**Exhibit10.510**

 

**CONSOLIDATED,AMENDED AND RESTATEDSECURED PROMISSORY NOTELOAN NO. 754183**

 
| $20,755,300.00 |   | January 26,  2005 |
|----------------|--------|------------------------|

 

THIS CONSOLIDATED,AMENDED AND RESTATED NOTE (this “Consolidated Note”) is made as of this          dayof January, 2005, by and between, INLAND WESTERN CORAM PLAZA, L.L.C., aDelaware limited liability company, as “Borrower” (“Borrower” to be construedas “Borrowers” if the context so requires), having its principal place ofbusiness and post office address at 2901 Butterfield Road, Oak Brook, Illinois60523, and PRINCIPAL LIFE INSURANCE COMPANY, an Iowa corporation (“Lender”),having a principal place of business and post office address at c/o PrincipalReal Estate Investors, LLC, 801 Grand Avenue, Des Moines, Iowa 50392-1450, or atsuch other place as Lender may designate.

 

RECITALS:

 

A.                                   Lenderis now the lawful owner and holder of (i) that certain Amended, RestatedAcquisition Loan Promissory Note dated December 7, 2004 in the principalamount of $9,447,037.00, (ii) that certain Amended and Restated Project LoanPromissory Note dated December 7, 2004 in the principal amount of$761,773.00, (iii) that certain Amended and Restated Building Loan PromissoryNote dated December 7, 2004 in the principal amount of $10,551,190.00, and(iv) that certain Interim Secured Promissory Note of even date herewith in theprincipal amount of $48,427.76 (collectively, the “Existing Notes”).

 

B.                                     TheExisting Notes are secured by (i) that certain Amended, Restated andConsolidated Acquisition Loan Mortgage and Security Agreement dated June 12,2003 and recorded in the Clerk’s Office of Suffolk County, New York in LiberM00020597, page 864, (ii) that certain Project Loan Mortgage and SecurityAgreement dated June 12, 2003 and recorded in the County Clerk’s Office ofSuffolk County, New York in Liber M00020598, page 361, (iii) that certainBuilding Loan Mortgage and Security Agreement dated June 12, 2003 andrecorded in the County Clerk’s Office of Suffolk County, New York in LiberM00020598, page 360, (iv) that certain Assignment, Assumption, Modification andRelease Agreement dated December 7, 2004 and recorded in the County Clerk’sOffice of Suffolk County, New York, executed by and between Borrower and SkyBank, and (v) that certain Amended, Restated and Consolidated Mortgage andSecurity Agreement of even date herewith to be recorded in the Suffolk CountyClerk’s Office (the “Existing Mortgages”).

 

C.                                     Thereis, as of the date hereof, due, owing and unpaid under the Existing Notes theaggregate principal amount of $20,755,300, together with interest to accruethereon.

 

D.                                    Lenderand Borrower have agreed to consolidate amend and restate the Existing Notes intheir entirety, in the manner hereinafter set forth.

 

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E.                                      Borrowerrepresents and warrants to Lender that:

 

(i)                                     Thereis, as of the date hereof, due and owing under the Existing Notes, theaggregate principal sum of $20,755,300.00, together with interest to accruethereon and any other costs provided for therein.

 

(ii)                                  Thereare no defenses, offsets or counterclaims of any nature against the ExistingNotes or the other Loan Documents (defined below), or any sums due thereunder.

 

(iii)                               Theexecution and delivery of this Consolidated Note does not and will not violatethe terms of any agreement, indenture or instrument affecting Borrower or anylaw of any government authority purporting to have jurisdiction over Borrower.

 

(iv)                              TheExisting Notes are in full force and effect and Borrower agrees and promises topay the indebtedness evidenced by the Existing Notes in accordance with theterms and provisions of the Existing Notes, as hereby amended and restated inits entirety.

 

(v)                                 ThisConsolidated Note docs not (a) create or evidence any new or further principalindebtedness or (b) constitute a novation with respect to the originalprincipal indebtedness evidenced by the Existing Notes.

 

NOW, THEREFORE, inconsideration of the mutual covenants and agreements herein contained, theparties hereto agree that the Existing Notes are hereby consolidated andrestated in their entirety as set forth below, so that together they shallhereafter evidence a single indebtedness in the aggregate principal amount of$20,755,300.00, loaned and repayable on the following terms and conditions.

 

1.                                       FORVALUE RECEIVED, Borrower hereby promises to pay to the order of Lender, theprincipal sum of Twenty Million Seven Hundred Fifty Five Thousand Three Hundredand No/100 Dollars ($20,755,300.00) (the “Loan Amount”) or so muchthereof as shall from time to time have been advanced, together with intereston the unpaid balance of said sum from January 26, 2005 (the “Closing Date”),at the rate of four and 55/100 percent (4.55%) per annum.

 

A payment of interestfrom the Closing Date to and including January 31, 2005 shall be paid onthe Closing Date calculated by multiplying the actual number of days elapsed inthe period for which interest is being calculated by a daily rate based on theforegoing annual interest rate and a 360-day year.  Thereafter, interest shall be computed on theunpaid balance on the basis of a 360-day year composed of twelve 30-day months. Beginning on March 1, 2005,interest shall be due and payable in installments of Seventy Eight Thousand SixHundred Ninety Seven and 18/100 Dollars ($78,697.18), with an installment in alike amount due and payable on the same day of each month thereafter, exceptthat all remaining principal and interest to and including the date of paymentand other Indebtedness shall be due and payable on February 1,

 

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2010 or such earlier dateresulting from the acceleration of the Indebtedness by Lender (“MaturityDate”).  All principal and interestshall be paid in lawful money of the United States of America by wire transferof immediately available funds to Lender at Wells Fargo Bank, Iowa, N.A., 7th and WalnutStreets, Des Moines, Iowa 50304, for credit to Principal Life InsuranceCompany, Account No.  3002183449, RE:Loan No.  754183 with reference toBorrower. In the event Borrower fails to make any monthly payment under thisConsolidated Note on or before the due date thereof, Borrower agrees to makeall subsequent payments by automated clearing house transfer through such bankor financial institution as shall be approved hi writing by Lender, shall bemade to an account designated by Lender, and shall be initiated by Lender orshall be made in such other manner as Lender may direct from time to time.  Any other monthly deposits or paymentsBorrower is required to make to Lender under the terms of the Loan Documentsshall be made by the same payment method and on the same date as theinstallments of interest due under this Consolidated Note.

 

2.                                       Noprivilege is reserved by Borrower to prepay any principal of this ConsolidatedNote prior to the Maturity Date, except in strict accordance with theprovisions of the Loan Agreement.

 

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 each said payment which becomes overdue (“Late Charge”)as a reasonable estimate of the amount of said damages, subject, however, tothe limitations contained in paragraph 6 hereof.

 

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 thisConsolidated 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

 

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other Indebtednesswhether or not otherwise then due, shall at the option of Lender, becomeimmediately due and payable without demand or notice, and whether or not Lenderhas exercised said option, interest shall accrue on the entire principalbalance, interest then accrued, Make Whole Premium and any other Indebtednessthen due, at a rate equal to the Default Rate 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 controlall agreements between 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 Consolidated Note or any installment may be extended without affecting anyliability hereunder, and further promise to pay all reasonable costs andexpenses, including but not limited to, reasonable attorney’s fees incurred byLender in connection with any default or in any proceeding to interpret and/orenforce any provision of the Loan Documents.  No release of Borrower from liabilityhereunder shall release any other maker, endorser or guarantor 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 located in the county of Suffolk, state of NewYork.  Capitalized terms used herein andnot otherwise defined shall have those meanings given to them in the LoanDocuments. In no event shall such documents be construed inconsistently withthe terms of this Consolidated Note, and in the event of any discrepancybetween any such documents and this Consolidated Note, the terms hereof shallgovern.  The proceeds of thisConsolidated Note are to be used for business, commercial, investment or othersimilar purposes, and no portion thereof will be used for any personal, familyor household use.  This Note shall begoverned by and construed in accordance with the laws of the State where thePremises is located, without regard to its conflict of law principles.

 

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9.                                       Notwithstandingany provision to the contrary in this Consolidated Note or the Loan Documentsand except as otherwise provided for below, the liability of Borrower under theLoan Documents shall be limited to the interest of Borrower in the Premises andthe Rents.  In the event of foreclosureof the liens evidenced by the Loan Documents, no judgment for any deficiencyupon the Indebtedness evidenced by the Loan Documents shall be sought or obtainedby Lender against Borrower. Nothing herein shall in any manner limit or impair(i) the lien or enforcement of the Loan Documents pursuant to the terms thereofor (ii) the obligations of any indemnitor 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 Consolidated Mortgage (it being agreed that “ConsolidatedMortgage” as used herein shall be construed to mean “mortgage” or “deed of trust”or “trust deed” as the context so requires) or consented to in writing byLender) to an unrelated third party or upon conveyance to Lender of thePremises by a deed acceptable to Lender in form and content (each of whichshall be referred to as a “Sale” for purposes of this paragraph) or expended byLender after a Sale of the Premises for obligations of Borrower which aroseprior to a Sale of the Premises;

 

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 LoanDocuments, or (B) payment of expenses for the operation, maintenance, taxes,assessments, utility charges and insurance of the Premises including sufficient

 

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reserves for the same orreplacements or renewals thereof (“Operation Expense(s)”) provided that (x)Borrower has furnished Lender with evidence reasonably satisfactory to Lenderof the Operation Expenses and payment thereof, and (y) any payments to partiesrelated to Borrower shall be considered an Operation Expense only to the extentthat the amount expended for the Operation Expense does not exceed the thencurrent 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 due rents)from the Premises which Borrower has received or will receive after an Event ofDefault under the Loan Documents which are not applied to (A) payment ofprincipal, interest and other charges when due under the Loan Documents or (B)payment of Operation Expenses provided that (x) Borrower has furnished Lenderwith evidence reasonably satisfactory to Lender of the Operation Expenses andpayment thereof, and (y) any payments to parties related to Borrower shall beconsidered an Operation Expense only to the extent that the amount expended forthe Operation Expense does not exceed the then current market rate for suchOperation 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 information provided by or on behalf of Borrower, Interest Owneror guarantor, if any, in connection with the Loan; and

 

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(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 totaxes, assessments and insurance premiums, to the extent Lender is impoundingfor taxes, assessments and insurance premiums in accordance with the LoanDocuments and Borrower has fully complied with all terms and conditions of theLoan Documents 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 Consolidated Mortgage, otherthan (i) the filing of a nonmaterial mechanic’s lien affecting the Premises ora mechanic’s lien affecting the Premises for which Borrower has complied withthe provisions of paragraph l(e) of the Consolidated Mortgage, or (ii) thegranting of any utility or other nonmaterial easement or servitude burdeningthe Premises, or (iii) any transfer or encumbrance of a nonmaterial economicinterest in the Premises not otherwise set forth in (i) or (ii).

 

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

 

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, All of the rights, privileges andobligations hereunder shall inure to the benefit of the heirs, successors andassigns of Lender and shall bind the heirs and permitted successors and assignsof Borrower.

 

12.                                 Ifany provision of this Consolidated Note shall, for any reason, be held to beinvalid or unenforceable, such invalidity or unenforceability shall not affectany other provision hereof, but this Consolidated Note shall be construed as ifsuch invalid or unenforceable 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.****                               AFTER CONSULTING WITH COUNSEL AND CAREFULCONSIDERATION, BORROWER AND LENDER (BY ITS ACCEPTANCE HEREOF) KNOWINGLY,VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM MAY HAVE TO ATRIAL BY JURY WITH RESPECT TO ANY LITIGATION ARISING OUT OF THIS NOTE OR ANYOTHER INSTRUMENT OR AGREEMENT BY WHICH THIS NOTE IS, OR MAY HEREAFTER BE,SECURED, OR OUT OF ANY**

 

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**COURSEOF CONDUCT, COURSE OF DEALING,****STATEMENTS (ORAL OR WRITTEN), OR ACTIONS OF BORROWER ORLENDER.  THIS WAIVER IS A MATERIALINDUCEMENT 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 irrevocably appoints Gail Cress, having an addressc/o Inland Mortgage Corporation, 2901 Butterfield Road, Oak Brook Illinois60523, as Borrower’s agent for receipt of service of process on Borrower’sbehalf in connection with any suit, writ, attachment, execution or discovery ofsupplementary proceedings in connection with the enforcement of thisConsolidated 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 any inconsistencies between the terms and conditionsof the foregoing paragraphs and this paragraph, the terms of this paragraphshall control and be binding.

 

REMAINDER OF PAGEINTENTIONALLY BLANK

 

(Signatures on nextpage)

 

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IN WITNESS WHEREOF,Borrower has caused this Consolidated, Amended and Restated Secured PromissoryNote to be duly executed and delivered as of the date first 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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