**Exhibit 10.426**

 

**GUARANTY AGREEMENT**

 

WHEREAS,the execution of this Guaranty Agreement is a condition to **INLAND****WESTERN DENTON CROSSING LIMITED PARTNERSHIP,**anIllinois limited partnership, whose address is 2901 Butterfield Road, OakBrook, Illinois 60523 (“Borrower”) borrowing from **METROPOLITAN LIFE****INSURANCE****COMPANY,**a New York corporation (“MetLife”),having its principal place of business at 10 Park Avenue, Morristown, NewJersey 07960, and (ii) **METLIFE BANK,****N.A.** (“MetLife Bank”), a national banking association,having an address of 10 Park Avenue, Morristown, New Jersey 07960 (MetLife andMetLife Bank being collectively referred to as “Lender”), the aggregateprincipal amount of $35,200,000.00;

 

NOW,THEREFORE, for valuable consideration, the receipt and adequacy of which arehereby acknowledged, the undersigned, Inland Western Retail Real Estate Trust,Inc., a Maryland corporation, whose address for notice is 2901 ButterfieldRoad, Oak Brook, Illinois 60523 (“Guarantor”), hereby irrevocably and unconditionallyguarantees to Lender the full and prompt payment and performance of theGuaranteed Obligations (as defined below), this Guaranty Agreement being uponthe following terms:

 

1.                                       The term “Indebtedness” as used herein shallmean all obligations, indebtedness and liabilities of Borrower to Lenderevidenced by (i) that certain Promissory Note (the “Note”) of even dateherewith executed by Borrower and payable to the order of MetLife in theprincipal amount of Twenty-Five Million Two Hundred Thousand and No/100 Dollars($25,200,000.00), (ii) that certain Promissory Note (the “MetLife Bank Note”)of even date herewith executed by Borrower and payable to the order of MetLifeBank in the principal amount of Ten Million and No/100 Dollars ($10,000,000.00)(the MetLife Note and the MetLife Bank Note are collectively referred to as the“Note” or “Notes”) and (iii) the Unsecured Indemnity Agreement (as defined in theNotes).

 

2.                                       The term “Guaranteed Obligations” as usedherein means: (a) payment and performance by Borrower of all of Borrower’sliability under: (i) the Unsecured Indemnity Agreement, and (ii) Paragraph 11of the Notes (such amounts under subsections (i) and (ii) of this Section 2(a)being herein called the “Performance Sums”) plus (b) interest at the DefaultRate (as defined in the Note) which accrues on the Performance Sums from thedate of written demand for payment under this Guaranty Agreement from Lender toGuarantor until the Performance Sums arc paid in full plus (c) allcosts, including, without limitation, all reasonable attorney’s fees andexpenses incurred by Lender in connection with collection of the Guaranteed Obligations.

 

3.                                       This instrument is an absolute, continuing,irrevocable, and unconditional guaranty of payment and performance, and not aguaranty of collection, and Guarantor shall remain liable on its obligationshereunder until the payment and performance in full of the GuaranteedObligations.  No set-off, counterclaim,recoupment, reduction, or diminution of any obligation, or any defense of anykind or nature which Borrower may have against Lender or any other party, orwhich Guarantor may have against Borrower, Lender, or any other party, shall be

 

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availableto, or shall be asserted by, Guarantor against Lender or any subsequentbeneficiary of this Guaranty Agreement or any portion of the Indebtedness.

 

4.                                       If Guarantor becomes liable for anyindebtedness owing by Borrower to Lender by endorsement or otherwise, otherthan under this Guaranty Agreement, such liability shall not be in any mannerimpaired or affected hereby, and the rights of Lender hereunder shall be in additionto any and all other rights that Lender may ever have against Guarantor.  The exercise by Lender of any right or remedyhereunder or under any other instrument, or at law or in equity, shall notpreclude the concurrent or subsequent exercise of any other right or remedy.

 

5.                                          In the event of default by Borrower inpayment or performance of the Guaranteed Obligations, or any part thereof, whensuch Guaranteed Obligations are due to be paid or performed by Borrower,Guarantor shall promptly pay or perform the Guaranteed Obligations then due infull without notice or demand, and it shall not be necessary for Lender, inorder to enforce such payment by Guarantor, first to institute suit or exhaustits remedies against Borrower or others, or to enforce any rights against anycollateral which shall ever have been given to secure such Indebtedness.  Without limiting any other provisions of thisGuaranty Agreement, Guarantor acknowledges and agrees that, to the extentLender realizes any proceeds under any documents which secure the Indebtedness(including, without limitation, voluntary payments, insurance or condemnationproceeds or proceeds from the sale at foreclosure of any collateral securingthe Indebtedness), such proceeds shall, to the extent permitted by law, not be appliedto or credited against the Guaranteed Obligations.  **FURTHER,NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED****IN THIS GUARANTYAGREEMENT, GUARANTOR HEREBY IRREVOCABLY AGREES THAT, UNTIL PAYMENT IN FULL TO LENDER OF THE INDEBTEDNESS AND THEGUARANTEED OBLIGATIONS, GUARANTOR SHALL HAVE NO RIGHT TO RECOVER FROM BORROWERANY CLAIMS GUARANTOR HAS OR MIGHT HAVE AGAINST BORROWER (AS SUCH TERM “CLAIM”IS DEFINED IN THE UNITED STATESBANKRUPTCY CODE 11 U.S.C. §101[5] ASAMENDED FROM TIME TO TIME) IN CONNECTION WITH PAYMENTS MADE BY OR ON BEHALF OFGUARANTOR TO LENDER UNDER THIS GUARANTY AGREEMENT INCLUDING, WITHOUT IMPLIEDLIMITATION, ALL RIGHTS GUARANTOR MAY NOW OR HEREAFTER HAVE UNDER ANY AGREEMENTOR AT LAW OR IN EQUITY (INCLUDING, WITHOUT LIMITATION, ANY LAW SUBROGATING THEGUARANTOR TO THE RIGHTS OF LENDER) TO ASSERT ANY CLAIM AGAINST OR SEEK CONTRIBUTION,INDEMNIFICATION OR ANY OTHER FORM OF REIMBURSEMENT FROM BORROWER OR ANY OTHERPARTY LIABLE FOR PAYMENT OF ANY OR ALL OF THE INDEBTEDNESS.**

 

6.                                       If acceleration of the time for payment byBorrower of all or any portion of the Indebtedness is stayed upon theinsolvency, bankruptcy, or reorganization of Borrower, the GuaranteedObligations shall nonetheless be payable by Guarantor hereunder forthwith on demandby Lender.

 

7.                                       Guarantor hereby agrees that its obligationsunder this Guaranty Agreement shall not be released, discharged, diminished,impaired, reduced, or affected for any reason or by the

 

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occurrenceof any event, including, without limitation, one or more of the followingevents, whether or not with notice to or the consent of Guarantor; (a) thetaking or accepting of collateral as security for any or all of theIndebtedness or the release, surrender, exchange, or subordination of anycollateral now or hereafter securing any or all of the Indebtedness; (b) thefull or partial release of Borrower or any other guarantor from liability forany or all of the Indebtedness or the Guaranteed Obligations; (c) thedissolution, insolvency, or bankruptcy of Borrower, Guarantor, or any otherparty at any time liable for the payment of any or all of the Indebtedness; (d)any renewal, extension, modification, waiver, amendment, or rearrangement ofany or all of the Indebtedness or any instrument, document, or agreementevidencing, securing, or otherwise relating to any or all of the GuaranteedObligations; (e) any adjustment, indulgence, forbearance, waiver, or compromisethat may be granted or given by Lender to Borrower or any other party everliable for any or all of the Indebtedness; (f) any neglect, delay, omission,failure, or refusal of Lender to take or prosecute any action for thecollection of any of the Guaranteed Obligations from Borrower or Guarantor orto foreclose or take or prosecute any action in connection with any instrument,document, or agreement evidencing, securing, or otherwise relating to any orall of the Indebtedness or any or all of the Guaranteed Obligations; (g) theunenforceability or invalidity of any or all of the Indebtedness or theGuaranteed Obligations or any instrument, document, or agreement evidencing,securing, or otherwise relating to any or all of the Indebtedness or theGuaranteed Obligations; (h) any payment by Borrower or any other party toLender is held to constitute a preference under applicable bankruptcy or insolvencylaw or if for any other reason Lender is required to refund any payment or paythe amount thereof to someone else; (i) the settlement or compromise of any ofthe Indebtedness or the Guaranteed Obligations; (j) the non-perfection of anysecurity interest or lien securing any or all of the Indebtedness; (k) anyimpairment of any collateral securing any or all of the Indebtedness; (1) thefailure of Lender to sell any collateral securing any or all of theIndebtedness in a commercially reasonable manner or as otherwise required bylaw; (m) any change in the corporate existence, structure, or ownership ofBorrower; (n) the application against the Indebtedness of the proceeds realizedby Lender under any documents which secure the Indebtedness (including, withoutlimitation, voluntary payments, insurance or condemnation proceeds or proceedsfrom the sale at foreclosure of any collateral securing the Indebtedness),except as provided in Section 5 of this Guaranty Agreement; or (o) any othercircumstance which might otherwise constitute a defense available to, ordischarge of, Borrower or Guarantor, or any other party liable for any or allof the Indebtedness or the Guaranteed Obligations.  Guarantor further expressly waives any rightor option under applicable law or otherwise to be released or discharged, inwhole or in part, by reason of any of the matters set forth in (a) through (o)of this Section, and further expressly waives any defense to the full paymentand performance of the Guaranteed Obligations arising from the matters setforth in (a) through (o) of this Section.  In addition, Guarantor expressly waives: (i)any duty or obligation on the Lender to proceed to collect payment of theIndebtedness from, or to commence an action against, the Borrower or any otherperson, or to resort to any security or to any balance of any deposit accountor credit on the books of the Lender in favor of the Borrower or any otherperson, despite any notice or request of the undersigned to do so; (ii) to thefullest extent permitted by law, the requirements and/or the benefits ofChapter 34 of the Texas Business and Commerce Code, as amended, Rule 31 of theTexas Rules of Civil Procedure, as amended, and Section 17.001 of the TexasCivil Practice and Remedies Code, as amended, and (iii) except as expresslyreserved pursuant to Section 21 hereof, any and all rights or defenses arisingby reason of any “one action” or “anti-deficiency”

 

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law or any other law which may prevent Lender from bringing any action,including a claim for deficiency (but only to the extent of the GuaranteedObligations and not otherwise), against Guarantor, before or after Lender’scommencement or completion of any foreclosure action, either judicially or byexercise of a power of sale.  Furthermore,the obligations of Guarantor under this Guaranty shall not be released,diminished, or affected by any deterioration, waste, loss or impairment of anycollateral, property or security at any time existing in connection with, orassuring or securing payment of, all or any part of the Guaranteed Obligations,or by the failure of Lender or any other party to exercise diligence orreasonable care in the preservation, protection, enforcement, sale or other handlingor treatment of all or any part of such collateral, property or security.  The liabilities and obligations of Guarantorto Lender under this Guaranty shall not be reduced, discharged or releasedbecause of or by reason of any existing or future right of offset, claim ordefense of Borrower against Lender, or any other party, or against payment ofthe Guaranteed Obligations, whether such right of offset, claim or defensearises in connection with the Loan and the payment of the Loan and theGuaranteed Obligations (or the transactions creating same) or otherwise.

 

8.                                       Guarantor represents and warrants to Lenderas follows:

 

(a)                                  Guarantor has the power and authority andlegal right to execute, deliver, and perform its obligations under thisGuaranty Agreement and this Guaranty Agreement constitutes the legal, valid,and binding obligation of Guarantor, enforceable against Guarantor inaccordance with its terms, except as limited by bankruptcy, insolvency, orother laws of general application relating to the enforcement of creditor’srights.

 

(b)                                 The execution, delivery, and performance byGuarantor of this Guaranty Agreement do not and will not violate or conflictwith any law, rule, or regulation or any order, writ, injunction, or decree ofany court, governmental authority or agency, or arbitrator and do not and willnot conflict with, result in a breach of, or constitute a default under, orresult in the imposition of any lien upon any assets of Guarantor pursuant tothe provisions of any indenture, mortgage, deed of trust, security agreement,franchise, permit, license, or other instrument or agreement to which Guarantoror his properties are bound.

 

(c)                                  No authorization, approval, or consent of,and no filing or registration with, any court, governmental authority, or thirdparty is necessary for the execution, delivery, or performance by Guarantor ofthis Guaranty Agreement or the validity or enforceability thereof.

 

(d)                                 The value of the consideration received andto be received by Guarantor as a result of Lender making extensions of creditto Borrower and Guarantor executing and delivering this Guaranty Agreement isreasonably worth at least as much as the liability and obligation of Guarantorhereunder, and such liability and obligation and such extensions of credit havebenefited and may reasonably be expected to benefit Guarantor directly andindirectly.

 

(e)                                  Guarantor has, independently and withoutreliance upon Lender and based upon such documents and information as Guarantorhas deemed appropriate, made its own analysis and decision to enter into thisGuaranty Agreement.

 

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9.                                       Guarantor covenants and agrees that, as longas the Indebtedness or the Guaranteed Obligations or any part thereof isoutstanding:

 

(a)                                  Guarantor will furnish to Lender as soon asavailable, and in any event within ninety (90) days after the end of eachfiscal year of Guarantor, beginning with the fiscal year ending December 31,2004, (i) a copy of the financial statements of Guarantor for such fiscal yearand (ii) a certificate of Guarantor to Lender (A) stating that no default underthis Guaranty Agreement and no event which with notice or lapse of time or bothwould be a default under this Guaranty Agreement has occurred and is continuing,or if in Guarantor’s opinion a default under this Guaranty Agreement hasoccurred and is continuing, a statement as to the nature thereof and (B)disclosing and certifying as to all material changes in Guarantor’s debt or networth or otherwise certifying that there has been no material change inGuarantor’s personal debt or net worth since the previous financial statementdelivered to Lender.

 

(b)                                 Guarantor will furnish promptly to Lenderwritten notice of the occurrence of any default under this Guaranty Agreement.

 

(c)                                  Guarantor will furnish promptly to Lendersuch additional information concerning Guarantor as Lender may request.

 

(d)                                 Guarantor will obtain at any time and fromtime to time all authorizations, licenses, consents or approvals as shall nowor hereafter be necessary or desirable under all applicable laws or regulationsor otherwise in connection with the execution, delivery and performance of thisGuaranty Agreement and will promptly furnish copies thereof to Lender.

 

(e)                                  Except for transfers permitted under the Deedof Trust, Security Agreement and Fixture Filing dated of even date herewith(the “Deed of Trust”) and the other Loan Documents.  Guarantor will at all times own directly orindirectly and free and clear of all liens and encumbrances whatsoever at leastthe same percentage interest in Borrower, if any, as its owns directly orindirectly on the date hereof.

 

10.                                 (a)                                  Guarantor hereby agrees that the SubordinatedIndebtedness (as hereinafter defined) shall he subordinate and junior in rightof payment to the prior payment in full of all Indebtedness and satisfaction ofall obligations of Borrower to Lender under the Loan Documents, and Guarantorhereby assigns the Subordinated Indebtedness to Lender as security for thepayment of the Guaranteed Obligations.  If any sums shall be paid to Guarantor byBorrower or any other person or entity on account of the SubordinatedIndebtedness, such sums shall be held in trust by Guarantor for the benefit ofLender and shall forthwith be paid to Lender without affecting the liability ofGuarantor under this Guaranty Agreement and may be applied by Lender againstthe Indebtedness or the Guaranteed Obligations in such order and manner asLender may determine in its sole discretion.  Upon the request of Lender, Guarantor shallexecute, deliver, and endorse to Lender such documents and instruments asLender may request to perfect, preserve, and enforce its rights hereunder.  For purposes of this Guaranty Agreement, theterm “Subordinated Indebtedness” means all indebtedness, liabilities, andobligations of Borrower to Guarantor, whether such indebtedness, liabilities,and obligations now exist or are hereafter incurred or arise, or whether theobligations of Borrower thereon arc direct, indirect,

 

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contingent,primary, secondary, several, joint and several, or otherwise, and irrespectiveof whether such indebtedness, liabilities, or obligations are evidenced by anote, contract, open account, or otherwise, and irrespective of the person orpersons in whose favor such indebtedness, obligations, or liabilities may, attheir inception, have been, or may hereafter be created, or the manner in whichthey have been or may hereafter be acquired by Guarantor; provided, however,that the term “Subordinated Indebtedness” shall not mean or include anydistributions by Borrower to its partners (including Guarantors) pursuant tothe limited partnership agreement of Borrower at any time when no Event ofDefault (as defined in the Deed of Trust) exists.

 

(b)                                 Guarantor agrees that any and all liens,security interests, judgment liens, charges, or other encumbrances uponBorrower’s assets securing payment of any Subordinated Indebtedness shall beand remain inferior and subordinate to (i) any and all liens, security interests,judgment liens, charges, or other encumbrances upon Borrower’s assets securing paymentof the Indebtedness or any part thereof, regardless of whether suchencumbrances in favor of Guarantor or Lender presently exist or are hereaftercreated or attached and (ii) satisfaction of all obligations of Borrower toLender under the Loan Documents.  Withoutthe prior written consent of Lender until the Indebtedness has been paid infull, Guarantor shall not (i) file suit against Borrower or exercise or enforceany other creditor’s right it may have against Borrower, or (ii) foreclose,repossess, sequester, or otherwise take steps or institute any action or proceedings(judicial or otherwise, including without limitation the commencement of, orjoinder in, any liquidation, bankruptcy, rearrangement, debtor’s relief orinsolvency proceeding) to enforce any liens, security interests, collateralrights, judgments or other encumbrances held by Guarantor on assets ofBorrower.

 

(c)                                  In the event of any receivership, bankruptcy,reorganization, rearrangement, debtor’s relief, or other insolvency proceedinginvolving Borrower as debtor, Lender shall have the right to prove and vote anyclaim under the Subordinated Indebtedness and to receive directly from thereceiver, trustee or other court custodian all dividends, distributions, andpayments made in respect of the Subordinated Indebtedness.  Lender may apply any such dividends,distributions, and payments against the Guaranteed Obligations in such orderand manner as Lender may determine in its sole discretion.  Guarantor hereby appoints Lender as Guarantor’sattorney-in-fact, which appointment is coupled with an interest and isirrevocable, to enable Lender to act in the place of Guarantor with respect to(i) any claim under the Subordinated Indebtedness or (ii) the receipt of anysuch dividends, distributions and payments.

 

(d)                                 Guarantor agrees that all promissory notes,accounts receivable, ledgers, records, or any other evidence of SubordinatedIndebtedness shall contain a specific written notice thereon that theindebtedness evidenced thereby is subordinated under the terms of this GuarantyAgreement.

 

11.                                 No amendment or waiver of any provision ofthis Guaranty Agreement nor consent to any departure by the Guarantor therefromshall in any event be effective unless the same shall be in writing and signedby Lender.  No failure on the part ofLender to exercise, and no delay in exercising, any right, power, or privilegehereunder shall operate as a waiver thereof; nor shall any single or partialexercise of any right, power, or privilege hereunder preclude any

 

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otheror further exercise thereof or the exercise of any other right, power, orprivilege.  The remedies herein providedare cumulative and not exclusive of any remedies provided by law.

 

12.                                 Any acknowledgment or new promise, whether bypayment of principal or interest or otherwise and whether by Borrower or others(including Guarantor), with respect to any of the Indebtedness shall, if thestatute of limitations in favor of Guarantor against Lender shall havecommenced to run, toll the running of such statute of limitations and, if theperiod of such statute of limitations shall have expired, prevent the operationof such statute of limitations.

 

13.                                 This Guaranty Agreement is for the benefit ofLender and its successors and assigns, and in the event of an assignment of theIndebtedness, or any part thereof, the rights and benefits hereunder, to theextent applicable to the portion of the Indebtedness so assigned, may betransferred with such Indebtedness.  ThisGuaranty Agreement is binding not only on Guarantor, but on Guarantor’s heirs,successors and assigns.

 

14.                                 Guarantor recognizes that Lender is relyingupon this Guaranty Agreement and the undertakings of Guarantor hereunder inmaking extensions of credit to Borrower and further recognizes that theexecution and delivery of this Guaranty Agreement is a material inducement toLender in making extensions of credit to Borrower.  Guarantor hereby acknowledges that there areno conditions to the full effectiveness of this Guaranty Agreement.

 

15.                                 This Guaranty Agreement is executed anddelivered as an incident to a lending transaction negotiated, consummated, andperformable in Dallas County, Texas, and shall be governed by and construed inaccordance with the laws of the State of Texas. Any action or proceeding against Guarantor under or in connection withthis Guaranty Agreement may be brought in any state or federal court in DallasCounty, Texas.  Guarantor herebyirrevocably (i) submits to the nonexclusive jurisdiction of such courts, and(ii) waives any objection it may now or hereafter have as to the venue of anysuch action or proceeding brought in such court or that such court is aninconvenient forum.  Guarantor agreesthat service of process and/or notice upon it may be made by certified orregistered mail, return receipt requested, at its address specified on thefirst page hereof.  Nothing herein shallaffect the right of Lender to serve process in any other matter permitted bylaw or shall limit the right of Lender to bring any action or proceedingagainst Guarantor or with respect to any of Guarantor’s property in courts inother jurisdictions.  Any action orproceeding by Guarantor against Lender shall be brought only in a court locatedin Dallas County, Texas.

 

16.                                 Guarantor hereby waives promptness,diligence, notice of any default under the Indebtedness or of Borrower’sfailure to pay or perform the Guaranteed Obligations, demand of payment, noticeof acceptance of this Guaranty Agreement, presentment, notice of protest,notice of dishonor, notice of the incurring by Borrower of additionalindebtedness, and all other notices and demands with, respect to theIndebtedness and this Guaranty Agreement.

 

17.                                 Guarantor hereby represents and warrants toLender that Guarantor has adequate means to obtain from Borrower on acontinuing basis information concerning the financial condition and assets ofBorrower and that Guarantor is not relying upon Lender to provide (and

 

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Lender shall have no duty to provide) any such information to Guarantoreither now or in the future.

 

18.                                 In case any one or more of the provisionscontained in this Guaranty Agreement shall for any reason be held to beinvalid, illegal or unenforceable in any respect, such invalidity, illegalityor unenforceability shall not affect any other provision hereof, and thisGuaranty Agreement shall be construed as if such invalid, illegal orunenforceable provision had never been contained herein.

 

19.**                                 ****THIS GUARANTY****AGREEMENT****EMBODIES THE FINAL, ENTIREAGREEMENT OF****PAYMENT****ANDPERFORMANCE OF GUARANTOR AND LENDER WITH RESPECT TO GUARANTOR’S GUARANTY OF THEGUARANTEED OBLIGATIONS AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS,****AGREEMENTS,****REPRESENTATIONS, AND UNDERSTANDINGS,WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF.  THIS GUARANTY AGREEMENT IS INTENDED BYGUARANTOR AND LENDER AS A FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THEGUARANTY****AGREEMENT,****AND NOCOURSE OF DEALING****BETWEEN****GUARANTORAND LENDER, NO COURSE OF PERFORMANCE, NO TRADE PRACTICES, AND NO EVIDENCE OF PRIOR,CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSICEVIDENCE OF****ANYNATURE****SHALLBE USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY****AGREEMENT.  ****THERE ARE NO ORAL AGREEMENTS****BETWEEN****GUARANTOR AND LENDER.**

 

20.                                 To the fullest extent permitted by applicablelaw, Guarantor **HEREBY WAIVES HIS RIGHT TOTRIAL BY JURY**in any action, proceeding and/or hearing on any matterwhatsoever arising out of, or in any way connected with this GuarantyAgreement, the Unsecured Indemnity Agreement, the Deed of Trust (as defined inthe Note), the Note or any of the other Loan Documents or the enforcement ofany remedy hereunder or thereunder or under any law, statute, or regulation.  Guarantor will not seek to consolidate anysuch action in which a jury has been waived, with any other action in which ajury trial cannot or has not been waived.  Guarantor has received the advice of counselwith respect to this waiver.

 

21.                                 Anything herein or in the other LoanDocuments to the contrary notwithstanding, neither Guarantor’s execution anddelivery of this Guaranty nor any provision in this Guaranty or any of theother Loan Documents shall be deemed or construed as a waiver by Guarantor ofthe rights and protections afforded under Sections 51.003, 51.004, and 51.005of the Texas Property Code, as such provisions may from time to time be amendedor recodified, in the event the Loan becomes full recourse to Guarantor.

 

(signature follows on next page)

 

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EXECUTEDeffective the 7th day of December, 2004.

 
|   | GUARANTOR:                         |
|--------|------------------------------------|
|   |                               |
|   | INLAND  WESTERN RETAIL REAL ESTATE |
|   | TRUST,  INC.,                      |
|   | a  Maryland corporation            |
|   |                               |
|   |                               |
|   | By:                                | /s/ VALERIE MEDINA |   |
|   | Name:                              | VALERIE MEDINA |   |
|   | Title:                             | ASS'T  SECRETARY |   |
|        |                                    |  |  |  |  |

 

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