Exhibit 10.467


 


Florida documentary stamp tax in
the amount of $130,095.00 has been affixed to the recorded instrument securing
this promissory note pursuant to Section 201.08, Florida Statutes


 


LOAN TERMS TABLE


 


	
  Note Date: December 16, 2004 

  	
  MERS No.:  8000101-0000000572-7

  
	
  Borrower: INLAND WESTERN PLANTATION EXPRESS, L.L.C., a
  Delaware limited liability company

  
	
  Original Principal Amount:
  $37,170,000.00

  	
  Loan No.: 58628

  
	
  Initial Note Rate: 4.2675%

  	
  Servicing No.: 3190758

  
	
  Revised Note Rate: As
  defined in Article 2

  	
  Borrower’s TIN: 20-1907986

  
	
  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 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.I5 – 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


 


2





















 


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.


 


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”);


 


3





















 


(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.I5 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 non-serious
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.


 


5





















 


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


 


6





















 


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.


 


7





















 


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]


 


8





















 


IN WITNESS WHEREOF, Borrower has duly executed this
Note as of the day and year first above written.


 


 


	
   

  	
  INLAND WESTERN PLANTATION
  EXPRESS,

  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.