Exhibit 10.23


 


DOCUMENTARY
STAMP TAX IN THE AMOUNT REQUIRED BY LAW, ON THE OBLIGATIONS EVIDENCED HEREBY, WAS
PAID UPON RECORDATION IN LEE COUNTY OF THE MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING
SECURING THIS PROMISSORY NOTE.


 


PROMISSORY NOTE


 


	
  $69,000,000

  	
  March 21, 2006

  



 


FOR
VALUE RECEIVED, BTS MONTERREY HOLDINGS LLC, a
Delaware limited liability company (the “Borrower”),
promises to pay to the order of CORUS
BANK, N.A., its
successors and assigns (the “Lender,” which term shall also include any
subsequent holder of this Note), the original principal amount of SIXTY-NINE
MILLION AND NO/100 DOLLARS ($69,000,000) (the “Loan”), or so much thereof as shall have been advanced under the
provisions of the Loan Agreement of even date herewith as it may be hereafter
amended, supplemented or modified from time to time,
the “Loan  Agreement”),
with interest until paid as set
forth in this Promissory Note (this “Note”).  Each
capitalized term used and not specifically defined in this Note shall have
the same meaning given to such capitalized term in the
Loan Agreement. Advances of the Loan
shall be made in accordance with, and subject to, the terms and
provisions of the Loan Agreement.


 


1.                        Interest Rate.


 


(a)                                                          Interest shall
accrue and be payable monthly on the outstanding principal balance of the Loan
at the rate (the “Interest Rate”) from time to time
which is equal to the greater of:


 


(i)                                     six and three-quarters
percent (6.75%), or


 


(ii)                                  the sum of: (A) three
and three-quarters percent (3.75%) and (B) the
LIBOR Rate (as hereinafter
defined) then in effect.


 


(b)                       In order to
account for any changes in the LIBOR Rate, the Interest Rate shall be adjusted
on the first (1st) day of each January, April, July and October (each
an “Adjustment Date”) until the Loan is repaid in full, and each such adjustment in the Interest Rate shall
be effective until the next succeeding Adjustment Date. As used herein, the
term “LIBOR Rate” means the London Interbank Offered Rate for three (3) month dollar
deposits reported in the Money Rates section of The Wall Street Journal on the
applicable Adjustment Date, or if The Wall Street Journal is not
published on an Adjustment Date then the LIBOR Rate shall be determined on the
first date thereafter on which The Wall Street Journal is published, but such
LIBOR Rate shall take effect as of the
Adjustment Date. In the event that The Wall Street Journal (i) publishes more
than one (1) such LIBOR Rate, the average of such rates shall apply, (ii) publishes a
retraction or correction of any such rate, the rate reported in such retraction
or correction shall apply, or (iii) ceases to publish the LIBOR Rate, then
the LIBOR Rate shall be determined from such substitute comparable financial
reporting service as Lender, in its sole but


 


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reasonable discretion, shall
determine. The Interest Rate in effect from the period commencing on the
Closing Date to the date preceding the first Adjustment Date thereafter, shall
be determined based upon the LIBOR Rate on the Closing Date.


 


(c)                                                         Interest on the
Loan shall be calculated based upon a three hundred sixty (360) day year and
charged for the actual number of days elapsed.


 


2.                      Payment of Interest; Repayment Principal.


 


(a)                                  Beginning on the
first (1st) day of April,
2006 (the “First Payment Date”), and
on the first day of each month thereafter through and including the first day
of the month immediately preceding Loan Maturity (as defined below), Borrower
shall make monthly payments of interest only on the outstanding principal
balance of the Loan at the Interest Rate or the Default Rate (whichever then
shall be applicable).


 


(b)                                 Upon the sale
of any Condominium Unit, Garage Space or Carport
Space Borrower shall pay to Lender the Release Price, or Reduced
Release Price, as the case may be, as more particularly described and provided
in Section 9.4 of the Loan Agreement, and such Release Price or Reduced
Released Price shall be applied as  provided in Article 9 of the Loan  Agreement.


 


(c)                                  Borrower shall
make monthly payments into the Tax
Escrow Account held by Lender for payment of real estate taxes when
said taxes are due, all as more particularly described in Article 10 of the Loan
Agreement.


 


(d)                                 Upon Loan Maturity, and unless the Loan has been sooner prepaid in full by
Borrower, Borrower shall pay in full to Lender the entire outstanding principal
balance of the Loan, all accrued and unpaid interest,
and all other sums then due and owing to Lender under this Note, the Loan
Agreement and the other Loan Documents.


 


3.                        Loan Term.


 


(a)                        Unless Borrower
shall exercise its option to extend in accordance with the provisions of Section 3(b)
below, the term of the Loan (the “Loan Term”) shall be for a period of twenty-four (24) months, commencing on
the date of the Note and expiring on March 19, 2008. As used herein, the
term “Loan Maturity” shall mean
the time at which Borrower is required to pay the Loan in
full, whether by acceleration, or by
expiration of the Loan Term.


 


(b)                       Borrower shall have the right and option to extend the Loan Term for two (2) additional
periods of six (6) months (each an “Extension,”
together the “Extensions”),
subject to Borrower’s timely satisfaction of each of the following conditions:


 


(i)                                     Lender has not given notice to Borrower that the Loan has been accelerated
during the Loan Term;


 


(ii)                                  Borrower shall have delivered written notice (“Extension Notice”) to Lender of Borrower’s
election to extend the Loan Term for an Extension, and Lender


 


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shall
have received an Extension Notice not later than thirty (30) days prior to the expiration of the Loan Term;


 


(iii)                               Borrower shall have
delivered to Lender no later than the date of each Extension Notice, an
extension fee equal to one-half percent (0.5%) of the then
outstanding principal amount of the Loan and the unfunded
commitment (“Extension
Fee”);


 


(iv)                              No Default or Event of
Default has occurred and is continuing hereunder, under the Loan Agreement or
under any other Loan Documents;


 


(v)                                 The completion of the Work
has occurred in accordance with the terms of the Loan Agreement;


 


(vi)                              Lender has received at least
$40,000,000 in principal paydowns pursuant to Valid Sale Contracts and the
requirements of Article 9 of the Loan Agreement; and


 


(vii)                           Borrower shall have
delivered to Lender evidence in a form acceptable to Lender in its sole discretion
that the maturity of the Mezzanine Loan or the Subordinate Loan shall not occur during an
Extension.


 


(c)                        In the event
that Borrower shall fail to timely exercise an option under Section 3(b),
or shall otherwise fail to satisfy the conditions precedent thereto as
described in Section 3(b)  above, the
right to exercise any such option shall be void and of no further force and
effect. Further, with respect to each Extension:


 


(i)                                     if Borrower does not request
an Extension, or


 


(ii)                                  if Borrower does request an
Extension and Lender gives timely written notice to Borrower that Borrower has
not satisfied one or more of the conditions to such Extension,


 


then unless the Obligations,
including without limitation all accrued interest, all principal, all late
fees, the Exit Fee, and all other sums and amounts due and owing to Lender
under the provisions of this
Note, the Loan Agreement and any and all other
Loan Documents, are paid in full
not later than March 19, 2008 (subject to acceleration of
the Loan at an earlier date)
then: (A) the full
Extension Fee shall be due and payable in addition to all of the Obligations,
including without limitation all accrued interest, all principal, all late
fees, the Exit Fee, and all other sums and amounts due and owing to Lender
under the provisions of this Note, the Loan Agreement and any and all other Loan Documents and (B) the Loan Term shall be extended for a period of thirty
(30) days. If the Loan Term is
extended for the thirty (30) day period described above, the Mortgage shall not
be released until the applicable Extension Fee and all of the Obligations,
including without limitation all accrued interest, all principal, all late
fees, the Exit Fee, and all other sums and amounts due and
owing to Lender under the provisions of this Note, the Loan Agreement and any
and all other Loan Documents have been paid in full. In the event that
Lender has given notice to Borrower that the  Loan has been accelerated,
the thirty (30) day extension of the Loan Term described in this Section 3(c) shall
not apply. In the event Lender provides notice to Borrower that
the Loan has been accelerated and such acceleration occurs


 


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after March 19, 2008, then the
applicable Extension Fee shall continue to be due and payable upon such
acceleration.


 


4.                        Agreement
to Loan.


 


Notwithstanding
anything in this Note to the contrary, Lender shall have no obligation to make
disbursements of the Loan unless all conditions set forth in the Loan Agreement
have been satisfied.


 


5.                       Application of Payments.


 


So
long as no Default or Event of Default has occurred and is then
continuing, but subject to the prepayment fee set forth in Section 6  below, all
payments on account of the Obligations, including the indebtedness evidenced by
this Note, shall be applied:


 


(iii)                               First to repayment of the
principal amount of the Loan until such principal shall have been fully paid;


 


(iv)                              Then, to pay any other
Obligations.


 


Upon the occurrence of a Default
or an Event of Default and in
addition to all other rights, powers and remedies of Lender hereunder or under
any other Loan Document, Lender may, at its option,
apply all amounts paid to Lender under this Note, the Loan
Agreement or any other Loan Document in
such order and manner as Lender may
elect in its sole discretion.


 


6.                        Repayment;
Prepayment.


 


The
following provisions shall apply to the prepayment of principal of the Loan:


 


(a)                        Borrower shall
be entitled to prepay the Loan, without prepayment fee or charge in the amount of the Release Price
or Reduced Release Price, as the case may
be, upon the sale of a Condominium Unit,
Garage Space or Carport Space pursuant to a Valid Sale Contract. The
application of the proceeds of such prepayments shall be in accordance with the
provisions of Section 5 above.


 


(b)                       In addition to
the prepayment of the Loan permitted by Section 6(a), prepayment of the
Loan may be made during the first eighteen (18) months of the Loan Term from any
other source, provided that such prepayment in part shall be required to be
accompanied by a prepayment fee in an amount equal to three percent (3%) of the amount prepaid or in
the event of prepayment in full whether by acceleration or otherwise, three percent
(3%) of the sum of the amount prepaid plus the unfunded commitment (the “Prepayment Fee”). After the eighteenth (18th ) month  of the Loan Term, prepayment of the Loan shall be allowed from any source
without a Prepayment Fee.


 


(c)                        The application
of any insurance proceeds or
condemnation proceeds towards the principal balance of the Loan in whole or in
part shall not be considered a prepayment of the Loan for the purpose of this Section 6.


 


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7.                        Late Charges.


 


If any monthly installment of interest or principal or any other payment
due under this Note (with the exception of payment in full of the Obligations
at Loan Maturity) is received by Lender fifteen (15) or more days
after the due date of such payment, Borrower shall pay to Lender a late charge
equal to seven percent (7%) of the aggregate
monthly installment or any other such payment required by this Note.


 


8.                       Default Rate.


 


Following
Loan Maturity or following the occurrence and during the continuance of an Event of Default, the Interest Rate payable on the outstanding balance
of the Loan shall be increased to a per annum
rate equal to the Interest Rate plus five percent (5%) the (“Default Rate”). The Default Rate with respect to the Loan, when operative, shall be
adjusted on each Adjustment Date. After an Event of Default, the Default Rate
shall be applicable to any  fees and costs
due to Lender under the Loan Documents, and to advances made by Lender in
accordance with the Loan Documents.


 


9.                        Place and Time of Payments.


 


(a)                        All payments
required to be made pursuant to this Note shall be made
during regular business hours either by wire transfer of United States Dollars,
by cashier’s check, standard check (subject to collection) or in currency of
the United States of America which at the time of payment is legal tender for
the payment of public or private debts to Lender at:


 


	
  By Regular Mail:

  	
   

  	
  Corus
  Bank N.A.

  
	
   

  	
   

  	
  P.O.
  Box 102865

  
	
   

  	
   

  	
  Atlanta, GA 30368-2865

  
	
   

  	
   

  	
   

  
	
  By Overnight Courier:

  	
   

  	
  Corus
  Bank N.A. - #l02865

  
	
   

  	
   

  	
  Lockbox Mail Department

  
	
   

  	
   

  	
  Georgia Operations Center

  
	
   

  	
   

  	
  100
  South Crest Drive

  
	
   

  	
   

  	
  Stockbridge, GA 30281

  
	
   

  	
   

  	
   

  
	
  By Wire Transfers and ACH:

  	
   

  	
  SUNTRUST BANK, ATLANTA

  
	
   

  	
   

  	
  ABA 061000104

  
	
   

  	
   

  	
  TO CREDIT ACCOUNT 1000008140328

  
	
   

  	
   

  	
  ACCOUNT NAME: CORUS BANK N.A.

  
	
   

  	
   

  	
  FOR FURTHER CREDIT TO:
  Corus Bank

  
	
   

  	
   

  	
  Loan # 66740-11012

  



 


(b)                       If any payment
of principal or interest shall be due on a day that is not
a Business Day, such payment shall be made on the next succeeding Business Day,
and in the case of a principal payment, such extension of time shall be
included in computing interest in connection


 


5

















 


with
such payment. Any payment of principal and interest received after three
o’clock p.m. C.S.T. (or C.D.S.T. as  the case may
be) shall be deemed to have been received by Lender on the next succeeding
Business Day and shall bear interest accordingly. Any payment tendered other
than in coin or currency of the United States as  aforesaid shall be accepted by Lender subject
to collection and, if the check is returned
interest shall accrue until the Business Day on which good funds are available
for immediate use by Lender on or before two o’clock p.m.
C.S.T. (or C.D.S.T. as the case may be).


 


10.                 Security
for Note.


 


The payment of this Note is
secured in part by a Mortgage, Security Agreement, Assignment of Lease and
Rents and Fixture Filing (the “Mortgage”) and
the other Loan Documents. All of the agreements, conditions, covenants,
provisions and stipulations contained in the Loan Documents are hereby made a
part of this Note to the same extent and with the same force and effect as  if they were
fully set forth herein, and Borrower covenants and agrees to keep and perform
them or cause them to be kept and performed, strictly in accordance with their
terms.


 


11.                Events of Default.


 


Each of the following
events shall constitute an event of default hereunder (each an “Event of  Default”): (a) the
occurrence of any Event of Default (as defined in the Loan Agreement), or (b) a default shall
be made in the performance or observance of
any  of the conditions or
agreements under this Note which do not involve the failure to pay money and
such failure shall continue for thirty (30) days after written notice thereof
by Lender to Borrower or, if such default is not capable
of being cured within such 30-day period despite Borrower’s diligent efforts to
cure same, then such 30-day period shall be extended for
such period of time as  required to cure such
default but in no event more than thirty
(30) additional days, provided that Borrower continues to utilize diligent
efforts to effect such cure.


 


12.               Acceleration.


 


Upon
the occurrence of an Event of Default hereunder or under the Loan Agreement,
the unpaid principal amount of the Loan with
interest and all other sums secured by the
Mortgage shall become immediately due and payable at the option of Lender. In
the event of such acceleration, Borrower shall discharge its obligations to
Lender by paying all sums due under this Note, the Mortgage, and the other Loan
Documents, together with interest at the Default Rate accruing from the date of
such Event of Default. Lender’s failure to exercise its option to accelerate
the Loan as  aforesaid upon
the occurrence of an Event of Default shall not constitute a waiver of Lender’s
right to exercise such option at any later time with respect to such Event of
Default or with respect to any other subsequently occurring Event of Default.


 


13.                Nature of Remedies.


 


The remedies of Lender as  set
forth in this Note, the Loan Agreement, any other Loan Document, or at law or
equity, shall be cumulative and concurrent, and may be pursued singly,


 


6

















 


successively,
or together against either or any of Borrower, the
Project, any guarantor or any other Person liable for the Loan or any of the
Obligations, at the sole discretion of Lender.


 


14.                Payment
of Costs of Collection.


 


If,
following the Closing Date, Lender: (a) employs counsel
which Lender reasonably believes is necessary for advice or other
representation (i) to represent Lender in any
litigation, contest, dispute, suit, or proceeding or to commence, defend, or
intervene or to take any other action in or with respect to any litigation,
contest, dispute, suit or proceeding (whether instituted by Lender, Borrower or
any other person) in any way or respect relating to this Note, any other Loan
Document, or any collateral securing this Note or the Obligations, or
(ii) to enforce any rights of Lender against Borrower; (b) takes any
action to protect, collect, sell, liquidate, or otherwise dispose of any
collateral securing this Note or the Obligations; and/or (c) attempts to
or enforces any of Lender’s rights and
remedies against Borrower or any Obligor, then in such event, the fees, costs
and expenses incurred by Lender in any manner or way with respect to the
foregoing shall be part of the indebtedness evidenced by this Note, payable by
Borrower to Lender upon demand. Without limiting the generality of the foregoing,
such fees, costs and expenses shall include fees, costs and expenses of outside
attorneys, accountants and consultants; court costs and expenses; court
reporter fees, costs and expenses; long distance telephone charges, telegram
and telecopier charges; and expenses for travel, lodging and food. For purposes
of this paragraph, the term “attorneys” includes attorneys who are employees of
Lender acting as counsel for
Lender, and the terms “fees, costs and expenses” shall include, without
limitation, the fees charged by Lender for its in-house counsel provided such
fees are within the range of fees charged by attorneys of similar experience at
medium to large sized law firms located in the City of Chicago, Illinois.


 


15.             Waiver.


 


As
to this Note, the Mortgage and any other Loan Document, Borrower and
each endorser, surety and guarantor hereof, if any, and each other Person who
now is or may become liable for all or part of the Obligations (the “Obligors”), severally waive all applicable exemption rights, whether under any state
constitution, homestead Laws or otherwise, and also severally waive valuation
and appraisement, presentment, protest and demand, notice of protest, demand
and dishonor and nonpayment of this Note, and expressly agree that the
liability of each of them shall be unconditional, joint and several, without
regard to the liability of any other party and shall not in any manner be
affected by the maturity of this Note, or any indulgence, extension of time,
renewal, waiver, or modification granted or consented to by Lender. Each of the
Obligors hereby consents to each such indulgence, extension of time, renewal,
waiver, or modification that may be granted by Lender with respect to the
payment or other provisions of this Note or the other Loan Documents, and to
the release of collateral or any part thereof, with or without
substitution, and agrees that additional makers, endorsers, guarantors or
sureties may become parties hereto without notice to any Obligor or affecting any Obligor’s
liability hereunder. Borrower hereby authorizes Lender, at any time after an
Event of Default, to apply any money or other property
which Lender may have or hold on deposit or otherwise for Borrower to any
payment of this Note or any of the Obligations. Borrower hereby pledges and grants
to Lender a


 


7

















 


security interest in any
money or other property that Lender may have or hold on deposit for Borrower.


 


16.               Waiver of Jury Trial.


 


BORROWER AND LENDER EACH WAIVE ALL RIGHTS
TO TRIAL BY JURY OF ANY SUITS, CLAIMS, COUNTERCLAIMS, AND ACTIONS OF ANY KIND
ARISING UNDER OR RELATING TO THIS NOTE. BORROWER AND LENDER EACH ACKNOWLEDGE
THAT THIS IS A  WAIVER OF A
LEGAL RIGHT AND REPRESENT TO THE OTHER THAT THIS WAIVER IS MADE KNOWINGLY
AND VOLUNTARILY. BORROWER AND LENDER EACH AGREE THAT ALL SUCH SUITS, CLAIMS,
COUNTERCLAIMS, AND ACTIONS SHALL BE TRIED
BEFORE A  JUDGE OF A
COURT OF COMPETENT JURISDICTION, WITHOUT A JURY.


 


17.              Usury
Limitations.


 


It
is the intention of the parties to conform
strictly to applicable usury Laws from time to time in force, and all
agreements between Borrower and Lender, whether now existing or hereafter
arising and whether oral or written, are hereby expressly limited so that in no contingency
or event whatsoever, whether by acceleration of maturity hereof or
otherwise, shall the amount paid or due to be paid to Lender, or collected by
Lender, for the use, forbearance or detention of the money to be lent hereunder
or otherwise, or for the payment or performance of any covenant or obligation
contained herein or in the Mortgage or in any other Loan Document, or in any
other document evidencing, securing, or pertaining to the indebtedness
evidenced hereby, exceed the maximum amount permissible under applicable usury
Laws. If under any circumstances whatsoever fulfillment of any provision hereof or of the Mortgage or any other Loan Document, at the time performance of such provision shall be due, shall
involve payment of an amount or
any portion thereof in excess of the maximum rate of interest prescribed by
law, then ipso  facto, the payment to be
made or the amount to be delivered to be fulfilled shall
be reduced to such maximum rate; and if under any circumstances Lender shall
ever receive an amount deemed interest, by applicable Laws, which would exceed
the highest lawful rate, such amount that would be excessive interest under
applicable usury Laws shall be applied to the reduction of the principal amount
owing hereunder or to other indebtedness secured by the Mortgage and not to the
payment of interest, or if such excessive interest exceeds the unpaid balance
of principal and other indebtedness, the excess shall be deemed to have been a
payment made by mistake and shall be refunded to Borrower or to any other
person making such payment on Borrower’s behalf. All sums paid or agreed to be
paid to Lender for the use, forbearance or detention of the indebtedness of
Borrower evidenced hereby, outstanding from time to time shall, to the extent
permitted by applicable Laws, be amortized, prorated, allocated and spread from
the date of disbursement of the proceeds of this Note until payment in full of
such indebtedness so that the actual rate of interest on account of such
indebtedness is uniform through the term hereof. The terms and
provisions of this paragraph shall control and supersede every other provision
of all agreements between Lender and Borrower and any endorser or guarantor of this Note.


 


8

















 


18.                 Business Purpose.


 


Borrower represents and
warrants that the Loan is being made for a business
purpose.


 


19.                Severability.


 


In
case any provision (or any part of any provision) contained in this Note shall
for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision (or remaining part of the affected
provision) of this Note, but this Note shall be
construed as if such invalid, illegal, or unenforceable provision (or part
thereof) had never been contained herein but only to the extent it is invalid,
illegal, or unenforceable.


 


20.               Governing Law.


 


Borrower
hereby acknowledges, consents and agrees this Note and the rights of all
parties mentioned herein shall be governed by the Laws (as opposed to the
conflict of Laws) of the state of Illinois. Notwithstanding the foregoing, the
parties agree that:


 


(a)                        The procedures
governing the enforcement by Lender of the provisional remedies against the
Project or the Borrower, including by way of illustration but not limitation,
actions for replevin or claim and delivery of the Project, for injunctive
relief or for the appointment of a receiver, or for the enforcement of the
power of sale with respect to the Project shall be governed by the Laws of the
State of Florida;


 


(b)                       The Lender
under the Mortgage shall comply with applicable Laws of the State of Florida to
the extent required in connection with the foreclosure of the security
interests and liens created thereby and the enforcement of any power of sale,
as the case may be; provided, however, that this subparagraph shall in no event
be construed to provide that the substantive Laws of the State of Florida shall
apply to this Note or any of the other Loan Documents, all of which are and
shall continue to be governed by the
substantive Laws of the State of Illinois. The parties further agree that
Lender may enforce its rights under this Note and the other Loan  Documents,
including but not limited to, its rights to sue Borrower to collect any
outstanding Obligations or to obtain a judgment for any deficiency in
accordance with Illinois Laws following foreclosure or enforcement of any of
the liens and security interests against any of the Collateral and/or the
enforcement of the power of sale, as  the case may be.


 


21.            Submission
to Jurisdiction; Certain Waivers.


 


Borrower irrevocably (a) submits to the non-exclusive personal
jurisdiction of any federal court in the Northern District of Illinois and any
state or other local court in the County of Cook, State of
Illinois, in any suit, action or other legal proceeding relating to this Note; (b) agrees
that all claims in respect of any such suit,
action or other legal proceeding may be heard and determined in, and enforced
in and by, any such court; (c) waives any  objection that it may now or
hereafter have to venue in any such court or that such court is an  inconvenient
forum; (d) agrees to service


 


9

















 


of process in any such
proceeding by registered or certified mail, postage prepaid, or in any other
manner permitted by law, to any then active agent for service of process at any
specified address or to Borrower at its address set forth above or to such
other address of which Lender shall have been notified in writing (such service
to be effective on the earlier of receipt thereof or, in the case of  service
by mail, when received or when receipt thereof is  first refused by the
intended recipient of the notice), and hereby waives any claim of error arising
out of service of process by any method provided for herein or any claim that
such service was not effectively made; (e) agrees that the failure of its
agent to give any notice of any such service of process to it shall not
impair or affect the validity of such service or any judgment based thereon; (f) to the extent that Borrower
has acquired, or hereafter may acquire, any immunity from jurisdiction of any
such court or  from legal
process therein, waives, to the fullest extent permitted by applicable Laws,
such immunity; (g) to the fullest extent
permitted by applicable Laws, in connection with, or with respect to, any suit,
action or other legal proceeding relating to this Note  (i) WAIVES  any
claim that it is immune from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to it or any of its property, (ii) WAIVES  any claim that
it is not personally subject to the jurisdiction of any such court, and (iii) WAIVES  any
right to assert any counterclaim therein; and (h) agrees that Lender shall have
the right to bring any legal proceedings, including
a proceeding for enforcement of a judgment entered by any of the aforementioned
courts) against Borrower in any other court or  jurisdiction in accordance
with applicable Laws. Notwithstanding the foregoing, nothing in this Section shall
affect the right of Lender to bring any action or proceeding relating to this
Note in the courts of any jurisdiction or the right, in connection with any
legal action or proceeding whatsoever, to serve legal process in any other
manner permitted by law.


 


22.             No Waiver by Lender.


 


No  failure on the part of Lender
to exercise any right or remedy hereunder, whether before or after the
happening of an  Event of Default shall constitute a
waiver thereof, and no waiver of any past Event of  Default shall
constitute waiver of any future Event of Default or of any other Event of
Default. No failure to accelerate the debt evidenced hereby by reason of Event
of Default hereunder, or acceptance of a past due installment, or indulgence
granted from  time to  time shall be construed to
be a waiver of the right to insist upon prompt payment thereafter or to impose
late charges retroactively or prospectively, or shall be deemed to be a
novation of this Note or as a reinstatement of the debt evidenced hereby or as
a waiver of such right of acceleration or any other right, or be construed so  as to preclude the
exercise of any right that Lender may have, whether by the Laws of the State of
Illinois, the State of  Florida, by agreement, or
otherwise; and Borrower and each endorser or guarantor hereby expressly waives
the benefit of any statute or rule of law or equity that would produce a
result contrary to or in conflict with the foregoing. This Note may not be
modified orally, but only by an agreement in writing signed by Lender and
Borrower.


 


23.            No Offsets.


 


No indebtedness evidenced by this Note shall be deemed to have been offset
or shall be offset or compensated by all  or part of any claim,
cause of action, counterclaim or cross claim, whether liquidated or
unliquidated, which Borrower may have or claim to have against Lender now or


 


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hereafter. Furthermore, in
respect to the present indebtedness of, or any future indebtedness incurred by,
Borrower to Lender, Borrower waives, to the fullest extent permitted by law,
the benefits of any applicable Laws, regulation or procedure that substantially
provides that, if (i) cross-demands for money have existed between persons
at any time; (ii) neither demand was barred by the
applicable statute of limitations; and (iii) an action is
thereafter commenced by one such person, then the other may assert in his
answer the defense of payment in that the two demands are compensated so far as
they equal each other, notwithstanding that an independent action asserting the
claim would at the time of filing the answer be barred by the applicable statute
of limitations.


 


24.               Loss, Theft, Destruction or Mutilation of Note.


 


Borrower
shall, if this Note is mutilated, destroyed, lost, or stolen, promptly deliver
to Lender upon Lender’s request, in substitution therefor, a new promissory note
containing the same terms and conditions as this Note with a notation
thereon of the unpaid principal and accrued and unpaid interest and stating that
it is a restated note which entirely supercedes the lost note.  Borrower shall provide fifteen (15) days’ prior notice to Lender before making any duplicate payments to
any third parties in connection with
a lost note.


 


25.               Relationship of Parties.


 


THE RELATIONSHIP BETWEEN
BORROWER AND LENDER IS, AND AT ALL TIMES SHALL REMAIN, SOLELY THAT OF DEBTOR
AND CREDITOR, AND SHALL NOT BE,
OR BE CONSTRUED TO BE, A JOINT VENTURE, EQUITY VENTURE, PARTNERSHIP OR OTHER
RELATIONSHIP OF ANY NATURE.


 


26.                 Notices.


 


Any
notice, demand, request or other communication which any party hereto
may be required or may desire to give hereunder shall be in writing, addressed
as follows and shall be deemed
to have been properly given if hand delivered, if sent by
reputable overnight courier (effective the Business Day following delivery to
such courier), if sent by telecopy with confination of receipt and a hard copy
mailed in accordance with the provisions of this Section 26
(effective the business day following receipt of confirmation of receipt) or if
mailed (effective when received or when receipt thereof is first refused by the
intended recipient of the notice) by United States registered or certified
mail, postage prepaid, return receipt requested:


 


If
to the Borrower:


 


BTS
Monterrey Holdings LLC


17080
Safety Street, Suite 109


Fort
Myers, Florida 33908


Attention:
Jeffrey J. Milton


Confirmation
Number: (239) 579- 1126


Telecopy
Number: (239) 472-2640


 


11

















 


with a copy to:


 


Bingham
McCutchen LLP


3000
K Street, NW. Suite 300


Washington,
D.C. 20007


Attention:
Erik T. Hoffman. Esq.


Confirmation
Number: (202) 373-6134


Telecopy
Number: (202) 424-7645


 


If to the Lender:


 


CORUS
Bank, N.A.


3959
N. Lincoln Avenue


Chicago,
Illinois 60613


Attention:
Chris Barkidjija,


Vice
President


Telecopy
Number: (773) 832 3540


ConfirmationNumber:
(733) 832-3555


 


with a copy to:


 


CORUS
Bank, N.A.


3959
N. Lincoln Avenue


Chicago,
Illinois 60613


Attention:
Joel C. Solomon, Esq.,


General
Counsel - Commercial Lending


Telecopy
Number: (773) 832-3626


Confirmation
Number: (773) 832-3526


 


Refusal to accept delivery
of any notice shall be deemed to constitute receipt of such notice.


 


27.                 Time of the
Essence.


 


Time
is of the essence to each and every provision of this Note, subject to any
applicable notice, grace and/or cure periods provided in the Loan Documents.


 


29.                Non-Recourse.


 


This
Note and Borrower’s obligations hereunder are subject to Section 17.17 of the Loan Agreement.


 


[signature page follows]


 


12

















 


IN
WITNESS WHEREOF, Borrower
has caused this Promissory Note to
be executed and delivered on its behalf on the date first written above.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  BTS  MONTERREY
  HOLDINGS LLC,
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  BTS
  Monterrey LLC, a Delaware limited liability company, its Sole Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  BTS
  Development Monterrey LLC,  a Delaware limited liability company, its
  Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Jeffrey Milton

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Jeffrey
  Milton

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized
  Representative

  



 


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