Exhibit 10.491


 


Prepared by and return to:


Darrell D. Garvey, Esquire


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


450 South Orange Avenue,
Suite 800


Orlando, Florida 32801


 


	
   

  	
  Borrower Name:

  	
  Wickham & 95 Corp.

  
	
   

  	
   

  	
  Lot 90, L.L.C.

  
	
   

  	
   

  	
  Lot 91, L.L.C.

  
	
   

  	
  Project Name:

  	
  Shoppes at Lake Andrew

  
	
   

  	
   

  	
  Viera, Florida

  



 


THIS NOTICE OF FUTURE ADVANCE, MORTGAGE
MODIFICATION AND AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT AMENDS
AND RESTATES THAT CERTAIN MORTGAGE AND SECURITY AGREEMENT EXECUTED 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, 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, AS ASSIGNED AND ENDORSED TO LENDER BY THE ASSIGNMENT OF NOTE
AND MORTGAGE AGREEMENTS REFERRED TO HEREIN, AND SECURES THE FUTURE ADVANCE AND
RENEWAL NOTE REFERRED TO HEREIN IN THE ORIGINAL PRINCIPAL AMOUNT OF FIFTEEN
MILLION EIGHT HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($15,850,000.00) (THE “RENEWAL
NOTE”). THE RENEWAL NOTE AMENDS, RESTATES AND RENEWS THAT CERTAIN PROMISSORY
NOTE IN THE STATED PRINCIPAL SUM OF FIFTEEN MILLION ONE HUNDRED FIFTY THOUSAND
AND NO/100 DOLLARS ($15,150,000.00) DATED OCTOBER 30, 2002.


 


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


 





















 


NOTICE OF FUTURE ADVANCE,
MORTGAGE MODIFICATION AND AMENDED

AND RESTATED MORTGAGE AND SECURITY AGREEMENT


 


THIS
NOTICE OF FUTURE ADVANCE, MORTGAGE MODIFICATION AND AMENDED AND RESTATED
MORTGAGE AND SECURITY AGREEMENT is made, executed and
delivered as of this 26th day of February, 2004, 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 (hereinafter collectively referred to as “Borrower”),
whose address is c/o Matthew Development, 7331 Office Park Place, Suite 200,
Viera, Florida 32940, to and in favor of NATIONWIDE LIFE 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 Borrower 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 “Original Mortgage”);
and


 


WHEREAS, the Original Mortgage secures that certain Promissory Note executed by
Borrower 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 “Original Note”); and


 


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


 


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


 


WHEREAS the Original Note has a current principal balance in the amount of
FOURTEEN MILLION SEVEN HUNDRED FORTY-THREE THOUSAND ONE HUNDRED FORTY AND
33/100 DOLLARS ($14,743,140.33); and


 


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


 


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


 


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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:


 


MORTGAGE AND SECURITY AGREEMENT


 


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


 


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WICKHAM & 95 CORP., a
Florida corporation, Lot 90, L.L.C.,
a Florida limited liability company, and Lot 91, L.L.C.,
a Florida limited liability company (hereinafter collectively referred to as “Borrower”),
whose address is c/o Matthew Development, 7331 Office Park Place, Suite 200,
Viera, Florida 32940, to and in favor of NATIONWIDE LIFE 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;


 


W I T N E S S E T H:


 


WHEREAS,
Borrower is justly indebted to Lender in the original principal sum of FIFTEEN
MILLION EIGHT HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($15,850,000.00) with
interest thereon, which Loan is evidenced and represented by that certain
Future Advance and 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”):


 


(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”);


 


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(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 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


 


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(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 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


 


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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:


 


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


 


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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, 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


 


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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 to lieu thereof, or subsequent to any transfer of ownership of the
Property which was 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


 


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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 EXCLUDING 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 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


 


10





















 


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 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


 


11





















 


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. Notwithstanding anything to the contrary contained in this paragraph,
Borrower will not be required to maintain Hazard Insurance with respect to the
property and improvements located at Lot 3, Wal-Mart at Viera, as recorded in
Plat Book 48, Page 79, 80 & 81, of the Public Records of Brevard County,
Florida (the World Bank ground lease parcel).


 


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


 


12





















 


to Lender.  Lender is hereby irrevocably appointed
attorney-in-fact coupled with an interest for 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;


 


13





















 


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


 


(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


 


14





















 


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 AA:X as shown
in the most recent Best’s Key Rating 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


15





















 


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


 


(i)            Equity interests in Borrower are 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.


 


16





















 


(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 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.


 


17





















 


(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.


 


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 provided,
however, that the initial construction of World Savings Bank and other tenant
buildout pursuant to approved Occupancy Leases, which is ongoing as of the date
hereof, is specifically permitted.


 


(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 Leader, 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.


 


18





















 


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 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
(1/12th) 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


 


19





















 


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 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


 


20





















 


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).


 


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, in either case 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, then 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


 


21





















 


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 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).


 


(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. 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 Lenders 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 excercise 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 stall 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 Load 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, without limitation,
all fees and expenses incurred by Lender.


 


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 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.


 


28





















 


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.


 


(A)  Notwithstanding
the foregoing, Lender shall permit transfers of interests in the Borrower
without Lender’s prior written consent and without any transfer fee, so long as
no default, or event which, with notice of the passage of time or both, could
result in a default, has occurred hereunder or under the Note and (i) such
transfer is to the family members, estate, heirs and/or beneficiaries
(including a Testamentary Trust) of the members of Borrower named herein for
estate planning purposes and/or testamentary disposition, (ii) Lender receives
notice of such transfer, (iii) Lender receives copies of all transfer
documents, (iv) Borrower, or the transferee, pays all costs and expenses
incurred by Lender in connection with such transfer, including Reasonable
Attorneys’ Fees (as hereinafter defined), and (v) such transferee assumes all
obligations of Borrower or Borrower’s estate under the Note, this Mortgage, and
the other Loan Documents with the same degree of liability as Borrower as of
the date hereof, and (vi) Ernie


 


29





















 


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


 


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, Leader shall be subrogated to the rights and lien
priority of the holder or holders of the lien or liens so discharged.


 


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


 


30





















 


Lender), in a form satisfactory to Lender or such designer, 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 date during
nominal 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 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


 


31





















 


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 provided, however,
that the initial construction of World Savings Bank and other tenant buildout pursuant
to approved Occupancy Leases (which is ongoing as of the date hereof) is specifically
permitted; 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 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.


 


32





















 


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 Application for Mortgage Loan dated February 18, 2003, modified by
Lender on May 27, 2003, further modified by Lender on January 27, 2003, and
accepted by Borrower on February 25, 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 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


 


33





















 


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:

  	
  WICKHAM & 95 CORP.

  
	
   

  	
  c/o Matthew Development

  
	
   

  	
  7331 Office Park Place,
  Suite 200

  
	
   

  	
  Viera, Florida 32940

  
	
   

  	
  Attention: Mike Renfro and
  Ernie Euler

  
	
   

  	
   

  
	
  with a copy to:

  	
  GREENBERG TRAURIG

  
	
   

  	
  401 East Las Olas
  Boulevard, Suite 2000

  
	
   

  	
  Ft. Lauderdale, Florida
  33301

  
	
   

  	
  Attn: Peter Tunis, Esquire

  
	
   

  	
   

  
	
  If to Lender:

  	
  NATIONWIDE LIFE INSURANCE
  COMPANY

  
	
   

  	
  One Nationwide Plaza

  
	
   

  	
  Columbus, Ohio 43215-2220

  
	
   

  	
  Attention: Real Estate
  Investment Department, 34T

  



 


44.           Governing Law; Waiver of 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 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


 


34





















 


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 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.


 


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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 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


 


36





















 


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:

  	
  WICKHAM & 95 CORP., a
  Florida corporation

  
	
   

  	
   

  	
   

  
	
  /s/ Nelson R Hamilton

  	
   

  	
  By:

  	
  /s/ Ernie Euler

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   Nelson R
  Hamilton

  	
   

  	
  Name:

  	
  ERNIE EULER

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Charine Lewis

  	
   

  	
  Its:

  	
  PRESIDENT

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  CHARINE LEWIS

  	
   

  	
  (CORPORATE SEAL)

  
										



 


 


STATE OF FLORIDA


COUNTY OF BREVARD


 


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


 


	
   

  	
  Notary Public

  	
   

  
	
   

  	
  Name:

  	
  Charine Lewis

  	
   

  
	
   

  	
  Commission No.:

  	
  DD174578

  	
   

  
	
   

  	
  My Commission Expires:

  	
  12-29-06

  	
   

  
	
   

  	
   

  
	
   

  	
  (SEAL)

  	
   

  
						



 


	
   

  	
   

  	
  

  	
  Charine C Lewis

  My Commission DD174578

  Expires December 29, 2006

  



 


38





















 


	
  Signed, sealed and delivered

  in the presence of:

  	
  LOT 90, L.L.C., a Florida
  limited liability

  
	
   

  	
  company

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Nelson R Hamilton

  	
   

  	
  By:

  	
  /s/ Robert M. Renfro

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   Nelson R
  Hamilton

  	
   

  	
  Name:

  	
  ROBERT M. RENFRO

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Charine Lewis

  	
   

  	
  Its:

  	
  Manager

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   CHARINE LEWIS

  	
   

  	
  (CORPORATE SEAL)

  	
   

  
										



 


 


STATE OF FLORIDA


COUNTY OF BREVARD


 


The foregoing instrument was acknowledged before me
this 16th day of February, 2004, by ROBERT M. RENFRO, as Manager of LOT 90, L.L.C., a Florida limited liability company on
behalf of the company.  He is personally
known to me.


 


	
   

  	
  Notary Public

  	
   

  
	
   

  	
  Name:

  	
  Charine Lewis

  	
   

  
	
   

  	
  Commission No.:

  	
  DD174578

  	
   

  
	
   

  	
  My Commission Expires:

  	
  12-29-06

  	
   

  
	
   

  	
   

  
	
   

  	
  (SEAL)

  
	
   

  	
   

  
	
   

  	
   

  	
  

  	
  Charine C Lewis

  My Commission DD174578

  Expires December 29, 2006

  
								



 


39





















 


	
  Signed, sealed and delivered

  in the presence of:

  	
  LOT 91, L.L.C., a Florida
  limited liability

  
	
   

  	
  company

  
	
   

  	
   

  	
   

  
	
  /s/ Nelson R Hamilton

  	
   

  	
  By:

  	
  /s/ Robert M. Renfro

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   Nelson R
  Hamilton

  	
   

  	
  Name:

  	
  ROBERT M. RENFRO

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Charine Lewis

  	
   

  	
  Its:

  	
  Manager

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  CHARINE LEWIS

  	
   

  	
  (CORPORATE SEAL)

  	
   

  
									



 


 


STATE OF FLORIDA


COUNTY OF BREVARD


 


The foregoing instrument was acknowledged before me
this 16th day of February, 2004, by ROBERT M. RENFRO, as Manager of LOT 91, L.L.C., a Florida limited liability company on
behalf of the company.  He is personally
known to me.


 


	
   

  	
  Notary Public

  	
   

  
	
   

  	
  Name:

  	
  Charine Lewis

  	
   

  
	
   

  	
  Commission No.:

  	
  DD174578

  	
   

  
	
   

  	
  My Commission Expires:

  	
  12-29-06

  	
   

  
	
   

  	
   

  
	
   

  	
  (SEAL)

  
	
   

  	
   

  
	
   

  	
   

  	
  

  	
  Charine C Lewis

  My Commission DD174578

  Expires December 29, 2006

  
								



 


40





















 


	
   

  	
  NATIONWIDE LIFE INSURANCE

  COMPANY, an Ohio corporation

  
	
   

  	
   

  	
   

  
	
  /s/ Marcia M. Billman

  	
   

  	
  By:

  	
  /s/ Todd A. Harrop

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   Marcia M.
  Billman

  	
   

  	
  Name:

  	
   

  	
  , Vice President

  
	
   

  	
   

  	
  TODD A. HARROP

  	
   

  
	
   

  	
   

  	
  ASSOCIATE VICE PRESIDENT

  
	
  /s/ Sheri Perkins

  	
   

  	
   

  	
  MORTGAGE LOAN ACQUISITIONS

  
	
   

  	
   

  	
  (CORPORATE SEAL)

  	
   

  
	
  Name:

  	
   Sheri Perkins

  	
   

  	
   

  	
   

  
									



 


 


STATE OF OHIO


COUNTY OF FRANKLIN


 


The foregoing instrument was acknowledged before me
this 10  day of February, 2004 by Todd A. Harrop, as Associate Vice
President of NATIONWIDE LIFE INSURANCE COMPANY, an
Ohio corporation, on behalf of the corporation. 
He is personally known to me.


 


	
   

  	
  Notary Public

  	
   

  
	
   

  	
  Name:

  	
   Marcia M.
  Billman

  	
   

  
	
   

  	
  Commission No.:

  	
   

  	
   

  
	
   

  	
  My Commission Expires:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (SEAL)

  
	
   

  
	
   

  	
  

  	
  MARCIA M. BILLMAN

  Notary Public, State of Ohio

  My Commission Expires 12-08-07

  
								



 


41





















 


EXHIBIT “A”


 


PARCEL 1


 


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


 


From the Southeast corner of said Section 9; thence South 88° 40’ 59”
West, along the South line of said Section 9, a distance of 34.65 feet; 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 the 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 169.62 feet, through a central
angle of 3° 40’ 02”; to the Westerly right of way of Interstate of 95 (as
described in Circuit Court Book 53, Pages 359 through 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 2, WAL-MART AT VIERA, according to the plat thereof recorded in
Plat Book 48, page 79, Public Records of Brevard County, Florida.


 


PARCEL 3


 


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


 


PARCEL 4


 


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


 


PARCEL 5


 


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


 


PARCEL 6


 


Intentionally deleted.


 


PARCEL 7


 


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


 


PARCEL 8


 


Intentionally deleted.


 


PARCEL 9


 


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


 





















 


PARCEL 10


 


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