Exhibit 10.492


 


	
   

  	
  Borrower Name:

  	
  Inland Western Viera
  Lake Andrew, LLC

  
	
   

  	
  Project Name:

  	
  Shoppes at Lake Andrew

  
	
   

  	
  Viera, Florida

  



 


 


THIS
NOTE IS A RENEWAL NOTE, AMENDING, RESTATING AND RENEWING THAT CERTAIN
FUTURE ADVANCE AND RENEWAL NOTE BY WICKHAM & 95 CORP., A FLORIDA
CORPORATION, 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 LIFE
INSURANCE COMPANY, AN OHIO CORPORATION, DATED FEBRUARY 27, 2004 IN THE ORIGINAL PRINCIPAL AMOUNT OF FIFTEEN
THOUSAND EIGHT HUNDRED FIFTY AND NO/100 DOLLARS ($15,850,000.00) (THE “ORIGINAL NOTE”).


 


FLORIDA
DOCUMENTARY STAMP TAXES ARE BEING PAID IN CONNECTION WITH THE AMOUNT OF FIFTEEN
MILLION SIX HUNDRED FIFTY-SIX THOUSAND FIVE HUNDRED ELEVEN AND NO/100 DOLLARS
($15,656,511.00) BEING ADVANCED
IN CONNECTION HEREWITH.  DOCUMENTARY
STAMPS 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 NOTICE
OF FUTURE ADVANCE, MORTGAGE MODIFICATION AND AMENDED AND RESTATED MORTGAGE AND
SECURITY AGREEMENT DATED FEBRUARY 27, 2004 AND RECORDED ON MARCH 1, 2004 IN OFFICIAL RECORDS BOOK 5212, PAGE 2259 OF THE PUBLIC RECORDS
OF BREVARD COUNTY, FLORIDA, AS AMENDED AND RESTATED BY THAT CERTAIN MORTGAGE
MODIFICATION AND AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT OF EVEN
DATE HEREWITH, SECURES THIS NOTE.  THE OUTSTANDING PRINCIPAL BALANCE OF THE
ORIGINAL NOTE IN THE AMOUNT OF FIFTEEN MILLION SIX HUNDRED FIFTY-SIX THOUSAND
FIVE HUNDRED ELEVEN AND NO/100 DOLLARS
($15,656,511.00) EXEMPT FROM FLORIDA
INTANGIBLE TAXES PURSUANT TO FLORIDA STATUTES SECTION 199.145.3.  THE ORIGINAL OF THE AFORESAID ORIGINAL NOTE IS
ATTACHED HERETO.


 


RENEWAL NOTE


 


	
  $15,656,511.00

  	
  Orlando, Florida

  



 


 


 


December        , 2004


 


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


 





















 


HUNDRED ELEVEN AND
NO/100 DOLLARS ($15,656,511.00), together with interest on the principal
balance of this Renewal Note (the “Note”), from time to time remaining unpaid,
from the date of disbursement by Lender at the applicable interest rate
hereinafter set forth together with all other sums due hereunder or under the
terms of the Mortgage (as hereinafter defined) in lawful money of the United
States of America which shall be legal tender in payment of all debts at the
time of such payment the (“Loan”).  Both
principal and interest and all other sums due hereunder shall be payable at the
office of Lender at One Nationwide Plaza, Columbus, Ohio 43215-2220, Attention:
Real Estate Investment Department, 34T, or at such other place either within or
without the State of Ohio as Lender may from time to time designate.  Said principal and interest shall be paid over
a term, at the times, and in the manner set forth below, to wit:


 


Payment Provision:


 


(A)         Interest accrued on the
unpaid principal balance of this Note from the date of disbursement hereof through
December 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, monthly
installments of interest only on the unpaid principal balance of this Note at
the rate of Five percent (5.00%) per annum, shall be due and payable in Sixty
(60) consecutive monthly installments commencing on February 1, 2005 and
continuing on the first day of each calendar month thereafter, with each such
installment to be in the sum of Sixty-Five Thousand Two Hundred Thirty-Five and
46/100 Dollars ($65,235.46), without deduction or set- off.


 


(C)          Thereafter, monthly
installments of principal and interest on the unpaid principal balance of this
Note at the rate of Six and Fifty-Four One Hundredths percent (6.54%) per annum,
shall be due and payable in Forty-nine (49) consecutive monthly installments commencing
February 1, 2010 and continuing on the first day of each calendar month
thereafter, with each such installment to be in the sum of One Hundred Seven
Thousand Four Hundred Sixteen and 84/100 Dollars ($107,416.84), without
deduction or set-off.


 


Maturity.


 


The unpaid
principal balance of this Note and all accrued unpaid interest thereon, (if not
sooner paid), shall be due and payable in full on March 1, 2014 (the “Maturity
Date”).


 


Application of
Payments.


 


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


 


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Late Payment Charge.


 


Prior to the
acceleration or maturity of this Note, Lender may collect a late payment charge
in an amount equal to five percent (5%) of any full monthly installment not
received by the due date.  Such late
payment charge shall constitute liquidated damages for the purpose of covering
the extra expenses involved in handling delinquent installments and Lender may
collect such late payment charges even though it has not given any notice to
Borrower of such late payment or a cure period, if any, has not passed;
provided that such late payment charge shall not, together with other interest
to be paid on the indebtedness evidenced by this Note or indebtedness arising
under any instrument securing the payment hereof, exceed the maximum interest
permitted under applicable law. Borrower acknowledges that the late payment
charge is a fair and reasonable estimate, considering all of the circumstances
existing on the date of execution of this Note, of the cost the Lender will
incur by reason of such late payment.


 


Prepayment.


 


(A)          Except
as hereinafter provided, Borrower shall not have the right to prepay all or any
part of the Loan at any time. Borrower shall have the right to prepay, in full
but not in part, the Loan evidenced by this Note, provided that, as conditions
precedent, Borrower: (i) gives Lender not less than thirty (30) days’ prior
Written Notice (as defined in the Mortgage) of Borrower’s intention to so
prepay this Note; and (ii) pays to Lender the Prepayment Premium (as
hereinafter defined), if any, then due and payable to Lender as hereinafter
provided.  As used herein, the term “Prepayment
Premium” shall mean a sum equal to the greater of either: (i) one percent (1%)
of the outstanding principal balance of this Note at the time of prepayment; or
(ii) an amount equal to the sum of (a) the present value of the scheduled
monthly payments due under this Note from the date of prepayment to the
Maturity Date, and (b) the present value of the amount of principal and
interest due under this Note on the Maturity Date (assuming all scheduled
monthly payments due prior to the Maturity Date were made when due), minus (c)
the outstanding principal balance of this Note as of the date of prepayment.  The present values described in (a) and (b)
shall be computed on a monthly basis as of the date of prepayment discounted at
the yield-to-maturity of the U.S. Treasury Note or Bond closest in maturity to
the Maturity Date of this Note as reported in The Wall Street Journal
(or, if The Wall Street Journal is no longer published, as reported in
such other daily financial publication of national circulation which shall be
designated by Lender) on the fifth (5) business day preceding the date of
prepayment.  Borrower shall be obligated
to prepay this Note on the date set forth in the notice to Lender required
hereinabove, after such notice has been delivered to Lender.  Notwithstanding the foregoing or any other
provision herein to the contrary, if Lender elects to apply insurance proceeds,
condemnation awards, or any escrowed amounts, if applicable, to the reduction
of the outstanding principal balance of this Note in the manner provided in the
Mortgage, no Prepayment Premium shall be due or payable as a result of such
application, and the monthly installments due and payable hereunder shall be
reduced accordingly.


 


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


 


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


 


(C)           Notwithstanding
anything contained herein to the contrary, during the ninety (90)-day period
immediately preceding the Maturity Date of this Note, the entire outstanding
principal balance and all accrued unpaid interest on this Note may be prepaid
in full, but not in part, at par, without incurring a Prepayment Premium.


 


Additional
Conditions.


 


This Note is
secured by, among other things, that certain Notice Of Future Advance, Mortgage
Modification and Amended and Restated Mortgage and Security Agreement dated February 27,
2004 and recorded on March 1, 2004 in Official Records Book 5212, Page
2259 of the Public Records of Brevard County, Florida, as assumed by Borrower
pursuant to that certain Assumption Agreement of even date herewith to be
recorded in the Public Records of Brevard County, Florida and as amended and
restated by that certain Mortgage Modification and Amended and Restated
Mortgage and Security Agreement of even date herewith to be recorded in the
Public Records of Brevard County, Florida (the “Mortgage”), and by an Amended
and Restated Assignment of Leases, Rents and Profits of even date herewith to
be recorded in the Public Records of Brevard County, Florida (the “Assignment”),
encumbering certain real property described therein and located in Brevard
County, State of Florida and certain other property, all as more particularly
described in the Mortgage (collectively, the “Property”).  The Mortgage and the Assignment contain terms
and provisions which provide grounds for acceleration of the Loan evidenced by
this Note, together with additional remedies in the event of default hereunder
or thereunder.  Failure on the part of
Lender to exercise any right granted herein or in the Mortgage or the
Assignment or any other Loan Document shall not constitute a waiver of such
right, or preclude Lender’s subsequent exercise and enforcement thereof.  This Note, the Mortgage, the Assignment and
all other documents and instruments executed as further evidence of, as
additional security for, or executed in connection with, the Loan evidenced by
this Note are hereinafter collectively referred to as the “Loan Documents”.


 


Except as
otherwise provided herein, all parties to this Note, including endorsers,
sureties and guarantors, if any, hereby jointly and severally waive presentment
for payment, demand, protest, notice of protest, notice of demand, notice of
nonpayment, notice of dishonor, notice of intent to accelerate the maturity of
this Note, notice of acceleration of the maturity of this Note, and any and all
other notices and demands whatsoever, and agree to remain bound hereby until
the principal, interest and all other obligations arising under this Note are
paid in full, notwithstanding any extensions of time for payment which may be
granted by Lender, even though the period of extension be indefinite, and
notwithstanding any inaction by, or failure to assert any legal rights
available to Lender pursuant to the terms and conditions of this Note.


 


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If the obligations
evidenced by this Note, or any part thereof, are placed in the hands of an
attorney or other person for collection, whether by suit or otherwise, at any
time, or from time to time, Borrower shall be liable to Lender, in each
instance, for all costs and expenses incurred in connection therewith,
including, without limitation, Reasonable Attorneys’ Fees (as hereinafter
defined).


 


Default.


 


If Borrower
defaults under this Note or under any of the other Loan Documents, then in any
or all of such events, at the option of Lender, the entire outstanding
principal balance of this Note, together with all accrued unpaid interest
thereon and all other obligations arising under this Note or any of the other
Loan Documents, may be accelerated by Lender and may become and be immediately
due and payable then or thereafter as Lender may elect, regardless of the
Maturity Date hereof.  All such amounts
shall bear interest after maturity, by acceleration or otherwise, at the lesser
of either: (i) the highest rate of interest then allowed by the laws of the
State of Florida or, if controlling, the laws of the United States; or (ii) the
then applicable interest rate of this Note plus five hundred (500) basis points
per annum.


 


During the
existence of any such default, which remains uncured beyond any applicable
grace or cure period, Lender may apply any sums received, including but not
limited to insurance proceeds or condemnation awards, to any amount then due
and owing hereunder or under the terms of any of the other Loan Documents as
Lender may determine.  Neither the right
nor the exercise of the right herein granted unto Lender to apply such proceeds
as aforesaid shall serve to cure the default or preclude Lender from exercising
its option to cause the entire Loan evidenced by this Note to become
immediately due and payable by reason of Borrower’s default under the terms of
this Note or any of the other Loan Documents.


 


Notwithstanding
any provisions herein to the contrary, Lender’s right, power and privilege to
accelerate the maturity of the indebtedness evidenced hereby shall be
conditioned upon, (i) with respect to any Monetary Default (as hereinafter
defined), Lender giving Borrower Written Notice of such Monetary Default and a
five (5) day period after such notice is given within which to cure such
Monetary Default; provided, however, that Lender shall not be required to give
such notice and right to cure as to Monetary Defaults, which occur during any
Loan Year (hereinafter defined) if Lender has previously given Written Notice
of a Monetary Default during such Loan Year; and (ii) with respect to any
Non-Monetary Default (as hereinafter defined), Lender giving Borrower Written
Notice of such Non-Monetary Default and a thirty (30)-day period, after the
date of such notice, within which to cure such Non-Monetary Default, unless
such Non-Monetary Default cannot reasonably be cured within said thirty
(30)-day time period, in which event Borrower shall have an extended period of
time to complete such cure, provided that action to cure such Non-Monetary
Default has commenced within said thirty (30)-day period and Borrower is, in
Lender’s sole judgment, not diminishing or impairing the value of the Property,
and is diligently pursuing a cure to completion, but in no event longer than
ninety (90) days.  It is understood and
agreed that the agreement of Lender to provide notice and an opportunity to
cure a Monetary Default does not waive Lender’s right to any late payment
charge.  As used herein, the term “Loan
Year” shall mean each twelve (12) month period beginning with January 1,
2005 and each anniversary thereof.  Any
notice required hereunder shall be given as provided in the Mortgage.  Except as provided hereinabove, Lender shall
have


 


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


 


Notwithstanding
any provision of this Note to the contrary, during any period of default and
regardless of any cure period applicable to such default, in each instance
under this Note, the Mortgage, or any of the other Loan Documents in which
either: (i) Borrower is permitted to take a material action without Lender’s
consent; or (ii) Lender’s consent is to be exercised reasonably, Lender’s
consent shall be required and shall be granted or withheld in Lender’s sole and
absolute discretion.


 


Savings Clause;
Severability.


 


It is the intent
of Borrower and Lender in the execution of this Note and all other instruments
now or hereafter securing this Note to contract in strict compliance with
applicable usury law. In furtherance thereof, Lender and Borrower stipulate and
agree that none of the terms and provisions contained in this Note, or in any
other instrument executed in connection herewith, shall ever be construed to
create a contract to pay interest at a rate in excess of the maximum interest
rate permitted to be charged by applicable law. Neither Borrower nor any
guarantors, endorsers or other parties now or hereafter becoming liable for
payment of this Note shall ever be required to pay interest on this Note at a
rate in excess of the maximum interest that may be lawfully charged under
applicable law, and the provisions of this section shall control over all
other provisions of this Note and any other instruments now or hereafter
executed in connection herewith which may be in apparent conflict herewith.  Lender expressly disavows any intention to
charge or collect excessive unearned interest or finance charges in the event
the maturity of this Note is accelerated.  If the maturity of this Note shall be
accelerated for any reason or if the principal of this Note is paid prior to
the end of the term of this Note, and as a result thereof the interest received
for the actual period of existence of the Loan evidenced by this Note exceeds
the maximum permitted by applicable law, Lender shall refund to Borrower the
amount of such excess and thereby shall render inapplicable any and all
penalties of any kind provided by applicable law as a result of such excess
interest.  In the event that Lender shall
collect monies which are deemed to constitute interest which would increase the
effective interest rate on this Note to a rate in excess of that permitted to
be charged by applicable law, all such sums deemed to constitute interest in
excess of the lawful rate shall, upon such


 


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determination be
immediately returned to Borrower, in which event any and all penalties of any
kind under applicable law as a result of such excess interest shall be
inapplicable.  By execution of this Note,
Borrower acknowledges that it believes the Loan evidenced by this Note to be
non-usurious and agrees that if, at any time, Borrower should have reason to
believe that such Loan is in fact usurious, it will give Lender notice of such
condition and Borrower agrees that Lender shall have ninety (90) days in which
to make appropriate refund or other adjustment in order to correct such
condition if in fact such exists.  The
term “applicable law” or “applicable usury law” as used in this Note shall mean
the laws of the State of Florida or the laws of the United States, whichever
laws allow the greater rate of interest and do not violate the laws of the
State of Florida, as such laws now exist or may be changed or amended or come
into effect in the future.  If any
clauses or provisions herein contained operate or would prospectively operate
to invalidate this Note, then such clauses or provisions only shall be held for
naught, as though not herein contained and the remainder of this Note shall
remain operative and in full force and effect.


 


Exculpation.


 


The liability of
Borrower with respect to the payment of principal and interest shall be “non-recourse”.
 Except as hereinafter provided, Lender’s
source of satisfaction of Borrower’s obligations under this Note and the other
Loan Documents shall be limited to the Property and Lender’s receipt of the
rents, issues and profits from the Property and any other security or
collateral now or hereafter held by Lender, and Lender shall not seek to
procure payment out of any other assets of Borrower, or any person or entity comprising
Borrower, or to seek judgment (except as hereinafter provided) for any sums
which are or may be payable under this Note or any of the other Loan Documents,
as well as any claim or judgment (except as hereafter provided) for any
deficiency remaining after foreclosure of the Mortgage.  Notwithstanding the foregoing, nothing herein
contained shall be deemed to be a release or impairment of the Loan evidenced
by this Note or the security therefor intended by the other Loan Documents, or
be deemed to preclude Lender from exercising its rights to foreclose the
Mortgage or to enforce any of its other rights or remedies under the Loan
Documents, including but not limited to that certain Guaranty of even date
herewith from Ernie Euler and Mike Renfro (the “Guarantors”) to Lender (the “Guaranty”).


 


Notwithstanding
the foregoing, it is expressly understood and agreed that the aforesaid
limitation on liability shall in no way affect or apply to the continued
personal liability of Borrower for any loss or damage suffered by Lender due
to:


 


(1)           fraud,
willful misconduct or material misrepresentation made by Borrower or Guarantors
in or in connection with the letter from Lender consenting to the assumption of
the 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 Loan
Documents;


 


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


 


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


 


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


 


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


 


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


 


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


 


(7)           the
failure by Borrower to pay to Lender any and all fees paid to Borrower by any tenant
of the Property which fees permit the tenant to terminate its lease or otherwise
abandon or vacate its leased premises;


 


(8)           loss by
fire or any other casualty to the extent not compensated by insurance proceeds
collected by or remitted to Lender, as a result of Borrower’s failure to comply
with the insurance provisions of the Mortgage;


 


(9)           the
failure to return to or reimburse Lender for all Fixtures and Personal Property
(as defined in the Mortgage) owned by Borrower and taken from the Property by
or on behalf of Borrower, out of the ordinary course of business, and not
replaced by items with values equal to or greater than the original values of
the Fixtures and Personal Property so removed;


 


(10)         all court
costs and Reasonable Attorneys’ Fees (as hereinafter defined) actually incurred
by Lender for which Borrower is liable pursuant to the terms of this Note or
any of the other Loan Documents;


 


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


 


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


 


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


 


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


 


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


 


The obligations of
Borrower in subsections (1) through (14) above, except as specifically provided
in subsections (11) and (12), shall survive the repayment of the Loan evidenced
by this Note, and satisfaction of the Mortgage unless such repayment is in the
full amount of all sums due and owing under the Loan and such repayment occurs
prior to a default under the Loan resulting in the foreclosure of the Mortgage
or transfer of the Property in lieu of foreclosure.


 


Full Recourse.


 


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


 


Waiver
of Jury Trial.


 


BORROWER, TO THE
FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY,
WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER
FORGOES HEREBY THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING,
INCLUDING, WITHOUT LIMITATION, ANY TORT ACTION, AGAINST LENDER, ITS SUCCESSORS
AND ASSIGNS, BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO OR IN
CONNECTION WITH ANY OF THE LOAN DOCUMENTS, THE LOAN OR ANY COURSE OF CONDUCT,
ACT, OMISSION, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, LENDER’S DIRECTORS,
OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER
PERSONS AFFILIATED WITH LENDER), IN CONNECTION WITH THE LOAN OR THE LOAN
DOCUMENTS INCLUDING, WITHOUT LIMITATION, IN ANY COUNTERCLAIM WHICH ANY PARTY
MAY BE PERMITTED TO ASSERT THEREUNDER, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE.  IN NO EVENT SHALL LENDER, ITS
SUCCESSORS OR ASSIGNS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS
PROFITS OR OPPORTUNITY) AND BY ITS EXECUTION HEREOF, BORROWER WAIVES ANY RIGHT
TO CLAIM OR SEEK ANY SUCH DAMAGES.


 


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Captions.


 


The captions set
forth at the beginning of the various paragraphs of this Note are for
convenience only, and shall not be used to interpret or construe the provisions
of this Note.


 


Attorneys’ Fees.


 


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


 


Applicable Laws.


 


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


 


Modifications.


 


This Note may not
be amended or modified except by an agreement in writing signed by the party
against whom enforcement is sought.


 


Time of the
Essence.


 


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


 


Successors and Assigns.


 


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


 


Authorization.


 


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


 


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Transfer.


 


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


 


IN  WITNESS WHEREOF, Borrower has executed this Note under seal as
of 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 Inland
Real Estate Group, Inc.,


2901 Butterfield
Road


Oak Brook,
Illinois 60523


 


Borrower’s FEI#:
20-1930110


 


Documentary Stamps
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 secures this Note.


 


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