exhibit1022mortgagefl101






#4830-9629-2852v7 Prepared by, and after recording please return to:  Milbank LLP  55 Hudson Yards  New York, New York 10001  Attention: Jonathan M. Karl, Esq.  ____________________________  MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING  MADE BY  SUNSEEKER FLORIDA, INC.,  AS MORTGAGOR  TO  WILMINGTON TRUST, NATIONAL ASSOCIATION, as Administrative Agent,  AS MORTGAGEE  Property Address:  5007 Tamiami Trail, Punta Gorda, FL 33980  DATED:  As of October 13, 2021  NOTE TO RECORDER: NOTWITHSTANDING ANYTHING TO THE CONTRARY  CONTAINED HEREIN, RECOVERY UNDER THIS MORTGAGE FOR PRINCIPAL SHALL  BE LIMITED TO $350,000,000.00 IN PRINCIPAL EVIDENCED BY THE CREDIT  AGREEMENT AND ONE OR MORE NOTES, WHICH CREDIT AGREEMENT AND NOTES  HAVE BEEN EXECUTED AND DELIVERED OUTSIDE OF THE STATE OF FLORIDA.  ACCORDINGLY, PURSUANT TO (A) FLORIDA ADMINISTRATIVE CODE 12B-4.053(31),  FLORIDA DOCUMENTARY STAMP TAXES IN THE AMOUNT OF $1,225,000.00 ARE  BEING PAID UPON RECORDATION HEREOF, AND (B) PURSUANT TO FLORIDA  STATUTES SECTION 199.133, INTANGIBLE TAXES IN THE AMOUNT OF $700,000 ARE  BEING PAID UPON RECORDATION HEREOF. 





 






2  #4830-9629-2852v7  TABLE OF CONTENTS   Page  ARTICLE ONE COVENANTS OF MORTGAGOR .................................................................. 14  1.1 General Representations, Covenants and Warranties .................................... 14  1.2 First Lien Status .................................................................................................. 14  1.3 Compliance with Legal Requirements .............................................................. 14  1.4 Impositions and Certain Tax Matters ............................................................... 14  1.5 Insurance ............................................................................................................. 15  1.6 Condemnation ..................................................................................................... 15  1.7 Care of Mortgaged Property.............................................................................. 15  1.8 Leases. .................................................................................................................. 15  1.9 Intentionally omitted. ......................................................................................... 16  1.10 Further Encumbrance ........................................................................................ 16  1.11 Intentionally omitted. ......................................................................................... 16  1.12 Further Assurances ............................................................................................. 16  1.13 Assignment of Leases and Rents ........................................................................ 16  1.14 Expenses ............................................................................................................... 17  1.15 Compliance with Permitted Encumbrance Agreements ................................. 17  1.16 Defense of Actions ............................................................................................... 17  1.17 After-Acquired Property .................................................................................... 17  1.18 Security Agreement ............................................................................................ 17  1.19 Future Advances ................................................................................................. 19  1.20 Credit Agreement................................................................................................ 19  ARTICLE TWO CREDIT AGREEMENT PROVISIONS .......................................................... 19  2.1 Interaction with Credit Agreement and other Loan Documents;  Incorporation by Reference ............................................................................... 19  2.2 Other Collateral .................................................................................................. 20  ARTICLE THREE DEFAULTS .................................................................................................. 20  3.1 Event of Default................................................................................................... 20  ARTICLE FOUR REMEDIES ..................................................................................................... 20  4.1 Intentionally omitted .......................................................................................... 20  4.2 Acceleration of Maturity .................................................................................... 20  4.3 Protective Advances ............................................................................................ 20  4.4 Institution of Equity Proceedings ...................................................................... 21  4.5 Mortgagee’s Power of Enforcement. ................................................................. 21  4.6 Mortgagee’s Right to Enter and Take Possession, Operate and Apply  Income. ................................................................................................................. 22  4.7 Separate Sales ...................................................................................................... 24  





 






3  #4830-9629-2852v7  4.8 Leases 24  4.9 Purchase by Mortgagee ...................................................................................... 24  4.10 Waiver of Appraisement, Valuation, Stay, Extension and Redemption Laws  24  4.11 Receiver ................................................................................................................ 24  4.12 Suits to Protect the Mortgaged Property .......................................................... 25  4.13 Proofs of Claim .................................................................................................... 25  4.14 Mortgagor to Pay the Obligations on Any Default in Payment; Application of  Monies by Mortgagee. ........................................................................................ 25  4.15 Delay or Omission; No Waiver .......................................................................... 26  4.16 No Waiver of One Default to Affect Another ................................................... 26  4.17 Discontinuance of Proceedings; Position of Parties Restored......................... 27  4.18 Remedies Cumulative ......................................................................................... 27  4.19 Interest After Event of Default .......................................................................... 27  4.20 Foreclosure; Expenses of Litigation .................................................................. 27  4.21 Deficiency Judgments ......................................................................................... 28  4.22 Waiver of Jury Trial ........................................................................................... 28  4.23 Exculpation of Mortgagee .................................................................................. 29  4.24 Insurance Policies................................................................................................ 29  ARTICLE FIVE LOCAL LAW PROVISIONS. .......................................................................... 29  5.1 Principles of Construction .................................................................................. 29  5.2 Maximum Amount Secured; Future Advances ............................................... 29  5.3 Limitation of Recovery; Florida Documentary Stamp Tax ............................ 30  ARTICLE SIX MISCELLANEOUS PROVISIONS .................................................................... 30  6.1 Heirs, Successors and Assigns Included in Parties .......................................... 30  6.2 Addresses for Notices, Etc. ................................................................................. 30  6.3 Change of Notice Address .................................................................................. 31  6.4 Headings............................................................................................................... 31  6.5 Invalid Provisions to Affect No Others ............................................................. 31  6.6 Changes and Priority Over Intervening Liens ................................................. 31  6.7 Waiver of Setoff and Counterclaim; Other Waivers ....................................... 32  6.8 Governing Law .................................................................................................... 32  6.9 Intentionally omitted .......................................................................................... 32  6.10 Right of Entry ...................................................................................................... 32  6.11 Corrections .......................................................................................................... 33  6.12 Statute of Limitations ......................................................................................... 33  6.13 Subrogation ......................................................................................................... 33  6.14 Reinstatement ...................................................................................................... 33  6.15 No Waiver ............................................................................................................ 33  6.16 Extension, Rearrangement or Renewal of Obligations ................................... 33  6.17 Forcible Detainer ................................................................................................ 34  6.18 Waiver of Stay or Extension .............................................................................. 34  





 






4  #4830-9629-2852v7  6.19 Application of Payments..................................................................................... 34  6.20 Reduction of Secured Amount ........................................................................... 34  6.21 Renewal; Etc. ....................................................................................................... 35  6.22 Compliance With Usury Law ............................................................................ 35  6.23 Entire Agreement ................................................................................................ 36  6.24 Time 36  6.25 Third Party Rights .............................................................................................. 36  6.26 Context ................................................................................................................. 36  6.27 Calendar Days ..................................................................................................... 36  6.28 Covenants Running with the Land .................................................................... 36  6.29 Mortgagee as Agent ............................................................................................ 36  6.30 Relationship ......................................................................................................... 36  6.31 Jurisdiction; Consent to Service of Process. ..................................................... 36  6.32 Interpretation ...................................................................................................... 37    SCHEDULE A DESCRIPTION OF THE LAND    





 






  5  #4830-9629-2852v7  MORTGAGE, ASSIGNMENT OF RENTS, SECURITY   AGREEMENT AND FIXTURE FILING     THIS MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND  FIXTURE FILING (as amended, restated, amended and restated, supplemented, increased and/or  otherwise modified from time to time, this “Mortgage”) is made and effective as of October 13,  2021 (the “Effective Date”), by SUNSEEKER FLORIDA, INC., a Florida corporation  (“Mortgagor”), whose address is 1201 North Town Center, Las Vegas, Nevada 89144, to  WILMINGTON TRUST, NATIONAL ASSOCIATION, having an office at 50 South Sixth  Street, Suite 1290, Minneapolis, Minnesota 55402, in its capacity as Administrative Agent for the  benefit of the Secured Parties (as defined in the Credit Agreement) (in such capacity, and together  with its successors and assigns in such capacity, “Mortgagee”).     PRELIMINARY STATEMENTS  A. Mortgagor entered into that certain Credit Agreement (as amended, restated,  amended and restated, supplemented and/or otherwise modified from time to time, the “Credit  Agreement”), dated as of the date hereof, by and among Mortgagor, Allegiant Travel Company  (the “Guarantor”), the banks, financial institutions and other entities from time to time party  thereto in the capacity of lenders (collectively, the “Lenders”), Mortgagee, as administrative agent  (together with its successors and assigns in such capacity, the “Administrative Agent”), and  Castlelake Lending Opportunities, L.L.C., as facility manager (the “Facility Manager”), which  on the Effective Date will provide for up to a $350,000,000.00 term loan facility, which has a  maturity date of October 31, 2028.  B. Guarantor has, among other things, guaranteed the Obligations pursuant to that  certain Payment Guaranty, dated as of October 7, 2021 (as amended, amended and restated,  supplemented or otherwise modified from time to time, the “Payment Guaranty”), made by and  among Guarantor and the other guarantors party thereto in favor of the Guarantor.  C. In consideration of the extensions of credit and other accommodations of the  Secured Parties as set forth in the Credit Agreement, Mortgagor has agreed to secure the  Obligations (including the obligations under the Loan Documents) as set forth herein.  NOW, THEREFORE, for good and valuable consideration, the receipt and legal  sufficiency of which are hereby acknowledged, and the covenants herein contained, and in order  to secure the Obligations, MORTGAGOR AND MORTGAGEE HEREBY AGREE AS  FOLLOWS:  DEFINITIONS  As used in this Mortgage, the following terms have the meanings hereinafter set forth:  “Accounts Receivable” has the meaning set forth in Section 9-102(2) of the UCC for the  term “account.”  “Administrative Agent” has the meaning set forth in the Preliminary Statements.  





 






  6  #4830-9629-2852v7  “Applicable Clerk’s Office” means the Clerk of the Circuit Court & County Comptroller  of Charlotte County.  “Appurtenant Rights” means all and singular tenements, hereditaments, rights,  reversions, remainders, development rights, privileges, benefits, easements (in gross or  appurtenant), rights-of-way, licenses, gores or strips of land, streets, ways, alleys, passages, sewer  rights, water courses, water rights and powers, riparian rights and powers, and all appurtenances  whatsoever and claims or demands of Mortgagor at law or in equity in any way belonging,  benefiting, relating or appertaining to the Mortgaged Property encumbered by this Mortgage, or  which hereinafter shall in any way belong, relate or be appurtenant thereto, whether now owned  or hereafter acquired by Mortgagor.    “Bankruptcy” means, with respect to any Person, such Person becomes the subject of a  bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator,  custodian, assignee for the benefit of creditors or similar Person charged with the reorganization  or liquidation of its business appointed for it, or, in the good faith determination of the Mortgagee,  has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in,  any such proceeding or appointment, provided that a Bankruptcy shall not result solely by virtue  of any ownership interest, or the acquisition of any ownership interest, in such Person by a  Governmental Authority or instrumentality thereof, provided, further, that such ownership interest  does not result in or provide such Person with immunity from the jurisdiction of courts within the  United States or from the enforcement of judgments or writs of attachment on its assets or permit  such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or  disaffirm any contracts or agreements made by such Person.  “Credit Agreement” has the meaning set forth in the Preliminary Statements.   “Effective Date” has the meaning set forth in the preamble.  “Event of Default” has the meaning set forth in Section 3.1 hereof.  “FF&E” means all furniture, fixtures, equipment, appurtenances, signage and personal  property owned or leased by Mortgagor now or in the future contained in, used in connection with,  attached to, or otherwise useful or convenient to the use, operation, or occupancy of, or placed on,  but unattached to, any part of the Site (as defined herein) whether or not the same constitutes real  property or fixtures in the State, including all removable window and floor coverings, all furniture  and furnishings, heating, lighting, plumbing, ventilating, air conditioning, refrigerating,  incinerating and elevator and escalator plants, cooking facilities, vacuum cleaning systems, public  address and communications systems, sprinkler systems and other fire prevention and  extinguishing apparatus and materials, motors, machinery, pipes, appliances, equipment, fittings,  fixtures, and building/construction materials, all financial equipment, computer equipment,  calculators, adding machines, and any other electronic equipment of every nature used or located  on any part of the Site, together with all venetian blinds, shades, draperies, drapery and curtain  rods, brackets, bulbs, cleaning apparatus, mirrors, lamps, ornaments, cooling apparatus and  equipment, ranges and ovens, garbage disposals, dishwashers, mantels, and any and all such  property which is at any time installed in, affixed to or placed upon the Site.  





 






  7  #4830-9629-2852v7  “Guaranty” has the meaning set forth in the Preliminary Statements.   “Imposition” means any taxes, assessments, water rates, sewer rates, maintenance charges,  other governmental impositions and other charges now or hereafter levied or assessed or imposed  against the Mortgaged Property or any part thereof.  “Improvements” means (i) all the buildings, structures, facilities and improvements of  every nature whatsoever now or hereafter situated on the Site or any real property encumbered  hereby and in which Mortgagor now or hereafter owns or acquires an interest or right and (ii) all  FF&E.  “Insolvent” or “Insolvency” means, with respect to any Person, that such Person does not  meet the definition of the term “Solvent” as defined in the Credit Agreement.  “Intangible Collateral” means (a) subject to the absolute assignment contained herein and  the revocable license herein below given to Mortgagor to collect the Rents, the Rents; (b) any and  all books, records, customer lists, concession agreements, supply or service contracts, licenses,  permits, governmental approvals (to the extent such licenses, permits and approvals may be  pledged under applicable legal requirements), signs, goodwill, hotel credit and charge records,  supplier lists, checking accounts, safe deposit boxes (excluding the contents of such deposit boxes  owned by Persons other than Mortgagor and its subsidiaries), cash, instruments, chattel papers,  including inter-company notes and pledges, documents, unearned premiums, credit card  receivables and other accounts receivables, deposits, refunds, including but not limited to income  tax refunds, prepaid expenses, rebates, tax and insurance escrow and impound accounts, if any,  actions and rights in action, and all other claims, including without limitation condemnation  awards and insurance proceeds, and all other contract rights and general intangibles resulting from  or used in connection with the operation and occupancy of the Mortgaged Property and the  Improvements and in which Mortgagor now or hereafter has rights; and (c) Mortgagor’s general  intangibles or right to use agreements, including without limitation all rents, issues, profits, income  and maintenance fees resulting therefrom, whether any of the foregoing is now owned or hereafter  acquired.  “Land” means that certain real property situated in the county of Charlotte in the State of  Florida, as more specifically described in Schedule A attached hereto and incorporated herein by  reference, including any after acquired title thereto.  “Leases” means any and all leases, subleases, lettings, licenses, and concessions, affecting  the Mortgaged Property that Mortgagor has entered into, taken by assignment, taken subject to, or  assumed, or has otherwise become bound by, now or in the future, that give any Person the right  to conduct its business on, or otherwise use, operate or occupy, all or any portion of the Site or  Improvements and any leases, agreements or arrangements permitting anyone to enter upon or use  any of the Mortgaged Property to extract or remove natural resources of any kind, together with  all modifications, amendments, extensions, and renewals of the foregoing entered into in  compliance with this Mortgage, together with all rental, occupancy, service, maintenance or any  other similar agreements pertaining to use or occupation of, or the rendering of services in  connection therewith at the Site, the Improvements or any part thereof.  





 






  8  #4830-9629-2852v7  “Lenders” has the meaning set forth in the Preliminary Statements.  “Lessee(s)” means any and all tenants, licensees, or other grantees of the Leases and any  and all guarantors, sureties, endorsers or others having primary or secondary liability with respect  to such Leases.    “Mortgaged Property” means all of the property described in granting clauses (A)  through (R) below, inclusive, and each item of property therein described.  “Mortgagee” has the meaning set forth in the preamble.  “Mortgagor” has the meaning set forth in the preamble.  “Obligations” has the meaning set forth in the Credit Agreement.  “Permitted Dispositions” means any dispositions permitted by Section 6.04 of the Credit  Agreement and the other Loan Documents.   “Personal Property” means all Tangible Collateral, Intangible Collateral and all other  personal property, in each case, now or hereafter owned or leased by Mortgagor or in which  Mortgagor has or will have any interest (whether or not such items are stored on the Site or  elsewhere) used or which are intended to be used in connection with the operation or occupancy  of the Mortgaged Property or in connection with any construction being conducted or which may  be conducted on the Site, Proceeds of the foregoing and all products, substitutions, and accessions  therefor and thereto.  “Premises” means the Site and the Improvements.  “Proceeds” has the meaning assigned to it under the UCC and, in any event, shall include  but not be limited to all of Mortgagor’s right, title and interest in and to (i) any and all proceeds of  any insurance (including, without limitation, property, casualty and title insurance), indemnity,  warranty or guaranty payable from time to time with respect to any of the Mortgaged Property;  (ii) any and all proceeds in the form of accounts, security deposits, tax escrows (if any), down  payments (to the extent the same may be pledged under applicable legal requirements), collections,  contract rights, documents, instruments, chattel paper, liens and security instruments, guarantees  or general intangibles relating in whole or in part to the Site or Improvements and all rights and  remedies of whatever kind or nature Mortgagor may hold or acquire for the purpose of securing or  enforcing any obligation due Mortgagor thereunder; (iii) any and all payments in any form  whatsoever made or due and payable from time to time in connection with any requisition,  confiscation, condemnation, seizure or forfeiture of all or any part of the Mortgaged Property by  any Governmental Authority or deed in lieu thereof; (iv) subject to the absolute assignment  contained herein, the Rents or other benefits arising out of, in connection with or pursuant to any  Lease of the Mortgaged Property; and (v) any and all other amounts from time to time paid or  payable in connection with any of the Mortgaged Property; provided, however, that Mortgagor is  not authorized to dispose of any of the Mortgaged Property unless such disposition is a Permitted  Disposition.  “Project” shall have the meaning set forth in the Disbursement Agreement.   





 






  9  #4830-9629-2852v7  “Protective Advances” has the meaning set forth in Section 4.3 hereof.  “Rents” means all rents, room revenues, income, receipts, issues, profits, revenues and  maintenance fees, food and beverage revenues, license and concession fees, income, proceeds and  other benefits to which Mortgagor may now or hereafter be entitled from the Site, the  Improvements, the Leases or any property encumbered hereby or any business or other activity  conducted by Mortgagor at the Site or the Improvements.  “Site” means the Land and the Appurtenant Rights.  “State” has the meaning set forth in Section 6.8 hereof.  “Tangible Collateral” means all personal property, goods, inventory, equipment, supplies,  building and other materials of every nature whatsoever and all other tangible personal property  constituting a part or portion of the Project, in each case, in which Mortgagor now or hereafter  owns or acquires an interest or right, including all property and materials stored therein in which  Mortgagor has an interest and all tools, utensils, food and beverage, liquor, uniforms, linens,  housekeeping and maintenance supplies, vehicles, fuel, advertising and promotional material,  Mortgagor’s right, title and interest in blueprints, surveys, plans and other documents relating to  the Site or Improvements, and all construction materials and all furnishings, fixtures and  equipment, including, but not limited to, all FF&E and all equipment and devices which are or are  to be installed and used in connection with the operation of the Project, those items of furniture,  fixtures and equipment which are to be purchased or leased by Mortgagor, machinery and any  other item of personal property in which Mortgagor now or hereafter owns or acquires an interest  or right, and which are used or useful in the construction, operation, use and occupancy of the  Project and all present and future right and interest of Mortgagor in and to any casino operator’s  agreement, license agreement or sublease agreement used in connection with the Site or the  Improvements.  “UCC” means the Uniform Commercial Code in effect in the State of New York from  time-to-time; provided, however, in the event that, by reason of mandatory provisions of law, any  or all of the perfection or priority of the security interest in any UCC Collateral is governed by the  Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term  “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for  purposes of the provisions hereof relating to such perfection or priority and for purposes of  definitions related to such provisions.  “UCC Collateral” has the meaning set forth in Section 1.18 hereof.  Any capitalized terms used in this Mortgage which are not otherwise defined herein shall have the  meaning ascribed to such terms in the Credit Agreement.  Upon termination of the Credit  Agreement, all terms defined by reference to the Credit Agreement shall continue to have the same  meanings given to such terms in the Credit Agreement as in effect immediately prior to such  termination.  All references herein to provisions of the UCC shall include all successor provisions  under any subsequent version or amendment to any Article of the UCC.  Except as expressly  specified otherwise herein, any reference herein to any Exhibit or Schedule to this Mortgage shall  be deemed to refer to such Exhibit or Schedule as amended or supplemented from time to time.  





 






  10  #4830-9629-2852v7  W I T N E S S E T H:  In consideration of ten Dollars and other good and valuable consideration, the receipt and  sufficiency of which are hereby acknowledged, and as collateral security for the payment and  performance in full when due, whether at stated maturity, by required prepayment, declaration,  acceleration, demand or otherwise, of all of (i) the Obligations and (ii) the payment of all sums  expended or advanced by Secured Parties under or pursuant to the terms hereof or to protect the  security hereof (including Protective Advances), together with interest thereon as herein provided,  Mortgagor, in consideration of the premises, and for the purposes aforesaid, hereby mortgages,  assigns, grants, bargains, sells, conveys, pledges and confirms to Mortgagee for the benefit of the  Secured Parties a lien on and security interest in and to each of the following, whether now owned  or hereinafter acquired by Mortgagor from time to time:  (A) All the estate, right, title and interest of Mortgagor of, in and to, the Land;   (B) TOGETHER WITH all the estate, right, title and interest of Mortgagor of, in and to  the Improvements;  (C) TOGETHER WITH all the estate, right, title and interest of Mortgagor of, in and to  the Appurtenant Rights;  (D) TOGETHER WITH all the estate, right, title and interest of Mortgagor of, in and to  the Tangible Collateral to the extent permitted by, or not prohibited by, applicable legal  requirements;  (E) TOGETHER WITH all the right, title and interest of Mortgagor of, in and to the  Intangible Collateral to the extent permitted by, or not prohibited by, applicable legal requirements;  (F) TOGETHER WITH all the estate, right, title and interest of Mortgagor of, in and to  (i) all judgments and decrees, insurance proceeds, awards of damages and settlements hereafter made  resulting from condemnation proceedings or the taking of any of the property described in granting  clauses (A), (B), (C), (D) and (E) hereof or any part thereof under the power of eminent domain, or  for any damage (whether caused by such taking or otherwise) to the property described in granting  clauses (A), (B), (C), (D) and (E) hereof or any part thereof and Mortgagee is (subject to the terms  hereof and the Credit Agreement and the other Loan Documents, including Mortgagor’s right, if any,  to collect, receive, use and apply such awards and proceeds in accordance with the Credit Agreement  and the Disbursement Agreement) hereby authorized to (x) collect and receive said awards and  proceeds and to give proper receipts and acquittance therefor and (y) to apply the same toward the  payment of the Obligations and sums secured hereby, notwithstanding the fact that the amount owing  thereon may not then be due and payable; (ii) all proceeds of any sales or other dispositions of the  property or rights described in granting clauses (A), (B), (C), (D) and (E)  hereof or any part thereof  whether voluntary or involuntary (subject to the terms hereof and the Credit Agreement and the other  Loan Documents), provided, however, that the foregoing shall not be deemed to permit such sales,  transfers, or other dispositions except as specifically permitted herein or in the other Loan  Documents; and (iii) whether arising from any voluntary or involuntary disposition of the property  described in granting clauses (A), (B), (C), (D) and (E), all Proceeds, products, replacements,  additions, substitutions, renewals and accessions, remainders, reversions and after-acquired interest  





 






  11  #4830-9629-2852v7  in, of and to such property (subject to the terms hereof and the Credit Agreement and the other Loan  Documents);  (G) TOGETHER WITH and, subject to Section 1.13 below, the absolute assignment of  any Leases or any part thereof that Mortgagor has entered into, taken by assignment, taken subject  to, or assumed, or has otherwise become bound by, now or in the future, together with all of the  following (including all “Cash Collateral” within the meaning of the Bankruptcy Code) arising from  the Leases: (a) Rents (subject, however, to the absolute assignment to Mortgagee and the revocable  license herein below given to Mortgagor to collect the Rents), (b) all of Mortgagor’s right, title, and  interest to all guarantees, letters of credit, security deposits, collateral, cash deposits, and other credit  enhancement documents, arrangements and other measures with respect to the Leases, (c) all of  Mortgagor’s right, title, and interest under the Leases, including the following: (i) the right to receive  and collect the Rents from the lessee, sublessee or licensee, or their successor(s), under any Lease(s),  (ii) all revenues and credit card receipts collected from guest rooms, restaurants, bars, meeting  facilities, parking facilities, recreational facilities, concession fees, health club membership fees,  food and beverage wholesale and trail sales, vending machine sales and service charges from the  Site, and (iii) the right to enforce against any tenants thereunder and otherwise any and all remedies  under the Leases, including Mortgagor’s right to evict from possession any tenant thereunder or to  retain, apply, use, draw upon, pursue, enforce or realize upon any guaranty of any Lease; to  terminate, modify, or amend the Leases; to obtain possession of, use, or occupy, any of the real or  personal property subject to the Leases; and to enforce or exercise, whether at law or in equity or by  any other means, all provisions of the Leases and all obligations of the tenants thereunder based upon  (y) any breach by such tenant under the applicable Lease (including any claim that Mortgagor may  have by reason of a termination, rejection, or disaffirmance of such Lease pursuant to any provision  of the Bankruptcy Code) and (z) the use and occupancy of the premises demised, whether or not  pursuant to the applicable Lease (including any claim for use and occupancy arising under landlord- tenant law of the State or any provision of the Bankruptcy Code).  Mortgagee hereby grants to  Mortgagor a revocable license, so long as no Event of Default has occurred and is continuing  hereunder, to collect and use the Rents, as they become due and payable, and to exercise the rights  under the Leases.  Upon the occurrence and during the continuance of an Event of Default, the  revocable license hereby granted to Mortgagor to collect the Rents, and to exercise the rights under  the Leases, shall automatically terminate, but such license shall be automatically reinstated upon a  cure or written waiver of such Event of Default by Mortgagee (it being acknowledged that  Administrative Agent shall be under no obligation to accept a proposed cure of an Event of Default).   Mortgagee shall have the right, at any time and from time to time, to notify any Lessee of the rights  of Mortgagee as provided by this section;  Notwithstanding anything to the contrary contained herein, the foregoing provisions of this  Paragraph (G) shall not constitute an assignment for purposes of security but shall constitute an  absolute and present assignment of the Rents to Mortgagee, subject, however, to the revocable  license given to Mortgagor to collect and use the Rents and to exercise the rights under the Leases  as hereinabove provided; and the existence or exercise of such right of Mortgagor shall not operate  to subordinate this assignment to any subsequent assignment, in whole or in part, by Mortgagor;  (H) TOGETHER WITH all of Mortgagor’s right, title and interest in and to any and all  maps, plans, specifications, surveys, studies, tests, reports, data and drawings relating to the  development of the Site or the Project and the construction of the Improvements, including, without  





 






  12  #4830-9629-2852v7  limitation, all marketing plans, feasibility studies, soils tests, design contracts and all contracts and  agreements of Mortgagor relating thereto including, without limitation, all of Mortgagor’s right, title  and interest in and to architectural, structural, mechanical and engineering plans and specifications,  studies, data and drawings prepared for or relating to the development of the Site or the Project or  the construction, renovation or restoration of any of the Improvements or the extraction of minerals,  sand, gravel or other valuable substances from the Site and purchase contracts or any agreement  granting Mortgagor a right to acquire any land situated within Charlotte County, Florida;  (I) TOGETHER WITH, to the extent permitted or not prohibited by applicable legal  requirements, all of Mortgagor’s right, title, and interest in and to any and all licenses, use permits,  permits, variances, special permits, franchises, certificates, rulings, certifications, validations,  exemptions, filings, registrations, authorizations, consents, approvals, waivers, orders, rights and  agreements relating to the Mortgaged Property (including, without limitation, options, option rights,  contract rights now or hereafter obtained by Mortgagor from any Governmental Authority having or  claiming jurisdiction over the Land, the FF&E, the Project, or any other element of the Mortgaged  Property or providing access thereto, or the operation of any business on, at, or from the Site);   (J) TOGETHER WITH all the estate, right, title and interest of Mortgagor of, in and to  all water stock, water permits and other water rights relating to the Site;  (K) TOGETHER WITH all right, title and interest of Mortgagor of, in and to oil and gas  and other mineral rights, if any, in or pertaining to the Site and all royalty, leasehold and other rights  of Mortgagor pertaining thereto;  (L) TOGETHER WITH all right, title and interest of Mortgagor of, in and to any and all  monies and other property, real or personal, which may from time to time be subjected to the lien  hereof by Mortgagor or by anyone on its behalf or with its consent, or which may come into the  possession or be subject to the control of Mortgagee, in each case, pursuant to this Mortgage, the  Credit Agreement or any other Loan Document (including any security document), including,  without limitation, any Protective Advances under this Mortgage; and all of Mortgagor’s right, title,  and interest in and to all extensions, improvements, betterments, renewals, substitutes for and  replacements of, and all additions, accessions, and appurtenances to, any of the foregoing that  Mortgagor may subsequently acquire or obtain by any means, or construct, assemble, or otherwise  place on any of the Mortgaged Property, and all conversions of any of the foregoing; it being the  intention of Mortgagor that all property hereafter acquired by Mortgagor and required by the Credit  Agreement, any other Loan Document (including any security document) or this Mortgage to be  subject to the lien of this Mortgage or intended so to be shall forthwith upon the acquisition thereof  by Mortgagor (but subject to the last sentence of Section 1.17) be subject to the lien of this Mortgage  as if such property were now owned by Mortgagor and were specifically described in this Mortgage  and granted hereby or pursuant hereto, and Mortgagee is hereby authorized, subject to applicable  legal requirements, and the terms and provisions of the Credit Agreement and the other Loan  Documents, to receive any and all such property as and for additional security for the obligations  secured or intended to be secured hereby.  Mortgagor agrees to take any action as may reasonably  be necessary to evidence and perfect such liens or security interests, including, without limitation,  the execution of any documents necessary to evidence and perfect such liens or security interests;  (M) TOGETHER WITH, to the extent permitted or not prohibited by applicable legal  





 






  13  #4830-9629-2852v7  requirements, all right, title and interest of Mortgagor of, in and to any and all Accounts Receivable  and all royalties, earnings, income, proceeds, products, rents, revenues, reversions, remainders,  issues, profits, avails, production payments, and other benefits directly or indirectly derived or  otherwise arising from any of the foregoing, all of which are hereby assigned to Mortgagee, who,  upon the occurrence and during the continuation of an Event of Default, is authorized to collect and  receive the same, to give receipts and acquittances therefor and to apply the same to the Obligations  secured hereunder in accordance with the terms and provisions of the Credit Agreement and the  other Loan Documents, whether or not then due and payable (it being agreed that so long as no Event  of Default is then continuing, Mortgagor shall be entitled to collect and receive the same and to the  use and enjoyment of, and to exercise all such rights, remedies, privileges and benefits with respect  to, said collateral);  (N) TOGETHER WITH all accounts, documents, instruments, chattel paper, general  intangibles and investment property as the foregoing terms are defined in the UCC, not otherwise  described above;  (O) TOGETHER WITH Proceeds of the foregoing property described in granting clauses  (A) through (N) inclusive; and  (P) TOGETHER WITH all tradenames, trademarks, servicemarks, logos, copyrights,  goodwill, URLs or other online media, books and records and all other general intangibles relating  to or used in connection with the operation of the Site;  (Q) TOGETHER WITH all (i) accounts receivable (including, without limitation, any  account, fees, charges or other payments arising from the use and occupancy of hotel rooms and/or  other hotel or public facilities at the Property), (ii) credit card receivables, and (iii) reserves, escrows  and deposit accounts maintained by Mortgagor with respect to the Property, including, without  limitation, all accounts established or maintained pursuant to the Credit Agreement, the  Disbursement Agreement or any other Loan Document, together with all deposits or wire transfers  made to such accounts, and all cash, checks, drafts, certificates, securities, investment property,  financial assets, instruments and other property held therein from time to time, and all proceeds,  products, distributions, dividends and/or substitutions thereon and thereof;   (R) TOGETHER WITH Mortgagor’s rights further to assign, sell, lease, encumber or  otherwise transfer or dispose of the property described in granting clauses (A) through (Q) inclusive,  above, for debt or otherwise, subject, however, to Mortgagor’s right to make Permitted Dispositions.  Mortgagor shall warrant and forever defend the lien and security interest of this Mortgage  against all and every Person or Persons lawfully or otherwise claiming or to claim the whole or  any part of the Mortgaged Property, except for Permitted Encumbrances pertaining to the  Mortgaged Property.    Mortgagor agrees that any greater title to the Mortgaged Property hereafter acquired by  Mortgagor during the term hereof shall, to the fullest extent permitted by applicable legal  requirements, be automatically subject hereto.  In such event, this Mortgage shall, without further  action or conveyance, automatically and simultaneously with such acquisition, be spread to cover  and attach to such acquired estate but without thereby impairing, releasing, or limiting Mortgagee’s  





 






  14  #4830-9629-2852v7  lien on the estate.  As so spread and attached, the lien of this Mortgage shall be prior to the lien of  any mortgage or deed of trust placed on the acquired estate after the date of this Mortgage.   Mortgagor shall execute and (at Mortgagor’s expense) record any documents that Mortgagee  reasonably requests, including a mortgage spreader agreement, to effectuate the previous sentence.  ARTICLE ONE  COVENANTS OF MORTGAGOR  Mortgagee and the other Secured Parties have been induced to enter into the Credit  Agreement, and the other Loan Documents, and to make extensions of credit thereunder, on the  basis of the following material covenants, all agreed to by Mortgagor:  1.1 General Representations, Covenants and Warranties.  Mortgagor represents,  covenants and warrants that: Mortgagor has (i) good, marketable and insurable title to, to the extent  the following constitutes Real Property or (ii) good, marketable and insurable title to, to the extent  the following constitutes personal property, the Land, the Improvements, the Appurtenant Rights,  the Tangible Collateral, the Intangible Collateral and other Mortgaged Property, in each case, free  and clear of all Liens other than Permitted Encumbrances, and that it has the right to hold, occupy  and enjoy its interest in the Mortgaged Property, and has good right, full power and lawful  authority to subject the Mortgaged Property to the Lien of this Mortgage and pledge the same as  provided herein.   1.2 First Lien Status.  Mortgagor shall forever preserve, protect and defend the first  Lien and security interest status of this Mortgage, subject to Permitted Encumbrances.  If any Lien  or security interest other than a Permitted Encumbrance related to the Mortgaged Property is  recorded or filed against Mortgagor’s estate, right, title and interests in the Mortgaged Property  and Mortgagor receives notice thereof, Mortgagor shall promptly, and at its expense, (a) give  Mortgagee a detailed written notice of such Lien or security interest (including origin, amount (if  known) and other terms), and (b) pay the underlying claim in full or take such other commercially  reasonable action so as to cause it to be released or contest the same in compliance with the  requirements of the Credit Agreement and Disbursement Agreement (including, if applicable, the  requirement of providing a bond or other security reasonably satisfactory to Mortgagee or  affirmative title insurance over such claim).  Nothing herein shall be construed to subordinate the  Lien of this Mortgage to any Permitted Encumbrance to which the Lien of this Mortgage is not  otherwise subordinate.  1.3 Compliance with Legal Requirements.  Mortgagor shall comply with Section  5.05 of the Credit Agreement.  1.4 Impositions and Certain Tax Matters.  Except as otherwise permitted by the  Loan Documents:  (a) Mortgagor shall pay prior to delinquency all Impositions which are (or if not  paid, may become) a Lien on all or part of the Mortgaged Property or any interest in it, or which  may cause any decrease in the value of the Mortgaged Property or any part of it, except to the  extent a Permitted Encumbrance under the Credit Agreement and for immaterial Impositions so  long as no material portion of the Mortgaged Property is in jeopardy of being seized, levied upon  





 






  15  #4830-9629-2852v7  or foreclosed.  If any such Imposition becomes delinquent (and is not a Permitted Encumbrance),  Mortgagee may require Mortgagor to deliver to Mortgagee within ten (10) days following receipt  of Mortgagee’s written request, evidence reasonably satisfactory to Mortgagee that the Impositions  have been paid.  This Section 1.4(a) is subject to the right granted in Section 5.02 of the Credit  Agreement and the other Loan Documents with respect to certain Impositions.  (b) Mortgagor shall not suffer to exist, permit or initiate the joint assessment of the  real and personal property, or any other procedure whereby the Lien of the real property taxes and  the Lien of the personal property taxes shall be assessed, levied or charged to the Land as a single  Lien, except as may be required by applicable legal requirements.  (c) In the event of the passage of any law deducting from the value of real property  for the purposes of taxation any Lien thereon, or changing in any way the taxation of mortgages  or obligations secured thereby for state or local purposes, or the manner of collecting such taxes  and imposing a tax, either directly or indirectly, on this Mortgage or the other Loan Documents to  which Mortgagor is a party, Mortgagor shall pay all such taxes.  1.5 Insurance.  Mortgagor shall maintain insurance in accordance with Section 5.09  of the Credit Agreement.  All Proceeds from any insurance policies shall be collected, held,  handled and disbursed in accordance with the provisions of the Credit Agreement.    1.6 Condemnation.  Mortgagor hereby collaterally assigns all awards and  compensation to which it is entitled for any condemnation or other taking of the Mortgaged  Property, or any purchase in lieu thereof, to Mortgagee and authorizes Mortgagee to collect and  receive such awards and compensation and to give proper receipts and acquittances therefor,  subject to the terms of the Credit Agreement, the Disbursement Agreement and the other Loan  Documents.  Promptly upon obtaining knowledge of the institution of any proceedings for the  condemnation of the Mortgaged Property or any portion thereof, Mortgagor shall notify Mortgagee  of the pendency of such proceedings.  Mortgagor shall not settle or compromise any claim in  connection with any action or proceeding related to any condemnation without the prior written  consent of Mortgagee, which consent shall not be unreasonably withheld (provided no Event of  Default is continuing).  All of Mortgagor’s right, title and interest in and to such compensation  awards, damages, claims, rights of action and Proceeds, and any other payments or relief, and the  right thereto, are, whether paid to Mortgagee or Mortgagor or a third party trustee, included in the  Mortgaged Property.  Mortgagee, after deducting therefrom all its reasonable documented out-of- pocket expenses, including reasonable documented out-of-pocket attorneys’ fees and expenses,  shall apply all Proceeds paid directly to it in accordance with the provisions of the Credit  Agreement.  All such Proceeds paid directly to Mortgagor shall be applied in accordance with the  provisions of the Credit Agreement.   1.7 Care of Mortgaged Property.  Except as otherwise permitted under the Credit  Agreement and each other Loan Document, Mortgagor shall preserve and maintain the Mortgaged  Property in accordance with Section 5.14 of the Credit Agreement and the other Loan Documents.  1.8  Leases.  (a) Mortgagor represents, warrants and covenants that:  





 






  16  #4830-9629-2852v7  (i) as of the Effective Date, Mortgagor has not entered into any Leases;   (ii) except for the assignment effected hereby and in the other security  documents, Mortgagor has not executed any assignment or pledge of any of the Leases, the Rents,  or of Mortgagor’s right, title and interest in the same, except for Permitted Encumbrances; and  (iii) this Mortgage does not and will not constitute a violation or default  under any Lease, and is and shall at all times constitute a valid lien on Mortgagor’s interests in the  Leases.  (b) Mortgagor shall not enter into any Lease unless such Lease is entered into in  accordance with the terms of the Credit Agreement or is otherwise approved in writing by  Mortgagee.  (c) Upon request, Mortgagor shall promptly deliver to Mortgagee executed copies  of all Leases (other than hotel occupancy and similar agreements entered into in the ordinary  course of operations on the Mortgaged Property).  1.9  Intentionally omitted.   1.10 Further Encumbrance.  Mortgagor covenants that, except for Permitted  Encumbrances and Permitted Dispositions and as otherwise permitted by the Loan Documents,  Mortgagor shall neither make nor suffer to exist, nor enter into any agreement for, any disposition  or Lien of all or any part of the Mortgaged Property.  No sale of the Mortgaged Property and no  forbearance to any Person with respect to this Mortgage and no extension to any Person of the time  for payment of the Notes or other payment obligations under the Loan Documents (whether  principal and interest payments or otherwise), and other sums hereby secured given by Mortgagee,  shall operate to release, discharge, modify, change or affect the original liability of Mortgagor, or  such guarantor, surety or endorser either in whole or in part.  Nothing contained in this Section  1.10 shall be deemed to limit Mortgagor’s right to make Permitted Dispositions or Permitted  Encumbrances in accordance with the terms of the Credit Agreement and the other Loan  Documents.    1.11 Intentionally omitted.    1.12 Further Assurances.  Mortgagor shall forthwith upon the execution and delivery  of this Mortgage, and thereafter from time to time, cause this Mortgage and each instrument of  further assurance to be filed, indexed, registered, recorded, given or delivered in such manner and  in such places as may be required by any present or future law in order to publish notice of and  fully to protect the lien hereof upon, and the title of Mortgagee to, the Mortgaged Property.    1.13 Assignment of Leases and Rents.  Subject to applicable legal requirements,  Mortgagor hereby assigns to Mortgagee all the right, title and interest of Mortgagor in and to the  Leases and Rents, which assignment shall constitute an absolute and present assignment to  Mortgagee, subject to the license herein given to Mortgagor to collect the Rents, and shall be fully  operative without any further action on the part of any party, and specifically Mortgagee shall be  entitled upon the occurrence and during the continuance of an Event of Default hereunder to all  Rents and to enter upon the Premises to collect such Rents, provided, however, that Mortgagee  





 






  17  #4830-9629-2852v7  shall not be obligated to take possession of the Mortgaged Property, or any portion thereof.  The  absolute assignment contained in granting clause (G) shall not be deemed to impose upon  Mortgagee any of the obligations or duties of Mortgagor provided in any such Lease (including,  without limitation, any liability under the covenant of quiet enjoyment contained in any lease in  the event that any lessee shall have been joined as a party defendant in any action to foreclose this  Mortgage and shall have been barred and foreclosed thereby of all right, title and interest and  equity of redemption in the Mortgaged Property or any part thereof).     1.14 Expenses.  Mortgagor shall, upon demand by Mortgagee, reimburse Mortgagee or  any assignee of Mortgagee for all actual, reasonable and documented out-of-pocket expenses  which have been incurred by it in connection with the exercise of its rights and remedies hereunder  or taking any other action contemplated hereby, and shall indemnify Mortgagee and the  Indemnitees for the same, all as provided by and in accordance with, and to the extent required  under, Section 10.04 of the Credit Agreement.  1.15 Compliance with Permitted Encumbrance Agreements.  To the extent required  by the Credit Agreement, Mortgagor shall comply with each and every material obligation  contained in any agreement pertaining to a Permitted Encumbrance.  1.16 Defense of Actions.  Upon Mortgagee’s request, Mortgagor (i) shall appear in and  defend any action or proceeding negatively affecting or purporting to negatively affect the security  hereof or the rights or powers of Mortgagee and (ii) shall pay all actual, reasonable and  documented out-of-pocket costs and expenses, including cost of title search and insurance or other  evidence of title, preparation of survey, and actual, reasonable and documented out-of-pocket  attorneys’ fees in any such action or proceeding in which Mortgagee may appear or may be joined  as a party and in any suit brought by Mortgagee based upon or in connection with this Mortgage  or any Loan Document in accordance with, and to the extent required under, Section 10.04 of the  Credit Agreement.  Nothing contained in this section shall, however, limit the right of Mortgagee  to appear in such action or proceeding with counsel of its own choice, either on its own behalf  during the continuance of an Event of Default or on behalf of Mortgagor.  1.17 After-Acquired Property.  Subject to Section 5.11 of the Credit Agreement, to the  fullest extent permitted or not prohibited by applicable legal requirements, any and all assets or  property which would constitute Mortgaged Property hereunder but which is acquired after the  Effective Date shall nonetheless immediately, without any further conveyance, assignment or act  on the part of Mortgagor or Mortgagee, become and be Mortgaged Property hereunder and subject  to the lien and security interest of this Mortgage as fully and completely as though specifically  described herein, but nothing contained in this Section 1.17 shall be deemed to modify or change  the obligations of Mortgagor under Section 1.12 hereof.  Notwithstanding the foregoing, if and  whenever from time to time Mortgagor shall hereafter acquire any real property or interest therein  which constitutes or is intended to constitute part of the Mortgaged Property hereunder, Mortgagor  shall comply with Section 5.11 of the Credit Agreement.  1.18 Security Agreement.  This Mortgage shall also be a security agreement between  Mortgagor, as “debtor,” and Mortgagee, as “secured party,” covering that portion of the Mortgaged  Property constituting personal property, fixtures and goods which may become fixtures  (collectively, the “UCC Collateral”) governed by the UCC, and as further security for the  





 






  18  #4830-9629-2852v7  payment and performance of the Obligations, Mortgagor hereby grants to Mortgagee a security  interest in such portion of the Mortgaged Property to the fullest extent that the Mortgaged Property  may be subject to the UCC.  In addition to Mortgagee’s other rights hereunder, Mortgagee shall  have all rights of a secured party under the UCC.  Mortgagor hereby authorizes Mortgagee, as  Mortgagor’s attorney-in-fact, to, without the obligation to do so, in Mortgagee’s name, or in the  name of Mortgagor, prepare and file (and if requested by Mortgagee, Mortgagor shall execute and  deliver to Mortgagee) all financing statements and such further assurances that may be reasonably  required by Mortgagee to establish, create, perfect (to the extent the same can be achieved by the  filing of a financing statement) and maintain the validity and priority of Mortgagee’s security  interests, and Mortgagor shall bear all actual, reasonable and documented out-of-pocket costs  thereof, including the costs of all UCC searches.  Except as otherwise provided in the Loan  Documents, if Mortgagee should dispose of any of the Mortgaged Property comprising the UCC  Collateral pursuant to the UCC, ten (10) days’ prior written notice by Mortgagee to Mortgagor  shall be deemed to be reasonable notice in connection with such disposal; provided, however,  Mortgagee may dispose of such property in accordance with the foreclosure procedures of this  Mortgage in lieu of proceeding under the UCC.  Mortgagee may from time to time file and, if  applicable, execute and deliver at Mortgagor’s expense, all financing statements, continuation  statements, termination statements, amendments, partial releases, or other instruments relating to  all financing statements by and between Mortgagor and Mortgagee so long as the same are  consistent with the grant of security interest made hereunder.  Except as otherwise provided in the  Loan Documents, upon the occurrence and during the continuation of an Event of Default,  (i) Mortgagee, in addition to any other rights and remedies which it may have, may exercise  immediately and without demand to the extent permitted by applicable legal requirements, any  and all rights and remedies granted to a secured party under the UCC including, without limiting  the generality of the foregoing, the right to take possession of the UCC Collateral or any part  thereof, and to take such other measures as Mortgagee may deem necessary for the care, protection  and preservation of such collateral and (ii) upon request or demand of Mortgagee, Mortgagor shall  at its expense, assemble the UCC Collateral and make it available to Mortgagee at a convenient  place acceptable to both parties.  Mortgagor shall pay to Mortgagee promptly after Mortgagee’s  demand thereof, any and all actual, reasonable and documented out-of-pocket expenses, including  reasonable and documented attorneys’ fees and disbursements incurred or paid by Mortgagee in  protecting the interest in the UCC Collateral and in enforcing the rights hereunder with respect to  such UCC Collateral, in each case, in accordance with, and to the extent required under, Section  10.04 of the Credit Agreement.    (a) Intentionally omitted.    (b) Fixture Filing.  Mortgagor and Mortgagee agree, to the extent permitted by  applicable legal requirements, that: (i) this Mortgage, upon recording or registration in the  Applicable Clerk’s Office, shall constitute a financing statement filed as a “fixture filing” under  the UCC; (ii) a part of the Mortgaged Property is or is to become fixtures; (iii) the names and  addresses of Mortgagor and Mortgagee are as set forth in the preamble to this Mortgage; (iv)  Mortgagor is a Florida corporation and (v) Mortgagor’s organizational identification number is  P17000100300.    (c) Derogation of Real Property.  It is the intention of the parties that the filing  of a financing statement in the records normally having to do with personal property shall never  





 






  19  #4830-9629-2852v7  be construed as in any way derogating from or impairing the express declaration and intention of  the parties hereto as hereinabove stated that everything used in connection with the production of  income from the Mortgaged Property and/or adapted for use therein and/or which is described or  reflected in this Mortgage is, and at all times and for all purposes and in all proceedings both legal  or equitable (except as set forth in Section 4.5(e)), shall be regarded as part of the real property  encumbered by this Mortgage irrespective of whether (1) any such item is physically attached to  the Improvements, (2) serial numbers are used for the better identification of certain equipment  items capable of being thus identified in a recital contained herein or in any list filed with  Mortgagee, or (3) any such item is referred to or reflected in any such financing statement so filed  at any time.  It is the intention of the parties that the mention in any such financing statement of  (A) rights in or to the proceeds of any fire and/or hazard insurance policy, or (B) any award in  eminent domain proceedings for a taking or for loss of value, or (C) Mortgagor’s interest as lessor  in any present or future Lease or rights to Rents, shall never be construed as in any way altering  any of the rights of Mortgagee as determined by this Mortgage or impugning the priority of  Mortgagee’s real property lien granted hereby or by any other recorded document, but such  mention in the financing statement is declared to be for the protection of Mortgagee in the event  any court or judge shall at any time hold with respect to the matters set forth in the foregoing  clauses (A), (B) and (C) that notice of Mortgagee’s priority of interest to be effective against a  particular class of Persons, including but not limited to, the federal government and any  subdivisions or entity of the federal government, must be filed in the UCC records.  1.19 Future Advances.  This Mortgage is granted to secure the payment of all  Obligations incurred from time to time (including subsequent to the date hereof), including,  without limitation, the payment of future advances made pursuant to Sections 2.03 and 8.07 of the  Credit Agreement.  The lien of this Mortgage shall be valid as to all Obligations, including, without  limitation, all advances of the loan whenever hereafter made under the Credit Agreement from the  time of its filing of record in the Applicable Clerk’s Office.    1.20 Credit Agreement.    (a) Mortgagor will cause the Improvements to be constructed, and all other work  on the Premises to be performed, in accordance with the terms of the Credit Agreement and the  Disbursement Agreement, and will comply with the covenants made by it in the Credit Agreement  and the Disbursement Agreement.   (b) This Mortgage is subject to all of the terms, covenants and conditions of the  Credit Agreement.  The proceeds of the loan secured hereby are to be advanced by Mortgagee and  Disbursement Agent to the Mortgagor in accordance with the provisions of the Credit Agreement  and Disbursement Agreement, respectively.  All advances made and all indebtedness arising and  accruing under the Credit Agreement and Disbursement Agreement from time to time shall be  secured hereby.    ARTICLE TWO  CREDIT AGREEMENT PROVISIONS  2.1 Interaction with Credit Agreement and other Loan Documents; Incorporation  by Reference.  To the extent that this Mortgage refers to specific provisions or requirements of  





 






  20  #4830-9629-2852v7  the Credit Agreement and the other Loan Documents as applicable to Mortgagor hereunder,  including with respect to the meaning of the expressions “payment in full,” “paid in full” and any  other similar terms or phrases, such provisions and requirements are hereby incorporated by  reference in this Mortgage and made applicable to Mortgagor mutatis mutandis.  Additionally, the  rules of construction set forth in Sections 1.02 of the Credit Agreement shall be applicable to this  Mortgage mutatis mutandis.  In the event of any conflict or inconsistency between the terms of the  Credit Agreement and this Mortgage, the terms of the Credit Agreement shall govern and control.   2.2 Other Collateral.  This Mortgage is one of a number of security agreements to  secure the Obligations delivered by or on behalf of the Mortgagor pursuant to the Credit  Agreement, and the other Loan Documents.  All potential junior Lien claimants are placed on  notice that, under any of the Loan Documents, other collateral for the Obligations secured  hereunder (i.e., collateral other than the Mortgaged Property) may, under certain circumstances,  be released without a corresponding reduction in the total principal amount secured by this  Mortgage.  Such a release would decrease the amount of collateral securing the same indebtedness,  thereby increasing the burden on the remaining Mortgaged Property created and continued by this  Mortgage.  No such release shall impair the priority of the lien of this Mortgage.  By accepting its  interest in the Mortgaged Property after the Effective Date, each and every junior Lien claimant  shall be deemed to have acknowledged the possibility of, and consented to, any such release.   Nothing in this paragraph shall impose any obligation upon Mortgagee.  ARTICLE THREE  DEFAULTS  3.1 Event of Default.  The term “Event of Default,” wherever used in this Mortgage,  shall mean any occurrence and continuance of one or more Events of Default (as such term is  defined in the Credit Agreement or any other Loan Document).  ARTICLE FOUR  REMEDIES  4.1 Intentionally omitted.   4.2 Acceleration of Maturity.  If an Event of Default occurs and is continuing,  Mortgagee may (except that such acceleration shall be automatic if the Event of Default is caused  by the occurrence of any event set forth in Section 7.01(f) or (g) of the Credit Agreement), declare  the Obligations to be due and payable immediately, and upon such declaration such principal and  interest and other sums shall immediately become due and payable without demand, presentment,  notice or other requirements of any kind (all of which Mortgagor waives) notwithstanding anything  in this Mortgage or any Loan Document or applicable legal requirements to the contrary.  4.3 Protective Advances.  Upon the occurrence of an Event of Default, then without  thereby limiting Mortgagee’s other rights or remedies, waiving or releasing any of Mortgagor’s  obligations, or imposing any obligation on Mortgagee, Mortgagee may, before and during a  foreclosure, and before and after judgment of foreclosure, and at any time prior to sale, and, where  applicable, after sale, and during the pendency of any related proceedings, either advance any  amount owing or perform any or all actions that Mortgagee considers necessary or appropriate to  





 






  21  #4830-9629-2852v7  remedy such Event of Default.  All such advances shall constitute “Protective Advances” and  shall bear interest thereon at the Default Rate from the date incurred until paid by the Mortgagor.   No sums advanced or performance rendered by Mortgagee shall cure, or be deemed a waiver of  any Event of Default or of any notice of default hereunder, or invalidate any act done pursuant  hereto or to any such notice.  This Mortgage also secures Protective Advances made after the entry  of a judgment of foreclosure.   4.4 Institution of Equity Proceedings.  If an Event of Default occurs and is  continuing, Mortgagee may institute an action, suit or proceeding in equity for specific  performance of this Mortgage, the Credit Agreement or any other Loan Document to which  Mortgagor is a party, all of which shall be specifically enforceable by injunction or other equitable  remedy.  To the extent permitted by applicable legal requirements, Mortgagor waives any defense  based on laches or any applicable statute of limitations.  4.5 Mortgagee’s Power of Enforcement.   (a) If an Event of Default occurs and is continuing, Mortgagee shall be entitled,  upon and subject to the terms and conditions of the Credit Agreement, if and to the extent permitted  by applicable legal requirements, to prepare and record on its own behalf a written declaration of  default and demand for sale to cause the Mortgaged Property to be sold to satisfy the obligations  hereof.  (b) After the lapse of such time as may then be required by applicable legal  requirements following the recordation of such written declaration, and notice of sale having been  given as then required by applicable legal requirements, Mortgagee without demand on Mortgagor,  shall, if and to the extent permitted by applicable legal requirements, sell the Mortgaged Property  or any portion thereof at the time and place fixed by it in said notice and at the place designated  by applicable legal requirements, either as a whole or in separate parcels and in such order as it  may determine, at public auction to the highest bidder, for cash in lawful money of the United  States payable at the time of sale.  Mortgagee may, for any cause it deems expedient, postpone the  sale of all or any portion of said property until it shall be completed and, in every case, notice of  postponement shall be given by public announcement thereof at the time and place last appointed  for the sale and from time to time thereafter Mortgagee may postpone such sale by public  announcement at the time fixed by the preceding postponement.  Mortgagee shall execute and  deliver to the purchaser its deed, bill of sale, or other instrument conveying said property so sold,  but without any covenant or warranty, express or implied.  The recitals in such instrument of  conveyance of any matters or facts shall be conclusive proof of the truthfulness thereof.  Any  Person, including Mortgagee, may bid at the sale.  (c) To the extent permitted by applicable legal requirements, after deducting all  actual, documented out-of-pocket costs, fees and expenses of Mortgagee and of this Mortgage,  including, without limitation, actual, out-of-pocket costs of evidence of title and reasonable out- of-pocket attorneys’ fees and other reasonable legal expenses of Mortgagee in connection with a  sale, Mortgagee shall apply the proceeds of such sale to payment of all Obligations not then repaid,  with accrued interest at the rate applicable to overdue principal set forth in the Credit Agreement  to the payment of all other sums then secured hereby and the remainder, if any, to the Person or  Persons legally entitled thereto.  





 






  22  #4830-9629-2852v7  (d) If any Event of Default occurs and is continuing, Mortgagee may, upon and  subject to the terms and conditions of the Credit Agreement, either with or without entry or taking  possession of the Mortgaged Property, and without regard to whether or not the indebtedness and  other sums secured hereby shall be due and without prejudice to the right of Mortgagee thereafter  to bring an action or proceeding to foreclose or any other action for any Event of Default existing  at the time such earlier action was commenced, proceed by any appropriate action or proceeding:  (1) to enforce payment of the Notes or other obligations under the Loan Documents, to the extent  permitted by applicable legal requirements, or the performance of any term hereof or any other  right; (2) to foreclose this Mortgage in any manner provided by applicable legal requirements for  the foreclosure of mortgages or deeds of trust on real property, through either judicial or  nonjudicial foreclosure procedures or processes pursuant to the laws of the State, and to sell, as an  entirety or in separate lots or parcels, the Mortgaged Property or any portion thereof pursuant to  the laws of the State or under the judgment or decree of a court or courts of competent jurisdiction,  and Mortgagee shall be entitled to recover in any such proceeding all documented out-of-pocket  costs and expenses incident thereto, including reasonable and documented out-of-pocket  attorneys’ fees, appraisers’ fees, receiver’s costs and expenses, insurance, taxes, outlays for  documentary and expert evidence, costs for preservation of the Mortgaged Property,  stenographer’s charges, publication costs and costs of procuring all abstracts of title, title searches  and examinations, guarantee policies and similar data and assurances with respect to title as  Mortgagee may deem to be reasonably necessary either to prosecute such suit or to evidence to  bidders at any sale which may be had pursuant to such decree the true condition of the title to or  value of the Mortgaged Property or for any other reasonable purpose; (3) to exercise any or all of  the rights and remedies available to it under the Loan Documents; and (4) to pursue any other  remedy available to it.  Mortgagee shall take action either by such proceedings or by the exercise  of its powers with respect to entry or taking possession, or both, as Mortgagee may determine.    (e) The remedies described in this Section 4.5 may be exercised with respect to all  or any portion of the Personal Property, either simultaneously with the sale of any real property  encumbered hereby or independent thereof.  Upon the occurrence and during the continuance of  an Event of Default, Mortgagee shall at any time be permitted to proceed with respect to all or any  portion of the Personal Property in any manner permitted by the UCC.  Mortgagor agrees that  Mortgagee’s inclusion of all or any portion of the Personal Property (and all personal property that  is subject to a security interest in favor, or for the benefit, of Mortgagee) in a sale or other remedy  exercised with respect to the real property encumbered hereby, as permitted by the UCC, is a  commercially reasonable disposition of such property.    4.6 Mortgagee’s Right to Enter and Take Possession, Operate and Apply Income.  (a) If an Event of Default occurs and is continuing, (1) Mortgagor, upon demand  of Mortgagee, shall forthwith surrender to Mortgagee the actual possession and, if and to the extent  permitted by applicable legal requirements, Mortgagee itself, or by such officers or agents as it  may appoint, may enter and take possession of all the Mortgaged Property including the Personal  Property, without liability for trespass, damages or otherwise, and may exclude Mortgagor and its  agents and employees wholly therefrom and may have joint access with Mortgagor to the books,  papers and accounts of Mortgagor; and (2) Mortgagor shall pay to Mortgagee on Mortgagee’s  entry into possession, or to any receiver appointed to collect the Rents, all Rents received by  Mortgagor.  





 






  23  #4830-9629-2852v7  (b) If following the occurrence and during the continuance of an Event of Default,  Mortgagor shall for any reason fail to surrender or deliver the Mortgaged Property, the Personal  Property or any part thereof after Mortgagee’s demand, Mortgagee may obtain a judgment or  decree conferring on Mortgagee the right to immediate possession or requiring Mortgagor to  deliver immediate possession of all or part of such property to Mortgagee and Mortgagor hereby  specifically consents to the entry of such judgment or decree.  Mortgagor shall pay to Mortgagee,  upon demand, all actual, reasonable and documented out-of-pocket costs and expenses of  obtaining such judgment or decree, including Mortgagee’s documented out-of-pocket attorneys’  fees and agents fees, and all such costs, expenses and compensation shall, until paid, be secured  by the lien of this Mortgage.  (c) Upon every such entering upon or taking of possession, following the  occurrence and during the continuance of an Event of Default, Mortgagee may hold, store, use,  operate, manage and control the Mortgaged Property and conduct the business thereof, and, from  time to time in its sole and absolute discretion and without being under any duty to so act:  (1) make all necessary and proper maintenance, repairs, renewals,  replacements, additions, betterments and improvements thereto and thereon and purchase or  otherwise acquire additional necessary and proper fixtures, personalty and other property;  (2) insure or keep the Mortgaged Property insured to the same extent as  Mortgagor is required to insure and keep the Mortgaged Property insured under the terms of the  Credit Agreement;  (3) manage and operate the Mortgaged Property and exercise all the rights  and powers of Mortgagor in its name or otherwise with respect to the same;  (4) enter into agreements with others to exercise the powers herein granted  to Mortgagee, all as Mortgagee from time to time may determine; and, subject to the absolute  assignment of the leases and rents to Mortgagee, Mortgagee may collect and receive all the Rents,  including those past due as well as those accruing thereafter; and shall apply the monies so received  by Mortgagee in such priority as Mortgagee may determine to (A) the payment of the Obligations,  including interest and principal due and payable on the Notes or the other Loan Documents, (B)  the deposits for taxes and assessments and insurance premiums due, (C) the cost of insurance,  taxes, assessments and other proper charges upon the Mortgaged Property or any part thereof; (D)  the compensation, expenses and disbursements of the agents, attorneys and other representatives  of Mortgagee for which Mortgagor is responsible for under the terms of the Loan Documents; and  (E) any other charges or costs required to be paid by Mortgagor under the terms hereof; and  (5) rent or sublet the Mortgaged Property or any portion thereof for any  purpose permitted by this Mortgage.  Mortgagee shall surrender possession of the Mortgaged Property and the Personal Property  to Mortgagor only when no Event of Default then remains continuing and all Obligations under  any of the terms of the Loan Documents or this Mortgage shall have been paid in full.  The same  right of taking possession, however, shall exist if any subsequent Event of Default shall occur and  be continuing.  





 






  24  #4830-9629-2852v7  4.7 Separate Sales.  To the extent permitted by applicable legal requirements, upon  the occurrence and during the continuation of an Event of Default, the Mortgaged Property may  be sold in one or more parcels and, subject to the orders of a court of competent jurisdiction, in  such manner and order as Mortgagee, in its sole discretion, may elect, it being expressly understood  and agreed that the right of sale arising out of any Event of Default shall not be exhausted by any  one or more sales.  4.8 Leases.  If an Event of Default occurs and is continuing, Mortgagee is authorized  to foreclose this Mortgage subject to the rights of any tenants of the Mortgaged Property, and the  failure to make any such tenants parties defendant to any such foreclosure proceedings and to  foreclose their rights shall not be, nor be asserted by Mortgagor to be, a defense to any proceedings  instituted by Mortgagee to collect the sums secured hereby or to collect any deficiency remaining  unpaid after the foreclosure sale of the Mortgaged Property, or any portion thereof.  Unless  otherwise agreed by Mortgagee in writing, all Leases executed subsequent to Effective Date, or  any part thereof, shall be subordinate and inferior to the lien of this Mortgage.   4.9 Purchase by Mortgagee.  Upon any foreclosure sale (whether judicial or non- judicial), Mortgagee may bid for and purchase the property subject to such sale and, upon  compliance with the terms of sale, may hold, retain and possess and dispose of such property in its  own absolute right without further accountability.  4.10 Waiver of Appraisement, Valuation, Stay, Extension and Redemption Laws.   Mortgagor agrees to the full extent permitted by applicable legal requirements that if an Event of  Default occurs and is continuing, neither Mortgagor nor anyone claiming through or under it shall  or will set up, claim or seek to take advantage of any appraisement, valuation, stay, extension or  redemption laws now or hereafter in force, in order to prevent or hinder the enforcement or  foreclosure of this Mortgage or the absolute sale of the Mortgaged Property or any portion thereof  or the final and absolute putting into possession thereof, immediately after such sale, of the  purchasers thereof, and Mortgagor for itself and all who may at any time claim through or under  it, hereby waives, to the full extent that it may lawfully so do under applicable legal requirements,  the benefit of all such laws, and any and all right to have the assets comprising the Mortgaged  Property marshaled upon any foreclosure of the lien hereof and agrees that Mortgagee or any court  having jurisdiction to foreclose such lien may sell the Mortgaged Property in part or as an entirety.  4.11 Receiver.  If an Event of Default occurs and is continuing, Mortgagee, without  regard to the value, adequacy or occupancy of the security for the Obligations, shall, if and to the  extent permitted by applicable legal requirements, be entitled as a matter of right if it so elects to  the appointment of a receiver to enter upon and take possession of the Mortgaged Property and to  collect all Rents and apply the same as the court may direct, and such receiver may be appointed  by any court of competent jurisdiction upon application by Mortgagee.  If any Event of Default  occurs and is continuing, Mortgagee may, if and to the extent permitted by applicable legal  requirements, have a receiver appointed without notice to any third party, and Mortgagee may  waive any requirement that the receiver post a bond.  Mortgagee shall have the power to designate  and select the Person who shall serve as the receiver and to negotiate all terms and conditions  under which such receiver shall serve.  Any receiver appointed on Mortgagee’s behalf may be an  Affiliate of Mortgagee. The reasonable out-of-pocket expenses, including receiver’s fees,  attorneys’ fees and expenses, costs and agent’s compensation, incurred pursuant to the powers  





 






  25  #4830-9629-2852v7  herein contained shall be secured by this Mortgage.  The right to enter and take possession of and  to manage and operate the Mortgaged Property and to collect all Rents, whether by a receiver or  otherwise, shall be cumulative to any other right or remedy available to Mortgagee under this  Mortgage or the other Loan Documents or otherwise available to Mortgagee and may be exercised  concurrently therewith or independently thereof.  Mortgagee shall be liable to account only for  such Rents (including, without limitation, security deposits) actually received by Mortgagee,  whether received pursuant to this section or any other provision hereof.  Notwithstanding the  appointment of any receiver or other custodian, Mortgagee shall be entitled as pledgee to the  possession and control of any cash, deposits, or instruments at the time held by, or payable or  deliverable pursuant to the terms of this Mortgage to, Mortgagee.  4.12 Suits to Protect the Mortgaged Property.  Mortgagee shall have the power and  authority to institute and maintain any suits and proceedings as Mortgagee, in its sole and absolute  discretion, may deem advisable (a) to prevent any impairment of the Mortgaged Property by any  acts which may be unlawful or in violation of this Mortgage, (b) to preserve or protect its interest  in the Mortgaged Property, or (c) to restrain the enforcement of or compliance with any legislation  or other legal requirements that may be unconstitutional or otherwise invalid, if the enforcement  of or compliance with such enactment, rule or order might impair the security hereunder or be  prejudicial to Mortgagee’s interest.  4.13 Proofs of Claim.  In the case of any receivership, Insolvency, Bankruptcy,  reorganization, arrangement, adjustment, composition or other judicial proceedings affecting  Mortgagor, or, to the extent the same would result in an Event of Default hereunder, any  Subsidiary, or any guarantor, co-maker or endorser of any of Mortgagor’s obligations or its  property, Mortgagee, to the extent permitted by applicable legal requirements, shall be entitled to  file such proofs of claim or other documents as it may deem to be necessary or advisable in order  to have its claims allowed in such proceedings for the entire amount due and payable by Mortgagor  under the Credit Agreement or any other Loan Document (including any security document), at  the date of the institution of such proceedings, and for any additional amounts which may become  due and payable by Mortgagor after such date.  4.14 Mortgagor to Pay the Obligations on Any Default in Payment; Application of  Monies by Mortgagee.  (a) In case of a foreclosure sale of all or any part of the Mortgaged Property and of  the application of the proceeds of sale to the payment of the sums secured hereby, Mortgagee shall  be entitled to enforce payment from Mortgagor of any additional amounts then remaining due and  unpaid with respect to the Obligations and to recover judgment against Mortgagor for any portion  thereof remaining unpaid, with interest at the Default Rate.  (b) Mortgagor hereby agrees, to the extent permitted by applicable legal  requirements, that no recovery of any such judgment by Mortgagee or other action by Mortgagee  and no attachment or levy of any execution upon any of the Mortgaged Property or any other  property shall in any way affect the Lien and security interest of this Mortgage upon the Mortgaged  Property or any part thereof or any Lien, rights, powers or remedies of Mortgagee hereunder, but  such Lien, rights, powers and remedies shall continue unimpaired as before.  





 






  26  #4830-9629-2852v7  (c) [Reserved]  (d) The provisions of this section shall not be deemed to limit or otherwise modify  the provisions of any guaranty of the indebtedness evidenced by the Loan Documents.   4.15 Delay or Omission; No Waiver.  No delay or omission of Mortgagee or any other  Secured Party to exercise any right, power or remedy upon and during the continuance of any  Event of Default shall exhaust or impair any such right, power or remedy or shall be construed to  waive any such Event of Default or to constitute acquiescence therein.  Every right, power and  remedy given to Mortgagee whether contained herein or in the other Loan Documents or otherwise  available to Mortgagee may be exercised from time to time and as often as may be deemed  expedient by Mortgagee.  4.16 No Waiver of One Default to Affect Another.  No waiver of any Event of Default  hereunder shall extend to or affect any subsequent or any other Event of Default then existing, or  impair any rights, powers or remedies consequent thereon.  If Mortgagee, the Administrative  Agent or the required percentage of the Lenders (as determined pursuant to the Credit Agreement),  to the extent applicable under the Credit Agreement, (a) grants forbearance or an extension of time  for the payment of any sums secured hereby; (b) takes other or additional security for the payment  thereof; (c) waives or does not exercise any right granted in the Notes, the Credit Agreement, this  Mortgage, or any other Loan Document (including any security document); (d) releases any part  of the Mortgaged Property from the lien or security interest of this Mortgage or any other  instrument securing the Obligations; (e) consents to the filing of any map, plat or replat of the Site  (to the extent such consent is required); (f) consents to the granting of any easement on the Site (to  the extent such consent is required); or (g) makes or consents to any agreement changing the terms  of this Mortgage or any other Loan Document subordinating the lien or any charge hereof, no such  act or omission shall release, discharge, modify, change or affect the original liability of Mortgagor  under the Notes, this Mortgage, the Credit Agreement or any other Loan Document (including any  security document) or otherwise, or any subsequent purchaser of the Mortgaged Property or any  part thereof or any maker, co-signer, surety or guarantor (in each case, other than to the extent of  the forbearance, extension, waiver, release or consent, if any, as applicable).  No such act or  omission shall preclude Mortgagee from exercising any right, power or privilege herein granted or  intended to be granted in case of any Event of Default then existing or of any subsequent Event of  Default, nor shall the lien or security interest of this Mortgage be altered thereby, except, with  respect to the latter, (1) to the extent expressly provided in any releases, maps, easements or  subordinations described in clause (d), (e), (f) or (g) above of this Section 4.16, or (2) as otherwise  expressly provided in an instrument or instruments executed by Mortgagee.  In the event of the  sale or transfer by operation of law or otherwise of all or any part of the Mortgaged Property,  Mortgagee, without notice to any Person, is hereby authorized and empowered to deal with any  such vendee or transferee with reference to the Mortgaged Property or the indebtedness secured  hereby, or with reference to any of the terms or conditions hereof, as fully and to the same extent  as it might deal with the original parties hereto and without in any way releasing or discharging  any of the liabilities or undertakings hereunder, or waiving its right to declare such sale or transfer  an Event of Default as provided herein.  Notwithstanding anything to the contrary contained in  this Mortgage or any other Loan Document (including any security document), (1) in the case of  any non-monetary Event of Default, Mortgagee and the other Secured Parties may continue to  accept payments due hereunder without thereby waiving the existence of such or any other Event  





 






  27  #4830-9629-2852v7  of Default and (2) in the case of any monetary Event of Default, Mortgagee and the other Secured  Parties may accept partial payments of any sums due hereunder without thereby waiving the  existence of such Event of Default if the partial payment is not sufficient to completely cure such  Event of Default.  4.17 Discontinuance of Proceedings; Position of Parties Restored.  If Mortgagee or  any other Secured Party shall have proceeded to invoke any right, remedy or recourse permitted  under any applicable Loan Documents and shall thereafter elect to discontinue or abandon it for  any reason, Mortgagee or such other Secured Party, as the case may be, shall have the unqualified  right to do so and, in such an event, Mortgagor, Mortgagee and the other Secured Parties shall be  restored to their former positions with respect to the Obligations, any applicable Loan Documents,  the Mortgaged Property and otherwise, and the rights, remedies, recourses and powers of  Mortgagee and the other Secured Parties shall continue as if the right, remedy or recourse had  never been invoked, but no such discontinuance or abandonment shall waive any Event of Default  which has occurred and is then continuing or the right of Mortgagee or any other Secured Party  thereafter to exercise any right, remedy or recourse under any applicable Loan Documents for such  Event of Default.  4.18 Remedies Cumulative.  No right, power or remedy, including without limitation  remedies with respect to any security for the Obligations, conferred upon or reserved to Mortgagee  by this Mortgage or any other Loan Document (including any security document) is exclusive of  any other right, power or remedy, but each and every such right, power and remedy shall be  cumulative and concurrent and shall be in addition to any other right, power and remedy given  hereunder or any other Loan Document (including any security document), now or hereafter  existing at law, in equity or by statute, and Mortgagee shall be entitled to resort to such rights,  powers, remedies or security as Mortgagee shall in its sole and absolute discretion deem advisable.  4.19 Interest After Event of Default.  If an Event of Default shall have occurred and is  continuing, all sums outstanding and unpaid under the Notes, this Mortgage, the Credit Agreement,  and the other Loan Documents shall, as and to the extent provided in the Credit Agreement, bear  interest at the Default Rate until such Event of Default has been waived.  Mortgagor’s obligation  to pay such interest shall be secured by this Mortgage.   4.20 Foreclosure; Expenses of Litigation.  If Mortgagee forecloses, actual reasonable  documented out-of-pocket attorneys’ fees and expenses for services in the supervision of said  proceedings shall be allowed to Mortgagee as part of the foreclosure costs.  In the event of  foreclosure of the lien hereof, there shall be allowed and included as additional indebtedness all  actual, reasonable and documented out-of-pocket expenditures and expenses which may be paid  or incurred by or on behalf of Mortgagee for attorneys’ fees, appraiser’s fees, outlays for  documentary and expert evidence, stenographers’ charges, publication costs, and costs (which may  be estimated as to items to be expended after foreclosure sale or, in the instance of judicial  foreclosure, entry of the decree) of procuring all such abstracts of title, title searches and  examinations, title insurance policies and guarantees, and similar data and assurances with respect  to title as Mortgagee may deem reasonably advisable either to prosecute such suit or to evidence  to a bidder at any sale which may be had pursuant to such decree the true condition of the title to  or the value of the Mortgaged Property or any portion thereof.  All expenditures and expenses of  the nature in this section mentioned, and such actual, documented, out-of-pocket expenses and fees  





 






  28  #4830-9629-2852v7  as may be incurred in the protection of the Mortgaged Property and the maintenance of the lien  and security interest of this Mortgage, including the fees of any attorney employed by Mortgagee  in any litigation or proceeding affecting this Mortgage or any other Loan Document (including  any security document), the Mortgaged Property or any portion thereof, including, without  limitation, civil, probate, appellate and bankruptcy proceedings, or in preparation for the  commencement or defense of any proceeding or threatened suit or proceeding, shall be due and  payable by Mortgagor, with interest thereon at the Default Rate, in each case, in accordance with,  and to the extent payable by Mortgagor under, Section 10.04 of the Credit Agreement and shall be  secured by this Mortgage.    4.21 Deficiency Judgments.  To the fullest extent permitted by applicable legal  requirements, if after foreclosure of this Mortgage or Mortgagee’s sale hereunder, there shall  remain any deficiency with respect to any Obligations, and Mortgagee shall institute any  proceedings to recover such deficiency or deficiencies, all such amounts shall continue to bear  interest at the Default Rate.  To the extent permitted by applicable legal requirements, Mortgagor  waives any defense to Mortgagee’s recovery against Mortgagor of any deficiency after any  foreclosure sale of the Mortgaged Property.  To the extent permitted by applicable legal  requirements, Mortgagor expressly waives any defense or benefits that may be derived from any  statute granting Mortgagor any defense to any such recovery by Mortgagee.  In addition,  Mortgagee shall be entitled to recovery of all of its actual, reasonable and documented out-of- pocket costs and expenditures (including without limitation any court imposed costs) in connection  with such proceedings, including its reasonable attorneys’ fees and expenses, appraisal fees and  the other costs, fees and expenditures referred to in Section 4.20 above in accordance with, and to  the extent payable by Mortgagor under, Section 10.04 of the Credit Agreement.  This provision  shall survive any foreclosure or sale of the Mortgaged Property, any portion thereof and/or the  extinguishment of the lien hereof.  Notwithstanding anything in this Mortgage to the contrary,  none of any member, direct or indirect owner, director or officer of the Mortgagor (but excluding  any guarantor under the Loan Documents to the extent of its obligations under the Loan  Documents) shall be liable personally under this Mortgage.  4.22 Waiver of Jury Trial.  EACH OF MORTGAGOR, AND BY ITS  ACCEPTANCE HEREOF, MORTGAGEE, HEREBY WAIVES, TO THE FULLEST  EXTENT PERMITTED BY APPLICABLE LEGAL REQUIREMENTS, ANY RIGHT TO  TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION  ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR  RELATED OR INCIDENTAL TO THE DEALINGS OF MORTGAGOR AND  MORTGAGEE OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR  THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW  EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT  OR TORT OR OTHERWISE; AND EACH OF MORTGAGOR, AND BY ITS  ACCEPTANCE HEREOF, MORTGAGEE, AGREES AND CONSENTS THAT ANY  SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY  COURT TRIAL WITHOUT A JURY, AND THAT MORTGAGOR AND MORTGAGEE  MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 4.22  





 






  29  #4830-9629-2852v7  WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF MORTGAGOR  AND MORTGAGEE TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.1  4.23 Exculpation of Mortgagee.  The acceptance by Mortgagee of the assignment  contained herein with all of the rights, powers, privileges and authority created hereby shall not,  prior to entry upon and taking possession of the Mortgaged Property by Mortgagee, be deemed or  construed to make Mortgagee a “mortgagee in possession”; nor thereafter or at any time or in any  event obligate Mortgagee to appear in or defend any action or proceeding relating to the Leases,  the Rents or the Mortgaged Property, or to take any action hereunder or to expend any money or  incur any expenses or perform or discharge any obligation, duty or liability under any Lease or to  assume any obligation or responsibility for any security deposits or other deposits except to the  extent such deposits are actually received by Mortgagee, nor shall Mortgagee, prior to such entry  and taking, be liable in any way for any injury or damage to person or property sustained by any  Person in or about the Mortgaged Property.  4.24 Insurance Policies.  Wherever provision is made in this Mortgage or the Credit  Agreement for insurance policies to bear mortgage clauses or other loss payable clauses or  endorsements in favor of Mortgagee, or to confer authority upon Mortgagee to settle or participate  in the settlement of losses under policies of insurance or to hold and disburse or otherwise control  use of insurance proceeds, from and after the entry of judgment of foreclosure, all such rights and  powers of Mortgagee shall continue in Mortgagee as judgment creditor or Mortgagee until  confirmation of sale.   ARTICLE FIVE  LOCAL LAW PROVISIONS.    5.1 Principles of Construction.  In the event of any inconsistencies between the terms  and conditions of this Article Five and the terms and conditions of this Mortgage, the terms and  conditions of this Article Five shall control and be binding.  5.2  Maximum Amount Secured; Future Advances.  It is the intent hereof to secure  payment of the Obligations whether the entire amount shall have been advanced to the Mortgagor  or the Mortgagor at the date hereof, or at a later date, and to secure any other amount or amounts  that may be added to the Obligations under the terms of this Mortgage. Pursuant to Fla. Stat.  §697.04, this Mortgage is given to secure not only existing indebtedness, but also future advances  made pursuant to this Mortgage, any notes representing any portion of the Obligations, any loan  agreement or other instrument evidencing or securing the Obligations or as requested by  Mortgagor, whether such advances are obligatory or are to be made at the option of Mortgagee; or  otherwise, as are made within twenty (20) years from the date hereof, to the same extent as if such  future advances are made on the date of the execution of this Mortgage.  The total amount of  Obligations secured hereby at any time outstanding shall not exceed an amount equal to  $350,000,000.00 in principal plus interest thereon and any disbursements made for the payment of  taxes, levies, or insurance on the Property covered by the lien of this Mortgage with interest    1 NTD: Section should be consistent with 10.15 of Credit Agreement.  





 






  30  #4830-9629-2852v7  thereon. Nothing herein contained shall be deemed an obligation on the part of the Mortgagee to  make any future advances except as otherwise provided in the Credit Agreement.  5.3  Limitation of Recovery; Florida Documentary Stamp Tax.  This Mortgage, the  Credit Agreement, and any Notes evidencing the Obligations secured by this Mortgage have been  executed and delivered outside of the State of Florida. Notwithstanding the stated principal amount  of the Obligations as described in this Mortgage, or anything else in the Credit Agreement or other  Loan Documents to the contrary, no more than $350,000,000.00 of the principal amount of the  Obligations plus interest and costs accruing thereof and other obligations secured hereby shall be  recoverable under this Mortgage.  While recovery under this Mortgage for the principal amount of  the Obligations shall be limited to $350,000,000.00, Mortgagee may also recover under this  Mortgage (i) any and  all interest accrued and accruing on the Obligations, and (ii) any and all  advancements made for the payment of any impositions, liens or insurance with respect to the  Property (including all Protective Advances), and all costs of enforcement and other amounts paid  or incurred by Mortgagee or which become due to Mortgagee, from time to time in accordance  with this Mortgage.  The taxable base for payment of the Florida documentary stamp taxes and  nonrecurring intangible taxes due hereon is $350,000,000.00.  Accordingly, documentary stamp  taxes in the amount of $1,225,000.00 and nonrecurring intangibles tax in the amount of  $700,000.00 are being paid upon the recording of this Mortgage.   ARTICLE SIX  MISCELLANEOUS PROVISIONS  6.1 Heirs, Successors and Assigns Included in Parties.  Whenever one of the parties  hereto is named or referred to herein, the heirs, successors and assigns of such party shall be  included and all covenants and agreements contained in this Mortgage, by or on behalf of  Mortgagor or Mortgagee shall bind and inure to the benefit of its heirs, successors and assigns,  whether so expressed or not.  6.2 Addresses for Notices, Etc.  Any notice, report, demand or other instrument  authorized or required to be given or furnished under this Mortgage to Mortgagor or Mortgagee  shall be deemed given or furnished (a) when addressed to the party intended to receive the same,  at the address of such party set forth below, and delivered by hand at such address or (b) three (3)  Business Days after the same is deposited in the United States mail as first class certified mail,  return receipt requested, postage paid:      Mortgagor: Sunseeker Florida, Inc.    1201 N. Town Center     Las Vegas, NV  89144    Attention: Gregory Anderson, CFO    Email: gregory.anderson@allegiantair.com    With a copy to  (for informational  purposes only and  not constituting  





 






  31  #4830-9629-2852v7  notice): Ellis Funk, P.C.  5555 Glenridge Crossing, Suite 675  Atlanta, GA 30342.  Attention:  Rob Goldberg,   Email: rgoldberg@ellisfunk.com    Mortgagee: Wilmington Trust, National Association    50 South Sixth Street, Suite 1290   Minneapolis, Minnesota 55402  Telephone No.:  (612) 217-5645  Email: jjankiewicz@wilmingtontrust.com  Attention:  Jessica A. Jankiewicz, Loan Agency    With a copy to  (for informational  purposes only and  not constituting  notice): Milbank LLP  55 Hudson Yards  New York, New York 10001  Attention: Drew S. Fine, Esq.  Facsimile: (212) 822-5337    Email: dfine@milbank.com    6.3  Change of Notice Address.  Any Person may change the address to which any  such notice, report, demand or other instrument is to be delivered or mailed to that Person, by  furnishing written notice of such change to the other parties, but no such notice of change shall be  effective unless and until received by such other parties.   6.4  Headings.  The headings of the articles, sections, paragraphs and subdivisions of  this Mortgage are for convenience of reference only, are not to be considered a part hereof, and  shall not limit or expand or otherwise affect any of the terms hereof.  6.5  Invalid Provisions to Affect No Others.  In the event that any of the covenants,  agreements, terms or provisions contained herein or in the Notes, the Credit Agreement or any  other Loan Document (including the security documents) shall be invalid, illegal or unenforceable  in any respect, the validity of the lien hereof and the remaining covenants, agreements, terms or  provisions contained herein or in the Notes, the Credit Agreement and other Loan Documents  (including the security documents) shall be in no way affected, prejudiced or disturbed thereby.   The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable  provisions with valid provisions the economic effect of which comes as close as possible to that  of the invalid, illegal or unenforceable provisions.  6.6  Changes and Priority Over Intervening Liens.  Neither this Mortgage nor any  term hereof may be changed, waived, discharged or terminated orally, or by any action or inaction,  but only by an instrument in writing signed by the party against which enforcement of the change,  waiver, discharge or termination is sought.  To the extent permitted by applicable legal  





 






  32  #4830-9629-2852v7  requirements, any agreement hereafter made by Mortgagor and Mortgagee relating to this  Mortgage shall be superior to the rights of the holder of any intervening lien or encumbrance.  6.7 Waiver of Setoff and Counterclaim; Other Waivers.  All Obligations shall be  payable without setoff, counterclaim or any deduction whatsoever.  Mortgagor hereby waives the  right to assert a counterclaim (other than a compulsory counterclaim) in any action or proceeding  brought against it by Mortgagee and/or any other Secured Party under the Loan Documents or  arising out of or in any way connected with this Mortgage, the other Loan Documents, or the  Obligations.    6.8 Governing Law.  THE CREDIT AGREEMENT, THE NOTES AND THE  OTHER LOAN DOCUMENTS PROVIDE THAT EACH IS CONSTRUED IN ACCORDANCE  WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.  THIS  MORTGAGE AND THE RIGHTS AND OBLIGATIONS OF THE MORTGAGOR,  MORTGAGEE, AND THE SECURED PARTIES HEREUNDER SHALL ALSO BE  CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE  STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS  THAT WOULD RESULT IN THE APPLICATION OF LAWS OTHER THAN THE LAWS OF  THE STATE OF NEW YORK); PROVIDED, HOWEVER, THAT (A) THE TERMS AND  PROVISIONS OF THIS MORTGAGE PERTAINING TO THE CREATION, PRIORITY,  PERFECTION, ENFORCEMENT OR REALIZATION BY MORTGAGEE OF ITS  RESPECTIVE RIGHTS AND REMEDIES UNDER THIS MORTGAGE WITH RESPECT TO  THE MORTGAGED PROPERTY (OTHER THAN FOR PERSONAL PROPERTY) SHALL BE  GOVERNED AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE  INTERNAL LAWS OF THE STATE OF FLORIDA (THE “STATE”) WITHOUT GIVING  EFFECT TO THE CONFLICTS-OF-LAW RULES AND PRINCIPLES OF THE STATE; (B)  FOR PERSONAL PROPERTY, THE PERFECTION, EFFECT OF PERFECTION OR NON- PERFECTION AND PRIORITY OF THE SECURITY INTEREST SHALL BE SUBJECT TO  ANY MANDATORY CHOICE OF LAW RULES IN THE UCC; (C) MORTGAGOR AGREES  THAT TO THE EXTENT DEFICIENCY JUDGMENTS ARE AVAILABLE UNDER THE  LAWS OF THE STATE AFTER A FORECLOSURE (JUDICIAL OR NON-JUDICIAL) OF  THE MORTGAGED PROPERTY, OR ANY PORTION THEREOF, OR ANY OTHER  REALIZATION THEREON BY MORTGAGEE OR ANY OTHER SECURED PARTY UNDER  THE LOAN DOCUMENTS, MORTGAGEE OR SUCH SECURED PARTY, AS THE CASE  MAY BE, SHALL HAVE THE RIGHT TO SEEK SUCH A DEFICIENCY JUDGMENT  AGAINST MORTGAGOR IN THE STATE; AND (D) MORTGAGOR AGREES THAT IF  MORTGAGEE OR ANY OTHER SECURED PARTY UNDER THE LOAN DOCUMENTS  OBTAINS A DEFICIENCY JUDGMENT IN ANOTHER STATE AGAINST MORTGAGOR,  THEN MORTGAGEE OR SUCH SECURED PARTY, AS THE CASE MAY BE, SHALL HAVE  THE RIGHT TO ENFORCE SUCH JUDGMENT IN THE STATE TO THE EXTENT  PERMITTED UNDER THE LAWS OF THE STATE, AS WELL AS IN OTHER STATES.  6.9 Intentionally omitted.    6.10 Right of Entry.  Mortgagee may make or cause to be made entry upon and  inspections of the Mortgaged Property or any part thereof in person or by agent as provided in the  Credit Agreement and the other Loan Documents.  





 






  33  #4830-9629-2852v7  6.11 Corrections.  Mortgagor shall, upon reasonable request of Mortgagee, promptly  correct any defect, error or omission which may be discovered in the contents of this Mortgage  (including, but not limited to, in the exhibits and schedules attached hereto) or in the execution or  acknowledgement hereof, and shall execute, acknowledge and deliver such further instruments  and do such further acts as may be reasonably necessary or as may be reasonably requested by  Mortgagee to carry out more effectively the purposes of this Mortgage, to subject to the lien and  security interest hereby created any of Mortgagor’s properties, rights or interest covered or  intended to be covered hereby, and to perfect and maintain such lien and security interest.  6.12 Statute of Limitations.  To the fullest extent allowed by applicable legal  requirements, the right to plead, use or assert any statute of limitations as a plea or defense or bar  of any kind, or for any purpose, to any debt, demand or obligation secured or to be secured hereby,  or to any complaint or other pleading or proceeding filed, instituted or maintained for the purpose  of enforcing this Mortgage or any rights hereunder, is hereby waived by Mortgagor.  6.13 Subrogation.  Should the proceeds of any loan or advance made by Mortgagee or  any Lender under the Credit Agreement or any other Loan Document, repayment of which is  hereby secured, or any part thereof, or any amount paid out or advanced by Mortgagee or any  Lender under the Credit Agreement or any other Loan Document, be used directly or indirectly to  pay off, discharge, or satisfy, in whole or in part, any prior or superior lien or encumbrance upon  the Mortgaged Property, or any part thereof, then, as additional security hereunder, Mortgagee  shall be subrogated to any and all rights, superior titles, liens, and equities owned or claimed by  any owner or holder of said outstanding liens, charges, and indebtedness, however remote,  regardless of whether said liens, charges, and indebtedness are acquired by assignment or have  been released of record by the holder thereof upon payment.  6.14 Reinstatement.  This Mortgage, the obligations of Mortgagor hereunder, and the  liens, rights, powers and remedies of Mortgagee hereunder, shall continue to be effective, or be  automatically reinstated, as the case may be, if at any time any amount applied to the payment of  any of the Obligations is rescinded or must otherwise be restored or returned to Mortgagor, or any  other Person (or paid to the creditors of any of them, or to any custodian, receiver, or other officer  with similar powers with respect to any of them, or with respect to any part of their property) upon  the Insolvency, Bankruptcy, dissolution, liquidation or reorganization of Mortgagor, or any such  Person, or upon or as a result of the appointment of a custodian, receiver, trustee or other officer  with respect to any of them, or with respect to any part of their property, or otherwise, all as though  such payment had not been made.  6.15 No Waiver.  The exercise of the privileges granted in this Mortgage to perform  Mortgagor’s obligations under the agreements which constitute part of the Mortgaged Property  shall in no event be considered or constitute a waiver of any right which Mortgagee may have at  any time, after an Event of Default shall have occurred and be continuing, to declare the  Obligations to be immediately due and payable.  6.16 Extension, Rearrangement or Renewal of Obligations.  It is expressly agreed  that any of the Obligations at any time secured hereby may be from time to time extended for any  period, or with the consent of Mortgagor rearranged or renewed, and that any part of the security  herein described, or any other security for the Obligations, may be waived or released, without  





 






  34  #4830-9629-2852v7  altering, varying or diminishing the force, effect or lien or security interest of this Mortgage, except  as may be expressly set forth in a written agreement executed by Mortgagee; and the lien and  security interest granted by this Mortgage shall continue as a prior lien and security interest on all  of the Mortgaged Property not expressly so released until the Obligations are fully paid and this  Mortgage is terminated in accordance with the provisions hereof; and no other security now  existing or hereafter taken to secure the payment of the Obligations or any part thereof or the  performance of any obligation or liability of Mortgagor whatsoever shall in any manner impair or  affect the security given by this Mortgage; and all security for the payment of the Obligations or  any part thereof and the performance of any obligation or liability shall be taken, considered and  held as cumulative.  6.17 Forcible Detainer.  If and to the extent permitted by applicable legal requirements,  Mortgagor agrees for itself and all Persons claiming by, through or under it, that subsequent to  foreclosure hereunder in accordance with this Mortgage and applicable legal requirements, if  Mortgagor shall hold possession of the Mortgaged Property or any part thereof, Mortgagor or the  Persons so holding possession shall be guilty of trespass; and any such Person (including  Mortgagor) failing or refusing to surrender possession upon demand shall be guilty of forcible  detainer and shall be liable to Mortgagee or any purchaser in foreclosure, as applicable, for  reasonable rental on said premises, and shall be subject to eviction and removal in accordance with  applicable legal requirements.  6.18 Waiver of Stay or Extension.  If and to the extent permitted to be waived by  applicable legal requirements, Mortgagor shall not at any time insist upon or plead or in any  manner whatever claim the benefit or advantage of any stay, extension or moratorium law now or  at any time hereafter in force in any locality where the Mortgaged Property or any part thereof may  or shall be situated, nor shall Mortgagor claim any benefit or advantage from any law now or  hereafter in force providing for the valuation or appraisement of the Mortgaged Property or any  part thereof prior to any sale thereof to be made pursuant to any provision of this Mortgage or to a  decree of any court of competent jurisdiction, nor after any such sale shall Mortgagor claim or  exercise any right conferred by any law now or at any time hereafter in force to redeem the  Mortgaged Property so sold or any part thereof; and Mortgagor hereby expressly waives all benefit  or advantage of any such law or laws and the appraisement of the Mortgaged Property or any part  thereof, and covenants that Mortgagor shall not hinder or delay the execution of any power herein  granted and delegated to Mortgagee but that Mortgagor shall permit the execution of every such  power as though no such law had been made.  6.19 Application of Payments.  In the event that any part of the Obligations cannot  lawfully be secured hereby, or in the event that the lien and security interest hereof cannot be  lawfully enforced to pay any part of the Obligations, or in the event that the lien or security interest  created by this Mortgage shall be invalid or unenforceable as to any part of the Obligations, then  all payments on the Obligations shall be deemed to have been first applied to the complete payment  and liquidation of that part of the Obligations which is not secured by this Mortgage and the  unsecured portion of the Obligations shall be completely paid and liquidated prior to the payment  and liquidation of the remaining secured portion of the Obligations.  6.20 Reduction of Secured Amount.  In the event that the amount secured by this  Mortgage is less than the Obligations, then the amount secured shall be reduced only by the last  





 






  35  #4830-9629-2852v7  and final sums that Mortgagor repays with respect to the Obligations and shall not be reduced by  any intervening repayments of the Obligations unless arising from the Mortgaged Property.  So  long as the balance of the Obligations exceeds the amount secured, any payments of the  Obligations shall not be deemed to be applied against, or to reduce, the portion of the Obligations  secured by this Mortgage.  Such payments shall instead be deemed to reduce only such portions  of the Obligations as are secured by other collateral located outside of the state in which the  Mortgaged Property is located or as are unsecured.  6.21 Renewal; Etc.  Mortgagee may at any time and from time to time renew or extend  this Mortgage, or alter or modify the same in any way, or waive any of the terms, covenants or  conditions hereof in whole or in part and may release any portion of the Mortgaged Property or  any other security, and grant such extensions and indulgences in relation to the Obligations as  Mortgagee may determine, without the consent of any junior lienor or encumbrancer and without  any obligation to give notice of any kind thereto and without in any manner affecting the priority  of the lien and security interest hereof on any part of the Mortgaged Property; provided that nothing  in this Section 6.21 shall grant Mortgagee the right to alter or modify this Mortgage without the  consent of Mortgagor unless otherwise specifically permitted in this Mortgage.  6.22 Compliance With Usury Law.  The Loan Documents are intended to be performed  in accordance with, and only to the extent permitted by, all applicable legal requirements and  Mortgagor warrants and represents that the Loan is being made for business or investment  purposes.  It is expressly stipulated and agreed to be the intent of Mortgagor and Mortgagee at all  times to comply with the applicable New York and Florida law governing the maximum rate or  amount of interest payable on or in connection with the Obligations (or applicable United States  federal law to the extent that it permits Mortgagee to contract for, charge, take, reserve or receive  a greater amount of interest than under New York and Florida law).  If any applicable legal  requirement is ever judicially interpreted so as to render usurious any amount called for under the  Loan Documents, or contracted for, charged, taken, reserved or received with respect to the  extension of credit evidenced by the Loan Documents or if acceleration of the maturity of the  Obligations or if any prepayment by Mortgagor results in Mortgagor having paid any interest in  excess of that permitted by applicable legal requirements, then it is Mortgagor’s and Mortgagee’s  express intent that all excess amounts theretofore collected by Mortgagee be credited on the  principal balance due under the Loan Documents (or, if the Loan Documents have been or would  thereby be paid in full, refunded to Mortgagor), without payment of any fee, premium or penalty,  and the provisions of the Loan Documents immediately be deemed reformed and the amounts  thereafter collectible thereunder reduced, without the necessity of the execution of any new  document, so as to comply with the applicable legal requirement, but so as to permit the recovery  of the fullest amount otherwise called for hereunder and thereunder.  The right to accelerate  maturity of Obligations does not include the right to accelerate any interest which has not otherwise  accrued on the date of such acceleration, and Mortgagee does not intend to collect any unearned  interest in the event of acceleration.  All sums paid or agreed to be paid to Mortgagee for the use,  forbearance or detention of the Obligations shall, to the extent permitted by applicable legal  requirements, be amortized, prorated, allocated and spread throughout the full term of the  Obligations until payment in full so that the rate or amount of interest on account of the Obligations  does not exceed the applicable usury ceiling.    





 






  36  #4830-9629-2852v7  6.23 Entire Agreement.  This Mortgage, together with any other agreement executed  in connection herewith, is intended by the parties as a final expression of their agreement and is  intended as a complete and exclusive statement of the terms and conditions thereof.  There are no  unwritten oral agreements between the parties.   6.24 Time.  Time is of the essence of this Mortgage.  6.25 Third Party Rights.  Nothing in this Mortgage, expressed or implied, is intended  or shall be construed to confer upon, or give to any Person, other than Mortgagor, Mortgagee and  the other Secured Parties, any security, rights, remedies or claims, legal or equitable, under or by  reason hereof, or any covenant or condition hereof; and this Mortgage and the covenants and  agreements herein contained are and shall be held to be for the sole and exclusive benefit of  Mortgagor, Mortgagee and the other Secured Parties.  6.26 Context.  In this Mortgage, whenever the context so requires, the neuter includes  the masculine and feminine, and the singular includes the plural, and vice versa.  6.27 Calendar Days.  Unless otherwise specified herein, any reference to “days” in this  Mortgage shall be deemed to mean “calendar days.”  6.28 Covenants Running with the Land.  All grants, covenants, terms, provisions and  conditions contained in this Mortgage are intended by Mortgagor and Mortgagee to be, and shall  be construed as, covenants running with the Land.  As used herein, “Mortgagor” shall refer to the  party named in the first paragraph of this Mortgage and to any subsequent owner of all or any  portion of the Mortgaged Property.  6.29 Mortgagee as Agent.  Mortgagee has been appointed to act as Administrative  Agent by the other Secured Parties pursuant to the Credit Agreement.  Mortgagee shall have the  right hereunder to make demands, to give notices, to exercise or refrain from exercising any rights,  and to take or refrain from taking any action (including, without limitation, the release or  substitution of the Mortgaged Property) in accordance with the terms of the Credit Agreement and  other applicable Loan Documents and this Mortgage.  Mortgagor and all other Persons shall be  entitled to rely on releases, satisfactions, waivers, consents, approvals, notifications and other acts  of Mortgagee, without inquiry into the existence of required consents or approvals of the Secured  Parties therefor.  6.30 Relationship.  The relationship of Mortgagee to Mortgagor hereunder is strictly  and solely that of creditor and debtor and mortgagee and mortgagor and nothing contained in the  Credit Agreement, this Mortgage or any other document or instrument now existing and delivered  in connection therewith or otherwise in connection with the Obligations is intended to create, or  shall in any event or under any circumstance be construed as creating, a partnership, joint venture,  tenancy-in-common, joint tenancy or other relationship of any nature whatsoever between  Mortgagee and Mortgagor other than as creditor and debtor and mortgagee and mortgagor.  6.31 Jurisdiction; Consent to Service of Process.    (a) Mortgagor hereby irrevocably and unconditionally submits, for itself and  its property, to the jurisdiction of any New York State court or federal court of the United States  





 






  37  #4830-9629-2852v7  of America sitting in New York County, Borough of Manhattan, and any appellate court from any  thereof, in any action or proceeding arising out of or relating to this Mortgage, or for recognition  or enforcement of any judgment, and Mortgagor hereby irrevocably and unconditionally agrees  that all claims in respect of any such action or proceeding may be heard and determined in such  New York State court or, to the extent permitted by applicable legal requirements, in such federal  court; provided that at the option of the Mortgagee, Mortgagee may commence a suit or action  against Mortgagor in a Florida state court or a federal court of the United States of America sitting  in the State of Florida to foreclose the Lien of this Mortgage or enforce the Obligations in  connection herewith.  Mortgagor agrees that a final judgment in any such action or proceeding  shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any  other manner provided by applicable legal requirements.  (b) Mortgagor hereby irrevocably and unconditionally waives, to the fullest  extent it may legally and effectively do so, any objection which it may now or hereafter have to  the laying of venue of any suit, action or proceeding arising out of or relating to this Mortgage or  any other applicable Loan Document or for recognition or enforcement of any judgment in any  New York State or federal court of the United States of America sitting in New York County,  Borough of Manhattan, and any appellate court from any thereof.  Mortgagor hereby irrevocably  waives, to the fullest extent permitted by applicable legal requirements, the defense of an  inconvenient forum to the maintenance of such suit, action or proceeding in any such court.  Mortgagor irrevocably designates and appoints Christy Schaeffer, Managing Clerk, Greenberg  Traurig, LLP, Office #39-60, Metlife Building, 200 Park Avenue, New York, New York 10166   as its authorized agent to accept and acknowledge on its behalf personal service of process which  may be served in any suit, action or proceeding in the aforesaid New York state or Federal courts,  and agrees that service of process upon said agent in accordance with law at said address and  written notice of said service mailed or delivered to Borrower in the manner provided herein shall  be deemed in every respect effective service of process upon Borrower in any such suit, action or  proceeding.  6.32 Interpretation.  As used in this Mortgage unless the context clearly requires  otherwise: The terms “herein” or “hereunder” and similar terms without reference to a particular  section shall refer to the entire Mortgage and not just to the section in which such terms appear;  the term “lien” shall also mean a security interest, and the term “security interest” shall also mean  a lien.        [THE REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY; SIGNATURES  APPEAR ON THE FOLLOWING PAGE]  





 






 





 






  Schedule A  #4830-9629-2852v7  SCHEDULE A  DESCRIPTION OF THE LAND    A PORTION OF LASTINGERS ADDITION TO CHARLOTTE HARBOR, ACCORDING TO THE  PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 22, OF THE PUBLIC RECORDS OF  CHARLOTTE COUNTY, FLORIDA AND A PORTION OF CHARLOTTE HARBOR SUBDIVISION,  ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 29, OF THE  PUBLIC RECORDS OF CHARLOTTE COUNTY, FLORIDA AND A PORTION OF SECTION 36,  TOWNSHIP 40 SOUTH, RANGE 22 EAST, CHARLOTTE COUNTY, FLORIDA, BEING MORE  SPECIFICALLY DESCRIBED AS FOLLOWS:    COMMENCING AT THE SOUTHWEST CORNER OF BLOCK 12, SAID CHARLOTTE HARBOR  SUBDIVISION; THENCE S.70°29'22"E. ALONG THE NORTH RIGHT-OF-WAY LINE OF FRONT  AVENUE (80 FEET WIDE) AS SHOWN ON SAID PLAT FOR 361.27 FEET (FOR A BASIS OF  BEARINGS) TO THE POINT OF BEGINNING; THENCE N.79°10'29"E. FOR 267.98 FEET; THENCE  S.38°52'16"E. FOR 227.30 FEET; THENCE S.01°28'20"E. FOR 108.50 FEET; THENCE N.88°31'40"E.  FOR 71.29 FEET; TO THE BEGINNING OF A NON-TANGENT CURVE TO THE LEFT HAVING A  RADIUS OF 28.94 FEET, A DELTA ANGLE OF 66°08'56", A CHORD BEARING OF N.74°41'27"E.,  AND A CHORD DISTANCE OF 31.58 FEET; THENCE ALONG THE ARC OF SAID CURVE FOR  33.41 FEET TO THE BEGINNING OF A REVERSE CURVE TO THE RIGHT HAVING A RADIUS  OF 281.35 FEET, A DELTA ANGLE OF 11°21'28", A CHORD BEARING OF N.47°17'43"E., AND A  CHORD DISTANCE OF 55.68 FEET; THENCE ALONG THE ARC OF SAID CURVE FOR 55.77  FEET TO THE BEGINNING OF A REVERSE CURVE TO THE LEFT HAVING A RADIUS OF 20.00  FEET, A DELTA ANGLE OF 48°50'41", A CHORD BEARING N.28°33'06"E., AND A CHORD  DISTANCE OF 16.54 FEET; THENCE ALONG THE ARC OF SAID CURVE FOR 17.05 FEET;  THENCE N.51°07'24"E. FOR 29.41 FEET; THENCE S.38°56'52"E. FOR 3.26 FEET TO THE  BEGINNING OF A NON-TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 10.03 FEET,  A DELTA ANGLE OF 77°06'13", A CHORD BEARING OF S.77°33'08"E., AND A CHORD  DISTANCE OF 12.50 FEET; THENCE ALONG THE ARC OF SAID CURVE FOR 13.50 FEET TO  THE BEGINNING OF A REVERSE CURVE TO THE RIGHT HAVING A RADIUS OF 291.31 FEET,  A DELTA ANGLE OF 07°19'24", A CHORD BEARING OF N.67°33'27"E., AND A CHORD  DISTANCE OF 37.21 FEET; THENCE ALONG THE ARC OF SAID CURVE FOR 37.23 FEET TO  THE BEGINNING OF A REVERSE CURVE TO THE LEFT HAVING A RADIUS OF 149.90 FEET,  DELTA ANGLE OF 20°05'26", A CHORD BEARING N.61°10'27"E., AND A CHORD DISTANCE OF  52.29 FEET; THENCE ALONG THE ARC OF SAID CURVE FOR 52.56 FEET; THENCE  N.51°07'44"E. FOR 18.82 FEET; THENCE N.38°52'16"W. FOR 51.41 FEET; THENCE N.51°07'32"E.  FOR 21.00 FEET; THENCE N.38°52'28"W. FOR 42.00 FEET; THENCE N.51°07'44"E. FOR 25.27  FEET TO THE SOUTHWEST RIGHT-OF-WAY LINE OF U.S. HIGHWAY #41 (STATE ROAD #45  TAMIAMI TRAIL 200' WIDE); THENCE ALONG SAID SOUTHWEST RIGHT-OF-WAY LINE FOR  THE FOLLOWING 3 COURSES: S.38°52'16"E. FOR 1319.50 FEET; THENCE S.51°07'44"W. FOR  25.00 FEET; THENCE S.38°52'16"E. FOR 150.00 FEET TO THE SOUTHEAST BOUNDARY OF  LANDS DESCRIBED IN OFFICIAL RECORDS BOOK 2439, PAGE 1746, PUBLIC RECORDS OF  CHARLOTTE COUNTY; THENCE S.51°07'44"W. ALONG SAID SOUTHEAST BOUNDARY FOR  125.00 FEET TO THE SOUTHWEST BOUNDARY OF SAID LANDS DESCRIBED IN OFFICIAL  RECORDS BOOK 2439, PAGE 1746; THENCE N.38°52'35"W. ALONG SAID SOUTHWEST  BOUNDARY FOR 150.00 FEET TO THE WESTERNMOST CORNER OF LANDS DESCRIBED IN  SAID OFFICIAL RECORDS BOOK 2439, PAGE 1746; SAID POINT ALSO BEING THE  SOUTHERNMOST CORNER OF LANDS DESCRIBED IN O.R. BOOK 281, PG. 390; THENCE  N.54°51'08"W. ALONG THE SOUTHWEST BOUNDARY OF LANDS DESCRIBED IN O.R. BOOK  281, PG. 390 AND O.R. BOOK 284, PG. 441, A DISTANCE OF 312.06 FEET TO THE  





 






  Schedule A  #4830-9629-2852v7  WESTERNMOST CORNER OF LANDS DESCRIBED IN O.R. BOOK 284, PG. 441; THENCE  N.51°07'44"E. ALONG THE NORTHWEST BOUNDARY OF SAID LANDS DESCRIBED IN O.R.  BOOK 284, PG. 441, A DISTANCE OF 116.94 FEET TO THE MEAN HIGH WATER LINE OF  CHARLOTTE HARBOR (ELEVATION = 0.11 FEET NORTH AMERICAN VERTICAL DATUM OF  1988); THENCE ALONG SAID MEAN HIGH WATER LINE THE FOLLOWING COURSES:  THENCE N.36°58'24"W. FOR 25.28 FEET; THENCE N.35°49'04"W. FOR 27.01 FEET; THENCE  N.39°36'44"W. FOR 27.37 FEET; THENCE N.39°08'58"W. FOR 27.96 FEET; THENCE  N.43°41'59"W. FOR 26.93 FEET; THENCE N.44°00'33"W. FOR 27.61 FEET; THENCE  N.45°59'20"W. FOR 27.05 FEET; THENCE N.44°17'34"W. FOR 26.36 FEET; THENCE  N.50°56'54"W. FOR 26.59 FEET; THENCE N.51°50'10"W. FOR 27.56 FEET; THENCE  N.53°02'45"W. FOR 26.56 FEET; THENCE N.56°41'59"W. FOR 16.11 FEET; THENCE  N.60°13'22"W. FOR 28.86 FEET; THENCE N.48°04'45"W. FOR 26.27 FEET; THENCE  N.52°56'34"W. FOR 25.46 FEET; THENCE N.56°24'22"W. FOR 27.24 FEET; THENCE  N.58°05'23"W. FOR 25.86 FEET; THENCE N.57°27'00"W. FOR 25.71 FEET; THENCE  N.62°42'18"W. FOR 26.11 FEET; THENCE N.66°17'54"W. FOR 26.00 FEET; THENCE  N.74°37'47"W. FOR 29.46 FEET; THENCE N.84°13'31"W. FOR 9.78 FEET; THENCE S.78°15'04"W.  FOR 21.18 FEET; THENCE S.20°12'00"W. FOR 86.19 FEET; THENCE N.70°46'31"W. FOR 4.20  FEET; THENCE N.26°03'04"E. FOR 0.88 FEET; THENCE N.65°39'51"W. FOR 38.06 FEET; THENCE  N.65°28'49"W. FOR 58.38 FEET; THENCE N.65°38'13"W. FOR 111.21 FEET; THENCE  N.65°27'22"W. FOR 68.88 FEET; THENCE N.24°20'37"E. FOR 3.00 FEET; THENCE N.48°22'22"W.  FOR 30.05 FEET; THENCE N.53°16'08"W. FOR 26.99 FEET; THENCE N.55°19'47"W. FOR 25.39  FEET; THENCE N.54°47'11"W. FOR 26.56 FEET; THENCE N.53°13'24"W. FOR 29.21 FEET;  THENCE N.55°43'46"W. FOR 27.04 FEET; THENCE N.56°25'21"W. FOR 27.16 FEET; THENCE  N.53°08'34"W. FOR 28.01 FEET; THENCE N.54°57'09"W. FOR 26.68 FEET; THENCEA PORTION  OF LASTINGERS ADDITION TO CHARLOTTE HARBOR, ACCORDING TO THE PLAT  THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 22, OF THE PUBLIC RECORDS OF  CHARLOTTE COUNTY, FLORIDA AND A PORTION OF CHARLOTTE HARBOR SUBDIVISION,  ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 29, OF THE  PUBLIC RECORDS OF CHARLOTTE COUNTY, FLORIDA AND A PORTION OF SECTION 36,  TOWNSHIP 40 SOUTH, RANGE 22 EAST, CHARLOTTE COUNTY, FLORIDA, BEING MORE  SPECIFICALLY DESCRIBED AS FOLLOWS:    COMMENCING AT THE SOUTHWEST CORNER OF BLOCK 12, SAID CHARLOTTE HARBOR  SUBDIVISION; THENCE S.70°29'22"E. ALONG THE NORTH RIGHT-OF-WAY LINE OF FRONT  AVENUE (80 FEET WIDE) AS SHOWN ON SAID PLAT FOR 361.27 FEET (FOR A BASIS OF  BEARINGS) TO THE POINT OF BEGINNING; THENCE N.79°10'29"E. FOR 267.98 FEET; THENCE  S.38°52'16"E. FOR 227.30 FEET; THENCE S.01°28'20"E. FOR 108.50 FEET; THENCE N.88°31'40"E.  FOR 71.29 FEET; TO THE BEGINNING OF A NON-TANGENT CURVE TO THE LEFT HAVING A  RADIUS OF 28.94 FEET, A DELTA ANGLE OF 66°08'56", A CHORD BEARING OF N.74°41'27"E.,  AND A CHORD DISTANCE OF 31.58 FEET; THENCE ALONG THE ARC OF SAID CURVE FOR  33.41 FEET TO THE BEGINNING OF A REVERSE CURVE TO THE RIGHT HAVING A RADIUS  OF 281.35 FEET, A DELTA ANGLE OF 11°21'28", A CHORD BEARING OF N.47°17'43"E., AND A  CHORD DISTANCE OF 55.68 FEET; THENCE ALONG THE ARC OF SAID CURVE FOR 55.77  FEET TO THE BEGINNING OF A REVERSE CURVE TO THE LEFT HAVING A RADIUS OF 20.00  FEET, A DELTA ANGLE OF 48°50'41", A CHORD BEARING N.28°33'06"E., AND A CHORD  DISTANCE OF 16.54 FEET; THENCE ALONG THE ARC OF SAID CURVE FOR 17.05 FEET;  THENCE N.51°07'24"E. FOR 29.41 FEET; THENCE S.38°56'52"E. FOR 3.26 FEET TO THE  BEGINNING OF A NON-TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 10.03 FEET,  A DELTA ANGLE OF 77°06'13", A CHORD BEARING OF S.77°33'08"E., AND A CHORD  DISTANCE OF 12.50 FEET; THENCE ALONG THE ARC OF SAID CURVE FOR 13.50 FEET TO  THE BEGINNING OF A REVERSE CURVE TO THE RIGHT HAVING A RADIUS OF 291.31 FEET,  





 






  Schedule A  #4830-9629-2852v7  A DELTA ANGLE OF 07°19'24", A CHORD BEARING OF N.67°33'27"E., AND A CHORD  DISTANCE OF 37.21 FEET; THENCE ALONG THE ARC OF SAID CURVE FOR 37.23 FEET TO  THE BEGINNING OF A REVERSE CURVE TO THE LEFT HAVING A RADIUS OF 149.90 FEET,  DELTA ANGLE OF 20°05'26", A CHORD BEARING N.61°10'27"E., AND A CHORD DISTANCE OF  52.29 FEET; THENCE ALONG THE ARC OF SAID CURVE FOR 52.56 FEET; THENCE  N.51°07'44"E. FOR 18.82 FEET; THENCE N.38°52'16"W. FOR 51.41 FEET; THENCE N.51°07'32"E.  FOR 21.00 FEET; THENCE N.38°52'28"W. FOR 42.00 FEET; THENCE N.51°07'44"E. FOR 25.27  FEET TO THE SOUTHWEST RIGHT-OF-WAY LINE OF U.S. HIGHWAY #41 (STATE ROAD #45  TAMIAMI TRAIL 200' WIDE); THENCE ALONG SAID SOUTHWEST RIGHT-OF-WAY LINE FOR  THE FOLLOWING 3 COURSES: S.38°52'16"E. FOR 1319.50 FEET; THENCE S.51°07'44"W. FOR  25.00 FEET; THENCE S.38°52'16"E. FOR 150.00 FEET TO THE SOUTHEAST BOUNDARY OF  LANDS DESCRIBED IN OFFICIAL RECORDS BOOK 2439, PAGE 1746, PUBLIC RECORDS OF  CHARLOTTE COUNTY; THENCE S.51°07'44"W. ALONG SAID SOUTHEAST BOUNDARY FOR  125.00 FEET TO THE SOUTHWEST BOUNDARY OF SAID LANDS DESCRIBED IN OFFICIAL  RECORDS BOOK 2439, PAGE 1746; THENCE N.38°52'35"W. ALONG SAID SOUTHWEST  BOUNDARY FOR 150.00 FEET TO THE WESTERNMOST CORNER OF LANDS DESCRIBED IN  SAID OFFICIAL RECORDS BOOK 2439, PAGE 1746; SAID POINT ALSO BEING THE  SOUTHERNMOST CORNER OF LANDS DESCRIBED IN O.R. BOOK 281, PG. 390; THENCE  N.54°51'08"W. ALONG THE SOUTHWEST BOUNDARY OF LANDS DESCRIBED IN O.R. BOOK  281, PG. 390 AND O.R. BOOK 284, PG. 441, A DISTANCE OF 312.06 FEET TO THE  WESTERNMOST CORNER OF LANDS DESCRIBED IN O.R. BOOK 284, PG. 441; THENCE  N.51°07'44"E. ALONG THE NORTHWEST BOUNDARY OF SAID LANDS DESCRIBED IN O.R.  BOOK 284, PG. 441, A DISTANCE OF 116.94 FEET TO THE MEAN HIGH WATER LINE OF  CHARLOTTE HARBOR (ELEVATION = 0.11 FEET NORTH AMERICAN VERTICAL DATUM OF  1988); THENCE ALONG SAID MEAN HIGH WATER LINE THE FOLLOWING COURSES:  THENCE N.36°58'24"W. FOR 25.28 FEET; THENCE N.35°49'04"W. FOR 27.01 FEET; THENCE  N.39°36'44"W. FOR 27.37 FEET; THENCE N.39°08'58"W. FOR 27.96 FEET; THENCE  N.43°41'59"W. FOR 26.93 FEET; THENCE N.44°00'33"W. FOR 27.61 FEET; THENCE  N.45°59'20"W. FOR 27.05 FEET; THENCE N.44°17'34"W. FOR 26.36 FEET; THENCE  N.50°56'54"W. FOR 26.59 FEET; THENCE N.51°50'10"W. FOR 27.56 FEET; THENCE  N.53°02'45"W. FOR 26.56 FEET; THENCE N.56°41'59"W. FOR 16.11 FEET; THENCE  N.60°13'22"W. FOR 28.86 FEET; THENCE N.48°04'45"W. FOR 26.27 FEET; THENCE  N.52°56'34"W. FOR 25.46 FEET; THENCE N.56°24'22"W. FOR 27.24 FEET; THENCE  N.58°05'23"W. FOR 25.86 FEET; THENCE N.57°27'00"W. FOR 25.71 FEET; THENCE  N.62°42'18"W. FOR 26.11 FEET; THENCE N.66°17'54"W. FOR 26.00 FEET; THENCE  N.74°37'47"W. FOR 29.46 FEET; THENCE N.84°13'31"W. FOR 9.78 FEET; THENCE S.78°15'04"W.  FOR 21.18 FEET; THENCE S.20°12'00"W. FOR 86.19 FEET; THENCE N.70°46'31"W. FOR 4.20  FEET; THENCE N.26°03'04"E. FOR 0.88 FEET; THENCE N.65°39'51"W. FOR 38.06 FEET; THENCE  N.65°28'49"W. FOR 58.38 FEET; THENCE N.65°38'13"W. FOR 111.21 FEET; THENCE  N.65°27'22"W. FOR 68.88 FEET; THENCE N.24°20'37"E. FOR 3.00 FEET; THENCE N.48°22'22"W.  FOR 30.05 FEET; THENCE N.53°16'08"W. FOR 26.99 FEET; THENCE N.55°19'47"W. FOR 25.39  FEET; THENCE N.54°47'11"W. FOR 26.56 FEET; THENCE N.53°13'24"W. FOR 29.21 FEET;  THENCE N.55°43'46"W. FOR 27.04 FEET; THENCE N.56°25'21"W. FOR 27.16 FEET; THENCE  N.53°08'34"W. FOR 28.01 FEET; THENCE N.54°57'09"W. FOR 26.68 FEET; THENCE  N.56°23'10"W. FOR 49.93 FEET; THENCE N.59°33'36"W. FOR 12.13 FEET; THENCE  N.55°31'48"W. FOR 11.25 FEET; THENCE N.66°32'58"W. FOR 12.17 FEET; THENCE  N.58°00'30"W. FOR 11.72 FEET; THENCE N.67°07'36"W. FOR 10.66 FEET; THENCE  N.50°01'57"W. FOR 12.48 FEET; THENCE N.60°39'06"W. FOR 13.38 FEET; THENCE  N.62°54'55"W. FOR 11.21 FEET; THENCE N.60°42'26"W. FOR 10.39 FEET; THENCE  N.70°25'28"W. FOR 11.68 FEET; THENCE N.52°55'58"W. FOR 12.10 FEET; THENCE  N.59°10'32"W. FOR 11.90 FEET; THENCE N.77°51'34"W. FOR 13.40 FEET; THENCE S.75°17'09"W.  





 






  Schedule A  #4830-9629-2852v7  FOR 28.64 FEET; THENCE S.74°07'10"W. FOR 8.69 FEET; THENCE N.46°50'34"W. FOR 11.63  FEET; THENCE N.46°06'08"W. FOR 11.70 FEET; THENCE N.43°02'36"W. FOR 10.63 FEET;  THENCE N.73°52'09"W. FOR 8.71 FEET; THENCE N.65°50'16"W. FOR 9.67 FEET; THENCE  S.58°14'01"W. FOR 11.67 FEET TO A POINT ON THE WEST LINE OF LOT 4, BLOCK 2, OF SAID  CHARLOTTE HARBOR SUBDIVISION; THENCE N.19°16'28"E. LEAVING SAID MEAN HIGH  WATER LINE AND ALONG THE WEST LINE OF SAID LOT 4, FOR 140.85 FEET TO THE  NORTHWEST CORNER OF SAID LOT 4; THENCE N.17°13'22"W. FOR 99.82 FEET TO THE  SOUTHWEST CORNER OF BLOCK 13, OF SAID CHARLOTTE HARBOR SUBDIVISION;  THENCE N.70°29'22"W. ALONG THE NORTH RIGHT-OF-WAY OF SAID FRONT AVENUE FOR  31.68 FEET TO THE POINT OF BEGINNING.