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06/30/2005 Agreement Dock 1527170 07/07/2005 9:20RM Filed I. RecordeMONROE COUNTY DANNYinrcial L. KOLNRGE of B7/07/2005 9:20AM This Instrument Prepared By: MORTGAGE D0c0STAMP' CL: nu $22,750'.00 Malcolm J. Pitchford, Esquire Abel, Band,Russell, Collier, Pitchford&Gordon,Chartered DoeK 1527170 P.O. Box 49948 UP 2130 P20 1330 Sarasota, FL 34230-6948 MORTGAGE AND SECURITY AGREEMENT This Mortgage is made this 30 Zday of June, 2005, by and between Overseas Redevelopment Company, LLC, a Florida limited liability company (individually, as "Borrower"), Overseas Redevelopment Company, LLC, a Florida limited liability company and IR1SH-KW LLC, a Florida limited liability company (jointly, "Mortgagor"), and Branch Banking and Trust Company, a North Carolina banking corporation ("Mortgagee"), the address of which is 1010 Kennedy Drive, Key West, FL 33040. WITNESSETH: WHEREAS, Borrower is indebted to Mortgagee in the principal sum of$6,500,000.00 (the"Loan")together with interest thereon, as evidenced by that certain promissory note of even date herewith, executed by Borrower and delivered to Mortgagee (the "Note"), which by reference is made a part hereof to the same extent as though set out in full herein; NOW, THEREFORE to secure the performance by Borrower of all covenants and conditions in the Note and to secure the performance by Borrower and Mortgagor of all covenants and conditions in this Mortgage and in all other instruments securing the Note, and in order to charge the properties, interests and rights hereinafter described with such payment and performance and to secure additional advances, renewals, extensions and modifications thereof and for and in consideration of the sum of Ten and No/100 Dollars ($10.00), Mortgagor does hereby mortgage, sell, pledge and assign to Mortgagee and where applicable grant a security interest in: THE MORTGAGED PROPERTY (A) All of the land in the County of Monroe, State of Florida,described below: See attached Exhibit"A" to have and to hold the same, together with all the improvements now or hereafter erected on such property and all fixtures now or hereafter attached thereto, together with each and every tenements, hereditaments, easements, rights, powers, privileges, immunities and appurtenances 772116v.1 0eea 1527170 SKI 2130 PO 1331 thereunto belonging or in anywise appertaining and the reversion and reversions, remainder and remainders, and also all the estate, right, title, interest,homestead, right of dower,separate estate, property, possession and claim whatsoever in law as well as in equity of Mortgagor of, in and to the same in every part and parcel thereof unto Mortgagee in fee simple. (B) Together with a security interest in all personal property, excluding household goods which are not purchased with the proceeds of the Note, and fixtures affixed to or located on the property described in paragraph (A). (C) Together with all rents, leases, issues, profits,revenue, income proceeds and other benefits from the property described in paragraph (A) hereof to be applied to the indebtedness secured hereby, provided however, that permission is hereby given to Mortgagor so long as no default has occurred hereunder, to collect, receive, and use such benefits from the property as they become due and payable,but not in advance thereof. (D) All insurance policies and proceeds thereof and all condemnation proceeds, awards, damages, and claims relating to or derived from the property described in paragraphs (A), (B) and (C)hereof. (E) Everything referred to in paragraphs (A), (B), (C) and (D) hereof and any additional property hereafter acquired by Mortgagor and subject to the lien of this Mortgage or any part of these properties is herein referred to as the"Mortgaged Property." PROVIDED ALWAYS, that if Borrower shall pay to Mortgagee the Note at the times and in the manner stipulated therein and in all other instruments securing the Note, including renewals, extension or modification thereof, and in this Mortgage and in all other instruments securing the Note, to be kept, performed or observed by Borrower, then this Mortgage shall cease and be void, but shall otherwise remain in MI force and effect. Mortgagor covenants and agrees with Mortgagee as follows: 1. Compliance with Note and Mortgage; Warranty of Title. Borrower and Mortgagor shall comply with all provisions of this Mortgage and of every other instrument securing the Note, and will promptly pay to Mortgagee the principal with interest thereon and all other sums required to be paid by Borrower under the Note and pursuant to the provisions of this Mortgage and of every other instrument securing the Note. Mortgagor covenants that Mortgagor owns and is indefeasibly seized of the Mortgaged Property in fee simple, that the Mortgaged Property is free from all encumbrances except as noted in the legal description above, that Mortgagor has lawful authority to convey, mortgage and encumber the same as provided by the Mortgage, that Mortgagee may peaceably and quietly enjoy the Mortgaged Property, and that Mortgagor will defend the Mortgaged Property against the claims of all persons whomsoever, and that Mortgagor so warrants. 2 9i2116v.1 Doan 1527170 BIM 2130 Ppp 1332 2. Payment of Taxes and Liens. Borrower shall pay all the taxes, assessments, levies, liabilities, obligations and encumbrances of every nature now on the Mortgaged Property or that hereafter may be imposed, levied or assessed upon this Mortgage or the Mortgaged Property or upon the indebtedness secured hereby. All such payments to be made when due and payable according to law before they become delinquent and before any interest attaches or any penalty is incurred. Insofar as any indebtedness is of record the same shall be promptly satisfied and evidence of such satisfaction shall be given to Mortgagee. Mortgagee may at its option require Borrower to deposit with Mortgagee on the first day of each month, in addition to making payments of principal and interest, until the Note are fully paid, an amount equal to one- twelfth (1/12) of the annual taxes and assessments, including but not limited to condominium and homeowner association assessments, payable with respect to the Mortgaged Property. Such deposits shall not be nor be deemed to be, trust funds, but may be commingled with the general funds of Mortgagee, and no interest shall be payable in respect thereof. Upon demand by Mortgagee, Borrower shall deliver to Mortgagee such additional monies as are necessary to make up any deficiencies in the amounts necessary to enable Mortgagee to pay such taxes and assessments when due. In the event of default under any of the terms, covenants and conditions in the Note, this Mortgage or any other instrument securing the Note to be performed or observed by Borrower, Mortgagee may apply to the reduction of the sums secured hereby, in such manner as Mortgagee shall determine, any amount under this paragraph remaining to Borrower's credit. 3. Insurance. Mortgagor shall keep the Mortgaged Property and the improvements now existing or hereafter erected on the Mortgaged Property insured as may be required from time to time by Mortgagee against loss by fire, other hazards and contingencies (including flood hazards and related occurrences in the event any portion of the Mortgaged Property is located in a flood hazard area as may be identified from time to time) in such amounts and for such periods as may be required by Mortgagee. Borrower shall pay promptly, when due, any premiums on such insurance. All insurance shall be carried with companies approved by Mortgagee and the policy and renewals thereof shall be held by Mortgagee and have attached thereto loss payable clauses in favor and in form acceptable to Mortgagee. In the event of loss, Borrower shall give immediate notice by mail to Mortgagee and Mortgagee may make proof of loss if not made promptly by Borrower. Each insurance company concerned is hereby authorized and directed to make payments for such loss directly to Mortgagee instead of either to Mortgagor or Mortgagor and Mortgagee jointly. Insurance proceeds or any part thereof may be applied by Mortgagee at its option, after deducting therefrom all its expenses including attomey's fees, either to the reduction of the indebtedness hereby secured or to the restoration or repair of the property damaged. Mortgagee is hereby authorized, at its option, to settle and compromise any claims, awards, damages, rights of action and proceeds, and any other payment or relief under any insurance policy. In the event of foreclosure of this Mortgage or other transfer of title to the Mortgaged Property in extinguishment of the indebtedness secured hereby, all right, title, and interest of Mortgagor in and to any insurance policies then in force shall pass to the purchaser or grantee. Mortgagee may at its option require Borrower to deposit with Mortgagee on the first day of each month, in addition to making payments of principal and interest, until the Note are fully paid, an amount equal to one-twelfth(1/12)of the yearly premiums for all insurance. Such 3 72116v.1 Doe a 1527170 Bkil 2130 Pap 1333 deposits shall not be, nor be deemed to be, trust funds, but may be commingled with the general funds of Mortgagee, and no interest shall be payable in respect thereof. Upon demand by Mortgagee, Borrower shall deliver to Mortgagee such additional monies as are necessary to make up any deficiencies in the amounts necessary to enable Mortgagee to pay such premiums when due. In the event of default under any of the terms, covenants and conditions in the Note, this Mortgage or any other instrument securing the Note to be performed or observed by Borrower, Mortgagee may apply to the reduction of the sums secured hereby, in such manner as Mortgagee shall determine, any amount under this paragraph remaining to Borrower's credit and any return premium received from cancellation of any insurance policy by Mortgagee upon foreclosure of this Mortgage. 4. Condemnation. If the Mortgaged Property or any part thereof shall be damaged or taken through condemnation (which term when used herein shall include any damage or taking by any governmental authority or any other authority authorized by the laws of the State of Florida or the United States of America to so damage or take and any transfer by private sale in lieu thereof), either temporarily or permanently, the entire indebtedness and other sums secured hereby shall, at the option of Mortgagee, become immediately due and payable. Mortgagee shall be entitled to all compensations, awards, damages, claims, rights of action and proceeds of, or on account of any damage or taking through condemnation and is hereby authorized, at its option, to commence, appear in and prosecute, in its own or Mortgagor's name, any action or proceeding relating to any condemnation, and to settle or compromise any claim in connection therewith. All such compensations, awards, damages, claims, rights of action and proceeds, and any other payments or relief, and the right thereto, are hereby assigned by Mortgagor to Mortgagee and Mortgagee after deducting therefrom all its expenses including attomey's fees may release any monies so received by it without affecting the lien of this Mortgage or may apply the same in such manner as Mortgagee shall determine, to the reduction of the sums secured hereby and to any prepayment charge provided in the Note, this Mortgage or any other instrument securing the Note. Any balance of such monies then remaining shall be paid to Mortgagor. Mortgagor agrees to execute such further assignments of any compensations, awards, damages,claims,rights of action and proceeds as Mortgagee may require. 5. Care of Mortgaged Property. Mortgagor shall not remove or demolish any building or other property forming a part of the Mortgaged Property without the written consent of Mortgagee. Mortgagor shall not permit, commit, or suffer any waste, impairment or deterioration of the Mortgaged Property or any part thereof, and shall keep the same and improvements thereon in good condition and repair. Mortgagor shall notify Mortgagee in writing within five (5) days of any injury, damage, or impairment of or occurring on the • Mortgaged Property. Mortgagee may, at Mortgagee's discretion, have the Mortgaged Property inspected at any time and Borrower shall pay all costs incurred by Mortgagee in executing such inspection. 6. Mortgagee's Right to Make Certain Payments. In the event Borrower fails to pay or discharge the taxes, assessments, levies, liabilities, obligations and encumbrances, or fails to keep the Mortgaged Property insured or to deliver the policies, premiums paid, or fails to 4 772116v.1 Doep 1527170 WIN 2130 PgN 1339 repair the Mortgaged Property as herein agreed, Mortgagor agrees that Mortgagee may at its option pay or discharge the taxes, assessments, levies, liabilities, obligations and encumbrances or any part thereof, to produce and pay for such insurance or to make and pay for such repairs. Mortgagee shall have no obligation on its part to determine the validity or necessity of any payment thereof and any such payment shall not waive or affect any option, lien equity or right of Mortgagee under or by virtue of this Mortgage. The full amount of each and every such payment shall be immediately due and payable and shall bear interest from the date thereof until paid at the Default Rate, as hereinafter defined, and together with such interest, shall be secured by the lien of this Mortgage. Nothing herein contained shall be construed as requiring Mortgagee to advance or expend monies for any of the purposes mentioned in this paragraph. 7. Payment of Expenses. Borrower shall pay all the costs, charges and expenses, including reasonable attomey's fees whether incurred at trial or appellate level, disbursements and cost of abstracts of title, incurred or paid at any time by Mortgagee due to the failure on the part of Borrower or Mortgagor promptly and fully to perform, comply with and abide by each and every stipulation, agreement, condition and covenant of the Note and this Mortgage, Such costs, charges and expenses, shall be immediately due and payable, whether or not there be notice, demand, attempt to collect or suit pending. The full amount of each and every such payment shall bear interest from the date thereof until paid at the Default Rate, as hereinafter defined. All such costs, charges and expenses so incurred or paid together with such interest, shall be secured by the lien of this Mortgage and any other instrument securing the Note. -----8-.- After Acquired Property. The lien of this Mortgage will automatically attach, without further act, to all after acquired property of whatever kind located in or on, or attached to, or used or intended to be used in connection with or in the operation of the Mortgaged Property. 9. Additional Documents. At all times this Mortgage is in effect, upon Mortgagee's request, Mortgagor shall make, execute and deliver or cause to be made, executed and delivered to Mortgagee and, where appropriate, shall cause to be recorded or filed and thereafter to be re-recorded or refried at such time and in such places as shall be deemed desirable by Mortgagee any and all such further mortgages, instruments of further assurance, certificates and other documents as Mortgagee may consider necessary or desirable in order to effectuate, complete, perfect, or to continue and preserve the obligations of Borrower under the Note and this Mortgage and all other instruments securing the Note, and the lien of this Mortgage as first and prior lien upon all the Mortgaged Property. Upon any failure by Mortgagor to do so, Mortgagee may make, execute, record, file, re-record, or refile any and all such mortgages, instruments, certificates and documents for and in the name of Mortgagor. Mortgagor hereby irrevocably appoints Mortgagee agent and attorney-in-fact of Mortgagor to do all things necessary to effectuate or assure compliance with this paragraph. 10. Event of Default. Any one of the following shall constitute an event of default: 5 772116v.1 Beea 1527170 BkN 2130 NO 1335 (a) Failure by Borrower to pay, as and when due and payable, any installments of principal or interest due under the Note, or any deposits for taxes and assessments or insurance premiums due hereunder, or any other sums to be paid by Borrower hereunder or under any other instrument securing the Note. (b) Failure by Borrower or Mortgagor, as the case may be, to duly keep, perform and observe any other covenant, condition or agreement in the Note, this Mortgage, any other instrument securing the Note or any other instrument collateral to the Note or executed in connection with the sums secured hereby for a period of ten (10) days after Mortgagee gives written notice specifying the breach. (c) If Borrower or any guarantor or endorser of the Note: (i) files a voluntary petition in bankruptcy, (ii) is adjudicated bankrupt or insolvent; or (iii) files any petition or answer seeking or acquiescing in any reorganization, management, composition, readjustment, liquidation, dissolution or similar relief for itself under any law relating to bankruptcy, insolvency or other relief for debtors, or (iv) seeks or consents to or acquiesces in the appointment of any trustee, receiver, master or liquidator of itself or of all or any substantial part of the Mortgaged Property or of any or all of the rents, revenues, issues, earnings, profits or income thereof, or (v) makes any general assignment for the benefit of creditors, or (vi) makes any admission in writing of its inability to pay its debts generally as they become due; or(vii) a court of competent jurisdiction enters an order, judgment or decree approving a petition filed against Borrower or any guarantor or endorser of the Note, seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future federal, state, or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, which order, judgment or decree remains unvacated and unstayed for an aggregate of sixty (60) days whether or not consecutive from the date of entry thereof, or (viii) any trustee, receiver or liquidator of Borrower of all or any substantial part of the Mortgaged Property or of any or all of the rents, revenues, issues, earnings,profits or income thereof, is appointed without the prior written consent of Mortgagee, which appointment shall remain unvacated and unstayed for an aggregate of sixty(60)days whether or not consecutive. (d) Any breach of any warranty or material untruth of any representation of Borrower or Mortgagor, as the case may be, contained in the Note, this Mortgage or any other instrument securing the Nate. (e) The occurrence of any default under the terms of any mortgage or other security instrument which creates a lien or other security interest on or in the Mortgaged Property. 11. Acceleration. If an event of default shall have occurred, Mortgagee may declare the outstanding principal amount of the Note and the interest accrued thereon, and all other sums secured hereby, to be due and payable immediately. Upon such declaration such principal and interest and other sums shall immediately be due and payable without demand or notice. 6 • 772116v.I Dona 1527170 Bkp 2130 Pop 1335 12. Remedies after Default. Upon an event of default, Mortgagee may proceed by suit or suits at law or in equity or by any other appropriate proceeding or remedy to: (a) enforce payment of the Note or the performance of any term hereof or any other right; (b) foreclose this Mortgage and to sell, as an entirety or in separate lots or parcels, the Mortgaged Property under the judgment or decree of a court or courts of competent jurisdiction; (c) collect all rents, issues, profits, revenue, income and other benefits from the Mortgaged Property; (d) appoint a receiver to enter upon and take possession of the Mortgaged Property and to collect all rents, issues, profits, revenue, income, and other benefits thereof and apply the same as a court may direct and such receiver shall have all rights and powers permitted under law; and (e) pursue any other remedy available to it including, but not limited to taking possession of the Mortgaged Property without notice or hearing to Mortgagor. Mortgagee shall take action either by such proceedings or by the exercise of its power with respect to entry or taking possession, or both, as Mortgagee may determine. 13. No Waiver. No delay or omission of Mortgagee or of any holder of the Note to exercise any right, power or remedy accruing upon any event of default shall exhaust or impair any such right, power or remedy or shall be construed to waive any event of default or to constitute acquiescence therein. 14. Non-Exclusive Remedies. No right, power or remedy conferred upon or reserved to Mortgagee by the Note, this Mortgage or any other instrument securing the Note is exclusive of any other right, power or remedy,but each and every such right,power and remedy shalt be cumulative and concurrent and shall be in addition to any other right,power and remedy given hereunder or under the Note or any other instrument securing the Note, now or hereafter existing at law,in equity or by statute. 15. Successors and Assigns Bound. Whenever one of the parties hereto is named or referred to herein, the heirs, successors and assigns of such party shall be included and all covenants and agreements contained in this Mortgage, by or on behalf of Mortgagor or Mortgagee, shall bind and inure to the benefits of their respective heirs, successors and assigns, whether or not so expressed. 16. Miscellaneous. In the event that any of the covenants, agreements, terms or provisions contained in the Note, this Mortgage or any other instrument securing the Note shall be invalid, illegal or unenforceable in any respect, the validity of the remaining covenants, agreements, terms or provisions contained herein and in the Note and any other instrument securing the Note shall be in no way affected, prejudiced or disturbed thereby. 17. Attorney's Fees. The term "attomey's fees" as used in this Mortgage includes any and all legal fees of whatever nature including,but not limited to, attorneys' fees,paralegals' fees, legal assistants' fees and fees resulting from any appeal of any interlocutory order or final judgment or any other appellate proceeding arising out of any litigation. 7 rR I16v.I Deal 1527170 Ban 2130 Pap 1337 18. Future Advances. This Mortgage is given to secure not only existing indebtedness, but also such future advances, whether such advances are obligatory or are to be made at the option of Mortgagee, or otherwise, as are made within twenty years from the date hereof, to the same extent as if such future advances were made on the date of the execution of this Mortgage. The total amount of indebtedness that may be so secured may decrease or increase from time to time, but the total unpaid balance so secured at one time shall not exceed twice the face amount of the Note, plus interest thereon, and any disbursements made for the payment of taxes, levies or insurance on the Mortgaged Property, with interest on such disbursements at the Default Rate as hereafter defined. 19. Obligation of Mortgagor. Borrower shall pay the cost of releasing or satisfying this Mortgage of record. 20. No Transfer. Mortgagor covenants and agrees not to sell, convey,transfer,lease or further encumber any interest in or any part of the Mortgaged Property without the prior written consent of Mortgagee, and any such sale, conveyance, transfer, lease or encumbrance made without Mortgagee's prior written consent shall be void. If any person should obtain an interest in all or any part of the Mortgaged Property pursuant to the execution or enforcement of any lien, security interest or other right, whether superior, equal or subordinate to this Mortgage or the lien hereof, such event shall be deemed to be a transfer by Mortgagor and an event of default hereunder. ----- 21. Default Rate. The Default Rate shall be the highest rate permitted by applicable law. 22. Changes to Mortgage. No modifications to this Mortgage or to any other loan document executed in connection herewith shall be valid or effective unless the same is in writing and signed by Mortgagor and Mortgagee. 23. Hazardous Waste. Mortgagor warrants and represents to Mortgagee after thorough investigation: (a) That neither Mortgagor nor any other person to Mortgagor's knowledge, after reasonable inquiry, has ever used the Mortgaged Property as a facility for the storage, treatment or disposal of any"Hazardous Substances,"as that term is hereinafter defined. (b) That the Mortgaged Property is now and at all times hereafter wilt continue to be in full compliance with all Federal, state and local "Environmental Laws" (as that term is defined hereinafter), including but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §9601, et seq., the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Public Law 99-499, 100 Stat. 1613, the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §6901, et seq, the Florida Resource Recovery and Management Act, Section 403.701, et sea., Florida Statutes, the Pollutant Spill Prevention and Control Act, Sections 376.011-376.17 and 376.19-376.21, 8 772116v.I Deep 1527170 Bko 2130 PO 1338 Florida Statutes, as the same may be amended from time to time and all ordinances, regulations, codes, plans, orders, and decrees now existing or in the future enacted, promulgated, adopted, entered or issued,both within and outside present contemplation of Mortgagor and Mortgagee. (c) That (i) as of the date hereof there are no hazardous or toxic materials, substances, wastes or other environmentally regulated substances (including solids or gaseous products and any materials containing asbestos), the presence of which is limited, regulated or prohibited by any state, federal or local governmental authority or agency having jurisdiction over the Mortgaged Property, or which are otherwise known to pose a hazard to health or safety of occupants of the Mortgaged Property, located on, in or under the Mortgaged Property or used in connection therewith, or (ii) Mortgagor has fully disclosed to Mortgagee in writing the existence, extent and nature of any such hazardous or toxic material waste or other environmentally regulated substance, which Mortgagor is legally authorized and empowered to maintain on, in or under the Mortgaged Property or use in connection therewith, and Mortgagor has obtained and will maintain all licenses, permits and approvals required with respect thereto, and is in full compliance with all of the terms, conditions and requirements of such licenses, permits and approvals. (d) That Mortgagor shall notify Mortgagee of any change in the nature or extent of any hazardous or toxic materials, substances or wastes maintained on, in or under the Mortgaged Property or used in connection therewith, and will transmit to Mortgagee copies of any governmental or non-governmental communication, citations, orders, or notices received with respect to any other hazardous materials, substances, wastes or other environmentally regulated substances affecting the Mortgaged Property. (e) That Mortgagor is not aware of, nor has the Mortgagor nor any of its subsidiary or affiliated entities received notice of, any past, present or future events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent compliance or continued compliance with Environmental Laws or any ordinance, regulation, code, plan, order, decree, judgment, injunction, notice or demand letter issued, entered, promulgated or approved thereunder, or which may give rise to any common law or legal liability, or otherwise form the basis of any claim, action, demand, suit, proceeding, hearing, study or investigation, based on or related to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling, or the emission, discharge, release or threatened release into the environment,of any Hazardous Substance. (I) That there is no civil, criminal or administrative action, suit, demand, claim,hearing, notice or demand letter, notice of violation, investigation, or proceeding pending or threatened against Mortgagor or the Mortgaged Property, relating in any way to any Environmental Laws or any regulation, code, plan, order, decree,judgment, injunction, notice or demand letter issued,entered, promulgated or approved thereunder. (g) Mortgagor hereby agrees to indemnify, reimburse, defend and hold harmless Mortgagee, its officers, directors, employees, successors and assigns from and against 9 7721t6v.1 Doan 1527170 Bkn 2130 PO 1339 all demands, claims, civil or criminal actions or causes of action, liens, assessments, civil or criminal penalties or fines, losses, damages, liabilities, obligations, costs, disbursements, expenses or fees of any kind or of any nature (including, without limitation, cleanup costs, attorneys', consultants' or experts' fees and disbursements and costs of litigation at trial and appellate levels) which may at any time be imposed upon, incurred by or asserted or awarded against,Mortgagee directly or indirectly, resulting from: (i) any acts or activities of Mortgagor, its agents, employees or contractors, at, on or about the Mortgaged Property which contaminate air, soils, surface waters or groundwaters over, on or under the Mortgaged Property; (ii) arising from or out of any Hazardous Substance on, in or under the Mortgaged Property; (iii)pursuant to or in connection with the application of any Environmental Law to the acts or omissions of Mortgagor or any other person and any environmental damage alleged to have been caused, in whole or in part, by the transportation, treatment, storage, or disposal of any Hazardous Substance or (iv) arising from or in relation to the presence, whether past, present or future, of any Hazardous Substances on the Mortgaged Property. Without limiting the foregoing, this indemnification provision specifically protects Mortgagee against any claim or action from activities described in (i), (ii), (iii) or (iv) above, based in whole or in part upon any environmental statute,rule,regulation or policy,including but not limited to Chapters 403 and 376, Florida Statutes, the Florida Administrative Code, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, ("CERCLA") 42 U.S.C. §960I, et seq„ as amended, the Resource Conservation and Recovery Act,42 U.S.C. §6901, et seq., and other laws,whether now in existence or enacted in the future. Mortgagor's indemnification obligation hereunder shall be one of strict liability and shall be enforceable without regard to any fault or knowledge of Mortgagee with respect to any act or omission or condition or event which is the basis of the claim under such indemnification obligation. Mortgagor's obligation under this section shall not be limited to any extent by the term of the Note or other obligations secured hereby, and such obligation shall continue, survive and remain in full force and effect notwithstanding payment in full or other satisfaction or release of said Note (and other obligations secured hereby) and this Mortgage, or any foreclosure under this Mortgage, or any delivery of a deed in lieu of foreclosure. The provisions of this Section shall be deemed to survive and continue in full force and effect after any foreclosure or other proceeding by which the Mortgagee, and its successors and assigns succeed to ownership of the Mortgaged Property. As used herein, "Environmental Law" means any federal, state, or local statutory or common law relating to pollution or protection of the environment, including without limitation, any-common law of nuisance or trespass, and any law or regulation relating to emissions, discharges, releases or threatened releases of Hazardous Substances into the environment (including without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Substances. 10 • 772II6v.l DocII 1527170 Skit 2130 PO 1340 As used herein, "Hazardous Substance" means any substance or material (i) identified in Section 101(14) of CERCLA, 42 U.S.C. §960104), as the same may be amended from time to time, or (ii) determined to be toxic, a pollutant or contaminant, under federal, state or local statute, law, ordinance, rule or regulation or judicial or administrative order or decision, as same may be amended from time to time, including but not limited to petroleum and petroleum products as defined in Section 376.301(10), Florida Statutes,as same may be amended from time to time. (a) Mortgagee shall have the right, in its sole discretion, to require Borrower to periodically (but not more frequently than annually unless an Environmental Complaint is then outstanding) perform (at Mortgagor's expense) an environmental audit and, if deemed necessary by Mortgagee, an environmental risk assessment, each of which must be satisfactory to Mortgagee in its sole discretion, of the Mortgaged Property, hazardous waste management practices andlor hazardous waste disposal sites used by Mortgagor. Such audit and/or risk assessment must be by an environmental consultant satisfactory to Mortgagee. Should Borrower fail to perform such environmental audit or risk assessment within thirty (30) days of the Mortgagee's written request, Mortgagee shall have the right but not the obligation to retain an environmental consultant to perform such environmental audit or risk assessment. All costs and expenses incurred by Mortgagee in the exercise of such rights shall bear interest at the default rate set forth in the Note and shall be secured by this Mortgage and shall be payable by Borrower upon demand or charged to Borrower's loan balance at the discretion of Mortgagee. (b) Any breach of any warranty, representation or agreement contained in this Section shall be an Event of Default hereunder and shall entitle Mortgagee to exercise any and all remedies provided in this Mortgage,or otherwise permitted by law. 24. Documentary Stamp Tax/Intangible Tax. Borrower, its personal representatives, successors and assigns, indemnify and agree to defend and hold Mortgagee harmless against Florida documentary stamp and intangible taxes, if any, imposed upon Mortgagee by virtue of its execution and acceptance of this document or its ownership of the Note, and as from time to time further modified and restated, including any penalties, interest, and attorneys' fees incurred by Mortgagee in connection therewith, and all such charges shall be secured by the lien of the Mortgage, and as from time to time amended, and bear interest at the default rate provided in the Note from the date of advance by Mortgagee until paid by Borrower. The provisions of this paragraph shall survive the repayment of the Note and the indebtedness evidenced thereby, and satisfaction of the Mortgage, and shall continue for so long as a claim may be asserted by the State of Florida or any of its agencies. 25. Partial Releases. Provided that Borrower and/or Mortgagor are not in default of any of their obligations under the loan documents and upon the sale of a residential lot, the Mortgagee shall release such lot from the lien of this Mortgage upon the payment to Mortgagee of a release price in an amount equal to one hundred percent(100%)of the prorated loan amount, adjusted to reflect the individual lot values. Notwithstanding the foregoing, the price to be paid in consideration for the release of each lot shall be not less than as set forth in a release schedule 11 • 772I16vI Doea 1527170 Bka 2130 Pap 1341 which shall be prepared by Borrower and approved by Mortgagee. The amounts receive by Mortgagee pursuant to this section shall be applied to reduce the principal balance of the loan. 26. Additional Paragraphs. In the event Mortgagor, Borrower and Mortgagee agree to further covenants in this Mortgage requiring any additional paragraph or paragraphs, such paragraph or paragraphs shall be attached to this Mortgage under the heading of"Rider" and shall be part of this Mortgage as if set out in full herein. IN WITNESS WHEREOF, this instrument has been executed on the date first above written. WITNESSES: BORROWER/MORTGAGOR: Overseas Redevelopment Company, LLC, a Florida limited liability company By: H-Try, LLC, a Florida limited liability co comp y, as its Manager C ame Scot G. Oropeza,as Managing Member Print : 2'SZ'7L?f'//"t/0v` Address: 3158 Northside Drive Key West. FL 33040 MORTGAGOR: an ,a l da limited liability com compan jfr - By: � q»i Geo a P. Irish, its sole Managing Member rr�r _ ess: 32? 4441 Print lame: t.rz ea"' t $r M 1D fC 12 • 772116v.1 - 0.01 1527170 5101 2130 P9 1342 STATE OF FLORIDA COUNTY OF /Llo401+a- The foregoing instrument was acknowledged before me this day of June, 2005, by Scott G. Oropeza, as the Managing Member of H-Try, LW, a Florida limited liability company, as the Manager of Overseas Redevelopment Company, LLC, a Florida limited liability company, on behalf of the companies. „,,,,, ,,,, John Mantel, 'A .S MS COMMISSION# D2245d/ MIRES 4 August 25,2007 N Public +Y,p,, , .aworom.urrorrun ww.aa�.wc Print Name: My Commission Expires: Personally Known (OR)Produced Identification Type of ident tion produced STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this -day of June, 2005, by George P. Irish, as the sole Managing Member of IRISH-KW LLC, a Florida limited liability company, on behalf of the company. .. John Monson ' `- MY COMMISSION[ DD211k7 SV1AES public -I d Augusl]5,2007 MOOED MILUTRO 4w MwV.Xa INC P nt Name: My Commission Expires: P. . . _(OR) Produced Identification _ aT ••- . . : 2fication produced (MJ P/dh-13970-53'MTG.I) 13 772116v.I D.fl 1527170 Aka 2130 Pss 1343 On the Island known as Stock island and Being Block 38, containing 20 lots, according to GEORGE L. MCDONALD'S Plat of a part of Stock Island recorded in Plat Book 1, Page 55, Monroe County, Florida records. ALSO That portion of First Avenue lying and being between Block 38 and 39, GEORGE L. McDONALD'S Plat of a part of Stock Island recorded in disclaimed by Resolution No. 33-1973, Board of County Commissioners, recorded in official Records Book 537, page 937, of the Public Records of Monroe County, Florida. jONROE COUNTY OFFICIAL RECORDS