Exhibit
10.509


 


INTERIM
SECURED PROMISSORY NOTE

LOAN NO. 754183


 


	
  $48,427.76

  	
   

  	
  January 26,
  2005

  



 


1.                                       FOR
VALUE RECEIVED, 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), hereby promises to pay to the order of PRINCIPAL
LIFE INSURANCE COMPANY, an Iowa corporation (as “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, the principal sum of Forty Eight
Thousand Four Hundred Twenty Seven and 76/100 Dollars ($48,427.76) (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 the Closing Date,
at the rate set forth in the Consolidated Note (hereinafter defined).


 


Reference is made
to 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 herein
shall have the same meaning as set forth in the Consolidated Note.  This Note is one of the Existing Notes as
defined in the Consolidated Note.  The
Loan Amount shall bear interest prior to the Maturity Date at the rate or rates
and shall be payable as set forth in the Consolidated Note.  This Note is secured by, inter alia, the Amended, Restated and
Consolidated Mortgage and Security Agreement of even date herewith executed by
Borrower in favor of Lender and to be recorded in the County Clerk’s Office of
Suffolk County, New York.


 


2.                                       No
privilege is reserved by Borrower to prepay any principal of this 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


 


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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 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 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 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


 


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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 Note,
and in the event of any discrepancy between any such documents and this Note,
the terms hereof shall govern.  The
proceeds of this 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.


 


9.                                       Notwithstanding
any provision to the contrary in this 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 Mortgage (it being agreed that “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;


 


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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 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


 


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information provided by
or on behalf of Borrower, Interest Owner or guarantor, if any, in connection
with the Loan; and


 


(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 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 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 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 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


 


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NOTE IS,
OR MAY HEREAFTER BE, SECURED, OR OUT OF ANY 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 Gress, 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 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.


 


 


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(Signatures on
next page)


 


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IN WITNESS WHEREOF,
Borrower has caused this 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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