**Exhibit10.511**

 

LOAN AGREEMENTLOAN NO 754183

 

THIS LOAN AGREEMENT, madeas of January 26, 2005, is by and between PRINCIPAL LIFE INSURANCECOMPANY, an Iowa corporation, with an address at 801 Grand Avenue, Des Moines,Iowa 50392-1450 (“Lender”), and INLAND WESTERN CORAM PLAZA, L.L.C., aDelaware limited liability company, with an address at 2901 Butterfield Road,Oak Brook, Illinois 60523 (“Borrower”).

 

RECITALS

 

A.                                   Borrowerdesires to obtain a loan (the “Loan”) from Lender in the originalprincipal amount of $20,755,300.00 (the “Loan Amount”);

 

B.                                     Lenderis willing to make the Loan on the condition that Borrower, among other things,joins in the execution and delivery of this Agreement; and

 

C.                                     Lenderand Borrower contemplate that all or any portion of Lender’s interest in theLoan, the Loan Documents and the Environmental Indemnity may be assigned, inwhole or in part, by Lender, including without limitation, in connection with aSecuritization Transaction.

 

NOW, THEREFORE, inconsideration of the making of the Loan by Lender, and the covenants,agreements, representations and warranties set forth in this Agreement, theparties hereby covenant, agree, represent and warrant as follows:

 

ARTICLE ICERTAIN DEFINITIONS

 

“Account Collateral”has the meaning set forth in Section 5.3(A) of this Agreement.

 

“Affiliate(s)”means any person or Entity directly or indirectly controlling, controlled by,or under common control with Borrower or any person or Entity owning a materialinterest in Borrower, either directly or indirectly.

 

“Agreement” meansthis Loan Agreement, as the same may from time to time hereafter be modified,supplemented or amended.

 

“Approved AccountingMethod” has the meaning set forth in Section 5.1 of this Agreement.

 

“Assignment of Leases”means that certain Assignment of Leases and Rents, dated the date hereof,executed by Borrower and delivered to Lender as security for the Loan, as thesame may be modified, supplemented or amended.

 

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“Code” has themeaning set forth in Section 3.1(F) of this Agreement.

 

“Collateral”means, collectively, the Premises, the Account Collateral and all proceeds andproducts of the foregoing, all whether now owned or hereafter acquired, and allother property which is or hereafter may become subject to a lien in favor ofLender.

 

“Entity” means a(a) corporation, (b) limited or general partnership, (c) limited liabilitycompany, or (d) trust.

 

“EnvironmentalIndemnity” means that certain Environmental Indemnity Agreement, dated thedate hereof, executed by Borrower and delivered to Lender in connection withthe Loan, as the same may be modified, supplemented or amended.

 

“ERISA” has themeaning set forth in Section 3.1(G) of this Agreement.

 

“Event of Default”or “Events of Default” has the meaning set forth in the Mortgage.

 

“GovernmentalAuthority” means any national, federal, state, regional or localgovernment, or any other political subdivision of any of the foregoing, in eachcase with jurisdiction over Borrower, the Premises, or any Person withjurisdiction over Borrower, the Premises exercising executive, legislative,judicial, regulatory or administrative functions of or pertaining to government.

 

“Guarantor” means,individually and collectively, Inland Western Retail Real Estate Trust, Inc., aDelaware corporation.

 

“Indebtedness” hasthe meaning set forth in the Mortgage.

 

“Interest Owner(s)”means any person or entity owning an interest (directly or indirectly) inBorrower.

 

“Investor” has themeaning set forth in Section 5.5 (A) of this Agreement.  

 

“Leases” has themeaning provided in the Assignment of Leases.

 

“Lockout Date”means the earlier of: (i) the date which is two (2) years after the date of theSecuritization Transaction; or (ii) the date which is four (4) years after thedate of the first full debt service payment under the Note.

 

“Material AdverseEffect” means a material adverse effect upon (i) the business or thefinancial position or results of operation of Borrower, (ii) the ability ofBorrower to perform, or of Lender to enforce, any of the Loan Documents orEnvironmental Indemnity or (iii) the value of (x) the Collateral taken as awhole or (y) the Premises.

 

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“Mortgage” meansthe Consolidated, Amended and Restated Mortgage and Security Agreement, datedthe date hereof, executed by Borrower and delivered to Lender as security forthe Loan, as the same may be modified, supplemented or amended.

 

“Note” means andrefers to the Consolidated, Amended and Restated Secured Promissory Noteevidencing the Loan, dated as of the date hereof; made by Borrower to Lender,as such promissory note may be modified, amended, supplemented, extended orconsolidated in writing, and any note(s) issued in exchange therefore or inreplacement thereof.

 

“Person” means anyindividual, corporation, limited liability company, partnership, joint venture,estate, trust, unincorporated association, or any other Entity, any federal,state, county or municipal government or any bureau, department or agencythereof and any fiduciary acting in such capacity on behalf of any of theforegoing.

 

“Premises” has themeaning set forth in the Mortgage.

 

“Property Reserves”has the meaning set forth in Section 5.2(B) of this Agreement.

 

“Rating Agency(ies)”shall mean each statistical rating agency that has assigned a rating to anyparticipation interest, certificate or security issued in connection with aSecuritization Transaction.

 

“Rents” has themeaning provided in the Assignment of Leases.

 

“SecuritizationTransaction” has the meaning set forth in Section 5.5(A) of thisAgreement.

 

“Security Deposits”means all security deposits held or to be held with respect to the Premises,pursuant to the applicable Leases.

 

“Single-Purpose Entity”means a corporation, limited partnership, limited liability company, orbusiness trust which, at all times until the Indebtedness is paid in full (i)will be organized solely for the purpose of owning the Premises, (ii) will notengage in any business unrelated to the ownership of the Premises, (iii) willnot have any assets other than those related to the Premises, (iv) will notengage in, seek or consent to any dissolution, winding up, liquidation,consolidation or merger, and, except as otherwise expressly permitted by theLoan Documents, will not engage in, seek or consent to any asset sale, transferof partnership, membership, shareholder, beneficial interests, or amendment ofits limited partnership agreement, articles of incorporation, articles of organization,certificate of formation, operating agreement, trust agreement, or trustcertificate (as applicable), (v) will not fail to correct any knownmisunderstanding regarding the separate identity of such entity, (vi) withoutthe unanimous consent of all of the partners, directors, members, beneficialowners and trustees, as applicable, will not with respect to itself or to anyother entity in which it has a direct or indirect legal or beneficial ownershipinterest (a) file a bankruptcy, insolvency or reorganization petition orotherwise institute insolvency proceedings or otherwise seek any relief underany laws relating to the relief from debts or the protection of debtorsgenerally; (b) seek or consent to the

 

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appointment of areceiver, liquidator, assignee, trustee, sequcstrator, custodian or any similarofficial for such entity or all or any portion of such entity’s properties; (c)make any assignment for the benefit of such entity’s creditors; or (d) take anyaction that might cause such entity to become insolvent, (vii) will maintainits accounts, books and records separate from any other person or entity,(viii) will maintain its books, records, resolutions and agreements as officialrecords, (ix) has not commingled and will not commingle its funds or assetswith those of any other person or entity, (x) has held and will hold its assetsin its own name, (xi) will conduct its business in its name, (xii) willmaintain its financial statements, accounting records and other entitydocuments separate from any other person or entity, (xiii) will pay its ownliabilities out of its own funds and assets, (xiv) will observe all corporate,limited liability company and partnership formalities, as applicable, includingany regarding the maintenance of minimum capital to the extent required by thelaws of the jurisdiction in which such entity is organized, (xv) has maintainedand will maintain an arms-length relationship with its affiliates, (xvi) ifsuch entity owns the Premises, will have no indebtedness other than theIndebtedness and commercially reasonable unsecured trade payables in theordinary course of business relating to the ownership and operation of thePremises which are paid within sixty (60) days of the date incurred, (xvii)will not assume or guarantee or become obligated for the debts of any otherperson or entity or hold out its credit as being available to satisfy theobligations of any other person or entity, except for the Indebtedness, (xviii)will not acquire obligations or securities of its partners, members, trustees,beneficial owners or shareholders, (xix) will allocate fairly and reasonablyshared expenses, including, without limitation, shared office space and useseparate stationery, invoices and checks, (xx) will not pledge its assets forthe benefit of any other person or entity, (xxi) will hold itself out andidentify itself as a separate and distinct entity under its own name and not asa division or part of any other person or entity, (xxii) will not make loans toany person or entity, (xxiii) will not identify its partners, members,shareholders, trustees, beneficiaries or any affiliates of any of them as adivision or part of it, (xxiv) will not enter into or be a party to, any transactionwith its partners, members, shareholders, beneficiaries, trustees or itsaffiliates except in the ordinary course of its business and on terms which areintrinsically fair and are no less favorable to it than would be obtained in acomparable arms-length transaction with an unrelated third party, (xxv) willpay the salaries of its own employees from its own funds, (xxvi) if such entityis a limited liability company, limited partnership, or business trust thensuch entity shall continue and not dissolve whether as a consequence ofbankruptcy or insolvency of one or more of the members, general partners, ortrustees, as applicable, or otherwise, for so long as a solvent managingmember, general partner, or trustee, as applicable, exists and, subject toapplicable law, dissolution of the entity shall not occur so long as the entityremains owner of the Premises subject to the Mortgage and such entity’sorganizational documents shall contain such provision, (xxvii) if such entityis a limited liability company with two (2) or more members, it may beorganized and existing under the laws of any state, and (xxviii) if such entityis a limited liability company with only a single member then it must beorganized and existing under the laws of the state of Delaware, and upon theoccurrence of any event that causes the member to cease to be a member of thelimited liability company (other than (a) upon an assignment by the member ofall of its limited liability company interest in the limited liability companyand the admission of the transferee pursuant to the operating agreement, or (b)the resignation of the member and the admission of an additional member of thelimited liability company), each person acting as a Special Member pursuant tothe operating agreement shall, without any action of any person andsimultaneously with the member ceasing

 

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to be a member of thelimited liability company, automatically be admitted to the limited liabilitycompany as a Special Member and shall continue the limited liability companywithout dissolution.  No Special Membermay resign from the limited liability company or transfer its rights as SpecialMember unless a successor Special Member has been admitted to the limitedliability company as Special Member by executing a counterpart to the operatingagreement; provided, however, the Special Members shall automatically cease tobe members of the limited liability company upon the admission to the limitedliability company of a substitute member.  Each Special Member shall be a member of thelimited liability company that has no interest in the profits, losses andcapital of the limited liability company and has no right to receive anydistributions of limited liability company assets.  Pursuant to Section 18-301 of theDelaware Limited Liability Company Act (the “Act”), a Special Member shall notbe required to make any capital contributions to the limited liability companyand shall not receive a limited liability company interest in the limitedliability company.  A Special Member, inits capacity as Special Member, may not bind the limited liability company,Except as required by any mandatory provision of the Act, each Special Member,in its capacity as Special Member, shall have no right to vote on, approve orotherwise consent to any action by, or matter relating to, the limitedliability company, including, without limitation, the merger, consolidation orconversion of the limited liability company.  The member shall not, so long as anyobligation to the Lender is outstanding, amend, alter, change or repeal thedefinition of “Special Member” or any sections that relate to Special Membersof the operating agreement without the unanimous written consent of allmember(s) and Special Members.  For solong as any obligation to Lender is outstanding, notwithstanding any otherprovision of the operating agreement and any provision of law that otherwiseempowers the limited liability company or any member or any other person to thecontrary, no member nor any other person so authorized shall permit the limitedliability company, without the prior unanimous written consent of the memberand all Special Members, to take any bankruptcy-related action.  As long as any obligation to Lender isoutstanding, the member shall cause the limited liability company at all timesto have at least one Special Member who will be appointed by the member.  In the event of a vacancy in the position ofSpecial Member, the member shall, as soon as practicable, appoint a successorSpecial Member.  One or more additionalmembers of the limited liability company may be admitted to the limitedliability company with the written consent of the member; provided, however,that, notwithstanding the foregoing, so long as any obligation to the Lenderremains outstanding, no additional member may be admitted to the limitedliability company unless permitted by the Loan Documents.  The member shall agree that the operatingagreement constitutes a legal, valid and binding agreement of the member, andis enforceable against the member by the Special Members, in accordance withits terms.  In addition, the SpecialMembers shall be intended beneficiaries of the operating agreement.  For purposes hereof the term “SpecialMember” means a person or entity who is not a member of the limitedliability company but has agreed to act as a Special Member under the terms ofthe operating agreement with only the rights and duties expressly set forth inthe operating agreement and only upon the occurrence of certain events thatcause the member to cease to be a member of the limited liability company.

 

“State” means thestate or commonwealth where the Premises is located.

 

“Taking” has themeaning provided in the Mortgage.

 

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“Tax and InsuranceEscrows” has the meaning set forth in Section 5.2(A) of this Agreement.

 

“Title InsurancePolicy” means a loan policy of title insurance for the Premises issued byChicago Title Insurance Company Title Insurance Company with respect to thePremises in an amount (not less than the Loan Amount) acceptable to Lender andinsuring the first priority lien in favor of Lender created by the Mortgage, ineach case acceptable to Lender in Lender’s discretion.

 

“UCC” means, withrespect to any Collateral, the Uniform Commercial Code in effect in thejurisdiction in which the relevant Collateral is located.

 

ARTICLE IIGENERAL TERMS

 

Section 2.1                                      LoanCommitment: Disbursement to Borrower: Prepayment.

 

(A)                              TheLoan.  Subject to, and upon the termsand conditions set forth herein, Lender hereby agrees to make the Loan toBorrower on the Closing Date, in the Loan Amount, which Loan will mature on theMaturity Date.

 

(B)                                Disbursementto Borrower.  Borrower may requestand receive only one borrowing in respect of the Loan, which will not besubject to future advances and any amount borrowed and repaid in respect of theLoan may not be reborrowed.  Borrowershall, on the Closing Date, receive the Loan Amount, subject to the directiongiven by Borrower as to the application of Loan proceeds.

 

(C)                                TheNote and Other Loan Documents.  TheLoan shall be evidenced by the Note (made in the Loan Amount) and evidenced orsecured by the other Loan Documents executed and delivered in connection withthe Loan.  The Note shall bear interestas provided in the Note, and shall be subject to the payment of interest andthe repayment and prepayment of the Indebtedness as provided for herein.  The Note shall be entitled to the benefits ofthis Agreement and shall be secured by the Mortgage and the other LoanDocuments given to further secure the Loan.

 

(D)                               MakeWhole Premium In the event an Event of Default and acceleration occur,Borrower shall pay to Lender a “Make Whole Premium.” The Make WholePremium shall be the greater of one percent (1%) of the outstanding principalamount of the Loan or a premium calculated as provided in subparagraphs(i)-(iii) below:

 

(i)                                     Determinethe “Reinvestment Yield.” The Reinvestment Yield will be equal to theyield on the U.S. Treasury Issue* published one week prior to the date ofprepayment and converted to an equivalent monthly compounded nominal yield.

 

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At this time there is nota U.S. Treasury Issue for this prepayment period.  At the time of prepayment, Lender shall selectin its sole and absolute discretion a U.S. Treasury Issue with similarremaining time to maturity as the Note.

 

(ii)                                  Calculatethe “Present Value of the Loan.” The Present Value of the Loan is thepresent value of the payments to be made in accordance with the Note (allinstallment payments and any remaining payment due on the Maturity Date)discounted at the Reinvestment Yield for the number of months remaining fromthe date of prepayment to the Maturity Date.

 

(iii)                               Subtractthe amount of the prepaid proceeds from the Present Value of the Loan as of thedate of prepayment.  Any resultingpositive differential shall be the premium.

 

Notwithstanding anythingin this Section 2.1(D) to the contrary, during the last 90 days prior tothe Maturity Date, the Make Whole Premium shall not be subject to the onepercent (1%) minimum and shall be calculated only as provided in (i) through(iii) above.

 

(E)                                 LoanPrepayment.

 

(i)                                     Exceptas otherwise provided in Section 2.1(E) (ii) below, Borrower shall nothave the right or privilege to prepay all or any portion of the unpaidprincipal balance of the Note until the date which is three (3) months prior tothe Maturity Date. From and after such date, provided there is no Event ofDefault, the principal balance of the Note may be prepaid, at par, in whole butnot in part, upon: (a) not less than 15 days prior written notice to Lenderspecifying the date on which prepayment is to be made, which prepayment mustoccur no later than the fifth day of any such month unless Borrower pays toLender all interest that would have accrued for the entire month in which theNote is prepaid absent such prepayment.  Ifprepayment occurs on a date other than a scheduled monthly payment date,Borrower shall make the scheduled monthly payment in accordance with the termsof the Note, regardless of any prepayment; (b) payment of all accrued andunpaid interest on the outstanding principal balance of the Note to and includingthe date on which prepayment is to be made; and (c) payment of all otherIndebtedness then due under the Loan Documents.  Lender shall not be obligated to accept anyprepayment of the principal balance of the Note unless it is accompanied by allsums due in connection therewith;

 

(ii)                                  Inaddition to the Loan Prepayment rights set forth in paragraph 2.1 (E)(i) hereinabove,after the Lock Out Date but prior to the date which is three (3) months priorto the Maturity Date, Borrower may prepay the principal balance of the Note,provided there is no Event of Default, in whole but not in part, upon (a) notless than 30 days prior written notice to the Lender specifying the date onwhich prepayment is to be made, which prepayment must

 

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occur no later than thefifth day of any such month unless Borrower pays to Lender all interest thatwould have accrued for the entire month in which the Note is prepaid, absentsuch prepayment.  If prepayment occurs ona date other than a scheduled monthly payment date, Borrower shall make thescheduled monthly payment in accordance with the terms of the Note regardlessof any prepayment; (b) payment of all accrued and unpaid interest on theoutstanding principal balance of the Note to and including the date on whichprepayment is made, (c) payment of all other Indebtedness then due under theLoan Documents, and (d) payment of a Make Whole Premium.  Lender shall not be obligated to accept anyprepayment of the principal balance of the Note unless it is accompanied by allsums due in connection therewith.

 

ARTICLE IIIREPRESENTATIONS AND WARRANTIES

 

In order to induce Lenderto make the Loan to Borrower and in consideration of Lender’s reliance thereon,Borrower hereby represents, warrants and covenants, as follows:

 

Section 3.1.                                   Representationsand Warranties Relating to Borrower.

 

(A)                              Organization.

 

(i)                                     Borroweris and, until the Indebtedness is paid in full, will continue to (a) be a dulyorganized and validly existing Entity in good standing under the laws of thestate of its formation, (b) if applicable, be duly qualified as a foreignEntity in each jurisdiction in which the nature of its business, the Premisesor any of the other Collateral makes such qualification necessary or desirable,(c) have the requisite Entity power and authority to carry on its business asnow being conducted, (d) have the requisite Entity power to execute, deliverand perform its obligations under the Loan Documents and EnvironmentalIndemnity, and (e) comply with the provisions of all of its organizationaldocuments and the Legal Requirements of the state of its formation.

 

(ii)                                  Borrower,until the Indebtedness is paid in full, will continue to be a Single-PurposeEntity.

 

(B)                                Authorization. The execution, delivery and performanceof the Loan Documents and Environmental Indemnity and the borrowing evidencedby the Note (i) are within the applicable powers of the Borrower and each otherparty to the Loan Documents and Environmental Indemnity (other than Lender);(ii) have been authorized by all requisite action; (iii) have received allnecessary approvals and consents, corporate, governmental or otherwise; (iv)will not violate, conflict with, result in a breach of or constitute (withnotice or lapse of time or both) a default under any provision of law, anyorder or judgment of any court or Governmental Authority, the articles ofincorporation, by-laws, partnership, operating or trust agreement, or othergoverning instrument of Borrower or any other party to the Loan Documents orthe Environmental Indemnity (other than Lender), or any

 

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indenture, agreement orother instrument to which Borrower or any other party to the Loan Documents andEnvironmental Indemnity (other than Lender) is a party or by which each suchparty or any of their respective assets or the Premises is or may be bound oraffected; (v) will not result in the creation or imposition of any lien, chargeor encumbrance whatsoever upon any of such party’s assets, except the liens andsecurity interests created by the Loan Documents; and (vi) will not require anyauthorization or license from, or any filing with, any Governmental Authorityor other body (except for the recordation of the Mortgage and any other LoanDocument intended to be recorded in the appropriate land records in the Stateand except for UCC filings relating to the security interest created hereby).

 

(C)                                Enforceability. The Loan Documents and EnvironmentalIndemnity constitute the legal, valid and binding obligations of Borrower andthe other parties to the Loan Documents and Environmental Indemnity (other thanLender), enforceable against each such party in accordance with theirrespective terms, except as may be limited by (i) bankruptcy, insolvency,reorganization or other similar laws affecting the rights of creditorsgenerally, and (ii) general principles of equity (regardless of whetherconsidered in a proceeding in equity or at law).  Such Loan Documents and Environmental Indemnityare, as of the date hereof, not subject to any right of rescission, set-off,counterclaim or defense by Borrower or any other party to the Loan Documentsand Environmental Indemnity (other than Lender), including the defense ofusury, nor will the operation of any of the terms of the Note, the Mortgage, orsuch other Loan Documents and Environmental Indemnity, or the exercise of anyright thereunder, render the Mortgage unenforceable against Borrower, in wholeor in part, or subject to any right of rescission, set-off, counterclaim ordefense by Borrower, including the defense of usury, and Borrower nor any otherparty to the Loan Documents and Environmental Indemnity (other than Lender)have asserted any right of rescission, set-off, counterclaim or defense withrespect thereto.

 

(D)                               FinancialCondition.  (i) Borrower is solventand no bankruptcy, reorganization, insolvency or similar proceeding under anystate or federal law with respect to Borrower has been initiated, (ii) Borrowerhas not entered into this Loan transaction with the intent to hinder, delay ordefraud any creditor, (iii) Borrower has received reasonably equivalent valuefor the making of the Loan and (iv) Borrower has no known contingentliabilities which could have a Material Adverse Effect.

 

(E)                                 Litigation. There are no actions, suits orproceedings at law or in equity by or before any Governmental Authority nowpending and served or, to the knowledge of Borrower, threatened againstBorrower or the Premises, that would have a Material Adverse Effect.

 

(F)                                 NotForeign Person.  Borrower is not a “foreignperson” within the meaning of §1445(f)(3) of the Internal Revenue Code of 1986,as amended, and as it may be further amended from time to time, any successorstatutes thereto, together with applicable U.S. Department of Treasuryregulations issued pursuant thereto in temporary or final form (the “Code”).

 

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(G)                                ERISA. As of the date hereof and until theIndebtedness is paid in full: (i) Borrower is not and will not be an “employeebenefit plan” as defined in Section 3(3) of the Employee Retirement IncomeSecurity Act of 1974, as amended (“ERISA”), which is subject to Title Iof ERISA, (ii) the assets of Borrower do not and will not constitute “planassets” of one or more such plans for purposes of Title I of ERISA, (iii)Borrower is not and will not be a “governmental plan” within the meaning of Section 3(32)of ERISA, (iv) transactions by or with Borrower are not and will not be subjectto state statutes applicable to Borrower regulating investments of andfiduciary obligations with respect to governmental plans, (v) Borrower has madeand will continue to make all required contributions to all employee benefitplans, if any, established for or on behalf of Borrower or to which Borrower isrequired to contribute (vi) Borrower has and will continue to administer eachsuch plan, if any, in accordance with its terms and the applicable provisionsof ERISA and any other federal or state law; and (vii) Borrower has not andwill not permit any liability under Sections 4201, 4243, 4062 or 4069 of TitleIV of ERISA or taxes or penalties relating to any employee benefit plan ormulti-employer plan to become delinquent or assessed, respectively, which wouldhave a Material Adverse Effect.

 

(H)                               InvestmentCompany Act; Public Utility Holding Company Act.  Borrower is not and, until the Indebtedness ispaid in full, Borrower will not be (i) an “investment company” or a company “controlled”by an “investment company,” within the meaning of the Investment Company Act of1940, as amended, (ii) a “holding company” or a “subsidiary company” of a “holdingcompany” or an “affiliate” of either a “holding company” or a “subsidiarycompany” within the meaning of the Public Utility Holding Company Act of 1935,as amended, or (iii) subject to any other federal or state law or regulationwhich purports to restrict or regulate its ability to borrow money.

 

(I)                                    Agreements. Borrower is not a party to any agreementor instrument or subject to any restriction which is likely to have a MaterialAdverse Effect. Borrower is not in default in any respect in the performance,observance or fulfillment of any of the material obligations, covenants orconditions contained in any indenture, agreement or instrument to which it is aparty or by which Borrower or the Premises is bound.

 

(J)                                   Locationof Chief Executive Offices and Borrower’s Trade Names.  The location of Borrower’s principal place ofbusiness and chief executive office is 2901 Butterfield Road, Oak Brook,Illinois 60523, and Borrower has no other places of business.  Borrower does not conduct its business “alsoknown as”, “doing business as” or under any other name.  Borrower shall not change its principal placeof business or chief executive office or conduct its business under any othername, without first notifying Lender in writing at least thirty (30) days priorto any such change.

 

(K)                               NoDefaults.  No default or Event ofDefault exists under or with respect to any Loan Document.

 

(L)                                 LaborMatters.  Borrower is not a party toany collective bargaining agreements.

 

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(M)                            IntellectualProperty.  All trademarks, tradenames and service marks that Borrower owns or has pending, if any, or underwhich Borrower is licensed, if any, are in good standing and uncontested.  There is no right under any trademark, tradename or service mark necessary to the business of Borrower as presentlyconducted or as Borrower contemplates conducting its business.  To the best of Borrower’s knowledge, Borrowerhas not infringed, is not infringing, and has not received notice ofinfringement with respect to asserted trademarks, trade names and service marksof others.  To Borrower’s knowledge,there is no infringement by others of trademarks, trade names and service marksof Borrower.

 

Section 3.2.                                   Representationsand Warranties Relating to The Premises.

 

(A)                              TitleIssues.

 

(i)                                     Borrowerowns good, indefeasible, marketable and insurable fee simple title to thePremises, free and clear of all liens, other than the Permitted Encumbrancesapplicable to the Premises, and until the Indebtedness is paid in full Borrowershall not permit any liens (other than the Permitted Encumbrances, any titlematters or exceptions approved in writing by Lender subsequent to the datehereof, taxes which are not yet due or delinquent, or any lien that iscontested by Borrower in accordance with and subject to paragraph 1(e) of theMortgage) to attach to the Premises.  Borrowerhas good title to the Premises and has the right to mortgage, grant, bargain,sell, pledge, assign, warrant, transfer and convey the same.  There are not now, and until the Indebtednessis paid in full, there will not be any outstanding options or agreements topurchase or rights of first refusal affecting the Premises (except for therights of Major Tenant under the Major Tenant Lease and as otherwise permittedin accordance with and subject to Paragraph 2(f) of the Mortgage).  The Permitted Encumbrances do not and, untilthe Indebtedness is paid in full, will not materially and adversely affect (a)the ability of Borrower to pay in full all sums due under the Note or any ofits other obligations in a timely manner (b) the use of the Premises for theuse currently being made thereof, the operation of the Premises as currentlybeing operated or the value of the Premises, or (c) the value or marketabilityof the Premises.

 

(ii)                                  NoTaking has been commenced or, to Borrower’s knowledge, is contemplated with respectto all or any portion of the Premises or for the relocation of roadwaysproviding access to the Premises.

 

(iii)                               Allcosts and expenses of any and all labor, materials, supplies and equipment usedin the construction of the Improvements have been paid in full.  Borrower has paid in full for, and is theowner of, all furnishings, fixtures and equipment (other than tenants’property) used in connection with the operation of the Premises, free and clearof any and all security interests, liens or encumbrances, except the lien andsecurity interest created by the Loan Documents securing the Loan.

 

(iv)                              ThePremises is and, until the Indebtedness is paid in full, will be assessed forreal estate tax purposes as one or more wholly independent tax lot or lots,separate from any adjoining land or improvements not constituting a part ofsuch lot or lots,

 

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and no other land orimprovements is and, until the Indebtedness is paid in full, will be assessedand taxed together with the Premises or any portion thereof.

 

(v)                                 Exceptas disclosed in the Title Insurance Policy, there are no pending or, to theknowledge of Borrower, proposed special or other assessments for publicimprovements or otherwise affecting the Premises, nor, to the knowledge ofBorrower, are there any contemplated improvements to the Premises that mayresult in such special or other assessments and until the Indebtedness is paidin full, Borrower shall not permit any taxes, assessments, fees, water, seweror other charges by Governmental Authorities relating to the Premises to becomedelinquent.

 

(vi)                              TheMortgage creates a valid and enforceable first mortgage lien on the Premises assecurity for the repayment of the Indebtedness, subject only to the PermittedEncumbrances, any title matters or exceptions approved in writing by Lendersubsequent to the date hereof, and taxes which are not yet due or delinquent.  Each Loan Document securing the Loanestablishes and creates a valid, effective, and enforceable lien on and asecurity interest in, or claim to, the rights and property described therein.  All personal property and fixtures covered byeach such Loan Document are subject to a UCC financing statement filed and/orrecorded, as appropriate, or irrevocably delivered to an authorized agent ofthe company issuing the Title Insurance Policy for such recordation or filingin all places necessary to perfect a valid first priority lien with respect tothe rights and property that are the subject of each such Loan Document to theextent governed by the UCC.

 

(B)                                Statusof the Premises.

 

(i)                                     Noportion of the Improvements is located in an area identified by the Secretaryof Housing and Urban Development or the Federal Emergency Management Agency orany successor thereto as an area having special flood or seismic hazards, or,if now or hereafter located within any such area, Borrower has obtained andwill maintain the applicable flood hazard and/or earthquake insuranceprescribed in the Mortgage.

 

(ii)                                  Borrowerhas obtained and, until the Indebtedness is paid in full, will maintain allnecessary certificates, licenses, permits and other approvals, governmental andotherwise, necessary for the operation of the Premises; and the conduct of itsbusiness and all required zoning, building code, land use, environmental andother similar permits or approvals, all of which are and, until theIndebtedness is paid in full, will remain in full force and effect and notsubject to revocation, suspension, forfeiture or modification.

 

(iii)                               Asof the date hereof, and until the Indebtedness is paid in full: (a) thePremises and the present and contemplated use, occupancy, operation andconstruction thereof are and will remain in full compliance with all covenantsand restrictions and all applicable licenses, permits and other approvals andall zoning ordinances, building codes, land use and environmental laws andother similar laws, (b) none of the Improvements lie or will lie outside of theboundaries of the Land or the applicable building restriction lines to theextent that such would have a Material Adverse Effect, (c) no improvements onadjoining properties (now or will) materially encroach upon the Land.

 

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(iv)                              ThePremises is served by all utilities required for the current or contemplateduse thereof.  All utility service isprovided by public utilities and the Premises has accepted or is equipped toaccept such utility service.  ThePremises is served by public water and sewer systems.  All of the foregoing utilities are located inthe public right-of-way abutting the Premises, and all such utilities areconnected so as to serve the Premises either (a) without passing over otherproperty or, (b) if such utilities pass over other property, they do sopursuant to valid easements.

 

(v)                                 Allpublic roads and streets necessary for service of and access to the Premisesfor the current or contemplated use thereof have been completed, areserviceable and all-weather and are physically and legally open for use by thepublic.

 

(vi)                              ThePremises is free from (a) damage caused by fire or other casualty; and (b)material structural defects; and all building systems contained therein are ingood working order in all material respects, subject to ordinary wear and tear.

 

(vii)                           Any andall liquid and solid waste disposal, septic and sewer systems located on thePremises are in a good and safe condition and repair and in compliance with allLegal Requirements.

 

(C)                                Statusof the Leases and Rents.

 

(i)                                     NoPrior Assignment.  As of the datehereof, (i) Lender is the assignee of Borrower’s interest under the Leases, and(ii) there are no prior assignments of the Leases or any portion of the Rentsdue and payable or to become due and payable which are presently outstanding.

 

(ii)                                  SecurityDeposits.  As of the date hereof,Borrower is in compliance with all applicable Legal Requirements relating toall Security Deposits.

 

(iii)                               Leases. (a) Borrower is the sole owner of theentire lessor’s interest in the Leases; (b) the Leases are the valid, bindingand enforceable obligations of Borrower and the applicable tenant or lesseethereunder; (c) the terms of all alterations, modifications and amendments tothe Leases are reflected in the certified rent roll delivered to and approvedby Lender; (d) none of the Rents reserved in the Leases have been assigned orotherwise pledged or hypothecated other than to Lender; (e) none of the Rentshave been collected for more than one (1) month in advance; (f) the premisesdemised under the Leases have been completed and the tenants under the Leaseshave accepted the same and have taken possession of the same on a rent-payingbasis; (g) there exists no offset or defense to the payment of any portion ofthe Rents; (h) no Lease contains an option to purchase, right of first refusalto purchase, expansion right, or any other similar provision; and (i) no Personhas any possessor interest in, or right to occupy the Premises, except underand pursuant to a Lease; and (j) all leasing broker fees and commissionspayable by Borrower with respect to the Lease(s) have been paid in full, incash or other form of immediately available funds.

 

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Section 3.3                                      Fulland Accurate Disclosure.  Nostatement of fact made by or on behalf of Borrower in the Loan Documents, theEnvironmental Indemnity or in any other document or certificate delivered toLender by Borrower contains any untrue statement of a material fact or omits tostate any material fact necessary to make statements contained herein ortherein not misleading.  There is no factpresently known to Borrower which has not been disclosed to Lender which willhave a Material Adverse Effect, nor as far as Borrower can foresee, might havea Material Adverse Effect.

 

Section 3.4.                                   Survivalof Representations and Warranties.  Borroweragrees that (A) all of the representations and warranties of Borrower set forthin this Agreement, in the other Loan Documents and Environmental Indemnitydelivered as of the date hereof are made as of the date hereof (except asexpressly otherwise provided) and (B) all representations, warranties andcovenants made by Borrower shall survive the delivery of the Note and continuefor so long as any Indebtedness remains owing, provided, however,that the representations and warranties set forth in the EnvironmentalIndemnity shall survive in perpetuity and shall not be subject to thelimitation of liability provisions set forth in the Note.  All representations, warranties, covenants andagreements made in this Agreement or in the other Loan Documents shall bedeemed to have been relied upon by Lender notwithstanding any investigationheretofore or hereafter made by Lender or on its behalf.

 

ARTICLE IVDEFAULTS AND REMEDIES

 

Section 4.1.                                   Remedies. Upon the occurrence of an Event ofDefault, all or any one or more of the rights, powers and other remediesavailable to Lender against Borrower under this Agreement, the Note, theMortgage or any of the other Loan Documents, or at law or in equity may beexercised by Lender at any time and from time to time, without notice ordemand, whether or not all or any portion of the Indebtedness shall be declareddue and payable, and whether or not Lender shall have commenced any foreclosureproceeding or other action for the enforcement of its rights and remedies underany of the Loan Documents with respect to the Premises or all or any portion ofthe Collateral.  Any such actions takenby Lender shall be cumulative and concurrent and may be pursued independently,singly, successively, together or otherwise, at such time and in such order asLender may determine in its discretion, to the fullest extent permitted by law,without impairing or otherwise affecting the other rights and remedies ofLender permitted by law, equity or contract or as set forth herein or in theother Loan Documents.

 

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ARTICLE VSPECIAL PROVISIONS

 

Section 5.1.                                   FinancialReporting.  Borrower shall keepadequate books and records of account in accordance with generally acceptedaccounting principles or in accordance with other methods of accountingacceptable to Lender in its sole discretion, consistently applied (“ApprovedAccounting Method”) and shall furnish to Lender the following, which shallbe prepared, dated and certified by Borrower as true, correct and complete inthe form required by Lender, unless otherwise specified below:

 

(A)                              Within90 days after the end of each fiscal year for Borrower, detailed analyticalfinancial reports for Borrower covering the full and complete operation of thePremises, prepared in accordance with the Approved Accounting Method,including, without limitation, a balance sheet, income and expense statements(including monthly income and expense amounts for each of the preceding twelve(12) months);

 

(B)                                Within15 days after any written request by Lender, Borrower shall furnish to Lender,for the most recently completed fiscal year, a combined or consolidated federalincome tax return filed for Borrower and IWRREC.  Said information shall be subject to Lender’sreview;

 

(C)                                Within15 days after any written request by Lender, a detailed budget in a format andwith content reasonably acceptable to Lender, to include, without limitation, acomparison showing corresponding information for Borrower’s preceding fiscalyear;

 

(D)                               Withinninety (90) days after the end of each fiscal year of Borrower, a detailed rentroll stating the leasing status of the Premises as of the end of such year identifyingthe lessee (and assignee, subtenants and licensees, if any) and location ofdemised premises; square footage leased; base and additional rental amountsincluding any increases; rental concessions, allowances, abatements and/orrental deferments; pass-through amounts; purchase options; commencement andexpiration dates; early termination dates; renewal options and annual renewalrents; total net rentable area of the Premises; the existence of anyaffiliation between Borrower and tenant; a detailed listing of tenant defaults;and within fifteen (15) days of Lender’s request, a listing of sales volumesattained by lessees of the Premises under percentage leases for the immediatelypreceding year and an aged accounts receivable report;

 

(E)                                 Withinthirty (30) days after the end of each fiscal quarter of Borrower, the reportsdescribed in Sections 5.1 (A) and (D) above, prepared on both a quarterly andyear- to-date basis.  Said reports may beinternally prepared by Borrower;

 

Section 5.2.                                   Reservesand Cash Management.

 

(A)                              Uponthe occurrence of an Event of Default, Borrower shall deposit with and pay toLender, on each payment date specified in the Note, sums calculated by Lenderfor

 

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payment of: (i) theestimated taxes and assessments assessed or levied against the Premises, and(ii) the estimated premiums for insurance required by the Loan Documents,excluding commercial general liability insurance (collectively, the “Tax andInsurance Escrows”).  Lender shalluse the Tax and Insurance Escrows to pay the taxes, assessments and premiumswhen the same become due.  Borroweragrees it is liable for any taxes, assessments and/or insurance premiumsidentified as being paid for by Borrower on Lender’s written Tax and InsuranceEscrow analysis previously provided to Borrower and Borrower agrees to make anysuch payments when the same become due.  Borrowershall procure and deliver to Lender, in advance, statements for such charges.  If the total payments made by Borrower underthis Section exceed the amount of payments actually made by Lender fortaxes, assessments and insurance premiums, such excess shall be credited byLender on subsequent deposits to be made by Borrower.  If, however, the Tax and Insurance Escrows areinsufficient to pay the taxes, assessments and insurance premiums when the sameshall be due and payable, Borrower will pay to Lender any amount necessary tomake up the deficiency, within five (5) business days before the date whenpayment of such taxes, assessments and insurance premiums shall be due. If atany time Borrower shall tender to Lender, in accordance with the provisions ofthe Note and the other Loan Documents, full payment of the entire Indebtedness,Lender shall, in computing the amount of such Indebtedness, credit to theaccount of Borrower any balance remaining in the Tax and Insurance Escrows.  If there is an Event of Default resulting in apublic sale of the Premises, or if Lender otherwise acquires the Premises afteran Event of Default, Lender shall apply, at the time of commencement of suchproceedings, or at the time the Premises is otherwise acquired, the thenremaining balance in the Tax and Insurance Escrows as a credit toward anydelinquent or accrued taxes and then, in such priority as Lender elects, to theother Indebtedness.

 

Section 5.3                                      SecurityAgreement.

 

(A)                              Pledgeof Accounts.  To secure the full andpunctual payment and performance of all of the Indebtedness, Borrower herebyassigns, conveys, pledges and transfers to Lender and grants to Lender a firstand continuing lien on and security interest in and to all of Borrower’s right,title and interest in (i) the Tax and Insurance Escrows; (ii) all funds fromtime to time deposited or held in any of the foregoing, all investments madewith respect thereto and all interest, if any, earned thereon; (iii) all otheramounts required under the Loan Documents to be deposited with and/or held byLender, including but not limited to insurance proceeds and proceeds payable toBorrower pursuant to a Taking; and (iv) to the extent not covered by theclauses (i)–(iii) above, all products and proceeds of any or all of theforegoing (collectively, the “Account Collateral”).  Borrower agrees that the Account Collateralshall not constitute any deposit or account of the Borrower or moneys to whichthe Borrower is entitled upon demand, or upon the mere passage of time or sumsto which Borrower is entitled to any interest or crediting of interest byvirtue of Lender’s mere possession of such deposits.  Lender shall not be required to segregate anyAccount Collateral and may hold such deposits in its general account or anyother account and may commingle such deposits with any other moneys of Lenderor moneys which Lender is holding on behalf of any other person or entity.

 

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(B)                                LenderAppointed Attorney-In-Fact.  Borrowerhereby irrevocably constitutes and appoints Lender as Borrower’s true andlawful attorney-in-fact, with full power of substitution, at any time after theoccurrence of an Event of Default to execute, acknowledge and deliver any instrumentsand to exercise and enforce every right, power, remedy, option and privilege ofBorrower with respect to the Account Collateral, and do in the name, place andstead of Borrower, all such acts, things and deeds for and on behalf of and inthe name of Borrower with respect to the Account Collateral, which Borrowercould or might do or which Lender may deem necessary or desirable to more fullyvest in Lender the rights and remedies provided for herein with respect to theAccount Collateral and to accomplish the purposes of this Agreement.  The foregoing powers of attorney areirrevocable and coupled with an interest.  Beyond the exercise of reasonable care in thecustody thereof, Lender shall not have any duty as to any Account Collateral orany income thereon in Lender’s possession or control or in the possession orcontrol of any agents for, or of Lender, or the preservation of rights againstany Person or otherwise with respect thereto, it being understood that so longas Lender exercises reasonable care, Lender shall not be liable or responsiblefor any loss, damage or diminution in value by reason of the act or omission ofLender, or Lender’s agents, employees or bailees.

 

Section 5.4                                      Assignmentand Assumption of the Loan.  Borrowershall not Transfer all or any portion of the Premises nor shall any of theInterest Owners Transfer all or any portion of their equity held in Borrower toanother Person(s) except as may be expressly permitted in the Mortgage.

 

Section 5.5                                      Transferof Loan by Lender.

 

(A)                              Lendermay, at any time, sell, transfer or assign the Note, the other Loan Documentsand the Environmental Indemnity, and any or all servicing rights with respectthereto, or grant participations therein or issue mortgage pass-throughcertificates or other securities evidencing a beneficial interest in a rated orunrated public offering or private placement (each, as designated by Lender, a “SecuritizationTransaction”).  Lender may forward toeach purchaser, transferee, assignee, servicer, participant, investor in suchSecuritization Transaction or any Rating Agency (as hereinafter defined) ratingsuch Securitization Transaction (collectively, the “Investor”) and eachprospective Investor and the advisor of each of the foregoing, all documentsand information which Lender now has or may hereafter acquire relating to theIndebtedness and to Borrower, Guarantor, and the Premises, whether furnished byBorrower, Guarantor or otherwise, as Lender determines necessary or desirable.

 

(B)                                Borroweragrees that it shall cooperate with Lender and use Borrower’s reasonableefforts to facilitate the consummation of any Securitization Transaction,including, without limitation, by: (i) promptly and reasonably providing suchinformation as may be requested in connection with the preparation of a privateplacement memorandum, prospectus or a registration statement required toprivately place or publicly distribute the securities in a manner which doesnot conflict with federal or state securities laws; (ii) providing within 10days of Lender’s request the reports described in Section 5.1.(D) aboveand monthly income and expense information for each of the preceding 12 months;and (iii)

 

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permitting Lender, or itsdesignees to inspect the Premises during normal business hours upon reasonableadvance notice from Lender requesting same and to discuss with Borrower or itsagents information and documentation with respect to the operation andmanagement of the Premises.  Lender shallmake reasonable efforts to ensure that the lessees’ business operations are notdisrupted.

 

(C)                                Lenderagrees that any costs and expenses incurred by Lender under this Section 5.5shall be the responsibility of and paid for by Lender.

 

Section 5.6                                      InsuranceRequirements.  Borrower shall at alltimes keep or cause to be kept in full force and effect the insurance requiredby the Mortgage.

 

Section 5.7                                      Management;of Premises.  If the Premises aremanaged by Borrower or an affiliate of Borrower, then upon the occurrence of anEvent of Default, Lender may request, upon thirty (30) days prior writtennotice to Borrower, that Borrower select a successor manager not affiliatedwith Borrower to manage the Premises. If a successor manager is requiredpursuant hereto, Borrower shall immediately seek to appoint a successor manageracceptable to Lender in Lender’s reasonable discretion which successor managershall be a reputable management company having at least seven (7) years’experience in the management of commercial properties with similar uses as thePremises and in the jurisdiction in which the Premises is located and shall notbe paid management fees in excess of fees which are market fees in thesurrounding geographic area.

 

ARTICLE VIMISCELLANEOUS

 

Section 6.1                                      NoLiability of Lender.  Borroweracknowledges and agrees that Lender’s acceptance or approval of any action ofBorrower or any other matter requiring Lender’s approval, satisfaction,acceptance or consent pursuant to this Agreement, the other Loan Documents orthe Environmental Indemnity, including any report certificate, financialstatement, appraisal or insurance policy, will not be deemed a warranty orrepresentation by Lender of the sufficiency, legality, effectiveness or otherimport or effect of such matter.

 

Section 6.2                                      NoThird Parties Benefited.  ThisAgreement is between and for the sole benefit of Borrower and Lender, andLender’s successors and assigns, and creates no rights whatsoever in favor ofany other Person and no other Person will have any rights to rely hereon.

 

Section 6.3                                      Timeis of the Essence.  Time is of theessence of each of Borrower’s obligations under this Agreement.  The waiver by Lender of any default or Eventof Default under this Agreement will not be deemed a waiver of any subsequentdefault or Event of Default.

 

Section 6.4                                      BindingEffect; No Borrower Assignment.  ThisAgreement will be binding upon and inure to the benefit of Borrower and Lenderand their respective heirs, executors, administrators, successors and assigns,provided however Borrower may not assign its rights or interests in thisAgreement without the prior consent of Lender, which may be withheld in Lender’sdiscretion as provided in the Mortgage.

 

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Section 6.5                                      Executionin Counterparts.  This Agreement maybe executed in counterparts, each of which shall be deemed an original, andsuch counterparts when taken together shall constitute but one agreement.

 

Section 6.6                                      Integration;Amendments; Consents.  ThisAgreement, together with the other Loan Documents and the EnvironmentalIndemnity, constitutes the entire agreement of the parties with respect to theLoan, and supersedes any prior negotiations or agreements, and supersedes anyloan application submitted by Borrower to Lender and any commitment letter forthe Loan delivered by Lender to Borrower.  No modification, extension, discharge, terminationor waiver of any provision of this Agreement or the other Loan Documents willbe effective unless in writing, signed by the Person against whom enforcementis sought, and will be effective only in the specific instance for which it isgiven.

 

Section 6.7                                      GoverningLaw.  The Loan will be deemed to havebeen made in the State, and this Agreement, the other Loan Documents and theEnvironmental Indemnity will be governed by and construed and enforced inaccordance with the laws of the State without regard to the State’s conflictsof laws principles.  Borrower and Lendereach unconditionally and irrevocably waives any right to assert that the law ofany other jurisdiction governs this Agreement, the other Loan Documents, andthe Environmental Indemnity.

 

Section 6.8                                      Jurisdiction. Borrower irrevocably (a) agrees that anysuit, action or other legal proceeding arising out of or relating to thisAgreement, the Note, the Mortgage, the other Loan Documents and theEnvironmental Indemnity may be brought in a court of record in the State or inthe Courts of the United States located in the State, (b) submits to thejurisdiction of each such court in any such suit, action or proceeding and (c)waives any objection which it may have to the laying of venue of any such suit,action or proceeding in any of such courts and any claim that any such suit,action or proceeding has been brought in an inconvenient forum.  Borrower irrevocably consents to the serviceof any and all process in any such suit, action or proceeding by service ofcopies of such process to Borrower at its address provided in the Mortgage.  Nothing in this Section 6.8 will affectthe right of Lender to serve legal process in any other manner permitted by lawor affect the right of Lender to bring any suit, action or proceeding againstBorrower or Borrower’s assets in the courts of any other jurisdiction.

 

Section 6.9                                      Severabilityof Provisions.  If a court ofcompetent jurisdiction finds any provision of this Agreement, the other LoanDocuments or the Environmental Indemnity to be invalid or unenforceable as toany Person or circumstance in any state, such finding will not render thatprovision invalid or unenforceable as to any other Person or circumstance or inany other state.  Where permitted by LegalRequirements, any provision found invalid or unenforceable will be deemedmodified to the extent necessary to be within the limits of enforceability orvalidity; however, if such provision cannot be deemed so modified, it will bedeemed stricken and all other provisions of this Agreement in all otherrespects will remain valid and enforceable.

 

Section 6.10                                Preferences. Lender will have no obligation tomarshal any assets for the benefit of Borrower or any other Person or insatisfaction of any or all of the Indebtedness.  Lender will have the continuing and exclusiveright to apply or reverse and reapply any and all payments by Borrower to anyportion of the Indebtedness.  To theextent Borrower makes a payment to Lender or Lender receives any proceeds fromthe Collateral, which payment or proceeds or any part thereof are subsequentlyinvalidated, declared to be fraudulent or preferential, set aside

 

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or required to be repaidto a trustee, receiver or any other Person under any bankruptcy, insolvency orother law, or for equitable cause, then, to the extent of such payment orproceeds released by Lender, the Indebtedness will be revived and continue infull force and effect, as if such payment or proceeds had not been received byLender.

 

Section 6.11                                Jointand Several Obligations.  If thisAgreement is executed by more than one Person as Borrower, the Indebtednesswill be joint and several obligations.

 

Section 6.12                                NoJoint Venture or Partnership.  Borrowerand Lender intend that the relationship created under this Agreement, the otherLoan Documents and the Environmental Indemnity be solely that of borrower andlender.  Nothing is intended to create ajoint venture, partnership, tenancy-in-common, or joint tenancy relationshipbetween Borrower and Lender nor to grant to Lender any interest in the Premisesother than that of mortgagee or secured party.

 

Section 6.13                                Waiverof Counterclaim.  Borrower herebywaives, to the extent permitted by applicable law, the right to assert anycounterclaim, other than a compulsory counterclaim, in any action or proceedingbrought against Borrower by Lender under any of the Loan Documents or theEnvironmental Indemnity.

 

Section 6.14                                Liability;Loan Recourse Limitation.  Borrower’sobligations under this Loan Agreement are subject to the provisions ofparagraph 9 of the Note.

 

Section 6.15                                Headings,etc.  The headings and captions ofvarious paragraphs of this Agreement are for convenience of reference only andare not to be construed as defining or limiting, in any way, the scope orintent of the provisions hereof.

 

Section 6.16                                CapitalizedTerms.  Capitalized terms used hereinand not otherwise defined shall have those meanings given to them in the otherLoan Documents.

 

IN WITNESS WHEREOF,Borrower and Lender have hereunto caused this Agreement to be executed on thedate first above written.

 

REMAINDER OF PAGEINTENTIONALLY BLANK

(Signatures onnext page)

 

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SIGNATURE PAGE OFLENDER TOLOAN AGREEMENT

 

 
|   | PRINCIPAL LIFE  INSURANCE COMPANY, an  Iowa corporation |
|--------|---------------------------------------------------------|
|   |                                                    |
|   | By:                                                     | PRINCIPAL REAL ESTATE  INVESTORS, LLC, a Delaware limited  liability company, its authorized signatory |
|   |                                                    |
|   |                                                    |
|   |                                                    | By: | [ILLEGIBLE] |   |
|   |                                                    | Name: | [ILLEGIBLE] |   |
|   |                                                    | Title: | Director  Closing |   |
|   |                                                    |
|   |                                                    | By: | /s/ Brenda S. Tyler |   |
|   |                                                    | Name: | Brenda  S. Tyler |   |
|   |                                                    | Title: | Assistant  Managing Director  Debt Closing |   |
|        |                                                         |  |  |  |  |  |  |  |

 

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SIGNATURE PAGE OFBORROWER TOLOAN AGREEMENT

 

 
|   | 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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