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 FAVOR
OF AMSOUTH BANK, A STATE BANKING CORPORATION, DATED OCTOBER 30, 2002 IN THE
ORIGINAL PRINCIPAL AMOUNT OF FIFTEEN MILLION ONE HUNDRED FIFTY THOUSAND AND
NO/100 DOLLARS ($15,150,000.00) (THE “ORIGINAL NOTE”).


 


THE OUTSTANDING PRINCIPAL BALANCE OF THE ORIGINAL NOTE IN THE
AMOUNT OF FOURTEEN MILLION SEVEN HUNDRED EIGHTY-EIGHT THOUSAND SIX HUNDRED
SIXTEEN AND 96/100 DOLLARS ($14,788,616.96) IS EXEMPT FROM FLORIDA DOCUMENTARY
STAMP TAXES PURSUANT TO FLORIDA STATUTES SECTION 201.09 AND FLORIDA
ADMINISTRATIVE CODE RULE 12B-4.054 AND EXEMPT FROM FLORIDA INTANGIBLE TAXES
PURSUANT TO FLORIDA STATUTES SECTION 199.143. THE ORIGINAL OF THE AFORESAID
NOTE IS ATTACHED HERETO. FLORIDA DOCUMENTARY STAMP TAXES AND FLORIDA INTANGIBLE
TAXES ARE BEING PAID IN CONNECTION WITH THE AMOUNT OF ONE MILLION SIXTY ONE
THOUSAND THREE HUNDRED EIGHTY-THREE AND 04/100 DOLLARS ($1,061,383.04) BEING
ADVANCED IN CONNECTION HEREWITH.  DOCUMENTARY STAMPS IN THE AMOUNT OF THREE
THOUSAND SEVEN HUNDRED FOURTEEN AND 90/100 DOLLARS ($3,714.90) HAVE BEEN
AFFIXED TO THE ORIGINAL NOTICE OF FUTURE ADVANCE, MORTGAGE MODIFICATION AND
AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT OF EVEN DATE HEREWITH
WHICH SECURES THIS NOTE.  INTANGIBLE
TAXES 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 & 95
CORP., a Florida corporation
whose Federal Tax Identification Number is 65-0984228, LOT 90,
L.L.C., a Florida corporation whose Federal Tax Identification
Number is 


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


 





















 


DOLLARS ($15,850,000.00), together with
interest 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 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:


 


Payment Provision:


 


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


 


(B)           Thereafter, monthly installments of principal and interest
on the unpaid principal balance of this Note at the rate of Six and Fifty-Four
One Hundredths percent (6.54%) per annum, shall be due and payable in one
hundred nineteen (119) consecutive monthly installments commencing on April 1,
2004 and continuing on the first day of each calendar month thereafter, with
each such installment to be in the sum of One Hundred Seven Thousand Four
Hundred Sixteen and 84/100 Dollars ($107,416.84), 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 March 1, 2014 (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


 


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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 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 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.


 


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(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 Notice of Future Advance, Mortgage
Modification 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 and
located in Brevard 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


 


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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, which
remains uncured beyond any applicable grace or cure period, 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, 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.  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 thirty (30) days
after the filing of same.


 


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.


 


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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. 


 


Exculpation.


 


The liability of Borrower with respect to the payment
of principal and interest 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


 


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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 Ernie Euler and Mike Renfro (the “Guarantors”)
to Lender (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 for any
loss or damage suffered by Lender due to:


 


(1)           fraud, willful misconduct or material
misrepresentation made by Borrower or Guarantors in or in connection with the
Application for Mortgage Loan dated February 18, 2003, modified by Lender on
May 27, 2003, further modified by Lender on January 27, 2003, and accepted by
Borrower on                                 and
any subsequent amendments thereto, this Note or any of the other Loan
Documents;


 


(2)           the failure of Borrower 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 incurred by Borrower,
charges for materials incurred by Borrower or any other charges incurred by
Borrower 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)           Borrower’s 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;


 


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


 


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(7)           the failure by Borrower 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 collected by or remitted to
Lender, 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 in violation of Hazardous Waste Laws and from the violation
of Hazardous Waste Laws (as defined in the Mortgage).  Borrower shall not be liable hereunder if the
Property becomes contaminated (a) subsequent to Lender’s acquisition of the
Property by foreclosure or acceptance of a deed in lieu thereof, or (b)
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 with respect to
compliance with Hazardous Waste Laws under the Mortgage and the Indemnity
Agreement by Borrower and executed of even date herewith. 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 Hazardous Waste Laws. The
burden of proof under this subparagraph with regard to establishing the date
upon which


 


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such
Hazardous Materials were placed or appeared in, on or under the Property shall
be upon Borrower;


 


(12)         (i) any and all costs incurred in order to cause the Property to comply
with any applicable Accessibility Laws (as defined in the Mortgage) and (ii)
any indemnity or other agreements to hold Lender harmless from and against any
and all losses, liabilities, damages, injuries, costs or expenses of any kind
arising as a result of non-compliance with any applicable Accessibility
Laws.  Borrower shall not be liable
hereunder for compliance with any applicable Accessibility Laws that first become
effective, or for any violation of any applicable Accessibility Laws resulting
from alterations or improvements to the Property that are performed 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 pertaining
to any applicable Accessibility Laws pursuant to the terms of the Loan Documents.
 The burden of proof under this
subparagraph with regard to establishing the date upon which such
non-compliance with any Accessibility Laws occurred at the Property shall be
upon Borrower; and


 


(13)         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


 


(14)         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 (14) above, except as specifically
provided in subsections (11) and (12), shall survive the repayment of the Loan
evidenced by this Note, and satisfaction of the Mortgage unless such repayment
is in the full amount of all sums due and owing under the Loan and such
repayment occurs prior to a default under the Loan resulting in the foreclosure
of 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, for
the 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 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 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


 


10





















 


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.


 


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 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 reasonably 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.


 


11





















 


IN WITNESS WHEREOF, Borrower has executed this Note under seal
as 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)

  	
   

  
								



 


12





















 


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


 


STATE OF FLORIDA


COUNTY OF  BREVARD


 


The foregoing instrument was acknowledged before me
this 16th day of February, 2004, by Ernie Euler, as President of WICKHAM & 95 CORP., a Florida corporation on behalf of the
corporation.  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

  
							



 


13





















 


STATE OF FLORIDA


COUNTY OF  BREVARD


 


The foregoing instrument was acknowledged before me
this 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 the
company.  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 me
this 16th day of
February, 2004, by Robert M. Renfro as Manager of LOT 91,
L.L.C., a Florida limited liability company on behalf of the
company.  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

  
								



 


14