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


 


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
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”);


 


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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 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.