Amended and Restated Promissory Note (Bankers Credit -- $7,860,000)


    
      

    

    Exhibit
      10.127

     

    
 

    Amended
      and Restated Promissory Note

    


    


    $7,860,000.00                                                                                                                                                                                                                                                                        February
      1, 2007

    


    FOR
      VALUED RECEIVED:
      to-wit,
      money loaned, Reedy
      Creek Acquisition Company, LLC, a Florida Limited Liability Company, 2462 Sand
      Lake Road, Orlando, FL 32809
      (hereinafter referred to as the “Borrower”)
      promises to pay to the order of Emmett
      J. Foster as Trustee of the Emmett J. Foster Revocable Trust dated July 13,
      1995
      and RLK, L.L.C., a West Virginia Limited Liability Company (the “Lenders” or
      collectively as the “Lender”) at c/o Bankers Credit Corporation, a Florida
      Corporation, 1053
      Maitland Center Commons Blvd., Suite 201, Maitland, FL 32751, or wherever else
      Lender may specify, the sum of Seven
      Million Eight Hundred Sixty Thousand and 00/100 dollars ($7,860,000.00)
with
      interest until paid.

    


    Contract
      Rate of Interest:

    


    The
      principal balance of this Note outstanding from time to time shall bear interest
      at an adjustable rate of interest equal to the Wall Street Journal published
      prime rate plus six and three-fourths percent (6.75%)
      per
      annum, simple interest, provided however that the minimum rate of interest
      shall
      never be less than fifteen percent (15%) per annum, simple interest, nor ever
      be
      more than the highest rate allowable under Florida Law.

    


    Terms
      of Payment:

    


    A.     Interest
      accrued at the rate aforesaid on the outstanding principal balance shall be
      due
      and payable monthly beginning March 1, 2007 and continuing thereafter on the
      1st
      day of each month for eleven (11) consecutive months, until February 1, 2008,
      (the “Maturity Date”) at which time the entire unpaid principal balance of the
      Note and all accrued and unpaid interest thereon shall be due and
      payable.

    


    B.     Unless
      sooner
      paid, the entire remaining principal balance of this Note, plus accrued and
      unpaid interest thereon, shall be due and payable, in full, on February
      1, 2008 (the ‘Maturity Date”)

    


    C.     This
      Note may be prepaid in whole or in part prior without payment of a penalty.
      Provided, however, when this loan is paid in full on the Maturity Date or
      sooner, as the case may be, the Borrower shall pay an “Exit Fee” equal to one
      percent (1%) of the funds advanced by the Lender under the terms of this Note.
      The Exit Fee is in addition to any other charges which may also be
      applicable.

     

     
Borrower
      hereby further
      covenants, warrants and agrees as follows:

    


      Late
      Payment; Default
      Rate.
      Borrower agrees to pay a late charge equal to TEN percent (10.00%) of each
      payment of principal and/or interest which is not paid within FIVE (5) days
      of
      thedate on which it is due. At Lender’s option, the contract rate shall be the
      highest rate allowed under Florida Law per annum, commencing with and continuing
      for so long as the loan or any portion thereof is in default (as hereinafter
      defined).

     


    
      
         

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


     

    


    Costs
      of Collection.
      Upon
      Borrower’s default and where Lender deems it necessary or proper to employ an
      attorney to enforce collection of any unpaid balance of this Note or to
      otherwise protect its interest hereunder; then Borrower agrees to pay Lender’s
      reasonable attorney’s fee (including appellate costs, if any) and collection
      costs. Liability for reasonable attorney’s fees and costs shall exist whether or
      not any suit or proceeding is commenced.

    


    Collateral.
      Payment
      of this Note, and all obligations of the undersigned Borrower hereunder (the
      “Obligations”)
      to
      Lender, its successors and assigns, is secured, inter alia, by that certain
      Mortgage of even date herewith (the “Security
      Document”),
      executed and delivered by Borrower, with the Security Documents recorded or
      to
      be recorded in the Public Records of Osceola
      County,
      Florida, encumbering the real property (the “Property”)
      described therein. The Security Documents are, by this reference, incorporated
      herein. This Note is further secured by any other property of Borrower in the
      possession of, or in which Lender holds a security interest under any other
      loans between Borrower and Lender.

    


    Remedies;
      Non-waiver of Default.
      The
      remedies of Lender, as provided herein, in the Security Documents shall be
      cumulative and concurrent, and may be pursued singly, successively or together,
      at the sole discretion of Lender and may be exercised as often as occasion
      therefor shall arise. No act of omission or commission of Lender, including
      specifically any failure to exercise any right, remedy or recourse, shall be
      effective as a waiver thereof unless it is set forth in a written document
      executed by Lender and then only to the extent specifically recited therein.
      A
      waiver or release with reference to one event shall not be construed as
      continuing, as a bar to, or as a waiver or release of, any subsequent right,
      remedy or recourse as to any subsequent event.

    


    Waivers.
      Borrower and all sureties, endorsers and guarantors of this Note hereby
(a)
      waive
      demand, presentment for payment, notice of nonpayment, protest, notice of
      protest and all other notices, filing of suit and diligence in collecting this
      note, in enforcing any of the security rights of the Lender or in proceeding
      against the Property;
      (b)
      agree to
      any substitution, exchange, addition or release of any of the Property or the
      addition of release of any party or person primarily or secondarily liable
      hereon; (c)
      agree
      that Lender shall not be required first to institute any suit, or to exhaust
      its
      remedies against Borrower or any other person or party to become liable
      hereunder or against the Property in order to enforce payment of this Note;
      (d)
      consent
      to any extension, modification, amendment, rearrangement, renewal or
      postponement of time of payment of this Note and to any other indulgence with
      respect hereto without further notice, consent or consideration to any of the
      foregoing (except the express written release by Lender of any such person),
      and
      shall be and remain jointly and severally, directly and primarily, liable for
      all sums due under this Note, the Security Documents.

    


    Completion
      of Blanks.
      In the
      event any provision(s) of this instrument shall be left blank or incomplete,
      Borrower hereby authorizes and empowers Lender to supply and complete the
      necessary information as a ministerial task consistent with the understanding
      between the parties.

     


    
      
         

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


    Setoff.
      Upon
      the occurrence of any of the “Events
      of Default,”
as
      hereinafter defined, Lender is herewith expressly authorized to exercise its
      right of setoff or bank lien as to any monies deposited in demand, checking,
      time, savings or other accounts of any nature maintained in and with Lender
      by
      any Borrower without advance notice. Said right of setoff shall also be
      exercised and applicable where Lender is indebted to any signer hereof by reason
      of any certificate of deposit, note or otherwise.

    


    Events
      of Default.
      Borrower shall be in default under this Note upon the happening of any of the
      following events, circumstances or conditions; namely:

    


    (a) default
      in the payment within fifteen (15) days of the date when due of any of the
      Obligations of the Borrower hereunder or in connection herewith or any other
      Obligations of Borrower or any affiliate (as defined in 11 U.S.C. §101(a),
      hereinafter “Affiliate”)
      of
      Borrower or any endorser, guarantor or surety for Borrower to Lender, howsoever
      created, primary or secondary, whether direct or indirect, absolute or
      contingent, now or hereafter existing, due or to become due, or of any other
      covenant, warranty or undertaking expressed herein, therein, or in any other
      document establishing said endorsement, guaranty or surety, or any other
      document executed by Borrower in conjunction herewith; or any other document
      or
      agreement made as part of any other loans of Borrower from Lender;
      or

    


    (b) any
      warranty, representation or statement made or furnished to Lender by or on
      behalf of Borrower, or any guarantor, endorser or surety for Borrower in
      connection with this Note or to induce Lender to make the loan to Borrower
      evidenced by this Note which was false in any material respect when made or
      furnished or has become materially false, if such warranty of Borrower or
      guarantor, endorser or surety for Borrower was ongoing in nature;
      or

    


    (c) Borrower
      or any guarantor, endorser or surety for Borrower shall allow the acquisition
      of
      substantially all of the business or assets of Borrower or endorser or guarantor
      or surety for Borrower or a material portion of such business assets if such
      a
      sale is outside Borrower’s or guarantor’s, endorser’s or surety’s ordinary
      course of business or more than fifty percent (50%) of the outstanding stock
      or
      voting power of Borrower in a single transaction or a series of transactions,
      or
      enter into any transaction of merger or consolidation without prior written
      consent of Lender; or

    


    (d) after
      the
      notice provided in the Loan Agreement and expiration of all cure periods
      provided therein, failure of a corporate Borrower or guarantor, endorser or
      surety which is a corporation or limited partnership to maintain its existence
      in good standing; or

    


    (e) upon
      the
      entry of any monetary judgment or the assessment and/or filing of any tax lien
      against Borrower not satisfied or superseded within thirty (30) days, or upon
      the issuance of any writ of garnishment, judicial seizure of, or attachment
      against any property of, debts due or rights of Borrower or any guarantor,
      endorser or surety, to specifically include commencement of any action or
      proceeding to seize monies of Borrower or any guarantor, endorser or surety
      on
      deposit in any bank account with Lender that is not dismissed within thirty
      (30)
      days after Borrower receives notice thereof; or

     

    
 

    
      
         

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


    (f) the
      Borrower or any guarantor, endorser or surety for said Borrower shall be a
      debtor, either voluntary or involuntary, under (and as the term debtor is
      defined in) the Federal Bankruptcy Code and, if involuntary, such proceedings
      are not dismissed within sixty (60) days; or 

    


    (g) after
      the
      notice provided in the Loan Agreement and expiration of all cure periods
      provided therein, failure of Borrower or any guarantor, endorser or surety
      to
      furnish financial statements or other financial information reasonably requested
      by Lender within the time periods allowed by the Loan Documents; or

    


    (h) loss,
      theft, substantial damage, destruction, sale or encumbrance to or of any
      collateral for this Note not adequately covered by insurance; or

    


    (i) after
      the
      notice provided in the Loan Agreement and expiration of all cure periods
      provided therein, should there occur any default in the performance of any
      continuing obligation of the Borrower or any other obligated party under the
      Security Documents or the Loan Documents.

    


    (j) after
      the
      notice provided in the Loan Agreement and expiration of all cure periods
      provided therein, should there occur any default in the performance of any
      continuing obligation of the Borrower or any other obligated party under the
      Security Documents, Loan Documents, or any of them.

    


    Remedies
      on Default (including Powers of Sale).
      Upon
      the occurrence of any of the foregoing events, circumstances or conditions
      of
      default, all of the Obligations evidenced herein and secured hereby shall at
      the
      option of the Lender, immediately be due and payable without notice. Further,
      Lender shall then have all the rights and remedies of a secured party under
      the
      Uniform Commercial Code and the common law, as adopted by the state of Lender’s
      office as set forth herein.

    


    In
      addition, and without limitation thereto, Lender shall have the following
      specific rights and remedies:

    


    1. to
      exercise all remedies available to Lender under the Security Documents and
      the
      Loan Documents;

    


    2. to
      enforce the provisions of this Note in any court of competent
      jurisdiction;

    


    3.  to
      exercise its rights of setoff by applying any monies of Borrower on deposit
      with
      Lender toward payment of the Obligations evidenced or referred to herein or
      secured hereby, without notice. If any process is issued or ordered to be served
      on Lender, seeking to seize Borrower’s rights and/or interest in any bank
      account maintained with Lender, the balance in any said account shall
      immediately be deemed to have been and shall be set off against any and all
      Obligations of Borrower to Lender, as of the time of issuance of any such writ
      or process, whether or not Borrower and/or Lender shall then have been served
      therewith;

     


    
      
         

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
 

    4) to
      apply
      the proceeds realized
      from disposition of any collateral for this Note to satisfy the following terms,
      in the order here listed:

    


    (a) the
      expenses of taking, removing, maintaining, holding for sale, repairing or
      otherwise preparing for sale and selling of said collateral specifically
      including the Lender’s reasonable attorney’s fees (including appellate costs, if
      any) and both legal and collection expenses; 

    


    (b) next,
      to
      the expense of liquidating any liens, security interests, attachments or
      encumbrances upon the property encumbered by the Security Documents, whether
      inferior or superior to the security interest therein created;

    


    (c) and
      finally, to the unpaid principal and all accumulated interest hereunder and
      to
      any other debt owed to Lender by the Borrower.

    


    Any
      surplus, after the satisfaction of the foregoing items (a) through (c) shall
      be
      paid to Borrower or to any other party lawfully entitled thereto and known
      to
      this Lender. Further, if proceeds realized from disposition of the any
      collateral for this Note shall fail to satisfy and of the foregoing items (a)
      through (c), Borrower shall forthwith pay deficiency balance to Lender. NOTHING
      HEREIN SHALL BE DEEMED TO REQUIRE THE LENDER TO PURSUE ANY PARTICULAR REMEDY
      AVAILABLE HEREUNDER PRIOR TO THE PURSUIT OF ANY OTHER REMEDY. NOTHING HEREIN
      SHALL BE DEEMED TO REQUIRE THE LENDER TO SEEK RECOURSE AGAINST ANY COLLATERAL
      FOR THIS NOTE PRIOR TO THE EXERCISE OF ANY OTHER REMEDY AVAILABLE TO THE LENDER
      HEREUNDER. 

    


    Usury
      Savings Clause.

    


    It
      is the
      intent of the Borrower and the Lender to cause this Note to be in strict
      compliance with applicable usury law. None of the terms of this Note or the
      Mortgage shall be construed to create a contract to pay for the use, forbearance
      or detention of money, or interest at a rate in excess of the maximum interest
      rate permitted by applicable law. Neither Borrower nor any other party liable
      for payment of this Note shall ever be required to pay interest on this Note
      in
      excess of the maximum rate permitted by the law and the provisions of this
      paragraph shall control over all other terms of this Note and the Mortgage.
      The
      total interest payable hereunder shall not in any one year exceed the highest
      lawful rate of interest permitted in the State of Florida.

    


    


    Miscellaneous.

    


    No
      waivers, amendments or modifications of this Note shall be valid unless in
      writing. 

    


    All
      terms
      and expressions contained herein which are defined in Articles 1, 3, 4 or 9
      of
      the Uniform Commercial Code of the State of Florida shall have the same meaning
      herein as in said Articles of said Code.

     


    
      
         

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
 

    All
      rights of Lender hereunder shall inure to the benefit of its successors and
      assigns; and all obligations of Borrower shall bind his heirs, executors,
      administrators, successors and/or assigns. 

    


    If
      more
      than one person has signed this Note, such parties are jointly and severally
      obligated hereunder. Further, use of the masculine pronoun herein shall include
      the feminine and neuter and

    also
      the
      plural.

    


    If
      any
      provision of this Note shall be prohibited or invalid under applicable law,
      such
      provision shall be ineffective but only to the extent of such prohibition of
      invalidity, without invalidating the remainder of such provision or the
      remaining provisions of this Note.

    


    As
      used
      herein, the words “Borrower” and “Lender” shall be deemed to include Borrower
      and Lender as defined herein and their respective heirs, personal
      representatives, successors and assigns.

    


    This
      Note
      is executed and delivered at the place of execution and, to the extent permitted
      under the laws of any other state in which it is enforced, shall be construed
      and enforced in accordance with the laws of the State of Florida.

    


    WAIVER
      OF JURY TRIAL.
      BORROWER
      (BY EXECUTION HEREOF) AND LENDER (BY ACCEPTANCE OF THIS NOTE) EACH HEREBY
      KNOWINGLY, VOLUNTARILY AND INTENTIONALLY AGREES, THAT:

    


    1) NEITHER
      BORROWER NOR LENDER, ANY ASSIGNEE, SUCCESSOR, HEIR, OR LEGAL REPRESENTATIVE
      OF
      ANY OF THE SAME SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM
      OR ANY OTHER LITIGATION PROCEDURE ARISING FROM OR BASED UPON THIS NOTE, ANY
      OTHER LOAN AGREEMENT OR ANY LOAN DOCUMENT EVIDENCING, SECURING OR RELATING
      TO
      THE OBLIGATIONS OR TO THE DEALINGS OR RELATIONSHIP BETWEEN OR AMONG THE PARTIES
      HERETO;

    


    2) NEITHER
      THE BORROWER NOR LENDER WILL SEEK TO CONSOLIDATE ANY SUCH ACTION, IN WHICH
      A
      JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS
      NOT
      BEEN OR CANNOT BE WAIVED;

    


    3) THE
      PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES HERETO,
      AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS;

    


    4) NEITHER
      THE BORROWER NOR LENDER HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER
      PARTY THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL
      INSTANCES; AND 

     


    
      
         

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
 

    5) THIS
      PROVISION IS A MATERIAL INDUCEMENT FOR LENDER TO ENTER INTO THIS
      TRANSACTION.

    


    IN
      WITNESS WHEREOF,
      Borrower, on the day and year first written above, has caused this Note to
      be
      executed under seal by (i)
      if a
      corporation, partnership or other entity, its duly authorized officer(s) or
      partner(s), as applicable, or (ii)
      if by
      individuals, hereunto setting their hands and seals.

    


    Reedy
      Creek Acquisition Company, LLC,

    a
      Florida Limited Liability Company:

    


    


    


    By:
      /s/ Malcolm J. Wright

           
      Malcolm J. Wright

           
      Manager/Managing
      Member