**Exhibit 10.461**

 

LOAN TERMS TABLE

 
| Note Date:  December 16, 2004                                                                         |   | MERS No.:   8000101-0000000567-7           |
|------------------------------------------------------------------------------------------------------------|--------|-------------------------------------------------|
| Borrower:  **INLAND WESTERN MINNEAPOLIS 3RD****AVENUE, L.L.C.,** a Delaware limited liability company |
| Original Principal Amount:  **$56,050,000.00**                                                        |   | Loan No.:   58623                          |
| Initial Note Rate:   **4.2675%**                                                                      |   | Servicing No.:   3190709                   |
| Revised Note Rate:   As defined in Article 2                                                          |   | Borrower’s TIN:   20-1908022          |
| 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 RECEIVEDBorrower, having its principal place of business at 2901 Butterfield Road, OakBrook, IL 60523, hereby unconditionally promises to pay to the order of **BANK OF AMERICA,****N.A.,**a national banking association, having an address at 214 North Tryon Street,Charlotte, North Carolina 28255 (**“Lender”**),****the Original Principal Amount, in lawful money of the UnitedStates of America with interest thereon to be computed from the date of thisNote at the Note Rate (as defined below), and to be paid in accordance with theterms set forth below. The Loan Terms Table set forth above is a part of thisNote and all terms used in this Note which are defined in the Loan Terms Tableshall have the meaning set forth therein. All capitalized terms not definedherein shall have the respective meanings set forth in that certain LoanAgreement dated the date hereof between Lender and Borrower (the **“Loan Agreement”**).

 

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

 

(a)            Borrower hereby agrees to pay sumsdue under this Note as follows: an initial payment is due on the Closing Datefor interest from the Closing Date through and including the last day of thecalendar month in which the Closing Date occurs; and thereafter, except as maybe adjusted in accordance with the last sentence of Section l(b), consecutivemonthly installments of interest only in an amount calculated in accordancewith 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 including theMaturity Date, a **“Scheduled Payment Date”**) until the entire indebtedness evidenced hereby is fully paid,except that any remaining indebtedness, if not sooner paid, shall be due andpayable on the Maturity Date. In addition to the foregoing, commencing on theOptional Prepayment Date and continuing on each Scheduled Payment Date thereafter,Borrower hereby agrees to pay all Excess Cash (as defined in the LoanAgreement) until the principal amount of this Note is paid in full, provided,however, the entire Debt, including all Accrued Interest (defined below), shallbe due on the Maturity Date.

 

(b)           Each payment by Borrower hereundershall be made to P.O. Box 65585, Charlotte, NC 28265-0585, or at such otherplace 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 of Default hasoccurred, (i) each Monthly Payment Amount made as scheduled on this Note shallbe applied first to the payment of interest computed at the Initial Note Rate,and the balance toward the reduction of the principal amount of this Note, and(ii) each payment of Excess Cash made as required on this Note shall be appliedfirst to the reduction of the principal amount of this Note until paid in full,and the balance to Accrued Interest until paid in full. All voluntary andinvoluntary prepayments on this Note shall be applied, to the extent 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 ofthis Note, and any other sums due and unpaid to Lender in connection with theLoan, in such manner and order as Lender may elect in its sole and absolutediscretion.

 

(d)           Remittances in payment of any part ofthe indebtedness other than in the required amount in immediately availableU.S. funds shall not, regardless of any receipt or credit issued therefor,constitute payment until the required amount is actually received by the holderhereof in immediately available U.S. funds and shall be made and acceptedsubject to the condition that any check or draft may be handled for collectionin accordance with the practices of the collecting bank or banks.

 

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

 

The Loan shall bearinterest at a fixed rate per annum equal to the Note Rate. The **“Note Rate”** shall mean (a) from the date of this Notethrough but excluding the Optional Prepayment Date, the Initial Note Rate, and(b) from and after the Optional Prepayment Date through and including the datethis Note is paid in full, the Revised Note Rate. The **“RevisedNote Rate”** shall mean a rate per annum equal to the sum of (x) twopercent (2.00%) and (y) the greater of (i) the Initial Note Rate and (ii) thesum of the Treasury Rate plus five percent (5.00%). The **“TreasuryRate”** shall mean the yield per annum calculated by the linearinterpolation of yields, as reported in the Federal Reserve Statistical ReleaseH.15 – Selected Interest Rates under the heading “US government securities” andthe subheading “Treasury constant maturities” for the week ending prior to theOptional Prepayment Date, of U.S. Treasury constant maturities with maturitydates (one longer and one shorter) most nearly approximating the Maturity Date.In the event H.15 is no longer published, Lender in its reasonable discretionshall select a comparable publication to determine the Treasury Rate. From andafter the Optional Prepayment Date, interest in excess of the Initial Note Rateshall accrue and be added to the Debt and shall earn interest at the RevisedNote Rate to the extent permitted by applicable law (**“AccruedInterest”**). Interest shall be computed on the basis of a threehundred sixty (360) day year consisting of twelve (12) months of thirty (30)days each. Except as otherwise set forth herein or in the other Loan Documents,interest shall be paid in arrears.

 

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**Article 3 - DEFAULT ANDACCELERATION**

 

The Debt shall withoutnotice become immediately due and payable at the option of Lender if anypayment required in this Note is not paid prior to the tenth (10th)day following the date when due or if not paid on the Maturity Date or on thehappening of any other Event of Default.

 

**Article 4 - PAYMENTS AFTERDEFAULT**

 

Upon the occurrence andduring the continuance of an Event of Default, interest on the outstandingprincipal balance of the Loan and, to the extent permitted by law, overdueinterest and other amounts due in respect of the Loan shall accrue at a rateper annum equal to the lesser of (a) the maximum rate permitted by applicablelaw, or (b) four percent (4%) above the Note Rate (such rate, the **“Default****Rate”**).Interest at the Default Rate shall be computed from the occurrence of the Eventof Default until the earlier of (i) the actual receipt and collection of theDebt (or that portion thereof that is then due) and (ii) the cure of such Eventof Default. 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.

 

**Article5 - PREPAYMENT**

 

Except as otherwiseexpressly permitted by this Article 5, no voluntary prepayments, whether inwhole or in part, of the Loan or any other amount at any time due and owingunder this Note can be made by Borrower or any other Person without the expresswritten 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)            noDefault shall exist under any of the Loan Documents;

 

(ii)           not less than sixty (60) (but notmore than ninety (90)) days prior written notice shall be given to Lenderspecifying a date on which the prepayment shall occur such date being aScheduled Payment Date (the “Prepayment Date”);

 

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(iii)          Borrower has paid to Lender allaccrued and unpaid interest on the Loan through and including the PrepaymentDate together with all other sums due under this Note and the other LoanDocuments; and

 

(iv)          Borrower has paid to Lender aprepayment premium in an amount equal to Yield Maintenance (as defined andcalculated in accordance with Section 5(b) below); provided, however,that in the event of a voluntary prepayment made by Borrower within sixty (60)days of the Optional Prepayment Date, there shall be no prepayment premiumrequired to be paid by Borrower.

 

(b)            Involuntary Prepayment. Inthe event of any involuntary prepayment of the Loan or any other amount underthis Note, whether in whole or in part, in connection with or followingLender’s acceleration of this Note or otherwise, and whether the SecurityInstrument is satisfied or released by foreclosure (whether by power of sale orjudicial proceeding), deed in lieu of foreclosure or by any other means,including, without limitation, repayment of the Loan by Borrower or any otherPerson pursuant to any statutory or common law right of redemption, Borrowershall pay any portion of the principal balance of the Loan prepaid (togetherwith all interest accrued and unpaid thereon and, in the event the prepaymentis made on a date other than a Scheduled Payment Date, a sum equal to theamount of interest which would have accrued under this Note on the amount ofsuch prepayment if such prepayment had occurred on the next Scheduled PaymentDate).

 

As used herein, “YieldMaintenance” means a prepayment premium in an amount equal to the greater ofequal to the greater of (i) 1% of the portion of the Loan being prepaid, and(ii) the present value as of the Prepayment Calculation Date of a series ofmonthly payments over the remaining term of the Loan through and including theOptional Prepayment Date each equal to the amount of interest which would bedue on the portion of the Loan being prepaid assuming a per annum interest rateequal to the excess of the Note Rate over the Reinvestment Yield, anddiscounted at the Reinvestment Yield. As used herein, “Reinvestment Yield”means the yield calculated by the linear interpolation of the yields, asreported in the Federal Reserve Statistical Release H.15-Selected InterestRates under the heading “U.S. government securities” and the sub-heading“Treasury constant maturities” for the week ending prior to the PrepaymentCalculation Date, of the U.S. Treasury constant maturities with maturity dates(one longer and one equal to or shorter) most nearly approximating the OptionalPrepayment Date, and converted to a monthly compounded nominal yield. In the eventRelease H.15 is no longer published, Lender shall select a comparablepublication to determine the Reinvestment Yield. The “Prepayment CalculationDate” shall mean, as applicable, the date on which (i) Lender applies anyprepayment to the reduction of the outstanding principal amount of this Note,(ii) Lender accelerates the Loan, in the case of a prepayment resulting fromacceleration, or (iii) Lender applies funds held under any Reserve Account, inthe case of a prepayment resulting from such an application (other than inconnection with acceleration of the Loan).

 

(c)            Insurance Proceeds and Awards;Excess Interest. Notwithstanding any other provision herein to thecontrary, and provided no Default exists, Borrower shall not be required to payany prepayment premium in connection with any prepayment occurring solely as aresult of (i) the application of Insurance Proceeds or Awards pursuant to theterms of the Loan

 

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

 

(d)            Open Prepayment Period. Borrowermay voluntarily prepay (without premium) this Note on a Scheduled Payment Date(i) in whole (but not in part) during the sixty (60) days prior to the OptionalPrepayment Date, and (ii) in whole or in part from the Optional Prepayment Datethrough and including the date this Note is paid in full, in each case, upongiving Lender at least sixty (60) days (but not more than ninety (90) days)prior written notice. Lender shall accept a prepayment pursuant to this Section5(d) on a day other than a Scheduled Payment Date provided that, in addition topayment of the full outstanding principal balance of this Note, Borrower paysto Lender a sum equal to the amount of interest which would have accrued onthis 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.

 

**Article6 - SECURITY**

 

This Note is secured bythe Security Instrument and the other Loan Documents. All of the terms,covenants and conditions contained in the Loan Agreement, the SecurityInstrument and the other Loan Documents are hereby made part of this Note tothe same extent and with the same force as if they were fully set forth herein.

 

**Article 7 - USURY SAVINGS**

 

This Note is subject tothe express condition that at no time shall Borrower be obligated or requiredto pay interest on the principal balance of the Loan at a rate which couldsubject Lender to either civil or criminal liability as a result of being inexcess of the maximum nonusurious interest rate, if any, that at any time orfrom time to time may be contracted for, taken, reserved, charged or receivedon the indebtedness evidenced by this Note and as provided for herein or in theother Loan Documents, under the laws of such state or states whose laws areheld by any court of competent jurisdiction to govern the interest rateprovisions of the 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 paymentin full so that the rate or amount of interest on account of the Loan does notexceed the Maximum Legal Rate of interest from time to time in effect andapplicable to the Loan for so long as the Loan is outstanding.

 

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**Article8****- LATEPAYMENT CHARGE**

 

If any principal orinterest payment is not paid by Borrower before the tenth (10th) day after thedate the same is due (or such greater period, if any, required by applicablelaw), Borrower shall pay to Lender upon demand an amount equal to the lesser offour percent (4%) of such unpaid sum or the maximum amount permitted byapplicable law in order to defray the expense incurred by Lender in handlingand processing such delinquent payment and to compensate Lender for the loss ofthe use of such delinquent payment, provided however, Borrower shall not berequired to pay Lender a late charge in connection with the final payment underthe loan. Any such amount shall be secured by the Security Instrument and theother Loan Documents to the extent permitted by applicable law.

 

**Article 9 - NO ORAL CHANGE**

 

This Note may not bemodified, amended, waived, extended, changed, discharged or terminated orallyor by any act or failure to act on the part of Borrower or Lender, but only byan agreement in writing signed by the party against whom enforcement of anymodification, amendment, waiver, extension, change, discharge or termination issought.

 

**Article 10 - 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 TO ACCELERATE, NOTICEOF ACCELERATION, PROTEST AND NOTICE OF PROTEST AND****NON-PAYMENT****AND ALL OTHER NOTICES OFANY 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 INSTALLMENTHEREOF, AND NO ALTERATION,****AMENDMENT****OR WAIVER OF ANY PROVISION OF THIS NOTE, THE LOANAGREEMENT OR THE OTHER LOAN DOCUMENTS MADE BY AGREEMENT BETWEEN LENDER OR ANYOTHER PERSON SHALL RELEASE, MODIFY,****AMEND,****WAIVE, EXTEND, CHANGE, DISCHARGE, TERMINATE OR AFFECT THELIABILITY OF BORROWER, AND ANY OTHER PERSON WHO MAY BECOME LIABLE FOR THE****PAYMENT****OF ALL OR****ANY****PART OF THE DEBT, UNDERTHIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS. NO NOTICE TO ORDEMAND ON BORROWER SHALL BE DEEMED TO BE A WAIVER OF THE OBLIGATION OF BORROWEROR OF THE RIGHT OF LENDER TO TAKE FURTHER ACTION WITHOUT FURTHER NOTICE ORDEMAND AS PROVIDED FOR IN THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOANDOCUMENTS. IF BORROWER IS A LIMITED LIABILITY COMPANY, THE AGREEMENTS HEREINCONTAINED SHALL REMAIN IN FORCE AND BE APPLICABLE, NOTWITHSTANDING ANY CHANGESIN THE INDIVIDUALS COMPRISING THE LIMITED LIABILITY COMPANY, AND THE TERM“BORROWER,” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATE OR SUCCESSOR LIMITEDLIABILITY COMPANY, BUT ANY PREDECESSOR LIMITED LIABILITY COMPANY AND ITSMEMBERS SHALL NOT THEREBY BE RELEASED FROM ANY LIABILITY. IF BORROWER IS APARTNERSHIP, THE AGREEMENTS HEREIN CONTAINED SHALL REMAIN IN FORCE AND BE**

 

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**APPLICABLE, NOTWITHSTANDING ANYCHANGES IN THE INDIVIDUALS COMPRISING THE PARTNERSHIP, AND THE TERM “BORROWER,”AS USED HEREIN, 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****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, ANY PROHIBITION OR RESTRICTION ON TRANSFERS OFINTERESTS 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**

 

**BORROWERAND LENDER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF****ANY ISSUE****TRIABLE OF RIGHT BYJURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCHRIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS NOTE, OR ANY CLAIM,COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OFRIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER ANDLENDER, 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 herebywaiving notice of any such transfer, Lender may deliver all the collateralmortgaged, granted, pledged or assigned pursuant to the Loan Documents, or anypart thereof, to the transferee who shall thereupon become vested with all therights herein or under applicable law given to Lender with respect thereto, andLender shall thereafter forever be relieved and fully discharged from anyliability or responsibility in the matter arising from events thereafteroccurring; but Lender shall retain all rights hereby given to it with respectto any liabilities and the collateral not so transferred.

 

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**Article13 - EXCULPATION**

 

The provisions of Article 15 of the Loan Agreement arehereby incorporated by reference into this Note to the same extent and with thesame force as if fully set forth herein.

 

**Article14****-GOVERNING LAW**

 

This Note shall in all respects be governed,construed, applied and enforced in accordance with the laws of the state inwhich the Property is located and any applicable federal laws of the UnitedStates of America.

 

**Article 15 - NOTICES**

 

All notices or other written communications hereundershall be delivered in accordance with Article 16 of the Loan Agreement.

 

**Article 16 - TAXPAYERIDENTIFICATION NUMBER**

 

This Note provides for the Borrower’s federal taxpayeridentification number to be inserted in the Loan Terms Table on the first pageof this Note. If such number is not available at the time of execution of thisNote or is not inserted by the Borrower, the Borrower hereby authorizes anddirects the Lender to fill in such number on the first page of this Note whenthe Borrower provides to Lender, advises the Lender of, or the Lender otherwiseobtains, such number.

 

**Article 17 - ATTORNEYS’ FEES**

 

Any provisions in this Note or elsewhere in the LoanDocuments 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 duly executed thisNote as of the day and year first above written.

 

 
|   | INLAND WESTERN MINNEAPOLIS 3RD               |
|--------|----------------------------------------------|
|   | 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. Sec. |   |
|        |                                              |  |  |  |  |

 

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