**Exhibit 10.432**

** **

Allstate Life Insurance Company

Loan No. 122561

 

MORTGAGE NOTE

Chicago, Illinois

December 23, 2004

$11,485,000

 

1.             Paymentof Principal and Interest.     FORVALUE RECEIVED,  INLAND WESTERN LONGMONTFOX CREEK, L.L.C., a Delaware limited liability company (the “Maker”), herebypromises to pay to the order of ALLSTATE LIFE INSURANCE COMPANY, and anysubsequent holder of this Note (“Holder” or “Holders”) in the mannerhereinafter provided, the principal amount of ELEVEN MILLION FOUR HUNDRED EIGHTYFIVE THOUSAND DOLLARS ($11,485,000), together with interest on the outstandingprincipal balance from the date of the initial disbursement (for purposes ofthis Note, “disbursement” means the date funds ate wire transferred from Holder’saccount) of all or a part of the principal of this Note (“Disbursement Date”)until maturity at the rate of five and 21/100 percent (5.21%) per annum (“ContractRate”) as follows:

 

(a)           onthe Disbursement Date, interest only,  inadvance,  accruing from the DisbursementDate to the last day of December, 2004, both inclusive; and

 

(b)           interestonly, in arrears, in the amount of FORTY NINE THOUSAND EIGHT HUNDRED SIXTY FOURAND 04/100 DOLLARS ($49,864.04) on the first day of February, 2005, and on thefirst day of each month thereafter until this Note is fully paid (the initial paymentand each subsequent payment under this subparagraph (b) shall each hereinafterbe referred to as “Monthly Payment”); and

 

(c)           onDecember 1, 2009, the entire unpaid principal amount and any interest accrued butremaining unpaid and all other sums due under this Note.

 

Except for the interest payable underparagraph (a) above, interest shall be payable in arrears and calculated on thebasis of a 360 day year containing twelve 30 day months. All such payments onaccount of the indebtedness evidenced by this Note shall be first applied tointerest accrued on the unpaid principal amount and the remainder towardreduction of the unpaid principal amount.

 

2.             PaymentInformation. All payments required to be made hereunder shall be made duringregular business hours to Holder at its office c/o Commercial MortgageDivision, Allstate Plaza South, Suite G5C, 3075 Sanders Road, Northbrook,Illinois 60062, Attention: Servicing Manager, with sufficient information toidentify the source and application of such payment to Holder’s Loan #122561,or at such other place as Holder may from time to time designate in writing.   All payments shall be made in currency ofthe United States of America without presentment or surrender of thisNote.   Payments to Holder shall be madeby transferring 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 received byHolder on the next business day and shall bear interest accordingly.  If and so long as Holder directs Maker tomake payments to a servicing agent, then payments may

 

 

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bemade by check. Payments made by check will not be deemed made until good fundsfor such check are received by Holder or the servicing agent.

 

3.             SecurityFor Note. The payment of this Note and all other sums due Holder is securedby (a) (i) a Deed of Trust, Assignment of Leases, Rents and Contracts, SecurityAgreement and Fixture Filing (“Deed of Trust”) of even date herewith, grantedby Maker, as trustor, to the Public Trustee of Boulder County, Colorado (“Trustee”),as trustee, in favor of Holder, as beneficiary, covering a leasehold estate incertain real property, the improvements thereon and certain personal propertysituated in the County of Boulder, State of Colordao and described in the Deedof Trust (“Property”), and, with respect to any loan made by Holder to InlandWestern Winter Springs Red Bug, L.L.C. a Delaware limited liability company andan affiliate of Grantor (“Affiliated Borrower”), (ii) a Mortgage, Assignment ofLeases, Rents and Contracts, Security Agreement and Fixture Filing (the “OtherMortgage”) granted by Affiliated Borrower, as mortgagee, covering certain realproperty owned by Affiliated Borrower, the improvements thereon and saidgrantor’s interest, if any, in certain personal property situated in the Countyof Seminole, State of Florida and described in the Other Mortgage (the “Other Property”),and (b) those certain instruments of indebtedness and security described as “RelatedAgreements” in the Deed of Trust and/or the Other Mortgage.   Except as otherwise defined herein, all ofthe defined terms contained in the Deed of Trust and the Related Agreements archereby incorporated herein by express reference.

 

4.             LateCharges. If any Monthly Payment required under this Note not be paid in fullon or before the fifth (5th) day of the month in which such paymentis due, Maker acknowledges that the Holder will incur extra expenses for thehandling of the delinquent payment and servicing the indebtedness evidencedhereby, and that the exact amount of these extra expenses is extremelydifficult and impractical to ascertain, but that a charge of five percent (5%)of the amount of the delinquent payment (“Late Charge”) would be a fairapproximation of the expense so incurred by Holder.  If applicable law requires a lesser charge,however, then the maximum charge permitted by such law may be charged by Holderfor said purpose. Therefore, Maker shall, in such event, without furthernotice, and without prejudice to the right of Holder to collect any otheramounts provided to be paid hereunder or under the Deed of Trust, the Related Agreementsor any other instrument executed for purposes of further securing payment ofthe obligations evidenced by this Note, or to declare an Event of Default, asdefined below, pay to Holder immediately upon demand the Late Charge tocompensate Holder for expenses incurred in handling delinquent payments.

 

5.             Interest Payable Upon Default.If there occurs an Event of Default under this Note or the Deed of Trust orunder any Related Agreement, then the unpaid principal amount of this Note, andall accrued and unpaid interest thereon shall bear interest at the ContractRate plus five percent (5%) per annum compounded monthly (“Default Rate”) fromthe date of expiration of any applicable cure or grace period until such time,if any, as the Event of Default is cured and the Deed of Trust and this Noteare reinstated as permitted by applicable law, or otherwise until such time asthe unpaid principal amount of this Note and all other indebtedness evidencedby this Note are fully repaid, whichever is earlier.

 

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6.             Events of Default. An “Eventof Default” shall exist under this Note:

 

(a)           in the event Maker shall fail to makeany payment due under this Note, other than the final payment and PrepaymentPremium, on or before the fifth (5th) day of the month in which suchpayment is due;

 

(b)           in the event Maker shall fail to makethe final payment or the Prepayment Premium when such payment is due; or

 

(c)           if there shall exist an Event ofDefault under the Deed of Trust, the Other Mortgage or in any of the RelatedAgreements.

 

7.             Additional Payments. Theadditional payments called for under Paragraphs 4 and *5*shall be in addition to, and shall in noway limit, any other rights and remedies provided for in this Note, the Deed ofTrust, the Other Mortgage, any Related Agreements, or otherwise provided bylaw.

 

8.             Payment of Taxes and Expenses.   Maker further promises to pay to Holder, immediatelyupon written notice from Holder: (i) all recordation, transfer, stamp,documentary or other fees or taxes levied on Holder (exclusive of Holder’sincome taxes) by reason of the making or recording of this Note, the Deed ofTrust or any of the Related Agreements, and (ii) all intangible property taxeslevied upon any Holder of this Note or mortgagee under the Deed of Trust orsecured party under the Related Agreements.

 

Makerfurther promises to pay to Holder, immediately upon written notice from Holder,all actual costs, expenses, disbursements, escrow fees, title charges andreasonable legal fees and expenses actually incurred by Holder and its counselin (i) the collection, attempted collection, or negotiation and documentationof any settlement or workout of the principal amount of this Note, the interestthereon or any installment or other payment due hereunder, and (ii) any suit orproceeding whatsoever at all trial and appellate levels in regard to this Noteor to protect, sustain or enforce the lien of any instrument securing thisNote, including, without limitation, in any bankruptcy proceeding or judicialor nonjudicial foreclosure proceeding. It is the intent of the parties thatMaker pay all expenses and reasonable attorneys’ and paralegals’ fees incurredby Holder as a result of or in connection with (A) matters described in clauses(i) and (ii) above, (B) the negotiation and closing of the loan transactionevidenced by this Note and any supplements or amendments thereto, (C) theprotection of property given as security for the indebtedness evidenced hereby,and (D) responding to requests from Maker that Holder take certain actions, andas may otherwise be reasonably incurred by Holder as a result of or inconnection with entering into the loan transaction evidenced by this Note.

 

9.             Prepayment. Maker isprohibited from prepaying this Note until July 1, 2005 (the “No-PrepaymentPeriod”).   Subsequent to theNo-Prepayment Period, at any time with thirty (30) days prior written notice toHolder, specifying the date of prepayment, Maker will have the privilege ofprepaying the outstanding principal amount together with any accrued but unpaidinterest, any other sums secured by the Deed of Trust and the RelatedAgreements, and a prepayment premium (“Prepayment Premium”) equal to thegreater of:

 

(a)                               one percent of the principal amount prepaid,or

 

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(b)                             the yield maintenance payment calculated asfollows:

 

Ifthe Prevailing Interest Rate is less than the Contract Rate, the yieldmaintenance payment shall be the remainder of (x) minus (y) where “(x)” is thepresent value of all unpaid installments of principal and interest due underthis Note from the date of prepayment to and including the original maturitydate of this Note, discounted at the Prevailing Interest Rate, plus 0.50percent (50 basis points), and “(y)” is the outstanding principal balance ofthis 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.

 

NoPrepayment Premium shall be due on the principal balance prepaid within thethirty (30) day period prior to the Maturity Date of this Note.

 

Writtennotice of Maker’s election to make a prepayment in full of this Note shall begiven in the manner provided for notices under the Deed of Trust. Partial prepaymentof the outstanding principal amount of this Note shall not be permitted exceptin accordance with the terms of the Deed of Trust. In the event of such apermitted partial prepayment, the Prepayment Premium calculated in thisParagraph 9 shall be prorated based on the amount of the partial prepaymentrelative to the then current outstanding principal balance of this Note.

 

Makeracknowledges that Holder:

 

(a)           has advanced the amounts evidenced bythis Note with the expectation that such amounts would be outstanding for aperiod at least equal to the No-Prepayment Period;

 

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

 

(c)           in making the loan evidenced by thisNote, is relying on Maker’s creditworthiness and its agreement to pay in strictaccordance with the terms set forth in the Note; and

 

(d)           would not make the loan evidenced bythis Note without full and complete assurance by Maker of its agreement not toprepay all or a part of the principal of this Note except as expresslypermitted herein and in the Deed of Trust.

 

Makerhas been advised and acknowledges that Holder is relying on the receipt ofpayments under this Note to, among other things, match and support itsobligations under contracts entered into by Holder with third parties and thatin the event of a prepayment, Holder could suffer loss and additional expenseswhich are extremely difficult and impractical to ascertain. Accordingly, it isthe express intent of Maker and Holder that: (a) Maker shall have no right toprepay this Note during the No-Prepayment Period; (b) any prepayment of thisNote

 

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during the No-PrepaymentPeriod shall only occur in the event Holder accelerates payment under this Noteor as otherwise set forth in the Deed of Trust; (c) any prepayment described inforegoing clause (b) shall (unless otherwise expressly permitted in the Deed ofTrust) require the payment of the Prepayment Premium; and (d) to the extentpermitted by applicable law, Maker has waived, and hereby waives, any right toprepay this Note except as expressly provided in the Deed of Trust or this Noteduring the No-Prepayment Period. In the event, notwithstanding the foregoingexpress intent of Maker and Holder and the express waiver by Maker of any rightto prepay this Note during the No-Prepayment Period, that the applicable law ofthe jurisdiction in which the Property is located permits the Maker to prepaythis Note during the No-Prepayment Period, then the applicable PrepaymentPremium described in clause (c) in the third sentence of this grammaticalparagraph shall be paid to Holder as a condition to any such prepayment.

 

Makerexpressly acknowledges that, pursuant to the provisions of this Note and exceptas otherwise provided in this Note or the Deed of Trust, Maker has no right toprepay this Note in whole or in part during the No-Prepayment Period. In theevent any prepayment is required or expressly permitted, Maker shall be liablefor the payment of the Prepayment Premium unless expressly stated otherwise inthis Note or in the Deed of Trust. 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 evidenced by this Notein reliance upon such agreement and waiver of Maker and that Holder would nothave made the loan evidenced by this Note without such agreement and waiver ofMaker. Maker acknowledges that specific weight has been given to theconsideration given for such agreement, which consideration is the granting ofthe loan.

 

10.           Evasion of Prepayment Premium.   Maker acknowledges that in the event of an accelerationof payment of this Note following an Event of Default by Maker, a tender of paymentof an amount necessary to satisfy the indebtedness evidenced hereby, but notincluding the Prepayment Premium, made at any time prior to a foreclosure,trustee’s or power of sale by Maker, its successors or assigns or by anyone onbehalf of Maker, or by a buyer upon foreclosure, trustee’s or power of sale,shall constitute a prepayment hereunder and shall be presumed to be andconclusively deemed to constitute a deliberate evasion of the prepaymentprovisions hereof and shall therefore be subject to the Prepayment Premium inaccordance with this Note with the date of prepayment being deemed the date ofoccurrence of the foreclosure sale or the tender of payment of the amountnecessary to pay the entire indebtedness evidenced hereby in full, includingthe Prepayment Premium.

 

11.           Maker’s Covenants. Makeragrees 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;

 

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

 

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purposethe protection of consumers in the state or commonwealth in which the Propertyis located;

 

(d)           at the option of the Holder, theUnited States District Court for the district in which the Property is locatedand any court of competent jurisdiction of the state or commonwealth in whichthe Property is located shall have jurisdiction in any action, suit or other proceedingarising out of or relating to any act taken or omitted hereunder or theenforcement of this Note, the Deed of Trust and the Related Agreements andMaker shall not assert in any such action, suit or other proceeding that it isnot personally subject to the jurisdiction of such courts, that the action,suit or other proceeding is brought in an inconvenient forum or that the venueof the action, 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 hereto intend and believe thateach provision of this Note comports with all applicable local, state andfederal laws and judicial decisions. However, if any provision or any portionof any provision contained in this Note is held by a court of law to beinvalid, illegal, unlawful, void or unenforceable as written in any respect,then it is the intent of all parties hereto that such portion or provisionshall be given force to the fullest possible extent that it is legal, valid andenforceable, that the remainder of the Note shall be construed as if suchillegal, invalid, unlawful, void or unenforceable portion or provision was not containedtherein, and the rights, obligations and interests of Maker and Holder underthe remainder of this Note shall continue in full force and effect.

 

13.           Usury Laws.  It is the intention of Maker and Holder toconform strictly to the usury laws now or hereafter in force in the state orcommonwealth in which the Property is located, and any interest payable underthis Note, the Deed of Trust, or any Related Agreement shall be subject toreduction to an amount not to exceed the maximum non-usurious amount for commercialloans allowed under the usury laws of the state or commonwealth in which the Propertyis located as now or hereafter construed by the courts having jurisdiction oversuch matters.   In the event suchinterest (whether designated as interest, service charges, points, or otherwise)does exceed the maximum legal rate, it shall be:

 

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

 

(b)           if already paid, at the option of theHolder, either be rebated to Maker or credited on the principal amount of theNote; and

 

(c)           if the Note has been prepaid in full,then such excess shall be rebated to Maker.

 

14.           Acceleration.  Upon an Event of Default, Holder shall havethe right, without further demand or notice, to declare the entire principalamount of this Note and/or any Future Advance (as defined in the Deed of Trust)then outstanding, all accrued and unpaid interest thereon and all other furthersums payable under this Note, which shall include the Prepayment Premium(calculated as provided in Paragraph 9 above), the Deed of Trust, the OtherMortgage

 

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orany note evidencing any Future Advance, to be immediately due and payable and,notwithstanding the stated maturity in this Note or any note evidencing anyFuture Advance, all such sums declared due and payable shall thereupon becomeimmediately due and payable. During the existence of such Event of Default,Holder may apply payments received on any amounts due under the Note, the Deedof Trust, the Other 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 Deed of Trust, theRelated Agreements and any other instruments securing the indebtedness, Makerand all guarantors, sureties and endorsers, severally waive all applicableexemption rights, whether under any state constitution, homestead laws orotherwise, and also severally waive diligence, valuation and appraisement, presentmentfor payment, protest and demand, notice of protest, demand and dishonor and diligencein collection and nonpayment of this Note and all other notices in connectionwith the delivery, acceptance, performance, default, or enforcement of thepayment of this Note (except notice of default specifically provided for in theDeed of Trust and the Related Agreements). To the extent permitted by law,Maker further waives all benefit that might accrue to Maker by virtue of anypresent or future laws exempting the Property, or any other property, real or personal,or the proceeds arising from any sale of any such property, from attachment,levy, or sale under execution, or providing for any stay of execution to beissued on any judgment recovered on this Note or in any action to foreclose theDeed of Trust, injunction against sale pursuant to power of sale, exemptionfrom civil process or extension of time for payment.  Maker agrees that any real estate or anypersonalty that may be levied upon pursuant to a judgment obtained by virtue ofthis Note, or any writ of execution issued thereon, may be sold upon any suchwrit in whole or in part in any order desired by Holder.

 

16.           Maker Not Released. No delayor omission of Holder to exercise any of its rights and remedies under thisNote, the Deed of Trust or any Related Agreements at any time following thehappening of an Event of Default shall constitute a waiver of the right ofHolder to exercise such rights and remedies at a later time by reason of suchEvent of Default or by reason of any subsequently occurring Event of Default.The acceptance by Holder of payment of any sum payable hereunder after the duedate of such payment shall not be a waiver of Holder’s right to either requireprompt payment when due of all other sums payable hereunder or to declare a defaultfor failure to make prompt payment.  This Note, or any payment hereunder, may be extended from time to timeby agreement in writing between Maker and Holder without in any other wayaffecting the liability and obligations of Maker and endorsers, if any.

 

17.           Nonrecourse. Except asotherwise set forth in this Paragraph, Holder’s recourse under this Note, theDeed of Trust, the Other Mortgage and the Related Agreements shall be limitedto and satisfied from the Property, the Other Property and the proceedsthereof, the rents and all other income arising therefrom during and after themonth in which an Event of Default has occurred, the other assets of Maker orthe owner arising out of the Property and the Other Property which are given ascollateral for this Note and any other collateral given in writing to Holder assecurity for repayment of this Note (all of the foregoing are collectivelyreferred to as the “Loan Collateral”). Notwithstanding the preceding sentence:

 

(a)        Holder may, inaccordance with the terms of this Note, the Deed of Trust, the Other Mortgageor any Related Agreement: (i) foreclose the lien of the Deed of Trust or the

 

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Other Mortgage; (ii) takeappropriate action to enforce this Note, the Deed of Trust, the Other Mortgageand the Related Agreements to realize upon and/or protect the Loan Collateral;(iii) name Maker as a party defendant in any action brought under this Note,the Deed of Trust, the Other Mortgage or the Related Agreements so long as theexercise of any remedy is limited to the Loan Collateral; (iv) pursue all ofits rights and remedies against any guarantor or surety or master tenantwhether or not a partner, member or other owner of Maker; and (v) pursue all ofits rights and remedies against Maker and the indemnitors under that certainEnvironmental Indemnity Agreement of even date herewith and that certainTerrorism Insurance Indemnity Agreement of even date herewith;

 

(b)          Holder may seekdamages or other monetary relief, to the extent of actual monetary loss, or anyother remedy at law or in equity against Maker, and the indemnitors/guarantors,if any, under any nonrecourse exception indemnity agreements (“NonrecourseIndemnitors”) by reason of or in connection with: (i) the failure of Maker topay to Holder, upon demand, all rents, issues and profits of the Property towhich Holder is entitled pursuant to this Note, the Deed of Trust 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 Property; (iii) the distribution of rents, issues and profits from theProperty prior to the payment of operating expenses or the provision forreserves, if any, to be made pursuant to this Note, the Deed of Trust or theRelated Agreement prior to any other expenditure or distribution by Maker; (iv)the failure to account for and to turn over security deposits (and interestrequired by law or agreement to be paid thereon) or prepaid rents following theoccurrence of an Event of Default under this Note, the Deed of Trust or anyRelated Agreements; (v) the failure to timely pay all real estate taxes or anyregular or special assessments affecting the Property; (vi) the failure toaccount for and to turn over real estate tax accruals following the occurrenceof an Event of Default under this Note, the Deed of Trust or any RelatedAgreements; (vii) the failure to maintain casualty and liability insurance asrequired under the Deed of Trust 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, theDeed of Trust or any Related Agreements; (viii) any modification, terminationor cancellation 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 Deed of Trust or the Related Agreements and if and to the extent suchmodification, termination or cancellation has a material adverse affect on thevalue of the Property; (ix) a default by Maker under any lease of all or anyportion of the Property; (x) all transfer, recordation or other taxes imposedat any time by the State of Colorado, Boulder County, Colorado or othergovernmental authority with jurisdiction over the Property relating to thisNote, the Deed of Trust or any Related Agreement; or (xi) costs and expenses,including, without limitation, attorney’s fees and transfer taxes, incurred byHolder in connection with the enforcement of this Note, the Deed of Trust orthe Related Agreements or in connection with a deed-in-lieu of foreclosure ifthe Event of Default giving rise to the enforcement action is one described insubsections (b) or (c) as an exception to the nonrecourse provisions, or if theMaker or any principal of Maker objects to any actions taken by Holder toexercise its remedies under the Loan Documents; Maker or principal of Makercommences any lawsuit to enjoin or delay a foreclosure of the Property byHolder, or raises defenses or counterclaims to a foreclosure action; Makerapplies for the appointment, of a receiver, trustee or liquidator for it or forany of its property, or, as a debtor, files a voluntary petition in bankruptcy,or petition or answer seeking reorganization or an arrangement with

 

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creditorsor takes advantage of any bankruptcy, reorganization, insolvency, readjustmentof debt, dissolution or liquidation law or statute, or makes a generalassignment for the benefit of creditors; or in the event any bankruptcy orreorganization proceedings (voluntary or involuntary), the Maker or anyprincipal of Maker opposes any motion by Holder for relief from the AutomaticStay; and

 

(c)            Maker, any general partners of Makerand the Nonrecourse Indemnitor(s), if any, shall become personally liable forpayment of all the indebtedness evidenced by this Note and performance of allother obligations of Maker under this Note, the Deed of Trust and RelatedAgreements upon the occurrence of any of the following: (i) fraud or willfulmisrepresentation of a material fact by Maker, any general partners of Maker,or Nonrecourse Indemnitor(s), if any, in connection with this Note, the Deed ofTrust, the Related Agreements or any request for any action or consent byHolder; (ii) a Transfer of any interest in Maker or all or any portion of theProperty or any interest therein in violation of the terms of this Note, theDeed of Trust or the Related Agreements; or (iii) the incurrence by Maker ofany indebtedness in violation of the terms of this Note, the Deed of Trust orRelated Agreements (whether secured or unsecured, direct or contingent), otherthan unsecured debt or routine trade payables incurred in the ordinary courseof business in connection with the operation of the Property.

 

Inaddition, Maker, any general partners of Maker and the Nonrecourse Indemnitors,if any, shall be responsible for any costs and expenses incurred by Holder inconnection with the collection of any amounts for which Maker, its generalpartners, if any, and the Nonrecourse Indemnitors, if any, are personallyliable under this Paragraph 17, including attorneys’ fees and expenses, courtcosts, filing fees and all other costs and expenses incurred in connectiontherewith.

 

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 more than one party, obligationsarising from this Note are and shall be joint and several as to each suchparty.

 

19.           Remedies Cumulative. Theremedies of Holder as provided in this Note or in the Deed of Trust, the OtherMortgage or the Related Agreements, and the warranties contained herein ortherein shall be cumulative and concurrent, may be pursued singly, successivelyor together at the sole discretion of Holder, may be exercised as often asoccasion for their exercise shall occur and in no event shall the failure toexercise any such right or remedy be construed as a waiver or release of suchright or remedy.   No remedy under thisNote, conferred upon or reserved to Holder is intended to be exclusive of anyother remedy provided in this Note, the Deed of Trust, the Other Mortgage orany of the Related Agreements or provided by law, but each shall be cumulativeand shall be in addition to every other remedy given under the Deed of Trust,the Other Mortgage or any of the Related Agreements or hereunder or now orhereafter existing at law or in equity or by statute.

 

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20.           Notices.    All notices, written confirmation of wiretransfers and all other communications with respect to this Note shall bedirected as follows:

 

Ifto Holder:

 

c/oAllstate Investments, LLC

AllstatePlaza South, Suite G5C

3075Sanders Road

Northbrook,Illinois 60062

Attention:       CommercialMortgage Division

                       ServicingManager

 

Witha copy to:

 

c/oAllstate Investments, LLC

AllstatePlaza South, Suite G5A

3075Sanders Road

Northbrook,Illinois 60062

Attention:       InvestmentLaw Division

 

Ifto Maker:

 

InlandWestern Longmont Fox Creek, L.L.C.

2901Butterfield Road

Oakbrook,Illinois 60523

Attention:Roberta Matlin

 

Witha copy to:

 

TheInland Real Estate Group, Inc.

2901Butterfield Road

Oakbrook,Illinois 60523

Attention:General Counsel

 

orat such other place as Holder or Maker may from time to time designate inwriting. All notices shall be in writing and shall be (a) hand-delivered, (b)sent by United States express mail or by private overnight courier, or (c)served by certified mail postage prepaid, return receipt requested, to theappropriate address set forth above. Notices served as provided in (a) and (b)shall be deemed to be effective upon delivery. Any notice served by certifiedmail shall be deposited in the United States mail with postage thereon fullyprepaid and shall be deemed effective on the day of actual delivery as shown bythe addressee’s return receipt or the expiration of three business days afterthe date of mailing, whichever is earlier in time.

 

21.           No Oral Modification. ThisNote may not be modified or discharged orally, but only by an agreement inwriting signed by the party against whom enforcement of any waiver, modificationor discharge is sought.

 

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22.           Time. Time is of the essencewith regard to the performance of the obligations of Maker in this Note andeach and every term, covenant and condition herein by or applicable to Maker.

 

23.           Captions.   The captions and headings of the paragraphsof this Note are for convenience only and are not to be used to interpret,define or limit the provisions hereof.

 

24.           Replacement Note. Upon receiptof evidence reasonably satisfactory to Maker of the loss, theft, destruction ormutilation of this Note, and in the case of any such loss, theft or destruction,upon delivery of an indemnity agreement reasonably satisfactory to Maker or, inthe case of any such mutilation, upon surrender and cancellation of this Note,Maker will execute and deliver to Holder in lieu thereof, a replacement notedated as of the date of this Note, identical in form and substance to this Noteand upon such execution and delivery all references in the Deed of Trust tothis Note shall be deemed to refer to such replacement note.

 

25.           Transfer of Note.  Holder may, at any time, sell, transfer orassign this Note, the Deed of Trust and the Related Agreements, and any or allservicing rights with respect to this Note, or grant participations in thisNote or issue mortgage pass-through certificates or other securities evidencinga beneficial interest in this Note. Holder may forward to any prospective purchaseror any rating agency rating securities all documents and information Holder nowhas or may acquire, as Holder determines necessary or desirable, including,without limitation, financial information regarding Maker, its generalpartners, shareholders, members or other principals.

 

*           *           *           *           *

 

[Signature Page Follows]

 

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INWITNESS WHEREOF, Maker has caused this Mortgage Note to be duly executed on thedate first above written.

 
|   | MAKER:                                                                            |                                                                                      |
|--------|-----------------------------------------------------------------------------------|-------------------------------------------------------------------------------------------|
|   |                                                                              |                                                                                      |
|   | INLAND WESTERN LONGMONT  FOX CREEK, L.L.C.,  a Delaware limited liability company |
|   |                                                                              |                                                                                      |
|   | By:                                                                               | INLAND WESTERN RETAIL REAL  ESTATE  TRUST, INC., a Maryland corporation,  Its sole member |
|   |                                                                              |                                                                                      |
|   |                                                                              | By:                                                                                       | /s/ [ILLEGIBLE] |   |
|   |                                                                              | Its:                                                                                      | Asst. Secretary |   |
|        |                                                                                   |                                                                                           |  |  |  |

 

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EXHIBIT A

 

BASIS POINT ADJUSTMENTTABLE

 
| **U.S. Treasury  Bond or Note  Yield** | ** ** | **Basis Point  Adjustment** | ** ** | **U.S. Treasury  Bond or Note  Yield** | ** ** | **Basis Point  Adjustment** | ** ** |
|----------------------------------------|------------|-----------------------------|------------|----------------------------------------|------------|-----------------------------|------------|
| 0.00-1.55                              |       | .00                         |       | 14.07-14.24                            |       | .40                         |       |
| 1.56-2.69                              |       | .01                         |       | 14.25-14.41                            |       | .41                         |       |
| 2.70-3.48                              |       | .02                         |       | 14.42-14.59                            |       | .42                         |       |
| 3.49-4.12                              |       | .03                         |       | 14.60-14.77                            |       | .43                         |       |
| 4.13-4.68                              |       | .04                         |       | 14.78-14.94                            |       | .44                         |       |
| 4.69-5.17                              |       | .05                         |       | 14.95-15.11                            |       | .45                         |       |
| 5.18-5.63                              |       | .06                         |       | 15.12-15.28                            |       | .46                         |       |
| 5.64-6.05                              |       | .07                         |       | 15.29-15.44                            |       | .47                         |       |
| 6.06-6.44                              |       | .08                         |       | 15.45-15.61                            |       | .48                         |       |
| 6.45-6.82                              |       | .09                         |       | 15.62-15.77                            |       | .49                         |       |
| 6.83-7.17                              |       | .10                         |       | 15.78-15.94                            |       | .50                         |       |
| 7.18-7.51                              |       | .11                         |       | 15.95-16.10                            |       | .51                         |       |
| 7.52-7.83                              |       | .12                         |       | 16.11-16.26                            |       | .52                         |       |
| 7.84-8.14                              |       | .13                         |       | 16.27-16.41                            |       | .53                         |       |
| 8.15-8.44                              |       | .14                         |       | 16.42-16.57                            |       | .54                         |       |
| 8.45-8.73                              |       | .15                         |       | 16.58-16.73                            |       | .55                         |       |
| 8.74-9.02                              |       | .16                         |       | 16.74-16.88                            |       | .56                         |       |
| 9.03-9.29                              |       | .17                         |       | 16.89-17.03                            |       | .57                         |       |
| 9.30-9.55                              |       | .18                         |       | 17.04-17.18                            |       | .58                         |       |
| 9.56-9.81                              |       | .19                         |       | 17.19-17.33                            |       | .59                         |       |
| 9.82-10.07                             |       | .20                         |       | 17.34-17.48                            |       | .60                         |       |
| 10.08-10.31                            |       | .21                         |       | 17.49-17.63                            |       | .61                         |       |
| 10.32-10.55                            |       | .22                         |       | 17.64-17.78                            |       | .62                         |       |
| 10.56-10.79                            |       | .23                         |       | 17.79-17.92                            |       | .63                         |       |
| 10.80-11.02                            |       | .24                         |       | 17.93-18.07                            |       | .64                         |       |
| 11.03-11.25                            |       | .25                         |       | 18.08-18.21                            |       | .65                         |       |
| 11.26-11.47                            |       | .26                         |       | 18.22-18.35                            |       | .66                         |       |
| 11.48-11.69                            |       | .27                         |       | 18.36-18.49                            |       | .67                         |       |
| 11.70-11.90                            |       | .28                         |       | 18.50-18.63                            |       | .68                         |       |
| 11.91-12.11                            |       | .29                         |       | 18.64-18.77                            |       | .69                         |       |
| 12.12-12.32                            |       | .30                         |       | 18.78-18.91                            |       | .70                         |       |
| 12.33-12.52                            |       | .31                         |       | 18.92-19.05                            |       | .71                         |       |
| 12.53-12.72                            |       | .32                         |       | 19.06-19.18                            |       | .72                         |       |
| 12.73-12.92                            |       | .33                         |       | 19.19-19.32                            |       | .73                         |       |
| 12.93-13.12                            |       | .34                         |       | 19.33-19.45                            |       | .74                         |       |
| 13.13-13.31                            |       | .35                         |       | 19.46-19.59                            |       | .75                         |       |
| 13.32-13.50                            |       | .36                         |       | 19.60-19.72                            |       | .76                         |       |
| 13.51-13.69                            |       | .37                         |       | 19.73-19.85                            |       | .77                         |       |
| 13.70-13.87                            |       | .38                         |       | 19.86-19.99                            |       | .78                         |       |
| 13.88-14.06                            |       | .39                         |       | 20.00-20.12                            |       | .79                         |       |

 

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