Exhibit 10.495


 


Loan
No. 10025002


 


PROMISSORY
NOTE


 


$22,800,000.00


December
30, 2004


 


FOR VALUE RECEIVED, INLAND
WESTERN CEDAR HILL PLEASANT RUN LIMITED PARTNERSHIP, an Illinois limited
partnership, having its principal place of business at 2901 Butterfield Road,
Oak Brook, Illinois 60523, as maker hereunder (referred to herein as “Borrower”) hereby unconditionally promises to pay to the order of KEYBANK
NATIONAL ASSOCIATION, a national banking association, its successors and
assigns, having an address at 911 Main Street, Suite 1500, Kansas City,
Missouri 64105 (“Lender”),
or at such other place as the holder hereof may from time to time designate in
writing, the principal sum of TWENTY-TWO MILLION EIGHT HUNDRED THOUSAND AND
NO/100 DOLLARS ($22,800,000.00), in lawful money of the United States of
America with interest thereon to be computed from the date of this Note at the
Interest Rate, and to be paid in accordance with the terms of this Note and
that certain Loan Agreement, dated as of the date hereof, between Borrower and
Lender (the “Loan Agreement”). All
capitalized terms not defined herein shall have the respective meanings set
forth in the Loan Agreement.


 


ARTICLE 1


PAYMENT TERMS


 


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


 


ARTICLE 2


DEFAULT AND ACCELERATION


 


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 on or prior to the date when due or
if not paid on the Maturity Date or on the happening of any other Event of
Default.


 


ARTICLE 3


LOAN DOCUMENTS


 


This Note is secured by the
Mortgage and the other Loan Documents. All of the terms, covenants and
conditions contained in the Loan Agreement, the Mortgage 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. In the event of a conflict
or inconsistency between the terms of this Note and the Loan Agreement, the
terms and provisions of the Loan Agreement shall govern.


 





















 


ARTICLE 4


SAVINGS CLAUSE


 


It
is expressly stipulated and agreed to be the intent of Borrower and Lender at
all times to comply strictly with the applicable Texas law, or federal law (if
applicable), governing the maximum rate or amount of interest payable on the
indebtedness evidenced by this Note and the Loan Documents.  All agreements in this Note and all other
Loan Documents, whether now existing or hereafter arising and whether written
or oral are expressly limited so that in no contingency or event whatsoever,
whether by reason of acceleration of maturity of the indebtedness evidenced
hereby, prepayment, or otherwise, shall the amount agreed to be paid hereunder
for the use, forbearance, or detention of money exceed the highest lawful rate
permitted under applicable usury laws (the “Maximum
Amount”).  To the extent Chapter 303 of the Texas
Finance Code, and its successor statutes and amendments, as then in effect
(collectively, the ‘‘Statute”), are applicable, the “weekly ceiling”
specified in the Statute, as selected by Lender, is the applicable ceiling.
Lender may, in accordance with and to the extent permitted by applicable law,
at its option and from time to time revise its election of the applicable “rate
ceiling” as to current and future balances outstanding, and may use the “quarterly
ceiling” or the “monthly ceiling” from time to time in effect, as such terms
are defined in the
Statute, or any other legally available “ceilings” as the Maximum Amount under
Texas or other applicable law. If the Maximum Amount as determined under any
applicable federal law shall at any time exceed the maximum rate of interest as
determined under applicable Texas law, then to the extent permitted by law, the
applicable federal rate shall be deemed controlling for purposes of determining
the Maximum Amount during such period of time. In no event shall the provisions
of Chapter 346 of the Texas Finance Code (which regulate certain revolving
credit loan accounts and revolving triparty accounts) apply to the indebtedness
evidenced hereby. This Article 4 will control all agreements between Borrower
and Lender. If, from any circumstance whatsoever (including without limitation,
the receipt of any late charge or similar amount), fulfillment of any provision
of this Note or any other Loan Document at the time performance of such
provision shall be due shall involve exceeding any usury limit prescribed by
law that a court of competent jurisdiction may deem applicable hereto, then, ipso
facto, the obligations to be fulfilled shall be reduced to allow compliance
with such limit, and if, from any circumstance whatsoever, Lender shall ever
receive anything of value deemed interest in an amount that would exceed the
highest lawful rate, the receipt of such excess shall be deemed a mistake and
shall be canceled automatically or, if theretofore paid, such excess shall be
credited against the principal amount of the indebtedness evidenced hereby to
which the same may lawfully be credited, and any portion of such excess not
capable of being so credited shall be refunded immediately to Borrower.  Borrower hereby agrees that, as a condition
precedent to any claim seeking usury penalties against Lender, Borrower will
provide written notice to Lender, advising Lender in reasonable detail of the
nature and amount of the violation, and Lender shall have sixty (60) days after
receipt of such notice in which to correct such usury violation, if any, by
either refunding such excess interest to Borrower or crediting such excess
interest against this Note and/or the indebtedness evidenced hereby or in the
Loan Documents then owing by Borrower to Lender. All interest contracted for,
charged, taken, reserved, paid or agreed to be paid to Lender shall, to the
extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the full term of this Note, including any extensions and
renewals hereof until payment in full of the principal balance of this Note so
that the interest thereon for such full term will not exceed at any time the
Maximum Amount.


 


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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 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
6


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.  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
partnership, the agreements herein contained shall remain in force and
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 limited liability company, the
agreements herein contained shall remain in force and applicable, notwithstanding any changes
in the members comprising the company, and the term “Borrower,” as used herein, shall include any alternate or
successor company, but any predecessor
company and its members shall not thereby be released from any liability.  If Borrower is a corporation, the agreements contained herein shall remain
in full force and 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 entity which may be set forth in the Loan Agreement, the Mortgage or
any other Loan Document.)


 


ARTICLE
7


TRANSFER


 


Upon
the transfer of this Note, Borrower hereby waiving notice of any such transfer
except as provided in the Loan Agreement, 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 from that date forward forever be relieved


 


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and
fully discharged from any liability or responsibility in the matter; but Lender
shall retain all rights hereby given to it with respect to any liabilities and
the collateral not so transferred.


 


ARTICLE 8


EXCULPATION


 


The
provisions of Section 9.4 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 9


GOVERNING LAW


 


THIS
NOTE SHALL BE DEEMED
TO BE A CONTRACT ENTERED INTO PURSUANT TO THE LAWS OF THE STATE IN WHICH THE
PROPERTY IS LOCATED AND SHALL IN ALL RESPECTS BE GOVERNED, APPLIED AND ENFORCED
IN 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 be delivered in
accordance with Section 10.6 of the Loan Agreement.


 


[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.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INLAND
  WESTERN CEDAR HILL

  PLEASANT RUN LIMITED PARTNERSHIP,

  an Illinois limited
  partnership

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  Inland Western Cedar Hill
  Pleasant Run GP,

  L.L.C., a Delaware limited liability

  company, its general partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Inland Western Retail Real
  Estate

  Trust, Inc., a Maryland corporation,

  its sole member

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Debra A.
  Palmer

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Debra A.
  Palmer

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Assistant Secretary

  	
   

  
							



 


Pay to the order of                                                                     ,
without recourse.


 


	
   

  	
  KEYBANK NATIONAL ASSOCIATION, a

  national banking association

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Print Name: 

  	
   

  	
   

  
	
   

  	
  Print Title: 

  	
   

  	
   

  
						



 


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STATE OF ILLINOIS


 


COUNTY OF DUPAGE


 


On this 29 day of December, 2004, before me, Doris E. Ahern, a Notary Public
in and for said state, personally appeared Debra A. Palmer, who being by me
duly sworn did say that she is the Assistant Secretary of Inland Western Retail
Real Estate Trust, Inc., a Maryland corporation, the sole member of Inland
Western Cedar Hill Pleasant Run GP, L.L.C., a Delaware limited liability
company, the general partner of Inland Western Cedar Hill Pleasant Run Limited
Partnership, an Illinois limited partnership, and that the within instrument
was signed and sealed in behalf of said entities.


 


	
   

  	
   

  
	
  [Notarial
  Seal]

  	
   /s/ Doris E. Ahern

  	
   

  
	
   

  	
  Print Name:

  	
  Doris E. Ahern

  	
   

  
	
   

  	
   

  
	
  My commission
  expires :

  	
  10/13/08

  	
   

  
							



 


 




	
   

  	
  OFFICIAL SEAL

  
	
   

  	
  DORIS E AHERN

  
	
   

  	
  NOTARY PUBLIC STATE OF ILLINOIS

  
	
   

  	
  MY COMMISSION EXPIRES 10/13/08

  






 


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