Exhibit 10.33


 


	
   

  	
  Borrower Name: MB Margate Lakewood I, L.L.C.

  
	
   

  	
  Project: Lakewood Mall, Margate, Florida

  
	
   

  	
  Loan No.: 00-1100240

  



 


THIS NOTE IS A RENEWAL NOTE, AMENDING, RESTATING
AND RENEWING THAT CERTAIN NOTE EXECUTED
BY LAKEWOOD ASSOCIATES, IN THE ORIGINAL PRINCIPAL AMOUNT OF TWELVE MILLION ONE HUNDRED THOUSAND AND
NO/100 DOLLARS ($12,100,000.00) TO AND IN FAVOR OF NATIONWIDE LIFE INSURANCE
COMPANY, AN OHIO CORPORATION AND DATED
MARCH 2, 2004 (THE “ORIGINAL NOTE”).


 


THE OUTSTANDING PRINCIPAL BALANCE OF
THE ORIGINAL NOTE IN THE AMOUNT OF ELEVEN MILLION SEVEN HUNDRED FOURTEEN THOUSAND NINE HUNDRED SIXTY-THREE AND 33/100 DOLLARS ($11,714,963.33) IS EXEMPT FROM
FLORIDA INTANGIBLE TAXES PURSUANT
TO FLORIDA STATUTES SECTION
199.143. THE ORIGINAL OF THE AFORESAID NOTE IS ATTACHED HERETO. DOCUMENTARY
STAMP TAX ON SAID OUTSTANDING AMOUNT IN THE SUM OF FORTY-ONE
THOUSAND TWO AND 50/100 DOLLARS ($41,002.50) HAS BEEN PAID SIMULTANEOUSLY WITH THE RECORDING OF AN
ASSUMPTION AND RATIFICATION INSTRUMENT
EXECUTED IN CONNECTION WITH THIS
TRANSACTION.


 


RENEWAL NOTE


 


	
  $11,714,963.33

  	
   

  	
  Orlando, Florida

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  January         ,
  2006

  



 


FOR VALUE
RECEIVED, THE UNDERSIGNED, MB
MARGATE LAKEWOOD I, L.L.C., a Delaware limited liability company (“Borrower”) whose Federal
Tax Identification Number is 20-3686063 promises to pay to the order of NATIONWIDE LIFE INSURANCE COMPANY, an Ohio
corporation, its successors and assigns (“Lender”), the principal sum of


ELEVEN MILLION SEVEN HUNDRED FOURTEEN THOUSAND NINE
HUNDRED SIXTY-THREE AND 33/100 DOLLARS ($11,714,963.33), together with interest
on the principal balance of this Note (the “Note”), from time to time remaining
unpaid, from the date of disbursement by Lender at the applicable interest rate
hereinafter set forth together with all other sums due hereunder or under the
terms of the Mortgage (as hereinafter defined) in lawful money of the United
States of America which shall be legal tender in payment of all debts at the
time of such payment the (“Loan”). Both principal and interest and all other
sums due hereunder shall be payable at the office of Lender at One Nationwide
Plaza, Columbus, Ohio 43215-2220, Attention: Real Estate Investment Department,
34T, or at such other place either within or without the State of Ohio as
Lender may from time to time designate. Said principal and interest shall be
paid over a term, at the times, and in the manner set forth below, to wit:


 


1

















 


Payment Provision:


 


(A)          Interest accrued on the unpaid
principal balance of this Note from the date of disbursement hereof through
January 31, 2006 at the rate of six and one one-hundredths percent (6.01%) per
annum, shall be due and payable on the disbursement date of the Loan.


 


(B)           Thereafter, installments of interest
only on the unpaid principal balance of this Note at the rate of six and one
one-hundredths percent (6.01%) per annum, shall be due and payable in sixty
(60) consecutive monthly installments commencing on March 1, 2006 and continuing
on the first day of each calendar month, with each such installment to be in
the sum of   FIFTY-NINE   THOUSAND  
ONE   HUNDRED   FIFTY  
AND   NO/100   DOLLARS ($59,150.00), without deduction or
set-off.


 


(C)           Thereafter, installments of principal
and interest on the unpaid principal balance of this Note at the rate of six
and one one-hundredths percent (6.01%) per annum, shall be due and payable in
one hundred fifty-seven (157) consecutive monthly installments commencing on March
1, 2011 and continuing on the first day of each calendar month thereafter, with
each such installment to be in the sum of SEVENTY-EIGHT THOUSAND THIRTY-FOUR
AND 45/100 DOLLARS ($78,034.45), without deduction or set-off.


 


Maturity.


 


The unpaid
principal balance of this Note and all accrued unpaid interest thereon, (if not
sooner paid), shall be due and payable in full on April 1, 2024 (the “Maturity
Date”).


 


Application of Payments.


 


All payments shall
be applied first to any late payment or other such charges as provided in this
Note or in the Mortgage, then to accrued unpaid interest on this Note, and the
balance, if any, shall be applied to the reduction of the outstanding principal
balance of this Note (subject to the terms hereof). Interest due hereunder
shall be calculated on the basis of a three hundred sixty (360)-day year
(composed of twelve (12) thirty (30)-day months) except the payment due under
payment provision (A) above which shall be calculated on the actual number of
days; provided, however, in no event shall the rate of interest payable under the
terms of this Note exceed the maximum rate of interest permitted under
applicable law.


 


Late Payment Charge.


 


Prior to the
acceleration or maturity of this Note, Lender may collect a late payment charge
in an amount equal to five percent (5%) of any full monthly installment not
received by the due date. Such late payment charge shall constitute liquidated
damages for the purpose of covering the extra expenses involved in handling
delinquent installments and Lender may collect such late payment charges even
though it has not given any notice to Borrower of such late payment or a cure
period, if any, has not passed; provided that such late payment charge shall
not, together with other interest to be paid on the indebtedness evidenced by
this Note or indebtedness arising under any instrument securing the payment
hereof, exceed the maximum interest permitted under applicable law. Borrower
acknowledges that the late payment charge is


 


2

















 


a fair and reasonable
estimate, considering all of the circumstances existing on the date of
execution of this Note, of the cost the Lender will incur by reason of such
late payment.


 


Prepayment.


 


(A)          Except as hereinafter provided,
Borrower shall not have the right to prepay all or any part of the Loan at any
time. Borrower shall have the right to prepay, in full but not in part, the
Loan evidenced by this Note, provided that, as conditions precedent, Borrower:
(i) gives Lender not less than thirty (30) days’ prior Written Notice (as
defined in the Mortgage) of Borrower’s intention to so prepay this Note; and
(ii) pays to Lender the Prepayment Premium (as hereinafter defined), if any,
then due and payable to Lender as hereinafter provided.   As used herein, the term “Prepayment Premium”
shall mean a sum equal to the greater of either: (i) one percent (1%) of the
outstanding principal balance of this Note at the time of prepayment; or (ii) an
amount equal to the sum of (a) the present value of the scheduled monthly
payments due under this Note from the date of prepayment to the Maturity Date,
and (b) the present value of the amount of principal and interest due under
this Note on the Maturity Date (assuming all scheduled monthly payments due
prior to the Maturity Date were made when due), minus (c) the outstanding
principal balance of this Note as of the date of prepayment.   The present values described in (a) and (b)
shall be computed on a monthly basis as of the date of prepayment discounted at
the yield-to-maturity plus fifty (50) basis points of the U. S. Treasury Note
or Bond closest in maturity to the Maturity Date of this Note as reported in The
Wall Street Journal (or, if The Wall Street Journal is no longer
published, as reported in such other daily financial publication of national
circulation which shall be designated by Lender) on the fifth (5) business day
preceding the date of prepayment. 
Borrower shall be obligated to prepay this Note on the date set forth in
the notice to Lender required hereinabove, after such notice has been delivered
to Lender.   Notwithstanding the
foregoing or any other provision herein to the contrary, if Lender elects to
apply insurance proceeds, condemnation awards, or any escrowed amounts, if applicable,
to the reduction of the outstanding principal balance of this Note in the
manner provided in the Mortgage, no Prepayment Premium shall be due or payable
as a result of such application,  and the
monthly installments  due  and payable hereunder shall be reduced accordingly.


 


(B)           In the event the Maturity Date of the
Loan evidenced by this Note is accelerated by Lender at any time due to a
default by Borrower under this Note or any of the other Loan Documents (as
hereinafter defined), then a tender of payment in an amount necessary to
satisfy the entire outstanding principal balance of this Note together with all
accrued unpaid interest hereon made by Borrower, or by anyone on behalf of
Borrower, at any time prior to, at, or as a result of, a foreclosure sale or
sale pursuant to power of sale, shall constitute a voluntary prepayment
hereunder prior to the contracted Maturity Date of this Note thus requiring the
payment to Lender of a Prepayment Premium equal to the applicable Prepayment
Premium as set forth in paragraph (A) above; provided, however, that in the
event such Prepayment Premium is construed to be interest under the laws of the
State of Florida in any circumstance, such payment shall not be required to the
extent that the amount thereof, together with other interest payable hereunder,
exceeds the maximum rate of interest that may be lawfully charged under
applicable law.


 


3

















 


(C)           Notwithstanding anything contained
herein to the contrary, during the ninety (90)-day period immediately preceding
the Maturity Date of this Note, the entire outstanding principal balance and
all accrued unpaid interest on this Note may be prepaid in full, but not in
part, at par, without incurring a Prepayment Premium.


 


Additional Conditions.


 


This Note is
secured by, among other things, a Mortgage and Security Agreement (the “Mortgage”)
and by an Assignment of Leases, Rents and Profits (the “Assignment”) of even
date herewith, encumbering certain real property described therein and located
in Broward County, State of Florida and certain other property, all as more
particularly described in the Mortgage (collectively, the “Property”). The
Mortgage and the Assignment contain terms and provisions which provide grounds
for acceleration of the Loan evidenced by this Note, together with additional
remedies in the event of default hereunder or thereunder. Failure on the part
of Lender to exercise any right granted herein or in the Mortgage or the
Assignment or any other Loan Document shall not constitute a waiver of such
right, or preclude Lender’s subsequent exercise and enforcement thereof. This
Note, the Mortgage, the Assignment and all other documents and instruments
executed as further evidence of, as additional security for, or executed in
connection with, the Loan evidenced by this Note are hereinafter collectively
referred to as the “Loan Documents”.


 


Except as
otherwise provided herein, all parties to this Note, including endorsers,
sureties and guarantors, if any, hereby jointly and severally waive presentment
for payment, demand, protest, notice of protest, notice of demand, notice of
nonpayment, notice of dishonor, notice of intent to accelerate the maturity of
this Note, notice of acceleration of the maturity of this Note, and any and all
other notices and demands whatsoever, and agree to remain bound hereby until
the principal, interest and all other obligations arising under this Note are
paid in full, notwithstanding any extensions of time for payment which may be
granted by Lender, even though the period of extension be indefinite, and
notwithstanding any inaction by, or failure to assert any legal rights
available to Lender pursuant to the terms and conditions of this Note. If the
obligations evidenced by this Note, or any part thereof, are placed in the
hands of an attorney or other person for collection, whether by suit or
otherwise, at any time, or from time to time, Borrower shall be liable to
Lender, in each instance, for all costs and expenses incurred in connection
therewith, including, without limitation, Reasonable Attorneys’ Fees (as
hereinafter defined).


 


Default.


 


If Borrower
defaults under this Note or under any of the other Loan Documents, then in any
or all of such events, at the option of Lender, the entire outstanding
principal balance of this Note, together with all accrued unpaid interest
thereon and all other obligations arising under this Note or any of the other
Loan Documents, may be accelerated by Lender and may become and be immediately
due and payable then or thereafter as Lender may elect, regardless of the
Maturity Date hereof. All such amounts shall bear interest after maturity, by
acceleration or otherwise, at the lesser of either: (i) the highest rate of
interest then allowed by the laws of the


 


4

















 


State of Florida or, if controlling, the laws of the
United States; or (ii) the then applicable interest rate of this Note plus five
hundred (500) basis points per annum.


 


During the
existence of any such default, Lender may apply any sums received, including
but not limited to insurance proceeds or condemnation awards, to any amount
then due and owing hereunder or under the terms of any of the other Loan
Documents as Lender may determine. Neither the right nor the exercise of the
right herein granted unto Lender to apply such proceeds as aforesaid shall
serve to cure the default or preclude Lender from exercising its option to
cause the entire Loan evidenced by this Note to become immediately due and
payable by reason of Borrower’s default under the terms of this Note or any of
the other Loan Documents.


 


Notwithstanding
any provisions herein to the contrary, Lender’s right, power and privilege to
accelerate the maturity of the indebtedness evidenced hereby shall be
conditioned upon, (i) with respect to any Non-Monetary Default (as hereinafter
defined), Lender giving Borrower Written Notice of such Non-Monetary Default
and a thirty (30)-day period, after the date of such notice, within which to
cure such Non-Monetary Default, unless such Non-Monetary Default cannot
reasonably be cured within said thirty (30)-day time period, in which event
Borrower shall have an extended period of time to complete such cure, provided
that action to cure such Non-Monetary Default has commenced within said thirty
(30)-day period and Borrower is, in Lender’s sole judgment, not diminishing or
impairing the value of the Property, and is diligently pursuing a cure to
completion, but in no event longer than ninety (90) days[; and (ii) with
respect to any Monetary Default (as hereinafter defined), Lender giving
Borrower Written Notice of such Monetary Default and a five (5) day period
after such notice is given within which to cure such Monetary Default;
provided, however, that Lender shall not be required to give such notice and right
to cure as to Monetary Defaults, which occur during any Loan Year (hereinafter
defined) if Lender has previously given Written Notice of a Monetary Default
during such Loan Year. It is understood and agreed that the agreement of Lender
to provide notice and an opportunity to cure a Monetary Default does not waive
Lender’s right to any late payment charge. Any notice required hereunder shall
be given as provided in the Mortgage. Lender shall have no obligation to give
Borrower notice of, or any period to cure, any Monetary Default or any
Incurable Default (as hereinafter defined) prior to exercising Lender’s right,
power and privilege to accelerate the maturity of the Loan evidenced hereby, to
declare the same to be immediately due and payable, and to exercise all other
rights and remedies herein granted or otherwise available to Lender at law or
in equity. As used herein, the term “Monetary Default” shall mean any default
which can be cured by the payment of money, including but not limited to, the
payment of principal and/or interest due under this Note and the payment of
taxes, assessments and insurance premiums when due as provided in the Mortgage.
As used herein, the term “Non-Monetary Default” shall mean any default which is
not a Monetary Default or an Incurable Default. As used herein, the term “Incurable
Default” shall mean either: (i) any voluntary or involuntary sale, assignment,
mortgaging or transfer of the Property or ownership interests in Borrower in
violation of the covenants of the Mortgage; or (ii) if Borrower, or any person
or entity comprising Borrower, should make an assignment for the benefit of
creditors, become insolvent, or file (or have filed against it) a petition in
bankruptcy (including but not limited to, a petition seeking a rearrangement or
reorganization) which is not dismissed within


 


5

















 


thirty (30) days after the filing of same. As used
herein, the term “Loan Year” shall mean each twelve (12) month period beginning
with March 1, 2004, and each anniversary thereof.


 


Notwithstanding
any provision of this Note to the contrary, during any period of default and
regardless of any cure period applicable to such default, in each instance
under this Note, the Mortgage, or any of the other Loan Documents in which
either: (i) Borrower is permitted to take a material action without Lender’s
consent; or (ii) Lender’s consent is to be exercised reasonably, Lender’s
consent shall be required and shall be granted or withheld in Lender’s sole and
absolute discretion.


 


Savings Clause;
Severability.


 


It is the intent
of Borrower and Lender in the execution of this Note and all other instruments
now or hereafter securing this Note to contract in strict compliance with
applicable usury law. In furtherance thereof, Lender and Borrower stipulate and
agree that none of the terms and provisions contained in this Note, or in any
other instrument executed in connection herewith, shall ever be construed to
create a contract to pay interest at a rate in excess of the maximum interest
rate permitted to be charged by applicable law. Neither Borrower nor any
guarantors, endorsers or other parties now or hereafter becoming liable for
payment of this Note shall ever be required to pay interest on this Note at a
rate in excess of the maximum interest that may be lawfully charged under
applicable law, and the provisions of this section shall control over all other
provisions of this Note and any other instruments now or hereafter executed in
connection herewith which may be in apparent conflict herewith. Lender
expressly disavows any intention to charge or collect excessive unearned
interest or finance charges in the event the maturity of this Note is
accelerated. If the maturity of this Note shall be accelerated for any reason
or if the principal of this Note is paid prior to the end of the term of this
Note, and as a result thereof the interest received for the actual period of
existence of the Loan evidenced by this Note exceeds the maximum permitted by
applicable law, Lender shall refund to Borrower the amount of such excess and
thereby shall render inapplicable any and all penalties of any kind provided by
applicable law as a result of such excess interest. In the event that Lender
shall collect monies which are deemed to constitute interest which would
increase the effective interest rate on this Note to a rate in excess of that
permitted to be charged by applicable law, all such sums deemed to constitute
interest in excess of the lawful rate shall, upon such determination be
immediately returned to Borrower, in which event any and all penalties of any
kind under applicable law as a result of such excess interest shall be
inapplicable. By execution of this Note, Borrower acknowledges that it believes
the Loan evidenced by this Note to be non-usurious and agrees that if, at any
time, Borrower should have reason to believe that such Loan is in fact
usurious, it will give Lender notice of such condition and Borrower agrees that
Lender shall have ninety (90) days in which to make appropriate refund or other
adjustment in order to correct such condition if in fact such exists. The term “applicable
law” or “applicable usury law” as used in this Note shall mean the laws of the
State of Florida or the laws of the United States, whichever laws allow the
greater rate of interest and do not violate the laws of the State of Florida,
as such laws now exist or may be changed or amended or come into effect in the
future. If any clauses or provisions herein contained operate or would prospectively
operate to invalidate this Note, then such clauses or provisions only shall be
held for naught, as though not herein contained and the remainder of this Note
shall remain operative and in full force and effect.


 


6

















 


Exculpation.


 


The liability of
Borrower with respect to the payment of principal and interest hereunder shall
be “non-recourse”. Except as hereinafter provided, Lender’s source of
satisfaction of Borrower’s obligations under this Note and the other Loan
Documents shall be limited to the Property and Lender’s receipt of the rents,
issues and profits from the Property and any other security or collateral now
or hereafter held by Lender, and Lender shall not seek to procure payment out
of any other assets of Borrower, or any person or entity comprising Borrower,
or to seek judgment (except as hereinafter provided) for any sums which are or
may be payable under this Note or any of the other Loan Documents, as well as
any claim or judgment (except as hereafter provided) for any deficiency
remaining after foreclosure of the Mortgage. Notwithstanding the foregoing,
nothing herein contained shall be deemed to be a release or impairment of the
Loan evidenced by this Note or the security therefor intended by the other Loan
Documents, or be deemed to preclude Lender from exercising its rights to
foreclose the Mortgage or to enforce
any of its other rights or remedies under the Loan Documents, including but not
limited to that certain Guaranty of even date herewith from W. Douglas Pitts
and Courtelis Investment Trust to Nationwide (the “Guaranty”)].


 


Notwithstanding
the foregoing, it is expressly understood and agreed that the aforesaid
limitation on liability shall in no way affect or apply to the continued
personal liability of Borrower and Borrower’s general partners for all sums due
to:


 


	
  (1)

  	
   

  	
  fraud, willful misconduct or material
  misrepresentation made in or in connection with the Application for Mortgage
  Loan dated October 2, 2003, accepted by Lender on December 18, 2003, and
  accepted by Borrower on January 12, 2004 and any subsequent amendments
  thereto, this Note or any of the other Loan Documents;

  
	
   

  	
   

  	
   

  
	
  (2)

  	
   

  	
  the failure to pay taxes which accrue prior to
  Lender taking control of the Property or to pay assessments or any other
  governmental impositions, charges for labor, materials or any other charges
  which may create liens on any portion of the Property;

  
	
   

  	
   

  	
   

  
	
  (3)

  	
   

  	
  the misapplication or misappropriation of (i)
  proceeds of insurance covering any portion of the Property; (ii) proceeds of
  the sale, condemnation or transfer in lieu of condemnation of any portion of
  the Property; or (iii) rentals received by or on behalf of Borrower
  subsequent to the date on which Lender makes written demand therefor pursuant
  to any of the Loan Documents;

  
	
   

  	
   

  	
   

  
	
  (4)

  	
   

  	
  causing or permitting waste or causing arson to
  occur in, on or about the Property, and failing to maintain the Property,
  except for ordinary wear and tear;

  
	
   

  	
   

  	
   

  
	
  (5)

  	
   

  	
  the failure to return to Lender all unearned advance
  rentals and security deposits that have been paid by tenants of the Property
  to the extent that such amounts have not been refunded to or forfeited by
  such tenants;

  



 


7

















 


	
  (6)

  	
   

  	
  the failure to pay any and all tenant improvement
  allowances owed to tenants leasing space in the Property;

  
	
   

  	
   

  	
   

  
	
  (7)

  	
   

  	
  the failure to pay to Lender any and all fees paid
  to Borrower by any tenant of the Property which fees permit the tenant to
  terminate its lease or otherwise abandon or vacate its leased premises;

  
	
   

  	
   

  	
   

  
	
  (8)

  	
   

  	
  loss by fire or any other casualty to the extent not
  compensated by insurance proceeds, as a result of Borrower’s failure to
  comply with the insurance provisions of the Mortgage;

  
	
   

  	
   

  	
   

  
	
  (9)

  	
   

  	
  the failure to return to or reimburse Lender for all
  Fixtures and Personal Property (as defined in the Mortgage) owned by Borrower
  and taken from the Property by or on behalf of Borrower, out of the ordinary
  course of business, and not replaced by items with values equal to or greater
  than the original values of the Fixtures and Personal Property so removed;

  
	
   

  	
   

  	
   

  
	
  (10)

  	
   

  	
  all court costs and Reasonable Attorneys’ Fees (as
  hereinafter defined) actually incurred by Lender for which Borrower is liable
  pursuant to the terms of this Note or any of the other Loan Documents;

  
	
   

  	
   

  	
   

  
	
  (11)

  	
   

  	
  (i) the removal of any chemical., material or
  substance in excess of legal limits or which is required by any governmental
  entity, to which exposure is prohibited, limited or regulated by any federal,
  state, county or local authority, and which may or could pose a hazard to the
  health and safety of the occupants of the Property (which substances are also
  further defined in the Mortgage as “Hazardous Materials”), regardless of the
  source of origination (including sources off the Property which migrate onto
  the Property or its groundwater); (ii) the restoration of the Property to
  comply with all governmental regulations pertaining to Hazardous Materials
  found in, on or under the Property, regardless of the source of origination
  (including sources off the Property which migrate onto the Property or its
  groundwater); and (iii) any indemnity or other agreement to hold Lender
  harmless from and against any and all losses, liabilities, damages, injuries,
  costs and expenses of any and every kind arising as a result of the existence
  and/or removal of Hazardous Materials and from the violation of Hazardous
  Waste Laws (as defined in the Mortgage). Borrower shall not be liable
  hereunder if the Property becomes contaminated subsequent to Lender’s
  acquisition of the Property by foreclosure or acceptance of a deed in lieu
  thereof, or subsequent to any transfer of ownership of the Property which was
  approved or authorized in writing by Lender pursuant to the Mortgage,
  provided that such transferee assumes in writing all obligations of Borrower
  under the Loan Documents pertaining to Hazardous Materials. Liability under
  this subsection (11) shall extend beyond repayment of the Loan and compliance
  with the terms of the Note and compliance with the terms of the Mortgage
  unless Borrower at such time provides Lender with an environmental assessment
  report acceptable to Lender, in Lender’s sole discretion, showing the
  Property to be free of Hazardous Materials and not in violation of

  



 


8

















 


	
   

  	
   

  	
  Hazardous Waste Laws. The burden of proof under this
  subparagraph with regard to establishing the date upon which such Hazardous
  Materials were placed or appeared in, on or under the Property shall be upon
  Borrower;

  
	
   

  	
   

  	
   

  
	
  (12)

  	
   

  	
  failure to remit to Lender any amounts under any
  letter of credit (or any renewals and/or replacements thereof) supplied by
  Borrower to Lender in connection with the Loan, this Note or any of the other
  Loan Documents in the event that the bank issuing such letter of credit
  becomes insolvent, files or has filed against it any bankruptcy or similar
  proceeding or is closed (either temporarily or permanently), is placed in
  receivership, conservatorship or liquidation by the Federal Deposit Insurance
  Corporation, Resolution Trust Corporation or any other governmental or
  quasi-governmental entity, or otherwise fails or refuses to honor such letter
  of credit or otherwise fails to maintain certain criteria required by Lender;
  and

  
	
   

  	
   

  	
   

  
	
  (13)

  	
   

  	
  failure to timely pay any amounts payable for all
  state documentary stamp taxes and intangible personal property taxes, if any,
  which may be levied or assessed against the Loan, this Note, the Mortgage or
  any of the other Loan Documents, together with all interest penalties or
  charges in connection therewith.

  



 


The obligations of
Borrower in subsections (1) through (13) above, except as specifically provided
in subsection (11), shall survive the repayment of the Loan evidenced by this
Note, and satisfaction of the Mortgage.


 


Full Recourse.


 


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


 


Waiver of Jury Trial.


 


BORROWER, TO THE
FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY,
WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER
FORGOES HEREBY THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING,
INCLUDING, WITHOUT LIMITATION, ANY TORT ACTION, AGAINST


 


9

















 


LENDER, ITS SUCCESSORS AND ASSIGNS, BASED UPON,
ARISING OUT OF, OR IN ANY WAY RELATING TO OR IN CONNECTION WITH ANY OF THE LOAN
DOCUMENTS, THE LOAN OR ANY COURSE OF CONDUCT, ACT, OMISSION, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON (INCLUDING,
WITHOUT LIMITATION, LENDER’S DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES,
AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH LENDER), IN
CONNECTION WITH THE LOAN OR THE LOAN DOCUMENTS INCLUDING, WITHOUT LIMITATION,
IN ANY COUNTERCLAIM WHICH ANY PARTY MAY BE PERMITTED TO ASSERT THEREUNDER,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL LENDER, ITS
SUCCESSORS OR ASSIGNS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS PROFITS
OR OPPORTUNITY) AND BY ITS EXECUTION HEREOF, BORROWER WAIVES ANY RIGHT TO CLAIM
OR SEEK ANY SUCH DAMAGES.


 


Captions.


 


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


 


Attorneys’ Fees.


 


As used herein,
the phrase “Reasonable Attorneys’ Fees” shall mean fees charged by attorneys
selected by Lender based upon such attorneys’ then prevailing hourly rates as
opposed to any statutory presumption specified by any statute then in effect in
the State of Florida.


 


Applicable Laws.


 


This Note and the
rights and obligations of the parties hereunder shall be governed by, and
construed in accordance with, the internal laws of the State of Florida,
without regard to principles of conflicts of laws. The parties hereto
irrevocably; (i) agree that any suit, action or other legal proceeding arising
out of or relating to this Note may be brought in a court of record in the
State of Florida or in the courts of the United States of America located in
such state; (ii) consent to the non-exclusive jurisdiction of each such court
in any suit, action or proceeding; and (iii) waive any objection which it may
have to the laying of venue of any such suit, action or proceeding in any of
such courts and any claim that any such suit, action or proceeding has been
brought in an inconvenient forum.


 


Modifications.


 


This
Note may not be amended or modified except by an agreement in writing signed by
the party against whom enforcement is sought.


 


Time of the Essence.


 


In connection with
the Loan and this Note, time shall be of the essence.


 


10

















 


Successors and Assigns.


 


The terms,
conditions, obligations and liabilities of this Note shall be binding upon
Borrower, its heirs, personal representatives, successors and assigns, and
shall inure to the benefit of Lender, its successors and assigns. If Borrower
is comprised of more than one (1) person or entity, then the liability of each
such person and entity hereunder shall be joint and several.


 


Authorization.


 


By its signature
below, Borrower represents and warrants that the Loan transaction contemplated
by this Note and any of the other Loan Documents have been properly authorized
by Borrower’s governing or managing body, and that the person(s) signing on
behalf of Borrower has been duly authorized to sign for, and hereto bind the
Borrower.


 


Transfer.


 


Lender may, at any
time, sell, transfer or assign this Note, the Mortgage, the Assignment and the
other Loan Documents, and any or all servicing rights with respect thereto, or
grant participations therein or issue mortgage pass-through certificates or
other securities evidencing a beneficial interest in a rated or unrated public
offering or private placement. Lender may forward to each purchaser,
transferee, assignee, servicer, participant, investor in such securities or any
credit rating agency rating such securities (collectively, the “Investor”) and
each prospective Investor, all documents and information which Lender now has
or may hereafter acquire relating to the Loan and to Borrower, any guarantor
and the Property, whether furnished by Borrower, any guarantor or otherwise, as
Lender determines necessary or desirable. Borrower shall execute, acknowledge
and deliver any and all instruments requested by Lender to satisfy such
purchasers or participants that the unpaid indebtedness evidenced by this Note
is outstanding upon the terms and provisions set out in this Note and the other
Loan Documents. To the extent, if any, specified in such assignment or
participation, such assignee(s) or participant(s) shall have the rights and
benefits with respect to this Note and the other Loan Documents as such
assignee(s) or participant(s) would have if they were the Lender hereunder.


 


[SIGNATURES
BEGIN ON NEXT PAGE]


 


11

















 


IN
WITNESS WHEREOF, Borrower has executed
this Note under seal as of the day and year first above written.


 


	
   

  	
  MB MARGATE LAKEWOOD I, L.L.C.,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  Minto Builders (Florida), Inc., a Florida

  corporation, its sole member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/  Valerie Medina

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Valerie Medina

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
  Assistant Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (CORPORATE SEAL)

  
					



 


Borrower’s Address:


 


c/o The Inland Real Estate Group, Inc.


2901 Butterfield Road


Oak Brook, Illinois 60523


 


Borrower’s FEI#:   20-3686063


 


Documentary Stamps in the amount of Forty-One Thousand Two and 50/100
Dollars (S41,002.50) have been affixed to the Assumption and Ratification
Agreement of even date herewith which reflects Borrower’s assumption of that
certain Mortgage and Security Agreement to and in favor of Nationwide, dated
March 2, 2004 and recorded March 4, 2004 in Official Records Book 37010, Page
340, Public Records of Broward County, Florida and which secures this Note.
This Renewal Note is exempt from the payment of Intangible Taxes.


 


12