**Exhibit 10.492**

 
|   | Borrower Name: | Inland Western Viera  Lake Andrew, LLC |
|--------|----------------|----------------------------------------|
|   | Project Name:  | Shoppes at Lake Andrew                 |
|   | Viera, Florida |

 

 

**THISNOTE IS A RENEWAL NOTE, AMENDING, RESTATING AND****RENEWING THAT CERTAINFUTURE ADVANCE AND RENEWAL NOTE BY WICKHAM & 95 CORP., A FLORIDACORPORATION, LOT 90, L.L.C., A FLORIDA LIMITED LIABILITY COMPANY, AND LOT 91,L.L.C., A FLORIDA LIMITED LIABILITY COMPANY TO AND IN FAVOR OF NATIONWIDE LIFEINSURANCE COMPANY, AN OHIO CORPORATION, DATED FEBRUARY 27, 2004 IN THE ORIGINAL PRINCIPAL AMOUNT OF FIFTEENTHOUSAND EIGHT HUNDRED FIFTY AND NO/100 DOLLARS ($15,850,000.00) (THE “ORIGINAL NOTE”).**

 

**FLORIDADOCUMENTARY STAMP TAXES ARE BEING PAID IN CONNECTION WITH THE AMOUNT OF FIFTEENMILLION SIX HUNDRED FIFTY-SIX THOUSAND FIVE HUNDRED****ELEVEN AND NO/100 DOLLARS($15,656,511.00) BEING ADVANCEDIN CONNECTION HEREWITH.  DOCUMENTARYSTAMPS IN THE AMOUNT OF FIFTY-FIVE THOUSAND FOUR HUNDRED SEVENTY-FIVE AND NO/100 DOLLARS ($55,475,00.00) HAVE BEEN AFFIXED TO THE ORIGINAL ASSUMPTION AGREEMENT OF EVEN DATE HEREWITH WHICH, TOGETHER WITH THE NOTICEOF FUTURE ADVANCE, MORTGAGE MODIFICATION AND AMENDED AND RESTATED MORTGAGE ANDSECURITY AGREEMENT DATED FEBRUARY 27, 2004 AND RECORDED ON MARCH 1, 2004 IN OFFICIAL RECORDS BOOK 5212, PAGE 2259 OF THE PUBLIC RECORDSOF BREVARD COUNTY, FLORIDA, AS AMENDED AND RESTATED BY THAT CERTAIN MORTGAGEMODIFICATION AND AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT OF EVENDATE HEREWITH, SECURES THIS NOTE.  THE OUTSTANDING PRINCIPAL BALANCE OF THEORIGINAL NOTE IN THE AMOUNT OF FIFTEEN MILLION SIX HUNDRED FIFTY-SIX THOUSANDFIVE HUNDRED ELEVEN AND NO/100 DOLLARS($15,656,511.00) EXEMPT FROM FLORIDAINTANGIBLE TAXES PURSUANT TO FLORIDA STATUTES SECTION 199.145.3.  THE ORIGINAL OF THE AFORESAID ORIGINAL NOTE ISATTACHED HERETO.**

 

**RENEWAL NOTE**

 
| $15,656,511.00 | Orlando, Florida |
|----------------|------------------|

 

 

 

December        , 2004

 

**FOR VALUERECEIVED, THE UNDERSIGNED,INLAND WESTERN VIERA LAKEANDREW, L.L.C.,**a Delaware limited liability company (“Borrower”)whose Federal Tax Identification Number is 20-1930110 promises to pay to theorder of **NATIONWIDE LIFE INSURANCE COMPANY,**an Ohio corporation,its successors and assigns (“Lender”), the principal sum of FIFTEEN MILLION SIXHUNDRED FIFTY-SIX THOUSAND FIVE

 

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HUNDRED ELEVEN ANDNO/100 DOLLARS ($15,656,511.00), together with interest on the principalbalance of this Renewal Note (the “Note”), from time to time remaining unpaid,from the date of disbursement by Lender at the applicable interest ratehereinafter set forth together with all other sums due hereunder or under theterms of the Mortgage (as hereinafter defined) in lawful money of the UnitedStates of America which shall be legal tender in payment of all debts at thetime of such payment the (“Loan”).  Bothprincipal and interest and all other sums due hereunder shall be payable at theoffice of Lender at One Nationwide Plaza, Columbus, Ohio 43215-2220, Attention:Real Estate Investment Department, 34T, or at such other place either within orwithout the State of Ohio as Lender may from time to time designate.  Said principal and interest shall be paid overa term, at the times, and in the manner set forth below, to wit:

 

Payment Provision:

 

(A)         Interest accrued on theunpaid principal balance of this Note from the date of disbursement hereof throughDecember 31, 2004 at the rate of Six and Fifty-Four One Hundredths percent(6.54%) per annum, shall be due and payable on the disbursement date of the Loan;

 

(B)          Thereafter, monthlyinstallments of interest only on the unpaid principal balance of this Note atthe rate of Five percent (5.00%) per annum, shall be due and payable in Sixty(60) consecutive monthly installments commencing on February 1, 2005 andcontinuing on the first day of each calendar month thereafter, with each suchinstallment to be in the sum of Sixty-Five Thousand Two Hundred Thirty-Five and46/100 Dollars ($65,235.46), without deduction or set- off.

 

(C)          Thereafter, monthlyinstallments of principal and interest on the unpaid principal balance of thisNote at the rate of Six and Fifty-Four One Hundredths percent (6.54%) per annum,shall be due and payable in Forty-nine (49) consecutive monthly installments commencingFebruary 1, 2010 and continuing on the first day of each calendar monththereafter, with each such installment to be in the sum of One Hundred SevenThousand Four Hundred Sixteen and 84/100 Dollars ($107,416.84), withoutdeduction or set-off.

 

Maturity.

 

The unpaidprincipal balance of this Note and all accrued unpaid interest thereon, (if notsooner paid), shall be due and payable in full on March 1, 2014 (the “MaturityDate”).

 

Application ofPayments.

 

All payments shallbe applied first to any late payment or other such charges as provided in thisNote or in the Mortgage, then to accrued unpaid interest on this Note, and thebalance, if any, shall be applied to the reduction of the outstanding principalbalance of this Note (subject to the terms hereof).  Interest due hereunder shall be calculated onthe basis of a three hundred sixty (360)-day year (composed of twelve (12)thirty (30)-day months) except the payment due under payment provision (A)above which shall be calculated on the actual number of days; provided,however, in no event shall the rate of interest payable under the terms of thisNote exceed the maximum rate of interest permitted under applicable law.

 

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Late Payment Charge.

 

Prior to theacceleration or maturity of this Note, Lender may collect a late payment chargein an amount equal to five percent (5%) of any full monthly installment notreceived by the due date.  Such latepayment charge shall constitute liquidated damages for the purpose of coveringthe extra expenses involved in handling delinquent installments and Lender maycollect such late payment charges even though it has not given any notice toBorrower of such late payment or a cure period, if any, has not passed;provided that such late payment charge shall not, together with other interestto be paid on the indebtedness evidenced by this Note or indebtedness arisingunder any instrument securing the payment hereof, exceed the maximum interestpermitted under applicable law. Borrower acknowledges that the late paymentcharge is a fair and reasonable estimate, considering all of the circumstancesexisting on the date of execution of this Note, of the cost the Lender willincur by reason of such late payment.

 

Prepayment.

 

(A)          Exceptas hereinafter provided, Borrower shall not have the right to prepay all or anypart of the Loan at any time. Borrower shall have the right to prepay, in fullbut not in part, the Loan evidenced by this Note, provided that, as conditionsprecedent, Borrower: (i) gives Lender not less than thirty (30) days’ priorWritten Notice (as defined in the Mortgage) of Borrower’s intention to soprepay this Note; and (ii) pays to Lender the Prepayment Premium (ashereinafter defined), if any, then due and payable to Lender as hereinafterprovided.  As used herein, the term “PrepaymentPremium” shall mean a sum equal to the greater of either: (i) one percent (1%)of the outstanding principal balance of this Note at the time of prepayment; or(ii) an amount equal to the sum of (a) the present value of the scheduledmonthly payments due under this Note from the date of prepayment to theMaturity Date, and (b) the present value of the amount of principal andinterest due under this Note on the Maturity Date (assuming all scheduledmonthly payments due prior to the Maturity Date were made when due), minus (c)the outstanding principal balance of this Note as of the date of prepayment.  The present values described in (a) and (b)shall be computed on a monthly basis as of the date of prepayment discounted atthe yield-to-maturity of the U.S. Treasury Note or Bond closest in maturity tothe Maturity Date of this Note as reported in The Wall Street Journal(or, if The Wall Street Journal is no longer published, as reported insuch other daily financial publication of national circulation which shall bedesignated by Lender) on the fifth (5) business day preceding the date ofprepayment.  Borrower shall be obligatedto prepay this Note on the date set forth in the notice to Lender requiredhereinabove, after such notice has been delivered to Lender.  Notwithstanding the foregoing or any otherprovision herein to the contrary, if Lender elects to apply insurance proceeds,condemnation awards, or any escrowed amounts, if applicable, to the reductionof the outstanding principal balance of this Note in the manner provided in theMortgage, no Prepayment Premium shall be due or payable as a result of suchapplication, and the monthly installments due and payable hereunder shall bereduced accordingly.

 

(B)           Inthe event the Maturity Date of the Loan evidenced by this Note is acceleratedby Lender at any time due to a default by Borrower under this Note or any ofthe other Loan Documents (as hereinafter defined), then a tender of payment inan amount necessary to satisfy the entire outstanding principal balance of thisNote together with all accrued unpaid interest hereon made by Borrower, or byanyone on behalf of Borrower, at any time prior to, at, or as a

 

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result of, a foreclosuresale or sale pursuant to power of sale, shall constitute a voluntary prepaymenthereunder prior to the contracted Maturity Date of this Note thus requiring thepayment to Lender of a Prepayment Premium equal to the applicable PrepaymentPremium as set forth in paragraph (A) above; provided, however, that in theevent such Prepayment Premium is construed to be interest under the laws of theState of Florida in any circumstance, such payment shall not be required to theextent that the amount thereof, together with other interest payable hereunder,exceeds the maximum rate of interest that may be lawfully charged underapplicable law.

 

(C)           Notwithstandinganything contained herein to the contrary, during the ninety (90)-day periodimmediately preceding the Maturity Date of this Note, the entire outstandingprincipal balance and all accrued unpaid interest on this Note may be prepaidin full, but not in part, at par, without incurring a Prepayment Premium.

 

AdditionalConditions.

 

This Note issecured by, among other things, that certain Notice Of Future Advance, MortgageModification and Amended and Restated Mortgage and Security Agreement dated February 27,2004 and recorded on March 1, 2004 in Official Records Book 5212, Page2259 of the Public Records of Brevard County, Florida, as assumed by Borrowerpursuant to that certain Assumption Agreement of even date herewith to berecorded in the Public Records of Brevard County, Florida and as amended andrestated by that certain Mortgage Modification and Amended and RestatedMortgage and Security Agreement of even date herewith to be recorded in thePublic Records of Brevard County, Florida (the “Mortgage”), and by an Amendedand Restated Assignment of Leases, Rents and Profits of even date herewith tobe recorded in the Public Records of Brevard County, Florida (the “Assignment”),encumbering certain real property described therein and located in BrevardCounty, State of Florida and certain other property, all as more particularlydescribed in the Mortgage (collectively, the “Property”).  The Mortgage and the Assignment contain termsand provisions which provide grounds for acceleration of the Loan evidenced bythis Note, together with additional remedies in the event of default hereunderor thereunder.  Failure on the part ofLender to exercise any right granted herein or in the Mortgage or theAssignment or any other Loan Document shall not constitute a waiver of suchright, or preclude Lender’s subsequent exercise and enforcement thereof.  This Note, the Mortgage, the Assignment andall other documents and instruments executed as further evidence of, asadditional security for, or executed in connection with, the Loan evidenced bythis Note are hereinafter collectively referred to as the “Loan Documents”.

 

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

 

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If the obligationsevidenced by this Note, or any part thereof, are placed in the hands of anattorney or other person for collection, whether by suit or otherwise, at anytime, or from time to time, Borrower shall be liable to Lender, in eachinstance, for all costs and expenses incurred in connection therewith,including, without limitation, Reasonable Attorneys’ Fees (as hereinafterdefined).

 

Default.

 

If Borrowerdefaults under this Note or under any of the other Loan Documents, then in anyor all of such events, at the option of Lender, the entire outstandingprincipal balance of this Note, together with all accrued unpaid interestthereon and all other obligations arising under this Note or any of the otherLoan Documents, may be accelerated by Lender and may become and be immediatelydue and payable then or thereafter as Lender may elect, regardless of theMaturity Date hereof.  All such amountsshall bear interest after maturity, by acceleration or otherwise, at the lesserof either: (i) the highest rate of interest then allowed by the laws of theState of Florida or, if controlling, the laws of the United States; or (ii) thethen applicable interest rate of this Note plus five hundred (500) basis pointsper annum.

 

During theexistence of any such default, which remains uncured beyond any applicablegrace or cure period, Lender may apply any sums received, including but notlimited to insurance proceeds or condemnation awards, to any amount then dueand owing hereunder or under the terms of any of the other Loan Documents asLender may determine.  Neither the rightnor the exercise of the right herein granted unto Lender to apply such proceedsas aforesaid shall serve to cure the default or preclude Lender from exercisingits option to cause the entire Loan evidenced by this Note to becomeimmediately due and payable by reason of Borrower’s default under the terms ofthis Note or any of the other Loan Documents.

 

Notwithstandingany provisions herein to the contrary, Lender’s right, power and privilege toaccelerate the maturity of the indebtedness evidenced hereby shall beconditioned upon, (i) with respect to any Monetary Default (as hereinafterdefined), Lender giving Borrower Written Notice of such Monetary Default and afive (5) day period after such notice is given within which to cure suchMonetary Default; provided, however, that Lender shall not be required to givesuch notice and right to cure as to Monetary Defaults, which occur during anyLoan Year (hereinafter defined) if Lender has previously given Written Noticeof a Monetary Default during such Loan Year; and (ii) with respect to anyNon-Monetary Default (as hereinafter defined), Lender giving Borrower WrittenNotice of such Non-Monetary Default and a thirty (30)-day period, after thedate of such notice, within which to cure such Non-Monetary Default, unlesssuch Non-Monetary Default cannot reasonably be cured within said thirty(30)-day time period, in which event Borrower shall have an extended period oftime to complete such cure, provided that action to cure such Non-MonetaryDefault has commenced within said thirty (30)-day period and Borrower is, inLender’s sole judgment, not diminishing or impairing the value of the Property,and is diligently pursuing a cure to completion, but in no event longer thanninety (90) days.  It is understood andagreed that the agreement of Lender to provide notice and an opportunity tocure a Monetary Default does not waive Lender’s right to any late paymentcharge.  As used herein, the term “LoanYear” shall mean each twelve (12) month period beginning with January 1,2005 and each anniversary thereof.  Anynotice required hereunder shall be given as provided in the Mortgage.  Except as provided hereinabove, Lender shallhave

 

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no obligation togive Borrower notice of, or any period to cure, any Monetary Default or anyIncurable Default (as hereinafter defined) prior to exercising Lender’s right,power and privilege to accelerate the maturity of the Loan evidenced hereby, todeclare the same to be immediately due and payable, and to exercise all otherrights and remedies herein granted or otherwise available to Lender at law orin equity. As used herein, the term “Monetary Default” shall mean any defaultwhich can be cured by the payment of money, including but not limited to, thepayment of principal and/or interest due under this Note and the payment oftaxes, assessments and insurance premiums when due as provided in the Mortgage. As used herein, the term “Non-MonetaryDefault” shall mean any default which is not a Monetary Default or an IncurableDefault. As used herein, the term “Incurable Default” shall mean either: (i)any voluntary or involuntary sale, assignment, mortgaging or transfer of theProperty or ownership interests in Borrower in violation of the covenants ofthe Mortgage; or (ii) if Borrower, or any person or entity comprising Borrower,should make an assignment for the benefit of creditors, become insolvent, orfile (or have filed against it) a petition in bankruptcy (including but notlimited to, a petition seeking a rearrangement or reorganization) which is notdismissed within thirty (30) days after the filing of same.

 

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

 

Savings Clause;Severability.

 

It is the intentof Borrower and Lender in the execution of this Note and all other instrumentsnow or hereafter securing this Note to contract in strict compliance withapplicable usury law. In furtherance thereof, Lender and Borrower stipulate andagree that none of the terms and provisions contained in this Note, or in anyother instrument executed in connection herewith, shall ever be construed tocreate a contract to pay interest at a rate in excess of the maximum interestrate permitted to be charged by applicable law. Neither Borrower nor anyguarantors, endorsers or other parties now or hereafter becoming liable forpayment of this Note shall ever be required to pay interest on this Note at arate in excess of the maximum interest that may be lawfully charged underapplicable law, and the provisions of this section shall control over allother provisions of this Note and any other instruments now or hereafterexecuted in connection herewith which may be in apparent conflict herewith.  Lender expressly disavows any intention tocharge or collect excessive unearned interest or finance charges in the eventthe maturity of this Note is accelerated.  If the maturity of this Note shall beaccelerated for any reason or if the principal of this Note is paid prior tothe end of the term of this Note, and as a result thereof the interest receivedfor the actual period of existence of the Loan evidenced by this Note exceedsthe maximum permitted by applicable law, Lender shall refund to Borrower theamount of such excess and thereby shall render inapplicable any and allpenalties of any kind provided by applicable law as a result of such excessinterest.  In the event that Lender shallcollect monies which are deemed to constitute interest which would increase theeffective interest rate on this Note to a rate in excess of that permitted tobe charged by applicable law, all such sums deemed to constitute interest inexcess of the lawful rate shall, upon such

 

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determination beimmediately returned to Borrower, in which event any and all penalties of anykind under applicable law as a result of such excess interest shall beinapplicable.  By execution of this Note,Borrower acknowledges that it believes the Loan evidenced by this Note to benon-usurious and agrees that if, at any time, Borrower should have reason tobelieve that such Loan is in fact usurious, it will give Lender notice of suchcondition and Borrower agrees that Lender shall have ninety (90) days in whichto make appropriate refund or other adjustment in order to correct suchcondition if in fact such exists.  Theterm “applicable law” or “applicable usury law” as used in this Note shall meanthe laws of the State of Florida or the laws of the United States, whicheverlaws allow the greater rate of interest and do not violate the laws of theState of Florida, as such laws now exist or may be changed or amended or comeinto effect in the future.  If anyclauses or provisions herein contained operate or would prospectively operateto invalidate this Note, then such clauses or provisions only shall be held fornaught, as though not herein contained and the remainder of this Note shallremain operative and in full force and effect.

 

Exculpation.

 

The liability ofBorrower with respect to the payment of principal and interest shall be “non-recourse”. Except as hereinafter provided, Lender’ssource of satisfaction of Borrower’s obligations under this Note and the otherLoan Documents shall be limited to the Property and Lender’s receipt of therents, issues and profits from the Property and any other security orcollateral now or hereafter held by Lender, and Lender shall not seek toprocure payment out of any other assets of Borrower, or any person or entity comprisingBorrower, or to seek judgment (except as hereinafter provided) for any sumswhich are or may be payable under this Note or any of the other Loan Documents,as well as any claim or judgment (except as hereafter provided) for anydeficiency remaining after foreclosure of the Mortgage.  Notwithstanding the foregoing, nothing hereincontained shall be deemed to be a release or impairment of the Loan evidencedby this Note or the security therefor intended by the other Loan Documents, orbe deemed to preclude Lender from exercising its rights to foreclose theMortgage or to enforce any of its other rights or remedies under the LoanDocuments, including but not limited to that certain Guaranty of even dateherewith from Ernie Euler and Mike Renfro (the “Guarantors”) to Lender (the “Guaranty”).

 

Notwithstandingthe foregoing, it is expressly understood and agreed that the aforesaidlimitation on liability shall in no way affect or apply to the continuedpersonal liability of Borrower for any loss or damage suffered by Lender dueto:

 

(1)           fraud,willful misconduct or material misrepresentation made by Borrower or Guarantorsin or in connection with the letter from Lender consenting to the assumption ofthe Loan dated December 21, 2004, and accepted by Borrower on December 30,2004 and any subsequent amendments thereto, this Note or any of the other LoanDocuments;

 

(2)           thefailure of Borrower to pay taxes which accrue prior to Lender taking control ofthe Property or to pay assessments or any other governmental impositions,charges for labor incurred by Borrower, charges for materials incurred byBorrower or any

 

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other chargesincurred by Borrower which may create liens on any portion of the Property;

 

(3)           themisapplication or misappropriation of (i) proceeds of insurance covering any portionof the Property; (ii) proceeds of the sale, condemnation or transfer in lieu ofcondemnation of any portion of the Property; or (iii) rentals received by or onbehalf of Borrower subsequent to the date on which Lender makes written demand thereforpursuant to any of the Loan Documents;

 

(4)           causing orpermitting waste or causing arson to occur in, on or about the Property, andfailing to maintain the Property, except for ordinary wear and tear;

 

(5)           Borrower’sfailure to return to Lender all unearned advance rentals and security depositsthat have been paid by tenants of the Property to the extent that such amountshave not been refunded to or forfeited by such tenants;

 

(6)           thefailure by Borrower to pay any and all tenant improvement allowances owed to tenantsleasing space in the Property;

 

(7)           thefailure by Borrower to pay to Lender any and all fees paid to Borrower by any tenantof the Property which fees permit the tenant to terminate its lease or otherwiseabandon or vacate its leased premises;

 

(8)           loss byfire or any other casualty to the extent not compensated by insurance proceedscollected by or remitted to Lender, as a result of Borrower’s failure to complywith the insurance provisions of the Mortgage;

 

(9)           thefailure to return to or reimburse Lender for all Fixtures and Personal Property(as defined in the Mortgage) owned by Borrower and taken from the Property byor on behalf of Borrower, out of the ordinary course of business, and notreplaced by items with values equal to or greater than the original values ofthe Fixtures and Personal Property so removed;

 

(10)         all courtcosts and Reasonable Attorneys’ Fees (as hereinafter defined) actually incurredby Lender for which Borrower is liable pursuant to the terms of this Note orany of the other Loan Documents;

 

(11)         (i) theremoval of any chemical, material or substance in excess of legal limits or whichis required by any governmental entity, to which exposure is prohibited, limitedor regulated by any federal, state, county or local authority, and which may orcould pose a hazard to the health and safety of the occupants of the Property (whichsubstances are also further defined in the Mortgage as “Hazardous Materials”),regardless of the source of origination (including sources off the Propertywhich migrate onto the Property or its groundwater); (ii) the restoration of theProperty to comply with all governmental regulations pertaining to Hazardous Materialsfound in, on or under the Property, regardless of the source of origination (includingsources off the Property which migrate onto the Property or its groundwater);and (iii) any indemnity or other agreement to hold Lender harmless

 

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from and againstany and all losses, liabilities, damages, injuries, costs and expenses of anyand every kind arising as a result of the existence and/or removal of HazardousMaterials in violation of Hazardous Waste Laws and from the violation ofHazardous Waste Laws (as defined in the Mortgage).  Borrower shall not be liable hereunder if theProperty becomes contaminated (a) subsequent to Lender’s acquisition of theProperty by foreclosure or acceptance of a deed in lieu thereof, or (b)subsequent to any transfer of ownership of the Property which was approved orauthorized in writing by Lender pursuant to the Mortgage, provided that suchtransferee assumes in writing all obligations of Borrower with respect tocompliance with Hazardous Waste Laws under the Mortgage and the IndemnityAgreement by Borrower and executed of even date herewith.  Liability under this subsection (11)shall extend beyond repayment of the Loan and compliance with the terms of theNote and compliance with the terms of the Mortgage unless Borrower at such timeprovides Lender with an environmental assessment report acceptable to Lender,in Lender’s sole discretion, showing the Property to be free of HazardousMaterials and not in violation of Hazardous Waste Laws.  The burden of proof under this subparagraphwith regard to establishing the date upon which such Hazardous Materials wereplaced or appeared in, on or under the Property shall be upon Borrower;

 

(12)         (i) any andall costs incurred in order to cause the Property to comply with any applicableAccessibility Laws (as defined in the Mortgage) and (ii) any indemnity or otheragreements to hold Lender harmless from and against any and all losses, liabilities,damages, injuries, costs or expenses of any kind arising as a result of non-compliancewith any applicable Accessibility Laws.  Borrowershall not be liable hereunder for compliance with any applicable AccessibilityLaws that first become effective, or for any violation of any applicableAccessibility Laws resulting from alterations or improvements to the Propertythat are performed subsequent to Lender’s acquisition of the Property byforeclosure or acceptance of a deed in lieu thereof or subsequent to anytransfer of ownership of the Property which was approved or authorized inwriting by Lender pursuant to the Mortgage, provided that such transfereeassumes in writing all obligations of Borrower pertaining to any applicableAccessibility Laws pursuant to the terms of the Loan Documents.  The burden of proof under this subparagraphwith regard to establishing the date upon which such non-compliance with anyAccessibility Laws occurred at the Property shall be upon Borrower; and

 

(13)         failure toremit to Lender any amounts under any letter of credit (or any renewals and/orreplacements thereof) supplied by Borrower to Lender in connection with theLoan, this Note or any of the other Loan Documents in the event that the bank issuingsuch letter of credit becomes insolvent, files or has filed against it any bankruptcyor similar proceeding or is closed (either temporarily or permanently), isplaced in receivership, conservatorship or liquidation by the Federal Deposit InsuranceCorporation, Resolution Trust Corporation or any other governmental or quasi-governmentalentity, or otherwise fails or refuses to honor such letter of credit orotherwise fails to maintain certain criteria required by Lender; and

 

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(14)         failure totimely pay any amounts payable for all state documentary stamp taxes andintangible personal property taxes, if any, which may be levied or assessedagainst the Loan, this Note, the Mortgage or any of the other Loan Documents,together with all interest penalties or charges in connection therewith.

 

The obligations ofBorrower in subsections (1) through (14) above, except as specifically providedin subsections (11) and (12), shall survive the repayment of the Loan evidencedby this Note, and satisfaction of the Mortgage unless such repayment is in thefull amount of all sums due and owing under the Loan and such repayment occursprior to a default under the Loan resulting in the foreclosure of the Mortgageor transfer of the Property in lieu of foreclosure.

 

Full Recourse.

 

*Notwithstandingany provisions in this Note to the contrary, including without limitation theprovisions set forth in the section captioned “Exculpation” hereinabove,Borrower shall be personally liable, jointly and severally, for the entireindebtedness evidenced by this Note (including all principal, interest andother charges) in the event (i) Borrower violates the covenant governing theplacing of subordinate financing on the Property as set forth in the Mortgage;(ii) Borrower violates the covenant restricting transfers of interests in theProperty or transfers of ownership interests in Borrower as set forth in theMortgage; or (iii) there is filed against Borrower or any guarantor orindemnitor of the Loan, a petition in bankruptcy or for the appointment of areceiver, or there commences under any bankruptcy or insolvency law,proceedings for Borrower’s relief, or for the compromise, extension,arrangement or adjustment of Borrower’s obligations which is not dismissedwithin thirty (30) days after the filing of same.*

 

Waiverof Jury Trial.

 

BORROWER, TO THEFULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY,WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVERFORGOES HEREBY THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING,INCLUDING, WITHOUT LIMITATION, ANY TORT ACTION, AGAINST LENDER, ITS SUCCESSORSAND ASSIGNS, BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO OR INCONNECTION WITH ANY OF THE LOAN DOCUMENTS, THE LOAN OR ANY COURSE OF CONDUCT,ACT, OMISSION, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) ORACTIONS OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, LENDER’S DIRECTORS,OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHERPERSONS AFFILIATED WITH LENDER), IN CONNECTION WITH THE LOAN OR THE LOANDOCUMENTS INCLUDING, WITHOUT LIMITATION, IN ANY COUNTERCLAIM WHICH ANY PARTYMAY BE PERMITTED TO ASSERT THEREUNDER, WHETHER SOUNDING IN CONTRACT, TORT OROTHERWISE.  IN NO EVENT SHALL LENDER, ITSSUCCESSORS OR ASSIGNS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL ORPUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION LOSS OF BUSINESSPROFITS OR OPPORTUNITY) AND BY ITS EXECUTION HEREOF, BORROWER WAIVES ANY RIGHTTO CLAIM OR SEEK ANY SUCH DAMAGES.

 

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Captions.

 

The captions setforth at the beginning of the various paragraphs of this Note are forconvenience only, and shall not be used to interpret or construe the provisionsof this Note.

 

Attorneys’ Fees.

 

As used herein,the phrase “Reasonable Attorneys’ Fees” shall mean fees charged by attorneysselected by Lender based upon such attorneys’ then prevailing hourly rates asopposed to any statutory presumption specified by any statute then in effect inthe State of Florida.

 

Applicable Laws.

 

This Note and the rights and obligations of the parties hereunder shallbe governed by, and construed in accordance with, the internal laws of theState of Florida, without regard to principles of conflicts of laws.  The parties hereto irrevocably; (i) agree thatany suit, action or other legal proceeding arising out of or relating to thisNote may be brought in a court of record in the State of Florida or in thecourts of the United States of America located in such state; (ii) consent tothe non-exclusive jurisdiction of each such court in any suit, action orproceeding; and (iii) waive any objection which it may have to the laying ofvenue of any such suit, action or proceeding in any of such courts and anyclaim that any such suit, action or proceeding has been brought in aninconvenient forum.

 

Modifications.

 

This Note may notbe amended or modified except by an agreement in writing signed by the partyagainst whom enforcement is sought.

 

Time of theEssence.

 

In connection withthe Loan and this Note, time shall be of the essence. 

 

Successors and Assigns.

 

The terms,conditions, obligations and liabilities of this Note shall be binding uponBorrower, its heirs, personal representatives, successors and assigns, andshall inure to the benefit of Lender, its successors and assigns.  If Borrower is comprised of more than one (1)person or entity, then the liability of each such person and entity hereundershall be joint and several.

 

Authorization.

 

By its signaturebelow, Borrower represents and warrants that the Loan transaction contemplatedby this Note and any of the other Loan Documents have been properly authorizedby Borrower’s governing or managing body, and that the person signing on behalfof Borrower has been duly authorized to sign for, and hereto bind the Borrower.

 

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Transfer.

 

Lender may, at anytime, sell, transfer or assign this Note, the Mortgage, the Assignment and theother Loan Documents, and any or all servicing rights with respect thereto, orgrant participations therein or issue mortgage pass-through certificates orother securities evidencing a beneficial interest in a rated or unrated publicoffering or private placement.  Lendermay forward to each purchaser, transferee, assignee, servicer, participant,investor in such securities or any credit rating agency rating such securities(collectively, the “Investor”) and each prospective Investor, all documents andinformation which Lender now has or may hereafter acquire relating to the Loanand to Borrower, any guarantor and the Property, whether furnished by Borrower,any guarantor or otherwise, as Lender determines necessary or desirable.  Borrower shall execute, acknowledge anddeliver any and all instruments reasonably requested by Lender to satisfy suchpurchasers or participants that the unpaid indebtedness evidenced by this Noteis outstanding upon the terms and provisions set out in this Note and the otherLoan Documents.  To the extent, if any,specified in such assignment or participation, such assignee(s) orparticipant(s) shall have the rights and benefits with respect to this Note andthe other Loan Documents as such assignee(s) or participant(s) would have ifthey were the Lender hereunder.

 

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

 
|       | **INLAND  WESTERN VIERA LAKE****ANDREW,  L.L.C.,** a Delaware limited liability company |
|------------|-----------------------------------------------------------------------------------------|
| ** ** | ** **                                                                              | ** ** | ** ** |
| ** ** | By:                                                                                     | Inland Western Retail  Real Estate Trust, Inc., a Maryland corporation, its sole member | ** ** |
| ** ** | ** **                                                                              | ** ** |
| ** ** | ** **                                                                              | By: | /s/ Debra Palmer | ** ** |
| ** ** | ** **                                                                              | ** ** |
| ** ** | ** **                                                                              | Name: | Debra Palmer | ** ** |
| ** ** | ** **                                                                              | ** ** |
| ** ** | ** **                                                                              | Its: | Asst. Secretary | ** ** |
| ** ** | ** **                                                                              |   | ** ** | ** ** |
| ** ** | ** **                                                                              |   | (CORPORATE SEAL) | ** ** |
|            |                                                                                         |  |  |  |  |  |  |

 

Borrower’s Address:

 

c/o The InlandReal Estate Group, Inc.,

2901 ButterfieldRoad

Oak Brook,Illinois 60523

 

Borrower’s FEI#:20-1930110

 

Documentary Stampsin the amount of FIFTY-FIVE THOUSAND FOUR HUNDRED SEVENTY-FIVE AND NO/100DOLLARS ($55,475,00.00) have been affixed to the original Assumption Agreementof even date herewith which secures this Note.

 

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