**Exhibit10.465**

 

LOAN TERMS TABLE

 
| Note Date: December 16,  2004                                                                    | MERS No.:  8000101-0000000571-9                 |
|-------------------------------------------------------------------------------------------------------|-------------------------------------------------|
| Borrower: **INLAND WESTERN GREENSBORO AIRPORT CENTER, L.L.C.,** a  Delaware limited liability company |
| Original Principal Amount:  **$33,040,000.00**                                                        | Loan No.: 58627                                 |
| Initial Note Rate: **4.2675%**                                                                        | Servicing No.: 3190741                          |
| Revised Note Rate: As defined in Article 2                                                       | Borrower’s TIN: 20-1908086                 |
| Monthly Payment Amount: As  defined in Article l(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 national banking association, having an address at 214 North Tryon Street,Charlotte, North Carolina 28255 (**“Lender”**), theOriginal Principal Amount, in lawful money of the United States of America withinterest thereon to be computed from the date of this Note at the Note Rate (asdefined below), and to be paid in accordance with the terms set forth below.  The Loan Terms Table set forth above is a partof this Note and all terms used in this Note which are defined in the Loan TermsTable shall have the meaning set forth therein.  All capitalized terms not defined herein shallhave the respective meanings set forth in that certain Loan Agreement dated thedate hereof between Lender and Borrower (the **“LoanAgreement”**).

 

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

 

(a)           Borrower hereby agrees to pay sums due under this Note as follows: aninitial payment is due on the Closing Date for interest from the Closing Datethrough and including the last day of the calendar month in which the ClosingDate occurs; and thereafter, except as may be adjusted in accordance with thelast sentence of Section 1(b), consecutive monthly installments ofinterest only in an amount calculated in accordance with Article 2 below(such amount, the **“Monthly Payment Amount”**) shall be payable pursuant to theterms 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 indebtednessevidenced hereby is fully paid, except that any remaining indebtedness, if notsooner paid, shall be due and payable on the Maturity Date.  In addition to the foregoing, commencing onthe Optional Prepayment Date and continuing on each Scheduled Payment Datethereafter, Borrower hereby agrees to pay all Excess Cash (as defined in theLoan Agreement) until the principal amount of this Note is paid in full,provided, however, the entire Debt, including all Accrued Interest (definedbelow), 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 atsuch other place as Lender may designate from time to time in

 

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writing. Whenever any payment hereunder shall bestated to be due on a day which is not a Business Day, such payment shall bemade on the first Business Day preceding such scheduled due date.  All payments made by Borrower hereunder orunder the other Loan Documents shall be made irrespective of, and without anydeduction 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 appliedfirst to the payment of interest computed at the Initial Note Rate, and thebalance 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 appliedfirst 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 onthis Note shall be applied, to the extent thereof, to accrued but unpaidinterest on the amount prepaid, to the remaining Principal Amount, and anyother sums due and unpaid to the Lender in connection with the Loan, in suchmanner and order as Lender may elect in its sole and absolute discretion, including,but not limited to, application to principal installments in inverse order ofmaturity.  Following the occurrence of anEvent of 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 payment of any part of theindebtedness 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 holderhereof in immediately available U.S. funds and shall be made and acceptedsubject to the condition that any check or draft may be handled for collectionin 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 theNote Rate.  The **“Note Rate”**shall mean (a) from the dateof this Note through but excluding the Optional Prepayment Date, the InitialNote Rate, and (b) from and after the Optional Prepayment Date through andincluding the date this Note is paid in full, the Revised Note Rate.  The **“RevisedNote Rate”**shall mean a rate per annum equal to the sum of (x) twopercent (2.00%) and (y) the greater of (i) the Initial Note Rate and (ii) thesum of the Treasury Rate plus five percent (5.00%).  The **“TreasuryRate”**shall mean the yield per annum calculated by the linearinterpolation of yields, as reported in the Federal Reserve Statistical ReleaseH.15 – Selected Interest Rates under the heading “US government securities” andthe subheading “Treasury constant maturities” for the week ending prior to theOptional 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 longer published,Lender in its reasonable discretion shall select a comparable publication todetermine the Treasury Rate.  From andafter the Optional Prepayment Date, interest in excess of the Initial Note Rateshall accrue and be added to the Debt and shall earn interest at the RevisedNote Rate to the extent permitted by applicable law (**“Accrued Interest”**).  Interest shall be computed on the basisof a three hundred sixty (360) day year consisting of twelve (12) months ofthirty (30) days each.  Except asotherwise set forth herein or in the other Loan Documents, interest shall bepaid in arrears.

 

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**Article 3 - DEFAULT AND ACCELERATION**

 

The Debt shall without notice become immediately due and payable at theoption of Lender if any payment required in this Note is not paid prior to thetenth (10th) day following the date when due or if not paid on theMaturity Date or on the happening of any other Event of Default.

 

**Article 4 - PAYMENTS AFTERDEFAULT**

 

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 the Default Rate shall be computedfrom the occurrence of the Event of Default until the earlier of (i) the actualreceipt 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 accrueinterest at the same rate as the Loan and shall be secured by the SecurityInstrument.  This Article shall notbe construed as an agreement or privilege to extend the date of the payment ofthe Debt, nor as a waiver of any other right or remedy accruing to Lender byreason of the occurrence of any Event of Default; the acceptance of any paymentfrom Borrower shall not be deemed to cure or constitute a waiver of any Eventof Default; and Lender retains its rights under this Note, the Loan Agreementand the other Loan Documents to accelerate and to continue to demand payment ofthe 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, novoluntary prepayments, whether in whole or in part, of the Loan or any otheramount at any time due and owing under this Note can be made by Borrower or anyother Person without the express written consent of Lender.

 

(a)           Lockout Period.  Borrowershall have no right to make, and Lender shall have no obligation to accept, anyvoluntary prepayment, whether in whole or in part, of the Loan, or any otheramount under this Note or the other Loan Documents, at any time during theLockout Period.  At any time followingthe expiration of the Lockout Period, the principal balance of this Note may bevoluntarily prepaid in whole, but not in part, upon the satisfaction of thefollowing conditions:

 

(i)            no Default shall exist under any of the LoanDocuments;

 

(ii)           not less than sixty (60) (but not more thanninety (90)) days prior written notice shall be given to Lender specifying adate on which the prepayment shall occur such date being a Scheduled PaymentDate (the “Prepayment Date”);

 

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(iii)          Borrower has paid to Lender all accrued andunpaid interest on the Loan through and including the Prepayment Date togetherwith all other sums due under this Note and the other Loan Documents; and

 

(iv)          Borrower has paid to Lender a prepaymentpremium in an amount equal to Yield Maintenance (as defined and calculated inaccordance with Section 5(b) below); provided, however, thatin the event of a voluntary prepayment made by Borrower within sixty (60) daysof the Optional Prepayment Date, there shall be no prepayment premium requiredto be paid by Borrower.

 

(b)          Involuntary Prepayment.  Inthe event of any involuntary prepayment of the Loan or any other amount underthis Note, whether in whole or in part, in connection with or following Lender’sacceleration of this Note or otherwise, and whether the Security Instrument is satisfiedor released by foreclosure (whether by power of sale or judicial proceeding),deed in lieu of foreclosure or by any other means, including, withoutlimitation, repayment of the Loan by Borrower or any other Person pursuant toany statutory or common law right of redemption, Borrower shall pay any portionof the principal balance of the Loan prepaid (together with all interestaccrued and unpaid thereon and, in the event the prepayment is made on a dateother than a Scheduled Payment Date, a sum equal to the amount of interestwhich would have accrued under this Note on the amount of such prepayment ifsuch prepayment had occurred on the next Scheduled Payment Date).

 

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 used herein, “Reinvestment Yield” means theyield calculated by the linear interpolation of the yields, as reported in theFederal Reserve Statistical Release H.15-Selected Interest Rates under theheading “U.S. government securities” and the sub-heading “Treasury constantmaturities” for the week ending prior to the Prepayment Calculation Date, ofthe U.S.  Treasury constant maturitieswith maturity dates (one longer and one equal to or shorter) most nearlyapproximating the Optional Prepayment Date, and converted to a monthlycompounded nominal yield.  In the eventRelease H.15 is no longer published, Lender shall select a comparablepublication to determine the Reinvestment Yield.  The “Prepayment Calculation Date” shall mean,as applicable, the date on which (i) Lender applies any prepayment to thereduction of the outstanding principal amount of this Note, (ii) Lenderaccelerates 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 aprepayment resulting from such an application (other than in connection withacceleration of the Loan).

 

(c)          Insurance Proceeds and Awards; ExcessInterest.  Notwithstanding any other provision herein tothe contrary, and provided no Default exists, Borrower shall not be required topay any prepayment premium in connection with any prepayment occurring solelyas a result of (i) the application of Insurance Proceeds or Awards pursuant tothe 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 providedthat, in addition to payment of the full outstanding principal balance of thisNote, Borrower pays to Lender a sum equal to the amount of interest which wouldhave accrued or this Note if such prepayment occurred on the next ScheduledPayment Date.

 

(e)          Limitation on Partial Prepayments.  Inno 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 LoanDocuments.  All of the terms, covenantsand conditions contained in the Loan Agreement, the Security Instrument and theother Loan Documents are hereby made part of this Note to the same extent andwith 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 shallBorrower be obligated or required to pay interest on the principal balance ofthe Loan at a rate which could subject Lender to either civil or criminalliability as a result of being in excess of the maximum nonusurious interestrate, 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 Noteand as provided for herein or in the other Loan Documents, under the laws ofsuch state or states whose laws are held by any court of competent jurisdictionto govern the interest rate provisions of the Loan (such rate, the **“Maximum****Legal Rate”**). If, by the terms of this Note or theother Loan Documents, Borrower is at any time required or obligated to payinterest on the principal balance due hereunder at a rate in excess of theMaximum 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 allprevious payments in excess of the Maximum Legal Rate shall be deemed to havebeen payments in reduction of principal and not on account of the interest duehereunder.  All sums paid or agreed to bepaid to Lender for the use, forbearance, or detention of the sums due under theLoan, shall, to the extent permitted by applicable law, be amortized, prorated,allocated, and spread throughout the full stated term of the Loan until paymentin full so that the rate or amount of interest on account of the Loan does notexceed the Maximum Legal Rate of interest from time to time in effect andapplicable 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 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 be secured by theSecurity Instrument and the other Loan Documents to the extent permitted byapplicable law.

 

**Article 9 - NO ORAL CHANGE**

 

This Note may not be modified, amended, waived, extended, changed, dischargedor terminated orally or by any act or failure to act on the part of Borrower orLender, but only by an agreement in writing signed by the party against whomenforcement of any modification, amendment, waiver, extension, change,discharge or termination is sought.

 

**Article 10 - WAIVERS**

 

**BORROWER AND ALL OTHERS WHO MAY BECOME LIABLE FOR THEPAYMENT OF ALL OR ANY PART OF THE DEBT DO HEREBY SEVERALLY WAIVE PRESENTMENTAND DEMAND FOR****PAYMENT,****NOTICEOF DISHONOR, NOTICE OF INTENTION TO ACCELERATE, NOTICE OF ACCELERATION, PROTESTAND NOTICE OF PROTEST AND****NON-PAYMENT****AND ALLOTHER NOTICES OF ANY KIND EXCEPT AS PROVIDED****IN****THE LOAN AGREEMENT.  NO RELEASE OFANY SECURITY FOR THE DEBT OR EXTENSION OF TIME FOR PAYMENT OF THIS NOTE OR ANYINSTALLMENT HEREOF, AND NO ALTERATION,****AMENDMENT****OR WAIVER OF ANY PROVISION OF THIS NOTE, THE LOAN AGREEMENTOR THE OTHER LOAN DOCUMENTS MADE BY AGREEMENT BETWEEN LENDER OR ANY OTHERPERSON 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 PARTOF THE DEBT, UNDER THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS.  NO NOTICE TO OR DEMAND ON BORROWER SHALL BEDEEMED TO BE A WAIVER OF THE OBLIGATION OF BORROWER OR OF THE RIGHT OF LENDERTO TAKE FURTHER ACTION WITHOUT FURTHER NOTICE OR DEMAND AS PROVIDED FOR IN THISNOTE, 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 LIABILITYCOMPANY, AND THE TERM “BORROWER,” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATEOR SUCCESSOR LIMITED LIABILITY COMPANY, BUT ANY PREDECESSOR LIMITED LIABILITYCOMPANY AND ITS MEMBERS SHALL NOT THEREBY BE RELEASED 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 INDIVIDUALSCOMPRISING THE PARTNERSHIP, AND THE TERM “BORROWER,” AS USED HEREIN, SHALLINCLUDE ANY ALTERNATE OR SUCCESSOR PARTNERSHIP, BUT ANY PREDECESSOR PARTNERSHIPAND THEIR PARTNERS SHALL NOT THEREBY BE RELEASED FROM ANY LIABILITY.  IF BORROWER IS A CORPORATION, THE AGREEMENTSCONTAINED HEREIN SHALL REMAIN IN FULL FORCE AND BE APPLICABLE NOTWITHSTANDINGANY CHANGES IN THE SHAREHOLDERS COMPRISING, OR THE OFFICERS AND DIRECTORSRELATING TO, THE CORPORATION, AND THE TERM “BORROWER” AS USED HEREIN, SHALLINCLUDE ANY ALTERNATIVE OR SUCCESSOR CORPORATION, BUT ANY PREDECESSORCORPORATION SHALL NOT BE RELIEVED OF LIABILITY HEREUNDER. (NOTHING IN THEFOREGOING****SENTENCE****SHALL BECONSTRUED****ASA CONSENT****TO, OR****A****WAIVEROF, ANY PROHIBITION OR RESTRICTION ON TRANSFERS OF INTERESTS IN SUCH BORROWINGENTITY WHICH MAY BE SET FORTH IN THE LOAN AGREEMENT, THE MORTGAGE OR ANY OTHERLOAN DOCUMENTS.) IF BORROWER CONSISTS OF MORE THAN ONE PERSON OR PARTY, THEOBLIGATIONS 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 ATRIAL 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 ORHEREAFTER EXIST WITH REGARD TO THIS NOTE, OR ANY CLAIM, COUNTERCLAIM OR OTHERACTION ARISING IN CONNECTION THEREWITH.  THISWAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWERAND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH****INSTANCE****AND EACH ISSUE****AS****TO WHICH THE RIGHT TO ATRIAL BY JURY WOULD OTHERWISE ACCRUE.  EACHOF LENDER AND BORROWER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH INANY 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 anysuch transfer.  Lender may deliver allthe collateral mortgaged, granted, pledged or assigned pursuant to the LoanDocuments, or any part thereof, to the transferee who shall thereupon becomevested with all the rights herein or under applicable law given to Lender withrespect thereto, and Lender shall thereafter forever be relieved and fullydischarged from any liability or responsibility in the matter arising fromevents thereafter occurring; but Lender shall retain all rights hereby given toit 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 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**

 

All notices or other written communications hereunder shall bedelivered in accordance 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 ofexecution of this Note or is not inserted by the Borrower, the Borrower herebyauthorizes and directs the Lender to fill in such number on the first page ofthis Note when the Borrower provides to Lender, advises the Lender of, or theLender 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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IN WITNESS WHEREOF, Borrower has duly executed this Note as of the dayand year first above written.

 

 
|   | INLAND WESTERN GREENSBORO  AIRPORT CENTER, L.L.C., a Delaware limited liability company |
|--------|-----------------------------------------------------------------------------------------|
|   |                                                                                    |   |   |
|   | By:                                                                                     | Inland Western Retail Real  Estate Trust,  Inc., a Maryland corporation, its sole  member |
|   |                                                                                    |   |   |   |
|   |                                                                                    | By: |   | /s/ Roberta s. Matlin |
|   |                                                                                    | Name: |   | Roberta s. Matlin |   |
|   |                                                                                    | Its: |   | Vice President |   |
|        |                                                                                         |  |  |  |  |  |  |  |

 

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