Exhibit 10.24


 


	
  Prepared by and Return to:

   

  JONES DAY

  1420 Peachtree Street,
  N.E.

  Suite 800

  Atlanta, Georgia 30309-3053

  Attention: Tracy S. Plott, Esq.

   

  	
  INSTR # 2006000119757, Pages 33

  Doc Type MTG, Recorded
  03/22/2006 at 01:58 PM,

  Charlie Green, Lee County Clerk
  of Circuit Court

  Mtg Doc: $241500.00 Int. Tax
  $138000.00 Rec. Fee $282.00

  Deputy Clerk KCARTWRIGHT

  #4

  INSTR # 2006000138157, Pages 33

  Doc Type MRR, Recorded
  04/04/2006 at 02:35 PM,

  Charlie Green, Lee County Clerk
  of Circuit Court

    Rec. Fee $282.00

  Deputy Clerk JHORTON

  #3

  
	
  Property Address:

  15250 Sonoma Drive, Fort Myers, Florida

   

  Tax Folio Number: 33-45-24-13-00000.0010

  	
   

  



 


This document is being recorded to correct servicer’s error in legal
description.


 


MORTGAGE, SECURITY AGREEMENT,


ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING


 


Made By:


 


BTS MONTERREY HOLDINGS LLC, as Mortgagor


 


In Favor of:


 


CORUS BANK, N.A., as Mortgagee


 


Dated as of March 21, 2006


 

















 


MORTGAGE, SECURITY AGREEMENT,


ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING


 


THIS MORTGAGE,
SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND
RENTS
AND FIXTURE FILING (this “Mortgage”) is made as of the 21st day
of March, 2006 by BTS
MONTERREY HOLDINGS LLC, a Delaware limited liability company, having
a mailing address of 17080 Safety Street, Suite 109, Fort Myers, Florida
33908 (the “Mortgagor”) in favor
of CORUS
BANK, N.A., its successor and assigns, having a mailing address of
3959 N. Lincoln Avenue, Chicago, Illinois 60613 (the “Mortgagee”).


 


Background:


 


A.            Mortgagor
is the sole owner of fee simple title to certain land located at 15250 Sonoma
Drive, Fort Myers, Florida and more particularly described on Exhibit A
attached hereto, together with any and all improvements now existing thereon
and all improvements to be constructed thereon.


 


B.            Pursuant
to that certain Loan Agreement by and between Mortgagor and Mortgagee, dated of
even date herewith (as the same may be amended, restated, modified and
Supplemented from time to time, the “Loan Agreement”), Mortgagee shall make a loan to Mortgagor in the original
principal amount of SIXTY-NINE MILLION AND NO/100 DOLLARS ($69,000,000) (the “Loan”). All
capitalized terms not otherwise defined herein shall have the meaning ascribed
to such terms in the Loan Agreement.


 


C.            The Loan is
evidenced by that certain Promissory Note, dated of even date made by Mortgagor
and payable to Mortgagee, as same may, in writing, be amended, restated
modified or supplemented from time to time, in the original aggregate maximum
principal amount of SIXTY-NINE MILLION AND NO/100 DOLLARS ($69,000,000) (the “Note”).


 


D.            The
Loan is being made in order to, among other things, provide Mortgagor with
funding for the acquisition of land currently improved with, among other
things, a 408-unit apartment
complex. Mortgagor intends to convert the land and the described improvements
into a condominium regime which will consist of 408 residential condominium
units totaling approximately 483,000 net sellable, interior square feet of
residential space, 78 garage
spaces (“Garage
Space(s)”), 60 carport spaces (“Carport Space(s)”), 639 surface parking spaces,
clubhouse, swimming pools, indoor racquetball court and fitness center, as more
particularly described in the Loan Agreement.


 


E.             As a condition
precedent to the making of the Loan to Mortgagor, Mortgagee has required, among
other things, that Mortgagor enter into this Mortgage and grant to Mortgagee a
first priority lien and security interest in and to the Mortgaged Property (as
herein defined) and other collateral now or hereafter owned by Mortgagor,
subject only to the Permitted Exceptions, to secure all of the following (all
of which may be referred to collectively as the “Obligations”): (i) payment of the principal
amount of SIXTY-NINE MILLION AND NO/100 DOLLARS ($69,000,000) evidenced by the
Note and any amendments, restatements, modifications and supplements thereof,
together with the interest thereon at the rate specified in the Note, and all
fees, charges, and prepayment fees, if any, as provided in the Note or the Loan
Agreement; (ii)


 

















 


payment of all
other monies or sums
provided to be paid by Mortgagor pursuant to the terms, provisions and
conditions of the Loan
Documents, including, without limitation, the Loan Agreement and this Mortgage;
and (iii) performance of each every obligation, agreement, promise,
covenant, warranty, and representation now or hereafter due and owing, made or
undertaken by Mortgagor as set forth in the Loan Agreement, the Note, this
Mortgage, the other Loan Documents, and all other documents or instruments
given or made by Mortgagor to evidence or to secure the Loan, and in any
renewal, modification, restatement or extension of any of the foregoing.


 


Statement of Agreement:


 


NOW, THEREFORE, Mortgagor
agrees with Mortgagee as follows:


 


1.            Definitions:    As used in this Mortgage, the
following terms shall have the meanings indicated below:


 


“Accounts and Intangibles” shall mean all
of Mortgagor’s right, title and interest in and to all presently existing or
hereafter acquired accounts, accounts receivable, contract rights, deposits
(including the deposits from purchases of Condominium Units held with Escrow
Agent), deposit accounts, payments, bank accounts, working capital accounts and
time deposits relating to any of the same, and revenues now or hereafter accruing
to the benefit of Mortgagor, all the records and books of account now or
hereafter maintained by Mortgagor in connection with the operation of the
Mortgaged Property or otherwise; all contract rights, all rights to receive
payments under present or future contracts (including without limitation, all
rights to receive payments under presently existing or hereafter acquired or
created letters of credit), or by virtue of merchandise sold or leased,
services rendered, loans and advances made or other considerations given, by or
set forth in arising out of any present or future chattel paper, note, draft,
lease, acceptance, writing, bond, insurance policy, instrument, document or
general intangible, and all extensions and renewals of any thereof; all rights
to the payment of money including tax refund claims, insurance proceeds and
tort claims, chattel paper, leases and writings evidencing a monetary obligation or a security
interest in or a lease of goods,
documents, instruments, general intangibles, securities, together with all
income therefrom, increases thereunder and proceeds thereof; and all judgments,
awards of damages and settlements hereafter made resulting from condemnation
proceedings or the taking of any of the
Land, the Improvements or the Fixtures or any portion thereof under the power
of eminent domain, any proceeds of any policies of insurance maintained with
respect to any of the Mortgaged Property and proceeds of any sale, option or
contract to sell the Mortgaged Property or any portion thereof.


 


“ColIateraI”
shall mean all of Mortgagor’s right, title and interest in
and to any part of such of the Mortgaged Property which constitutes personal
property under the Laws of the State of Florida, together with any and all
proceeds of any and all of the foregoing, including, without limitation, any
and all cash and non-cash consideration received from the sale, exchange,
lease, collection or other disposition of any and all of the foregoing, any
value received as a consequence
of the possession of any of the foregoing, any payment received from any
insurer or other person or entity as a result of the destruction, loss, theft,
damage or other involuntary conversion of whatever nature of any of the
foregoing, and all equipment, machinery, furniture,


 


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inventory,
other goods, fixtures, general intangibles, instruments, chattel paper,
documents, accounts and all other property of any kind or nature which are
acquired with any proceeds of any of the foregoing.


 


“Contracts” shall mean all of Mortgagor’s
right, title and interest in and to all contracts, agreements, warranties,
representations, service agreements, maintenance contracts and agreements
relating to the Mortgaged Property and the use, occupancy, operation,
management, leasing, repair and service of the Mortgaged Property, whether
presently existing or entered into after the date hereof.


 


“Fixtures” shall mean all of Mortgagor’s
right, title and interest in and to all furniture, furnishings, fixtures,
appliances, machinery or equipment which are now or at anytime hereafter may be
attached to or situated upon or affixed to the Land or the Improvements,
including, but not limited to, all signs, artwork, office furnishings and
equipment, all partitions, screens, awnings, shades, blinds, floor coverings,
hall and lobby equipment, heating, lighting, plumbing, ventilating,
refrigerating, incinerating, elevator, escalator, air conditioning and
communication plants or systems with appurtenant fixtures, vacuum cleaning
systems, call systems, security systems, sprinkler systems and other fire
prevention and extinguishing apparatus and materials; all equipment, manual,
mechanical or motorized, for the construction, maintenance, repair and cleaning
of, any parking areas, walks, underground ways, truck ways, driveways, common
areas, roadways, highways and streets; and all other items of personal property
now or hereafter owned by Mortgagor located in or on the Land or the
Improvements and used or useful in the present or future occupancy, operation,
maintenance and leasing thereof (but excluding any of the foregoing owned by
any tenant).


 


“Improvements” shall mean all buildings,
structures, and improvements located in, on or under the Land, including,
without limitation, a 408-unit apartment complex., which will be converted into
a condominium regime which will consist of 408 residential condominium units
totaling approximately 483,000 net sellable, interior square feet of
residential space, 78 garage
spaces, 60 carport spaces, 639 surface parking spaces, clubhouse, swimming
pools, indoor racquetball court and fitness center, and all other common
elements.


 


“Intellectual Property” shall mean all of
Mortgagor’s rights, if any, to any patents and copyrights, trade names,
trademarks and service marks, including all state registrations or applications
for registration pertaining thereto and all common law rights pertaining
thereto and all goodwill of the Mortgagor’s business symbolized by, associated
with or appurtenant to any of such
trade names, trademarks, and service marks.


 


“Land” shall
mean the land legally described in Exhibit A hereto and
located at 15250 Sonoma Drive, Fort Myers, Florida, together with all
easements, air rights, servitudes, rights of way, gores of land, streets, ways,
alleys, passages, sewer rights, ditches and ditch rights, reservoir and
reservoir rights, minerals, oil and gas rights, royalties, lease or leasehold
interests owned by Mortgagor, waters, water courses, water rights and powers,
and all estates, rights, titles, interests, privileges, liberties, tenements,
hereditaments and appurtenances whatsoever, in any way now or hereafter
belonging, relating or appertaining to the Land, and the reversions, remainder,
rents, issues and profits thereof, and all the estate, right, title, interest,
property,


 


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possession,
claim and demand whatsoever, at law as well as in equity, of Mortgagor of, in
and to the same.


 


“Mortgaged Property” shall mean all of the
Real Estate, the Intellectual Property, the Fixtures, the Contracts, the
Permits, the Plans, the Rents, the Accounts and Intangibles, together with any
and all proceeds of any and all of the foregoing, including, without
limitation, any and all cash and non-cash consideration received from the sale,
exchange, lease, collection or other disposition of any and all of the
foregoing, any value received as a consequence of the possession of any of the
foregoing, any payment received from any insurer or other person or entity as a
result of the destruction, loss, theft, damage or other involuntary conversion
of whatever nature of any of the foregoing, and all equipment, machinery,
furniture, inventory, other goods, fixtures, general intangibles, instruments, chattel
paper, documents, accounts and all other property of any kind or nature which
are acquired with any proceeds of any of the foregoing.


 


“Permits” shall mean all building permits,
certificates of occupancy and other assignable governmental permits, licenses
and authorizations, including, without limitation, all state, county and local
occupancy certificates, and other licenses and utility deposits, in any way
applicable to the Mortgaged Property or any part thereof or to the ownership,
use, occupancy, operation, maintenance and leasing of all or any portion of the
Mortgaged Property.


 


“Plans” shall mean all warranties and
operating manuals of any kind with respect to the Collateral or Improvements,
and all preliminary and final site and as-built plans, surveys, soil and
substrata studies, environmental studies, environmental site assessments,
architectural renderings, plans and specifications, engineering plans and
specifications, floor plans, landscape plans, and other plans, diagrams or
studies of any kind with regard to the Real Estate.


 


“Real Estate” shall mean the Land and the
Improvements and such other of the Mortgaged Property as constitutes real
property under the Laws of the State of Florida, together with any and all
proceeds of any and all of the foregoing, including, without limitation, any
and all cash and non-cash consideration received from the sale, exchange,
lease, collection or other disposition of any and all of the foregoing, any
value received as a consequence of the possession of any of the foregoing,
(including, without limiting the generality of the foregoing, any and all real
estate tax abatements now or in the future accruing to the Real Estate), any
payment received from any insurer or other person or entity as a result of the
destruction, loss, theft, damage
or other involuntary conversion of whatever
nature of any of the foregoing, and all equipment, machinery, furniture,
inventory, other goods, fixtures, general intangibles, instruments, chattel
paper, documents, accounts and all other property of any kind or nature which
are acquired with any proceeds of any of the foregoing.


 


“Rents” shall
mean absolutely and presently all avails, rents, issues, cash collateral and
profits arising from or accruing at any time hereafter by virtue of any lease,
whether written or verbal, or any letting of, or of any agreement for the use
or occupancy of the Land or the Improvements or any portion thereof
(collectively, the “Leases”), including,
all revenues, receipts, rents, issues and profits, now or hereafter accruing to
the benefit of Mortgagor.


 


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2.             Granting Clause; Condition of
Grant:    In order to secure the
prompt payment and performance of the Obligations, Mortgagor by these presents
does hereby: (a) give, grant, bargain and sell, alien, enfeoff, release,
convey, confirm, mortgage, assign, transfer and set-over unto Mortgagee, its
successors and assigns, forever, the Real Estate; (b) grants Mortgagee a
lien on, and security interest in, the Collateral, whether now owned or
existing or hereafter acquired or arising, together with any and all cash and non cash proceeds
and products thereof; and (c) unconditionally and absolutely assigns the
Leases and Rents to Mortgagee (but subject to the license for collection of
Rents described in Section 18). Mortgagor further agrees that
Mortgagee shall have in respect thereof all of the rights and remedies of a
secured party under the Uniform Commercial Code of the State of Florida as well
as those provided in this Mortgage.


 


TO HAVE AND TO HOLD the Mortgaged Property
hereby conveyed or assigned, or intended
to be conveyed or assigned, unto Mortgagee forever for the uses and purposes
set forth herein.


 


PROVIDED, HOWEVER, that if Mortgagor shall
promptly pay and shall timely perform all of the Obligations, then, upon such
full payment and performance, this Mortgage and the estate granted hereby shall
become null and void.


 


THIS MORTGAGE SECURES FUTURE ADVANCES UP TO A MAXIMUM
PRINCIPAL AMOUNT OF ONE HUNDRED FIFTY MILLION DOLLARS ($150,000,000). This
Mortgage secures and shall be security for any and all future advances made by
Mortgagee to Mortgagor (or any of them, if more than one), provided, however,
that said future advances be made within twenty (20) years from the date
hereof, and that the total unpaid balance secured hereby at any one time shall
not exceed $150,000,000, together
with interest thereon at the rate then agreed upon, pursuant to Florida
Statutes, Section 697.04. Nothing contained herein shall be deemed an
obligation on the part of Mortgagee to make any further advances.


 


3.            Payment
and Performance of Obligations.   Mortgagor
shall pay when due, and shall duly and punctually perform and observe, all of
the Obligations, including without limitation, all terms, provisions,
conditions, covenants and agreements on Mortgagor’s part to be performed or
observed as provided in this Mortgage and in the other Loan Documents; and this
Mortgage shall secure such payment, performance and observance.


 


4.            Title to Mortgaged Property
and the Lien of this Mortgage.   Mortgagor covenants and
represents that Mortgagor has, in Mortgagor’s own right, and Mortgagor
covenants to maintain, lawful, good and indefeasible title to the Mortgaged
Property, free and clear of all liens, charges, claims, security interests,
adverse claims, and encumbrances except for (i) the matters, if any, set
forth under the heading “Permitted Exceptions” on Exhibit B attached to this Mortgage, which are Permitted Exceptions only
to the extent the same are valid and subsisting and affect the Mortgaged
Property; (ii) the liens and security interests evidenced by this
Mortgage; (iii) statutory liens for ad valorem taxes and standby fees on
the Mortgaged Property which are not yet delinquent; and (iv) other liens
and security interests (if any) in favor of Mortgagee (the matters described in
the foregoing clauses (i), (ii), (iii) and (iv) being herein called
the “Permitted
Exceptions”). Mortgagor, and Mortgagor’s successors and assigns, will warrant
and forever defend title to the Mortgaged Property, to Mortgagee and its
successors or


 


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substitutes
and assigns, against the claims and demands of all persons claiming or to claim
the same or any part thereof. No part of the Mortgaged Property constitutes all or any part of
the homestead of Mortgagor. If any right or interest of Mortgagor in the
Mortgaged Property or any part thereof shall be endangered or questioned or
shall be attacked directly or indirectly, and Mortgagor does not take steps
sufficient to defend or protect its interests, as determined by Mortgagee in
its discretion, Mortgagee is hereby authorized and empowered to take such steps
as in
its discretion may be proper for the defense of any such legal proceedings or
the protection of such right or interest of Mortgagor, including but not
limited to the employment of independent counsel, the prosecution or defense of
litigation, and the compromise or discharge of adverse claims. All expenditures
so made of every kind and character shall be a demand obligation (which
obligation Mortgagor hereby promises to pay within ten (10) Business Days of written demand) owing by Mortgagor
to Mortgagee, and Mortgagee shall be subrogated to all rights of the person
receiving such payment.


 


5.            Use Violations or
Alterations. Except as may
be expressly permitted by the terms of the Loan Agreement, Mortgagor shall not
use, maintain, operate or occupy, or allow the use, maintenance, operation or
occupancy of the Mortgaged Property in any manner which (a) violates any
Laws; (b) may be dangerous unless safeguarded as required by Laws;
(c) constitutes a public or private nuisance; (d) will increase the
risk of fire or other hazard to the Mortgaged Property or any part thereof, or
(e) will wholly or partially invalidate any insurance coverage required to
be carried hereunder or under the terms of the Loan Agreement. Mortgagor shall
not commit or permit any waste of the Mortgaged Property or any part thereof, whether
commissive or permissive, and, except as expressly permitted by the terms of
the Loan Agreement, will not make or permit to be made any alterations or
additions to the Mortgaged Property. Mortgagor shall not abandon the Mortgaged
Property or leave the Mortgaged Property unprotected, unguarded or deserted or
allow any of the Mortgaged Property to be misused, abused or wasted, or to
deteriorate.


 


6.            Maintenance,
Repair and Restoration. Mortgagor shall keep the
Mortgaged Property in good condition, order, repair and operating condition as
may be necessary to protect and preserve the value of the Mortgaged Property,
causing all necessary repairs, alterations, renewals, replacement, additions,
betterments and improvements to be made promptly thereto. Subject to the terms
of this Mortgage and the Loan Agreement, Mortgagor shall promptly repair,
restore or rebuild (or cause the same to be done) any of the Mortgaged Property
which may become damaged or be destroyed from any cause whatsoever and pay when
due all claims for labor performed and materials furnished therefor.


 


7.            Platting, Replatting,
Subdivision and Resubdivision. Mortgagor shall not, without the consent
of Mortgagee, impose any restrictions, agreements or covenants which run with
the land upon the Land or the Improvements or any part thereof, nor plat,
replat, subdivide or resubdivide the Land or any part thereof. Mortgagee
acknowledges that Mortgagor intends to convert the Mortgaged Property to
condominiums and such conversion shall be permitted as described in the Loan
Documents.


 


8.             Permitted Exceptions; Compliance.
With respect to the Permitted Exceptions, Mortgagor shall
(i) timely observe and perform all covenants and obligations contained
therein; (ii) not take any action or fail to take any action if the taking
of such action or failure to take such


 


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action would
cause a default thereunder; and (iii) not exercise any rights or remedies
under any Permitted Exception which might be adverse to Mortgagee’s interests,
without the prior written consent of Mortgagee.


 


9.             Taxes. Mortgagor
shall pay, before any penalty, fine, interest or other cost for non-payment
attaches, all general and special taxes, assessments, water charges, sewer
charges, and other fees, taxes, impositions, charges and assessments of every
kind and nature whatsoever (collectively, “Taxes”), whether or not assessed against
Mortgagor, if applicable to the Mortgaged Property or any part thereof or any
interest therein. Mortgagor shall comply with the provisions of
Section 10.1 of the Loan Agreement which requires Mortgagor to escrow tax
deposits with Mortgagee.


 


10.          Insurance
Coverage. Mortgagor, at its sole cost and expense, will
insure and keep insured the Mortgaged Property and each and every part thereof,
against such perils and hazards, and in such form and amounts, as are set forth in the Loan
Agreement.


 


11.          Proceeds
of Insurance. Mortgagor will give Mortgagee prompt notice
of any damage to or destruction of the Mortgaged Property. The settlement of
all insurance claims in connection therewith and the collection and
disbursement of any insurance
proceeds shall be governed by the terms of the Loan Agreement.


 


12.          Condemnation. Mortgagor
will give Mortgagee prompt notice of any pending or threatened condemnation
proceedings or exercise of eminent domain by any governmental authority of
which the Mortgagor has knowledge. The participation in any such proceedings and the application of any
condemnation awards shall be governed by the terms of the Loan Agreement.


 


13.          Documentary
Stamp Tax, Intangible Taxes and Other Taxes. If, by the
Laws of the United States of America, or of any state, county, or municipality
having jurisdiction over Mortgagor or the Mortgaged Property or any part
thereof, any tax is assessed or
becomes due in respect of the
making, signing, execution, issuance or recordation of the Note or the
indebtedness evidenced thereby, or the execution, delivery, filing, granting or
recording of this Mortgage, or otherwise in connection with any of the other
Loan Documents, Mortgagor shall pay such tax in the manner required by such
Laws.


 


14.          Prepayment
Privilege. Mortgagor may not prepay the Note, in whole or
in part, except to the extent expressly permitted by and subject to the terms
of the Note and the Loan Agreement.


 


15.          Effect of Extensions of Time and
Amendments on Junior Liens and Others. If the payment of the Obligations, or
any part thereof, be extended or varied, or if any part of the security
therefor be released, all Persons now or at any time hereafter liable therefor,
or having an interest in the Mortgaged Property or any part thereof, shall be
held to assent to such extension, variation or release; and any liability of
such Persons and the lien and all provisions hereof shall continue in full
force and effect, any right of recourse existing against all such Persons being
expressly reserved by Mortgagee, notwithstanding any such extension, variation
or release. Any Person who, upon consent by Mortgagee (given or withheld in its
sole and


 


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absolute
discretion) shall take a junior mortgage, or other junior lien upon the Mortgaged
Property or any part thereof or any interest therein, shall take such lien
subject to the rights of Mortgagee to supplement, amend, modify, restate and
extend the Loan Documents or any of them, and to extend the maturity of the
Obligations, in each and every case without obtaining the consent of the holder
of such junior lien and without the lien of this Mortgage or the lien of any
other Loan Documents losing priority over the rights of any such junior lien.


 


16.          Inspection
of Premises. Mortgagee, its employees and agents, shall
have the right to inspect the Mortgaged Property and to inspect and make copies
of all books, records and documents relating thereto pursuant to the provisions
of the Loan Agreement, all at reasonable times, on reasonable notice to
Mortgagor, and subject to the reasonable rights of tenants at the Mortgaged
Property.


 


17.          Uniform Commercial Code. (a) Mortgagor
(as debtor) and Mortgagee (as secured party) agree: (i) that this Mortgage
shall constitute a Security Agreement within the meaning of the Uniform
Commercial Code of the State of Illinois, or under the Uniform Commercial Code
in force in any other state to the extent the same is applicable to the
security interest granted herein (in either case, as applicable, the “Code”) with
respect to the Collateral; and (ii) that a security interest in and to the
Collateral is hereby granted to Mortgagee; and (iii) that all of
Mortgagor’s right, title and interest therein are hereby assigned to Mortgagee;
all to secure payment of the Obligations and to secure performance by Mortgagor
of the terms, covenants and provisions of the Loan Agreement, the Note, this
Mortgage, and the other Loan Documents.


 


(b)           If an Event of Default occurs under
this Mortgage, Mortgagee, consistent with the appropriate provisions of the
Code and other applicable Laws, shall have an option to proceed with respect to
both the Real Estate and the Collateral in accordance with its rights, powers
and remedies with respect to the Real Estate, in which event the default
provisions of the Code shall not apply. The parties agree that if Mortgagee
shall elect to proceed with respect to the Collateral separately from the Real
Estate, Mortgagee shall have all remedies available to a secured party under
the Code and ten (10) days’ notice of the sale of the Collateral shall be
reasonable notice. The expenses of retaking, holding, preparing for sale,
selling and the like incurred by Mortgagee shall include, but not be limited
to, attorneys’ fees and legal expenses incurred by Mortgagee (and for purposes
hereof, the term “attorneys” includes attorneys who are employees of Mortgagee
acting as counsel for Mortgagee, and the term “legal expenses” shall include,
without limitation, the fees charged by Mortgagee for its in-house counsel).
Mortgagor agrees that Mortgagor shall not, without the written consent of
Mortgagee, dispose of, remove or permit to be removed from the Mortgaged
Property any of the Collateral, other than as expressly permitted under the
Loan Agreement, and that all replacements for each and every item of Collateral
shall be at least equal in value and utility to the initial value and utility
of that disposed of and in such a manner that said replacement or substituted
Collateral shall be subject to the security interest created hereby and that
the security interest of Mortgagee shall be perfected and first in priority,
subject only to the Permitted Exceptions, it being expressly understood and
agreed that all replacements, substitutions and additions to the Collateral
shall be and become immediately subject to the security interest of this
Mortgage and covered hereby. Mortgagor covenants and represents that subject to
the Permitted Exceptions all Collateral now is, and that all replacements
thereof, substitutions therefor or additions thereto, unless Mortgagee
otherwise


 


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consents,
shall be free and clear of liens, encumbrances, title retention devices and
security interests of others.


 


(c)           Mortgagor and
Mortgagee agree, to the extent permitted by law, that: (i) all of the
goods described within the definition of the words “Improvements” and “Fixtures”
herein are or are to become fixtures on the Land; and (ii) this
instrument, upon recording or registration in the real estate records of the
proper office, shall constitute a “fixture filing” within the meaning of
Section 679.1021(l)(nn), Florida Statutes. Mortgagor agrees that the
filing of a Financing Statement (as defined in the Code) in the records
normally having to do with personal property shall never be construed as in any
way derogating from or impairing the express declaration and intention of the
parties hereto, hereinabove stated, that everything used in connection with the
production of income from the Mortgaged Property and/or adapted for use therein
and/or which is described or reflected in this Mortgage is, and at all times
and for all purposes and in all proceedings, legal or equitable, shall be
regarded as part of the Real Estate irrespective of whether (i) any such
item is physically attached to the Land or Improvements; (ii) serial
numbers are used for the better identification of certain equipment items
capable of being thus identified in a recital contained herein or in any list
filed with Mortgagee; or (iii) any such item is referred to or reflected
in any such Financing Statement so filed at any time. Similarly, the mention in
any such Financing Statement of (x) rights in or to the proceeds of any fire and/or
hazard insurance policy; (y) any award in eminent domain proceedings for a
taking or for loss of value; or (z) Mortgagor’s interest as lessor in any present
or future Leases or subleases or rights to Rents growing out of the use and/or
occupancy of the Mortgaged Property, whether pursuant to Lease or otherwise,
shall never be construed as in any way altering any of the rights of Mortgagee as determined by this
instrument or impugning the priority of Mortgagee’s lien granted hereby or by
any other recorded document, but such mention in the Financing Statement is
declared to be for the protection of Mortgagee in the event any court or judge
shall at any time hold with respect to (x), (y) or (z) that notice of
Mortgagee’s priority of interest to be effective against a particular class of
persons, including, but not limited to, the federal government and any
subdivision or entity of the federal government, must be filed in the Code
records.


 


(d)           Mortgagor, upon
request by Mortgagee from time to time, shall execute, acknowledge and deliver
to Mortgagee, a separate
security agreement, Financing Statement or other similar security instruments,
in form reasonably satisfactory to Mortgagee, covering the Collateral and shall
further execute, acknowledge and deliver, or cause to be executed, acknowledged
and delivered, any financing statement, affidavit, continuation statement or
certificate or other document as Mortgagee may request in order to perfect,
preserve, maintain, continue and extend the security interest under and the
priority of this Mortgage and such security instrument. Mortgagor further
agrees to pay to Mortgagee on demand all costs and expenses incurred by
Mortgagee in connection with the preparation, execution, recording, filing and
re-filing of any such documents. Mortgagor shall from time to time, on request
of Mortgagee, deliver to Mortgagee an inventory of the Collateral in reasonable
detail.


 


18.          Assignment of Leases and Rents.   (a)  To further secure the Obligations, Mortgagor hereby sells,
assigns and transfers unto Mortgagee all the Rents, now due and which may
hereafter become due under or by virtue of any of the Leases, whether written
or verbal, or any letting of, or of any agreement, whether written or oral, for
the use or occupancy of the Mortgaged Property or any part thereof, which may
be hereafter made or agreed to by Mortgagee


 


9
















 


under the
powers herein granted, it being the intention hereby to establish an absolute
transfer and assignment of all such Leases, and all the Rents, to Mortgagee,
and not merely the passing of a security interest. Mortgagor hereby constitutes
and appoints Mortgagee as its true and lawful attorney-in-fact, coupled with an
interest, of Mortgagor, empowered and authorized in the name, place and stead
(with or without taking possession of the Mortgaged Property as provided in
this Mortgage) of Mortgagor, (i) to demand, sue for, attach, levy, recover, and
receive all Rents and give proper receipts, releases, and acquittances therefor
and after deducting expenses of collection, to the extent permitted by law, to
apply the net proceeds as a credit upon any portion of the Obligations selected
by Mortgagee notwithstanding the fact that such portion of the Obligations may
not then be due and payable or that such portion of the Obligations is
otherwise adequately secured, and Mortgagor does hereby authorize and direct
any such lessee to deliver such payment to Mortgagee; and (ii) to rent, lease
or let all or any portion of the Mortgaged Property to any party or parties at
such rental and upon such terms as said Mortgagee shall, in its
discretion, determine, and to collect all of said Rents arising from or
accruing at any time hereafter, and now due or that may hereafter become due
under each and every of the Leases or otherwise, with the same rights and
powers and subject to the same immunities, exoneration of liability and rights
of recourse and indemnity as Mortgagee would have upon taking possession
pursuant to the provisions of this Mortgage. The foregoing appointment is
irrevocable and continuing and such rights, powers, and privileges shall be
exclusive in Mortgagee, its successors and assigns.


 


(b)           Nothing
contained herein shall be construed as constituting Mortgagee a
“mortgagee-in-possession” in the absence of the taking of actual possession of
the Mortgaged Property by Mortgagee pursuant to this Mortgage. In the exercise of the powers herein
granted Mortgagee, no liability shall be asserted or enforced against
Mortgagee, all such liability being expressly waived and released by Mortgagor.


 


(c)           Mortgagor
further agrees to assign and transfer to Mortgagee all future Leases upon all
or any part of the Mortgaged Property and to execute and deliver, at the
request of Mortgagee, all such further assurances and assignments in the
Mortgaged Property as Mortgagee shall from time to time require.


 


(d)           Although
it is the intention of the parties that the assignment contained in this Section
18 shall be a present absolute assignment, it is expressly understood and
agreed, anything contained herein to the contrary notwithstanding, that
Mortgagee shall not exercise any of the rights or powers conferred upon either
of them by this Section 18 until an Event of Default shall have occurred
under this Mortgage, the Note, the Loan Agreement or the other Loan Documents.
Nevertheless, and notwithstanding anything to the contrary herein, upon the
express terms of this Section 18 and subject to the terms of Section 20
and Section 21 hereof, Mortgagee grants to Mortgagor
a revocable license to collect and receive the Rents and other sums due under
the Leases. Upon revocation of the foregoing license, Mortgagor shall hold the
Rents and all sums received pursuant to any Lease in trust for the benefit of
Mortgagee for use in the payment of the Obligations. This assignment and grant
shall continue in effect until the Note and all other outstanding Obligations
have been paid or performed in full.


 


19.          Restrictions on Transfer. Mortgagor shall
not create, effect, contract for, consent to or permit any conveyance, sale,
assignment, transfer, pledge, mortgage, security interest or other


 


10

















 


voluntary
lien, encumbrance or alienation of the Mortgaged Property or any part thereof
or interest therein, except as expressly permitted by the Loan Agreement,
whether any such conveyance, sale, contract, assignment, transfer, pledge,
mortgage, security interest, or other voluntary lien, encumbrance or alienation
is effected directly or indirectly.


 


20.          Events of Default. The occurrence
of any one or more of the
following events shall constitute an “Event of Default” under this Mortgage:


 


(a)           An
Event of Default shall have occurred under the Loan Agreement, the Note or any
of the other Loan Documents beyond applicable notice and cure periods; or


 


(b)           Mortgagor
shall violate any of the terms, covenants or provisions set forth in Section
19 of this Mortgage; or


 


(c)           Mortgagor
shall default in the performance of any other term, covenant or agreement
contained in this Mortgage (other than those specified elsewhere in this Section
20) for thirty (30) days
after written notice of such default has been given to Mortgagor by Mortgagee;
provided, however, that if such default is of a nature that it cannot be cured
within such thirty (30) day period and Mortgagor commences and diligently
proceeds to cure such default, such cure period shall be extended for such
period of time as required to cure such default but in no event more than
thirty (30) additional days.


 


21.          Remedies. Upon the
occurrence of any Event of Default, and in addition to the rights, powers and
remedies as may be available to Mortgagee under the Loan Agreement, the Note,
or any of the other Loan Documents, or at law or in equity conferred and to the
extent permitted by applicable Laws, the following provisions shall apply:


 


(a)           Acceleration.
Mortgagee may at any time and from time to time declare any or all of the
Obligations immediately due and payable and such Obligations shall thereupon be
immediately due and payable, without presentment, demand, protest, notice of
protest, notice of acceleration or of intention to accelerate of any kind, all
of which are hereby expressly waived by Mortgagor.


 


(b)           Mortgagee’s Right to
Enter and Take Possession, Operate and Apply Income. In any case in which
under the provisions of this Mortgage, Mortgagee has a right to institute foreclosure proceedings, whether before or
after the entire Obligations are declared to be immediately due as aforesaid, or whether before or
after the institution of legal proceedings to foreclose the lien hereof or
before or after sale thereunder, Mortgagor shall forthwith, upon demand of
Mortgagee, surrender to Mortgagee and Mortgagee shall be entitled to take
actual possession of the Mortgaged Property or any part thereof, personally, or
by its agent or attorneys. In such event Mortgagee in its discretion may, with
or without force and with or without process of law, as permitted by law, enter
upon and take and maintain possession of all or any part of said Mortgaged
Property, together with all documents, books, records, papers and accounts of Mortgagor or the then owner of the
Mortgaged Property relating thereto, and may exclude Mortgagor, and each of
their agents or servants, wholly therefrom and may, as attorney in fact or
agent of Mortgagor, or in its own name as Mortgagee and under the powers herein
granted, hold,


 


11

















 


operate,
manage and control the Mortgaged Property and conduct the business, if any,
thereof, either personally or by its agents, and with full power to use such
measures, legal or equitable, as in its discretion or in the discretion of its
successors or assigns may be deemed proper or necessary to enforce the payment
or security of the Rents, including actions for the recovery of rent, actions
in forcible detainer and actions in distress for rent, and with full power: (i)
to cancel or terminate any Lease for any cause or on any ground which would
entitle Mortgagor to cancel the same; (ii) to elect to disaffirm any Lease which is then
subordinate to the lien hereof; (iii) to extend or modify any then existing
Leases and to make new Leases on such terms as Mortgagee reasonably determines
to be commercially reasonable, which extensions, modifications and new Leases
may provide for terms to expire, or for options to lessees to extend or renew
terms to expire, beyond the maturity date of the Obligations and beyond the
date of the issuance of a deed or deeds to a purchaser or purchasers at a foreclosure sale, it being
understood and agreed that any such Leases, and the options or other such provisions
to be contained therein, shall be binding upon Mortgagor and all persons whose
interests in the Mortgaged Property are subject to the lien hereof and upon the
purchaser or purchasers at any foreclosure sale, notwithstanding any redemption
from sale, discharge of the Obligations, satisfaction of any foreclosure
decree, or issuance of any certificate of sale or deed to any purchaser; (iv) to
enter into any management, leasing or brokerage agreements covering the
Mortgaged Property with third parties on such terms as Mortgagee reasonably
deems to be commercially reasonable; (v) to make all necessary or proper
repairs, decorating, renewals, replacements, alterations, additions,
betterments and improvements to the Mortgaged Property as to it may seem judicious;
(vi) to insure and reinsure the same and all risks incidental to Mortgagee’s
possession, operation and management thereof; and (vii) to receive all of such
Rents; hereby granting full power and authority to exercise each and every of
the rights, privileges and powers herein granted at any and all times
hereafter, without notice to Mortgagor.


 


Mortgagee
shall not be obligated to perform or discharge, nor does it hereby undertake to
perform or discharge, any obligation, duty or liability under any Leases.
Mortgagor shall and does hereby agree to indemnify and hold Mortgagee harmless
of and from any and all liability, loss or damage which it may or might incur
by reason of its performance of any action authorized under this Section 21(b)
and of and from any and all claims and demands whatsoever which may be asserted
against it by reason of any alleged obligations or undertakings on its part to
perform or discharge any of the terms, covenants or agreements of Mortgagor.
Should Mortgagee incur any such liability, loss or damage, by its performance
or nonperformance of actions authorized by this Section 21(b), or in the
defense of any
claims or demands, the amount thereof, including costs, expenses and attorneys’
fees, together with interest on any such amount at the Default Rate shall be
secured hereby, and Mortgagor shall reimburse Mortgagee therefor immediately
upon demand.


 


(c)            Foreclosure,
etc. Mortgagee may, with or without entry, personally or by its agents or
attorneys, insofar as applicable:


 


(1)            Sell the Mortgaged
Property or any part thereof pursuant to the procedures provided by law at one
or more sales as an entirety or in parcels, and at such time and place upon
such terms and after such notice thereof as may be required or permitted by
law; and/or


 


12

















 


(2)           Institute
an action of judicial foreclosure on this Mortgage, seek the appointment of a
receiver as a matter of right, or institute other proceedings according to Laws
for the foreclosure hereof, and may prosecute the same to judgment, execution
and sale for the collection of the Obligations, and all interest with respect
thereto, together with all taxes and insurance premiums advanced by Mortgagee
and other sums payable by Mortgagor hereunder, and all fees, costs and expenses
of such proceedings, including attorneys’ fees and expenses, in the case of
which foreclosure Mortgagor will furnish to Mortgagee copies of all Leases and
other agreements affecting the Real Estate; and/or


 


(3)           Take such steps to
protect and enforce its rights whether by action, suit or proceeding in equity
or at law for the specific performance of any covenant, condition or agreement
in the Loan Documents or in and of the execution of any power herein granted,
or for any foreclosure hereunder, or for the enforcement of any other
appropriate legal or equitable remedy or otherwise as Mortgagee shall elect;
and/or


 


(4)           Exercise in respect of
the Mortgaged Property consisting of personal property or fixtures, or both,
all of the rights available to a secured party upon default under the
applicable provisions of the Code.


 


(d)           Conduct of Sale.


 


(1)           To the extent permitted
by Laws of the State of Florida, Mortgagee may adjourn from time to time any
sale by it to be made under or by virtue of this Mortgage by announcement at
the time and place appointed for such sale or for such adjourned sale or sales;
and, except as otherwise provided by any applicable provision of law,
Mortgagee, without further notice or publication, may make such sale at the
time and place to which the same shall be so adjourned; and/or


 


(2)           Upon any sale, whether
under the power of sale hereby given or by virtue of judicial proceedings or of
a judgment or decree of foreclosure and sale, except as required by law, it
shall not be necessary for Mortgagee or any public officer acting under
execution or order of court to have present or constructive possession of any
of the Mortgaged Property; and/or


 


(3)           The receipt by
Mortgagee of the purchase money paid at any such sale, or the receipt by any
other person authorized to receive the same, shall be sufficient discharge
therefor to any purchaser of the Mortgaged Property or any part thereof, sold
as aforesaid, and no such purchaser, or his representatives, grantees or assigns,
after paying such purchase money and receiving such receipt, shall be bound to
see to the application of such purchase money, or any part thereof, or be bound
to inquire as to the authorization, necessity, expediency or regularity of any
such sale; and/or


 


(4)           Should any Event of
Default occur under the terms of the Loan Agreement, any expenses incurred by
Mortgagee in prosecuting, resolving, or settling the claim of Mortgagee shall
become an additional “Obligation” of Mortgagor hereunder; and/or


 


(5)           The purchase money
proceeds or avails of any sale made under or by virtue of this Section 21,
together with any other sums which then may be held by Mortgagee


 


13

















 


under this Mortgage, whether
under the provisions of this Section 21 or otherwise, shall be applied
in accordance with the provisions of Section 22 hereof.


 


(e)            Appointment
of Receiver. Immediately upon the commencement of, or at any time during
the continuance of, any action, suit or other legal proceedings by Mortgagee to
obtain judgment for the Obligations, including without limitation, principal
of, or interest on, the Loan evidenced by the Note and other sums required to
be paid by Mortgagor pursuant to any provision of this Mortgage, or of any
nature in aid of the enforcement of the Note or of this Mortgage, including any
foreclosure action, Mortgagor consents (and will not hereafter object) to the
appointment of a receiver or receivers of the Mortgaged Property or any part
thereof and of all the earnings, revenues, Rents, maintenance payments, issues,
profits, to take possession of and to operate, maintain, develop and manage the
Mortgaged Property or any part thereof, as a matter of right, and if Mortgagee
shall so elect, Mortgagee shall
have the absolute right to apply to a court of competent jurisdiction for the
appointment of such a receiver or receivers, and such receiver or receivers
shall be appointed as a matter of right, without notice and without regard to
the adequacy or inadequacy of any security for the Loan evidenced by the Note
forthwith, either before or after declaring the unpaid principal of the Note to
be due and payable. In every case when a receiver of the whole or any part of
the Mortgaged Property shall be appointed under this Section or otherwise, the
net income and profits of the Mortgaged Property shall, subject to the order of
any court of competent jurisdiction, be paid over to, and shall be received by,
Mortgagee to be applied as provided in Section 22 hereof.


 


22.          Application of the Rents or Proceeds from Foreclosure or Sale. In any
foreclosure of this Mortgage by judicial action, or any sale of the Mortgaged
Property by advertisement or otherwise, in addition to any of the terms and
provisions of the Loan Agreement, there shall be allowed (and included in the
decree for sale in the event of a foreclosure by judicial action) to be paid
out of the Rents or the proceeds of such foreclosure proceeding and/or sale:


 


(a)            Obligations.
All of the Obligations and other sums secured hereby which then remain unpaid;


 


(b)           Other Advances.
All other items advanced or paid by Mortgagee pursuant to this Mortgage; and


 


(c)            Costs, Fees and
Other Expenses. All court costs, reasonable attorneys’ and paralegals’ fees
and expenses, appraiser’s fees, advertising costs, filing fees and transfer
taxes, notice expenses, expenditures for documentary and expert evidence,
stenographer’s charges, publication costs, and costs (which may be estimated as
to items to be expended after entry of the decree) of procuring all abstracts
of title, title searches and examinations, title insurance policies and similar
data with respect to title which Mortgagee may deem necessary. All such
expenses shall become additional Obligations secured hereby when paid or incurred
by Mortgagee in connection with any proceedings, including but not limited to
probate and bankruptcy proceedings, to which Mortgagee shall be a party, as
plaintiff, claimant or defendant, by reason of this Mortgage or any
indebtedness hereby secured or in connection with the preparations for the
commencement of any suit for foreclosure, whether or not actually commenced, or
sale by advertisement. The proceeds of any sale (whether through a foreclosure


 


14

















 


proceeding or
Mortgagee’s exercise of the power of sale) shall be distributed and applied in
accordance with the terms of the Loan Agreement.


 


23.          Judgment. Mortgagee shall
be entitled to recover judgment as aforesaid either before or after or during the
pendency of any proceedings for the enforcement of the provisions of this
Mortgage; and the right of Mortgagee to recover such judgment shall not be
affected by any entry or sale hereunder, or by the exercise of any other right
for the enforcement of the provisions of this Mortgage, or the foreclosure of
the lien hereof; and in the event of a sale of the Mortgaged Property or any
part thereof and of the application of the proceeds of sale, as provided in
this Mortgage, to the payment of the indebtedness hereby secured, Mortgagee
shall be entitled to enforce payment of, and to receive all amounts then
remaining due and unpaid upon, the Note and to enforce payment of all other
charges, payments, and costs due under the Loan Documents, and this Mortgage, and
shall be entitled to recover judgment for any portion of the debt remaining
unpaid, with interest thereon at the rate provided in the Note.


 


24.          Waivers and Agreements Regarding
Remedies. To the full
extent Mortgagor may do so, Mortgagor
hereby:


 


(a)            agrees
that it will not at any time plead, claim or take advantage of any Laws now or
hereafter in force providing for any appraisement, valuation, stay, extension
or redemption, and waives and releases all rights of redemption, valuation,
appraisement, stay of execution, extension and notice of election to accelerate
the Obligations;


 


(b)            waives
all rights to a marshaling of the
assets of Mortgagor, including without limitation, the Mortgaged Property, or
to a sale in the inverse order
of alienation in the event of a foreclosure of the Mortgaged Property, and
agrees not to assert any right under any Laws pertaining to the marshalling of
assets, the sale in inverse order of alienation, the exemption of homestead,
the administration of estates of decedents, or other matters whatsoever to
defeat, reduce or affect the right of Mortgagee under the terms of this
Mortgage to a sale of the Mortgaged Property without any prior or different
resort for collection, or the right of Mortgagee to the payment of the Obligations
out of the proceeds of sale of the Mortgaged Property in preference to every
other claimant whatsoever;


 


(c)            waives
any right to bring or utilize any permissive counterclaim (but Mortgagor does
not waive any right to bring or utilize any compulsory counterclaims), or
setoff, other than one which denies the existence or sufficiency of the facts
upon which any foreclosure action is grounded. If any counterclaim or setoff,
other than one permitted by the preceding clause, is timely raised in a foreclosure action, such
counterclaim or setoff shall be dismissed. If such counterclaim or setoff is
based upon a claim which could be tried in an action for money damages, such
counterclaim or setoff may be brought in a separate action which shall not
thereafter be consolidated with the foreclosure action. The bringing of such
separate action for money damages shall not be deemed to afford any grounds for
staying the foreclosure action; and


 


(d)            waives and
relinquishes any and all rights and remedies which Mortgagor may have or be
able to assert by reason of the provisions of any Laws pertaining to the rights
and remedies of sureties.


 


15

















 


25.          Suits to Protect the
Mortgaged Property. Mortgagee shall have the power and authority
(but not the duty) to institute and maintain any suits and proceedings as
Mortgagee may deem advisable (a) to prevent any impairment of the Mortgaged
Property by any acts which may be unlawful or which violate the terms of this
Mortgage; (b) to preserve or protect its interest in the Mortgaged Property; or
(c) to restrain the enforcement of or compliance with any legislation or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid, if the enforcement of or compliance with such enactment, rule or order
might impair the security hereunder or be prejudicial to Mortgagee’s interest.


 


26.          Proofs of Claim. In the case of
any receivership, insolvency, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding affecting Mortgagor, or
any constituent member of Mortgagor or Guarantors, to the extent permitted by
law, Mortgagee shall be entitled to file such proofs of claim and other
documents as may be necessary or advisable in order to have its claim allowed
in such proceedings for the entire amount due and payable by Mortgagor under
the Loan Documents, at the date of the institution of such proceedings, and for
any amounts which may become due and payable by Mortgagor after such date.


 


27.          Discontinuance of Proceedings, Position of
Parties
Restored. If Mortgagee shall have proceeded to enforce any right or
remedy under this Mortgage by foreclosure, entry or otherwise, and such
proceeding shall have been discontinued or abandoned for any reason, or such
proceedings shall have resulted in a final determination adverse to Mortgagee,
then and in every such case Mortgagee and Mortgagor shall be restored to their
respective former positions and rights hereunder, and all rights, powers and
remedies of Mortgagee shall continue as if no such proceedings had occurred or
had been taken.


 


28.          Rights Cumulative. Each right,
power and remedy herein conferred upon Mortgagee is cumulative and in addition
to every other right, power or remedy, express or implied, given now or
hereafter existing, at law or in equity, and each and every right, power and
remedy herein set forth or otherwise so existing may be exercised from time to
time as often and in such order as may be deemed expedient to Mortgagee and the
exercise or the beginning of the exercise of one right, power or remedy shall
not be a waiver of the right to exercise at the same time or thereafter any
other right, power or remedy; and no delay
or omission of Mortgagee in the exercise of any right, power or remedy accruing
hereunder or arising otherwise shall impair any such right, power or remedy, or
be construed to be a waiver of any default or acquiescence therein. Each such
remedy or right may be pursued separately, successively, or concurrently against
Mortgagor, or against the Mortgaged Property or against either of them at the
sole discretion of Mortgagee. No act of Mortgagee shall be construed as an election
to proceed under any one provision of this Mortgage to the exclusion of any other provision. Mortgagee
shall have the right from time to time to take action to recover any sum or
sums which constitute a part of the Obligations as same shall become due,
without regard to whether or not the balance of the Obligations shall then be
due, and without prejudice to the right of Mortgagee thereafter to bring an
action of foreclosure or any other action by reason of any other default or
defaults by Mortgagor existing at the time such earlier action was commenced.


 


29.          No Liability on Mortgagee. Notwithstanding
anything contained herein to the contrary, Mortgagee shall not be obligated to
perform or discharge, any Obligation, duty or liability of


 


16

















 


Mortgagor,
whether under any of the Leases or otherwise, and Mortgagor shall and does
hereby agree to indemnify and hold Mortgagee harmless of and from any and all
liability, claim expense, loss or damage which Mortgagee may or might incur
with respect to the Mortgaged Property, or under or by reason of its exercise
of rights hereunder, and of and from any and all claims and demands whatsoever
which may be asserted against Mortgagee by reason of any alleged obligations or
undertakings on its part to be performed or discharged, unless such liability,
claim expense, loss or damage was caused solely by Mortgagee’s gross negligence
or willful misconduct. Mortgagee shall not have responsibility for the control,
care, management or repair of the Mortgaged Property, or be responsible or
liable for any negligence in the management, operation, upkeep, repair or control of the Mortgaged Property
resulting in loss or injury or death to any tenant, licensee, employee or
stranger until Mortgagee has become a mortgagee in possession and assumes such
obligations, duties or liabilities which arise after the date of such
assumption. No liability shall be enforced or asserted against Mortgagee in its
exercise of the powers herein granted, and Mortgagor expressly waives and
releases any such liability. Until Mortgagee becomes a mortgagee in possession,
and assumes any liabilities under any of the Leases, should Mortgagee incur any
such liability, loss or damage,
under any of the Leases or under or by reason hereof, or in the defense of any
claims or demands, Mortgagor agrees to reimburse Mortgagee immediately upon
demand for the amount thereof, including costs, expenses and reasonable
attorneys’ fees, together with interest thereon from date of such payment at
the interest rate set forth in the Note. For purposes of this paragraph, the term
“attorneys” includes attorneys who are employees of Mortgagee acting as counsel
for Mortgagee, and the terms “fees”, “costs” and “expenses” shall include,
without limitation, the fees charged by Mortgagee for its in-house counsel.


 


30.          Further Assurances. Mortgagor will
do, execute, acknowledge and deliver all and every further acts, deeds,
conveyances, transfers and assurances necessary or proper for the better
assuring, conveying, mortgaging, assigning and confirming unto Mortgagee all
property mortgaged hereby or property intended so to be, whether now owned by
Mortgagor or hereafter acquired. Upon any failure by Mortgagor so to do,
Mortgagee may make, execute and record any and all such documents for and in
the name of Mortgagor, and Mortgagor hereby irrevocably appoints Mortgagee its
agent and attorney-in-fact for that purpose. Mortgagor will reimburse Mortgagee
for any and all sums expended by Mortgagee in making, executing and recording
such documents.


 


31.          Mortgagee’s Performance of
Mortgagor’s Obligations. Upon the occurrence of an Event of Default, or upon the occurrence of any emergency
(which in Mortgagee’s opinion would or could endanger, impair or otherwise harm
the Mortgaged Property or any part thereof), Mortgagee, either before or after
acceleration of the Obligations or the foreclosure of this Mortgage and during
the period of redemption, if any, may, but shall not be required to, upon
written notice to Mortgagor, make any payment or perform any act herein
required of Mortgagor (whether or not Mortgagor is personally liable therefor)
in any form and manner reasonably deemed expedient to Mortgagee; and Mortgagee
may, but shall not be required to, make full or partial payments with respect
to any Permitted Exception and any other encumbrances, if any, and purchase, discharge,
compromise or settle any tax lien or other prior lien or title or claim
thereof, or redeem from any tax sale or forfeiture affecting the Mortgaged
Property or any part thereof or contest any tax or assessment, and may, but
shall not be required to, complete construction, furnishing and equipping of
the Improvements, and rent, operate and manage the


 


17

















 


Mortgaged
Property, and pay operating costs and expenses (including without limitation
reasonable management fees) of every kind and nature in connection therewith,
so that the Mortgaged Property shall be operational and usable for its intended
purposes. All monies paid for any of the purposes herein authorized, and all
expenses paid or incurred in connection therewith, including without limitation
reasonable attorneys’ fees and all costs of litigation through and including
post-judgment and appellate proceedings, if any, and other monies advanced by
Mortgagee to protect the Mortgaged Property or any part thereof, and the
interest created by this Mortgage, or to complete construction, furnishing and
equipping or to rent, operate and manage the Mortgaged Property or to pay any
such operating costs and expenses thereof or to keep the Mortgaged Property
operational and usable for its intended purpose shall be included within the
term “Obligations” as  used
in this Mortgage, and shall
become immediately due and payable without notice, and with interest thereon at
the Default Rate. Inaction of Mortgagee shall never be considered as a waiver
of any right accruing to it on account of any Default on the part of Mortgagor.
Mortgagee, in making any payment hereby authorized (a) relating to Taxes, may
do so according to any bill, statement or estimate,
without inquiry into the validity of any tax, assessment, sale, forfeiture, tax
lien or title or claim thereof; (b) for the purchase, payment, discharge,
compromise or settlement of any other lien or Permitted Exception, may do so
without inquiry as to the validity or amount of any claim for lien which may be
asserted; or (c) in connection with the rental, operation or management of the
Mortgaged Property or the payment of operating costs and expenses thereof,
Mortgagee may do so in such amounts and to such persons as Mortgagee may deem
appropriate and may enter into such contracts therefor as Mortgagee may deem
appropriate or may perform the same itself.


 


32.          Mortgagor’s Successors. In the event
that the ownership of Mortgaged Property, or any part thereof, becomes vested
in a person or persons other than Mortgagor, Mortgagee may, without notice to
Mortgagor, deal with such successor or successors in interest of Mortgagor with
reference to this Mortgage and the Obligations in the same manner as with
Mortgagor; provided, however, that nothing contained in this Section 32
shall modify, limit or otherwise abrogate the restrictions on transfer set
forth in Section 19.


 


33.          Successors and Assigns. This Mortgage
and each and every covenant, agreement and other provision hereof shall be
binding upon Mortgagor and its successors and assigns (including, without
limitation, each and every record owner from time to time of the Mortgaged
Property or any other person having an interest therein), and shall inure to
the benefit of Mortgagee and its successors and assigns. Wherever herein
Mortgagee is referred to, such reference shall be deemed to include the holder
from time to time of the Note, whether so
expressed or not, and each such holder of the Note shall have and enjoy
all of the rights, privileges, powers, options and benefits afforded hereby and
hereunder, and may enforce each and every term and provision hereof as fully
and to the same extent and with the same effect as if such holder were herein
by name specifically granted such rights, privileges, powers, options and
benefits and was herein by name designated Mortgagee.


 


34.          Provisions Severable. If fulfillment
of any provision of this Mortgage or any transaction related hereto shall at
any time involve transcending the limit of validity prescribed by law, then ipso
facto, the obligation to be fulfilled shall be reduced to the limit of
such validity; and if any clause or provision herein contained, other than the
provisions requiring Mortgagor to pay the Obligations, operates or would
prospectively operate to invalidate this Mortgage in whole or in


 


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part, then
such clause or provision only shall be void, as though not herein contained, and
the remainder of this Mortgage shall remain operative and in full force and
effect; and if such clause or provision requires Mortgagor to pay any of the
Obligations, then at the sole option of
Mortgagee, all of the Obligations shall become due and payable.


 


35.          Time of the Essence. Subject to any
applicable notice, grace and/or cure periods provided in the Loan Documents,
time is hereby declared to be of the essence of this Mortgage and of every part
hereof.


 


36.          Captions. The captions
and headings of the various Sections of this Mortgage are for convenience only,
and are not to be construed as confining or limiting in any way the scope or
intent of the provisions hereof.


 


37.          Notices. Any notice,
demand, request or other communication which any party hereto may be required
or may desire to give hereunder shall be in writing, addressed as follows and
shall be deemed to have been properly given if hand delivered, if sent by
reputable overnight courier for next Business Day delivery (effective the
Business Day following delivery to such courier), if sent by telecopy with confirmation of receipt and a hard copy
mailed in accordance with the provisions of this Section 37 (effective
the Business Day following receipt of confirmation of receipt) or if mailed
(effective two Business Days after mailing) by United States registered or
certified mail, postage prepaid, return receipt requested:


 


If to
Mortgagor:


 


BTS Monterrey
Holdings LLC


17080 Safety
Street, Suite 109


Fort Myers, Florida 33908


Attention: Jeffrey J. Milton


Telecopy
Number: (239) 472-2640


Confirmation
Number: (239) 579-1126


 


With a copy to:


 


Bingham
McCutchen LLP


3000 K Street, N.W., Suite 300


Washington,
D.C., 20007-5116


Attention:
Erik T. Hoffman,
Esq.


Telecopy
Number: (202) 424-7645


Confirmation
Number: (202) 373-6134


 


19

















 


If to
Mortgagee:


 


CORUS BANK,
N.A.


3959 N.
Lincoln Avenue


Chicago,
Illinois 60613


Attention:
Chris Barkidjija,

Vice President


Telecopier
Number (773) 832-3540


Confirmation
Number (773) 832-3555


 


With a copy to:


 


CORUS
Bank, N.A.


3959 N.
Lincoln Avenue


Chicago,
Illinois 60613


Attention:
Joel C. Solomon, Esq.,

General Counsel-Commercial Lending


Telecopy
Number: (773) 832-3626


Confirmation
Number: (773) 832-3526


 


Refusal to
accept delivery of any notice shall be deemed to constitute receipt of such
notice.


 


38.          Parties Not Partners. Nothing
contained in this Mortgage shall constitute Mortgagor and Mortgagee as joint
venturers or partners with one another or agents for one another or render
either of them liable for any
debts or obligations of the other.


 


39.          Estoppel Letters.


 


(a)            Mortgagor, upon ten
(10) Business Days’ prior written notice, shall furnish Mortgagee with a
written statement, duly acknowledged, setting forth the unpaid principal of,
and interest on, the Obligations, and stating whether or not any off-sets or
defenses exist against such principal and interest, and, if so, the particulars
thereof, and any other matters requested by Mortgagee that relate to the Loan.


 


(b)            Mortgagee, upon ten
(10) Business Days’ prior written notice, shall furnish Mortgagor with a
written Statement, duly acknowledged, setting forth the unpaid principal of, and
interest on, the Obligations, and stating whether or not any off-sets or
defenses exist against such principal and interest, and, if so, the particulars
thereof, and any other matters reasonably requested by Mortgagee that relate to
the Loan.


 


40.          Indemnification.


 


(a)            In addition to all
other indemnities in favor of Mortgagee
specifically provided in the Loan Agreement or any of the Loan Documents,
Mortgagor shall indemnify Mortgagee and save Mortgagee harmless from and
against any and all losses, liabilities, suits, obligations, fines, damages,
penalties, claims, costs, charges, and expenses, including, without limitation,
architect’s, engineer’s, attorneys’ and accountant’s fees and all disbursements
which may be imposed upon, incurred or asserted against Mortgagee (unless
caused solely by


 


20

















 


Mortgagee’s
gross negligence or willful misconduct) before Mortgagee becomes a mortgagee in
possession and has assumed any obligations, duties and liabilities by reason
of: (i) any capital improvements, renovations or other work done in, on or
about the Mortgaged Property or any part thereof; (ii) any use, non-use,
misuse, possession, occupation, alteration, repair, condition, operation,
maintenance or management of the Mortgaged Property or any part thereof or any
street, drive, sidewalk, curb, passageway or space comprising a part thereof or
adjacent thereto; (iii) any negligence on the part of either Mortgagor or its
agents, contractors, servants, employees, licensees or invitees; (iv) any
accident, injury (including death) or damage to any person or property
occurring in, on or about the Mortgaged Property or any part thereof or in, on
or about any street, drive, sidewalk, curb, passageway or space adjacent thereof;
(v) an Event of Default as defined herein; (vi) any lien or claim which may be
alleged to have arisen on or against the Mortgaged Property or any part thereof
under the Laws of the local or state government or any other governmental or
quasi-governmental authority or any liability asserted against Mortgagee with
respect thereto; (vii) any tax attributable to the execution, delivery, filing
or recording of this Mortgage, the Note, or any Loan Documents, or (viii) any
contest with a third party permitted pursuant to the provisions of this Mortgage initiated by
Mortgagor.


 


(b)           The obligations of
Mortgagor under this Section 40 shall not in any way be affected by the
absence in any case of covering insurance or by the failure or refusal of any
insurance carrier to perform any obligation on its part under insurance
policies affecting the Mortgaged Property. If any claim, action or proceeding
is made or brought against Mortgagee by reason of any event as to which
Mortgagor is obligated to indemnify, then upon demand by Mortgagee, Mortgagor,
at its sole cost and expense, shall resist or defend such claim, action or
proceeding in Mortgagee’s name, if necessary by the attorneys for Mortgagor’s
insurance carrier (if such claim, action or proceeding is covered by insurance),
otherwise by such attorneys as Mortgagee shall approve in writing (which
approval shall not be unreasonably withheld). Notwithstanding the foregoing,
Mortgagee may engage its own attorneys to defend it or to assist in its defense
and Mortgagor shall pay the reasonable fees and disbursements of such attorneys.


 


41.          Non-Waiver By Mortgagee. The failure of
Mortgagee to insist upon strict performance of any term of this Mortgage shall
not be deemed to be a waiver of any term of this Mortgage. Mortgagor shall not
be relieved of its obligation to pay the Obligations, as and when due, by
reason of Mortgagee’s failure to comply with any request of Mortgagor to take
any action to enforce any of the provisions of this Mortgage, the Note or any
of the Loan Documents. Regardless of consideration, and without the necessity
for any notice to or consent by the holder of any subordinate lien,
encumbrance, right, title or interest in or to the Mortgaged Property,
Mortgagee may release any person or entity at any time liable for the payment
of the Obligations or any portion thereof or any part of the security held
therefor, without in any manner impairing or affecting the Note, Loan Documents
or the lien thereof or the lien or priority of this Mortgage, as so extended and modified. Mortgagee
may resort for the payment of the Obligations to any other security held by
Mortgagee in such order and manner as Mortgagee, in its discretion, may elect.
Mortgagee may take action to recover the Obligations, or any portion thereof, or
to enforce any covenant of this Mortgage, without prejudice to the right of
Mortgagee thereafter to foreclose this Mortgage.


 


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42.         Governing Law. Mortgagor
hereby acknowledges, consents and agrees this Mortgage and the rights of all
parties mentioned herein shall be governed by the Laws (as opposed to the
conflict of Laws) of the State of Illinois. Notwithstanding the foregoing, the
parties agree that:


 


(a)           The
procedures governing the enforcement by Mortgagee of the provisional remedies
against the Project or the Mortgagor, including by way of illustration but not
limitation, actions for replevin or claim and delivery of the Project, for
injunctive relief or for the appointment of a receiver, or for the enforcement
of the power of sale, if any,
with respect to the Project shall be governed by the Laws of the State of
Florida;


 


(b)           The
Mortgagee shall comply with applicable Laws of the State of Florida to the
extent required in connection with the foreclosure of the security interests
and liens created thereby and the enforcement of any power of sale, as the case
may be; provided, however, that this subparagraph shall in no event be
construed to provide that the substantive Laws of the State of Florida shall
apply to this Mortgage or any of the other Loan Documents, all of which are and
shall continue to be governed by the substantive Laws of the State of Illinois.
The parties further agree that Mortgagee may enforce its rights under this
Mortgage and the other Loan Documents, including but not limited to, its rights
to sue Mortgagor to collect any outstanding Obligations or to obtain a judgment
for any deficiency in accordance with Illinois Laws following foreclosure or
enforcement of any of the liens and security interests against any of the
Collateral and/or the enforcement of the power of sale, as the case may be.


 


43.         Interim Remedies. Mortgagee shall
have the right from time to time to take action to recover any sum or sums
which constitute a part of the Obligations as same shall become due, without
regard to whether or not the balance of the Obligations shall then be due, and
without prejudice to the right
of Mortgagee thereafter to bring an action of foreclosure or any other action
by reason of any default or defaults by Mortgagor existing at the time such
earlier action was commenced.


 


44.         Conflicts. In the event of
any inconsistency between the terms of this Mortgage and any of the other Loan
Documents (other than the Note), the terms of the Loan Agreement shall control.


 


45.         Repayment of Loan. Upon the full
repayment and performance of the Obligations secured hereby, Mortgagee, upon
Mortgagor’s written request and without charge to Mortgagor, shall execute and
deliver to Mortgagor either a release of this Mortgage or an assignment of this
Mortgage to a third party, as requested by Mortgagor.


 


46.         WAIVER OF JURY TRIAL. MORTGAGOR AND
MORTGAGEE EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE
OR DEFEND ANY RIGHTS UNDER THIS MORTGAGE OR RELATING THERETO OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS MORTGAGE AND AGREES THAT ANY SUCH ACTION
OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.


 


47.          Jurisdiction. Mortgagor
irrevocably (a) submits to the non-exclusive personal jurisdiction of any
federal court in the Northern District of
Illinois and any state or other local


 


22

















 


court in the
County of Cook, State of Illinois, in any suit, action or other legal
proceeding relating to this Mortgage; (b) agrees that all claims in respect of
any such suit, action or other legal proceeding may be heard and determined in,
and enforced in and by, any such court; (c) waives any objection that it may now
or hereafter have to venue in any such court or that such court is an
inconvenient forum; (d) agrees to service of process in any such proceeding by
registered or certified mail, postage prepaid, or in any other manner permitted
by law, to any then active agent for service of process at any specified
address or to Mortgagor at its address set forth above or to such other address
of which Mortgagee shall have been notified in writing (such service to be
effective on the earlier of receipt thereof or, in the case of service by mail,
when received or when receipt thereof is first refused by the intended
recipient of the notice), and hereby waives any claim of error arising out of service of
process by any method provided for herein or any claim that such service was
not effectively made; (e) agrees that the failure of its agent to give any
notice of any such service of process to it shall not impair or affect the
validity of such service or any judgment based thereon; (f) to the extent that
Mortgagor has acquired, or hereafter may acquire, any immunity from
jurisdiction of any such court or from legal process therein, waives, to the
fullest extent permitted by applicable Laws, such immunity; (g) to the fullest
extent permitted by applicable Laws, in connection with, or with respect to,
any suit, action or other legal proceeding relating to this Mortgage (i) WAIVES
any claim that it is immune from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to it or any of its property, (ii) WAIVES any claim
that it is not personally subject to the jurisdiction of any such court, and
(iii) WAIVES any right to assert
any counterclaim therein; and (h) agrees that Mortgagee shall have the right to
bring any legal proceedings (including a proceeding for enforcement of a
judgment entered by any of the aforementioned courts) against Mortgagor in any
other court or jurisdiction in accordance with applicable Laws. Notwithstanding
the foregoing, nothing in this Section shall affect the right of Mortgagee to
bring any action or proceeding relating to this Mortgage in the courts of any
jurisdiction or the right, in connection with any legal action or proceeding
whatsoever, to serve legal process in any other manner permitted by law.


 


[Signature Page Follows]


 


23

















 


IN
WITNESS WHEREOF, Mortgagor
has caused this Mortgage to be duly signed and delivered the day and year first
above written.


 


	
   

  	
  MORTGAGOR:

  
	
   

  	
   

  
	
   

  	
  BTS
  MONTERREY HOLDINGS LLC, a Delaware 

  limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  BTS Monterrey LLC, a Delaware limited liability

  
	
   

  	
   

  	
  company, its Sole Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  BTS Development Monterrey LLC, a

  
	
   

  	
   

  	
   

  	
  Delaware limited liability
  company, its

  
	
   

  	
   

  	
   

  	
  Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Jeffrey J. Milton

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Jeffrey J. Milton

  
	
   

  	
   

  	
   

  	
  Title:

  	
  CEO

  



 


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