Exhibit
10.459


 


	
  LOAN TERMS TABLE

  
	
   

  	
   

  	
   

  
	
  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

  	
   

  	
   

  



 


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 1(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.I5 – 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.


 


2





















 


Article 3 - 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 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”);


 


3





















 


(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.I5-Selecled 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


 


4





















 


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.


 


5





















 


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 OK 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


 


6





















 


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.


 


7





















 


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]


 


8





















 


IN
WITNESS WHEREOF, Borrower has duly executed this Note as of the day and year
first 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