**Exhibit10.509**

 

**INTERIMSECURED PROMISSORY NOTELOAN NO. 754183**

 
| $48,427.76 |   | January 26,  2005 |
|------------|--------|------------------------|

 

1.                                       FORVALUE RECEIVED, INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limitedliability company, as “Borrower” (“Borrower” to be construed as “Borrowers”if the context so requires), hereby promises to pay to the order of PRINCIPALLIFE INSURANCE COMPANY, an Iowa corporation (as “Lender”), having aprincipal place of business and post office address at c/o Principal RealEstate Investors, LLC, 801 Grand Avenue, Des Moines, Iowa 50392-1450, or atsuch other place as Lender may designate, the principal sum of Forty EightThousand Four Hundred Twenty Seven and 76/100 Dollars ($48,427.76) (the “LoanAmount”) or so much thereof as shall from time to time have been advanced,together with interest on the unpaid balance of said sum from the Closing Date,at the rate set forth in the Consolidated Note (hereinafter defined).

 

Reference is madeto that certain Consolidated, Amended and Restated Secured Promissory Note (the“Consolidated Note”) of even date herewith in the principal amount of$20,755,300.00 executed by Borrower and payable to the order to Lender.  Capitalized terms not otherwise defined hereinshall have the same meaning as set forth in the Consolidated Note.  This Note is one of the Existing Notes asdefined in the Consolidated Note.  TheLoan Amount shall bear interest prior to the Maturity Date at the rate or ratesand shall be payable as set forth in the Consolidated Note.  This Note is secured by, *inter alia*, the Amended, Restated andConsolidated Mortgage and Security Agreement of even date herewith executed byBorrower in favor of Lender and to be recorded in the County Clerk’s Office ofSuffolk County, New York.

 

2.                                       Noprivilege is reserved by Borrower to prepay any principal of this Note prior tothe Maturity Date, except in strict accordance with the provisions of the LoanAgreement.

 

3.                                       Borroweragrees that if Lender accelerates the whole or any part of the principal sumevidenced hereby, after the occurrence of an Event of Default or applies anyproceeds pursuant to the provisions of the Loan Documents, Borrower waives anyright to prepay said principal sum in whole or in part without premium andagrees to pay, as yield maintenance protection and not as a penalty, the MakeWhole Premium.

 

Notwithstanding theabove, in the event any proceeds from a casualty or Taking of the Premises areapplied to reduce the principal balance hereof, such reduction shall be madewithout a Make Whole Premium, provided no Event of Default then exists underthe Loan Documents.

 

4.                                       Ifany payment of principal, interest, Make Whole Premium, or other Indebtednessis not made when due, damages will be incurred by Lender, including additionalexpense in handling overdue payments, the amount of which is difficult andimpractical to ascertain.  Borrowertherefor agrees to pay, upon demand, the sum of four cents ($.04) for each onedollar ($1.00) of

 

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each said payment whichbecomes overdue (“Late Charge”) as a reasonable estimate of the amountof said damages, subject, however, to the limitations contained in paragraph 6hereof.

 

Notwithstanding anythinghereinabove to the contrary, the Late Charge assessed on any amount due on theMaturity Date but not then paid, whether or not by acceleration, shall not befour cents for each one dollar as described above, but shall instead be a sumequal to the interest which would have accrued on the principal balance thenoutstanding from the date the payment is made to the end of the month in whichthe Maturity Date occurs.  Such LateCharge shall be in addition to interest otherwise accruing under this Note.

 

5.                                       Ifany Event of Default has occurred and is continuing under the Loan Documents,the entire principal balance of the Loan, interest then accrued, and Make WholePremium, and all other Indebtedness whether or not otherwise then due, shall atthe option of Lender, become immediately due and payable without demand ornotice, and whether or not Lender has exercised said option, interest shallaccrue on the entire principal balance, interest then accrued, Make WholePremium and any other Indebtedness then due, at a rate equal to the DefaultRate until fully paid

 

6.                                       Notwithstandinganything herein or in any of the other Loan Documents to the contrary, noprovision contained herein or therein which purports to obligate Borrower topay any amount of interest or any fees, costs or expenses which are in excessof the maximum permitted by applicable law, shall be effective to the extent itcalls for the payment of any interest or other amount in excess of suchmaximum.  All agreements between Borrowerand Lender, whether now existing or hereafter arising and whether written ororal, are hereby limited so that in no contingency, whether by reason of demandfor payment or acceleration of the maturity hereof or otherwise, shall theinterest contracted for, charged or received by Lender exceed the maximumamount permissible under applicable law.  If, from any circumstance whatsoever, interestwould otherwise be payable to Lender in excess of the maximum lawful amount,the interest payable to Lender shall be reduced to the maximum amount permittedunder applicable law; and if from any circumstance Lender shall ever receiveanything of value deemed interest by applicable law in excess of the maximumlawful amount, an amount equal to any excessive interest shall, at the optionof Lender, be refunded to Borrower or be applied to the reduction of theprincipal hereof, without a Make Whole Premium and not to the payment ofinterest or, if such excessive interest exceeds the unpaid balance of principalhereof such excess shall be refunded to Borrower.  This paragraph shall control all agreementsbetween Borrower and Lender.

 

7.                                       Borrowerand any endorsers or guarantors waive presentment, protest and demand, noticeof protest, demand and dishonor and nonpayment, and agree the Maturity Date ofthis Note or any installment may be extended without affecting any liability hereunder,and further promise to pay all reasonable costs and expenses, including but notlimited to, reasonable attorney’s fees incurred by Lender in connection withany default or in any proceeding to interpret and/or enforce any provision ofthe Loan Documents.  No release ofBorrower from liability hereunder shall release any other maker, endorser orguarantor hereof.

 

8.                                       ThisNote is secured by the Loan Documents creating among other things legal andvalid encumbrances on and an assignment of all of Borrower’s interest in anyLeases of the Premises

 

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located in the county ofSuffolk, state of New York.  Capitalizedterms used herein and not otherwise defined shall have those meanings given tothem in the Loan Documents.  In no eventshall such documents be construed inconsistently with the terms of this Note,and in the event of any discrepancy between any such documents and this Note,the terms hereof shall govern.  Theproceeds of this Note are to be used for business, commercial, investment orother similar purposes, and no portion thereof will be used for any personal,family or household use.  This Note shallbe governed by and construed in accordance with the laws of the State where thePremises is located, without regard to its conflict of law principles.

 

9.                                       Notwithstandingany provision to the contrary in this Note or the Loan Documents and except asotherwise provided for below, the liability of Borrower under the LoanDocuments shall be limited to the interest of Borrower in the Premises and theRents.  In the event of foreclosure ofthe liens evidenced by the Loan Documents, no judgment for any deficiency uponthe Indebtedness evidenced by the Loan Documents shall be sought or obtained byLender against Borrower.  Nothing hereinshall in any manner limit or impair (i) the lien or enforcement of the LoanDocuments pursuant to the terms thereof or (ii) the obligations of anyindemnitor or guarantor, if any.

 

Notwithstanding anyprovision hereinabove to the contrary, Borrower shall be personally liable toLender for:

 

(a)                                  anyloss or damage to Lender arising from (i) the sale or forfeiture of thePremises resulting from Borrower’s failure to pay any of the taxes, assessmentsor charges specified in the Loan Documents or (ii) Borrower’s failure to insurethe Premises in compliance with the provisions of the Loan Documents;

 

(b)                                 anyevent or circumstance for which Borrower indemnifies Lender under theEnvironmental Indemnity;

 

(c)                                  nonpaymentof taxes, assessments, insurance premiums and utilities for the Premises andany penalty or late charge associated with nonpayment thereof;

 

(d)                                 materialfailure to manage, operate, and maintain the Premises in a commerciallyreasonable manner for similar property types in the surrounding geographicarea;

 

(e)                                  anysums expended by Lender in fulfilling the obligations of Borrower as lessorunder any Lease of the Premises prior to a sale of the Premises pursuant toforeclosure or power of sale, a bona fide sale (permitted by the terms ofparagraph 2(f) of the Mortgage (it being agreed that “Mortgage” as used hereinshall be construed to mean “mortgage” or “deed of trust” or “trust deed” as thecontext so requires) or consented to in writing by Lender) to an unrelated thirdparty or upon conveyance to Lender of the Premises by a deed acceptable toLender in form and content (each of which shall be referred to as a “Sale” forpurposes of this paragraph) or expended by Lender after a Sale of the Premisesfor obligations of Borrower which arose prior to a Sale of the Premises;

 

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Borrower’s personalliability for items specified in (c), (d) and (e) above shall be limited to theamount of rents, issues, proceeds and profits from the Premises (“Rents andProfits”) received by Borrower for the twelve (12) months preceding an Event ofDefault and thereafter; but less any such Rents and Profits applied to (A)payment of principal, interest and other charges when due under the Loan Documents,or (B) payment of expenses for the operation, maintenance, taxes, assessments,utility charges and insurance of the Premises including sufficient reserves forthe same or replacements or renewals thereof (“Operation Expense(s)”) providedthat (x) Borrower has furnished Lender with evidence reasonably satisfactory toLender of the Operation Expenses and payment thereof, and (y) any payments toparties related to Borrower shall be considered an Operation Expense only tothe extent that the amount expended for the Operation Expense does not exceedthe then current market rate for such Operation Expense.

 

(f)                                    anyrents or other income regardless of type or source of payment or otherconsiderations in lieu thereof (including, but not limited to, common areamaintenance charges, lease termination payments, refunds of any type,prepayment of rents, settlements of litigation, or settlements of past duerents) from the Premises which Borrower has received or will receive after anEvent of Default under the Loan Documents which are not applied to (A) paymentof principal, interest and other charges when due under the Loan Documents or(B) payment of Operation Expenses provided that (x) Borrower has furnishedLender with evidence reasonably satisfactory to Lender of the OperationExpenses and payment thereof, and (y) any payments to parties related toBorrower shall be considered an Operation Expense only to the extent that theamount expended for the Operation Expense does not exceed the then currentmarket rate for such Operation Expense;

 

(g)                                 anysecurity deposits of tenants not otherwise applied in accordance with the termsof the Lease(s), together with any interest on such security deposits requiredby law or the leases, not turned over to Lender upon conveyance of the Premisesto Lender pursuant to foreclosure or power of sale or by a deed acceptable toLender in form and content;

 

(h)                                 misapplicationor misappropriation of tax reserve accounts, tenant improvement reserveaccounts, security deposits, prepaid rents or other similar sums paid to orheld by Borrower or any other entity or person in connection with the operationof the Premises;

 

(i)                                     anyinsurance or condemnation proceeds or other similar funds or payments appliedby Borrower in a manner other than as expressly provided in the Loan Documents;

 

(j)                                     anyloss or damage to Lender arising from any fraud or willful misrepresentation byor on behalf of Borrower, Interest Owner or any guarantor regarding thePremises, the making or delivery of any of the Loan Documents or in anymaterials or

 

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information provided byor on behalf of Borrower, Interest Owner or guarantor, if any, in connectionwith the Loan; and

 

(k)                                  anyloss or damage to Lender arising from the existence of the sanitary sewer linesor any easement relating thereto (either actual or implied) located under thebuilding constructed on the Land.

 

Notwithstanding anythingcontained in paragraphs 9(a)(i) and 9(c) hereinabove as it relates solely to taxes,assessments and insurance premiums, to the extent Lender is impounding fortaxes, assessments and insurance premiums in accordance with the Loan Documentsand Borrower has fully complied with all terms and conditions of the LoanDocuments relating to impounding for the same, then Borrower shall not bepersonally liable for Lender’ s failure to apply any of said impound amountsheld by Lender in accordance with the Loan Documents.

 

Notwithstanding anythingto the contrary in the Loan Documents, the limitation on liability contained inthe first paragraph of this paragraph 9 SHALL BECOME NULL AND VOID and shall beof no further force and effect in the event of any breach or violation ofparagraph 2(f) (due on sale or encumbrance) of the Mortgage, other than (i) thefiling of a nonmaterial mechanic’s lien affecting the Premises or a mechanic’slien affecting the Premises for which Borrower has complied with the provisionsof paragraph l(e) of the Mortgage, or (ii) the granting of any utility or othernonmaterial easement or servitude burdening the Premises, or (iii) any transferor encumbrance of a nonmaterial economic interest in the Premises not otherwiseset forth in (i) or (ii).

 

10.                                 Ifmore than one, all obligations and agreements of Borrower are joint andseveral.

 

11.                                 ThisNote may not be changed or terminated orally, but only by an agreement inwriting and signed by the party against whom enforcement of any waiver, change,modification or discharge is sought.  Allof the rights, privileges and obligations hereunder shall inure to the benefitof the heirs, successors and assigns of Lender and shall bind the heirs andpermitted successors and assigns of Borrower.

 

12.                                 Ifany provision of this Note shall, for any reason, be held to be invalid orunenforceable, such invalidity or unenforceability shall not affect any otherprovision hereof, but this Note shall be construed as if such invalid orunenforceable provision had never been contained herein.

 

13.                                 ThisNote may be executed in counterparts, each of which shall be deemed anoriginal; and such counterparts when taken together shall constitute but oneagreement.

 

**14.****                               AFTERCONSULTING WITH COUNSEL AND CAREFUL CONSIDERATION, BORROWER AND LENDER (BY ITSACCEPTANCE HEREOF) KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHTEITHER OF THEM MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATIONARISING OUT OF THIS NOTE OR ANY OTHER INSTRUMENT OR AGREEMENT BY WHICH THIS**

 

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**NOTE IS,OR MAY HEREAFTER BE, SECURED, OR OUT OF ANY COURSE OF CONDUCT, COURSE OFDEALING, STATEMENTS (ORAL OR WRITTEN), OR ACTIONS OF BORROWER OR LENDER. THISWAIVER IS A MATERIAL INDUCEMENT TO THE LENDER’S ACCEPTANCE OF THIS NOTE.**

 

15.                                 Borrowerconsents to the personal jurisdiction over Borrower by any federal or statecourt situated in the State of New York and consents to the laying of venue inany jurisdiction over Borrower by any federal or state court situated in theState of New York.  Borrower irrevocablyappoints Gail Gress, having an address c/o Inland Mortgage Corporation, 2901Butterfield Road, Oak Brook Illinois 60523, as Borrower’s agent for receipt ofservice of process on Borrower’s behalf in connection with any suit, writ,attachment, execution or discovery of supplementary proceedings in connectionwith the enforcement of this Note (collectively, an “Action”).  Service in any Action and any notice of saleor other notices required under Article 14 of the New York Real PropertyActions and Proceedings Law shall be effected by any means permitted by thecourt in which any Action is filed, with a copy sent by certified mail, returnreceipt requested, to Borrower at its address as hereinbefore stated or at suchother address as shall be designated from time to time by Borrower.  Borrower or its agent for receipt of processmay designate a change of address or may substitute another agent for theservice of process who shall be acceptable to Lender in its sole but reasonablydiscretion, by written notice to Lender by certified mail, return receiptrequested, at least ten (10) days before such change of address is to becomeeffective.  In the event of anyinconsistencies between the terms and conditions of the foregoing paragraphsand this paragraph, the terms of this paragraph shall control and be binding.

 

 

REMAINDER OF PAGEINTENTIONALLY BLANK

 

(Signatures onnext page)

 

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IN WITNESS WHEREOF,Borrower has caused this Note to be duly executed and delivered as of the datefirst set forth above.

 

 
|   | INLAND WESTERN CORAM  PLAZA, L.L.C., a  Delaware limited liability company |
|--------|----------------------------------------------------------------------------|
|   |                                                                       |
|   | By:                                                                        | INLAND WESTERN RETAIL REAL  ESTATE TRUST, INC., a Maryland  corporation, Member |
|   |                                                                       |
|   |                                                                       |
|   |                                                                       | By: | /s/ Valerie Medina |   |
|   |                                                                       | Name: | Valerie  Medina |   |
|   |                                                                       | Title: | Asst.  Secretary |   |
|        |                                                                            |  |  |  |  |  |

 

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