**Exhibit10.457**

 

LOAN TERMS TABLE

 
| Note Date: December 16, 2004                                                                    |   | MERS No.: 8000101-0000000565-1            |
|-------------------------------------------------------------------------------------------------|--------|-------------------------------------------|
| Borrower: **INLAND WESTERN PHOENIX  31ST AVENUE, L.L.C.,** a Delaware limitedliability  company |
| Original Principal Amount: **$31,860,000.00**                                                   |   | Loan No.: 58621                           |
| Initial Note Rate: **4.2675%**                                                                  |   | Servicing No.: 3190683                    |
| Revised Note Rate: As defined in Article 2                                                      |   | Borrower’s TIN: 20-1907908           |
| Monthly Payment Amount: As defined in Article 1(a)                                              |   | Optional Prepayment Date: January 1, 2010 |
| Lockout Period: From the date hereof through and including December  31, 2006                   |
| Maturity Date: January 1, 2015                                                                  |   |                                      |

 

**PROMISSORYNOTE**

 

FOR VALUE RECEIVED Borrower, having itsprincipal place of business at 2901 Butterfield Road, Oak Brook, IL 60523,hereby unconditionally promises to pay to the order of **BANK OFAMERICA, N.A.,** a national banking association, having an address at214 North Tryon Street, Charlotte, North Carolina 28255 (**“Lender”**),the Original Principal Amount, in lawful money of the United States of Americawith interest thereon to be computed from the date of this Note at the NoteRate (as defined below), and to be paid in accordance with the terms set forthbelow. The Loan Terms Table set forth above is a part of this Note and allterms used in this Note which are defined in the Loan Terms Table shall havethe meaning set forth therein. All capitalized terms not defined herein shallhave the respective meanings set forth in that certain Loan Agreement dated thedate hereof between Lender and Borrower (the **‘‘LoanAgreement”**).

 

**Article 1 -****PAYMENT TERMS; MANNER OF PAYMENT**

 

(a)           Borrower herebyagrees to pay sums due under this Note as follows: an initial payment is due onthe Closing Date for interest from the Closing Date through and including the lastday of the calendar month in which the Closing Date occurs; and thereafter,except as may be adjusted in accordance with the last sentence of Section l(b),consecutive monthly installments of interest only in an amount calculated inaccordance with Article 2 below (such amount, the **“MonthlyPayment Amount”**) shall be payable pursuant to the terms hereof onthe first (1st) day of each month beginning on February 1, 2005 (each such datethrough and including the Maturity Date, a **“Scheduled Payment Date”**)until the entire indebtedness evidenced hereby is fully paid, except that anyremaining indebtedness, if not sooner paid, shall be due and payable on theMaturity Date.  In addition to theforegoing, commencing on the Optional Prepayment Date and continuing on eachScheduled Payment Date thereafter, Borrower hereby agrees to pay all ExcessCash (as defined in the Loan Agreement) until the principal amount of this Noteis paid in full, provided, however, the entire Debt, including all Accrued Interest(defined below), shall be due on the Maturity Date.

 

(b)           Each payment byBorrower hereunder shall be made to P.O. Box 65585, Charlotte, NC 28265-0585,or at such other place as Lender may designate from time to time in

 

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writing. Whenever any payment hereunder shall be stated to be due on aday which is not a Business Day, such payment shall be made on the firstBusiness Day preceding such scheduled due date. All payments made by Borrowerhereunder or under the other Loan Documents shall be made irrespective of, andwithout any deduction for, any setoff, defense or counterclaims.

 

(c)           Provided no Event ofDefault has occurred, (i) each Monthly Payment Amount made as scheduled on thisNote shall be applied first to the payment of interest computed at the InitialNote Rate, and the balance toward the reduction of the principal amount of thisNote, and (ii) each payment of Excess Cash made as required on this Note shallbe applied first to the reduction of the principal amount of this Note untilpaid in full, and the balance to Accrued Interest until paid in full. Allvoluntary and involuntary prepayments on this Note shall be applied, to theextent thereof, to accrued but unpaid interest on the amount prepaid, to the remainingPrincipal Amount, and any other sums due and unpaid to the Lender in connectionwith the Loan, in such manner and order as Lender may elect in its sole andabsolute discretion, including, but not limited to, application to principalinstallments in inverse order of maturity. Following the occurrence of an Eventof Default, any payment made on this Note shall be applied to accrued butunpaid interest, late charges, accrued fees, the unpaid principal amount of thisNote, and any other sums due and unpaid to Lender in connection with the Loan,in such manner and order as Lender may elect in its sole and absolutediscretion.

 

(d)           Remittances inpayment of any part of the indebtedness other than in the required amount inimmediately available U.S. funds shall not, regardless of any receipt or creditissued therefor, constitute payment until the required amount is actuallyreceived by the holder hereof in immediately available U.S. funds and shall bemade and accepted subject to the condition that any check or draft may behandled for collection in accordance with the practices of the collecting bankor banks.

 

**Article****2 *-*INTEREST**

 

The Loan shall bear interest at a fixed rateper annum equal to the Note Rate. The **“Note Rate”**shall mean (a) from the date of this Note through but excluding the OptionalPrepayment Date, the Initial Note Rate, and (b) from and after the OptionalPrepayment Date through and including the date this Note is paid in full, theRevised Note Rate. The **“Revised Note Rate”**shall mean a rate per annum equal to the sum of (x) two percent (2.00%) and (y)the greater of (i) the Initial Note Rate and (ii) the sum of the Treasury Rateplus five percent (5.00%). The **“Treasury Rate”**shall mean the yield per annum calculated by the linear interpolation ofyields, as reported in the Federal Reserve Statistical Release H.15 – SelectedInterest Rates under the heading “US government securities” and the subheading “Treasuryconstant maturities” for the week ending prior to the Optional Prepayment Date,of U.S. Treasury constant maturities with maturity dates (one longer and oneshorter) most nearly approximating the Maturity Date. In the event H.15 is nolonger published, Lender in its reasonable discretion shall select a comparablepublication to determine the Treasury Rate.  From and after the Optional Prepayment Date,interest in excess of the Initial Note Rate shall accrue and be added to theDebt and shall earn interest at the Revised Note Rate to the extent permittedby applicable law (**“Accrued Interest”**).Interest shall be computed on the basis of a three hundred sixty (360) day yearconsisting of twelve (12) months of thirty (30) days each. Except as otherwiseset forth herein or in the other Loan Documents, interest shall be paid inarrears.

 

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**Article3 - DEFAULT AND ACCELERATlON**

 

The Debt shall without notice become immediately due and payable at theoption of Lender if any payment required in this Note is not paid prior to thetenth (10th) day following the date when due or if not paid on theMaturity Date or on the happening of any other Event of Default.

 

**Article4 - PAYMENTS AFTER DEFAULT**

 

Upon the occurrence and during the continuance of an Event of Default,interest on the outstanding principal balance of the Loan and, to the extentpermitted by law, overdue interest and other amounts due in respect of the Loanshall accrue at a rate per annum equal to the lesser of (a) the maximum ratepermitted by applicable law, or (b) four percent (4%) above the Note Rate (suchrate, the **“Default Rate”**). Interest at the Default Rate shallbe computed from the occurrence of the Event of Default until the earlier of(i) the actual receipt and collection of the Debt (or that portion thereof thatis then due) and (ii) the cure of such Event of Default. To the extentpermitted by applicable law, interest at the Default Rate shall be added to theDebt, shall itself accrue interest at the same rate as the Loan and shall besecured by the Security Instrument. This Article shall not be construed as anagreement or privilege to extend the date of the payment of the Debt, nor as awaiver of any other right or remedy accruing to Lender by reason of theoccurrence of any Event of Default; the acceptance of any payment from Borrowershall not be deemed to cure or constitute a waiver of any Event, of Default; andLender retains its rights under this Note, the Loan Agreement and the otherLoan Documents to accelerate and to continue to demand payment of the Debt uponthe happening of and during the continuance any Event of Default, despite anypayment by Borrower to Lender.

 

**Article5 - PREPAYMENT**

 

Except as otherwise expressly permitted by this Article 5, no voluntaryprepayments, whether in whole or in part, of the Loan or any other amount atany time due and owing under this Note can be made by Borrower or any otherPerson without the express written consent of Lender.

 

(a)                                  Lockout Period.  Borrowershall have no right to make, and Lender shall have no obligation to accept, anyvoluntary prepayment, whether in whole or in part, of the Loan, or any otheramount under this Note or the other Loan Documents, at any time during theLockout Period. At any time following the expiration of the Lockout Period, theprincipal balance of this Note may be voluntarily prepaid in whole, but not inpart, upon the satisfaction of the following conditions:

 

(i)            no Default shall exist under any of the LoanDocuments;

 

(ii)            not less than sixty (60) (but not more thanninety (90)) days prior written notice shall be given to Lender specifying adate on which the prepayment shall occur such date being a Scheduled Payment Date(the “Prepayment Date”);

 

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(iii)          Borrower has paid to Lender all accrued and unpaid intereston the Loan through and including the Prepayment Date together with all othersums due under this Note and the other Loan Documents; and

 

(iv)          Borrower has paid to Lender a prepayment premium in anamount equal to Yield Maintenance (as defined and calculated in accordance withSection 5(b) below); provided, however, that in the event of avoluntary prepayment made by Borrower within sixty (60) days of the OptionalPrepayment Date, there shall be no prepayment premium required to be paid byBorrower.

 

(b)           InvoluntaryPrepayment.  In the event of anyinvoluntary prepayment of the Loan or any other amount under this Note, whetherin whole or in part, in connection with or following Lender’s acceleration ofthis Note or otherwise, and whether the Security Instrument is satisfied orreleased by foreclosure (whether by power of sale or judicial proceeding), deedin lieu of foreclosure or by any other means, including, without limitation,repayment of the Loan by Borrower or any other Person pursuant to any statutoryor common law right of redemption, Borrower shall pay any portion of theprincipal balance of the Loan prepaid (together with all interest accrued andunpaid thereon and, in the event the prepayment is made on a date other than aScheduled Payment Date, a sum equal to the amount of interest which would haveaccrued under this Note on the amount of such prepayment if such prepayment hadoccurred on the next Scheduled Payment Date).

 

As used herein, “Yield Maintenance” means a prepayment premium in anamount equal to the greater of equal to the greater of (i) 1% of the portion ofthe Loan being prepaid, and (ii) the present value as of the PrepaymentCalculation Date of a series of monthly payments over the remaining term of theLoan through and including the Optional Prepayment Date each equal to theamount of interest which would be due on the portion of the Loan being prepaidassuming a per annum interest rate equal to the excess of the Note Rate overthe Reinvestment Yield, and discounted at the Reinvestment Yield. As usedherein, “Reinvestment Yield” means the yield calculated by the linearinterpolation of the yields, as reported in the Federal Reserve StatisticalRelease H.15-Selected Interest Rates under the heading “U.S. governmentsecurities” and the sub-heading “Treasury constant maturities” for the weekending prior to the Prepayment Calculation Date, of the U.S. Treasury constantmaturities with maturity dates (one longer and one equal to or shorter) mostnearly approximating the Optional Prepayment Date, and converted to a monthlycompounded nominal yield. In the event Release H.15 is no longer published,Lender shall select a comparable publication to determine the ReinvestmentYield. The “Prepayment Calculation Date” shall mean, as applicable, the date onwhich (i) Lender applies any prepayment to the reduction of the outstandingprincipal amount of this Note, (ii) Lender accelerates the Loan, in the case ofa prepayment resulting from acceleration, or (iii) Lender applies funds heldunder any Reserve Account, in the case of a prepayment resulting from such anapplication (other than in connection with acceleration of the Loan).

 

(c)           InsuranceProceeds and Awards; Excess Interest.  Notwithstanding any other provision herein tothe contrary, and provided no Default exists, Borrower shall not be required topay any prepayment premium in connection with any prepayment occurring solelyas a result of (i) the application of Insurance Proceeds or Awards pursuant tothe terms of the Loan

 

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Documents, or (ii) theapplication of any interest in excess of the maximum rate permitted byapplicable law to the reduction of the Loan.

 

(d)           Open Prepayment Period.  Borrower may voluntarily prepay (withoutpremium) this Note on a Scheduled Payment Date (i) in whole (but not in part)during the sixty (60) days prior to the Optional Prepayment Date, and (ii) inwhole or in part from the Optional Prepayment Date through and including thedate this Note is paid in full, in each case, upon giving Lender at least sixty(60) days (but not more than ninety (90) days) prior written notice.  Lender shall accept a prepayment pursuant tothis Section 5(d) on a day other than a Scheduled Payment Date provided that,in addition to payment of the full outstanding principal balance of this Note, Borrowerpays to Lender a sum equal to the amount of interest which would have accruedon this Note if such prepayment occurred on the next Scheduled Payment Date.

 

(e)           Limitation on Partial Prepayments.In no event shall Lender have any obligation to accept a partial prepayment.

 

**Article 6- SECURITY**

 

This Note is secured by theSecurity Instrument and the other Loan Documents. All of the terms, covenantsand conditions contained in the Loan Agreement, the Security Instrument and theother Loan Documents are hereby made part of this Note to the same extent andwith the same force as if they were fully set forth herein.

 

**Article 7 - USURY SAVINGS**

 

This Note is subject to theexpress condition that at no time shall Borrower be obligated or required topay interest on the principal balance of the Loan at a rate which could subjectLender to either civil or criminal liability as a result of being in excess ofthe maximum nonusurious interest rate, if any, that at any time or from time totime may be contracted for, taken, reserved, charged or received on theindebtedness evidenced by this Note and as provided for herein or in the otherLoan Documents, under the laws of such state or states whose laws are held byany court of competent jurisdiction to govern the interest rate provisions ofthe Loan (such rate, the **“Maximum Legal Rate”**).If, by the terms of this Note or the other Loan Documents, Borrower is at anytime required or obligated to pay interest on the principal balance duehereunder at a rate in excess of the Maximum Legal Rate, the Note Rate or theDefault Rate, as the case may be, shall be deemed to be immediately reduced tothe Maximum Legal Rate and all previous payments in excess of the Maximum LegalRate shall be deemed to have been payments in reduction of principal and not onaccount of the interest due hereunder. All sums paid or agreed to be paid toLender for the use, forbearance, or detention of the sums due under the Loan,shall, to the extent permitted by applicable law, be amortized, prorated, allocated,and spread throughout the full stated term of the Loan until payment in full sothat the rate or amount of interest on account of the Loan does not exceed theMaximum Legal Rate of interest from time to time in effect and applicable tothe Loan for so long as the Loan is outstanding.

 

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**Article****8 - LATE PAYMENT CHARGE**

 

If any principal or interest payment is notpaid by Borrower before the tenth (10th) day after the date the same is due (orsuch greater period, if any, required by applicable law), Borrower shall pay toLender upon demand an amount equal to the lesser of four percent (4%) of suchunpaid sum or the maximum amount permitted by applicable law in order to defraythe expense incurred by Lender in handling and processing such delinquentpayment and to compensate Lender for the loss of the use of such delinquentpayment, provided however, Borrower shall not be required to pay Lender a latecharge in connection with the final payment under the loan. Any such amountshall be secured by the Security Instrument and the other Loan Documents to theextent permitted by applicable law.

 

**Article 9 - NO ORAL CHANGE**

 

This Note maynot be modified, amended, waived, extended, changed, discharged or terminatedorally or by any act or failure to act on the part of Borrower or Lender, butonly by an agreement in writing signed by the party against whom enforcement ofany modification, amendment, waiver, extension, change, discharge ortermination is sought.

 

**Article10 - WAIVERS**

 

**BORROWERAND ALL OTHERS WHO MAY BECOME LIABLE FOR THE PAYMENT OF ALL OR ANY PART OF THEDEBT DO HEREBY SEVERALLY WAIVE PRESENTMENT AND DEMAND FOR PAYMENT,****NOTICE OF DISHONOR, NOTICE OF INTENTION TOACCELERATE, NOTICE OF ACCELERATION, PROTEST AND NOTICE OF PROTEST ANDNON-PAYMENT AND ALL OTHER NOTICES OF ANY KIND EXCEPT AS PROVIDED IN THE LOANAGREEMENT. NO RELEASE OF ANY SECURITY FOR THE DEBT OR EXTENSION****OF TIME FOR PAYMENT OF THIS NOTE OR ANY INSTALLMENTHEREOF, AND NO ALTERATION, AMENDMENT OR WAIVER OF ANY PROVISION OF THIS NOTE, THELOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS MADE BY AGREEMENT BETWEEN LENDER ORANY OTHER PERSON SHALL RELEASE, MODIFY, AMEND,****WAIVE, EXTEND, CHANGE, DISCHARGE, TERMINATE OR AFFECTTHE LIABILITY OF BORROWER, AND ANY OTHER PERSON WHO MAY BECOME LIABLE FOR THEPAYMENT OF ALL OR ANY PART OF THE DEBT, UNDER THIS NOTE, THE LOAN AGREEMENT ORTHE OTHER LOAN DOCUMENTS. NO NOTICE TO OR DEMAND ON BORROWER SHALL BE DEEMED TOBE A WAIVER OF THE OBLIGATION OF BORROWER OR OF THE RIGHT OF LENDER TO TAKEFURTHER ACTION WITHOUT FURTHER NOTICE OR DEMAND AS PROVIDED FOR IN THIS NOTE,THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS. IF BORROWER IS A LIMITEDLIABILITY COMPANY, THE AGREEMENTS HEREIN CONTAINED SHALL REMAIN IN FORCE AND****BE APPLICABLE, NOTWITHSTANDING ANY CHANGES INTHE INDIVIDUALS COMPRISING THE LIMITED LIABILITY COMPANY, AND THE TERM “BORROWER,”AS USED HEREIN, SHALL INCLUDE ANY ALTERNATE OR SUCCESSOR LIMITED LIABILITYCOMPANY, BUT ANY PREDECESSOR LIMITED LIABILITY COMPANY AND ITS MEMBERS SHALLNOT THEREBY BE RELEASED FROM ANY LIABILITY. IF BORROWER IS A PARTNERSHIP, THEAGREEMENTS HEREIN CONTAINED SHALL REMAIN IN FORCE AND BE**

 

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**APPLICABLE, NOTWITHSTANDING ANY CHANGES IN THEINDIVIDUALS COMPRISING THE PARTNERSHIP, AND THE TERM “BORROWER,” AS USEDHEREIN, SHALL INCLUDE ANY ALTERNATE OR SUCCESSOR PARTNERSHIP, BUT ANYPREDECESSOR PARTNERSHIP AND THEIR PARTNERS SHALL NOT THEREBY BE RELEASED FROMANY LIABILITY. IF BORROWER IS A CORPORATION, THE AGREEMENTS CONTAINED HEREINSHALL REMAIN IN FULL FORCE AND BE APPLICABLE NOTWITHSTANDING ANY CHANGES IN THESHAREHOLDERS COMPRISING, OR THE OFFICERS AND DIRECTORS RELATING TO, THECORPORATION, AND THE TERM “BORROWER” AS USED HEREIN, SHALL INCLUDE ANYALTERNATIVE OR SUCCESSOR CORPORATION, BUT ANY PREDECESSOR CORPORATION SHALL NOTBE RELIEVED OF LIABILITY HEREUNDER. (NOTHING IN THE FOREGOING SENTENCE SHALL BECONSTRUED AS A CONSENT TO, OR A WAIVER OF, ANY PROHIBITION OR RESTRICTION ONTRANSFERS OF INTERESTS IN SUCH BORROWING ENTITY WHICH MAY BE SET FORTH IN THELOAN AGREEMENT, THE MORTGAGE OR ANY OTHER LOAN DOCUMENTS.) IF BORROWER CONSISTSOF MORE THAN ONE PERSON OR PARTY, THE OBLIGATIONS AND LIABILITIES OF EACHPERSON OR PARTY SHALL BE JOINT AND SEVERAL.**

 

**Article 11- TRIAL BY JURY**

 

**BORROWERAND LENDER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLEOF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENTTHAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS NOTE, ORANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THISWAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWERAND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACHISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OFLENDER AND BORROWER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH INANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER AND LENDER.**

 

**Article 12- TRANSFER**

 

Upon the transfer of thisNote, Borrower hereby waiving notice of any such transfer, Lender may deliverall the collateral mortgaged, granted, pledged or assigned pursuant to the LoanDocuments, or any part thereof, to the transferee who shall thereupon becomevested with all the rights herein or under applicable law given to Lender withrespect thereto, and Lender shall thereafter forever be relieved and fullydischarged from any liability or responsibility in the matter arising fromevents thereafter occurring; but Lender shall retain all rights hereby given toit with respect to any liabilities and the collateral not so transferred.

 

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**Article 13- EXCULPATION**

 

The provisionsof Article 15 of the Loan Agreement are hereby incorporated by reference intothis Note to the same extent and with the same force as if fully set forthherein.

 

**Article 14*-*GOVERNING LAW**

 

This Noteshall in all respects be governed, construed, applied and enforced in accordancewith the laws of the state in which the Property is located and any applicablefederal laws of the United States of America.

 

**Article 15- NOTICES**

 

All notices orother written communications hereunder shall be delivered in accordance withArticle 16 of the Loan Agreement.

 

**Article 16 - TAXPAYERIDENTIFICATION NUMBER**

 

This Noteprovides for the Borrower’s federal taxpayer identification number to beinserted in the Loan Terms Table on the first page of this Note. If such numberis not available at the time of execution of this Note or is not inserted bythe Borrower, the Borrower hereby authorizes and directs the Lender to fill insuch number on the first page of this Note when the Borrower provides toLender, advises the Lender of, or the Lender otherwise obtains, such number.

 

**Article 17 - ATTORNEYS’ FEES**

 

Any provisions in this Note or elsewhere inthe Loan Documents providing for the payment of “attorneys’ fees,” “reasonableattorneys’ fees” or words of similar import, shall mean actual attorneys’ feesand paralegal fees incurred based upon the usual and customary fees or hourlyrates of the attorneys and paralegals involved without giving effect to anystatutory presumption that may then be in effect.

 

**[NO****FURTHER TEXT ON THIS PAGE]**

 

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IN WITNESS WHEREOF, Borrower has dulyexecuted this Note as of the day and year first above written.

 
|   | INLAND WESTERN PHOENIX 31ST AVENUE,  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 A. Palmer |
|   |                                                                              | Name: | Debra A. Palmer |
|   |                                                                              | Its: | Asst Secretary |
|        |                                                                                   |  |  |  |

 

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