Exhibit 10.493


 


Prepared by and
return to:


Darrell D. Garvey,
Esquire


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


450 South Orange
Avenue, Suite 800


Orlando, Florida 32801


 


	
   

  	
  Borrower Name:

  	
  Inland Western Viera Lake Andrew, L.L.C. 

  
	
   

  	
  Project Name:

  	
  Shoppes at Lake Andrew

  Viera, Florida

  



 


 


THIS
MORTGAGE MODIFICATION AND AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT
AMENDS AND RESTATES THAT CERTAIN NOTICE OF FUTURE ADVANCE, MORTGAGE
MODIFICATION AND AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT DATED
FEBRUARY 26, 2004 AND RECORDED ON MARCH 1, 2004 IN OFFICIAL
RECORDS BOOK 5212, PAGE 2259 OF THE PUBLIC RECORDS OF BREVARD COUNTY, FLORIDA
AS ASSUMED BY BORROWER PURSUANT TO THAT CERTAIN ASSUMPTION AGREEMENT OF EVEN
DATE HEREWITH (THE “ASSUMPTION AGREEMENT”), AND SECURES THE RENEWAL NOTE
REFERRED TO HEREIN IN THE ORIGINAL PRINCIPAL AMOUNT OF FIFTEEN MILLION SIX
HUNDRED FIFTY-SIX THOUSAND FIVE HUNDRED ELEVEN AND NO/100 DOLLARS ($15,656,511.00)
(THE “RENEWAL NOTE”).  THE RENEWAL NOTE
AMENDS, RESTATES AND RENEWS THAT CERTAIN FUTURE ADVANCE AND RENEWAL NOTE IN THE
STATED PRINCIPAL SUM OF FIFTEEN MILLION EIGHT HUNDRED FIFTY THOUSAND AND NO/100
DOLLARS ($I5,850,000.00) DATED FEBRUARY 27, 2004.


 


DOCUMENTARY
STAMP TAX ON SAID OUTSTANDING AMOUNT IN THE SUM OF FIFTY-FIVE THOUSAND FOUR
HUNDRED SEVENTY-FIVE AND NO/100 DOLLARS ($55,475.00.00) HAS BEEN PAID
SIMULTANEOUSLY WITH THE RECORDING OF THE ASSUMPTION AGREEMENT.  THE OUTSTANDING PRINCIPAL BALANCE OF THE
RENEWAL NOTE IS EXEMPT FROM FLORIDA INTANGIBLE TAXES PURSUANT TO FLORIDA
STATUTES SECTION 199.145.3.


 


MORTGAGE MODIFICATION AND AMENDED AND
RESTATED MORTGAGE AND

SECURITY AGREEMENT


 


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


 





















 


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


 


THAT WHEREAS, Lender
is the owner and holder of that certain Mortgage and Security Agreement by
WICKHAM & 95 CORP., a Florida corporation, LOT 90, L.L.C., a Florida
limited liability company, and LOT 91, L.L.C., a Florida limited liability
company (collectively, “Wickham”) to and in favor of AmSouth Bank, a state
banking corporation (“AmSouth”) dated October 30, 2002 and recorded on November
4, 2002, in Official Records Book 4728, Page 3484, of the Public Records of
Brevard County, Florida (hereinafter referred to as the “AmSouth Mortgage”);
and


 


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


 


WHEREAS, the
AmSouth Mortgage and the AmSouth Note were subsequently assigned and
transferred to Lender pursuant to that certain Assignment of Note and Mortgage
Agreements from AmSouth to Lender dated February 24, 2004 and recorded March 1,
2004 in Official Records Book 5212, Page 2254 of the Public Records of Brevard
County, Florida; and


 


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


 


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


 


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


 


WHEREAS, Borrower
assumed the Loan pursuant to that certain Assumption Agreement of even date
herewith to be recorded in the Public Records of Brevard County, Florida; and


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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MORTGAGE
AND SECURITY AGREEMENT


 


THIS MORTGAGE AND SECURITY AGREEMENT (hereinafter
referred to as the “Mortgage”) is made, executed and delivered as of the day
and year first written above by INLAND
WESTERN VIERA LAKE ANDREW, L.L.C., a Delaware corporation
(hereinafter referred to as “Borrower”), whose address is 2901 Butterfield
Road, Oak Brook, Illinois 60523, Attention: Mr. Michael Poe, to and in favor of
NATIONWIDE LIFE INSURANCE COMPANY, an
Ohio corporation, its successors and assigns hereof (hereinafter referred to as
“Lender”), having its principal office at One Nationwide Plaza, Columbus, Ohio
43215-2220, Attention: Real Estate Investment Department, 34T, or at such other
place either within or without the State of Ohio, as Lender may from time to
time designate;


 


WITNESSETH:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


In order to secure the repayment of the Loan evidenced and represented
by the Note, together with interest on the Loan, as well as the payment of all
other sums of money secured hereby, as hereinafter provided; and to secure the
observance, performance and discharge by Borrower of all covenants, conditions
and agreements set forth in the Note, this Mortgage and in the other Loan
Documents; and in order to charge the properties, interests and rights
hereinafter described with such payment, observance, performance and discharge;
and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) paid by
Lender and other good and valuable considerations, the receipt and sufficiency
of which are hereby acknowledged, Borrower hereby grants Lender a security
interest in all Fixtures, Goods (including, without limitation, Consumer Goods,
Inventory, Equipment and Farm Products), Accounts, Chattel Paper (including,
without limitation, Electronic Chattel Paper and Tangible Chattel Paper),
Instruments, General Intangibles (including, without limitation, Payment
Intangibles and Software), Letters of Credit, Letter-of-Credit Rights, Documents,
As-Extracted Collateral, Money and Deposit Accounts of every kind, and all
proceeds thereof, including, without limitation, any and all licenses, permits,
franchises, trademarks, trade names, service marks or logos, plans,
specifications, maps, construction contracts, instruments, insurance policies,
fittings and fixtures of every kind, which is, are or shall hereafter be
located upon, attached, affixed to or used or useful, either directly or
indirectly, in connection with the complete and comfortable use, occupancy and
operation of the Real Property, Improvements or Appurtenances as a retail
center project (the “Existing Use”), or any other business, enterprise or
operation as may hereafter be conducted upon or with said Real Property,
Improvements or Appurtenances, including, without limitation, any and all
licenses, permits or franchises, used or required in connection with such use,
occupancy or operation as well as the proceeds thereof or therefrom regardless
of form, all security deposits and advance rentals under lease agreements now
or at any time hereafter covering or affecting any of the Property and held by
or for the benefit of Borrower, all monetary deposits which Borrower has been
required to give to any public or private utility with respect to utility
services furnished to the Real Property or Improvements, all rents, issues and
profits from leases of all or any part of the Real Property or Improvements,
all proceeds (including premium refunds) of each policy of insurance relating to
the Real Property or Improvements, all proceeds from the taking of the Real
Property or Improvements or any part thereof or any interest therein or right
or estate appurtenant thereto by eminent domain or by purchase in lieu thereof,
all amounts deposited in escrow for the payment of ad valorem taxes,
assessments, charges, ground rentals and/or premiums for policies of insurance
with respect to the Real Property or Improvements, all proceeds and other
amounts paid or owing to Borrower under or pursuant to any and all contracts
and bonds relating to the construction, erection or renovation of the Real
Property or Improvements, all oil, gas and other hydrocarbons and other
minerals produced from or allocated to the Real Property and all products
processed or obtained therefrom, the proceeds thereof, and


 


6





















 


all accounts and general
intangibles under which such proceeds may arise, together with any sums of
money that may now or at any time hereafter become due and payable to Borrower
by virtue of any and all royalties, overriding royalties, bonuses, delay
rentals and any other amount of any kind or character arising under any and all
present and future oil, gas and mining leases covering the Real Property or any
part thereof (collectively, the “Fixtures and Personal Property”) which term
expressly excludes any toxic waste or substance deemed hazardous under federal,
regional, state or local laws, codes, ordinances, statutes, rules, regulations,
decisions or orders).  The Mortgaged
Property and the Fixtures and Personal Property are herein together referred to
as the “Property”.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(a)                                    Borrower
shall keep all Improvements now existing or hereafter erected on the Real
Property in good order and repair, only to be used for the Existing Use, and
not to do or permit any waste, impairment or deterioration thereof or thereon,
nor to alter, remove or demolish any of the Improvements or any Fixtures and
Personal Property attached or appertaining thereto, without the prior written
consent of Lender, nor to initiate, join in or consent to any change in any
private restrictive covenant, zoning ordinance or other public or private
restrictions limiting or defining the uses which may be made of the Property or
any part thereof, nor to do or permit any other act whereby the Property shall
become less valuable, be used for purposes contrary to applicable Law or be
used in any manner which will increase the premium for or result in a
termination or cancellation of the insurance policies hereinafter required to
be kept and maintained on the Property. 
In furtherance of, and not by way of limitation upon, the foregoing
covenant, Borrower shall effect such repairs as Lender may reasonably require,
and from time to time make all needful and proper replacements so that the Improvements,
Appurtenances, Fixtures and Personal Property will, at all times, be in good condition,
fit and proper for the respective purposes for which they were originally
erected or installed.  In connection with
the making of such repairs, Borrower shall use contractors who are properly
licensed, who carry workers’ compensation insurance and appropriate liability insurance,
who generally have a good reputation for completing their work in a neat,
prompt and workmanlike manner, and use only new or re-manufactured goods of a
quality as good or better than that originally used on the Property.  As provided herein, Borrower shall insure that
no liens are filed against the Property that relate in any way to the repair
work provided for herein.


 


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


 


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


 


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


 


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


 


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approved or authorized by Lender in writing, pursuant
to this Mortgage, provided that such transferee assumes in writing all of the
obligations of Borrower with respect to Hazardous Materials pursuant to the
Loan Documents, or (ii) at such time Borrower provides Lender with an
environmental assessment report acceptable to Lender, in Lender’s sole
discretion, showing the Property to be free of Hazardous Materials and not in
violation of any Hazardous Waste Laws.  The
burden of proof under this Section 3(b) with regard to establishing the date
upon which any Hazardous Materials was released in, on, over, under or about
the Property shall be upon Borrower.


 


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


 


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


 


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


 


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


 


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


 


10





















 


or special assessments by governmental authorities
having jurisdiction over the Property; provided, however, Borrower shall give
Written Notice of its intent to bring such an action to Lender, and Lender may,
in its sole discretion, require Borrower to post a bond or other collateral
satisfactory to Lender (and acceptable to the title company insuring this
Mortgage) as a result of Borrower’s act.


 


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


 


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


 


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


 


8.                                       Hazard
Insurance.  Borrower shall
continuously, during the term of this Mortgage, keep the Improvements,
Appurtenances, and Fixtures and Personal Property, now or hereafter existing,
erected, installed and located in or upon the Real Property, insured with
extended coverage insurance against loss or damage resulting from fire, windstorm,
flood, sinkhole, earthquake, mine subsidence, acts of terrorism, and such other
hazards, casualties, contingencies and perils including, without limitation,
other risks insured against by persons operating like properties in the
locality of the Property, or otherwise deemed necessary or advisable by Lender,
on such forms and with such deductibles as may be required by Lender, covering
the Property in


 


11





















 


the amount of the full replacement cost thereof, (without
taking into account any depreciation) less excavating and foundation costs, and
covering all loss or abatement of rental or other income, without a provision
for co-insurance, in an amount equal to the scheduled rental income of the
Property for at least twelve (12) months, or if applicable, business
interruption insurance in an amount sufficient to pay debt service on the Note,
operating expenses, taxes and insurance on the Property for a period of twelve
(12) months, and covering loss by flood (if the Property lies in a Special
Flood Hazard Area as designated on the Department of Housing and Urban
Development’s Maps, or other flood prone designation) in an amount equal to the
outstanding principal balance of the Loan or such other amount as approved by
Lender, and earthquake insurance with a deductible amount of no more than ten
percent (10%) of the policy amount, if the Property is located within one-half
(1/2) mile of an Alquist-Priolo Special Earthquake Study Zone or if, in the
judgment of Lender’s inspecting architect, the Property lies in an area of
anticipated significant seismic activity, and “Ordinance or Law Coverage” or “Enforcement”
endorsements in amounts satisfactory to Lender if any of the Improvements or
the use of the Property shall at any time constitute legal non-conforming
structures or uses or the ability to rebuild the Improvements is restricted or
prohibited, and comprehensive boiler and machinery insurance (without exclusion
for explosion), if applicable, in amounts as shall be reasonably required by
Lender and covering all boilers or other pressure vessels, machinery and
equipment located at or about the Property (including, without limitation,
electrical equipment, sprinkler systems, heating and air conditioning
equipment, refrigeration equipment and piping).  All such insurance shall be carried with a
company or companies licensed to do business in the state where the Property is
located, which is acceptable to Lender, which company or companies shall have a
rating at the time this Mortgage is executed equivalent to at least A+:X as
shown in the most recent Best’s Key Rating Guide.  The original policy or policies and renewals
thereof (or, at the sole option of Lender, duplicate originals or certified
copies thereof), together with receipts evidencing payment of the premium
therefor, shall be deposited with, held by and are hereby assigned to, Lender
as additional security for the Loan secured hereby.  Each such policy of insurance shall contain a
noncontributing loss payable clause in favor of and in a form acceptable to
Lender, and shall provide for not less than thirty (30) days prior Written
Notice to Lender of any intent to modify, non-renew, cancel or terminate the
policy or policies, or the expiration of such policies of insurance, or the
exclusion of any individual risk such as acts of terrorism.  If the insurance required under this Section 8
or any portion thereof is maintained pursuant to a blanket policy, Borrower
shall furnish to Lender a certified copy of such policy, together with an
original Evidence of Insurance Certificate (Acord Form 27) for hazard insurance
indicating that Lender is an additional insured under such policy in regard to
the Property and showing the amount of coverage apportioned to the Property, which
coverage shall be in an amount sufficient to satisfy the requirements hereof.  Not less than fifteen (15) days prior to the
expiration dates of each policy required of Borrower hereunder, Borrower will
deliver to Lender a renewal policy or policies marked “premium paid” or
accompanied by other evidence of payment and renewal satisfactory to Lender.  In the event of foreclosure of this Mortgage
or other transfer of title to the Property in extinguishment of the Loan
secured hereby, all right, title and interest of Borrower, in and to any
insurance policies then in force including any rights to unearned premiums, and
in and to insurance proceeds then payable, shall pass to the purchaser or
grantee.


 


In the event of loss by reason of hazards, casualties, contingencies
and perils for which insurance has been required by Lender hereunder, Borrower
shall give immediate notice thereof to Lender.  Lender is hereby irrevocably appointed
attorney-in-fact coupled with an interest for


 


12





















 


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


 


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


 


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


 


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


 


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


 


13





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


9.                                       Liability
Insurance.  Borrower shall carry and
maintain such commercial general liability insurance as may from time to time
be reasonably required by Lender, taking into consideration the type of
property being insured and the corresponding liability exposure, on forms, with
deductibles, in amounts and with such company or companies licensed to do
business in the state where the Property is located and as may be acceptable to
Lender.  All such commercial general
liability insurance shall be carried with a company or companies which have and
maintain a rating equivalent to at least A+:X as shown in the most recent Best’s
Key Rating


 


14





















 


Guide.  The
original policy or policies and all renewals thereof (or, at the sole option of
Lender, duplicate originals or certified copies thereof), together with a
Certificate of Insurance (Acord Form 25S) and receipts evidencing payment of
the premium therefor, shall be deposited with, held by and are hereby assigned
to, Lender as additional security for the Loan secured hereby.  Such policy or policies of insurance shall
name Lender as an additional insured and shall provide for not less than thirty
(30) days prior Written Notice to Lender of any intent to modify, cancel,
non-renew, or terminate the policy or policies or the expiration of such policy
or policies of insurance, or the exclusion of any individual risk such as acts
of terrorism.  Not less than fifteen (15)
days prior to the expiration dates of each policy or policies required of
Borrower hereunder, Borrower will deliver to Lender a renewal policy or
policies marked “premium paid” or accompanied by other evidence of payment and
renewal satisfactory to Lender.  In the
event of foreclosure of this Mortgage or other transfer of title to the
Property in extinguishment of the Loan secured hereby, all right, title and
interest of Borrower, in and to any insurance policies then in force including
any rights to unearned premiums, and in and to insurance proceeds then payable,
shall pass to the purchaser or grantee.  In
case of Borrower’s failure to keep the Property properly insured as required
herein, Lender, its successors or assigns, may, at its option (but shall not be
required to) acquire such insurance as required herein at Borrower’s sole
expense.


 


10.                                 Compliance
With Laws.


 


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


 


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


 


15





















 


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


 


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


 


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


 


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


 


12.                                 Obligations
of Borrower as Lessor.


 


(a)                                  Borrower
shall perform every obligation of Borrower (as the landlord) and enforce every
obligation of the tenant in any and every lease, license or other occupancy
agreement of or affecting the Property or any part thereof (the “Occupancy
Leases”), and not to modify, alter, waive or cancel any such Occupancy Leases
or any part thereof or rights thereunder, without the prior written consent of
Lender (but such consent shall not be required for such action as to Occupancy
Leases of three thousand (3,000) square feet or less if such action is in the
ordinary course of business of owning and operating the Property in a prudent
and business-like manner, on then current market terms), nor collect for more
than thirty (30) days in advance of the date due any Rents that may be
collectible under any such Occupancy Leases and, except as provided for in this
Mortgage, not to assign any such Occupancy Lease(s) or any such Rents relating
thereto, to any party other than Lender, without the prior written consent of
Lender. Borrower will notify Lender in writing of any default under any
Occupancy Lease, In the event of default under any such Occupancy Lease by
reason of failure of Borrower to keep or perform one or more of the covenants,
agreements or conditions thereof, Lender is hereby authorized and empowered,
and may, at its sole option, remedy, remove or cure any such default, and
further, Lender may, at its sole option and in its sole discretion but without
obligation to do so, pay any sum of money deemed necessary by Lender for the
performance of said covenants, agreements and conditions, or for the curing or
removal of any such default, and incur all expenses and obligations which
Lender may consider necessary or reasonable in connection therewith, and
Borrower shall repay on demand all such sums so paid or advanced by Lender
together with interest thereon until paid at the lesser of either; (i) the
highest rate of interest then allowed by the Laws of the State of Florida, or,
if controlling, the Laws of the United States, or (ii) the then applicable
interest rate of the Note plus five hundred (500) basis points per annum; all
of such sums, if unpaid, shall be added to and become part of the Loan.


 


(b)                                 All
such Occupancy Leases hereafter made shall be subject to the approval of Lender
and: (i) shall be at competitive market rental rates then prevailing in the
geographic area for projects used for the Existing Use comparable to the
Property, (ii) shall have lease terms


 


16





















 


of not less than three
(3) years; and (iii) at Lender’s option, shall be superior or subordinate in
all respects to the lien of this Mortgage. Provided, however, that Lender shall
not require approval in advance of any Occupancy Leases which conform to the
Borrower’s Form Lease (as hereinafter defined) as previously approved by
Lender, except as set forth below.  Neither
the right nor the exercise of the right herein granted unto Lender to keep or
perform any such covenants, agreements or conditions as aforesaid shall
preclude Lender from exercising its option to cause the whole Loan secured
hereby to become immediately due and payable by reason of Borrower’s default in
keeping or performing any such covenants, agreements or conditions.


 


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


 


Notwithstanding the foregoing approval by Lender of Borrower’s Form
Lease, Lender hereby specifically reserves the right to approve all prospective
tenants under all Occupancy Leases hereafter proposed to be made if either: (i)
the term thereof, excluding options to renew the same, exceeds five (5) years;
or (ii) the net rentable area to be occupied thereunder, including expansion
options, exceeds ten percent (10%) of the net leasable area of each of the
buildings comprising the Improvements (the tenants under such leases being hereinafter
referred to as “Major Tenants”).  Borrower
shall notify Lender in writing of all prospective Major Tenants, and shall
deliver to Lender, at Borrower’s sole cost and expense, a copy of the
prospective Major Tenant’s current financial statement and the most recent Dun
& Bradstreet credit report on said prospective Major Tenant.  The financial statement delivered to Lender
hereunder shall be certified as true and correct by the Major Tenant, or, if
available, by a certified public accountant.  If Lender fails to respond within ten (10)
business days after receipt from Borrower of an Occupancy Lease, together with
tenant credit information, Lender shall be deemed to have approved such
Occupancy Lease; provided that all items so submitted shall be sent certified
mail, labeled with the following statement: “TIME SENSITIVE RESPONSE REQUIRED
WITHIN TEN (10) BUSINESS DAYS OF ACTUAL RECEIPT.


 


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


 


17





















 


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


 


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


 


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


 


14.                               Execution
of Additional Documents.  Borrower shall
do, make, execute, acknowledge, witness and deliver all deeds, conveyances,
mortgages, deeds of trust, assignments, estoppel certificates, subordination
non-disturbance and attornments, notices of assignments, transfers, assurances,
security agreements, financing statements and renewals thereof, and all other
instruments or other acts necessary, as Lender shall from time to time require
for the purpose of better assuring, conveying, assigning, transferring,
securing and confirming unto Lender the Property and rights hereby encumbered,
created, conveyed, assigned or intended now or hereafter so to be encumbered,
created, conveyed or assigned, or which Borrower may now be or may hereafter
become bound to encumber, create, convey or assign to Lender, or for the
purpose of carrying out the intention or facilitating the performance of the terms
of this Mortgage, or for filing, registering or recording this Mortgage, and to
pay all filing, registration or recording fees and all taxes, costs and other
expenses, including Reasonable Attorneys’ Fees, incident to the
preparation, execution, acknowledgment, delivery and recordation of any of the
same.  By signing this Mortgage, Borrower
authorizes Lender to file such financing statements, with or without the
signature of Borrower, as Lender may elect, as may be necessary or desirable to
perfect the lien of Lender’s security interest in the Fixtures and Personal
Property.  Without limiting any other
provision herein, Borrower hereby authorizes Lender to file one or more
financing statements and any renewal or continuation statements thereof,
describing the Property and the proceeds of the Property, including, without
limitation, a financing statement covering “all assets of Borrower all proceeds
therefrom, and all rights and privileges with respect thereto”.  Borrower further authorizes Lender to file,
with or without any additional signature from Borrower, as Lender may elect,
such amendments and continuation statements as Lender may deem necessary or
desirable from time to time to perfect or continue the lien of Lender’s
security interest in the Fixtures and Personal Property.  Borrower hereby ratifies any financing
statements that may have been filed by Lender in advance of the date hereof to
perfect Lender’s security interest in the Fixtures and Personal Property.


 


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


 


18





















 


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


 


16.                                   Payments
by Lender on Behalf of Borrower.  Borrower
shall make payment of any taxes, assessments or public charges on or with
respect to the Property before the same shall become delinquent, or to make
payment of any insurance premiums or other charges, impositions, or liens
herein or elsewhere required to be paid by Borrower, or if Borrower shall fail
so to do, then Lender, at its sole option, but without obligation to do so, may
make payment or payments of the same and also may redeem the Property from tax
sale without any obligation to inquire into the validity of such taxes,
assessments, charges, impositions or liens.  In the case of any such payment by Lender,
Borrower agrees to reimburse Lender, upon demand therefor, the amount of such
payment and of any fees and expenses attendant in making the same, together with
interest thereon at the lesser of either: (a) the highest rate of interest then
allowed by the Laws of the State of Florida or, if controlling, the Laws of the
United States, or (b) the then applicable interest rate of the Note plus five
hundred (500) basis points per annum; and until paid such amounts and interest
shall be added to and become part of the Loan secured hereby to the same extent
that this Mortgage secures the repayment of the Loan.  In making payments authorized by the
provisions of this Section 16, Lender may do so whenever, in Lender’s sole judgment
and discretion, such advance or advances are necessary or desirable to protect
the full security intended to be afforded by this Mortgage.  Neither the right nor the exercise of the
rights herein granted to Lender to make any such payments as aforesaid shall
preclude Lender from exercising its option to cause the Loan secured hereby to
become immediately due and payable by reason of Borrower’s default in making
such payments as hereinabove required.


 


17.                                   Funds
Held by Lender for Taxes, Assessments, Insurance Premiums and Other Charges.  In order to more fully protect the security
of this Mortgage, Borrower shall deposit with Lender, together with and in
addition to each monthly payment due on account of the Loan, an amount equal to
one-twelfth (l/12th) of the annual total of such taxes, assessments,
insurance premiums and other charges (all as estimated by Lender in its sole
discretion) so that, at least thirty (30) days prior to the due date thereof,
Lender shall be able to pay in full all such taxes, assessments, insurance
premiums and other charges as the same shall become due. Lender may hold the
sums so deposited without paying interest, commingle same with its general
funds and/or apply the same to the payment of said taxes, assessments,
insurance premiums or other charges as they become due and payable.  If at any time the funds so held by Lender
are insufficient to pay such taxes, assessments, insurance premiums or other
charges as they become due and payable, Borrower shall immediately, upon
Written Notice and demand by Lender, deposit with Lender the amount of such
deficiency.  The failure on the part of
Borrower to do so shall entitle Lender, at Lender’s sole option, to make such
payments in accordance with the rights and pursuant to the conditions elsewhere
provided in this Mortgage.  Whenever any default
exists under this Mortgage, Lender may, at Lender’s sole option but without an
obligation


 


19





















 


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


 


18.                                 Condemnation;
Eminent Domain.  All claims and rights
of action for, and all awards and other compensation heretofore or hereafter
made to Borrower and all subsequent owners of the Property in any taking by
eminent domain, recovery for inverse condemnation or by deed in lieu thereof,
whether permanent or temporary, of all or any part of the Property or any
easement or any appurtenance thereto, including severance and consequential
damages and change in grade of any way, street, avenue, road, alley, passage or
public place, are hereby assigned to Lender.  Borrower hereby irrevocably appoints Lender as
its attorney-in-fact, coupled with an interest, and authorizes, directs and
empowers Lender, at the option of Lender as said attorney-in-fact, on behalf of
Borrower, its successors and assigns, to adjust or compromise the claim for any
such award, and alone to collect and receive the proceeds thereof, to give
proper receipts and acquittances therefor and, after deducting any expenses of
collection, at Lender’s sole option either:


 


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


 


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


 


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


 


20





















 


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


 


19.                                 Costs
of Collection.  In the event that the
Note is placed in the hands of an attorney for collection, or in the event that
Lender shall become a party either as plaintiff or as defendant, in any action,
suit, appeal or legal proceeding (including, without limitation, foreclosure,
condemnation, bankruptcy, administrative proceedings or any proceeding wherein proof
of claim is by law required to be filed), hearing, motion or application before
any court or administrative body in relation to the Property or the lien and
security interest granted or created hereby or herein, or for the recovery or
protection of the Loan or the Property, or for the foreclosure of this
Mortgage, or for the enforcement of the terms and conditions of the Loan Documents,
Borrower shall indemnify, save, defend and hold Lender harmless from and
against any and all Losses incurred by Lender on account thereof, and Borrower
shall repay, on demand, all such Losses, together with interest thereon until
paid at the lesser of either (a) the highest rate of interest then allowed by
the Laws of the State of Florida, or, if controlling, the Laws of the United
States, or (b) the then applicable rate of interest of the Note plus five
hundred (500) basis points per annum; all of which sums, if unpaid, shall be
added to and become a part of the Loan.


 


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


 


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


 


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


 


21





















 


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


 


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


 


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


 


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


 


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


 


22





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


23





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


24





















 


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


 


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


 


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


 


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


 


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


 


25





















 


the Loan or in such other
manner as the said court shall direct notwithstanding the fact that the amount
owing thereon may not then be due and payable or the said Loan is otherwise
adequately secured.  Such receivership
shall, at the option of Lender, continue until full payment of all sums hereby
secured or until title to the Property shall have passed by sale under this
Mortgage.  Borrower hereby specifically
waives its right to object to the appointment of a receiver as aforesaid, and
hereby expressly agrees that such appointment shall be made as an admitted
equity and as a matter of absolute right to Lender.


 


28.                                 Rights
and Remedies Cumulative; Forbearance Not a Waiver. The rights and remedies
herein provided are cumulative, and Lender, as the holder of the Note and of
every other obligation secured hereby, may recover judgment thereon, issue
execution therefor and resort to every other right or remedy available at law
or in equity, without first exhausting any right or remedy available to Lender
and without affecting or impairing the security of any right or remedy afforded
hereby, and no enumeration of special rights or powers by any provisions hereof
shall be construed to limit any grant of general rights or powers, or to take
away or limit any and all rights granted to or vested in Lender by law or
equity.  Borrower further agrees that no
delay or omission on the part of Lender to exercise any rights or powers
accruing to it hereunder shall impair any such right or power, or shall be
construed to be a waiver of any such default hereunder or an acquiescence
therein; and every right, power and remedy granted herein or by law or equity
to Lender may be exercised from time to time as often as Lender deems expedient.


 


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


 


26





















 


hereafter be repealed or
cease to be in force, such law shall not thereafter be deemed to preclude the
application of this Section.


 


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


 


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


 


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


 


32.                                   Transfer
of Property or Controlling Interest in Borrower: Assumption.  Except as set forth in Section 38(b) hereof,
without the prior written consent of Lender, the sale, transfer, assignment or
conveyance of all or any portion of the Property, or the transfer, assignment or
conveyance of a controlling interest in Borrower or its general partner or
managing member, or any guarantor, whether voluntary or by operation of law,
without the prior written consent of Lender, shall constitute a default
hereunder, and entitle Lender, at Lender’s sole option, to accelerate all sums
due on the Note, together with any Prepayment Premiums (to the extent permitted
by the Laws of the State of Florida), late payment charges or any other amounts


 


27





















 


secured hereby.  Lender may, however, elect to waive the option
to accelerate granted hereunder if, prior to any such sale, transfer,
assignment or conveyance of the Property, the following conditions shall be
fully satisfied: (a) Lender acknowledges in writing that, in Lender’s sole
discretion, the creditworthiness of the proposed transferee and the ability and
experience of the proposed transferee to operate the Property are satisfactory
to Lender; (b) Lender and the proposed transferee shall enter into an agreement
in writing that (i) the rate of interest payable on the Loan secured hereby
shall be at such rate as Lender shall determine, (ii) the repayment schedule as
set forth in the Note shall be modified by Lender, in Lender’s sole discretion,
to initiate amortization or modify the existing amortization schedule in order
to amortize the then remaining unpaid principal balance of the Note secured
hereby over a period of time as determined by Lender, in Lender’s sole
discretion, without a change in the maturity date of the Note, and (iii) the
proposed transferee shall assume all obligations of Borrower under the Note,
this Mortgage and the other Loan Documents in writing and an assumption fee, to
be determined by Lender in Lender’s sole discretion, may be charged by Lender;
(c) Lender shall receive, for Lender’s review and approval, copies of all
transfer documents; and (d) Borrower or the transferee shall pay all costs and
expenses in connection with such transfer and assumption, including, without limitation,
all fees and expenses incurred by Lender. Notwithstanding the foregoing, Lender
acknowledges that Borrower’s general partner is a publicly traded real estate
investment trust (“REIT”) and that such general partner shares are freely
traded in the public markets.  Transfers
of shares of the general partner in the ordinary course of such trading shall
not be a default under the loan documents.


 


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


 


Borrower shall not change its name or identity in any manner which may
make any financing or continuation statement filed in connection with the Loan
seriously misleading within the meaning of the UCC enacted in the State of
Florida or change its jurisdiction of


 


28





















 


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


 


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


 


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


 


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


 


29





















 


foregoing entities provided that Inland Western Retail
Real Estate Trust, Inc. ratifies its obligations as indemnitor and guarantor
under the Indemnity Agreement and Guaranty Agreement of even date herewith in
favor of Lender, and such Affiliate or real estate investment trust retains
management and operating control of Borrower, without necessity of Lender’s
consent and without payment of a fee or premium except Lender’s actual reasonable
fees so long as the transferee assumes (subject to the non-recourse provisions
and carve-outs contained therein) all obligations of the transferor, if any,
under the Note and the Loan Documents, if any.  “Affiliate” shall mean, with respect to a party,
any person or entity that controls, is controlled by or is under common control
with such party, with “control” and its derivatives meaning the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such party, whether through the ownership of voting
stock, partnership interests or units or limited liability company membership
interests or by contract or otherwise.  No
transfer or assignment shall be valid or permitted hereunder unless Lender has
received prior written notice of the transfer or assignment and copies of all
transfer and other related documents and Borrower pays all reasonable fees and
expenses incurred by Lender in connection with such transfer and assumption,
including, without limitation, title insurance charges (if the proposed
transfer would impair Lender’s title insurance) and Reasonable Attorneys’ Fees.
 Any transfer of which does not strictly
comply with the terms and conditions of this Section 32 shall be a default hereunder
and shall entitle Lender to exercise all rights and remedies provided in this
Mortgage.


 


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


 


30





















 


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


 


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


 


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


 


37.                                Examination
of Borrower’s Records.  Borrower will
maintain complete and accurate books and records showing in detail the income
and expenses of the Property, and will permit Lender and its agents,
contractors or representatives to examine said books and records and all
supporting vouchers and data during normal business hours and from time to time
upon request by Lender, in such place as such books and records are customarily
kept.  Borrower will furnish to Lender,
within one hundred twenty (120) days after the close of each respective fiscal period
annual and semi-annual financial statements (income statements and a balance
sheet) for the Borrower and the Property.  These statements shall be in form reasonably
acceptable to Lender, shall be prepared in accordance with generally accepted
accounting principles, and shall


 


31





















 


include a rent roll,
certified as true and correct by Borrower.  The statements shall show in detail all income
derived from and expenses incurred in connection with the ownership of the
Property, including current annual sales figures for all Major Tenants of the
Property if required under the Major Tenant leases or if such financial
information is otherwise available.  In
the event Borrower fails to provide such statements to Lender within the time
prescribed above, Borrower shall pay Lender the sum of TWO HUNDRED AND NO/100
DOLLARS ($200.00) in administrative expenses for each successive month for
which the statements are delinquent. Upon a default hereunder beyond any
applicable grace or cure periods, Lender shall have the right to require that
said financial statements be audited and certified by a certified public
accountant acceptable to Lender, at the sole cost and expense of Borrower.


 


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


 


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


 


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


 


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


 


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


 


39.                                   Future
Advances Secured.  This Mortgage shall
secure not only existing indebtedness, but also future advances, whether such
advances are obligatory or to be made at the option of Lender.  Upon the request of Borrower, and at Lender’s
option prior to release of this Mortgage, Lender may make future advances to
Borrower.  All future advances with
interest thereon shall be secured by this Mortgage to the same extent as if
such future advances were


 


32





















 


made on the date of the execution of this Mortgage
unless the parties shall agree otherwise in writing, but the total secured
indebtedness shall not exceed at any one time a maximum principal amount equal
to double the face amount of the Note plus interest and costs of collection,
including court costs and Reasonable Attorneys’ Fees.  Any advances or disbursements made for the
benefit or protection of or the payment of taxes, assessments, levies or
insurance upon the Property, with interest on such disbursements as provided
herein, shall be added to the principal balance of the Note and collected as a
part thereof.  To the extent that this
Mortgage may secure more than one note, a default in the payment of any such
mortgage note shall constitute a default in the payment of all such notes.  The filing of any notice limiting the maximum
amount that may be secured by this Mortgage pursuant to Florida Statutes
Section 697.04 or otherwise shall be and constitute a default under this
Mortgage.


 


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


 


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


 


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


 


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


 


33





















 


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


 


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


 


	
  If to Borrower:

  	
   

  	
  Inland Western Viera Lake Andrew, L.L.C.

  
	
   

  	
   

  	
  2901 Butterfield Road

  
	
   

  	
   

  	
  Oak Brook, Illinois 60523

  
	
   

  	
   

  	
  Attention: Steve Grimes

  
	
   

  	
   

  	
   

  
	
  with copy to:

  	
   

  	
  Inland Western Retail Real Estate Trust, Inc.

  
	
   

  	
   

  	
  2901 Butterfield Road

  
	
   

  	
   

  	
  Oak Brook, Illinois 60523

  
	
   

  	
   

  	
  Attention: Roberta Matlin

  
	
   

  	
   

  	
   

  
	
  and additional copy to:

  	
   

  	
  The Inland Real Estate Group, Inc.

  
	
   

  	
   

  	
  Law Department

  
	
   

  	
   

  	
  2901 Butterfield Road

  
	
   

  	
   

  	
  Oak Brook, Illinois 60523

  
	
   

  	
   

  	
  Attention: Robert Baum, Esq.

  
	
   

  	
   

  	
   

  
	
  If to Lender:

  	
   

  	
  Nationwide Life Insurance Company

  
	
   

  	
   

  	
  One Nationwide Plaza

  
	
   

  	
   

  	
  Columbus, Ohio 43215-2220

  
	
   

  	
   

  	
  Attention: Real Estate Investment Department, 34T

  



 


 


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


 


34





















 


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


 


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


 


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


 


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


 


35





















 


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


 


48.                                   Full
Recourse.  Notwithstanding any provisions in this Mortgage to the contrary, including
without limitation the provisions set forth in the section captioned “Exculpation”
hereinabove, Borrower shall be personally liable, jointly and severally, for
the entire Loan secured by this Mortgage (including all principal, interest and
other charges) in the event (a) Borrower violates the covenant governing the
placing of subordinate financing on the Property as set forth in this Mortgage:
(b) Borrower violates the covenant restricting transfers of interests in the
Property or transfers of ownership interests in Borrower as set forth in this
Mortgage; or (c) Borrower or any guarantor violates the provisions of Section
22 of this Mortgage, or there is filed against Borrower or any guarantor or
indemnitor of the Loan, a petition in bankruptcy or for the appointment of a
receiver, or there commences under any bankruptcy or insolvency law, proceedings
for Borrower’s relief, or for the compromise, extension, arrangement or
adjustment of Borrower’s obligations which is not dismissed within thirty (30)
days after the filing of same.


 


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


 


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


 


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


 


36





















 


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


 


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


 


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


 


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


 


[SIGNATURES
BEGIN ON NEXT PAGE]


 


37





















 


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


 


 Signed, sealed and delivered


	
  in the presence of:

  	
  INLAND WESTERN VIERA LAKE

  ANDREW, L.L.C., a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Inland Western Retail Real Estate Trust,

  
	
   

  	
   

  	
  Inc., a Maryland corporation,

  
	
   

  	
   

  	
  its sole member

  
	
   

  	
   

  	
   

  
	
   /s/ Patricia Clayton

  	
   

  	
   

  	
  By:

  	
    /s/ Debra Palmer

  	
   

  
	
  Name:

  	
   PATRICIA CLAYTON

  	
   

  	
   

  	
  Name:

  	
    Debra Palmer

  	
   

  
	
   

  	
   

  	
  Title:

  	
    Assistant Secretary

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  /s/ Doris E. Ahern

  	
   

  	
   

  	
   

  	
  (CORPORATE SEAL)

  	
   

  
	
  Name:

  	
  DORIS E. AHERN

  	
   

  	
   

  	
   

  	
   

  	
   

  
										



 


	
  STATE OF

  	
  ILLINOIS

  	
   

  
	
  COUNTY OF

  	
  DUPAGE

  	
   

  
				



 


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


 


	
   

  	
  /s/ Doris E.
  Ahern

  	
   

  
	
   

  	
  Name:

  	
  DORIS E. AHERN

  	
   

  
	
   

  	
  Commission No.:

  	
   

  	
   

  
	
   

  	
  My Commission Expires:

  	
   10-13-08

  	
   

  
	
   

  	
   

  
	
   

  	
  (SEAL)

  
	
   

  	
   

  
	
   

  	
  OFFICIAL SEAL

  
	
   

  	
  DORIS E AHERN

  
	
   

  	
  NOTARY PUBLIC  STATE OF ILLINOIS

  
	
   

  	
  MY COMMISSION EXPIRES
  10/13/08

  
						



 


38





















 


	
   

  	
  NATIONWIDE LIFE INSURANCE

  
	
   

  	
  COMPANY, an Ohio corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  	
  , Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  (CORPORATE SEAL)

  
								



 


 


STATE OF
OHIO


COUNTY OF
FRANKLIN


 


The foregoing instrument was acknowledged before me
this              
day of December, 2004 by                         ,
as Vice President of NATIONWIDE LIFE INSURANCE
COMPANY, an Ohio corporation, on behalf of the corporation.  He/she is personally known to me or has
produced                                                       as
identification.


 


	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Commission No.:

  	
   

  	
   

  
	
   

  	
  My Commission Expires:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (SEAL)

  
						



 


39





















 


EXHIBIT
A


 


LEGAL
DESCRIPTION


 


40





















 


EXHIBIT
“A”


 


PARCEL 1:


 


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


 


Together with:


 


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


 


From the Southeast corner
of said Section 9; thence South 88° 40’ 59” West, along the South line of said
Section 9, a distance 34.65 feet; thence North 01° 19’ 01” West, 249.21 feet;
thence North 14° 31’ 21” West 786.66 feet, thence North 75° 28’39’ East, 270.19
feet to the Point of Beginning; thence North 14° 31’ 21” West 626.54 feet,
thence North 75° 29’ 02” East 181.34 feet to the point of a curve, concave
Southerly, having a radius of 1900.00 feet; thence Easterly along the arc of
said curve to a right, a distance of 360.61 feet through a central angle of 10°
52’ 27”, to a point of reverse curve, concave Northerly, having a radius of
2650.00 feet, thence Easterly along the arc of said curve to the left a
distance of 169.61 feet, through a central angle of 03° 40’ 02”; to the
Westerly Right of Way of Interstate of 95 (as described in Circuit Court Book
53, Pages 359-363, Public Records of Brevard County, Florida); thence South 14°
30’ 59” East, along the said Westerly Right of Way a distance of 430.56 feet;
thence South 04° 15’ 31” East, 437.30 feet; thence South 75° 28’ 39” West
544.32 feet; thence North 14° 31’ 21” West, 295.16 feet; thence South 75° 28’
39” West, 84.97 feet, to the Point of Beginning.


 


PARCEL 2:


 


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