**Exhibit 10.438**

 

**PROMISSORY NOTE**

 
| $13,695,000.00 |   | New York, New York       |
|----------------|--------|--------------------------|
|           |   | December 21,* *2004 |

 

FOR VALUE RECEIVED, INLAND WESTERN PLACENTIA, L.L.C., a Delawarelimited liability company having its principal place of business at 2901Butterfield Road, Oak Brook, Illinois 60523, a maker hereunder (referred toherein as “**Borrower**”), herebyunconditionally promises to pay to the order of BEAR STEARNS COMMERCIALMORTGAGE, INC., a New York corporation, as payee, having an address at 383Madison Avenue, New York, New York 10179 (“**Lender**”),or at such other place as the holder hereof may from time to time designate inwriting, the principal sum of THIRTEEN MILLION SIX HUNDRED NINETY FIVE THOUSANDAND NO/100 DOLLARS ($13,695,000.00), in lawful money of the United States ofAmerica with interest thereon to be computed from the date of this Note at theInterest Rate, and to be paid in accordance with the terms of this Note andthat certain Loan Agreement, dated as of the date hereof, between Borrower andLender (the “**Loan****Agreement**”).All capitalized terms not defined herein shall have the respective meanings setforth in the Loan Agreement.

 

**ARTICLE 1**

** **

**PAYMENT TERMS**

 

Borrower agrees to pay interest on the unpaid principal sum of thisNote from time to time outstanding at the rates and at the times specified inthe Loan Agreement and the outstanding balance of the principal sum of thisNote and all accrued and unpaid interest thereon shall be due and payable onthe Maturity Date. This Note shall be the “Note” as defined in the LoanAgreement.

 

**ARTICLE 2**

** **

**DEFAULT AND ACCELERATION**

 

The Debt shall without notice become immediately due and payable at theoption of Lender if any payment required in this Note is not paid on or priorto the date when due or if not paid on the Maturity Date or on the happening ofany other Event of Default.

 

**ARTICLE 3**

** **

**LOAN DOCUMENTS**

 

This Note is secured by the Mortgage and the other Loan Documents. Allof the terms, covenants and conditions contained in the Loan Agreement, theMortgage and the other Loan Documents are hereby made part of this Note to thesame extent and with the same force as if they were fully set forth herein. Inthe event of a conflict or inconsistency between the terms of this Note and theLoan Agreement, the terms and provisions of the Loan Agreement shall govern.

 

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**ARTICLE 4**

** **

**SAVINGS CLAUSE**

 

Notwithstanding anything to the contrary, (a) all agreements andcommunications between Borrower and Lender are hereby and shall automaticallybe limited so that, after taking into account all amounts deemed interest, theinterest contracted for, charged or received by Lender shall never exceed themaximum lawful rate or amount, (b) in calculating whether any interest exceedsthe lawful maximum, all such interest shall be amortized, prorated, allocatedand spread over the full amount and term of all principal indebtedness ofBorrower to Lender, and (c) if through any contingency or event, Lenderreceives or is deemed to receive interest in excess of the lawful maximum, anysuch excess shall be deemed to have been applied (without prepayment penalty orpremium) toward payment of the principal of any and all then outstandingindebtedness of Borrower to Lender, or if there is no such indebtedness, shallimmediately be returned to Borrower.

 

**ARTICLE 5**

** **

**NO ORAL CHANGE**

 

This Note may not be modified, amended, waived, extended, changed,discharged or terminated orally or by any act or failure to act on the part ofBorrower or Lender, but only by an agreement in writing signed by the partyagainst whom enforcement of any modification, amendment, waiver, extension,change, discharge or termination is sought.

 

**ARTICLE 6**

** **

**WAIVERS**

 

Borrower and all others who may become liable for the payment of all orany part of the Debt do hereby severally waive presentment and demand forpayment, notice of dishonor, notice of intention to accelerate, notice ofacceleration, protest and notice of protest and non-payment and all othernotices of any kind. No release of any security for the Debt or extension oftime for payment of this Note or any installment hereof, and no alteration,amendment or waiver of any provision of this Note, the Loan Agreement or theother Loan Documents made by agreement between Lender or any other Person shallrelease, 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 partnership,the agreements herein contained shall remain in force and applicable,notwithstanding any changes in the individuals comprising the partnership, andthe term “Borrower,” as used herein, shall include any alternate or successorpartnership, but any predecessor partnership and their partners shall notthereby be released from any liability. If Borrower is a limited liabilitycompany, the agreements herein contained shall remain in force and applicable,notwithstanding any changes in the members comprising the company, and the

 

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term “Borrower,” as used herein, shall include any alternate orsuccessor company, but any predecessor company shall not thereby be releasedfrom any liability. If Borrower is a corporation, the agreements containedherein shall remain in full force and applicable notwithstanding any changes inthe shareholders 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 entity which may be set forth in the LoanAgreement, the Mortgage or any other Loan Document.)

 

**ARTICLE 7**

** **

**TRANSFER**

 

Upon the transfer of this Note, Borrower hereby waiving notice of anysuch transfer except as provided in the Loan Agreement, Lender may deliver allthe 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 from that date forward forever be relievedand fully discharged from any liability or responsibility in the matter; butLender shall retain all rights hereby given to it with respect to anyliabilities and the collateral not so transferred.

 

**ARTICLE 8**

** **

**EXCULPATION**

 

The provisions of Section 9.4 of the Loan Agreement are herebyincorporated by reference into this Note to the same extent and with the sameforce as if fully set forth herein.

 

**ARTICLE 9**

** **

**GOVERNING LAW**

 

**THIS NOTE SHALL BEDEEMED TO BE A CONTRACT ENTERED INTO PURSUANT TO THE LAWS OF THE****STATE IN WHICH THEPROPERTY IS LOCATED AND SHALL IN ALL RESPECTS BE GOVERNED, APPLIED AND ENFORCEDIN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND APPLICABLE FEDERAL LAWS.**

 

**ARTICLE 10**

** **

**NOTICES**

 

All notices or other written communications hereunder shall bedelivered in accordance with Section 10.6 of the Loan Agreement.

 

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

 

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IN WITNESS WHEREOF, Borrower has duly executed this Note as of the dayand year first above written.

 
|   | **BORROWER:**                           |
|--------|-----------------------------------------|
|   |                                    |
|   | **INLAND WESTERN PLACENTIA, 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 |
|   |                                    |   | Title:     Asst Secretary |

 

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**ACKNOWLEDGMENT**

 

STATE OF ILLINOIS

 

COUNTY OF DUPAGE

 

The foregoinginstrument was  acknowledged before methis 6th day of December, 2004 by DebraPalmer as Ass't. Secretary of INLAND WESTERN RETAIL REAL ESTATE TRUST,INC., a Maryland corporation, which is the sole member and manager of INLANDWESTERN PLACENTIA, L.L.C., a Delaware limited liability company, who executedthe foregoing instrument, and acknowledged the execution thereof to be his/herfree act and deed as such officer on behalf of said corporation in its capacityas sole member and manager of said limited liability company for the use andpurposes therein mentioned, and the said instrument is the act and deed of saidcorporation and limited liability company. He/She is personally known to me asidentification.

 

My commissionexpires:

 

 
| [Notarial Seal] | /s/ Nancy Christina Phillips      |
|-----------------|-----------------------------------|
|            | Print Name:                       |
|            | Notary Public                     |
|            | Serial Number:                    |   |
|            |                              |   |
|            |                              |
|            | OFFICIAL SEAL                     |   |
|            | NANCY CHRISTINA PHILLIPS          |   |
|            | NOTARY PUBLIC - STATE OF ILLINOIS |   |
|            | MY COMMISSION EXPIRES:03/24/08    |   |
|                 |                                   |  |  |

 

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