Exhibit
10.510


 


CONSOLIDATED,
AMENDED AND RESTATED

SECURED PROMISSORY NOTE

LOAN NO. 754183


 


	
  $20,755,300.00

  	
   

  	
  January 26,
  2005

  



 


THIS CONSOLIDATED,
AMENDED AND RESTATED NOTE (this “Consolidated Note”) is made as of this          day
of January, 2005, by and between, INLAND WESTERN CORAM PLAZA, L.L.C., a
Delaware limited liability company, as “Borrower” (“Borrower” to be construed
as “Borrowers” if the context so requires), having its principal place of
business and post office address at 2901 Butterfield Road, Oak Brook, Illinois
60523, and PRINCIPAL LIFE INSURANCE COMPANY, an Iowa corporation (“Lender”),
having a principal place of business and post office address at c/o Principal
Real Estate Investors, LLC, 801 Grand Avenue, Des Moines, Iowa 50392-1450, or at
such other place as Lender may designate.


 


RECITALS:


 


A.                                   Lender
is now the lawful owner and holder of (i) that certain Amended, Restated
Acquisition Loan Promissory Note dated December 7, 2004 in the principal
amount of $9,447,037.00, (ii) that certain Amended and Restated Project Loan
Promissory Note dated December 7, 2004 in the principal amount of
$761,773.00, (iii) that certain Amended and Restated Building Loan Promissory
Note 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 the
principal amount of $48,427.76 (collectively, the “Existing Notes”).


 


B.                                     The
Existing Notes are secured by (i) that certain Amended, Restated and
Consolidated Acquisition Loan Mortgage and Security Agreement dated June 12,
2003 and recorded in the Clerk’s Office of Suffolk County, New York in Liber
M00020597, page 864, (ii) that certain Project Loan Mortgage and Security
Agreement dated June 12, 2003 and recorded in the County Clerk’s Office of
Suffolk County, New York in Liber M00020598, page 361, (iii) that certain
Building Loan Mortgage and Security Agreement dated June 12, 2003 and
recorded in the County Clerk’s Office of Suffolk County, New York in Liber
M00020598, page 360, (iv) that certain Assignment, Assumption, Modification and
Release Agreement dated December 7, 2004 and recorded in the County Clerk’s
Office of Suffolk County, New York, executed by and between Borrower and Sky
Bank, and (v) that certain Amended, Restated and Consolidated Mortgage and
Security Agreement of even date herewith to be recorded in the Suffolk County
Clerk’s Office (the “Existing Mortgages”).


 


C.                                     There
is, as of the date hereof, due, owing and unpaid under the Existing Notes the
aggregate principal amount of $20,755,300, together with interest to accrue
thereon.


 


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


 


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E.                                      Borrower
represents and warrants to Lender that:


 


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


 


(ii)                                  There
are no defenses, offsets or counterclaims of any nature against the Existing
Notes or the other Loan Documents (defined below), or any sums due thereunder.


 


(iii)                               The
execution and delivery of this Consolidated Note does not and will not violate
the terms of any agreement, indenture or instrument affecting Borrower or any
law of any government authority purporting to have jurisdiction over Borrower.


 


(iv)                              The
Existing Notes are in full force and effect and Borrower agrees and promises to
pay the indebtedness evidenced by the Existing Notes in accordance with the
terms and provisions of the Existing Notes, as hereby amended and restated in
its entirety.


 


(v)                                 This
Consolidated Note docs not (a) create or evidence any new or further principal
indebtedness or (b) constitute a novation with respect to the original
principal indebtedness evidenced by the Existing Notes.


 


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


 


1.                                       FOR
VALUE RECEIVED, Borrower hereby promises to pay to the order of Lender, the
principal sum of Twenty Million Seven Hundred Fifty Five Thousand Three Hundred
and No/100 Dollars ($20,755,300.00) (the “Loan Amount”) or so much
thereof as shall from time to time have been advanced, together with interest
on 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 interest
from the Closing Date to and including January 31, 2005 shall be paid on
the Closing Date calculated by multiplying the actual number of days elapsed in
the period for which interest is being calculated by a daily rate based on the
foregoing annual interest rate and a 360-day year.  Thereafter, interest shall be computed on the
unpaid 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 Six
Hundred Ninety Seven and 18/100 Dollars ($78,697.18), with an installment in a
like amount due and payable on the same day of each month thereafter, except
that all remaining principal and interest to and including the date of payment
and other Indebtedness shall be due and payable on February 1,


 


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


 


2.                                       No
privilege is reserved by Borrower to prepay any principal of this Consolidated
Note prior to the Maturity Date, except in strict accordance with the
provisions of the Loan Agreement.


 


3.                                       Borrower
agrees that if Lender accelerates the whole or any part of the principal sum
evidenced hereby, after the occurrence of an Event of Default or applies any
proceeds pursuant to the provisions of the Loan Documents, Borrower waives any
right to prepay said principal sum in whole or in part without premium and
agrees to pay, as yield maintenance protection and not as a penalty, the Make
Whole Premium.


 


Notwithstanding the
above, in the event any proceeds from a casualty or Taking of the Premises are
applied to reduce the principal balance hereof, such reduction shall be made
without a Make Whole Premium, provided no Event of Default then exists under
the Loan Documents.


 


4.                                       If
any payment of principal, interest, Make Whole Premium, or other Indebtedness
is not made when due, damages will be incurred by Lender, including additional
expense in handling overdue payments, the amount of which is difficult and
impractical to ascertain.  Borrower
therefor agrees to pay, upon demand, the sum of four cents ($.04) for each one
dollar ($1.00) of each said payment which becomes overdue (“Late Charge”)
as a reasonable estimate of the amount of said damages, subject, however, to
the limitations contained in paragraph 6 hereof.


 


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


 


5.                                       If
any Event of Default has occurred and is continuing under the Loan Documents,
the entire principal balance of the Loan, interest then accrued, and Make Whole
Premium, and all


 


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other Indebtedness
whether or not otherwise then due, shall at the option of Lender, become
immediately due and payable without demand or notice, and whether or not Lender
has exercised said option, interest shall accrue on the entire principal
balance, interest then accrued, Make Whole Premium and any other Indebtedness
then due, at a rate equal to the Default Rate until fully paid.


 


6.                                       Notwithstanding
anything herein or in any of the other Loan Documents to the contrary, no
provision contained herein or therein which purports to obligate Borrower to
pay any amount of interest or any fees, costs or expenses which are in excess
of the maximum permitted by applicable law, shall be effective to the extent it
calls for the payment of any interest or other amount in excess of such
maximum.  All agreements between Borrower
and Lender, whether now existing or hereafter arising and whether written or
oral, are hereby limited so that in no contingency, whether by reason of demand
for payment or acceleration of the maturity hereof or otherwise, shall the
interest contracted for, charged or received by Lender exceed the maximum
amount permissible under applicable law.  If, from any circumstance whatsoever, interest
would otherwise be payable to Lender in excess of the maximum lawful amount,
the interest payable to Lender shall be reduced to the maximum amount permitted
under applicable law; and if from any circumstance Lender shall ever receive
anything of value deemed interest by applicable law in excess of the maximum
lawful amount, an amount equal to any excessive interest shall, at the option
of Lender, be refunded to Borrower or be applied to the reduction of the
principal hereof, without a Make Whole Premium and not to the payment of
interest or, if such excessive interest exceeds the unpaid balance of principal
hereof such excess shall be refunded to Borrower. This paragraph shall control
all agreements between Borrower and Lender.


 


7.                                       Borrower
and any endorsers or guarantors waive presentment, protest and demand, notice
of protest, demand and dishonor and nonpayment, and agree the Maturity Date of
this Consolidated Note or any installment may be extended without affecting any
liability hereunder, and further promise to pay all reasonable costs and
expenses, including but not limited to, reasonable attorney’s fees incurred by
Lender in connection with any default or in any proceeding to interpret and/or
enforce any provision of the Loan Documents.  No release of Borrower from liability
hereunder shall release any other maker, endorser or guarantor hereof.


 


8.                                       This
Note is secured by the Loan Documents creating among other things legal and
valid encumbrances on and an assignment of all of Borrower’s interest in any
Leases of the Premises located in the county of Suffolk, state of New
York.  Capitalized terms used herein and
not otherwise defined shall have those meanings given to them in the Loan
Documents. In no event shall such documents be construed inconsistently with
the terms of this Consolidated Note, and in the event of any discrepancy
between any such documents and this Consolidated Note, the terms hereof shall
govern.  The proceeds of this
Consolidated Note are to be used for business, commercial, investment or other
similar purposes, and no portion thereof will be used for any personal, family
or household use.  This Note shall be
governed by and construed in accordance with the laws of the State where the
Premises is located, without regard to its conflict of law principles.


 


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9.                                       Notwithstanding
any provision to the contrary in this Consolidated Note or the Loan Documents
and except as otherwise provided for below, the liability of Borrower under the
Loan Documents shall be limited to the interest of Borrower in the Premises and
the Rents.  In the event of foreclosure
of the liens evidenced by the Loan Documents, no judgment for any deficiency
upon the Indebtedness evidenced by the Loan Documents shall be sought or obtained
by 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 thereof
or (ii) the obligations of any indemnitor or guarantor, if any.


 


Notwithstanding any
provision hereinabove to the contrary, Borrower shall be personally liable to
Lender for:


 


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


 


(b)                                 any
event or circumstance for which Borrower indemnifies Lender under the
Environmental Indemnity;


 


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


 


(d)                                 material
failure to manage, operate, and maintain the Premises in a commercially
reasonable manner for similar property types in the surrounding geographic
area;


 


(e)                                  any
sums expended by Lender in fulfilling the obligations of Borrower as lessor
under any Lease of the Premises prior to a sale of the Premises pursuant to
foreclosure or power of sale, a bona fide sale (permitted by the terms of
paragraph 2(f) of the Consolidated Mortgage (it being agreed that “Consolidated
Mortgage” 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 by
Lender) to an unrelated third party or upon conveyance to Lender of the
Premises by a deed acceptable to Lender in form and content (each of which
shall be referred to as a “Sale” for purposes of this paragraph) or expended by
Lender after a Sale of the Premises for obligations of Borrower which arose
prior to a Sale of the Premises;


 


Borrower’s personal
liability for items specified in (c), (d) and (e) above shall be limited to the
amount of rents, issues, proceeds and profits from the Premises (“Rents and
Profits”) received by Borrower for the twelve (12) months preceding an Event of
Default 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


 


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reserves for the same or
replacements or renewals thereof (“Operation Expense(s)”) provided that (x)
Borrower has furnished Lender with evidence reasonably satisfactory to Lender
of the Operation Expenses and payment thereof, and (y) any payments to parties
related to Borrower shall be considered an Operation Expense only to the extent
that the amount expended for the Operation Expense does not exceed the then
current market rate for such Operation Expense.


 


(f)                                    any
rents or other income regardless of type or source of payment or other
considerations in lieu thereof (including, but not limited to, common area
maintenance 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 of
Default under the Loan Documents which are not applied to (A) payment of
principal, interest and other charges when due under the Loan Documents or (B)
payment of Operation Expenses provided that (x) Borrower has furnished Lender
with evidence reasonably satisfactory to Lender of the Operation Expenses and
payment thereof, and (y) any payments to parties related to Borrower shall be
considered an Operation Expense only to the extent that the amount expended for
the Operation Expense does not exceed the then current market rate for such
Operation Expense;


 


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


 


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


 


(i)                                     any
insurance or condemnation proceeds or other similar funds or payments applied
by Borrower in a manner other than as expressly provided in the Loan Documents;


 


(j)                                     any
loss or damage to Lender arising from any fraud or willful misrepresentation by
or on behalf of Borrower, Interest Owner or any guarantor regarding the
Premises, the making or delivery of any of the Loan Documents or in any
materials or information provided by or on behalf of Borrower, Interest Owner
or guarantor, if any, in connection with the Loan; and


 


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


 


Notwithstanding anything
contained 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
for taxes, assessments and insurance premiums in accordance with the Loan
Documents and Borrower has fully complied with all terms and conditions of the
Loan Documents relating to impounding for the same, then Borrower shall not be
personally liable for Lender’s failure to apply any of said impound amounts
held by Lender in accordance with the Loan Documents.


 


Notwithstanding anything
to the contrary in the Loan Documents, the limitation on liability contained in
the first paragraph of this paragraph 9 SHALL BECOME NULL AND VOID and shall be
of no further force and effect in the event of any breach or violation of
paragraph 2(f) (due on sale or encumbrance) of the Consolidated Mortgage, other
than (i) the filing of a nonmaterial mechanic’s lien affecting the Premises or
a mechanic’s lien affecting the Premises for which Borrower has complied with
the provisions of paragraph l(e) of the Consolidated Mortgage, or (ii) the
granting of any utility or other nonmaterial easement or servitude burdening
the Premises, or (iii) any transfer or encumbrance of a nonmaterial economic
interest in the Premises not otherwise set forth in (i) or (ii).


 


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


 


11.                                 This
Note may not be changed or terminated orally, but only by an agreement in
writing and signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought, All of the rights, privileges and
obligations hereunder shall inure to the benefit of the heirs, successors and
assigns of Lender and shall bind the heirs and permitted successors and assigns
of Borrower.


 


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


 


13.                                 This
Note may be executed in counterparts, each of which shall be deemed an
original; and such counterparts when taken together shall constitute but one
agreement.


 


14.                               AFTER CONSULTING WITH COUNSEL AND CAREFUL
CONSIDERATION, BORROWER AND LENDER (BY ITS ACCEPTANCE HEREOF) KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM MAY HAVE TO A
TRIAL BY JURY WITH RESPECT TO ANY LITIGATION ARISING OUT OF THIS NOTE OR ANY
OTHER INSTRUMENT OR AGREEMENT BY WHICH THIS NOTE IS, OR MAY HEREAFTER BE,
SECURED, OR OUT OF ANY


 


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COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS (ORAL OR WRITTEN), OR ACTIONS OF BORROWER OR
LENDER.  THIS WAIVER IS A MATERIAL
INDUCEMENT TO THE LENDER’S ACCEPTANCE OF THIS NOTE.


 


15.                                 Borrower
consents to the personal jurisdiction over Borrower by any federal or state
court situated in the State of New York and consents to the laying of venue in
any jurisdiction over Borrower by any federal or state court situated in the
State of New York. Borrower irrevocably appoints Gail Cress, having an address
c/o Inland Mortgage Corporation, 2901 Butterfield Road, Oak Brook Illinois
60523, as Borrower’s agent for receipt of service of process on Borrower’s
behalf in connection with any suit, writ, attachment, execution or discovery of
supplementary proceedings in connection with the enforcement of this
Consolidated Note (collectively, an “Action”).  Service in any Action and any notice of sale
or other notices required under Article 14 of the New York Real Property
Actions and Proceedings Law shall be effected by any means permitted by the
court in which any Action is filed, with a copy sent by certified mail, return
receipt requested, to Borrower at its address as hereinbefore stated or at such
other address as shall be designated from time to time by Borrower.  Borrower or its agent for receipt of process
may designate a change of address or may substitute another agent for the
service of process who shall be acceptable to Lender in its sole but reasonably
discretion, by written notice to Lender by certified mail, return receipt
requested, at least ten (10) days before such change of address is to become
effective. In the event of any inconsistencies between the terms and conditions
of the foregoing paragraphs and this paragraph, the terms of this paragraph
shall control and be binding.


 


REMAINDER OF PAGE
INTENTIONALLY BLANK


 


(Signatures on next
page)


 


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IN WITNESS WHEREOF,
Borrower has caused this Consolidated, Amended and Restated Secured Promissory
Note 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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