**Exhibit10.512**

 

**GUARANTYLOAN NO. 754183**

 

THIS GUARANTY (as thesame may from time to time hereafter be modified, supplemented or amended, the “Guaranty”)is made as of January 26, 2005 by INLAND WESTERN RETAIL REAL ESTATE TRUST,INC., a Maryland corporation, having an office at 2901 Butterfield Road, OakBrook, Illinois 60523 (“Guarantor”), in favor of PRINCIPAL LIFEINSURANCE COMPANY, an Iowa corporation, having a principal place of businessand post office address at c/o Principal Real Estate Investors, LLC, 801 GrandAvenue, Des Moines, Iowa 50392-1450 (“Lender”).

 

RECITALS:

 

Lender has agreed to makea loan (the “Loan”) in the original principal sum of Twenty MillionSeven Hundred Fifty Five Thousand Three Hundred and No/100 Dollars($20,755,300.00) (the “Loan Amount”) to INLAND WESTERN CORAM PLAZA,L.L.C., a Delaware limited liability company (“Borrower”); and

 

The Loan is evidenced byBorrower’s Consolidated, Amended and Restated Secured Promissory Note madepayable and delivered to Lender (as the same may from time to time hereafter bemodified, amended, supplemented, extended or consolidated in writing, and anynote(s) issued in exchange therefor or replacement thereof, the “Note”)and further evidenced and secured by a Consolidated, Amended and RestatedMortgage and Security Agreement (the “Mortgage”, it being agreed that “Mortgage”as hereinafter used shall be construed to mean “mortgage” or “deed of trust” or“trust deed” or “deed to secure debt” as the context so requires) on certainreal estate located in Suffolk County, New York, together with all existingimprovements constructed thereon, said Premises being more particularlydescribed in said Mortgage, and an Assignment of Leases (“Assignment ofLeases”); and

 

In connection with theLoan, the Borrower has also executed that certain Environmental Indemnity (“EnvironmentalIndemnity”) and that certain Loan Agreement for the benefit of Lender (theNote, Environmental Indemnity, the Loan Agreement, Mortgage and Assignment ofLeases and all other instruments or agreements by which the Loan is evidencedor secured are hereinafter collectively referred to as the “UnderlyingInstruments”); and

 

It is a condition ofLender’s agreement to make the Loan that Guarantor be unconditionally liablefor and personally guarantee the payment and performance of certain liabilitiesand obligations of the Borrower under the Underlying Instruments upon the termsand conditions as are hereinafter set forth; and

 

WHEREAS, Guarantor isfinancially interested in Borrower and is materially benefited by theconsummation of the Loan and has agreed to unconditionally and personallyguarantee the payment and performance of certain liabilities and obligations ofBorrower under the Underlying Instruments upon the terms and conditions as arehereinafter set forth.

 

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NOW, THEREFORE, in order toinduce Lender to make the Loan to Borrower, Guarantor intending to be legallybound, hereby makes the following representations and warranties to the Lenderand hereby covenants and agrees with the Lender as follows:

 

1.                                       Guarantorabsolutely, irrevocably and unconditionally guarantees to the Lender paymentand the full, faithful and timely performance of any and all liabilities andobligations of Borrower whether now existing or hereafter incurred under theEnvironmental Indemnity and Paragraph 9 of the Note but excluding, specificallysubparagraphs 9(d) through 9(k) thereof (all of which payments, liabilities andobligations are hereinafter collectively referred to as the “GuaranteedObligations”).

 

2.                                       Guarantorabsolutely, irrevocably and unconditionally waives notice of acceptance of thisGuaranty and notice of any payment, liability or obligation to which it mayapply, and waives presentment, demand of payment, protest, notice of dishonoror nonpayment of such liabilities under this Guaranty or any of the UnderlyingInstruments creating the Guaranteed Obligations and any suit or taking otheraction by the Lender against, and any other notice to, any party liable thereonor any property which may be security therefor.

 

3.                                       TheLender may at any time and from time to time without the consent of, or noticeto, Guarantor, without incurring any responsibility to Guarantor and withoutimpairing or releasing any of the obligations of Guarantor hereunder, upon orwithout any terms or conditions and in whole or in part:

 

(a)                                  renew,alter or change the interest rate, manner, time, place or terms of payment orperformance of any of the Guaranteed Obligations, or any liability incurreddirectly or indirectly in respect thereof, whereupon the guaranty herein madeshall apply to the Guaranteed Obligations as so changed, extended, renewed oraltered;

 

(b)                                 sell,exchange, release, surrender, and in any manner and in any order realize uponor otherwise deal with any property at any time directly and absolutelyassigned or pledged or mortgaged to secure the Guaranteed Obligations or anyliabilities (including any of those hereunder) incurred directly or indirectlyin respect thereof;

 

(c)                                  exerciseor refrain from exercising any rights against Borrower or any other person(including Guarantor) or otherwise act or refrain from acting with regard tothe Underlying Instruments, Guaranteed Obligations or this Guaranty;

 

(d)                                 settleor compromise any of the Guaranteed Obligations, any security therefor or anyliability (including any of those hereunder) incurred directly or indirectly inrespect thereof or hereof, and/or subordinate the payment of all or any partthereof to the payment of any liability of Borrower (whether or not then due)to creditors of Borrower other than the Lender and Guarantor;

 

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(e)                                  applyany sums in whatever manner paid or realized to any liability or liabilities ofBorrower to the Lender regardless of what liability or liabilities of Borrowerremain unpaid;

 

(f)                                    consentto or waive any breach of or any act, omission or default under the UnderlyingInstruments or otherwise amend, modify or supplement any of such instruments oragreements; and/or

 

(g)                                 sell,convey or assign, whether into a securitized transaction or otherwise, all orany part of Lender’s interest in this Guaranty and the Underlying Instruments.

 

4.                                       (a)                                  Noinvalidity, irregularity or unenforceability of all or any part of theUnderlying Instruments, the Guaranteed Obligations or this Guaranty, or of anysecurity therefor, shall affect, impair or constitute a defense to thisGuaranty.  This Guaranty is a direct andprimary obligation of Guarantor, and Guarantor’s obligations hereunder are notas a surety.  This is a guaranty ofpayment and performance, and not merely a guaranty of collection.

 

(b)                                 Guarantoracknowledges and agrees that this Guaranty and Guarantor’s obligations withrespect to payments and performance under the Environmental Indemnity shallremain in full force and effect, notwithstanding the fact that the Note andpayments due under the other Underlying Instruments have been paid in full.

 

5.                                       (a)                                  Notwithstandingany payment or payments made by Guarantor hereunder, Guarantor will not assertor exercise any right of the Lender or of such Guarantor against Borrower torecover the amount of any payment made by such Guarantor to the Lender by wayof subrogation, reimbursement, contribution, indemnity or otherwise arising bycontract or operation of law, and Guarantor shall not have any right ofrecourse to or any claim against assets or property of Borrower, whether or notthe obligations of Borrower have been satisfied, all of such rights beingherein expressly waived by Guarantor.  Theprovisions of this paragraph shall survive the termination of this Guaranty,and any satisfaction and discharge of Borrower by virtue of any payment, courtorder or any applicable law.

 

(b)                                 Notwithstandingthe provisions of Section 5(a), Guarantor shall have and be entitled toall rights of subrogation otherwise provided by applicable law in respect ofany payment Guarantor may make or be obligated to make under this Guaranty, andto assert and enforce the same, in each case on and after, but at no time priorto, the date (the “Subrogation Trigger Date”) which is 91 days after thedate on which all obligations under the Underlying Instruments shall have beenpaid or performed in full, if and only if the existence of Guarantor’s rightsunder this Section 5(b) would not make Guarantor a creditor (as defined inthe Bankruptcy Reform Act of 1978, an amended, 11 U.S.C. Sections 101 et seq.,and the regulations adopted and promulgated pursuant thereto) of Borrower inany

 

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insolvency bankruptcy,reorganization or similar proceeding commenced on or prior to the SubrogationTrigger Date.

 

(c)                                  Inthe event that Guarantor shall advance or become obligated to pay any sums withrespect to any obligation hereby guaranteed or in the event that for any reasonwhatsoever the Borrower or any subsequent owner of the collateral securing theLoan is now, or shall hereafter become, indebted to Guarantor, Guarantor agreesthat the amount of such sums and of such Indebtedness together with allinterest thereon, shall at all times be subordinate as to the lien, time ofpayment and in all other respects, to all sums, including principal, interestand other Indebtedness, at any time owing to the Lender under any of theUnderlying Instruments.  Nothing hereincontained is intended or shall be construed to give to Guarantor any right toparticipate in any way in the right, title or interest of the Lender in or tothe collateral securing the Loan, notwithstanding any payments made byGuarantor under this Guaranty, all such rights of participation being herebyexpressly waived and released.

 

6.                                       Guarantoragrees that to the extent that Borrower makes a payment or payments to Lender,which payment or payments or any part thereof are subsequently invalidated,declared to be fraudulent or preferential, set aside or required, for any ofthe foregoing reasons or for any other reasons, to be repaid or paid over to acustodian, trustee, receiver or any other party under any bankruptcy act, stateor federal law, common law or equitable cause, then to the extent of suchpayment or repayment, the obligation or part thereof intended to be satisfiedshall be revived and continued in full force and effect as if such payment hadnot been made.

 

7.                                       Guarantormakes the following representations and warranties which shall survive theexecution and delivery of this Guaranty:

 

(a)                                  Guarantoris and, until the Indebtedness is paid in full, will continue to (i) be a dulyorganized and validly existing entity in good standing under the laws of thestate of its formation, (ii) be duly qualified as a foreign entity in eachjurisdiction in which the nature of its business makes such qualificationnecessary or desirable, (iii) have the requisite power and authority to carryon its business as now being conducted, (iv) have the requisite power toexecute, deliver and perform its obligations under this Guaranty, and (v)comply with the provisions of all of its organizational documents, and theLegal Requirements of the state of its formation.

 

(b)                                 Theexecution, delivery and performance of this Guaranty (i) are within theapplicable powers of Guarantor; (ii) have been authorized by all requisiteaction; (iii) have received all necessary approvals and consents, corporate,governmental or otherwise; (iv) does not and will not violate, conflict with,result in a breach of or constitute (with notice or lapse of time, or both) adefault under any provision of law, any order or judgment of any court orgovernmental authority, the articles of incorporation, by-laws, partnership,operating or trust agreement, or other governing instrument of Guarantor, orany indenture, agreement or other instrument

 

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to which Guarantor is aparty or by which Guarantor or any of Guarantor’s assets is or may be bound oraffected; (v) does not and will not result in the creation or imposition of anylien, charge or encumbrance whatsoever upon any of Guarantor’s assets; and (vi)does not and will not require any authorization or license from, or any filingwith, any governmental authority or other body.

 

(c)                                  ThisGuaranty constitutes the legal, valid and binding obligations of Guarantor,enforceable against Guarantor in accordance with its terms, except as may belimited by (i) bankruptcy, insolvency, reorganization or other similar lawsaffecting the rights of creditors generally, and (ii) general principles ofequity (regardless of whether considered in a proceeding in equity or at law).

 

8.                                       Guarantorand Borrower are separate and distinct entities with no identity of interestwith respect to any Indebtedness which may become owed or any payments whichmay be made hereunder.  Borrower is notcontractually bound to Guarantor with respect to any payments hereafter madeunder this Guaranty in any manner which would have the effect of imputing theliability of Guarantor hereunder to Borrower.

 

9.                                       Guarantoris related and/or affiliated with Borrower, has personal knowledge of and isfamiliar with Borrower’s business affairs, books and records and has theability to influence Borrower’s financial decisions.  Guarantor represents that Borrower is in soundfinancial condition as of the date of this Guaranty.

 

10.                                 Nothingherein contained shall in any manner affect the lien or priority of theMortgage, and upon the occurrence of an Event of a Default, the Lender mayinvoke any remedies it may have under the Underlying Instruments, or thisGuaranty, either concurrently or successively and the exercise of any one ormore of such remedies shall not be deemed an exhaustion of such remedy orremedies or a waiver of any other remedy or remedies and shall not be deemed anelection of remedies.  Guarantor herebyspecifically waives any defense to its performance under this Guaranty basedupon an election of remedies by Lender, including but not limited to anelection to foreclose by nonjudicial sale under any deed of trust, or securityagreement and pursue any other remedy which destroys, lessens or otherwiseaffects Guarantor’s subrogation rights and/or its rights to reimbursement fromor to proceed against Borrower or any other person, when resulting from thejudicial or nonjudicial foreclosure (under any deed of trust, or securityagreement) or the selling or otherwise disposing of or collecting or applyingany property, real or personal, securing the Note, or otherwise.  The exercise by the Lender of any suchremedies shall not release or discharge Guarantor from its obligationshereunder unless and until the full amount of the Indebtedness evidenced by theNote and secured as aforesaid has been fully paid and satisfied, and any suchrelease or discharge shall be subject to the provisions of paragraph 4(b)hereof.

 

11.                                 ThisGuaranty shall remain in full force and effect until all obligations of theBorrower under the Underlying Instruments have been satisfied in full and areno longer subject to disgorgement under any applicable state or federalcreditor rights or bankruptcy laws.  Nodelay on the part of the Lender in exercising any options, powers or rights, orthe partial or

 

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single exercise thereof,shall constitute a waiver thereof. No waiver of any rights hereunder, and no modificationor amendment of this Guaranty, shall be deemed to be made by the Lender unlessthe same shall be in writing, duly signed on behalf of the Lender, and eachsuch waiver (if any) shall apply only with respect to the specific instanceinvolved and shall in no way impair the rights of the Lender or the obligationsof Guarantor to the Lender in any other respect at any other time. ThisGuaranty and the rights and obligations of the Lender and of Guarantorhereunder shall be governed and construed in accordance with the laws of thestate of New York, without regard to its conflicts of law principles and thisGuaranty is binding upon Guarantor, Guarantor’s heirs, personal representativesand permitted successors or assigns, and shall inure to the benefit of theLender and its successors or assigns.

 

12.                                 Guarantoracknowledges that copies of the Underlying Instruments have been made availableto Guarantor and that Guarantor is familiar with their contents. Guarantoraffirmatively agrees that upon any Permitted Transfer effected in accordancewith the provisions of the Underlying Instruments, it shall not be necessaryfor Guarantor to reaffirm its continuing obligations under this Guaranty, butGuarantor will do so upon request by Lender; provided, however, in the event aPermitted Transfer under items (ii) or (vi) of the Permitted Transfers occursin compliance with the terms and conditions stated in the Mortgage, thenBorrower may provide a substitute guarantor, acceptable to Lender in Lender’ssole discretion, to assume the obligations of Guarantor under terms andconditions acceptable to Lender. Lender’s approval of the substitute guarantorshall be deemed granted so long as such substitute guarantor is a QualifiedSuccessor.

 

13.                                 **AFTER CONSULTING WITH COUNSEL AND CAREFUL CONSIDERATION, GUARANTOR ANDLENDER (BY ITS ACCEPTANCE HEREOF) KNOWINGLY, VOLUNTARILY, AND INTENTIONALLYWAIVE THE RIGHT EITHER OF THEM MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANYLITIGATION ARISING OUT OF THIS GUARANTY OR ANY OTHER INSTRUMENT OR AGREEMENT BYWHICH THIS GUARANTY IS, OR MAY HEREAFTER BE, SECURED, OR OUT OF ANY COURSE OFCONDUCT, COURSE OF DEALING, STATEMENTS (ORAL OR WRITTEN), OR ACTIONS OFGUARANTOR OR LENDER. THIS WAIVER IS A MATERIAL INDUCEMENT TO THE LENDER’S ACCEPTANCEOF THIS GUARANTY.**

 

14.                                 Eachnotice, consent, request or other communication under this Guaranty (each a“Notice”) which any party hereto may desire or be required to give to the othershall be deemed to be adequate and sufficient notice if given in writing andservice is made by either (i) registered or certified mail, postage prepaid, inwhich case such notice shall be deemed to have been received three (3) businessdays following deposit to U.S. mail; or (ii) nationally recognized overnightair courier, next day delivery, prepaid, in which case such notice shall bedeemed to have been received one (1) business day following delivery to suchnationally recognized overnight air courier. All Notices shall be addressed toGuarantor at its address given on the first page hereof, or to Lender at c/oPrincipal Real Estate Investors, LLC, 801 Grand Avenue, Des Moines, Iowa50392-1450, Attn:

 

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Commercial Real EstateServicing, Loan No. 754183, or to such other place as any party may by noticein writing to the other parties designate as a place for service of notice.

 

15.                                 EachGuarantor (if more than one) whose signature appears below shall be deemed tobe bound by the provisions of this Guaranty and the Guaranteed Obligations,whether each signature was affixed at the same or different times, and the term“Guarantor” as used herein shall be deemed to refer to each individually, aswell as collectively, and each of the undersigned shall be jointly andseverally liable for the Guaranteed Obligations hereunder, both personally andwith recourse, irrespective of the recourse or non-recourse nature of theUnderlying Instruments. Guarantor agrees that if this Guaranty is placed in thehands of an attorney for enforcement, Guarantor will reimburse Lender allexpenses incurred, including attorney’s fees.

 

16.                                 ThisGuaranty may be executed in counterparts, each of which shall be deemed anoriginal; and such counterparts when taken together shall constitute but oneagreement.

 

17.                                 Capitalizedterms used herein and not otherwise defined shall have the meanings given tothem in the Underlying Instruments.

 

18.                                 Guarantorhereby agrees and acknowledges that this Guaranty is an instrument for thepayment of money, and hereby consents that Lender, at its sole option, in theevent of a default by Guarantor in the payment of any of the moneys duehereunder, shall have the right to bring a motion and/or action under New YorkCPLR Section 3213.

 

IN WITNESS WHEREOF,Guarantor has caused this Guaranty to be duly executed and delivered as of thedate first set forth above.

 

(REMAINDER OF PAGEINTENTIONALLY BLANKSIGNATURES ON NEXT PAGE)

 

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SIGNATURE PAGE OFGUARANTORTO GUARANTY

 

42-1579325

(Guarantor’sIdentification Number)

 

 
|   | INLAND WESTERN RETAIL  REAL ESTATE  TRUST, INC., a Maryland corporation |
|--------|-------------------------------------------------------------------------|
|   |                                                                    |
|   |                                                                    |
|   | By:                                                                     | /s/ Valerie Medina |   |
|   |                                                                    | Name: | Valerie  Medina |   |
|   |                                                                    | Title: | Asst.  Secretary |   |
|        |                                                                         |  |  |  |  |

 

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