**Exhibit 10.1**

 

Loan No.122503

**MORTGAGE NOTE**

 
| $16,000,000 |   | Phoenix,  Arizona |
|-------------|--------|-------------------|
|        |   | August  19, 2004  |

 

1. **PaymentofPrincipalandInterest.**FOR VALUE RECEIVED,AMERIVEST CAMELBACK INC., an Arizona corporation (“Maker”), hereby promises topay to the order of ALLSTATE LIFE INSURANCE COMPANY, an Illinois corporation,and any subsequent holder of this Note (“Holder” or “Holders”), in the mannerhereinafter provided, the principal amount of SIXTEEN MILLION DOLLARS($16,000,000), together with interest on the outstanding principal balance fromthe date of the initial disbursement (for purposes of this Note, “disbursement”means the date funds are wire transferred from Holder’s account) of all or apart of the principal of this Note (“Disbursement Date”) until maturity at therate of five and 82/100 percent (5.82%) per annum (“Contract Rate”) as follows:

(a)                                  on the Disbursement Date,interest only, in advance, accruing from the Disbursement Date to September 4,2004, both inclusive; and

 

(b)                                 in arrears, on the fifthday of October, 2004 and on the fifth day of each month thereafter until thisNote matures, principal and interest in consecutive equal installments of OneHundred One Thousand Three Hundred Thirty-Four and 94/100 Dollars ($101,334.94)(the initial payment and each subsequent payment shall each hereinafter bereferred to as “Monthly Payment”), which amount is calculated using anamortization period of three hundred (300) months; and

 

(c)                                   on September 5, 2014,the entire unpaid principal amount and any interest accrued but remainingunpaid and all other sums due under this Note.

 

Except for the interest payable under Paragraph (a)above, interest shall be payable in arrears and calculated on the basis of a360 day year containing twelve 30 day months. All such payments on account ofthe indebtedness evidenced by this Note shall be first applied to interestaccrued on the unpaid principal amount and the remainder toward reduction ofthe unpaid principal amount.

 

2. **Payment Information.**All paymentsrequired to be made hereunder shall be made during regular business hours toHolder at its office c/o Commercial Mortgage Division, Allstate Plaza South,Suite G5C, 3075 Sanders Road, Northbrook, Illinois 60062, Attention: ServicingManager, with reasonably sufficient information to identify the source andapplication of such payment to Holder’s Loan #122503, or at such other place asHolder may from time to time designate in writing. All payments shall be madein currency of the United States of America without presentment or surrender ofthis 

 

----

Note. Payments made directly to Holder shall be made bytransferring immediately available federal funds by bank wire or interbanktransfer for the account of Holder. Any payment of principal or interestreceived after 1:00 p.m., Chicago time, shall be deemed to have been receivedby Holder on the next business day and shall bear interest accordingly. If andso long as Holder directs Maker to make payments to a servicing agent, thenpayments may be made by check. Payments made by check will be deemed made whenreceived provided that good funds for such check are available uponpresentation of such check by Holder or the servicing agent.

 

3. **SecurityFor Note.**The payment of this Note and all other sums due Holderis secured by: (a) Deed of Trust, Assignment of Leases, Rents and Contracts,Security Agreement and Fixture Filing (“Mortgage”), of even date herewith,granted by Maker, as Trustor, to a trustee in favor of Holder and ALLSTATE LIFEINSURANCE COMPANY OF NEW YORK, a New York corporation (“ALNY”), as beneficiary,covering certain real property, the improvements thereon and certain personalproperty situated in the County of Maricopa, State of Arizona and described inthe Mortgage (“Property”), and (b) those certain instruments of indebtednessand security described as “Related Agreements” in the Mortgage. Except asotherwise defined herein, all of the defined terms contained in the Mortgageand the Related Agreements are hereby incorporated herein by express reference.

4. **Late Charges.**If any MonthlyPayment required under this Note is not paid in full on or before the ninth dayof the month in which such payment is due, Maker acknowledges that Holder willincur extra expenses for the handling of the delinquent payment and servicingthe indebtedness evidenced hereby, and that the exact amount of these extraexpenses is extremely difficult and impractical to ascertain, but that a chargeof five percent (5%) of the amount of the delinquent payment (“Late Charge”)would be a fair approximation of the expense so incurred by Holder. Ifapplicable law requires a lesser charge, however, then the maximum chargepermitted by such law may be charged by Holder for said purpose. Therefore,Maker shall, in such event, without further notice, and without prejudice tothe right of Holder to collect any other amounts provided to be paid hereunderor under the Mortgage, the Related Agreements or any other instrument executedfor purposes of further securing payment of the obligations evidenced by thisNote, or to declare an Event of Default, as defined below, pay to Holderimmediately upon demand the Late Charge to compensate Holder for expensesincurred in handling delinquent payments.

 

5. **InterestPayable Upon Default.**If there occurs an Event of Default, underthis Note or the Mortgage or under any Related Agreement, then the unpaidprincipal amount of this Note, and all accrued and unpaid interest thereonshall bear interest at the Contract Rate plus five percent (5%) per annumcompounded monthly (“Default Rate”) from the date of expiration of anyapplicable cure or grace period until such time, if any, as the Event ofDefault is cured and the Mortgage and this Note are reinstated as permitted byapplicable law, or otherwise until such time as the unpaid principal amount ofthis Note and all other indebtedness evidenced by this Note are fully repaid,whichever is earlier.

 

 

2

----

 

6. **Events ofDefault.**An “Event of Default” shall exist under this Note:

(a)                                  in the event Maker shallfail to make any payment due under this Note, other than the final payment andPrepayment Premium (defined herein), on or before the ninth day of the month inwhich such payment is due;

(b)                                 in the event Maker shallfail to make the final payment or the Prepayment Premium when such payment isdue; or,

(c)                                  if there shall exist an“Event of Default” (as defined therein) under the Mortgage or any of theRelated Agreements.

7. **AdditionalPayments.**Theadditional payments called for under Paragraphs 4 and 5 shall be in additionto, and shall in no way limit, any other rights and remedies provided for inthis Note, the Mortgage, any Related Agreements, or otherwise provided by law.

 

8. **Payment of Taxes and Expenses.**

(a)                                  Maker further promises topay to Holder, immediately upon written notice from Holder: (i) allrecordation, transfer, stamp, documentary or other fees or taxes levied onHolder (exclusive of Holder’s income taxes) by reason of the making orrecording of this Note, the Mortgage or any of the Related Agreements, and (ii)all intangible property taxes levied upon any Holder of this Note or mortgageeunder the Mortgage or secured party under the Related Agreements.

(b)                                 Maker further promises topay to Holder, immediately upon written notice from Holder, all actual costs,expenses, disbursements, escrow fees, title charges and reasonable legal feesand expenses incurred by Holder and its counsel in connection with: (i) thecollection, attempted collection, or negotiation and documentation of anysettlement or workout of any payment due hereunder, and (ii) any suit orproceeding whatsoever in regard to this Note or the protection or enforcementof the lien of any instrument securing this Note, including, withoutlimitation, in any bankruptcy proceeding or judicial or nonjudicial foreclosureproceeding. It is the intent of the parties that Maker pay all expenses andreasonable attorneys’ fees incurred by Holder as a result of Holder’s enteringinto the loan transaction evidenced by this Note.

9. **Prepayment.**Maker is prohibitedfrom prepaying this Note until September 5, 2008 (the “No-Prepayment Period”).Subsequent to the No-Prepayment Period, at any time with thirty (30) days priorwritten notice to Holder, specifying the date of prepayment, Maker will havethe privilege of prepaying the outstanding principal amount together with anyaccrued but unpaid interest, any other sums secured by the Mortgage and theRelated Agreements, and a prepayment premium (“Prepayment Premium”) equal tothe greater of:

 

(a)           1 % of the principal amount prepaid,or

 

(b)          the yield maintenance paymentcalculated as follows:

 

3

----

 

If the Prevailing Interest Rate (as hereinafterdefined) is less than the Contract Rate, the yield maintenance payment shall bethe remainder of (x) minus (y) where “(x)” is the present value of all unpaidinstallments of principal and interest due under this Note from the date ofprepayment to and including the original maturity date of this Note, discountedat the Prevailing Interest Rate, and “(y)” is the outstanding principal balanceof this Note as of the prepayment date. The term “Prevailing Interest Rate” asused herein shall mean the yield to maturity on a United States Treasury Bondor Treasury Note selected by Holder having a maturity date as near as possibleto the original maturity date of this Note and an “ask” price, as close aspossible to par (as published two weeks prior to the specified date ofprepayment in *The Wall Street Journal*orsimilar publication or available from the Federal Reserve Bank of New York),less the Basis Point Adjustment as computed in accordance with Exhibit Aattached hereto to convert the monthly payments to a semi-annual equivalent.

 

Notwithstanding the foregoing, Maker shall have noright to prepay this Note unless at the time of such prepayment Maker alsoprepays in full all amounts due under that certain Mortgage Note of even dateherewith (the “ALNY Note”), made by Maker to the order of ALNY, in theprincipal amount of FIVE MILLION DOLLARS ($5,000,000).

 

No Prepayment Premium shall be due on the principalbalance prepaid within the thirty (30) day period prior to the originalmaturity date of this Note. Written notice of Maker’s election to make aprepayment in full of this Note shall be given in the manner provided fornotices under the Mortgage. Partial prepayment of the outstanding principalamount of this Note shall not be permitted except in accordance with the termsof the Mortgage. In the event of such a permitted partial prepayment, thePrepayment Premium calculated in this Paragraph 9 shall be prorated based onthe amount of the partial prepayment relative to the then current outstandingprincipal balance of this Note.

 

Makeracknowledges that Holder:

 

(a)             hasadvanced the amounts evidenced by this Note with the expectation that suchamounts would be outstanding for a period at least equal to the No-PrepaymentPeriod;

 

(b)          would not have been willing to advancesuch amounts on these terms for a shorter period of time;

(c)             in making the loan evidenced bythis Note, is relying on Maker’s creditworthiness and its agreement to pay instrict accordance with the terms set forth in this Note; and

(d)             wouldnot make the loan without full and complete assurance by Maker of its agreementnot to prepay all or a part of the principal of this Note except as expresslypermitted herein and in the Mortgage. Maker has been advised and acknowledgesthat Holder is relying on the receipt of payments under this Note to, amongother things, match and support its obligations under contracts entered into byHolder with third parties and that in the event of a prepayment, Holder couldsuffer loss

4

----

and additional expenses which are extremely difficultand impractical to ascertain. Accordingly, it is the express intent of Makerand Holder that (i) Maker shall have no right to prepay this Note during theNo-Prepayment Period, (ii) any prepayment of this Note during the No-PrepaymentPeriod shall only occur in the event Holder accelerates payment under this Noteor as otherwise set forth in the Mortgage, (iii) any prepayment described inforegoing clause (ii) shall (unless otherwise expressly permitted in theMortgage) require the payment of a Prepayment Premium calculated as providedfor hereinabove; and (iv) to the extent permitted by applicable law, Maker haswaived, and hereby waives, any right to prepay this Note except as expresslyprovided in the Mortgage or this Note. In the event, notwithstanding theforegoing express intent of Maker and Holder and the express waiver by Maker ofany right to prepay this Note, that the applicable law of the jurisdiction inwhich the Property is located permits Maker to prepay this Note during theNo-Prepayment Period, then the Prepayment Premium described in clause (iii)above shall be paid to Holder as a condition to any such prepayment.

Maker expressly acknowledges that,pursuant to the provisions of this Note and except as otherwise provided inthis Note or the Mortgage, Maker has no right to prepay this Note in whole orin part. In the event any prepayment is required or expressly permitted, Makershall be liable for the payment of the Prepayment Premium unless expresslystated otherwise in the Mortgage. Furthermore, Maker waives any rights it mayhave under any applicable state laws as they relate to any prepaymentrestrictions contained in this Paragraph 9 or otherwise contained in this Noteand expressly acknowledges that Holder has made the loan in reliance upon suchagreements and waiver of Maker and that Holder would not have made the loanwithout such agreements and waiver of Maker. Maker acknowledges that specificweight has been given to the consideration given for such agreements, whichconsideration is the granting of the loan.

 

10. **Evasionof Prepayment Premium.**Maker acknowledges that in the event ofan acceleration of payment of this Note following an Event of Default by Maker,a tender of payment of an amount necessary to satisfy the entire indebtednessevidenced hereby, but not including the Prepayment Premium, made at any timeprior to a foreclosure sale by Maker, its successors or assigns or by anyone onbehalf of Maker, shall be presumed to be and conclusively deemed to constitutea deliberate evasion of the prepayment provisions hereof and shall constitute aprepayment hereunder and shall therefore be subject to the Prepayment Premiumas calculated in accordance with this Note with the date of prepayment beingdeemed the date of occurrence of the foreclosure sale or the tender of paymentof the amount necessary to pay the entire indebtedness evidenced hereby infull, including the Prepayment Premium.

 

11.          **Maker’s Covenants.**Maker agrees that:

 

(a)             this instrument and the rights andobligations of all parties hereunder shall be governed by and construed underthe laws of the state or commonwealth in which the Property is located;

5

----

(b)           the obligation evidenced by this Noteis an exempted transaction under the Truth-in-Lending Act, 15 U.S.C. §1601, etseq. (1982);

(c)           said obligation constitutes abusiness loan for the purpose of the application of any laws that distinguishbetween consumer loans and business loans and that have as their purpose theprotection of consumers in the state or commonwealth in which the Property islocated;

 

(d)           at the option of Holder, the UnitedStates District Court for the district in which the Property is located and anycourt of competent jurisdiction of the state or commonwealth in which theProperty is located shall have jurisdiction in any action, suit or otherproceeding arising out of or relating to any act taken or omitted hereunder orthe enforcement of this Note, the Mortgage and the Related Agreements and Makershall not assert in any such action, suit or other proceeding that it is notpersonally subject to the jurisdiction of such courts, that the action, suit orother proceeding is brought in an inconvenient forum or that the venue of theaction, suit or other proceeding is improper;

 

(e)           it hereby waives any objections tovenue; and

 

(f)            it hereby waives its right to atrial by jury.

12. **Severability.**The parties heretointend and believe that each provision of this Note comports with allapplicable local, state and federal laws and judicial decisions. However, ifany provision or any portion of any provision contained in this Note is held bya court of law to be invalid, illegal, unlawful, void or unenforceable aswritten in any respect, then it is the intent of all parties hereto that suchportion or provision shall be given force to the fullest possible extent thatit is legal, valid and enforceable, that the remainder of this Note shall beconstrued as if such illegal, invalid, unlawful, void or unenforceable portionor provision was not contained therein, and the rights, obligations andinterests of Maker and Holder under the remainder of this Note shall continuein full force and effect.

 

13. **Usury Laws.**Maker agrees to pay aneffective rate of interest which is the stated rate provided for in this Note,plus any additional rate of interest resulting from any charges of interest orin the nature of interest paid or to be paid in connection with the loanevidenced by this Note, including without limitation, any amounts paid pursuantto the provisions of that certain Commitment dated July 30, 2004, by andbetween Holder and Maker. All fees, charges, goods, things in action or othersums or things of value (collectively, the “Additional Sums”) paid or payableby Maker or reserved to Holder, whether pursuant to this Note, the Mortgage orany Related Agreements, which, under the laws of the State of Arizona, areconsidered to be interest, shall, for the purpose of any laws of the State of Arizonawhich may limit the maximum amount of interest to be charged with respect tothe lending transaction evidenced by this Note, be payable by Maker as, andshall be considered to be, additional interest, and for such purposes only, theagreed upon and “contracted rate of interest” shall be the Contract Rateincreased to reflect the payment of such Additional

6

----

Sums as interest, which rate Maker hereby agrees topay. It is the intention of Maker and Holder to conform strictly to the usurylaws now or hereafter in force in the State in which the Property is located,and in the event any interest payable under this Note, the Mortgage, or anyRelated Agreement is found to be usurious, such interest shall be subject toreduction to an amount not to exceed the maximum non-usurious amount forcommercial loans allowed under the usury laws of the State in which theProperty is located as now or hereafter construed by the courts havingjurisdiction over such matters. In the event such interest (whether designatedas interest, service charges, points, or otherwise) does exceed the maximumlegal rate, it shall be:

 

(a)           canceled automatically to the extentthat such interest exceeds the maximum legal rate;

(b)             if already paid, at the option ofHolder, either be rebated to Maker (and Maker hereby agrees to accept suchrebate) or credited on the principal amount of this Note; or

(c)           if this Note has been prepaid infull, then such excess shall be rebated to Maker (and Maker hereby agrees toaccept such rebate).

14. **Acceleration.**Upon the occurrenceof an Event of Default, Holder shall have the right, without demand or notice,to declare the entire principal amount of this Note and/or any Future Advance(as defined in the Mortgage) then outstanding, all accrued and unpaid interestthereon and all other sums payable under this Note, which shall include thePrepayment Premium (calculated as provided for in Paragraph 9 hereinabove), theMortgage or any note evidencing any Future Advance, to be immediately due andpayable and, notwithstanding the stated maturity in this Note or any noteevidencing any Future Advance, all such sums declared due and payable shallthereupon become immediately due and payable. During the existence of suchEvent of Default, Holder may apply payments received on any amounts due underthis Note, the Mortgage, any Related Agreement or any note evidencing anyFuture Advance as Holder may determine in its sole discretion.

 

15. **Waivers by Maker.**As to this Note,the Mortgage, the Related Agreements and any other instruments securing theindebtedness, Maker and all guarantors, sureties and endorsers, severally waiveall applicable exemption rights, whether under any state constitution,homestead laws or otherwise, and also severally waive diligence, valuation andappraisement, presentment for payment, protest and demand, notice of protest,demand and dishonor and diligence in collection and nonpayment of this Note andall other notices in connection with the delivery, acceptance, performance,default, or enforcement of the payment of this Note (except notice of defaultspecifically provided for in the Mortgage and the Related Agreements). To theextent permitted by law, Maker further waives all benefit that might accrue toMaker by virtue of any present or future laws exempting the Property, or anyother property, real or personal, or the proceeds arising from any sale of anysuch property, from attachment, levy,**or sale underexecution, or providing for any stay of execution to be issued on any judgmentrecovered on this Note or in any action to foreclose the

7

----

Mortgage, injunction against sale pursuant to power ofsale, exemption from civil process or extension of time for payment. Makeragrees that any real estate that may be levied upon pursuant to a judgmentobtained by virtue of this Note, or any writ of execution issued thereon, maybe sold upon any such writ in whole or in part in any order desired by Holder.

 

16. **Maker NotReleased.**No delay or omission of Holder to exercise any of itsrights and remedies under this Note, the Mortgage or any Related Agreements atany time following the happening of an Event of Default shall constitute awaiver of the right of Holder to exercise such rights and remedies at a latertime by reason of such Event of Default or by reason of any subsequentlyoccurring Event of Default. The acceptance by Holder of payment of any sumpayable hereunder after the due date of such payment shall not be a waiver ofHolder’s right to either require prompt payment when due of all other sumspayable hereunder or to declare a default for failure to make prompt payment.This Note, or any payment hereunder, may be extended from time to time byagreement in writing between Maker and Holder without in any other wayaffecting the liability and obligations of Maker and endorsers, if any.

 

17. **Nonrecourse.**Except as otherwise set forth in this section, Holder’s recourse under thisNote, the Mortgage and the Related Agreements shall be limited to and satisfiedfrom the Property and the proceeds thereof, the rents and all other incomearising therefrom, the other assets of Maker arising out of the Property whichare given as collateral for this Note, and any other collateral given inwriting to Holder as security for repayment of this Note (all of the foregoingare collectively referred to as the (“Loan Collateral”). Notwithstanding thepreceding sentence:

 

(a)             Holdermay, in accordance with the terms of this Note, the Mortgage or any RelatedAgreement: (i) foreclose the lien of the Mortgage, (ii) take appropriate actionto enforce this Note, the Mortgage and the Related Agreements to realize uponand/or protect the Loan Collateral, (iii) name Maker as a party defendant inany action brought under this Note, the Mortgage or the Related Agreements solong as the exercise of any remedy is limited to the Loan Collateral and onlyto the extent required by applicable law, rule, order, regulation or otherlegal requirement, (iv) pursue all of its rights and remedies against anyguarantor or surety or master tenant, whether or not such guarantor or suretyor master tenant is a partner, member or other owner of Maker, and (v) pursueall of its rights and remedies against Maker and the other indemnitor underthat certain Environmental Indemnity Agreement of even date herewith;

 

(b)             Holder may seek damages or othermonetary relief to the extent of actual monetary loss, or any other remedy atlaw or in equity against Maker and the indemnitor/guarantor under that certainNonrecourse Exception Indemnity Agreement of even date herewith (“NonrecourseIndemnitor”) by reason of or in connection with (i) the failure of Maker to payto Holder, upon demand, all rents, issues and profits of the Property to whichHolder is entitled pursuant to this Note, the Mortgage or the RelatedAgreements following an Event of Default, (ii) any waste of the Property or anywillful act or omission by Maker which damages or materially reduces the valueof the

8

----

Property, (iii) the failure to apply all rents, issuesand profits from the Property to the payment of operating expenses, real estatetaxes, insurance, capital repair items, and the payment of sums due and owingunder this Note, the Mortgage or the Related Agreements prior to any otherexpenditure or distribution by Maker, (iv) the failure to account for and toturn over security deposits (and interest required by law or agreement to bepaid thereon) or prepaid rents during the continuance of an Event of Defaultunder this Note, the Mortgage or any Related Agreements, (v) the failure totimely pay real estate taxes or any regular or special assessments affectingthe Property, (vi) the failure to account for and to turn over real estate taxaccruals during the continuation of a default under this Note, the Mortgage orany Related Agreements, (vii) the failure to maintain casualty and liabilityinsurance as required under the Mortgage or the Related Agreements or to applyinsurance proceeds or condemnation awards relating to the Property or othercollateral in the manner required under applicable provisions of this Note, theMortgage or any Related Agreements, (viii) any modification, termination orcancellation of any lease of all or any portion of the Property withoutHolder’s prior written consent, if and to the extent such consent is requiredunder the Mortgage or the Related Agreements and if and to the extent suchmodification, termination or cancellation has a material adverse effect on thevalue of the Property, (ix) a default by Maker under any lease of all or anyportion of the Property, or (x) costs and expenses, including, withoutlimitation, attorney’s fees and transfer taxes, incurred by Holder inconnection with the enforcement of this Note, the Mortgage or the RelatedAgreements or a deed-in-lieu of foreclosure; and

 

(c)             Makerand the Nonrecourse Indemnitor shall become personally liable for payment ofthe indebtedness evidenced by this Note and performance of all otherobligations of Maker under this Note, the Mortgage and the Related Agreementsupon occurrence of any (i) fraud or willful misrepresentation of a materialfact by Maker or the Nonrecourse Indemnitor in connection with this Note, theMortgage or the Related Agreements or any request for any action or consent byHolder, (ii) the occurrence of any transfer of any interest in Maker or theProperty in violation of the terms of this Note, the Mortgage or the RelatedAgreements, or (iii) the incurrence by Maker of any indebtedness in violationof the terms of this Note, the Mortgage or the Related Agreements (whethersecured or unsecured, direct or contingent), other than unsecured debt orroutine trade payables incurred in the ordinary course of business inconnection with the operation of the Property.

 

In addition, Maker and the NonrecourseIndemnitor shall be responsible for any costs and expenses incurred by Holderin connection with the collection of any amounts for which Maker and theNonrecourse Indemnitor are personally liable under this section, includingattorneys’ fees and expenses, court costs, filing fees, and all other costs andexpenses incurred in connection therewith.

 

18. **Successors and Assigns.**Theprovisions of this Note shall be binding upon Maker and its legalrepresentatives, successors and assigns and shall inure to the benefit of anyHolder and its successors and assigns. In the event Maker is composed of morethan one party, obligations arising from this Note are and shall be joint andseveral as to each such party.

9

----

19. **RemediesCumulative.**The remedies of Holder as provided in this Note, orin the Mortgage or the Related Agreements, and the warranties contained hereinor therein shall be cumulative and concurrent, may be pursued singly,successively or together at the sole discretion of Holder, may be exercised asoften as occasion for their exercise shall occur and in no event shall thefailure to exercise any such right or remedy be construed as a waiver orrelease of such right or remedy. No remedy under this Note, conferred upon orreserved to Holder is intended to be exclusive of any other remedy provided inthis Note, the Mortgage or any of the Related Agreements or provided by law,but each shall be cumulative and shall be in addition to every other remedygiven under the Mortgage or any of the Related Agreements or hereunder or nowor hereafter existing at law or in equity or by statute.

 

20. **Notices.**All notices, written confirmation of wire transfers and all othercommunications with respect to this Note shall be directed as follows: if toHolder, c/o Commercial Mortgage Loan Division, Allstate Plaza South, Suite G5C,3075 Sanders Road, Northbrook, Illinois 60062, Attention: Servicing Manager,with a copy to Investment Law Division, Allstate Plaza South, Suite G5A, 3075Sanders Road, Northbrook, Illinois 60062; if to Maker, 1780 South BellaireStreet, Suite 100, Denver, Colorado 80222, with a copy to: Stephen R. Voelker,Esq., Jenkens & Gilchrist, 1445 Ross Avenue, Suite 3200, Dallas, Texas75202, or at such other place as Holder or Maker may from time to timedesignate in writing. All notices shall be in writing and shall be (a)hand-delivered, (b) sent by United States express mail or by private overnightcourier, or (c) served by certified mail postage prepaid, return receiptrequested, to the appropriate address set forth above. Notices served asprovided in (a) and (b) shall be deemed to be effective upon delivery. Anynotice served by certified mail shall be deposited in the United States mailwith postage thereon fully prepaid and shall be deemed effective on the day ofactual delivery as shown by the addressee’s return receipt or the expiration ofthree business days after the date of mailing, whichever is earlier in time.

 

21. **No OralModification.**This Note may not be modified or dischargedorally, but only by an agreement in writing signed by the party against whomenforcement of any waiver, modification or discharge is sought.

 

22. **Time.**Time is of the essence with regard to the performance of the obligations ofMaker in this Note and each and every term, covenant and condition herein by orapplicable to Maker.

 

23. **Captions.**The captions and headings of the paragraphs of this Note are forconvenience only and are not to be used to interpret, define or limit theprovisions hereof.

 

24. **Transfer of Note.**Holder may, atany time, sell, transfer or assign this Note, the Mortgage and the RelatedAgreements, and any or all servicing rights with respect to this Note, or grantparticipations in this Note or issue mortgage pass-through certificates orother securities evidencing a beneficial interest in this Note. Holder mayforward to any prospective purchaser or any rating agency all documents and

10

----

information Holder now has or may acquire, as Holderdetermines necessary or desirable, including, without limitation, financialinformation regarding Maker, its members or other principals.

 

**25. ReplacementNote.**Upon receipt of evidence reasonably satisfactory to Maker ofthe loss, theft, destruction or mutilation of this Note, and in the case of anysuch loss, theft or destruction, upon delivery of an indemnity agreementreasonably satisfactory to Maker or, in the case of any such mutilation, uponsurrender and cancellation of this Note, Maker will execute and deliver toHolder in lieu thereof, **a**replacementnote dated as of the date of this Note, identical in form and substance to thisNote and upon such execution and delivery all references in the Mortgage tothis Note shall be deemed to refer to such replacement note.

 

INWITNESS WHEREOF, Maker has caused this Mortgage Note to be duly executed **as**of the date first above written.
| **WITNESS:** | **MAKER:**                                        | ** **                     |
|--------------|---------------------------------------------------|--------------------------------|
|         |                                              |                           |
|         | AMERIVEST  CAMELBACK INC., an Arizona corporation |                           |
|         |                                              |                           |
| [ILLEGIBLE]  |                                              | By                             | /s/ John  Greenman |   |
|         |                                              | John B. Greenman               |   |
|         |                                              | Its   Vice President |   |
|              |                                                   |                                |  |  |

 
| STATE  OF COLORADO | ) |   |
|--------------------|---|--------|
|               | ) | ss.    |
| County  of Denver  | ) |   |

The foregoing instrument wasacknowledged before me this 20th day of August, 2004 by John B. Greenman, theVice President  of AMERIVEST CAMELBACKINC., an Arizona Corporation, on behalf of the corporation.
| Witness my hand and official seal. | SEAL                  |   |
|------------------------------------|-----------------------|--------|
|                               | /s/  Loretta J. Zerbe |
| My  Commission Expires:            |                  |
|                               |                  |
| 3/17/05                            |                  |

 

11

----

**EXHIBIT A**

 
| **BASIS  POINT ADJUSTMENT TABLE**   | ** ** |
|-------------------------------------|------------|
| **U.S Treasury Bond or Note Yield** | ** ** | **Basis Point Adjustment** | ** ** | **U.S. Treasury Bond  or Note Yield** | ** ** | **Basis Point Adjustment** | ** ** |
| 0 - 1.55                            |       | .0 |   | 14.25 - 14.41 |   | .41 |   |
| 1.56- 2.69                          |       | 01 |   | 14.42 - 14.59 |   | .42 |   |
| 2.70- 3.48                          |       | .02 |   | 14.60 - 14.77 |   | .43 |   |
| 3.49- 4.12                          |       | .03 |   | 14.78 - 14.94 |   | .44 |   |
| 4.13- 4.68                          |       | .04 |   | 14.95 - 15.11 |   | .45 |   |
| 4.69- 5.17                          |       | .05 |   | 15.12 - 15.28 |   | .46 |   |
| 5.18- 5.63                          |       | .06 |   | 15.29 - 15.44 |   | .47 |   |
| 5.64- 6.05                          |       | .07 |   | 15.45 - 15.61 |   | .48 |   |
| 6.06- 6.44                          |       | .08 |   | 15.62 - 15.77 |   | .49 |   |
| 6.45- 6.82                          |       | .09 |   | 15.78 - 15.94 |   | .50 |   |
| 6.83- 7.17                          |       | .10 |   | 15.95 - 16.10 |   | .51 |   |
| 7.18- 7.51                          |       | .11 |   | 16.11 - 16.26 |   | .52 |   |
| 7.52- 7.83                          |       | .12 |   | 16.27 - 16.41 |   | .53 |   |
| 7.84- 8.14                          |       | .13 |   | 16.42 - 16.57 |   | .54 |   |
| 8.15- 8.44                          |       | .14 |   | 16.58 - 16.73 |   | .55 |   |
| 8.45- 8.73                          |       | .15 |   | 16.74 - 16.88 |   | .56 |   |
| 8.74- 9.02                          |       | .16 |   | 16.89 - 17.03 |   | .57 |   |
| 9.03- 9.29                          |       | .17 |   | 17.04 - 17.18 |   | .58 |   |
| 9.30- 9.55                          |       | .18 |   | 17.19 - 17.33 |   | .59 |   |
| 9.56- 9.81                          |       | .19 |   | 17.34 - 17.48 |   | .60 |   |
| 9.82-10.07                          |       | .20 |   | 17.49 - 17.63 |   | .61 |   |
| 10.08 - 10.31                       |       | .21 |   | 17.64 - 17.78 |   | .62 |   |
| 10.32 - 10.55                       |       | .22 |   | 17.79 - 17.92 |   | .63 |   |
| 10.56 - 10.79                       |       | .23 |   | 17.93 - 18.07 |   | .64 |   |
| 10.80 - 11.02                       |       | .24 |   | 18.08 - 18.21 |   | .65 |   |
| 11.03 - 11.25                       |       | .25 |   | 18.22 - 18.35 |   | .66 |   |
| 11.26 - 11.47                       |       | .26 |   | 18.36 - 18.49 |   | .67 |   |
| 11.48 - 11.69                       |       | .27 |   | 18.50 - 18.63 |   | .68 |   |
| 11.70 - 11.90                       |       | .28 |   | 18.64 - 18.77 |   | .69 |   |
| 11.91 - 12.11                       |       | .29 |   | 18.78 - 18.91 |   | .70 |   |
| 12.12 - 12.32                       |       | .30 |   | 18.92 - 19.05 |   | .71 |   |
| 12.33 - 12.52                       |       | .31 |   | 19.06 - 19.18 |   | .72 |   |
| 12.53 - 12.72                       |       | .32 |   | 19.19 - 19.32 |   | .73 |   |
| 12.73 - 12.92                       |       | .33 |   | 19.33 - 19.45 |   | .74 |   |
| 12.93 - 13.12                       |       | .34 |   | 19.46 - 19.59 |   | .75 |   |
| 13.13 - 13.31                       |       | .35 |   | 19.60 - 19.72 |   | .76 |   |
| 13.32 - 13.50                       |       | .36 |   | 19.73 - 19.85 |   | .77 |   |
| 13.51 - 13.69                       |       | .37 |   | 19.86 - 19.99 |   | .78 |   |
| 13.70 - 13.87                       |       | .38 |   | 20.00 - 20.12 |   | .79 |   |
| 13.88 - 14.06                       |       | .39 |   |   |   |   |   |
| 14.07 - 14.24                       |       | .40 |   |   |   |   |   |

 

 

12

----