Exhibit 10.426


 


GUARANTY AGREEMENT


 


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


 


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


 


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


 


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


 


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


 


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available
to, or shall be asserted by, Guarantor against Lender or any subsequent
beneficiary of this Guaranty Agreement or any portion of the Indebtedness.


 


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


 


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


 


6.                                       If acceleration of the time for payment by
Borrower of all or any portion of the Indebtedness is stayed upon the
insolvency, bankruptcy, or reorganization of Borrower, the Guaranteed
Obligations shall nonetheless be payable by Guarantor hereunder forthwith on demand
by Lender.


 


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


 


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occurrence
of any event, including, without limitation, one or more of the following
events, whether or not with notice to or the consent of Guarantor; (a) the
taking or accepting of collateral as security for any or all of the
Indebtedness or the release, surrender, exchange, or subordination of any
collateral now or hereafter securing any or all of the Indebtedness; (b) the
full or partial release of Borrower or any other guarantor from liability for
any or all of the Indebtedness or the Guaranteed Obligations; (c) the
dissolution, insolvency, or bankruptcy of Borrower, Guarantor, or any other
party at any time liable for the payment of any or all of the Indebtedness; (d)
any renewal, extension, modification, waiver, amendment, or rearrangement of
any or all of the Indebtedness or any instrument, document, or agreement
evidencing, securing, or otherwise relating to any or all of the Guaranteed
Obligations; (e) any adjustment, indulgence, forbearance, waiver, or compromise
that may be granted or given by Lender to Borrower or any other party ever
liable for any or all of the Indebtedness; (f) any neglect, delay, omission,
failure, or refusal of Lender to take or prosecute any action for the
collection of any of the Guaranteed Obligations from Borrower or Guarantor or
to foreclose or take or prosecute any action in connection with any instrument,
document, or agreement evidencing, securing, or otherwise relating to any or
all of the Indebtedness or any or all of the Guaranteed Obligations; (g) the
unenforceability or invalidity of any or all of the Indebtedness or the
Guaranteed Obligations or any instrument, document, or agreement evidencing,
securing, or otherwise relating to any or all of the Indebtedness or the
Guaranteed Obligations; (h) any payment by Borrower or any other party to
Lender is held to constitute a preference under applicable bankruptcy or insolvency
law or if for any other reason Lender is required to refund any payment or pay
the amount thereof to someone else; (i) the settlement or compromise of any of
the Indebtedness or the Guaranteed Obligations; (j) the non-perfection of any
security interest or lien securing any or all of the Indebtedness; (k) any
impairment of any collateral securing any or all of the Indebtedness; (1) the
failure of Lender to sell any collateral securing any or all of the
Indebtedness in a commercially reasonable manner or as otherwise required by
law; (m) any change in the corporate existence, structure, or ownership of
Borrower; (n) the application against the Indebtedness of the proceeds realized
by Lender under any documents which secure the Indebtedness (including, without
limitation, voluntary payments, insurance or condemnation proceeds or proceeds
from the sale at foreclosure of any collateral securing the Indebtedness),
except as provided in Section 5 of this Guaranty Agreement; or (o) any other
circumstance which might otherwise constitute a defense available to, or
discharge of, Borrower or Guarantor, or any other party liable for any or all
of the Indebtedness or the Guaranteed Obligations.  Guarantor further expressly waives any right
or option under applicable law or otherwise to be released or discharged, in
whole or in part, by reason of any of the matters set forth in (a) through (o)
of this Section, and further expressly waives any defense to the full payment
and performance of the Guaranteed Obligations arising from the matters set
forth in (a) through (o) of this Section.  In addition, Guarantor expressly waives: (i)
any duty or obligation on the Lender to proceed to collect payment of the
Indebtedness from, or to commence an action against, the Borrower or any other
person, or to resort to any security or to any balance of any deposit account
or credit on the books of the Lender in favor of the Borrower or any other
person, despite any notice or request of the undersigned to do so; (ii) to the
fullest extent permitted by law, the requirements and/or the benefits of
Chapter 34 of the Texas Business and Commerce Code, as amended, Rule 31 of the
Texas Rules of Civil Procedure, as amended, and Section 17.001 of the Texas
Civil Practice and Remedies Code, as amended, and (iii) except as expressly
reserved pursuant to Section 21 hereof, any and all rights or defenses arising
by reason of any “one action” or “anti-deficiency”


 


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


 


8.                                       Guarantor represents and warrants to Lender
as follows:


 


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


 


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


 


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


 


(d)                                 The value of the consideration received and
to be received by Guarantor as a result of Lender making extensions of credit
to Borrower and Guarantor executing and delivering this Guaranty Agreement is
reasonably worth at least as much as the liability and obligation of Guarantor
hereunder, and such liability and obligation and such extensions of credit have
benefited and may reasonably be expected to benefit Guarantor directly and
indirectly.


 


(e)                                  Guarantor has, independently and without
reliance upon Lender and based upon such documents and information as Guarantor
has deemed appropriate, made its own analysis and decision to enter into this
Guaranty Agreement.


 


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9.                                       Guarantor covenants and agrees that, as long
as the Indebtedness or the Guaranteed Obligations or any part thereof is
outstanding:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


14.                                 Guarantor recognizes that Lender is relying
upon this Guaranty Agreement and the undertakings of Guarantor hereunder in
making extensions of credit to Borrower and further recognizes that the
execution and delivery of this Guaranty Agreement is a material inducement to
Lender in making extensions of credit to Borrower.  Guarantor hereby acknowledges that there are
no conditions to the full effectiveness of this Guaranty Agreement.


 


15.                                 This Guaranty Agreement is executed and
delivered as an incident to a lending transaction negotiated, consummated, and
performable in Dallas County, Texas, and shall be governed by and construed in
accordance with the laws of the State of Texas. 
Any action or proceeding against Guarantor under or in connection with
this Guaranty Agreement may be brought in any state or federal court in Dallas
County, Texas.  Guarantor hereby
irrevocably (i) submits to the nonexclusive jurisdiction of such courts, and
(ii) waives any objection it may now or hereafter have as to the venue of any
such action or proceeding brought in such court or that such court is an
inconvenient forum.  Guarantor agrees
that service of process and/or notice upon it may be made by certified or
registered mail, return receipt requested, at its address specified on the
first page hereof.  Nothing herein shall
affect the right of Lender to serve process in any other matter permitted by
law or shall limit the right of Lender to bring any action or proceeding
against Guarantor or with respect to any of Guarantor’s property in courts in
other jurisdictions.  Any action or
proceeding by Guarantor against Lender shall be brought only in a court located
in Dallas County, Texas.


 


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


 


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


 


7





















 


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


 


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


 


19.                                  THIS GUARANTY AGREEMENT EMBODIES THE FINAL, ENTIRE
AGREEMENT OF PAYMENT
AND
PERFORMANCE OF GUARANTOR AND LENDER WITH RESPECT TO GUARANTOR’S GUARANTY OF THE
GUARANTEED OBLIGATIONS AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS,
WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF.  THIS GUARANTY AGREEMENT IS INTENDED BY
GUARANTOR AND LENDER AS A FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THE
GUARANTY AGREEMENT,
AND NO
COURSE OF DEALING BETWEEN
GUARANTOR
AND LENDER, NO COURSE OF PERFORMANCE, NO TRADE PRACTICES, AND NO EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC
EVIDENCE OF ANY
NATURE SHALL
BE USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY AGREEMENT.  THERE ARE NO ORAL AGREEMENTS BETWEEN GUARANTOR AND LENDER.


 


20.                                 To the fullest extent permitted by applicable
law, Guarantor HEREBY WAIVES HIS RIGHT TO
TRIAL BY JURY in any action, proceeding and/or hearing on any matter
whatsoever arising out of, or in any way connected with this Guaranty
Agreement, the Unsecured Indemnity Agreement, the Deed of Trust (as defined in
the Note), the Note or any of the other Loan Documents or the enforcement of
any remedy hereunder or thereunder or under any law, statute, or regulation.  Guarantor will not seek to consolidate any
such action in which a jury has been waived, with any other action in which a
jury trial cannot or has not been waived.  Guarantor has received the advice of counsel
with respect to this waiver.


 


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


 


(signature follows on next page)


 


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EXECUTED
effective the 7th day of December, 2004.


 


	
   

  	
  GUARANTOR:

  
	
   

  	
   

  
	
   

  	
  INLAND
  WESTERN RETAIL REAL ESTATE

  
	
   

  	
  TRUST,
  INC.,

  
	
   

  	
  a
  Maryland corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ VALERIE MEDINA

  	
   

  
	
   

  	
  Name:

  	
  VALERIE MEDINA

  	
   

  
	
   

  	
  Title:

  	
  ASS'T
  SECRETARY

  	
   

  
						



 


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