Exhibit 10.438


 


PROMISSORY NOTE


 


	
  $13,695,000.00

  	
   

  	
  New York, New York

  
	
   

  	
   

  	
  December 21, 2004

  



 


FOR VALUE RECEIVED, INLAND WESTERN PLACENTIA, L.L.C., a Delaware
limited liability company having its principal place of business at 2901
Butterfield Road, Oak Brook, Illinois 60523, a maker hereunder (referred to
herein as “Borrower”), hereby
unconditionally promises to pay to the order of BEAR STEARNS COMMERCIAL
MORTGAGE, INC., a New York corporation, as payee, having an address at 383
Madison Avenue, New York, New York 10179 (“Lender”),
or at such other place as the holder hereof may from time to time designate in
writing, the principal sum of THIRTEEN MILLION SIX HUNDRED NINETY FIVE THOUSAND
AND NO/100 DOLLARS ($13,695,000.00), 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


 


Notwithstanding anything to the contrary, (a) all agreements and
communications between Borrower and Lender are hereby and shall automatically
be limited so that, after taking into account all amounts deemed interest, the
interest contracted for, charged or received by Lender shall never exceed the
maximum lawful rate or amount, (b) in calculating whether any interest exceeds
the lawful maximum, all such interest shall be amortized, prorated, allocated
and spread over the full amount and term of all principal indebtedness of
Borrower to Lender, and (c) if through any contingency or event, Lender
receives or is deemed to receive interest in excess of the lawful maximum, any
such excess shall be deemed to have been applied (without prepayment penalty or
premium) toward payment of the principal of any and all then outstanding
indebtedness of Borrower to Lender, or if there is no such indebtedness, shall
immediately be returned to Borrower.


 


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


 


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term “Borrower,” as used herein, shall include any alternate or
successor company, but any predecessor company 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
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.


 


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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 PLACENTIA, 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

  
	
   

  	
   

  	
   

  	
  Title:
     Asst Secretary

  



 


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ACKNOWLEDGMENT


 


STATE OF ILLINOIS


 


COUNTY OF DUPAGE


 


The foregoing
instrument was  acknowledged before me
this 6th day of 
December, 2004 by Debra
Palmer as Ass't. Secretary of INLAND WESTERN RETAIL REAL ESTATE TRUST,
INC., a Maryland corporation, which is the sole member and manager of INLAND
WESTERN PLACENTIA, L.L.C., a Delaware limited liability company, who executed
the foregoing instrument, and acknowledged the execution thereof to be his/her
free act and deed as such officer on behalf of said corporation in its capacity
as sole member and manager of said limited liability company for the use and
purposes therein mentioned, and the said instrument is the act and deed of said
corporation and limited liability company. He/She is personally known to me as
identification.


 


My commission
expires:


 


 


	
  [Notarial Seal]

  	
  /s/ Nancy Christina Phillips

  
	
   

  	
  Print Name:

  
	
   

  	
  Notary Public

  
	
   

  	
  Serial Number:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OFFICIAL SEAL

  	
   

  
	
   

  	
  NANCY CHRISTINA PHILLIPS

  	
   

  
	
   

  	
  NOTARY PUBLIC - STATE OF ILLINOIS

  	
   

  
	
   

  	
  MY COMMISSION EXPIRES:03/24/08

  	
   

  
				



 


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