**Exhibit 10.463**

 

LOAN TERMS TABLE

 

| Note Date:  December 16, 2004                                                     |   | MERS No.:  8000101-0000000568-5            |
|-----------------------------------------------------------------------------------|--------|--------------------------------------------|
| Borrower: **INLAND WESTERN DEPERE, L.L.C.,**a Delaware  limited liability company |
| Original  Principal Amount: $**11,623,000.00**                                    |   | Loan No.:  58624                           |
| Initial Note  Rate: **4.2975%**                                                   |   | Servicing  No.: 3190717                    |
| Revised Note  Rate: As defined in Article 2                                       |   | Borrower’s  TIN: 20-1908204           |
| 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 at2901 Butterfield Road, Oak Brook, IL 60523, hereby unconditionally promises topay to the order of **BANK OF AMERICA,****N.A.,** a nationalbanking association, having an address at 214 North Tryon Street, Charlotte,North Carolina 28255 (**“Lender”**), the Original PrincipalAmount, in lawful money of the United States of America with interest thereonto 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 TermsTable set forth above is a part of this Note and all terms used in this Notewhich are defined in the Loan Terms Table shall have the meaning set forththerein. All capitalized terms not defined herein shall have the respectivemeanings set forth in that certain Loan Agreement dated the date hereof betweenLender and Borrower (the **“Loan Agreement”**).

 

**Article****1 – PAYMENT****TERMS;****MANNER****OFPAYMENT**

 

(a)           Borrower hereby agreesto pay sums due under this Note as follows: an initial payment is due on theClosing Date for interest from the Closing Date through and including the lastday 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 inaccordance 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 includingthe Maturity Date, a **“Scheduled Payment Date”**)****untilthe entire indebtedness evidenced hereby is fully paid, except that anyremaining indebtedness, if not sooner paid, shall be due and payable on theMaturity Date. In addition to the foregoing, commencing on the OptionalPrepayment Date and continuing on each Scheduled Payment Date thereafter,Borrower hereby agrees to pay all Excess Cash (as defined in the LoanAgreement) until the principal amount of this Note is paid in full, provided,however, the entire Debt, including all Accrued Interest (defined below), shallbe due on the Maturity Date.

 

(b)           Each payment byBorrower 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 bestated to be due on a day which is not a

 

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Business Day,such payment shall be made on the first Business Day preceding such scheduleddue date. All payments made by Borrower hereunder or under the other LoanDocuments shall be made irrespective of, and without any deduction for, anysetoff, defense or counterclaims.

 

(c)           Provided no Event ofDefault has occurred, (i) each Monthly Payment Amount made as scheduled on thisNote shall be applied first to the payment of interest computed at the InitialNote Rate, and the balance toward the reduction of the principal amount of thisNote, and (ii) each payment of Excess Cash made as required on this Note shallbe applied first to the reduction of the principal amount of this Note untilpaid in full, and the balance to Accrued Interest until paid in full. Allvoluntary and involuntary prepayments on this Note shall be applied, to theextent thereof, to accrued but unpaid interest on the amount prepaid, to the remainingPrincipal Amount, and any other sums due and unpaid to the Lender in connectionwith the Loan, in such manner and order as Lender may elect in its sole andabsolute discretion, including, but not limited to, application to principalinstallments in inverse order of maturity. Following the occurrence of an Eventof Default, any payment made on this Note shall be applied to accrued butunpaid interest, late charges, accrued fees, the unpaid principal amount of thisNote, 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 absolutediscretion.

 

(d)           Remittances in paymentof any part of the indebtedness other than in the required amount inimmediately available U.S. funds shall not, regardless of any receipt or creditissued therefor, constitute payment until the required amount is actuallyreceived by the holder hereof in immediately available U.S. funds and shall bemade and accepted subject, to the condition that any check or draft may be handledfor collection in accordance with the practices of the collecting bank orbanks.

 

**Article 2 - INTEREST**

 

The Loan shall bear interest at a fixed rate per annum equal to theNote Rate. The **“Note Rate”** shall mean (a) fromthe date of this Note through but excluding the Optional Prepayment Date, theInitial Note Rate, and (b) from and after the Optional Prepayment Date throughand 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 thesum of (x) two percent (2.00%) and (y) the greater of (i) the Initial Note Rateand (ii) the sum of the Treasury Rate plus five percent (5.00%). The **“Treasury Rate”** shall mean the yield per annum calculated bythe linear interpolation of yields, as reported in the Federal ReserveStatistical Release H.15 – Selected Interest Rates under the heading “USgovernment securities” and the subheading “Treasury constant maturities” forthe week ending prior to the Optional Prepayment Date, of U.S. Treasuryconstant maturities with maturity dates (one longer and one shorter) mostnearly approximating the Maturity Date. In the event H.15 is no longerpublished, Lender in its reasonable discretion shall select a comparablepublication to determine the Treasury Rate. From and after the OptionalPrepayment Date, interest in excess of the Initial Note Rate shall accrue andbe added to the Debt and shall earn interest at the Revised Note Rate to theextent permitted by applicable law (**“Accrued Interest”**).Interest shall be computed on the basis of a three hundred sixty (360) day yearconsisting of twelve (12) months of thirty (30) days each. Except as otherwiseset forth herein or in the other Loan Documents, interest shall be paid inarrears.

 

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**Article 3 - DEFAULT AND ACCELERATION**

 

TheDebt shall without notice become immediately due and payable at the option ofLender 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 thehappening 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 extentpermitted by law, overdue interest and other amounts due in respect of the Loanshall accrue at a rate per annum equal to the lesser of (a) the maximum ratepermitted by applicable law, or (b) four percent (4%) above the Note Rate (suchrate, the **“Default Rate”**). Interest at theDefault Rate shall be computed from the occurrence of the Event of Defaultuntil the earlier of (i) the actual receipt and collection of the Debt (or thatportion 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 shallbe added to the Debt, shall itself accrue interest at the same rate as the Loanand shall be secured by the Security Instrument. This Article shall not beconstrued as an agreement or privilege to extend the date of the payment of theDebt, nor as a waiver of any other right or remedy accruing to Lender by reasonof the occurrence of any Event of Default; the acceptance of any payment fromBorrower shall not be deemed to cure or constitute a waiver of any Event ofDefault; and Lender retains its rights under this Note, the Loan Agreement andthe other Loan Documents to accelerate and to continue to demand payment of theDebt 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 voluntaryprepayments, whether in whole or in part, of the Loan or any other amount atany time due and owing under this Note can be made by Borrower or any otherPerson without the express written consent of Lender.

 

(a)           Lockout Period.Borrower shall have no right to make, and Lender shall have no obligation toaccept, any voluntary prepayment, whether in whole or in part, of the Loan, orany other amount under this Note or the other Loan Documents, at any timeduring the Lockout Period. At any time following the expiration of the LockoutPeriod, the principal balance of this Note may be voluntarily prepaid in whole,but not in part, upon the satisfaction of the following conditions:

 

(i)            noDefault shall exist under any of the Loan Documents;

 

(ii)           notless than sixty (60) (but not more than ninety (90)) days prior written noticeshall be given to Lender specifying a date on which the prepayment shall occursuch date being a Scheduled Payment Date (the “Prepayment Date”);

 

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(iii)          Borrowerhas paid to Lender all accrued and unpaid interest on the Loan through andincluding the Prepayment Date together with all other sums due under this Noteand the other Loan Documents; and

 

(iv)          Borrowerhas 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 Borrowerwithin sixty (60) days of the Optional Prepayment Date, there shall be noprepayment premium required to be paid by Borrower.

 

(b)           InvoluntaryPrepayment. In the event of any involuntary prepayment of the Loan or anyother amount under this Note, whether in whole or in part, in connection withor following Lender’s acceleration of this Note or otherwise, and whether theSecurity Instrument is satisfied or released by foreclosure (whether by powerof sale or judicial proceeding), deed in lieu of foreclosure or by any othermeans, including, without limitation, repayment of the Loan by Borrower or anyother Person pursuant to any statutory or common law right of redemption, Borrowershall pay any portion of the principal balance of the Loan prepaid (togetherwith all interest accrued and unpaid thereon and, in the event the prepaymentis made on a date other than a Scheduled Payment Date, a sum equal to theamount of interest which would have accrued under this Note on the amount ofsuch prepayment if such prepayment had occurred on the next Scheduled PaymentDate).

 

As used herein, “Yield Maintenance” means a prepayment premium in anamount equal to the greater of equal to the greater of (i) 1% of the portion ofthe Loan being prepaid, and (ii) the present value as of the PrepaymentCalculation Date of a series of monthly payments over the remaining term of theLoan through and including the Optional Prepayment Date each equal to theamount of interest which would be due on the portion of the Loan being prepaidassuming a per annum interest rate equal to the excess of the Note Rate overthe Reinvestment Yield, and discounted at the Reinvestment Yield. As usedherein, “Reinvestment Yield” means the yield calculated by the linear interpolationof the yields, as reported in the Federal Reserve Statistical ReleaseH.15-Selected Interest Rates under the heading “U.S. government securities” andthe sub-heading “Treasury constant maturities” for the week ending prior to thePrepayment Calculation Date, of the U.S. Treasury constant maturities withmaturity dates (one longer and one equal to or shorter) moat nearlyapproximating the Optional Prepayment Date, and converted to a monthlycompounded nominal yield. In the event Release H.15 is no longer published,Lender shall select a comparable publication to determine the ReinvestmentYield. The ‘‘Prepayment Calculation Date” shall mean, as applicable, the dateon which (i) Lender applies any prepayment to the reduction of the outstandingprincipal amount of this Note, (ii) Lender accelerates the Loan, in the case ofa prepayment resulting from acceleration, or (iii) Lender applies funds heldunder any Reserve Account, in the case of a prepayment resulting from such anapplication (other than in connection with acceleration of the Loan).

 

(c)           Insurance Proceedsand Awards; Excess Interest.   Notwithstanding any other provision herein to the contrary, and providedno Default exists, Borrower shall not be required to pay any prepayment premiumin connection with any prepayment occurring solely as a result of (i) theapplication 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 permittedby applicable law to the reduction of the Loan.

 

(d)           Open Prepayment Period. Borrower may voluntarily prepay (without premium) this Note on aScheduled 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 fromthe Optional Prepayment Date through and including the date this Note is paidin full, in each case, upon giving Lender at least sixty (60) days (but notmore than ninety (90) days) prior written notice.  Lender shall accept a prepayment pursuant tothis 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, Borrowerpays to Lender a sum equal to the amount of interest which would have accruedon this Note if such prepayment occurred on the next Scheduled Payment Date.

 

(e)           Limitation on Partial Prepayments. In no event shall Lender have anyobligation to accept a partial prepayment.

 

**Article 6****- SECURITY**

 

ThisNote is secured by the Security Instrument and the other Loan Documents. All ofthe terms, covenants and conditions contained in the Loan Agreement, theSecurity Instrument and the other Loan Documents are hereby made part of thisNote to the same extent and with the same force as if they were fully set forthherein.

 

**Article 7**- **USURY SAVINGS**

 

ThisNote is subject to the express condition that at no time shall Borrower beobligated or required to pay interest on the principal balance of the Loan at arate which could subject Lender to either civil or criminal liability as aresult 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 providedfor herein or in the other Loan Documents, under the laws of such state orstates whose laws are held by any court of competent jurisdiction to govern theinterest rate provisions of the Loan (such rate, the “**MaximumLegal Rate**”). If, by the terms of this Note or the other LoanDocuments, Borrower is at any time required or obligated to pay interest on theprincipal balance due hereunder at a rate in excess of the Maximum Legal Rate, theNote Rate or the Default Rate, as the case may be, shall be deemed to beimmediately reduced to the Maximum Legal Rate and all previous payments inexcess of the Maximum Legal Rate shall be deemed to have been payments inreduction of principal and not on account of the interest due hereunder. Allsums paid or agreed to be paid to Lender for the use, forbearance, or detentionof the sums due under the Loan, shall, to the extent permitted by applicablelaw, be amortized, prorated, allocated, and spread throughout the full statedterm of the Loan until payment in full so that the rate or amount of intereston account of the Loan does not exceed the Maximum Legal Rate of interest fromtime to time in effect and applicable to the Loan for so long as the Loan isoutstanding.

 

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**Article 8 - LATE PAYMENT CHARGE**

 

If any principal or interest payment is not paid by Borrower before thetenth (10th) day after the date the same is due (or such greater period, ifany, required by applicable law), Borrower shall pay to Lender upon demand anamount equal to the lesser of four percent (4%) of such unpaid sum or themaximum amount permitted by applicable law in order to defray the expenseincurred by Lender in handling and processing such delinquent payment and tocompensate Lender for the loss of the use of such delinquent payment, providedhowever, Borrower shall not be required to pay Lender a late charge inconnection with the final payment under the loan. Any such amount shall besecured by the Security Instrument and the other Loan Documents to the extentpermitted 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 ofBorrower or Lender, but only by an agreement in writing signed by the partyagainst whom enforcement of any modification, amendment, waiver, extension,change, discharge or termination is sought.

 

**Article 10 - WAIVERS**

 

**BORROWER AND ALL OTHERS WHO MAY BECOME LIABLEFOR THE PAYMENT OF ALL OR ANYPART 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 KINDEXCEPT AS PROVIDED IN THE LOAN AGREEMENT. NO RELEASE OF ANY SECURITY FOR THEDEBT OR EXTENSION OF TIME FOR****PAYMENT OF THIS NOTE OR ANY INSTALLMENT HEREOF, ANDNO ALTERATION, AMENDMENT ORWAIVER OF ANY PROVISION OF THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOANDOCUMENTS MADE BY AGREEMENT BETWEENLENDER 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 THEPAYMENT OF ALL OR ANY PART OF THE DEBT, UNDER THIS NOTE, THE LOAN AGREEMENT ORTHE OTHER LOAN DOCUMENTS. NO NOTICE TO OR DEMAND ON BORROWER SHALL BE DEEMED TOBE A WAIVER OF THE OBLIGATION OF BORROWER OR OF THE RIGHT OF LENDER TO TAKEFURTHER ACTION WITHOUT FURTHER NOTICE OR DEMAND AS PROVIDED FOR IN THIS NOTE,THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS. IF BORROWER IS A LIMITEDLIABILITY COMPANY, THE AGREEMENTS HEREIN CONTAINED SHALL REMAIN IN FORCE AND BEAPPLICABLE, NOTWITHSTANDING ANY CHANGES IN THE INDIVIDUALS COMPRISING THELIMITED LIABILITY COMPANY, AND THE TERM “BORROWER,” AS USED HEREIN, SHALLINCLUDE ANY ALTERNATE OR SUCCESSOR LIMITED LIABILITY COMPANY, BUT ANYPREDECESSOR LIMITED LIABILITY COMPANY AND ITS MEMBERS SHALL NOT THEREBY BERELEASED FROM ANY LIABILITY. IF BORROWER IS A PARTNERSHIP, THE AGREEMENTSHEREIN CONTAINED SHALL REMAIN IN FORCE AND BE**

 

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**APPLICABLE,NOTWITHSTANDING ANY CHANGES IN THE INDIVIDUALS COMPRISING THE PARTNERSHIP, ANDTHE TERM “BORROWER,” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATE OR SUCCESSORPARTNERSHIP, BUT ANY PREDECESSOR PARTNERSHIP AND THEIR PARTNERS SHALL NOTTHEREBY BE RELEASED FROM ANY LIABILITY. IF BORROWER IS A CORPORATION, THE****AGREEMENTS CONTAINEDHEREIN SHALL REMAIN IN FULL FORCE AND BE APPLICABLE NOTWITHSTANDING ANY CHANGESIN THE SHAREHOLDERS COMPRISING, OR THE OFFICERS AND DIRECTORS RELATING TO, THECORPORATION, AND THE TERM “BORROWER” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATIVEOR SUCCESSOR CORPORATION, BUT ANY PREDECESSOR CORPORATION SHALL NOT BE RELIEVEDOF LIABILITY HEREUNDER. (NOTHING IN THE FOREGOING SENTENCE SHALL BE CONSTRUED AS A CONSENT TO, OR AWAIVER OF, ANY PROHIBITION OR RESTRICTION ON TRANSFERS OF INTERESTS IN SUCHBORROWING ENTITY WHICH MAY BE SET FORTH IN THE LOAN AGREEMENT, THE MORTGAGE ORANY OTHER LOAN DOCUMENTS.) IF BORROWER CONSISTS OF MORE THAN ONE PERSON ORPARTY, THE OBLIGATIONS AND LIABILITIES OF EACH PERSON OR PARTY SHALL BE JOINTAND SEVERAL.**

 

**Article 11 - TRIAL BY JURY**

 

**BORROWER AND LENDER EACH HEREBY AGREES NOT TOELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY,****AND WAIVES ANY RIGHT TOTRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THISNOTE, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTIONTHEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY ANDVOLUNTARILY 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 OFLENDER AND BORROWER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH INANY PROCEEDING AS CONCLUSIVE EVIDENCEOF THIS WAIVER BY BORROWER AND LENDER.**

 

**Article 12 - TRANSFER**

 

Upon the transfer of this Note, Borrower hereby waiving notice of anysuch transfer, Lender may deliver all the collateral mortgaged, granted,pledged or assigned pursuant to the Loan Documents, or any part thereof, to thetransferee who shall thereupon become vested with all the rights herein orunder applicable law given to Lender with respect thereto, and Lender shallthereafter forever be relieved and fully discharged from any liability orresponsibility in the matter arising from events thereafter occurring; butLender shall retain all rights hereby given to it with respect to anyliabilities and the collateral not so transferred.

 

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**Article 13 - EXCULPATION**

 

The provisions of Article 15 of the Loan Agreement are herebyincorporated by reference into this Note to the same extent and with the sameforce as if fully set forth herein.

 

**Article 14 - GOVERNING LAW**

 

This Note shall in all respects be governed, construed, applied andenforced in accordance with the laws of the state in which the Property islocated and any applicable federal laws of the United States of America.

 

**Article 15 - NOTICES**

 

Allnotices or other written communications hereunder shall be delivered inaccordance with Article 16 of the Loan Agreement.

 

**Article 16 - TAXPAYER IDENTIFICATION NUMBER**

 

This Note provides for the Borrower’s federal taxpayer identificationnumber 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 notinserted by the Borrower, the Borrower hereby authorizes and directs the Lenderto fill in such number on the first page of this Note when the Borrowerprovides 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 Documentsproviding for the payment of “attorneys’ fees,” “reasonable attorneys’ fees” orwords of similar import, shall mean actual attorneys’ fees and paralegal feesincurred based upon the usual and customary fees or hourly rates of theattorneys and paralegals involved without giving effect to any statutorypresumption that may then be in effect.

 

**[NO FURTHER TEXT ON THIS PAGE]**

 

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INWITNESS WHEREOF, Borrower has duly executed this Note as of the day and yearfirst above written.

 

 
|   |   | INLAND WESTERN DEPERE  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 |   |
|        |        |                                                                      |  |  |  |  |

 

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