so collected are sufficient to cover the cost
of such restoration or repair of the damage or destruction with respect to
which such proceeds were paid, or (ii) the insurance proceeds so collected
are not sufficient alone to cover the cost of such restoration or repair, but
are sufficient therefor when taken together with funds provided and made
available by Borrower from other sources; in which event Lender shall make such
insurance proceeds available to Borrower for the purpose of effecting such
restoration or repair; but Lender shall not be obligated to see to the proper
application of such insurance proceeds nor shall the amount of funds so
released or used be deemed to be payment of or on account of the Loan secured
hereby; or (b) to the reduction of the Loan, notwithstanding the fact that
the amount owing thereon may not then be due and payable or that said Loan is
otherwise adequately secured, in which event such proceeds shall be applied at
par against the Loan secured hereby and the monthly payment due on account of
such Loan shall be reduced accordingly as calculated by Lender. None of such
actions taken by Lender shall be deemed to be or result in a waiver or
impairment of any equity, lien or right of Lender under and by virtue of this
Mortgage, nor will the application of such insurance proceeds to the reduction
of the Loan serve to cure any default in the payment thereof. In the event of
foreclosure of this Mortgage or other transfer of title to the Property in
extinguishment of the Loan secured hereby, all right, title and interest of
Borrower in and to any insurance policies then in force, including any rights
to unearned premiums and in and to insurance proceeds then payable, shall pass
to the purchaser or grantee. Notwithstanding the foregoing, Borrower shall be
entitled to compromise any losses


 


10

















 


pursuant to this paragraph provided that Borrower is not in default of
the Note, this Mortgage, or the other Loan Documents.


 


In case of Borrower’s
failure to keep the Property properly insured as required herein, Lender, its
successors or assigns, may, at its option (but shall not be required to)
acquire such insurance as required herein at Borrower’s sole expense.


 


Notwithstanding anything set
forth in this Section 8 to the contrary, in the event of loss or damage to
the Property by fire or other casualty for which insurance has been required by
Lender and provided by Borrower, and the amount of such loss or damage does not
exceed twenty-five percent (25%) of the unpaid principal balance of the Note,
Lender hereby agrees to allow the proceeds of insurance to be used for the
restoration of the Property and to release such insurance proceeds to Borrower
as such restoration progresses, provided:


 


(a)                               Borrower is not in default under any of the
terms, covenants and conditions of this Mortgage, the Note or any of the other
Loan Documents;


 


(b)                              The Improvements, after such restoration,
shall be at least eighty percent (80%) leased pursuant to leases approved in
writing by Lender unless restoration is required pursuant to the Major Tenant
Lease(s);


 


(c)                               The plans and specifications for the
restoration of the Property are approved in writing by Lender in advance;


 


(d)                              At all times during such restoration,
Borrower has deposited with Lender funds which, when added to the insurance
proceeds received by Lender, are sufficient to complete the restoration of the Property
in accordance with the approved plans and specifications, and all applicable building
codes, zoning ordinances, regulations and Accessibility Laws, and further, that
the funds retained by Lender are sufficient to complete the restoration of the
Property as certified to Lender by Lender’s inspecting architect/engineer;


 


(e)                           Borrower provides suitable completion,
payment and performance bonds, builders’ all risk insurance, and all necessary
licenses and permits for such restoration in form and amount acceptable to
Lender, provided however, that Borrower shall not be required to provide
completion, payment and performance bonds in the event that Borrower, or an
affiliate of Borrower acceptable to Lender, is performing such restoration as a
licensed Florida contractor;


 


(f)                             The insurer under such policies of fire or
other casualty insurance does not assert any defense to payment under such policies
against Lender, Borrower, any tenant, or third party of Borrower with regard to
the Property;


 


(g)                          Lender shall have the option, upon the
completion of such restoration of the Property, to apply any surplus insurance
proceeds remaining after the completion of such restoration, at par, to the reduction
of the outstanding principal balance of the Note; notwithstanding the fact that
the amount owing thereon may not then be due and payable or that said Loan is
otherwise adequately secured;


 


11

















 


(h)                                  The funds held by Lender shall be disbursed
no more often than once per month and in not more than five (5) increments
of not less than FIFTY THOUSAND AND NO/100 DOLLARS (550,000.00) each, except
the final disbursement of such funds which may be in an amount less than FIFTY
THOUSAND AND NO/100 DOLLARS ($50,000.00);


 


(i)                                     Lender’s obligation to make any such
disbursement shall be conditioned upon Lender’s receipt of written
certification from Lender’s inspecting architect/engineer (whose fees shall be
reimbursed to Lender by Borrower) that all construction and work for which such
disbursement is requested has been substantially completed in accordance with
the approved plans and specifications and in accordance with all applicable
building codes, zoning ordinances and all other Laws and, further, that
Borrower has deposited with Lender sufficient funds to complete such
restoration in accordance with Section 8(d); and


 


(j)                                    Lender shall be entitled to require and to
impose such other conditions to the release of such funds as would be
customarily or reasonably be required and imposed by local construction lenders
for a project of similar nature and cost.


 


9.                                     Liability Insurance. Borrower shall carry and maintain such commercial
general liability insurance as may from time to time be required by Lender,
taking into consideration the type of property being insured and the
corresponding liability exposure, on forms, with deductibles, in amounts and
with such company or companies licensed to do business in the state where the
Property is located and as may be acceptable to Lender. All such commercial
general liability insurance shall be carried with a company or companies which
have and maintain a rating equivalent to at least A:X as shown in the most
recent Best’s Key Rating Guide. The original policy or policies and all
renewals thereof (or, at the sole option of Lender, duplicate originals or
certified copies thereof), together with a Certificate of Insurance (Acord
Form 25S) and receipts evidencing payment of the premium therefor, shall
be deposited with, held by and are hereby assigned to, Lender as additional
security for the Loan secured hereby. Such policy or policies of insurance
shall name Lender as an additional insured and shall provide for not less than
thirty (30) days prior Written Notice to Lender of any intent to modify,
cancel, non-renew, or terminate the policy or policies or the expiration of
such policy or policies of insurance, or the exclusion of any individual risk
such as acts of terrorism. Not less than fifteen (15) days prior to the
expiration dates of each policy or policies required of Borrower hereunder,
Borrower will deliver to Lender a renewal policy or policies marked “premium
paid” or accompanied by other evidence of payment and renewal satisfactory to
Lender. In the event of foreclosure of this Mortgage or other transfer of title
to the Property in extinguishment of the Loan secured hereby, all right, title
and interest of Borrower, in and to any insurance policies then in force
including any rights to unearned premiums, and in and to insurance proceeds
then payable, shall pass to the purchaser or grantee. In case of Borrower’s
failure to keep the Property properly insured as required herein, Lender, its
successors or assigns, may, at its option (but shall not be required to)
acquire such insurance as required herein at Borrower’s sole expense.


 


10.                          Compliance With Laws.


 


(a)                             Borrower shall observe, abide by and comply
with all federal, regional, state and local laws, codes, ordinances, statutes,
rules, regulations, decisions, orders, requirements or decrees relating to the
Property enacted, promulgated or issued by any federal,


 


12

















 


state,
county or local governmental or quasi-governmental authority or any agency or
subdivision thereof having jurisdiction over Borrower or the Property, which
now or hereafter affect Borrower or the Property, including Hazardous Waste
Laws and Accessibility Laws (collectively, the “Laws”), and to observe and
comply with all conditions and requirements necessary to preserve and extend
any and all rights, licenses, permits (including, but not limited to, zoning,
variances, special exceptions and nonconforming uses), privileges, franchises
and concessions which are applicable to the Property, or which have been
granted to or contracted for by Borrower in connection with any existing,
presently contemplated or future uses of the Property.


 


(b)                                 Borrower shall not engage in any transaction
which would cause any obligation, or action taken or to be taken, hereunder (or
the exercise by Lender of any of its rights under the Note, this Mortgage and
the other Loan Documents) to be a non-exempt (under a statutory or
administrative class exemption) prohibited transaction under the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”). Borrower shall
deliver to Lender such certifications or other evidence from time to time
throughout the term of this Mortgage, as requested by Lender in its sole
discretion, that (i) Borrower is not an “employee benefit plan” as defined
in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmental
plan” within the meaning of Section 3(32) of ERISA; (ii) Borrower is
not subject to state statutes regulating investments and fiduciary obligations
with respect to governmental plans; and (iii) one or more of the following
circumstances is true:


 


(i)                                   Equity interests in Borrower are publicly
offered securities, within the meaning of 29 C.F.R. § 2510.3-101(b)(2);


 


(ii)                               Less than twenty-five percent (25%) of each
outstanding class of equity interests in Borrower are held by “benefit plan
investors” within the meaning of 29 C.F.R. §2510.3-101(f)(2);or


 


(iii)                           Borrower qualifies as an “operating company”
or a “real estate operating company” within the meaning of 29 C.F.R.
§ 2510.3-101 (c) or (e) or an investment company registered
under The Investment Company Act of 1940.


 


11.                             Maintenance of Permits. Borrower shall obtain, keep and constantly
maintain in full force and effect during the entire term of this Mortgage, all
certificates, licenses and permits necessary to keep the Property operating for
the Existing Use and, except as specifically provided for in this Mortgage, not
to assign, transfer or in any manner change such certificates, licenses or
permits without first receiving the written consent of Lender.


 


12.                             Obligations of Borrower as Lessor.


 


(a)                              Borrower shall perform every obligation of
Borrower (as the landlord) and enforce every obligation of the tenant in any
and every lease, license or other occupancy agreement of or affecting the
Property or any part thereof (the “Occupancy Leases”), and not to modify,
alter, waive or cancel any such Occupancy Leases or any part thereof or rights
thereunder, without the prior written consent of Lender (but such consent shall
not be required for such action as to Occupancy Leases of three thousand (3,000)
square feet or less if such


 


13

















 


action is in the ordinary
course of business of owning and operating the Property in a prudent and
business-like manner, on then current market terms), nor collect for more than
thirty (30) days in advance of the date due any Rents that may be collectible
under any such Occupancy Leases and, except as provided for in this Mortgage,
not to assign any such Occupancy Lease(s) or any such Rents relating thereto,
to any party other than Lender, without the prior written consent of Lender.
Borrower will notify Lender in writing of any default under any Occupancy Lease.  In the event of default under any such
Occupancy Lease by reason of failure of Borrower to keep or perform one or more
of the covenants, agreements or conditions thereof, Lender is hereby authorized
and empowered, and may, at its sole option, remedy, remove or cure any such
default, and further, Lender may, at its sole option and in its sole discretion
but without obligation to do so, pay any sum of money deemed necessary by
Lender for the performance of said covenants, agreements and conditions, or for
the curing or removal of any such default, and incur all expenses and
obligations which Lender may consider necessary or reasonable in connection
therewith, and Borrower shall repay on demand all such sums so paid or advanced
by Lender together with interest thereon until paid at the lesser of either: (i) the
highest rate of interest then allowed by the Laws of the State of Florida, or,
if controlling, the Laws of the United States, or (ii) the then applicable
interest rate of the Note plus five hundred (500) basis points per annum; all
of such sums, if unpaid, shall be added to and become part of the Loan.


 


(b)           All such Occupancy Leases hereafter
made and all future leases shall be subject to the approval of Lender and: (i) shall
be at competitive market rental rates then prevailing in the geographic area
for projects used for the Existing Use comparable to the Property; (ii) shall
have lease terms of not less than three (3) years; and (iii) at
Lender’s option, shall be superior or subordinate in all respects to the lien
of this Mortgage.  Provided, however, that
Lender shall not require approval in advance of any Occupancy Leases which,
conform to the Borrower’s Form Lease (as hereinafter defined) as previously
approved by Lender, except as set forth below. 
Neither the right nor the exercise of the right herein granted unto
Lender to keep or perform any such covenants, agreements or conditions as
aforesaid shall preclude Lender from exercising its option to cause the whole
Loan secured hereby to become immediately due and payable by reason of Borrower’s
default in keeping or performing any such covenants, agreements or conditions.


 


(c)           Lender has approved a form of
Occupancy Lease to be used by Borrower in connection with the Property (the “Form Lease”).  Borrower shall not, without the prior written
consent of Lender, modify or alter the Form Lease in any material respect.  In addition, Borrower shall not, without the
prior written consent of Lender, surrender, terminate, modify or alter, either
orally or in writing, any Occupancy Lease now existing or hereafter made with
any Major Tenant (as hereinafter defined) for all or part of the Property,
permit an assignment or sublease of any such Occupancy Lease, or request or
consent to the subordination of any Occupancy Lease to any lien subordinate to
this Mortgage except as set forth in any such Occupancy Lease which has been
specifically approved by Lender.  Borrower
shall furnish Lender with copies of all executed Occupancy Leases of all or any
part of the Property now existing or hereafter made, and Borrower shall assign
to Lender (which assignment shall be in form and content acceptable to Lender),
as additional security for the Note and the Loan, all Occupancy Leases now existing
or hereafter made for all or any part of the Property.  Additionally, if any Occupancy Lease contains
a provision allowing the tenant to terminate their


 


14

















 


lease upon payment of a
lease termination fee, Borrower agrees that all such sums shall constitute
rent, and shall be paid to Lender so long as this Mortgage is in effect.


 


Notwithstanding
the foregoing approval by Lender of Borrower’s Form Lease, Lender hereby
specifically reserves the right to approve all prospective tenants under all
Occupancy Leases hereafter proposed to be made if either: (i) the term
thereof, excluding options to renew the same, exceeds five (5) years; or (ii) the
net rentable area to be occupied thereunder, including expansion options,
exceeds ten percent (10%) of the net leasable area of each of the buildings
comprising the Improvements (the tenants under such leases being hereinafter
referred to as “Major Tenants”).  Borrower
shall notify Lender in writing of all prospective Major Tenants, and shall
deliver to Lender, at Borrower’s sole cost and expense, a copy of the
prospective Major Tenant’s current financial statement and the most recent Dun &
Bradstreet credit report on said prospective Major Tenant, if available.  The financial statement delivered to Lender hereunder
shall be certified as true and correct by the Major Tenant, or, if available,
by a certified public accountant.


 


(d)           In no event shall Borrower exercise
any right to relocate any lessee outside the Property pursuant to any right set
forth in an Occupancy Lease without the prior written consent of Lender.


 


13.           Maintenance of Parking &
Access Prohibition Against Alteration: Separate Tax Lot.


 


(a)           Borrower shall construct, keep and
constantly maintain, as the case may be, all curbs, drives, parking areas and
the number of parking spaces heretofore approved by Lender, or heretofore or.  hereafter required by any Laws or any
governmental body, agency or authority having jurisdiction over Borrower or the
Property, and as required by the terms of the Occupancy Leases, and not to
alter, erect, build or construct upon any portion of the Property, any
building, structure or improvement of any kind whatsoever (except as required
by governmental laws, ordinances or regulations), the erection, building or
construction of which has not been previously approved by Lender in writing,
which approval shall be at the sole discretion of Lender.


 


(b)           Borrower shall cause the Property to
remain separately assessed for real estate tax purposes as a separate tax lot
or lots.


 


14.           Execution of Additional Documents.  Borrower shall do, make, execute,
acknowledge, witness and deliver all deeds, conveyances, mortgages, deeds of
trust, assignments, estoppel certificates, subordination non-disturbance and
attornments, notices of assignments, transfers, assurances, security
agreements, financing statements and renewals thereof, and all other
instruments or other acts necessary, as Lender shall from time to time require
for the purpose of better assuring, conveying, assigning, transferring,
securing and confirming unto Lender the Property and rights hereby encumbered,
created, conveyed, assigned or intended now or hereafter so to be encumbered,
created, conveyed or assigned, or which Borrower may now be or may hereafter
become bound to encumber, create, convey or assign to Lender, or for the
purpose of carrying out the intention or facilitating the performance of the terms
of this Mortgage, or for filing, registering or recording this Mortgage, and to
pay all filing,


 


15

















 


registration or recording
fees and all taxes, costs and other expenses, including Reasonable Attorneys’
Fees, incident to the preparation, execution, acknowledgment, delivery and
recordation of any of the same.  By
signing this Mortgage, Borrower authorizes Lender to file such financing
statements, with or without the signature of Borrower, as Lender may elect, as
may be necessary or desirable to perfect the lien of Lender’s security interest
in the Fixtures and Personal Property.  Without
limiting any other provision herein, Borrower hereby authorizes Lender to file
one or more financing statements and any renewal or continuation statements
thereof, describing the Property and the proceeds of the Property, including,
without limitation,, a financing statement covering “all assets of Borrower all
proceeds therefrom, and all rights and privileges with respect thereto”.  Borrower further authorizes Lender to file, with
or without any additional signature from Borrower, as Lender may elect, such
amendments and continuation statements as Lender may deem necessary or
desirable from time to time to perfect or continue the lien of Lender’s
security interest in the Fixtures and Personal Property.  Borrower hereby ratifies any financing
statements that may have been filed by Lender in advance of the date hereof to
perfect Lender’s security interest in the Fixtures and Personal Property.


 


15.           After Acquired Property Secured.  Borrower shall subject to the lien of this Mortgage
all right, title and interest of Borrower in and to all extensions,
improvements, betterments, renewals, substitutions and replacements of, and all
additions and appurtenances to, the Property hereinabove described, hereafter acquired
by or released to Borrower, or constructed, assembled or placed by Borrower on
the Real Property, and all conversions of the security constituted thereby, immediately
upon such acquisition, release, construction, assembling, placement or
conversion, as the case may be, and in each such case, without any further
mortgage, deed of trust, encumbrance, conveyance, assignment or other act by
Borrower, as fully, completely and with the same effect as though now owned by
Borrower and specifically described herein, but at any and all times, Borrower
will execute and deliver to Lender any and all such further assurances, mortgages,
deeds of trust, conveyances, security agreements, financing statements or
assignments thereof or security interests therein as Lender may reasonably
require for the purpose of expressly and specifically subjecting the same to
the lien of this Mortgage.


 


16.           Payments by Lender on Behalf of
Borrower.  Borrower shall make
payment of any taxes, assessments or public charges on or with respect to the
Property before the same shall become delinquent, or to make payment of any insurance
premiums or other charges, impositions, or liens herein or elsewhere required
to be paid by Borrower, or if Borrower shall fail so to do, then Lender, at its
sole option, but without obligation to do so, may make payment or payments of
the same and also may redeem the Property from tax sale without any obligation to
inquire into the validity of such taxes, assessments, charges, impositions or
liens.  In the case of any such payment
by Lender, Borrower agrees to reimburse Lender, upon demand therefor, the
amount of such payment and of any fees and expenses attendant in making the
same, together with interest thereon at the lesser of either: (a) the
highest rate of interest then allowed by the Laws of the State of Florida or,
if controlling, the Laws of the United States, or (b) the then applicable
interest rate of the Note plus five hundred (500) basis points per annum; and
until paid such amounts and interest shall be added to and become part of the
Loan secured hereby to the same extent that this Mortgage secures the repayment
of the Loan.  In making payments authorized
by the provisions of this Section 16, Lender may do so whenever, in Lender’s
sole judgment and discretion, such advance or advances are necessary or
desirable to protect the full


 


16

















 


security intended to be
afforded by this Mortgage.  Neither the
right nor the exercise of the rights herein granted to Lender to make any such
payments as aforesaid shall preclude Lender from exercising its option to cause
the Loan secured hereby to become immediately due and payable by reason of
Borrower’s default, in making such payments as hereinabove required.


 


17.           Funds Held by Lender for Taxes,
Assessments, Insurance Premiums and Other Charges.  In order to more fully protect the security
of this Mortgage, Borrower shall deposit with Lender, together with and in
addition to each monthly payment due on account of the Loan, an amount equal to
one-twelfth (1/12th) of the annual total of such taxes, assessments,
insurance premiums and other charges (all as estimated by Lender in its sole
discretion) so that, at least thirty (30) days prior to the due date thereof,
Lender shall be able to pay in full all such taxes, assessments, insurance
premiums and other charges as the same shall become due.  Lender may hold the sums so deposited without
paying interest, commingle same with its general funds and/or apply the same to
the payment of said taxes, assessments, insurance premiums or other charges as
they become due and payable.  If at any
time the funds so held by Lender are insufficient to pay such taxes,
assessments, insurance premiums or other, charges as they become due and
payable, Borrower shall immediately, upon Written Notice and demand by Lender, deposit
with Lender the amount of such deficiency. 
The failure on the part of Borrower to do so shall entitle Lender, at
Lender’s sole option, to make such payments in accordance with the rights and
pursuant to the conditions elsewhere provided in this Mortgage.  Whenever any default exists under this
Mortgage, Lender may, at Lender’s sole option but without an obligation so to
do, apply any funds so held by Lender pursuant to this Section 17 toward
the payment of the Loan, notwithstanding the fact that the amount owing thereon
may not then be due and payable or that the Loan may otherwise be adequately
secured, in such order and manner of application as Lender may elect.


 


18.           Condemnation: Eminent Domain.  All claims and rights of action for, and all awards
and other compensation heretofore or hereafter made to Borrower and all
subsequent owners of the Property in any taking by eminent domain, recovery for
inverse condemnation or by deed in lieu thereof, whether permanent or
temporary, of all or any part of the Property or any easement or any
appurtenance thereto, including severance and consequential damages and change
in grade of any way, street, avenue, road, alley, passage or public place, are
hereby assigned to Lender.  Borrower
hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an
interest, and authorizes, directs and empowers Lender, at the option of Lender
as said attorney-in-fact, on behalf of Borrower, its successors and assigns, to
adjust or compromise the claim for any such award, and alone to collect and
receive the proceeds thereof, to give proper receipts and acquittances
therefore and, after deducting any expenses of collection, at Lender’s sole
option either: Notwithstanding the foregoing, Borrower shall be entitled to compromise
any losses pursuant to this paragraph provided that Borrower is not in default
of the Note, this Mortgage, or the other Loan Documents.


 


(a)           subject to the terms of the Major
Tenant Leases, to apply the net proceeds as a credit upon any portion of the
Loan, as selected by Lender, notwithstanding the fact that the amount owing
thereon may not then be due and payable, or that the Loan is otherwise
adequately secured.  In the event Lender
applies such awards to the reduction of the outstanding Loan evidenced by the
Note, such proceeds shall be applied at par, and the monthly installments due


 


17

















 


and payable under the
Note shall be reduced accordingly as calculated by Lender; however no such
application shall serve to cure an existing default of Borrower; or


 


(b)           to hold said proceeds without any
allowance of interest, and make the same available for restoration or
rebuilding of the Improvements.  In the
event that Lender elects to make said proceeds available to reimburse Borrower
for the cost of the restoration or rebuilding of the Improvements on the Real
Property, such proceeds shall be made available in the manner and under the
same conditions as required under Section 8 hereof.  If the proceeds are made available by Lender
to reimburse Borrower for the cost of said restoration or rebuilding, any
surplus which may remain out of said award after payment of such cost of
restoration or rebuilding, shall be applied on account of the Loan at par
notwithstanding the fact that the amount owing thereon may not then be due and
payable or that the Loan may otherwise be adequately secured.


 


Borrower further
covenants and agrees to give Lender immediate notice of the actual or
threatened commencement of any proceedings under eminent domain, and to deliver
to Lender copies of any and all papers served in connection with any such
proceedings, Borrower further covenants and agrees to make, execute and deliver
to Lender, at any time or times, upon request, free, clear and discharged of
any encumbrance of any kind whatsoever, any and all further assignments and/or
other instruments deemed necessary by Lender for the purpose of validly and
sufficiently assigning all such awards and other compensation heretofore or
hereafter made to Lender (including the assignment of any award from the United
States government at any time after the allowance of the claim therefor, the ascertainment
of the amount thereof and the issuance of the warrant for payment thereof).


 


It shall be a
default hereunder if either: (i) any part of any of the Improvements
situated on the Real Property shall be condemned by any governmental authority
having jurisdiction; or (ii) lands constituting a portion of the Real
Property shall be condemned by any governmental authority having jurisdiction,
such that the remaining Property is in violation of applicable parking, zoning,
platting, or other ordinances, or fails to comply with the terms of the
Occupancy Leases with Major Tenants.  In
either of said events, Lender shall be entitled to exercise any or all remedies
provided or referenced in this Mortgage or the other Loan Documents, including
the application of condemnation proceeds to the outstanding principal balance
of the Note at par, and the right to accelerate the maturity date of the Note
and require payment in full without the imposition of a Prepayment Premium.


 


19.           Costs of Collection.  In the event that the Note is placed in the
hands of an attorney for collection, or in the event that Lender shall become a
party either as plaintiff or as defendant, in any action, suit, appeal or legal
proceeding (including, without limitation, foreclosure, condemnation,
bankruptcy, administrative proceedings or any proceeding wherein proof of claim
is by law required to be filed), hearing, motion or application before any
court or administrative body in relation to the Property or the lien and
security interest granted or created hereby or herein, or for the recovery or
protection of the Loan or the Property, or for the foreclosure of this
Mortgage, or for the enforcement of the terms and conditions of the Loan
Documents, Borrower shall indemnify, save, defend and hold Lender harmless from
and against any and all Losses incurred by Lender on account thereof, and
Borrower shall repay, on demand, all such Losses, together with interest
thereon until paid at the lesser of either (a) the highest rate


 


18

















 


of interest then allowed
by the Laws of the State of Florida, or, if controlling, the Laws of the United
States, or (b) the then applicable rate of interest of the Note plus five
hundred (500) basis points per annum; all of which sums, if unpaid, shall be
added to and become a part of the Loan.


 


20.           Default Rate.  Any sums not paid when due, whether maturing
by lapse of time or by reason of acceleration under the provisions of the Note,
this Mortgage or any of the other Loan Documents, and whether principal,
interest or money owing for advancements pursuant to the terms of this Mortgage
or any other Loan Document, shall bear interest until paid at the lesser of
either (a) the highest rate of interest then allowed by the Laws of the
State of Florida, or, if controlling, the Laws of the United States, or (b) the
then applicable rate of interest of the Note plus five hundred (500) basis
points per annum; all of which sums shall be added to and become apart of the
Loan.


 


21.           Savings Clause.  Notwithstanding any provisions in the Note or
in this Mortgage to the contrary, the total liability for payments in the
nature of interest, including but not limited to Prepayment Premiums, default
interest and late payment charges, shall not exceed the limits imposed by the
Laws of the State of Florida or, if controlling, the Laws of the United States,
relating to maximum allowable charges of interest.  Lender shall not be entitled to receive, collect
or apply, as interest on the Loan, any amount in excess of the maximum lawful
rate of interest permitted to be charged by any Laws.  In the event Lender ever receives, collects
or applies as interest any such excess, such amount which would be excessive
interest shall be applied to reduce the unpaid principal balance of the Loan
evidenced by the Note, If the unpaid principal balance of such Loan has been
paid in full, any remaining excess shall be forthwith returned to Borrower.


 


22.           Bankruptcy, Reorganization or
Assignment.  It shall be a default hereunder
if Borrower or any general partner or managing member of Borrower shall: (a) elect
to dissolve or liquidate its business organization or wind up its business
affairs without receiving the prior written approval of Lender; (b) consent
to the appointment of a receiver, trustee or liquidator of all or a substantial
part of its assets; (c) be adjudicated as bankrupt or insolvent, or file a
voluntary petition in bankruptcy, or admit in writing its inability to pay its
debts as they become due; (d) make a general assignment for the benefit of
creditors; (e) file a petition under or take advantage of any insolvency
law; (f) file an answer admitting the material allegations of a petition
filed against Borrower or any general partner or managing member of Borrower in
any bankruptcy, reorganization or insolvency proceeding, or fail to cause the
dismissal of such petition within thirty (30) days after the filing of said
petition; (g) take action for the purpose of effecting any of the
foregoing; or (h) if any order, judgment or decree shall be entered upon
an application of a creditor of Borrower or any general partner or managing
member of Borrower by a court of competent jurisdiction approving a petition
seeking appointment of a receiver or trustee of all or a substantial part of
Borrower’s assets or any of Borrower’s general partner’s or managing member’s
assets and such order, judgment or decree shall continue unstayed and in effect
for a period of thirty (30) days.


 


23.           Time is of the Essence, Monetary
and Non-Monetarv Defaults.  It is
understood by Borrower that time is of the essence hereof in connection with
all obligations of Borrower herein and any of the other Loan Documents.


 


19

















 


Lender,
at its sole option, may declare the Loan, as well as all other monies secured
or evidenced hereby or by any of the other Loan Documents, including, without
limitation, all Prepayment Premiums (to the extent permitted by the Laws of the
State of Florida) and late payment charges, to be in default and forthwith due
and payable, in the event:


 


(a)           Borrower defaults in the payment of
any monthly installment of the Note, whether of principal or interest, or both,
or in the payment of any other sums of money referred to herein or in the Note
or in any of the other Loan Documents, promptly and fully when the same shall
be due, without notice or demand from Lender to Borrower in regard to such Monetary
Default (as hereinafter defined) and any such Monetary Default remains uncured
for a period of five (5) days after Written Notice thereof has been given
by Lender to Borrower, unless Lender has previously given Borrower such Written
Notice for a failure to pay in the then- current Loan Year (as defined in the
Note), in which event no such notice need be given and no right to cure need be
afforded Borrower as to any further Monetary Default during such Loan Year.  It is understood and agreed that the
agreement of Lender to provide notice and an opportunity to cure a Monetary
Default does not waive Lender’s right to any late payment charge.


 


(b)           Borrower breaches or defaults on any
of the terms, covenants, conditions and agreements of the Note, this Mortgage,
or any other Loan Documents; or in the event that each and every one of said
terms, covenants, conditions and agreements is not otherwise either duly,
promptly and fully discharged or performed, and any such Non-Monetary Default
(as hereinafter defined) remains uncured for a period of thirty (30) days after
Written Notice thereof has been delivered from Lender to Borrower; unless such
Non-Monetary Default cannot be cured within said thirty (30) day period, in
which event Borrower shall have a reasonable period of time to complete cure,
provided that action to cure such Non-Monetary Default is promptly commenced
within said thirty (30) day period, and Borrower is, in Lender’s sole judgment,
not diminishing  or impairing the value
of the Property, and is diligently pursuing a cure to completion, but in no
event longer than ninety (90) days.


 


(c)           Any representation or warranty of
Borrower or of its members, general partners, principals, affiliates, agents or
employees, or of any Guarantor made herein or in or in any other Loan Document,
in any guaranty, or in any certificate, report, financial statement or other
instrument or document furnished to Lender shall have been false or misleading
in any material respect when made.


 


(d)           Any seizure or forfeiture of the
Property, or any portion thereof, or Borrower’s interest therein, resulting
from criminal wrongdoing or other unlawful action of Borrower, its affiliates,
or any tenant in the Property under any federal, state or local law.


 


(e)           If Borrower consummates a transaction
which would cause this Mortgage or Lender’s exercise of its rights under this
Mortgage, the Note or the other Loan Documents to constitute a nonexempt
prohibited transaction under ERISA or result in a violation of a state statute
regulating governmental plans, subjecting Lender to liability for a violation
of ERISA or a state statute.


 


20

















 


(f)            Any default occurs in the
performance of any covenant or obligation of Borrower or any other party under
any indemnity or guaranty delivered to Lender in connection with the Loan and
such default continues beyond the expiration of applicable notice and cure
periods.


 


Upon the
occurrence of any one of the above events, and at the option of Lender, the
principal of and the interest accrued on the Loan and all other sums secured by
this Mortgage and the other Loan Documents shall immediately become due and
payable as if all of said sums of money were originally stipulated to be paid
on such day.  In addition, Lender may
avail itself of all rights and remedies provided by law or equity, and may foreclose
or prosecute a suit at law or in equity as if all monies secured hereby had
matured prior to its institution, anything in this Mortgage or any of the other
Loan Documents to the contrary notwithstanding. 
Lender shall have no obligation to give Borrower notice of, or any
period to cure, any Monetary Default or any Incurable Default (as hereinafter
defined) prior to exercising its rights, powers, privileges and remedies.


 


As
used herein, the term “Monetary Default” shall mean any default which can be
cured by the payment of money such as, but not limited to, the payment of
principal and interest due under the Note, or the payment of taxes, assessments
and insurance premiums when due as provided in this Mortgage.  As used herein, the term “Non-Monetary
Default” shall mean any default that is not a Monetary Default or an Incurable
Default.  As used herein, the term “Incurable
Default” shall mean either: (i) any voluntary or involuntary sale,
assignment, mortgaging, encumbering or transfer in violation of the covenants
contained herein or any of the other Loan Documents; or (ii) if Borrower,
or any person or entity comprising Borrower or any guarantor or indemnitor of
the Loan, should breach any of the provisions of Section 22.


 


Notwithstanding
the foregoing, in the event of an environmental default, Borrower shall have a
period to cure such default and such cure period will extend as long as, in the
Lender’s sole judgment, the Borrower is diligently pursuing to cure said
default through the governing agency’s process.


 


24.           Foreclosure.  Upon the occurrence of a default hereunder,
Lender may institute an action to foreclose this Mortgage as to the amount so
declared due and payable, and thereupon the Property (or any portion thereof)
shall be sold according to law to satisfy and pay the same, together with all
costs, expenses and allowances thereof, including, without limitation,
Reasonable Attorneys’ Fees.  The Property
may be sold in one parcel several parcels or groups of parcels, and Lender
shall be entitled to bid at the sale, and, 
if Lender is the highest bidder for the Property or any part or parts
thereof, Lender shall be entitled to purchase the same.  The failure or omission on the part of Lender
to exercise the option for acceleration of maturity of the Note and foreclosure
of this Mortgage following any default as aforesaid or to exercise any other
option or remedy granted hereunder to Lender when entitled to do so in any one
or more instances, or the acceptance by Lender of partial payment of the Loan
secured hereby, whether before or subsequent to Borrower’s default hereunder,
shall not constitute a waiver of any such default or the right to exercise any
such option or remedy, but such option or remedy shall remain continuously in
force.  Acceleration of the maturity of
the Note, once claimed hereunder by Lender, at the option of Lender, may be
rescinded by written acknowledgment to that effect by Lender, but the tender
and acceptance of partial payments alone shall not in any way either


 


21

















 


affect or rescind such
acceleration of maturity, nor act as a waiver, accord and satisfaction,
modification, novation or similar defense.


 


25.           UCC Remedies.  Upon the occurrence of a default.  Lender may exercise its rights of enforcement
with respect to the Fixtures and Personal Property under the UCC, and in
conjunction with, in addition to or in substitution for those rights and
remedies:


 


(a)           Written Notice mailed to Borrower as
provided herein ten (10) days prior to the date of public sale of the
Fixtures and Personal.  Property or prior
to the date after which private sale of the Fixtures and Personal Property will
be made shall constitute reasonable notice;


 


(b)           any sale made pursuant to the
provisions of this Section shall be deemed to have been a public sale conducted
in a commercially reasonable manner if held contemporaneously with the sale of
the Mortgaged Property under power of sale as provided herein upon giving the
same notice with respect to the sale of the Fixtures and Personal Property hereunder
as is required for such sale of the Mortgaged Property under power of sale;


 


(c)           in the event of a foreclosure sale,
whether made under the terms hereof, or under judgment of a court, the Fixtures
and Personal Property and the Mortgaged Property may, at the option of Lender,
be sold as a whole;


 


(d)           it shall not be necessary that Lender
take possession of the Fixtures and Personal Property or any part thereof prior
to the time that any sale pursuant to the provisions of this Section is
conducted and it shall not be necessary that the Fixtures and Personal Property
or any part thereof be present at the location of such sale;


 


(e)           prior to application of proceeds of
disposition of the Fixtures and Personal Property to the secured indebtedness,
such proceeds shall be applied to the reasonable expenses of retaking, holding,
preparing for sale or lease, selling, leasing and the like and the Reasonable Attorneys
Fees and other legal expenses incurred by Lender;


 


(f)            any and all statements of fact or
other recitals made in any bill of sale or assignment or other instrument
evidencing any foreclosure sale hereunder as to nonpayment of the indebtedness
or as to the occurrence of any default, or as to Lender having declared all of such
indebtedness to be due and payable, or as to notice of time, place and terms of
sale and of the properties to be sold having been duly given, or as to any
other act or thing having been duly done by Lender, shall be taken as prirna
facie evidence of the truth of the facts so stated and recited;


 


(g)           Lender may appoint or delegate any
one (1) or more persons as agent to perform any act or acts necessary or
incident to any sale held by Lender, including the sending of notices and the
conduct of the sale, but in the name and on behalf of Lender; and


 


(h)           this Mortgage covers Goods which are
or are to become Fixtures related to the Real Property, and covers As-Extracted
Collateral related to the Real Property. 
A carbon, photographic or other reproduction of this Mortgage or of any
financing statement relating to this Mortgage shall be sufficient as a
financing statement.  This Mortgage shall
be effective as a financing statement filed as a fixture filing with respect to
all fixtures included within the


 


22

















 


Property and is to be
filed for record in the real estate records in the Office of the County Clerk
where the Property (including said fixtures) is situated.  This Mortgage shall also be effective as a
financing statement As-Extracted Collateral with respect to all As-Extracted
Collateral included within the Real Property (including, without limitation,
all oil, gas, other minerals, and other substances of value which may be
extracted from the earth and all accounts arising out of the sale at the
wellhead or minehead thereof), and is to be filed for record in the real estate
records of the county where the Property is situated.  The mailing address of Borrower is set forth
in Section 43 of this Mortgage and the address of Lender from which
information concerning the security interest may be obtained is the address of
Lender set forth in Section 43 of this Mortgage.


 


26.           Protection of Lender’s Security.
At any time after default hereunder, Lender, or Lender’s agents or contractors,
is authorized, without notice and in Lender’s sole discretion, to enter upon
and take possession of the Property or any part thereof, and to perform any
acts which Lender deems necessary or proper to conserve the security interest
herein intended to be provided by the Property, to operate any business or
businesses conducted thereon, and to collect and receive all Rents thereof and
therefrom, including those past due as well as those accruing thereafter.


 


27.           Appointment of Receiver.  If at any time after a default hereunder,
Lender deems, in Lender’s sole discretion, that a receivership may be necessary
to protect the Property or its Rents, whether before or after maturity of the
Note and whether before or at the time of or after the institution of
foreclosure or suit to collect the Loan or to enforce this Mortgage or any of
the other Loan Documents, Lender, as a matter of strict right and regardless of
the value of the Property or the amounts due hereunder or secured hereby, or of
the solvency of any party bound for the payment of such indebtedness, shall
have the right, upon ex parte application and without notice to anyone, and by
any court having jurisdiction, to the appointment of a receiver to take charge
of, manage, preserve, protect and operate the Property, to collect the Rents
thereof, to make all necessary and needful repairs, and to pay all taxes,
assessments, insurance premiums and other such charges against and expenses of
the Property, and to do such other acts as may by such court be authorized and
directed, and after payment of the expenses of the receivership and the
management of the Property, to apply the net proceeds of such receivership in
reduction of the Loan or in such other manner as the said court shall direct
notwithstanding the fact that the amount owing thereon may not then be due and
payable or the said Loan is otherwise adequately secured.  Such receivership shall, at the option of
Lender, continue until full payment of all sums hereby secured or until title
to the Property shall have passed by sale under this Mortgage. Borrower hereby
specifically waives its right to object to the appointment of a receiver as aforesaid,
and hereby expressly agrees that such appointment shall be made as an admitted equity
and as a matter of absolute right to Lender.


 


28.           Rights and Remedies Cumulative;
Forbearance Not a Waiver.  The rights
and remedies herein provided are cumulative, and Lender, as the holder of the
Note and of every other obligation secured hereby, may recover judgment
thereon, issue execution therefor and resort to every other right or remedy
available at law or in equity, without first exhausting any right or remedy
available to Lender and without affecting or impairing the security of any
right or remedy afforded hereby, and no enumeration of special rights or powers
by any provisions hereof shall be construed to limit any grant of general
rights or powers, or to take away or limit


 


23

















 


any and all rights
granted to or vested in Lender by law or equity.  Borrower further agrees that no delay or
omission on the part of Lender to exercise any rights or powers accruing to it
hereunder shall impair any such right or power, or shall be construed to be a
waiver of any such default hereunder or an acquiescence therein; and every
right, power and remedy granted herein or by law or equity to Lender may be
exercised from time to time as often as Lender deems expedient.


 


Lender may resort
to any security given by this Mortgage or to any other security now existing or
hereafter given to secure the payment of the Loan, in whole or in part, and in
such portions and in such order as may seem best to Lender in its sole
discretion, and any such action shall not be considered as a waiver of any of
the rights, benefits, liens or security interests evidenced by this Mortgage.  To the full extent Borrower may do so,
Borrower agrees that Borrower will not at any time insist upon, plead, claim or
take the benefit or advantage of any law now or hereafter in force pertaining
to the rights and remedies of sureties or providing for any appraisement,
valuation, stay, extension or redemption, and Borrower, for Borrower and
Borrower’s heirs, devisees, representatives, successors and assigns, and for
any and all persons ever claiming any interest in the Property, to the extent
permitted by law, hereby waives and releases all rights of redemption,
valuation, appraisement, stay of execution, notice of intention to mature or
declare due the whole of the secured indebtedness, notice of election to mature
or declare due the whole of the secured indebtedness and all rights to a
marshaling of the assets of Borrower, including the Property, or to a sale in
inverse order of .alienation in the event of foreclosure of the liens and
security interests hereby created.  Borrower
shall not have or assert any right under any statute or rule of law
pertaining to the marshaling of assets, sale in inverse order of alienation,
the exemption of homestead, the administration of estates of decedents or other
matters whatever to defeat, reduce or affect the right of Lender under the
terms of this Mortgage to a sale of the Property for the collection of the
secured indebtedness without any prior or different resort for collection, or
the right of Lender under the terms of this Mortgage to the payment of such
indebtedness out of the proceeds of sale of the Property in preference to every
other claimant whatever.  If any law
referred to in this Section and now in force, of which Borrower or
Borrower’s heirs, devisees, representatives, successors and assigns and such
other persons claiming any interest in the Property might take advantage
despite this Section, shall hereafter be repealed or cease to be in force, such
law shall not thereafter be deemed to preclude the application of this Section.


 


29.  Modification Not an Impairment of Security.  Lender, without notice and without regard to
the consideration, if any, paid therefor, and notwithstanding the existence at
that time of any inferior mortgages, deeds of trust, or other liens thereon,
may release any part of the security described herein, or may release any
person or entity liable for the Loan secured hereby without in any way
affecting the priority of this Mortgage, to the full extent of the Loan
remaining unpaid hereunder, upon any part of the security not expressly
released.  Lender may, at its option and
within Lender’s sole discretion, also agree with any party obligated on the
Loan, or having any interest in the security described herein, to extend the
time for payment of any part or all of the Loan, and such agreement shall not,
in any way, release or impair this Mortgage, but shall extend the same as
against the title of all parties having any interest in said security, which
interest is subject to this Mortgage.


 


24

















 


30.           Property Management and Leasing.  The exclusive manager of the Property shall be
Borrower, or such other manager as may be first approved in writing by Lender.  The exclusive leasing agent of the Property,
if other than Borrower or the foregoing party, shall be first approved in
writing by Lender.  The management and
leasing contracts (or in the absence of any such written contract, a letter so
stating and further identifying the name of the person or entity charged with
the responsibility for managing and/or leasing the Property) shall be subordinate
to this Mortgage, and satisfactory to and subject to the prior written approval
of Lender throughout the term of the Loan. 
Upon default in either of these requirements, then the whole of the Loan
hereby secured shall, at the election of Lender, become immediately due and payable,
together with any Prepayment Premium, late payment charges and all other sums required
by the Note or the other Loan Documents, and Lender shall be entitled to
exercise any or all remedies provided for or referenced in this Mortgage.


 


31.           Modification Not a Waiver.  In the event Lender (a) releases, as
aforesaid, any part of the security described herein or any person or entity
liable for the Loan; (b) grants an extension of time for the payment of
the Note; (c) takes other or additional security for the payment of the
Note; or (d) waives or fails to exercise any rights granted herein, in the
Note, or any of the other Loan Documents, any said act or omission shall not
release Borrower, subsequent purchasers of the Property or any part thereof, or
makers, sureties, endorsers or guarantors of the Note, if any, from any
obligation or any covenant of this Mortgage, the Note or any of the other Loan
Documents, nor preclude Lender from exercising any right, power or privilege
herein granted or intended to be granted in the event of any other default then
made, or any subsequent default.


 


32.           Transfer of Property or
Controlling Interest in Borrower; Assumption.  Except as set forth in Section 38(b) hereof,
without the prior written consent of Lender, the sale, transfer, assignment or
conveyance of all or any portion of the Property, or the transfer, assignment
or conveyance of a controlling interest in Borrower or its general partner or
managing member, or any guarantor, whether voluntary or by operation of law,
without the prior written consent of Lender, shall constitute a default hereunder,
and entitle Lender, at Lender’s sole option, to accelerate all sums due on the
Note, together with any Prepayment Premiums (to the extent permitted by the
Laws of the State of Florida), late payment charges or any other amounts secured
hereby.  Lender may, however, elect to
waive the option to accelerate granted hereunder if,  prior to any such sale, transfer, assignment
or conveyance of the Property, the following conditions shall be fully
satisfied: (a) Lender acknowledges in writing that, in Lender’s sole discretion,
the creditworthiness of the proposed transferee and the ability and experience
of the proposed transferee to operate the Property are satisfactory to Lender; (b) Lender
and the proposed transferee shall enter into an agreement in writing that (i) the
rate of interest payable on the Loan secured hereby shall be at such rate as
Lender shall determine, (ii) the repayment schedule as set forth in
the Note shall be modified by Lender, in Lender’s sole discretion, to initiate
amortization or modify the existing amortization schedule in order to
amortize the then remaining unpaid principal balance of the Note secured hereby
over a period of time as determined by Lender, in Lender’s sole discretion,
without a change in the maturity date of the Note, and (iii) the proposed
transferee shall assume all obligations of Borrower under the Note, this
Mortgage and the other Loan Documents in writing and an assumption fee, to be
determined by Lender in Lender’s sole discretion, may be charged by Lender; (c) Lender
shall receive, for Lender’s review and approval, copies of all transfer
documents; and (d) Borrower or the


 


25

















 


transferee shall pay all
costs and expenses in connection with such transfer and assumption, including,
without limitation, all fees and expenses incurred by Lender.


 


Borrower, or any
subsequent owner of the Property or any portion thereof, shall do all things
necessary to preserve and keep in full force and effect its and their legal
existence, franchises, rights and privileges as a corporation, partnership or
limited liability company, as the case may be, under the laws of the State of
its formation and its right to own property and transact business in the State
of Florida.  It shall be a default
hereunder if Borrower, or any subsequent owner of the Property or any portion
thereof, shall amend, modify, transfer, assign or terminate the applicable
governing documents for such entity, including its partnership agreement,
certificate of partnership, operating agreement, articles of organization,
regulations, articles of incorporation or bylaws, as the case may be (as
applicable, the “Governing Documents”), of Borrower or such subsequent owner
without the prior written consent of Lender. 
Borrower, or such subsequent owner of the Property, shall provide Lender
with copies of any proposed amendment to its applicable Governing Documents, so
that Lender may, in Lender’s sole discretion, determine whether such amendment
adversely affects Lender, the Property or the security value thereof.  Provided, however, that any amendment,
modification, transfer, assignment or termination of Borrower’s applicable
Governing Documents or any other action pursuant to which the current general
partner or managing member of Borrower shall either: (i) cease to be the
general partner or managing member of Borrower; or (ii) except to the
extent permitted herein, cease to own or maintain a partnership or membership
interest in Borrower equal to or greater than its partnership or membership
interest at the time this Mortgage is executed, shall be deemed to have a
material adverse effect upon Lender and the Property, and shall be a default
hereunder.


 


Borrower shall not
change its name or identity in any manner which may make any financing or
continuation statement filed in connection with the Loan seriously misleading
within the meaning of the UCC enacted in the State of Florida or change its
jurisdiction of organization unless Borrower shall have delivered to Lender
written notice thereof not less than thirty (30) days before the effective date
of such change and shall have taken all action which Lender determines to be
reasonably necessary or desirable to confirm and protect Lender’s security
interests and rights under this Mortgage and the perfection and priority
thereof.  Borrower will not change its
principal places of business unless it shall have given Lender prior written
notice of its intent to do so not less than thirty (30) days in advance of the
effective date of such change.  Borrower
shall bear all costs incurred by Lender in connection with any such change
including, without limitation, Reasonable Attorney’s Fees.


 


In the event the
ownership of the Property, or any part thereof, shall become vested in a person
or entity other than Borrower, whether with or without the prior written
consent of Lender, Lender may, without notice to Borrower, deal with such
successor or successors in interest with reference to the Property, this
Mortgage and the other Loan Documents, in the same manner and to the same
extent as with Borrower without in any way vitiating or discharging Borrower’s
liability hereunder or under any of the Loan Documents.  No sale, transfer or conveyance of the
Property, no forbearance on the part of Lender and no extension of time given
by Lender to Borrower for the payment of the Note shall operate to release,
discharge, modify, change or affect the original liability of Borrower, either
in whole or in part, unless expressly set forth in writing executed by Lender.  Notwithstanding anything contained herein to
the contrary,


 


26

















 


Borrower hereby waives
any right it now has or may hereafter have to require Lender to prove an
impairment of its security as a condition to the exercise of Lender’s rights
under this Section 32.


 


A
sale, transfer, assignment or conveyance within the meaning of this Section shall
be deemed to include, but not be limited to: (a) an installment sales
agreement wherein Borrower agrees to sell the Property or any part thereof for
a price to be paid in installments; (b) an agreement by Borrower leasing
all or a substantial part of the Property for other than actual occupancy by a
tenant under an Occupancy Lease or a sale, assignment or other transfer of, or
the grant of a security interest in, Borrower’s right, title and interest in
and to any leases or any Rents; (c) if Borrower, any guarantor, any
indemnitor, or any general partner or managing member of Borrower, is a
corporation, the voluntary or involuntary sale, conveyance, transfer or pledge
of such corporation’s stock (or the stock of any corporation directly or
indirectly controlling such corporation by operation of law or otherwise), or
the creation or issuance of new stock by which an aggregate of more than ten
percent (10%) of such corporation’s stock shall be vested in a party or parties
who are not now stockholders; and (d) if Borrower, any guarantor,
indemnitor, or any general partner or managing member of Borrower, is a limited
partnership, general partnership, limited liability partnership, limited
liability company, or joint venture, the change, removal or resignation of a
general partner, managing partner, or member, or the transfer or pledge of the
interest of any general partner, managing partner, or member or any profits or
proceeds relating to such interest.


 


Notwithstanding
anything contained in this Section 32 to the contrary:


 


(A)          as long as no default, or event which,
with notice or the passage of time or both, could result in a default, has
occurred hereunder or any of the other Loan Documents, Lender shall permit: one
(1) bona fide arm’s length transfer of the Property to another borrowing
entity without a change in the terms of the Loan; provided, however, that no
such transfer shall be valid or permitted hereunder unless: (i) Lender
receives prior Written Notice of such proposed transfer; (ii) such
proposed transferee and any substitute guarantor has been approved in writing
by Lender (taking into consideration such factors as transferee’s
creditworthiness, business experience, financial condition and managerial
capabilities); (iii) if applicable, the delivery to Lender of an
endorsement (at Borrower’s sole cost and expense) to Lender’s policy of title
insurance then insuring the lien created by this Mortgage in form and substance
acceptable to Lender in its sole judgment; (iv) Lender is paid a cash
assumption fee in the amount of one percent (1%) of the then outstanding
principal balance of the Note; (v) Borrower pays all fees and expenses
incurred by Lender in connection with such transfer and assumption, including,
without limitation, inspection and investigation fees, title insurance charges,
and Reasonable Attorneys’ Fees; (vi) such proposed transferee assumes in
writing all obligations of Borrower under the Note, this Mortgage and the other
Loan Documents, with the same degree of liability as Borrower; and (vii) Lender
approves the management agreement and leasing agreement and the management and
leasing company to be employed by the proposed transferee.  Any transfer of all or any portion of the
Property which does not strictly comply with the terms and conditions of the
foregoing shall be a default hereunder and shall entitle Lender to exercise all
rights and remedies provided in this Mortgage and the other Loan Documents.  This one (l)-time right of transfer shall
apply to the Borrower named herein and not to any subsequent owner of the
Property.


 


27

















 


(B)           without limiting the generality of
the fifth unnumbered paragraph of this Section 32, as long as no default
which remains uncured following the giving of any required notice and the
expiration of any applicable grace period, has occurred hereunder, under the
Note or any of the other Loan Documents, Lender shall permit the transfer or
distribution of partnership interests in the Borrower provided such transfer or
distribution is made (i) to any other partner of Borrower (which shall
include W. Douglas Pitts or Kiki L. Courtelis, either individually or as
Trustee of the Courtelis Investment Trust, created under the Alec P. Courtelis
Declaration of Trust, dated April 8, 1994, a Florida trust); (ii) to
any member of the immediate family of any such partner including spouse, children,
or grandchildren; (iii) to any trust for the benefit of any of the parties
referred to in (i) or (ii) above provided that The Courtellis Company
maintains management and operating control or maintains majority ownership
interest of the Property and Borrower; and (iv) pursuant to operation of
law upon death of a partner of Borrower. 
Provided however, that no such transfer shall be valid or permitted
hereunder unless: (i) Lender receives prompt Written Notice of such
transfer; (ii) such transfers shall not release the original partners of
Borrower and their estate from liability under the loan to the extent there was
liability; (iii) the transferee(s) shall assume in writing all
obligations, if any, of the respective transferor(s) under the security documents;
and (iv) Borrower shall pay all fees and expenses incurred by Lender in
connection with such transfer and assumption. 
The transfers referred to in this Section 32(B) shall neither
result in the acceleration of the indebtedness evidenced by the Note, nor
invoke the assumption fee referred to in Section 32(A), nor change the
monthly payment due under the Note.


 


33.           Further Encumbrance Prohibited;
Subrogation.  So long as the Note
remains unpaid, Borrower shall not, either voluntarily or involuntarily, permit
the Property or any part thereof to become subject to any secondary or
subordinate lien, mortgage, deed of trust, security interest or encumbrance of
any kind whatsoever without the prior written consent of Lender, and the
imposition of any such secondary lien, mortgage, deed of trust, security
interest or encumbrance (other than a construction lien which shall be disposed
of promptly pursuant to Section 5 hereinabove) without the approval of
Lender shall constitute a default hereunder, and entitle Lender, at Lender’s
sole option, to declare the outstanding principal balance of the Note, all
accrued and unpaid interest thereon, Prepayment Premiums (to the extent
permitted by the laws of the State of Florida, late payment charges and any
other amounts secured hereby to be and become immediately due and payable in
full.  In the event that Lender shall
hereafter give its written consent to the imposition of any such secondary
lien, mortgage, deed of trust, security interest or other encumbrance upon the
Property, Lender, at Lender’s sole option, shall be entitled to accelerate the
maturity of the Note and exercise any and all remedies provided and available
to Lender hereunder and in the other Loan Documents in the event that the
holder of any such secondary lien or encumbrance shall institute foreclosure or
other proceedings to enforce the same; it being understood and agreed that a
default under any instrument or document evidencing, securing or secured by any
such secondary lien or encumbrance shall be and constitute a default hereunder.  In the event all or any portion of the
proceeds of the Loan are used for the purpose of retiring debt or debts secured
by prior liens on the Property, Lender shall be subrogated to the rights and
lien priority of the holder or holders of the lien or liens so discharged.


 


Notwithstanding
the above, secondary financing of the Property shall be permitted after the
second anniversary of the date of funding of the Note as long as: (i) Borrower
is not in


 


28

















 


default under the terms,
conditions and provisions of this Mortgage or any of the other Loan Documents; (ii) the
aggregate indebtedness placed upon the Property (which indebtedness shall
include the Loan) does not exceed a loan to value ratio of eighty percent
(80%); (iii) the net operating income generated by the Property (defined
as annual rental income, minus annual taxes and all annual operating expenses)
covers the annual debt service on the Note and on such secondary financing at
least one and one quarter (1.25) times; (iv) the secondary financing loan
documents provide for a fixed rate of interest on the secondary loan; (v) must
fully amortize on a straight line basis no later than the maturity date set
forth in the Note, and (vi) must be nonrecourse to the Borrower and its
principals to the same extent as the Loan. 
Lender shall have the right to approve the lender under any proposed
secondary financing, and to review and approve any and all documentation with
respect to such secondary financing.  All
costs and expenses incurred in connection with such secondary financing shall
be borne by Borrower.


 


34.           Conveyance of Mineral Rights
Prohibited.  Borrower agrees that the
making of any oil, gas or mineral lease, or the sale or conveyance of any
mineral interest or right to explore for minerals under, through or upon the
Property, would impair the value of the Property, and that Borrower shall have
no right, power or authority to lease the Property, or any part thereof, for
oil, gas or other mineral purposes, or to grant, assign or convey any mineral
interest of any nature, or the right to explore for oil, gas and other
minerals, without first obtaining Lender’s express written permission therefor,
which permission shall not be valid until recorded among the Public Records of
Broward County, in the State of Florida. 
Borrower further agrees that if Borrower shall make, execute, or enter
into any such lease or attempt to grant any such mineral rights without such
prior written, permission of Lender, then Lender shall have the option, without
notice, to declare the same to be a default hereunder, and to declare the Loan immediately
due and payable in full.  Whether or not
Lender shall consent to such lease or grant of mineral rights, Lender shall
receive the entire consideration to be paid for any such lease or grant of
mineral rights, with the same to be applied to the Loan notwithstanding the
fact that the amount owing thereon may not then be due and payable or that the
Loan is otherwise adequately secured; provided, however, that the acceptance of
such consideration shall in no way impair the lien of this Mortgage on the
Property or cure any existing Monetary Default.


 


35.           Estoppel Certification by Borrower.  Borrower, upon request of Lender therefor made
either personally or by mail, shall certify in writing to Lender (or any party
designated by Lender), in a form satisfactory to Lender or such designee, the
amount of principal and interest then outstanding under the terms of the Note
and any other sums due and owing under this Mortgage or any of the other Loan
Documents, and whether any offsets or defenses exist against the Loan.  Such certification shall be made by Borrower
within ten (10) days if the request is made personally, or within twenty
(20) days if the request is made by mail.


 


36.           Cross Default.  The Note is also secured by the terms,
conditions and provisions of the Assignment and, additionally, may be secured
by contracts or agreements of guaranty or other security instruments.  The terms, covenants, conditions and
agreements of each security instrument shall be considered a part hereof as
fully as if set forth herein verbatim.  Any
default under this Mortgage or any of the other Loan Documents shall constitute
a default hereunder and under each of the other Loan Documents.  Notwithstanding the foregoing, the
enforcement or attempted enforcement of this Mortgage or any of the other Loan
Documents now or hereafter held by Lender shall not prejudice or in any manner affect
the right of Lender to enforce any


 


29

















 


other Loan Document; it
being .understood and agreed that Lender shall be entitled to enforce this
Mortgage and any of the other Loan Documents now or hereafter held by it in
such order and manner as Lender, in its sole discretion, shall determine.


 


37.           Examination of Borrower’s Records.  Borrower will maintain complete and accurate
books and records showing in detail the income and expenses of the Property,
and will permit Lender and its agents, contractors or representatives to
examine said books and records and all supporting vouchers and data during
normal business hours and from time to time upon request by Lender, in such
place as such books and records are customarily kept.  Borrower will furnish to Lender, within one
hundred twenty (120) days after the close of each respective fiscal period
annual and semi-annual financial statements (income statements and a balance
sheet) for the Borrower and the Property.  These statements shall be in form acceptable
to Lender, shall be prepared in accordance with generally accepted accounting
principles, and shall include a rent roll, certified as true and correct by
Borrower.  The statements shall show in
detail all income derived from and expenses incurred in connection with the
ownership of the Property, including current annual sales figures for all Major
Tenants of the Property if required under the Major Tenant leases or if such
financial information is otherwise available. 
In the event Borrower fails to provide such statements to Lender within
the time prescribed above, Borrower shall pay Lender the sum of TWO HUNDRED AND
NO/100 DOLLARS ($200.00) in administrative expenses for each successive month
for which the statements are delinquent. 
Upon a default hereunder, Lender shall have the right to require that
said financial statements be audited and certified by a certified public
accountant acceptable to Lender, at the sole cost and expense of Borrower.


 


In addition, at
the request of Lender, but in no case more often than once a quarter or more
than three (3) times during the term of the Loan, Borrower shall furnish
to Lender (i) unaudited financial statements (balance sheet, income
statement, cash flow statement and current rent roll) covering operation of the
Property for periods other than those set forth in the preceding paragraph; (ii) unaudited
financial statements (balance sheets, income statements, and cash flow
statements) for Borrower, its general partner(s), shareholder’s) or member(s)
(whichever is applicable) and for such other principals of Borrower as
designated by Lender; and (iii) a portfolio analysis showing annualized
cash flow statements (including debt service payments) for all real properties
owned by Borrower, its general, partner’s), shareholder(s), or member(s)
(whichever is applicable) and for such designated principals.  All such statements shall be certified to
Lender to be complete, correct, and accurate by the individual (for an
individual’s statements) or by an authorized representative of the entity (if
statements are for a partnership, corporation or limited liability company).


 


38.           Alteration, Removal and Change in
Use of Property Prohibited.  Borrower
covenants and agrees to permit or suffer none of the following without the
prior written consent of Lender:


 


(a)           Any structural alteration of, or
addition to, the Improvements now or hereafter situated upon the Real Property,
or the addition of any new buildings or other structure(s) thereto, other than
the erection or removal of non-load bearing interior walls except such
alterations or additions required by tenant leases; or


 


30

















 


(b)           The removal, transfer, sale or lease
of the Property, except that the removal, replacement or substitution of
fixtures, equipment, machinery, apparatus and articles of personal property
(replacement or substituted items must be of like or better quality than the removed
items in their original condition) encumbered hereby may be made in the normal
course of business; or


 


(c)           The use of any of the Improvements
now or hereafter situated on the Real Property for any purpose other than the
Existing Use and related facilities.


 


39.           Future Advances Secured.  This Mortgage shall secure not only existing indebtedness,
but also future advances, whether such advances are obligatory or to be made at
the option of Lender.  Upon the request
of Borrower, and at Lender’s option prior to release of this Mortgage, Lender
may make future advances to Borrower.  All
future advances with interest thereon shall be secured by this Mortgage to the
same extent as if such future advances were made on the date of the execution
of this Mortgage unless the parties shall agree otherwise in writing, but the
total secured indebtedness shall not exceed at any one time a maximum principal
amount equal to double the face amount of the Note plus interest and costs of
collection, including court costs and Reasonable Attorneys’ Fees.  Any advances or disbursements made for the
benefit or protection of or the payment of taxes, assessments, levies or
insurance upon the Property, with, interest on such disbursements as provided
herein, shall be added to the principal balance of the Note and collected as a
part thereof.  To the extent that this
Mortgage may secure more than one note, a default in the payment of any such
mortgage note shall constitute a default in the payment of all such notes.  The filing of any notice limiting the maximum
amount that may be secured by this Mortgage pursuant to Florida Statutes Section 697.04
or otherwise shall be and constitute a default under this Mortgage.


 


40.           Effect of Security Agreement.  Borrower agrees to, and shall upon the
request of Lender, execute and deliver to Lender, in form and content
satisfactory to Lender, such financing statements, descriptions of property and
such further assurances as Lender, in Lender’s sole discretion, may from time
to time consider necessary to create, perfect, continue and preserve the lien
and encumbrances hereof, and the security interest granted herein, upon and in
the Property. Without the prior written consent of Lender, Borrower shall not
create or suffer to be created, pursuant to the UCC, any other security
interest in such real and personal property and’ fixtures described herein.  Upon the occurrence of a default hereunder or
Borrower’s breach of any other covenants or agreements between the parties
entered into in conjunction herewith, Lender shall have the remedies of a
secured party under the UCC as provided in Section 25, and at Lender’s option,
the remedies provided for in this Mortgage and the other Loan Documents.  Lender, at the expense of Borrower, may cause
such statements, descriptions and assurances, as herein provided in this Section 40,
and this Mortgage, to be recorded and re-recorded, filed and refiled, at such
times and in such places as may be required or permitted by law to so create,
perfect and preserve the lien and encumbrance hereof upon all of the Property.


 


41.           Terms of Application Survive Closing.  The terms and provisions of the Application
for Mortgage Loan dated October 2, 2003, accepted by Lender on December 18,
2003 and accepted by Borrower on January 12, 2004, and any subsequent
amendments thereto (the “Application”), executed by and between Borrower and
Lender, are incorporated herein by reference. 
All terms, covenants, conditions and agreements of the Application not
expressly set


 


31

















 


forth in this Mortgage
and any of the other Loan Documents shall survive the execution and delivery
hereof, and remain in full force and effect. 
In the event any conflict exists between the terms, covenants,
conditions and agreements of the Application and the Loan Documents, the terms,
covenants, conditions and agreements of the Loan Documents shall prevail.


 


42.           Successors and Assigns;
Terminology.  The provisions hereof
shall be binding upon Borrower and the heirs, personal representatives,
trustees, successors and assigns of Borrower, and shall inure to the benefit of
Lender, its successors and assigns.  Where
more than one (1) Borrower is named herein, the obligations and
liabilities of said Borrower shall be joint and several.


 


Wherever used in
this Mortgage, unless the context clearly indicates a contrary intent or unless
otherwise specifically provided herein: (a) the word “Borrower” shall mean
Borrower and/or any subsequent owner or owners of the Property; (b) the
word “Lender” shall mean Lender or any subsequent holder or holders of this
Mortgage; (c) the word “Note” shall mean the Note(s) secured by this
Mortgage; and (d) the word “person” shall mean an individual, trustee,
trust, corporation, partnership, limited liability corporation, limited
liability partnership, joint venture or unincorporated association.  As used herein, the phrase “Reasonable
Attorneys’ Fees” shall mean fees charged by attorneys selected by Lender based
upon such attorneys’ then prevailing hourly rates as opposed to any statutory
presumption specified by any statute then in effect in the State.  As used herein words of any gender shall
include all other genders.


 


43.           Notices.  All notices, reports, requests or other
written instruments required or permitted hereunder, shall be in writing, signed
by the party giving or making the same, and shall be sent hand-delivered,
effective upon receipt, sent by United States Express Mail or by a nationally
recognized overnight courier, effective upon receipt, or sent by United States registered
or certified mail, postage prepaid, with return receipt requested, deemed
effective on the earlier of the day of actual deliver as shown by the addressee’s
return receipt or the expiration of three (3) business days after the date
of mailing, addressed to the party intended to receive the same at the address
set forth below or at such other address as shall be given in writing by any
party to another (“Written Notice”):


 


	
  If to Borrower:

  	
  LAKEWOOD
  ASSOCIATES, LTD.

  
	
   

  	
  c/o Courtelis
  Company

  703 Waterford Way, Suite 800

  Miami, Florida 33126

  Attention: W. Douglas Pitts

  
	
   

  	
   

  
	
  If to Lender:

  	
  NATIONWIDE LIFE
  INSURANCE COMPANY

  
	
   

  	
  One Nationwide
  Plaza

  Columbus, Ohio 43215-2220

  Attention: Real Estate Investment Department, 34T

  



 


44.           Governing Law; Waiver of Jury
Trial; Severability.  BORROWER, TO
THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL,


 


32

















 


WAIVES, RELINQUISHES AND
FOREVER FORGOES HEREBY THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY TORT ACTION, AGAINST LENDER, ITS
SUCCESSORS AND ASSIGNS, BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO
OR IN CONNECTION WITH ANY OF THE LOAN DOCUMENTS, THE LOAN OR ANY COURSE
OF CONDUCT, ACT, OMISSION, COURSE OF DEALING. 
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON
(INCLUDING, WITHOUT LIMITATION, LENDER’S DIRECTORS, OFFICERS, PARTNERS,
MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH
LENDER), IN CONNECTION WITH THE LOAN OR THE LOAN DOCUMENTS, INCLUDING, WITHOUT
LIMITATION, IN ANY COUNTERCLAIM WHICH ANY PARTY MAY BE PERMITTED TO ASSERT
THEREUNDER, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.  IN NO EVENT SHALL LENDER, ITS SUCCESSORS OR
ASSIGNS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS PROFITS OR
OPPORTUNITY) AND BY ITS EXECUTION HEREOF, BORROWER WAIVES ANY RIGHT TO CLAIM OR
SEEK ANY SUCH DAMAGES.  THIS MORTGAGE AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE FLORIDA, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. 
THE PARTIES HERETO IRREVOCABLY (A) AGREE THAT ANY SUIT, ACTION OR
OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS MORTGAGE MAY BE
BROUGHT IN A COURT OF RECORD IN THE STATE OR IN THE COURTS OF THE UNITED STATES
OF AMERICA LOCATED IN SUCH STATE, (B) CONSENT TO THE NON-EXCLUSIVE
JURISDICTION OF EACH SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING, AND (C) WAIVE
ANY OBJECTION WHICH IT MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING IN ANY OF SUCH COURTS AND ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.  IF ANY CLAUSES OR PROVISIONS HEREIN CONTAINED
OPERATE, OR WOULD PROSPECTIVELY OPERATE, TO INVALIDATE THIS MORTGAGE, THEN SUCH
CLAUSES OR PROVISIONS ONLY SHALL BE HELD FOR NAUGHT, AS THOUGH NOT HEREIN
CONTAINED, AND THE REMAINDER OF THIS MORTGAGE SHALL REMAIN OPERATIVE AND IN
FULL FORCE AND EFFECT.


 


45.           Rights of Lender Cumulative. The
rights of Lender arising under the terms, covenants, conditions and agreements
contained in this Mortgage shall be separate, distinct and cumulative, and none
of them shall be in exclusion of the others. 
No act of Lender shall be construed as an election to proceed under any
one provision herein to the exclusion of any other provisions, anything herein
or otherwise to the contrary notwithstanding. 
If Borrower is comprised of more than one (1) person or entity,
then the liability of each such person and entity hereunder shall be joint and
several.


 


46.           Modifications.  This Mortgage cannot be changed, altered,
amended or modified except by an agreement in writing and in recordable form,
executed by both Borrower and Lender.


 


33

















 


47.           Exculpation.  Notwithstanding anything contained herein to
the contrary, the liability of Borrower is subject to the limited recourse
provisions contained in the Exculpation .section of the Note, which are
incorporated herein and made a part hereof by reference as if fully set forth
herein.


 


48.           Full Recourse.  Notwithstanding
any provisions in this Mortgage to the contrary, including without limitation
the provisions set forth in the section captioned “Exculpation “ hereinabove,
Borrower and the general partners of Borrower shall be personally liable,
jointly and severally, for the entire Loan secured by this Mortgage (including
all principal, interest and other charges) in the event (a) Borrower
violates the covenant governing the placing of subordinate financing on the
Property as set forth in this Mortgage; (b) Borrower violates the covenant
restricting transfers of interests in the Property or transfers of ownership
interests in Borrower as set forth in this Mortgage; or (c) Borrower or
any guarantor violates the provisions of Section 22 of this Mortgage, or
there is filed against Borrower or any guarantor or indemnitor of the Loan, a
petition in bankruptcy or for the appointment of a receiver, or there commences
under any bankruptcy or insolvency law, proceedings for Borrower’s relief, or
for the compromise, extension, arrangement or adjustment of Borrower’s
obligations which is not dismissed within thirty (BO) days after the filing of
same.


 


49.           Lender is Not a Joint Venturer or
Partner. Borrower and Lender acknowledge and agree that in no event shall
Lender be deemed to be a partner or joint venturer with Borrower or any member
of Borrower.  Without limitation of the
foregoing, Lender shall not be deemed to be a partner or joint venturer on
account of its becoming a mortgagee in possession or exercising any rights
pursuant to this Mortgage or pursuant to any other instrument or document
evidencing or securing any of the indebtedness secured hereby, or otherwise,


 


50.           Captions.  The captions set forth at the beginning of
the various Sections of this Mortgage are for convenience only, and shall not
be used to interpret or construe the provisions of this Mortgage.


 


51.           Trading With the Enemy Act.
Neither the making of the Loan to Borrower (or the use of its proceeds) nor the
execution of any of the Loan Documents will violate the Trading with the Enemy
Act, as amended, or any of the foreign assets control regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any
enabling legislation or executive order relating thereto.  In addition, Borrower warrants, represents
and covenants that neither Borrower, Guarantor nor any of their respective
affiliated entities is or will be an entity or person (i) that is listed
in the Annex to, or is otherwise subject to the provisions of Executive Order
13224 issued on September 24, 2001 (“EO13224”), (ii) whose name
appears on the United States Treasury Department’s Office of Foreign Assets
Control (“OFAC”) most current list of “Specifically Designed National and Blocked
Persons” (which list may be published from time to time in various mediums
including, but not limited to, the OFAC website, http:www.treas.gov/ofac/t11sdn.pdf),
(iii) who commits, threatens to commit or supports “terrorism”, as that term is
defined in EO 13224, or (iv) who is otherwise affiliated with any entity
or person listed in subparts (i) – (iv) above (any and all parties or
persons described in subparts [i] – [iv] above are herein referred to as a “Prohibited
Person”).  Borrower covenants and agrees
that neither Borrower, Guarantor nor any of their respective affiliated
entities will (i) conduct any business, nor engage in any transaction or
dealing, with any Prohibited Person,


 


34

















 


including, but not
limited to, the making or receiving of any contribution of funds, goods, or
services, to or for the benefit of a Prohibited Person, or (ii) engage in
or conspire to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions
set forth in EO13224.  Borrower further
covenants and agrees to deliver (from time to time) to Lender any such
certification or other evidence as may be requested by Lender in its sole and
absolute discretion, confirming that (i) neither Borrower nor Guarantor is
a Prohibited Person and (ii) neither Borrower nor Guarantor has engaged in
any business, transaction or dealings with a Prohibited Person, including, but
not limited to, the making or receiving of any contribution of funds, goods, or
services, to or for the benefit of a Prohibited Person.


 


52.           Replacement Documents.  Upon receipt of an affidavit of an officer of
Lender as to the loss, theft, destruction or mutilation of the Note or any
other Loan Document which is not of public record, and, in the case of any such
mutilation, upon surrender and cancellation of such Note or other Loan
Document, Borrower, at its expense, will issue, in lieu thereof, a replacement Note
or other Loan Document, dated the date of such lost, stolen, destroyed or
mutilated Note or other Loan Document in the same principal amount thereof and
otherwise of like tenor.


 


53.           Sole Discretion of Lender.  Wherever pursuant to this Mortgage Lender
exercises any right given to it to approve or disapprove, or any arrangement or
term is to be satisfactory to Lender, the decision of Lender to approve or
disapprove or to decide that arrangements or terms are satisfactory or not
satisfactory shall be in the sole discretion of Lender and shall be final and conclusive,
except as may be otherwise expressly and specifically provided herein.


 


54.           Secondary Market.  Lender may, at any time, sell, transfer or
assign the Note, this Mortgage, the Assignment and the other Loan Documents,
and any or all servicing rights with respect thereto, or grant participation
therein or issue mortgage pass-through certificates or other securities
evidencing a beneficial interest in a rated or unrated public offering or
private placement.  Lender may forward to
each Investor and each prospective Investor, all documents and information which
Lender now has or may hereafter acquire relating to the Loan and to Borrower,
any guarantor and the Property, whether furnished by Borrower, any guarantor or
otherwise, as Lender determines necessary or desirable.


 


[SIGNATURES BEGIN ON THE NEXT PAGE]


 


35

















 


IN WITNESS WHEREOF, Borrower has caused this Mortgage to be
executed as of the day and year first above written.


 


	
  Signed, sealed and delivered

  in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
  LAKEWOOD ASSOCIATES, LTD.,

  
	
   

  	
   

  	
  a Florida limited
  partnership

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Newcaster Devcorp, Inc., a Florida

  corporation, its general partner

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/  Vilma I Amell

  	
   

  	
   

  	
  By:

  	
  /s/  W. Douglas
  Pitts

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  W. Douglas Pitts, President

  
	
  Name:

  	
  Vilma I Amell

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/  Victor L.
  Stosik

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Victor L. Stosik

  	
   

  	
   

  	
  (CORPORATE SEAL)

  
									



 


 


STATE OF FLORIDA


COUNTY
OF MIAMI-DADE


 


The
foregoing instrument was acknowledged before me this 2nd day of
March, 2004, by W.  Douglas Pitts, as
President of Newcaster Devcorp, Inc., a Florida corporation, general
partner of LAKEWOOD ASSOCIATES, LTD., a
Florida limited partnership on behalf of the limited partnership.  He/she is personally known to me or has
produced
                                                       
as identification.


 


	
   

  	
  Notary Public

  
	
   

  	
  Name:

  	
  Victor L. Stosik

  	
   

  
	
   

  	
  Commission No.:

  	
   

  	
   

  
	
   

  	
  My Commission Expires:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (SEAL)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  

  	
  OFFICIAL NOTARY
  SEAL

  VICTOR L. STOSIK

  

  COMMISSION NUMBER

  DD085573

  MY COMMISSION EXPIRES

  FEB. 3,.2006

  	
   

  
							



 


36

















 


EXHIBIT “A”


 


PARCEL
NO.  1


 


Portion of “MARGATE
REALTY NO.  1”, according to the plat
thereof, as recorded in Plat Book 42, at Page 42, TOGETHER WITH: portion
of Tract “A”, “LAKEWOOD COMMERCIAL”, according to the plat thereof, as recorded
in Plat Book 120, at Page 27, both of the Public Records of Broward
County, Florida, all being more particularly described as follows:


 


Commence at the
centerline intersection of LAKEWOOD CIRCLE with WEST ATLANTIC BOULEVARD,
both as shown on said plat of “LAKEWOOD COMMERCIAL”, (said Point of
Commencement being on a curve and bearing North 05 degrees 34 minutes 35
seconds East, from the radius point of the next described, curve); thence
Northwesterly, along a circular curve to the left, having a radius of 5729.58
feet and a central angle of 00 degrees 20 minutes 10 seconds, for an arc
distance of 33.61 feet (last mentioned course being coincident with portion of
the centerline of said WEST ATLANTIC BOULEVARD); thence North 05 degrees 14
minutes 25 seconds East, radial to the last described curve, for 65.00 feet to
the Point of Beginning of the following described parcel of land; thence North
05 degrees 34 minutes 35 seconds East, for 94.77 feet, to a Point of Curvature;
thence Northeasterly and Northerly, along a circular curve to the left, having
a radius of 1041.00 feet and a central angle of 04 degrees 07 minutes 30
seconds, for an arc distance of 74.95 feet to a Point of Tangency; thence North
01 degrees 27 minutes 05 seconds East, for 11.96 feet; thence North 88 degrees
32 minutes 55 seconds West, at right angles to the last and next mentioned
courses, for 179.81 feet; thence South 01 degrees 27 minutes 05 seconds West,
for 177.61 feet to a Point on a Curve, said point bears North 03 degrees 33
minutes 21 seconds East from the radius point of the next described curve;
thence Northwesterly, along a circular curve to the left, having a radius of
5789.58 feet and a central angle of 01 degrees 12 minutes 25 seconds, for an
arc distance of 121.96 feet to a Point on said Curve; thence North 80 degrees
39 minutes 37 seconds West, for 39.97 feet to a Point on a Curve, said point
bears North 01 degrees 57 minutes 24 seconds East, from the radius point of the
next described curve; thence Northwesterly, along a circular curve to the left,
having a radius of 5794.58 feet and a central angle of 00 degrees 42 minutes 22
seconds, for an arc distance of 71.41 feet to a Point of Tangency; thence North
88 degrees 44 minutes 5 8 seconds West, for 163.60 feet; thence South 46
degrees 15 minutes 02 seconds West, for 7.07 feet; thence North 88 degrees 44
minutes 58 seconds West, for 187.54 feet to a Point of Intersection with
the West line of Section 31, Township 48 South, Range 42 East; thence
continue North 88 degrees 44 minutes 58 seconds West, along the last mentioned
course, for 2.05 feet; (last mentioned seven courses being coincident with the
Northerly Right-of-Way line of said WEST ATLANTIC BOULEVARD); thence South 01
degrees 27 minutes 05 seconds West, for 7.00 feet; thence North 88 degrees 44
minutes 58 seconds West, along a line parallel with and 53.00 feet North of, as
measured at right angles to, the South line of the South 1/2 of the Northeast
1/4 of Section 36, Township 48 South, Range 41 East, also being the
Northerly Right-of-Way line of said WEST ATLANTIC BOULEVARD, for 177.20 feet;
thence North 01 degrees 11 minutes 38 seconds East for 50.33 feet to a point on
a non-tangent curve having a chord bearing of North 07 degrees 12 minutes 24
seconds West; thence Northerly along a circular


 


1

















 


curve to the left having
a radius of 200.00 feet and a central angle of 16 degrees 54 minutes 35 seconds
for an arc distance of 59.03 feet to a Point of Reverse Curvature; thence
Northerly along a circular curve to the right having a radius of 200.00 feet
and a central angle of 16 degrees 54 minutes 35 seconds for an arc distance of
59.03 feet to a Point of Tangency; thence North 01 degrees 14 minutes 53
seconds East for 261.11 feet to a point on a non-tangent curve having a chord
bearing of North 66 degrees 37 minutes 12 seconds West; thence Northwesterly
along a circular curve to the right having a radius of 500.00 feet and a
central angle of 7 degrees 35 minutes 45 seconds for an arc distance of 66.29
feet; thence North 1 degree 46 minutes 27 seconds East for 83.46 feet; thence
South 88 degrees 32 minutes 55 seconds East, for 12.00 feet; thence North 01
degrees 27 minutes 05 seconds East, at right angles to the last mentioned
course, for 70.12 feet to the Southwest corner of Parcel “A” , “LEMON TREE LAKE”
according to the Plat thereof as recorded in Plat Book 82 at Page 16 of
the Public Records of Broward County, Florida; thence South 88 degrees 32
minutes 55 seconds East for 400.00 feet; thence North 72 degrees 49 minutes 27
seconds East, for 77.65 feet to a Point on a curve, said point bears South 40
degrees 03 minutes 00 seconds West, from the radius point of the next described
curve, (last mentioned two courses being coincident with the common Boundary
lines of said plats of “LEMON TREE LAKE” and “LAKEWOOD COMMERCIAL”); thence
Southeasterly, Easterly and Northeasterly, along a circular curve to the left,
having a radius of 320.00 feet and a central angle of 41 degrees 52 minutes 05
seconds, for an arc distance of 233.84 feet to a Point of Tangency: thence
North 88 degrees 10 minutes 55 seconds East, for 233.64 feet to a Point of
Curvature; thence Northeasterly, along a circular curve to the left, having a
radius of 530.00 feet and a central angle of 10 degrees 10 minutes 49 seconds,
for an  arc distance of 94.17 feet, to a
Point of Tangency; thence North 78 degrees 00 minutes 06 seconds East, for
144.62 feet (last mentioned four courses being coincident with the Southerly
Right-of-Way line of LAKESIDE DRIVE, as shown on said plat of “LAKEWOOD
COMMERCIAL”); thence South 01 degrees 27 minutes 05 seconds West, for 269.14
feet; thence North 88 degrees 32 minutes 55 seconds West, at right angles to
the last and next mentioned courses, for 71.00 feet; thence South 01 degrees 27
minutes 05 seconds West, for 357.63 feet to a Point on a Curve, said point
bears North 06 degrees 02 minutes 37 seconds East, from the radius point of the
next described curve; thence Northwesterly along a circular curve to the left,
having a radius of 5794.58 feet and a central angle of 00 degrees 48 minutes 12
seconds, for an arc distance of 81.24 feet to the Point of Beginning (last
mentioned course being along the Northerly Right-of-Way line of said WEST
ATLANTIC BOULEVARD).  Lying and being in Section 36,
Township 48 South, Range 41 East and Section 31, Township 48 South, Range
42 East, City of Margate, Broward County, Florida.


 


The bearings mentioned
herein are based upon an assumed North 05 degrees 34 minutes 35 seconds East
along the centerline of Lakewood Circle.


 


AND


 


PARCEL NO.
2


 


A portion of Section 36,
Township 48 South, Range 41 East, being a portion of the Shopping Center Tract,
as shown on the plat of “MARGATE REALTY NO. 
1”, as recorded in Plat Book 42, at Page 42, of the Public Records
of Broward County, Florida, being more particularly described as follows:


 


2

















 


Commence at the East 1/4
corner of said Section 36 and run North 88 degrees 44 minutes 58 seconds
West, along the South line of the South 1/2 of the Northeast 1/4 of said
Section 36, for 1076.68 feet; thence North 00 degrees 36 minutes 05 seconds
West, along the Easterly Right-of-Way line of State Road No. 7, for 228.03 feet
to the Point of Beginning of the following described parcel of land: thence
continue North 00 degrees 36 minutes 05 seconds West, along the last described
course, for 145.50 feet; thence South 88 degrees 44 minutes 58 seconds East,
for 200.00 feet; thence South 00 degrees 36 minutes 05 seconds East, for 145.50
feet; thence North 88 degrees 44 minutes 58 seconds West, for 200.00 feet, to
the Point of Beginning.


 


AND


 


PARCEL NO. 3


 


A portion of Section 36,
Township 48 South, Range 41 East, being a portion of the Shopping Center Tract,
as shown on the plat of “MARGATE REALTY NO. 1”, as recorded in Plat Book 42, at
Page 42 of the Public Records of Broward County, Florida, being more
particularly described as follows:


 


Commence at the East 1/4
corner of said Section 36 and run North 88 degrees 44 minutes 58 seconds
West, along the South line of the South 1/2 of the Northeast 1/4 of said Section 36,
for 1076.68 feet; thence North 00 degrees 36 minutes 05 seconds West, along the
Easterly Right-of-Way line of State Road No. 7, for 428.53 feet, to the Point
of Beginning of the following described parcel of land; thence continue North
00 degrees 36 minutes 05 seconds West, along the last described course, for
355.50 feet; thence South 88 degrees 44 minutes 58 seconds East, for 200.00
feet; thence South 00 degrees 36 minutes 05 seconds East, for 355.50 feet;
thence North 88 degrees 44 minutes 58 seconds West, for 200.00 feet, to the
Point of Beginning.


 


AND


 


PARCEL NO. 4


 


Together with easement
rights created under the following documents: Declaration of Easements,
Restrictions and Covenants recorded in official Records Book 36097, Page 505;
Cross Parking Agreement recorded in Official Records Book 7226, Page 316,
as amended by Amendment recorded in Official Records Book 31710, Page 1653;
Declaration recorded in Official Records Book 6249, Page 478; Declaration
and Grant of Easement recorded in Official Records Book 13092, Page 412,
as amended, by Amended Declaration and Grant of Easement recorded in Official
Records Book 13307, Page 905; and Warranty Deed recorded in Official
Records Book 15568, Page 624.


 


Lying and being in the
City of Margate, Broward County, Florida


 


3