Exhibit
10.511


 


LOAN AGREEMENT

LOAN NO 754183


 


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


 


RECITALS


 


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


 


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


 


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


 


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


 


ARTICLE I

CERTAIN 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 material
interest in Borrower, either directly or indirectly.


 


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


 


“Approved Accounting
Method” 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 the
same may be modified, supplemented or amended.


 


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


 


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


 


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


 


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


 


“ERISA” has the
meaning 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.


 


“Governmental
Authority” means any national, federal, state, regional or local
government, or any other political subdivision of any of the foregoing, in each
case with jurisdiction over Borrower, the Premises, or any Person with
jurisdiction 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., a
Delaware corporation.


 


“Indebtedness” has
the meaning set forth in the Mortgage.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Person” means any
individual, 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 agency
thereof and any fiduciary acting in such capacity on behalf of any of the
foregoing.


 


“Premises” has the
meaning 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 any
participation interest, certificate or security issued in connection with a
Securitization Transaction.


 


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


 


“Securitization
Transaction” has the meaning set forth in Section 5.5(A) of this
Agreement.


 


“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, or
business 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 not
engage in any business unrelated to the ownership of the Premises, (iii) will
not have any assets other than those related to the Premises, (iv) will not
engage in, seek or consent to any dissolution, winding up, liquidation,
consolidation or merger, and, except as otherwise expressly permitted by the
Loan Documents, will not engage in, seek or consent to any asset sale, transfer
of partnership, membership, shareholder, beneficial interests, or amendment of
its limited partnership agreement, articles of incorporation, articles of organization,
certificate of formation, operating agreement, trust agreement, or trust
certificate (as applicable), (v) will not fail to correct any known
misunderstanding regarding the separate identity of such entity, (vi) without
the unanimous consent of all of the partners, directors, members, beneficial
owners and trustees, as applicable, will not with respect to itself or to any
other entity in which it has a direct or indirect legal or beneficial ownership
interest (a) file a bankruptcy, insolvency or reorganization petition or
otherwise institute insolvency proceedings or otherwise seek any relief under
any laws relating to the relief from debts or the protection of debtors
generally; (b) seek or consent to the


 


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appointment of a
receiver, liquidator, assignee, trustee, sequcstrator, custodian or any similar
official 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 any
action that might cause such entity to become insolvent, (vii) will maintain
its accounts, books and records separate from any other person or entity,
(viii) will maintain its books, records, resolutions and agreements as official
records, (ix) has not commingled and will not commingle its funds or assets
with those of any other person or entity, (x) has held and will hold its assets
in its own name, (xi) will conduct its business in its name, (xii) will
maintain its financial statements, accounting records and other entity
documents separate from any other person or entity, (xiii) will pay its own
liabilities out of its own funds and assets, (xiv) will observe all corporate,
limited liability company and partnership formalities, as applicable, including
any regarding the maintenance of minimum capital to the extent required by the
laws of the jurisdiction in which such entity is organized, (xv) has maintained
and will maintain an arms-length relationship with its affiliates, (xvi) if
such entity owns the Premises, will have no indebtedness other than the
Indebtedness and commercially reasonable unsecured trade payables in the
ordinary course of business relating to the ownership and operation of the
Premises 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 other
person or entity or hold out its credit as being available to satisfy the
obligations 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 reasonably
shared expenses, including, without limitation, shared office space and use
separate stationery, invoices and checks, (xx) will not pledge its assets for
the benefit of any other person or entity, (xxi) will hold itself out and
identify itself as a separate and distinct entity under its own name and not as
a division or part of any other person or entity, (xxii) will not make loans to
any person or entity, (xxiii) will not identify its partners, members,
shareholders, trustees, beneficiaries or any affiliates of any of them as a
division or part of it, (xxiv) will not enter into or be a party to, any transaction
with its partners, members, shareholders, beneficiaries, trustees or its
affiliates except in the ordinary course of its business and on terms which are
intrinsically fair and are no less favorable to it than would be obtained in a
comparable arms-length transaction with an unrelated third party, (xxv) will
pay the salaries of its own employees from its own funds, (xxvi) if such entity
is a limited liability company, limited partnership, or business trust then
such entity shall continue and not dissolve whether as a consequence of
bankruptcy or insolvency of one or more of the members, general partners, or
trustees, as applicable, or otherwise, for so long as a solvent managing
member, general partner, or trustee, as applicable, exists and, subject to
applicable law, dissolution of the entity shall not occur so long as the entity
remains owner of the Premises subject to the Mortgage and such entity’s
organizational documents shall contain such provision, (xxvii) if such entity
is a limited liability company with two (2) or more members, it may be
organized and existing under the laws of any state, and (xxviii) if such entity
is a limited liability company with only a single member then it must be
organized and existing under the laws of the state of Delaware, and upon the
occurrence of any event that causes the member to cease to be a member of the
limited liability company (other than (a) upon an assignment by the member of
all of its limited liability company interest in the limited liability company
and 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 the
limited liability company), each person acting as a Special Member pursuant to
the operating agreement shall, without any action of any person and
simultaneously with the member ceasing


 


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to be a member of the
limited liability company, automatically be admitted to the limited liability
company as a Special Member and shall continue the limited liability company
without dissolution.  No Special Member
may resign from the limited liability company or transfer its rights as Special
Member unless a successor Special Member has been admitted to the limited
liability company as Special Member by executing a counterpart to the operating
agreement; provided, however, the Special Members shall automatically cease to
be members of the limited liability company upon the admission to the limited
liability company of a substitute member.  Each Special Member shall be a member of the
limited liability company that has no interest in the profits, losses and
capital of the limited liability company and has no right to receive any
distributions of limited liability company assets.  Pursuant to Section 18-301 of the
Delaware Limited Liability Company Act (the “Act”), a Special Member shall not
be required to make any capital contributions to the limited liability company
and shall not receive a limited liability company interest in the limited
liability company.  A Special Member, in
its 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 or
otherwise consent to any action by, or matter relating to, the limited
liability company, including, without limitation, the merger, consolidation or
conversion of the limited liability company.  The member shall not, so long as any
obligation to the Lender is outstanding, amend, alter, change or repeal the
definition of “Special Member” or any sections that relate to Special Members
of the operating agreement without the unanimous written consent of all
member(s) and Special Members.  For so
long as any obligation to Lender is outstanding, notwithstanding any other
provision of the operating agreement and any provision of law that otherwise
empowers the limited liability company or any member or any other person to the
contrary, no member nor any other person so authorized shall permit the limited
liability company, without the prior unanimous written consent of the member
and all Special Members, to take any bankruptcy-related action.  As long as any obligation to Lender is
outstanding, the member shall cause the limited liability company at all times
to have at least one Special Member who will be appointed by the member.  In the event of a vacancy in the position of
Special Member, the member shall, as soon as practicable, appoint a successor
Special Member.  One or more additional
members of the limited liability company may be admitted to the limited
liability company with the written consent of the member; provided, however,
that, notwithstanding the foregoing, so long as any obligation to the Lender
remains outstanding, no additional member may be admitted to the limited
liability company unless permitted by the Loan Documents.  The member shall agree that the operating
agreement constitutes a legal, valid and binding agreement of the member, and
is enforceable against the member by the Special Members, in accordance with
its terms.  In addition, the Special
Members shall be intended beneficiaries of the operating agreement.  For purposes hereof the term “Special
Member” means a person or entity who is not a member of the limited
liability company but has agreed to act as a Special Member under the terms of
the operating agreement with only the rights and duties expressly set forth in
the operating agreement and only upon the occurrence of certain events that
cause the member to cease to be a member of the limited liability company.


 


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


 


“Taking” has the
meaning provided in the Mortgage.


 


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


 


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


 


“UCC” means, with
respect to any Collateral, the Uniform Commercial Code in effect in the
jurisdiction in which the relevant Collateral is located.


 


ARTICLE II

GENERAL TERMS


 


Section 2.1                                      Loan
Commitment: Disbursement to Borrower: Prepayment.


 


(A)                              The
Loan.  Subject to, and upon the terms
and conditions set forth herein, Lender hereby agrees to make the Loan to
Borrower on the Closing Date, in the Loan Amount, which Loan will mature on the
Maturity Date.


 


(B)                                Disbursement
to Borrower.  Borrower may request
and receive only one borrowing in respect of the Loan, which will not be
subject to future advances and any amount borrowed and repaid in respect of the
Loan may not be reborrowed.  Borrower
shall, on the Closing Date, receive the Loan Amount, subject to the direction
given by Borrower as to the application of Loan proceeds.


 


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


 


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


 


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


 


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At this time there is not
a U.S. Treasury Issue for this prepayment period.  At the time of prepayment, Lender shall select
in its sole and absolute discretion a U.S. Treasury Issue with similar
remaining time to maturity as the Note.


 


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


 


(iii)                               Subtract
the amount of the prepaid proceeds from the Present Value of the Loan as of the
date of prepayment.  Any resulting
positive differential shall be the premium.


 


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


 


(E)                                 Loan
Prepayment.


 


(i)                                     Except
as otherwise provided in Section 2.1(E) (ii) below, Borrower shall not
have the right or privilege to prepay all or any portion of the unpaid
principal balance of the Note until the date which is three (3) months prior to
the Maturity Date. From and after such date, provided there is no Event of
Default, the principal balance of the Note may be prepaid, at par, in whole but
not in part, upon: (a) not less than 15 days prior written notice to Lender
specifying the date on which prepayment is to be made, which prepayment must
occur no later than the fifth day of any such month unless Borrower pays to
Lender all interest that would have accrued for the entire month in which the
Note is prepaid absent such prepayment.  If
prepayment occurs on a date other than a scheduled monthly payment date,
Borrower shall make the scheduled monthly payment in accordance with the terms
of the Note, regardless of any prepayment; (b) payment of all accrued and
unpaid interest on the outstanding principal balance of the Note to and including
the date on which prepayment is to be made; and (c) payment of all other
Indebtedness then due under the Loan Documents.  Lender shall not be obligated to accept any
prepayment of the principal balance of the Note unless it is accompanied by all
sums due in connection therewith;


 


(ii)                                  In
addition 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 prior
to 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) not
less than 30 days prior written notice to the Lender specifying the date on
which prepayment is to be made, which prepayment must


 


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occur no later than the
fifth day of any such month unless Borrower pays to Lender all interest that
would have accrued for the entire month in which the Note is prepaid, absent
such prepayment.  If prepayment occurs on
a date other than a scheduled monthly payment date, Borrower shall make the
scheduled monthly payment in accordance with the terms of the Note regardless
of any prepayment; (b) payment of all accrued and unpaid interest on the
outstanding principal balance of the Note to and including the date on which
prepayment is made, (c) payment of all other Indebtedness then due under the
Loan Documents, and (d) payment of a Make Whole Premium.  Lender shall not be obligated to accept any
prepayment of the principal balance of the Note unless it is accompanied by all
sums due in connection therewith.


 


ARTICLE III

REPRESENTATIONS AND WARRANTIES


 


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


 


Section 3.1.                                   Representations
and Warranties Relating to Borrower.


 


(A)                              Organization.


 


(i)                                     Borrower
is and, until the Indebtedness is paid in full, will continue to (a) be a duly
organized and validly existing Entity in good standing under the laws of the
state of its formation, (b) if applicable, be duly qualified as a foreign
Entity in each jurisdiction in which the nature of its business, the Premises
or any of the other Collateral makes such qualification necessary or desirable,
(c) have the requisite Entity power and authority to carry on its business as
now being conducted, (d) have the requisite Entity power to execute, deliver
and perform its obligations under the Loan Documents and Environmental
Indemnity, and (e) comply with the provisions of all of its organizational
documents 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-Purpose
Entity.


 


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


 


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


 


(C)                                Enforceability.
 The Loan Documents and Environmental
Indemnity constitute the legal, valid and binding obligations of Borrower and
the other parties to the Loan Documents and Environmental Indemnity (other than
Lender), enforceable against each such party in accordance with their
respective terms, except as may be limited by (i) bankruptcy, insolvency,
reorganization or other similar laws affecting the rights of creditors
generally, and (ii) general principles of equity (regardless of whether
considered in a proceeding in equity or at law).  Such Loan Documents and Environmental Indemnity
are, 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 Documents
and Environmental Indemnity (other than Lender), including the defense of
usury, nor will the operation of any of the terms of the Note, the Mortgage, or
such other Loan Documents and Environmental Indemnity, or the exercise of any
right thereunder, render the Mortgage unenforceable against Borrower, in whole
or in part, or subject to any right of rescission, set-off, counterclaim or
defense by Borrower, including the defense of usury, and Borrower nor any other
party to the Loan Documents and Environmental Indemnity (other than Lender)
have asserted any right of rescission, set-off, counterclaim or defense with
respect thereto.


 


(D)                               Financial
Condition.  (i) Borrower is solvent
and no bankruptcy, reorganization, insolvency or similar proceeding under any
state or federal law with respect to Borrower has been initiated, (ii) Borrower
has not entered into this Loan transaction with the intent to hinder, delay or
defraud any creditor, (iii) Borrower has received reasonably equivalent value
for the making of the Loan and (iv) Borrower has no known contingent
liabilities which could have a Material Adverse Effect.


 


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


 


(F)                                 Not
Foreign Person.  Borrower is not a “foreign
person” 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 successor
statutes thereto, together with applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form (the “Code”).


 


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(G)                                ERISA.
 As of the date hereof and until the
Indebtedness is paid in full: (i) Borrower is not and will not be an “employee
benefit plan” as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), which is subject to Title I
of ERISA, (ii) the assets of Borrower do not and will not constitute “plan
assets” 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 subject
to state statutes applicable to Borrower regulating investments of and
fiduciary obligations with respect to governmental plans, (v) Borrower has made
and will continue to make all required contributions to all employee benefit
plans, if any, established for or on behalf of Borrower or to which Borrower is
required to contribute (vi) Borrower has and will continue to administer each
such plan, if any, in accordance with its terms and the applicable provisions
of ERISA and any other federal or state law; and (vii) Borrower has not and
will not permit any liability under Sections 4201, 4243, 4062 or 4069 of Title
IV of ERISA or taxes or penalties relating to any employee benefit plan or
multi-employer plan to become delinquent or assessed, respectively, which would
have a Material Adverse Effect.


 


(H)                               Investment
Company Act; Public Utility Holding Company Act.  Borrower is not and, until the Indebtedness is
paid 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 of
1940, as amended, (ii) a “holding company” or a “subsidiary company” of a “holding
company” or an “affiliate” of either a “holding company” or a “subsidiary
company” 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 regulation
which purports to restrict or regulate its ability to borrow money.


 


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


 


(J)                                   Location
of Chief Executive Offices and Borrower’s Trade Names.  The location of Borrower’s principal place of
business 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 “also
known as”, “doing business as” or under any other name.  Borrower shall not change its principal place
of business or chief executive office or conduct its business under any other
name, without first notifying Lender in writing at least thirty (30) days prior
to any such change.


 


(K)                               No
Defaults.  No default or Event of
Default exists under or with respect to any Loan Document.


 


(L)                                 Labor
Matters.  Borrower is not a party to
any collective bargaining agreements.


 


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


 


Section 3.2.                                   Representations
and Warranties Relating to The Premises.


 


(A)                              Title
Issues.


 


(i)                                     Borrower
owns good, indefeasible, marketable and insurable fee simple title to the
Premises, free and clear of all liens, other than the Permitted Encumbrances
applicable to the Premises, and until the Indebtedness is paid in full Borrower
shall not permit any liens (other than the Permitted Encumbrances, any title
matters or exceptions approved in writing by Lender subsequent to the date
hereof, taxes which are not yet due or delinquent, or any lien that is
contested by Borrower in accordance with and subject to paragraph 1(e) of the
Mortgage) to attach to the Premises.  Borrower
has 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 Indebtedness
is paid in full, there will not be any outstanding options or agreements to
purchase or rights of first refusal affecting the Premises (except for the
rights of Major Tenant under the Major Tenant Lease and as otherwise permitted
in accordance with and subject to Paragraph 2(f) of the Mortgage).  The Permitted Encumbrances do not and, until
the 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 of
its other obligations in a timely manner (b) the use of the Premises for the
use currently being made thereof, the operation of the Premises as currently
being operated or the value of the Premises, or (c) the value or marketability
of the Premises.


 


(ii)                                  No
Taking has been commenced or, to Borrower’s knowledge, is contemplated with respect
to all or any portion of the Premises or for the relocation of roadways
providing access to the Premises.


 


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


 


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


 


11





















 


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


 


(v)                                 Except
as disclosed in the Title Insurance Policy, there are no pending or, to the
knowledge of Borrower, proposed special or other assessments for public
improvements or otherwise affecting the Premises, nor, to the knowledge of
Borrower, are there any contemplated improvements to the Premises that may
result in such special or other assessments and until the Indebtedness is paid
in full, Borrower shall not permit any taxes, assessments, fees, water, sewer
or other charges by Governmental Authorities relating to the Premises to become
delinquent.


 


(vi)                              The
Mortgage creates a valid and enforceable first mortgage lien on the Premises as
security for the repayment of the Indebtedness, subject only to the Permitted
Encumbrances, any title matters or exceptions approved in writing by Lender
subsequent to the date hereof, and taxes which are not yet due or delinquent.  Each Loan Document securing the Loan
establishes and creates a valid, effective, and enforceable lien on and a
security interest in, or claim to, the rights and property described therein.  All personal property and fixtures covered by
each such Loan Document are subject to a UCC financing statement filed and/or
recorded, as appropriate, or irrevocably delivered to an authorized agent of
the company issuing the Title Insurance Policy for such recordation or filing
in all places necessary to perfect a valid first priority lien with respect to
the rights and property that are the subject of each such Loan Document to the
extent governed by the UCC.


 


(B)                                Status
of the Premises.


 


(i)                                     No
portion of the Improvements is located in an area identified by the Secretary
of Housing and Urban Development or the Federal Emergency Management Agency or
any successor thereto as an area having special flood or seismic hazards, or,
if now or hereafter located within any such area, Borrower has obtained and
will maintain the applicable flood hazard and/or earthquake insurance
prescribed in the Mortgage.


 


(ii)                                  Borrower
has obtained and, until the Indebtedness is paid in full, will maintain all
necessary certificates, licenses, permits and other approvals, governmental and
otherwise, necessary for the operation of the Premises; and the conduct of its
business and all required zoning, building code, land use, environmental and
other similar permits or approvals, all of which are and, until the
Indebtedness is paid in full, will remain in full force and effect and not
subject to revocation, suspension, forfeiture or modification.


 


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


 


12





















 


(iv)                              The
Premises is served by all utilities required for the current or contemplated
use thereof.  All utility service is
provided by public utilities and the Premises has accepted or is equipped to
accept such utility service.  The
Premises is served by public water and sewer systems.  All of the foregoing utilities are located in
the public right-of-way abutting the Premises, and all such utilities are
connected so as to serve the Premises either (a) without passing over other
property or, (b) if such utilities pass over other property, they do so
pursuant to valid easements.


 


(v)                                 All
public roads and streets necessary for service of and access to the Premises
for the current or contemplated use thereof have been completed, are
serviceable and all-weather and are physically and legally open for use by the
public.


 


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


 


(vii)                           Any and
all liquid and solid waste disposal, septic and sewer systems located on the
Premises are in a good and safe condition and repair and in compliance with all
Legal Requirements.


 


(C)                                Status
of the Leases and Rents.


 


(i)                                     No
Prior Assignment.  As of the date
hereof, (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 Rents
due and payable or to become due and payable which are presently outstanding.


 


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


 


(iii)                               Leases.
 (a) Borrower is the sole owner of the
entire lessor’s interest in the Leases; (b) the Leases are the valid, binding
and enforceable obligations of Borrower and the applicable tenant or lessee
thereunder; (c) the terms of all alterations, modifications and amendments to
the Leases are reflected in the certified rent roll delivered to and approved
by Lender; (d) none of the Rents reserved in the Leases have been assigned or
otherwise pledged or hypothecated other than to Lender; (e) none of the Rents
have been collected for more than one (1) month in advance; (f) the premises
demised under the Leases have been completed and the tenants under the Leases
have accepted the same and have taken possession of the same on a rent-paying
basis; (g) there exists no offset or defense to the payment of any portion of
the Rents; (h) no Lease contains an option to purchase, right of first refusal
to purchase, expansion right, or any other similar provision; and (i) no Person
has any possessor interest in, or right to occupy the Premises, except under
and pursuant to a Lease; and (j) all leasing broker fees and commissions
payable by Borrower with respect to the Lease(s) have been paid in full, in
cash or other form of immediately available funds.


 


13





















 


Section 3.3                                      Full
and Accurate Disclosure.  No
statement of fact made by or on behalf of Borrower in the Loan Documents, the
Environmental Indemnity or in any other document or certificate delivered to
Lender by Borrower contains any untrue statement of a material fact or omits to
state any material fact necessary to make statements contained herein or
therein not misleading.  There is no fact
presently known to Borrower which has not been disclosed to Lender which will
have a Material Adverse Effect, nor as far as Borrower can foresee, might have
a Material Adverse Effect.


 


Section 3.4.                                   Survival
of Representations and Warranties.  Borrower
agrees that (A) all of the representations and warranties of Borrower set forth
in this Agreement, in the other Loan Documents and Environmental Indemnity
delivered as of the date hereof are made as of the date hereof (except as
expressly otherwise provided) and (B) all representations, warranties and
covenants made by Borrower shall survive the delivery of the Note and continue
for so long as any Indebtedness remains owing, provided, however,
that the representations and warranties set forth in the Environmental
Indemnity shall survive in perpetuity and shall not be subject to the
limitation of liability provisions set forth in the Note.  All representations, warranties, covenants and
agreements made in this Agreement or in the other Loan Documents shall be
deemed to have been relied upon by Lender notwithstanding any investigation
heretofore or hereafter made by Lender or on its behalf.


 


ARTICLE IV

DEFAULTS AND REMEDIES


 


Section 4.1.                                   Remedies.
 Upon the occurrence of an Event of
Default, all or any one or more of the rights, powers and other remedies
available to Lender against Borrower under this Agreement, the Note, the
Mortgage or any of the other Loan Documents, or at law or in equity may be
exercised by Lender at any time and from time to time, without notice or
demand, whether or not all or any portion of the Indebtedness shall be declared
due and payable, and whether or not Lender shall have commenced any foreclosure
proceeding or other action for the enforcement of its rights and remedies under
any of the Loan Documents with respect to the Premises or all or any portion of
the Collateral.  Any such actions taken
by Lender shall be cumulative and concurrent and may be pursued independently,
singly, successively, together or otherwise, at such time and in such order as
Lender may determine in its discretion, to the fullest extent permitted by law,
without impairing or otherwise affecting the other rights and remedies of
Lender permitted by law, equity or contract or as set forth herein or in the
other Loan Documents.


 


14





















 


ARTICLE V

SPECIAL PROVISIONS


 


Section 5.1.                                   Financial
Reporting.  Borrower shall keep
adequate books and records of account in accordance with generally accepted
accounting principles or in accordance with other methods of accounting
acceptable to Lender in its sole discretion, consistently applied (“Approved
Accounting Method”) and shall furnish to Lender the following, which shall
be prepared, dated and certified by Borrower as true, correct and complete in
the form required by Lender, unless otherwise specified below:


 


(A)                              Within
90 days after the end of each fiscal year for Borrower, detailed analytical
financial reports for Borrower covering the full and complete operation of the
Premises, 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)                                Within
15 days after any written request by Lender, Borrower shall furnish to Lender,
for the most recently completed fiscal year, a combined or consolidated federal
income tax return filed for Borrower and IWRREC.  Said information shall be subject to Lender’s
review;


 


(C)                                Within
15 days after any written request by Lender, a detailed budget in a format and
with content reasonably acceptable to Lender, to include, without limitation, a
comparison showing corresponding information for Borrower’s preceding fiscal
year;


 


(D)                               Within
ninety (90) days after the end of each fiscal year of Borrower, a detailed rent
roll stating the leasing status of the Premises as of the end of such year identifying
the lessee (and assignee, subtenants and licensees, if any) and location of
demised premises; square footage leased; base and additional rental amounts
including any increases; rental concessions, allowances, abatements and/or
rental deferments; pass-through amounts; purchase options; commencement and
expiration dates; early termination dates; renewal options and annual renewal
rents; total net rentable area of the Premises; the existence of any
affiliation between Borrower and tenant; a detailed listing of tenant defaults;
and within fifteen (15) days of Lender’s request, a listing of sales volumes
attained by lessees of the Premises under percentage leases for the immediately
preceding year and an aged accounts receivable report;


 


(E)                                 Within
thirty (30) days after the end of each fiscal quarter of Borrower, the reports
described in Sections 5.1 (A) and (D) above, prepared on both a quarterly and
year- to-date basis.  Said reports may be
internally prepared by Borrower;


 


Section 5.2.                                   Reserves
and Cash Management.


 


(A)                              Upon
the occurrence of an Event of Default, Borrower shall deposit with and pay to
Lender, on each payment date specified in the Note, sums calculated by Lender
for


 


15





















 


payment of: (i) the
estimated 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 and
Insurance Escrows”).  Lender shall
use the Tax and Insurance Escrows to pay the taxes, assessments and premiums
when the same become due.  Borrower
agrees it is liable for any taxes, assessments and/or insurance premiums
identified as being paid for by Borrower on Lender’s written Tax and Insurance
Escrow analysis previously provided to Borrower and Borrower agrees to make any
such payments when the same become due.  Borrower
shall procure and deliver to Lender, in advance, statements for such charges.  If the total payments made by Borrower under
this Section exceed the amount of payments actually made by Lender for
taxes, assessments and insurance premiums, such excess shall be credited by
Lender on subsequent deposits to be made by Borrower.  If, however, the Tax and Insurance Escrows are
insufficient to pay the taxes, assessments and insurance premiums when the same
shall be due and payable, Borrower will pay to Lender any amount necessary to
make up the deficiency, within five (5) business days before the date when
payment of such taxes, assessments and insurance premiums shall be due. If at
any time Borrower shall tender to Lender, in accordance with the provisions of
the Note and the other Loan Documents, full payment of the entire Indebtedness,
Lender shall, in computing the amount of such Indebtedness, credit to the
account of Borrower any balance remaining in the Tax and Insurance Escrows.  If there is an Event of Default resulting in a
public sale of the Premises, or if Lender otherwise acquires the Premises after
an Event of Default, Lender shall apply, at the time of commencement of such
proceedings, or at the time the Premises is otherwise acquired, the then
remaining balance in the Tax and Insurance Escrows as a credit toward any
delinquent or accrued taxes and then, in such priority as Lender elects, to the
other Indebtedness.


 


Section 5.3                                      Security
Agreement.


 


(A)                              Pledge
of Accounts.  To secure the full and
punctual payment and performance of all of the Indebtedness, Borrower hereby
assigns, conveys, pledges and transfers to Lender and grants to Lender a first
and 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 from
time to time deposited or held in any of the foregoing, all investments made
with respect thereto and all interest, if any, earned thereon; (iii) all other
amounts required under the Loan Documents to be deposited with and/or held by
Lender, including but not limited to insurance proceeds and proceeds payable to
Borrower pursuant to a Taking; and (iv) to the extent not covered by the
clauses (i)–(iii) above, all products and proceeds of any or all of the
foregoing (collectively, the “Account Collateral”).  Borrower agrees that the Account Collateral
shall not constitute any deposit or account of the Borrower or moneys to which
the Borrower is entitled upon demand, or upon the mere passage of time or sums
to which Borrower is entitled to any interest or crediting of interest by
virtue of Lender’s mere possession of such deposits.  Lender shall not be required to segregate any
Account Collateral and may hold such deposits in its general account or any
other account and may commingle such deposits with any other moneys of Lender
or moneys which Lender is holding on behalf of any other person or entity.


 


16





















 


(B)                                Lender
Appointed Attorney-In-Fact.  Borrower
hereby irrevocably constitutes and appoints Lender as Borrower’s true and
lawful attorney-in-fact, with full power of substitution, at any time after the
occurrence of an Event of Default to execute, acknowledge and deliver any instruments
and to exercise and enforce every right, power, remedy, option and privilege of
Borrower with respect to the Account Collateral, and do in the name, place and
stead of Borrower, all such acts, things and deeds for and on behalf of and in
the name of Borrower with respect to the Account Collateral, which Borrower
could or might do or which Lender may deem necessary or desirable to more fully
vest in Lender the rights and remedies provided for herein with respect to the
Account Collateral and to accomplish the purposes of this Agreement.  The foregoing powers of attorney are
irrevocable and coupled with an interest.  Beyond the exercise of reasonable care in the
custody thereof, Lender shall not have any duty as to any Account Collateral or
any income thereon in Lender’s possession or control or in the possession or
control of any agents for, or of Lender, or the preservation of rights against
any Person or otherwise with respect thereto, it being understood that so long
as Lender exercises reasonable care, Lender shall not be liable or responsible
for any loss, damage or diminution in value by reason of the act or omission of
Lender, or Lender’s agents, employees or bailees.


 


Section 5.4                                      Assignment
and Assumption of the Loan.  Borrower
shall not Transfer all or any portion of the Premises nor shall any of the
Interest Owners Transfer all or any portion of their equity held in Borrower to
another Person(s) except as may be expressly permitted in the Mortgage.


 


Section 5.5                                      Transfer
of Loan by Lender.


 


(A)                              Lender
may, at any time, sell, transfer or assign the Note, the other Loan Documents
and the Environmental Indemnity, and any or all servicing rights with respect
thereto, or grant participations therein or issue mortgage pass-through
certificates or other securities evidencing a beneficial interest in a rated or
unrated public offering or private placement (each, as designated by Lender, a “Securitization
Transaction”).  Lender may forward to
each purchaser, transferee, assignee, servicer, participant, investor in such
Securitization Transaction or any Rating Agency (as hereinafter defined) rating
such Securitization Transaction (collectively, the “Investor”) and each
prospective Investor and the advisor of each of the foregoing, all documents
and information which Lender now has or may hereafter acquire relating to the
Indebtedness and to Borrower, Guarantor, and the Premises, whether furnished by
Borrower, Guarantor or otherwise, as Lender determines necessary or desirable.


 


(B)                                Borrower
agrees that it shall cooperate with Lender and use Borrower’s reasonable
efforts to facilitate the consummation of any Securitization Transaction,
including, without limitation, by: (i) promptly and reasonably providing such
information as may be requested in connection with the preparation of a private
placement memorandum, prospectus or a registration statement required to
privately place or publicly distribute the securities in a manner which does
not conflict with federal or state securities laws; (ii) providing within 10
days of Lender’s request the reports described in Section 5.1.(D) above
and monthly income and expense information for each of the preceding 12 months;
and (iii)


 


17





















 


permitting Lender, or its
designees to inspect the Premises during normal business hours upon reasonable
advance notice from Lender requesting same and to discuss with Borrower or its
agents information and documentation with respect to the operation and
management of the Premises.  Lender shall
make reasonable efforts to ensure that the lessees’ business operations are not
disrupted.


 


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


 


Section 5.6                                      Insurance
Requirements.  Borrower shall at all
times keep or cause to be kept in full force and effect the insurance required
by the Mortgage.


 


Section 5.7                                      Management;
of Premises.  If the Premises are
managed by Borrower or an affiliate of Borrower, then upon the occurrence of an
Event of Default, Lender may request, upon thirty (30) days prior written
notice to Borrower, that Borrower select a successor manager not affiliated
with Borrower to manage the Premises. If a successor manager is required
pursuant hereto, Borrower shall immediately seek to appoint a successor manager
acceptable to Lender in Lender’s reasonable discretion which successor manager
shall be a reputable management company having at least seven (7) years’
experience in the management of commercial properties with similar uses as the
Premises and in the jurisdiction in which the Premises is located and shall not
be paid management fees in excess of fees which are market fees in the
surrounding geographic area.


 


ARTICLE VI

MISCELLANEOUS


 


Section 6.1                                      No
Liability of Lender.  Borrower
acknowledges and agrees that Lender’s acceptance or approval of any action of
Borrower or any other matter requiring Lender’s approval, satisfaction,
acceptance or consent pursuant to this Agreement, the other Loan Documents or
the Environmental Indemnity, including any report certificate, financial
statement, appraisal or insurance policy, will not be deemed a warranty or
representation by Lender of the sufficiency, legality, effectiveness or other
import or effect of such matter.


 


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


 


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


 


Section 6.4                                      Binding
Effect; No Borrower Assignment.  This
Agreement will be binding upon and inure to the benefit of Borrower and Lender
and their respective heirs, executors, administrators, successors and assigns,
provided however Borrower may not assign its rights or interests in this
Agreement without the prior consent of Lender, which may be withheld in Lender’s
discretion as provided in the Mortgage.


 


18





















 


Section 6.5                                      Execution
in Counterparts.  This Agreement may
be executed in counterparts, each of which shall be deemed an original, and
such counterparts when taken together shall constitute but one agreement.


 


Section 6.6                                      Integration;
Amendments; Consents.  This
Agreement, together with the other Loan Documents and the Environmental
Indemnity, constitutes the entire agreement of the parties with respect to the
Loan, and supersedes any prior negotiations or agreements, and supersedes any
loan application submitted by Borrower to Lender and any commitment letter for
the Loan delivered by Lender to Borrower.  No modification, extension, discharge, termination
or waiver of any provision of this Agreement or the other Loan Documents will
be effective unless in writing, signed by the Person against whom enforcement
is sought, and will be effective only in the specific instance for which it is
given.


 


Section 6.7                                      Governing
Law.  The Loan will be deemed to have
been made in the State, and this Agreement, the other Loan Documents and the
Environmental Indemnity will be governed by and construed and enforced in
accordance with the laws of the State without regard to the State’s conflicts
of laws principles.  Borrower and Lender
each unconditionally and irrevocably waives any right to assert that the law of
any other jurisdiction governs this Agreement, the other Loan Documents, and
the Environmental Indemnity.


 


Section 6.8                                      Jurisdiction.
 Borrower irrevocably (a) agrees that any
suit, action or other legal proceeding arising out of or relating to this
Agreement, the Note, the Mortgage, the other Loan Documents and the
Environmental Indemnity may be brought in a court of record in the State or in
the Courts of the United States located in the State, (b) submits to the
jurisdiction 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 service
of any and all process in any such suit, action or proceeding by service of
copies of such process to Borrower at its address provided in the Mortgage.  Nothing in this Section 6.8 will affect
the right of Lender to serve legal process in any other manner permitted by law
or affect the right of Lender to bring any suit, action or proceeding against
Borrower or Borrower’s assets in the courts of any other jurisdiction.


 


Section 6.9                                      Severability
of Provisions.  If a court of
competent jurisdiction finds any provision of this Agreement, the other Loan
Documents or the Environmental Indemnity to be invalid or unenforceable as to
any Person or circumstance in any state, such finding will not render that
provision invalid or unenforceable as to any other Person or circumstance or in
any other state.  Where permitted by Legal
Requirements, any provision found invalid or unenforceable will be deemed
modified to the extent necessary to be within the limits of enforceability or
validity; however, if such provision cannot be deemed so modified, it will be
deemed stricken and all other provisions of this Agreement in all other
respects will remain valid and enforceable.


 


Section 6.10                                Preferences.
 Lender will have no obligation to
marshal any assets for the benefit of Borrower or any other Person or in
satisfaction of any or all of the Indebtedness.  Lender will have the continuing and exclusive
right to apply or reverse and reapply any and all payments by Borrower to any
portion of the Indebtedness.  To the
extent Borrower makes a payment to Lender or Lender receives any proceeds from
the Collateral, which payment or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside


 


19





















 


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


 


Section 6.11                                Joint
and Several Obligations.  If this
Agreement is executed by more than one Person as Borrower, the Indebtedness
will be joint and several obligations.


 


Section 6.12                                No
Joint Venture or Partnership.  Borrower
and Lender intend that the relationship created under this Agreement, the other
Loan Documents and the Environmental Indemnity be solely that of borrower and
lender.  Nothing is intended to create a
joint venture, partnership, tenancy-in-common, or joint tenancy relationship
between Borrower and Lender nor to grant to Lender any interest in the Premises
other than that of mortgagee or secured party.


 


Section 6.13                                Waiver
of Counterclaim.  Borrower hereby
waives, to the extent permitted by applicable law, the right to assert any
counterclaim, other than a compulsory counterclaim, in any action or proceeding
brought against Borrower by Lender under any of the Loan Documents or the
Environmental Indemnity.


 


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


 


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


 


Section 6.16                                Capitalized
Terms.  Capitalized terms used herein
and not otherwise defined shall have those meanings given to them in the other
Loan Documents.


 


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


 


REMAINDER OF PAGE
INTENTIONALLY BLANK


(Signatures on
next page)


 


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SIGNATURE PAGE OF
LENDER TO

LOAN 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 OF
BORROWER TO

LOAN 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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