**Exhibit 10.490**

 
|   | Borrower Name: | Wickham & 95 Corp. |
|--------|----------------|------------------------|
|   |           | Lot 90, L.L.C.         |
|   |           | Lot 91, L.L.C.         |
|   | Project Name:  | Shoppes at Lake Andrew |
|   |           | Viera, Florida         |

 

**THIS NOTE IS A FUTURE ADVANCE AND RENEWAL NOTE, AMENDING,RESTATING AND RENEWING THAT CERTAIN PROMISSORY NOTE BY BORROWER TO AND IN FAVOROF AMSOUTH BANK, A STATE BANKING CORPORATION, DATED OCTOBER 30, 2002 IN THEORIGINAL PRINCIPAL AMOUNT OF FIFTEEN MILLION ONE HUNDRED FIFTY THOUSAND ANDNO/100 DOLLARS ($15,150,000.00) (THE “ORIGINAL NOTE”).**

 

**THE OUTSTANDING PRINCIPAL BALANCE OF THE ORIGINAL NOTE IN THEAMOUNT OF FOURTEEN MILLION SEVEN HUNDRED EIGHTY-EIGHT THOUSAND SIX HUNDREDSIXTEEN AND 96/100 DOLLARS ($14,788,616.96) IS EXEMPT FROM FLORIDA DOCUMENTARYSTAMP TAXES PURSUANT TO FLORIDA STATUTES SECTION 201.09 AND FLORIDAADMINISTRATIVE CODE RULE 12B-4.054 AND EXEMPT FROM FLORIDA INTANGIBLE TAXESPURSUANT TO FLORIDA STATUTES SECTION 199.143. THE ORIGINAL OF THE AFORESAIDNOTE IS ATTACHED HERETO. FLORIDA DOCUMENTARY STAMP TAXES AND FLORIDA INTANGIBLETAXES ARE BEING PAID IN CONNECTION WITH THE AMOUNT OF ONE MILLION SIXTY ONETHOUSAND THREE HUNDRED EIGHTY-THREE AND 04/100 DOLLARS ($1,061,383.04) BEINGADVANCED IN CONNECTION HEREWITH.  DOCUMENTARY STAMPS IN THE AMOUNT OF THREETHOUSAND SEVEN HUNDRED FOURTEEN AND 90/100 DOLLARS ($3,714.90) HAVE BEENAFFIXED TO THE ORIGINAL NOTICE OF FUTURE ADVANCE, MORTGAGE MODIFICATION ANDAMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT OF EVEN DATE HEREWITHWHICH SECURES THIS NOTE.  INTANGIBLETAXES IN THE AMOUNT OF TWO THOUSAND ONE HUNDRED TWENTY-TWO AND 77/100 DOLLARS($2,122.77) ARE BEING PAID IN CONNECTION HEREWITH.**

 

**FUTURE****ADVANCE****AND RENEWAL****NOTE**

 

| $15,850,000.00 |   | Orlando,  Florida    |
|----------------|--------|----------------------|
|           |   |                 |
|           |   | February  26th, 2004 |

 

**FOR VALUE RECEIVED, THE UNDERSIGNED, WICKHAM &**95CORP.,**a Florida corporationwhose Federal Tax Identification Number is 65-0984228, **LOT 90,L.L.C.,** a Florida corporation whose Federal Tax IdentificationNumber is 

68-0522290, and **LOT 91, L.L.C.,** a Florida corporation whose Federal TaxIdentification Number is 68-0522288 (collectively, the “Borrower”) promises topay to the order of **NATIONWIDE LIFE INSURANCECOMPANY,** an Ohio corporation, its successors and assigns (“Lender”),the principal sum of FIFTEEN MILLION EIGHT HUNDRED FIFTY THOUSAND AND NO/100

 

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DOLLARS ($15,850,000.00), together withinterest on the principal balance of this Future Advance and Renewal Note (the “Note”),from time to time remaining unpaid, from the date of disbursement by Lender atthe applicable interest rate hereinafter set forth together with all other sumsdue hereunder or under the terms of the Mortgage (as hereinafter defined) inlawful money of the United States of America which shall be legal tender inpayment of all debts at the time of such payment the (“Loan”).  Both principal and interest and all other sumsdue hereunder shall be payable at the office of Lender at One Nationwide Plaza,Columbus, Ohio 

43215-2220, Attention: Real Estate InvestmentDepartment, 34T, or at such other place either within or without the State ofOhio as Lender may from time to time designate. Said principal and interestshall be paid over a term, at the times, and in the manner set forth below, towit:

 

Payment Provision:

 

(A)          Interest accrued on the unpaid principal balance of thisNote from the date of disbursement hereof through February 29, 2004 at the rateof Six and Fifty-Four One Hundredths percent (6.54%) per annum, shall be dueand payable on the disbursement date of the Loan;

 

(B)           Thereafter, monthly installments of principal and intereston the unpaid principal balance of this Note at the rate of Six and Fifty-FourOne Hundredths percent (6.54%) per annum, shall be due and payable in onehundred nineteen (119) consecutive monthly installments commencing on April 1,2004 and continuing on the first day of each calendar month thereafter, witheach such installment to be in the sum of One Hundred Seven Thousand FourHundred Sixteen and 84/100 Dollars ($107,416.84), without deduction or set-off.

 

Maturity.

 

The unpaid principal balanceof this Note and all accrued unpaid interest thereon, (if not sooner paid),shall be due and payable in full on March 1, 2014 (the “Maturity Date”).

 

Application of Payments.

 

All payments shall beapplied first to any late payment or other such charges as provided in thisNote or in the Mortgage, then to accrued unpaid interest on this Note, and thebalance, if any, shall be applied to the reduction of the outstanding principalbalance of this Note (subject to the terms hereof). Interest due hereundershall 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 paymentprovision (A) above which shall be calculated on the actual number of days;provided, however, in no event shall the rate of interest payable under theterms of this Note exceed the maximum rate of interest permitted underapplicable law.

 

Late Payment Charge.

 

Prior to the acceleration ormaturity of this Note, Lender may collect a late payment charge in an amountequal to five percent (5%) of any full monthly installment not received by thedue date. Such late payment charge shall constitute liquidated damages for thepurpose of covering the extra expenses involved in handling delinquentinstallments and Lender may collect such late payment charges even though ithas not given any notice to Borrower of such late payment or a cure period, ifany, has not passed; provided that such late payment charge shall

 

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not, together with other interest to be paid on the indebtednessevidenced by this Note or indebtedness arising under any instrument securingthe payment hereof, exceed the maximum interest permitted under applicable law.Borrower acknowledges that the late payment charge is a fair and reasonableestimate, considering all of the circumstances existing on the date ofexecution of this Note, of the cost the Lender will incur by reason of suchlate payment.

 

Prepayment.

 

(A)          Except as hereinafter provided,Borrower shall not have the right to prepay all or any part of the Loan at anytime. Borrower shall have the right to prepay, in full but not in part, theLoan evidenced by this Note, provided that, as conditions precedent, Borrower:(i) gives Lender not less than thirty (30) days’ prior Written Notice (asdefined 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 theoutstanding principal balance of this Note at the time of prepayment; or (ii) anamount equal to the sum of (a) the present value of the scheduled monthlypayments 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 underthis Note on the Maturity Date (assuming all scheduled monthly payments dueprior to the Maturity Date were made when due), minus (c) the outstandingprincipal balance of this Note as of the date of prepayment. The present valuesdescribed in (a) and (b) shall be computed on a monthly basis as of the date ofprepayment discounted at the yield-to-maturity of the U.S. Treasury Note orBond closest in maturity to the Maturity Date of this Note as reported in TheWall Street Journal (or, if The Wall Street Journal is no longerpublished, as reported in such other daily financial publication of nationalcirculation which shall be designated by Lender) on the fifth (5) business daypreceding the date of prepayment.  Borrower shall be obligated to prepay thisNote on the date set forth in the notice to Lender required hereinabove, aftersuch notice has been delivered to Lender. Notwithstanding the foregoing or anyother provision herein to the contrary, if Lender elects to apply insuranceproceeds, condemnation awards, or any escrowed amounts, if applicable, to thereduction of the outstanding principal balance of this Note in the mannerprovided in the Mortgage, no Prepayment Premium shall be due or payable as aresult of such application, and the monthly installments due and payablehereunder shall be reduced accordingly.

 

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

 

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

 

Additional Conditions.

 

ThisNote is secured by, among other things, a Notice of Future Advance, MortgageModification and Amended and Restated Mortgage and Security Agreement (the “Mortgage”)and by an Amended and Restated Assignment of Leases, Rents and Profits (the “Assignment”)of even date herewith, encumbering certain real property described therein andlocated in Brevard County, State of Florida and certain other property, all asmore particularly described in the Mortgage (collectively, the “Property”).  The Mortgage and the Assignment contain termsand provisions which provide grounds for acceleration of the Loan evidenced bythis Note, together with additional remedies in the event of default hereunderor thereunder. Failure on the part of Lender to exercise any right grantedherein or in the Mortgage or the Assignment or any other Loan Document shallnot constitute a waiver of such right, or preclude Lender’s subsequent exerciseand enforcement thereof. This Note, the Mortgage, the Assignment and all otherdocuments and instruments executed as further evidence of, as additionalsecurity for, or executed in connection with, the Loan evidenced by this Noteare hereinafter collectively referred to as the “Loan Documents”.

 

Exceptas otherwise provided herein, all parties to this Note, including endorsers,sureties and guarantors, if any, hereby jointly and severally waive presentmentfor payment, demand, protest, notice of protest, notice of demand, notice ofnonpayment, notice of dishonor, notice of intent to accelerate the maturity ofthis Note, notice of acceleration of the maturity of this Note, and any and allother notices and demands whatsoever, and agree to remain bound hereby untilthe principal, interest and all other obligations arising under this Note arepaid in full, notwithstanding any extensions of time for payment which may begranted by Lender, even though the period of extension be indefinite, andnotwithstanding any inaction by, or failure to assert any legal rightsavailable to Lender pursuant to the terms and conditions of this Note.

 

Ifthe obligations evidenced by this Note, or any part thereof, are placed in thehands of an attorney or other person for collection, whether by suit orotherwise, at any time, or from time to time, Borrower shall be liable toLender, in each instance, for all costs and expenses incurred in connectiontherewith, including, without limitation, Reasonable Attorneys’ Fees (ashereinafter defined).

 

Default.

 

IfBorrower 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 entireoutstanding principal balance of this Note, together with all accrued unpaidinterest thereon and all other obligations arising under this Note or any ofthe other Loan Documents, may be accelerated by Lender and may become and beimmediately due and payable then or thereafter as Lender may elect, regardlessof the Maturity Date hereof. All such amounts shall bear interest aftermaturity, by acceleration or otherwise, at the lesser of either: (i)**thehighest rate of interest then allowed by the laws of the

 

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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, whichremains uncured beyond any applicable grace or cure period, Lender may applyany sums received, including but not limited to insurance proceeds orcondemnation awards, to any amount then due and owing hereunder or under theterms of any of the other Loan Documents as Lender may determine.  Neither the right nor the exercise of theright herein granted unto Lender to apply such proceeds as aforesaid shallserve to cure the default or preclude Lender from exercising its option tocause the entire Loan evidenced by this Note to become immediately due andpayable by reason of Borrower’s default under the terms of this Note or any ofthe other Loan Documents.

 

Notwithstanding any provisions herein to the contrary,Lender’s right, power and privilege to accelerate the maturity of theindebtedness evidenced hereby shall be conditioned upon, with respect to anyNon-Monetary Default (as hereinafter defined), Lender giving Borrower WrittenNotice of such Non-Monetary Default and a thirty (30)-day period, after thedate of such notice, within which to cure such Non-Monetary Default, unlesssuch Non-Monetary Default cannot reasonably be cured within said thirty(30)-day time period, in which event Borrower shall have an extended period oftime to complete such cure, provided that action to cure such Non-MonetaryDefault has commenced within said thirty (30)-day period and Borrower is, inLender’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 thanninety (90) days.  Any notice requiredhereunder shall be given as provided in the Mortgage. Lender shall have noobligation to give Borrower notice of, or any period to cure, any MonetaryDefault or any Incurable Default (as hereinafter defined) prior to exercisingLender’s right, power and privilege to accelerate the maturity of the Loanevidenced hereby, to declare the same to be immediately due and payable, and toexercise all other rights and remedies herein granted or otherwise available toLender at law or in equity.  As usedherein, the term “Monetary Default” shall mean any default which can be curedby the payment of money, including but not limited to, the payment of principaland/or interest due under this Note and the payment of taxes, assessments andinsurance premiums when due as provided in the Mortgage.  As used herein, the term “Non-MonetaryDefault” shall mean any default which is not a Monetary Default or an IncurableDefault.  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 inBorrower in violation of the covenants of the Mortgage; or (ii) if Borrower, orany person or entity comprising Borrower, should make an assignment for thebenefit of creditors, become insolvent, or file (or have filed against it) apetition in bankruptcy (including but not limited to, a petition seeking arearrangement or reorganization) which is not dismissed within thirty (30) daysafter the filing of same.

 

Notwithstanding anyprovision of this Note to the contrary, during any period of default andregardless of any cure period applicable to such default, in each instanceunder this Note, the Mortgage, or any of the other Loan Documents in whicheither: (i) Borrower is permitted to take a material action without Lender’sconsent; or (ii) Lender’s consent is to be exercised reasonably, Lender’sconsent shall be required and shall be granted or withheld in Lender’s sole andabsolute discretion.

 

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Savings Clause; Severability.

 

Itis the intent of Borrower and Lender in the execution of this Note and allother instruments now or hereafter securing this Note to contract in strictcompliance with applicable usury law. In furtherance thereof, Lender andBorrower stipulate and agree that none of the terms and provisions contained inthis Note, or in any other instrument executed in connection herewith,shall ever be construed to create a contract to pay interest at a rate inexcess of the maximum interest rate permitted to be charged by applicablelaw.  Neither Borrower nor any guarantors,endorsers or other parties now or hereafter becoming liable for payment of thisNote shall ever be required to pay interest on this Note at a rate in excess ofthe maximum interest that may be lawfully charged under applicable law, and theprovisions of this section shall control over all other provisions of this Noteand any other instruments now or hereafter executed in connection herewithwhich may be in apparent conflict herewith. Lender expressly disavows any intention to charge or collect excessiveunearned interest or finance charges in the event the maturity of this Note isaccelerated. If the maturity of this Note shall be accelerated for any reasonor if the principal of this Note is paid prior to the end of the term of thisNote, and as a result thereof the interest received for the actual period ofexistence of the Loan evidenced by this Note exceeds the maximum permitted byapplicable law, Lender shall refund to Borrower the amount of such excess andthereby shall render inapplicable any and all penalties of any kind provided byapplicable law as a result of such excess interest.  In the event that Lender shall collect monieswhich are deemed to constitute interest which would increase the effective interestrate on this Note to a rate in excess of that permitted to be charged by applicablelaw, all such sums deemed to constitute interest in excess of the lawful rateshall, upon such determination be immediately returned to Borrower, in whichevent any and all penalties of any kind under applicable law as a result ofsuch excess interest shall be inapplicable. By execution of this Note, Borrower acknowledges that itbelieves the Loan evidenced by this Note to be non-usurious and agrees**that if, at any time, Borrower shouldhave reason to believe that such Loan is in fact usurious, it will give Lendernotice 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 correctsuch condition if in fact such exists. The term “applicable law” or “applicableusury law” as used in this Note shall mean the laws of the State of Florida orthe laws of the United States, whichever laws allow the greater rate ofinterest and do not violate the laws of the State of Florida, as such laws nowexist or may be changed or amended or come into effect in the future. If anyclauses or provisions herein contained operate or would prospectively operateto invalidate this Note, then such clauses or provisions only shall be held fornaught, as though not herein contained and the remainder of this Note shallremain operative and in full force and effect. 

 

Exculpation.

 

The liability of Borrower with respect to the paymentof principal and interest shall be “non-recourse”. Except as hereinafterprovided, Lender’s source of satisfaction of Borrower’s obligations under thisNote and the other Loan Documents shall be limited to the Property and Lender’sreceipt of the rents, issues and profits from the Property and any othersecurity or

 

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collateral now or hereafter held by Lender, and Lender shall not seekto procure payment out of any other assets of Borrower, or any person or entitycomprising Borrower, or to seek judgment (except as hereinafter provided) forany sums which are or may be payable under this Note or any of the other LoanDocuments, as well as any claim or judgment (except as hereafter provided) forany deficiency remaining after foreclosure of the Mortgage. Notwithstanding theforegoing, nothing herein contained shall be deemed to be a release orimpairment of the Loan evidenced by this Note or the security therefor intendedby the other Loan Documents, or be deemed to preclude Lender from exercisingits rights to foreclose the Mortgage or to enforce any of its other rights orremedies under the Loan Documents, including but not limited to that certainGuaranty of even date herewith from Ernie Euler and Mike Renfro (the “Guarantors”)to Lender (the “Guaranty”).

 

Notwithstanding the foregoing, it is expresslyunderstood and agreed that the aforesaid limitation on liability shall in noway affect or apply to the continued personal liability of Borrower for anyloss or damage suffered by Lender due to:

 

(1)           fraud, willful misconduct or materialmisrepresentation made by Borrower or Guarantors in or in connection with theApplication for Mortgage Loan dated February 18, 2003, modified by Lender onMay 27, 2003, further modified by Lender on January 27, 2003, and accepted byBorrower on                                 andany subsequent amendments thereto, this Note or any of the other LoanDocuments;

 

(2)           the failure of Borrower to pay taxes whichaccrue prior to Lender taking control of the Property or to pay assessments orany other governmental impositions, charges for labor incurred by Borrower,charges for materials incurred by Borrower or any other charges incurred byBorrower 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 ofthe sale, condemnation or transfer in lieu of condemnation of any portion ofthe Property; or (iii) rentals received by or on behalf of Borrower subsequentto the date on which Lender makes written demand therefor pursuant to any ofthe Loan Documents;

 

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

 

(5)           Borrower’s failure to return to Lender allunearned advance rentals and security deposits that have been paid by tenantsof the Property to the extent that such amounts have not been refunded to orforfeited by such tenants;

 

(6)           the failure by Borrower to pay any and alltenant improvement allowances owed to tenants leasing space in the Property;

 

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(7)           the failure by Borrower to pay to Lender anyand all fees paid to Borrower by any tenant of the Property which fees permitthe tenant to terminate its lease or otherwise abandon or vacate its leasedpremises;

 

(8)           loss by fire or any other casualty to theextent not compensated by insurance proceeds collected by or remitted toLender, as a result of Borrower’s failure to comply with the insuranceprovisions of the Mortgage;

 

(9)           the failure to return to or reimburse Lenderfor all Fixtures and Personal Property (as defined in the Mortgage) owned byBorrower and taken from the Property by or on behalf of Borrower, out of theordinary course of business, and not replaced by items with values equal to orgreater than the original values of the Fixtures and Personal Property soremoved;

 

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

 

(11)         (i) the removal of any chemical, material orsubstance in excess of legal limits or which is required by any governmentalentity, 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 thehealth and safety of the occupants of the Property (which substances are alsofurther defined in the Mortgage as “Hazardous Materials”), regardless of the sourceof origination (including sources off the Property which migrate onto theProperty or its groundwater); (ii) the restoration of the Property to complywith all governmental regulations pertaining to Hazardous Materials found in,on or under the Property, regardless of the source of origination (includingsources off the Property which migrate onto the Property or its groundwater);and (iii) any indemnity or other agreement to hold Lender harmless from andagainst any and all losses, liabilities, damages, injuries, costs and expensesof any and every kind arising as a result of the existence and/or removal ofHazardous Materials in violation of Hazardous Waste Laws and from the violationof Hazardous Waste Laws (as defined in the Mortgage).  Borrower shall not be liable hereunder if theProperty becomes contaminated (a) subsequent to Lender’s acquisition of theProperty by foreclosure or acceptance of a deed in lieu thereof, or (b)subsequent to any transfer of ownership of the Property which was approved orauthorized in writing by Lender pursuant to the Mortgage, provided that suchtransferee assumes in writing all obligations of Borrower with respect tocompliance with Hazardous Waste Laws under the Mortgage and the IndemnityAgreement by Borrower and executed of even date herewith. Liability under thissubsection (11) shall extend beyond repayment of the Loan and compliance withthe terms of the Note and compliance with the terms of the Mortgage unlessBorrower at such time provides Lender with an environmental assessment reportacceptable to Lender, in Lender’s sole discretion, showing the Property to befree of Hazardous Materials and not in violation of Hazardous Waste Laws. Theburden of proof under this subparagraph with regard to establishing the dateupon which

 

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suchHazardous Materials were placed or appeared in, on or under the Property shallbe upon Borrower;

 

(12)         (i) any and all costs incurred in order to cause the Property to complywith any applicable Accessibility Laws (as defined in the Mortgage) and (ii)any indemnity or other agreements to hold Lender harmless from and against anyand all losses, liabilities, damages, injuries, costs or expenses of any kindarising as a result of non-compliance with any applicable AccessibilityLaws.  Borrower shall not be liablehereunder for compliance with any applicable Accessibility Laws that first becomeeffective, or for any violation of any applicable Accessibility Laws resultingfrom alterations or improvements to the Property that are performed subsequentto Lender’s acquisition of the Property by foreclosure or acceptance of a deedin lieu thereof or subsequent to any transfer of ownership of the Property whichwas approved or authorized in writing by Lender pursuant to the Mortgage, providedthat such transferee assumes in writing all obligations of Borrower pertainingto any applicable Accessibility Laws pursuant to the terms of the Loan Documents. The burden of proof under thissubparagraph with regard to establishing the date upon which suchnon-compliance with any Accessibility Laws occurred at the Property shall beupon Borrower; and

 

(13)         failure to remit to Lender any amounts under any letter of credit (orany renewals and/or replacements thereof) supplied by Borrower to Lender inconnection with the Loan, this Note or any of the other Loan Documents in theevent that the bank issuing such letter of credit becomes insolvent, files orhas filed against it any bankruptcy or similar proceeding or is closed (eithertemporarily or permanently), is placed in receivership, conservatorship orliquidation by the Federal Deposit Insurance Corporation, Resolution TrustCorporation or any other governmental or quasi-governmental entity, orotherwise fails or refuses to honor such letter of credit or otherwise fails tomaintain certain criteria required by Lender; and

 

(14)         failure to timely pay any amounts payable for all state documentarystamp taxes and intangible personal property taxes, if any, which may be leviedor assessed against the Loan, this Note, the Mortgage or any of the other LoanDocuments, together with all interest penalties or charges in connectiontherewith.

 

Theobligations of Borrower in subsections (1) through (14) above, except as specificallyprovided in subsections (11) and (12), shall survive the repayment of the Loanevidenced by this Note, and satisfaction of the Mortgage unless such repaymentis in the full amount of all sums due and owing under the Loan and suchrepayment occurs prior to a default under the Loan resulting in the foreclosureof the Mortgage or transfer of the Property in lieu of foreclosure.

 

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 shall be personally liable, jointly and severally, forthe entire indebtedness evidenced by this Note (including all principal,interest and other charges) in the event (i) Borrower violates the*

 

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*covenant governing the placing of subordinatefinancing on the Property as set forth in the Mortgage; (ii) Borrower violatesthe covenant restricting transfers of interests in the Property or transfers ofownership interests in Borrower as set forth in the Mortgage; or (iii) there isfiled against Borrower or any guarantor or indemnitor of the Loan, a petitionin bankruptcy or for the appointment of a receiver, or there commences underany bankruptcy or insolvency law, proceedings for Borrower’s relief, or for thecompromise, extension, arrangement or adjustment of Borrower’s obligationswhich is not dismissed within thirty (30) days after the filing of same.*

 

Waiver of Jury Trial.

 

BORROWER, TO THE FULL EXTENT PERMITTED BY LAW, HEREBYKNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENTCOUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES HEREBY THE RIGHT TO A TRIALBY JURY IN ANY ACTION OR PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY TORTACTION, AGAINST LENDER, ITS SUCCESSORS AND ASSIGNS, BASED UPON, ARISING OUT OF,OR IN ANY WAY RELATING TO OR IN CONNECTION WITH ANY OF THE LOAN DOCUMENTS, THELOAN OR ANY COURSE OF CONDUCT, ACT, OMISSION, COURSE OF DEALING, STATEMENTS (WHETHERVERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON (INCLUDING, WITHOUT LIMITATION,LENDER’S DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS ORATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH LENDER), IN CONNECTION WITH THELOAN OR THE LOAN DOCUMENTS INCLUDING, WITHOUT LIMITATION, IN ANY COUNTERCLAIMWHICH ANY PARTY MAY BE PERMITTED TO ASSERT THEREUNDER, WHETHER SOUNDING INCONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL LENDER, ITS SUCCESSORS ORASSIGNS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVEDAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS PROFITS OROPPORTUNITY) AND BY ITS EXECUTION HEREOF, BORROWER WAIVES ANY RIGHT TO CLAIM ORSEEK ANY SUCH DAMAGES.

 

Captions.

 

The captions set forth at the beginning of the variousparagraphs of this Note are for convenience only, and shall not be used tointerpret 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 suchattorneys’ then prevailing hourly rates as opposed to any statutory presumptionspecified by any statute then in effect in the State of Florida.

 

Applicable Laws.

 

This Note and the rights and obligations of theparties hereunder shall be governed by, and construed in accordance with, theinternal laws of the State of Florida, without regard to principles ofconflicts of laws.  The parties heretoirrevocably; (i) agree that any suit, action or other legal proceeding arisingout of or relating to this Note may be brought in a court of record

 

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in the State of Florida or in the courts of the United States ofAmerica located in such state; (ii) consent to the non-exclusive jurisdictionof each such court in any suit, action or proceeding; and (iii) waive anyobjection which it may have to the laying of venue of any such suit, action orproceeding in any of such courts and any claim that any such suit, action orproceeding has been brought in an inconvenient forum.

 

Modifications.

 

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

 

Time of the Essence.

 

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

 

Successors and Assigns.

 

The terms, conditions, obligations and liabilities ofthis Note shall be binding upon Borrower, its heirs, personal representatives,successors and assigns, and shall inure to the benefit of Lender, its successorsand 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 andseveral.

 

Authorization.

 

By its signature below, Borrower represents andwarrants that the Loan transaction contemplated by this Note and any of theother Loan Documents have been properly authorized by Borrower’s governing ormanaging body, and that the person signing on behalf of Borrower has been dulyauthorized to sign for, and hereto bind the Borrower.

 

Transfer.

 

Lender may, at any time, sell, transfer or assign thisNote, the Mortgage, the Assignment and the other Loan Documents, and any or allservicing rights with respect thereto, or grant participations therein or issuemortgage pass-through certificates or other securities evidencing a beneficialinterest 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 anycredit rating agency rating such securities (collectively, the “Investor”) andeach prospective Investor, all documents and information which Lender now hasor may hereafter acquire relating to the Loan and to Borrower, any guarantorand the Property, whether furnished by Borrower, any guarantor or otherwise, asLender determines necessary or desirable. Borrower shall execute, acknowledgeand deliver any and all instruments reasonably requested by Lender to satisfysuch purchasers or participants that the unpaid indebtedness evidenced by thisNote is outstanding upon the terms and provisions set out in this Note and theother Loan Documents. To the extent, if any, specified in such assignment orparticipation, such assignee(s) or participant(s) shall have the rights andbenefits with respect to this Note and the other Loan Documents as suchassignee(s) or participant(s) would have if they were the Lender hereunder.

 

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

 

 
|       | **WICKHAM & 95 CORP.,** a  Florida corporation |
|------------|----------------------------------------------------|
|       |                                               |
|       | By:                                                |  /s/ Ernie  Euler |   |
|       | Name:                                              |  Ernie Euler |   |
|       | Its:                                               |   President |   |
|       |                                               |
|       | (CORPORATE SEAL)                                   |   |
|       |                                               |   |
|       |                                               |
|       | **LOT 90, L.L.C.,** a Florida  limited liability   |
|       | company                                            |
|       |                                               |
|       | By:                                                |  /s/ Robert M.  Renfro |   |
|       | Name:                                              | Robert M. Renfro |   |
| ** ** | Its:                                               | Manager | ** ** |
| ** ** |                                               |
|       | (CORPORATE SEAL)                                   |   |
|       |                                               |   |
|       |                                               |
|       | **LOT 91, L.L.C.,** a Florida  limited liability   |
|       | company                                            |
|       |                                               |
|       | By:                                                |  /s/ Robert M.  Renfro |   |
|       | Name:                                              |   Robert M. Renfro |   |
|       | Its:                                               | Manager |   |
|       |                                               |
|       | (CORPORATE SEAL)                                   |   |
|            |                                                    |  |  |  |  |  |  |

 

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Borrower’s Address:

 

c/o Matthew Development

7331 Office Park Place, Suite 200

Viera, Florida 32940

 

 

Wickman & 95 Corp.’s FEI#: 65-0984228

Lot 90, L.L.C.’s FEI#: 68-0522290

Lot 91, L.L.C.’s FEI#: 68-0522288

 

 

Documentary Stamps in the amount of Three Thousand Eight HundredSeventy-Four and 15/100 Dollars ($3,874.15) have been affixed to the originalNotice of Future Advance, Mortgage Modification and Amended and RestatedMortgage and Security Agreement of even date herewith which secures this Note.Intangible Taxes in the amount of Two Thousand Two Hundred Thirteen and 72/100Dollars ($2,213.72) are being paid in connection with the execution of thisNote.

 

**STATE OF FLORIDA**

**COUNTY OF****BREVARD**

 

The foregoing instrument was acknowledged before methis 16th day of February, 2004, by Ernie Euler, as President of **WICKHAM & 95 CORP.,**a Florida corporation on behalf of thecorporation.  He is personally known tome.

 
|   | Notary Public          |
|--------|------------------------|
|   | Name:                  |  Charine Lewis |   |
|   | Commission No.:        | DD174578 |   |
|   | My Commission Expires: | 12-29-06 |   |
|   | (SEAL)                 |
|   |                   |
|   |                   |
|   |                   |  | Charine C Lewis  My Commission DD174578  Expires December 29, 2006 |
|        |                        |  |  |  |  |  |

 

13

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**STATE OF FLORIDA**

**COUNTY OF****BREVARD**

 

The foregoing instrument was acknowledged before methis 16th day of February, 2004, by Robert M. Renfro, as Manager of **LOT 90, L.L.C.,** a Florida limited liability company on behalf of thecompany.  He is personally known to me.

 
|   | Notary Public          |
|--------|------------------------|
|   | Name:                  |  Charine Lewis |   |
|   | Commission No.:        | DD174578 |   |
|   | My Commission Expires: | 12-29-06 |   |
|   |                   |   |
|   | (SEAL)                 |
|   |                   |  | Charine C Lewis  My Commission DD174578  Expires December 29, 2006 |
|        |                        |  |  |  |  |  |  |

 

 

**STATE OF FLORIDA**

**COUNTRY OF BREVARD**

 

The foregoing instrument was acknowledged before methis 16th**day ofFebruary, 2004, by Robert M. Renfro as Manager of **LOT 91,L.L.C.,** a Florida limited liability company on behalf of thecompany.  He is personally known to me.

 
|   | Notary Public          |
|--------|------------------------|
|   | Name:                  |  Charine Lewis |   |
|   | Commission No.:        | DD174578 |   |
|   | My Commission Expires: | 12-29-06 |   |
|   |                   |   |
|   | (SEAL)                 |
|   |                   |
|   |                   |  | Charine C Lewis  My Commission DD174578  Expires December 29, 2006 |
|        |                        |  |  |  |  |  |  |

 

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