Exhibit
10.512


 


GUARANTY

LOAN NO. 754183


 


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


 


RECITALS:


 


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


 


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


 


In connection with the
Loan, the Borrower has also executed that certain Environmental Indemnity (“Environmental
Indemnity”) and that certain Loan Agreement for the benefit of Lender (the
Note, Environmental Indemnity, the Loan Agreement, Mortgage and Assignment of
Leases and all other instruments or agreements by which the Loan is evidenced
or secured are hereinafter collectively referred to as the “Underlying
Instruments”); and


 


It is a condition of
Lender’s agreement to make the Loan that Guarantor be unconditionally liable
for and personally guarantee the payment and performance of certain liabilities
and obligations of the Borrower under the Underlying Instruments upon the terms
and conditions as are hereinafter set forth; and


 


WHEREAS, Guarantor is
financially interested in Borrower and is materially benefited by the
consummation of the Loan and has agreed to unconditionally and personally
guarantee the payment and performance of certain liabilities and obligations of
Borrower under the Underlying Instruments upon the terms and conditions as are
hereinafter set forth.


 


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


 


1.                                       Guarantor
absolutely, irrevocably and unconditionally guarantees to the Lender payment
and the full, faithful and timely performance of any and all liabilities and
obligations of Borrower whether now existing or hereafter incurred under the
Environmental Indemnity and Paragraph 9 of the Note but excluding, specifically
subparagraphs 9(d) through 9(k) thereof (all of which payments, liabilities and
obligations are hereinafter collectively referred to as the “Guaranteed
Obligations”).


 


2.                                       Guarantor
absolutely, irrevocably and unconditionally waives notice of acceptance of this
Guaranty and notice of any payment, liability or obligation to which it may
apply, and waives presentment, demand of payment, protest, notice of dishonor
or nonpayment of such liabilities under this Guaranty or any of the Underlying
Instruments creating the Guaranteed Obligations and any suit or taking other
action by the Lender against, and any other notice to, any party liable thereon
or any property which may be security therefor.


 


3.                                       The
Lender may at any time and from time to time without the consent of, or notice
to, Guarantor, without incurring any responsibility to Guarantor and without
impairing or releasing any of the obligations of Guarantor hereunder, upon or
without any terms or conditions and in whole or in part:


 


(a)                                  renew,
alter or change the interest rate, manner, time, place or terms of payment or
performance of any of the Guaranteed Obligations, or any liability incurred
directly or indirectly in respect thereof, whereupon the guaranty herein made
shall apply to the Guaranteed Obligations as so changed, extended, renewed or
altered;


 


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


 


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


 


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


 


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(e)                                  apply
any sums in whatever manner paid or realized to any liability or liabilities of
Borrower to the Lender regardless of what liability or liabilities of Borrower
remain unpaid;


 


(f)                                    consent
to or waive any breach of or any act, omission or default under the Underlying
Instruments or otherwise amend, modify or supplement any of such instruments or
agreements; and/or


 


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


 


4.                                       (a)                                  No
invalidity, irregularity or unenforceability of all or any part of the
Underlying Instruments, the Guaranteed Obligations or this Guaranty, or of any
security therefor, shall affect, impair or constitute a defense to this
Guaranty.  This Guaranty is a direct and
primary obligation of Guarantor, and Guarantor’s obligations hereunder are not
as a surety.  This is a guaranty of
payment and performance, and not merely a guaranty of collection.


 


(b)                                 Guarantor
acknowledges and agrees that this Guaranty and Guarantor’s obligations with
respect to payments and performance under the Environmental Indemnity shall
remain in full force and effect, notwithstanding the fact that the Note and
payments due under the other Underlying Instruments have been paid in full.


 


5.                                       (a)                                  Notwithstanding
any payment or payments made by Guarantor hereunder, Guarantor will not assert
or exercise any right of the Lender or of such Guarantor against Borrower to
recover the amount of any payment made by such Guarantor to the Lender by way
of subrogation, reimbursement, contribution, indemnity or otherwise arising by
contract or operation of law, and Guarantor shall not have any right of
recourse to or any claim against assets or property of Borrower, whether or not
the obligations of Borrower have been satisfied, all of such rights being
herein expressly waived by Guarantor.  The
provisions of this paragraph shall survive the termination of this Guaranty,
and any satisfaction and discharge of Borrower by virtue of any payment, court
order or any applicable law.


 


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


 


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


 


(c)                                  In
the event that Guarantor shall advance or become obligated to pay any sums with
respect to any obligation hereby guaranteed or in the event that for any reason
whatsoever the Borrower or any subsequent owner of the collateral securing the
Loan is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees
that the amount of such sums and of such Indebtedness together with all
interest thereon, shall at all times be subordinate as to the lien, time of
payment and in all other respects, to all sums, including principal, interest
and other Indebtedness, at any time owing to the Lender under any of the
Underlying Instruments.  Nothing herein
contained is intended or shall be construed to give to Guarantor any right to
participate in any way in the right, title or interest of the Lender in or to
the collateral securing the Loan, notwithstanding any payments made by
Guarantor under this Guaranty, all such rights of participation being hereby
expressly waived and released.


 


6.                                       Guarantor
agrees that to the extent that Borrower makes a payment or payments to Lender,
which payment or payments or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required, for any of
the foregoing reasons or for any other reasons, to be repaid or paid over to a
custodian, trustee, receiver or any other party under any bankruptcy act, state
or federal law, common law or equitable cause, then to the extent of such
payment or repayment, the obligation or part thereof intended to be satisfied
shall be revived and continued in full force and effect as if such payment had
not been made.


 


7.                                       Guarantor
makes the following representations and warranties which shall survive the
execution and delivery of this Guaranty:


 


(a)                                  Guarantor
is and, until the Indebtedness is paid in full, will continue to (i) be a duly
organized and validly existing entity in good standing under the laws of the
state of its formation, (ii) be duly qualified as a foreign entity in each
jurisdiction in which the nature of its business makes such qualification
necessary or desirable, (iii) have the requisite power and authority to carry
on its business as now being conducted, (iv) have the requisite power to
execute, deliver and perform its obligations under this Guaranty, and (v)
comply with the provisions of all of its organizational documents, and the
Legal Requirements of the state of its formation.


 


(b)                                 The
execution, delivery and performance of this Guaranty (i) are within the
applicable powers of Guarantor; (ii) have been authorized by all requisite
action; (iii) have received all necessary approvals and consents, corporate,
governmental or otherwise; (iv) does not and will not violate, conflict with,
result in a breach of or constitute (with notice or lapse of time, or both) 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 Guarantor, or
any indenture, agreement or other instrument


 


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


 


(c)                                  This
Guaranty constitutes the legal, valid and binding obligations of Guarantor,
enforceable against Guarantor in accordance with its 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).


 


8.                                       Guarantor
and Borrower are separate and distinct entities with no identity of interest
with respect to any Indebtedness which may become owed or any payments which
may be made hereunder.  Borrower is not
contractually bound to Guarantor with respect to any payments hereafter made
under this Guaranty in any manner which would have the effect of imputing the
liability of Guarantor hereunder to Borrower.


 


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


 


10.                                 Nothing
herein contained shall in any manner affect the lien or priority of the
Mortgage, and upon the occurrence of an Event of a Default, the Lender may
invoke any remedies it may have under the Underlying Instruments, or this
Guaranty, either concurrently or successively and the exercise of any one or
more of such remedies shall not be deemed an exhaustion of such remedy or
remedies or a waiver of any other remedy or remedies and shall not be deemed an
election of remedies.  Guarantor hereby
specifically waives any defense to its performance under this Guaranty based
upon an election of remedies by Lender, including but not limited to an
election to foreclose by nonjudicial sale under any deed of trust, or security
agreement and pursue any other remedy which destroys, lessens or otherwise
affects Guarantor’s subrogation rights and/or its rights to reimbursement from
or to proceed against Borrower or any other person, when resulting from the
judicial or nonjudicial foreclosure (under any deed of trust, or security
agreement) or the selling or otherwise disposing of or collecting or applying
any property, real or personal, securing the Note, or otherwise.  The exercise by the Lender of any such
remedies shall not release or discharge Guarantor from its obligations
hereunder unless and until the full amount of the Indebtedness evidenced by the
Note and secured as aforesaid has been fully paid and satisfied, and any such
release or discharge shall be subject to the provisions of paragraph 4(b)
hereof.


 


11.                                 This
Guaranty shall remain in full force and effect until all obligations of the
Borrower under the Underlying Instruments have been satisfied in full and are
no longer subject to disgorgement under any applicable state or federal
creditor rights or bankruptcy laws.  No
delay on the part of the Lender in exercising any options, powers or rights, or
the partial or


 


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single exercise thereof,
shall constitute a waiver thereof. No waiver of any rights hereunder, and no modification
or amendment of this Guaranty, shall be deemed to be made by the Lender unless
the same shall be in writing, duly signed on behalf of the Lender, and each
such waiver (if any) shall apply only with respect to the specific instance
involved and shall in no way impair the rights of the Lender or the obligations
of Guarantor to the Lender in any other respect at any other time. This
Guaranty and the rights and obligations of the Lender and of Guarantor
hereunder shall be governed and construed in accordance with the laws of the
state of New York, without regard to its conflicts of law principles and this
Guaranty is binding upon Guarantor, Guarantor’s heirs, personal representatives
and permitted successors or assigns, and shall inure to the benefit of the
Lender and its successors or assigns.


 


12.                                 Guarantor
acknowledges that copies of the Underlying Instruments have been made available
to Guarantor and that Guarantor is familiar with their contents. Guarantor
affirmatively agrees that upon any Permitted Transfer effected in accordance
with the provisions of the Underlying Instruments, it shall not be necessary
for Guarantor to reaffirm its continuing obligations under this Guaranty, but
Guarantor will do so upon request by Lender; provided, however, in the event a
Permitted Transfer under items (ii) or (vi) of the Permitted Transfers occurs
in compliance with the terms and conditions stated in the Mortgage, then
Borrower may provide a substitute guarantor, acceptable to Lender in Lender’s
sole discretion, to assume the obligations of Guarantor under terms and
conditions acceptable to Lender. Lender’s approval of the substitute guarantor
shall be deemed granted so long as such substitute guarantor is a Qualified
Successor.


 


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


 


14.                                 Each
notice, consent, request or other communication under this Guaranty (each a
“Notice”) which any party hereto may desire or be required to give to the other
shall be deemed to be adequate and sufficient notice if given in writing and
service is made by either (i) registered or certified mail, postage prepaid, in
which case such notice shall be deemed to have been received three (3) business
days following deposit to U.S. mail; or (ii) nationally recognized overnight
air courier, next day delivery, prepaid, in which case such notice shall be
deemed to have been received one (1) business day following delivery to such
nationally recognized overnight air courier. All Notices shall be addressed to
Guarantor at its address given on the first page hereof, or to Lender at c/o
Principal Real Estate Investors, LLC, 801 Grand Avenue, Des Moines, Iowa
50392-1450, Attn:


 


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


 


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


 


16.                                 This
Guaranty may be executed in counterparts, each of which shall be deemed an
original; and such counterparts when taken together shall constitute but one
agreement.


 


17.                                 Capitalized
terms used herein and not otherwise defined shall have the meanings given to
them in the Underlying Instruments.


 


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


 


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


 


(REMAINDER OF PAGE
INTENTIONALLY BLANK

SIGNATURES ON NEXT PAGE)


 


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SIGNATURE PAGE OF
GUARANTOR

TO GUARANTY


 


42-1579325


(Guarantor’s
Identification Number)


 


 


	
   

  	
  INLAND WESTERN RETAIL
  REAL ESTATE

  TRUST, INC., a Maryland corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Valerie Medina

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Valerie
  Medina

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Asst.
  Secretary

  	
   

  
						



 


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