Exhibit 10.404


 


PROMISSORY NOTE


 


DEFINED TERMS


 


	
  Execution
  Date: December 7, 2004

  	
   

  	
  City
  and State of Signing:
  Oak Brook, Illinois

  
	
   

  	
   

  	
   

  
	
  Loan
  Amount:

  	
  Twenty-Five
  Million Two Hundred

  Thousand and No/100 Dollars

  ($25,200,000.00)

  	
   

  	
  Interest
  Rate:  4.3%
  per annum

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Borrower:

  	
  Inland
  Western Denton Crossing Limited Partnership, an Illinois limited partnership

  
	
   

  	
   

  
	
  Borrower’s
  Address:

  	
  2901
  Butterfield Road

  Oak
  Brook, Illinois 60523

  
	
   

  	
   

  
	
  Holder:

  	
  METROPOLITAN
  LIFE INSURANCE COMPANY, A NEW YORK CORPORATION

  
	
   

  	
   

  
	
  Holder’s
  Address:

  	
  Metropolitan
  Life Insurance Company 

  10 Park Avenue

  Morristown, New Jersey 07960

  Attention: Senior Vice President

  Real Estate Investments



  and:



  Metropolitan
  Life Insurance Company

  Two Lincoln Centre

  5420 LBJ Freeway, Suite 1310

  Dallas, Texas 75240

  Attention: Director and OIC, Real Estate Investments

  
	
   

  	
   

  
	
  Maturity
  Date:

  	
  January 1,
  2010

  	
   

  	
  Advance
  Date: The date funds
  arc disbursed to

  Borrower.

  
	
   

  	
   

  	
   

  	
   

  
	
  Monthly
  Installment: Monthly
  installments of interest only at the Interest Rate (which monthly installments
  shall each be in the amount of $90,300.00)

  	
   

  	
  Permitted
  Prepayment Period:
  During the 90 day period prior to the Maturity Date, Borrower may prepay the
  Loan without a Prepayment Fee on 30 days prior written notice. In addition,
  commencing on the first day of the full 31st month following the Advance Date, Borrower
  may prepay the Loan with a Prepayment Fee on 30 days prior written notice to
  Holder.

  
	
   

  	
   

  	
   

  
	
  Liable
  Parties: 

  	
  Inland
  Western Retail Real Estate, Inc.

  
	
   

  	
   

  
	
  Addresses
  of Liable Parties:
  2901 Butterfield Road, Oak Brook, Illinois 60523

  
	
   

  
	
  Late
  Charge: An amount
  equal to four cents ($.04) for each dollar that is overdue, subject, however,
  to the limitations contained in Section 7 hereof; and provided, however,
  the balloon payment at the Maturity Date shall not be subject to a Late
  Charge.

  
	
   

  	
   

  	
   

  
	
  Default
  Rate: An annual rate
  equal to the Interest Rate plus four percent (4%).

  
												



 


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Note: This Promissory Note.
Other Note: Promissory Note of even date in the amount of $10,000,000.00
executed by Borrower to the order of MetLife Bank, N,A. Deed of Trust: Deed of
Trust, Security Agreement, and Fixture Filing dated as of the Execution Date
granted by Borrower to the Trustee named in the Deed of Trust for the benefit
of Metropolitan Life insurance Company and MetLife Bank, N.A, Loan Documents:
This Note, the Other Note, the Deed of Trust and any other documents related to
this Note, the Other Note and/or the Deed of Trust and all renewals,
amendments, modifications, restatements and extensions of these documents.
Guaranty: Guaranty dated as of the Execution Date and executed by Liable
Parties. Indemnity Agreement; Unsecured Indemnity Agreement dated as of the
Execution Date and executed by Borrower in favor of Metropolitan Life Insurance
Company and MetLife Bank, N.A. The Unsecured Indemnity Agreement and Guaranty
are not Loan Documents and shall survive repayment of the Loan or other
termination of the Loan Documents. Loan: The Loan evidenced by this Note, Other
Loan: The Loan evidenced by the Other Note.


 


FOR VALUE RECEIVED, Borrower promises to pay
to the order of Holder at Holder’s Address or such other place as Holder may
from time to time designate, the Loan Amount with interest payable in the
manner described below, in money of the United States of America that at the
time of payment shall be legal tender for payment of all obligations.


 


Capitalized terms which are not defined in
this Note shall have the meanings set forth in the Deed of Trust.


 


1.                                       Payment of Principal and Interest. Principal and interest under this Note shall
be payable as follows:


 


(a)                                  Commencing on the first day of the second
calendar month following the Advance Date (assuming stub interest for the month
of closing of the Loan is paid on the Execution Date) and on the first day of
each calendar month thereafter, to and including the first day of the calendar
month immediately preceding the Maturity Date, Borrower shall pay the Monthly
Installment; and


 


(b)                                 On the Maturity Date, a final payment in the
aggregate amount of the unpaid principal sum evidenced by this Note, all
accrued and unpaid interest, and all other sums evidenced by this Note or
secured by the Deed of Trust and/or any other Loan Documents as well as any
future advances under the Deed of Trust that may be made to or on behalf of
Borrower by Holder following the Advance Date (collectively, the “Secured Indebtedness”), shall become immediately payable in
full.


 


Borrower acknowledges and agrees that a substantial portion of the
original Loan Amount may be outstanding and due on the Maturity Date.


 


Interest shall be calculated on the basis of a
thirty (30) day month and a three hundred sixty (360) day year, except that (i)
if the Advance Date occurs on a date other than the first day of a calendar
month, interest payable for the period commencing on the Advance Date and
ending on the last day of the month in which the Advance Date occurs shall be
calculated on the basis of the actual number of days elapsed over a 365 day or
366 day year, as applicable, and (ii) if the Maturity Date occurs on a date
other than the last day of the month, interest payable for the period
commencing on the first day of the month in which the Maturity Date occurs and
ending on the Maturity Date shall he calculated on the basis of the actual
number of days elapsed over a 365 day or 366 day year, as applicable.


 


2.                                       Application of Payments. At the election of Holder, and to the extent
permitted by law, all payments shall be applied in the order selected by Holder
to any expenses, prepayment fees, late charges, escrow deposits and other sums
due and payable under the Loan Documents, and to unpaid interest at the
Interest Rate or at the Default Rate, as applicable. The balance of any
payments shall be applied to reduce the then unpaid Loan Amount.


 


3.                                       Security. The covenants of the Deed of Trust are incorporated by reference into
this Note. This Note shall evidence, and the Deed of Trust shall secure the
Secured Indebtedness and the Secured Indebtedness (as defined in the Other
Note) under the Other Note.


 


4.                                       Late Charge. If any payment of interest, any payment of a Monthly Installment or
any payment of a required escrow deposit is not paid within 7 days of the due
date, Holder shall have the option to charge Borrower the Late Charge. The Late
Charge is for the purpose of defraying the expenses incurred in connection with


 


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handling
and processing delinquent payments and is payable in addition to any other
remedy Holder may have. Unpaid Late Charges shall become part of the Secured
Indebtedness and shall be added to any subsequent payments due under the Loan
Documents.


 


5.                                       Acceleration Upon Default. At the option of Holder, if Borrower fails
to pay any sum specified in this Note within 7 days of the due date, or if an
Event of Default occurs, the Secured Indebtedness, and all other sums evidenced
and/or secured by the Loan Documents, including without limitation any
applicable prepayment fees (collectively, the “Accelerated Loan
Amount”) shall become immediately due and payable.


 


6.                                       Interest Upon Default. The Accelerated Loan Amount shall bear
interest at the Default Rate which shall never exceed the maximum rate of
interest permitted to be contracted for under the Jaws of the State of Texas.
The Default Rate shall commence upon the occurrence of an Event of Default and
shall continue until all defaults are cured.


 


7.                                       Limitation on Interest.


 


(a)                                  Sayings Clause. It is expressly stipulated and agreed to be
the intent of Borrower and Holder at all times to comply strictly with the
applicable Texas law governing the maximum rate or amount of interest payable
on this Note or the Related Indebtedness (as herein defined) (or applicable
United States federal law to the extent that it permits Holder to contract for,
charge, take, reserve or receive a greater amount of interest than under Texas
law). If the applicable law is ever judicially interpreted so as to render
usurious any amount (i) contracted for, charged, taken, reserved or received
pursuant to this Note, any of the other Loan Documents or any other
communication or writing by or between Borrower and Holder related to the
transaction or transactions that are the subject matter of the Loan Documents,
(ii) contracted for, charged or received by reason of Holder’s exercise of the
option to accelerate the maturity of this Note and/or the Related Indebtedness,
or (iii) Borrower will have paid or Holder will have received by reason of any
voluntary prepayment by Borrower of this Note and/or the Related Indebtedness,
then it is Borrower’s and Holder’s express intent that all amounts charged in
excess of the Maximum Lawful Rate shall be automatically cancelled, ab
initio, and all amounts in excess of the Maximum Lawful Rate theretofore collected
by Holder shall be credited on the principal balance of this Note and/or the
Related Indebtedness without payment of the Prepayment Fee (or, if this Note
and all Related Indebtedness have been or would thereby be paid in full,
refunded to Borrower), and the provisions of this Note and the other Loan
Documents immediately be deemed reformed and the amounts thereafter collectible
hereunder and thereunder reduced, without the necessity of the execution of any
new document, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder and thereunder;
provided, however, if this Note has been paid in full before the end of the
stated term of this Note, then Borrower and Holder agree that Holder shall,
with reasonable promptness after Holder discovers or is advised by Borrower
that interest was received in an amount in excess of the Maximum Lawful Rate,
either refund such excess interest to Borrower and/or credit such excess
interest against this Note and/or any Related Indebtedness then owing by
Borrower to Holder without payment of the Prepayment Fee, Borrower hereby
agrees that as a condition precedent to any claim seeking usury penalties
against Holder, Borrower will provide written notice to Holder, advising Holder
in reasonable detail of the nature and amount of the violation, and Holder
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 Related
Indebtedness then owing by Borrower to Holder without payment of the Prepayment
Fee. All sums contracted for, charged or received by Holder for the use,
forbearance or detention of any debt evidenced by this Note and/or the Related
Indebtedness shall, to the extent permitted by applicable law, be amortized or
spread, using the actuarial method, throughout the stated term of this Note
and/or the Related Indebtedness (including any and all renewal and extension
periods) until payment in full so that the rate or amount of interest on
account of this Note and/or the Related Indebtedness does not exceed the
Maximum Lawful Rate from time to time in effect and applicable to this Note
and/or the Related Indebtedness for so long as debt is outstanding. In no event
shall the provisions of Chapter 346 of the Texas Finance Code (which regulates
certain revolving credit loan accounts and revolving triparty accounts) apply
to this Note and/or the Related Indebtedness. Notwithstanding anything to the
contrary contained herein or in any of the other Loan Documents, it is not the
intention of Holder to accelerate the maturity of any interest that has not
accrued at the time of such acceleration or to collect unearned interest at the
time of such acceleration,


 


(b)                                 Definitions. As used herein, the term “Maximum Lawful Rate” shall mean the maximum
lawful rate of interest which may be contracted for, charged, taken, received
or reserved by Holder in accordance with the applicable laws of the State of
Texas (or applicable United States federal law to the extent that it permits
Holder to contract for, charge, take, receive or reserve a greater amount of
interest than under Texas law), taking into account all Charges (as herein
defined) made in connection with the transaction evidenced by this Note and the
other Loan Documents. As used herein, the term “Charges” shall mean all
fees, charges and/or any other things of value, if


 


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any,
Contracted for, charged, received, taken or reserved by Holder in connection
with the transactions relating to this Note and the other Loan Documents, which
are treated as interest under applicable law. As used herein, the term “Related
Indebtedness” shall mean any and all debt paid or payable by Borrower to
Holder pursuant to the Loan Documents or any other communication or writing by
or between Borrower and Holder related to the transaction or transactions that
arc the subject matter of the Loan Documents, except such debt which has been
paid or is payable by Borrower to Holder under this Note.


 


(c)                                  Ceiling Election. To the extent that Holder is relying on
Chapter 1D of the Texas Credit
Title to determine the Maximum Lawful Rate payable on this Note and/or the
Related Indebtedness, Holder will utilize the weekly ceiling from time to time
in effect as provided in such Chapter 1D, as amended. To the extent United
States federal law permits Holder to contract for, charge, take, receive or
reserve a greater amount of interest than under Texas law, Holder will rely on
United States federal law instead of such Chapter 1D for the purpose of
determining the Maximum Lawful Rate. Additionally, to the extent permitted by
applicable law now or hereafter in effect, Holder may, at its option and from
time to time, utilize any other method of establishing the Maximum Lawful Rate
under such Chapter 1D or under other applicable law by giving notice, if
required, to Borrower as provided by applicable law now or hereafter in effect.


 


8.                                       Prepayment. Borrower shall not have the right to prepay all or any portion of the
Loan Amount at any time during the term of this Note except as expressly set
forth in the Defined Terms. If Borrower provides notice of its intention to
prepay, the Accelerated Loan Amount shall become due and payable on the date specified
in the prepayment notice. In addition to the above limitations upon prepayment,
this Note may not be prepaid without the simultaneous prepayment of the Other
Note in accordance with its terms.


 


9.                                       Prepayment Fee.


 


(a)                                  Any tender of payment by Borrower or any other
person or entity of the Secured Indebtedness, other than as expressly provided
in the Loan Documents, shall constitute a prohibited prepayment. If a
prepayment of all or any part of the Secured Indebtedness is made following (i)
an Event of Default and an acceleration of the Maturity Date, or (ii) in
connection with a purchase of the Property or a repayment of the Secured
Indebtedness at any time before, during or after, a judicial or non-judicial
foreclosure or sale of the Property, then to compensate Holder for the loss of
the investment, Borrower shall pay an amount equal to the Prepayment Fee (as
hereinafter defined).


 


(b)                                 The “Prepayment Fee”
shall be the greater of (A) the Prepayment Ratio (as hereinafter defined)
multiplied by the difference between (x) and (y), where (x) is the present
value of all remaining payments of principal and interest including the
outstanding principal due on the Maturity Date, discounted at the rate which,
when compounded monthly, is equivalent to the Treasury Rate plus fifty basis
points (.5%) compounded semi-annually, and (y) is the amount of the principal
then outstanding, or (B) one percent (1%) of the amount of the principal being
prepaid.


 


(c)                                  The “Treasury Rate”
shall be the annualized yield on securities issued by the United States
Treasury having a maturity equal to the remaining stated term of this Note, as
quoted in the Federal Reserve Statistical Release [H. 15 (519)] under the heading “U.S.
Government Securities - Treasury Constant Maturities” for the date on which
prepayment is being made. If this rate is not available as of the date of
prepayment, the Treasury Rate shall be determined by interpolating between the
yield on securities of the next longer and next shorter maturity. If the
Treasury Rate is no longer published, Holder shall select a comparable rate.
Holder will, upon request, provide an estimate of the amount of the Prepayment
Fee two weeks before the date of the scheduled prepayment.


 


(d)                                 The “Prepayment Ratio”
shall be a fraction, the numerator of which shall be the amount of principal
being prepaid, and the denominator of which shall be the principal then
outstanding.


 


10.                                 Waiver of Right to Prepay Note Without
Prepayment Fee. Borrower
acknowledges that Holder has relied upon the anticipated investment return
under this Note in entering into transactions with, and in making commitments
to, third parties and that the tender of any prohibited prepayment, shall, to
the extent permitted by law, include the Prepayment Fee. Borrower agrees that
the Prepayment Fee represents the reasonable estimate of Holder and Borrower of
a fair average compensation for the loss that may be sustained by Holder as a
result of a prohibited prepayment of this Note and it shall be paid without
prejudice to the right of Holder to collect any other amounts provided to be
paid under the Loan Documents.


 


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BORROWER EXPRESSLY (A) WAIVES ANY RIGHTS IT MAY HAVE UNDER TEXAS LAW TO
PREPAY THIS NOTE, IN WHOLE OR IN PART, WITHOUT FEE OR PENALTY, UPON
ACCELERATION OF THE MATURITY DATE OF THIS NOTE, AND (B) AGREES THAT IF, FOR ANY
REASON, A PREPAYMENT OF THIS NOTE IS MADE, UPON OR FOLLOWING ANY ACCELERATION
OF THE MATURITY DATE OF THIS NOTE BY HOLDER ON ACCOUNT OF ANY DEFAULT BY
BORROWER UNDER ANY LOAN DOCUMENT, INCLUDING BUT NOT LIMITED TO ANY TRANSFER,
FURTHER ENCUMBRANCE OR DISPOSITION WHICH IS PROHIBITED OR RESTRICTED BY THE
DEED OF TRUST, THEN BORROWER SHALL BE OBLIGATED TO PAY CONCURRENTLY THE
PREPAYMENT FEE SPECIFIED IN SECTION 9. BY EXECUTING THIS NOTE, BORROWER
AGREES THAT HOLDER’S AGREEMENT TO MAKE THE LOAN AT THE INTEREST RATE AND FOR
THE TERM SET FORTH IN THIS NOTE CONSTITUTES ADEQUATE CONSIDERATION FOR THIS
WAIVER AND AGREEMENT.


 


11.                                 Liability of Borrower. Upon the occurrence of an Event of Default,
except as provided in this Section 11, Holder will look solely to the
Property and the security under the Loan Documents for the repayment of the Loan
and will not enforce a deficiency judgment against Borrower. However, nothing
contained in this section shall limit the rights of Holder to proceed
against Borrower and the general partners of Borrower and/or the Liable
Parties, if any, (i) to enforce any Leases entered into by Borrower or its
affiliates as tenant, guarantees, or other agreements entered into by Borrower
in a capacity other than as borrower or any policies of insurance; (ii) to
recover damages for fraud, material misrepresentation, material breach of
warranty or waste; (iii) to recover any Condemnation Proceeds or Insurance
Proceeds or other similar funds which have been misapplied by Borrower or
which, under the terms of the Loan Documents, should have been paid to Holder;
(iv) to recover any tenant security deposits, tenant letter of credit or other
deposits or fees paid to Borrower that are part of the collateral for the Loan
or prepaid rents for a period of more than 30 days which have not been
delivered to Holder; (v) to recover Rents and Profits received by Borrower
after the first day of the month in which an Event of Default occurs and prior
to the date Holder acquires title to the Property which have not been applied
to the Loan or in accordance with the Loan Documents to operating and
maintenance expenses of the Property; (vi) to recover damages, costs and
expenses arising from, or in connection with Article VI of the Deed of
Trust pertaining to hazardous materials or the Indemnity Agreement; (vii) to
recover all amounts due and payable pursuant to Sections 11.06 and 11.07 of the
Deed of Trust and any amount expended by Holder in connection with the
foreclosure of the Deed of Trust; (viii) to recover damages arising from
Borrower’s failure to comply with Section 8.01 of the Deed of Trust
pertaining to ERlSA; (ix) to recover all amounts due and payable, or to recover
any damages for Borrower’s failure to comply with Section 2.05 of the Deed
of Trust pertaining to Premiums and Impositions; and/or (x) to recover all amounts
due and payable, or to recover any damages for Borrower’s failure to comply
with, the provisions of Article XV of the Deed of Trust.


 


The limitation of liability set forth in this Section 11 shall not
apply and the Loan shall be fully
recourse to Borrower and Liable Parties (i) in the event that prior to the
repayment of the Secured Indebtedness, Borrower commences a voluntary
bankruptcy or insolvency proceeding or an involuntary bankruptcy or insolvency
proceeding is commenced against Borrower and is not dismissed within 90 days of
filing or (ii) to recover damages arising from Borrower’s failure to comply
with Sections 10.02 and ll.0l(g) of the Deed of Trust pertaining to subordinate
financing and Transfers, respectively. In addition, this agreement shall not
waive any rights which Holder would have under any provisions of the U.S.
Bankruptcy Code to file a claim for the full amount of the Secured Indebtedness
or to require that the Property shall continue to secure all of the Secured
Indebtedness.


 


12.                                 Waiver by Borrower. Borrower and others who may become liable
for the payment of all or any part of this Note, and each of them, waive
diligence, demand, presentment for payment, notice of nonpayment, protest,
notice of dishonor and notice of protest, notice of intent to accelerate and
notice of acceleration and specifically consent to and waive notice of any
amendments, modifications, renewals or extensions of this Note, including the granting
of extension of time for payment, whether made to or in favor of Borrower or
any other person or persons.


 


13.                                 Exercise of Rights. No single or partial exercise by Holder, or
delay or omission in the exercise by Holder, of any right or remedy under the
Loan Documents shall waive or limit the exercise of any such right or remedy.
Holder shall at all times have the right to proceed against any portion of or
interest in the Property in the manner that Holder may deem appropriate,
without waiving any other rights or remedies. The release of any party under this
Note shall not operate to release any other party which is liable under this
Note and/or under the other Loan Documents or under the Indemnity Agreement.


 


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14.                                 Fees and Expenses. If Borrower defaults under this Note,
Borrower shall be personally liable for and shall pay to Holder, in addition to
the sums stated above, the costs and expenses of enforcement and collection, including
a reasonable sum as an attorney’s fee. This obligation is not limited by Section 11.


 


15.                                 No Amendments. This Note may not be modified or amended
except in a writing executed by Borrower and Holder. No waivers shall be
effective unless they are set forth in a writing signed by the party which is waiving
a right. This Note and the other Loan Documents are the final expression of the
lending relationship between Borrower.


 


16.                                 Governing Law. This Note is to be construed and enforced in
accordance with the laws of the State of Texas.


 


17.                                 Construction. The words “Borrower” and “Holder” shall be deemed to include their
respective heirs, representatives, successors and assigns, and shall denote the
singular and/or plural, and the masculine and/or feminine, and natural and/or
artificial persons, as appropriate. The provisions of this Note shall remain in
full force and effect notwithstanding any changes in the shareholders, partners
or members of Borrower. If more than one party is Borrower, the obligations of
each party shall be joint and several. The captions in this Note are inserted
only for convenience of reference and do not expand, limit or define the scope
or intent of any section of this Note.


 


18.                                 Notices. All notices, demands, requests and consents permitted or required
under this Note shall be given in the manner prescribed in the Deed of Trust.


 


19.                                 Time of the Essence. Time shall be of the essence with respect to
all of Borrower’s obligations under this Note.


 


20.                                 Severability. If any provision of this Note should be held unenforceable or void,
then that provision shall be deemed separable from the remaining provisions and
shall not affect the validity of this Note, except that if that provision
relates to the payment of any monetary sum, then Holder may, at its option,
declare the Secured Indebtedness (together with the Prepayment Fee) immediately
due and payable.


 


IN WITNESS WHEREOF, Borrower has executed this Note as of the Execution
Date.


 


 


	
   

  	
  INLAND
  WESTERN DENTON CROSSING LIMITED

  PARTNERSHIP,

  
	
   

  	
  an
  Illinois limited partnership

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Inland
  Western Denton Crossing GP, L.L.C.,

  a Delaware limited liability company,

  its sole general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Inland
  Western Retail Real Estate Trust, Inc.,

  a Maryland corporation,

  its sole member.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  VALERIE MEDINA

  
	
   

  	
   

  	
  Name:

  	
  VALERIE
  MEDINA

  
	
   

  	
   

  	
  Title:

  	
  Assistant
  Secretary

  
								



 


 


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