Exhibit
10.457


 


LOAN TERMS TABLE


 


	
  Note Date: December 16, 2004

  	
   

  	
  MERS No.: 8000101-0000000565-1

  
	
  Borrower: INLAND WESTERN PHOENIX
  31ST AVENUE, L.L.C., a Delaware limited
liability
  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

  	
   

  	
   

  



 


PROMISSORY
NOTE


 


FOR VALUE RECEIVED Borrower, having its
principal place of business at 2901 Butterfield Road, Oak Brook, 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 United States of America
with interest thereon to be computed from the date of this Note at the Note
Rate (as defined below), and to be paid in accordance with the terms set forth
below. The Loan Terms Table set forth above is a part of this Note and all
terms used in this Note which are defined in the Loan Terms Table shall have
the meaning set forth therein. All capitalized terms not defined herein shall
have the respective meanings set forth in that certain Loan Agreement dated the
date 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: an initial payment is due on
the Closing Date for interest from the Closing Date through and including the last
day 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 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 each month beginning on February 1, 2005 (each such date
through and including the Maturity 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 and payable on the
Maturity Date.  In addition to the
foregoing, commencing on the Optional Prepayment Date and continuing on each
Scheduled Payment Date thereafter, Borrower hereby agrees to pay all Excess
Cash (as defined in the Loan Agreement) until the principal amount of this Note
is paid in full, provided, however, the entire Debt, including all Accrued Interest
(defined below), shall be due on the 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 time in


 





















 


writing. Whenever any payment hereunder shall be stated to be due on a
day which is not a Business Day, such payment shall be made on the first
Business Day preceding such scheduled due date. All payments made by Borrower
hereunder or under the other Loan Documents shall be made irrespective of, and
without any deduction for, any setoff, defense or counterclaims.


 


(c)           Provided no Event of
Default has occurred, (i) each Monthly Payment Amount made as scheduled on this
Note shall be 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 applied first 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 and involuntary prepayments on this Note shall be applied, to the
extent thereof, to accrued but unpaid interest on the amount prepaid, to the remaining
Principal Amount, and any other sums due and unpaid to the Lender in connection
with the Loan, in such manner and order as Lender may elect in its sole and
absolute discretion, including, but not limited to, application to principal
installments in inverse order of maturity. Following the occurrence of an Event
of Default, any payment made on this Note shall be applied to accrued but
unpaid interest, late charges, accrued fees, the unpaid principal amount of this
Note, 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 absolute
discretion.


 


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


 


Article 2 - INTEREST


 


The Loan shall bear interest at a fixed rate
per annum equal to the Note Rate. The “Note Rate”
shall mean (a) from the date of this Note through but excluding the Optional
Prepayment Date, the Initial Note Rate, and (b) from and after the Optional
Prepayment Date through and 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 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 Rate
plus five percent (5.00%). The “Treasury Rate”
shall mean the yield per annum calculated by the linear interpolation of
yields, as reported in the Federal Reserve Statistical Release H.15 – Selected
Interest Rates under the heading “US government securities” and the subheading “Treasury
constant maturities” for the week ending prior to the Optional Prepayment Date,
of U.S. Treasury constant maturities with maturity dates (one longer and one
shorter) most nearly approximating the Maturity Date. In the event H.15 is no
longer published, Lender in its reasonable discretion shall select a comparable
publication 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 the
Debt and shall earn interest at the Revised Note Rate to the extent permitted
by applicable law (“Accrued Interest”).
Interest shall be computed on the basis of a three hundred 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 AND ACCELERATlON


 


The Debt shall without notice become immediately due and payable at the
option of Lender if any payment 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 the happening of any other Event of Default.


 


Article
4 - 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 extent
permitted by law, overdue interest and other amounts due in respect of the Loan
shall accrue at a rate per annum equal to the lesser of (a) the maximum rate
permitted by applicable law, 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 Event of Default 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 of Default. To the extent
permitted by applicable law, interest at the Default Rate shall be added to the
Debt, shall itself accrue interest at the same rate as the Loan and shall be
secured by the Security Instrument. This Article shall not be construed as an
agreement or privilege to extend the date of the payment of the Debt, nor as a
waiver of any other right or remedy accruing to Lender by reason of the
occurrence of any Event of Default; the acceptance of any payment from Borrower
shall not be deemed to cure or constitute a waiver of any Event, of Default; and
Lender retains its rights under this Note, the Loan Agreement and the other
Loan Documents to accelerate and to continue to demand payment of the 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, no voluntary
prepayments, whether in whole or in part, of the Loan or any other amount at
any time due and owing under this Note can be made by Borrower or any other
Person without the express written consent of Lender.


 


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


 


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


 


(ii)            not less than sixty (60) (but not more than
ninety (90)) days prior written notice shall be given to Lender specifying a
date 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 interest
on the Loan through and including the Prepayment Date together with all other
sums due under this Note and the other Loan Documents; and


 


(iv)          Borrower has paid to Lender a prepayment premium in an
amount equal to Yield Maintenance (as defined and calculated 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 premium required to be paid by
Borrower.


 


(b)           Involuntary
Prepayment.  In the event of any
involuntary prepayment of 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 or otherwise, and whether the Security Instrument is satisfied or
released by foreclosure (whether by power of sale or judicial proceeding), deed
in lieu of foreclosure or by any other means, including, without limitation,
repayment of the Loan by Borrower or any other Person pursuant to any statutory
or common law right of redemption, Borrower shall pay any portion of the
principal balance of the Loan prepaid (together with all interest accrued and
unpaid thereon and, in the event the prepayment is made on a date other than a
Scheduled Payment Date, a sum equal to the amount of interest which would have
accrued under this Note on the amount of such prepayment if such prepayment had
occurred on the next Scheduled Payment Date).


 


As used herein, “Yield Maintenance” means a prepayment premium in an
amount equal to the greater of equal 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 of monthly payments over the remaining term of the
Loan through and including the Optional Prepayment Date each equal to the
amount of interest which would be due on the portion of the Loan being prepaid
assuming a per annum interest rate equal to the excess of the Note Rate over
the Reinvestment Yield, and discounted at the Reinvestment Yield. As used
herein, “Reinvestment Yield” means the yield calculated by the linear
interpolation of the yields, as reported in the Federal Reserve Statistical
Release H.15-Selected Interest Rates under the heading “U.S. government
securities” and the sub-heading “Treasury constant maturities” for the week
ending prior to the Prepayment Calculation Date, of the U.S. Treasury constant
maturities with maturity dates (one longer and one equal to or shorter) most
nearly approximating the Optional Prepayment Date, and converted to a monthly
compounded nominal yield. In the event Release H.15 is no longer published,
Lender shall select a comparable publication to determine the Reinvestment
Yield. The “Prepayment Calculation Date” shall mean, as applicable, the date on
which (i) Lender applies any prepayment to the reduction of the outstanding
principal amount of this Note, (ii) Lender accelerates the Loan, in the case of
a prepayment resulting from acceleration, or (iii) Lender applies funds held
under any Reserve Account, in the case of a prepayment resulting from such an
application (other than in connection with acceleration of the Loan).


 


(c)           Insurance
Proceeds and Awards; Excess Interest.  Notwithstanding any other provision herein to
the contrary, and provided no Default exists, Borrower shall not be required to
pay any prepayment premium in connection with any prepayment occurring solely
as a result of (i) the application of Insurance Proceeds 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 permitted by
applicable law to the reduction of the Loan.


 


(d)           Open Prepayment Period.  Borrower may 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 Optional Prepayment Date, and (ii) in
whole or in part from the Optional Prepayment Date through and including the
date 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 to
this 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, Borrower
pays to Lender a sum equal to the amount of interest which would have accrued
on 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 the
Security Instrument and the other Loan Documents. All of the terms, covenants
and conditions contained in the Loan Agreement, the Security Instrument and the
other Loan Documents are hereby made part of this Note to the same extent and
with 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 shall Borrower be obligated or required to
pay interest on the principal balance of the Loan at a rate which could subject
Lender to either civil or criminal liability as a result of being in excess of
the maximum nonusurious interest rate, if any, that at any time or from time to
time may be contracted for, taken, reserved, charged or received on the
indebtedness evidenced by this Note and as provided for herein or in the other
Loan Documents, under the laws of such state or states whose laws are held by
any court of competent jurisdiction to govern the interest rate provisions of
the Loan (such rate, the “Maximum Legal Rate”).
If, by the terms of this Note or the other Loan Documents, Borrower is at any
time required or obligated to pay interest on the principal balance due
hereunder at a rate in excess of the Maximum Legal Rate, the Note Rate or the
Default Rate, as the case may be, shall be deemed to be immediately reduced to
the Maximum Legal Rate and all previous payments in excess of the Maximum Legal
Rate shall be deemed to have been payments in reduction of principal and not on
account of the interest due hereunder. All sums paid or agreed to be paid to
Lender 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 so
that the rate or amount of interest on account of the Loan does not exceed the
Maximum Legal Rate of interest from time to time in effect and applicable to
the 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 the tenth (10th) day after the date the same is due (or
such greater period, if any, required by applicable law), Borrower shall pay to
Lender upon demand an amount equal to the lesser of four percent (4%) of such
unpaid sum or the maximum amount permitted by applicable law in order to defray
the expense incurred by Lender in handling and processing such delinquent
payment and to compensate Lender for the loss of the use of such delinquent
payment, provided however, Borrower shall not be required to pay Lender a late
charge in connection with the final payment under the loan. Any such amount
shall be secured by the Security Instrument and the other Loan Documents to the
extent permitted 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 of Borrower or Lender, but
only by an agreement in writing signed by the party against 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 HEREBY SEVERALLY WAIVE PRESENTMENT AND DEMAND FOR PAYMENT,
NOTICE OF DISHONOR, NOTICE OF INTENTION TO
ACCELERATE, NOTICE OF ACCELERATION, PROTEST AND NOTICE OF PROTEST AND
NON-PAYMENT AND ALL OTHER NOTICES OF ANY KIND EXCEPT AS PROVIDED IN THE LOAN
AGREEMENT. NO RELEASE OF ANY SECURITY FOR THE DEBT OR EXTENSION  OF TIME 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 THE OTHER LOAN DOCUMENTS MADE BY AGREEMENT BETWEEN LENDER OR
ANY OTHER PERSON SHALL RELEASE, MODIFY, AMEND,  WAIVE, EXTEND, CHANGE, DISCHARGE, TERMINATE OR AFFECT
THE LIABILITY OF BORROWER, AND ANY OTHER PERSON WHO MAY BECOME LIABLE FOR THE
PAYMENT OF ALL OR ANY PART OF THE DEBT, UNDER THIS NOTE, THE LOAN AGREEMENT OR
THE OTHER LOAN DOCUMENTS. NO NOTICE TO OR DEMAND ON BORROWER SHALL BE DEEMED TO
BE A WAIVER OF THE OBLIGATION OF BORROWER OR OF THE RIGHT OF LENDER TO TAKE
FURTHER ACTION WITHOUT FURTHER NOTICE OR DEMAND AS PROVIDED FOR IN THIS NOTE,
THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS. IF BORROWER IS A LIMITED
LIABILITY COMPANY, THE AGREEMENTS HEREIN CONTAINED SHALL REMAIN IN FORCE AND
BE APPLICABLE, NOTWITHSTANDING ANY CHANGES IN
THE INDIVIDUALS COMPRISING THE LIMITED LIABILITY COMPANY, AND THE TERM “BORROWER,”
AS USED HEREIN, SHALL INCLUDE ANY ALTERNATE OR SUCCESSOR LIMITED LIABILITY
COMPANY, BUT ANY PREDECESSOR LIMITED LIABILITY COMPANY AND ITS MEMBERS SHALL
NOT THEREBY BE RELEASED FROM ANY LIABILITY. IF BORROWER IS A PARTNERSHIP, THE
AGREEMENTS HEREIN CONTAINED SHALL REMAIN IN FORCE AND BE


 


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APPLICABLE, NOTWITHSTANDING ANY CHANGES IN THE
INDIVIDUALS COMPRISING THE PARTNERSHIP, AND THE TERM “BORROWER,” AS USED
HEREIN, SHALL INCLUDE ANY ALTERNATE OR SUCCESSOR PARTNERSHIP, BUT ANY
PREDECESSOR PARTNERSHIP AND THEIR PARTNERS SHALL NOT THEREBY BE RELEASED FROM
ANY LIABILITY. IF BORROWER IS A CORPORATION, THE AGREEMENTS CONTAINED HEREIN
SHALL REMAIN IN FULL FORCE AND BE APPLICABLE NOTWITHSTANDING ANY CHANGES IN THE
SHAREHOLDERS COMPRISING, OR THE OFFICERS AND DIRECTORS RELATING TO, THE
CORPORATION, AND THE TERM “BORROWER” AS USED HEREIN, SHALL INCLUDE ANY
ALTERNATIVE OR SUCCESSOR CORPORATION, BUT ANY PREDECESSOR CORPORATION SHALL NOT
BE RELIEVED OF LIABILITY HEREUNDER. (NOTHING IN THE FOREGOING SENTENCE SHALL BE
CONSTRUED AS A CONSENT TO, OR A WAIVER OF, ANY PROHIBITION OR RESTRICTION ON
TRANSFERS OF INTERESTS IN SUCH BORROWING ENTITY WHICH MAY BE SET FORTH IN THE
LOAN AGREEMENT, THE MORTGAGE OR ANY OTHER LOAN DOCUMENTS.) IF BORROWER CONSISTS
OF MORE THAN ONE PERSON OR PARTY, THE OBLIGATIONS AND LIABILITIES OF EACH
PERSON OR PARTY SHALL BE JOINT AND SEVERAL.


 


Article 11
- TRIAL BY JURY


 


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


 


Article 12
- TRANSFER


 


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


 


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Article 13
- EXCULPATION


 


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


 


Article 14
- GOVERNING LAW


 


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


 


Article 15
- NOTICES


 


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


 


Article 16 - TAXPAYER
IDENTIFICATION NUMBER


 


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


 


Article 17 - ATTORNEYS’ FEES


 


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


 


[NO FURTHER TEXT ON THIS PAGE]


 


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IN WITNESS WHEREOF, Borrower has duly
executed 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