**Exhibit 10.491**

 

Prepared by and return to:

Darrell D. Garvey, Esquire

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

450 South Orange Avenue,Suite 800

Orlando, Florida 32801

 
|   | Borrower Name: | Wickham & 95 Corp. |
|--------|----------------|------------------------|
|   |           | Lot 90, L.L.C.         |
|   |           | Lot 91, L.L.C.         |
|   | Project Name:  | Shoppes at Lake Andrew |
|   |           | Viera, Florida         |

 

**THIS NOTICE OF FUTURE ADVANCE, MORTGAGEMODIFICATION AND AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT AMENDSAND RESTATES THAT CERTAIN MORTGAGE AND SECURITY AGREEMENT EXECUTED BY WICKHAM *&*95 CORP., A FLORIDA CORPORATION, LOT90, L.L.C., A FLORIDA LIMITED LIABILITY COMPANY, AND LOT 91, L.L.C., A FLORIDALIMITED LIABILITY COMPANY, TO AND IN FAVOR OF AMSOUTH BANK, A STATE BANKINGCORPORATION (“AMSOUTH”) DATED OCTOBER 30, 2002 AND RECORDED ON NOVEMBER 4, 2002IN OFFICIAL RECORDS BOOK 4728, PAGE 3484, OF THE PUBLIC RECORDS OF BREVARDCOUNTY, FLORIDA, AS ASSIGNED AND ENDORSED TO LENDER BY THE ASSIGNMENT OF NOTEAND MORTGAGE AGREEMENTS REFERRED TO HEREIN, AND SECURES THE FUTURE ADVANCE ANDRENEWAL NOTE REFERRED TO HEREIN IN THE ORIGINAL PRINCIPAL AMOUNT OF FIFTEENMILLION EIGHT HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($15,850,000.00) (THE “RENEWALNOTE”). THE RENEWAL NOTE AMENDS, RESTATES AND RENEWS THAT CERTAIN PROMISSORYNOTE IN THE STATED PRINCIPAL SUM OF FIFTEEN MILLION ONE HUNDRED FIFTY THOUSANDAND NO/100 DOLLARS ($15,150,000.00) DATED****OCTOBER 30, 2002.**

 

**THE OUTSTANDING PRINCIPAL BALANCE OF THE ORIGINALNOTE IN THE AMOUNT OF FOURTEEN MILLION SEVEN HUNDRED EIGHTY-EIGHT THOUSAND SIXHUNDRED SIXTEEN AND 96/100 DOLLARS ($14,788,616.96) IS EXEMPT FROM FLORIDADOCUMENTARY STAMP TAXES PURSUANT TO FLORIDA STATUTES, SECTION 201.09 ANDFLORIDA ADMINISTRATIVE CODE RULE 12B-4.054 AND IS EXEMPT FROM FLORIDAINTANGIBLE TAXES PURSUANT TO FLORIDA STATUTES SECTION 199.143. DOCUMENTARYSTAMP TAXES AND FLORIDA INTANGIBLE TAXES ARE BEING PAID IN CONNECTION WITH THEAMOUNT OF ONE MILLION SIXTY ONE THOUSAND THREE HUNDRED EIGHTY-THREE AND 04/100DOLLARS ($1,061,383.04) BEING ADVANCED IN CONNECTION HEREWITH. DOCUMENTARYSTAMP TAXES IN THE AMOUNT OF THREE THOUSAND SEVEN HUNDRED FOURTEEN AND 90/100DOLLARS ($3,714.90) HAVE BEEN AFFIXED HERETO. INTANGIBLE TAXES HAVE BEEN PAIDIN THE AMOUNT OF TWO THOUSAND ONE HUNDRED TWENTY-TWO AND 77/100 DOLLARS ($2,122.77).**

 

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**NOTICE OF FUTURE ADVANCE,MORTGAGE MODIFICATION AND AMENDEDAND RESTATED MORTGAGE AND SECURITY AGREEMENT**

 

**THISNOTICE OF FUTURE ADVANCE, MORTGAGE MODIFICATION AND AMENDED AND RESTATEDMORTGAGE AND SECURITY AGREEMENT** is made, executed anddelivered as of this 26th day of February, 2004, by **WICKHAM & 95 CORP.,** a Florida corporation, **LOT 90, L.L.C.,** a Florida limited liabilitycompany, and **LOT 91, L.L.C.,** aFlorida limited liability company (hereinafter collectively referred to as “Borrower”),whose address is c/o Matthew Development, 7331 Office Park Place, Suite 200,Viera, Florida 32940, to and in favor of **NATIONWIDE LIFE INSURANCECOMPANY,** an Ohio corporation, its successors and assigns(hereinafter referred to as “Lender”), having its principal office at OneNationwide Plaza, Columbus, Ohio 43215-2220, Attention: Real Estate InvestmentDepartment, 34T, or at such other place either within or without the State ofOhio, as Lender may from time to time designate;

** **

**THAT WHEREAS,**Lender is the owner and holder of that certain Mortgage and SecurityAgreement by Borrower to and in favor of AmSouth Bank, a state bankingcorporation (“AmSouth”) dated October 30, 2002 and recorded on November 4,2002, in Official Records Book 4728, Page 3484, of the Public Records ofBrevard County, Florida (hereinafter referred to as the “Original Mortgage”);and

 

**WHEREAS,**the Original Mortgage secures that certain Promissory Note executed byBorrower to and in favor of AmSouth dated October 30, 2002 in the originalprincipal amount of FIFTEEN MILLION ONE HUNDRED FIFTY THOUSAND AND NO/100DOLLARS ($15,150,000.00) (the “Original Note”); and

 

**WHEREAS,**the Original Mortgage and the Original Note were subsequently assignedand transferred to Lender pursuant to that certain Assignment of Note andMortgage Agreements from AmSouth to Lender dated on or about the date hereofand recorded concurrently herewith; and

 

**WHEREAS,**the Original Note and the Original Mortgage are now held by Lender; and

 

**WHEREAS**the Original Note has a current principal balance in the amount ofFOURTEEN MILLION SEVEN HUNDRED FORTY-THREE THOUSAND ONE HUNDRED FORTY AND33/100 DOLLARS ($14,743,140.33); and

 

**WHEREAS,**Borrower executed a Future Advance and Renewal Note to and in favor ofLender renewing the Original Note and increasing the principal balance of theloan to FIFTEEN MILLION EIGHT HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($15,850,000.00)(the “Note”); and

 

**WHEREAS**,Borrower and Lender desire to modify and amend the Original Mortgage in orderto reflect that the Original Mortgage secures the Note, and to modify and amendcertain other terms of the Original Mortgage.

 

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**NOW THEREFORE**, for and in consideration of the premises and mutual covenants hereincontained and for and in consideration of the sum of TEN AND NO/100 DOLLARS($10.00) the receipt and sufficiency of which are hereby acknowledged, Borrowerand Lender hereby agree as follows:

 

1.             All of the foregoing recitations are true andcorrect and are hereby incorporated herein and made a part hereof.

 

2.             Under no circumstances shall this instrumentor any portion hereof constitute or be deemed to constitute a novation of theOriginal Mortgage. The Original Mortgage, as hereby amended and restated, shallsecure the Note with the same priority of lien as if this instrument had beenexecuted and recorded at the same time as the Original Mortgage was originally executedand recorded.

 

3.             Borrower hereby covenants, stipulates, agreesand acknowledges that the obligation of Borrower to repay to Lender the Note ishereby declared to be secured by the Original Mortgage, as amended and restatedhereby, in the same manner and to the same extent as if the Note was made andexecuted on the date that the Original Mortgage was originally executed anddelivered and that nothing herein contained shall diminish or in any way ormanner limit the right of Lender to make additional advances to the Borrowerpursuant to the provisions of the Original Mortgage, as amended and restatedhereby.

 

4.             Borrower hereby acknowledges, represents andconfirms unto Lender that (a) it does not now have and at no prior time had anydefenses (including without limitation, the defense of usury), claims,counterclaims, cross-actions or equities, or rights of rescission, set off, abatement,or diminution, with respect to the Original Note, the Original Mortgage or theNote or the Mortgage (as hereinafter defined) or any other loan documentsexecuted in connection therewith, and that it has at no time asserted any suchdefense, claim or right of rescission, set off, abatement or diminution withrespect thereto, and if any such defense, claim, counterclaim, cross-action orequity, or rights of rescission, set off, abatement or diminution do exist thesame are hereby waived and released; (b) the Original Mortgage, the OriginalNote and all other loan documents executed in connection therewith are valid,binding and free from any infirmity of any nature whatsoever, and areenforceable in accordance with their respective terms; (c) the Original Mortgageconstitutes a valid first lien against the Property (defined herein); and (d)no payments of interest or any other charges have been made to Lender whichwould result in the computation or earning of interest in excess of the maximumlegal rate of interest permitted under the laws applicable thereto.

 

5.             The terms and conditions of the Mortgage arehereby amended and superseded in their entirety; and the Original Mortgage ishereby restated in its entirety (the Original Mortgage as so amended andrestated being herein referred to as the “Mortgage”) as follows:

 

**MORTGAGE AND SECURITY AGREEMENT**

 

**THIS MORTGAGE AND SECURITY AGREEMENT** (hereinafter referred to as the “Mortgage”)is made, executed and delivered as of the day and year first written above by

 

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**WICKHAM & 95 CORP.,** aFlorida corporation, **Lot 90, L.L.C.,**a Florida limited liability company, and **Lot 91, L.L.C.,**a Florida limited liability company (hereinafter collectively referred to as “Borrower”),whose address is c/o Matthew Development, 7331 Office Park Place, Suite 200,Viera, Florida 32940, to and in favor of **NATIONWIDE LIFE INSURANCECOMPANY,** an Ohio corporation, its successors and assigns hereof(hereinafter referred to as “Lender”), having its principal office at OneNationwide Plaza, Columbus, Ohio 43215-2220, Attention: Real Estate InvestmentDepartment, 34T, or at such other place either within or without the State ofOhio, as Lender may from time to time designate;

 

**W I T N E S S E T H:**

 

**WHEREAS,**Borrower is justly indebted to Lender in the original principal sum of FIFTEENMILLION EIGHT HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($15,850,000.00) withinterest thereon, which Loan is evidenced and represented by that certainFuture Advance and Renewal Note of even date herewith from Borrower to Lenderin the amount of the Loan (hereinafter referred to as the “Note”), bothprincipal and interest being payable as therein provided, with the firstpayment on the Note becoming due and payable on the date of disbursement, andall amounts remaining unpaid thereon being finally due and payable on March 1,2014, and the 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, as a condition precedent to the extension of credit and the making ofthe Loan has required that Borrower provide Lender with security for therepayment of the Loan as well as for the performance, observance and dischargeby Borrower of various terms, covenants, conditions and agreements made byBorrower to, with, in favor of and for the benefit of Lender with respect tothe Loan and such security;

 

**NOW THEREFORE,**in consideration of and in order to secure the repayment of the Loan evidencedand represented 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 the properties, interests andrights hereinafter described with such payment, observance, performance anddischarge; and in consideration of the sum of ONE AND NO/100 DOLLAR ($1.00)paid by Lender to Borrower, and other good and valuable considerations, thereceipt and sufficiency of which are hereby acknowledged by Borrower, Borrowerdoes hereby grant, bargain, sell, convey, assign, transfer, pledge, deliver,hypothecate, warrant and confirm unto Lender forever, all of Borrower’s right,title and interest in and to the following described properties, including allrights, interests, replacements, substitutions and additions thereto, thereinor therefore (collectively, the “Mortgaged Property”):

 

(a)           All that certain piece, parcel or tract of land or real property ofwhich Borrower is now seized and in actual or constructive possession, situatedin the City of Viera, County of Brevard and State of Florida, and being moreparticularly described on **Exhibit A** attachedhereto and by this reference made a part hereof (the “Real Property”);

 

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

 

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

 

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

 

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

 

(f)            Any and all awards, payments or settlements,including interest thereon, and the right to receive the same, as a result of: (a) the exercise of the right of eminent domain; (b) thealteration of the grade of any way, street, avenue, road, alley, passage orpublic place; (c) any other injury, damage, casualty or claim relating to thetaking of, or decrease in the value of, the Real Property, Improvements orAppurtenances; or (d) proceeds of insurance awards, to**the extent of all amounts which may besecured by this Mortgage at the date of any such award or payment including butnot limited to Reasonable Attorneys’ Fees (as hereinafter defined), costs anddisbursements incurred by Lender in connection with the collection of suchaward or payment;

 

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

 

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

 

**TO HAVE AND TO HOLD** the foregoing Mortgaged Property and the rights hereby granted for itsuse and benefit unto Lender and its successors and assigns in fee simpleforever.

 

Inorder to secure the repayment of the Loan evidenced and represented by the Note,together with interest on the Loan, as well as the payment of all other sums ofmoney secured hereby, as hereinafter provided; and to secure the observance,performance and discharge by Borrower of all covenants, conditions andagreements 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 all proceeds thereof, including, without limitation, any and all licenses,permits, franchises, trademarks, trade names, service marks or logos, plans,specifications, maps, construction contracts, instruments, insurance policies,fittings and fixtures of every kind, which is, are or shall hereafter 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 relatingto the 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 all accounts andgeneral intangibles under which such proceeds may arise, together with any sumsof money 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

 

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covering the Real Property or any part thereof (collectively, the “Fixturesand Personal Property”) which term expressly excludes any toxic waste orsubstance deemed hazardous under federal, regional, state or local laws, codes,ordinances, statutes, rules, regulations, decisions or orders).  The Mortgaged Property and the Fixtures andPersonal Property are herein together referred to as the “Property”.

 

Exceptas otherwise expressly provided in this Mortgage, all terms in this Mortgagerelating to the Property and the grant of the foregoing security interest whichare defined in the Uniform Commercial Code of the State (the “UCC”) shall havethe meanings assigned to them in Article 9 (or, absent definition in Article 9,in any other Article) of the UCC, as those meanings may be amended, revised orreplaced from time to time. Notwithstanding the foregoing, the parties intendthat the terms used herein which are defined in the UCC have, at all times, thebroadest and most inclusive meanings possible. Accordingly, if the UCC shall inthe 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, thensuch term, as used herein, shall be given such broadened meaning. If the UCC shallin the future be amended or held by a court to define any term used herein morenarrowly, or less inclusively, than the UCC in effect on the date of thisMortgage, such amendment or holding shall be disregarded in defining terms usedin this Mortgage.

 

Borrowerhereby covenants and warrants with and to Lender that Borrower is indefeasiblyseized of the Property and has good right, full power, and lawful authority toconvey and encumber all of the same as aforesaid; that subject to the PermittedExceptions (as hereinafter defined) Borrower hereby fully warrants the title tothe Property and will defend the same and the validity and priority of the lienand encumbrance of this Mortgage against the lawful claims of all personswhomsoever; and Borrower further warrants that the Property is free and clearof all liens and encumbrances of any kind, nature or description, save andexcept only (with respect to said Real Property, Improvements andAppurtenances) for real property taxes for years subsequent to 2004 (which arenot yet due and payable) and those exceptions accepted by Lender as set forthin the title insurance commitment or proforma policy issued to Lender precedentto the issuance of a Lender’s Policy of Title Insurance insuring the first lienpriority of this Mortgage (the “Permitted Exceptions”).

 

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

 

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

 

1.             Payment of 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

 

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

 

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

 

(a)           Borrower shall keep all Improvements now existing or hereafter erected onthe Real Property in good order and repair, only to be used for the ExistingUse, and not to do or permit any waste, impairment or deterioration thereof orthereon, nor to alter, remove or demolish any of the Improvements or anyFixtures and Personal Property attached or appertaining thereto, without theprior written consent of Lender, nor to initiate, join in or consent to anychange in any private restrictive covenant, zoning ordinance or other public orprivate restrictions limiting or defining the uses which may be made of theProperty or any part thereof, nor to do or permit any other act whereby theProperty shall become less valuable, be used for purposes contrary toapplicable Law or be used in any manner which will increase the premium for orresult in a termination or cancellation of the insurance policies hereinafter requiredto be kept and maintained on the Property. In furtherance of, and not by way of limitation upon, the foregoing covenant,Borrower shall effect such repairs as Lender may reasonably require, and fromtime 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 with the making of such repairs, Borrowershall use contractors who are properly licensed, who carry workers’compensation insurance and appropriate liability insurance, who generally havea good reputation for completing their work in a neat, prompt and workmanlikemanner, and use only new or re-manufactured goods of a quality as good orbetter than that originally used on the Property. As provided herein, Borrowershall insure that no liens are filed against the Property that relate in anyway to the repair work provided for herein.

 

(b)           Borrower at all times shall keep the Property and ground water of the Propertyfree of Hazardous 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, store, release, threaten release, transport on or over, emit or disposeof Hazardous Materials in, on, over, under or about the Property including theground water of the Property in violation of any federal, regional, state orlocal law, code, ordinance, statute, rule, regulation, decision or ordercurrently in existence or hereafter enacted or rendered (collectively, “HazardousWaste

 

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Laws”).Borrower shall give Lender prompt Written Notice (as hereinafter defined) of anyclaim by any person, entity, or governmental agency that a significant releaseor disposal of Hazardous Materials has occurred in, on, over, under or aboutthe Property, including the ground water of the Property, in excess of thosepermitted by the Hazardous Waste Laws, whether caused by the Borrower, anytenant or any third party. Borrower, through its professional engineers and atthe Borrower’s sole cost, shall promptly and thoroughly investigate anysuspected release of Hazardous Materials in, on, over, under or about theProperty, including the ground water of the Property. Borrower shall forthwithremove, repair, remediate, clean up, and/or detoxify any Hazardous Materialsfound in, on, over, under or about the Property or in the ground water of theProperty to the extent such actions are required by any applicable HazardousWaste Laws, and whether or not Borrower was responsible for the existence ofthe Hazardous Materials in, on, over, under or about the Property or the groundwater of the Property. Hazardous Materials shall include, but not be limitedto, substances defined as “hazardous substances”, ‘‘hazardous materials”, or “toxicsubstances” in The Comprehensive Environmental Response, Compensation andLiability Act of 1980, as amended by The Superfund Amendments andReauthorization Act of 1986, The Hazardous Materials Transportation Act, TheResource Conservation and Recovery Act of 1976, as amended by The Used Oils Recycling Act of1980, The Solid Waste Disposal Act Amendment of 1984, The Toxic SubstancesControl Act, The Clean Air Act, The Clean Water Act or under any HazardousWaste Laws (as defined in the Indemnity Agreement of even date herewithexecuted by Borrower). In addition, Borrower shall not incorporate anyunderground storage tanks into the Real Property without the prior writtenconsent of Lender, and shall insure that all tanks currently on the RealProperty comply with current Hazardous Waste Laws and underground storage tankregulations and are properly registered.

 

Borrowerhereby agrees to indemnify and defend Lender and hold Lender harmless from andagainst any and all losses, liabilities, damages, injuries, costs, expenses,fines, fees, suits, actions, debts, obligations, and claims of any and every kindwhatsoever, including Reasonable Attorneys’ Fees (collectively, “Losses”) paid,incurred or suffered by, or asserted against, Lender for, with respect to, oras a direct or indirect result of, the presence in, on, over, under or about,or the escape, seepage, leakage, spillage, discharge, emission or release from,the Property of any Hazardous Materials (including, without limitation, anylosses, liabilities, damages, injuries, costs, expenses or claims asserted orarising under any Hazardous Waste Laws), regardless of the source oforigination and whether or not caused by, or within the control of, Borrower **AND INCLUDING ANY CLAIMS OF LENDER’S NEGLIGENCE ORSTRICT LIABILITY,** but excluding Lender’s willful misconduct or grossnegligence.

 

Liabilityunder this Section 3(b) and similar provisions in this Mortgage and the otherLoan Documents concerning Hazardous Materials shall survive repayment of theNote and satisfaction of this Mortgage; provided, however, Borrower shall haveno liability under this Section 3(b) regarding Hazardous Materials if either (i)**the Property becomes contaminated subsequentto Lender’s acquisition of the Property by foreclosure, acceptance by Lender ofa deed to lieu thereof, or subsequent to any transfer of ownership of theProperty which was approved or authorized by Lender in writing, pursuant tothis Mortgage, provided that such transferee assumes in writing all of**the obligations of Borrower with respect toHazardous Materials pursuant to the Loan Documents, or (ii) at such timeBorrower provides Lender with an environmental assessment report acceptable toLender, in Lender’s sole discretion, showing

 

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the Property to be free of Hazardous Materials and not in violation ofany Hazardous Waste Laws. The burden of proof under this Section 3(b) withregard to establishing the date upon which any Hazardous Materials was releasedin, on, over, under or about the Property shall be upon Borrower.

 

(c)           Borrower at all times shall maintain the Property in full compliancewith all federal, state, county, regional or local laws, codes, ordinances,rules, regulations, decisions and orders currently in existence or**hereafter enacted or rendered, governingaccessibility for the disabled, including but not limited to: The ArchitecturalBarriers Act of 1968; The Rehabilitation Act of 1973; The Fair Housing Act of1988; The Americans with Disabilities Act; and The Florida Elimination ofArchitectural Barriers Act (collectively, the “Accessibility Laws”).

 

Borrowerhereby agrees to indemnify and defend Lender and hold Lender harmless from andagainst any and all Losses paid, incurred or suffered by, or asserted againstLender for, with respect to, or as a direct or indirect result of, thenon-compliance of the Property with the Accessibility Laws whether or notcaused by, or within the control of, Borrower, **AND EXCLUDING ANY****CLAIMS OFLENDER’S NEGLIGENCE OR STRICT LIABILITY,**but excluding Lender’swillful misconduct or gross negligence.

 

Liability under thisSection 3(c) and similar provisions in this Mortgage and the other LoanDocuments concerning Accessibility Laws shall survive repayment of the Note andsatisfaction of this Mortgage; provided, however, Borrower shall not be liableunder this Section 3(c) for compliance with any Accessibility Laws if suchAccessibility Laws first become effective, or such violations result fromalterations or improvements to the Property that are performed subsequent toLender’s acquisition of the Property by foreclosure or acceptance of a deed inlieu thereof or subsequent to any transfer which was approved or authorized byLender pursuant to this Mortgage; provided that such transferee assumes inwriting all obligations pertaining to the Accessibility Laws pursuant to thisMortgage and the other Loan Documents. The burden of proof under this Section3(c) with regard to establishing the date upon which such non-compliance withany Accessibility Laws occurred at the Property shall be upon Borrower.

 

Lender,and/or its agents, shall have the right and shall be permitted, but shall notbe required, at all reasonable times, to enter upon and inspect the Property toinsure compliance with the foregoing covenants, and any and all other terms,covenants, conditions and agreements set forth in this Mortgage.

 

4.             Payment of Taxes, Assessments and Other Charges. Borrower shall pay all taxes, assessmentsand other charges as already levied or assessed, or that may be hereafterlevied or assessed, upon or against the Property, when the same shall become dueand payable 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 have the right to contest, in good faithand in accordance with applicable Laws and procedures, the proposed assessmentof ad valorem taxes or special assessments by governmental authorities havingjurisdiction over the Property; provided, however, Borrower shall give WrittenNotice of its intent to bring such an action to Lender, and Lender may, in itssole discretion, require Borrower to post a bond or other

 

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collateral satisfactory to Lender (and acceptable to the title companyinsuring this Mortgage) as a result of Borrower’s act.

 

5.             Payment of Liens, Charges and Encumbrances. Borrower shall immediately pay anddischarge from time to time when the same shall become due, all lawful claimsand demands of mechanics, materialmen, laborers, realtors, brokers and otherswhich, if unpaid, might result in, or permit the creation of, a lien, charge orencumbrance upon the Property or any part thereof, or on the Rents, arisingtherefrom and, in general, to do or cause to be done everything necessary sothat the lien of this Mortgage shall be fully preserved, at the sole cost ofBorrower, without expense to Lender. Borrower shall have the right to contest,in good faith and in accordance with applicable Laws and procedures, mechanics’,materialmen’s and other such liens filed against the Property; 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.             Payment of Junior Encumbrances. Borrower shall permit no default or delinquencyunder any other lien, imposition, charge or encumbrance against the Property,even though junior and inferior to the lien of this Mortgage; provided however,the foregoing shall not be construed to permit any such additional lien orencumbrance against the Property, other than the Permitted Exceptions.

 

7.             Payment of Mortgage Taxes. Borrower shall pay any and all taxes whichmay be levied or**assesseddirectly or indirectly upon the Note and/or this Mortgage (except for income taxespayable by Lender) or the Loan secured hereby, without regard to any Law whichmay be hereafter enacted imposing payment of the whole or any part thereof uponLender, its successors or assigns.  Uponviolation of this covenant, or upon the rendering by any court of competent jurisdictionof a decision that such a covenant by Borrower is legally inoperative, or ifany court of competent jurisdiction shall render a decision that the rate ofsaid tax when added to the rate of interest provided for in the Note exceedsthe then maximum rate of interest allowed by Law, then, and in any such event,the debt hereby secured shall, at the option of Lender, its successors orassigns, become immediately due and payable, anything contained in thisMortgage or in the Note secured hereby notwithstanding, without the impositionof a Prepayment Premium (as defined in the Note.  The additional amounts which may become dueand payable hereunder shall become a part of the Loan secured by this Mortgage.

 

8.             Hazard Insurance. Borrower shall continuously, during the termof this Mortgage, keep the Improvements, Appurtenances, and Fixtures andPersonal Property, now or hereafter existing, erected, installed and located inor upon the Real Property, insured with extended coverage insurance againstloss or damage resulting from fire, windstorm, flood, sinkhole, earthquake,mine subsidence, acts of terrorism, and such other hazards, casualties,contingencies and perils including, without limitation, other risks insuredagainst by persons operating like properties in the locality of the Property,or otherwise deemed necessary or advisable by Lender, on such forms and withsuch deductibles as may be required by Lender, covering the Property in theamount of the full replacement cost thereof, (without taking into account anydepreciation) less excavating and foundation costs, and covering all loss orabatement of rental or other income, without a provision for co-insurance, inan amount equal to the scheduled rental income

 

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of the Property for at leasttwelve (12) months, or if applicable, business interruption insurance in anamount sufficient to pay debt service on the Note, operating expenses, taxesand insurance on the Property for a period of twelve (12) months, and coveringloss by flood (if the Property lies in a Special Flood Hazard Area asdesignated on the Department of Housing and Urban Development’s Maps, or otherflood prone designation) in an amount equal to the outstanding principalbalance of the Loan or such other amount as approved by Lender, and earthquakeinsurance with a deductible amount of no more than ten percent (10%) of thepolicy amount, if the Property is located within one-half (1/2) mile of anAlquist-Priolo Special Earthquake Study Zone or if, in the judgment of Lender’sinspecting architect, the Property lies in an area of anticipated significantseismic activity, and “Ordinance or Law Coverage” or “Enforcement” endorsementsin amounts satisfactory to Lender if any of the Improvements or the use of theProperty shall at any time constitute legal non-conforming structures or usesor the ability to rebuild the Improvements is restricted or prohibited, andcomprehensive boiler and machinery insurance (without exclusion for explosion),if applicable, in amounts as shall be reasonably required by Lender andcovering all boilers or other pressure vessels, machinery and equipment locatedat or about the Property (including, without limitation, electrical equipment,sprinkler systems, heating and air conditioning equipment, refrigerationequipment and piping). All such insurance shall be carried with a company orcompanies licensed to do business in the state where the Property is located,which is acceptable to Lender, which company or companies shall have a ratingat the time this Mortgage is executed equivalent to at least A+ :X as shown inthe 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 insurancerequired under this Section 8 or any portion thereof is maintained pursuant toa blanket policy, Borrower shall furnish to Lender a certified copy of suchpolicy, together with an original Evidence of Insurance Certificate (Acord Form27) for hazard insurance indicating that Lender is an additional insured undersuch policy in regard to the Property and showing the amount of coverageapportioned to the Property, which coverage shall be in an amount sufficient tosatisfy the requirements hereof.  Notless than fifteen (15) days prior to the expiration dates of each policyrequired of Borrower hereunder, Borrower will deliver to Lender a renewal policyor policies marked “premium paid” or accompanied by other evidence of paymentand renewal satisfactory to Lender. In the event of foreclosure of thisMortgage or other transfer of title to the Property in extinguishment of theLoan secured 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. Notwithstanding anything to the contrary contained in this paragraph,Borrower will not be required to maintain Hazard Insurance with respect to theproperty and improvements located at Lot 3, Wal-Mart at Viera, as recorded inPlat Book 48, Page 79, 80 & 81, of the Public Records of Brevard County,Florida (the World Bank ground lease parcel).

 

Inthe event of loss by reason of hazards, casualties, contingencies and perilsfor which insurance has been required by Lender hereunder, Borrower shall giveimmediate notice thereof

 

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to Lender.  Lender is hereby irrevocably appointedattorney-in-fact coupled with an interest for Lender to, at its option, makeproof of loss and/or to file a claim thereunder. Each insurance companyconcerned is hereby notified, authorized and directed to make payment for suchloss directly to Lender, instead of to Borrower and Lender jointly, andBorrower hereby authorizes Lender to adjust and compromise any losses for whichinsurance proceeds are payable under any of the aforesaid insurance policiesand, after deducting the costs of collection, to apply the proceeds of suchinsurance, 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 be obligatedto see to the proper application of such insurance proceeds nor shall theamount of funds so released or used be deemed to be payment of or on account ofthe Loan secured hereby; or (b) to the reduction of the Loan, notwithstandingthe fact that the amount owing thereon may not then be due and payable or thatsaid Loan is otherwise adequately secured, in which event such proceeds shallbe applied at par against the Loan secured hereby and the monthly payment dueon account of such Loan shall be reduced accordingly as calculated by Lender.None of such actions taken by Lendershall be deemed to be or result in a waiver or impairment of any equity, lienor right of Lender under and by virtue of this Mortgage, nor will theapplication of such insurance proceeds to the reduction of the Loan serve tocure any default in the payment thereof. In the event of foreclosure of thisMortgage or 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.

 

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.

 

Notwithstandinganything set forth in this Section 8 to the contrary, in the event of loss ordamage to the Property by fire or other casualty for which insurance has beenrequired by Lender and provided by Borrower, and (a) the amount of such loss ordamage does not exceed twenty-five percent (25%) of the unpaid principalbalance of the Note, or (b) restoration is required by the terms of a MajorTenant Lease, Lender hereby agrees to allow the proceeds of insurance to beused for the restoration of the Property and to release such insurance proceedsto Borrower as such restoration progresses, provided:

 

(a)           Borrower is not in default beyond any applicable grace or cure periodsunder any of the terms, covenants and conditions of this Mortgage, the Note orany of the other Loan Documents;

 

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(b)           The Improvements, after such restoration, shall be at least eightypercent (80%) leased pursuant to leases approved in writing by Lender;

 

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

 

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

 

(e)           Borrower provides suitable completion, payment and performance bonds, builders’all risk insurance, and all necessary licenses and permits for such restorationin form and amount acceptable to Lender;

 

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

 

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

 

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

 

(i)            Lender’s obligation to make any suchdisbursement shall be conditioned upon Lender’s receipt of written certificationfrom Lender’s inspecting architect/engineer (whose reasonable fees shall bereimbursed to Lender by Borrower) that all construction and work for which suchdisbursement is requested has been completed in accordance with the approvedplans and specifications and in accordance with all applicable building codes,zoning ordinances and all other Laws and, further, that Borrower has depositedwith Lender sufficient funds to complete such restoration in accordance withSection 8(d); and

 

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

 

9*.**            *Liability Insurance. Borrower shall carry and maintain suchcommercial general liability insurance as may from time to time be reasonablyrequired by Lender, taking into consideration the type of property beinginsured and the corresponding liability exposure, on forms, with deductibles,in amounts and with such company or companies licensed to do

 

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business in**thestate where the Property is located and as may be acceptable to Lender. Allsuch commercial general liability insurance shall be carried with a company orcompanies which have and maintain a rating equivalent to at least AA:X as shownin the most recent Best’s Key Rating Guide.  The original policy or policies and allrenewals thereof (or, at the sole option of Lender, duplicate originals orcertified copies thereof), together with a Certificate of Insurance (Acord Form25S) and receipts evidencing payment of the premium therefor, shall bedeposited with, held by and are hereby assigned to, Lender as additionalsecurity for the Loan secured hereby. Such policy or policies of insuranceshall name Lender as an additional insured and shall provide for not less thanthirty (30) days prior Written Notice to Lender of any intent to modify,cancel, non-renew, or terminate the policy or policies or the expiration ofsuch policy or policies of insurance, or the exclusion of any individual risksuch as acts of terrorism. Not less than fifteen (15) days prior to theexpiration dates of each policy or policies required of Borrower hereunder,Borrower will deliver to Lender a renewal policy or policies marked “premiumpaid” or accompanied by other evidence of payment and renewal satisfactory toLender.  In the event of foreclosure ofthis Mortgage or other transfer of title to the Property in extinguishment ofthe Loan secured hereby, all right, title and interest of Borrower, in and toany insurance policies then in force including any rights to unearned premiums,and in and to insurance proceeds then payable, shall pass to the purchaser or grantee.  In case of Borrower’s failure to keep theProperty 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.           Compliance With Laws.

 

(a)           Borrower shall observe, abide by and comply with all federal, regional,state and local laws, codes, ordinances, statutes, rules, regulations,decisions, orders, requirements or decrees relating to the Property enacted,promulgated or issued by any federal, state, county or local governmental orquasi-governmental authority or any agency or subdivision thereof havingjurisdiction over Borrower or the Property, which now or hereafter affectBorrower or the Property, including Hazardous Waste Laws and Accessibility Laws(collectively, the “Laws”), and to observe and comply with all conditions andrequirements necessary to preserve and extend any and all rights, licenses,permits (including, but not limited to, zoning, variances, special exceptionsand nonconforming uses), privileges, franchises and concessions which areapplicable to the Property, or which have been granted to or contracted for byBorrower in connection with any existing, presently contemplated or future usesof the Property.

 

(b)           Borrower shall notengage in any transaction, which would cause any obligation, or action taken orto be taken, hereunder (or the exercise by Lender of any of its rights underthe Note, this Mortgage and the other Loan Documents) to be a non-exempt (undera statutory or administrative class exemption) prohibited transaction under theEmployee Retirement Income Security Act of 1974, as amended (“ERISA”). Borrowershall deliver to Lender such certifications or other evidence from time to timethroughout the term of this Mortgage, as requested by Lender in its solediscretion, that (i) Borrower is not an “employee benefit plan” as defined inSection 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmentalplan” within the meaning of Section 3(32) of ERISA; (ii) Borrower is notsubject

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to state statutes regulatinginvestments and fiduciary obligations with respect to governmental plans; and(iii) one or more of the following circumstances is true:

 

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

 

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

 

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

 

11.           Maintenance of Permits. Borrower shall obtain, keep and constantlymaintain in full force and effect during the entire term of this Mortgage, allcertificates, licenses and permits necessary to keep the Property operating forthe Existing Use and, except as specifically provided for in this Mortgage, notto assign, transfer or in any manner change such certificates, licenses orpermits without first receiving the written consent of Lender.

 

12.           Obligations of Borrower as Lessor.

 

(a)           Borrower shall perform every obligation of Borrower (as the landlord)and enforce every obligation of the tenant in any and every lease, license orother occupancy agreement of or affecting the Property or any part thereof (the“Occupancy Leases”), and not to modify, alter, waive or cancel any suchOccupancy Leases or any part thereof or rights thereunder, without the priorwritten consent of Lender (but such consent shall not be required for suchaction as to Occupancy Leases of three thousand (3,000) square feet or less ifsuch action is in the ordinary course of business of owning and operating theProperty in a prudent and business-like manner, on then current market terms),nor collect for more than thirty (30) days in advance of the date due any Rentsthat may be collectible under any such Occupancy Leases and, except as providedfor in this Mortgage, not to assign any such Occupancy Lease(s) or any suchRents relating thereto, to any party other than Lender, without the priorwritten consent of Lender. Borrower will notify Lender in writing of anydefault under any Occupancy Lease. In the event of default under any suchOccupancy Lease by reason of failure of Borrower to keep or**perform one or more of the covenants,agreements or conditions thereof, Lender is hereby authorized and empowered,and may, at its sole option, remedy, remove or cure any such default, 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.

 

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(b)           All such Occupancy Leases hereafter made shall be subject to theapproval of Lender and: (i) shall be at competitive market rental rates thenprevailing in the geographic area for projects used for the Existing Usecomparable to the Property; (ii) shall have lease terms of not less than three(3) years; and (iii) at Lender’s option, shall be superior or subordinate 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 by Lender, except as setforth below. Neither the right nor the exercise of the right herein grantedunto Lender to keep or perform any such covenants, agreements or conditions asaforesaid shall preclude Lender from exercising its option to cause the wholeLoan secured hereby to become immediately due and payable by reason of Borrower’sdefault in keeping or performing any such covenants, agreements or conditions.

 

(c)           Lender has approved a form of Occupancy Lease to be used by Borrower inconnection with the Property (the “Form Lease”).  Borrower shall not, without the prior writtenconsent of Lender, modify or alter the Form 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 partof the Property, permit an assignment or sublease of any such Occupancy Lease,or request or consent to the subordination of any Occupancy Lease to any liensubordinate to this Mortgage. Borrower shall furnish Lender with copies of allexecuted Occupancy Leases of all or any part of the Property now existing or hereaftermade, and Borrower shall assign to Lender (which assignment shall be in formand content acceptable to Lender), as additional security for the Note and theLoan, all Occupancy Leases now existing or hereafter made for all or any partof the Property. Additionally, if any Occupancy Lease contains a provisionallowing the tenant to terminate their lease upon payment of a lease terminationfee, Borrower agrees that all such sums shall constitute rent, and shall be paidto Lender so long as this Mortgage is in effect.

 

Notwithstandingthe foregoing approval by Lender of Borrower’s Form Lease, Lender herebyspecifically reserves the right to approve all prospective tenants under allOccupancy 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 netrentable area to be occupied thereunder, including expansion options, exceedsten percent (10%) of the net leasable area of each of the buildings comprisingthe Improvements (the tenants under such leases being hereinafter referred toas “Major Tenants”). Borrower shall notify Lender in writing of all prospectiveMajor Tenants, and shall deliver to Lender, at Borrower’s sole cost andexpense, a copy of the prospective Major Tenant’s current financial statementand the most recent Dun *&*Bradstreetcredit report on said prospective Major Tenant. The financial statementdelivered to Lender hereunder shall be certified as true and correct by theMajor Tenant, or, if available, by a certified public accountant. If Lenderfails to respond within ten (10) business days after receipt from Borrower of anOccupancy 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.

 

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(d)           In no event shall Borrower exercise any right to relocate any lesseeoutside the Property pursuant to any right set forth in an Occupancy Leasewithout the prior written consent of Lender.

 

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

 

(a)           Borrower shall construct, keep and constantly maintain, as the case maybe, all curbs, drives, parking areas and the number of parking spacesheretofore approved by Lender, or heretofore or hereafter required by any Lawsor any governmental body, agency or authority having jurisdiction over Borroweror the Property, and as required by the terms of the Occupancy Leases, and notto alter, erect, build or construct upon any portion of the Property, anybuilding, structure or improvement of any kind whatsoever, the erection,building or construction of which has not been previously approved by Lender inwriting, which approval shall be at the sole discretion of Lender provided,however, that the initial construction of World Savings Bank and other tenantbuildout pursuant to approved Occupancy Leases, which is ongoing as of the datehereof, is specifically permitted.

 

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

 

14.           Execution of Additional Documents. Borrower shall do, make, execute,acknowledge, witness and deliver all deeds, conveyances, mortgages, deeds oftrust, assignments, estoppel certificates, subordination non-disturbance andattornments, notices of assignments, transfers, assurances, securityagreements, 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 Leader, or for thepurpose of carrying out the intention or facilitating the performance of theterms of this Mortgage, or for filing, registering or recording this Mortgage,and to pay all filing, registration or recording fees and all taxes, costs andother expenses, including Reasonable Attorneys’ Fees, incident to thepreparation, execution, acknowledgment, delivery and recordation of any of thesame. By signing this Mortgage, Borrower authorizes Lender to file suchfinancing statements, with or without the signature of Borrower, as Lender mayelect, as may be necessary or desirable to perfect the lien of Lender’ssecurity interest in the Fixtures and Personal Property. Without limiting anyother provision herein, Borrower hereby authorizes Lender to file one or morefinancing statements and any renewal or**continuationstatements thereof, describing the Property and the proceeds of the Property,including, without limitation, a financing statement covering “all assets ofBorrower all proceeds therefrom, and all rights and privileges with respectthereto”. Borrower further authorizes Lender to file, with or without anyadditional signature from Borrower, as Lender may elect, such amendments andcontinuation statements as Lender may deem necessary or desirable from time totime to perfect or continue the lien of Lender’s security interest in theFixtures 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.

 

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15.           After Acquired Property Secured. Borrower shall subject to the lien of this Mortgageall right, title and interest of Borrower in and to all extensions,improvements, betterments, renewals, substitutions and replacements of, and alladditions and appurtenances to, the Property hereinabove described, hereafteracquired by or released to Borrower, or constructed, assembled or placed byBorrower on the Real Property, and all conversions of the security constitutedthereby,  immediately upon suchacquisition,  release,  construction, assembling, placement orconversion, as the case may be, and in each such case, without any furthermortgage, deed of trust, encumbrance, conveyance, assignment or other act byBorrower, as fully, completely and with the same effect as though now owned byBorrower and specifically described herein, but at any and all times, Borrowerwill execute and deliver to Lender any and all such further assurances,mortgages, deeds of trust, conveyances, security agreements, financingstatements or assignments thereof or security interests therein as Lender may reasonablyrequire for the purpose of expressly and specifically subjecting the same tothe lien of this Mortgage.

 

16.           Payments by Lender on Behalf of Borrower. Borrower shall make payment of any taxes, assessments or public chargeson or with respect to the Property before the same shall become delinquent, orto make payment of any insurance premiums or other charges, impositions, orliens herein or elsewhere required to be paid by Borrower, or if Borrower shallfail so to do, then Lender, at its sole option, but without obligation to doso, may make payment or payments of the same and also may redeem the Propertyfrom tax sale without any obligation to inquire into the validity of suchtaxes, assessments, charges, impositions or liens. In the case of any suchpayment by Lender, Borrower agrees to reimburse Lender, upon demand therefor, theamount of such payment and of any fees and expenses attendant in making thesame, together with interest thereon at the lesser of either: (a) the highestrate of interest then allowed by the Laws of the State of Florida or, ifcontrolling, the Laws of the United States, or (b) the then applicable interestrate of the Note plus five hundred (500) basis points per annum; and until paidsuch amounts and interest shall be added to and become part of the Loan securedhereby to the same extent that this Mortgage secures the repayment of theLoan.  In making payments authorized bythe provisions 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.           Funds Held by Lender for Taxes, Assessments,Insurance Premiums and Other Charges. In order to more fully protect the security of this Mortgage,Borrower shall deposit with Lender, together with and in addition to eachmonthly payment due on account of the Loan, an amount equal to one-twelfth(1/12th) of the annual total of such taxes, assessments, insurance premiumsand other charges (all as estimated by Lender in its sole discretion) so that,at least thirty (30) days prior to the due date thereof, Lender shall be ableto pay in full all such taxes, assessments, insurance premiums and othercharges as the same shall become due. Lender may hold the sums so depositedwithout paying interest, commingle same with its general funds and/or apply thesame to the payment of said taxes, assessments, insurance premiums or other chargesas they become due and payable.  If atany time the funds so held by Lender are insufficient to pay such taxes,assessments, insurance premiums or other charges as they become

 

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due and payable, Borrower shall immediately, upon Written Notice anddemand by Lender, deposit with Lender the amount of such deficiency. Thefailure on the part of Borrower to do so shall entitle Lender, at Lender’s soleoption, to make such payments in accordance with the rights and pursuant to theconditions elsewhere provided in this Mortgage. Whenever any default existsunder this Mortgage, Lender may, at Lender’s sole option but without anobligation so to do*,*apply anyfunds so held by Lender pursuant to this Section 17 toward the payment of theLoan, notwithstanding the fact that the amount owing thereon may not then bedue and payable or that the Loan may otherwise be adequately secured, in suchorder and manner of application as Lender may elect.

 

18.           Condemnation: Eminent Domain. All claims and rights of action for, andall awards and other compensation heretofore or hereafter made to Borrower andall subsequent owners of the Property in any taking by eminent domain, recoveryfor inverse condemnation or by deed in lieu thereof, whether permanent ortemporary, of all or any part of the Property or any easement or anyappurtenance thereto, including severance and consequential damages and changein grade of any way, street, avenue, road, alley, passage or public place, are herebyassigned to Lender. Borrower hereby irrevocably appoints Lender as itsattorney-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)           to apply the net proceeds as a credit upon any**portion of the Loan, as selected by Lender,notwithstanding the fact that the amount owing thereon may not then be due andpayable, or that the Loan is otherwise adequately secured. In the event Lenderapplies such awards to the reduction of the outstanding Loan evidenced by theNote, such proceeds shall be applied at par, and the monthly installments dueand payable under the Note shall be reduced accordingly as calculated byLender; however no such application shall serve to cure an existing default ofBorrower; or

 

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

 

Borrowerfurther covenants and agrees to give Lender immediate notice of the actual orthreatened commencement of any proceedings under eminent domain, and to deliverto Lender copies of any and all papers served in connection with any suchproceedings. Borrower further covenants and agrees to make, execute and deliverto Lender, at any time or times, upon request, free, clear and discharged of any encumbrance ofany kind whatsoever, any and all further

 

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assignments and/or other instruments deemed necessary by Lender for thepurpose of validly and sufficiently assigning all such awards and othercompensation heretofore or hereafter made to Lender (including the assignmentof any award from the United States government at any time after the allowanceof the claim therefor, the ascertainment of the amount thereof and the issuanceof the warrant for payment thereof).

 

Ifeither: (i) any part of any of the Improvements situated on the Real Propertyshall be condemned by any governmental authority having jurisdiction; or (ii)lands constituting a portion of the Real Property shall be condemned by anygovernmental authority having jurisdiction, in either case such that theremaining Property is in violation of applicable parking, zoning, platting, orother ordinances, or fails to comply with the terms of the Occupancy Leaseswith Major Tenants, then Lender shall be entitled to application ofcondemnation proceeds to the outstanding principal balance of the Note at par,and the right to accelerate the maturity date of the Note and require paymentin full without the imposition of a Prepayment Premium.

 

19.           Costs of Collection. In the event that the Note is placed in thehands of an attorney for collection, or in the event that Lender shall become aparty either as plaintiff or as defendant, in any action, suit, appeal or legalproceeding (including, without limitation, foreclosure, condemnation,bankruptcy, administrative proceedings or any proceeding wherein proof of claimis by law required to be filed), hearing, motion or application before anycourt 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.           Default Rate. Any sums not paid when due, whethermaturing by lapse of time or by reason of acceleration under the provisions ofthe 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.           Savings Clause. Notwithstanding any provisions in the Noteor in this Mortgage to the contrary, the total liability for payments in the natureof interest, including but not limited to Prepayment Premiums, default interestand late payment charges, shall not exceed the limits imposed by the Laws ofthe State of Florida or, if controlling, the Laws of the United States, relatingto maximum allowable charges of interest. Lender shall not be entitled to receive, collect or apply, as intereston the Loan, any amount in excess of the maximum lawful rate of interest permittedto be charged by any Laws. In the event Lender ever receives, collects or applies as interest any such excess, suchamount which would be excessive interest shall be

 

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applied to reduce the unpaid principal balance of the Loan evidenced bythe 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. It shall be a default hereunder if Borroweror any general partner or managing member of Borrower shall: (a) elect todissolve or liquidate its business organization or wind up its business affairswithout receiving the prior written approval of Lender; (b) consent to theappointment of a receiver, trustee or liquidator of all or a substantial partof its assets; (c) be adjudicated as bankrupt or insolvent, or file a voluntarypetition in bankruptcy, or admit in writing its inability to pay its debts asthey become due; (d) make a general assignment for the benefit of creditors;(e) file a petition under or take advantage of any insolvency law; (f) file ananswer admitting the material allegations of a petition filed against Borroweror any general partner or managing member of Borrower in any bankruptcy,reorganization or insolvency proceeding, or fail to cause the dismissal of suchpetition within thirty (30) days after the filing of said petition; (g) takeaction for the purpose of effecting any of the foregoing; or (h) if any order,judgment or decree shall be entered upon an application of a creditor ofBorrower or any general partner or managing member of Borrower by a court ofcompetent jurisdiction approving a petition seeking appointment of a receiveror trustee of all or a substantial part of Borrower’s assets or any of Borrower’sgeneral partner’s or managing member’s assets and such order, judgment ordecree shall continue unstayed and in effect for a period of thirty (30) days.

 

23.           Time is of the Essence, Monetary and Non-MonetaryDefaults. It is understood by Borrower that time isof the 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 other monies securedor evidenced hereby or by any of the other Loan Documents, including, withoutlimitation, all Prepayment Premiums (to the extent permitted by the Laws of theState of Florida) and late payment charges, to be in default and forthwith dueand payable, in the event:

 

(a)           Borrower defaults in the payment of any monthly installment of theNote, whether of principal or interest, or both, or in the payment of any othersums of money referred to herein or in the Note or in any of the other LoanDocuments, promptly and fully when the same shall be due, without notice ordemand from Lender to Borrower in regard to such Monetary Default (ashereinafter defined).

 

(b)           Borrower breaches or defaults on any of the terms, covenants,conditions and agreements of the Note, this Mortgage, or any other LoanDocuments; or in the event that each and every one of said terms, covenants,conditions and agreements is not otherwise either duly, promptly and fullydischarged or performed, and any such Non-Monetary Default (as hereinafterdefined) remains uncured for a period of thirty (30) days after Written Noticethereof has been delivered from Lender to Borrower; unless such Non-MonetaryDefault cannot be cured within said thirty (30) day period, in which eventBorrower shall have a reasonable period of time to complete cure, provided thataction to cure such Non-Monetary Default is promptly commenced within saidthirty (30) day period, and Borrower is, in Lender’s sole judgment, not

 

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diminishing or impairing the value of the Property, and is diligentlypursuing a cure to completion, but in no event longer than ninety (90) days.

 

(c)           Any representation or warranty of Borrower or of its members, general partners,principals, affiliates, agents or employees, or of any Guarantor made herein 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)           Any seizure 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)           If Borrower consummates a transaction which would cause this Mortgage orLender’s exercise 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)            Any default occurs in the performance of anycovenant or obligation of Borrower or any other party under any indemnity orguaranty delivered to Lender in connection with the Loan and such defaultcontinues beyond the expiration of applicable notice and cure periods.

 

Uponthe occurrence of any one of the above events, and at the option of Lender, theprincipal of and the interest accrued on the Loan and all other sums secured bythis Mortgage and the other Loan Documents shall immediately become due andpayable as if all of said sums of money were originally stipulated to be paidon such day. In addition, Lender may avail itself of all rights and remediesprovided by law or equity, and may foreclose or prosecute a suit at law or inequity as if all monies secured hereby had matured prior to its institution,anything in this Mortgage or any of the other Loan Documents to the contrarynotwithstanding. Lender shall have no obligation to give Borrower notice of, orany period to cure, any Monetary Default or any Incurable Default (ashereinafter defined) prior to exercising its rights, powers, privileges andremedies.

 

Asused herein, the term “Monetary Default” shall mean any default which can becured by the payment of money such as, but not limited to, the payment ofprincipal and interest due under the Note, or the payment of taxes, assessmentsand 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 MonetaryDefault 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 occurrence of a default hereunder, Lender may institute anaction to foreclose this Mortgage as to the amount so declared due and payable,and thereupon

 

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the Property (or any portion thereof) shall be sold according to law tosatisfy and pay the same, together with all costs, expenses and allowancesthereof, including, without limitation, Reasonable Attorneys’ Fees. TheProperty may be sold in one parcel, several parcels or groups of parcels, andLender shall be entitled to bid at the sale, and, if Lender is the highestbidder for the Property or any part or parts thereof, Lender shall be entitledto purchase the same.  The failure oromission on the part of Lender to exercise the option for acceleration ofmaturity of the Note and foreclosure of this Mortgage following any default asaforesaid or to exercise any other option or remedy granted hereunder to Lenderwhen entitled to do so in any one or more instances, or the acceptance byLender of partial payment of the Loan secured hereby, whether before orsubsequent to Borrower’s default hereunder, shall not constitute a waiver ofany such default or the right to exercise any such option or remedy, but suchoption or remedy shall remain continuously in force. Acceleration of thematurity of the Note, once claimed hereunder by Lender, at the option ofLender, may be rescinded by written acknowledgment to that effect by Lender,but the tender and acceptance of partial payments alone shall not in any wayeither affect or rescind such acceleration of maturity, nor act as a waiver,accord and satisfaction, modification, novation or similar defense.

 

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

 

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

 

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

 

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

 

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

 

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

 

(f)            any and all statements of fact or otherrecitals made in any bill of sale or assignment or other instrument evidencingany foreclosure sale hereunder as to nonpayment of

 

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the indebtedness or as to the occurrence of any default, or as toLender having declared all of such indebtedness to be due and payable, or as**to notice of time, place and terms ofsale and of the properties to be sold having been duly given, or as to anyother act or thing having been duly done by Lender, shall be taken as primafacie evidence of the truth of the facts so stated and recited;

 

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

 

(h)           this Mortgage covers Goods which are or are to become Fixtures relatedto the Real Property, and covers As-Extracted Collateral related to the RealProperty. A carbon, photographic or other reproduction of this Mortgage or ofany financing statement relating to this Mortgage shall be sufficient as afinancing statement.  This Mortgage shallbe effective as a financing statement filed as a fixture filing with respect toall fixtures included within the Property and is to be filed for record in thereal estate records in the Office of the County Clerk where the Property(including said fixtures) is situated. This Mortgage shall also be effective asa financing 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 ofBorrower is set forth in Section 43 of this Mortgage and the address of Lenderfrom which information concerning the security interest may be obtained is theaddress of Lender set forth in Section 43 of this Mortgage.

 

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

 

27.           Appointment of Receiver. If,****atany time after a default hereunder, Lender deems, in Lender’s sole discretion,that a receivership may be necessary to protect the Property or its Rents,whether before or after maturity of the Note and whether before or at the timeof or after the institution of foreclosure or suit to collect the Loan or toenforce this Mortgage or any of the other Loan Documents, Lender, as a matterof strict right and regardless of the value of the Property or the amounts duehereunder or secured hereby, or of the solvency of any party bound for thepayment of such indebtedness, shall have the right, upon ex parte applicationand without notice to anyone, and by any court having jurisdiction, to theappointment of a receiver to take charge of, manage, preserve, protect andoperate the Property, to collect the Rents thereof, to make all necessary andneedful repairs, and to pay all taxes, assessments, insurance premiums andother such charges against and expenses of the Property, and to do such otheracts as may by such court be authorized and directed, and after payment of theexpenses of the receivership and the management of the Property, to apply thenet proceeds of such receivership in reduction of

 

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the Loan or in such other manner as the said court shall directnotwithstanding the fact that the amount owing thereon may not then be due andpayable or the said Loan is otherwise adequately 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 specifically waives its right to object to theappointment of a receiver as aforesaid, and hereby expressly agrees that suchappointment shall be made as an admitted equity and as a matter of absoluteright to Lender.

 

28.           Rights and Remedies Cumulative; ForbearanceNot a Waiver. The rights andremedies herein provided are cumulative, and Lender, as the holder of the Noteand of every other obligation secured hereby, may recover judgment thereon,issue execution therefor and resort to every other right or remedy available atlaw or in equity, without first exhausting any right or remedy available toLender and without affecting or impairing the security of any right or remedyafforded hereby, and no enumeration of special rights or powers by anyprovisions hereof shall be construed to limit any grant of general rights orpowers, or to take away or limit any and all rights granted to or vested inLender by law or equity. Borrower further agrees that no delay or omission onthe part of Lender to exercise any**rightsor powers accruing to it hereunder shall impair any such right or power, orshall be construed to be a waiver of any such default hereunder or anacquiescence therein; and every right, power and remedy granted herein or bylaw or equity to Lender may be exercised from time to time as often as Lenderdeems expedient.

 

Lendermay resort to any security given by this Mortgage or to any other security nowexisting or hereafter given to secure the payment of the Loan, in whole or inpart, and in such portions and in such order as may seem best to Lender in itssole discretion, and any such action shall not be considered as a waiver of anyof the rights, benefits, liens or security interests evidenced by thisMortgage. To the full extent Borrower may do so, Borrower agrees that Borrowerwill not at any time insist upon, plead, claim or take the benefit or advantageof any law now or hereafter in force pertaining to the rights and remedies ofsureties or providing for any appraisement, valuation, stay, extension orredemption, and Borrower, for Borrower and Borrower’s heirs, devisees,representatives, successors and assigns, and for any and all persons everclaiming any interest in the Property, to the extent permitted by law, herebywaives and releases all rights of redemption, valuation, appraisement, stay ofexecution, notice of intention to mature or declare due the whole of thesecured indebtedness, notice of election to mature or declare due the whole ofthe secured indebtedness and all rights to a marshaling of the assets ofBorrower, including the Property, or to a sale in inverse order of alienationin the event of foreclosure of the liens and security interests hereby created.Borrower shall not have or assert any right under any statute or rule of lawpertaining to the marshaling of assets, sale in inverse order of alienation,the exemption of homestead, the administration of estates of decedents or othermatters whatever to defeat, reduce or affect the right of Lender under theterms of this Mortgage to a sale of the Property for the collection of thesecured indebtedness without any prior or different resort for collection, orthe right of Lender under the terms of this Mortgage to the payment of suchindebtedness out of the proceeds of sale of the Property in preference to everyother claimant whatever. If any law referred to in this Section and now inforce, of which Borrower or Borrower’s heirs, devisees, representatives,successors and assigns and such other persons claiming any interest in theProperty might take advantage despite this Section, shall

 

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hereafter be repealed or cease to be in force, such law shall notthereafter be deemed to preclude the application of this Section.

 

29.           Modification Not an Impairment of Security. Lender, without notice and without regardto the consideration, if any, paid therefor, and notwithstanding the existenceat that time of any inferior mortgages, deeds of trust, or other liens thereon,may release any part of the security described herein, or may release anyperson or entity liable for the Loan secured hereby without in any wayaffecting the priority of this Mortgage, to the full extent of the Loan remainingunpaid hereunder, upon any part of the security not expressly released. Lendermay, at its option and within Lenders 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.           Property Management and Leasing. The exclusive manager of the Property shallbe Borrower, or such other manager as may be first approved in writing byLender.  The exclusive leasing agent ofthe Property, if other than Borrower or the foregoing party, shall be firstapproved in writing by Lender. The management and leasing contracts (or in theabsence of any such written contract, a letter so**stating and further identifying the name ofthe person or entity charged with the responsibility for managing and/orleasing the Property) shall be subordinate to this Mortgage, and satisfactoryto and subject to the prior written approval of Lender throughout the term ofthe Loan.  Upon default in either ofthese requirements, then the whole of the Loan hereby secured shall, at theelection of Lender, become immediately due and payable, together with anyPrepayment Premium, late payment charges and all other sums required by theNote or the other Loan Documents, and Lender shall be entitled to excercise anyor all remedies provided for or referenced in this Mortgage.

 

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

 

32.           Transfer of Property or Controlling Interestin Borrower; Assumption.Except as set forth in Section 38(b) hereof, without the prior written consentof Lender, the sale, transfer, assignment or conveyance of all or any portionof the Property, or the transfer, assignment or conveyance of a controllinginterest in Borrower or its general partner or managing member, or anyguarantor, whether voluntary or by operation of law, without the prior writtenconsent of Lender, shall constitute a default hereunder, and entitle Lender, atLender’s sole option, to accelerate all sums due on the Note, together with anyPrepayment Premiums (to the extent permitted by the Laws of the State ofFlorida), late payment charges or any other amounts

 

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secured hereby. Lender may, however, elect to waive the option toaccelerate granted hereunder if, prior to any such sale, transfer, assignmentor conveyance of the Property, the following conditions shall be fullysatisfied: (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 stall 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 Load 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, without limitation,all fees and expenses incurred by Lender.

 

Borrower, or anysubsequent owner of the Property or any portion thereof, shall do all thingsnecessary to preserve and keep in full force and effect its and their legalexistence. franchises, rights and privileges as a corporation, partnership orlimited liability company, as the case may be, under the laws of the State ofits formation and its right to own property and transact business in the Stateof Florida. It shall be a default hereunder if Borrower, or any subsequentowner of the Property or any portion thereof, shall amend, modify, transfer,assign or terminate the applicable governing documents for such entity,including its partnership agreement, certificate of partnership, operatingagreement, articles of organization, regulations, articles of incorporation orbylaws, as the case may be (as applicable, the “Governing Documents”), ofBorrower or such subsequent owner without the prior written consent of Lender.Borrower, or such subsequent owner of the Property, shall provide Lender withcopies of any proposed amendment to its applicable Governing Documents, so thatLender may, in Lender’s sole discretion, determine whether such amendmentadversely affects Lender, the Property or the security value thereof. Provided,however, that any amendment, modification, transfer, assignment or terminationof Borrower’s applicable Governing Documents or any other action pursuant towhich the current general partner or managing member of Borrower shall either:(i) cease to be the general partner or managing member of Borrower; or (ii)except to the extent permitted herein, cease to own or maintain a partnership ormembership interest in Borrower equal to or greater than its partnership ormembership interest at the time this Mortgage is executed, shall be deemed tohave a material adverse effect upon Lender and the Property, and shall be adefault 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 organization unless Borrower shall havedelivered to Lender written notice thereof not less than thirty (30) daysbefore the effective date of such change and shall have taken all action whichLender determines to be reasonably necessary or desirable to confirm andprotect Lender’s security interests and rights under this Mortgage and theperfection and priority thereof.

 

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Borrower will not change its principal places of business unless itshall have given Lender prior written notice of its intent to do so not lessthan thirty (30) days in advance of the effective date of such change. Borrowershall bear all costs incurred by Lender in connection with any such change including, without limitation,Reasonable Attorney’s Fees.

 

Inthe event the ownership of the Property, or any part thereof, shall becomevested in a person or entity other than Borrower, whether with or without theprior written consent of Lender, Lender may, without notice to Borrower, dealwith such successor or successors in interest with reference to the Property,this Mortgage and the other Loan Documents, in the same manner and to the sameextent as with Borrower without in any way vitiating or discharging Borrower’sliability hereunder or under any of the Loan Documents. No sale, transfer orconveyance of the Property, no forbearance on the part of Lender and noextension of time given by Lender to Borrower for the payment of the Note shalloperate to release, discharge, modify, change or affect the original liabilityof Borrower, either in whole or in part, unless expressly set forth in writingexecuted by Lender. Notwithstanding anything contained herein to the contrary,Borrower hereby waives any right it now has or may hereafter have to requireLender to prove an impairment of its security as a condition to the exercise ofLender’s rights under this Section 32.

 

Asale, transfer, assignment or conveyance within the meaning of this Sectionshall be deemed to include, but not be limited to: (a) an installment salesagreement wherein Borrower agrees to sell the Property or any part thereof fora price to be paid in installments; (b) an agreement by Borrower leasing all ora substantial part of the Property for other than actual occupancy by a tenantunder an Occupancy Lease or a sale, assignment or other transfer of, or thegrant of a security interest in, Borrower’s right, title and interest in and toany leases or any Rents; (c) if Borrower, any guarantor, any indemnitor, or anygeneral partner or managing member of Borrower, is a corporation**the voluntary or involuntary sale,conveyance, transfer or pledge of such corporation’s stock (or the stock of anycorporation, directly or indirectly controlling such corporation by operationof law or otherwise), or the creation or issuance of new stock by which anaggregate of more than ten percent (10%) of such corporation’s stock shall bevested in a party or parties who are not now stockholders; and (d) if Borrower,any guarantor, indemnitor, or any general partner or managing member ofBorrower, is a limited partnership, general partnership, limited liabilitypartnership, limited liability company, or joint venture, the change, removalor resignation of a general partner, managing partner, or member, or thetransfer or pledge of the interest of any general partner, managing partner, ormember or any profits or proceeds relating to such interest.

 

(A)  Notwithstandingthe foregoing, Lender shall permit transfers of interests in the Borrowerwithout Lender’s prior written consent and without any transfer fee, so long asno default, or event which, with notice of the passage of time or both, couldresult in a default, has occurred hereunder or under the Note and (i) suchtransfer is to the family members, estate, heirs and/or beneficiaries(including a Testamentary Trust) of the members of Borrower named herein forestate planning purposes and/or testamentary disposition, (ii) Lender receivesnotice of such transfer, (iii) Lender receives copies of all transferdocuments, (iv) Borrower, or the transferee, pays all costs and expensesincurred by Lender in connection with such transfer, including ReasonableAttorneys’ Fees (as hereinafter defined), and (v) such transferee assumes allobligations of Borrower or Borrower’s estate under the Note, this Mortgage, andthe other Loan Documents with the same degree of liability as Borrower as ofthe date hereof, and (vi) Ernie

 

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Euler and Mike Renfro, or if either is deceased, such party’s heirs orbeneficiaries having a creditworthiness acceptable to Lender, remain personallyliable for the exclusions from non-recourse liability set forth in the Note andGuaranty executed by Ernie Euler and Mike Renfro of even date herewith.

 

33.           Further Encumbrance Prohibited:Subrogation.   So long as the Noteremains unpaid, Borrower shall not, either voluntarily or involuntarily, permitthe Property or any part thereof to become subject to any secondary orsubordinate lien, mortgage, deed of trust, security interest or encumbrance ofany kind whatsoever without the prior written consent of Lender, and theimposition of any such secondary lien, mortgage, deed of trust, securityinterest or encumbrance without the approval of Lender shall constitute adefault hereunder, and entitle Lender, at Lender’s sole option, to declare theoutstanding principal balance of the Note, all accrued and unpaid interestthereon, Prepayment Premiums (to the extent permitted by the laws of the Stateof Florida, late payment charges and any other amounts secured hereby to be andbecome immediately due and payable in full. In the event that Lender shall hereafter give its written consent to theimposition of any such secondary lien, mortgage, deed of trust, security interestor other encumbrance upon the Property, Lender, at Lender’s sole option, shallbe entitled to accelerate the maturity of the Note and exercise any and allremedies provided and available to Lender hereunder and in the other LoanDocuments in the event that the holder of any such secondary lien orencumbrance shall institute foreclosure or other proceedings to enforce thesame; it being understood and agreed that a default under any instrument or documentevidencing, securing or secured by any such secondary lien or encumbrance shallbe 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, Leader shall be subrogated to the rights and lienpriority of the holder or holders of the lien or liens so discharged.

 

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

 

35.           Estoppel Certification by Borrower.  Borrower, upon request of Lender therefor madeeither personally or by mail, shall certify in writing to Lender (or any partydesignated by

 

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Lender), in a form satisfactory to Lender or such designer, the amountof principal and interest then outstanding under the terms of the Note and anyother sums due and owing under this Mortgage or any of the other LoanDocuments, and whether any offsets or defenses exist against the Loan. Suchcertification shall be made by Borrower within ten (10) days if the request ismade personally, or within twenty (20) days if the request is made by mail.

 

36.           Cross Default. The Note isalso secured by the terms, conditions and provisions of the Assignment and,additionally, may be secured by contracts or agreements of guaranty or othersecurity instruments.  The terms,covenants, conditions and agreements of each security instrument shall beconsidered a part hereof as fully as if set forth herein verbatim. Any default underthis Mortgage or any of the other Loan Documents shall constitute a defaulthereunder and under each of the other Loan Documents. Notwithstanding theforegoing, the enforcement or attempted enforcement of this Mortgage or any ofthe other Loan Documents now or hereafter held by Lender shall not prejudice orin any manner affect the right of Lender to enforce any other Loan Document; itbeing understood and agreed that Lender shall be entitled to enforce thisMortgage and any of the other Loan Documents now or hereafter held by it insuch order and manner as Lender, in its sole discretion, shall determine.

 

37.           Examination of Borrower’s Records.  Borrower will maintain complete and accuratebooks and records showing in detail the income and expenses of the Property,and will permit Lender and its agents, contractors or representatives toexamine said books and records and all supporting vouchers and date duringnominal business hours and from time to time upon request by Lender, in suchplace as such books and records are customarily kept. Borrower will furnishto Lender, within one hundred twenty (120) days after the close of eachrespective fiscal period annual and semi-annual financial statements (incomestatements and a balance sheet) 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 include a rent roll, certified as true andcorrect by Borrower. The statements shall show in detail all income derivedfrom and expenses incurred in connection with the ownership of the Property, includingcurrent annual sales figures for all Major Tenants of the Property if requiredunder the Major Tenant leases or if such financial information is otherwiseavailable.  In the event Borrower fails toprovide such statements to Lender within the time prescribed above, Borrower shallpay Lender the sum of TWO HUNDRED AND NO/100 DOLLARS ($200.00) in administrativeexpenses for each successive month for which 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 public accountant acceptable toLender, at the sole cost and expense of Borrower.

 

Inaddition, at the request of Lender, but in no case more often than once aquarter or more than three (3) times during the term of the Loan, Borrowershall furnish to Lender (i) unaudited financial statements (balance sheet,income statement, cash flow statement and current rent roll) covering operationof 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

 

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member(s) (whichever is applicable) and for such designated principals.All such statements shall be certified to Lender to be complete, correct, andaccurate by the individual (for an individual’s statements) or by an authorizedrepresentative of the entity (if statements are for a partnership, corporationor limited liability company).

 

38.           Alteration,Removal and Change in Use of Property Prohibited. Borrower covenants and agrees to permit or suffer noneof the following without the prior written consent of Lender:

 

(a)           Any structural alteration of, oraddition to, the Improvements now or hereafter situated upon the Real Property,or the addition of any new buildings or other structure(s) thereto, other thanthe erection or removal of non-load bearing interior walls provided, however,that the initial construction of World Savings Bank and other tenant buildout pursuantto approved Occupancy Leases (which is ongoing as of the date hereof) is**specificallypermitted; or

 

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

 

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

 

39.           Future Advances Secured.    This Mortgage shall secure not onlyexisting indebtedness, but also future advances, whether such advances areobligatory or to be made at the option of Lender. Upon the request of Borrower,and at Lender’s option prior to release of this Mortgage, Lender may makefuture advances to Borrower. All future advances with interest thereon shall besecured by this Mortgage to the same extent as if such future advances were madeon the date of the execution of this Mortgage unless the parties shall agreeotherwise in writing, but the total secured indebtedness shall not exceed atany one time a maximum principal amount equal to double the face amount of theNote plus interest and costs of collection, including court costs andReasonable Attorneys’ Fees. Any advances or disbursements made for the benefitor protection of or the payment of taxes, assessments, levies or insurance uponthe Property, with interest on such disbursements as provided herein, shall beadded to the principal balance of the Note and collected as a part thereof. Tothe extent that this Mortgage may secure more than one note, a default in thepayment of any such mortgage note shall constitute a default in the payment ofall such notes. The filing of any notice limiting the maximum amount that maybe secured by this Mortgage pursuant to Florida Statutes Section 697.04 orotherwise shall be and constitute a default under this Mortgage.

 

40.            Effect of Security Agreement.Borrower agrees to, and shall upon the request of Lender, execute and deliverto 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.

 

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Without the prior written consent of Lender, Borrower shall not createor suffer to be created, pursuant to the UCC, any other security interest insuch real and personal property and fixtures described herein. Upon theoccurrence of a default hereunder or Borrower’s breach of any other covenantsor agreements between the parties entered into in conjunction herewith, Lendershall have the remedies of a secured party under the UCC as provided in Section25, and at Lender’s option, the remedies provided for in this Mortgage and theother Loan Documents. Lender, at the expense of Borrower, may cause suchstatements, descriptions and assurances, as herein provided in this Section 40,and this Mortgage, to be recorded and re-recorded, filed and refiled, at suchtimes and in such places as may be required or permitted by law to so create,perfect and preserve the lien and encumbrance hereof upon all of the Property.

 

41.            Terms of Application SurviveClosing.   The terms and provisionsof the Application for Mortgage Loan dated February 18, 2003, modified byLender on May 27, 2003, further modified by Lender on January 27, 2003, andaccepted by Borrower on February 25, 2004 and any subsequent amendments thereto(the “Application”), executed by and between Borrower and Lender, areincorporated herein by reference.  Allterms, covenants, conditions and agreements of the Application not expresslyset forth in this Mortgage and any of the other Loan Documents shall survivethe execution and delivery hereof, and remain in full force and effect. In theevent any conflict exists between the terms, covenants, conditions andagreements of the Application and the Loan Documents, the terms, covenants,conditions and agreements of the Loan Documents shall prevail.

 

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

 

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

 

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receive the same at the address set forth below or at such otheraddress as shall be given in writing by any party to another (“Written Notice”):

 
| If to Borrower: | WICKHAM & 95 CORP.                             |
|-----------------|----------------------------------------------------|
|            | c/o Matthew Development                            |
|            | 7331 Office Park Place,  Suite 200                 |
|            | Viera, Florida 32940                               |
|            | Attention: Mike Renfro and  Ernie Euler            |
|            |                                               |
| with a copy to: | GREENBERG TRAURIG                                  |
|            | 401 East Las Olas  Boulevard, Suite 2000           |
|            | Ft. Lauderdale, Florida  33301                     |
|            | Attn: Peter Tunis, Esquire                         |
|            |                                               |
| If to Lender:   | NATIONWIDE LIFE INSURANCE  COMPANY                 |
|            | One Nationwide Plaza                               |
|            | Columbus, Ohio 43215-2220                          |
|            | Attention: Real Estate  Investment Department, 34T |

 

44.           Governing Law; Waiver of JuryTrial; Severability. BORROWER, TO THE FULL EXTENT PERMITTED BY LAW, HEREBYKNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENTCOUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES HEREBY THE RIGHT TO A TRIALBY JURY IN ANY ACTION OR PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY TORTACTION, AGAINST LENDER, ITS SUCCESSORS AND ASSIGNS, BASED UPON, ARISING OUT OF,OR IN ANY WAY RELATING TO OR IN CONNECTION WITH ANY OF THE LOAN DOCUMENTS, THELOAN OR ANY COURSE OF CONDUCT, ACT, OMISSION, COURSE OF DEALING, STATEMENTS(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON (INCLUDING, WITHOUTLIMITATION, LENDER’S DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTSOR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH LENDER), IN CONNECTION WITHTHE LOAN OR THE LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION, IN ANYCOUNTERCLAIM WHICH ANY PARTY MAY BE PERMITTED TO ASSERT THEREUNDER, WHETHERSOUNDING IN CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL LENDER, ITSSUCCESSORS OR ASSIGNS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL ORPUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION LOSS OF BUSINESSPROFITS OR OPPORTUNITY) AND BY ITS EXECUTION HEREOF, BORROWER WAIVES ANY RIGHTTO 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 HERETO IRREVOCABLY (A) AGREE THAT ANY SUIT,ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS MORTGAGEMAY BE BROUGHT IN A COURT OF RECORD IN THE STATE OR IN THE COURTS OF THE UNITEDSTATES OF AMERICA LOCATED IN SUCH STATE. (B) CONSENT TO THE

 

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NON-EXCLUSIVE JURISDICTION OF EACH SUCH COURT IN ANY SUIT, ACTION ORPROCEEDING, AND (C) WAIVE ANY OBJECTION WHICH IT MAY HAVE TO THE LAYING OFVENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY OF SUCH COURTS AND ANYCLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN ANINCONVENIENT FORUM. IF ANY CLAUSES OR PROVISIONS HEREIN CONTAINED OPERATE, ORWOULD PROSPECTIVELY OPERATE, TO INVALIDATE THIS MORTGAGE, THEN SUCH CLAUSES ORPROVISIONS ONLY SHALL BE HELD FOR NAUGHT, AS THOUGH NOT HEREIN CONTAINED, ANDTHE REMAINDER OF THIS MORTGAGE SHALL REMAIN OPERATIVE AND IN FULL FORCE AND EFFECT.

 

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

 

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

 

47.           Exculpation.   Notwithstanding anything contained herein tothe contrary, the liability of Borrower is subject to the limited recourseprovisions contained in the Exculpation section of the Note, which areincorporated herein and made a part hereof by reference as if fully set forthherein.

 

48.           Full Recourse. *Notwithstanding any provisions in thisMortgage to the contrary, including without limitation the provisions set forthin the section captioned “Exculpation” hereinabove. Borrower shall bepersonally liable, jointly and severally, for the entire Loan secured by thisMortgage (including all principal, interest and other charges) in the event (a)Borrower violates the covenant governing the placing of subordinate financing onthe Property as set forth in this Mortgage; (b) Borrower violates the covenantrestricting transfers of interests in the Property or transfers of ownershipinterests in Borrower as set forth in this Mortgage; or (c) Borrower or anyguarantor violates the provisions of Section 22 of this Mortgage, or there is filedagainst Borrower or any guarantor or indemnitor of the Loan, a petition inbankruptcy or for the appointment of a receiver, or there commences under anybankruptcy or insolvency law, proceedings for Borrower’s relief, or for thecompromise, extension, arrangement or adjustment of Borrower’s obligationswhich is not dismissed within thirty (30) days after the filing of same.*

 

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

 

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50.           Captions. The captions setforth at the beginning of the various Sections of this Mortgage are forconvenience only, and shall not be used to interpret or construe the provisionsof this Mortgage.

 

51.           Trading With the Enemy Act.Neither the making of the Loan to Borrower (or the use of its proceeds) nor theexecution of any of the Loan Documents will violate the Trading with the EnemyAct, as amended, or any of the foreign assets control regulations of the UnitedStates Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or anyenabling legislation or executive order relating thereto.  In addition, Borrower’ warrants, representsand covenants that neither Borrower, Guarantor nor any of their respectiveaffiliated entities is or will be an entity or person (i) that is listed in theAnnex to, or is****otherwise subject to the provisionsof Executive Order 13224 issued on September 24, 2001 (“EO13224”), (ii) whosename appears on the United States Treasury Department’s Office of ForeignAssets Control (“OFAC”) most current list of “Specifically Designed Nationaland Blocked Persons” (which list may be published from time to time in variousmediums 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 entityor person 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 violate, any of the prohibitions 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 any business,transaction or dealings with a Prohibited Person, including, but not limitedto, the making or receiving of any contribution of funds, goods, or services,to or for the benefit of a Prohibited Person.

 

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

 

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

 

54.           Secondary Market. Lender may,at any time, sell, transfer or assign the Note, this Mortgage, the Assignmentand the other Loan Documents, and any or all servicing rights with

 

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respect thereto, or grantparticipation therein or issue mortgage pass-through certificates or othersecurities evidencing a beneficial interest in a rated or unrated publicoffering or private placement. Lender may forward to each Investor and eachprospective Investor, all documents and information which Lender now has or mayhereafter acquire relating to the Loan and to Borrower, any guarantor and theProperty, whether furnished by Borrower, any guarantor or otherwise, as Lenderdetermines necessary or desirable.

 

**[SIGNATURES BEGIN ON NEXT PAGE]**

 

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**IN WITNESS WHEREOF,**Borrowerhas caused this Mortgage to be executed as of the day and year first abovewritten.

 

 
| Signed, sealed and delivered  in the presence of: | **WICKHAM & 95 CORP.,**a  Florida corporation |
|---------------------------------------------------|---------------------------------------------------|
|                                              |                                              |   |
| /s/ Nelson R Hamilton                             |                                              | By: | /s/ Ernie Euler |
|                                              |                                              |   |
| Name:                                             |  Nelson R  Hamilton                          |   | Name: | ERNIE EULER |   |
|                                              |                                              |   |
| /s/ Charine Lewis                                 |                                              | Its: | PRESIDENT |   |
|                                              |                                              |   |   |   |
| Name:                                             | CHARINE LEWIS                                     |   | (CORPORATE SEAL) |
|                                                   |                                                   |  |  |  |  |  |  |  |  |

 

 

**STATE OF FLORIDA**

**COUNTY OF BREVARD**

 

The foregoing instrument was acknowledged before methis 16th day of February, 2004, by ERNIE EULER, as President of **WICKHAM & 95 CORP.,**a Florida corporation on behalf ofthe corporation.  He is personally knownto me.

 
|   | Notary Public          |          |
|--------|------------------------|---------------|
|   | Name:                  | Charine Lewis |   |
|   | Commission No.:        | DD174578      |   |
|   | My Commission Expires: | 12-29-06      |   |
|   |                   |
|   | (SEAL)                 |          |
|        |                        |               |  |  |  |

 
|   |   |  | Charine C Lewis  My Commission DD174578  Expires December 29, 2006 |
|--------|--------|--|--------------------------------------------------------------------|

 

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| Signed, sealed and delivered  in the presence of: | **LOT 90, L.L.C.,**a Florida  limited liability |
|---------------------------------------------------|-------------------------------------------------|
|                                              | company                                         |   |
|                                              |                                            |   |
| /s/ Nelson R Hamilton                             |                                            | By: | /s/ Robert M. Renfro |
|                                              |                                            |   |
| Name:                                             |  Nelson R  Hamilton                        |   | Name: | ROBERT M. RENFRO |   |
|                                              |                                            |   |
| /s/ Charine Lewis                                 |                                            | Its: | Manager |   |
|                                              |                                            |   |   |   |
| Name:                                             |  CHARINE LEWIS                             |   | (CORPORATE SEAL) |   |
|                                                   |                                                 |  |  |  |  |  |  |  |  |

 

 

**STATE OF FLORIDA**

**COUNTY OF BREVARD**

 

The foregoing instrument was acknowledged before methis 16th day of February, 2004, by ROBERT M. RENFRO, as Manager of **LOT 90, L.L.C.,**a Florida limited liability company onbehalf of the company.  He is personallyknown to me.

 
|   | Notary Public          |          |
|--------|------------------------|---------------|
|   | Name:                  | Charine Lewis |   |
|   | Commission No.:        | DD174578      |   |
|   | My Commission Expires: | 12-29-06      |   |
|   |                   |
|   | (SEAL)                 |
|   |                   |
|   |                   |               | Charine C Lewis  My Commission DD174578  Expires December 29, 2006 |
|        |                        |               |  |  |  |  |  |

 

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| Signed, sealed and delivered  in the presence of: | **LOT 91, L.L.C.,**a Florida  limited liability |
|---------------------------------------------------|-------------------------------------------------|
|                                              | company                                         |
|                                              |                                            |   |
| /s/ Nelson R Hamilton                             |                                            | By: | /s/ Robert M. Renfro |
|                                              |                                            |   |
| Name:                                             |  Nelson R  Hamilton                        |   | Name: | ROBERT M. RENFRO |   |
|                                              |                                            |   |
| /s/ Charine Lewis                                 |                                            | Its: | Manager |   |
|                                              |                                            |   |   |   |
| Name:                                             | CHARINE LEWIS                                   |   | (CORPORATE SEAL) |   |
|                                                   |                                                 |  |  |  |  |  |  |  |

 

 

**STATE OF FLORIDA**

**COUNTY OF BREVARD**

 

The foregoing instrument was acknowledged before methis 16th day of February, 2004, by ROBERT M. RENFRO, as Manager of **LOT 91, L.L.C.,**a Florida limited liability company onbehalf of the company.  He is personallyknown to me.

 
|   | Notary Public          |          |
|--------|------------------------|---------------|
|   | Name:                  | Charine Lewis |   |
|   | Commission No.:        | DD174578      |   |
|   | My Commission Expires: | 12-29-06      |   |
|   |                   |
|   | (SEAL)                 |
|   |                   |
|   |                   |               | Charine C Lewis  My Commission DD174578  Expires December 29, 2006 |
|        |                        |               |  |  |  |  |  |

 

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| ** **            | **NATIONWIDE LIFE INSURANCE  COMPANY**, an Ohio corporation |
|-----------------------|-------------------------------------------------------------|
|                  |                                                        |   |
| /s/ Marcia M. Billman |                                                        | By: | /s/ Todd A. Harrop |
|                  |                                                        |   |
| Name:                 |  Marcia M.  Billman                                    |   | Name: |   | , Vice President |
|                  |                                                        | TODD A. HARROP |   |
|                  |                                                        | ASSOCIATE VICE PRESIDENT |
| /s/ Sheri Perkins     |                                                        |   | MORTGAGE LOAN ACQUISITIONS |
|                  |                                                        | (CORPORATE SEAL) |   |
| Name:                 |  Sheri Perkins                                         |   |   |   |
|                       |                                                             |  |  |  |  |  |  |  |

 

 

**STATE OF OHIO**

**COUNTY OF FRANKLIN**

 

The foregoing instrument was acknowledged before methis 10day of February, 2004 by Todd A. Harrop, as Associate VicePresident of **NATIONWIDE LIFE INSURANCE COMPANY,**anOhio corporation, on behalf of the corporation. He is personally known to me.

 
|   | Notary Public          |                                                                            |
|--------|------------------------|---------------------------------------------------------------------------------|
|   | Name:                  |  Marcia M.  Billman                                                        |   |
|   | Commission No.:        |                                                                            |   |
|   | My Commission Expires: |                                                                            |   |
|   |                   |
|   | (SEAL)                 |
|   |
|   |                        | MARCIA M. BILLMAN  Notary Public, State of Ohio  My Commission Expires 12-08-07 |
|        |                        |                                                                                 |  |  |  |  |  |

 

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EXHIBIT “A”

 

PARCEL 1

 

A parcel of land lying within Section 9 and 10, Township 26 South,Range 36 East, Brevard County, Florida, more particularly described as follows:

 

From the Southeast corner of said Section 9; thence South 88° 40’ 59”West, along the South line of said Section 9, a distance of 34.65 feet; thenceNorth 01° 19’ 01” West, 249.21 feet; thence North 14° 31’ 21” West 786.66 feet;thence North 75° 28’ 39’ East, 270.19 feet to the Point of Beginning; thenceNorth 14° 31’ 21” West 626.54 feet, thence North 75° 29’ 02” East 181.34 feetto the point of a curve, concave Southerly, having a radius of 1900.00 feet;thence Easterly along the arc of said curve to the right, a distance of 360.61feet, through a central angle of 10° 52’ 27”, to a point of reverse curve,concave Northerly, having a radius of 2650.00 feet, thence Easterly along thearc of said curve to the left, a distance of 169.62 feet, through a centralangle of 3° 40’ 02”; to the Westerly right of way of Interstate of 95 (asdescribed in Circuit Court Book 53, Pages 359 through 363, public records ofBrevard County, Florida); thence South 14° 30’ 59” East, along the saidWesterly right of way a distance of 430.56 feet; thence South 04° 15’ 31” East,437.30 feet; thence South 75° 28’ 39” West 544.32 feet; thence North 14° 31’ 21”West, 295.16 feet; thence South 75° 28’ 39” West, 84.97 feet to the Point ofBeginning.

 

PARCEL 2

 

Lot 2, WAL-MART AT VIERA, according to the plat thereof recorded inPlat Book 48, page 79, Public Records of Brevard County, Florida.

 

PARCEL 3

 

Lot 2, WAL-MART AT VIERA, according to the plat thereof recorded inPlat Book 48, page 79, Public Records of Brevard County, Florida.

 

PARCEL 4

 

Lot 4, WAL-MART AT VIERA, according to the plat thereof recorded inPlat Book 48, pages 79, 80 and 81, Public Records of Brevard County, Florida.

 

PARCEL 5

 

Non-exclusive easements for the benefit of Parcels 1 through 4 abovefor ingress, egress, utilities, drainage and signage, as created and describedin the instrument entitled Easements with Covenants and Restrictions AffectingLand recorded in Official Records Book 4406 page 2162, public records ofBrevard County, Florida.

 

PARCEL 6

 

Intentionally deleted.

 

PARCEL 7

 

Non-exclusive easement for the benefit of Parcel 1 above, for ingressand egress, as created and described in the Spyglass Hill Road EasementAgreement recorded in Official Records Book 4209, page 2355, less and exceptthat portion of said easement which was dedicated to Brevard County by the platof Napolo Drive recorded in Plat Book 48, page 30, public records of BrevardCounty, Florida.

 

PARCEL 8

 

Intentionally deleted.

 

PARCEL 9

 

Non-exclusive easements for the benefit of Parcels 1 through 4 above,for drainage purposes, as created and described in the Declaration and Grant ofStorm Water Retention and Drainage Easement Agreement recorded in OfficialRecords Book 4405, page 1938, public records of Brevard County, Florida.

 

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PARCEL 10

 

Non-exclusive easement for the benefit of Parcels 2 through 4 above,for ingress and egress purposes, as created and described in the Spyglass HillRoad Easement Agreement recorded in Official Records Book 4405, page 1998, asre-recorded in Official Records Book 4462, page 1656, less and except thatportion of said easement which was dedicated to Brevard County by the plat ofNapolo Drive recorded in Plat Book 48, page 30, public records of BrevardCounty, Florida.

 

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