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 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) moat 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.


 


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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 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