2010.11.29 Filing Pkt MBPlaza v Wells Fargo Comp, Cover Sheet Summons Exhibits

~JS44 (Rev 2/OS) CIVIL COVER SHEET

TheJS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service ofpleadings orotherpapers as required bylaw, except as providedby local rules ofcourt. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk ofCourt forthe purpose of initiatingthe civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) NOTICE: Attorneys MuST Indicate All Re-filed Cases Below.

I. (a) PLAINTIFFS DEFENDANTSM B PLAZA, LLC a Florida Limited Liability Corporation WELLS FARGO BANK N.A.

(b) County of Residence of First Listed Plaintiff MIAMI-DADE County of Residence of First Listed Defendant~ (EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLV)

(c) Attorney’s (Firm Name, Address, and Telephone Number) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACTLAND INVOLVED.

DAVID H. CHARUP, ESQ.CHARLIP LAW GROUP, LC Attorneys (If Known)

17501 Biscayne Blvd. Suite 510, Aventura, FL 33160

II. BASIS OF JURISDICTION (Place an “X” in One Dos Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an X” in One Box for Plajntirf(For Diversity Cases Only) and One Dos for Derendanl)

ci t U.S. Government ci 3 Federal Qnestion PTF DEF PIF DEFPlainlilT (U.S. Government Not a Party) Citizen ofThis State ci I ci I Ineorporaled or Principal Place t 4 ci 4

of Business In This State

ci 2 U.S. Government vtJ 4 Diversity Citizen orAnother State ci 2 ci 2 Incorporated and Principal Place ci S I’S 5Defendant of Bosiness In Another State

(Indicate Citizenship ofParties in Item Ill)

Cilizen or Subject ora ci 3 ci 3 Foreign Nation ci 6 ci 6Foeeirn_Country

IV. NATURE OF SUIT (Place an X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

ci 110 Insorance PERSONAL INJURY PERSONAL INJURY ci 610 Agriculture ci 422 Appeal 28 USC 158 ci 400 Stale Reapporlionmealci 120 Marine ci 310 Airplane ci 362 Personal tnjury . ci 620 Other Food & Drug ci 42) Withdrawal ci 410 Antitrustci 130 Miller Art ci 315 Airplane Product Med. Malpractice ci 625 Drug Related Seizure 28 USC 157 ci 430 Banks and Bankingci 140 Negotiable enstrnment Liability ci 365 Personal Injury . of Property 21 USC ISI 0 450 Commerceci ISO Recovery ofOverpayment ci 320 Assault. Libel & Product Liability ci 630 Liquor Laws PROPERTY RIGHTS 0 460 Deportation

& Enforcement ofsudgment Slander ci 368 Asbestos Personal ci 640 R.R. & Truck ci 820 Copyrights ci 470 Racketeer Influenced andci 151 N edicare Ad ci 330 Federal Employees’ Injury Producl ci 650 Airline Rega. ci 830 Pascal Corrupt Organizationsci 152 Recovery or Dersulted Lisbilily Liability ci 660 Occupalional ci 840 Trademark ci 480 Consumer Credit

Student Loans ci 340 Marine PERSONAL PROPERTY Ssrely/Heallh ci 490 Cable/Sal TV(Easel. Veterans) ci 345 Marine Product ci 370 Other Fraud ci 690 Olher ci 110 Seleelive Service

ci 153 Recovery ofOverpayment Liability ci 371 Truth in Lending LABOR SOCIAL SECURITY ci 850 SecuritieslCommodilies/of veteran’s Benents ci 350 Motor Vehicle ci 380 Other Personal ci 710 Fair Labor Slandards 0 861 HIA (I 395ff) Exchange

ci 160 Stockholders’ Suits ci 355 Motor Vehicle Property Damage Act ci 862 Black Lung (923) ci 875 Customer Challenge~ 190 Oiher Contract Product Liability ci 385 Property Damage ci 720 Lsbor/Mgmt. Relations ci 86) DIWC/DIWW (4O5(g)) I 2 USC 3410ci 195 C ontrac I Product Liability ci 360 Other Personal Producl Liability ci 730 Labor/Mgmt.Reporling ci 864 SSID Tille XVI ci 890 Olher Slatutory Actionsci 196 Franchise Injury & Diact ooure Act ci 865 RSI (40S(g)) ci 891 Agricullural Arts

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ci 740 Railway Labor Act FEDERAL TAX SUITS 0 892 Economic Slabilization Adci 210 Land Condemnation ci 441 Voting ci 510 Motions to Vacate ci 790 Other Labor Litigation ci 870 Taxes (U.S. Plaielitr 0 893 Environmenlal Mailersci 220 Foreclosure 0 442 Employmeat Sentence ci 791 EmpI. Ret. Inc. Secorit or Defendant) ci 894 Energy Allocation Actci 230 Rent Lease & Ejectment 0 443 Houaiog/ Habeas Corpus Act ci 871 IRS—Third Party ~ 895 Freedom of Information Actci 240 Torts to Land Accommodations ci 530 General 26 USC 7609ci 245 Tort Product Liability ci 444 ~Vetfare ci 535 Death Penalty I 1MM IC PA T0(SN 0 900 Appeal of Fee Delermisation

445 Amer. w/Disabilities 462 Naturalization Under Equal Access to Justice~ ci 540 Mandamus & Otherci 290 All Other Real Property ~ Employment Application

446 Amer. w/Disubililies 46) Habeas Corpus-Alien~ Olher - ci 550 Civil Rights ci Delaince

465 Other Immigration 950 Conslitulionalily ofSlate0 440 Other Civil Rights ci 555 Prison Condition ci Actions Statutes

V. ORIGIN (Place un’X” in One Box Only) Appeal to DistrictTransferred from Judge from,,~ I Original ~ 2 RernDved from CI 3 Re-filed- CI 4 Reinstated or ~ 5 another district CI 6 Multidistrict ~ 7

Proceeding State Court (see VI below) Reopened (speciPj) Litigation Judgment

a) Re-filed Case CI YES 0 NO b) Related CaSeS CI YES ~? NOVI. RELATED/RE-FILED (See inalructions

CASE(S). secondpsge): JUDGE DOCKETNUMBER

I Cite the U.S. Civil Statute under which you are filing and Write a Brief Statement of Cause (Do not cite jurisdictional statutes unlessI diversity):

VII. CAUSE OF ACTIoN~ 28 U.S.C. § 1332 (diversity).I 28 U.S 8 2201 (declaratory judgment)~ LENGTH OF TRIAL via 2 days estimated (for both sides to try entire case)

VIII. REQUESTED IN CI CHECK IF THIS IS A CLASS ACTION DEMANDS CHECK YES only if demanded in complaint:COMPLAINT: UNDER F.R.C.P. 23 JURY DEMAND: CI Yes ~‘ No

DATEABOVE INFORMATION IS TRUE & CORRECT TO IGNATUREJ4AT74~5/CORD November 29, 2010ILTHE BEST OF MY KNOWLEDGE

(d) Check County Where Action Arose ió MIAMI- DADE ci MONROE ci EROWARD ci PALM BEACH ci MARTIN 0 ST. LUCIE 0 INDIAN RIVER ci OKEECHOBEEBIG E LAN D S

FOR OFFICE USE ONLY

1FFAM OUNT RECEIPT P

UNITED STATES DISTRICT COURT FOR THE SOUTHERN

DISTRICT OF FLORIDA

M B Plaza, LLC, a Florida Limited LiabilityCorporation, } Civil Action, File Number:

}}

Plaintiff, }}}

v. }}

WELLS FARGO BANK, National Association;

Defendant. }}

COMPLANT FOR DECLARATORY AND NJUNCTIVE RELIEF

Plaintiff, M B Plaza, LLC, a Florida limited liability corporation, sues Defendant WELLS

FARGO BANK, National Association for declaratory and injunctive relief and to stay a pending

foreclosure proceeding, and states:

Introduction

1. By this action, the Plaintiff seeks a declaration of its rights and obligations to the

Defendant under certain loan documents including a note and mortgage for a shopping center

owned by the Plaintiff after such loan documents had been assigned by the original lender,

securitized and then further assigned. Additionally, supplemental injunctive relief is being sought

in the event the Court determines that the Defendant lacks standing to enforce the loan

documents.

CHARLIP LAW GROUP, LC 17501 BISCAYNE BLVD. STE. 510 AVENTURA FL 33160 T (305) 354-9313 F (305)354.9314 Page 1

Parties and Jurisdiction

2. Plaintiff M B Plaza, LLC (“Plaintiff’) is a Florida limited liability corporation

whose principal address is located in Aventura, Miami-Dade County, Florida.

3. This Court has jurisdiction under 28 U.S.C. §1332 (diversity). Declaratory and

injunctive relief is proper pursuant to 28 U.S.C. § 2201 (declaratory judgment).

4. Venue is proper in this Court pursuant to 28 U.S.C. § l39l(a)(2) (a substantial

part of the events or omissions giving rise to the claim occurred in this district).

5. Defendant WELLS FARGO BANK, N.A. (“Defendant”) is a national banking

association that does business throughout the United States and in Miami-Dade County, Florida.

6. Defendant has alleged that as of September 29, 2010 it purchased from Square

Mile/RAM Acquisition, LLC the note, mortgage and related loan documents described

hereinafter and as a result thereof it claims to own and hold the note, mortgage and related loan

documents and is the real party in interest. Square Mile/RAM Acquisition, LLC is a corporate

entity that allegedly purchased the Note and Mortgage and related documents from an entity that

allegedly acquired them from the corporate trustee of a commercial mortgage pass-through

securitized trust.

General Allegations

7. The real property that is the subject of this action is a shopping center having an

address of 2507 West Hillsborough Avenue and is located in Tampa, Hillsborough County,

Florida (“the shopping center”).

8. On or about September 12, 2006, Plaintiff executed and delivered to Column

Financial, Inc. (“Column Financial”), a Promissory Note (“the Note”) in the amount of Three


Million, Two Hundred Thousand Dollars and xxIlOO Cents ($3,200,000.00). A copy of the Note

is attached hereto as Exhibit I.

9. As security for the Note, on or about September 12, 2006, Plaintiff executed and

delivered to Column Financial a Mortgage, Security Agreement and Assignment of Leases and

Rents (“the Mortgage”), which was recorded on September 25, 2006, in Official Records Book

16979, at Page 0651, Public Records of Hillsborough County, Florida, upon and to the shopping

center, together with all improvements, appurtenances, and fixtures. A copy of the Mortgage is

attached hereto as Exhibit 2.

10. On or about September 12, 2006, Column Financial allegedly assigned the Note

and Mortgage to Wells Fargo Bank, N.A. as Trustee for the registered holders of Credit Suisse

First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,

Series 2006-CS (the “Wells Fargo Trustee”), pursuant to an Assignment of Mortgage dated

September 12, 2006, which was recorded on October 31, 2007, in Official Records Book

18222, at Page 1, Public Records of Hillsborough County, Florida, a copy of which is attached

hereto as Exhibit 3. Additionally, Column Financial allegedly executed an Allonge to the Wells

Fargo Trustee, which is attached to the Note as Exhibit IA.

11. On or about February 3, 2010, the Wells Fargo Trustee allegedly assigned the

Note obligations, Mortgage, and the related loan documents, without recourse, to CSMC 2006-

CS Armenia Retail, LLC, pursuant to an Assignment of Mortgage, Security Agreement and

Assignment of Leases and Rents and Other Loan Documents, which was recorded on February

4, 2010, in Official Records Book 19703, at Page 1077, of the Public Records of Hillsborough

County, Florida, a copy of which is attached hereto as Exhibit 4. In connection with this

CHARLIP LAWGROUP, LC 17501 BISCAYNE BLVD. STE. 510 AVENTURA FL 33160 T (305) 354-9313 F (305)354-9314 Page 3

assignment, an Allonge was allegedly executed to CSMC 2006-CS Armenia Retail, ELC,

which is attached to the Note as Exhibit lB.

12. On or about July 21, 2010, Square Mile/RAWI Acquisition, LLC allegedly

purchased from CSMC 2006-CS Armenia Retail, EEC, without recourse, the note, mortgage

and other loan documents at issue in this action. On the same day, CSMC 2006-CS Armenia

Retail, EEC, as Assignor, allegedly executed an allonge to the note and an assignment of the

mortgage and other loan documents in favor of Square Mile/RAM Acquisition, LEC recorded

on August 6, 2010, in Official Records Book 20015, at Page 836 of the Public Records of

Hilisborough County, Florida, a copy of which is attached hereto as Exhibit 5. The Allonge that

was allegedly executed to Square Mile/RAM Acquisition, LLC is attached to the Note as

IC’t~A1IiU1L I~.

13. On or about September 29, 2010, Wells Fargo Bank, NA allegedly purchased

from Square Mile/RAM Acquisition, EEC, without recourse, the note, mortgage and other loan

documents at issue in this action. On the same day, Square Mile/RAM Acquisition, EEC, as

Assignor, allegedly executed an allonge to the note and an assignment of the mortgage and

other loan documents in favor of Wells Fargo Bank, NA recorded on October 4, 2010, in

Official Records Book 20116, at Page 4 of the Public Records of Hillsborough County, Florida,

a copy of which is attached hereto as Exhibit 6. The Allonge that was allegedly executed by

Square Mile/RAM Acquisition, LLC to Wells Fargo Bank, NA is attached to the Note as

Exhibit ID.

14. On or about November 12, 2010, the Defendant has demanded that the Plaintiff

provide it with reports, rental payments and mortgage payments under the loan documents A

copy of the foregoing correspondence is attached hereto as Exhibit 7.


15. On or about November 15, 2010, prior to the filing of this action, the Plaintiff

requested the Defendants counsel to provide clarification as to who properly owned and held the

subject Note and Mortgage and refused providing Defendant with the performance it was

requesting from Plaintiff pending the receipt of adequate assurances and proof of the

Defendant’s standing and right to receipt of such performance. A copy of the foregoing

correspondence is attached hereto marked Exhibit 8.

16. The Plaintiff’s specific reservations concerning the Defendant’s standing and

ownership of the Note, Mortgage and related loan documents arise from the transfers of the

Note and Mortgage and related loan documents as is more particularly detailed hereinafter. In

particular, Plaintiff questions transfers to and from the Credit Suisse Commercial Mortgage

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17. This specific trust, as with all trusts, is governed by certain operative

documents that dictate the actions of any and all agents for the trust, their powers and how

they may act on behalf of the trust. An agent for the trust, such as the Wells Fargo Trustee,

has absolutely no power to act outside of the powers and authority vested in it by these

documents.

18. The governing documents for this trust are the Prospectus, Prospectus

Supplement, Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements

referred to in the Pooling and Servicing Agreement.

19. According to the Prospectus Supplement for the Trust, Form 424B5, filed with

the Securities and Exchange Commission (the “SEC), the Trust is an “Issuing Entity” and is a New

York common law trust established pursuant to a Pooling and Servicing Agreement dated December

1, 2006. This document consisted of 832 pages and was therefore too large to attach to this

CHARLIP LAW GROUP, LC 17501 BISCAYNE BLVD. STE. 510 AVENTUBA FL 33160 T (305) 354-9313 F (305)354.9314 Page 5

Complaint by way of exhibit but it can be found directly on the Security and Exchange

Commission’s website at:

http:I/www.secinfo.coml$ISEC/Documents.asp’?CIK=l382095&Party=BFO&Type=424B5&Lab

el=Prospectus+%2D%2D+Rule+424%28b%29%285%29.

20. The operative and governing document of this Trust is the Pooling and Servicing

Agreement (the “PSA”) dated December 1, 2006 and which was filed with the SEC. This

document consisted of 492 pages and was therefore too large to attach to this Complaint by way of

exhibit but it can be found directly on the Security and Exchange Commission’s website at:

http://www.secinfo.comldRSm6.uv.c.htm.

21. According to the PSA and Prospectus Supplement, the parties duly appointed and

ni’ nA tim ~rnn te fnn nftl,a mr,i t nra.ill ~Jl i~tj. lfl Lilt’ tilliflhl Li LI ti-Li tfl Lilt’ 1. itt t Q.it’.

a) Originating Lender: Column Financial, Inc.

b) Seller & Sponsor: Column Financial, Inc.

c) Depositor: Credit Suisse First Boston Mortgage Securities Corp.

d) Issuing Entity: Credit Suisse Commercial Mortgage Trust 2006-C5

e) Trustee: Wells Fargo Bank, NA

t) Master Servicer: KeyCorp. Real Estate Capital Markets, Inc.

g) Special Servicer: LNR Partners, Inc.

22. The Trust and the Trustee are governed by the Laws of the State of New York as it

relates to the governance of the Trust by the Trustee and the activities of the Trust. New York

Trust law says every sale, conveyance or other act of the trustee in contravention of the trust

CHARLIP LAW GROUP, LC 17501 BISCAYNE BLVD. STE. SlO AVENTLJRA FL 33160 T (305) 354-9313 F (305)354.9314 Page 6

is void. “NY CLS EPTL § 7-2.4, Application of Muratori, 183 Misc. 967, 970 (N.Y. Sup. Ct.

1944) See also Dye v Lewis 67 Misc 2d 426, 324 NYS2d 172 (1971), mod on other grounds 39

App Div 2d 828, 332 NYS2d 968 (1972, 4th Dept). (The authority of a trustee to whom a

mortgage had been delivered under a trust indenture was subject to any limitations imposed

by the trust instrument, and every act in contravention of the trust was void.)

23. Tn several different sections of the PSA, the Trust elected to be treated as a Real

Estate Mortgage Investment Conduit (a “REMIC”) pursuant to the provisions and regulations of

a REMIC found at 26 U.S.C. §~ 860A-F; Internal Revenue Code (the “Code”), Section 860.

24. Election by the Trust to be treated as one or more REMIC’s imposes strict and

absolute requirements regarding transfers of assets (i.e. mortgage loans or notes) to the Trust and

WC Section 860 outlines and governs these strict requirements.

25. According to the PSA, Section 1.01 the Startup Day for this trust was elected to

be the same date as the Closing Date which was: December 22, 2006.

26. According to Internal Revenue Code, Section 860G. All of a REMIC’s loans

must be acquired on the startup day of the REMIC or within three months thereafter.” Any

contribution of an asset (other than cash) that is contributed to the REMIC after the Startup Day

(or within the allowable 90 day window) is deemed an “unqualified or prohibited

contribution” and can cause the entire REMIC Trust to lose its tax-free status which would be

catastrophic to the Trust (and all the individual beneficiaries, shareholders or Certificate holders)

because the Trust cash flow would be subjected to double-taxation or at a minimum, the prohibited

transaction is taxed at 100% to the Trust.

27. For this reason, all parties serving as agents for the Trust must strictly adhere to

the guidelines and conveyance clauses specifically delineated in Article I, Section 2.01 of the PSA

CHARLIP LAW GROUP, LC 17501 BISCAYNE BLVD. STE. 510 AVENTURA FL 33160 T (305) 354-9313 F (305)354-9314 Page 7

lest the Trust lose it special REMIC tax status which would result in double taxation on all trust

income, or, at the very least, subject the Trust to a 100% tax on any and all prohibited transactions.

28. Section 2.01 of the PSA in the instant case specifically requires the Depositor (and

only the Depositor) to convey the mortgage loans to the Trustee. Simply put, the PSA allows for

absolutely no other form, method or chain of conveyance of mortgage loans to the Trust.

Specifically such paragraph states: ‘[tjhe Depositor, concurrently with the execution and delivery

hereof, does hereby assign, sell, transfer, set over and otherwise convey to the Trustee, without

recourse, for the benefit of the Certificate holders all the right, title and interest of the Depositor,

including any security interest therein for the benefit of the Depositor, in, to and under (i) the

Original Trust Mortgage Loans, (H) the Mortgage Loan Purchase Agreements to the extent they

relate to the Trust Mortgage Loans and (Hi) all other assets included or to be included in the

Trust Fund.”

29. What this clause clearly stipulates is that the Depositor, Credit Suisse First Boston

Mortgage Securities Corp., is the ppjy entity that can assign, transfer and convey the mortgage

loans to the Trustee for this Trust.

30. Moreover, such conveyance would have had to happen on or after the date the

Trust was established otherwise there would be no entity to receive the conveyance. Here the

start-up/closing date was December 22, 2006, yet the assignment was dated September 12, 2006,

over two (2) months before the trust was even formed.

31. Equally crucial to the conveyance is that the conveyance must have been made

from the Depositor, Credit Suisse First Boston Mortgage Securities Corp., and not the Originator,

Column Financial.

32. The Trustee had no requisite authority conferred upon it by the operative

CHARLIP LAW GROUP, LC 17501 BISCAYNE BLVD. STE. 510 AVENTURA FL 33160 T (305) 354-9313 F (305)354-9314 PageS

and governing documents, the PSA, to accept any conveyance by assignment of a mortgage

loan in September, 2006 or in the manner in which the Assignment of Mortgage purports

to have conveyed the mortgage loan (from Column Financial directly to the Trustee) which is

the subject of this action; and, in so doing, violated the PSA which is a serious act of infidelity

to the Trust and violated several provisions of the Internal Revenue Code, Section 860

governing the REMIC provisions for this Trust.

33. It is the Plaintiff’s contention that the conveyance of the mortgage loan appears to

be null and void under New York trust law as it relates to the powers of the Trustee to accept

and/or convey a mortgage loan for this trust in this manner.

34. The Plaintiff further contends that because the subject Note and Mortgage did

p..inm ,,.~ ~ :+.,i ,-~.. .,~A ~ a,; p~., ~ ,..,i;.. ; i;t.-0i. +,. kag..t pi~~~pt.uif ~99USiLt’LS Ui. ussxgnt.u lLltU LLIIS 1.1 LiSt, LI1L#fl?1U1t_~ allUufl_I ..n.ititj iS iiat#if LU Lit’

found to be the true and actual owner and holder of the Note and Mortgage. As a severance of the

ownership and possession of the original Note and Mortgage has occurred and as the true owner

and holder of both the original Note and Mortgage are unknown as a result of multiple

assignments, the Plaintiff believes that the Defendant is without legal standing to demand

enforcement of the Note and Mortgage and is legally precluded from foreclosing on and selling

the Property.

35. Notwithstanding the above contention, there is presently pending in Hillsborough

County Circuit Court a foreclosure lawsuit bearing case number 10-010219 DIV G in which the

Defendant is seeking to be substituted as a party plaintiff.

36. Accordingly, there is an actual and justiciable controversy relating to the

legal rights and duties of Plaintiff and Defendant under the documents referenced

herein in that the Defendant has advised Plaintiff that it believes that it is the proper

CHARLIP LAW GROUP, LC 17501 BISCAYNE BLVD. STE. 510 AVENTURA FL 33160 T (305) 354-9313 F (305)354-9314 Page 9

and legal titleholder to the Note and Mortgage with legal standing to maintain an action

for foreclosure and with the rights to demand performance under the Note and

Mortgage. This controversy is of sufficient immediacy and reality to warrant the

issuance of a declaratory judgment.

37. Plaintiff has complied with all conditions precedent to the relief requested herein

or such conditions have all been waived or excused.

38. Plaintiff has retained the undersigned counsel and has agreed to pay said counsel

a reasonable attorneys fee.

COUNT I: DECLARATORY RELWP

39. Plaintiff reaffirms and reaUeges paragraphs 1 through 38 hereinabove as if set

forth more fully hereinbelow.

40. This is an action for declaratory relief which is being brought pursuant to 28

U.S.C. § 2201 to declare that Defendant has no legal or equitable rights in the Note and

Mortgage for purposes of foreclosure and!or enforcement and that said Defendant has no legal

standing to institute or maintain foreclosure on the Property.

41. 28 U.S.C. § 2201 provides that the courts shall have the power, upon appropriate

pleading, to declare rights and other legal relations of any interested party petitioning for such

declaration, whether or not further relief is or could be prayed, and that the declaration shall have

the force and effect of a final judgment.

42. As set forth above, the evidence of record demonstrates that Defendant does not

possess the requisite legal rghts to foreclose or otherwise seek enforcement of the Note and

Mortgage due to a defective transfer of the Note and Mortgage from the original lender (Column


Financial). Had the transfer been proper, Defendant would have admitted as such in its written

correspondence to the Plaintiff.

43. The declaration by this Court that Defendant has no legal right and cannot satisfy

the legal standing requirements to institute and maintain a foreclosure is proper subject matter for

declaratory relief.

WHEREFORE, Plaintiff demands that the court adjudge:

(a) that Defendant lacks legal standing or the proper legal or equitable interest in either

the Note and Mortgage to institute or maintain a foreclosure action or to otherwise seek

enforcement of the terms and provisions of the aforesaid documents and any security agreements

related thereto; and

(b) that the attempt by Defendant to conduct a foreclosure of the Property is legally

defective and precluded from enforcement; and

(c) that the Plaintiff recover its costs.

DATED this 29th day of November, 2010.

Is! David H. CharlipDavid H. Charlip, Esq.,Fla. Bar #: 329932Attorney for PlaintjffCharlip Law Group, L.C.AVENTURA BAYVIEW17501 Biscayne Blvd. Suite 510Aventura, FL 33160Tel: (305) 354-9313Fax: (305) 354-9314

CHARLIP LAWGROUP, LC 17501 BISCAYNE BLVD. STE. 510 AVENTURA FL 33160 T (305) 354-9313 F (305)354-9314 Page 11

EXHIBIT A

(Borrower Specific and State Specific Provisions)

41. Construction of this Note. In the event of any conflict between any provisions of this Exhibit Ato this Note and any other part of this Note, the terms and provisions of this Exhibit A to this Noteshall govern and control.

A-2. Borrower Specific Provisions. The following amendments are hereby made to this Note:

A-2.1 Additional Recourse Event. In addition to the Recourse Events set forth in Section1.05 of this Note, all of the indebtedness evidenced by this Note and the other obligationsof Borrower under the Loan Documents shall be deemed fully recourse to Borrower untilsuch time as Borrower has delivered evidence to Lender (in form and substancereasonably satisfactory to Lender) that

(1) the Beauty School Tenant (as defined below) shall have occupied its spaceunder the Beauty School Lease (as defined below), shall be open for business,and full rent payments have commenced, and there are no outstanding rentabatements, off-sets, rent concessions or free rent periods, such Beauty SchoolLease shall be unchanged from the lease agreement delivered to Lender as partof the transaction contemplated hereby; and

(2) the China Garden Tenant (as defined below) shall have occupied its space underthe China Garden Lease (as defined below), shall be open for business, and fullrent payments have commenced, and there are no outstanding rent abatements,off-sets, rent concessions or free rent periods, such China Garden Lease shall beunchanged from the lease agreement delivered to Lender as part of thetransaction contemplated hereby; and

(3) the Questamente Tenant (as defined below) shall have occupied its space underthe Questamente Lease (as defined below), shall be open for business, and suchQuestamente Lease shall be unchanged from the lease agreement delivered toLender as part of the transaction contemplated hereby.

The following terms shall have the meanings set forth below:

(a) “Beauty School Tenant” shall mean Kevin H. Tran and Dave D. Nguyen.

(b) ‘Beauty School Lease” shall mean that certain Lease Agreement, dated August27, 2004, between the Beauty School Tenant, as tenant, and Armstrong ArmeniaJunction (predecessor-in-title to Borrower), as landlord, as amended byAmendment to Lease Agreement, dated June, 2005.

(c) “China Garden Tenant” shall mean De-Le Chen and Shu-Qin Chen.

(d) “China Garden Lease” shall mean that certain Lease Agreement, dated June 2,2005, between the China Garden Tenant, as tenant, and Armstrong ArmeniaJunction (predecessor-in-title to Borrower), as landlord.

(e) “Questamente Tenant” shall mean Questamente, Inc.

(f) “Questamente Lease” shall mean that certain Lease Agreement, between theQuestamente Tenant, as tenant, and Armstrong Armenia Crossing Development,LLC (predecessor-in-title to Borrower), as landlord.

Promissory Note 11 Shoppes at Armenia/Tampa, FL

(g) ‘Recourse Leases” shall mean, collectively, the Beauty School Lease, the ChinaGarden Lease and the Questamente Tenant. A “Recourse Lease” shall meanany one of the foregoing Recourse Leases.

As part of the evidence showing satisfaction of the foregoing, Borrower shall provide toLender affidavits certifying the foregoing from the respective foregoing Tenants, andprovide to Lender an original estoppel certificate executed by the respective foregoingTenants that such Tenant is in occupancy, open for business, paying its rent in full andthat there are no outstanding rent abatements, off-sets, rent concessions or free rentperiods thereunder, and that there are no defaults under its respective Lease (nor doesthere exist any event or conditions, which with the passage of time or the giving of notice,or both, could result in such a default).

A substitution of a replacement tenant (such replacement tenant to be reasonablysatisfactory to Lender) entering into a Lease on equal or better terms, as reasonablydetermined by Lender, than the respective Recourse Lease which is being replaced forthe total space demised by the respective Recourse Lease and otherwise satisfying theforegoing requirements for the respective Recourse Lease under this Section shall beallowed; provided, however, for the Questamente Lease, full rent payments must havecommenced, and there are no outstanding rent abatements, off-sets, rent concessions orfree rent periods for such replacement tenant under the Questamente Lease,

Lender agrees that within ten (10) business days of Borrower’s written request andfollowing Lenders determination that all of the requirements set forth above have beensatisfied to Lender’s reasonable satisfaction, Lender will send written notice to Borrowerof such satisfaction.

A-3. State Specific Changes. Intentionally Deleted.

Proniissory Note 12 Shoppes at Armenia/Tampa, FL

NOTE ALLONGE

ENDORSEMENT to that certain Promissory Note, dated of even date herewith, in the stated principalamount of $ ?~ 2 03, o o o Co , made by M B PLAZA, LLC, a Florida limited liability company(“Borrower) in favor’of COLUMN FINANCIAL, INC., a Delaware corporation (“Lender”)

Pay to the order of _________________________________________________ a

____________________________ without recourse, representation or warranty, express or implied, except

as may otherwise be expressly set forth in that certain ____________________________ dated

________________ by and between Column Financial, Inc., as Seller and____________________________________________________,as Buyer.

DATE: Asof ≤e~ kn,ber /1,2006

Lender:

COLUMN FINANCIAL, INC., a Delaware corporation

ii I’)By: ____________________________

Name: ~e”.$Oina

?Title: ~~

THIS NOTE ALLONGE SHOULD BE PERMANENTLY AFFIXED TO THE PROMISSORY NOTEDESCRIBED ABOVE

Allonge to Promissory Note

NOTE ALLONGE

ENDORSEMENT to that certain Promissory Note, dated of even date herewith, in the stated principalamount of $ Z a a • a o a Co , made by M B PLAZA, LLC, a Florida limited liability company(~Borrower”) in favor’of COLUMN FINANCIAL, INC., a Delaware corporation (Lende?’)

Pay to the order of _____________________________________________________ a

____________________________ without recourse, representation or warranty, express or implied, except

as may otherwise be expressly set forth in that certain ____________________________ dated

________________ by and between Column Financial, Inc., as Seller and____________________________________________________ as Buyer.

PATE: Asof ≤c’n km be? /1,2006

Lender:


ft R

By:Name: ~e%5o~na‘Title: ~ ~ ~ c{e~ ~


Allonge to Promissory Note

/1,2006

Lender:

Financial,as Buyer.


By:


~~ “~‘ ~.! A. ~ tti;steeforthe- $ rtFrstBOStoP

Corim’rci~~ ~ss- I flrOu~jt1 Certificates, Series

1

NOTE ALLONGE

ENDORSEMENT to that certain Promissory Note, dated of even date herewith, in the stated principalamount of $?, Zoo, a o a. Co , made by M B PLAZA, LLC, a Florida limited liability company(“Borrower”) in favor’of COLUMN FINANCIAL, INC., a Delaware corporation (“Lender)

Pay to the order of ___________________________________________________, a

__________ without recourse, representation or warranty, express or implied, except

be expressly set forth in that certain _____________________________ datedby and between Column Inc., as Seller and

as may otherwise

DATE: As ofU

‘dc-i

Allonge to Promisscry Note

D

ALLONGE

THIS ALLONGE IS TO BE ATTACHED to that certain Promissory Note datedSeptember 12, 2006 (“Note”), payable by M B Plaza, LLC, a FLorida limited liabilitycompany, to the order of Column Financial, Inc., a Delaware corporation (“OriginalLender”), in the original principal amount of Three Million Two Hundred Thousand and 00/100Dollars ($3,200,000.00). The Note was endorsed by Original Lender to the order of Wells FargoBank, N.A., as Trustee for the registered holders of Credit Suisse First Boston MortgageSecurities Corp., Commercial Mortgage Pass-Through Certificates, Series 2006-CS.

PAY TO THE ORDER OF CSMC 2006-CS ARMENIA RETAIL, LLC, AFLORIDA LIMITED LIABILITY COMPANY.

WITHOUT RECOURSE AND WITHOUT REPRESENTATION ORWARRANTy, EXPRESS, IMPLIED OR BY OPERATION OF LAW, OF ANY KINDAND NATURE WHATSOEVER.

Dated: February ~3_, 2010.

WELLS FARGO BANK, N.A., A NATIONALBANKING ASSOCIATION, AS TRUSTEEFOR THE REGISTERED HOLDERS OFCREDIT SUISSE FIRST BOSTONMORTGAGE SECURITIES CORP.,COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-CS

By: LNR Partners, Inc., a Florida corporation,its Attorney-in-Fact under Limited Power ofAttorney dated as of April 9, 2007

By: I —

Randolph J. Wolpert,Vice President

[CORPORATE SEAL]

___________________ h - .

— PLAINTIFF’S • ,..

EXHIBIT

ALLONGE

THIS ALLONGE is made to that certain Promissory Note dated September 12, 2006, inthe original principal amount of $3,200,000.00 from M B Plaza, LLC, a Florida limited liabilitycompany to Column Financial, Inc., a Delaware corporation.

Pay to the order of SQUARE MILE/RAM ACQUISITION LLC, a Delaware limitedliability company (“Assignee”), without recourse or representation or warranty, express,implied or by operation of law, of any kind and nature whatsoever.

The foregoing paragraph shall not impair the representations and warranties of theundersigned pursuant to Section 5.2 of the Agreement for Sale and Purchase of Loan dated June30, 2010 between the undersigned and Assignee.

[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLYI

MIAMI 2221349.3 7249633463

• [SIGNATURE PAGE TO ALLONGE)

CSMC 2006-CS ARMENIA RETAIL, LLC, aFlorida limited liability company

By: LNR Partners, LLC, a Horida limited• liability company, successor by statutory

conversion to LNR Parthers, Inc., a Floridacorporation its manager

• By:________________________Name: RANDOLPH WOLPERTTitle: Vice President

Dated: T”)j 2.1 •,2010

MIAMI 22213493 7249633463 • 2

D

.ALLØNGETGPROMISSOfl’ NOTE

i’hei~mJssgiy $ote~tQMii’th this Allonge is attached, 4aSqci September 12, 2006, and made byM B Plaza, iLc, a Jlond&bnuted liability company~ in the origmal principal sum of ThreeMillion Two Hundred Tho’usand Dollars and >To/l00 ($3,200,000400) in favor of SquareMileIR.AM Acquisition LU), a Delaware lhnitcd liability company (‘~flolder”), as successor to(25MG 2006-CS Armema Retail, LLC, aFlonda hunted, liability company, as succegsor to WellsFargo Bank, N A , a national banking association, as trustee for the registered holders of CreditSuithe Fir~t :B.oston )~1ortgp~ge Seoutities. Corp., Commercial Mortgage. Pass-ThroughCertificates, Series 2006-C5, as successor to Column Fmancial~ mc, a Delaware corporation, ishereby endorsed and assigned (including all beneficial nghts thereunder) by Holder, theundersigned, to WELLS FARGO BANK, NATIONAL ASSOCIATION (“WFBj, wIthoutrecourse, representation or warranty of any kind or natwe except as may be specifically set forthin the Transaction Documents as such term is defined m,Qiat certain Purchase and RepurchaseAgreement and Securities Contract dated as of Septenib~f., 2010, by and among WFB, Holder,and Square Mile/Ram Acquis~tio.nlILJ~.C, aDe1~W&eiim~dJiability..eOrnpany.

PAY TO THE ORDER OF: WELLS FARGO BANK,.Nfl1Q~tM ~;$$~C~AflO~J

DafebSqpteinb~~,.2QkG

SQIJAflMILEIRAM ACQUISITION LLC,Pcl~ware .ljmj iabili company

By:NameA6sS 0!. geloTide:. AuthorizedSignatory

By:.Name: KarenD. .Góllèi’Title: Authorized Sign~tOr~

By:Name: David.A;:D~44Title: Authorized~Sj$~try

D D

ALLONGE.TO PROMISSORY NOTE

The Promissory Note tflMch. 4flqnge is attached, dated September12, .2006;afl&~adflyM B Plaza~, LLC, a Florida limited liability company, in the original principal sum of ThreeMilliqn Two fluncjre4 Thousand Dollars and No/lO0 (S3,2O0~000 00) in fayo~ of SquareMilWRAMAc4uthtiouLLt, a Delaware limited liability company flloldefl, as suctessor tot~S~JC 2006-CSArmenia Retail, LLC, a Florida limited liabthty company, as spccç~ssor toW~flsFargo Bank, N A., a national banking assoajahon, a~ trustee for tliq regfstered holders of CreditSuisse First Boston Mortgage Securities Coip, Commercial Mortgage Pass-ThoughCertificates, Series 2006-C5, as successor to Column Financial, mc, a Delaware corporation, ishereby endorsed and assigned (including all beneficial rights thereunder) by Holder, theundersigned, to WELLS FARGO BANK, NATIONAl.. ASSOCIATION (“WFB”), withoutre~ourse, representation or warranty of any ldndoi nature except as may besj óc ifleally set forthin the Transaction Documents as such term is defined in ~at certain Purchase. and RepurchaseAgreemeptand Securities Contract datedas of Septembei~J20l 0, byand~among WEB, Holder,and Square MilelRam Acquisition U LLC, apela’ we I~i&it~d Ua~*iIty cothpaay.

PAY TO THE ORDER OF: WELLS FARGO BANK, NAt0Nfl ASSOCIATION

Dated: SeptembeQj 201.0:

:SQuAn MILE/RAM ACQUISITION LLC,a Delaware limited liability company

By:Name: Joseph D’AngcloTitle: Authorized Signatory

Name: Karen D. OcherTide: Authorized Signatory

By

Tide: Authorized Signatory

[RECORDERS USE ONLYJ

M B PLAZA, LLC(“BorrowerY’Mortgago~

to

COLUMN FINANCIAL, INC.(“Lendefl’Mortgagee”)

MORTGAGE, SECURITYAGREEMENTAND ASSIGNMENT OF LEASES AND RENTS

Dated: As of September 12, 2006

Location: 2507 West Hilisborough AvenueTampa, Florida

Maturity Date: October 11,2016

Loan No: 4177255

PREPARED BY ANDUPON RECORDATION RETURN TO:

Zacharisen & Associates, PC550 Broad Street, t FloorNewark, New Jersey 07102Attention: David K. Zacharisen

Security Instrument Shoppes atAm~eniaPLAINTIFF’S

EXHIBIT

INDEX OF CONTENTS

GRANTING CLAUSE

FOR PURPOSE OF SECURING CLAUSE

ARTICLE I - COVENANTS OF BORROWER

Section 1.1 — Warranties of Borrower

Section 1.2 — Performance of Obligations

Section 1.3 — Insurance

Section 1.4 — Payment of Taxes

Section 1.5 — Tax and Insurance Impound Account

Section 1.6 — Replacement Reserve

Section 1.7 — Casualty and Condemnation

Section 1.8 — Assignment of Leases and Rents

Section 1.9 — Leases and Licenses

Section 1.10 — Alienation and Further Encumberance

Section 1.11 — Maintenance of Property

Section 1.12 — Access Privileges and Inspections

Section 1.13 — Financial Statements and Books and Records

Section 1.14 — Further Documentation

Section 1.15 .— Security Interest

Section 1.16 — Security Agreement

Section 1.17 — Compliance with Laws

Section 1.18 — Additional Taxes

Section 1.19 — Secured Indebtedness

Section 1.20 — Borrower’s Waivers

Section 1.21 — Waiver of Jury Trial

Section 1.22 — Management

Section 1.23 — Hazardous Waste and Other Substances

Section 1.24 — Indemnification; Subrogation

Section 1.25 — Investment Earnings

Section 1.26 — Defeasance

Section 1.27 — Broker Fee Provisions

ARTICLE II — EVENTS OF DEFAULT

Section 2.1 — Events of Default

ARTICLE Ill — REMEDIES

Section 3.1 — Remedies Available

Security Instrument 2 Shoppes at Armenia

Section 3.2 — Application of Proceeds

Section 3.3 — Right and Authority of Receiver or Lender in the Event of Default;Power of Attorney

Section 3.4 — Occupancy After Foreclosure

Section 3.5 — Cumulative Remedies

Section 3.6 — Payment of Expenses

ARTICLE IV — MISCELLANEOUS TERMS AND CONDITIONS

Section 4.1 — Certain Rights of Lender

Section 4.2 — Notices

Section 4.3 — Successors and Assigns

Section 4.4 — Severability

Section 4.5 — Waiver; Discontinuance of Proceedings

Section 4.6 — Section Headings

Section 4.7 — Governing Law

Section 4.8 — Construction of this Document

Section 4.9 — No Merger

Section 4.10 — Personal Liability

Section 4.11 — Entire Agreement and Modifications

Section 4.12 — Maximum Interest

Section 4.13 — Interest Payable by Lender

Section 4.14 — Cooperation with Rating Agencies and Investors

Section 4.15 — Sales of Note and Security Instrument

Section 4.16 — Waiver of Homestead, Dower, Redemption, and Appraisement

Section 4.17 — Community Property

Section 4.18 — Further Stipulations

EXHIBIT A — LEGAL DESCRIPTION

EXHIBIT B — RESERVES

EXHIBIT C — MODIFICATIONS TO SECURITY INSTRUMENT

EXHIBIT D - BANKRUPTCY REMOTE PROVISIONS


MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND RENTS

THIS MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND RENTS (this“Security Instrument”) is made as of September 12, 2006, between M B PLAZA, LLC, a Florida limitedliability company (“Borrower”), whose address is 19300 West Dixie Highway, Suite 7, North Miami Beach,Florida 33180 and COLUMN FINANCIAL, INC., a Delaware corporation (“Lender”), whose address isEleven Madison Avenue, 9th Floor, New York, New York 10010, Attention: Edmund Taylor.

WITNESS FT H:

To secure the payment of the following:

(1) An indebtedness in the principal sum of THREE MILLION TWO HUNDRED THOUSANDDOLLARS and NO CENTS ($3,200,000.00), lawful money of the United States of America, to bepaid with interest according to a certain Promissory Note, dated the date hereof made byBorrower to Lender, which note has a maturity date of October 11, 2016 (the note together withall extensions, renewals or modifications thereof being hereinafter collectively called the “Note”)The debt evidenced by that certain Promissory Note (such Note, together with any and allrenewals, modifications, consolidations and extensions thereof, is hereinafter referred to as the“Note”) of even date with this Security Instrument, made by Borrower to the order of Lender in theprincipal face amount of THREE MILLION TWO HUNDRED THOUSAND DOLLARS and NOCENTS ($3,200,000.00) (the “Loan” or the “Loan Amount”), together with interest as thereinprovided; and

(2) The full and prompt payment and performance of all of the provisions, agreements, covenantsand obligations herein contained and contained in any other agreements, documents orinstruments now or hereafter evidencing, securing or otherwise relating to the indebtednessevidenced by the Note (the Note, this Security Instrument, and such other agreements,documents and instruments, together with any and all renewals, amendments, extensions andmodifications thereof, are hereinafter collectively referred to as the “Loan Documents”) and thepayment of all other sums therein covenanted to be paid; and

(3) Any and all future or additional advances (whether or not obligatory) made by Lender for thebenefit of Borrower to protect or preserve the Property or the lien or security interest createdhereby on the Property, or for taxes, assessments or insurance premiums as hereinafter providedor for performance of any of Borrower’s obligations hereunder or under the other LoanDocuments or for any other purpose provided herein or in the other Loan Documents (whether ornot the original Borrower remains the owner of the Property at the time of such advances); and

(4) Any and all other indebtedness now owing or which may hereafter be owing by Borrower toLender, however and whenever incurred or evidenced, whether express or implied, direct orindirect, absolute or contingent, or due or to become due, and all renewals, modifications,consolidations, replacements and extensions thereof;

(all of the sums referred to in Paragraphs (1) through (4) above are herein sometimes referred to as the“Debt,” the “secured indebtedness” or the “indebtedness secured hereby”); as well as a fullperformance by the Borrower with respect to all of its covenants and agreements relating to the Debt,BORROWER HAS MORTGAGED, GIVEN, GRANTED, BARGAINED, SOLD, CONVEYED,CONFIRMED, PLEDGED, ASSIGNED AND KYPOTHECATED AND BY THESE PRESENTS DOESDEED, MORTGAGE, GIVE, GRANT, BARGAIN, SELL, CONVEY, CONFIRM, PLEDGE, ASSIGN ANDHYPOTHECATE unto Lender:

(A) All that certain real property situated in the County of Hilisborough, State of Florida, and moreparticularly described on Exhibit A attached hereto and incorporated herein by this reference (the


“Real Estate”), together with all of the easements, rights, prMleges, franchises, tenements,hereditaments and appurtenances now or hereafter thereunto belonging or in any wayappertaining and all of the estate, right, title, interest, claim and demand whatsoever of Borrowertherein or thereto, either at law or in equity, in possession or in expectancy, now or hereafteracquired;

(B) All structures, buildings and improvements of every kind and description now or at any timehereafter located or placed on the Real Estate (the “Improvements”);

(C) All personal property owned by Borrower and now or hereafter located on, attached to or used inand about the Real Estate and/or the Improvements and all furniture, furnishings, fixtures, goods,equipment, inventory or personal property owned by the Borrower and now or hereafter locatedon, attached to or used in and about the Improvements, including, but not limited to, all machines,engines, boilers, dynamos, elevators, stokers, tanks, cabinets, awnings, screens, shades, blinds,carpets, draperies, lawn mowers, and all appliances, plumbing, heating, air conditioning, lighting,ventilating, refrigerating, disposals and incinerating equipment, and all fixtures andappurtenances thereto, and such other goods and chattels and personal property owned by theBorrower as are now or hereafter used or furnished in operating the Improvements, or theactivities conducted therein, and all building materials and equipment hereafter situated on orabout the Real Estate or the Improvements, and all warranties and guaranties relating thereto,and all additions thereto and substitutions and replacements therefor (exclusive of any of theforegoing owned or leased by tenants of space in the Improvements);

(D) All easements, rights-of-way, strips and gores of land, vaults, streets, ways, alleys, passages,sewer rights, drainage rights and other emblements now or hereafter located on the Real Estateor under or above the same or any part or parcel thereof, and all estates, rights, titles, interests,tenements, hereditaments and appurtenances, reversions and remainders whatsoever, in anyway belonging, relating or appertaining to the Real Estate or any part thereof, or which hereaftershall in any way belong, relate or be appurtenant thereto, whether now owned or hereafteracquired by Borrower;

(E) All water, ditches, wells, reservoirs and drains and all water, ditch, well, reservoir and drainagerights which are appurtenant to, located on, under or above or used in connection with the RealEstate or the Improvements, or any part thereof, whether now existing or hereafter created oracquired;

(F) All minerals, crops, timber, trees, shrubs, flowers and landscaping features now or hereafterlocated on, under or above the Real Estate;

(0) All cash funds, deposit accounts and other rights and evidence of rights to cash, now or hereaftercreated or held by Lender pursuant to this Security Instrument or any other of the LoanDocuments (as defined below) including, without limitation, all funds now or hereafter on depositin the Impound Account, the Replacement Reserve, the Repair and Remediation Reserve, theTILC Reserve, if any, or the Lease Holdback Reserve, if any:

(H) All leases, licenses, concessions and occupancy agreements of the Real Estate or theImprovements now or hereafter entered into and all rents, royalties, issues, profits, revenue,income and other benefits (collectively, the “Rents and Profits”) of the Real Estate or theImprovements, now or hereafter arising from the use or enjoyment of all or any portion thereof orfrom any lease, license, concession, occupancy agreement or other agreement pertaining theretoor arising from any of the Contracts (as defined below) or any of the General Intangibles (asdefined below) and all cash or securities deposited to secure performance by the tenants, lesseesor licensees, as applicable, of their obligations under any such leases, licenses, concessions oroccupancy agreements, whether said cash or securities are to be held until the expiration of the


terms of said leases, licenses, concessions or occupancy agreements or applied to one or moreof the installments of rent coming due prior to the expiration of said terms;

(I) All contracts and agreements now or hereafter entered into covering any part of the Real Estateor the Improvements (collectively, the ‘Contracts”) and all revenue, income and other benefitsthereof, including, without limitation, management agreements, service contracts, maintenancecontracts, equipment leases, personal property leases and any contracts or documents relating toconstruction on any part of the Real Estate or the Improvements or to the management oroperation of any part of the Real Estate or the Improvements;

(J) All present and future monetary deposits given to any public or private utility with respect to utilityservices furnished to any part of the Real Estate or the Improvements;

(K) All present and future funds, accounts, instruments, accounts receivable, documents, causes ofaction, claims, general intangibles, all names by which the Real Estate or the Improvements maybe operated or known, all rights to carry on business under such names, and all rights, interestand privileges which Borrower has or may have as developer or declarant under any covenants,restrictions or declarations now or hereafter relating to the Real Estate or the Improvements andall notes or chattel paper now or hereafter arising from or by virtue of any transactions related tothe Real Estate or the Improvements (collectively, the “General Intangibles”);

(L) All water taps, sewer taps, certificates of occupancy, permits, licenses, franchises, certificates,consents, approvals and other rights and privileges now or hereafter obtained in connection withthe Real Estate or the Improvements (including, without limitation, all such items specificallyidentified on Exhibit A attached hereto and incorporated herein) and all present and futurewarranties and guaranties relating to the Improvements or to any equipment, fixtures, furniture,furnishings, personal property or components of any of the foregoing now or hereafter located orinstalled on the Real Estate or the Improvements;

(M) All building materials, supplies and equipment now or hereafter placed on the Real Estate or inthe Improvements and all architectural renderings, models, drawings, plans, specifications,studies and data now or hereafter relating to the Real Estate or the Improvements;

(N) All right, title and interest of the Borrower in any insurance policies or binders now or hereafterrelating to the Real Property or the Improvements including any unearned premiums thereon;

(0) All proceeds, products, substitutions and accessions (including claims and demands therefor) ofthe conversion, voluntary or involuntary, of any of the foregoing into cash or liquidated claims,including, without limitation, proceeds of insurance and condemnation awards.

(P) All other or greater rights and interests of every nature in the Real Estate or the Improvementsand in the possession or use thereof and income therefrom, whether now owned or hereafteracquired by the Borrower.

TO HAVE AND TO HOLD the Property unto Lender, its successors and assigns forever, for the purposesand uses herein set forth.

PROVIDED, HOWEVER, that if the principal and interest and all other sums due or to become due underthe Note, including, without limitation, any prepayment fees required pursuant to the terms of the Note, shallhave been paid at the time and in the manner stipulated therein and all other sums payable hereunder andall other indebtedness secured hereby shall have been paid and all other covenants contained in the LoanDocuments shall have been performed, then, in such case, this Security Instrument shall be satisfied andthe estate, right, title and interest of Lender in the Property shall cease, and upon payment to Lender of allcosts and expenses incurred for the preparation of the release hereinafter referenced and all recording

Security Instrument S Shoppes at Armenia

costs if allowed by law, Lender shall release this Security Instrument and the lien hereof by properinstrument.

ARTICLE I

COVENANTS OF BORROWER

For the purpose of further securing the Debt and for the protection of the security of this SecurityInstrument, for so long as the Debt or any part thereof remains unpaid, Borrower covenants and agreesas follows:

1.1. Warranties of Borrower. Borrower, for itself and its successors and assigns, does herebyrepresent, warrant and covenant to and with Lender, its successors and assigns, that:

(a) Borrower has good and marketable fee simple title to the Property subject only to thoseexceptions shown in the title insurance policy insuring the lien of this Security Instrumentand has full power and lawful authority to grant, bargain, sell, convey, assign, transferand mortgage its interest in the Property in the manner and form hereby done orintended. Borrower will preserve its interest in and title to the Property and will foreverwarrant and defend the same to Lender against any and all claims whatsoever and willforever warrant and defend the validity and priority of the lien and security interestcreated herein against the claims of all persons and parties whomsoever.

(b) Borrower is not presently insolvent and the consummation of the transactioncontemplated by this Security Instrument, the Note and the other Loan Documents willnot render Borrower insolvent. No bankruptcy or insolvency proceedings are pending orcontemplated by Borrower or, to the best knowledge of Borrower, against Borrower or byor against any endorser, cosigner or guarantor of the Note.

(c) All reports, certificates, affldavits, statements and other data furnished by Borrower toLender in connection with the loan evidenced by the Note are true and correct in allmaterial respects and do not omit to state any fact or circumstance necessary to makethe statements contained therein not misleading.

(d) Borrower is not required to obtain any consent, approval or authorization from or to fileany declaration or statement with, any governmental authority or agency in connectionwith or as a condition to the execution, delivery or performance of this SecurityInstrument, the Note or the other Loan Documents which has not been so obtained orfiled.

(e) The Real Estate and the Improvements and the intended use thereof by Borrower complywith all applicable restrictive covenants, zoning ordinances, subdivision and buildingcodes, flood disaster laws, applicable health and environmental laws and regulations andall other ordinances, orders or requirements issued by any state, federal or municipalauthorities having or claiming jurisdiction over the Property. The Real Estate andimprovements constitute a separate tax parcel or parcels for purposes of ad valoremtaxation. The Real Estate and Improvements do not require any rights over, orrestrictions against, other property in order to comply with any of the aforesaidgovernmental ordinances, orders or requirements.

(f) The Property is free from delinquent water charges, sewer rents, taxes and assessments.


(g) As of the date of this Security Instrument, no part of the Real Estate or the Improvementshas been taken in condemnation, eminent domain or like proceeding nor is any suchproceeding pending or to Borrower’s knowledge and belief, threatened or contemplated.

(h) Borrower and the Property are free from any past due obligations for sales and payrolltaxes.

(i) Borrower is in possession of all material licenses, permits and authorizations required byapplicable law for the ownership and operation of the Property.

(j) The Property is free from damage caused by fire or other casualty.

(k) The Property is free of all mechanics’ and materialmen’s liens, whether subordinate orsuperior to the lien of this Security Instrument, including, inchoate mechanics’ andmaterialmen’s liens.

(I) All federal, state and local taxes have been paid (or will be paid at the closing of theLoan) and there are no assessments pending which are due and payab!e.

(m) At all times throughout the term of the Loan (including after giving effect to any Salepermitted pursuant to Section 1.10(b) hereof), (a) none of the funds or other assets ofBorrower1 any guarantor or indemnitor of any portion of the Loan or other indebtednesssecured hereby, or any principal of any of them, constitute property of, or are beneficiallyowned, directly or indirectly, by any person, entity or government subject to traderestrictions under U.S. law, including, but not limited to, the International EmergencyEconomic Powers Act, 50 U.S.C. Sects. 1701 ~g., the Uniting and StrengtheningAmerica by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism(USA Patriot Act) Act of 2001 (Public Law 107-56), The Trading with the Enemy Act,50 U.S.C. App. 1 et ~pq., and any Executive Orders or regulations promulgated underany such legislation with• the result that the investment in Borrower, or any suchguarantor, indemnitor or principal, as applicable (whether directly or indirectly), isprohibited by law or the Loan made by the Lender is in violation of law (any such person,entity or government being referred to herein as an “Embargoed Person”); (b) noEmbargoed Person has any interest of any nature whatsoever in Borrower, or any suchguarantor, indemnitor or principal, as applicable, with the result that the investment inBorrower, or any such guarantor, indemnitor or principal, as applicable (whether directlyor indirectly), is prohibited by law or the Loan is in violation of law; and (c) none of thefunds of Borrower, or any such guarantor, indemnitor or principal, as applicable, havebeen derived from any unlawful activity with the result that the investment in Borrower, orany such guarantor, indemnitor or principal, as applicable (whether directly or indirectly),is prohibited by law or the Loan is in violation of law.

(n) Borrower has delivered a true, correct and complete schedule (the “Rent Roll”) of allleases affecting the Property (collectively, “Leases”) as of the date hereof, whichaccurately and completely sets forth in all material respects for each such Lease, thefollowing: the name of the tenant, the lease expiration date, extension and renewalprovisions, the base rent payable, and the security deposit held thereunder.

(0) Each Lease constitutes the legal, valid and binding obligation of Borrower and, to thebest of Borrower’s knowledge and belief, is enforceable against the tenant thereof. Nodefault exists, or with the passing of time or the giving of notice would exist, under anyLease which would, in the aggregate, have a material adverse effect on Borrower or theProperty.


(p) No tenant under any Lease has, as of the date hereof, paid rent more than thirty (30)days in advance, and the rents under such Leases have not been waived, released, orotherwise discharged or compromised.

(q) All work to be performed by Borrower under the Leases has been substantiallyperformed, all contributions to be made by Borrower to the tenants thereunder have beenmade and all other conditions precedent to each such tenant’s obligations thereunderhave been satisfied.

(r) Each tenant under a Lease has entered into occupancy of the leased premises.

(s) To the best of Borrower’s knowledge and belief, each tenant is free from bankruptcy,reorganization or arrangement proceedings or a general assignment for the benefit ofcreditors.

(t) Except as previously disclosed to Lender in writing, there are no brokerage fees orcommissions payable by Borrower with respect to the leasing of space at the Propertyand there are no management fees payable by Borrower with respect to the managementof the Property.

(u) Borrower is in compliance with all Lease requirements and legal requirements relating tosecurity deposits.

1.2. Performance of Obligations. Borrower shall pay when due the principal of and the interest onthe indebtedness evidenced by the Note. Borrower shall also pay all charges, fees and othersums required to be paid by Borrower as provided in the Loan Documents, and shall observe,perform and discharge all obligations, covenants and agreements to be observed, performed ordischarged by Borrower set forth in the Loan Documents in accordance with their terms. Further,Borrower shall promptly and strictly perform and comply with all covenants1 conditions,obligations and prohibitions required of Borrower in connection with any other document orinstrument affecting title to the Property, or any part thereof, regardless of whether suchdocument or instrument is superior or subordinate to this Security Instrument. In the event thatLender determines that Borrower is not adequately performing its obligations under this Section,Lender may, without limiting or waiving any other rights or remedies of Lender hereunder, takesuch steps with respect thereto as Lender shall deem necessary or proper and any and all costsand expenses incurred by Lender in connection therewith, together with interest thereon at theDefault Interest Rate (as defined in the Note) from the date incurred by Lender until actually paidby Borrower, shall be immediately paid by Borrower on demand and shall be secured by thisSecurity Instrument and by all of the other Loan Documents securing all or any part of theindebtedness evidenced by the Note.

1.3. Insurance. Borrower shall, at Borrower’s expense, maintain in force and effect on the Propertyat all times while this Security Instrument continues in effect “All-risk” coverage insurance againstloss or damage by fire and against loss or damage by other risks and hazards covered by astandard extended coverage policy satisfactory to Lender. Such insurance shall be in an amountequal to not less than 100% of the full replacement cost of the Improvements and Equipment,without deduction for depreciation, and shall contain a replacement cost endorsement and eitheran agreed amount endorsement (to avoid the operation of any co-insurance provisions) or awaiver of any co-insurance provisions. Borrower shall also maintain such other insurance as maybe reasonably required, from time to time, by Lender, including, without limitation (i) floodinsurance if any part of the Property is located in an area identified by the Federal EmergencyManagement Agency as an area having special flood hazards or if reasonably required by Lenderin an amount satisfactory to Lender, (ii) comprehensive commercial general liability insurance,including broad form property damage, blanket contractual and personal injuries coverages in the


following amounts: (1) if the Loan is less than $10,000,000.00 and if the Property is withoutelevators, not less than $1,000,000 per occurrence, $2,000,000 in the aggregate, (2) if the Loanis $10,000,000.00 or more but less than $20,000,000.00 and if the Property is without elevators,not less than $2,000,000 per occurrence, $4,000,000 in the aggregate. (3) if the Loan is$20,000,000.00 or more but less than $50,000,000.00 or if the Property has elevators, not lessthan $5,000,000 per occurrence, $6,000,000 in the aggregate, and (4) if the Loan is more than$50,000,000.00, not less than $10,000,000 per occurrence, $11,000,000 in the aggregate, (iii)law and ordinance coverage in an amount satisfactory to Lender if the Property, or any partthereof, shall constitute a nonconforming use under applicable zoning ordinances, sub-divisionand building codes or other laws, ordinances and requirements, and (iv) rental loss insurance tocover rental losses for a period of at least one year after the date of the fire or casualty inquestion with dollar limits of not less than twelve (12) months of gross income.

All such insurance shall (i) be with insurers authorized to do business in the state within which theReal Estate is located and who have and maintain an AM. Best Company rating acceptable toLender in all respects and, if required by Lender, a Standard and Poor’s rating acceptable toLender in all respects, (H) be delivered to Lender with evidence that said insurance policies havebeen paid current as of the date hereof, (Hi) provide that proceeds thereunder shall be payable toLender, its successors and assigns, pursuant and subject to a mortgagee clause (withoutcontribution) of standard form attached to, or otherwise made a part of, the applicable policy andthat Lender, its successors and assigns, shall be named as an additional insured under all liabilityinsurance policies, (iv) be maintained throughout the term of this Security Instrument atBorrower’s expense, and shall not be cancelled, modified or terminated on less than thirty (30)days’ notice to Lender, and (v) shall be satisfactory in form, amounts and substance to Lender.Borrower shall renew all such insurance and deliver to Lender certificates evidencing suchrenewals at least thirty (30) days before any such insurance shall expire. The delivery to Lenderof the insurance policies or the certificates of insurance as provided above shall constitute anassignment of all proceeds payable under such insurance policies by Borrower to Lender asfurther security for the Debt.

1.4. Payment of Taxes. Borrower shall pay or cause to be paid, except to the extent provision isactually made therefor pursuant to Section 1.5 of this Security Instrument, all taxes, assessments,water charges, sewer rents, ground rents, maintenance charges, other governmental impositionsand other charges which are or may become a lien on the Property or which are assessedagainst or imposed upon the Property. Borrower shall not suffer and shall promptly cause to bepaid arid discharged any lien or charge whatsoever which may be or become a lien or chargeagainst the Property. Borrower shall furnish to Lender receipts for the payment of the all taxesand other charges prior to the date the same shall become delinquent and upon request byLender.

1.5. Tax and Insurance Impound Account. Borrower shall establish and maintain at all times whilethis Security Instrument continues in effect an impound account (the “Impound Account”) withLender for payment of real estate taxes and assessments and insurance on the Property and asadditional security for the Debt. Commencing on the first monthly payment date under the Noteand continuing thereafter on each monthly payment date under the Note, Borrower shall pay toLender, concurrently with and in addition to the monthly payment due under the Note and until theNote and all other Debt is fully paid and performed, deposits in an amount equal to one-twelfth(1/12) of the amount of the annual real estate taxes and assessments that will next become dueand payable on the Property, plus one-twelfth (1/12) of the amount of the annual premiums thatwill next become due and payable on insurance policies which Borrower is required to maintainhereunder, each as estimated and determined by Lender. So long as no default hereunder orunder the other Loan Documents has occurred and is continuing, all sums in the ImpoundAccount shall be held by Lender in the Impound Account to pay said taxes, assessments andinsurance premiums in one installment before the same become delinquent. Borrower shall be


responsible for ensuring the receipt by Lender, at least thirty (30) days prior to the respective duedate for payment thereof, of all bills, invoices and statements for all taxes, assessments andinsurance premiums to be paid from the Impound Account, and so long as no default hereunderor under the other Loan Documents has occurred and is continuing, Lender shall pay thegovernmental authority or other party entitled thereto directly to the extent funds are available forsuch purpose in the Impound Account. The Impound Account shall not, unless otherwiseexplicitly required by applicable law, be or be deemed to be escrow or trust funds, but, atLenders option and in Lender’s discretion, may either be held in a separate account or becommingled by Lender with the general funds of Lender. No interest on funds contained in theImpound Account shall be paid by Lender to Borrower. If the total funds in the Impound Accountshall exceed the amount of payments actually appUed by Lender for the purposes of the ImpoundAccount, such excess may be credited by Lender on subsequent payments to be madehereunder or, at the option of Lender, refunded to Borrower. If, however, the Impound Accountshall not contain sufficient funds to pay the sums required when the same shall become due andpayable, Borrower shall, within ten (10) days after receipt of written notice thereof, deposit withLender the full amount of any such deficiency. If there is a default under this Security Instrumentwhich is not cured within any applicable grace or cure period, Lender may, but shall not beobligated to, apply at any time the balance then remaining in the Impound Account against theDebt in whatever order Lender shall subjectively determine. No such application of the ImpoundAccount shall be deemed to cure any default hereunder.

1.6. Replacement Reserve. As additional security for the Debt, Borrower shall establish andmaintain at all times while this Security Instrument continues in effect a repair reserve (the“Replacement Reserve”) with Lender for payment of costs and expenses incurred by Borrowerin connection with capital repairs, replacements and improvements performed at the Property(collectively the “Repairs”) but no disbursements shall be made for replacements which aredeemed by Lender to be in the ordinary course of business. Commencing on the first monthlypayment date under the Note and continuing thereafter on each monthly payment date under theNote, Borrower shall pay to Lender, concurrently with and in addition to the monthly payment dueunder the Note and until the Note and all other Debt is fully paid and performed, a deposit to theReplacement Reserve in an amount equal to ZERO. So long as no default hereunder or underthe other Loan Documents has occurred and is continuing, all sums in the Replacement Reserveshall be held by Lender in the Replacement Reserve to pay the costs and expenses of Repairs.So long as no default hereunder or under the other Loan Documents has occurred and iscontinuing, Lender shall, to the extent funds are available for such purpose in the ReplacementReserve, disburse to Borrower amounts of not less than $1,500.00 and not more frequently thanonce per month, the amount paid or incurred by Borrower in performing such Repairs uponreceipt by Lender of (a) a written request from Borrower for disbursement from the ReplacementReserve and a certification by Borrower in form and substance satisfactory to Lender that theapplicable item of Repair has been completed and (b) the delivery to Lender of invoices, receiptsor other evidence satisfactory to Lender verifying the cost of performing the Repairs, and (c) ifrequested by Lender, delivery to Lender of affidavits, lien waivers or other evidence reasonablysatisfactory to Lender showing that all materialmen, laborers, subcontractors and any otherparties who might or could claim statutory or common law liens and are furnishing or havefurnished materials or labor to the Property have been paid all amounts due for such labor andmaterials furnished to the Property. The Replacement Reserve shall not, unless otherwiseexplicitly required by applicable law, be or be deemed to be escrow or trust funds, but, atLender’s option and in Lender’s discretion, may either be held in a separate account or becommingled by Lender with the general funds of Lender. A portion of any interest or otherearnings on funds contained in the Replacement Reserve shall be credited to Borrower asprovided in Section 4.13 hereof. In the event that such amounts on deposit or available in theReplacement Reserve are inadequate to pay the costs of Repairs, Borrower shall pay the amountof such deficiency.


1,7. Casualty and Condemnation.

(A) If the Property shall be damaged or destroyed, in whole or in part, by fire or othercasualty, Borrower shall give Lender prompt written notice of the occurrence. Allinsurance proceeds on the Property, and all causes of action, claims, compensation,awards and recoveries for any damage of all or any part of the Property or for anydamage or injury to it for any loss or diminution in value of the Property, are herebyassigned to and shall be paid to Lender. Lender shall apply any sums received by itunder this Section first to the payment of all of its costs and expenses (including, but notlimited to, legal fees and disbursements) incurred in obtaining those sums, and then, asfollows:

(a) In the event that (i) the proceeds of insurance does not exceed fifty (50%)percent of the then outstanding secured indebtedness and (ii) not more than fifty(50%) percent of the Improvements located on the Real Estate has beendestroyed, then if:

(1) no default is then continuing hereunder or under any of the other LoanDocuments and no event has occurred which, with the giving of notice orthe passage of time or both, would constitute a default hereunder orunder any of the other Loan Documents, and

(2) the Property can, in Lender’s judgment, with diligent restoration or repair,be returned to a condition at least equal to the condition thereof thatexisted prior to the casualty or partial taking causing the Foss or damagewithin the earlier to occur of (i) six (6) months after the receipt ofinsurance proceeds or condemnation awards by either Borrower orLender, and (ii) twelve (12) months prior to the stated maturity date of theNote, and

(3) all necessary governmental approvals can be obtained to allow therebuilding and reoccupancy of the Property, and

(4) there are sufficient sums available (through insurance proceeds orcondemnation awards and contributions by Borrower, the full amount ofwhich shall at Lender’s option have been deposited with Lender) for suchrestoration or repair (including, without limitation, for any costs andexpenses of Lender to be incurred in administering said restoration orrepair) and for payment of principal and interest to become due andpayable under the Note during such restoration or repair, and

(5) the economic feasibility of the Improvements after such restoration orrepair will be such that income from their operation is reasonablyanticipated to be sufficient to pay operating expenses of the Property anddebt service on the Debt in full with the same coverage ratio consideredby Lender in its determination to make the loan secured hereby, and

(6) Borrower shall have delivered to Lender, at Borrower’s sole cost andexpense, an appraisal report in form and substance satisfactory toLender appraising the value of the Property as so restored or repaired tobe not less than the appraised value of the Property considered byLender in its determination to make the loan secured hereby, and


(7) Borrower so elects by written notice delivered to Lender within five (5)days after settlement of the aforesaid insurance or condemnation claim,

then, Lender shall, solely for the purposes of such restoration or repair, advanceso much of the remainder of such sums as may be required for such restorationor repair, and any funds deposited by Borrower therefor, to Borrower in themanner and upon such terms and conditions as would be required by a prudentinterim construction lender, including, but not limited to, the prior approval byLender of plans and specifications, contractors and form of construction contractsand the furnishing to Lender of permits, bonds, lien waivers, invoices, receiptsand affidavits from contractors and subcontractors in form and substancesatisfactory to Lender in its discretion, with any remainder being applied byLender for payment of the Debt in whatever order Lender directs in its absolutediscretion.

(b) In all other cases, Lender shall elect, in Lender’s absolute discretion and withoutregard to the adequacy of Lender’s security, sums paid to Lender by an insurermay be retained and applied by Lender, after deduction of Lender’s reasonablecosts and expenses of collection, toward payment of the Debt in such priority andproportions as Lender in its discretion shall deem proper (such application to bewithout prepayment fee or premium (as otherwise required under Section 1.02 ofthe Note), except that if a default has occurred, or an event with notice and/or thepassage of time, or both, would constitute a default, then such application shallbe subject to payment of the prepayment fee or premium computed inaccordance with the Note).

(B) Borrower shall promptly give Lender notice of the actual or threatened commencement ofany condemnation or eminent domain proceeding and shall deliver to Lender copies ofany and all papers served in connection with such proceedings. Notwithstanding anytaking by any public or quasi-public authority through eminent domain or otherwise(including but not limited to any transfer made in lieu of or in anticipation of the exerciseof such taking), Borrower shall continue to pay the Debt at the time and in the mannerprovided for its payment in the Note and in this Security Instrument and the Debt shall notbe reduced until any award or payment therefor shall have been actually received andapplied by Lender, after the deduction of expenses of collection, to the reduction ordischarge of the Debt. Lender shall not be limited to the interest paid on the award by thecondemning authority but shall be enfitled to receive out of the award, interest at the rateor rates provided herein and in the Note. All awards and proceeds of condemnation shallbe assigned to Lender to be applied in the same manner as insurance proceeds pursuantto subparagraph (A) above.

(C) Lender may participate in any suits or proceedings relating to any such proceeds, causesof action, claims, compensation, awards or recoveries and Lender is hereby authorized,in its own name or in Borrowees name, to adjust any loss covered by insurance or causeof action, and to settle or compromise any claim or cause of action in connectiontherewith, and Borrower agrees to execute and deliver from time to time such furtherinstruments as may be requested by Lender to confirm the assignment to Lender of anyaward, damage, insurance proceeds, payment or other compensation. Lender is herebyirrevocably constituted and appointed the attorney-in-fact of Borrower (which power ofattorney shall be irrevocable so long as any Debt is outstanding, shall be deemedcoupled with an interest shall survive the voluntary or involuntary dissolution of Borrowerand shall not be affected by any disability or incapacity suffered by Borrower subsequentto the date hereof), with full power of substitution, subject to the terms of this Section, tosettle for, collect and receive any such awards, damages, insurance proceeds, payments


or other compensation from the parties or authorities making the same, to appear in andprosecute any proceedings therefor and to give receipts and acquittances therefor.

1.8. Assignment of Leases and Rents. Borrower hereby absolutely, presently and unconditionallyassigns to Lender all existing and future Leases, Rents and Profits, it being intended by Borrowerthat this assignment constitutes a present, absolute and unconditional assignment and not anassignment for additional or collateral security only. Borrower hereby grants to Lender the sole,exclusive and immediate right, without taking possession of the Property, to demand, collect (bysuit or otherwise), receive and give valid and sufficient receipts for any and all of said Leases,Rents and Profits, for which purpose Borrower does hereby irrevocably make, constitute andappoint Lender its attorney-in-fact with full power to appoint substitutes or a trustee to accomplishsuch purpose (which power of attorney shall be irrevocable so long as any Debt is outstanding,shall be deemed to be coupled with an interest, shall survive the voluntary or involuntarydissolution of Borrower and shall not be affected by any disability or incapacity suffered byBorrower subsequent to the date hereof). Lender shall be without liability for any loss which mayarise from a failure or inability to collect Rents and Profits, proceeds or other payments.However, until the occurrence of a default under this Security Instrument which has not beencured within any applicable grace or cure period, Borrower shall have a revocable license tocollect and receive the Rents and Profits when due and prepayments thereof for not more thanone month prior to due date thereof. Upon the occurrence of a default hereunder which has notbeen cured within any applicable grace or cure period, Borrower’s license shall automaticallyterminate without notice to Borrower and Lender may thereafter, without taking possession of theProperty, collect the Rents and Profits itself or by an agent or receiver. From and after thetermination of such license, Borrower shall be the agent of Lender in collection of the Rents andProfits and all of the Rents and Profits so collected by Borrower shall be held in trust by Borrowerfor the sole and exclusive benefit of Lender and Borrower shall, within one (1) business day afterreceipt of any Rents and Profits, pay the same to Lender to be applied by Lender as hereinafterset forth. Neither the demand for or collection of Rents and Profits by Lender shall constitute anyassumption by Lender of any obligations under any agreement relating thereto. Lender isobligated to account only for such Rents and Profits as are actually collected or received byLender.

1.9 Leases and Licenses. Borrower covenants and agrees that it shall not enter into any lease (orrenewal thereof) affecting 1,000 square feet (the “Lease Consent Threshold”) or more of theImprovements or having a term of more than 5 years without the prior written approval of Lender,which approval shall not be unreasonably withheld. It is acknowledged that Lender intends toinclude among its criteria for approval of any such proposed tease the following: (i) such leaseshall be with a bona-fide arm’s-length tenant; (H) such lease shall not contain any rental or otherconcessions which are not then customary and reasonable for similar properties and leases in themarket area of the Real Estate; (Hi) such lease shall provide that the tenant pays for its expenses;(iv) the rental shall be at least at the market rate then prevailing for similar properties and leasesin the market areas of the Real Estate; and (v) such lease shall contain subordination andattornment provisions in form and content acceptable to Lender. Failure of Lender to approve ordisapprove any such proposed lease within ten (10) business days after receipt of such writtenrequest and all the documents and information required to be furnished to Borrower with suchrequest shall be deemed approval, provided that the written request for approval specificallymentioned the same. Borrower (i) shall observe and perform all the obligations imposed upon thelessor under the Leases and shall not do or permit to be done anything to impair the value of theLeases as security for the Debt; (N) shall enforce all of the terms, covenants and conditionscontained in the Leases upon the part of the lessee thereunder to be observed or performed,short of termination thereof; (Ni) shall not collect any of the Rents more than one (1) month inadvance (in addition to the last month’s rent and security deposit, if any); (iv) shall not executeany other assignment of lessor’s interest in the Leases or the Rents; (v) shall not materially alter,modify or change the terms of the Leases without the prior written consent of Lender, or, except if

Security Instrument 14 Shoppes atArrnenia

a tenant is in default, cancel or terminate the Leases or accept a surrender thereof (unless areplacement Lease at a higher rent shall have been executed); and (vi) shall not alter, modify orchange the terms of any guaranty of the Leases or cancel or terminate such guaranty without theprior written consent of Lender.

1.10. Alienation and Further Encumbrances.

(a) Borrower acknowledges that Lender has relied upon the principals of Borrower and theirexperience in owning and operating properties similar to the Property in connection withthe closing of the Loan. Accordingly, except as specifically allowed hereinbelow in thisSection and notwithstanding anything to the contrary contained in Section 4.3 hereof, inthe event that the Property or any part thereof or interest therein shall be sold (includingany installment sales agreement), conveyed, disposed of, alienated, hypothecated,leased (except to tenants of space in the Improvements in accordance with the provisionsof Section 1.9 hereof), assigned, pledged, mortgaged, further encumbered or otherwisetransferred or Borrower shall be divested of its title to the Property or any interest therein,in any manner or way, whether voluntarily or involuntarily (any of the foregoing, a “~~f),without the prior written consent of Lender being first obtained, which consent may bewithheld in Lender’s sole discretion, then the same shall constitute an Event of Defaultand Lender shall have the right, at its option, to declare any or all of the indebtednesssecured hereby, irrespective of the Maturity Date, immediately due and payable and tootherwise exercise any of its other rights and remedies contained in Article Ill hereof. Ifsuch acceleration is during any period when a prepayment fee is payable pursuant to theprovisions set forth in the Note, then, in addition to all of the foregoing, such prepaymentfee shall also then be immediately due and payable to the same end as though Borrowerwere prepaying the entire indebtedness secured hereby on the date of such acceleration.For the purposes of this Section, the sale, conveyance, transfer, disposition, alienation,hypothecation, pledge or encumbering (whether voluntarily or involuntarily) of all or anyportion of the ownership interest in (or, directly or indirectly through constituent parties,any of the ultimate beneficial ownership interest in) Borrower shall be deemed to be atransfer of an interest in the Property. Notwithstanding the foregoing, however, transfersor assignments of ownership interests in Borrower (or its constituent parties) may beundertaken without the consent of Lender in the following circumstances (the “PermittedTransfers”):

(1) In the case of a Borrower which is a limited partnership, up to 49% of the limitedpartnership interests in Borrower shall be freely transferable so long as thosepersons responsible for the management and control of Borrower and theProperty remain unchanged following such transfer.

(2) In the case of a Borrower which constitutes a limited liability company, up to 49%of the non-managing membership interests in Borrower shall be freelytransferable so long as those persons responsible for the management andcontrol of Borrower and the Property remain unchanged following such transfer.

(3) In the case of a Borrower which constitutes a corporation, up to 49% of theaggregate of the issued and outstanding capital stock of Borrower may be sold orassigned, taking into account (i) any prior sales or assignments, and (H) theeffective change in ownership resulting from any issuance of new shares ofcapital stock in Borrower or its constituent party so long as those personsresponsible for the management and control of Borrower and the Propertyremain unchanged following such transfer.


(4) Gifts for estate planning purposes of any individual’s interests in Borrower or inany of Borrowe?s general partners, members or joint venturers to the spouse orany lineal descendant of such individual, or to a trust for the benefit of any one ormore of such individual, spouse or lineal descendant, shall not be deemed toviolate this Section 1.10(a) so long as Borrower is reconstituted, if required,following such gift and so long as those persons responsible for the managementof the Property and Borrower remain unchanged following such gift or anyreplacement management is approved by Lender.

(5) Involuntary assignments or transfers caused by the death, incompetence ordissolution of Borrower, one of its constituent parties or the owner of one of itsconstituent parties are permitted if: (i) Borrower is reconstituted, if required,following such death, incompetence or dissolution, and (ii) those personsresponsible for the management and control of Borrower and the Propertyremain unchanged as a result of such death, incompetence or dissolution or anyreplacement management is approved by Lender.

In all cases where assignment of ownership interests is allowed pursuant to thisSection 1.10(a), the proportionate ownership which is proposed to be transferred shall becalculated so as to take into account prior transfers or assignments. Furthermore, thesale, conveyance, transfer, disposition, alienation, hypothecation, pledge or encumbering(whether voluntarily or involuntarily) of all or any portion of the ownership interest in (or,directly or indirectly through constituent parties, any of the ultimate beneficial ownershipinterest in) any guarantor of Borrower’s obligation hereunder or under any of the otherLoan Documents shall constitute a violation of this Section 1.10(a) and Lender shall havethe right to exercise its various remedies described hereinabove; provided, however,ownership interests in any such guarantor may be transferred in a manner consistent withthe allowable transfers of ownership interests in Borrower described hereinabove.

(b) Notwithstanding the foregoing provisions of this Section, Lender shall consent to a sale,conveyance or transfer of the Property in its entirety (hereinafter, a “Property Sale”) toany person or entity provided that:

(1) No Event of Default is then continuing and no circumstance exists, which with thegiving of notice, or passage of time, or both, would constitute an Event of Default;

(2) Borrower gives Lender written notice of the terms of such prospective PropertySale not less than sixty (60) days before the date on which such Property Sale isscheduled to close and, concurrently therewith, gives Lender all reasonableinformation concerning the proposed transferee of the Property (hereinafter, a“Buye() as Lender would require in evaluating an initial extension of credit to aborrower and pays to Lender a non-refundable application fee in the amount of$5,000.00 (the “Application Fee”). In addition, Borrower shall reimburse Lenderfor all of Lenders reasonable out-of-pocket costs and expenses (including,without limitation, reasonable attorneys’ fees and disbursements and RatingAgency fees and expenses) incurred or anticipated to be incurred by Lender inconnection with a Property Sale including, without limitation, Lender’sdetermination of whether Borrower has satisfied all of the conditions andrequirements set forth in this Section 1.10, but only to the extent such aggregatecosts and expenses exceed the Application Fee paid by Borrower to Lender.Lender shall have the right, in its reasonable discretion, to approve or disapprovethe proposed Buyer. In determining whether to give or withhold its approval ofthe proposed Buyer, Lender shall consider, among other things, the Buyer’sexperience and track record in owning and operating facilities similar to the


Property, the Buyer’s entity structure, the Buyers compliance with Section 1.1(m)hereof, the Buyer’s financial strength, the Buyer’s general business standing andthe Buyer’s relationships and experience with contractors, vendors, tenants,lenders and other business entities;

(3) Borrower pays Lender, concurrently with the closing of such Property Sale, anon-refundable assumption fee (the “Assumption Fee”) in an amount equal toone percent (1%) of the then outstanding principal balance of the Note; and

(4) any and all other requirements of Lender, as determined by Lender in its solediscretion, are met.

1.11. Maintenance of Property. Borrower shall cause the Property to be used, operated, occupiedand maintained in a good and safe condition and repair and in accordance with all applicablelaws and regulations, and shall neither commit nor suffer any waste. The Improvements and theEquipment shall not be removed, demolished or materially altered (except for normal replacementof the Equipment) without the consent of Lender. Borrower shall not initiate, join in, acquiesce in,or consent to any change in any private restrictive covenant, zoning law or other public or privaterestriction, limiting or defining the uses which may be made of the Property or any part thereof. Ifunder applicable zoning provisions the use of all or any portion of the Property is or shall becomea nonconforming use, Borrower will not cause or permit such nonconforming use to bediscontinued or abandoned without the express written consent of Lender.

1.12. Access Privileges and Inspections. Lender and the agents, representatives and employees ofLender shall, subject to the rights of tenants, have full and free access to the Real Estate and theImprovements and any other location where books and records concerning the Property are keptat all reasonable times for the purposes of inspecting the Property and of examining, copying andmaking extracts from the books and records of Borrower relating to the Property. Borrower shalllend assistance to all such agents, representatives and employees of Lender.

1.13. Financial Statements and Books and Records. Borrower shall keep accurate books andrecords of account of the Property and its own financial affairs sufficient to permit the preparationof financial statements therefrom in accordance with generally accepted accounting principles.So long as this Security Instrument continues in effect, Borrower shall provide to Lender, inaddition to any other financial statements required hereunder or under any of the other LoanDocuments, the following financial statements and information, all of which must be certified toLender as being true and correct by Borrower or the entity to which they pertain, as applicable, beprepared in accordance with generally accepted accounting principles consistently applied and bein form and substance acceptable to Lender:

(a) copies of all tax returns filed by Borrower, within thirty (30) days after the date of filing;

(b) quarterly operating statements for the Property, within fifteen (15) days after the end ofeach March, June, September and December, provided, operating statements shall bedelivered monthly for the first twelve (12) full calendar months of the Note;

(c) current rent rolls for the Property, within fifteen (15) days after the end of each March,June, September and December, provided, rent rolls shall be delivered monthly for thefirst twelve (12) full calendar months of the Note;

(d) annual balance sheets for the Property and annual financial statements for Borrower,each principal or general partner in Borrower, and each indemnitor and guarantor underany indemnity or guaranty executed in connection with the loan secured hereby withinninety (90) days after the end of each calendar year; and


(e) such other information with respect to the Property, Borrower, the principals or generalpartners in Borrower, and each indemnitor and guarantor under any indemnity orguaranty executed in connection with the loan secured hereby, which may be requestedfrom time to time by Lender, within a reasonable time after the applicable request.

If any of the aforementioned materials are not furnished to Lender within the applicable timeperiods or Lender is dissatisfied with the form andlor scope of information of any of the foregoing,in addition to any other rights and remedies of Lender contained herein, Lender shall have theright, but not the obligation, (i) to impose a late charge of $25.00 per day for each day after thedue date until the date that such missing aforementioned materials are furnished to Lender in theform and containing the scope of information satisfactory to Lender andfor (N) to obtain the sameby means of an audit by an independent certified public accountant selected by Lender, in whichevent Borrower agrees to pay, or to reimburse Lender for, any expense of such audit and furtheragrees to provide all necessary information to said accountant and to otherwise cooperate in themaking of such audit. Borrower agrees that any and all materials furnished hereunder are theproperty of Lender, its designee (and Lender’s servicer) and may be released to such parties asLender, its designee or its servicer deems appropriate, including FNMA, FHLMC, and anyaffiliates, any issuer, underwriter, certificate-holder or trustee with respect to securities issued inconnection with the sale of this Security Instrument, or any rating agency responsible for ratingsuch securities from time to time.

LENDER MAY FURNISH INFORMATION REGARDING BORROWER OR THE PROPERTY TOTHIRD PARTIES WITH AN EXISTING OR PROSPECTIVE INTEREST IN THE SERVICING,ENFORCEMENT, EVALUATION, PERFORMANCE, PURCHASE OR SECURITIZATION OFTHE DEBT, INCLUDING TRUSTEES, MASTER SERVICERS, SPECIAL SERVICERS, RATINGAGENCIES, AND ORGANIZATIONS MAINTAINING DATABASES ON THE UNDERWRITINGAND PERFORMANCE OF MORTGAGE LOANS. BORROWER IRREVOCABLY WAIVES ANYAND ALL RIGHTS IT MAY HAVE UNDER APPLICABLE LAW TO PROHIBIT SUCHDISCLOSURE, INCLUDING ANY RIGHT OF PRIVACY.

1.14. Further Documentation. Borrower shall, on the request of Lender and at the expense ofBorrower: (a) promptly execute, acknowledge, deliver and record or file such further instrumentsand promptly do such further acts as may be necessary, desirable or proper to carry out moreeffectively the purposes of this Security Instrument and the other Loan Documents and to subjectto the liens and security interests hereof and thereof any property intended by the terms hereofand thereof to be covered hereby and thereby; and (b) promptly furnish to Lender, upon Lender’srequest, a duly acknowledged written statement and estoppel certificate addressed to such partyor parties as directed by Lender and in form and substance supplied by Lender, setting forth allamounts due under the Note, stating whether any event has occurred which, with the passage oftime or the giving of notice or both, would constitute an event of default hereunder, statingwhether any offsets or defenses exist against the Debt and containing such other mailers asLender may reasonably require.

1.15. Security Interest. This Security Instrument is also intended to encumber and create a securityinterest in, and Borrower hereby grants to Lender a security interest in all sums on deposit withLender or its servicer and all fixtures, chattels, accounts, equipment, inventory, contract rights,general intangibles and other personal property included within the Property, all renewals,replacements of any of the aforementioned items, or articles in substitution therefor or in additionthereto or the proceeds thereof (said property is hereinafter referred to collectively as the“Collateral”), whether or not the same shall be attached to the Real Estate or the Improvementsin any manner. It is hereby agreed that to the extent permitted by law, all of the foregoingproperty is to be deemed and held to be a part of and affixed to the Real Estate and theImprovements. The foregoing security interest shall also cover Borrowers leasehold interest inany of the foregoing property which is leased by Borrower. Notwithstanding the foregoing, all of


the foregoing property shall be owned by Borrower and no leasing or installment sales or otherfinancing or title retention agreement in connection therewith shall be permitted without the priorwritten approval of Lender. Borrower shall promptly replace all of the Collateral subject to thelien or security interest of this Security Instrument when worn or obsolete with Collateralcomparable to the worn out or obsolete Collateral when new and will not, without the prior writtenconsent of Lender, remove from the Real Estate or the Improvements any of the Collateralsubject to the lien or security interest of this Security Instrument except such as is replaced by anarticle of equal suitability and value as above provided, owned by Borrower free and clear of anylien or security interest except that created by this Security Instrument and the other LoanDocuments and except as otherwise expressly permitted by the terms of Section 1.10 of thisSecurity Instrument. All of the Collateral shall be kept at the location of the Real Estate except asotherwise required by the terms of the Loan Documents. Borrower shall not use any of theCollateral in violation of any applicable statute, ordinance or insurance policy.

1.16. Security Agreement. This Security Instrument constitutes a security agreement betweenBorrower and Lender with respect to the Collateral in which Lender is granted a security interesthereunder) and, cumulative of all other rights and remedies of Lender hereunder, Lender shallhave all of the rights and remedies of a secured party under any applicable Uniform CommercialCode. Borrower hereby agrees to execute and deliver on demand and hereby irrevocablyconstitutes and appoints Lender the attorney-in-fact of Borrower (such appointment beingcoupled with an interest) to execute and deliver and, if appropriate, to file with the appropriatefiling officer or office such security agreements, financing statements, continuation statements orother instruments as Lender may request or require in order to impose, perfect or continue theperfection of the lien or security interest created hereby. Expenses of retaking, holding, preparingfor sale, selling or the like (including, without limitation, Lender’s reasonable attorneys’ fees andlegal expenses), together with interest thereon at the Default Interest Rate from the date incurredby Lender until actually paid by Borrower, shall be paid by Borrower on demand and shall besecured by this Security Instrument and by all of the other Loan Documents securing all or anypart of the indebtedness evidenced by the Note. Lender shall have the right to enter upon theReal Estate and the Improvements or any real property where any of the property which is thesubject of the security interest granted herein is located to take possession of, assemble andcollect the same or to render it unusable, or Borrower, upon demand of Lender, shall assemblesuch property and make it available to Lender at the Real Estate, a place which is herebydeemed to be reasonably convenient to Lender and Borrower.

1.17. Compliance with Laws. (a) Borrower shall at all times comply with all statutes, ordinances,regulations and other governmental or quasi-governmental requirements and private covenantsnow or hereafter relating to the ownership, construction, use or operation of the Property,including, but not limited to, those concerning employment and compensation of personsengaged in operation and maintenance of the Property and any environmental or ecologicalrequirements, even if such compliance shall require structural changes to the Property; and (b)Borrower agrees that it shall at all times comply to the extent applicable with the requirements ofthe Americans with Disabilities Act of 1990, the Fair Housing Amendments Act of 1988, all stateand local laws and ordinances related to handicapped access and all rules, regulations, andorders issued pursuant thereto.

1.18. Additional Taxes. In the event of the enactment after this date of any law of the state where theProperty is located or of any other governmental entity deducting from the value of the Propertyfor the purpose of taxation any lien or security interest thereon, or imposing upon Lender thepayment of the whole or any part of the taxes or assessments or charges or liens herein requiredto be paid by Borrower, or changing in any way the laws relating to the taxation of mortgages,deeds of trust or security agreements or debts secured by mortgages, deeds of trust or securityagreements or the interest of the mortgagee, beneficiary or secured party in the property coveredthereby, or the manner of collection of such taxes, so as to adversely affect this Security

Security Instrument 19 Shoppes atAmienia

Instrument or the Debt or Lender, then, and in any such event, Borrower, upon. demand byLender, shall pay such taxes, assessments, charges or liens, or reimburse Lender therefor;provided, however, that if in the opinion of counsel for Lender (a) it might be unlawful to requireBorrower to make such payment, or (b) the making of such payment might result in the impositionof interest beyond the maximum amount permitted by law, then and in either such event, Lendermay elect, by notice in writing given to Borrower, to declare all of the Debt to be and become dueand payable in full ninety (90) days from the giving of such notice.

1.19. Secured Indebtedness. It is understood and agreed that this Security Instrument shall securepayment of not only the indebtedness evidenced by the Note but also any and all substitutions,replacements, renewals and extensions of the Note, any and all indebtedness and obligationsarising pursuant to the terms hereof and any and all indebtedness and obligations arisingpursuant to the terms of any of the other Loan Documents.

1.20, Borrowers Waivers. To the full extent permitted by law, Borrower agrees that Borrower shallnot at any time insist upon, plead, claim or take the benefit or advantage of any law now orhereafter in force providing for any appraisement, valuation, stay, moratorium or extension, or anylaw now or hereafter in force providing for the reinstatement of the Debt prior to any sale of theProperty to be made pursuant to any provisions contained herein or prior to the entering of anydecree, judgment or order of any court of competent jurisdiction, or any right under any statute toredeem all or any part of the Property so sold. Borrower, for Borrower and Borrower’ssuccessors and assigns, to the full extent permitted by law, hereby knowingly, intentionally andvoluntarily: (a) waives, releases, relinquishes and forever forgoes all rights of valuation,appraisement, stay of execution, reinstatement and notice of election or intention to mature ordeclare due the Debt (except such notices as are specifically provided for herein); (b) waives,releases, relinquishes and forever forgoes all right to a marshalling of the assets of Borrower,including the Property, to a sale in the inverse order of alienation, or to direct the order in whichany of the Property shall be sold in the event of foreclosure of the liens and security interestshereby created and agrees that any court having jurisdiction to foreclose such liens and securityinterests may order the Property sold as an entirety; and (c) waives, releases, relinquishes andforever forgoes all rights and periods of redemption provided under applicable law. Further,Borrower hereby knowingly, intentionally and voluntarily, waives, releases, relinquishes andforever forgoes all present and future statutes of limitations as a defense to any action to enforcethe provisions of this Security Instrument or to collect any of the Debt to the fullest extentpermitted by law.

1.21. WAIVER OF JURY TRIAL. BORROWER, TO THE FULL EXTENT PERMITtED BY LAW,HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THEADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOESTHE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON,ARISING OUT OF, OR IN ANY WAY RELATING TO THE DEBT OR ANY CONDUCT, ACT OROMISSION OF LENDER OR BORROWER, OR ANY OF THEIR DIRECTORS, OFFICERS,PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHERPERSONS AFFILIATED WITH LENDER OR BORROWER, IN EACH OF THE FOREGOINGCASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.

1.22. Management. The management of the Property shall be by either: (a) Borrower or an entityaffiliated with Borrower approved by Lender for so long as Borrower or said affiliated entity ismanaging the Propel-ty in a first class manner; or (b) a professional property managementcompany approved by Lender. Such management by an affiliated entity or a professionalproperty management company shall be pursuant to a written agreement approved by Lender.


1.23. Hazardous Waste and Other Substances.

(a) Borrower hereby represents and warrants to Lender that, as of the date hereof: (I) to thebest of Borrower’s knowledge, information and belief, the Property is not in direct orindirect violation of any local, state or federal law, rule or regulation pertaining toenvironmental regulation, contamination or clean-up (collectively, “EnvironmentalLaws”), including, without limitation, the Comprehensive Environmental Response,Compensation and Liability Act of 1980 (42 U.S.C. Sects. 9601 et ~g. and 40 CFRSects. 302.1 et~.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C.Sects. 6901 et ~q.), The Federal Water Pollution Control Act (33 U.S.C. Sects. 1251 et~g. and 40 CFR Sects. 116i ~ and the Hazardous Materials Transportation Act(49 U.S.C. Sects. 1801 et~çq.), and the regulations promulgated pursuant to said laws,all as amended; (ii) no hazardous, toxic or harmful substances, wastes, materials,pollutants or contaminants or any other substances or materials which are included underor regulated by Environmental Laws (collectively, “Hazardous Substances”) are locatedon or have been handled, generated, stored, processed or disposed of on or released ordischarged from the Property (including underground contamination) except for thosesubstances used by Borrower in the ordinary course of its business and in compliancewith all Environmental Laws; (Ni) the Property is not subject to any private orgovernmental lien or judicial or administrative notice or action relating to HazardousSubstances; (iv) there are no existing or closed underground storage tanks or otherunderground storage receptacles for Hazardous Substances on the Property; (v)Borrower has received no notice of, and to the best of Borrower’s knowledge and belief,there exists no investigation, action, proceeding or claim by any agency, authority or unitof government or by any third party which could result in any liability, penalty, sanction orjudgment under any Environmental Laws with respect to any condition, use or operationof the Property nor does Borrower know of any basis for such a claim; and (vi) Borrowerhas received no notice of and, to the best of Borrower’s knowledge and belief, there hasbeen no claim by any party that any use, operation or condition of the Property hascaused any nuisance or any other liability or adverse condition on any other property nordoes Borrower know of any basis for such a claim.

(b) Borrower shall keep or cause the Property to be kept free from Hazardous Substances(except those substances used by Borrower in the ordinary course of its business andin compliance with all Environmental Laws) and in compliance with all EnvironmentalLaws.

(c) Borrower shall promptly notify Lender if Borrower shall become aware of the possibleexistence of any Hazardous Substances on the Property or if Borrower shall becomeaware that the Property is or may be in direct or indirect violation of any EnvironmentalLaws. Further, immediately upon receipt of the same, Borrower shall deliver to Lendercopies of any and all orders, notices, permits, applications, reports, and othercommunications, documents and instruments pertaining to the actual, alleged or potentialpresence or existence of any Hazardous Substances at, on, about, under, within, near orin connection with the Property. Borrower shall, promptly and when and as required, atBorrower’s sole cost and expense, take all actions as shall be necessary or advisable forthe clean-up of any and all portions of the Property or other affected property inaccordance with all applicable Environmental Laws (and in all events in a mannersatisfactory to Lender). In the event Borrower fails to do so, Lender may, but shall not beobligated to, cause the Property or other affected property to be freed from anyHazardous Substances or otherwise brought into conformance with Environmental Lawsand any and all costs and expenses incurred by Lender in connection therewith, togetherwith interest thereon at the Default Interest Rate from the date incurred by Lender untilactually paid by Borrower, shall be immediately paid by Borrower on demand and shall


be secured by this Security Instrument. Borrower covenants and agrees, at Borrower’ssole cost and expense, to indemnify, defend (at trial and appellate levels, and withattorneys, consultants and experts acceptable to Lender), and hold Lender harmless fromand against any and all liens, damages, losses, liabilities, obligations, settlementpayments, penalties, assessments, citations, directives, claims, litigation, demands,defenses, judgments, suits, proceedings, costs, disbursements or expenses of any kindor of any nature whatsoever (including, without limitation, reasonable attorneys’,consultants’ and experts’ fees and disbursements actually incurred in investigating,defending, settling or prosecuting any claim, litigation or proceeding) which may at anytime be imposed upon, incurred by or asserted or awarded against Lender or theProperty, and arising directly or indirectly from or out of: (i) the presence, release orthreat of release of any Hazardous Substances on, in, under or affecting all or any portionof the Property or any surrounding areas, regardless of whether or not caused by orwithin the control of Borrower; (H) the violation of any Environmental Laws relating to oraffecting the Property, whether or not caused by or within the control of Borrower; (iii) thefailure by Borrower to comply fully with the terms and conditions of this Section; (iv) thebreach of any representation or warranty contained in this Section; or (v) the enforcementof this Section, including, without limitation, the cost of assessment, containment and/orremoval of any and all Hazardous Substances from all or any portion of the Property orany surrounding areas, the cost of any actions taken in response to the presence,release or threat of release of any Hazardous Substances on, in, under or affecting anyportion of the Property, and costs incurred to comply with the Environmental Laws inconnection with all or any portion of the Property or any surrounding areas.

(d) Upon Lenders request, at any time after the occurrence of a default hereunder or at suchother time as Lender has reasonable grounds to believe that Hazardous Substances areor have been released, stored or disposed of on or around the Property or that theProperty may be in violation of the Environmental Laws, Borrower shall provide, atBorrower’s sole cost and expense, an inspection or audit of the Property prepared by ahydro-geologist or environmental engineer or other appropriate consultant approved byLender. If Borrower fails to provide such inspection or audit within thirty (30) days aftersuch request, Lender may order the same, and Borrower hereby grants to Lender and itsemployees and agents access to the Property and a license to undertake such inspectionor audit. The cost of such inspection or audit, together with interest thereon at theDefault Interest Rate from the date incurred by Lender until actually paid by Borrower,shall be immediately paid by Borrower on demand and shall be secured by this SecurityInstrument.

(e) Without limiting the foregoing, where recommended by a “Phase I” or “Phase II”assessment or otherwise required by Lender, Borrower shall establish and comply withan operations and maintenance program relative to the Property, in form and substanceacceptable to Lender, prepared by an environmental consultant acceptable to Lender,which program shall address any Hazardous Substances (including asbestos containingmaterial or lead based paint) that may now or in the future be detected on the Property.

1.24. Indemnification; Subrogation.

(a) Borrower shall protect, defend, indemnify, and hold Lender harmless against any and allliabilities, obligations, losses, damages, penalties, claims, actions, suits, costs andexpenses (including without limitation, Lender’s reasonable attorneys’ fees andexpenses) of whatever kind or nature which may be asserted against, imposed on orincurred by Lender, whether before or after an action in foreclosure, sale of the Property,discharge of this Security Instrument and/or cancellation of the Note, by reason of (i)ownership of this Security Instrument, the Property or any interest therein or receipt of the


Rents and Profits; (ii) any accident, injury to or death of persons or loss of or damage toproperty occurring in, on or about the Property or any part thereof or on the adjoiningsidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (iii) anyuse, nonuse or condition in, on or about the Property or any part thereof or on theadjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways;(iv) any failure on the part of Borrower to perform or comply with any of the terms of thisSecurity Instrument; (v) performance of any labor or services or the furnishing of anymaterials or other property in respect of the Property or any part thereof; (vi) the failure ofany person to file timely with the Internal Revenue Service an accurate Form 1099-B,Statement for Recipients of Proceeds from Real Estate, Broker and Barter ExchangeTransactions, which may be required in connection with this Security Instrument, or tosupply a copy thereof in a timely fashion to the recipient of the proceeds of thetransaction in connection with which this Security Instrument is made; (vu) the presence,disposal, escape, seepage, leakage, spillage, discharge, emission, release, or threatenedrelease of any Hazardous Materials on, from, or affecting the Property or any otherproperty or the presence of Asbestos or Lead-Based Material on the Property; (viii) anypersonal injury (including wrongful death) or property damage (real or personal) arisingout of or related to such Hazardous Materials, Asbestos or Lead-Based Material; (ix) anylawsuit brought or threatened, settlement reached, or government order relating to suchHazardous Materials, Asbestos or Lead-Based Material; (x) any acts or omissionsrelating to Lender’s exercise of any of its rights or remedies pursuant to Section 1.8 ofthis Security Instrument; or (xi) any violation of laws, orders, regulations, requirements, ordemands of government authorities, which are based upon or any way related to suchHazardous Materials, Asbestos or Lead-Based Material including, without limitation, thecosts and expenses of any remedial action, attorney and consultant fees, investigationand laboratory fees, court costs, and litigation expenses. Any amounts payable toLender by reason of the application of this Section shall be secured by this SecurityInstrument and other Loan Documents and shall become immediately due and payableand shall bear interest at the Default Interest Rate from the date loss or damage issustained by Lender until paid. The obligations and liabilities of Borrower under thisSection shall survive any termination, satisfaction, assignment, entry of a judgment offoreclosure, delivery of a deed in a non-judicial foreclosure or delivery of a deed in lieu offoreclosure of this Security Instrument.

(b) A waiver of subrogation shall be obtained by Borrower from its insurance carrier and,consequently, Borrower waives any and all right to claim or recover against Lender,its officers, employees, agents and representatives, for loss of or damage to Borrower,the Property, Borrower’s property or the property of others under Borrower’s control fromany cause insured against or required to be insured against by the provisions of thisSecurity Instrument.

1.25. Investment Earnings. Any amounts received by Lender from Borrower may be invested byLender (or its servicing agent) for its benefit and Lender shall not be obligated to pay, or credit,any interest earned thereon to Borrower except as may be otherwise specifically provided in thisSecurity Instrument.

1.26. Defeasance.

(a) Notwithstanding anything to the contrary contained in the Note, this Security Instrumentor the other Loan Documents, at any time after the second (2nd) anniversary of the datethat is the “startup day,” within the meaning of Section 860G(a)(9) of the InternalRevenue Code of 1986, as amended from time to time or any successor statute (the“Code”), of a “real estate mortgage investment conduit” (“REMIC”) within the meaning ofSection 8600 of the Code, that holds the Note and this Security Instrument and provided


(unless Lender shall otherwise consent, in its sole discretion) no Event of Default hasoccurred and is continuing and no circumstance exists, which with the giving of notice, orpassage of time, or both, would constitute an Event of Default, Borrower shall have theright to obtain the release of the Property from the lien of this Security Instrument and theother Loan Documents upon the satisfaction of each of the following conditions precedent(such transaction being referred to herein as a “Defeasance”):

(1) not less than thirty (30) days’ prior written notice to Lender and Column Financial,Inc. (‘Column”) at 3414 Peachtree Road, N.E., Suite 1140, Atlanta, Georgia30326-1113, Attention: Robert A. Barnes, Esq. (to the extent Column is not thenthe holder of the Note evidencing the indebtedness secured hereby), specifyingthe date (the “Release Date”) on which the Defeasance Collateral (hereinafterdefined) is to be delivered;

(2) the remittance to Lender on the related Release Date of all amounts then dueand payable under the Note, this Security Instrument and the other LoanDocuments;

(3) the delivery on or prior to the Release Date to Lender at

(A) U.S. Government Securities (hereinafter defined) that provide forpayments prior, but as close as possible, to all successive monthlyPayment Dates occurring after the Release Date including the paymentmade on the Maturity Date, with each such payment being equal to orgreater than the amount of the corresponding installment of principal,interest and, if applicable, the fee of the Servicer required to be paidhereunder and/or under the Note (the “Defeasance Collateral”), each ofwhich shall be duly endorsed by the holder thereof as directed by Lenderor accompanied by a written instrument of transfer in form and substancewholly satisfactory to Lender (including, without limitation, suchinstruments as may be required by the depository institution holding suchsecurities to effectuate book-entry transfers and pledges through thebook-entry facilities of such institution) in order to create a first prioritysecurity interest therein in favor of Lender in conformity with allapplicable state and federal laws governing granting of such securityinterests;

(B) a pledge and security agreement, in form and substance satisfactory toLender, creating a first priority security interest in favor of Lender in theDefeasance Collateral (the “Defeasance Security Agreement”);

(C) a certificate of the Borrower, executed by an authorized representative ofBorrower certifying that the requirements set forth in this Section 1.26(a)have been satisfied;

(D) an opinion of counsel delivered at the cost and direction of Borrower butfor the benefit of Lender in form and substance satisfactory to Lender tothe effect that (i) Lender has a perfected first priority security interest inthe Defeasance Collateral and the Defeasance Security Agreement isenforceable against Borrower in accordance with its terms, (H) theDefeasance Security Agreement and other defeasance documents areenforceable against Borrower in accordance with their respective terms,(Hi) the Borrower is duly organized, validly existing and in good standingunder the laws of the state of its formation, and (iv) the Borrower has the


power and authority to execute the defeasance documents and performsits obligations thereunder;

(F) an opinion of counsel for Lender, prepared and delivered by counsel forthe Servicer at Borrower’s reasonable expense, stating that any trustformed as a REMIC in connection with any Secondary MarketTransaction (as defined below) will not fail to maintain its status as aREMIC as a result of such Defeasance;

(F) a certificate from a firm of independent public accountants acceptable toLender certifying that the Defeasance Collateral is sufficient to satisfy therequirements of subclause (A) hereinabove;

(G) a proposed release of the Property from this Security Instrument and anyUCC Financing Statements relating thereto (for execution by Lender) in aform appropriate for cancellation of such documents in the jurisdiction inwhich the Property is located;

(H) evidence in writing from the applicable Rating Agency to the effect thatthe defeasance of the Loan and substitution of collateral will not result ina downgrading, withdrawal or qualification of the respective ratings ineffect immediately prior to such Defeasance for any securities issued inconnection with the Secondary Market Transaction which are thenoutstanding; and

(I) such other certificates, documents or instruments as Lender mayreasonably request;

(4) the payment by Borrower to Lender of all reasonable out-of-pocket costs andexpenses (including, without limitation, attorneys’ and accountant’s fees anddisbursements, and Rating Agency fees and expenses, if any) incurred oranticipated to be incurred by Lender in connection with the satisfaction of theconditions and requirements described in this Section.

(b) Upon compliance with the requirements of this Section, the Property shall be releasedfrom the lien of this Security Instrument and any UCC Financing Statements relatedthereto, the obligations hereunder and under the other Loan Documents with respect tothe Property from and after the Release Date shall no longer be applicable and, subjectto the terms of the applicable defeasance documents, the Defeasance Collateral shall bethe sole source of collateral securing the Note and all other obligations under the LoanDocuments. Lender shall apply the Defeasance Collateral and the payments receivedtherefrom to the payment of all scheduled principal and interest payments (the“Scheduled Defeasance Payments”) due on all successive Payment Dates after theRelease Date including the payment due on the Maturity Date. Borrower, pursuant to theDefeasance Security Agreement or other appropriate document, shall direct that thepayments received from the Defeasance Collateral shall be made directly to Lender andapplied to satisfy the obligations of Borrower under the Note and the DefeasanceSecurity Agreement.

(c) In connection with the release of the Property in accordance with this Section, Borrowershall assign the Loan to another entity (the “Successor Borrower”) in connection withthe Defeasance and the following provisions shall apply:


(1) Column, whether or not it is then the holder of the Note evidencing theindebtedness secured hereby, shall have the right (but not the obligation) toestablish or designate such a Successor Borrower. Such right shall be retainedby Column notwithstanding the sale or transfer of this Security Instrument unlesssuch obligation is specifically assigned by Column to the transferee. If Columnelects not to designate the Successor Borrower, Column Financial, Inc. shall sonotify Borrower within ten (10) days of receipt of the notice required inSubDaragrar’h (aXi) above, in which event Borrower shall be required toestablish or designate a Successor Borrower acceptable to Lender. Borrowershall pay any fees charged by Successor Borrower as consideration forassuming the obligations under the Note and the Security Agreement; providedthat such fees shall not exceed $5,000.00 for any Successor Borrowerdesignated by Column. Borrower shall additionally pay all costs and expensesincurred by Lender or Successor Borrower, including their respective attorneys’fees and expenses, incurred in connection with the Defeasance. SuccessorBorrower shall satisfy the single purpose entity requirements set forth in Exhibit Dhereof: nrovided, however, that Successor Borrower may, subject to Lender’sapprov?I and, if applicable, Rating Agency approval, act as the successorborrower under more than one Loan in the same REMIC pool.

(2) Borrower shall transfer and assign to Successor Borrower (and SuccessorBorrower shall assume) all rights, duties and obligations under the Note and theDefeasance Security Agreement arising from and after the Release Datepursuant to an assignment and assumption agreement satisfactory to Lender inits sole discretion. As a condition to such assignment and assumption,Successor Borrower shall deliver to Lender one or more opinions of counsel inform and substance and delivered by counsel satisfactory to Lender in its solediscretion stating among other things, (i) that such assumption agreement andrelated documents are enforceable against Successor Borrower in accordancewith their respective terms, (h) Successor Borrower is duly organized, validlyexisting and in good standing under the laws of the state of its fomiation, (üi)Successor Borrower has the power and authority to execute the assumptiondocuments and perform its obligations thereunder, and (iv) if required by Lenderor the Rating Agencies, a non-consolidation opinion. Borrower shall pay all costsand expenses incurred by Lender or its agents in connection with suchassignment and assumption (including, without limitation, the review of theproposed transferee and the preparation of the assumption agreement andrelated documentation). Upon such assumption, Borrower shall be relieved of itsobligations hereunder, under the other Loan Documents and under theDefeasance Security Agreement from and after the Release Date, other thanthose obligations which are specifically intended to survive the termination,satisfaction or assignment of this Security Instrument or the exercise of Lendersrights and remedies hereunder.

(d) As used herein, the term “U.S. Government Securities” shall mean non-redeemable,fixed rate securities evidencing an obligation to timely pay principal and/or interest in afull and timely manner that are direct obligations of the United States of America for thefull and timely payment of which its full faith and credit is pledged.

1.27 Broker Fees Provisions.

(a) Brokerage FeeslSub-Servicing Fees!RoIe of Correspondent. David Goldstein and/orPRM Capital (collectively, “Correspondent”) has acted as both Borrower and Lendersbroker in the proposed transaction and Borrower agrees that no fiduciary or other special


relationship exists or shall exist between Borrower and Lender or Borrower andCorrespondent. Borrower understands that Correspondent does not have the authority toand cannot bind Lender in any respect, including without imitation, the authority to issuea commitment with respect to the loan evidenced by the Note (the ‘Loan”) or to makeany agreement regarding the Loan terms or conditions or the terms and conditions of theNote, this Security Instrument or the other Loan Documents. Borrower agrees thatLender is not responsible for any recommendation or advice given to Borrower byCorrespondent, and that Lender and Borrower are dealing at arms’ length with each otherin a commercial lending transaction. Borrower acknowledges and agrees thatCorrespondent shall be paid the following fees in connection with or arising out of theclosing and funding of the Loan:

(1) Brokerage Fees Paid by Borrower. Upon closing (and only upon closing) ofthe Loan, Borrower shall have paid Correspondent a brokerage fee in the amountof one percent (1.00%) of the Loan amount. Lender is authorized by Borrowerto pay such fees out of any Application, Commitment or Rate Lock Feesdeposited by Borrower with Lender or out of Loan proceeds at closing. Borrowerrepresents and warrants that it has not dealt with any finder or broker inconnection with the Loan other than Correspondent. Borrower shall pay any andall commissions and fees and hereby agrees to indemnify and hold Lenderharmless from any claim for commissions or fees, other than fees dueCorrespondent. Such indemnity shall survive the expiration or termination of thisapplication, or the closing of the Loan.

ARTICLE II

EVENTS OF DEFAULT

2.1. Events of Default. The occurrence of any of the following events shall be an ‘Event of Default”hereunder:

(a) Borrower fails to (i) make any payment under the Note when due, or (H) make anyregularly scheduled monthly deposit into any reserve established under this SecurityInstrument or the other Loan Documents when due.

(b) Borrower fails to provide insurance as required by Section 1.3 hereof or fails to performany covenant, agreement obligation, term or condition set forth in Sections 1.10 or 1.23hereof.

(c) Borrower fails to perform any other covenant, agreement, obligation, term or condition setforth herein other than those otherwise described in this Section 2.1 and, to the extentsuch failure or default is susceptible of being cured, the continuance of such failure ordefault for thirty (30) days after written notice thereof from Lender to Borrower; provided,however, that if such default is susceptible of cure but such cure cannot be accomplishedwith reasonable diligence within said period of time, and if Borrower commences to curesuch default promptly after receipt of notice thereof from Lender, and thereafterprosecutes the curing of such default with reasonable diligence, such period of time shallbe extended for such period of time as may be necessary to cure such default withreasonable diligence, but not to exceed an additional sixty (60) days.

(d) Any representation or warranty made herein, in or in connection with any application orcommitment relating to the loan evidenced by the Note, or in any of the other LoanDocuments to Lender by Borrower, by any principal, member or general partner inBorrower or by any indemnitor or guarantor under any indemnity or guaranty executed in


connection with the loan secured hereby is determined by Lender to have been false ormisleading in any material respect at the time made.

(e) Borrower, any principal, member or general partner in Borrower or any indemnitor orguarantor under any indemnity or guaranty executed in connection with the loan securedhereby becomes insolvent, or shall make a transfer in fraud of creditors, or shall make anassignment for the benefit of creditors, shall file a petition in bankruptcy, shall voluntarilybe adjudicated insolvent or bankrupt or shall admit in writing the inability to pay debts asthey mature, shall petition or apply to any tribunal for or shall consent to or shall notcontest the appointment of a receiver, trustee, custodian or similar officer for Borrower,for any such principal, member or general partner of Borrower or for any such indemnitoror guarantor or for a substantial part of the assets of Borrower, of any such principal orgeneral partner of Borrower or of any such indemnitor or guarantor, or shall commenceany case, proceeding or other action under any bankruptcy, reorganization, arrangement,readjustment or debt, dissolution or liquidation law or statute of any jurisdiction, whethernow or hereafter in effect.

(f) A petition is filed or any case proceeding or other action is commenced againstBorrower, against any principal, member or general partner of Borrower or against anyindemnitor or guarantor under any indemnity or guaranty executed in connection with theloan secured hereby seeking to have an order for relief entered against it as debtor orseeking reorganization, arrangement, adjustment, liquidation, dissolution or compositionof it or its debts or other relief under any law relating to bankruptcy, insolvency,arrangement, reorganization, receivership or other debtor relief under any law or statuteof any jurisdiction, whether now or hereafter in effect, or an order, judgment or decree isentered appointing, with or without the consent of Borrower, of any such principal,member or general partner of Borrower or of any such indemnitor or guarantor, areceiver, trustee, custodian or similar officer for Borrower, for any such principal, memberor general partner of Borrower or for any such indemnitor or guarantor, or for anysubstantial part of any of the properties of Borrower, of any such principal, member orgeneral partner of Borrower or of any such indemnitor or guarantor, and if any such eventshall occur, such petition, case, proceeding, action, order, judgment or decree shall notbe dismissed within sixty (60) days after being commenced.

(g) The holder of any lien or security interest on the Property (without implying the consent ofLender to the existence or creation of any such lien or security interest), whether superioror subordinate to this Security Instrument or any of the other Loan Documents, declaresa default and such default is not cured within any applicable grace or cure period set forthin the applicable document or such holder institutes foreclosure or other proceedings forthe enforcement of its remedies thereunder.

(h) Any dissolution, termination, partial or complete liquidation, merger or consolidation ofBorrower, any of its principals, members or any general partner.

(i) Borrower fails to cure promptly any violation of laws or ordinances affecting or which maybe interpreted to affect the Property.

ARTICLE III

REMEDIES

3.1. Remedies Available. If there shall occur an Event of Default under this Security Instrument,then this Security Instrument is subject to foreclosure as provided by law and Lender may, at itsoption and by or through a trustee, nominee, assignee or otherwise, to the fullest extent permitted


by law, exercise any or all of the following rights, remedies and recourses, either successively orconcurrently:

(a) Acceleration. Accelerate the maturity date of the Note and declare any or all of the Debtto be immediately due and payable without any presentment, demand, protest, notice oraction of any kind whatever (each of which is hereby expressly waived by Borrower),whereupon the same shall become immediately due and payable. Upon any suchacceleration, payment of such accelerated amount shall constitute a prepayment of theprincipal balance of the Note and any applicable prepayment fee provided for in the Noteshall then be immediately due and payable.

(b) Entry on the Property. Either in person or by agent, with or without bringing any actionor proceeding, or by a receiver appointed by a court and without regard to the adequacyof its security, enter upon and take possession of the Property, or any part thereof,without force or with such force as is permitted by law and without notice or process orwith such notice or process as is required by law unless such notice and process iswaivable, in which case Borrower hereby waives such notice and process, and do anyand all acts and perform any and all work which may be desirable or necessary inLender’s judgment to complete any unfinished construction on the Real Estate, topreserve the value, marketability or rentability of the Property, to increase the incometherefrom, to manage and operate the Property or to protect the security hereof and allsums expended by Lender therefor, together with interest thereon at the Default InterestRate, shall be immediately due and payable to Lender by Borrower on demand and shallbe secured hereby and by all of the other Loan Documents securing all or any part of theindebtedness evidenced by the Note.

(c) Collect Rents and Profits. With or without taking possession of the Property, sue orotherwise collect the Rents and Profits, including those past due and unpaid.

(d) Appointment of Receiver. Upon, or at any time prior or after, initiating the exercise ofany power of sale, instituting any judicial foreclosure or instituting any other foreclosure ofthe liens and security interests provided for herein or any other legal proceedingshereunder, make application to a court of competent jurisdiction for appointment of areceiver for all or any part of the Property, as a matter of strict right and without notice toBorrower and without regard to the adequacy of the Property for the repayment of theDebt or the solvency of Borrower or any person or persons liable for the payment of theDebt, and Borrower does hereby irrevocably consent to such appointment, waives anyand all notices of and defenses to such appointment and agrees not to oppose anyapplication therefor by Lender, but nothing herein is to be construed to deprive Lender ofany other right, remedy or privilege Lender may now have under the law to have areceiver appointed, provided, however, that, the appointment of such receiver, trustee orother appointee by virtue of any court order, statute or regulation shall not impair or inany manner prejudice the rights of Lender to receive payment of the Rents and Profitspursuant to other terms and provisions hereof. Any such receiver shall have all of theusual powers and duties of receivers in similar cases, including, without limitation, thefull power to hold, develop, rent, lease, manage, maintain, operate and otherwise use orpermit the use of the Property upon such terms and conditions as said receiver maydeem to be prudent and reasonable under the circumstances as more fully set forth inSection 3.3 below. Such receivership shall, at the option of Lender, continue until fullpayment of all of the Debt or until title to the Property shall have passed by foreclosuresale under this Security Instrument or deed in lieu of foreclosure.

(e) Foreclosure. Immediately commence an action to foreclose this Security Instrument orto specifically enforce its provisions or any of the Debt pursuant to the statutes in such


case made and provided and sell the Property or cause the Property to be sold inaccordance with the requirements and procedures provided by said statutes in a singleparcel or in several parcels at the option of Lender. In the event foreclosure proceedingsare filed by Lender, all expenses incident to such proceeding, including, but not limited to,attorneys’ fees and costs, shall be paid by Borrower and secured by this SecurityInstrument and by all of the other Loan Documents securing all or any part of theindebtedness evidenced by the Note. The Debt and all other obligations secured by thisSecurity Instrument, including, without limitation, interest at the Default Interest Rate (asdefined in the Note), any prepayment charge, fee or premium required to be paid underthe Note in order to prepay principal (to the extent permitted by applicable law), attorneys’fees and any other amounts due and unpaid to Lender under the Loan Documents, maybe bid by Lender in the event of a foreclosure sale hereunder. In the event of a judicialsale pursuant to a foreclosure decree, it is understood and agreed that Lender or itsassigns may become the purchaser of the Property or any part thereof.

(f) Other. Exercise any other right or remedy available hereunder, under any of the otherLoan Documents or at law or in equity.

3.2. Application of Proceeds. To the fullest extent permitted by law, the proceeds of any sale underthis Security Instrument shall be applied to the extent funds are so available to the following itemsin such order as Lender in its discretion may determine:

(a) To payment of the costs, expenses and fees of taking possession of the Property, and ofholding, operating, maintaining, using, leasing, repairing, improving, marketing andselling the same and of otherwise enforcing Lenders right and remedies hereunder andunder the other Loan Documents, including, but not limited to, receivers’ fees, courtcosts, attorneys’, accountants’, appraisers’, managers’ and other professional fees, titlecharges and transfer taxes.

(b) To payment of all sums expended by Lender under the terms of any of the LoanDocuments and not yet repaid, together with interest on such sums at the Default InterestRate.

(c) To payment of the Debt and all other obligations secured by this Security Instrument,including, without limitation, interest at the Default Interest Rate and, to the extentpermitted by applicable law, any prepayment fee, charge or premium required to be paidunder the Note in order to prepay principal, in any order that Lender chooses in its solediscretion.

The remainder, if any, of such funds shall be disbursed to Borrower or to the person or personslegally entitled thereto.

3.3. Right and Authority of Receiver or Lender in the Event of Default; Power of Attorney. Uponthe occurrence of an Event of Default hereunder, and entry upon the Property pursuant to Section3.1(b) hereof or appointment of a receiver pursuant to Section 3.1(d) hereof, and under suchterms and conditions as may be prudent and reasonable under the circumstances in Lender’s orthe receivers sole discretion, all at Borrower’s expense, Lender or said receiver, or such otherpersons or entities as they shall hire, direct or engage, as the case may be, may do or permit oneor more of the following, successively or concurrently: (a) enter upon and take possession andcontrol of any and all of the Property; (b) manage and operate the Property; (c) execute anddeliver, in the name of Borrower as attorney-in-fact and agent of Borrower or in its own name asLender, such documents and instruments as are necessary or appropriate to consummateauthorized transactions; (d) enter such leases, whether of real or personal property, or tenancyagreements, under such terms and conditions as Lender may in its sole discretion deem


appropriate or desirable; (e) collect and receive the Rents and Profits from the Property; and (f)do any acts which Lender in its sole discretion deems appropriate or desirable to protect thesecurity hereof and use such measures, legal or equitable, as Lender may in its sole discretiondeem appropriate or desirable to implement and effectuate the provisions of this SecurityInstrument. Borrower hereby constitutes and appoints Lender, its assignees, successors,transferees and nominees, as Borrower’s true and lawful attorney-in-fact and agent, with fullpower of substitution in the Property, in Borrower’s name, place and stead, to do or permit anyone or more of the foregoing described rights, remedies, powers and authorities, succeasively orconcurrently, and said power of attorney shall be deemed a power coupled with an interest andirrevocable so long as any Debt is outstanding.

3.4. Occupancy After Foreclosure. In the event there is a foreclosure sale hereunder and at thetime of such sale, Borrower or Borrower’s representatives, successors or assigns, or any otherpersons claiming any interest in the Property by, through or under Borrower (except tenants ofspace in the Improvements subject to leases entered into prior to the date hereof), are occupyingor using the Property, or any part thereof, then, to the extent not prohibited by applicable law,each and all shall, at the option of Lender or the purchaser at such sale, as the case may be,immediately become the tenant of the purchaser at such sale, which tenancy shall be a tenancyfrom day-to-day, terminable at the will of either landlord or tenant, at a reasonable rental per daybased upon the value of the Property occupied or used, such rental to be due daily to thepurchaser. Further, to the extent permitted by applicable law, in the event the tenant fails tosurrender possession of the Property upon the termination of such tenancy, the purchaser shallbe entitled to institute and maintain an action for unlawful detainer of the Property in theappropriate court of the county in which the Real Estate is located.

3.5. Cumulative Remedies. All remedies contained in this Security Instrument are cumulative andLender shall also have all other remedies provided at law and in equity or in any other LoanDocuments. Such remedies may be pursued separately, successively or concurrently at the solesubjective direction of Lender and may be exercised in any order and as often as occasiontherefor shall arise. No delay or failure by Lender to exercise any right or remedy under thisSecurity Instrument shall be construed to be a waiver of that right or remedy or of any defaulthereunder.

3,6. Payment of Expenses. Borrower shall pay on demand all of Lender’s reasonable expensesincurred in any efforts to enforce any terms of this Security Instrument, whether or not any lawsuitis filed and whether or not foreclosure is commenced but not completed, including, but not limitedto, reasonable legal fees and disbursements, foreclosure costs and title charges, together withinterest thereon from and after the date incurred by Lender until actually paid by Borrower at theDefault Interest Rate, and the same shall be secured by this Security Instrument and by all of theother Loan Documents securing all or any part of the indebtedness evidenced by the Note.

ARTICLE IV

MISCELLANEOUS TERMS AND CONDITIONS

4.1. Certain Rights of Lender. Without affecting Borrower’s liability for the payment of any of theDebt, Lender may from time to time and without notice to Borrower (a) release any person liablefor the payment of the Debt; (b) extend or accept a modification of the terms of payment of theDebt; (c) accept additional real or personal property of any kind as security or alter, substitute orrelease any property securing the Debt; (d) recover any part of the Property; (e) consent in writingto the making of any subdivision map or plat thereof; (f) join in granting any easement therein; or(g) join in any extension agreement of this Security Instrument or any agreement subordinatingthe lien hereof.


4.2. Notices. All notices, demands, requests or other communications to be sent by one party to theother hereunder or required by law shall be in writing and shall be deemed to have been validlygiven or served by delivery of the same in person to the intended addressee, or by depositing thesame with Federal Express or another reputable private courier service for next business daydelivery, or by depositing the same in the United States mail, postage prepaid, registered orcertified mail, return receipt requested, in any event addressed to the intended addressee at itsaddress set forth on the first page of this Security Instrument or at such other address as may bedesignated by such party as herein provided.

4.3. Successors and Assigns. The terms, provisions, indemnities, covenants and conditions hereofshall be binding upon Borrower, its successors and assigns, and shall inure to the benefit ofLender, its successors and assigns and shall constitute covenants running with the land.

4.4. Severability. A determination that any provision of this Security Instrument is unenforceable orinvalid shall not affect the enforceability or validity of any other provision.

4.5. Waiver; Discontinuance of Proceedings. Lender may waive any single default by Borrowerhereunder without waiving any other prior or subsequent default and may remedy any default byBorrower hereunder without waiving the default remedied. Neither the failure or delay by Lenderin exercising, any right, power or remedy upon any default by Borrower hereunder shall beconstrued as a waiver of such default or as a waiver of the right to exercise any such right, poweror remedy at a later date. No single or partial exercise by Lender of any right, power or remedyhereunder shall exhaust the same or shall preclude any other or further exercise thereof, andevery such right, power or remedy hereunder may be exercised at any time and from time to time.No modification or waiver of any provision hereof nor consent to any departure by Borrowertherefrom shall in any event be effective unless the same shall be in writing and signed byLender, and then such waiver or consent shall be effective only in the specific instance and forthe specific purpose given. No notice to nor demand on Borrower in any case shall of itself entitleBorrower to any other or further notice or demand in similar or other circumstances.

4.6. Section Headings. The headings of the sections and paragraphs of this Security Instrument arefor convenience of reference only, are not to be considered a part hereof and shall not limit orotherwise affect any of the terms hereof.

4.7. Governing Law. This Security Instrument will be governed by and construed in accordance withthe laws of the State of Florida, provided that to the extent that any of such laws may now orhereafter be preempted by Federal law, in which case such Federal law shall so govern and becontrolling.

4.8. Construction of this Document. This document may be construed as a mortgage, securitydeed, deed of trust, chattel mortgage, conveyance, assignment, security agreement, pledge,financing statement, hypothecation or contract, or any one or more of the foregoing, in order tofully effectuate the liens and security interests created hereby and the purposes and agreementsherein set forth.

4.9. No Merger. It is the desire and intention of the parties hereto that this Security Instrument andthe lien hereof do not merge in fee simple title to the Property.

4.10. Personal Liability. Notwithstanding anything to the contrary contained in this SecurityInstrument, the liability of Borrower and its general partners, if any, for the Debt and for theperformance of the other agreements, covenants and obligations contained herein and in theLoan Documents shall be limited as set forth in Section 1.05 of the Note; provided however thatnothing herein shall be deemed to be a waiver of any right which Lender may have underSections 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a


claim for the full amount of the Debt or to require that all collateral shall continue to secure allindebtedness owing to Lender in accordance with the Note, this Security Instrument and the otherLoan Documents.

4.11. Entire Agreement and Modifications. This Security Instrument and the other Loan Documents(a) contain the entire agreements between the parties, and (b) may not be amended, revised,waived, discharged, released or terminated orally but only by a written instrument or instrumentsexecuted by the party against which enforcement of the amendment, revision, waiver, discharge,release or termination is asserted.

4.12. Maximum Interest. The provisions of this Security Instrument and of all agreements betweenBorrower and Lender, whether now existing or hereafter arising and whether written or oral, arehereby expressly limited so that in no contingency or event whatsoever, whether by reason ofdemand or acceleration of the maturity of the Note or otherwise, shall the amount paid, or agreedto be paid (“Interest”), to Lender for the use, forbearance or retention of the money loaned underthe Note exceed the maximum amount permissible under applicable law. If, from anycircumstance whatsoever, performance or fulfillment of any provision hereof or of any agreementbetween Borrower and Lender shall, at the time performance or fulfillment of such provision shallbe due, exceed the limit for Interest prescribed by law or otherwise transcend the limit of validityprescribed by applicable law, then jp~ facto the obligation to be performed or fulfilled shall bereduced to such limit and if, from any circumstance whatsoever, Lender shall ever receiveanything of value deemed Interest by applicable law in excess of the maximum lawful amount anamount equal to any excessive Interest shall be applied to the reduction of the principal balanceowing under the Note in the inverse order of its maturity (whether or not then due) or at the optionof Lender be paid over to Borrower, and not to the payment of Interest. All Interest (including anyamounts or payments deemed to be Interest) paid or agreed to be paid to Lender shall, to theextent permitted by applicable law, be amortized, prorated, allocated and spread throughout thefull period until payment in full of the principal balance of the Note so that the Interest thereon forsuch full period will not exceed the maximum amount permitted by applicable law. Thisparagraph will control all agreements between Borrower and Lender.

4.13. Interest Payable by Lender. Lender shall cause funds in the Replacement Reserve and thoseother reserves which are designated in this Security Instrument as earning interest payable toBorrower (the “Funds”) to be deposited into interest bearing accounts of the type customarilymaintained by Lender or its servicing agent for the investment of similar reserves, which accountsmay not yield the highest interest rate then available. The Funds shall be held in an account oraccounts in Lender’s name (or such other account name as Lender may elect) at a financialinstitution or other depository selected by Lender (or its servicer) in its sole discretion (collectively,the “Depository Institution”). Borrower shall earn no more than an amount of interest on theFunds equal to an amount determined by applying to the average monthly balance of such Fundsthe quoted interest rate for the Depository Institution’s money market savings account, as suchrate is determined from time to time (such allocated amount being referred to as “Borrower’sInterest”). Lender or its Depository Institution shall be entitled to report under Borrower’s Federaltax identification number, the Borrower’s Interest on the Funds. If the Depository Institution doesnot have an established money market savings account (or if an interest rate for such accountcannot otherwise be determined in connection with the deposit of such Funds), a comparableinterest rate quote by the Depository Institution and acceptable to Lender (or its servicer) in itsreasonable discretion shall be used. The amount of Borrower’s Interest allocated to the Fundsshall be added to the balance of the respective reserve to which it belongs to be disbursed.

4.14. Cooperation with Rating Agencies and Investors. Borrower covenants and agrees that in theevent Lender decides to include the Loan as an asset of a Secondary Market Transaction,Borrower shall (a) at Lender’s request, meet with representatives of the Rating Agencies and/orinvestors to discuss the business and operations of the Property, and (b) permit Lender or its


representatives to provide related information to the Rating Agencies and/or investors, and(c) cooperate with the reasonable requests of the Rating Agencies and/or investors in connectionwith all of the foregoing. For purposes of this Security Instrument, a “Secondary MarketTransaction” shall be (a) any sale or assignment of this Security Instrument, the Note and theother Loan Documents to one or more investors as a whole loan; (b) a participation of the Loan toone or more investors; (c) any deposit of this Security Instrument, the Note and the other LoanDocuments with a trust or other entity which may sell certificates or other instruments to investorsevidencing an ownership interest in the assets of such trust or other entity; or (d) any other sale,assignment or transfer of the Loan or any interest therein to one or more investors. At any timeduring which the Loan is an asset of a securitization or is otherwise an asset of any ratedtransaction, “Rating Agency” shall mean the rating agency or rating agencies that from time totime rate the securities, certificates or other instruments issued in connection with suchsecuritization or other transaction.

4.15. Sales of Note and Security Instrument. The Note or a partial interest in the Note (together withthis Security Instrument and the other Loan Documents) may be sold one or more times withoutprior notice to Borrower. A sale may result in a change of the Loan Servicer. There also may beone or more changes of the Loan Servicer unrelated to a sale of the Note. If there is a change ofthe Loan Servicer, Borrower will be given notice of the change. For purposes of this SecurityInstrument, the term “Loan Servicer” means the entity that from time to time is designated byLender to collect payments and deposits and receive notices under the Note, this SecurityInstrument and any other Loan Document, and otherwise to service the loan evidenced by theNote for the benefit of Lender.

4.16. Waiver of Homestead. Dower. Redemption, and Appraisement. Borrower waives all right ofhomestead exemption in and statutory redemption of the Property and all right of appraisement ofthe Property and relinquishes all rights of dower and curtesy in the Property.

4.17. Community Property. In the event community property laws apply, each Borrower who is amarried person expressly agrees that recourse may be had against his or her community propertyand separate property.

4.18. Further Stipulations. The additional covenants, agreements and provisions set forth in Exhibit Band Exhibit C and Exhibit D attached hereto, if any, shall be a part of this Security Instrument andshall, in the event of any conflict between such further stipulations and any of the other provisionsof this Security Instrument, be deemed to control.


ATTACHED EXHIBITS. The following Exhibits are attached to this Security Instrument and by thisreference are made a part hereof:

jX{ Exhibit A Description of the Land

LI Exhibit B Reserves

LI Exhibit C Modifications to Security Instrument

XI Exhibit D Bankruptcy Remote Provisions

IN WITNESS WHEREOF, Borrower has executed this Security Instrument as of the day and year firstabove written.

Witnesses:

Borrower:

M B PLAZA, LLC, a Florida limited liability company

P~

(J ~vl•2c4,~ei r~43~U~)~,?≤L Jaacov E. BouskilaManaging Member

)~:_\.~~J ‘~~‘ rl~g

(~EL,r..6c4-ti Mt~’~”~-’

By:

By:

Managing Member

C


ACKNOWLEDGEMENTS

STATEOF FLORIDA)SS

COUNTY OF Mnrn. t3c,Jt

THE FOREGOING INSTRUMENT was acknowledged before me this 3O day of AQ~ ~ 2006,by Jaacov E. Bouskila, a Managing Member of M B PLAZA, LLC, a Florida limited lia5ility company, onbehalf of said li~iited liability company. He/she/they I_f is/are personally known to me or 1&i has/haveproduced F\o,J~, t~.c.i.is ~ ___________________________ as identification. [Notary,check appropriate blank; and, if obtaining identification, fill in appropriate identification number.]

Notary Public~

INOTARIAL SEAL & STAMP]Serial No:My commission expires:

STATE OF FLORIDA~r~l )SS

COUNTY OF_______________

THE FOREGOING INSTRUMENT was acknowledged before me this ~.P day of ____________ 2006,by Moshe Mazine, a Managing Member of M B PLAZA, LLC, a Florida limited liability company, onbehalf of said limited liability company. He/she/they I_I is/are personally known to me or I~I has/haveproduced ?\~.2 .1.. ~ U _____________________________ as identification. [Notary,check appropriate blank; and, if obtaining identification, fill in appropriate identification numberj

Notary Pu làRichard P Bre~er

9 My CommIssion 1)0216249Expkegiay2&2007 INOTARIAL SEAL & STAMP]

Serial No:My commission expires:


EXHIBIT A — (Description of the Land)

PARCEL 1:ALL OF LOTS 1 -4 OF BLOCK 1 OF BOUR-LANDS SUBDIVISIONAS RECORDED TN PEAT BOOK 14, PAGE 27 AND BEING INSECTION 34 TOWNSHIP 28 SOUTH, RANGE 18 EAST,HTLLSBOROUGH COUNTY, FLORIDA; LESS AND EXCEPT RIGHT-OF-WAY ESTABLISHED BY ORDER OF TAKING RECORDED INOFFICIAL RECORD BOOK 3075, PAGE 1964 AND JUDGMENTRECORDED IN OFFICIAL RECORDS BOOK 3150, PAGE 1068,PUBLIC RECORDS OF HILLSBOROUGH COUNTY, FLORIDA; ANDLESS AND EXCEPT ADDITIONAL RIGHT-OF-WAY DESCRIBEDAS FOLLOWS:

COMMENCE AT THE NORTHWEST CORNER OF BLOCK 1 OFSAID BOUR-LANDS SUBDIVISION (BEING A 13mm IRON ROD)THENCE S.00°12’44” W., ALONG THE WEST BOUNDARY OF SAIDBLOCK 1, A DISTANCE OF 66.178 METERS (217.12 FEET) TO THENORTH RIGHT-OF-WAY LINE OF STATE ROAD 600 (W.HILLSBOROUGH AVENUE) (PER SECTION 1015-96A); THENCES.89°40’43”E., ALONG SAID NORTH RIGHT-OF-WAY LINE, ADISTANCE OF 83.820 METERS (275.00 FEET) TO THE WESTBOUNDARY OF SAID LOTS 1-4 OF BLOCK 1 AND THE JOINTOF BEGINNING; THENCE N.00°16t15”E., ALONG SAD WESTBOUNDARY, A DISTANCE OF 20.602 METERS (67.59 FEET);THENCE S.89D38~49??E., A DISTANCE OP 20.941 METERS (68.70FEET); THENCE N 68°27’56”E, A DISTANCE OF 7.335 METERS(24.06 FEET) THENCE N.40°19’24”E., A DISTANCE OF 5.998METERS (19.68 FEET) TO THE NORTH BOUNDARY OF SAID LOT4; THENCE S.89°35’ 55”E., ALONG SAD NORTH BOUNDARY, ADISTANCE OF 1.322 METERS (4.34 FEET) TO THE WESTERLYRIGHT-OF-WAY LINE OF NORTH ARMENIA AVENUE ASESTABLISHED BY ORDER OF TAKING RECORDED IN OFFICIALRECORD BOOK 3075, PAGE 1964 AND JUDGMENT RECORDEDIN OFFICIAL RECORD BOOK 3150, PAGE 1068, PUBLiC RECORDSOF HILLSBOROUGH COUNTY, FLORIDA; THENCE ALONG SAIDWESTERLY RIGHT-OF-WAY LINE, THE FOLLOWING TWO (2)COURSES: 1.) SMO°17’57”W., A DISTANCE OF 20.097 METERS(65.93 FEET); 2.) THENCE S.45°41’55”W., A DISTANCE OF11.129 METERS (36.51 FEET) TO SAID NORTH RIGHT-OF-WAYLINE OF STATE ROAD 600 (W. HILLSBOROUGH AVENUE);THENCE N. 89°40’43”W., ALONG SAID NORTH RIGHT-OF-WAYLiNE, A DISTANCE OF 24.994 METERS (82.00 FEET) TO THEPOINT OF BEGINNING.


PARCEL 2:LOTS 5,6,7,8 AND 9, BLOCK 1 BOUR-LANDS SUBDIVISION,ACCORDING TO THE MAP OR PLAT THEREOF AS RECORDED INPLAT BOOK 14, PAGE 27, PUBLIC RECORDS OF HILLSBOROUGHCOUNTY, FLORIDA.

PARCEL 3:LOTS 10,11, 12 AND 13 AND LOTS 30 AND 31, BLOCK 1, BOUR-LANDSSUBDIVISION, ACCORDING TO THE MAP OR FLAT THEREOF ASRECORDED IN PLAT BOOK 14, PAGE 27, OF THE PUBLIC RECORDSOF HILLSBOROUGH COUNTY, FLORIDA, LESS STATE ROADRIGHT-OF-WAY AND LESS THAT PART OF LOTS 30AND 31 FOR ROAD RIGHT-OF-WAY MORE PARTICULARLYDESCRIBED IN OFFICiAL RECORDS BOOK 9102, PAGE 244,SAD PUBLIC RECORDS.

PARCEL 4:LOTS 14,15 AND 16, BLOCK 1, BOUR-LANDS SUBDIVISION,ACCORDING TO THE MAP OR PLAT THEREOF, RECORDED INFLAT BOOK 14, PAGE 27, PUBLIC RECORDS OF HILLSBOROUGHCOUNTY, FLORIDA.

PARCELS:LOTS 26, 27,28 AND 29, AND THE EAST 20 FEET OF LOT 25,BLOCK 1, BOUR-LANDS SUBDIVISION, ACCORDING TO THEPLAT THEREOF AS RECORDED IN PLAT BOOK 14, PAGE 27, OFTHE PUBLIC RECORDS OF HILLSBOROUGH COUNTY, FLORIDA,LESS ROAD RIGHT-OF-WAY.

LESS AND EXCEPT THE LEGAL DESCRIPTIONS LISThD INORDER OF TAKING RECORDED IN O.R. BOOK 9123, PAGE515; O.R. BOOK 9123, PAGE 521, AND OR. BOOK 9123, PAGE527, PUBLIC RECORDS OF HILLSBOROUGH COUNTY, FLORIDA.

PAI{CEL.6:LOT 28,29,30 AND 31 BLOCK 2, BOUR-LANDS SUBDIVISION,ACCORDING TO THE MAP OR PLAT THEREOF AS RECORDED INPLAT BOOK 14, PAGE 27, PUBLIC RECORDS OF HILLSBOROUGHCOUNTY, FLORIDA. LESS THE SOUTH 5 FEET THEREOF ANDLESS RIGHT-OF-WAY FOR MOHAWK AVENUE.


EXHIBIT B

(Reserves)

B-I. Repair and Remediation Reserve. Intenlionally Deleted.

B-2. Lease Holdback Reserve. Intentionally Deleted.

B-3. Tenant Improvements and Leasing Commissions Reserve. As additional security for theDebt, Borrower shall establish and maintain at all times while this Security Instrument continuesin effect a reserve (the “TILC Reserve”) with Lender for the payment of costs and expensesincurred by Borrower for Tenant Improvements and Leasing Commissions. All such sums,tOgether with any interest thereon, are hereinafter collectively referred to as the “Funds”. Asused herein, the term “Tenant Improvements” shall mean construction or modification ofimprovements on or installation of fixtures or equipment in the Property as required to beperformed by Borrower pursuant to the terms of any lease which is hereafter approved or, if suchlease does not require approval by Lender, is hereafter entered into by Borrower and tenantpursuant to Section 1.9 of this Security Instrument (“Approved Lease”). As used herein, theterm “Leasing Commissions” shall mean reasonable and customary commissions paid to a realestate broker licensed in the state where the Property is located in connection with an ApprovedLease, pursuant to commission agreements containing such terms and provisions including,without limitation, as to the timing of the payment of the commission, as are then prevailingbetween third party, unaffiliated owners and brokers for comparable leases of space at propertiessimilar to the Property in the market area in which the Property is located.

(a) Deposits Into the TILC Reservellnterest on Funds, Simultaneous with the closing ofthe transaction contemplated hereby, Borrower shall pay to Lender a deposit to the TILCReserve in an amount equal to $0.00. In addition and commencing with the first monthlypayment due under the Note and continuing thereafter on each monthly payment dateunder the Note, Borrower shall pay to Lender, concurrently with and in addition to themonthly payment due under the Note and until the Note and all other Debt is fully paidand performed, a monthly deposit to the TILC Reserve in an amount equal to $1,562.50;provided, however, such monthly payments shall cease at such time as the thenoutstanding balance in the TILC Reserve shall equal or exceed $75,000.00. So long asno default hereunder or under the other Loan Documents has occurred and is continuing,all sums in the TILC Reserve shall be held by Lender in the TILC Reserve to pay and/orreimburse Borrower for the costs and expenses of Tenant Improvements and for payingLeasing Commissions as herein set forth. Interest on the funds contained in the TILCReserve shall be credited to Borrower as provided in Section 4.13 of this SecurityInstrument.

(b) Disbursements from the TILC Reserve. So long as no default hereunder or under theother Loan Documents has occurred and is continuing, and to the extent Funds areavailable for such purpose, Lender shall, within ten (10) days after receipt of a writtenrequest from Borrower specifying the amount requested and the applicable TenantImprovements or Leasing Commissions to be paid for with the requested Funds(“Disbursement Request”), release to Borrower Funds in the amount of theDisbursement Request; subject, however, to the following conditions precedent. Lendershall not be required to make advances from the TILC Reserve more frequently thanonce in any thirty (30) day period. In making any payment from the TILC Reserve, Lendershall be entitled to rely on such request from Borrower, and on any bill, statement, orestimate from any third party, without any inquiry into the accuracy, validity orcontestability of any such amount.

security Instrument 39 Shoppes at &menia

(i) With respect to a Disbursement Request to pay for Tenant Improvements,Borrower shall provide evidence reasonably satisfactory to Lender (including, ifrequested by Lender, access to the Property by Lender and/or an architectand/or an engineer specified by Lender for the purpose of inspecting the workdone, at Borrowers expense) that the Tenant Improvements, or such portionthereof, for which the Funds are being requested have been completed inaccordance with subparagraph (c) below. Borrower shall submit to Lender copiesof invoices for which Funds are being requested, and if required by Lender, shallalso submit waivers of lien. Borrower shall execute and deliver to Lender acertificate (in form and substance reasonably satisfactory to Lender) that theTenant Improvements covered by the applicable Disbursement Request complywith, and have fully satisfied, the terms and provisions of paragraph Cc) below.Borrower shall provide Lender with a copy of any and all applicable permanentcertificates of occupancy and other governmental permits, if any be required,issued by applicable governmental authorities with respect to the TenantImprovements, which certificates and permits allow the tenant to open forbusiness as contemplated under such lease. Borrower shall provide suchadditional documents, certificates and affidavits as Lender may reasonablyrequest.

(H) With respect to the final Disbursement Request relative to any Approved Lease,Borrower shall provide Lender with an original estoppel certificate executed bythe tenant under the Approved Lease for which such request relates, stating thatsuch tenant has accepted the Tenant Improvements, and has occupied thespace covered by the Tenant Improvements and that there are no defaults undersuch lease (nor does there exist any event or conditions, which with the passageof time or the giving of notice, or both, could result in such a default).

(Hi) With respect to a Disbursement Request to pay any portion of the LeasingCommissions, Borrower shall provide evidence as reasonably requested byLender that such Leasing Commissions are then due and payable or have beenproperly paid, and such additional documents, certificates and affidavits asLender may reasonably request.

(iv) Notwithstanding any provision of this Section to the contrary, Funds disbursedwith respect to any Approved Lease (i) for Tenant Improvements shall be anamount not to exceed, under any circumstances, the reasonable costs andexpenses actually incurred by Borrower therefor; and (H) for LeasingCommissions shall be an amount not to exceed, under any circumstances, thecommission actually incurred by Borrower therefor which is reasonable andcustomary for a licensed real estate broker in the market area in which theProperty is located.

(v) In the event Borrower receives any disbursement of funds in the TILC Reserve,then in addition and commencing with the next monthly payment due under theNote thereafter and continuing thereafter on each monthly payment date underthe Note, Borrower shall pay to Lender, concurrently with and in addition to themonthly payment due under the Note and in addition to any other monthlydeposit to the TILC Reserve then on-going a deposit to the TILC Reserve in anamount equal to the amount of such disbursement divided by twelve (12) untilsuch time as the amount of such additional monthly payments equals or exceedsthe amount of such disbursement.


(c) Borrower shall construct and complete all Tenant Improvements within the time periodsand as required by, and in accordance with, the Approved Leases. Borrower or tenantshall pay for and obtain or cause to be paid for and obtained all permits, licenses andapprovals required by all applicable laws with regard to the Tenant Improvements,whether necessary for commencement, completion, use or otherwise. Borrower shallperform or cause to be performed all work in connection with the Tenant Improvements ina good and workmanlike manner, in compliance with all applicable laws (including,without limitation, any and all applicable life safety laws, environmental laws and laws forthe handicapped and/or disabled) and, with respect only to those leases requiring Lenderapproval, with the plans and specifications approved (in writing) by Lender covering thesame, which performance by Borrower shall be without regard to the sufficiency of theFunds. Borrower covenants and agrees that Tenant Improvements shall be constructed,installed or completed, as applicable, free and clear of any and all liens (includingmechanic’s, rnaterialman’s or other liens), claims and encumbrances whatsoever.

(d) In the event of a default hereunder or under any of the other Loan Documents, Lender inits sole discretion may do one of the following:

(i) apply the funds in the TILC Reserve to pay down the principal balance of theLoan subject to a pre-payment penalty equal to “Required Yield Maintenance” asdefined in the Note, or

(ii) continue to hold the TILC Reserve as additional security for the Loan throughoutthe remaining loan term, with any interest accruing thereon remaining in andbecoming part of the TILC Reserve.

B-4. Lease Termination Payment Reserve.

(a) For purposes of this Security Instrument, the capitalized terms defined in this Sectionshall have the meanings ascribed to them as follows:

(i) “Lease Termination Expenditure” shall mean the costs and expenses incurredby Borrower for payment of leasing commissions, lease buy-outs andexpenditures related to repairs, replacements and improvements to LeaseTermination Space in connection with releasing such Lease Termination Space.

(ii) “Lease Termination Payment” shall mean any amounts paid in consideration ofan early lease termination including, without limitation, payments made underleases containing early lease termination options in favor of tenants thereunder,in connection with the exercise of such tenant’s lease termination rights.Amounts paid for rent and other charges in respect of periods prior to the leasetermination date shall be excluded from the Lease Termination Payment.

(iii) “Lease Termination Payment Reserve” shall have the meaning set forth insubparagraph (b) below.

(iv) “Lease Termination Space” shall mean any space at the Improvements subjectto a lease as to which a Lease Termination Payment is received.

(b) As additional security for the Debt, Borrower shall establish and maintain at all timeswhile this Security Instrument continues in effect a reserve (the “Lease TerminationPayment Reserve”) with Lender for payment of Lease Termination Expenditures.Notwithstanding any provision of this Security Instrument or the other Loan Documents tothe contrary, Borrower shall, within one (1) business day of receipt thereof, deliver all


Lease Termination Payments (or cause the properly manager to deliver all such LeaseTermination Payments) to Lender for deposit in the Lease Termination Payment Reserve.

(c) (1) Borrower shall pay all Lease Termination Expenditures without regard to theamount then available in the Lease Termination Payment Reserve. So long asno default hereunder or under the other Loan Documents has occurred and iscontinuing, and, subject to the provisions of this Security Instrument, Lendershall, to the extent funds are available for such purpose in the Lease TerminationPayment Reserve, apply any portion of each Lease Termination Payment held inthe Lease Termination Payment Reserve in payment of the Lease TerminationExpenditures incurred with respect to the corresponding Lease TerminationSpace. Lender shall disburse amounts for Lease Termination Expenditureswithin 10-days of Borrower’s satisfaction of the following conditions and theprovision of suitable documentation relative thereto: (i) a new lease has beenfully executed and approved by Lender pursuant to the terms hereof with respectto all or any portion of the Lease Termination Space, (N) Lender has receivedwritten notice at least ten (10) days prior to the due date of any payment relatingto Lease Termination Expenditures undertaken pursuant to such new lease or, ifBorrower makes timely payment therefor, not more than forty-five (45) days afterBorrower has made such payment; (Ni) Borrower furnishes Lender with a writtendisbursement request for the payment or reimbursement of such LeaseTermination Expenditures; (iv) Borrower shall have theretofore furnished Lenderwith satisfactory evidence of the progress and/or completion of tenantimprovement work, the cost of tenant improvement work, satisfactory evidencethat any and all completed tenant improvement work complies with law, lienwaivers for lienable work, copies of bills, invoices and other reasonabledocumentation as may be required by Lender to substantiate the use of suchfunds and establish that the Lease Termination Expenditures which are thesubject of such disbursement request represent completed or partially completedcapital work and improvements performed at all or any portion of the applicableLease Termination Space; and (v) there are sufficient funds available in theLease Termination Payment Reserve.

(2) Notwithstanding anything contained herein to the contrary, Lender shall disburseto Borrower any portion of any Lease Termination Payment remaining on depositin the Lease Termination Payment Reserve promptly after (i) the related LeaseTermination Space has been fully leased pursuant to a lease approved byLender (if such approval is required hereunder) to an unrelated, third-party tenantfor a net effective rent which is at an arm’s length competitive market rate;(ii) such tenant has taken possession of such Lease Termination Space and theobligation to pay rent under the related lease shall have commenced: and(Ni) such tenant shall have delivered an estoppel certificate confirming that it hasaccepted such Lease Termination Space, that Borrower has completed anyconstruction obligations under the related lease and that the obligation to payrent thereunder has commenced; and (iv) Lender shall have been providedevidence that such tenant’s actual payment of rental has commenced.

(3) Borrower shall be entitled to additionally request disbursement from the LeaseTermination Payment Reserve to perform capital improvements to the Propertywhich do not otherwise qualify for disbursement hereunder. Any such request fordisbursement for other capital improvements may be granted or withheld atLender’s sole discretion and, if granted, shall be conditioned upon such capitalimprovements being approved by Lender if such approval is so required underthis Security Instrument. Provided that (i) Lender has consented to such

Security Instrument 42 shoppes at Armenia

disbursement, (ii) Lender has received written notice at least ten (10) days priorto the due date of any payment relating to such capital improvement expenditureor if Borrower makes timely payment therefor, not more than forty-five (45) daysafter Borrower has made such payment; (iB) Borrower furnishes Lender with awritten disbursement request for the payment or reimbursement of such capitalexpenditures; (iv) Borrower shall have theretofore furnished Lender withsatisfactory evidence of the progress and/or completion of any capitalimprovement work, satisfactory evidence that any and all completed capitalimprovement work complies with law, lien waivers for lienable work, copies ofbills, invoices and other reasonable documentation as may be required byLender to substantiate the use of such funds; and (v) there are sufficient fundsavailable in the Lease Termination Payment Reserve, Lender shall make suchdisbursement to Borrower for payment of such capital improvement expendituresor reimbursement of Borrower’s payment thereof, within ten (10) days afterreceipt of the documentation required in connection therewith.

(4) Lender shall not be required to make advances from the Lease TerminationPayment Reserve more frequently than once in any thirty (30) day period. Inmaking any payment from the Lease Termination Payment Reserve, Lender shallbe entitled to rely on such request from Borrower without any inquiry into theaccuracy, validity or contestability of any such amount. Lender may (but withoutany obligation to do so), at Borrower’s expense, make or cause to be madeduring the term of this Security Instrument an inspection of the Property to verifythe scope, nature and quality of the work for which payment is being requestedfrom the Lease Termination Payment Reserve.

(d) The Lease Termination Payment Reserve shall not, unless otherwise explicitly requiredby applicable law, be or be deemed to be escrow or trust funds, but, at Lender’s optionand in Lender’s discretion, may either be held in a separate account or be commingled byLender with the general funds of Lender. The Lease Termination Payment Reserve issolely for the protection of Lender and entails no responsibility on Lender’s part beyondthe payment of the costs and expenses described in this Section in accordance with theterms hereof and beyond allowing of due credit for the sums actually received. In theevent that the amounts on deposit or available in the Lease Termination PaymentReserve are inadequate to pay the cost of any Lease Termination Expenditure, Borrowershall pay the amount of such deficiency. Upon assignment of this Security Instrument byLender, any funds in the Lease Termination Payment Reserve shall be turned over to theassignee and any responsibility of Lender, as assignor, with respect thereto shallterminate. If there is a default under this Security Instrument which is not cured withinany applicable grace or cure period, Lender may, but shall not be obligated to, apply atany time the balance then remaining in the Lease Termination Payment Reserve againstthe Debt in whatever order Lender shall subjectively determine. No such application ofthe Lease Termination Payment Reserve shall be deemed to cure any default hereunder.

(e) Notwithstanding anything seemingly to the contrary in this Section B-4, Borrower shall notbe entitled to terminate or agree to terminate any existing lease in consideration for aLease Termination Payment or otherwise without first obtaining Lender’s prior writtenconsent.

(f) In the event of a default hereunder or under any of the other Loan Documents, Lender inits sole discretion may do one of the following:


(i) apply the funds in the Lease Termination Payment Reserve to pay down theprincipal balance of the Loan subject to a pre-payment penalty equal to“Required Yield Maintenance as defined in the Note, or

(N) continue to hold the Lease Termination Payment Reserve as additional securityfor the Loan throughout the remaining loan term, with any interest accruingthereon remaining in and becoming part of the Lease Termination PaymentReserve.

B-5. Building-Out Reserve.

(a) As additional security for the Debt, Borrower shall establish and maintain at all timeswhile this Security Instrument continues in effect a reserve (together with interestthereon, the “Building-Out Reserve”) with Lender regarding the renewal or replacementof certain Leases. All such sums, together with any interest thereon, are hereinaftercollectively referred to as the “Building-Out Funds”. Simultaneous with the closing ofthe transaction contemplated hereby, Borrower shall pay to Lender a deposit to the BuildOut Reserve in an amount equal to $87,022.00 (a break-out of the Building-Out Reserveby Tenant is shown below, each such amount by Tenant, a “Tenant Build-Out Sub-Account’). In addition and commencing with the first monthly payment due under theNote and continuing thereafter on each monthly payment date under the Note, Borrowershall pay to Lender, concurrently with and in addition to each monthly payment due underthe Note, a deposit to the Build-Out Reserve in a monthly amount equal to ZERO. TheBuild-Out Reserve shall be held in an interest bearing account controlled by Lender’sservicer. All interest earned on said funds shall become part of the Build-Out Reserve.In order to qualify for the release of funds or a portion thereof from the Build-Out Reservefor a particular Tenant, Borrower must provide evidence satisfactory to Lender that thefollowing conditions have been satisfied:

(1) Borrower shall have delivered to Lender an invoice from the Tenant for suchTenant Build-Out Sub-Account showing the amount of the build-outreimbursement and that said build-out reimbursement from Borrower is then dueand owing;

(2) no default under this Security Instrument or any of the other Loan Documentsshall have occurred and be continuing as of either the Disbursement RequestDate or the Disbursement Date.

(b) Lender shall, within ten (10) days after receipt of a written request by Borrower (the dateof any such request(s) by Borrower shall be referred to as the “Disbursement ReguestDate”) and which request shall include evidence satisfactory to Lender of the satisfactionof all of the requirements contained in this Section for any Tenant for whom a reserveunder this Section has been established, release to Borrower the funds in the applicableTenant Building-Out Sub-Account.

(c) In the event of a default hereunder or under any of the other Loan Documents, Lender inits sole discretion may do one of the following:

(i) apply the funds in the Lease Holdback Reserve to pay down the principalbalance of the Loan subject to a pre-payment penalty equal to “Required YieldMaintenance” as defined in the Note, or


(ii) continue to hold the Lease Holdback Reserve as additional security for the Loanthroughout the remaining loan term, with any interest accruing thereon remainingin and becoming part of the Lease Holdback Reserve.

(c) Tenant Build-Out Sub-Accounts. The following shows the respective amounts of theBuild-out Reserve by Tenant:

Tenant Amount

Beauty Salon $21,600.00

China Garden $6,310.00

Dry Cleaners $0.00

H&R Block $0.00

Nuestra Tienda Wireless $6,612.00

Subway $0.00

Washington Mutual $52,500.00

Questamente $0.00

B-6. Dry-Cleaner Reserve.

(a) As additional security for the indebtedness secured hereby, Borrower shall establish andmaintain at all times while this Security Instrument continues in effect a reserve in theoriginal amount of $69,913.44 (the “Dry-Cleaner Reserve~) with Lender. All such sums,together with any interest thereon, are hereinafter collectively referred to as the “,.fl~yCleaner Funds”. During the term hereof, Lender shall disburse to Borrower on theeleventh (11°’) day of each month, an amount equal to $2,913.06 from the Dry-CleanerReserve until such time as all Dry-Cleaner Funds have been disbursed. If agreed amongthe parties, such disbursement may be made as a credit against the monthly paymentdue under the Note on each such date.

(b) At such time as Borrower has provided evidence satisfactory to Lender that the followingconditions have been satisfied, the Dry-Cleaner Reserve shall be released to Borrower:

(I) a Tenant for the “dry-cleaner” space shall have entered into a Lease (such leaseshall be referred to as the “Dry-Cleaner Replacement Lease”) with areplacement tenant (such replacement tenant, the “Dry-Cleaner ReplacementTenant”), wherein full rent payments have commenced, and there are nooutstanding rent abatements, off-sets, rent concessions or free rent periods, andsuch Dry-Cleaner Replacement Lease shall have a rental rate of at least $22.00per net rentable square foot and additional rent for pro-rata CAM expenses andwhich otherwise contains such terms as are reasonably satisfactory to Lenderwith a Lease term of at least three (3) years;

(2) no defaults shall have occurred and be continuing under such Dry-CleanReplacement Lease on either the Dry-Cleaner Disbursement Request Date (as


hereinafter defined) or the Dry-Cleaner Disbursement Date (as hereinafterdefined);

(3) Borrower shall provide to Lender an affidavit certifying the foregoing and provideto Lender an original estoppel certificate executed by the Dry-CleanerReplacement Tenant stating the rent amount under the Dry-CleanerReplacement Lease and that such Dry-Cleaner Replacement Tenant is payingsuch rent in full and that there are no outstanding rent abatements, off-sets, rentconcessions or free rent periods thereunder, and that there are no defaults undersuch Dry-Cleaner Replacement Lease (nor does there exist any event orconditions, which with the passage of time or the giving of notice, or both, couldresult in such a default);

(c) Lender shall, within thirty (30) days after receipt of a written request by Borrower (thedate of any such request(s) by Borrower shall be referred to as the “Dry-CleanerDisbursement Request Date”) and which request shall include evidence satisfactory toLender of the satisfaction of all of the requirements contained in this Section, release toBorrower the funds or a portion thereof in accordance with this Section.

(d) Generally. The Dry Cleaner Reserve shall not, unless otherwise explicitly required byapplicable law, be or be deemed to be escrow or trust funds, but at Lender’s option and inLende?s discretion, may either be held in a separate account or be commingled by Lenderwith the general funds of Lender. Interest on the funds contained in the Dry CleanerReserve shall be credited to Borrower as provided in Section 4.13 of this SecurityInstrument Upon assignment of this Security Instrument by Lender, any funds in the DebtService Reserve shall be turned over to the assignee and any responsibility of Lender, asassignor, with respect thereto shall terminate. In the event of a default hereunder or underany of the other Loan Documents, Lender in its sole discretion may do one of thefollowing:

(i) apply the funds in the Dry Cleaner Reserve to pay down the principal balance ofthe Loan subject to a pre-payment penalty equal to ‘Required YieldMaintenance” as defined in the Note, or

(B) continue to hold the Dry Cleaner Reserve as additional security for the Loanthroughout the remaining loan term, with any interest accruing thereon remainingin and becoming part of the Dry Cleaner Reserve.

B-?. Questamente Reserve.

(a) As additional security for the indebtedness secured hereby, Borrower shall establish andmaintain at all times while this Security Instrument continues in effect a reserve in theoriginal amount of $17,128.12 (the “Questamente Reserve”) with Lender. All suchsums, together with any interest thereon, are hereinafter collectively referred to as the“Questamente Funds”. Until there are no more Questamente Funds, Lender shalldisburse to Borrower on the eleventh (11th) day of each month, an amount equal to thefollowing:

October II, 2006 $4,519.92

November 11, 2006 $7,136.72

December 11,2006 $5,471.48

Securilylnstrument 46 ShoppesatArmenla

from the Questamente Reserve until such time as all Questamente Funds have beendisbursed. If agreed among the parties, such disbursement may be made as a creditagainst the monthly payment due under the Note on each such date. The QuestamenteReserve shall not, unless otherwise explicitly required by applicable law, be or be deemedto be escrow or trust funds, but at Lender’s option and in Lender’s discretion, may either beheld in a separate account or be commingled by Lender with the general funds of Lender.Interest on the funds contained in the Questamente Reserve shall be credited toBorrower as provided in Section 4.13 of this Security Instrument. Upon assignment ofthis Security Instrument by Lender, any funds in the Questamente Reserve shall be turnedover to the assignee and any responsibility of Lender, as assignor, with respect theretoshall terminate. If there is an event of default under this Security Instrument which is notcured within any applicable grace or cure period, Lender may, but shall not be obligated to,apply at any time the balance then remaining in the Questamente Reserve against theindebtedness secured hereby in whatever order Lender shall subjectively determine.

Security Instrument 47 shoppes at Armenia

EXHIBIT C

(Modifications To Security Instrument)

C-I. Construction of the Security Instrument. In the event of any conflict between and provisionsof this Exhibit C to this Security Instrument and any other part of this Security Instrument, theterms and provisions of this Exhibit C to this Security Instrument shall govern and control.

C-i Borrower Specific Provisions. The following amendments are hereby made to this SecurityInstrument:

C-2.1 Environmental Covenants. Borrower hereby covenants and agrees to sample materialwhich it reasonably suspects may be “asbestos-containing-material” (“SM”) (as definedby the Environmental Protection Agencies “Green Book”) prior to commencing a repair,renovation or demolition project at the Property that would disturb such potential ACM.Any removal of identified ACM, including the preparation of specifications therefor, shallbe conducted by a licensed asbestos abatement contract and/or certified asbestosconsultant, all in accordance with all applicable Environmental Laws and regulations.

C-3. State Specific Provisions. Notwithstanding anything to the contrary elsewhere in this SecurityInstrument, the following shall apply:

C-3.1 The following sentence is hereby added to the end of Section 1.24(a) of this SecurityInstrument:

Any references in this Security Instrument, the Note or any of the otherLoan Documents to attorneys fees and expenses shall be deemed toinclude without limitation both trial and appellate counsel fees andexpenses, if any.

0-3.2 The following paragraph is hereby added to this Security Instrument as Section 1.24(c)hereof:

(c) Borrower hereby indemnifies and holds harmless the law firm ofZacharisen & Associates, PC, and all of their attorneys,including, but not limited to David K. Zacharisen, from any and allloss, cost, expense, damage or claim. (including both trial andappellate levels), arising under or in any way connected withSection 697.10 of Florida Statutes or any similar law. Borrowerhereby verifies and confirms, to the best of its knowledge, allfactual information in this Security Instrument, including theaccuracy and correctness of the legal description set forthherein. In the event any factual errors are found in this SecurityInstrument or in the legal description, Borrower and Lender shall,at Borrower’s sole cost and expense, promptly correct or causeto be corrected subsequent to the date hereof any and all sucherrors. Borrower shall promptly pay or cause to be paid alldamages, claims or any other costs whatsoever arising under orin any way connected with any claim, whether or not valid,arising under or in any way connected with Section 697.10 of theFlorida Statutes, or any similar law due to or caused byinaccuracy or incorrectness of factual information or inaccuracyor incorrectness of the legal description set forth herein.Notwithstanding the foregoing, all rights of Borrower and Lender


are preserved against Borrower’s and Lender’s title insurers, thesurveyor, the engineer, if any, and the appraiser, if any, and,after payment is made by Borrower, Borrower shall besubrogated to such rights.

C3.3 The following Sections 4.15 through 4.17 are hereby added to this Security Instrument atthe end thereof:

4.15. JURISDICTION. BORROWER, TO THE FULL EXTENTPERMITrED BY LAW, HEREBY KNOWINGLY,INTENTIONALLY AND VOLUNTARILY, WITH AND UPONTHE ADVICE OF COMPETENT COUNSEL, (I) SUBMITS TOPERSONAL JURISDICTION IN THE STATE OF FLORIDAOVER ANY SUIT, ACTION OR PROCEEDING BY ANYPERSON ARISING FROM OR RELATING TO THE NOTE,THIS SECURITY INSTRUMENT OR ANY OF THE OTHERSECURITY DOCUMENTS, (II) AGREES THAT ANY SUCHACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANYSTATE OR FEDERAL COURT OF COMPETENTJURISDICTION SITTING IN HILLSBOROUGH COUNTY,FLORIDA, (III) SUBMITS TO THE JURISDICTION OF SUCHCOURTS, AND, (IV) TO THE FULLEST EXTENT PERMITTEDBY LAW, AGREES THAT IT WILL NOT BRING ANY ACTION,SUIT OR PROCEEDING IN ANY OTHER FORUM (BUTNOTHING HEREIN SHALL AFFECT THE RIGHT OF LENDERTO BRING ANY ACTION, SUIT OR PROCEEDING IN ANYOTHER FORUM). BORROWER FURTHER CONSENTS ANDAGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OROTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION ORPROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL,POSTAGE PREPAID, TO THE BORROWER AT THEADDRESS FOR NOTICES DESCRIBED IN SECTION 4.2HEREOF, AND CONSENTS AND AGREES THAT SUCHSERVICE SHALL CONSTITUTE IN EVERY RESPECT VALIDAND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALLAFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESSSERVED IN ANY OTHER MANNER PERMITFED BY LAW).

4.16. WAIVER OF JURY TRIAL. LENDER AND BORROWER, TOTHE FULL EXTENT PERMIrrED BY LAW, HEREBYKNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITHAND UPON THE ADVICE OF COMPETENT COUNSEL,WAIVE, RELINGISH AND FOREVER FORGO THE RIGHT TOTRIAL BY JURY IN ANY ACTION OR PROCEEDING BASEDUPON, ARISING OUT OF, OR IN ANY WAY RELATING TOTHE DEBT OR ANY CONDUCT, ACT OR OMISSION OFLENDER OR BORROWER, OR ANY OF THEIR DIRECTORS,OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTSOR A17ORNEYS, OR ANY OTHER PERSONS AFFILIATEDWITH LENDER OR BORROWER, IN EACH OF THEFOREGOING CASES, WHETHER SOUNDING IN CONTRACT,TORT OR OTHERWISE,

Security Instrument 49 Shoppes atArnienia

4.17. Secured Indebtedness; Future Advances.

(a) It is understood and agreed that this Security Instrumentshall secure payment of not only the indebtednessevidenced by the Note but also any and all substitutions,replacements, renewals and extensions of the Note, anyand all indebtedness and obligations arising pursuant tothe terms hereof and any and all indebtedness andobligations arising pursuant to the terms of any of theother Loan Documents, all which indebtedness is equallysecured with and has the same priority as any amountsadvanced as of the date hereof.

(b) This Security Instrument is given to secure not only theexisting indebtedness of THREE MILLION TWOHUNDRED THOUSAND DOLLARS and NO CENTS($3,200,000.00) of the Borrower to the Lender evidencedby the Note secured hereby, but also such futureadvances up to an additional THREE MILLION TWOHUNDRED THOUSAND DOLLARS and NO CENTS($3,200,000.00) as are made within twenty (20) yearsfrom date hereof, plus interest thereon, and anydisbursements made by Lender for the payment oftaxes, with interest on such disbursements, whichadvances shall be secured hereby to the same extent asif such future advances were made on the same date asof the funding of the proceeds of the Note. The totalamount of indebtedness secured hereby increases ordecreases from time to time. The provisions of thisSection shall not be construed to imply any obligation onLender to make any future advance, it being theintention of the parties that any future advance shall besolely at the discretion and option of Lender. Anyreference to the °Note” in this Security Instrument shallbe construed to reference any future advances madepursuant to this Section.

Security Instrument 50 Shoppes atArnienia

EXHIBIT 0

(Bankruptcy Remote Provisions)

0-1. Covenants with Respect to Indebtedness: Operations and Fundamental Changes ofBorrower. Borrower represents, warrants and covenants as of the date hereof and until suchtime as the Debt is paid in full, that Borrower

(a) does not own and will not own any asset (whether encumbered or not) other than (I) theProperty, and (N) incidental personal property necessary for the operation of the Property;

(b) is not engaged and will not engage in any business other than the ownership,management and operation of the Property;

(c) will not enter into any contract or agreement with any general partner, principal, memberor affiliate of Borrower or any affiliate of any such general partner, principal, or member ofBorrower, except upon terms and conditions that are intrinsically fair and substantiallysimilar to those that would be available on an arms-length basis with third parties otherthan an affiliate;

(d) has not incurred and will not incur any debt, secured or unsecured, direct or contingent(including guaranteeing any obligation), other than (i) the Debt, and (H) trade payables oraccrued expenses incurred in the ordinary course of business of operating the Property;no debt whatsoever may be secured (senior, subordinate or pan passu) by the Property;

(e) has not made and will not make any loans or advances to any third party (including anygeneral partner, principal, member or affiliate of Borrower, or any guarantor):

(f) is and will be solvent and pay its debts from its assets as the same shall become due;

(g) has done or caused to be done and will do all things necessary to preserve its existenceand corporate, limited liability company and partnership formalities (as applicable), andwill not, nor will any partner, limited or general, or member or shareholder thereof,amend, modify or otherwise change its partnership certificate, partnership agreement,certificate or articles of incorporation or organization, or by-laws or operating agreementor regulations, in a manner which adversely affects Borrower’s, existence as a single-purpose, single-asset “bankruptcy remote” entity;

(h) will conduct and operate its business as presently conducted and operated;

(i) will maintain books and records and bank accounts separate from those of its affiliates,including its general partners, principals and members;

0) will be, and at all times will hold itself out to the public as, a legal entity separate anddistinct from any other entity (including any general partner, principal, member oraffiliate);

(k) will file its own tax returns;

(I) will maintain adequate capital for the normal obligations reasonably foreseeable in abusiness of its size and character and in light of its contemplated business operations;

Security Instrument SI Shoppes at Armenia

(m) will not, nor will any shareholder, partner, member or affiliate, seek the dissolution orwinding up, in whole or in part, of Borrower;

(n) will not enter into any transaction of merger or consolidation, or acquire by purchase orotherwise all or substantially all of the business or assets of, or any stock or beneficialownership of, any entity;

(o) will not commingle the funds and other assets of Borrower with those of any generalpartner, principal, member or affiliate, or any other person;

(p) has and will maintain its assets in such a manner that it is not costly or difficult tosegregate, ascertain or identify its individual assets from those of any affiliate or anyother person;

(q) has, and any general partner or operating member of Borrower has, at all times since itsformation, observed all legal and customary formalities regarding its formation and willcontinue to observe all legal and customary formalities;

(r) does not and will not hold itself out to be responsible for the debts or obligations of anyother person;

(a) upon the commencement of a voluntary or involuntary bankruptcy proceeding by oragainst Borrower, Borrower shall not seek a supplemental stay or otherwise pursuant toii u.s.c. 105 or any other provision of the Act or any other debtor relief law (whetherstatutory, common law, case law, or otherwise) of any jurisdiction whatsoever, now orhereafter in effect, which may be or become applicable, to stay, interdict, condition,reduce or inhibit the ability of Lender to enforce any rights of Lender against anyguarantor or indemnitor of the secured obligations or any other party liable with respectthereto by virtue of any indemnity, guaranty or otherwise.

D-2. Non-Consolidation Opinion and independent Directors. Intentionally Deleted.

D-3. Sale of the Property. In connection with any transfer of the Security Property and anassumption of Loan by a buyer thereof (the “Buyer”):

(a) The Buyer and such constituent partners, members or shareholders of Buyer (as thecase may be), as Lender may require, shall be single-purpose, single-asset “bankruptcyremote” entities, whose formation documents shall be approved by counsel to Lender;and

(b) The Buyer, if required by Lender, shall furnish an opinion of counsel satisfactory toLender and its counsel that the Buyer’s formation documents provide for the mattersdescribed in Section D-3(a) above.


D L51V11’ ~v~

INSTRIJMENT#: 2007465992, 0 BK 18222PG 1-7 1013112007 at 10:46:24 AM, DEPUTYCLERK: SLEWIS Pat frank, Clerk of theCircuit Court 1-lilisborough County

Record and Return To:Optimal Asset LLC500 Professional Center Drive., #525Novato, CA 94947

Loan: 19720060WELLS FARGO-2005C5Florida, Hilisborough

ASSIGNMENT OF MORTGAGE

Prepared by:Wells Fargo Bank1055 10th Avenue SEMinneapolis, MN 55414800 645-0683

Assignor: Column Financial, JncEleven Madison Avenue9th Floor

New York, New York 10010

Assignee: Wells Fargo Bank, NA as Trustee1055 10th Avenue SEMinneapolis, MN 55414

ASSIGNMENT OF MORTGAGE

THIS ASSIGNMENT OF MORTGAGE (this “Assignment’) is made and entered into as of September 12,2006, by and between COLUMN FINANCIAL, INC., a Delaware corporation, with its place of business atEleven Madjsorj Avenuç, 9~ Floor, New York, New York 10010 (“Assignor”) and

see Attached txiubit U a ______________ ______________ with its place ofbusiness at ______________________________________________________ ____________________

_________________ ____________ (“Assignee”).

W IT N ESS ET H:

That for good and valuable consideration, Assignor does hereby assign, sell, convey, set over and deliverto Assignee all of Assignor’s right, title, and interest in and to:

a certain Mortgage, Security Agreement and Assignment of Leases and Rents (the “Mortgage”) inthe original principal amount of $3,200,000.00 made by M B PLAZA, LLC, a Florida limited liabilitycompany (Borrower,” as the “mortgagor’ therein) to Assignor (as the “mortgagee” therein) dated ofeven date herewith, and recorded in the Land Records of Hillsborough County, State of Floridaunder BookItA”~q_, Page OtocSt -flo). àa¾ech M361t4.

and together with all of Assignor’s right, title, and interest in and to the real property located at 2507 WestHillsborough Avenue, Tampa, County of Hillsborough, State of Florida, as more particularly described inExhibit A hereto, which Mortgage secures the indebtedness evidenced by that certain Promissory Note (the“N2t2’). dated of even date herewith, made by Borrower, as maker, to Assignor, as payee, in the originalprincipal amount of $3,200,000.00, which Note has been assigned by Assignor to Assignee by allongeattached thereto.

Assignment of Security Instrument 2 Shoppes at Armenia

IN WITNESS WHEREOF, this Assignment has been duly executed as of the day and year first abovewritten.

Assignor

Witnesses: COLUMN FINANCIAL, INC., a Delaware corporation

w~,tz~ q0~~

(èLAott44s i~(,ti (&U171n By: nw,°Iame:hCa4-t PO~lIat.. /Ue: ~ P’~s~Lk

Assignment of Security Instrument 3

ACKNOWLEDGEMENTS

STATE OF NEW YORK)SS

COUNTYOFNEWYORK )

THE FOREGOING INSTRUMENT was acknowledged before me this 12th day of September. 2006, bySusana lannicelli, as Vice President of COLUMN FINANCIAL, INC., a Delaware corporation, on behalf ofsaid corporation. He/she XXX, is personally known to me or I_I has produced

_______________________________________________________ as identification. [Notary, check

appropriate blank; and, if obtaining identification, fill in appropriate identification number.]

Notary Public

[NOTARIAL SEAL & STAMPJ

Serial No:

My commission expires:

DAVID K. ZACHARISENNOTARY PUBLIC, STATE OF NEW YORK

NO. 02ZA6011991QUALIFIED IN NEW YORK COUNTY

CERTIFICATE FILED IN NEW YORK COUNTYCOMMISSION EXPIRES AUG. 17, 2O(.O


)

EXHIBIT A

PARCEL 1:ALL OF LOTS 1 -4 OF BLOCK 1 OF BOUR-LANDS SUBDIVISIONAS RECORDED IN PLAT BOOK 14, PAGE 27 AND BEING INSECTION 34 TOWNSHIP 28 SOUTH, RANGE 18 EAST,HILLSBOROUGH COUNTY, FLORIDA; LESS AND EXCEPT RIGHT-OF-WAY ESTABLISHED BY ORDER OF TAKING RECORDED INOFFICIAL RECORD BOOK 3075, PAGE 1964 AND JUDGMENTRECORDED N OFFICIAL RECORDS BOOK 3150, PAGE 1068,PUBLIC RECORDS OF HILLSBOROUGH COUNTY, FLORIDA; ANDLESS AND EXCEPT ADDITIONAL RIGHT-OF-WAY DESCRIBEDAS FOLLOWS:

COMMENCE AT THE NORTHWEST CORNER OF BLOCK 1 OFSAD BOUR-LANrDS SUBDIVISION (BE1NG A 13mm iRON ROD)THENCE S.QO°12’44~ W., ALONG THE WEST BOUNDARY OF SAIDBLOCK 1, A DISTANCE OF 66.178 METERS (217.12 FEET) TO THENORTH RIGHT-OF-WAY LINE OF STATE ROAD 600 (W.HILLSBOROUGH AVENUE) (PER SECTiON l015-95A); THENCES.89°40’4rE., ALONG SAID NORTH RIGHT-OF-WAY LINE, ADISTANCE OF 83.820 METERS (275.00 FEET) TO THE WESTBOUNDARY OF SAID LOTS 1 -4 OF BLOCK I AND THE POINTOF BEGINNING; THENCE N.00°16’15”E ALONG SAID WESTBOUNDARY, A DISTANCE OF 20.602 METERS (67.59 FEET);THENCE S.89°38’49”fl., A DISTANCE OF 20.941 METERS (68.70FEEfl; THENCE N 68°27’56”E, A. DISTANCE OF 7.335 METERS(24.06 FEET) THENCE N.40°19’24”E., A DISTANCE OF 5398METERS (19.68 FEET) TO THE NORTH BOUNDAjtY OF SAID LOT4; THENCE 5.8995’ 55”E., ALONG SAID NORTH BOUNDARY, ADISTANCE OF 1.322 METERS (4,34 FEEl) TO THE WESTERLYRIGHT-OF-WAY LINE OF NORTH ARMENIA AVBMJE ASESTABLISHED BY ORDER OF TAKING RECORDED IN OFFICIALRECORD BOOK 3075, PAGE 1964 AND JUDGMENT RECORDEDIN OFFICIAL RECORD BOOK 3150, PAGE 1068, PUBLIC RECORDSOF HILLSBOROTJCJH COUNTY, FLORIDA; THENCE ALONG SAIDWESTERLY RIGHT-OF-WAY LINE, THE FOLLOWING TWO (2)COURSES: 1.) S.O0°17’57”w., A DISTANCE OF 20.097 METERS(65.93 FEEfl; 2.) THENCE S.45°41’55”W., A DISTANCE OF11.129 METERS (36.51 FEET) TO SAID NORTH RIGHT-OF-WAYLINE OF STATE ROAD 600 (W. HILLSBOROUGH AVENUE);THENCE N. 89°40’43”w., ALONG SAil) NORTH RIGHT-OF-WAYLINE, A DISTANCE OF 24394 METERS (82.00 FEEl) TO THEPOINT OF BEGINNING.


PARCEL 2:LOTS 5,6,7,8 AND 9, BLOCK 1 BOUR-LANDS SUBDIVISION,ACCORDING TO THE MAP OR FLAT THEREOF AS RECORDED INPLAT BOOK 14, PAGE 27, PUBLIC RECORDS OF HILLSBOROUGHCOUNTY, FLORIDA.

PARCEL 3:LOTS 10,11, I2AND 13ANDLOTS3OAND31,BLOCKI,BOUR-LANDSSUBDIVISION, ACCORDING TO THE MAP OR PLAT THEREOF ASRECORDED IN FLAT BOOK 14, PAGE 27, OF THE PUBLIC RECORDSOF HILLSBOROUGH COUNTY, FLORIDA, LESS STATE ROADRIGHT-OF-WAY AND LESS THAT PART OF LOTS 30AND 31 FOR ROAD RIGHT-OF-WAY MORE PARTICULARLYDESCRIBED IN OFFICIAL RECORDS BOOK 9102, PAGE 244,SAID PUBLIC RECORDS.

PARCEL 4:LOTS 14,15 AND 16, BLOCK I, BOUR-LANDS SUBDIVISION,ACCORDING TO THE MAP OR PLAT THEREOF, RECORDED INPLAT BOOK 14, PAGE 27, PUBLIC RECORDS OF HILLSBOROUGHCOUNTY, FLORIDA.

PARCELS;LOTS 26, 27,28 AND 29, AND THE EAST 20 FEET OF LOT 25,BLOCK 1, BOUR-LANDS SUBDIVISION, ACCORDING TO THEPLAT THEREOF AS RECORDED IN PEAT BOOK 14, PAGE 27, OFTHE PUBLIC RECORDS OF HILLSBOROUGH COUNTY, FLORIDA,LESS ROAD RIGHT-OF-WAY.

LESS AND EXCEPT THE LEGAL DESCRIPTIONS LISTED INORDER OF TAKING RECORDED IN O.R. BOOK 9123, PAGE515; O.R. BOOK 9123, PAGE 521, AND OR. BOOK 9123, PAGE527, PUBLIC RECORDS OF HILLSBOROUGH COUNTY, FLORIDA.

PARCEL.6:LOT 28,29,30 AND 31 BLOCK 2, BOUR-LANDS SUBDIVISION,ACCORDING TO THE MAP OR PLAT THEREOF AS RECORDED INPLAT BOOK 14, PAGE 27, PUBLIC RECORDS OF HILLSBOROUGHCOUNTY, FLORIDA. LESS THE SOUTh 5 FEET THEREOF ANDLESS RIGHT-OF-WAY FOR MOHAWK AVENUE.

Assignment of Security Instrument 6 Shoppas atArnenia

Exhibit B

Assignee Name and Address

LoaN number: 1972006C5Property: Shoppes at Armenia

Assignee Name: Wells Fargo Bank, N.A., as trustee for theregistered holders of Credit Suisse First BostonMortgage Securities Corp., CommercialMortgage Pass-Through Certificates, Series2006-CS

Assignee Address: Wells Fargo Bank, N.A.CMBS Department1055 10”’ Avenue SEMinneapolis, MN 55414

)

INSTRUMENT#: 2010040931, 0 BK 19703PG 1077-1082 0210412010 at 03:46:22 PM,DEPUTY CLERK: BLOGGANS Pat Frank, (Jerkof the Circuit Court Hiusborough County

After recording return to:

Javier A. Granda, EsquireI3ilzin Sumberg Baena Price & Axelrod LIP200 S. Biscayne Boulevard, Suite 2500Miami, Florida 33 131-5340

ASSIGNMENT OF MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OFLEASES AND RENTS AND OTHER LOAN DOCUMENTS

FOR VALUE RECEIVED, the receipt and sufficiency of which are herebyacknowledged, WELLS FARGO BAN*ç N.A., A NATIONAL BANKING ASSOCIATION,AS TRUSTEE FOR THE REGISTERED HOLDERS OF CREDIT SUISSE FIRSTBOSTON MORTGAGE SECURITIES CORP., COMMERCLAL MORTGAGE PASS-THROUGH. CERTIFICATES, SERIES 2006-C5 (“Assignor”), having a mailing address ofdo LNR Partners, Inc., 1601 Washington Avenue, Suite 800, Miami Beach, Florida 33139, doeshereby grant, bargain, sell, assign, deliver, convey, transfer and set over unto CSMC 2006-CSARMENIA RETAIL, LLC, a florida limited liability company (“Assignee”), having amailing address of do LNR Partners, Inc., 1601 Washington Avenue, Suite 700, Miami Beach,Florida 33139, all of the Assignor’s right, title and interest in and to the mortgage describedbelow, as such instrument may from time to time have been amended, assumed, Consolidated,modified and/or assigned, and all other loan documents executed in connection therewith, aseach such document may have been amended, assumed, consolidated, modified and/or assigned(the “Other Loan Documents”):

That certain Mortgage, Security Agreement and Assigmnent of Leases and Rents made asof September 12, 2006 (“Mortgage”), by M B Plaza, LLC, a Florida limited liability company(“Borrower”), in favor of Column Financial, Inc., a Delaware Corporation (“Original Lender”),recorded September 25, 2006, in Official Records Book 16979, Page 651, in the Public Recordsof Hillsborough County, Florida (the “Records”). The Mortgage was assigned by OriginalLender to Wells Fargo Banlc, N.A., as Trustee for the registered holders of Credit Suisse FirstBoston Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series2006-C5, pursuant to that certain Assignment of Mortgage, made as of September 12, 2006,recorded October 3 1, 2007, in Official Records Book 18222, Page 1, in the Records.

TOGETHER WITH all rights accrued or to accrue under the Mortgage and Other LoanDocuments, any and all promissory note(s) and the obligations described therein, the debt and

PLAINTIFF’SBIT

7)

claims secured thereby, and all sums of money due and to become due thereon, with interest asprovided for therein.

TO HAVE AND TO HOLD the same unto the Assignee and to the successors andassigns of the Assignee forever.

THIS ASSIGNMENT IS MADE WITHOUT RECOURSE AND WITHOUTREPRESENTATION OR WARRANTY, EXPRESS, IMPLIED OR BY OPERATION OFLAW, OF ANY KIND AND NATURE WHATSOEVER.

The Mortgage assigned hereby encumbers the real property legally described on ExhibitA attached hereto and incorporated herein by this reference.

IN WITNESS WHEREOF, this Assignment has been duly executed on behalf ofAssignor as of the ~j4day of February, 2010.

fEND OF TEXT- SIGNATURE AND A CKNOWLEDGMENTPA GES FOLLOW7

I

ASSIGNOR:

WELLS FARGO BANK N.A., A NATIONALBANKING ASSOCIATION, AS TRUSTEE FORTHE REGISTERED HOLDERS OF CREDITSUISSE FIRST BOSTON MORTGAGESECURITIES CORP., COMMERCIALMORTGAGE PASS-THROUGHCERTIFICATES, SERIES 2006-Cs

By: LNR Partners, mc., a Florida corporation, itsAttorney-in-Fact under Limited Power ofAttorney dated as ofApril 9, 2007

Signed, sealed and deliveredin the presence of:

~ By: R~do1ph J. Wolpert, Vice PresidentPrint Name: JI~4,q- O- (Aid J’n-~j

__________ [CORPORATE SEALJ

Print ftame: 7)~ ~n&a ,C(gr~j~.p

D D

STATE OF FLORIDA )) SS:

COUNTY OF MIAMI-DADE )

The foregoing instrument was acknowledged before me this .. ~‘ day of February,2010, by Randolph J. Wolpert, Vice President of LNR Partners, Inc., a Florida corporation, onbehalf of the said corporation, as Attorney-in-Fact on behalf of WELLS FARGO BANK, N.A.,A NATIONAL BANKING ASSOCIATION, AS TRUSTEE FOR THE REGISTEREDHOLDERS OF CREDIT SUISSE FIRST BOSTON IN’IORTGAGE SECURITIES CORP.,COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-C5.Said individual is personally known to me or has produced a driver’s license as identification.

Y~YY~’~a1 ~~uT~LIe•sl’At~ nle aIRWA (1t,~ai_}

i~4~% Commission bD~s~s3 t%otary Public, State of F1ori~aExpires: JULY 23 2013 Print Name: CMIDAD E. LA~E~ My Commission Expires: ~ — 1:3 — lu

[AFFIX NOTARY STAMP ABOVE]

D

EXHIBIT ALEGAL DESCRIPTION

PARCEL 1:ALT. OF L’On 1-4 OF BLOCK] OF BOtJIt.J.sI4DS SUEDIV SIGNAS RECORDED IN PEAT BOOK 14, PAGE 27 AND BEING IN.SECTION 34 TOWNSfljp 28 SOUTH, RANGE 18 EAST,WLLSEOR0UGH COUNTY, FLOR.JDk LESS AND EXCEPT RIGHT-OF-WAY ESTABLISHED BY ORD~ op TAKiNG RECORDED TNorncr~&~ REcopo nOO~C.3O75~ PAGE 1964 AND 3UDGM~rp’

• RECORDED IN OFFICIAL RECORDS BOoK 3150, PAGE ~ 068,• • PUthJC RECORDS pp HILLSBOROUOH COUNTY, FLORIDA; AND

LESS AN]) EXCEn ADDITIONAL RIGHT~OFI.WAY.DESC)aI3ED• . AS FOLLOWS: .1

• COMM~NCE AT WE NORTHWES-j COR)JER OF BLOCK OF.SAID DOUR-LANDS SUBDIVISION (BEING A I3rmi, mow ROD).THENCE S.00°1z’44” W., ALONE THE WEST BOij~g~4aj~y 0? SAil)BLOCK lrADISTANcEOF66ll8vt~s(2l7I2p~1,

• NoRm RIGHT4)P.WAY UNE op STATE ROAiy600 (w.HtLLSI3OROUGH AvENuE) (PER. snajo~~~ 101 5-~96A); THENCES.89°40’43 “B., ALONG SAID NORTH RIGHT-OF~WAY LINE, A.DISThjj~ OP ?3.820 METERS (275.00 FEEl) TO THE WESTBOUNn,’J~y OF SAil) LOTS 1-4 OF SLOCK 1 AND THE POINTOF BEGINNING. THENCE N.0O°16’JSHE. ALONG SAID WEST

• BOUNDARy, A DISTANCE OF 20.602 METERS (67.59 FEEl);THENCE S.ggD33~49nE A DISTANCE OF 20.941 METhR~ (68.70FEET); THENCE N 68a27t56Kg A DISTANCE Op 7.335 ZaJERS(24.06 FEET) TflENCB N.4099’24.B A D]STANCB ox~ Ss~sMEThRS(1~I68 FEB73 TO THE NOWfli BOUNDARY OF SAID LOT:4; THENCE S.89°35’ 55”E., ALONG SAID NORTH BOUNDARY, ADISTANCE OP 1.322 METERg ‘(4.34 PEEp To THE WEST~RLy,Iucwr~Op..WAy LINE Op NORTH ARMENIA AVENUE ASESTABLISHED BY ORDER OF TAKiNC) RECORDED IN OPflCLa4LRECORD BOOK 3075, PAGE 1964 AND JUDGMEr.n’ RECCIRDEI)IN OFFICIAL RECORD BOOK 3150, PAGE 1068, PUBLIC RECORDSOF NILLSBOItOUGR COUNTY, FLORIDA; THENCE ALONG SAID

• wrsj~j,y RIGHT.OF.WAY LINE, THE FOLLOWING TWO (2)’COURSES; I..) S.oQaj7~57nw: A DISTANCE OF 20.097 METERS’(65.93 PERu); 2.) THENCE 5~45°4j’55~w A DIStANCE OF11.129 METBP5 (36.51 FEET) TO SAiD NORTH RIGHT~op..wAy

• LINE OF STATE ROAD 600 (W. RILLSB0ROUGH AVENUE);THENCE N. 89°40’43’w,,, ALONe SAID NOkTH R!GITr~op..wAy

• ‘LINE, A DISTANCE 0? 24.994 METERJL~ (82.00 FEEl) TO THEPQIaQy BEGINNING

)

?ARCEXJ2:LOTs 5,6~7,g AND 9, BLOCK I flOUR-L.qjqrj~ SUBDIVISION,ACCOImING TO THE MAP OR PUT THEREOF AS RECORI>ED fl4’PLAn’ BOOK 14, PAGE 27, PUBLIC RECORDS OF HILLSBOROUGH.COUNTY, FWRmt -

PARCEL Is -‘

LOTS 10, ii; 12 AND 13 AND LOTS 30 AND 3j, BLOCK 1, BOR-UNDSSUBDIvIsJQ~N, ACCORDINU TO TEE MAY OR PLAT ThEREOF ASRECdRLED 114 PLAT BOOK 14, PA9E 27,01? tim Purnic RECORDS-OF rnLLSBOROU-GH COUNTy~, FLORIDA, LHss StATE ROADRIGRTOP.WAY AND LESS THaT PART OF LOTS 3DAND 31 FOR ROAD RIOHT.OF..WAY MORE PAR’flcuL~&jn~J~y

• DEScamso in oppicra RECoRDS BooK 9102, P4GB 244;-• SAID PVBLJC RECORDS. *

—. .-- •- •-

PARCa4: *

LOTS 14,15 AND 16, BLOCx I, BOUR-LAJ1DS SUBDI’VTSZONACCORp~~gC TO TEE MAP oa PLAT THEREOP, RECOin~ INPLkT BOoK 14, PAGE 2Z PUBLIC RECOflfl~ O; HILLSBOROUGHcouNTy, FLORIDA. - -.

• •

LOTS 26,27,28 AND 29, AND THE EAST 20 FEET OP LOT 25,BLOczIC 1, DOtlR-LaNrjg SUJ3]3lvIsIow Acco~~~q~ TO THE

• flAT THERSOF AS RECORDED TN PLAT flOox 14~ PAGW 27,0?THE PuBlic RECORfl~ OP HILLSEOR0Uc~ COUNTY, floRu,&LESS flOAt) RICRT~OFWAY * •

LESS AND WCCEfl THE LEGAL DE~CRWTIONi LISTED INORDa OP TAlc1240 RECoIm~ IN OR. BOOK 9123, PACE515; 0.11. BOOK-9123, PAGE 521, AND O.R~ BOQ]cgi~ PAGE

• 527, PUBLIc RECOIniS O1~ ?ILLSBOROUGH COUNTY, FLOPJDA.

• PSRCEL.6: •

• L0T28, 29, 30 AND 31 BLOCK 2, ≤OUR-L4ND8 SUBDIVIsION ‘••

• ACCORDNo ‘ro WE z’.w’ o~. PLAT THEREOF AS RECOR])j~jy~J• ?LAfl~ç~~ 14, PAGEr, PUBLtc RECORDS OF mUSBOROUGH

• COLThfly FLORIDA -LESS ma SOUTh~ FEET THEREOF AND,LESS R]GHTWoJLWAy FOR MOHAWK A’QENUE. --

981684

)

ASSIGNMENT OF LOAN DOCUMENTS(MB Plaza, LLC; Loan No. M0100327964)

CSMC 2006-CS ARMENIA RETAIL, LLC, a Florida limited liability company(“Assignor”), whose address is do LNR Partners, LLC, 1601 Washington Avenue, Suite 700,Miami Beach, Florida 33139, for good and valuable consideration, the receipt and sufficiency ofwhich are hereby acknowledged, hereby assigns, transfers, sets over and conveys to SQUAREMILE/RAM ACQUISITION LLC, a Delaware limited liability company (“Assignee”), whoseaddress is c/c Square Mile Capital Management, LLC, 450 Park Avenue, New York, New York10022 and c/c Raw Realty Services, 4801 PGA Boulevard, Palm Beach Gardens, Florida 33418,Alt: David A. Dean, all Assignor’s right, title and interest in and to the loan documentsdescribed on Schedule A attached hereto, as the same may have been assigned, amended,supplemented, restated or modified.

TO HAVE AND TO HOLD the same unto Assignee and its successors and assigns

This Assigument is made without recourse or representation or warranty, express,implied or by operation of law, of any kind and nature whatsoever.

The foregoing paragraph shall not impair Assignor’s representations and warrantiespursuant to Section 5.2 of the Agreement for Sale and Purchase of Loan dated June 30, 2010between the Assignor and Assignee.

[THE REMAINDER OF THIS PAGE WAS LEY~ BLANK INTENTIONALLY].

forever.

MIAMI 2221349.3 7249633463

)

IN WITNESS WhEREOF, Assignor has duly executed this Assignment as ofU .2010.

CSMC 2006-C5 ARMENIA RETAIL, LLC, aFlorida limited liability company

By: LNR Partners, LLC, a Florida limitedliability company, successor by statutoryconversion to LNR Partners, Inc., a FloridacorPoratoy, its manager

Signature: .- By:________________________Print Name: /711 Name: g~~jh OLP (4 ~ L~J OLPEZI

Title: Vice President

Signature:~c~~ zPrint Name: cfl—ct c”c. j3 ecziç.z

STATE OF FLORIDA )) SS.:


The foregoing instrument was acknowledged before me this 2o~ c~y of 3U (A2010, by Ra.ndoLpk S. UoLper4. as Vice President of LNR Partners, LLC, a Floridalimited liability company, successor by statutory conversion to LNR Partners, Inc., a Floridacorporation, on behalf of said company as the manager of CSMC 2006-CS Armenia Retail, LLC,a Florida limited liability company. He is tZ personally known to me or ____ has produced aFlorida driver’s license as identification.

My Commission Expires: k.• PriritName: KAEEt’J A.S~n9Rs≤g,

[NOTARIAL SEAL] NOTARY SEAL:___________________Serial No., ifany:__________________________

p.E KAREN A. BROMPIEU)Comni# 000697853•

Expires 6/W2013: %flt Piojida Nv*aiyAan, Inc ~

MIAMi 2221349.3 7249633463 2

SCHEDULE A

i: Promissory Note dated September 12, 2006, made by M B Plaza, IJLC, a Florida limitedliability company (“Borrower”), to Column Financial, be,, a Delaware corporation(“Original Lender”) in the original principal amount of $3,200,000.00.

2. Mortgage, Security Agreement and Assignment of Leases and Rents dated as ofSeptember 12, 2006, from Borrower to Original Lender, recorded as Instrument No.2006459620, in Official Records Book 16979, Page 651, of the Public Records ofHilisborough County, Florida (the “Records”).

3. UCC Financing Statement reflecting Borrower, as debtor, and Original Lender, assecured party, recorded as Instrument No.2006459619, in Official Records Book 16979,Page 643, in the Records.

4. UCC Financing Statement reflecting Borrower, as debtor, and. Original Lender, assecured party, filed with the Florida Secretary of State under File No.200603783560.

5. Indemnity and Guaranty Agreement dated as of September 12, 2006, executed by JaacovB. Bouskila and Moshe Mazine (collectively, “Guarantor”) in favor of Original Lender.

6. Environmental Indemnity Agreement dated as of September 12, 2006, executed byBorrower and Guarantor in favor of Original Lender.

MIAMI 2221349.3 7249633463

D

(Space above isfor Recorder ~s use)

Recorded By:

And When Recorded Mail To:

ASSIGNMENT OF SECURITY INSTRUMENT

CSMC 2006-C5 Armenia Retail, LLC, a Florida limited liability company (“Assignor”),whose address is c/c LNR Partners, LLC, 1601 Washington Avenue, Suite 700, Miami Beach,Florida 33139, for good and valuable consideration, the receipt and sufficiency of which arehereby acknowledged, hereby assigns, transfers, sets over and conveys to SQUARE MILEIRAMACQUISITION LLC, a Delaware limited liability company (“Assignee”), whose address is doSquare Mile Capital Management, LLC, 450 Park Avenue, New York, New York 10022 and 0/0Ram Realty Services, 4801 PGA Boulevard, Palm Beach Gardens, Florida 33418, Ann: DavidA. Dean, all Assignor’s right, title and interest in and to the Mortgage, Security Agreement andAssignment of Leases and Rents (the “Security Instrument”) dated as of September 12, 2006,made by. M B Plaza, LLC, a Florida limited liability company, in favor of Column Financial,Inc., a Delaware corporation (“Original Lender”), recorded as Instrument No. 2006459620, inOfficial Records Book 16979, Page 651, of the Public Records of Hilisborough County, Florida(“the “Records”), as assigned by Original Lender to Wells Fargo Bank, NA., as Trustee for the

MIAMI 2221349.3 7249633463

Registered Holders of Credit Suisse First Boston Mortgage Securities Corp., ConunercialMortgage Pass-Through Certificates, Series 22006-CS (“Trust’), by Assignment of Mortgagedated as of September 12, 2006, recorded as Instrument No. 2007465992, in Official RecordsBook 18222, Page 1, of the Records, as further assigned by the Trust to Assignor by AssignmentOf Mortgage, Security Agreement And Assignment Of Leases And Rents And Other LoanDocuments dated as of February 3, 2010, recorded as Instrument No. 2010040937, in OfficialRecords Book 19703, Page 1077, of the Records.

The Security Instrument relates to the real property described in Schedule A attachedhereto.

TO HAVE AND TO HOLD the same unto Assignee and its successors and assignsforever.

This Assignment is made without recourse or representation or warranty, express,implied or by operation of law, of any kind and nature whatsoever.

The foregoing paragraph shall not impair Assignor’s representations and warrantiespursuant to Section 5.2 of the Agreement for Sale and Purchase of Loan dated June 30, 2010between the Assignor and Assignee.

[TUE REMAINDER or THIS PAGE WAS LEFT BLANK INTENTJONALLYI

MIAMI 2221349.3 7249633463 2

n )

IN WITNESS WHEREOF, Assignor has duly executed this Assignment as of

____________,2010.

CSMC 2006-C5 ARMENIA RETAIL, LLC,Florida limited liability company

By: LNR Partners, LLC, a Florida limitedliability company, successor by statutoryconversion to LNR Partners, Inc., a Florida

its manager

‘~s1~ ~ra4%z

STATE OF FLORIDA ))SS.:


The foregoing instrument was aóknowledged before me this 261L day of Zfu ct~i2010, by Rar~doIph S. Uc (pen- as Vice President of LNR Partners, LLC, a Floridalimited liability company, successor by statutory. conversion to LNR Partners, Inc., a Floridacorporation, on behalf of said company as the manager of CSMC 2006-C5 ARMENIA RETAIL,LLC, a Florida limited liability company. He is V” personally known to me or ____ hasproduced a Florida driver’s license as identification.

My Commission Expires: 4Kojc_ A.. ~PrihtName: kAeEtJ A• 3a6ThF~E~

[NOTARIAL SEAL] NOTARY SEAL:___________________Serial No., if any:_____________________

KA$N ~t BROMFIELD~ gØlI% Coinm# DCC 897353

(ØA Expires 6/6)2013Fiorida Nc4aiyftsa,.. Inc

b~ISbbii.ñIi~ehflhi~bjii.hnkiiii.i.iiâs.4..D

a

Signature:______________________Print Name:__________________

Signature:.Print Name:

Name:Title: Vice President

MIAMI 2221349,3 7249633463 3

‘3

SCEEDULE ALEGAL DESCRIPTION

PARCELItALL OP LOTS 1-4 OP BLOCK I OP SOUR-LANDS SUEDIVZSxoN~.AS RECOIU?ED SN PZ.AT BOO~C 14, PAGE 27 MØ BEING iN.

• SECTION 34 TqwNsmp 28 SOUT%~ MNGB 18 BAST, H• HILLSEOROUGfl COUNTY, FLOZUDM LESS AND EXCEPT RIGflT~.

OFWAY ESTASLISHEt) lit ORDfl OP TAZING RECORDED IN• OFFICIAL RECORD DOOk.3o73, PAGE 1964 AND SVDGMBNT’,

RECORDED IN oxvricya RECORDS BPOK 3150, MOE I 06%.PVBUC RzCORD~ *P mLLSSOROUON COtfl9rY, oRiDA~ 4ND~LESS XJ~b EX4DEPT ADD?flONflRIGHTbOP..WAY. DESCRIBED

• . ASFOLLOW~; .‘ . ‘ ‘ • 1

I . I’

• CQMfl~NcB AT THE NORTRWRWt cou≥qa OP BLocK op.SAiD BOUk-Wq~g S ThW1810N(BEINQ A 13mmIRON ROD).Thm4cE SS0°iz’44’~ W., ALONG ThE WEST BOWDARY OP SA3E~BLOCK 1,.A D1STh≥~oB OP 66.17~7~4BTERg (217~l2 P~1) TOt~B.NORTH flONT-OP-WAY tEO~~ STATE ROAIY600 CW.BLLSBOROUGHAV~RSE~ON 1015-96A); ThENCE&89MO’43~E~, ‘AL NO SAID NORTH lUGJfp.O$.WAy LINE. £DISTANCE OF L820.METERS CZ7~00 PEE!) TO7flEWES~T -

BOU~j~y OP SAID LOCTS 1-4 or ~LOCZ I AND THE POMror’ aEon~Niwo~ THENCE N.Oo°z5’zfl, ALONG SAID WESTBOUNDAIp!, A DISTANC? 0? 20.602 METERS (6739 FEBfl~ENCE S.8P038?49PE~, A DXSTM’~1Cg OP 2O~941 METhRS 08.70EEEl~; THENcE N:68°27’~6% .kDXSTANCE 0? 7335 ?sWJ’ER$(2406.PEET) 7NE14cE N.40°i 9’24MB., A DiSTANCE OP ~.998.

• . M~T~SØ~.68 EB~SI) TO THE NORTH EObNDARY ‘OP SAID. LOT4; ThENCE S.89~35’ 55”&, ALONG SAID NO~tTR ~0V7WARY, AbISTANCB OP 1322 MB’Ifls ‘(4,34 tEE!) TO THE WES~RLy~

•,ncmT.Olt,WAY LflqE Or’ NORTH AJU4ENI& AVENT~ ASESTASLISflED BY ORDIZXL OP TAKING RBCORDED IN QX~PXC1AL‘ao2u) BOOK3075k PAGE 1964 AND SUDG~1ENT RBC6RDEDIN OFP!c]AL RECORD BOOK 315o~ PAGE 1068, ~tatRECoRDSOP ~iILLSflOaolJcrn CQUNTY, )WkmA; T*TENCE ALONG SAIDWESThRIY luom—op-WAY LINE, THE POLLOWTh~o VWO ~2)

., COURSES: 1.) S.OQDI 7~7”w:, A DISTM4C~ OP 20.097 ?c~ETERs- (65.93 FEEfl 2) THENCE S.45*41~55wv/,~ A DISTANCE 0$

1I.~29 !BTh~ (36.51 PB~ TO SAZDNORW RIGHtOP-wAyLINE OiZ STATh ROb]) 600 (W. RILLSBcaoucrn A’VBNTJEyTHENCE N. 89°4O’43ny~ ALONG SAtE NCIRLrIt RIGWV-OP-WAY‘LINE, AZ5S7A3~cE OP 24.994 METERS (82.00 PEEl) TO TEE

BEGiNNINGF

MIAMI 2221349.3 7249633463

)

PARCEL 2:LOTS 5,~ 6,7,8 A2’ID 9, ELOCIC I BD~-LA2W3 surnnvzsroN~ACCORDING TO WEMAP OR PtMr ThEREOF AS RECORDED mPLAT 1300K 14~ PAGE 27, PUBZ≥C CORDS OZ~ RU.LSBOROIJGU,CO~Nfl, FLORIDA. ,

PARCELS: , ‘

‘tom w~ 11~j2 AND IS A14~ LOTS 30 ANT) 3h BLO~K 1, D9Va-L~.NDsSUDPXVISXON, ACCORDING TO WE MAP OR NAT ThE1~EOP ASRECOIWED I& NSA.T BOOK 14, PA~B 27, OPThE PUDLXC ]~ECORDSOF XflLLSB0RbUbR COVNTY~, flORIDA, ,LEsS STATE ROAD

AND ai EOR ROAD RIGBT-OF-WAY MOItZ PAktCULAfly I

• DESCRIBED N oppxcja RJ!CORDS BOoK 9102, P468244;’-

• I I ., •, I V I

i.~i~ti4 4; ‘ . . .

LOTS 14,13 A≥43) 16, flOCK 1~ BOZIR-LANDS SUBDTVI~EON,ACCORZNNG TO ThE M41 OR: PLAT ThEREO~’, RECORDED )NFLAt BOOK 14, PACE 27; ?UEUC RECORDS OP HtLtSBOROUcrnDOUNfl,PSflRØA. 1 , ~ ~1~

PARCELS:, ,‘ .. •

LOTS 26,2728 AN)) 29~ AND THE MST 20 EBET OP LOT Z51BLOCJç1, BOIJR-LM4DS SUBDIVISION, ACCORZR4G TO THE’

• PLAT THEREOF AS 2iEQORDETh 1N flAT BOOK 14~ PA•G~ 27~ OP .

tHR PUBUC aE~oRzs OF mussoagup~ COUNTY, FLORIDA,LESS ROAD RIGTfltOp..WAY. ‘•‘

• LESS AND WCCE?T TR~ LEGAL DEbCIUPTIONS LISTED 314ORDER OF TMçING ZBCOSDEE, ft O,R. BOOK. 9125, PAGE515; bit B00K9123, ?4GE S21~ A24D O& EOO)C9123? MGE$27, PUSilO RBCOIO~S O)~ flLSBOROUdfl COtJNTY, PLORIDL

‘PARCEL4; ,‘ • . • -

• LOT28,2P,3o~jqfl33 ~LOCK2,~otm4jwng SUBDIVISION, b•.

• ACCORDfl4Q TO WE MAP 08. PLAflflE!tEOF AS RECOPDEI) ‘INPLA’rDooz. 14, PACE27,pu~uc RECORDS OV RILLSDOR0UOa

• CoUNry-~ JtLORDIA. tESS ~E SOUTH 5 PEE? THEREOF ANDI •

LESS RIGHT..Op,WAY FOR. MOUA~VX A9ENUS.I,

MIAMI 2221349.3 1249633463 2

D

ALLONGE

TillS ALLONGE is made to that certain Promissory Note dated September 12, 2006, inthe original principal amount of $3,200,000.00 from M B Plaza, LLC, a Florida limited liabilitycompany to Column Financial, Inc., a Delaware corporation.

Pay to the order of SQUARE MILE/RAM ACQUISITION LLC, a Delaware limitedliability company (“Assignee”), without recourse or representation or warranty, express,implied or by operation of law, of any kind and nature whatsoever.

The foregoing paragraph shall not impair the representations and warranties of theundersigned pursuant to Section 5.2 of the Agreement for Sale and Purchase of Loan dated June30, 2010 between the undersigned and Assignee.

[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY]

MIAMI 2221349.37249633463

7)

• [SIGNATURE PAGE TO ALLONCEI

CSMC 2006-CS ARMENIA RETAIL, LLC, aFlorida limited liability company

By: LNR Partners, LLC, a Florida limited• liability company, successor b31 statutory

conversion to LNR Partners, Inc., a FloridacorporaborA its manager

• By:___________________Name: Rfl’~’DOLPH WOLPERTTitle: Vice President

Dated: 3’.’ij 2-I • .2010

MIAMI 22213493 724963346~ • 2

j~fl~ViS~LtLW~ ~ULU333~O~, flz~: £VL.LO hL~ ‘4 4 — ii .LU/U41/ZUIU at u4nwi PM,‘DEPUTY CLERK:SEDSON Pat Krank,Clerk of the Circuit CourPm~i11sboroughcounty

THUS USNOT.ACERTUFUL~D COPY

(Space above isfor Recorder’s use) - -

Prepared By:

LauraR, MaskGibson, Dunn & Cnitcher LLP555 Mission Street, Suite 3000San Francisco, California 94105

And When Recorded Mail To:Wells Fargo Bank, National AssociationCommercial Real Estate375 Park Avenue, 9th FloorNew York, New York 10152Attn: Wendy-M. ClarkeLoanNo. 1002896

ASSIGNMENT 01? SECURITY INSTRUMENT

SQUARE MitE/RAM ACØUISLTION LLC, a Delaware limited liability company(“Assignor”), whose address is do Square Mile Capital Management, LLC, 450 Park Avenue,New York, New York 10022 and do Ram Realty Services, 4801 PGA Bouievard, Palm BeachGardens, Florida 33412, Attn: David A. Dean, for good and valuable consideration, the receiptand sufficiency of which are hereby acknowledged, hereby assigns, transfers, sets over andconveys to WELLS FARGO BANK, NATIONAL ASSOQIATION (“Assignee’), whose addressis 333 South Grand Ave., 9tb Floor, Los Angeles, CA 90071, Attn: Michael Nagin, all Assignor’sright, tide and interest in and to the Mortgage, Security Agreement and As~ignment of Leases andRents (the “Security Instrument”) dated as of September 12, 2006, made by M B Plaza, LLC, a

pL1INTIFF’EXHIBIT

flK ZUSJ.O ry ‘

ThUS_US NOT AFloridQ~9m4~aancGGfl~uon(“Origlhgru Cr’ , re de as e ~.2 620,1 ~1 cc ds Boo 16979,Page 651, of the Public Records of Hhisborough County, Florida (the “Records”), as assignedby: (I) Original Lender to Wells Fargo Bank, N.?1.., as Trustee foi the Registered Holders ofCtedit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass-ThroughCertificates, Series 22006-CS (“Trust”), by Assignment of Mortgage dated as of September 12,2006, recorded as Instrument No. 2007465992, in Official Records Book 18222, Page 1, of theRecords; (ii) Trust to CSMC 2006-CS Armenia Retail, LLC, a Florida limited liability company,by Assignment Of Mortgage, Security Agreement And Assignment~ Of Leases And Rents AndOther Loan Documents dated as of February 3, 2010, recorded as Instiument No. 2010040937, inOfficial Records Book 19703, Page 1077 of the Records; and (iii) CSMC 2006-CS ArmeniaRetail, LLC, to Assignor, by Assignment of Security Instrument recorded on August 6, 2010,recorded as 20015, Page 836, of the Records, as the same may have been assi~ed, amended,supplemented, restated or modified.

The Security Instrument relates to the real property described in Schedule A attachedhereto.

TO HAVE AND TO HOLD the same unto Assignee and its successors and assignsforever.

This Assignment is made without recourse or representation or warranty, express,implied or by operation of law, of any kind and nature whatsoever except as may bespecifically set forth in the Transaction Documents as such term is defined in that certainPurchase and Repurchase Agreement and Securities Contract dated as of Sa~~~cn4,~t 2ci,2~~2010, by and among WFB, Square Mile/Ram Acquisition LLC, a Delaware limited liabilitycompany, and Square Mile/Ram Ac4ulsitlon II LLC, a Delaware limited liability company.

fTHE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY]

I -~

~THUS:US N~TD

ACERTUFUED Copy

By:

Withesses:

Signature __________________

Print Name:_______________

~Print Name_______________

SQUARE MILE/RAM ACQUISITION LLC1a Delaware limited liability company

Name: Joseph D’AngeloTitle: Authorized Signatory

IN WITNESS WBEREOF, Assignor has duly executed this Assignment as ofS4r.w~tv ~ •2010.

Name: Karen D. OcHerTitic: Authorized Signatory

By:

By:A. Dean

Title: Authorized Signatory

‘I )

THUS US NOT AC~RTUFU~D COPY

IN WITNESS WHEREOF, Assignor has duly executed this Assignment as of54.J,y tft~__,2OlO.

Signature: —

Print Name:

SQUARE MILEIRAM ACQUISiTION LLC,a Delaware

Name: Karen D. OcherTitle: Authorized Signatory

Name: David A. DeanTitle: Authorizcd Signatory

By:

By:

By:

Witnesses:

Signature:)aStttJ 4~t*tc.Print Name: iMvt4 ióc~e (Itt.

_ D _

Thus US NCY A

CHRTUFUED COPYSTATE OF NEW YORK )

) SB.:COUNTY OF NEW YORK)

On the — day of September in the year 2010, before me, the undersigned, anotary public in and for said State, personally appeared Joseph D’Aaigelo, personally known tome or proved to me on the basis of satisfactory evidence to be the ~ndividua1 whose name issubscribed to the within instrument and acknowledged to me that he executed the same in hiscapacity, and that by his signature on the instrument, the individual, or the person upon behalf ofwhich the individual acted, executed The instrument.

Notary Public

STATE OF FLORIDA )

COUNTY OF PALM BEACH)

The foregoing instrument was acknowledged before rue this day of September,2010, by David A. Dean, authorized signatory of Square Mile/Ram Acquisition LLC. He is_X personally known to me or _____ has produced a Florida driver’s license as identification

Notary Seal: __________________________Serial No., if any:

STATE OF FLORIDA


The foregoing instrument was acknowledged before me this6~t)day of September,2010, by Karen D. Geller, authorized signatory of Square Mile/Ram Acquisition LLC. She is_X_ personally known to me or _____ has produced a Florid ver’s license as identification

_______ Ct _______

Print Name: DNotary Seal: ________________________

__________________________ Serial No., if any:

)) SS.:

A t.~ MVcciSSIOM00855a4a IIfl—IJ&~W EXPIAES:FebnJarv2O,2013 I

Gonded INu IWzqPub~oUn4er~W~J

ThUS_US~NOTAC~RTUEU~D COPY

STATE OF NEW YORK )) 55.:

COUNTY OF NEW YORK)

On the 2~raay of September in the year 2010, before me, the undersigned, anotary public in and for said State, personally appeared Joseph D’Angelo, personally known tome or proved to me on the basis of satisfactory evidence to be the individual whose name issubscribed to the within instrument and acknowledged to me that he executed the same in hiscapacity, and that by his signature on the instrument, the individual, or $he person upon behalf ofwhich the individual acted, executed the instrument.

Notary Public

MARY CAIJENDONotaty Public, State of New York

STATE OF FLORIDA ) No. 4951918Qualified In Nassau County) 55.. Commission Expires June 5,2011


The foregoing instrument was acknowledged before me this — day of September,2010, by David A. Dean, authorized signatory of Square Mile/Ram Acquisition LLC. He is_X_ personally known to me or _____ has produced a Florida driver’s license as identification

Print Name: ______________________

Notary Seal; _________________________

Serial No., If any: ___________________

STATE OF FLORIDA )) 55.:

COUNTY OF PALM BEACH )

The foregoing instrument was acknowledged before me this — day of September,2010, by Karen D. Geller, authorized signatory of Square Mile/Ram Acquisition LLC. She is_X_ personally known to me or _____ has produced a Florida driver’s license as identification

Print Name:Notary Seal:Serial No., if any:

Th~S_US NOT ACERTU~S COPY.

LEGAL DESCRIPTION

PARCEL 1:

ALL OF LOTS 1-4 OF BLOCK 1 OF BOUR-LANDS SUBDWISION, AS RECORDED INPLAT BOOK 14, PAGE 27 AND BEING IN SECTION 34 TOWNSHIP 28 SOUTH, RANGE18 EAST, HILLSBOROTJGH COUNTY, FLORIDA, LESS AND EXCEPT RIGHT-OF-WAYESTABLISHED BY ORDER OF TAKING RECORDED IN OFFICIAL RECORD BOOK3075, PAGE 1964 AND JUDGMENT RECORDED IN OFFICIAL RECORDS BOOK 3150,PAGE 1068, PUBLIC RECORDS OF H]LLSBOROUGH COUNTY, FLORIDA; AND LESSAND EXCEPT ADDITIONAL RIGHT-OF-WAY DESCRIBED AS FOLLOWS:

COMMENCE AT THE NORTHWEST CORNER OF BLOCK 1 OF SAD BOUR-LANDSSUBDIVISION (BEING A 13mm IRON ROD) THENCE S.00°92’44” W., ALONG THEWEST BOUNDARY OF SAID BLOCK 1, A DISTANCES OF 66.178 METERS (217.12FEET) TO THE NORTH RIGHT-OF-WAY LINE OF STATE ROAD 600 (W.HILLSBOROUGH AVENUE) (PER SECTION 1015-96A); THENCE S.89°40’43” B., ALONGSAID NORTH RIGHT-OF-WAY LINE, A DISTANCE OF 83.820 METERS (275.00 FEET)TO THE WEST BOUNDARY. OF SAID LOTS 1 - 4 OF BLOCK 1 AND THE POINT OFBEGINNING; THENCE N.00°16’15” E., ALONG SAW WEST BOUNDARY, A DISTANCEOF 20.602 METERS (67.59 EEET); THENCE S. 89°38’49” B., A DISTANCE OF 20.941METERS (68.70 FEET); THENCE N 68°27’56”E, A DISTANCE OF 7.335 METERS (24.06FEET) THENCE N. 40°19’24”E., A DISTANCE OF 5.908 METERS.Ø9.68 FEET). TO THENORTH BOUNDARY OF SAID LOT 4; THENCE 3.89°35’55”E., ALONG SAID NORTHBOUNDARY, A DISTANCE OF 1,322 METERS (4,34 FEET) TO THE WESTERLY RIGHT-OF-WAY LINE OF NORTH ARMENIA AVENUE AS ESTABLISHED BY ORDER OPTAXING RECORDED IN OFFICIAL RECORD BOOK 3075, PAGE 1964 AND JUDGMENTRECORDED IN OFFICIAL RECORD BOOK 3150, PAGE 1068, PUBLIC RECORDS OFHILLSBOROUGH COUNTY, FLORIDA; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY LINE, THE FOLLOWING TWO (2) COURSES: 1.) 5,0097’S?” W., A DISTANCE OF20,097 METERS (65.93 FEET); 2) THENCE S.45°41 ‘55” W., A DISTANCE OF 11.129METERS (3631 FEET) to SAIl) NORTH RIGHT-OF-WAY LINE OF STATE ROAD 600(W. HILLSBOROUGH AVENUE); THENCE N. 89°40’43”W., ALONG SAID NORTHRIGHT-OF-WAY LINE, A DISTANCE OF 24,994 METERS (82.00 FEET) TO THE POINTOF BEGINNING.

PARCEL .2:

LOTS 5, 6, 7, 8 AND 9, BLOCK 1 BOUR-LANDS SUBDIVISION, .ACCORDING TO THEMAP OR FLAT THEREOF AS RECORDED IN PLAT BOOK 14, PAGE 27, PUBLICRECORDS OF HILLSBOROUGH COUNTY, FLORIDA.

__ D __ D

THUS_US NOT APAR9~RTUFU~D OPYLOTS 1.0, 11,12 AND 13 AND LOTS 30 AND 31, BLOCK 1, BOUR-LANDS SUBDIVISION,ACCORDING TO THE MAP OR PLAT THEREOF AS RECORDED IN FLAT BOOK 14,PAGE 27, OF THE PUBLIC RECORDS OF HILLSBOROUGH COUNTY; FLORIDA, LESSSTATE ROAD MONT-OP-WAY AND LESS THAT PART OF LOTS 30 AND 31 FORROAD RIGHT-OP-WAY MORE PARTICULARLY DESCRIBED IN OFFICIAL RECORDSBOOK 9102, PAGE 244, SAID PUBLIC RECORDS.

PARCEL 4:

LOTS 14, 15 AND 16, BLOCK 1, BOUR-LANDS SUBDiVISION, ACCORDING TO, THEMAP OR PLAT’ THEREOF, RBCORDED IN PLAT BOOK 14, PAGE 27; PUBLIC RECORDSOF HILLSBOROUGH COUNTY, FLORIDA.

PARCELS:

LOTS 26,27,28 AND 29, AND THE EAST 20 FEET OF LOT 25, BLOCK 1, BOUR-LANDSSUBDIVISION, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK14 PAGE 27, OP THE PUBLIC RECORD’S OF HILLSBOROUGH COUNTY, FLORIDA,LESS ROAD RIGHT-OF-WAY.

LESS AND EXCEPT THE LEGAL DESCRiPTIONS LISTED. IN. ORDER OF TAXINGRECORDED IN BOOK 9123, PAGE 515; OR. BOOK 9123, PAGE 521, AND OR. BOOK9123, PAGE 527, PUBLiC RECORDS OF HILLSBOROUGH COUNTY, FLORIDA.

PARCEL 6:

LOT 28, 29, 30 AND 31 BLOCK 2, BOUR-LANDS SUBDIVISION, ACCORDING TO THEMAP OR PLAT THEREOF AS RECORDED IN PLAT BOOK 14, PAGE 27, PUBLICRECORDS OF HILLSBOROUGH COUNTY, FLORIDA. LESS TI-JR SOUTH 5 FEETTHEREOF AND LESS RIGHT-OF-WAY FOR MOHAWK AVENUE..

.1

William 1’. Keith

Rumberge.r...KIRK & CALDWELL 100 NorthTampaSLreet

- ,. Smta2000 (33602)

• ..;. t PostCflç~Box3390Tampa Flonda 336014390November 12,2010 ‘Phone 8132234253

•~ F~ •‘. 813.221.4752

- [email protected]

www.rumberger.com

VIA FACSIMILE & US. MAIL

David Charlip, Bsq.Charlip Law Group LC17501 Biscayne Blvd Ste 510Aventura, Florida 33 160-4806

RE: Loan No. 418000013 (formerly numbered M010032796) (“Loan”) made to M BPLaza, LLC (“Borrower”), evidenced by a note in the original principal amount of$3,200,000.00 dated September 12, 2006 (“Note”) now held by. Wells FargoBank, National Association (“Lender”), formerly held by Square . Mile/RAMAcquisition LLC, and àeöiiféd-’ ‘b~ ~ Mortgage, Security Agreement andAssignment of Leases and Rents (“Mortgage”) of property known Shoppes atAnnenia, located at 2507 West Hillsborough Avenue, Tampa; l~1oTida~:336 14, andcertain other documents (collectively, “Loan Documents”) .-‘.

Case Name; Square Mile/IL4ivlAcquisition LLC v. MB Plaza LLC and VintageBuilders, LLC

Case No: 10-010219OurFileNo.: 114116

Dear Mr. Charlip:

As you know, my firm represents the Lender in connection with its enforcement of theNote, Mortgage, and other Loan Documents. The Loan was recently assigned from SquareMile/RAM Acquisition LLC to Wells Fargo Bank National Association, and we will be movingto substitute the party plaintiff in the near future.

There have been no loan payments, partial or full, made by Borrower since March, 2010,despite the fact that rents have been generated from the property. Pursuant to the Indemnity andGuaranty Agreement (“Guaranty”) signed as of September 12, 2006, by Messrs. Bouskila andMazine (“Guarantor?’), Guarantors are personally liable to Lender for commission of any“Carve-Out Acts” as described in Paragraph 1 of the Guaranty Agreement. Specifically relevanthere, Guarantors are liable for any “rents, issues, profits and revenues” received from theProperty after an event of default “which are not either applied to the ordinary and necessaryexpenses of owning and operating the Property or paid to Lender.” Guaranty, ¶ 1 (a)(5).

I PLAINTIFF’S• EXHIBIT

9ORLANDO • MIAMI • T _______- GHAM

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November 12,2010Page 2

While no notice is required under the Guaranty, Lender hereby demands payment of thesums described in ¶ 1(a)(5) of the Guaranty. All payments can be delivered to:

Mailing Instructions: Wire Instructions:Regular Mail Wachovia SecuritiesU.S. Postal Address Charlotte, NCWachovia Wholesale Lockbox For further credit a/e #50775-94-01-1216P.O. Box 60253 Attn: Income Property DivisionCharlotte, NC 28260-0253 ABA 4(153000219

Overnight Courier AddressWachovia Wholesale Lockbox #602531525 West W.T. Harris Blvd.Charlotte, NC 28262

When making payment, please reference the following information:Mortgagor’s Name: M B Plaza, LLCMortgagor’s Loan No. 418000013

In addition, under Section 1.13 of the Mortgage, Borrower is required to provide toLender, among other things, quarterly operating statements and current rent rolls for the Propertyat the end of each March, June, September, and December. Mortgage § 1.13(b) and Ce). Lenderis also entitled to annual balance sheets for the Property and annual financial statements forBorrower, each principal or general partner in Borrower, and each guarantor under the GuarantyAgreement within 90 days after the end of the calendar year. Mortgage § 1.13(d). The last ofBorrower’s financial statements received by Lender was from April, 2010, and the annualbalance sheet and financial statements for the 2009 calendar year referenced in Section 1.13(d)of the Mortgage are still due and owing.

As specified in the Guaranty Agreement, Guarantors incur personal liability for failing todeliver the “financial statements, reports or records” required by the Loan Documents.Guaranty, ¶ l(a)(10). Lender has demanded and hereby demands Borrower provide Lenderoperating statements and rent rolls on a monthly basis effective immediately, see Mortgage§ 1.13(e), and demands Borrower and Guarantors to provide the required financialdocumentation detailed above. Financial statements and other documents may continue to bedelivered to Ram Realty Services, 4801 PGA Boulevard, Paint Beach Gardens, Florida 33418,Attn: Mr. Hugo Pacanins.

Should Borrower continue its non-compliance with its requirement to (1) use all rents toeither pay the ordinary and necessary expenses of owning and operating the Property or pay toLender, and (2) provide financial statements, reports and records to Lender as required by theLoan Documents, Lender intends to pursue a separate cause of action against Guarantors in their

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November 12,2010Page 3

individual capacities for payment of the sums due. This letter should not be in any wayconstrued as a waiver of Lender’s right to pursue as part of a breach of guaranty claim any rentsretained by Guarantors by virtue of Carve-Out Acts before this point, or waiver of any other ofLender’s rights under the Guaranty and other Loan Documents.

ZrelY.

William P. Keith

Enclosure

cc: Mr. Daniel Kasell, Esq., Square Mile Capital Management LLC (via email only)Mr. Hugo Pacanins, Ram Realty Services (via email only)Sally Culley, Esq.

3741994

Aventura Bayview17501 Biscayne Blvd. Suite 510

Aventura, FL 33160* Admitted in Florida and New Jersey Tel: 305.354.9313

Fax: 305.354.9314VIA FACSJMILEAND U.S. MAIL

November15, 2010

Sally Rogers Cully, Esq. andWilliam P. Keith, Esq.Rumberger, Kirk & Caidwell,100 N. Tampa Street,Suite 2000,Post Office Box 3390,Tampa, Fl 33601-3390

Re: Square Mile/Ram Acquisition LLC, v. MB Plaza, LLCIlilisborough County Case No.: 10-010219Our File No.: 2089.000

Dear Mr. Keith:

I am in receipt of your correspondence dated November 12, 2010. As J understand it(hopeflully) this Ibreelosure started out with you representing CSMC 2006-C5 ARMENIARETAIL LLC, a Florida limited liability company, then the loan was supposedly sold toSquare Mile[Ram Acquisition LLC, a Delaware limited liability company, and now you arerepresenting that it has been sold again and it is being held by Wells Fargo Bank, NA, all thewhile however you have remained as counsel for these varying entities. As you know, my client,MB Plaza, LLC, through its representative Eric Bouskila has had extensive negotiations andother discussions with a variety of individuals each claiming to have valid title to the note andmortgage. Mr. Bouskila has consistently been raising issues with the Servicer and SpecialServicer concerning what entity has the proper standing with respect to this loan, whichquestions have never to this date been properly addressed. These issues apply equally to yourclients standing and until these issues are resolved, my client has no choice but to take theposition that any further compliance on its part with the mortgage terms be suspended.

David H. Cliarlip, Esquire*dchar1ip~eharliy1awgroup.com

www.charliplawgroup.com

cc: MB Plaza, LLC

No client too smalJ no case too large!

2010.11.29 Filing Pkt MBPlaza v Wells Fargo Comp, Cover Sheet Summons Exhibits

Documents

Transcript of 2010.11.29 Filing Pkt MBPlaza v Wells Fargo Comp, Cover Sheet Summons Exhibits