**Exhibit 10.493**

 

Prepared by andreturn to:

Darrell D. Garvey,Esquire

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

450 South OrangeAvenue, Suite 800

Orlando, Florida 32801

 
|   | Borrower Name: | Inland Western Viera Lake Andrew, L.L.C. |
|--------|----------------|------------------------------------------|
|   | Project Name:  | Shoppes at Lake Andrew  Viera, Florida   |

 

 

**THISMORTGAGE MODIFICATION AND AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENTAMENDS AND RESTATES THAT CERTAIN NOTICE OF FUTURE ADVANCE, MORTGAGEMODIFICATION AND AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT DATEDFEBRUARY 26*,*2004 AND RECORDED ON MARCH 1, 2004 IN OFFICIALRECORDS BOOK 5212, PAGE 2259 OF THE PUBLIC RECORDS OF BREVARD COUNTY, FLORIDAAS ASSUMED BY BORROWER PURSUANT TO THAT CERTAIN ASSUMPTION AGREEMENT OF EVENDATE HEREWITH (THE “ASSUMPTION AGREEMENT”), AND SECURES THE RENEWAL NOTEREFERRED TO HEREIN IN THE ORIGINAL PRINCIPAL AMOUNT OF FIFTEEN MILLION SIXHUNDRED FIFTY-SIX THOUSAND FIVE HUNDRED ELEVEN AND NO/100 DOLLARS ($15,656,511.00)(THE “RENEWAL NOTE”).  THE RENEWAL NOTEAMENDS, RESTATES AND RENEWS THAT CERTAIN FUTURE ADVANCE AND RENEWAL NOTE IN THESTATED PRINCIPAL SUM OF FIFTEEN MILLION EIGHT HUNDRED FIFTY THOUSAND AND NO/100DOLLARS ($I5,850,000.00) DATED FEBRUARY 27, 2004.**

 

**DOCUMENTARYSTAMP TAX ON SAID OUTSTANDING AMOUNT IN THE SUM OF FIFTY-FIVE THOUSAND FOURHUNDRED SEVENTY-FIVE AND NO/100 DOLLARS ($55,475.00.00) HAS BEEN PAIDSIMULTANEOUSLY WITH THE RECORDING OF THE ASSUMPTION AGREEMENT.  THE OUTSTANDING PRINCIPAL BALANCE OF THERENEWAL NOTE IS EXEMPT FROM FLORIDA INTANGIBLE TAXES PURSUANT TO FLORIDASTATUTES SECTION 199.145.3.**

 

**MORTGAGE MODIFICATION AND AMENDED ANDRESTATED MORTGAGE ANDSECURITY AGREEMENT**

 

THIS MORTGAGE MODIFICATION AND AMENDED AND RESTATED MORTGAGE ANDSECURITY AGREEMENT is made, executed and delivered as of this 30 day ofDecember, 2004, by **INLAND WESTERN VIERA LAKEANDREW, L.L.C.,** a Delaware corporation whose address is 2901Butterfield Road, Oak Brook, Illinois 60523, Attention: Mr. Michael Poe, to andin favor of **NATIONWIDE LIFE INSURANCE COMPANY,**an Ohio corporation, its successors and assigns (hereinafter referred to as “Lender”),having its principal office at One Nationwide Plaza, Columbus, Ohio 43215-2220,

 

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Attention: Real EstateInvestment Department, 34T, or at such other place either within or without theState of Ohio, as Lender may from time to time designate;

 

**THAT WHEREAS,**Lenderis the owner and holder of that certain Mortgage and Security Agreement byWICKHAM & 95 CORP., a Florida corporation, LOT 90, L.L.C., a Floridalimited liability company, and LOT 91, L.L.C., a Florida limited liabilitycompany (collectively, “Wickham”) to and in favor of AmSouth Bank, a statebanking corporation (“AmSouth”) dated October 30, 2002 and recorded on November4, 2002, in Official Records Book 4728, Page 3484, of the Public Records ofBrevard County, Florida (hereinafter referred to as the “AmSouth Mortgage”);and

 

**WHEREAS,**theOriginal Mortgage secures that certain Promissory Note executed by Wickham toand in favor of AmSouth dated October 30, 2002 in the original principal amountof FIFTEEN MILLION ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($15,150,000.00)(the “AmSouth Note”); and

 

**WHEREAS,**theAmSouth Mortgage and the AmSouth Note were subsequently assigned andtransferred to Lender pursuant to that certain Assignment of Note and MortgageAgreements from AmSouth to Lender dated February 24, 2004 and recorded March 1,2004 in Official Records Book 5212, Page 2254 of the Public Records of BrevardCounty, Florida; and

 

**WHEREAS,**theprincipal balance of the AmSouth Note was increased and the AmSouth Note wasrenewed by certain Future Advance and Renewal Note executed by Wickham to andin favor of Lender in the amount of FIFTEEN MILLION EIGHT HUNDRED FIFTYTHOUSAND AND NO/100 DOLLARS ($15,850,000.00) (the “Future Advance and RenewalNote”); and

 

**WHEREAS,**the FutureAdvance and Renewal Note is secured by that certain Notice Of Future Advance,Mortgage Modification and Amended and Restated Mortgage and Security Agreement(the “Original Mortgage”) from Wickham to Lender dated February 27, 2004 andrecorded on March 1, 2004 in Official Records Book 5212, Page 2259 of thePublic Records of Brevard County, Florida which encumbers, among other things,that certain real property located in Brevard County, Florida more particularlydescribed on **Exhibit A**attachedhereto (the “Overall Property”); and

 

**WHEREAS**the FutureAdvance and Renewal Note has a current principal balance in the amount ofFIFTEEN MILLION SIX HUNDRED FIFTY-SIX THOUSAND FIVE HUNDRED ELEVEN AND 00/100DOLLARS ($15,656,511.00); and

 

**WHEREAS,**Borrowerassumed the Loan pursuant to that certain Assumption Agreement of even dateherewith to be recorded in the Public Records of Brevard County, Florida; and

 

**WHEREAS,**inconnection with the assumption of the Loan, Borrower executed a Renewal Note ofeven date herewith in the Original Principal Amount of FIFTEEN MILLION SIXHUNDRED FIFTY-SIX THOUSAND FIVE HUNDRED ELEVEN AND 00/100 DOLLARS ($15,656,511.00)(the “Note”); and

 

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**WHEREAS,**Borrowerand Lender desire to modify and amend the Original Mortgage in order to reflectthat the Original Mortgage secures the Note, and to modify and amend certainother terms of the Original Mortgage.

 

**NOWTHEREFORE,**for and in consideration of the premises andmutual covenants herein contained and for and in consideration of the sum ofTEN AND NO/100 DOLLARS ($10.00) the receipt and sufficiency of which are herebyacknowledged, Borrower and Lender hereby agree as follows:

 

1.                                       Allof the foregoing recitations are true and correct and are hereby incorporated hereinand made a part hereof.

 

2.                                       Underno circumstances shall this instrument or any portion hereof constitute or bedeemed to constitute a novation of the Original Mortgage.  The Original Mortgage, as hereby amended andrestated, shall secure the Note with the same priority of lien as if thisinstrument had been executed and recorded at the same time as the OriginalMortgage was originally executed and recorded.

 

3.                                       Borrowerhereby covenants, stipulates, agrees and acknowledges that the obligation ofBorrower to repay to Lender the Note is hereby declared to be secured by the OriginalMortgage, as amended and restated hereby, in the same manner and to the sameextent as if the Note was made and executed on the date that the OriginalMortgage was originally executed and delivered and that nothing hereincontained shall diminish or in any way or manner limit the right of Lender tomake additional advances to the Borrower pursuant to the provisions of theOriginal Mortgage, as amended and restated hereby.

 

4.                                       Borrowerhereby acknowledges, represents and confirms unto Lender that (a) it does notnow have and at no prior time had any defenses (including without limitation,the defense of usury), claims, counterclaims, cross-actions or equities, orrights of rescission, set off, abatement, or diminution, with respect to theOriginal Note, the Original Mortgage or the Note or the Mortgage (ashereinafter defined) or any other loan documents executed in connection therewith,and that it has at no time asserted any such defense, claim or right ofrescission, set off, abatement or diminution with respect thereto, and if anysuch defense, claim, counterclaim, cross-action or equity, or rights of rescission,set off, abatement or diminution do exist the same are hereby waived andreleased; (b) the Original Mortgage, the Original Note and all other loan documentsexecuted in connection therewith are valid, binding and free from any infirmityof any nature whatsoever, and are enforceable in accordance with theirrespective terms; (c) the Original Mortgage constitutes a valid first lienagainst the Property (defined herein); and (d) no payments of interest or anyother charges have been made to Lender which would result in the computation orearning of interest in excess of the maximum legal rate of interest permitted underthe laws applicable thereto.

 

5.                                       Theterms and conditions of the Mortgage are hereby amended and superseded in theirentirety; and the Original Mortgage is hereby restated in its entirety (theOriginal Mortgage as so amended and restated being herein referred to as the “Mortgage”)as follows:

 

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**MORTGAGEAND SECURITY AGREEMENT**

 

**THIS MORTGAGE AND SECURITY AGREEMENT**(hereinafterreferred to as the “Mortgage”) is made, executed and delivered as of the dayand year first written above by **INLANDWESTERN VIERA LAKE ANDREW, L.L.C.,**a Delaware corporation(hereinafter referred to as “Borrower”), whose address is 2901 ButterfieldRoad, Oak Brook, Illinois 60523, Attention: Mr. Michael Poe, to and in favor of**NATIONWIDE LIFE INSURANCE COMPANY,**anOhio corporation, its successors and assigns hereof (hereinafter referred to as“Lender”), having its principal office at One Nationwide Plaza, Columbus, Ohio43215-2220, Attention: Real Estate Investment Department, 34T, or at such otherplace either within or without the State of Ohio, as Lender may from time totime designate;

 

**WITNESSETH:**

 

**WHEREAS,**Borrower isjustly indebted to Lender in the original principal sum of FIFTEEN MILLION SIXHUNDRED FIFTY-SIX THOUSAND FIVE HUNDRED ELEVEN AND NO/100 DOLLARS($15,656,511.00) with interest thereon, which Loan is evidenced and representedby that certain Renewal Note of even date herewith from Borrower to Lender inthe amount of the Loan (hereinafter referred to as the “Note”), both principaland interest being payable as therein provided, with the first payment on theNote becoming due and payable on the date of disbursement, and all amountsremaining unpaid thereon being finally due and payable on March 1, 2014, andthe term “Note” shall include all other notes given in substitution,modification, increase, renewal or extension of the original Note describedherein, in whole or in part; and

 

**WHEREAS,**Lender, asa condition precedent to the extension of credit and the making of the Loan hasrequired that Borrower provide Lender with security for the repayment of theLoan as well as for the performance, observance and discharge by Borrower ofvarious 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 suchsecurity;

 

**NOW THEREFORE,**inconsideration of and in order to secure the repayment of the Loan evidenced andrepresented by the Note, together with interest on the Loan, as well as thepayment of all other sums of money secured hereby, as hereinafter provided; tosecure the observance, performance and discharge by Borrower of all terms,covenants, conditions and agreements set forth in the Note, this Mortgage andin the other Loan Documents (hereafter defined); in order to charge theproperties, 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 byLender to Borrower, and other good and valuable considerations, the receipt andsufficiency of which are hereby acknowledged by Borrower, Borrower does herebygrant, bargain, sell, convey, assign, transfer, pledge, deliver, hypothecate,warrant and confirm unto Lender forever, all of Borrower’s right, title andinterest in and to the following described properties, including all rights,interests, replacements, substitutions and additions thereto, therein ortherefore (collectively, the “Mortgaged Property”):

 

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(a)                                   Allthat certain piece, parcel or tract of land or real property of which Borroweris now seized and in actual or constructive possession, situated in the City ofViera, County of Brevard and State of Florida, and being more particularlydescribed on **Exhibit A** attached hereto andby this reference made a part hereof (the “Real Property”);

 

(b)                                  Allbuildings, structures and other improvements of any kind, nature or descriptionnow 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)                                   Allminerals, royalties, gas rights, water, water rights, water stock, flowers,shrubs, lawn plants, crops, trees, timber and other emblements now or hereafterlocated on, under or above all or any part of the Real Property;

 

(d)                                 Alland singular, the tenements, hereditaments, strips and gores, rights-of-way,easements, privileges, profits and other appurtenances now or hereafterbelonging or in any way appertaining to the Real Property, including, withoutlimitation, all right, title and interest of Borrower in any after-acquiredright, 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)                                  Anyand all leases, licenses, contracts, rents, license fees, royalties, issues, revenues,profits, proceeds, deposits, income and other benefits, including accountsreceivable, termination fees, of, accruing to or derived from the RealProperty, Improvements and Appurtenances, and any business or enterprisepresently situated or hereafter operated thereon and therewith and all ofBorrower’s right, title and interest under any and all lease guaranties, lettersof credit, and any other credit support furnished to Borrower in connectionwith any of the foregoing (the “Rents”);

 

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

 

(g)                                 Allfixtures, materials, equipment, machinery, apparatus, appliances, and otherproperty whatsoever now or hereafter attached to, installed in, or used inconnection with the buildings and other improvements now erected or hereafterto be erected on said land, including, but not limited to, furnaces, steamboilers, hot-water boilers, oil burners, pipes, radiators, air conditioning andsprinkler 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 allfixtures, accessions and appurtenances thereto, and all renewals orreplacements of or substitutions for any of the

 

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foregoing, all of which property and things are herebydeclared to be permanent fixtures and accessions to the freehold and part ofthe realty conveyed herein as security for the indebtedness herein mentioned;and

 

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

 

**TO HAVE AND TO HOLD** the foregoingMortgaged Property and the rights hereby granted for its use and benefit untoLender and its successors and assigns in fee simple forever.

 

In order to secure the repayment of the Loan evidenced and representedby the Note, together with interest on the Loan, as well as the payment of allother sums of money secured hereby, as hereinafter provided; and to secure theobservance, performance and discharge by Borrower of all covenants, conditionsand agreements set forth in the Note, this Mortgage and in the other LoanDocuments; and in order to charge the properties, interests and rightshereinafter described with such payment, observance, performance and discharge;and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) paid byLender and other good and valuable considerations, the receipt and sufficiencyof which are hereby acknowledged, Borrower hereby grants Lender a securityinterest 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, PaymentIntangibles and Software), Letters of Credit, Letter-of-Credit Rights, Documents,As-Extracted Collateral, Money and Deposit Accounts of every kind, and allproceeds 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 belocated upon, attached, affixed to or used or useful, either directly orindirectly, in connection with the complete and comfortable use, occupancy andoperation of the Real Property, Improvements or Appurtenances as a retailcenter project (the “Existing Use”), or any other business, enterprise oroperation as may hereafter be conducted upon or with said Real Property,Improvements or Appurtenances, including, without limitation, any and alllicenses, permits or franchises, used or required in connection with such use,occupancy or operation as well as the proceeds thereof or therefrom regardlessof form, all security deposits and advance rentals under lease agreements nowor at any time hereafter covering or affecting any of the Property and held byor for the benefit of Borrower, all monetary deposits which Borrower has beenrequired to give to any public or private utility with respect to utilityservices furnished to the Real Property or Improvements, all rents, issues andprofits from leases of all or any part of the Real Property or Improvements,all proceeds (including premium refunds) of each policy of insurance relating tothe Real Property or Improvements, all proceeds from the taking of the RealProperty or Improvements or any part thereof or any interest therein or rightor 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 insurancewith respect to the Real Property or Improvements, all proceeds and otheramounts paid or owing to Borrower under or pursuant to any and all contractsand bonds relating to the construction, erection or renovation of the RealProperty or Improvements, all oil, gas and other hydrocarbons and otherminerals produced from or allocated to the Real Property and all productsprocessed or obtained therefrom, the proceeds thereof, and

 

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all accounts and generalintangibles under which such proceeds may arise, together with any sums ofmoney that may now or at any time hereafter become due and payable to Borrowerby virtue of any and all royalties, overriding royalties, bonuses, delayrentals and any other amount of any kind or character arising under any and allpresent and future oil, gas and mining leases covering the Real Property or anypart thereof (collectively, the “Fixtures and Personal Property”) which termexpressly excludes any toxic waste or substance deemed hazardous under federal,regional, state or local laws, codes, ordinances, statutes, rules, regulations,decisions or orders).  The MortgagedProperty and the Fixtures and Personal Property are herein together referred toas the “Property”.

 

Except as otherwise expressly provided in this Mortgage, all terms inthis Mortgage relating to the Property and the grant of the foregoing securityinterest 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 inArticle 9, in any other Article) of the UCC, as those meanings may be amended,revised or replaced from time to time.  Notwithstandingthe foregoing, the parties intend that the terms used herein which are definedin the UCC have, at all times, the broadest and most inclusive meaningspossible.  Accordingly, if the UCC shallin the future be amended or held by a court to define any term used herein morebroadly 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 orheld by a court to define any term used herein more narrowly, or lessinclusively, than the UCC in effect on the date of this Mortgage, suchamendment or holding shall be disregarded in defining terms used in thisMortgage.

 

Borrower hereby covenants and warrants with and to Lender that Borroweris indefeasibly seized of the Property and has good right, full power, andlawful authority to convey and encumber all of the same as aforesaid; thatsubject to the Permitted Exceptions (as hereinafter defined) Borrower herebyfully warrants the title to the Property and will defend the same and thevalidity and priority of the lien and encumbrance of this Mortgage against thelawful claims of all persons whomsoever; and Borrower further warrants that theProperty is free and clear of all liens and encumbrances of any kind, nature ordescription, save and except only (with respect to said Real Property,Improvements and Appurtenances) for real property taxes for years subsequent to2004 (which are not yet due and payable) and those exceptions accepted byLender as set forth in the title insurance commitment or proforma policy issuedto Lender precedent to the issuance of a Lender’s Policy of Title Insuranceinsuring the first lien priority of this Mortgage (the “Permitted Exceptions”).

 

If Borrower shall pay to Lender the Loan evidenced by the Note, and ifBorrower 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 otherLoan Documents, then this Mortgage and the estates and interests hereby grantedand created shall cease, terminate and be null and void, and shall bedischarged 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:

 

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1.                                       Paymentof Principal and Interest.  Borrowershall pay the principal of the Loan evidenced by the Note, together with allinterest thereon, in accordance with the terms, covenants and conditions of theNote, promptly at the times, at the place and in the manner that said principaland interest shall become due, and shall promptly and punctually pay all othersums required to be paid by Borrower pursuant to the terms, covenants andconditions of the Note, this Mortgage, the Assignment of Leases, Rents andProfits of even date herewith (the “Assignment”) and all other documents andinstruments executed as further evidence of, as additional security for orexecuted in connection with the Loan evidenced by the Note (collectively, the “LoanDocuments”).

 

2.                                       Performanceof Other Obligations.  Borrower shallperform, 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, restrictionor agreement of record affecting the Property, and to insure that at all timesthe Property constitutes one or more legal lots capable of being conveyedwithout 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.                                       Preservationand Maintenance of Property; Accessibility; Hazardous Waste.

 

(a)                                    Borrowershall keep all Improvements now existing or hereafter erected on the RealProperty in good order and repair, only to be used for the Existing Use, andnot 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 andPersonal Property attached or appertaining thereto, without the prior writtenconsent of Lender, nor to initiate, join in or consent to any change in anyprivate restrictive covenant, zoning ordinance or other public or privaterestrictions limiting or defining the uses which may be made of the Property orany part thereof, nor to do or permit any other act whereby the Property shallbecome less valuable, be used for purposes contrary to applicable Law or beused in any manner which will increase the premium for or result in atermination or cancellation of the insurance policies hereinafter required tobe kept and maintained on the Property. In furtherance of, and not by way of limitation upon, the foregoingcovenant, 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 originallyerected or installed.  In connection withthe making of such repairs, Borrower shall use contractors who are properlylicensed, 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 aquality as good or better than that originally used on the Property.  As provided herein, Borrower shall insure thatno liens are filed against the Property that relate in any way to the repairwork provided for herein.

 

(b)                                   Borrowerat all times shall keep the Property and ground water of the Property free ofHazardous Materials (as hereinafter defined) and any liens arising inconnection therewith.  Borrower shall notand shall not knowingly permit its tenants or any third party requiring theconsent of Borrower to enter the Property, to use, generate, manufacture,treat,

 

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store, release, threaten release, transport on orover, emit or dispose of Hazardous Materials in, on, over, under or about theProperty including the ground water of the Property in violation of anyfederal, regional, state or local law, code, ordinance, statute, rule,regulation, decision or order currently in existence or hereafter enacted orrendered (collectively, “Hazardous Waste Laws”). Borrower shall give Lenderprompt Written Notice (as hereinafter defined) of any claim by any person,entity, or governmental agency that a significant release or disposal ofHazardous Materials has occurred in, on, over, under or about the Property,including the ground water of the Property, in excess of those permitted by theHazardous Waste Laws, whether caused by the Borrower, any tenant or any thirdparty.  Borrower, through itsprofessional engineers and at the Borrower’s sole cost, shall promptly andthoroughly 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 detoxifyany Hazardous Materials found in, on, over, under or about the Property or inthe ground water of the Property to the extent such actions are required by anyapplicable Hazardous Waste Laws, and whether or not Borrower was responsiblefor the existence of the Hazardous Materials in, on, over, under or about theProperty or the ground water of the Property.  Hazardous Materials shall include, but not belimited to, substances defined as “hazardous substances”, “hazardous materials”,or “toxic substances” in The Comprehensive Environmental Response, Compensationand Liability Act of 1980, as amended by The Superfund Amendments and ReauthorizationAct of 1986, The Hazardous Materials Transportation Act, The ResourceConservation and Recovery Act of 1976, as amended by The Used Oils RecyclingAct of 1980, The Solid Waste Disposal Act Amendment of 1984, The ToxicSubstances Control Act, The Clean Air Act, The Clean Water Act or under anyHazardous Waste Laws (as defined in the Indemnity Agreement of even dateherewith executed by Borrower).  Inaddition, Borrower shall not incorporate any underground storage tanks into theReal Property without the prior written consent of Lender, and shall insurethat all tanks currently on the Real Property comply with current HazardousWaste Laws and underground storage tank regulations and are properlyregistered.

 

Borrower hereby agrees to indemnify and defend Lender and hold Lenderharmless from and against any and all losses, liabilities, damages, injuries,costs, expenses, fines, fees, suits, actions, debts, obligations, and claims ofany and every kind whatsoever, including Reasonable Attorneys’ Fees (collectively,“Losses”) paid, incurred or suffered by, or asserted against, Lender for, withrespect to, or as a direct or indirect result of, the presence in, on, over,under or about, or the escape, seepage, leakage, spillage, discharge, emissionor release from, the Property of any Hazardous Materials (including, withoutlimitation, any losses, liabilities, damages, injuries, costs, expenses orclaims asserted or arising under any Hazardous Waste Laws), regardless of thesource of origination and whether or not caused by, or within the control of,Borrower **AND INCLUDINGANY CLAIMS OF LENDER’S NEGLIGENCE OR STRICT LIABILITY,**but excludingLender’s willful misconduct or gross negligence.

 

Liability under this Section 3(b) and similar provisions in this Mortgageand the other Loan Documents concerning Hazardous Materials shall surviverepayment of the Note and satisfaction of this Mortgage; provided, however,Borrower shall have no liability under this Section 3(b) regarding HazardousMaterials if either (i) the Property becomes contaminated subsequent to Lender’sacquisition of the Property by foreclosure, acceptance by Lender of a deed inlieu thereof, or subsequent to any transfer of ownership of the Property whichwas

 

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approved or authorized by Lender in writing, pursuantto this Mortgage, provided that such transferee assumes in writing all of theobligations of Borrower with respect to Hazardous Materials pursuant to theLoan Documents, or (ii) at such time Borrower provides Lender with anenvironmental assessment report acceptable to Lender, in Lender’s solediscretion, showing the Property to be free of Hazardous Materials and not inviolation of any Hazardous Waste Laws.  Theburden of proof under this Section 3(b) with regard to establishing the dateupon which any Hazardous Materials was released in, on, over, under or aboutthe Property shall be upon Borrower.

 

(c)                                    Borrowerat 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: TheArchitectural Barriers Act of 1968; The Rehabilitation Act of 1973; The FairHousing Act of 1988; The Americans with Disabilities Act; and The FloridaElimination of Architectural Barriers Act (collectively, the “AccessibilityLaws”).

 

Borrower hereby agrees to indemnify and defend Lender and hold Lenderharmless from and against any and all Losses paid, incurred or suffered by, orasserted against Lender for, with respect to, or as a direct or indirect resultof, the non-compliance of the Property with the Accessibility Laws whether ornot caused by, or within the control of, Borrower, **AND INCLUDING ANY CLAIMS OF****LENDER’S****NEGLIGENCE OR STRICT LIABILITY,**butexcluding Lender’s willful misconduct or gross negligence.

 

Liability under this Section 3(c) and similar provisions in thisMortgage and the other Loan Documents concerning Accessibility Laws shallsurvive repayment of the Note and satisfaction of this Mortgage; provided,however, Borrower shall not be liable under this Section 3(c) for compliancewith any Accessibility Laws if such Accessibility Laws first become effective,or such violations result from alterations or improvements to the Property thatare performed subsequent to Lender’s acquisition of the Property by foreclosureor acceptance of a deed in lieu thereof or subsequent to any transfer which wasapproved or authorized by Lender pursuant to this Mortgage, provided that suchtransferee assumes in writing all obligations pertaining to the AccessibilityLaws 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 anyAccessibility Laws occurred at the Property shall be upon Borrower.

 

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 inspectthe Property to insure compliance with the foregoing covenants, and any and allother terms, covenants, conditions and agreements set forth in this Mortgage.

 

4.                                       Paymentof Taxes, Assessments and Other Charges.  Borrower shall pay all taxes, assessments andother charges as already levied or assessed, or that may be hereafter levied orassessed, upon or against the Property, when the same shall become due andpayable according to Law, before delinquency, and before any interest orpenalty shall attach thereto, and to deliver official receipts evidencing thepayment of the same to Lender not later than thirty (30) days following thepayment of the same.  Borrower shall havethe right to contest, in good faith and in accordance with applicable Laws andprocedures, the proposed assessment of ad valorem taxes

 

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or special assessments by governmental authoritieshaving jurisdiction over the Property; provided, however, Borrower shall giveWritten 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 collateralsatisfactory to Lender (and acceptable to the title company insuring thisMortgage) as a result of Borrower’s act.

 

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

 

6.                                         Paymentof Junior Encumbrances.  Borrowershall permit no default or delinquency under any other lien, imposition, chargeor encumbrance against the Property, even though junior and inferior to thelien of this Mortgage; provided however, the foregoing shall not be construedto permit any such additional lien or encumbrance against the Property, otherthan the Permitted Exceptions.

 

7.                                         Paymentof Mortgage Taxes.  Borrower shallpay any and all taxes which may be levied or assessed directly or indirectlyupon 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 hereafterenacted imposing payment of the whole or any part thereof upon Lender, itssuccessors or assigns.  Upon violation ofthis covenant, or upon the rendering by any court of competent jurisdiction ofa decision that such a covenant by Borrower is legally inoperative, or if anycourt of competent jurisdiction shall render a decision that the rate of saidtax when added to the rate of interest provided for in the Note exceeds thethen maximum rate of interest allowed by Law, then, and in any such event, thedebt hereby secured shall, at the option of Lender, its successors or assigns,become immediately due and payable, anything contained in this Mortgage or inthe Note secured hereby notwithstanding, without the imposition of a PrepaymentPremium (as defined in the Note.  Theadditional amounts which may become due and payable hereunder shall become apart of the Loan secured by this Mortgage.

 

8.                                       HazardInsurance.  Borrower shallcontinuously, 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 withextended coverage insurance against loss or damage resulting from fire, windstorm,flood, sinkhole, earthquake, mine subsidence, acts of terrorism, and such otherhazards, casualties, contingencies and perils including, without limitation,other risks insured against by persons operating like properties in thelocality of the Property, or otherwise deemed necessary or advisable by Lender,on such forms and with such deductibles as may be required by Lender, coveringthe Property in

 

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the amount of the full replacement cost thereof, (withouttaking into account any depreciation) less excavating and foundation costs, andcovering all loss or abatement of rental or other income, without a provisionfor co-insurance, in an amount equal to the scheduled rental income of theProperty for at least twelve (12) months, or if applicable, businessinterruption 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 SpecialFlood Hazard Area as designated on the Department of Housing and UrbanDevelopment’s Maps, or other flood prone designation) in an amount equal to theoutstanding principal balance of the Loan or such other amount as approved byLender, and earthquake insurance with a deductible amount of no more than tenpercent (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 thejudgment of Lender’s inspecting architect, the Property lies in an area ofanticipated significant seismic activity, and “Ordinance or Law Coverage” or “Enforcement”endorsements in amounts satisfactory to Lender if any of the Improvements orthe use of the Property shall at any time constitute legal non-conformingstructures or uses or the ability to rebuild the Improvements is restricted orprohibited, and comprehensive boiler and machinery insurance (without exclusionfor explosion), if applicable, in amounts as shall be reasonably required byLender and covering all boilers or other pressure vessels, machinery andequipment located at or about the Property (including, without limitation,electrical equipment, sprinkler systems, heating and air conditioningequipment, refrigeration equipment and piping).  All such insurance shall be carried with acompany or companies licensed to do business in the state where the Property islocated, which is acceptable to Lender, which company or companies shall have arating at the time this Mortgage is executed equivalent to at least A+:X asshown in the most recent Best’s Key Rating Guide.  The original policy or policies and renewalsthereof (or, at the sole option of Lender, duplicate originals or certifiedcopies thereof), together with receipts evidencing payment of the premiumtherefor, shall be deposited with, held by and are hereby assigned to, Lenderas additional security for the Loan secured hereby.  Each such policy of insurance shall contain anoncontributing loss payable clause in favor of and in a form acceptable toLender, and shall provide for not less than thirty (30) days prior WrittenNotice to Lender of any intent to modify, non-renew, cancel or terminate thepolicy or policies, or the expiration of such policies of insurance, or theexclusion of any individual risk such as acts of terrorism.  If the insurance required under this Section 8or any portion thereof is maintained pursuant to a blanket policy, Borrowershall furnish to Lender a certified copy of such policy, together with anoriginal Evidence of Insurance Certificate (Acord Form 27) for hazard insuranceindicating that Lender is an additional insured under such policy in regard tothe Property and showing the amount of coverage apportioned to the Property, whichcoverage shall be in an amount sufficient to satisfy the requirements hereof.  Not less than fifteen (15) days prior to theexpiration dates of each policy required of Borrower hereunder, Borrower willdeliver to Lender a renewal policy or policies marked “premium paid” oraccompanied by other evidence of payment and renewal satisfactory to Lender.  In the event of foreclosure of this Mortgageor other transfer of title to the Property in extinguishment of the Loansecured hereby, all right, title and interest of Borrower, in and to anyinsurance policies then in force including any rights to unearned premiums, andin and to insurance proceeds then payable, shall pass to the purchaser orgrantee.

 

In the event of loss by reason of hazards, casualties, contingenciesand perils for which insurance has been required by Lender hereunder, Borrowershall give immediate notice thereof to Lender.  Lender is hereby irrevocably appointedattorney-in-fact coupled with an interest for

 

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Lender to, at its option, make proof of loss and/or tofile a claim thereunder.  Each insurancecompany concerned is hereby notified, authorized and directed to make paymentfor such loss directly to Lender, instead of to Borrower and Lender jointly,and Borrower hereby authorizes Lender to adjust and compromise any losses forwhich insurance proceeds are payable under any of the aforesaid insurancepolicies and, after deducting the costs of collection, to apply the proceeds ofsuch insurance, at its option either: (a) to the restoration or repair of theinsured Improvements, Appurtenances, and Fixtures and Personal Property,provided that, in the opinion and sole discretion of Lender, such restorationor repair is reasonably practical and, provided further, that, in the opinionand sole discretion of Lender, either: (i) the insurance proceeds so collectedare sufficient to cover the cost of such restoration or repair of the damage ordestruction with respect to which such proceeds were paid, or (ii) theinsurance proceeds so collected are not sufficient alone to cover the cost ofsuch restoration or repair, but are sufficient therefor when taken togetherwith funds provided and made available by Borrower from other sources; in whichevent Lender shall make such insurance proceeds available to Borrower for thepurpose of effecting such restoration or repair; but Lender shall not beobligated to see to the proper application of such insurance proceeds nor shallthe amount of funds so released or used be deemed to be payment of or onaccount 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 andpayable or that said Loan is otherwise adequately secured, in which event suchproceeds shall be applied at par against the Loan secured hereby and themonthly payment due on account of such Loan shall be reduced accordingly ascalculated by Lender.  None of suchactions taken by Lender shall be deemed to be or result in a waiver orimpairment of any equity, lien or right of Lender under and by virtue of thisMortgage, nor will the application of such insurance proceeds to the reductionof the Loan serve to cure any default in the payment thereof.  In the event of foreclosure of this Mortgageor other transfer of title to the Property in extinguishment of the Loansecured hereby, all right, title and interest of Borrower in and to anyinsurance policies then in force including any rights to unearned premiums andin and to insurance proceeds then payable, shall pass to the purchaser orgrantee.

 

In case of Borrower’s failure to keep the Property properly insured asrequired herein, Lender, its successors or assigns, may, at its option (butshall not be required to) acquire such insurance as required herein at Borrower’ssole 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 forwhich insurance has been required by Lender and provided by Borrower, and (a)the amount of such loss or damage does not exceed twenty-five percent (25%) ofthe unpaid principal balance of the Note, or (b) restoration is required by theterms of a Major Tenant Lease, Lender hereby agrees to allow the proceeds ofinsurance to be used for the restoration of the Property and to release suchinsurance proceeds to Borrower as such restoration progresses, provided:

 

(a)                                    Borroweris not in default beyond any applicable grace or cure periods under any of theterms, covenants and conditions of this Mortgage, the Note or any of the other LoanDocuments;

 

(b)                                   TheImprovements, after such restoration, shall be at least eighty percent (80%)leased pursuant to leases approved in writing by Lender;

 

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(c)                                    Theplans and specifications for the restoration of the Property are approved inwriting by Lender in advance;

 

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

 

(e)                                    Borrowerprovides suitable completion, payment and performance bonds, builders’ all riskinsurance, and all necessary licenses and permits for such restoration in form andamount acceptable to Lender;

 

(f)                                      Theinsurer under such policies of fire or other casualty insurance does not assertany defense to payment under such policies against Lender, Borrower, anytenant, or third party of Borrower with regard to the Property;

 

(g)                                   Lendershall 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; notwithstandingthe fact that the amount owing thereon may not then be due and payable or that saidLoan is otherwise adequately secured;

 

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

 

(i)                                       Lender’sobligation to make any such disbursement shall be conditioned upon Lender’sreceipt of written certification from Lender’s inspecting architect/engineer(whose reasonable fees shall be reimbursed to Lender by Borrower) that allconstruction and work for which such disbursement is requested has beencompleted in accordance with the approved plans and specifications and inaccordance with all applicable building codes, zoning ordinances and all otherLaws and, further, that Borrower has deposited with Lender sufficient funds tocomplete such restoration in accordance with Section 8(d); and

 

(j)                                       Lendershall be entitled to require and to impose such other conditions to the releaseof such funds as would be customarily or reasonably be required and imposed bylocal construction lenders for a project of similar nature and cost.

 

9.                                       LiabilityInsurance.  Borrower shall carry andmaintain such commercial general liability insurance as may from time to timebe reasonably required by Lender, taking into consideration the type ofproperty being insured and the corresponding liability exposure, on forms, withdeductibles, in amounts and with such company or companies licensed to dobusiness in the state where the Property is located and as may be acceptable toLender.  All such commercial generalliability insurance shall be carried with a company or companies which have andmaintain a rating equivalent to at least A+:X as shown in the most recent Best’sKey Rating

 

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Guide.  Theoriginal policy or policies and all renewals thereof (or, at the sole option ofLender, duplicate originals or certified copies thereof), together with aCertificate of Insurance (Acord Form 25S) and receipts evidencing payment ofthe premium therefor, shall be deposited with, held by and are hereby assignedto, Lender as additional security for the Loan secured hereby.  Such policy or policies of insurance shallname 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 policyor policies of insurance, or the exclusion of any individual risk such as actsof terrorism.  Not less than fifteen (15)days prior to the expiration dates of each policy or policies required ofBorrower hereunder, Borrower will deliver to Lender a renewal policy orpolicies marked “premium paid” or accompanied by other evidence of payment andrenewal satisfactory to Lender.  In theevent of foreclosure of this Mortgage or other transfer of title to theProperty in extinguishment of the Loan secured hereby, all right, title andinterest of Borrower, in and to any insurance policies then in force includingany rights to unearned premiums, and in and to insurance proceeds then payable,shall pass to the purchaser or grantee.  Incase of Borrower’s failure to keep the Property properly insured as requiredherein, Lender, its successors or assigns, may, at its option (but shall not berequired to) acquire such insurance as required herein at Borrower’s soleexpense.

 

10.                                 ComplianceWith Laws.

 

(a)                                    Borrowershall observe, abide by and comply with all federal, regional, state and locallaws, codes, ordinances, statutes, rules, regulations, decisions, orders, requirementsor decrees relating to the Property enacted, promulgated or issued by anyfederal, state, county or local governmental or quasi-governmental authority orany agency or subdivision thereof having jurisdiction over Borrower or theProperty, which now or hereafter affect Borrower or the Property, includingHazardous Waste Laws and Accessibility Laws (collectively, the “Laws”), and toobserve and comply with all conditions and requirements necessary to preserveand 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 havebeen granted to or contracted for by Borrower in connection with any existing,presently contemplated or future uses of the Property.

 

(b)                                   Borrowershall not engage in any transaction which would cause any obligation, or actiontaken or to be taken, hereunder (or the exercise by Lender of any of its rightsunder the Note, this Mortgage and the other Loan Documents) to be a non-exempt(under a statutory or administrative class exemption) prohibited transaction underthe Employee Retirement Income Security Act of 1974, as amended (“ERISA”).  Borrower shall deliver to Lender suchcertifications 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 “employeebenefit plan” as defined in Section 3(3) of ERISA, which is subject to Title Iof ERISA, or a “governmental plan” within the meaning of Section 3(32) ofERISA; (ii) Borrower is not subject to state statutes regulating investmentsand fiduciary obligations with respect to governmental plans; and (iii) one ormore of the following circumstances is true:

 

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

 

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

 

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

 

11.                                 Maintenanceof Permits.  Borrower shall obtain,keep and constantly maintain in full force and effect during the entire term ofthis Mortgage, all certificates, licenses and permits necessary to keep theProperty operating for the Existing Use and, except as specifically providedfor in this Mortgage, not to assign, transfer or in any manner change suchcertificates, licenses or permits without first receiving the written consentof Lender.

 

12.                                 Obligationsof Borrower as Lessor.

 

(a)                                  Borrowershall perform every obligation of Borrower (as the landlord) and enforce everyobligation of the tenant in any and every lease, license or other occupancyagreement of or affecting the Property or any part thereof (the “OccupancyLeases”), and not to modify, alter, waive or cancel any such Occupancy Leasesor any part thereof or rights thereunder, without the prior written consent ofLender (but such consent shall not be required for such action as to OccupancyLeases of three thousand (3,000) square feet or less if such action is in theordinary course of business of owning and operating the Property in a prudentand business-like manner, on then current market terms), nor collect for morethan thirty (30) days in advance of the date due any Rents that may becollectible under any such Occupancy Leases and, except as provided for in thisMortgage, not to assign any such Occupancy Lease(s) or any such Rents relatingthereto, to any party other than Lender, without the prior written consent ofLender. Borrower will notify Lender in writing of any default under anyOccupancy Lease, In the event of default under any such Occupancy Lease byreason 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, andfurther, Lender may, at its sole option and in its sole discretion but withoutobligation to do so, pay any sum of money deemed necessary by Lender for theperformance of said covenants, agreements and conditions, or for the curing orremoval of any such default, and incur all expenses and obligations whichLender may consider necessary or reasonable in connection therewith, andBorrower shall repay on demand all such sums so paid or advanced by Lendertogether with interest thereon until paid at the lesser of either; (i) thehighest 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 applicableinterest rate of the Note plus five hundred (500) basis points per annum; allof such sums, if unpaid, shall be added to and become part of the Loan.

 

(b)                                 Allsuch Occupancy Leases hereafter made shall be subject to the approval of Lenderand: (i) shall be at competitive market rental rates then prevailing in thegeographic area for projects used for the Existing Use comparable to theProperty, (ii) shall have lease terms

 

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of not less than three(3) years; and (iii) at Lender’s option, shall be superior or subordinate inall respects to the lien of this Mortgage. Provided, however, that Lender shallnot require approval in advance of any Occupancy Leases which conform to theBorrower’s Form Lease (as hereinafter defined) as previously approved byLender, except as set forth below.  Neitherthe right nor the exercise of the right herein granted unto Lender to keep orperform any such covenants, agreements or conditions as aforesaid shallpreclude Lender from exercising its option to cause the whole Loan securedhereby to become immediately due and payable by reason of Borrower’s default inkeeping or performing any such covenants, agreements or conditions.

 

(c)                                  Lenderhas approved a form of Occupancy Lease to be used by Borrower in connectionwith the Property (the “Form Lease”).  Borrowershall not, without the prior written consent of Lender, modify or alter theForm Lease in any material respect.  Inaddition, Borrower shall not, without the prior written consent of Lender,surrender, terminate, modify or alter, either orally or in writing, anyOccupancy Lease now existing or hereafter made with any Major Tenant (ashereinafter defined) for all or part of the Property, permit an assignment or subleaseof any such Occupancy Lease, or request or consent to the subordination of any OccupancyLease to any lien subordinate to this Mortgage.  Borrower shall furnish Lender with copies ofall executed Occupancy Leases of all or any part of the Property now existingor hereafter made, and Borrower shall assign to Lender (which assignment shallbe in form and content acceptable to Lender), as additional security for theNote and the Loan, all Occupancy Leases now existing or hereafter made for allor any part of the Property. Additionally, if any Occupancy Lease contains a provision allowing thetenant to terminate their lease upon payment of a lease termination fee,Borrower agrees that all such sums shall constitute rent, and shall be paid toLender so long as this Mortgage is in effect.

 

Notwithstanding the foregoing approval by Lender of Borrower’s FormLease, Lender hereby specifically reserves the right to approve all prospectivetenants 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 expansionoptions, exceeds ten percent (10%) of the net leasable area of each of thebuildings comprising the Improvements (the tenants under such leases being hereinafterreferred to as “Major Tenants”).  Borrowershall notify Lender in writing of all prospective Major Tenants, and shalldeliver to Lender, at Borrower’s sole cost and expense, a copy of theprospective Major Tenant’s current financial statement and the most recent Dun& Bradstreet credit report on said prospective Major Tenant.  The financial statement delivered to Lenderhereunder shall be certified as true and correct by the Major Tenant, or, ifavailable, by a certified public accountant.  If Lender fails to respond within ten (10)business days after receipt from Borrower of an Occupancy Lease, together withtenant credit information, Lender shall be deemed to have approved suchOccupancy Lease; provided that all items so submitted shall be sent certifiedmail, labeled with the following statement: “TIME SENSITIVE RESPONSE REQUIREDWITHIN TEN (10) BUSINESS DAYS OF ACTUAL RECEIPT.

 

(d)                                 Inno event shall Borrower exercise any right to relocate any lessee outside theProperty pursuant to any right set forth in an Occupancy Lease without theprior written consent of Lender.

 

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13.                               Maintenanceof Parking & Access: Prohibition Against Alteration; Separate Tax Lot.

 

(a)                                  Borrowershall 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 asrequired by the terms of the Occupancy Leases, and not to alter, erect, buildor construct upon any portion of the Property, any building, structure orimprovement of any kind whatsoever, the erection, building or construction ofwhich has not been previously approved by Lender in writing, which approval shallbe at the sole discretion of Lender.

 

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

 

14.                               Executionof Additional Documents.  Borrower shalldo, make, execute, acknowledge, witness and deliver all deeds, conveyances,mortgages, deeds of trust, assignments, estoppel certificates, subordinationnon-disturbance and attornments, notices of assignments, transfers, assurances,security agreements, financing statements and renewals thereof, and all otherinstruments or other acts necessary, as Lender shall from time to time requirefor 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 hereafterbecome bound to encumber, create, convey or assign to Lender, or for thepurpose of carrying out the intention or facilitating the performance of the termsof this Mortgage, or for filing, registering or recording this Mortgage, and topay all filing, registration or recording fees and all taxes, costs and otherexpenses, including Reasonable Attorneys’ Fees, incident to thepreparation, execution, acknowledgment, delivery and recordation of any of thesame.  By signing this Mortgage, Borrowerauthorizes Lender to file such financing statements, with or without thesignature of Borrower, as Lender may elect, as may be necessary or desirable toperfect the lien of Lender’s security interest in the Fixtures and PersonalProperty.  Without limiting any otherprovision herein, Borrower hereby authorizes Lender to file one or morefinancing statements and any renewal or continuation statements thereof,describing the Property and the proceeds of the Property, including, withoutlimitation, a financing statement covering “all assets of Borrower all proceedstherefrom, 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 ordesirable from time to time to perfect or continue the lien of Lender’ssecurity interest in the Fixtures and Personal Property.  Borrower hereby ratifies any financingstatements that may have been filed by Lender in advance of the date hereof toperfect Lender’s security interest in the Fixtures and Personal Property.

 

15.                                    AfterAcquired Property Secured.  Borrowershall subject to the lien of this Mortgage all right, title and interest ofBorrower in and to all extensions, improvements, betterments, renewals,substitutions and replacements of, and all additions and appurtenances to, the Propertyhereinabove described, hereafter acquired by or released to Borrower, or constructed,assembled or placed by Borrower on the Real Property, and all conversions ofthe

 

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security constituted thereby, immediately upon suchacquisition, release, construction, assembling, placement or conversion, as thecase may be, and in each such case, without any further mortgage, deed oftrust, encumbrance, conveyance, assignment or other act by Borrower, as fully,completely and with the same effect as though now owned by Borrower andspecifically described herein, but at any and all times, Borrower will executeand deliver to Lender any and all such further assurances, mortgages, deeds oftrust, conveyances, security agreements, financing statements or assignmentsthereof or security interests therein as Lender may reasonably require for thepurpose of expressly and specifically subjecting the same to the lien of thisMortgage.

 

16.                                   Paymentsby Lender on Behalf of Borrower.  Borrowershall make payment of any taxes, assessments or public charges on or withrespect to the Property before the same shall become delinquent, or to makepayment of any insurance premiums or other charges, impositions, or liensherein or elsewhere required to be paid by Borrower, or if Borrower shall failso to do, then Lender, at its sole option, but without obligation to do so, maymake payment or payments of the same and also may redeem the Property from taxsale 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 suchpayment and of any fees and expenses attendant in making the same, together withinterest thereon at the lesser of either: (a) the highest rate of interest thenallowed by the Laws of the State of Florida or, if controlling, the Laws of theUnited States, or (b) the then applicable interest rate of the Note plus fivehundred (500) basis points per annum; and until paid such amounts and interestshall be added to and become part of the Loan secured hereby to the same extentthat this Mortgage secures the repayment of the Loan.  In making payments authorized by theprovisions of this Section 16, Lender may do so whenever, in Lender’s sole judgmentand discretion, such advance or advances are necessary or desirable to protectthe full security intended to be afforded by this Mortgage.  Neither the right nor the exercise of therights herein granted to Lender to make any such payments as aforesaid shallpreclude Lender from exercising its option to cause the Loan secured hereby tobecome immediately due and payable by reason of Borrower’s default in makingsuch payments as hereinabove required.

 

17.                                   FundsHeld by Lender for Taxes, Assessments, Insurance Premiums and Other Charges.  In order to more fully protect the securityof this Mortgage, Borrower shall deposit with Lender, together with and inaddition to each monthly payment due on account of the Loan, an amount equal toone-twelfth (l/12th) of the annual total of such taxes, assessments,insurance premiums and other charges (all as estimated by Lender in its solediscretion) 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, insurancepremiums and other charges as the same shall become due. Lender may hold thesums so deposited without paying interest, commingle same with its generalfunds 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 Lenderare insufficient to pay such taxes, assessments, insurance premiums or othercharges as they become due and payable, Borrower shall immediately, uponWritten Notice and demand by Lender, deposit with Lender the amount of suchdeficiency.  The failure on the part ofBorrower to do so shall entitle Lender, at Lender’s sole option, to make suchpayments in accordance with the rights and pursuant to the conditions elsewhereprovided in this Mortgage.  Whenever any defaultexists under this Mortgage, Lender may, at Lender’s sole option but without anobligation

 

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so to do, apply any funds so held by Lender pursuantto this Section 17 toward the payment of the Loan, notwithstanding the factthat the amount owing thereon may not then be due and payable or that the Loanmay otherwise be adequately secured, in such order and manner of application asLender may elect.

 

18.                                 Condemnation;Eminent Domain.  All claims and rightsof action for, and all awards and other compensation heretofore or hereaftermade to Borrower and all subsequent owners of the Property in any taking byeminent domain, recovery for inverse condemnation or by deed in lieu thereof,whether permanent or temporary, of all or any part of the Property or anyeasement or any appurtenance thereto, including severance and consequentialdamages and change in grade of any way, street, avenue, road, alley, passage orpublic place, are hereby assigned to Lender.  Borrower hereby irrevocably appoints Lender asits attorney-in-fact, coupled with an interest, and authorizes, directs andempowers Lender, at the option of Lender as said attorney-in-fact, on behalf ofBorrower, its successors and assigns, to adjust or compromise the claim for anysuch award, and alone to collect and receive the proceeds thereof, to giveproper receipts and acquittances therefor and, after deducting any expenses ofcollection, at Lender’s sole option either:

 

(a)                                     toapply the net proceeds as a credit upon any portion of the Loan, as selected byLender, notwithstanding the fact that the amount owing thereon may not then bedue and payable, or that the Loan is otherwise adequately secured.  In the event Lender applies such awards to thereduction of the outstanding Loan evidenced by the Note, such proceeds shall beapplied at par, and the monthly installments due and payable under the Noteshall be reduced accordingly as calculated by Lender; however no suchapplication shall serve to cure an existing default of Borrower; or

 

(b)                                    tohold said proceeds without any allowance of interest, and make the sameavailable for restoration or rebuilding of the Improvements.  In the event that Lender elects to make saidproceeds available to reimburse Borrower for the cost of the restoration or rebuildingof the Improvements on the Real Property, such proceeds shall be made availablein the manner and under the same conditions as required under Section 8hereof.  If the proceeds are madeavailable 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 restorationor rebuilding, shall be applied on account of the Loan at par notwithstandingthe fact that the amount owing thereon may not then be due and payable or thatthe Loan may otherwise be adequately secured.

 

Borrower further covenants and agrees to give Lender immediate noticeof 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 withany such proceedings.  Borrower furthercovenants and agrees to make, execute and deliver to Lender, at any time ortimes, upon request, free, clear and discharged of any encumbrance of any kindwhatsoever, any and all further assignments and/or other instruments deemednecessary by Lender for the purpose of validly and sufficiently assigning allsuch awards and other compensation heretofore or hereafter made to Lender (includingthe assignment of any award from the United States government at any time afterthe allowance of the claim therefor, the ascertainment of the amount thereofand the issuance of the warrant for payment thereof).

 

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If either: (i) any part of any of the Improvements situated on the RealProperty shall be condemned by any governmental authority having jurisdiction;or (ii) lands constituting a portion of the Real Property shall be condemned byany governmental authority having jurisdiction, such that the remainingProperty is in violation of applicable parking, zoning, platting, or otherordinances, or fails to comply with the terms of the Occupancy Leases withMajor Tenants.  In either of said events,Lender shall be entitled to application of condemnation proceeds to theoutstanding principal balance of the Note at par, and the right to acceleratethe maturity date of the Note and require payment in full without theimposition of a Prepayment Premium.

 

19.                                 Costsof Collection.  In the event that theNote is placed in the hands of an attorney for collection, or in the event thatLender 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 proofof claim is by law required to be filed), hearing, motion or application beforeany court or administrative body in relation to the Property or the lien andsecurity interest granted or created hereby or herein, or for the recovery orprotection of the Loan or the Property, or for the foreclosure of thisMortgage, or for the enforcement of the terms and conditions of the Loan Documents,Borrower shall indemnify, save, defend and hold Lender harmless from andagainst any and all Losses incurred by Lender on account thereof, and Borrowershall repay, on demand, all such Losses, together with interest thereon untilpaid at the lesser of either (a) the highest rate of interest then allowed bythe Laws of the State of Florida, or, if controlling, the Laws of the UnitedStates, or (b) the then applicable rate of interest of the Note plus fivehundred (500) basis points per annum; all of which sums, if unpaid, shall beadded to and become a part of the Loan.

 

20.                                 DefaultRate.  Any sums not paid when due,whether maturing by lapse of time or by reason of acceleration under theprovisions of the Note, this Mortgage or any of the other Loan Documents, and whetherprincipal, interest or money owing for advancements pursuant to the terms ofthis Mortgage or any other Loan Document, shall bear interest until paid at thelesser of either (a) the highest rate of interest then allowed by the Laws ofthe 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) basispoints per annum; all of which sums shall be added to and become a part of theLoan.

 

21.                                     SavingsClause.  Notwithstanding anyprovisions in the Note or in this Mortgage to the contrary, the total liabilityfor payments in the nature of interest, including but not limited to PrepaymentPremiums, default interest and late payment charges, shall not exceed thelimits imposed by the Laws of the State of Florida or, if controlling, the Lawsof the United States, relating to maximum allowable charges of interest.  Lender shall not be entitled to receive, collector apply, as interest on the Loan, any amount in excess of the maximum lawfulrate of interest permitted to be charged by any Laws.  In the event Lender ever receives, collectsor applies as interest any such excess, such amount which would be excessiveinterest shall be applied to reduce the unpaid principal balance of the Loanevidenced by the Note.  If the unpaid, principalbalance of such Loan has been paid in full, any remaining excess shall beforthwith returned to Borrower.

 

22.                                     Bankruptcy,Reorganization or Assignment.  Itshall be a default hereunder if Borrower or any general partner or managingmember of Borrower shall: (a) elect to dissolve or

 

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liquidate its business organization or wind up itsbusiness affairs without receiving the prior written approval of Lender; (b)consent to the appointment of a receiver, trustee or liquidator of all or asubstantial part of its assets; (c) be adjudicated as bankrupt or insolvent, orfile a voluntary petition in bankruptcy, or admit in writing its inability topay its debts as they become due; (d) make a general assignment for the benefitof creditors; (e) file a petition under or take advantage of any insolvencylaw; (f) file an answer admitting the material allegations of a petition filedagainst Borrower or any general partner or managing member of Borrower in anybankruptcy, reorganization or insolvency proceeding, or fail to cause thedismissal of such petition within thirty (30) days after the filing of saidpetition; (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 acreditor of Borrower or any general partner or managing member of Borrower by acourt of competent jurisdiction approving a petition seeking appointment of areceiver or trustee of all or a substantial part of Borrower’s assets or any ofBorrower’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.                                 Timeis of the Essence, Monetary and Non-Monetary Defaults.  It is understood by Borrower that time is ofthe essence hereof in connection with all obligations of Borrower herein andany of the other Loan Documents.

 

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

 

(a)                                      Borrowerdefaults in the payment of any monthly installment of the Note, whether ofprincipal or interest, or both, or in the payment of any other sums of moneyreferred 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 fromLender to Borrower in regard to such Monetary Default (as hereinafter defined),and any such Monetary Default remains uncured for a period of five (5) daysafter Written Notice thereof has been given by Lender to Borrower, unless Lenderhas previously given Borrower such Written Notice for a failure to pay in thethen current Loan Year (as defined in the Note), in which event no such noticeneed be given and no right to cure need be afforded Borrower as to any furtherMonetary Default during such Loan Year.  Itis understood and agreed that the agreement of Lender provided notice and anopportunity to cure a Monetary Default does not waive Lender’s right to anylate payment charge.

 

(b)                                    Borrowerbreaches or defaults on any of the terms, covenants, conditions and agreementsof the Note, this Mortgage, or any other Loan Documents; or in the event that eachand every one of said terms, covenants, conditions and agreements is nototherwise either duly, promptly and fully discharged or performed, and any suchNon-Monetary Default (as hereinafter defined) remains uncured for a period ofthirty (30) days after Written Notice thereof has been delivered from Lender toBorrower; unless such Non-Monetary Default cannot be cured within said thirty(30) day period, in which event Borrower shall have a reasonable period of timeto complete cure, provided that action to cure such Non-Monetary Default ispromptly commenced within said thirty (30) day period, and Borrower is, inLender’s sole judgment, not

 

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diminishing or impairingthe value of the Property, and is diligently pursuing a cure to completion, butin no event longer than ninety (90) days.

 

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

 

(d)                                   Anyseizure or forfeiture of the Property, or any portion thereof, or Borrower’sinterest therein, resulting from criminal wrongdoing or other unlawful actionof Borrower, its affiliates, or any tenant in the Property under any federal,state or local law.

 

(e)                                    IfBorrower consummates a transaction which would cause this Mortgage or Lender’sexercise of its rights under this Mortgage, the Note or the other LoanDocuments to constitute a nonexempt prohibited transaction under ERISA orresult in a violation of a state statute regulating governmental plans,subjecting Lender to liability for a violation of ERISA or a state statute.

 

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

 

Upon the occurrence of any one of the above events, and at the optionof Lender, the principal of and the interest accrued on the Loan and all othersums secured by this Mortgage and the other Loan Documents shall immediatelybecome due and payable as if all of said sums of money were originallystipulated to be paid on such day.  Inaddition, Lender may avail itself of all rights and remedies provided by law orequity, and may foreclose or prosecute a suit at law or in equity as if allmonies secured hereby had matured prior to its institution, anything in thisMortgage or any of the other Loan Documents to the contrary notwithstanding.  Except as provided hereinabove, Lender shallhave no obligation to give Borrower notice of, or any period to cure, anyMonetary Default or any Incurable Default (as hereinafter defined) prior toexercising its rights, powers, privileges and remedies.

 

As used herein, the term “Monetary Default” shall mean any defaultwhich can be cured by the payment of money such as, but not limited to, thepayment 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 containedherein or any of the other Loan Documents; or (ii) if Borrower, or any personor entity comprising Borrower or any guarantor or indemnitor of the Loan,should breach any of the provisions of Section 22.

 

24.                                 Foreclosure.  Upon the occurrenceof a default hereunder, Lender may institute an action to foreclose thisMortgage as to the amount so declared due and payable, and thereupon

 

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the Property (or any portion thereof) shall be soldaccording to law to satisfy and pay the same, together with all costs, expensesand allowances thereof, including, without limitation, Reasonable Attorneys’Fees.  The Property may be sold in oneparcel, several parcels or groups of parcels, and Lender shall be entitled tobid at the sale, and, if Lender is the highest bidder for the Property or anypart or parts thereof, Lender shall be entitled to purchase the same.  The failure or omission on the part of Lenderto exercise the option for acceleration of maturity of the Note and foreclosureof this Mortgage following any default as aforesaid or to exercise any otheroption or remedy granted hereunder to Lender when entitled to do so in any oneor more instances, or the acceptance by Lender of partial payment of the Loansecured hereby, whether before or subsequent to Borrower’s default hereunder,shall not constitute a waiver of any such default or the right to exercise anysuch option or remedy, but such option or remedy shall remain continuously inforce.  Acceleration of the maturity ofthe Note, once claimed hereunder by Lender, at the option of Lender, may berescinded by written acknowledgment to that effect by Lender, but the tenderand acceptance of partial payments alone shall not in any way either affect orrescind such acceleration of maturity, nor act as a waiver, accord andsatisfaction, modification, novation or similar defense.

 

25.                                 UCCRemedies.  Upon the occurrence of adefault, Lender may exercise its rights of enforcement with respect to theFixtures and Personal Property under the UCC, and in conjunction with, inaddition to or in substitution for those rights and remedies:

 

(a)                                    WrittenNotice mailed to Borrower as provided herein ten (10) days prior to the date ofpublic sale of the Fixtures and Personal Property or prior to the date afterwhich private sale of the Fixtures and Personal Property will be made shallconstitute reasonable notice;

 

(b)                                   anysale made pursuant to the provisions of this Section shall be deemed to havebeen a public sale conducted in a commercially reasonable manner if held contemporaneouslywith the sale of the Mortgaged Property under power of sale as provided hereinupon giving the same notice with respect to the sale of the Fixtures and PersonalProperty hereunder as is required for such sale of the Mortgaged Property underpower of sale;

 

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

 

(d)                                   itshall not be necessary that Lender take possession of the Fixtures and PersonalProperty or any part thereof prior to the time that any sale pursuant to theprovisions of this Section is conducted and it shallnot benecessary that the Fixtures and Personal Property or any part thereof bepresent at the location of such sale;

 

(e)                                    priorto application of proceeds of disposition of the Fixtures and Personal Propertyto the secured indebtedness, such proceeds shall be applied to the reasonableexpenses of retaking, holding, preparing for sale or lease, selling, leasingand the like and the Reasonable Attorneys Fees and other legal expensesincurred by Lender;

 

(f)                                      anyand all statements of fact or other recitals made in any bill of sale or assignmentor other instrument evidencing any foreclosure sale hereunder as to nonpaymentof

 

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the indebtedness or as to the occurrence of anydefault, or as to Lender having declared all of such indebtedness to be due andpayable, or as to notice of time, place and terms of sale and of the propertiesto be sold having been duly given, or as to any other act or thing having beenduly done by Lender, shall be taken as prima facie evidence of the truth of thefacts so stated and recited;

 

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

 

(h)                                    thisMortgage covers Goods which are or are to become Fixtures related to the RealProperty, and covers As-Extracted Collateral related to the Real Property.  A carbon, photographic or other reproductionof this Mortgage or of any financing statement relating to this Mortgage shallbe sufficient as a financing statement.  ThisMortgage shall be effective as a financing statement filed as a fixture filingwith respect to all fixtures included within the Property and is to be filedfor record in the real estate records in the Office of the County Clerk wherethe Property (including said fixtures) is situated.  This Mortgage shall also be effective as afinancing statement As-Extracted Collateral with respect to all As-ExtractedCollateral included within the Real Property (including, without limitation,all oil, gas, other minerals, and other substances of value which may beextracted from the earth and all accounts arising out of the sale at thewellhead or minehead thereof), and is to be filed for record in the real estaterecords of the county where the Property is situated.  The mailing address of Borrower is set forthin Section 43 of this Mortgage and the address of Lender from which informationconcerning the security interest may be obtained is the address of Lender setforth in Section 43 of this Mortgage.

 

26.                                 Protectionof Lender’s Security.  At any timeafter default hereunder, Lender, or Lender’s agents or contractors, isauthorized, without notice and in Lender’s sole discretion, to enter upon andtake possession of the Property or any part thereof, and to perform any actswhich Lender deems necessary or proper to conserve the security interest hereinintended to be provided by the Property, to operate any business or businessesconducted thereon, and to collect and receive all Rents thereof and therefrom,including those past due as well as those accruing thereafter.

 

27.                                 Appointmentof Receiver.  If, at any time after adefault hereunder, Lender deems, in Lender’s sole discretion, that areceivership may be necessary to protect the Property or its Rents, whetherbefore or after maturity of the Note and whether before or at the time of orafter the institution of foreclosure or suit to collect the Loan or to enforcethis Mortgage or any of the other Loan Documents, Lender, as a matter of strictright and regardless of the value of the Property or the amounts due hereunderor secured hereby, or of the solvency of any party bound for the payment ofsuch indebtedness, shall have the right, upon ex parte application and without noticeto anyone, and by any court having jurisdiction, to the appointment of areceiver to take charge of, manage, preserve, protect and operate the Property,to collect the Rents thereof, to make all necessary and needful repairs, and topay all taxes, assessments, insurance premiums and other such charges againstand expenses of the Property, and to do such other acts as may by such court beauthorized and directed, and after payment of the expenses of the receivershipand the management of the Property, to apply the net proceeds of suchreceivership in reduction of

 

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the Loan or in such othermanner as the said court shall direct notwithstanding the fact that the amountowing thereon may not then be due and payable or the said Loan is otherwiseadequately secured.  Such receivershipshall, at the option of Lender, continue until full payment of all sums herebysecured or until title to the Property shall have passed by sale under thisMortgage.  Borrower hereby specificallywaives its right to object to the appointment of a receiver as aforesaid, andhereby expressly agrees that such appointment shall be made as an admittedequity and as a matter of absolute right to Lender.

 

28.                                 Rightsand Remedies Cumulative; Forbearance Not a Waiver. The rights and remediesherein provided are cumulative, and Lender, as the holder of the Note and ofevery other obligation secured hereby, may recover judgment thereon, issueexecution therefor and resort to every other right or remedy available at lawor in equity, without first exhausting any right or remedy available to Lenderand without affecting or impairing the security of any right or remedy affordedhereby, and no enumeration of special rights or powers by any provisions hereofshall be construed to limit any grant of general rights or powers, or to takeaway or limit any and all rights granted to or vested in Lender by law orequity.  Borrower further agrees that nodelay or omission on the part of Lender to exercise any rights or powersaccruing to it hereunder shall impair any such right or power, or shall beconstrued to be a waiver of any such default hereunder or an acquiescencetherein; and every right, power and remedy granted herein or by law or equityto 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 othersecurity now existing or hereafter given to secure the payment of the Loan, inwhole or in part, and in such portions and in such order as may seem best toLender in its sole discretion, and any such action shall not be considered as awaiver of any of the rights, benefits, liens or security interests evidenced bythis Mortgage.  To the full extentBorrower may do so, Borrower agrees that Borrower will not at any time insistupon, plead, claim or take the benefit or advantage of any law now or hereafterin force pertaining to the rights and remedies of sureties or providing for anyappraisement, valuation, stay, extension or redemption, and Borrower, forBorrower and Borrower’s heirs, devisees, representatives, successors andassigns, and for any and all persons ever claiming any interest in theProperty, to the extent permitted by law, hereby waives and releases all rightsof redemption, valuation, appraisement, stay of execution, notice of intentionto mature or declare due the whole of the secured indebtedness, notice ofelection to mature or declare due the whole of the secured indebtedness and allrights to a marshaling of the assets of Borrower, including the Property, or toa sale in inverse order of alienation in the event of foreclosure of the liensand security interests hereby created.  Borrowershall not have or assert any right under any statute or rule of law pertainingto the marshaling of assets, sale in inverse order of alienation, the exemptionof homestead, the administration of estates of decedents or other matterswhatever to defeat, reduce or affect the right of Lender under the terms ofthis Mortgage to a sale of the Property for the collection of the securedindebtedness without any prior or different resort for collection, or the rightof Lender under the terms of this Mortgage to the payment of such indebtednessout of the proceeds of sale of the Property in preference to every otherclaimant whatever.  If any law referredto in this Section and now in force, of which Borrower or Borrower’s heirs,devisees, representatives, successors and assigns and such other personsclaiming any interest in the Property might take advantage despite thisSection, shall

 

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hereafter be repealed orcease to be in force, such law shall not thereafter be deemed to preclude theapplication of this Section.

 

29.                                   ModificationNot 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, deedsof trust, or other liens thereon, may release any part of the securitydescribed herein, or may release any person or entity liable for the Loansecured hereby without in any way affecting the priority of this Mortgage, tothe full extent of the Loan remaining unpaid hereunder, upon any part of thesecurity not expressly released.  Lendermay, at its option and within Lender’s sole discretion, also agree with anyparty obligated on the Loan, or having any interest in the security describedherein, to extend the time for payment of any part or all of the Loan, and suchagreement shall not, in any way, release or impair this Mortgage, but shallextend the same as against the title of all parties having any interest in saidsecurity, which interest is subject to this Mortgage.

 

30.                                   PropertyManagement and Leasing.  Theexclusive manager of the Property shall be Borrower, or such other manager asmay be first approved in writing by Lender. The exclusive leasing agent of the Property, if other than Borrower orthe foregoing party, shall be first approved in writing by Lender.  The management and leasing contracts (or inthe absence of any such written contract, a letter so stating and furtheridentifying the name of the person or entity charged with the responsibilityfor managing and/or leasing the Property) shall be subordinate to this Mortgage, and satisfactory to and subjectto 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, latepayment charges and all other sums required by the Note or the other LoanDocuments, and Lender shall be entitled to exercise any or all remediesprovided for or referenced in this Mortgage.

 

31.                                   ModificationNot a Waiver.  In the event Lender(a) releases, as aforesaid, any part of the security described herein or anyperson or entity liable for the Loan; (b) grants an extension of time for thepayment of the Note; (c) takes other or additional security for the payment ofthe Note; or (d) waives or fails to exercise any rights granted herein, in theNote, or any of the other Loan Documents, any said act or omission shall notrelease Borrower, subsequent purchasers of the Property or any part thereof, ormakers, sureties, endorsers or guarantors of the Note, if any, from anyobligation or any covenant of this Mortgage, the Note or any of the other LoanDocuments, nor preclude Lender from exercising any right, power or privilegeherein granted or intended to be granted in the event of any other default thenmade, or any subsequent default.

 

32.                                   Transferof 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 orconveyance of all or any portion of the Property, or the transfer, assignment orconveyance of a controlling interest in Borrower or its general partner ormanaging member, or any guarantor, whether voluntary or by operation of law,without the prior written consent of Lender, shall constitute a defaulthereunder, and entitle Lender, at Lender’s sole option, to accelerate all sumsdue on the Note, together with any Prepayment Premiums (to the extent permittedby the Laws of the State of Florida), late payment charges or any other amounts

 

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secured hereby.  Lender may, however, elect to waive the optionto accelerate granted hereunder if, prior to any such sale, transfer,assignment or conveyance of the Property, the following conditions shall befully satisfied: (a) Lender acknowledges in writing that, in Lender’s solediscretion, the creditworthiness of the proposed transferee and the ability andexperience of the proposed transferee to operate the Property are satisfactoryto Lender; (b) Lender and the proposed transferee shall enter into an agreementin writing that (i) the rate of interest payable on the Loan secured herebyshall be at such rate as Lender shall determine, (ii) the repayment schedule asset forth in the Note shall be modified by Lender, in Lender’s sole discretion,to initiate amortization or modify the existing amortization schedule in orderto amortize the then remaining unpaid principal balance of the Note securedhereby over a period of time as determined by Lender, in Lender’s solediscretion, without a change in the maturity date of the Note, and (iii) theproposed transferee shall assume all obligations of Borrower under the Note,this Mortgage and the other Loan Documents in writing and an assumption fee, tobe 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 alltransfer documents; and (d) Borrower or the transferee shall pay all costs andexpenses in connection with such transfer and assumption, including, without limitation,all fees and expenses incurred by Lender. Notwithstanding the foregoing, Lenderacknowledges that Borrower’s general partner is a publicly traded real estateinvestment trust (“REIT”) and that such general partner shares are freelytraded in the public markets.  Transfersof shares of the general partner in the ordinary course of such trading shallnot be a default under the loan documents.

 

Borrower, or any subsequent owner of the Property or any portionthereof, shall do all things necessary to preserve and keep in full force andeffect its and their legal existence, franchises, rights and privileges as acorporation, 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 andtransact 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 suchentity, including its partnership agreement, certificate of partnership,operating agreement, articles of organization, regulations, articles ofincorporation or bylaws, as the case may be (as applicable, the “GoverningDocuments”), of Borrower or such subsequent owner without the prior writtenconsent of Lender.  Borrower, or suchsubsequent owner of the Property, shall provide Lender with copies of anyproposed amendment to its applicable Governing Documents, so that Lender may,in Lender’s sole discretion, determine whether such amendment adversely affectsLender, the Property or the security value thereof.  Provided, however, that any amendment,modification, transfer, assignment or termination of Borrower’s applicableGoverning Documents or any other action pursuant to which the current generalpartner or managing member of Borrower shall either: (i) cease to be thegeneral partner or managing member of Borrower; or (ii) except to the extentpermitted herein, cease to own or maintain a partnership or membership interestin Borrower equal to or greater than its partnership or membership interest atthe time this Mortgage is executed, shall be deemed to have a material adverseeffect upon Lender and the Property, and shall be a default hereunder.

 

Borrower shall not change its name or identity in any manner which maymake any financing or continuation statement filed in connection with the Loanseriously misleading within the meaning of the UCC enacted in the State ofFlorida or change its jurisdiction of

 

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organization unless Borrower shall have delivered toLender written notice thereof not less than thirty (30) days before theeffective date of such change and shall have taken all action which Lender determinesto be reasonably necessary or desirable to confirm and protect Lender’ssecurity interests and rights under this Mortgage and the perfection andpriority thereof.  Borrower will notchange its principal places of business unless it shall have given Lender priorwritten notice of its intent to do so not less than thirty (30) days in advanceof the effective date of such change.  Borrowershall bear all costs incurred by Lender in connection with any such changeincluding, without limitation, Reasonable Attorney’s Fees.

 

In the event the ownership of the Property, or any part thereof, shallbecome vested in a person or entity other than Borrower, whether with orwithout the prior written consent of Lender, Lender may, without notice toBorrower, deal with such successor or successors in interest with reference tothe Property, this Mortgage and the other Loan Documents, in the same mannerand to the same extent as with Borrower without in any way vitiating ordischarging Borrower’s liability hereunder or under any of the Loan Documents.  No sale, transfer or conveyance of theProperty, no forbearance on the part of Lender and no extension of time givenby Lender to Borrower for the payment of the Note shall operate to release,discharge, modify, change or affect the original liability of Borrower, eitherin whole or in part, unless expressly set forth in writing executed by Lender.  Notwithstanding anything contained herein tothe contrary, Borrower hereby waives any right it now has or may hereafter haveto require Lender to prove an impairment of its security as a condition to theexercise of Lender’s rights under this Section 32.

 

A sale, transfer, assignment or conveyance within the meaning of thisSection shall be deemed to include, but not be limited to: (a) an installmentsales agreement wherein Borrower agrees to sell the Property or any partthereof for a price to be paid in installments; (b) an agreement by Borrowerleasing all or a substantial part of the Property for other than actual occupancyby a tenant under an Occupancy Lease or a sale, assignment or other transferof, or the grant of a security interest in, Borrower’s right, title andinterest in and to any leases or any Rents; (c) if Borrower, any guarantor, anyindemnitor, or any general partner or managing member of Borrower, is acorporation, the voluntary or involuntary sale, conveyance, transfer or pledgeof such corporation’s stock (or the stock of any corporation directly orindirectly controlling such corporation by operation of law or otherwise), orthe creation or issuance of new stock by which an aggregate of more than tenpercent (10%) of such corporation’s stock shall be vested in a party or partieswho are not now stockholders; and (d) if Borrower, any guarantor, indemnitor,or any general partner or managing member of Borrower, is a limitedpartnership, general partnership, limited liability partnership, limitedliability company, or joint venture, the change, removal or resignation of ageneral partner, managing partner, or member, or the transfer or pledge of theinterest of any general partner, managing partner, or member or any profits orproceeds relating to such interest.

 

Notwithstanding anything contained in this Section 32 to the contrary,including the immediately-preceding paragraph, as long as no default hasoccurred hereunder or under the Note and is continuing beyond the expiration ofany applicable cure period, ownership interests in Borrower or the Property(provided that there shall be no more than one owner of the Property) may betransferred or assigned to The Inland Group, Inc. or Inland Real EstateInvestment Corporation, to an Affiliate of The Inland Group, Inc. or InlandRetail Real Estate Trust Investment Corporation or to a real estate investmenttrust sponsored by one of the

 

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foregoing entities provided that Inland Western RetailReal Estate Trust, Inc. ratifies its obligations as indemnitor and guarantorunder the Indemnity Agreement and Guaranty Agreement of even date herewith infavor of Lender, and such Affiliate or real estate investment trust retainsmanagement and operating control of Borrower, without necessity of Lender’sconsent and without payment of a fee or premium except Lender’s actual reasonablefees so long as the transferee assumes (subject to the non-recourse provisionsand carve-outs contained therein) all obligations of the transferor, if any,under the Note and the Loan Documents, if any.  “Affiliate” shall mean, with respect to a party,any person or entity that controls, is controlled by or is under common controlwith such party, with “control” and its derivatives meaning the possession,directly or indirectly, of the power to direct or cause the direction of themanagement and policies of such party, whether through the ownership of votingstock, partnership interests or units or limited liability company membershipinterests or by contract or otherwise.  Notransfer or assignment shall be valid or permitted hereunder unless Lender hasreceived prior written notice of the transfer or assignment and copies of alltransfer and other related documents and Borrower pays all reasonable fees andexpenses incurred by Lender in connection with such transfer and assumption,including, without limitation, title insurance charges (if the proposedtransfer would impair Lender’s title insurance) and Reasonable Attorneys’ Fees. Any transfer of which does not strictlycomply with the terms and conditions of this Section 32 shall be a default hereunderand shall entitle Lender to exercise all rights and remedies provided in thisMortgage.

 

33.                                 FurtherEncumbrance Prohibited; Subrogation.  So long as the Note remains unpaid, Borrowershall not, either voluntarily or involuntarily, permit the Property or any partthereof to become subject to any secondary or subordinate lien, mortgage, deedof trust, security interest or encumbrance of any kind whatsoever without theprior written consent of Lender, and the imposition of any such secondary lien,mortgage, deed of trust, security interest or encumbrance without the approvalof Lender shall constitute a default hereunder, and entitle Lender, at Lender’ssole option, to declare the outstanding principal balance of the Note, allaccrued and unpaid interest thereon, Prepayment Premiums (to the extentpermitted by the laws of the State of Florida, late payment charges and anyother amounts secured hereby to be and become immediately due and payable infull.  In the event that Lender shallhereafter give its written consent to the imposition of any such secondarylien, mortgage, deed of trust, security interest or other encumbrance upon theProperty, Lender, at Lender’s sole option, shall be entitled to accelerate thematurity of the Note and exercise any and all remedies provided and availableto Lender hereunder and in the other Loan Documents in the event that theholder of any such secondary lien or encumbrance shall institute foreclosure orother proceedings to enforce the same; it being understood and agreed that adefault under any instrument or document evidencing, securing or secured by anysuch secondary lien or encumbrance shall be and constitute a default hereunder. In the event all or any portion of theproceeds of the Loan are used for the purpose of retiring debt or debts securedby prior liens on the Property, Lender shall be subrogated to the rights andlien priority of the holder or holders of the lien or liens so discharged.

 

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34.                                Conveyanceof Mineral Rights Prohibited.   Borrower agrees that the making of any oil,gas or mineral lease, or the sale or conveyance of any mineral interest orright to explore for minerals under, through or upon the Property, would impairthe value of the Property, and that Borrower shall have no right, power orauthority to lease the Property, or any part thereof, for oil, gas or othermineral 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 firstobtaining Lender’s express written permission therefor, which permission shallnot be valid until recorded among the Public Records of Brevard County, in theState of Florida.  Borrower furtheragrees that if Borrower shall make, execute, or enter into any such lease orattempt to grant any such mineral rights without such prior written permissionof Lender, then Lender shall have the option, without notice, to declare thesame to be a default hereunder, and to declare the Loan immediately due andpayable in full.  Whether or not Lendershall consent to such lease or grant of mineral rights, Lender shall receivethe entire consideration to be paid for any such lease or grant of mineralrights, with the same to be applied to the Loan notwithstanding the fact thatthe amount owing thereon may not then be due and payable or that the Loan isotherwise adequately secured; provided, however, that the acceptance of suchconsideration shall in no way impair the lien of this Mortgage on the Propertyor cure any existing Monetary Default.

 

35.                                EstoppelCertification by Borrower.  Borrower,upon request of Lender therefor made either personally or by mail, shallcertify in writing to Lender (or any party designated by Lender), in a formsatisfactory to Lender or such designee, the amount of principal and interest thenoutstanding under the terms of the Note and any other sums due and owing underthis Mortgage or any of the other Loan Documents, and whether any offsets ordefenses exist against the Loan.  Suchcertification shall be made by Borrower within ten (10) days if the request is madepersonally, or within twenty (20) days if the request is made by mail.

 

36.                                CrossDefault.  The Note is also secured bythe terms, conditions and provisions of the Assignment and, additionally, maybe secured by contracts or agreements of guaranty or other securityinstruments.  The terms, covenants,conditions and agreements of each security instrument shall be considered apart hereof as fully as if set forth herein verbatim.  Any default under this Mortgage or any of theother Loan Documents shall constitute a default hereunder and under each of theother Loan Documents. Notwithstanding the foregoing, the enforcement or attemptedenforcement of this Mortgage or any of the other Loan Documents now orhereafter held by Lender shall not prejudice or in any manner affect the rightof Lender to enforce any other Loan Document; it being understood and agreedthat Lender shall be entitled to enforce this Mortgage and any of the otherLoan Documents now or hereafter held by it in such order and manner as Lender,in its sole discretion, shall determine.

 

37.                                Examinationof Borrower’s Records.  Borrower willmaintain complete and accurate books and records showing in detail the incomeand expenses of the Property, and will permit Lender and its agents,contractors or representatives to examine said books and records and allsupporting vouchers and data during normal business hours and from time to timeupon request by Lender, in such place as such books and records are customarilykept.  Borrower will furnish to Lender,within one hundred twenty (120) days after the close of each respective fiscal periodannual and semi-annual financial statements (income statements and a balancesheet) for the Borrower and the Property.  These statements shall be in form reasonablyacceptable to Lender, shall be prepared in accordance with generally acceptedaccounting principles, and shall

 

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include a rent roll,certified as true and correct by Borrower.  The statements shall show in detail all incomederived from and expenses incurred in connection with the ownership of theProperty, including current annual sales figures for all Major Tenants of theProperty if required under the Major Tenant leases or if such financialinformation is otherwise available.  Inthe event Borrower fails to provide such statements to Lender within the timeprescribed above, Borrower shall pay Lender the sum of TWO HUNDRED AND NO/100DOLLARS ($200.00) in administrative expenses for each successive month forwhich the statements are delinquent. Upon a default hereunder beyond anyapplicable grace or cure periods, Lender shall have the right to require thatsaid financial statements be audited and certified by a certified publicaccountant acceptable to Lender, at the sole cost and expense of Borrower.

 

In addition, at the request of Lender, but in no case more often thanonce a quarter or more than three (3) times during the term of the Loan,Borrower shall furnish to Lender (i) unaudited financial statements (balancesheet, income statement, cash flow statement and current rent roll) coveringoperation of the Property for periods other than those set forth in the precedingparagraph; (ii) unaudited financial statements (balance sheets, incomestatements, and cash flow statements) for Borrower, its general partner(s),shareholder(s) or member(s) (whichever is applicable) and for such otherprincipals of Borrower as designated by Lender; and (iii) a portfolio analysisshowing annualized cash flow statements (including debt service payments) forall 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 toLender to be complete, correct, and accurate by the individual (for anindividual’s statements) or by an authorized representative of the entity (ifstatements 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 orsuffer none of the following without the prior written consent of Lender:

 

(a)                                    Anystructural alteration of, or addition to, the Improvements now or hereaftersituated 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;or

 

(b)                                   Theremoval, transfer, sale or lease (except for Occupancy Leases) of the Property,except that the removal, replacement or substitution of fixtures, equipment,machinery, apparatus and articles of personal property (replacement orsubstituted items must be of like or better quality than the removed items intheir original condition) encumbered hereby may be made in the normal course ofbusiness; or

 

(c)                                    Theuse of any of the Improvements now or hereafter situated on the Real Propertyfor any purpose other than the Existing Use and related facilities.

 

39.                                   FutureAdvances Secured.  This Mortgage shallsecure not only existing indebtedness, but also future advances, whether suchadvances are obligatory or to be made at the option of Lender.  Upon the request of Borrower, and at Lender’soption prior to release of this Mortgage, Lender may make future advances toBorrower.  All future advances withinterest thereon shall be secured by this Mortgage to the same extent as ifsuch future advances were

 

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made on the date of the execution of this Mortgageunless the parties shall agree otherwise in writing, but the total securedindebtedness shall not exceed at any one time a maximum principal amount equalto 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 thebenefit or protection of or the payment of taxes, assessments, levies orinsurance upon the Property, with interest on such disbursements as providedherein, shall be added to the principal balance of the Note and collected as apart thereof.  To the extent that thisMortgage may secure more than one note, a default in the payment of any suchmortgage note shall constitute a default in the payment of all such notes.  The filing of any notice limiting the maximumamount that may be secured by this Mortgage pursuant to Florida StatutesSection 697.04 or otherwise shall be and constitute a default under thisMortgage.

 

40.                                 Effectof Security Agreement.  Borroweragrees 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’ssole discretion, may from time to time consider necessary to create, perfect,continue and preserve the lien and encumbrances hereof, and the securityinterest 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, anyother security interest in such real and personal property and fixtures describedherein.  Upon the occurrence of a defaulthereunder or Borrower’s breach of any other covenants or agreements between theparties entered into in conjunction herewith, Lender shall have the remedies ofa 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 causesuch statements, descriptions and assurances, as herein provided in thisSection 40, and this Mortgage, to be recorded and re-recorded, filed andrefiled, at such times and in such places as may be required or permitted bylaw to so create, perfect and preserve the lien and encumbrance hereof upon allof the Property.

 

41.                                 Termsof Application Survive Closing.  Theterms and provisions of the letter from Lender consenting to the assumption ofthe Loan by Borrower dated December 21, 2004 and accepted by Borrower onDecember 30, 2004 and any subsequent amendments thereto (the “Application”),executed by and between Borrower and Lender, are incorporated herein byreference.  All terms, covenants,conditions and agreements of the Application not expressly set forth in thisMortgage and any of the other Loan Documents shall survive the execution anddelivery hereof, and remain in full force and effect.  In the event any conflict exists between theterms, covenants, conditions and agreements of the Application and the Loan Documents,the terms, covenants, conditions and agreements of the Loan Documents shall prevail.

 

42.                                       Successorsand Assigns; Terminology.  Theprovisions hereof shall be binding upon Borrower and the heirs, personalrepresentatives, trustees, successors and assigns of Borrower, and shall inureto the benefit of Lender, its successors and assigns.  Where more than one (1) Borrower is namedherein, the obligations and liabilities of said Borrower shall be joint and several.

 

Wherever used in this Mortgage, unless the context clearly indicates acontrary intent or unless otherwise specifically provided herein: (a) the word “Borrower”shall mean Borrower

 

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and/or any subsequent owner or owners of the Property;(b) the word “Lender” shall mean Lender or any subsequent holder or holders ofthis Mortgage; (c) the word “Note” shall mean the Note(s) secured by thisMortgage; and (d) the word “person” shall mean an individual, trustee, trust,corporation, partnership, limited liability corporation, limited liabilitypartnership, joint venture or unincorporated association.  As used herein, the phrase “ReasonableAttorneys’ Fees” shall mean fees charged by attorneys selected by Lender basedupon such attorneys’ then prevailing hourly rates as opposed to any statutorypresumption specified by any statute then in effect in the State.  As used herein words of any gender shallinclude all other genders.

 

43.                                 Notices. All notices, reports, requests or otherwritten instruments required or permitted hereunder, shall be in writing,signed by the party giving or making the same, and shall be senthand-delivered, effective upon receipt, sent by United States Express Mail orby a nationally recognized overnight courier, effective upon receipt, or sentby United States registered or certified mail, postage prepaid, with returnreceipt requested, deemed effective on the earlier of the day of actualdelivery 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 toreceive the same at the address set forth below or at such other address asshall be given in writing by any party to another (“Written Notice”):

 
| If to Borrower:         |   | Inland Western Viera Lake Andrew, L.L.C.          |
|-------------------------|--------|---------------------------------------------------|
|                    |   | 2901 Butterfield Road                             |
|                    |   | Oak Brook, Illinois 60523                         |
|                    |   | Attention: Steve Grimes                           |
|                    |   |                                              |
| with copy to:           |   | Inland Western Retail Real Estate Trust, Inc.     |
|                    |   | 2901 Butterfield Road                             |
|                    |   | Oak Brook, Illinois 60523                         |
|                    |   | Attention: Roberta Matlin                         |
|                    |   |                                              |
| and additional copy to: |   | The Inland Real Estate Group, Inc.                |
|                    |   | Law Department                                    |
|                    |   | 2901 Butterfield Road                             |
|                    |   | Oak Brook, Illinois 60523                         |
|                    |   | Attention: Robert Baum, Esq.                      |
|                    |   |                                              |
| If to Lender:           |   | Nationwide Life Insurance Company                 |
|                    |   | One Nationwide Plaza                              |
|                    |   | Columbus, Ohio 43215-2220                         |
|                    |   | Attention: Real Estate Investment Department, 34T |

 

 

44.                                 GoverningLaw; Waiver of Jury Trial; Severability.  BORROWER, TO THE FULL EXTENT PERMITTED BY LAW,HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OFCOMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES HEREBY THE RIGHT TOA TRIAL BY JURY IN ANY ACTION OR PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANYTORT ACTION, AGAINST LENDER, ITS SUCCESSORS AND ASSIGNS, BASED UPON, ARISINGOUT OF, OR IN ANY WAY RELATING TO OR IN

 

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CONNECTION WITH ANY OF THE LOAN DOCUMENTS, THE LOAN ORANY COURSE OF CONDUCT, ACT, OMISSION, COURSE OF DEALING, STATEMENTS (WHETHERVERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON (INCLUDING, WITHOUT LIMITATION,LENDER’S DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS ORATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH LENDER), IN CONNECTION WITH THELOAN OR THE LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION, IN ANY COUNTERCLAIMWHICH ANY PARTY MAY BE PERMITTED TO ASSERT THEREUNDER, WHETHER SOUNDING INCONTRACT, TORT OR OTHERWISE.  IN NO EVENTSHALL LENDER, ITS SUCCESSORS OR ASSIGNS BE LIABLE FOR ANY SPECIAL, INCIDENTAL,CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION LOSSOF BUSINESS PROFITS OR OPPORTUNITY) AND BY ITS EXECUTION HEREOF, BORROWERWAIVES ANY RIGHT TO CLAIM OR SEEK ANY SUCH DAMAGES.  THIS MORTGAGE AND THE RIGHTS AND OBLIGATIONSOF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCEWITH, THE INTERNAL LAWS OF THE STATE FLORIDA, WITHOUT REGARD TO PRINCIPLES OFCONFLICTS OF LAWS.  THE PARTIES HERETOIRREVOCABLY (A) AGREE THAT ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING ARISINGOUT OF OR RELATING TO THIS MORTGAGE MAY BE BROUGHT IN A COURT OF RECORD IN THESTATE 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 THELAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY OF SUCH COURTSAND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN ANINCONVENIENT FORUM.  IF ANY CLAUSES OR PROVISIONSHEREIN CONTAINED OPERATE, OR WOULD PROSPECTIVELY OPERATE, TO INVALIDATE THISMORTGAGE, THEN SUCH CLAUSES OR PROVISIONS ONLY SHALL BE HELD FOR NAUGHT, ASTHOUGH NOT HEREIN CONTAINED, AND THE REMAINDER OF THIS MORTGAGE SHALL REMAINOPERATIVE AND IN FULL FORCE AND EFFECT.

 

45.                                     Rightsof Lender Cumulative.  The rights ofLender arising under the terms, covenants, conditions and agreements containedin this Mortgage shall be separate, distinct and cumulative, and none of themshall be in exclusion of the others.  Noact of Lender shall be construed as an election to proceed under any oneprovision herein to the exclusion of any other provisions, anything herein orotherwise to the contrary notwithstanding. If Borrower is comprised of more than one (1) person or entity, then theliability 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 inrecordable form, executed by both Borrower and Lender.

 

47.                                     Exculpation.  Notwithstanding anything contained herein tothe contrary, the liability of Borrower is subject to the limited recourseprovisions contained in the Exculpation

 

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section of the Note,which are incorporated herein and made a part hereof by reference as if fullyset forth herein.

 

48.                                   FullRecourse.  *Notwithstanding any provisions in this Mortgage to the contrary, includingwithout limitation the provisions set forth in the section captioned “Exculpation”hereinabove, Borrower shall be personally liable, jointly and severally, forthe entire Loan secured by this Mortgage (including all principal, interest andother charges) in the event (a) Borrower violates the covenant governing theplacing of subordinate financing on the Property as set forth in this Mortgage:(b) Borrower violates the covenant restricting transfers of interests in theProperty or transfers of ownership interests in Borrower as set forth in thisMortgage; or (c) Borrower or any guarantor violates the provisions of Section22 of this Mortgage, or there is filed against Borrower or any guarantor orindemnitor of the Loan, a petition in bankruptcy or for the appointment of areceiver, or there commences under any bankruptcy or insolvency law, proceedingsfor Borrower’s relief, or for the compromise, extension, arrangement oradjustment of Borrower’s obligations which is not dismissed within thirty (30)days after the filing of same.*

 

49.                                     Lenderis Not a Joint Venturer or Partner.  Borrowerand Lender acknowledge and agree that in no event shall Lender be deemed to bea partner or joint venturer with Borrower or any member of Borrower.  Without limitation of the foregoing, Lendershall not be deemed to be a partner or joint venturer on account of itsbecoming a mortgagee in possession or exercising any rights pursuant to thisMortgage or pursuant to any other instrument or document evidencing or securingany of the indebtedness secured hereby, or otherwise.

 

50.                                     Captions. The captions set forth at the beginningof the various Sections of this Mortgage are for convenience only, and shallnot be used to interpret or construe the provisions of this Mortgage.

 

51.                                     TradingWith the Enemy Act.  Neither the makingof the Loan to Borrower (or the use of its proceeds) nor the execution of anyof 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 TreasuryDepartment (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislationor executive order relating thereto.  Inaddition, Borrower warrants, represents and covenants that neither Borrower,Guarantor nor any of their respective affiliated entities is or will be anentity or person (i) that is listed in the Annex to, or is otherwise subject tothe provisions of Executive Order 13224 issued on September 24, 2001 (“EO13224”),(ii) whose name appears on the United States Treasury Department’s Office ofForeign Assets Control (“OFAC”) most current list of “Specifically DesignedNational and Blocked Persons” (which list may be published from time to time invarious 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 isdefined in EO 13224, or (iv) who is otherwise affiliated with any entity orperson listed in subparts (i) – (iv) above (any and all parties or personsdescribed in subparts [i] – [iv] above are herein referred to as a “ProhibitedPerson”).  Borrower covenants and agreesthat neither Borrower, Guarantor nor any of their respective affiliatedentities will (i) conduct any business, nor engage in any transaction ordealing, with any Prohibited Person, including, but not limited to, the makingor receiving of any contribution of funds, goods, or services, to or for thebenefit of a Prohibited Person, or (ii) engage in or conspire to engage in anytransaction that evades or avoids, or has the purpose of evading or avoiding,or attempts to

 

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violate, any of theprohibitions set forth in EO13224.  Borrowerfurther covenants and agrees to deliver (from time to time) to Lender any suchcertification or other evidence as may be requested by Lender in its sole andabsolute discretion, confirming that (i) neither Borrower nor Guarantor is aProhibited Person and (ii) neither Borrower nor Guarantor has engaged in anybusiness, transaction or dealings with a Prohibited Person, including, but notlimited to, the making or receiving of any contribution of funds, goods, orservices, to or for the benefit of a Prohibited Person.

 

52.                                   ReplacementDocuments.  Upon receipt of anaffidavit of an officer of Lender as to the loss, theft, destruction ormutilation of the Note or any other Loan Document which is not of publicrecord, and, in the case of any such mutilation, upon surrender andcancellation of such Note or other Loan Document, Borrower, at its expense,will issue, in lieu thereof, a replacement Note or other Loan Document, datedthe date of such lost, stolen, destroyed or mutilated Note or other LoanDocument in the same principal amount thereof and otherwise of like tenor.

 

53.                                   SoleDiscretion of Lender.  Whereverpursuant to this Mortgage Lender exercises any right given to it to approve ordisapprove, or any arrangement or term is to be satisfactory to Lender, thedecision of Lender to approve or disapprove or to decide that arrangements orterms are satisfactory or not satisfactory shall be in the sole discretion ofLender and shall be final and conclusive, except as may be otherwise expresslyand specifically provided herein.

 

54.                                   SecondaryMarket.  Lender may, at any time,sell, transfer or assign the Note, this Mortgage, the Assignment and the otherLoan Documents, and any or all servicing rights with respect thereto, or grantparticipation therein or issue mortgage pass-through certificates or other securitiesevidencing a beneficial interest in a rated or unrated public offering orprivate placement. Lender may forward to each Investor and each prospectiveInvestor, all documents and information which Lender now has or may hereafteracquire relating to the Loan and to Borrower, any guarantor and the Property,whether furnished by Borrower, any guarantor or otherwise, as Lender determinesnecessary or desirable.

 

**[SIGNATURESBEGIN ON NEXT PAGE]**

 

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

 

 Signed, sealed and delivered
| in the presence of:        | **INLAND WESTERN VIERA LAKE  ANDREW, L.L.C.,**a Delaware corporation |
|----------------------------|----------------------------------------------------------------------|
|                       |                                                                 |   |
|                       | By:                                                                  | Inland Western Retail Real Estate Trust, |
|                       |                                                                 | Inc., a Maryland corporation, |
|                       |                                                                 | its sole member |
|                       |                                                                 |   |
|  /s/ Patricia Clayton |                                                                 |   | By: |   /s/ Debra Palmer |   |
| Name:                      |  PATRICIA CLAYTON                                               |   |   | Name: |   Debra Palmer |   |
|                       |                                                                 | Title: |   Assistant Secretary |   |
|                       |                                                                 |   |   |   |
| /s/ Doris E. Ahern         |                                                                 |   |   | (CORPORATE SEAL) |   |
| Name:                      | DORIS E. AHERN                                                       |   |   |   |   |   |
|                            |                                                                      |  |  |  |  |  |  |  |  |

 
| STATE OF  | ILLINOIS |   |
|-----------|----------|--------|
| COUNTY OF | DUPAGE   |   |
|           |          |        |  |

 

The foregoing instrument was acknowledged before methis 30 day of December, 2004 by Debra Palmer, as Assistant Secretary of InlandWestern Retail Real Estate Trust, Inc., a Maryland corporation, sole member of **INLAND****WESTERN****VIERA LAKE ANDREW, L.L.C.,**a Delawarecorporation on behalf of the corporation.  She is personally known to me or has produced                   as identification and did not take an oath.

 
|   | /s/ Doris E.  Ahern              |           |
|--------|---------------------------------------|----------------|
|   | Name:                                 | DORIS E. AHERN |   |
|   | Commission No.:                       |           |   |
|   | My Commission Expires:                |  10-13-08 |   |
|   |                                  |
|   | (SEAL)                                |
|   |                                  |
|   | OFFICIAL SEAL                         |
|   | DORIS E AHERN                         |
|   | NOTARY PUBLIC  STATE OF ILLINOIS |
|   | MY COMMISSION EXPIRES  10/13/08       |
|        |                                       |                |  |  |  |

 

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| ** ** | **NATIONWIDE LIFE INSURANCE**    |
|------------|----------------------------------|
|       | **COMPANY,** an Ohio corporation |
|       |                             |   |
|       |                             | By: |   |
|       |                             |   |
| Name:      |                             |   | Name: |   | , Vice President |
|       |                             |   |
|       |                             |   |   |
|       |                             |   |   |
| Name:      |                             |   | (CORPORATE SEAL) |
|            |                                  |  |  |  |  |  |  |

 

 

**STATE OFOHIO**

**COUNTY OFFRANKLIN**

 

The foregoing instrument was acknowledged before methis              day of December, 2004 by                         ,as Vice President of**NATIONWIDE LIFE INSURANCECOMPANY,** an Ohio corporation, on behalf of the corporation.  He/she is personally known to me or hasproduced                                                       asidentification.

 
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39

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**EXHIBITA**

 

**LEGALDESCRIPTION**

 

40

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**EXHIBIT“A”**

 

PARCEL 1:

 

Lot 2, Plat ofWal-Mart at Viera, recorded in Plat Book 48, pages 79 through 81, together withthe benefits and burdens and all of Grantor’s right, title and interest in andto “Outparcel Lot 2” as set forth in that certain Easements with Covenants andRestrictions Affecting Land which is recorded in Official Records Book 4406,page 2162, all of the Public Records of Brevard County, Florida.

 

Together with:

 

A parcel of landlying within Section 9 & 10, Township 26 South, Range 36 East, BrevardCounty, Florida, more particularly described as follows:

 

From the Southeast cornerof said Section 9; thence South 88° 40’ 59” West, along the South line of saidSection 9, a distance 34.65 feet; thence North 01° 19’ 01” West, 249.21 feet;thence North 14° 31’ 21” West 786.66 feet, thence North 75° 28’39’ East, 270.19feet to the Point of Beginning; thence North 14° 31’ 21” West 626.54 feet,thence North 75° 29’ 02” East 181.34 feet to the point of a curve, concaveSoutherly, having a radius of 1900.00 feet; thence Easterly along the arc ofsaid curve to a right, a distance of 360.61 feet through a central angle of 10°52’ 27”, to a point of reverse curve, concave Northerly, having a radius of2650.00 feet, thence Easterly along the arc of said curve to the left adistance of 169.61 feet, through a central angle of 03° 40’ 02”; to theWesterly Right of Way of Interstate of 95 (as described in Circuit Court Book53, Pages 359-363, Public Records of Brevard County, Florida); thence South 14°30’ 59” East, along the said Westerly Right of Way a distance of 430.56 feet;thence South 04° 15’ 31” East, 437.30 feet; thence South 75° 28’ 39” West544.32 feet; thence North 14° 31’ 21” West, 295.16 feet; thence South 75° 28’39” West, 84.97 feet, to the Point of Beginning.

 

PARCEL 2:

 

Lot 4, Plat ofWal-Mart at Viera, recorded in Plat Book 48, pages 79 through 81, together withthe benefits and burdens and all of Grantor’s right, title and interest in andto “Outparcel Lot 4” as set forth in that certain Easements with Covenants andRestrictions Affecting Land which is recorded in Official Records Book 4406,page 2162, all of the Public Records of Brevard County, Florida.

 

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