**Exhibit10.459**

 
| LOAN TERMS TABLE                                                                                                        |
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|                                                                                                                    |   |   |
| Note  Date: December 16, 2004                                                                                      |   | MERS  No.: 8000101-0000000566-9 |
| Borrower:  **INLAND****WESTERN PHOENIX 19TH AVENUE, L.L.C.,** a  Delaware limited liability company                     |
| Original  Principal Amount: **$8,260,000.00**                                                                           |   | Loan  No.: 58622 |
| Initial  Note Rate: **4.2675%**                                                                                         |   | Servicing  No.: 3190691 |
| Revised  Note Rate: As defined in Article 2                                                                        |   | Borrower’s  TIN: 20-1907942 |
| 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 its principal place of business at2901 Butterfield Road, Oak Brook, IL 60523, hereby unconditionally promises topay to the order of **BANK OF AMERICA,****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 **“Loan****Agreement”**).

 

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

 

(a)           Borrower hereby agrees to pay sums due under this Note as follows: aninitial payment is due on the Closing Date for interest from the Closing Datethrough and including the last day of the calendar month in which the ClosingDate occurs; and thereafter, except as may be adjusted in accordance with thelast sentence of Section 1(b), consecutive monthly installments ofinterest only in an amount calculated in accordance with Article 2 below(such amount, the **“Monthly Payment Amount”**)shall be payable pursuant to the terms hereof on the first (1st) day of eachmonth beginning on February 1, 2005 (each such date through and includingthe 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 the foregoing, commencing on the OptionalPrepayment Date and continuing on each Scheduled Payment Date thereafter, Borrowerhereby agrees to pay all Excess Cash (as defined in the Loan Agreement) untilthe principal amount of this Note is paid in full, provided, however, theentire Debt, including all Accrued Interest (defined below), shall be due onthe Maturity Date.

 

(b)           Each payment by Borrower 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 timein

 

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writing.Whenever any payment hereunder shall be stated to be due on a day which is nota Business Day, such payment shall be made on the first Business Day precedingsuch scheduled due date. All payments made by Borrower hereunder or under theother Loan Documents shall be made irrespective of, and without any deductionfor, any setoff, defense or counterclaims.

 

(c)           Provided no Event of Default has occurred, (i) each Monthly PaymentAmount made as scheduled on this Note shall be applied first to the payment ofinterest computed at the Initial Note Rate, and the balance toward thereduction of the principal amount of this Note, and (ii) each payment of ExcessCash made as required on this Note shall be applied first to the reduction ofthe principal amount of this Note until paid in full, and the balance toAccrued Interest until paid in full. All voluntary and involuntary prepaymentson this Note shall be applied, to the extent thereof, to accrued but unpaidinterest on the amount prepaid, to the remaining Principal Amount, and anyother sums due and unpaid to the Lender in connection with the Loan, in suchmanner and order as Lender may elect in its sole and absolute discretion, including,but not limited to, application to principal installments in inverse order ofmaturity. Following the occurrence of an Event of Default, any payment made onthis Note shall be applied to accrued but unpaid interest, late charges,accrued fees, the unpaid principal amount of this Note, and any other sums dueand unpaid to Lender in connection with the Loan, in such manner and order asLender may elect in its sole and absolute discretion.

 

(d)           Remittances in payment of any part of the indebtedness other than inthe required amount in immediately available U.S. funds shall not, regardlessof any receipt or credit issued therefor, constitutepayment until the required amount is actually received by the holder hereof in immediatelyavailable U.S. funds and shall be made and accepted subject to the conditionthat any check or draft may be handled for collection in accordance with thepractices of the collecting bank or banks.

 

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

 

The Loan shall bear interest at a fixed rate per annum equal to theNote Rate. The **“Note Rate”** shall mean (a) fromthe date of this Note through but excluding the Optional Prepayment Date, theInitial Note Rate, and (b) from and after the Optional Prepayment Date throughand including the date this Note is paid in full, the Revised Note Rate. The **“Revised Note Rate”** shall mean a rate per annum equal to thesum of (x) two percent (2.00%) and (y) the greater of (i) the Initial Note Rateand (ii) the sum of the Treasury Rate plus five percent (5.00%). The **“Treasury Rate”** shall mean the yield per annum calculated bythe linear interpolation of yields, as reported in the Federal ReserveStatistical Release H.I5 – Selected Interest Rates under the heading “USgovernment securities” and the subheading “Treasury constant maturities” forthe week ending prior to the Optional Prepayment Date, of U.S. Treasuryconstant maturities with maturity dates (one longer and one shorter) most nearlyapproximating the Maturity Date. In the event H.15 is no longer published,Lender in its reasonable discretion shall select a comparable publication todetermine 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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**Article 3 - DEFAULT ANDACCELERATION**

 

The Debt shall without notice become immediately dueand payable at the option of Lender if any payment required in this Note is notpaid prior to the tenth (10th) day following the date when due or if not paid on the Maturity Dateor on the happening of any other Event of Default.

 

**Article 4 - PAYMENTS AFTERDEFAULT**

 

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 theNote Rate (such rate, the **“Default Rate”**).****Interestat the Default Rate shall be computed from the occurrence of the Event ofDefault until the earlier of (i) the actual receipt and collection of the Debt(or that portion thereof that is then due) and (ii) the cure of such Event ofDefault. To the extent permitted by applicable law, interest at the DefaultRate shall be added to the Debt, shall itself accrue interest at the same rateas the Loan and shall be secured by the Security instrument. This Article shallnot be construed as an agreement or privilege to extend the date of the paymentof the Debt, nor as a waiver of any other right or remedy accruing to Lender byreason of the occurrence of any Event of Default; the acceptance of any paymentfrom Borrower shall not be deemed to cure or constitute a waiver of any Eventof Default; and Lender retains its rights under this Note, the Loan Agreementand the other Loan Documents to accelerate and to continue to demand payment ofthe Debt upon the happening of and during the continuance any Event of Default,despite any payment by Borrower to Lender.

 

**Article 5 - PREPAYMENT**

 

Except as otherwise expressly permitted by this Article 5, novoluntary prepayments, whether in whole or in part, of the Loan or any otheramount at any time due and owing under this Note can be made by Borrower or anyother Person without the express written consent of Lender.

 

(a)           Lockout Period. Borrower shall have no right to make, andLender shall have no obligation to accept, any voluntary prepayment, whether inwhole or in part, of the Loan, or any other amount under this Note or the otherLoan Documents, at any time during the Lockout Period. At any time followingthe expiration of the Lockout Period, the principal balance of this Note may bevoluntarily prepaid in whole, but not in part, upon the satisfaction of thefollowing 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 PaymentDate (the “Prepayment Date”);

 

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(iii)           Borrower has paid to Lender all accrued andunpaid interest on the Loan through and including the Prepayment Date togetherwith all other sums due under this Note and the other Loan Documents; and

 

(iv)          Borrower has paid to Lender a prepaymentpremium in an amount equal to Yield Maintenance (as defined and calculated inaccordance with Section 5(b) below); provided, however, thatin the event of a voluntary prepayment made by Borrower within sixty (60) daysof the Optional Prepayment Date, there shall be no prepayment premium requiredto be paid by Borrower.

 

(b)           Involuntary Prepayment. In the event of any involuntary prepaymentof the Loan or any other amount under this Note, whether in whole or in part,in connection with or following Lender’s acceleration of this Note orotherwise, and whether the Security Instrument is satisfied or released byforeclosure (whether by power of sale or judicial proceeding), deed in lieu offoreclosure or by any other means, including, without limitation, repayment ofthe Loan by Borrower or any other Person pursuant to any statutory or commonlaw right of redemption, Borrower shall pay any portion of the principalbalance of the Loan prepaid (together with all interest accrued and unpaidthereon 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.I5-Selecled 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)           Insurance Proceeds and Awards; ExcessInterest. Notwithstandingany other provision herein to the contrary, and provided no Default exists,Borrower shall not be required to pay any prepayment premium in connection withany prepayment occurring solely as a result of (i) the application of InsuranceProceeds or Awards pursuant to the terms of the Loan

 

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Documents,or (ii) the application of any interest in excess of the maximum rate permittedby applicable law to the reduction of the Loan.

 

(d)           Open Prepayment Period. Borrower may voluntarily prepay (without premium) this Note on aScheduled Payment Date (i) in whole (but not in part) during the sixty (60)days prior to the Optional Prepayment Date, and (ii) in whole or in part fromthe Optional Prepayment Date through and including the date this Note is paidin full, in each case, upon giving Lender at least sixty (60) days (but notmore than ninety (90) days) prior written notice. Lender shall accept aprepayment pursuant to this Section 5(d) on a day other than a ScheduledPayment Date provided that, in addition to payment of the full outstandingprincipal balance of this Note, Borrower pays to Lender a sum equal to theamount of interest which would have accrued on this Note if such prepaymentoccurred on the next Scheduled Payment Date.

 

(e)           Limitation on Partial Prepayments.  Inno event shall Lender have any obligation to accept a partial prepayment.

 

**Article 6 - SECURITY**

 

This Note is secured by the Security Instrument and the other LoanDocuments.  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 the express condition that at no time shallBorrower be obligated or required to pay interest on the principal balance ofthe Loan at a rate which could subject Lender to either civil or criminalliability as a result of being in excess of the maximum nonusuriousinterest rate, if any, that at any time or from time to time may be contractedfor, taken, reserved, charged or received on the indebtedness evidenced by thisNote and as provided for herein or in the other Loan Documents, under the lawsof such state or states whose laws are held by any court of competentjurisdiction to govern the interest rate provisions of the Loan (such rate, the“**Maximum Legal Rate**”). If, by the termsof this Note or the other Loan Documents, Borrower is at any time required orobligated to pay interest on the principal balance due hereunder at a rate inexcess of the Maximum Legal Rate, the Note Rate or the Default Rate, as thecase may be, shall be deemed to be immediately reduced to the Maximum LegalRate and all previous payments in excess of the Maximum Legal Rate shall bedeemed to have been payments in reduction of principal and not on account ofthe interest due hereunder. All sums paid or agreed to be paid to Lender forthe use, forbearance, or detention of the sums due under the Loan, shall, tothe extent permitted by applicable law, be amortized, prorated, allocated, andspread 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 not paid by Borrower before thetenth (10th) day after the date the same is due (or such greater period, ifany, required by applicable law), Borrower shall pay to Lender upon demand anamount equal to the lesser of four percent (4%) of such unpaid sum or themaximum amount permitted by applicable law in order to defray the expenseincurred by Lender in handling and processing such delinquent payment and tocompensate Lender for the loss of the use of such delinquent payment, providedhowever, Borrower shall not be required to pay Lender a late charge inconnection with the final payment under the loan. Any such amount shall besecured by the Security Instrument and the other Loan Documents to the extentpermitted by applicable law.

 

**Article 9 - 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 10 - WAIVERS**

 

**BORROWER AND ALL OTHERS WHO MAY BECOME LIABLE FOR THE****PAYMENT****OF ALL OR****ANY****PART OF THE DEBT DO HEREBYSEVERALLY WAIVE****PRESENTMENT****ANDDEMAND FOR PAYMENT, NOTICE OF DISHONOR, NOTICE OF INTENTION TO ACCELERATE,NOTICE OF ACCELERATION, PROTEST AND NOTICE OF PROTEST AND NON-PAYMENT AND ALLOTHER NOTICES OF ANY KIND EXCEPT****AS****PROVIDED IN THE LOAN AGREEMENT. NO****RELEASE****OF****ANY****SECURITYFOR THE DEBT OR EXTENSION OF TIME FOR****PAYMENT****OF THIS NOTE OR****ANY INSTALLMENT****HEREOF,****AND****NOALTERATION,****AMENDMENT****OR WAIVEROF ANY PROVISION OF THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTSMADE BY AGREEMENT BETWEEN LENDER OR ANY OTHER PERSON SHALL RELEASE, MODIFY,AMEND, WAIVE, EXTEND, CHANGE, DISCHARGE, TERMINATE OR AFFECT THE LIABILITY OFBORROWER, AND ANY OTHER PERSON WHO MAY BECOME LIABLE FOR THE****PAYMENT****OF ALL OR****ANY****PART OK THE DEBT, UNDER THISNOTE, THE****LOAN****AGREEMENTOR THE OTHER LOAN DOCUMENTS. NO NOTICE TO OR DEMAND ON BORROWER SHALL BE DEEMEDTO BE 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 BEAPPLICABLE, NOTWITHSTANDING ANY CHANGES IN THE INDIVIDUALS COMPRISING THELIMITED LIABILITY COMPANY, AND THE TERM “BORROWER,” AS USED HEREIN, SHALLINCLUDE ANY ALTERNATE OR SUCCESSOR LIMITED LIABILITY COMPANY, BUT ANYPREDECESSOR LIMITED LIABILITY COMPANY AND ITS MEMBERS SHALL NOT THEREBY BERELEASED FROM ANY LIABILITY. IF BORROWER IS A PARTNERSHIP, THE AGREEMENTSHEREIN CONTAINED SHALL REMAIN IN FORCE AND BE**

 

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**APPLICABLE, NOTWITHSTANDING ANY CHANGES IN THE INDIVIDUALSCOMPRISING THE PARTNERSHIP, AND THE TERM “BORROWER,” AS USED HEREIN, SHALLINCLUDE ANY ALTERNATE OR SUCCESSOR PARTNERSHIP, BUT ANY PREDECESSOR PARTNERSHIPAND THEIR PARTNERS SHALL NOT THEREBY BE RELEASED FROM ANY LIABILITY.  IF BORROWER IS A CORPORATION, THE****AGREEMENTS****CONTAINED HEREIN SHALLREMAIN****IN****FULLFORCE AND BE APPLICABLE NOTWITHSTANDING ANY CHANGES IN THE SHAREHOLDERSCOMPRISING, OR THE OFFICERS AND DIRECTORS RELATING TO, THE CORPORATION, AND THETERM “BORROWER” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATIVE OR SUCCESSORCORPORATION, BUT ANY PREDECESSOR CORPORATION SHALL NOT BE RELIEVED OF LIABILITYHEREUNDER. (NOTHING IN THE FOREGOING****SENTENCE****SHALL BE CONSTRUED AS A CONSENT TO, OR A WAIVER OF, ANYPROHIBITION OR RESTRICTION ON TRANSFERS OF****INTERESTS IN****SUCH BORROWING ENTITY WHICH MAY BE SET FORTH IN THE LOANAGREEMENT, THE MORTGAGE OR ANY OTHER LOAN DOCUMENTS.) IF BORROWER CONSISTS OFMORE THAN ONE PERSON OR PARTY, THE OBLIGATIONS AND LIABILITIES OF EACH PERSONOR PARTY SHALL BE JOINT AND SEVERAL.**

 

**Article 11 - TRIAL BY JURY**

 

**BORROWER AND LENDER EACH HEREBY AGREES NOT TO ELECT ATRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND****WAIVES ANY****RIGHT TO TRIAL BY JURY FULLYTO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TOTHIS NOTE, OR ANY 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****EACH****ISSUE AS****TO WHICH THE RIGHT TO ATRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF LENDER AND BORROWER IS HEREBYAUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVEEVIDENCE OF THIS WAIVER BY BORROWER AND LENDER.**

 

**Article 12- TRANSFER**

 

Upon the transfer of this Note, Borrower hereby waiving notice of anysuch transfer, Lender may deliver all the collateral mortgaged, granted,pledged or assigned pursuant to the Loan Documents, or any part thereof, to thetransferee who shall thereupon become vested with all the rights herein orunder applicable law given to Lender with respect thereto, and Lender shallthereafter forever be relieved and fully discharged from any liability orresponsibility in the matter arising from events thereafter occurring; butLender shall retain all rights hereby given to it with respect to anyliabilities and the collateral not so transferred.

 

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**Article 13- EXCULPATION**

 

Theprovisions of Article 15 of the Loan Agreement are hereby incorporated byreference into this Note to the same extent and with the same force as if fullyset forth herein.

 

**Article 14 - GOVERNING LAW**

 

ThisNote shall in all respects be governed, construed, applied and enforced inaccordance with the laws of the state in which the Property is located and anyapplicable federal laws of the United States of America.

 

**Article ****15 - NOTICES**

 

Allnotices or other written communications hereunder shall be delivered inaccordance with Article 16 of the Loan Agreement.

 

**Article 16 - TAXPAYER IDENTIFICATION NUMBER**

 

ThisNote provides 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**

 

Anyprovisions in this Note or elsewhere in the Loan Documents providing for thepayment of “attorneys’ fees,” “reasonable attorneys’ fees” or words of similarimport, shall mean actual attorneys’ fees and paralegal fees incurred basedupon the usual and customary fees or hourly rates of the attorneys andparalegals involved without giving effect to any statutory presumption that maythen be in effect.

 

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

 

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INWITNESS WHEREOF, Borrower has duly executed this Note as of the day and yearfirst above written.

 

 
|   | INLAND  WESTERN PHOENIX 19TH 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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