10-K

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 10-K

ý Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

For The Year ended December 31, 2004

or

o Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Commission File Number 333-103799

Inland Western Retail Real Estate Trust, Inc.
(Exact name of registrant as specified in its charter)

Maryland	42-1579325
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification Number)
2901 Butterfield Road,	Oak Brook, Illinois 60523
(Address of principal executive office)	(Zip Code)

Registrant’s telephone number, including area code:  630-218-8000

Securities registered pursuant to Section 12(b) of the Act:

Title of each class:	Name of each exchange on which registered:
None	None

Securities registered pursuant to Section 12(g) of the Act:

Title of each class:

None

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.  Yes   ý   No  o

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.  ý

The aggregate market value of the registrant’s common stock held by non-affiliates of the registrant as of June 30, 2004 (the last business day of the registrant’s most recently completed second fiscal quarter) was $848,794,990. Shares of the registrant’s common stock held by each executive officer and director and by each person who owns 10% or more of the outstanding common stock have been excluded in that such persons may be deemed to be affiliates. This determination of affiliate status is not necessarily a conclusive determination for other purposes.

Indicate by a checkmark whether the registrant is an accelerated filer (as defined in Securities Exchange Act Rule of 1934 in 12b-2)           ý   Yes          o  No

As of February 28, 2005, there were 260,058,421 shares of common stock outstanding.

Documents Incorporated by Reference:  Portions of the Registrant’s proxy statement for the annual shareholders meeting to be held in 2005 are incorporated by reference in Part III, Items 10, 11, 12, 13 and 14.

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.

(A Maryland Corporation)

TABLE OF CONTENTS

		Page
	Part I
Item 1.	Business	3
Item 2.	Properties	8
Item 3.	Legal Proceedings	18
Item 4.	Submission of Matters to a Vote of Security Holders	18
	Part II
Item 5.	Market for Registrant’s Common Equity and Related Stockholder Matters	18
Item 6.	Selected Financial Data	22
Item 7.	Management’s Discussion and Analysis of Financial Condition and Results of Operations	24
Item 7(a)	Quantitative and Qualitative Disclosures About Market Risk	37
Item 8.	Consolidated Financial Statements and Supplementary Data	39
Item 9.	Changes in and Disagreements with Accountants on Accounting and Financial Disclosure	74
Item 9(a)	Controls and Procedures	74
	Part III
Item 10.	Directors and Executive Officers of the Registrant	75
Item 11.	Executive Compensation	78
Item 12.	Security Ownership of Certain Beneficial Owners and Management	79
Item 13.	Certain Relationships and Related Transactions	79
Item 14.	Principal Accountant Fees and Services	79
	Part IV
Item 15.	Exhibits, Financial Statement Schedules, and Reports on Form 8-K	79
	SIGNATURES	104

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PART I

Item 1.  Business

General

Inland Western Retail Real Estate Trust, Inc. is a real estate investment trust or REIT which was formed in March of 2003 to acquire and manage a diversified portfolio of real estate, primarily multi-tenant shopping centers and single-user net lease properties. As of December 31, 2004, we owned a portfolio of 111 properties located in 28 states.  At December 31, 2004, the portfolio consisted of 87 multi-tenant shopping centers and 24 free-standing single-user net lease properties containing an aggregate of approximately 20,231,000 square feet of gross leasable area or GLA, of which approximately 97% of GLA was leased.  Our anchor tenants include nationally and regionally recognized financial companies, grocers, and tenants who provide basic household goods and services.  Of our total annualized portfolio revenue, approximately 48% is generated by anchor or credit tenants, including American Express, Zurich American Insurance Company, Best Buy, Ross Dress for Less, Bed Bath and Beyond, GMAC, Wal-Mart, Publix Supermarkets, and several others.  The term “credit tenant” is subjective and we apply the term to tenants who we believe have a substantial net worth.

During 2004, we invested approximately $3.2 billion for the acquisition of 82 multi-tenant shopping centers and 21 single-user net lease properties containing a total gross leasable area of approximately 19,434,000 square feet. See Item 2 for a more detailed description of these properties.  We also raised $2 billion in investor proceeds and obtained $1.7 billion in financing proceeds.

Inland Western Retail Real Estate Advisory Services, Inc., or the business manager/advisor, an affiliate of ours, serves as our business manager/advisor.  On September 15, 2003, we commenced an initial public offering or initial offering of up to 250,000,000 shares of common stock or shares at $10 each and the issuance of 20,000,000 shares at $9.50 each, which may be distributed pursuant to our distribution reinvestment program or DRP.

As of December 31, 2004, subscriptions for a total of 214,388,875 shares had been received from the public, which includes 20,000 shares issued to our business manager/advisor.  In addition, we sold 3,079,003 shares pursuant to the DRP and repurchased 10,350 shares pursuant to the share repurchase program or SRP as of December 31, 2004.  As a result of all sales, we received a total of $2,171,854,780 of gross offering proceeds, net of shares repurchased as of December 31, 2004. As of December 31, 2004, we have incurred organizational and offering costs totaling $234,014,231 for the sales of these shares.

On December 28, 2004, our second offering or second offering was declared effective by the Securities and Exchange Commission for the sale of up to 250,000,000 shares of common stock at $10 each and the issuance of up to 20,000,000 shares at $9.50 each, which may be distributed pursuant to our DRP.  We began sales of the second offering in January 2005.

Acquisition Strategies

We intend to continue to acquire and manage a diversified (by geographical location and by type and size of shopping centers) portfolio of real estate primarily improved for use as retail establishments, principally multi-tenant shopping centers and single-user net lease properties.  The retail centers we have acquired are located in states both east and west of the Mississippi River in the United States.  Our portfolio will continue to consist of predominantly grocery and discount anchored shopping centers and single-user net lease properties.  We will continue to acquire real estate improved with other commercial facilities which provide goods and services as well as double or triple net leased properties, which are either commercial or retail, including properties acquired in sale and leaseback transactions. A triple-net leased property is one which is leased to a tenant who is responsible for the base rent and all costs and expenses associated with their occupancy including property taxes, insurance and repairs and maintenance.

Our goal is to purchase properties principally west of the Mississippi River and evaluate potential acquisition opportunities of properties east of the Mississippi River on a property by property basis taking into consideration investment objectives and available funds. During 2004, we purchased 103 properties, of which 48 were located west of the Mississippi River and 55 were located east of the Mississippi River.  Our strategy in purchasing the properties east of the Mississippi River was to deploy stockholders’ funds promptly and generate income as early as possible. We are unable

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to determine the ultimate geographic location of our portfolio of properties at this stage of our capital raise and acquisition of properties.

When acquiring a property, to ascertain the value of an investment property, we take into consideration many factors which require difficult, subjective, or complex judgments to be made.  These judgments require us to make assumptions when valuing each investment property.  Such assumptions include projecting vacancy rates, rental rates, property operating expenses, capital expenditures, and debt financing rates, among other assumptions.  The capitalization rate is also a significant driving factor in determining the property valuation which requires judgment of factors such as market knowledge, historical experience, length of leases, tenant financial strength, economy, demographics, environment, property location, visibility, age, and physical condition, and investor return requirements, among others.  Furthermore, at the acquisition date, we require that every property acquired is supported by an independent appraisal.  All of the aforementioned factors are taken as a whole in determining the valuation.

Key elements of our acquisition strategy include:

•Selectively acquiring diversified and well-located properties of the type described above.

•Acquiring properties, in most cases, on an all-cash basis to provide us with a competitive advantage over potential purchasers who must secure financing. We may, however, acquire properties subject to existing indebtedness if we believe this is in our best interest.  We intend to obtain mortgage financing concurrently or subsequent to the purchase.

•Diversifying geographically within the principal geographical area of interest by acquiring properties primarily located in major consolidated metropolitan statistical areas, in order to minimize the potential adverse impact of economic downturns in certain markets.

Business and Operating Strategies

Because we continue to raise capital through public offerings, management continues to focus on acquiring properties that meet our investment objectives. However, because we have purchased 111 properties as of December 31, 2004, we are also focusing towards enhancing the value of our properties.  We are now in the process of identifying those properties which will benefit from redevelopment, including additions to existing space through planning techniques, working with tenants to extend leases while they improve their stores and developing available land which we own.

We seek to provide an attractive return to our stockholders by taking advantage of our strong presence in many markets. We are able to accommodate the growth needs of tenants who are interested in working with one landlord in multiple locations. Because of our focused acquisition strategy, we possess large amounts of retail space in certain markets, thus allowing us to lease and re-lease space at favorable rental rates. Working with our property management companies, we

focus on the needs and problems facing our tenants, so we can provide solutions whenever possible. Because of our size, we enjoy the benefits of purchasing goods and services in large quantities, thus creating cost savings and improving efficiency. The result of these activities, we believe, will lead to profitability and growth as we go forward.

Because we own over 20 million square feet of real estate property and continue to grow, day-to-day property management is a key element of our operating strategy. Our asset management philosophy includes working closely with our property managers to achieve the following goals:

•Employ experienced, well trained property managers, leasing agents and collection personnel;

•Actively manage costs and minimize operating expenses by centralizing management, leasing, marketing, financing, accounting, renovation and data processing activities;

•Improve rental income and cash flow by aggressively marketing rentable space;

•Emphasize regular maintenance and periodic renovation to meet the needs of tenants and to maximize long-term returns;

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•Maintain a diversified tenant base at our retail centers, consisting primarily of retail tenants providing basic consumer goods and services; and

•Identify properties that will benefit from asset enhancement including renovation and development of land that we own.

Financing Strategy

Generally, we have and will continue to acquire properties free and clear of permanent mortgage indebtedness by paying the entire purchase price of each property in cash. However, if it is determined to be in our best interest, we will, in most instances, incur indebtedness to acquire properties. With respect to properties purchased on an all-cash basis, we have and will continue to incur mortgage indebtedness by obtaining loans secured by selected properties if favorable financing terms are available.  The proceeds from such loans would be used to acquire additional properties.  We may also incur indebtedness to finance improvements to our properties. We anticipate that, in general, aggregate financings secured by all of our properties will not exceed 55% of their combined fair market value.  Our articles of incorporation provide that the aggregate amount of borrowing, in relation to our net assets, shall not, in the absence of a satisfactory showing that a higher level of borrowing is appropriate, exceed 300% of net assets. We employ financing strategies to take advantage of trends we anticipate with regard to interest rates. One such strategy is to use variable rate financing with the option to fix the rate at a later date. Our intention is to use variable rate financing on a small portion of our portfolio, resulting in a ratio of less than 20% of total debt.

During 2004, we worked with three financial institutions to obtain a $100 million unsecured line of credit. This line of credit gives us great flexibility in fulfilling our acquisition strategy, funding our development activities and maintaining overall liquidity to meet operating requirements, should the need arise.

Tax Status

We qualified and have elected to be taxed as a real estate investment trust or REIT under Sections 856 through 860 of the Internal Revenue Code of 1986 or the Code for the tax year ending December 31, 2004.  Since we qualify for taxation as a REIT, we generally will not be subject to Federal income tax to the extent we distribute at least 90% of our REIT taxable income to shareholders.   If we fail to qualify as a REIT in any taxable year, we will be subject to Federal income tax (including any applicable alternative minimum tax) on its taxable income at regular corporate rates.  Even if we qualify for taxation as a REIT, we may be subject to certain state and local taxes on its income and property and to Federal income and excise taxes on our undistributed income.

Competition

We continue to see intense competition for the types of properties in which we invest. In seeking new investment opportunities, we compete with other real estate investors, including pension funds, insurance companies, foreign investors, real estate partnerships, other real estate investment trusts, private individuals and other domestic real estate companies, some of which have greater financial resources than we do.  With respect to properties presently owned or to be owned by us, we compete with other owners of like properties for tenants.  There can be no assurance that we will be able to successfully compete with such entities in developing, acquiring, and leasing activities in the future.

Our business is inherently competitive. Property owners, including us, compete on the basis of location, visibility, quality and aesthetic value of construction, volume of traffic, strength and name recognition of tenants and other factors. These factors combine to determine the level of occupancy and rental rates that we are able to achieve at our properties. Further, our tenants compete with other forms of retailing, including e-commerce, catalog companies and direct consumer sales.  We may, at times, compete with newer properties or those in more desirable locations. To remain competitive, we evaluate all of the factors affecting our centers and position them accordingly. For example, we may decide to focus on renting space to specific retailers who will complement our existing tenants and increase traffic. We believe we have achieved relatively high occupancy levels at our properties through our knowledge of the competitive factors in the

markets where we operate.

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Business Risks

The retail sector has remained relatively stable as a result of sustained consumer spending, which has helped maintain retail sales growth despite the national economic position, potential terrorist threats and the Iraqi war.  A modest pace of new retail construction, and the expansion strategy of some retailers, who are renting more space to maintain market share and revenue growth and offset declining same store sales has also contributed to the stability.

While sustained consumer spending, spurred by low interest rates, has helped to maintain retail sales growth, changing demographics and consumer preferences have resulted in a fundamental shift in consumer spending patterns and the emergence of discount retail as a dominant category.  As a result of this trend, some conventional department stores are struggling and a number of local, regional and national retailers have been forced to voluntarily close their stores or file for bankruptcy protection. None of these conventional retailers are tenants in properties we currently own. Some bankrupt retailers have reorganized their operations and/or sold stores to stronger operators.  In some instances, bankruptcies and store closings may create opportunities to lease space at higher rents to tenants with better sales performance. Therefore, we do not expect store closings or bankruptcy reorganizations to have a material impact on our consolidated financial position or the results of our operations.

We believe our risk exposure to potential future downturns in the economy is mitigated because the tenants at our current and targeted properties, to a large extent, consist or will consist of: 1) retailers who serve primary non-discretionary shopping needs, such as grocers and pharmacies; 2) discount chains that can compete effectively during an economic downturn; and 3) national tenants with strong credit ratings who can withstand a downturn. We believe that the diversification of our current and targeted tenant base and our focus on creditworthy tenants further reduces our risk exposure.

Revenue from the properties depends on the amount of the tenants’ retail revenue, making us vulnerable to general economic downturns and other conditions affecting the retail industry.  Some of the leases provide for base rent plus contractual base rent increases.  A number of the leases also include a percentage rent clause for additional rent above the base amount based upon a specified percentage of the sales the tenant generates.  As of December 31, 2004, 19 tenant leases paid percentage rent.  Under those leases which contain percentage rent clauses, the revenue from tenants may increase as the sales of the tenant increases.

We continually monitor the financial condition of our tenants both at the corporate and property levels.  We currently own properties which have Toys R Us, Pier 1 Imports and Bally Total Fitness as tenants. These tenants have experienced recent financial losses.  Our rental revenue from these tenants’ stores represented approximately 2.2% of the portfolio’s rental revenue in 2004 and 1.8% of the portfolio’s annualized base rental income as of February 28, 2005.

In some cases, if one of these tenants vacates their space due to the inability to meet its financial obligations, the opportunity exists for us to re-let the space at a significantly higher rent.

All real property investments are subject to some degree of risk.  We are subject to risks existing due to a concentration of any single tenant within the portfolio.  Currently, the largest tenant is American Express, which has seven leases which represent approximately 2,201,000 square feet, or approximately 9.8% of the total gross leasable area owned by us as of February 28, 2005.  The annualized base rental income of this lease is approximately $22,203,000, or approximately 8.1% of the total annualized base rental income, based on our Company’s portfolio of properties as of February 28, 2005.

The loss of an anchor tenant or a major tenant or their inability to pay rent could have an adverse effect on the performance of a property and our business.

Employees

As of December 31, 2004, we did not have any direct employees.

Access to Company Information

We will electronically file our annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and all amendments to those reports with the Securities and Exchange Commission (SEC).  The public may read and copy any of the reports that are filed with the SEC at the SEC’s Public Reference Room at 450 Fifth Street, NW, Washington,

6

DC 20549.  The public may obtain information on the operation of the Public Reference Room by calling the SEC at (800)-SEC-0330.  The SEC maintains an Internet site at www.sec.gov that contains reports, proxy and information statements and other information regarding issuers that file electronically.

We make available, free of charge through our website, and by responding to requests addressed to our director of investor relations, the annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and all amendments to those reports. These reports are available as soon as reasonably practical after such material is electronically filed or furnished to the SEC. Our website address is www.inlandgroup.com. The information contained on our website, or other websites linked to our website, is not part of this document.

Stockholders wishing to communicate with the Board or any Committee can do so by writing to the attention of the Board or Committee in care of our Company at 2901 Butterfield Road, Oak Brook, IL 60523.

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Item 2. Properties

As of December 31, 2004, we, through separate limited partnerships, limited liability companies, or joint venture agreements have acquired fee ownership of 87 multi-tenant shopping centers and 24 single-user buildings containing an aggregate of approximately 20,231,000 gross leasable square feet located in 28 states as follows:

Multi-Tenant	Gross Leasable Area (Sq. Ft.)	Date Acquired	Year Built / Renovated	Amount of Mortgages Payable at 12/31/04		No. of Tenants as of 12/31/04	Major Tenants*
23rd Street Plaza	53,376	12/04	2003	$	—	2	Bed, Bath & Beyond
Panama City, FL							Ross Dress for Less
Alison’s Corner	55,066	04/04	2003	3,850,000		4	Ross Dress for Less
San Antonio, TX.							Shoe Carnival
							Mattress Firm
Arvada Connection	61,079	04/04	1987-1990	28,510,000		12	Old Country Buffet
and							Pier 1 Imports
Arvada Marketplace	313,559					26	Sam’s Club
Arvada, CO							Gart Sports
Azalea Square	190,142	10/04	2004	16,535,000		21	T.J. Maxx
Summerville, SC							Linens ‘N Things
							Ross Dress for Less
							Cost Plus World Market
							PETsMART
Bed, Bath & Beyond Plaza	97,456	10/04	2004	11,192,500		15	Bed, Bath & Beyond
Miami, FL							Office Depot
							Pier 1 Imports
							Party City
Best on the Boulevard	204,427	04/04	1996-1999	19,525,000		9	Best Buy
Las Vegas, NV							Barnes & Noble Bookstore
							Copeland Enterprises
Bluebonnet Parc	135,289	04/04	2002	12,100,000		7	Best Buy
Baton Rouge, LA							Linens ‘N Things
							Cost Plus World Market
Boulevard at the Capital Centre	474,372	09/04	2004	71,500,000		61	Lowe’s Theaters - Magic Johnson
Largo, MD
The Columns	173,427	08/04	2004	14,865,400		15	Best Buy
Jackson, TN		10/04					Ross Dress for Less
							Marshalls
Coram Plaza	144,191	12/04	2004	20,760,000		20	Stop & Shop
Coram, NY
CorWest Plaza	115,011	01/04	1999 - 2003	18,150,000		10	Super Stop & Shop
New Britain, CT							Liquor Depot
							CVS Pharmacy

8

Multi-Tenant (continued)	Gross Leasable Area (Sq. Ft.)	Date Acquired	Year Built / Renovated	Amount of Mortgages Payable at 12/31/04	No. of Tenants as of 12/31/04	Major Tenants*
Cranberry Square	195,566	07/04	1996-1997	10,900,000	5	Barnes & Noble
Cranberry Township, PA						Dick’s Sporting Goods
						Best Buy
						Office Max
						Toys “R” Us
Darien Towne Center	223,844	12/03	1994	16,500,000	12	Home Depot
Darien, IL						Circuit City
						PETsMART
Davis Towne Crossing	34,091	06/04	2003-2004	5,365,200	12	Lady USA Fitness
North Richland Hills, TX						Cotton Patch Café
Denton Crossing	279,040	10/04	2003-2004	35,200,000	30	Oshman’s Sporting Goods
Denton, TX						Best Buy
						T.J. Maxx
Dorman Center - Phase I & II	388,067	03/04	2003-2004	27,610,000	27	Wal-Mart Supercenter
Spartanburg, SC		07/04
Eastwood Towne Center	332,131	05/04	2002	46,750,000	61	Dick’s Sporting Goods
Lansing, MI
Edgemont Town Center	77,655	11/04	2003	—	14	Publix
Homewood, AL
Evans Towne Centre	75,695	12/04	1995	—	14	Publix
Evans, GA
Five Forks	64,173	12/04	1999	—	8	Bi-Lo
Simpsonville, SC
Forks Town Center	92,660	07/04	2002	10,395,000	16	Giant Food Stores
Easton, PA
Fox Creek Village	114,401	11/04	2003-2004	11,485,000	14	King Soopers
Longmont, CO						King Soopers Fuel Site
Fullerton Metrocenter	253,296	06/04	1988	28,050,000	42	SportMart
Fullerton, CA						Henry’s Marketplace
Gateway Pavilions	301,233	12/04	2003-2004	35,842,000	34	Circuit City
Avondale, AZ						The Sports Authority
Gateway Plaza	358,091	07/04	2000	18,163,000	26	Kohl’s
Southlake, TX
Gateway Station	19,537	12/04	2003-2004	—	6	Kirkland’s
College Station, TX						Talbots
						Joseph A. Banks
						Chico’s

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Multi-Tenant (continued)	Gross Leasable Area (Sq. Ft.)	Date Acquired	Year Built / Renovated	Amount of Mortgages Payable at 12/31/04	No. of Tenants as of 12/31/04	Major Tenants*
Gateway Village	273,788	07/04	1996	31,458,000	14	Safeway
Annapolis, MD						Burlington Coat Factory
						Best Buy
Governor’s Marketplace	231,915	08/04	2001	20,625,000	20	Bed, Bath & Beyond
Tallahassee, FL						Sports Authority
						Marshalls
Green’s Corner	85,271	12/04	1997	—	12	Kroger
Cumming, GA
Gurnee Town Center	179,602	10/04	2000	24,360,000	26	Linens ‘N Things
Gurnee, IL						Old Navy
						Borders & Music
						Cost Plus World Market
Harvest Towne Center	42,235	09/04	1996-1999	5,005,000	12	CVS Pharmacy
Knoxville, TN						Pet Supplies Plus
						Ruby Tuesday
Henry Town Center	444,296	12/04	2002	35,814,616	44	BJ’s Wholesale Club
McDonough, GA						Belk
Heritage Towne Crossing	73,579	03/04	2002	8,950,000	29	N/A
Euless, TX
Hickory Ridge	380,487	01/04	1999	23,650,000	21	Best Buy
Hickory, NC						Kohl’s
						Linens ‘N Things
Huebner Oaks Center	286,684	06/04	1997-1998	48,000,000	56	Bed, Bath & Beyond
San Antonio, TX
Irmo Station	99,619	12/04	1980 &1985	—	17	Kroger
Irmo, SC
John’s Creek Village	141,802	06/04	2003-2004	23,300,000	17	LA Fitness
Duluth, GA						Ross Dress for Less
						T.J. Maxx
La Plaza Del Norte	320,345	01/04	1996/1999	32,528,000	16	Oshman’s Sporting Goods
San Antonio, TX						Best Buy
						Bealls
Lake Mary Pointe	51,052	10/04	1999	3,657,500	9	Publix
Orlando, FL
Lakewood Towne Center	578,913	06/04	1988/2002- 2003	51,260,000	27	Gottschalk’s
Lakewood, WA						Burlington Coat Factory
Larkspur Landing	173,635	01/04	1978/2001	33,630,000	35	Bed, Bath & Beyond
Larkspur, CA						24 Hour Fitness

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Multi-Tenant (continued)	Gross Leasable Area (Sq. Ft.)	Date Acquired	Year Built / Renovated	Amount of Mortgages Payable at 12/31/04	No. of Tenants as of 12/31/04	Major Tenants*
Lincoln Park	148,806	09/04	1998	26,153,000	14	Tom Thumb
Dallas, TX						Barnes & Noble
						The Container Store
Low Country Village	76,479	06/04	2004	5,370,000	7	Ross Dress for Less
Bluffton, SC						Michaels
						PETsMART
MacArthur Crossing	109,755	02/04	1995-1996	12,700,000	28	Stein Mart
Los Colinas, TX
Manchester Meadows	454,172	08/04	1994-1995	31,064,550	21	Wal-Mart
Town and Country, MO						Home Depot
Mansfield Towne Crossing	95,277	11/04	2003-2004	10,982,300	18	Ross Dress for Less
Mansfield, TX						Staples
McAllen Shopping Center	17,665	12/04	2004	—	7	Hollywood Video
McAllen, TX
Mesa Fiesta	194,892	12/04	2004	—	8	Best Buy
Mesa, AZ						Marshalls
						Borders Books & Music
						CompUSA
						Oak Showcase
Mitchell Ranch Plaza	200,404	08/04	2003	18,700,000	36	Publix
New Port Richey, FL						Marshalls
						Ross Dress for Less
Newnan Crossing I & II	392,050	12/03	1999-2004	23,766,191	29	BJ’s Wholesale Club
Newnan, GA		02/04
Newton Crossroads	78,896	12/04	1997	—	11	Kroger
Covington, GA
North Ranch Pavilions	62,812	01/04	1992	10,157,400	24	Savvy Salon
Thousand Oaks, CA
North Rivers Town Center	141,204	04/04	2003-2004	11,050,000	16	Ross Dress for Less
Charleston, SC						Bed, Bath & Beyond
						Office Depot
Northgate North	302,095	06/04	1999-2003	26,650,000	8	Target
Seattle, WA						Best Buy
Northpointe Plaza	377,949	05/04	1991-1993	30,850,000	31	Safeway
Spokane, WA						Gart Sports
						Best Buy
Northwoods Center	74,647	12/04	2002-2004	11,192,500	16	Marshalls
Wesley Chapel, FL						PETCO

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Multi-Tenant (continued)	Gross Leasable Area (Sq. Ft.)	Date Acquired	Year Built / Renovated	Amount of Mortgages Payable at 12/31/04	No. of Tenants as of 12/31/04	Major Tenants*
Oswego Commons	187,651	11/04	2002-2004	19,262,100	23	Dominick’s
Oswego, IL						T.J. Maxx
						OfficeMax
Paradise Valley Marketplace	92,158	04/04	2002	15,680,500	17	Whole Foods
Phoenix, AZ
Pavilion at King’s Grant	79,109	12/03	2002-2003	5,342,000	7	Toys “R” Us
Concord, NC
Peoria Crossings	213,733	03/04	2002-2003	20,497,400	21	Kohl’s
Peoria, AZ						Ross Dress for Less
						Michaels
Phenix Crossing	56,563	12/04	2004	—	9	Publix
Phenix City, AL
Pine Ridge Plaza	230,510	06/04	1998-2004	14,700,000	14	T.J. Maxx
Lawrence, KS						Bed, Bath & Beyond
						Kohl’s
Placentia Town Center	110,962	12/04	1973/2000	13,695,000	20	Ross Dress for Less
Placentia, CA						OfficeMax
Plaza at Marysville	115,656	07/04	1995	11,800,000	26	Safeway
Marysville, WA
Plaza at Riverlakes	102,836	10/04	2001	—	22	Ralph’s Grocery Store
Bakersfield, CA
Plaza Santa Fe II	222,389	06/04	2000-2002	17,393,732	21	Linens ‘N Things
Santa Fe, NM						Best Buy
						T.J. Maxx
Pleasant Run Towne Center	201,587	12/04	2004	22,800,000	21	Oshman’s Sporting Goods
Cedar Hill, TX						Circuit City
Promenade at Red Cliff	94,445	02/04	1997	10,590,000	18	Staples
St. George, UT						Old Navy
						Big 5 Sporting Goods
						Bank of America
Reisterstown Road Plaza	768,659	08/04	1986/2004	49,650,000	83	Home Depot
Baltimore, MD						Public Safety
						National Wholesale Liquidators
Saucon Valley Square	80,695	09/04	1999	8,850,900	14	Super Fresh Food Market
Bethlehem, PA
Shoppes at Lake Andrew	144,772	12/04	2003	15,656,511	18	Ross Dress for Less
Viera, FL						Linens ‘N Things
						Rag Shop

12

Multi-Tenant (continued)	Gross Leasable Area (Sq. Ft.)	Date Acquired	Year Built / Renovated	Amount of Mortgages Payable at 12/31/04		No. of Tenants as of 12/31/04	Major Tenants*
The Shoppes at Park West (Publix Center)	64,832	11/04	2004	6,655,000		11	Publix
Mt. Pleasant, SC
Shoppes at Quarterfield	61,817	01/04	1999	6,067,183		2	Shoppers Food
(Metro Square Center)							Warehouse
Severn, MD
Shoppes of Dallas	70,610	07/04	2004	7,178,700		15	Publix
Dallas, GA
Shoppes of Prominence Point	78,058	06/04	2004	9,954,300		18	Publix
Canton, GA
The Shops at Boardwalk	122,916	07/04	2003-2004	20,150,000		24	Borders Books
Kansas City, MO
Shops at Forest Commons	34,756	12/04	2002	5,229,789		16	Blockbuster Video
Round Rock, TX
Shops at Park Place	116,300	10/03	2001	13,127,000		11	Bed, Bath & Beyond
Plano, TX							Michaels
							OfficeMax
Southlake Town Square	471,324	12/04	1998-2004	—		152
Southlake, TX
Stilesboro Oaks	80,772	12/04	1997	—		13	Kroger
Acworth, GA
Stony Creek Marketplace	153,796	12/03	2003	14,162,000		20	T.J. Maxx
Noblesville, IN							Linens ‘N Things
							Barnes & Noble
Tollgate Marketplace	392,587	07/04	1979/1994	39,765,000		34	Giant Food
Bel Air, MD							JoAnn Fabrics
Towson Circle	116,012	07/04	1998	19,197,500		13	Barnes & Noble
Towson, MD							Trader Joe’s East
							Bally’s Total Fitness
University Town Center	57,250	11/04	2002	—		15	Publix
Tuscaloosa, AL
Village Shoppes at Simonton	66,415	08/04	2004	7,561,700		10	Publix
Lawrenceville, GA
Watauga Pavilion	205,195	05/04	2003-2004	17,100,000		17	Oshman’s Sporting Goods
Watauga, TX							Ross Dress for Less
							Bed, Bath & Beyond
Winchester Commons	93,024	11/04	1999	7,235,000		15	Kroger
Memphis, TN
	15,804,590			$	1,423,423,471

13

Single-User	Gross Leasable Area (Sq. Ft.)	Date Acquired	Year Built / Renovated	Amount of Mortgages Payable at 12/31/04		No. of Tenants as of 12/31/04	Major Tenants*
Academy Sports	60,001	07/04	2004	$	2,920,000	1	Academy Sports
Houma, LA
Academy Sports	61,150	10/04	2004	2,337,500		1	Academy Sports
Midland, TX
Academy Sports	61,001	10/04	2004	2,775,000		1	Academy Sports
Port Arthur, TX
American Express	132,336	12/04	2000	11,623,000		1	American Express
De Pere, WI
American Express	376,348	12/04	1975	37,170,000		1	American Express
Ft. Lauderdale, FL
American Express	389,377	12/04	1986	33,040,000		1	American Express
Greensboro, NC
American Express	541,542	12/04	1989	56,050,000		1	American Express
Minneapolis, MN
American Express - 19th Avenue	117,556	12/04	1983	8,260,000		1	American Express
Phoenix, AZ
American Express - 31st Avenue	337,439	12/04	1985	31,860,000		1	American Express
Phoenix, AZ
CVS Pharmacy (Eckerd Drug Store)	13,824	12/03	2003	1,850,000		1	CVS Pharmacy
Edmund, OK
CVS Pharmacy (Eckerd Drug Store)	13,824	12/03	2003	2,900,000		1	CVS Pharmacy
Norman, OK
CVS Pharmacy	10,055	10/04	2004	1,685,000		1	CVS Pharmacy
Sylacauga, AL
Eckerd Drug Store	13,440	06/04	2003-2004	1,750,000		1	Eckerd Drug Store
Columbia, SC
Eckerd Drug Store	13,824	06/04	2003-2004	1,425,000		1	Eckerd Drug Store
Crossville, TN
Eckerd Drug Store	13,824	06/04	2003-2004	1,650,000		1	Eckerd Drug Store
Greer, SC
Eckerd Drug Store	13,824	06/04	2003-2004	1,975,000		1	Eckerd Drug Store
Kill Devil Hills, NC
GMAC	501,064	09/04	1980/1990	33,000,000		1	GMAC Insurance
Winston-Salem, NC
Harris Teeter	57,230	09/04	1977/1995	3,960,000		1	Harris Teeter Store #158
Wilmington, NC

14

Single-User (continued)	Gross Leasable Area (Sq. Ft.)	Date Acquired	Year Built / Renovated	Amount of Mortgages Payable at 12/31/04		No. of Tenants as of 12/31/04	Major Tenants*
Kohl’s/Wilshire Plaza III	88,248	07/04	2004	5,417,500		1	Kohl’s
Kansas City, MO		11/04
Shaw’s Supermarket	65,658	12/03	1995	6,450,000		1	Shaw’s Supermarket
New Britain, CT
Wal-Mart Supercenter	183,047	07/04	1999	7,100,000		1	Wal-Mart Supercenter
Blytheville, AR
Wal-Mart Supercenter	149,704	08/04	1997	6,088,500		1	Wal-Mart Supercenter
Jonesboro, AR
Wrangler	316,800	07/04	1993	11,300,000		1	Wrangler
El Paso, TX
Zurich Towers	895,418	11/04	1988-1990	81,420,000		1	Zurich American Insurance
Schaumburg, IL
	4,426,534			$	354,006,500
Total acquisitions	20,231,124			$	1,777,429,971

* Major tenants include tenants leasing more than 10% of the gross leasable area of the property.

No one single tenant exceeds 10% of the total gross leasable area.

The total gross leasable area includes 717,123 square feet of space leased to tenants under ground lease agreements.

We have a 95% ownership interest in the LLC’s which own Boulevard at the Capital Centre, Gateway Village, Reisterstown Road Plaza, Tollgate Marketplace and Towson Circle.

In addition to the properties listed above, we consolidate one 124-unit apartment property, Cardiff Hall East, in which we made an investment through a joint venture arrangement on October 15, 2004.  This property, which is located in Towson, MD, had a mortgage payable with a balance of $5,108,656 at December 31, 2004.

The majority of the income from our properties consists of rent received under long-term leases.  Most of the leases provide for the payment of fixed minimum rent paid monthly in advance, and for the payment by tenants of a pro rata share of the real estate taxes, special assessments, insurance, utilities, common area maintenance, management fees, and certain building repairs of the center.  Certain of the major tenant leases provide that the landlord is obligated to pay certain of these expenses above or below specific levels.  Some of the leases also provide for the payment of percentage rent, calculated as a percentage of a tenant’s gross sales above predetermined thresholds.

The following table lists the approximate physical occupancy levels and gross leasable area for our investment properties as of December 31, 2004 and December 31, 2003.  The weighted average gross leasable area occupied at December 31, 2004 and December 31, 2003 was 96% and 98%, respectively.  N/A indicates the property was not owned by us at the end of the period.

15

		December 31, 2004		December 31, 2003
Properties:	Location	GLA Occupied	(%)	GLA Occupied	(%)
23rd Street Plaza *	Panama City, FL	50,701	95	N/A	N/A
Academy Sports	Houma, LA	60,001	100	N/A	N/A
Academy Sports	Midland, TX	61,150	100	N/A	N/A
Academy Sports	Port Arthur, TX	61,001	100	N/A	N/A
Alison’s Corner	San Antonio, TX	55,066	100	N/A	N/A
American Express	De Pere, WI	132,336	100	N/A	N/A
American Express	Greensboro, NC	389,377	100	N/A	N/A
American Express	Ft. Lauderdale, FL	376,348	100	N/A	N/A
American Express	Minneapolis, MN	541,542	100	N/A	N/A
American Express - 19th Avenue	Phoenix, AZ	117,556	100	N/A	N/A
American Express - 31st Avenue	Phoenix, AZ	337,439	100	N/A	N/A
Arvada Connection and Arvada Marketplace *	Arvada, CO	336,302	90	N/A	N/A
Azalea Square *	Summerville, SC	185,242	97	N/A	N/A
Bed, Bath & Beyond Plaza	Miami, FL	96,056	99	N/A	N/A
Best on the Boulevard *	Las Vegas, NV	161,809	79	N/A	N/A
Bluebonnet Parc *	Baton Rouge, LA	128,289	95	N/A	N/A
Boulevard at the Capital Centre*	Largo, MD	434,917	92	N/A	N/A
The Columns *	Jackson, TN	166,227	96	N/A	N/A
Coram Plaza	Coram, NY	132,494	92	N/A	N/A
CorWest Plaza *	New Britain, CT	114,023	99	N/A	N/A
Cranberry Square	Cranberry Township, PA	180,585	92	N/A	N/A
CVS Pharmacy (Eckerd Drug Store)	Edmund, OK	13,824	100	13,824	100
CVS Pharmacy (Eckerd Drug Store)	Norman, OK	13,824	100	13,824	100
CVS Pharmacy	Sylacauga, AL	10,055	100	N/A	N/A
Darien Towne Center *	Darien, IL	210,010	94	212,682	95
Davis Towne Crossing	North Richland Hills, TX	31,091	91	N/A	N/A
Denton Crossing *	Denton, TX	266,040	95	N/A	N/A
Dorman Center - Phase I & II *	Spartanburg, SC	381,467	98	N/A	N/A
Eastwood Towne Center *	Lansing, MI	322,722	97	N/A	N/A
Eckerd Drug Store	Columbia, SC	13,440	100	N/A	N/A
Eckerd Drug Store	Crossville, TN	13,824	100	N/A	N/A
Eckerd Drug Store	Greer, SC	13,824	100	N/A	N/A
Eckerd Drug Store	Kill Devil Hills, NC	13,824	100	N/A	N/A
Edgemont Town Center *	Homewood, AL	70,055	90	N/A	N/A
Evans Towne Centre	Evans, GA	73,295	97	N/A	N/A
Five Forks	Simpsonville, SC	60,673	95	N/A	N/A
Forks Town Center	Easton, PA	88,660	96	N/A	N/A
Fox Creek Village *	Longmont, CO	94,833	83	N/A	N/A
Fullerton Metrocenter *	Fullerton, CA	236,356	93	N/A	N/A
Gateway Pavilions *	Avondale, AZ	244,020	81	N/A	N/A
Gateway Plaza	Southlake, TX	334,030	93	N/A	N/A
Gateway Station	College Station, TX	19,537	100	N/A	N/A
Gateway Village	Annapolis, MD	261,807	96	N/A	N/A
GMAC	Winston-Salem, NC	501,064	100	N/A	N/A
Governor’s Marketplace *	Tallahassee, FL	218,437	94	N/A	N/A
Green’s Corner	Cumming, GA	85,271	100	N/A	N/A
Gurnee Town Center *	Gurnee, IL	172,188	96	N/A	N/A
Harris Teeter	Wilmington, NC	57,230	100	N/A	N/A
Harvest Towne Center *	Knoxville, TN	42,235	100	N/A	N/A
Henry Town Center *	McDonough, GA	444,296	100	N/A	N/A
Heritage Towne Crossing	Euless, TX	72,119	98	N/A	N/A
Hickory Ridge	Hickory, NC	380,487	100	N/A	N/A

16

		December 31, 2004		December 31, 2003
Properties:	Location	GLA Occupied	(%)	GLA Occupied	(%)
Huebner Oaks Center	San Antonio, TX	282,286	98	N/A	N/A
Irmo Station	Irmo, SC	90,960	91	N/A	N/A
John’s Creek Village	Duluth, GA	141,802	100	N/A	N/A
Kohl’s/Wilshire Plaza III	Kansas City, MO	88,248	100	N/A	N/A
La Plaza Del Norte *	San Antonio, TX	303,245	95	N/A	N/A
Lake Mary Pointe	Orlando, FL	48,952	96	N/A	N/A
Lakewood Towne Center *	Lakewood, WA	550,613	95	N/A	N/A
Larkspur Landing	Larkspur, CA	156,313	90	N/A	N/A
Lincoln Park	Dallas, TX	148,806	100	N/A	N/A
Low Country Village *	Bluffton, SC	75,241	98	N/A	N/A
MacArthur Crossing	Los Colinas, TX	107,759	98	N/A	N/A
Manchester Meadows	Town and Country, MO	442,272	97	N/A	N/A
Mansfield Towne Crossing	Mansfield, TX	95,277	100	N/A	N/A
McAllen Shopping Center	McAllen, TX	17,665	100	N/A	N/A
Mesa Fiesta	Mesa, AZ	194,892	100	N/A	N/A
Mitchell Ranch Plaza *	New Port Richey, FL	190,404	95	N/A	N/A
Newnan Crossing I & II	Newnan, GA	392,050	100	127,260	97
Newton Crossroads	Covington, GA	78,896	100	N/A	N/A
North Ranch Pavilions	Thousand Oaks, CA	55,928	89	N/A	N/A
North Rivers Town Center	Charleston, SC	141,204	100	N/A	N/A
Northgate North	Seattle, WA	297,006	98	N/A	N/A
Northpointe Plaza *	Spokane, WA	373,207	99	N/A	N/A
Northwoods Center	Wesley Chapel, FL	74,647	100	N/A	N/A
Oswego Commons	Oswego, IL	186,451	99	N/A	N/A
Paradise Valley Marketplace *	Phoenix, AZ	72,704	79	N/A	N/A
Pavilion at King’s Grant	Concord, NC	79,109	100	79,009	100
Peoria Crossings *	Peoria, AZ	209,211	98	N/A	N/A
Phenix Crossing	Phenix City, AL	53,817	95	N/A	N/A
Pine Ridge Plaza	Lawrence, KS	230,510	100	N/A	N/A
Placentia Town Center	Placentia, CA	107,658	97	N/A	N/A
Plaza at Marysville	Marysville, WA	111,656	97	N/A	N/A
Plaza at Riverlakes *	Bakersfield, CA	102,836	100	N/A	N/A
Plaza Santa Fe II *	Santa Fe, NM	218,589	98	N/A	N/A
Pleasant Run Towne Center	Cedar Hill, TX	201,587	100	N/A	N/A
Promenade at Red Cliff	St. George, UT	89,561	95	N/A	N/A
Reisterstown Road Plaza *	Baltimore, MD	749,370	97	N/A	N/A
Saucon Valley Square	Bethlehem, PA	80,695	100	N/A	N/A
Shaw’s Supermarket	New Britain, CT	65,658	100	65,658	100
Shoppes at Lake Andrew	Viera, FL	144,772	100	N/A	N/A
The Shoppes at Park West (Publix Center) *	Mt. Pleasant, SC	61,426	95	N/A	N/A
Shoppes at Quarterfield (Metro Square Center)	Severn, MD	59,417	96	N/A	N/A
Shoppes of Dallas *	Dallas, GA	64,310	91	N/A	N/A
Shoppes of Prominence Point *	Canton, GA	76,658	98	N/A	N/A
The Shops at Boardwalk *	Kansas City, MO	99,881	81	N/A	N/A
Shops at Forest Commons	Round Rock, TX	34,756	100	N/A	N/A
Shops at Park Place	Plano, TX	115,460	99	116,300	100
Southlake Town Square *	Southlake, TX	450,595	96	N/A	N/A
Stilesboro Oaks	Acworth, GA	80,772	100	N/A	N/A
Stony Creek Marketplace	Noblesville, IN	153,796	100	150,727	98
Tollgate Marketplace	Bel Air, MD	392,587	100	N/A	N/A
Towson Circle *	Towson, MD	108,679	94	N/A	N/A
University Town Center	Tuscaloosa, AL	57,250	100	N/A	N/A
Village Shoppes at Simonton *	Lawrenceville, GA	58,015	87	N/A	N/A

17

		December 31, 2004		December 31, 2003
Properties:	Location	GLA Occupied	(%)	GLA Occupied	(%)
Wal-Mart Supercenter	Blytheville, AR	183,047	100	N/A	N/A
Wal-Mart Supercenter	Jonesboro, AR	149,704	100	N/A	N/A
Watauga Pavilion *	Watauga, TX	199,767	97	N/A	N/A
Winchester Commons *	Memphis, TN	91,424	98	N/A	N/A
Wrangler	El Paso, TX	316,800	100	N/A	N/A
Zurich Towers	Schaumburg, IL	895,418	100	N/A	N/A
		19,580,618		779,284

*  As part of the purchase of these properties, we are entitled to receive payments in accordance with a master lease agreement for space which was not producing revenue either at the time of or subsequent to the purchase. The master lease agreement covers rental payments due for periods ranging between three months and three years from the purchase date or until the space is leased.  The percentage in this table does not include non-revenue producing space covered by the master lease agreement.  The master lease agreements combined with the physical occupancy results in an economic occupancy ranging between 79% and 100% at December 31, 2004.

In addition to the properties listed above, we consolidate one apartment property, Cardiff Hall East, in which we made an investment through a joint venture arrangement on October 15, 2004.  This property, which is located in Towson, MD, has a total of 124 units, of which 122 (98%) were occupied at December 31, 2004.

Item 3. Legal Proceedings

We are subject, from time to time, to various legal proceedings and claims that arise in the ordinary course of business.  While the resolution of these matters cannot be predicted with certainty, management believes, based on currently available information, that the final outcome of such matters will not have a material adverse effect on our results of operations or financial condition.

Item 4. Submission of Matters to a Vote of Security Holders

There were no matters submitted to a vote of security holders during the fourth quarter 2004.

PART II

Item 5. Market for Registrant’s Common Equity and Related Stockholder Matters

Market Information

There is no established public trading market for our shares of common stock. The per share estimated value shall be deemed to be the offering price of the shares, which is currently $10.00 per share.  This valuation is supported because we are currently selling shares to the public at a price of $10.00 per share as of February 28, 2005.

We provide the following programs to facilitate investment in the initial offering and second offering shares and to provide limited liquidity for stockholders until such time as a market for the shares develops:

The DRP, subject to certain share ownership restrictions, allows stockholders who purchase shares in our offerings to automatically reinvest distributions by purchasing additional shares from us.  Such purchases under the DRP are not subject to selling commissions or the marketing contribution and due diligence expense allowance, and are made at a price of $9.50 per share. That price will continue to be used until the offering price per share in the offerings is increased from $10.00 per share (if ever) or until the termination of the offerings, whichever occurs first. Thereafter, participants may acquire shares under the DRP at a price equal to 95% of the  “market price” of a share on the date of purchase until such time (if ever) as the shares are listed on a national stock exchange or included for quotation on a national market

18

system.  In the event of such listing or inclusion, shares purchased by us for the DRP will be purchased on such exchange or market at the then prevailing market price, and will be sold to participants at that price.

The SRP, subject to certain restrictions, may provide eligible stockholders with limited, interim liquidity by enabling them to sell shares back to us. The prices at which shares may be sold back to us are as follows:

One year from the purchase date, at $9.25 per share;

Two years from the purchase date, at $9.50 per share;

Three years from the purchase date, at $9.75 per share; and

Four years from the purchase date, at the greater of $10.00 per share, or a price equal to 10 times our “funds available for distribution” per weighted average shares outstanding for the prior calendar year.

We will make repurchases under the SRP, if requested, at least once quarterly on a first-come, first-served basis.  Subject to funds being available, we will limit the number of shares repurchased during any calendar year to five percent (5%) of the weighted average number of shares outstanding during the prior calendar year.  Funding for the SRP will come exclusively from proceeds that we receive from the sale of shares under the DRP and such other operating funds, if any, as our board of directors, at its sole discretion, may reserve for this purpose.

Our board of directors, at its sole discretion, may choose to terminate the SRP after the end of the offering period, or reduce the number of shares purchased under the SRP, if it determines that the funds allocated to the SRP are needed for other purposes, such as the acquisition, maintenance or repair of properties, or for use in making a declared distribution. A determination by the board of directors to eliminate or reduce the SRP will require the unanimous affirmative vote of the independent directors.

We cannot guarantee that the funds set aside for the SRP will be sufficient to accommodate all requests made each year.  If no funds are available for the SRP when repurchase is requested, the stockholder may: (i) withdraw the request; or (ii) ask that we honor the request at such time, if any, when funds are available.  Such pending requests will be honored on a first-come, first-served basis.

There is no requirement that stockholders sell their shares to us. The SRP is only intended to provide interim liquidity for stockholders until a liquidity event occurs, such as the listing of the shares on a national securities exchange, inclusion of the shares for quotation on a national market system, or a merger with a listed company.  No assurance can be given that any such liquidity event will occur.

Shares purchased by us under the SRP will be canceled and will have the status of authorized but un-issued shares.  Shares acquired by us through the SRP will not be re-issued unless they are first registered with the Securities and Exchange Commission or the SEC under the Securities Act of 1933, as amended or the Act, and under appropriate state securities laws, or otherwise issued in compliance with such laws.

Stockholders

As of February 28, 2005, we had 71,511 stockholders of record.

Distributions

We have been paying monthly distributions since October 2003. The table below depicts the distribution levels from our inception.  The rate shown is the annual per share amount.

Rate (per share per annum)		Date Effective
$	.30	October 1 - October 31, 2003
.50		November 1 - November 30, 2003
.70		December 1, 2003 - February 29, 2004
.67		March 1 - March 31, 2004
.675		April 1 - May 31, 2004
.65		June 1 - December 31, 2004
.63		January 1 - January 31, 2005

19

We declared distributions to our stockholders per weighted average number of shares outstanding during the year ended December 31, 2004 and the period from October 1, 2003 to December 31, 2003 totaling $.66 per share and $.15 per share, respectively. Of these amounts, $.36 and $0 qualify as distributions taxable as ordinary income and $.30 and $.15 constitute a return of capital for federal income tax purposes for the year ended December 31, 2004 and the period from October 1, 2003 to December 31, 2003, respectively.

Options to purchase an aggregate of 17,500 shares at an exercise price of $8.95 per share have been granted to the independent directors pursuant to the Independent Directors Stock Option Plan (options to purchase 3,000 shares as to each of the independent directors plus options for 500 shares each on the date of the first annual meeting and 500 shares each on the date of each annual meeting thereafter).  Such options were granted, without registration under the Act, in reliance upon the exemption from registration in Section 4(2) of the Act, as transactions not involving any public offering.  None of such options have been exercised.  Therefore, no shares have been issued in connection with such options.

Use of Proceeds from Registered Securities

We registered, pursuant to a registration statement under the Securities Act of 1933 (SEC File Number 333-103799), the initial offering on a best efforts basis of 250,000,000 shares at $10.00 per share, subject to discounts in certain cases; up to 20,000,000 shares at $9.50 per share pursuant to our DRP.

As of December 31, 2004, we have sold the following securities in the initial offering for the following aggregate offering prices:

*	214,368,875		shares on a best efforts basis for $2,142,596,617; and
*	3,079,003		shares pursuant to the DRP for $29,250,830
*	(10,350	)	shares repurchased pursuant to the share repurchase program for $192,667

The total of shares and gross offering proceeds, net of shares repurchased, from the initial offering as of December 31, 2004 is 217,437,528 shares for $2,171,654,780. The above-stated number of shares sold and the gross offering proceeds received from such sales do not include the 20,000 shares purchased by the business manager/advisor for $200,000 preceding the commencement of the initial offering.

From September 17, 2003, which was the effective date of the initial offering, through December 31, 2004, we have incurred the following expenses in connection with the issuance and distribution of the registered securities:

Type of Expense	Amount		E=Estimated A=Actual
Underwriting discounts and commissions	$	225,432,199	A
Finders’ fees	—		A
Expenses paid to or for underwriters	—		A
Other expenses to affiliates	1,273,839		A
Other expenses paid to non-affiliates	7,308,193		A
Total expenses	$	234,014,231

The net offering proceeds to us for the initial offering period, after deducting the total expenses paid and accrued described above, are $1,937,640,549.

The underwriting discounts and commissions were paid to Inland Securities Corporation. Inland Securities Corporation reallowed all or a portion of the commissions to soliciting dealers.

20

Cumulatively, we have used the net offering proceeds as follows:

Use of Proceeds	Amount	E=Estimated A=Actual
Construction of plant, building and facilities	—	A
Purchase of real estate	1,763,173,087	A
Acquisition of other businesses	—	A
Repayment of indebtedness	175,296	A
Working capital (currently)	19,376,406	E
Temporary investments (currently)	154,915,760	A
Other uses	—	A
Total uses	1,937,640,549

Of the amount used for purchases of real estate, $24,000,000 was paid to affiliates of the advisor in connection with the acquisition of properties from such affiliates. For pending purchases of real estate, we temporarily invested net offering proceeds in short-term, interest-bearing securities.

We registered, pursuant to a registration statement under the Securities Act of 1933 (SEC File Number 333-118860), the second offering on a best efforts basis of 250,000,000 shares at $10.00 per share, subject to discounts in certain cases; up to 20,000,000 shares at $9.50 per share pursuant to our DRP.  No shares were sold from this offering as of December 31, 2004.

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Item 6. Selected Financial Data

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.

(A Maryland Corporation)

For the year ended December 31, 2004 and for the period from March 5, 2003 (inception) through December 31, 2003

(Amounts in thousands, except per share amounts)

(not covered by Report of Independent Registered Public Accounting Firm)

	2004						2003
Total assets	$				3,955,816		212,102
Mortgages and notes payable	$			1,783,114			29,627
Total income	$			134,086			782
Net income (loss)	$			11,701			(173	)
Net income (loss) per common share, basic and diluted (a)	$			.12			(.07	)
Distributions declared	$			64,992			1,286
Distributions per weighted average common share (a)	$			.66			.15
Funds From Operations (a)(b)	$			57,709			19
Cash flows provided by operating activities	$			63,520			724
Cash flows used in investing activities	$		(3,243,055			)	(133,425	)
Cash flows provided by financing activities	$	3,356,378					197,082
Weighted average number of common shares outstanding, basic and diluted	98,563						2,521

The above selected financial data should be read in conjunction with the consolidated financial statements and related notes appearing elsewhere in this annual report.

(a)The net income (loss) per share basic and diluted is based upon the weighted average number of common shares outstanding for the year ended December 31, 2004 and the period from March 5, 2003 (inception) to December 31, 2003, respectively. The distributions per common share are based upon the weighted average number of common shares outstanding for the year ended December 31, 2004 and the period from October 2, 2003 (first day shares were sold to the public) to December 31, 2003.  See Footnote (b) below for information regarding our calculation of FFO.  Our distributions of our current and accumulated earnings and profits for Federal income tax purposes are taxable to stockholders as ordinary income. Distributions in excess of these earnings and profits generally are treated as a non-taxable reduction of the stockholder’s basis in the shares to the extent thereof, and thereafter as taxable gain (a return of capital).  These distributions in excess of earnings and profits will have the effect of deferring taxation of the amount of the distributions until the sale of the stockholders’ shares.  For the period from March 5, 2003 (inception) to December 31, 2003, $357,790 (or 100% of the distributions paid for 2003) represented a return of capital due to the tax loss in 2003. For the year ended December 31, 2004, approximately $24,544,000 (or approximately 45% of the $54,542,000 distribution paid in 2004) represented a return of capital. The balance of the distribution constitutes ordinary income. In order to maintain our qualification as a REIT, we must make annual distributions to stockholders of at least 90% of our REIT taxable income, or approximately $10,530,660 for

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2004. REIT taxable income does not include net capital gains.  Under certain circumstances, we may be required to make distributions in excess of cash available for distribution in order to meet the REIT distribution requirements.  Distributions are determined by our board of directors and are dependent on a number of factors, including the amount of funds available for distribution, our financial condition, any decision by the board of directors to reinvest funds rather than to distribute the funds, our capital expenditures, the annual distribution required to maintain REIT status under the Code, and other factors the board of directors may deem relevant.

(b)One of our objectives is to provide cash distributions to our stockholders from cash generated by our operations. Cash generated from operations is not equivalent to our net income from continuing operations as determined under Generally Accepted Accounting Principles in the United States of America or GAAP. Due to certain unique operating characteristics of real estate companies, the National Association of Real Estate Investment Trusts or NAREIT, an industry trade group, has promulgated a standard known as “Funds from Operations” or “FFO” for short, which it believes more accurately reflects the operating performance of a REIT such as us. As defined by NAREIT, FFO means net income computed in accordance with GAAP, excluding gains (or losses) from sales of operating properties, plus depreciation on real property and amortization, and after adjustments for unconsolidated partnerships and joint ventures in which the REIT holds an interest.  We have adopted the NAREIT definition for computing FFO because management believes that, subject to the following limitations, FFO provides a basis for comparing our performance and operations to those of other REITs.  The calculation of FFO may vary from entity to entity since capitalization and expense policies tend to vary from entity to entity.  Items which are capitalized do not impact FFO, whereas items that are expensed reduce FFO.  Consequently, our presentation of FFO may not be comparable to other similarly titled measures presented by other REITs.  FFO is not intended to be an alternative to  “Net Income” as an indicator of our performance nor to  “Cash Flows from Operating Activities” as determined by GAAP as a measure of our capacity to pay distributions. We use FFO to compare our performance to that of other REITs in our peer group.  Additionally, we use FFO in conjunction with our acquisition policy to determine investment capitalization strategy.  FFO is calculated as follows:

	2004				2003
Net income (loss)	$	11,700,733			$	(173,279	)
Add:  Depreciation and amortization related to investment properties	46,101,290				192,270
Less:  Depreciation related to consolidated joint ventures	(92,725			)	—
Funds from operations	$		57,709,298		$	18,991

FFO does not represent cash generated from operating activities calculated in accordance with GAAP and is not necessarily indicative of cash available to fund cash needs.  FFO should not be considered as an alternative to net income as an indicator of our operating performance or as an alternative to cash flow as a measure of liquidity.

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Item 7.  Management’s Discussion and Analysis of Financial Condition and Results of Operations

We electronically file our annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and all amendments to those reports with the Securities and Exchange Commission (SEC).  The public may read and copy any of the reports that are filed with the SEC at the SEC’s Public Reference Room at 405 Fifth Street, NW, Washington, DC 20549.  The public may obtain information on the operation of the Public Reference room by calling the SEC at (800)-SEC-0330.  The SEC maintains an Internet site at (www.sec.gov) that contains reports, proxy and information statements and other information regarding issuers that file electronically.

Certain statements in this “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and elsewhere in this Form 10-K constitute “forward-looking statements” within the meaning of the Federal Private Securities Litigation Reform Act of 1995.  These forward-looking statements involve known and unknown risks, uncertainties and other factors which may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by these forward-looking statements.

The following discussion and analysis relates to the year ended December 31, 2004 and for the period from March 5, 2003 (inception) to December 31, 2003.  You should read the following discussion and analysis along with our consolidated financial statements and the related notes included in this report.

Overview

We were formed to acquire and manage a diversified portfolio of real estate, principally multi-tenant shopping centers and single-user buildings.  We operate as a real estate investment trust or REIT for Federal and state income tax purposes.  We have initially focused on acquiring properties in the Western states.  We have begun to acquire and plan to continue acquiring properties in the Western states.  We may also acquire retail and single-user net lease properties in locations throughout the United States. We have also begun to acquire properties improved with commercial facilities which provide goods and services as well as double or triple net leased properties, which are either commercial or retail including properties acquired in sale and leaseback transactions.  A triple-net leased property is one which is leased to a tenant who is responsible for the base rent and all costs and expenses associated with their occupancy including property taxes, insurance and repairs and maintenance. Inland Western Retail Real Estate Advisory Services, Inc. or our business manager/advisor has been retained to manage, for a fee, our day-to-day affairs, subject to the supervision of our board of directors.

Our goal is to purchase properties principally west of the Mississippi River and evaluate potential acquisition opportunities of properties east of the Mississippi River on a property by property basis, taking into consideration investment objectives and available funds.  As of  February 28, 2005 we have purchased 12 additional properties located in the states of Florida, Iowa, Louisiana, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, Texas, Wisconsin, and Ontario, Canada.

For the year ended December 31, 2004, we purchased 103 properties, of which 55 were not located in our primary geographical area of interest.  We purchased these 55 properties because we had the unique opportunity of taking advantage of our business manager/advisor’s acquisition pipeline of properties located east of the Mississippi River which generally, continue to have rates of return above those located in the Western United States. We expect this trend to continue into the next year. Our strategy in purchasing these properties was to deploy stockholder funds promptly and generate income for us as early as possible, while investing in properties which met our acquisition criteria.

During the fourth quarter of 2004, the retail sector has remained relatively stable as a result of sustained consumer spending, which has helped maintain retail sales growth despite potential terrorist threats and the Iraqi war. A modest pace of new retail construction, and the expansion strategy of some retailers, who are renting more space to maintain market share and revenue growth and offset declining same store sales have also contributed to the stability.

Our goal is to maximize the possible return to our stockholders through the acquisition, development, re-development and management of our properties consisting of neighborhood and community shopping centers and single-tenant buildings. We actively manage our assets by leasing and releasing space at favorable rates, controlling costs, maintaining strong tenant relationships and creating additional value through redeveloping and repositioning our centers. We distribute funds generated from operations to our stockholders, and intend to continue distributions in order to maintain our REIT status.

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Overall, the retail segment of the real estate industry has undergone a fundamental shift in consumer spending patterns while the grocery, drug and discount retail sectors have remained relatively stable over the past few years. The majority of consumer purchases for general merchandise occur at discount stores or warehouse club/supercenters following the lead of industry giants Wal-Mart and Home Depot. Strength in this segment has come at a detriment to older, established retailers, whose operating costs are relatively higher, and who do not offer bulk purchasing opportunities to consumers. In addition, relatively low interest rates have resulted in the increased purchasing power of the general public, further accelerating these retail trends.

Selecting properties with high quality tenants and mitigating risk through diversifying our tenant base is at the forefront of our acquisition strategy. We believe our strategy of purchasing properties, primarily in the fastest growing areas of the country and focusing on acquisitions with tenants who provide basic goods and services will produce stable earnings and growth opportunities in future years.

We are in the process of completing our initial offering of common stock and have raised $2,172,047,447 as of December 31, 2004.  We raised on average approximately $237 million per month during the fourth quarter of 2004.

On December 28, 2004, our second offering was declared effective for up to 250,000,000 shares of common stock at $10 each and the issuance of up to 20,000,000 shares at $9.50 each, which may be distributed pursuant to our DRP.  We began selling shares of the second offering in January 2005.

As of December 31, 2004, we owned through separate limited partnership, limited liability company, or joint venture agreements, a portfolio of 111 properties located in Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Kansas, Louisiana, Maryland, Michigan, Minnesota,  Missouri, Nevada, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Washington and Wisconsin containing an aggregate of approximately 20,231,000 square feet of gross leasable area.  As of December 31, 2004, approximately 97% of gross leasable area in the properties was physically leased and 99% was economically leased.

Critical Accounting Policies and Estimates

General

The following disclosure pertains to critical accounting policies and estimates we believe are most “critical” to the portrayal of our  financial condition and results of operations which require our most difficult, subjective or complex judgments.  These judgments often result from the need to make estimates about the effect of matters that are inherently uncertain.  Critical accounting policies discussed in this section are not to be confused with accounting principles and methods disclosed in accordance with accounting principles generally accepted in the United States of America or GAAP.  GAAP requires information in financial statements about accounting principles, methods used and disclosures pertaining to significant estimates.  This discussion addresses our judgment pertaining to trends, events or uncertainties known which were taken into consideration upon the application of those policies and the likelihood that materially different amounts would be reported upon taking into consideration different conditions and assumptions.

Acquisition of Investment Property

We allocate the purchase price of each acquired investment property between land, building and improvements, acquired above market and below market leases, in-place lease value, and any assumed financing that is determined to be above or below market terms. In addition, we allocate a portion of the purchase price to the value of customer relationships. The allocation of the purchase price is an area that requires judgment and significant estimates.  We use the information contained in the independent appraisal obtained at acquisition as the primary basis for the allocation to land and building and improvements. We determine whether any financing assumed is above or below market based upon comparison to similar financing terms for similar investment properties.  We also allocate a portion of the purchase price to the estimated acquired in-place lease costs based on estimated lease execution costs for similar leases as well as lost rent payments during assumed lease up period when calculating as if vacant fair values.  We consider various factors including geographic location and size of leased space.  We also evaluate each acquired lease based upon current market rates at the acquisition date and we consider various factors including geographical location, size and location of leased space within the investment property, tenant profile, and the credit risk of the tenant in determining whether the acquired lease is above or below market lease costs.  After an acquired lease is determined to be above or below market lease costs, we allocate a portion of the purchase price to such above or below acquired lease costs based upon the present value of the difference

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between the contractual lease rate and the estimated market rate. However, for below market leases with fixed rate renewals, renewal periods are included in the calculation of below market in-place lease values. The determination of the discount rate used in the present value calculation is based upon the “risk free rate.”   This discount rate is a significant factor in determining the market valuation which requires our judgment of subjective factors such as market knowledge, economics, demographics, location, visibility, age and physical condition of the property.

Impairment of Long-Lived Assets

In accordance with Statement of Financial Accounting Standards or SFAS No. 144, we conduct an analysis on a quarterly basis to determine if indicators of impairment exist to ensure that the property’s carrying value does not exceed its fair value.  If this were to occur, we are required to record an impairment loss.  The valuation and possible subsequent impairment of investment properties is a significant estimate that can and does change based on our continuous process of analyzing each property and reviewing assumptions about uncertain inherent factors, as well as the economic condition of the property at a particular point in time. No impairment losses have been taken in 2003 or 2004.

Cost Capitalization and Depreciation Policies

Our policy is to review all expenses paid and capitalize any items exceeding $5,000 which are deemed to be an upgrade or a tenant improvement.  These costs are capitalized and are included in the investment properties classification as an addition to buildings and improvements.

Buildings and improvements are depreciated on a straight-line basis based upon estimated useful lives of 30 years for buildings and improvements, and 15 years for site improvements.  The portion of the purchase price allocated to acquired above market costs and acquired below market costs are amortized on a straight-line basis over the life of the related lease as an adjustment to net rental income.  Acquired in-place lease costs, customer relationship value, other leasing costs, and tenant improvements are amortized on a straight-line basis over the life of the related lease as a component of amortization expense.

The application of SFAS No. 141 and SFAS No. 142 resulted in the recognition upon acquisition of additional intangible assets and liabilities relating to our real estate acquisitions during the year ended December 31, 2004.  The portion of the purchase price allocated to acquired above market lease costs and acquired below market lease costs are amortized on a straight-line basis over the life of the related lease as an adjustment to rental income. Amortization pertaining to the above market lease costs of $3,118,699 was applied as a reduction to rental income for the year ended December 31, 2004 and $5,227 for the period from March 5, 2003 (inception) to December 31, 2003.  Amortization pertaining to the below market lease costs of $4,703,357 was applied as an increase to rental income for the year ended December 31, 2004 and $15,386 for the period from March 5, 2003 (inception) to December 31, 2003.

The portion of the purchase price allocated to acquired in-place lease costs are amortized on a straight line basis over the life of the related lease. We incurred amortization expense pertaining to acquired in-place lease costs of $9,923,630 for the year ended December 31, 2004 and $51,773 for the period from March 5, 2003 (inception) to December 31, 2003.

The portion of the purchase price allocated to customer relationship value is amortized on a straight-line basis over the life of the related lease.

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The table below presents the amortization during the next five years related to the acquired in-place lease intangibles, customer relationship value, acquired above market lease costs and the below market lease costs for properties owned at December 31, 2004:

Amortization of:	2005				2006		2007		2008		2009		Thereafter
Acquired above market lease costs	$		(5,576,668	)	(5,391,370	)	(4,558,366	)	(4,275,216	)	(3,783,749	)	(17,188,977	)
Acquired below market lease costs	9,930,801				9,166,611		8,238,008		7,337,557		6,580,442		44,732,278
Net rental income increase	$		4,354,133		3,775,241		3,679,642		3,062,341		2,796,693		27,543,301
Acquired in-place lease intangibles	$	(25,857,397		)	(25,857,397	)	(25,857,397	)	(25,803,230	)	(24,532,397	)	(110,207,994	)
Customer relationship value	$	(200,000		)	(200,000	)	(200,000	)	(200,000	)	(200,000	)	(1,000,000	)

Cost capitalization and the estimate of useful lives requires our judgment and includes significant estimates that can and do change based on our process which periodically analyzes each property and on our assumptions about uncertain inherent factors.

Revenue Recognition

We recognize rental income on a straight-line basis over the term of each lease. The difference between rental income earned on a straight-line basis and the cash rent due under the provisions of the lease agreements is recorded as deferred rent receivable and is included as a component of accounts and rents receivable in the accompanying consolidated balance sheets.  We anticipate collecting these amounts over the terms of the leases as scheduled rent payments are made.

Reimbursements from tenants for recoverable real estate tax and operating expenses are accrued as revenue in the period the applicable expenditures are incurred.  We make certain assumptions and judgments in estimating the reimbursements at the end of each reporting period. Should the actual results differ from our judgment, the estimated reimbursement could be negatively affected and would be adjusted appropriately.

In conjunction with certain acquisitions, we receive payments under master lease agreements pertaining to certain, non-revenue producing spaces either at the time of, or subsequent to, the purchase of some of our properties.  Upon receipt of the payments, the receipts are recorded as a reduction in the purchase price of the related properties rather than as rental income.  These master leases were established at the time of purchase in order to mitigate the potential negative effects of loss of rent and expense reimbursements.  Master lease payments are received through a draw of funds escrowed at the time of purchase and may cover a period from one to three years.  These funds may be released to either us or the seller when certain leasing conditions are met.  Restricted cash includes funds received by third party escrow agents, from sellers, pertaining to master lease agreements.  We record such escrows as both an asset and a corresponding liability, until certain leasing conditions are met.

We record lease termination income if there is a signed termination letter agreement, all of the conditions of the agreement have been met, and the tenant is no longer occupying the property.

Interest Rate Futures Contracts

We enter into interest rate futures contracts or treasury contracts as a means of reducing our exposure to rising interest rates.  At inception, contracts are evaluated in order to determine if they will qualify for hedge accounting treatment and will be accounted for either on a deferral, accrual or market value basis depending on the nature of our hedge strategy and the method used to account for the hedged item.  Hedge criteria include demonstrating the manner in which the hedge will reduce risk, identifying the specific asset, liability or firm commitment being hedged, and citing the time horizon being hedged.

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For the year ended December 31, 2004, the Company entered into treasury contracts with a futures commission merchant with yields ranging from 3.27% to 3.85% for 5 year treasury contracts and 4.00% to 4.63% for 10 year treasury contracts. On December 31, 2004, the treasury contracts had a liquidation value of $46,005 resulting in a loss of $3,666,894 for the year ended December 31, 2004.  As these treasury contracts are not offsetting future commitments and therefore do not qualify as hedges, the net loss is recognized currently in earnings.

Liquidity and Capital Resources

General

Our principal demands for funds have been for property acquisitions, for the payment of operating expenses and distributions, and for the payment of interest on outstanding indebtedness. Generally, cash needs for items other than property acquisitions have been met from operations, and property acquisitions have been funded by a public offering of our shares of common stock.  However, there may be a passage of time between the sale of the shares and our purchase of properties, which may result in a delay in the benefits to stockholders of returns generated from property operations.  Our business manager/advisor evaluates potential additional property acquisitions and Inland Real Estate Acquisitions, Inc., one of the affiliates of our sponsor, engages in negotiations with sellers on our behalf.  After a purchase contract is executed which contains specific terms, the property will not be purchased until due diligence, which includes review of the title insurance commitment, an appraisal and an environmental analysis, is successfully completed. In some instances, the proposed acquisition still requires the negotiation of final binding agreements, which may include financing documents.  During this period, we may decide to temporarily invest any unused proceeds from the offering in certain investments that could yield lower returns than other investments, such as the acquisition of properties. These lower returns may affect our ability to make distributions.

Potential future sources of capital include proceeds from the public or private offering of our equity or debt securities, secured or unsecured financings from banks or other lenders, proceeds from the sale of properties, as well as undistributed funds from operations.  We anticipate that during the current year we will (i) acquire additional existing shopping centers and net leased properties, (ii) begin to develop additional shopping center sites and (iii) continue to pay distributions to stockholders, and each is expected to be funded mainly from proceeds of our public offerings of shares, cash flows from operating activities, financings and other external capital resources available to us.

Our leases typically provide that the tenant bears responsibility for substantially all property costs and expenses associated with ongoing maintenance and operation, including utilities, property taxes and insurance. In addition, in some instances our leases provide that the tenant is responsible for roof and structural repairs.  Certain of our properties are subject to leases under which we retain responsibility for certain costs and expenses associated with the property.  We anticipate that capital demands to meet obligations related to capital improvements with respect to properties will be minimal for the foreseeable futureand can be met with funds from operations and working capital.  We believe that our current capital resources (including cash on hand) and anticipated financings are sufficient to meet our liquidity needs for the foreseeable future.

Liquidity

Offering.  As of December 31, 2004, subscriptions for the initial public offering for a total of 217,467,878 shares had been received from the public, which include the 20,000 shares issued to the business manager/advisor and 3,079,003 shares sold pursuant to the DRP as of December 31, 2004.  As a result of such sales, we received a total of $2,172,047,447 of gross offering proceeds for the initial public offering as of December 31, 2004.

On December 28, 2004, our second offering was declared effective for up to 250,000,000 shares of common stock at $10 each and the issuance of up to 20,000,000 shares at $9.50 each, which may be distributed pursuant to our DRP.  We began selling shares of the second offering in early January 2005.

Mortgage Debt.  Mortgage loans outstanding as of December 31, 2004 were $1,782,538,627 and had a weighted average interest rate of 4.58%.  Of this amount, $1,635,745,627 had fixed rates ranging from 3.96% to 8.02% and a weighted average fixed rate of 4.67% at December 31, 2004. The rate of 8.02% represented the interest rate on the mortgage for Cardiff Hall East (Cardiff), a joint venture entity which we consolidate.  Excluding the Cardiff mortgage, the highest fixed rate on our mortgage debt was 6.34%.  The remaining $146,793,000 represented variable rate loans with a weighted

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average interest rate of 3.55% at December 31, 2004. As of December 31, 2004, scheduled maturities for our outstanding mortgage indebtedness had various due dates through August 2023.

During the period from January 1, 2005 through February 28, 2005 we obtained mortgage financing on properties that we purchased during 2004 and 2005 totaling approximately $276 million that require monthly payments of interest only and bear interest at a range of 4.30% to 5.69% per annum.

Line of Credit.  On December 24, 2003, we entered into a $150,000,000 unsecured line of credit arrangement a bank for a period of one year.  The funds from this line of credit were used to provide liquidity from the time a property was purchased until permanent debt was placed on the property.  We were required to pay interest only on the outstanding balance from time to time under the line at the rate equal to LIBOR plus 175 basis points.  We were also required to pay, on a quarterly basis, an amount ranging from .15% to .30%, per annum, on the average daily undrawn funds remaining under this line.  The line of credit required compliance with certain covenants, such as debt service ratios, minimum net worth requirements, distribution limitations and investment restrictions.  As of December 31, 2003, we were in compliance with such covenants.  In connection with obtaining this line of credit, we paid fees in an amount totaling approximately $1,044,000 (which included a .65% commitment fee).  The outstanding balance on the line of credit was $5,000,000 as of December 31, 2003 with an effective interest rate of 2.9375% per annum.

On December 16, 2004, we terminated the existing line of credit agreement and executed a new unsecured line of credit facility with a bank for up to $100,000,000 with an optional unsecured borrowing capacity of $150,000,000 for a total unsecured borrowing capacity of $250,000,000.  The facility has an initial term of one year with two one-year extension options, with an annual variable interest rate.  The funds from this line of credit may be used to provide liquidity from the time a property is purchased until permanent debt is placed on that property.  The line of credit requires interest only payments monthly at the rate equal to the London InterBank Offered Rate or LIBOR plus 175 basis points which ranged from 2.34% to 2.42% during the quarter ended December 31, 2004.  We are also required to pay, on a quarterly basis, an amount ranging from .15% to .25%, per annum, on the average daily undrawn funds under this line.  The line of credit requires compliance with certain covenants, such as debt service ratios, minimum net worth requirements, distribution limitations and investment restrictions. As of December 31, 2004, we were in compliance with such covenants. There was no outstanding balance on the line as of December 31, 2004.

Stockholder Liquidity.  We provide the following programs to facilitate investment in the shares and to provide limited, interim liquidity for stockholders until such time as a market for the shares develops:

The DRP allows stockholders who purchase shares pursuant to the offerings to automatically reinvest distributions by purchasing additional shares from us.  Such purchases will not be subject to selling commissions or the marketing contribution and due diligence expense allowance and will be sold at a price of $9.50 per share.  As of December 31, 2004, we issued 3,079,003 shares pursuant to the DRP for an aggregate amount of $29,250,830.

Subject to certain restrictions, the SRP provides existing stockholders with limited, interim liquidity by enabling them to sell shares back to us at the following prices:

One year from the purchase date, at $9.25 per share;

Two years from the purchase date, at $9.50 per share;

Three years from the purchase date, at $9.75 per share; and

Four years from the purchase date, at the greater of $10.00 per share, or a price equal to 10 times our “funds available for distribution” per weighted average shares outstanding for the prior calendar year.

Shares purchased by us will not be available for resale.  As of December 31, 2004, 10,350 shares have been repurchased for a total of $192,667.

Capital Resources

We expect to meet our short-term operating liquidity requirements generally through our net cash provided by property operations.  We also expect that our properties will generate sufficient cash flow to cover our operating expenses plus pay a monthly distribution on our weighted average shares.  Operating cash flows are expected to increase as additional properties are added to our portfolio.

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We believe that we should put mortgage debt on or leverage our properties at approximately 50% of their value.  We also believe that we can borrow at the lowest overall cost of funds or interest rate by placing individual financing on each of our properties.  Accordingly, mortgage loans will generally have been placed on each property at the time that the property is purchased, or shortly thereafter, with the property solely securing the financing.

During the year ended December 31, 2004, we closed on mortgage debt with a principal amount of $1,753,086,923. Of this amount, $1,606,293,923 represented fixed rate loans which bear interest rates between 3.96% and 8.02%. The rate of 8.02% represented the interest rate on the mortgage for Cardiff Hall East (Cardiff), a joint venture entity which we consolidate.  Excluding the Cardiff mortgage, the highest fixed rate on our mortgage debt was 6.34%.  The remaining $146,793,000 represented variable rate loans with a weighted average interest rate of 3.55% at December 31, 2004.

With the exception of the mortgage loans on Plaza Santa Fe II, Shops at Forest Commons and Henry Town Center, all of the loans that closed during the year ended December 31, 2004 may be prepaid with a penalty after specific lockout periods.  The mortgage loans on Plaza Santa Fe II, Shops at Forest Commons and Henry Town Center, have no prepayment privileges.

We have entered into interest rate lock agreements with various lenders to secure interest rates on mortgage debt on properties we currently own or will purchase in the future.  We have outstanding rate lock deposits in the amount of $2,826,055 as of December 31, 2004 which are applied as credits to the mortgage fundings as they occur.  These agreements lock interest rates from 4.45% to 5.12% for periods from 60 days to 90 days on approximately $240 million in principal.

During the period from January 1, 2005 to February 28, 2005, we entered into rate lock agreements which lock interest rates from 4.47% to 4.69% for periods from 30 days to 90 days on approximately $300 million in principal.

Although the loans we closed are generally non-recourse, occasionally, when it is deemed to be advantageous, we may guarantee all or a portion of the debt on a full-recourse basis.  Individual decisions regarding interest rates, loan-to-value, fixed versus variable-rate financing, maturity dates and related matters are often based on the condition of the financial markets at the time the debt is incurred, which conditions may vary from time to time.

Distributions are determined by our board of directors with the advice of our business manager/advisor and are dependent on a number of factors, including the amount of funds available for distribution, flow of funds, our financial condition, any decision by our board of directors to reinvest funds rather than to distribute the funds, our capital expenditures, the annual distribution required to maintain REIT status under the Internal Revenue Code and other factors the board of directors may deem relevant.

Cash Flows From Operating Activities

Net cash generated from operating activities was approximately $63,520,000 for the year ended December 31, 2004 and $724,000 for, the period from March 5, 2003 (inception) to December 31, 2003.  The increase in net cash provided by operating activities for the year ended December 31, 2004 compared to prior year is due primarily to the additional rental revenues and income generated from the operations of 103 additional properties purchased during the year ended December 31, 2004, compared to eight properties purchased for the period from March 5, 2003 (inception) to December 31, 2003.

Cash Flows From Investing Activities

Cash flows used in investing activities were approximately $3,243,055,000 for the year ended December 31, 2004 and $133,425,000 for the period from March 5, 2003 (inception) to December 31, 2003.  The cash flows used in investing activities were primarily due to the acquisition of 103 and eight properties for approximately $3,201,247,000 and $127,196,000 during the year ended December 31, 2004 and the period from March 5, 2003 (inception) to December 31, 2003, respectively.

As of February 28, 2005, we had approximately $550 million available for investment in additional properties.  As of February 28, 2005, we are considering the acquisition of approximately $226 million in properties.  We are currently in the process of obtaining financings on properties which have been purchased, as well as certain of the properties which we

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anticipate purchasing.  It is our intention to finance each of our acquisitions either at closing or subsequent to closing.  As a result of the intended financings and based on our current experience in raising funds in our offerings, we believe that we will have sufficient resources to acquire these properties.

Cash Flows From Financing Activities

Cash flows provided by financing activities were approximately $3,356,378,000 for the year ended December 31, 2004 and $197,082,000 for the period from March 5, 2003 (inception) to December 31, 2003.  We generated proceeds from the sale of shares, net of offering costs paid and shares repurchased, of approximately $1,774,231,000 and $166,552,000, respectively. We generated approximately $1,653,523,000 and $29,627,000 from the issuance of new mortgages secured by 97 and two of our properties. We generated $165,000,000 and $5,000,000 from funding on the line of credit.  We paid approximately $16,613,000 and $4,023,000 for loan fees and approximately $54,542,000 and $358,000 in distributions to our stockholders. The sponsor has agreed to advance us amounts to pay a portion of these distributions until funds available for distribution are sufficient to cover distributions. In addition, $170,000,000 and $0 was paid off on the line of credit for the year ended December 31, 2004 and the period from March 5, 2003 (inception) to December 31, 2003, respectively.

Given the current size of our offerings, as of February 28, 2005, we could raise approximately $2.4 billion of additional capital.  However, there can be no assurance that we will raise this amount of money or that we will be able to acquire additional attractive properties.

We are exposed to interest rate changes primarily as a result of our long-term debt used to maintain liquidity and fund capital expenditures and expansion of our real estate investment portfolio and operations.  Our interest rate risk management objectives are to limit the impact of interest rate changes on earnings and cash flows and to lower our overall borrowing costs.  To achieve our objectives we borrow primarily at fixed rates or variable rates with the lowest margins available and, in some cases, with the ability to convert variable rates to current market fixed rates at the time of conversion.

Effects of Transactions with Related and Certain Other Parties

Services Provided by Affiliates of the Business Manager/Advisor As of December 31, 2004 and December 31, 2003, we had incurred $234,014,231 and $22,144,814, respectively of offering costs, of which $175,508,624 and $16,854,779, respectively were paid or accrued to affiliates. In accordance with the terms of our offerings, our business manager/advisor has guaranteed payment of all public offering expenses (excluding sales commissions and the marketing contribution and the due diligence expense allowance) in excess of 5.5% of the gross proceeds of the offerings or gross offering proceeds or all organization and offering expenses (including selling commissions) which together exceed 15% of gross offering proceeds.  As of December 31, 2004 and December 31, 2003, offering costs did not exceed the 5.5% and 15% limitations. We anticipate that these costs will not exceed these limitations upon completion of the offerings. Any excess amounts at the completion of the offerings will be reimbursed by our business manager/advisor.

Our business manager/advisor and its affiliates are entitled to reimbursement for salaries and expenses of employees of our business manager/advisor and its affiliates relating to the offerings.  In addition, an affiliate of our business manager/advisor is entitled to receive selling commissions, and the marketing contribution and due diligence expense allowance from us in connection with the offerings.  Such costs are offset against the stockholders’ equity accounts. Such costs totaled $175,508,624 and $16,859,779, of which $2,879,894 and $1,061,791 were unpaid at December 31, 2004 and December 31, 2003, respectively.

Our business manager/advisor and its affiliates are entitled to reimbursement for general and administrative expenses relating to our administration.  Such costs are included in general and administrative expenses to affiliates, in addition to costs that were capitalized pertaining to property acquisitions.  During the year ended December 31, 2004 and the period from March 5, 2003 (inception) to December 31, 2003, we incurred $1,542,986 and $194,017 of these costs, respectively, of which $957,471 and $40,703 remained unpaid as of December 31, 2004 and December 31, 2003, respectively, and are included in Due to affiliates on the Consolidated Balance Sheets.

An affiliate of our business manager/advisor provides loan servicing to us for an annual fee.  Such costs are included in property operating expenses to affiliates.  The agreement allows for annual fees totaling .03% of the first $1 billion in

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mortgage balance outstanding and .01% of the remaining mortgage balance, payable monthly.  Such fees totaled $140,859 for the year ended December 31, 2004 and $328 for the period from March 5, 2003 (inception) to December 31, 2003.

We use the services of an affiliate of our business manager/advisor to facilitate the mortgage financing that we obtained on some of the properties purchased. We pay the affiliate .02% of the principal balance of mortgage loans obtained.  Such costs are capitalized as loan fees and amortized over the respective loan term.  During the year ended December 31, 2004 and for the period from March 5, 2003 (inception) to December 31, 2003, we paid loan fees totaling $3,475,472 and $59,523, respectively, to this affiliate.

We may pay an advisor asset management fee of not more than 1% of our average assets. Our average asset value is defined as the average of the total book value, including acquired intangibles, of our real estate assets invested in equity interests plus our loans receivable secured by real estate, before reserves for depreciation, reserves for bad debt or other similar non-cash reserves. We compute our average assets by taking the average of these values at the end of each month for which we are calculating the fee.  The fee would be payable quarterly in an amount equal to 1/4 of 1% of average assets as of the last day of the immediately preceding quarter.  For any year in which we qualify as a REIT, our advisor must reimburse us for the following amounts if any: (1) the amounts by which our total operating expenses, the sum of the advisor asset management fee plus other operating expenses, paid during the previous fiscal year exceed the greater of: (i) 2% of our average assets for that fiscal year, or (ii) 25% of our net income for that fiscal year; plus (2) an amount, which will not exceed the advisor asset management fee for that year, equal to any difference between the total amount of distributions to stockholders for that year and the 6% minimum annual return on the net investment of stockholders.  For the year ended December 31, 2004 and the period from March 5, 2003 (inception) to December 31, 2003, we neither paid nor accrued such fees because our business manager/advisor agreed to forego such fees for those periods.

The property managers, entities owned principally by individuals who are affiliates of our business manager/advisor, are entitled to receive property management fees totaling 4.5% of gross operating income, for management and leasing services.  We incurred property management fees of $5,381,721 and $16,627 for the year ended December 31, 2004 and the period from March 5, 2003 (inception) to December 31, 2003, respectively.  None remained unpaid as of December 31, 2004 or December 31, 2003.

We established a discount stock purchase policy for our affiliates and affiliates of our business manager/advisor that enables the affiliates to purchase shares of common stock at either $8.95 or $9.50 a share depending on when the shares are purchased.  We sold 605,060 and 59,497 shares of common stock to affiliates and recognized an expense related to these discounts of $427,122 and $62,472 for the year ended December 31, 2004 and the period from March 5, 2003 (inception) to December 31, 2003, respectively.

As of December 31, 2004 and December 31, 2003, we were due funds from our affiliates in the amount of $654,004 and $918,750, respectively, which is comprised of $654,004 and $845,000, respectively, which is due from our sponsor for reimbursement of a portion of distributions paid. The remaining $73,750 as of December 31, 2003 is due from an affiliate for costs paid on their behalf by us.  Our sponsor has agreed to advance to us amounts to pay a portion of distributions to our stockholders until funds available for distribution are sufficient to cover the distributions.  Our sponsor forgave $2,369,139 of these amounts during the second quarter of 2004 and these funds are no longer due. As of December 31, 2004 and December 31, 2003, we owe funds to our sponsor in the amount of $3,522,670 and $1,202,519, respectively, for repayment of the funds advanced for payment of distributions.

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Off-Balance Sheet Arrangements, Contractual Obligations, Liabilities and Contracts and Commitments

The table below presents our obligations and commitments to make future payments under debt obligations and lease agreements as of December 31, 2004.

Contractual Obligations	Payments due by period
	Total		Less than 1 year	1-3 years	3-5 years	More than 5 years
Long-Term Debt:
Fixed rate	$	2,065,626,447	77,170,997	210,970,182	1,136,399,595	641,085,673
Variable rate	168,873,039		20,552,746	10,900,759	119,705,631	17,713,903
Ground lease payments	$	358,535,876	3,186,464	6,426,415	6,642,246	342,280,751

The table includes interest payments to which we are contractually obligated under long term debt agreements.

We lease land under non-cancelable leases at certain of the properties expiring in various years from 2028 to 2096.  The property attached to the land will revert back to the lessor at the end of the lease.

Contracts and Commitments

We have closed on several properties which have earnout components, meaning that we did not pay for portions of these properties that were not rent producing.  We are obligated, under certain agreements, to pay for those portions when the tenant moves into its space and begins to pay rent.  The earnout payments are based on a predetermined formula. Each earnout agreement has a time limit regarding the obligation to pay any additional monies.  If at the end of the time period allowed certain space has not been leased and occupied, we will own that space without any further obligation. Based on pro forma leasing rates, we may pay as much as $189,042,868 in the future, as retail space covered by earnout agreements is occupied and becomes rent producing.

During 2004, we entered into two installment note agreements in which we are obligated to fund up to a total of $33,398,314.  The notes maintain stated interest rates of 6.993% and 7.5572% per annum and mature in July 2005 and August 2005, respectively.  Each note requires monthly interest payments with the entire principal balance due at maturity.  The combined receivable balance at December 31, 2004 was $31,771,731.  Therefore, we may be required to fund up to an additional $1,626,583 on these notes.

We have obtained three irrevocable letters of credit related to loan fundings against earnout spaces at certain properties.  Once we purchase the remaining portion of these properties and meet certain occupancy requirements, the letters of credit will be released. The balance of outstanding letters of credit at December 31, 2004 is $11,573,100.

In connection with the purchase of one of our properties, we received a price adjustment in the amount of $763,072 related to spaces that were vacant at the time of closing. If at any time during the next two years the seller is able to lease that space under conditions satisfactory to us, we are obligated to pay the seller a pro-rata share of the purchase price reduction.

We have entered into interest rate lock agreements with various lenders to secure interest rates on mortgage debt on properties we currently own or will purchase in the future.  We have outstanding rate lock deposits in the amount of $2,826,055 as of December 31, 2004 which are applied as credits to the mortgage fundings as they occur.  These agreements lock interest rates from 4.45% to 5.12% for periods from 60 days to 90 days on approximately $240 million in principal.

Subsequent to December 31, 2004, we purchased 12 properties for a purchase price of approximately $260 million.  In addition, we are currently considering acquiring nine properties for an estimated purchase price of $226 million.  Our decision to acquire each property generally depends upon no material adverse change occurring relating to the property, the tenants or in the local economic conditions, and our receipt of satisfactory due diligence information including appraisals, environmental reports and lease information prior to purchasing the property.

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Results of Operations

General

The following discussion is based primarily on our consolidated financial statements as of December 31, 2004 and for the period from March 5, 2003 (inception) to December 31, 2003.

Quarter Ended	Properties Purchased per Quarter	Square Feet Acquired	Purchase Price
March 31, 2003	None	N/A	N/A
June 30, 2003	None	N/A	N/A
September 30, 2003	None	N/A	N/A
December 31, 2003	8	797,551	$	127,195,000
March 31, 2004	11	2,115,280	$	384,053,000
June 30, 2004	23	4,177,286	$	713,925,000
September 30, 2004	26	5,705,453	$	869,128,000
December 31, 2004	43	7,435,554	$	1,241,693,000
Total	111	20,231,124	$	3,335,994,000

Rental Income, Tenant Recoveries and Other Property Income.  Rental income consists of basic monthly rent and percentage rental income due pursuant to tenant leases.  Tenant recovery and other property income consist of property operating expenses recovered from the tenants including real estate taxes, property management fees and insurance.  Rental income was $106,424,663 and $606,646 and all additional property income was $23,979,918 and $137,988 for the year ended December 31, 2004 and for the period from March 5, 2003 (inception) to December 31, 2003, respectively.

Other Income. Other income consists of interest income earned primarily on short term investments that are held by us and other non-operating income earned by us.  Other income was $3,681,067 and $37,648, respectively, for the year ended December 31, 2004 and the period from March 5, 2003 (inception) to December 31, 2003.

General and Administrative Expenses. General and administrative expenses consist of salaries and computerized information services costs reimbursed to affiliates for maintaining our accounting and investor records, affiliates common share purchase discounts, insurance, postage, printer costs and fees paid to accountants and lawyers.  These expenses were $4,857,101 for the year ended December 31, 2004 and $459,476 for the period from March 5, 2003 (inception) to December 31, 2003 and resulted from increased services required as we acquire properties and grow our portfolio of investment properties and our investor base.

Property Operating Expenses.  Property operating expenses consist of property management fees and property operating expenses, including real estate taxes, costs of owning and maintaining shopping centers, insurance, and maintenance to the exterior of the buildings and the parking lots.  These expenses were $32,521,195 for the year ended December 31, 2004 and $143,244 for the period from March 5, 2003 (inception) to December 31, 2003.

Depreciation and Amortization.  Depreciation expense was $36,113,611 and $140,497 and is due to depreciation on the properties owned during the year ended December 31, 2004 and the period from March 5, 2003 (inception) to December 31, 2003, respectively.Amortization expense was $11,859,597 and $76,608, respectively, and is due to the application of SFAS 141 and SFAS 142 resulting from the amortization of intangible assets of approximately $250 million and loan and leasing fees of $12 million during the year ended December 31, 2004 and intangible assets of approximately $9 million and loan and leasing fees of $1 million during the period from March 5, 2003 (inception) to December 31, 2003.

Interest.  Interest was $33,174,623 for the year ended December 31, 2004 and is due to the financing on 97 properties as of December 31, 2004 and funds drawn during the first quarter of 2004 on the line of credit.  Interest was $135,735 for the period from March 5, 2003 (inception) to December 31, 2003 and is due to the financing on two properties as of December 31, 2003.

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Subsequent Events

We issued 42,629,352 shares of common stock and repurchased 28,459 shares of common stock from January 1, 2005 through February 28, 2005, resulting in a total of 260,058,421 shares of common stock outstanding. As of February 28, 2005, subscriptions for a total of 255,692,354 shares were received resulting in total gross offering proceeds of $2,555,826,905. An additional 4,404,876 shares were issued pursuant to the DRP for $41,846,623 of additional gross proceeds and 38,809 were repurchased in connection with the SRP for $455,916.

We paid distributions of $11,377,712 and $12,232,404 to its stockholders in January and February 2005, respectively.

We have acquired the following properties during the period January 1 to February 28, 2005.  The respective acquisitions are detailed in the table below.

Date Acquired	Property	Year Built	Approximate Purchase Price ($)	Gross Leasable Area (Sq. Ft.)	Major Tenants
01/05/05	Fairgrounds Plaza Middletown, NY	2002- 2004	21,994,125	59,970	Super Stop N’ Shop
01/06/05	Maytag Distribution Center Iowa City, IA	2004	23,159,499	750,000	Maytag
01/10/05	Midtown Center Milwaukee, WI	1986- 1987	53,000,000	319,108	Wal-Mart Pick ‘N Save
01/10/05	Hobby Lobby Concord, NC	2004	5,500,000	60,000	Hobby Lobby
01/19/05	Stanley Works/Mac Tools Westerville, OH	2004	10,000,000	72,500	Mac Tools
01/25/05	American Express Markham, Ontario, Canada	1983 & 1987	42,000,000	306,710	American Express
01/28/05	Academy Sports San Antonio, TX	2004	7,150,000	70,910	Academy Sports
02/01/05	Magnolia Square Houma, LA	2004	19,113,739	116,079	Ross Dress for Less PETsMART Circuit City
02/02/05	Cottage Plaza Pawtucket, RI	2004-2005	23,439,950	75,543	Stop ‘N Shop
02/09/05	The Village at Quail Springs Oklahoma City, OK	2003-2004	10,428,978	101,128	Gordmans Best Buy
02/11/05	Holliday Towne Center Duncansville, PA	2003	14,827,645	83,122	Martin’s
02/18/05	Trenton Crossing McAllen, TX	2003	29,212,209	221,019	Hobby Lobby Ross Dress for Less Marshalls Bealls

The mortgage debt and financings obtained during the period January 1 to February 28, 2005, are detailed in the table below.

Date Funded	Mortgage Payable	Annual Interest Rate		Maturity Date	Principal Borrowed ($)
01/05/05	Fairgrounds Plaza Middletown, NY	5.690	%	02/01/33	15,982,376
01/24/05	Hobby Lobby Concord, NC	5.115	%	02/01/10	3,025,000

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Date Funded	Mortgage Payable	Annual Interest Rate		Maturity Date	Principal Borrowed ($)
01/25/05	American Express Markham, Ontario, Canada	4.2975	%	02/01/15	25,380,000
01/28/05	Coram Plaza Coram, NY	4.550	%	02/01/10	20,755,300
01/31/05	Low Country Village II Bluffton, SC	5.130	%	05/01/09	5,440,000
01/31/05	Irmo Station Irmo, SC	5.1236	%	02/01/10	7,085,000
02/01/05	Evans Towne Centre Evans, GA	4.670	%	02/01/10	5,005,000
02/03/05	Magnolia Square Houma, LA	5.115	%	03/01/10	10,265,000
02/04/05	Green’s Corner Cumming, GA	4.500	%	02/11/10	7,022,366
02/04/05	Newton Crossroads Covington, GA	4.500	%	02/11/10	5,547,622
02/04/05	Stilesboro Oaks Acworth, GA	4.500	%	02/11/10	6,951,971
02/09/05	Five Forks Simpsonville, NC	4.815	%	02/11/10	4,482,500
02/14/05	University Town Center Tuscaloosa, AL	4.430	%	03/01/10	5,810,000
02/14/05	Edgemont Town Center Homewood, AL	4.430	%	03/01/10	8,600,000
02/15/05	Southlake Town Square Southlake, TX	4.550	%	03/11/10	70,570,880
02/17/05	Midtown Center Milwaukee, WI	4.460	%	03/11/10	28,227,617
02/17/05	McAllen Shopping Center McAllen, TX	5.060	%	03/01/10	2,455,000
02/18/05	Southlake Town Square II Southlake, TX	4.550	%	03/11/10	10,429,120
02/18/05	Mesa Fiesta Mesa, AZ	5.300	%	02/01/10	23,500,000
02/24/05	Academy Sports San Antonio, TX	5.060	%	03/01/10	3,933,000
02/25/05	The Village at Quail Springs Oklahoma City, OK	5.060	%	03/01/10	5,740,000

We are obligated under earnout agreements to pay for certain tenant space in our existing properties after the tenant moves into its space and begins paying rent.  During the period from January 1 to February 28, 2005, we funded earnouts totaling $20,552,372 at seven of our existing properties.

We are currently considering acquiring nine properties for an estimated purchase price of $226 million.  Our decision to acquire each property will generally depend upon no material adverse change occurring relating to the property, the tenants or in the local economic conditions, and our receipt of satisfactory due diligence information including appraisals, environmental reports and lease information prior to purchasing the property.

36

During the period from January 1, 2005 to February 28, 2005, we entered into rate lock agreements which lock interest rates from 4.47% to 4.69% for periods from 30 days to 90 days on approximately $300 million in principal.

Inflation

For our multi-tenant shopping centers, inflation is likely to increase rental income from leases to new tenants and lease renewals, subject to market conditions.  Our rental income and operating expenses for those properties owned, or to be owned and operated under net leases, are not likely to be directly affected by future inflation, since rents are or will be fixed under the leases and property expenses are the responsibility of the tenants.  The capital appreciation of net leased properties is likely to be influenced by interest rate fluctuations.  To the extent that inflation determines interest rates, future inflation may have an effect on the capital appreciation of net leased properties.  As of December 31, 2004, we owned 24 single-user net leased properties.

Item 7 (a). Quantitative and Qualitative Disclosures About Market Risk

We may be exposed to interest rate changes primarily as a result of long-term debt used to maintain liquidity and fund capital expenditures and expansion of our real estate investment portfolio and operations.  Our interest rate risk management objectives will be to limit the impact of interest rate changes on earnings and cash flows and to lower its overall borrowing costs.  To achieve our objectives we will borrow primarily at fixed rates or variable rates with the lowest margins available and in some cases, with the ability to convert variable rates to fixed rates.

We may use derivative financial instruments to hedge exposures to changes in interest rates on loans secured by our properties.  To the extent we do, we are exposed to credit risk and market risk.  Credit risk is the failure of the counterparty to perform under the terms of the derivative contract.  When the fair value of a derivative contract is positive, the counterparty owes us, which creates credit risk for us.  When the fair value of a derivative contract is negative, we owe the counterparty and, therefore, it does not possess credit risk.  It is our policy to enter into these transactions with the same party providing the financing, with the right of offset.  In the alternative, we will minimize the credit risk in derivative instruments by entering into transactions with high-quality counterparties.  Market risk is the adverse effect on the value of a financial instrument that results from a change in interest rates.  The market risk associated with interest-rate contracts is managed by establishing and monitoring parameters that limit the types and degree of market risk that may be undertaken.

For the year ended December 31, 2004, we entered into treasury contracts with a futures commission merchant with yields ranging from 3.27% to 3.85% for 5 year treasury contracts and 4.00% to 4.63% for 10 year treasury contracts. On December 31, 2004, the treasury contracts had a liquidation value of $46,005 resulting in a loss of $3,666,894 for the year ended December 31, 2004.  As these treasury contracts are not offsetting future commitments and therefore do not qualify as hedges, the net loss is recognized currently in earnings. To offset the net loss recognized on the treasury contracts, we took advantage of the lower treasury yields which caused the loss on the treasury contracts and secured permanent financing in the amount of approximately $835,000,000 for pending acquisitions.

With regard to variable rate financing, we assess interest rate cash flow risk by continually identifying and monitoring changes in interest rate exposures that may adversely impact expected future cash flows and by evaluating hedging opportunities.  We maintain risk management control systems to monitor interest rate cash flow risk attributable to both of our outstanding or forecasted debt obligations as well as our potential offsetting hedge positions.  The risk management control systems involve the use of analytical techniques, including cash flow sensitivity analysis, to estimate the expected impact of changes in interest rates on our future cash flows.

While this hedging strategy is intended to reduce our exposure to interest rate fluctuations, the result may be a reduction in overall returns on your investment.

The fair value of our debt approximates its carrying amount as of December 31, 2004.

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Our interest rate risk is monitored using a variety of techniques. The table below presents the principal amounts and weighted average interest rates by year and expected maturity to evaluate the expected cash flows and sensitivity to interest rate changes.

	2005		2006		2007		2008		2009		Thereafter
Maturing debt
Fixed rate debt (mortgage loans)	920,574		981,221		57,906,321		47,322,706		960,152,489		568,462,316
Variable rate debt (including note payable)	15,672,533		1,212,575		637,533		637,533		111,635,533		17,572,335
Average interest rate on debt:
Fixed rate debt	5.91	%	5.92	%	4.50	%	4.67	%	4.70	%	4.63	%
Variable rate debt	4.23	%	3.56	%	4.75	%	4.75	%	3.25	%	4.75	%

We have $147,368,042 of debt (including note payable) bearing variable rate interest averaging 3.55% as of December 31, 2004.  An increase in the variable interest rate on this debt constitutes a market risk.  If interest rates increase by 1%, based on debt outstanding as of December 31, 2004, interest expense increases by $1,473,680 on an annual basis.

The table incorporates only those exposures that exist as of December 31, 2004.  It does not consider those exposures or positions that could arise after that date. The information presented herein is merely an estimate and has limited predictive value. As a result, the ultimate realized gain or loss with respect to interest rate fluctuations will depend on the exposures that arise during the period, our hedging strategies at that time, and future changes in the level of interest rates.

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Item 8.  Consolidated Financial Statements and Supplementary Data

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.
(A Maryland Corporation)

Index

	Page
Reports of Independent Registered Public Accounting Firm	40
Financial Statements:
Consolidated Balance Sheets at December 31, 2004 and 2003	42
Consolidated Statements of Operations for the year ended December 31, 2004 and the period from March 5, 2003 (inception) to December 31, 2003	44
Consolidated Statements of Stockholders’ Equity for the year ended December 31, 2004 and for the period from March 5, 2003 (inception) to December 31, 2003	45
Consolidated Statements of Cash Flows for the year ended December 31, 2004 and for the period from March 5, 2003 (inception) to December 31, 2003	46
Notes to Consolidated Financial Statements	48
Real Estate and Accumulated Depreciation (Schedule III)	67

Schedules not filed:

All schedules other than the one listed in the Index have been omitted as the required information is inapplicable or the information is presented in the financial statements or related notes.

39

Report of Independent Registered Public Accounting Firm

The Board of Directors and Stockholders

Inland Western Retail Real Estate Trust, Inc.:

We have audited the accompanying consolidated balance sheets of Inland Western Retail Real Estate Trust, Inc. as of December 31, 2004 and 2003, and the related consolidated statements of operations, stockholders’ equity, and cash flows for the year ended December 31, 2004 and the period from March 5, 2003 (inception) to December 31, 2003. In connection with our audit of the consolidated financial statements, we also have audited the financial statement schedule III.  These consolidated financial statements and financial statement schedule are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements and financial statement schedule based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States).  Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement.  An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation.  We believe that our audits provide a reasonable basis for our opinion.

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Inland Western Retail Real Estate Trust, Inc. as of December 31, 2004 and 2003, and the results oftheir operations and their cash flows for the year ended December 31, 2004 and the period from March 5, 2003 (inception) to December 31, 2003, in conformity with U.S. generally accepted accounting principles.  Also in our opinion, the related financial statement schedule, when considered in relation to the basic consolidated financial statements taken as a whole, presents fairly, in all material respects, the information set forth therein.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the effectiveness of Inland Western Retail Real Estate Trust, Inc.’s internal control over financial reporting as of December 31, 2004, based oncriteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO), and our report datedMarch 3, 2005 expressed an unqualified opinion on management’s assessment of, and the effective operation of, internal control over financial reporting.

KPMG LLP

Chicago, Illinois

March 3, 2005

40

Report of Independent Registered Public Accounting Firm

The Board of Directors and Stockholders

Inland Western Retail Real Estate Trust, Inc.:

We have audited management’s assessment, included in the accompanying Management’s Report on Internal Control Over Financial Reporting, that Inland Western Retail Real Estate Trust, Inc. maintained effective internal control over financial reporting as of December 31, 2004, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting. Our responsibility is to express an opinion on management’s assessment and an opinion on the effectiveness of the Company’s internal control over financial reporting based on our audit.

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, evaluating management’s assessment, testing and evaluating the design and operating effectiveness of internal control, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles.  A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements.  Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

In our opinion, management’s assessment that Inland Western Retail Real Estate Trust, Inc. maintained effective internal control over financial reporting as of December 31, 2004, is fairly stated, in all material respects, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Also, in our opinion, Inland Western Retail Real Estate Inc. maintained, in all material respects, effective internal control over financial reporting as of December 31, 2004, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of Inland Western Retail Real Estate Trust, Inc. as of December 31, 2004 and 2003, and the related consolidated statements of operations, stockholders’ equity, and cash flows for the year ended December 31, 2004 and the period from March 3, 2003 (inception) to December 31, 2003, and our report dated March 3, 2005 expressed an unqualified opinion on those consolidated financial statements.  In connection with our audit of the consolidated financial statements, we also have audited the financial statement schedule III.

KPMG LLP

Chicago, Illinois

March 3, 2005

41

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.
(A Maryland Corporation)

Consolidated Balance Sheets (Amounts in thousands)

Assets

	December 31, 2004				December 31, 2003
Investment properties:
Land	$		575,032		$	36,280
Building and other improvements	2,654,585				86,440
	3,229,617				122,720
Less accumulated depreciation	(36,290			)	(141			)
Net investment properties	3,193,327				122,579
Cash and cash equivalents (including cash held by management company of $8,574 and $239 as of December 31, 2004 and 2003, respectively)	241,224				64,381
Restricted cash (Note 2)	65,923				—
Restricted escrows (Note 2)	17,105				—
Investment in marketable securities and treasury contracts	1,287				—
Investment in unconsolidated joint ventures (Note 9)	75,261				—
Accounts and rents receivable (net of allowance of $346 and $0 as of December 31, 2004 and 2003, respectively)	19,962				1,148
Due from affiliates (Note 3)	654				919
Note receivable (Note 6)	31,772				7,552
Acquired in-place lease intangibles and customer relationship value (net of accumulated amortization of $9,976 and $52 as of December 31, 2004 and 2003, respectively)	240,116				8,754
Acquired above market lease intangibles (net of accumulated amortization of $3,124 and $5 as of December 31, 2004 and 2003, respectively)	40,774				1,590
Loan fees, leasing fees and loan fee deposits (net of accumulated amortization of $755 and $25 as of December 31, 2004 and 2003, respectively)	19,472				3,998
Other assets	8,939				1,181
Total assets	$	3,955,816			$		212,102

See accompanying notes to consolidated financial statements

42

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.
(A Maryland Corporation)

Consolidated Balance Sheets
(continued)
(Amounts in thousands)

Liabilities and Stockholder’s Equity

	December 31, 2004			December 31, 2003
Liabilities:
Mortgages and notes payable (Note 7)	$	1,783,114		$	29,627
Accounts payable	1,692			150
Accrued offering costs due to affiliates	2,880			1,369
Accrued interest payable	4,306			—
Tenants improvements payable	5,096			5
Accrued real estate taxes	4,254			1,392
Distributions payable	11,378			928
Security deposits	3,679			108
Line of credit (Note 8)	—			5,000
Prepaid rental income and other liabilities	7,765			179
Advances from sponsor (Note 3)	3,523			1,203
Acquired below market lease intangibles (net of accumulated amortization of $4,718 and $15 as of December 31, 2004 and 2003, respectively)	85,986			5,910
Restricted cash liability (Note 2)	65,923			—
Due to affiliates	957			2,502
Total liabilities	1,980,553			48,373
Minority interests	89,537			—
Stockholders’ equity:
Preferred stock, $.001 par value, 10,000 shares authorized, none outstanding	—			—
Common stock, $.001 par value, 250,000 shares authorized, 217,458 and 18,737 shares issued and outstanding as of December 31, 2004 and 2003, respectively	217			19
Additional paid in capital (net of offering costs of $234,014 and $22,145 as of December 31, 2004 and 2003, respectively, of which $175,509 and $16,860 was paid or accrued to affiliates as of December 31, 2004 and 2003, respectively)	1,940,018			165,169
Accumulated distributions in excess of net income (loss)	(54,750		)	(1,459		)
Accumulated other comprehensive income	241			—
Total stockholders’ equity	1,885,726			163,729
Commitments and contingencies (Note 12)
Total liabilities and stockholders’ equity	$	3,955,816		$	212,102

See accompanying notes to consolidated financial statements

43

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.
(A Maryland Corporation)

Consolidated Statements of Operations(Amounts in thousands, except per share amounts)

	Year Ended December 31, 2004			Period from March 5, 2003 (inception) through December 31, 2003
Income:
Rental income	$	106,425		$	607
Tenant recovery income	23,155			138
Other property income	825			—
Total income	130,405			745
Expenses:
General and administrative expenses to affiliates	1,852			177
General and administrative expenses to non-affiliates	3,005			283
Property operating expenses to affiliates	5,382			16
Property operating expenses to non-affiliates	14,064			31
Real estate taxes	13,076			96
Depreciation and amortization	47,973			217
Total expenses	85,352			820
Operating income (loss)	$	45,053		(75		)
Other income	3,681			38
Interest expense	(33,175		)	(136		)
Realized loss on sale of treasury contracts	(3,667		)	—
Minority interests	398			—
Equity in earnings (losses) of unconsolidated entities	(589		)	—
Net income (loss)	$	11,701		(173		)
Other comprehensive income:
Unrealized gain on investment securities	241			—
Comprehensive income (loss)	$	11,942		$	(173	)
Net income(loss) per common share, basic and diluted	$	.12		$	(.07	)
Weighted average number of common shares outstanding, basic and diluted	98,563			2,521

See accompanying notes to consolidated financial statements

44

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.
(A Maryland Corporation)

Consolidated Statements of Stockholders’ Equity

For the year ended December 31, 2004 and for the period from March 5, 2003 (inception) to December 31, 2003

(Amounts in thousands)

	Number of Shares		Common Stock		Additional Paid-in Capital				Accumulated Distributions in excess of Net Income (Loss)			Accumulated Other Comprehensive Income		Total
Balance at March 5, 2003 (inception)	—		$	—	$		—		$	—		$	—	$		—
Net loss	—		—		—				(173		)	—		(173			)
Distributions declared (.15 per weighted average number of common shares outstanding)	—		—		—				(1,286		)	—		(1,286			)
Proceeds from offering	18,718		19		187,066				—			—		187,085
Offering costs	—		—		(22,145			)	—			—		(22,145			)
Proceeds from dividend reinvestment program	19		—		181				—			—		181
Issuance of stock options and discounts on shares issued to affiliates	—		—		67				—			—		67
Balance at December 31, 2003	18,737		$	19	$	165,169			$	(1,459	)	$	—	$		163,729
Net income	—		—		—				11,701			—		11,701
Unrealized gain on investment securities	—		—		—				—			241		241
Distributions declared (.66 per weighted number of common shares outstanding)	—		—		—				(64,992		)	—		(64,992			)
Proceeds from offering	195,671		195		1,955,517				—			—		1,955,712
Offering costs	—		—		(211,869			)	—			—		(211,869			)
Proceeds from dividend reinvestment program	3,060		3		29,067				—			—		29,070
Shares repurchased	(10	)	—		(193			)	—			—		(193			)
Shares obligated to be repurchased as of December 31, 2004	—		—		(472			)	—			—		(472			)
Contribution from sponsor advances	—		—		2,369				—			—		2,369
Issuance of stock options and discounts on shares issued to affiliates	—		—		430				—			—		430
Balance at December 31, 2004	217,458		$	217	$	1,940,018			(54,750		)	$	241	$	1,885,726

See accompanying notes to consolidated financial statements

45

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.
(A Maryland Corporation)

Consolidated Statements of Cash Flows

(Amounts in thousands)

	Year Ended December 31, 2004			Period from March 5, 2003 (inception) through December 31, 2003
Cash flows from operations:
Net income (loss)	$	11,701		$	(173	)
Adjustments to reconcile net income (loss) to net cash provided by operating activities:
Depreciation	36,149			140
Amortization	11,824			77
Amortization of acquired above market leases	3,119			5
Amortization of acquired below market leases	(4,703		)	(15		)
Rental income under master leases	3,025			—
Straight line rental income	(3,886		)	—
Straight line lease expense	919			—
Minority interests	(398		)	—
Loss from investments in unconsolidated entities	589			—
Issuance of stock options and discount on shares issued to affiliates	430			5
Realized loss on sale of treasury contracts	3,667			—
Changes in assets and liabilities:
Accounts and rents receivable net of change in allowance of $346 and $0 for December 31, 2004 and 2003, respectively.	(14,928		)	(1,148		)
Other assets	(3,276		)	—
Accounts payable	1,542			307
Accrued interest payable	4,306			—
Accrued real estate taxes	3,674			1,241
Security deposits	3,571			108
Prepaid rental income and other liabilities	6,195			177
Net cash flows provided by operating activities	63,520			724
Cash flows from investing activities:
Purchase of investment securities and treasury contracts	(4,713		)	—
Restricted escrows	(17,105		)	—
Purchase of investment properties	(3,002,437		)	(122,720		)
Acquired in-place lease intangibles and customer relationship value	(241,286		)	(8,806		)
Acquired above market leases	(42,303		)	(1,596		)
Acquired below market leases	84,779			5,926
Contributions from minority interests - joint ventures	95,568			—
Distributions to minority interests - joint ventures	(5,251		)	—
Purchase of unconsolidated joint ventures	(76,232		)	—
Interest capitalized for real estate under development	(85		)	—
Payment of leasing fees	(761		)	—
Tenant improvements payable	4,570			—
Other assets	(4,482		)	(831		)
Funding of notes receivable	(31,772		)	(7,552		)
Due to affiliates	(1,545		)	2,154
Net cash flows used in investing activities	(3,243,055		)	(133,425		)

See accompanying notes to consolidated financial statements

46

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.
(A Maryland Corporation)

Consolidated Statements of Cash Flows

(continued)

(Amounts in thousands)

	Year Ended December 31, 2004			Period from March 5, 2003 (inception) through December 31, 2003
Cash flows from financing activities:
Proceeds from offering	1,955,712			187,146
Proceeds from the dividend reinvestment program	29,070			181
Shares repurchased	(193		)	—
Payment of offering costs	(210,358		)	(20,775		)
Proceeds from mortgage debt and notes payable	1,653,523			29,627
Principal payments on mortgage debt	(175		)	—
Proceeds from unsecured line of credit	165,000			5,000
Payoff of unsecured line of credit	(170,000		)	—
Payment of loan fees and deposits	(16,613		)	(4,023		)
Distributions paid	(54,542		)	(358		)
Due from affiliates	2,585			(919		)
Advances from advisor	—			1,203
Contribution from sponsor advances	2,369			—
Net cash flows provided by financing activities	3,356,378			197,082
Net increase in cash and cash equivalents	176,843			64,381
Cash and cash equivalents, at beginning of period	64,381			—
Cash and cash equivalents, at end of period	$	241,224		$	64,381
Cash paid for interest, net of interest capitalized of $85	$	28,869		136
Restricted cash	$	(65,923	)	—
Restricted cash liability	65,923			—
Due from sponsor	$	(654	)
Due to sponsor	654
Share repurchase program	$	(472	)
Share repurchase program liability	472
Supplement schedule of non-cash investing and financing activities:
Purchase of investment properties	$	(3,113,038	)	(121,868		)
Assumption of mortgage debt	100,139			—
Write-off of acquisition reserve	521			—
Purchase price adjustments	2,389			(852		)
Conversion of mortgage receivable to investment property	7,552			—
	$	(3,002,437	)	(122,720		)
Distributions payable	$	11,378		928
Accrued offering costs payable	$	2,880		1,369
Write-off of fully amortized loan fees	$	1,170		—

See accompanying notes to financial statements

47

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.

(A Maryland Corporation)

Notes to Consolidated Financial Statements

December 31, 2004 and 2003

(1)  Organization and Basis of Accounting

Inland Western Retail Real Estate Trust, Inc. (the “Company”) was formed on March 5, 2003 to acquire and manage a diversified portfolio of real estate, primarily multi-tenant shopping centers. The Advisory Agreement provides for Inland Western Retail Real Estate Advisory Services, Inc. (the “Business Manager” or “Advisor”), an Affiliate of the Company, to be the Business Manager or Advisor to the Company.  On September 15, 2003, the Company commenced an initial public offering (the initial public offering) of up to 250,000,000 shares of common stock at $10 each and the issuance of 20,000,000 shares at $9.50 each which may be distributed pursuant to the Company’s distribution reinvestment program. The Company registered a second offering (the second offering) that became effective on December 28, 2004 with the Securities and Exchange Commission for up to 250,000,000 shares of common stock at $10 each and up to 20,000,000 shares at $9.50 each pursuant to the distribution reinvestment program. Sales of shares in the second offering began in early January 2005.

The Company is qualified and has elected to be taxed as a real estate investment trust (“REIT”) under the Internal Revenue Code of 1986, as amended, for federal income tax purposes commencing with the tax year ending December 31, 2003.  Since the Company qualifies for taxation as a REIT, the Company generally will not be subject to federal income tax to the extent it distributes at least 90% of its REIT taxable income to its stockholders.  If the Company fails to qualify as a REIT in any taxable year, the Company will be subject to federal income tax on its taxable income at regular corporate tax rates.  Even if the Company qualifies for taxation as a REIT, the Company may be subject to certain state and local taxes on its income and property and federal income and excise taxes on its undistributed income.

The Company provides the following programs to facilitate investment in the Company’s shares and to provide limited liquidity for stockholders.

The Company allows stockholders who purchase shares in the initial public offering and second offering to purchase additional shares from the Company by automatically reinvesting distributions through the distribution reinvestment program (“DRP”), subject to certain share ownership restrictions. Such purchases under the DRP are not subject to selling commissions or the marketing contribution and due diligence expense allowance, and are made at a price of $9.50 per share.

The Company will repurchase shares under the share repurchase program (“SRP”), if requested, at least once quarterly on a first-come, first-served basis, subject to certain restrictions. Subject to funds being available, the Company will limit the number of shares repurchased during any calendar year to 5% of the weighted average number of shares outstanding during the prior calendar year. Funding for the SRP will come exclusively from proceeds that the Company receives from the sale of shares under the DRP and such other operating funds, if any, as the Company’s board of directors, at its sole discretion, may reserve for this purpose.  The board, at its sole discretion, may choose to terminate the share repurchase program after the end of the offering period, or reduce the number of shares purchased under the program, if it determines that the funds allocated to the SRP are needed for other purposes, such as the acquisition, maintenance or repair of properties, or for use in making a declared distribution.  A determination by the board to eliminate or reduce the share repurchase program will require the unanimous affirmative vote of the independent directors.  As of December 31, 2004, the Company had repurchased 10,350 shares for $192,667.

The accompanying Consolidated Financial Statements include the accounts of the Company, as well as all wholly owned subsidiaries and consolidated joint venture investments.  Wholly owned subsidiaries generally consist of limited liability companies (LLC’s) and limited partnerships (LP’s).  The effects of all significant intercompany transactions have been eliminated.

48

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.

(A Maryland Corporation)

Notes to Consolidated Financial Statements

December 31, 2004 and 2003

(continued)

The Company would consolidate certain property holding entities and other subsidiaries that it owns less than a 100% equity interest if the entity is a variable interest entity (“VIE”) and it is the primary beneficiary (as defined in FASB Interpretation 46(R) Consolidation of Variable Interest Entities, an Interpretation of ARB No. 51, as revised (“FIN 46(R)”)). For joint ventures that are not VIE’s of which the Company owns less than 100% of the equity interest, the Company consolidates the property if it receives substantially all of the economics or has the direct or indirect ability to make major decisions. Major decisions are defined in the respective joint venture agreements and generally include participating and protective rights such as decisions regarding major leases, encumbering the entities with debt and whether to dispose of the entities.

The Company has a 95% ownership interest in the LLC’s which own Gateway Village, Boulevard at the Capital Centre, Towson Circle, Reisterstown Road Plaza and Tollgate Marketplace, however, the Company shares equally in major decisions. These entities are considered VIE’s as defined in FIN 46(R) and the Company is considered the primary beneficiary. Therefore these entities are consolidated by the Company and the 5% outside ownership interest is reflected as minority interest in the accompanying Consolidated Financial Statements.

The Company has a 60.9% ownership interest in, and is the controlling member of the LLC which owns Cardiff Hall East Apartments.  The other members’ interests in the property are reflected as minority interest in the accompanying Consolidated Financial Statements.

(2)  Summary of Significant Accounting Policies

The accompanying Consolidated Financial Statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”) and require management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting periods. Actual results could differ from those estimates.

Certain reclassifications have been made to the 2003 financial statements to conform to the 2004 presentations.

Rental income is recognized on a straight-line basis over the term of each lease. The difference between rental income earned on a straight-line basis and the cash rent due under the provisions of the lease agreements is recorded as deferred rent receivable and is included as a component of accounts and rents receivable in the accompanying consolidated balance sheets.

The Company records lease termination income if there is a signed termination agreement, all of the conditions of the agreement have been met, and the tenant is no longer occupying the property.

Staff Accounting Bulletin (“SAB”) 101, Revenue Recognition in Financial Statements, determined that a lessor should defer recognition of contingent rental income (i.e. percentage/excess rent) until the specified target (i.e. breakpoint) that triggers the contingent rental income is achieved.  The Company records percentage rental revenue in accordance with the SAB 101.

The Company considers all demand deposits, money market accounts and investments in certificates of deposit and repurchase agreements purchased with a maturity of three months or less, at the date of purchase, to be cash equivalents.  The Company maintains its cash and cash equivalents at financial institutions.  The combined account balances at one or more institutions periodically exceed the Federal Depository Insurance Corporation (“FDIC”) insurance coverage and, as a result, there is a concentration of credit risk related to amounts on deposit in excess of FDIC insurance coverage.  The Company believes that the risk is not significant, as the Company does not anticipate the financial institutions’ non-performance.

49

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.

(A Maryland Corporation)

Notes to Consolidated Financial Statements

December 31, 2004 and 2003

(continued)

The Company classifies its investment in securities in one of three categories: trading, available-for-sale, or held-to-maturity. Trading securities are bought and held principally for the purpose of selling them in the near term. Held-to-maturity securities are those securities in which the Company has the ability and intent to hold the security until maturity.  All securities not included in trading or held-to-maturity are classified as available-for-sale. Investment in securities at December 31, 2004 consists of common stock investments and is classified as available-for-sale securities and is recorded at fair value. Unrealized holding gains and losses on available-for-sale securities are excluded from earnings and reported as a separate component of other comprehensive income until realized. Realized gains and losses from the sale of available-for-sale securities are determined on a specific identification basis. A decline in the market value of any available-for-sale security below cost that is deemed to be other than temporary, results in a reduction in the carrying amount to fair value. The impairment is charged to earnings and a new costs basis for the security is established. To determine whether an impairment is other than temporary, the Company considers whether it has the ability and intent to hold the investment until a market price recovery and considers whether evidence indicating the cost of the investment is recoverable outweighs evidence to the contrary. Evidence considered in this assessment includes the reasons for the impairment, the severity and duration of the impairment, changes in value subsequent to year end and forecasted performance of the investee. Of the investment securities held on December 31, 2004, the Company has accumulated other comprehensive income of $241,015.

Costs associated with the offerings are deferred and charged against the gross proceeds of the offerings upon closing.  Formation and organizational costs are expensed as incurred. For the period from March 5, 2003 (inception) through December 31, 2003, $7,500 of organizational costs was expensed. No organizational costs were expensed in the year ended December 31, 2004.

The Company applies the fair value method of accounting as prescribed by Statement of Financial Accounting Standards (“SFAS”) No. 123, Accounting for Stock-Based Compensation for its stock options granted.  Under this method, the Company will report the value of granted options as a charge against earnings ratably over the vesting period.

The Company enters into interest rate futures contracts or treasury contracts as a means of reducing exposure to rising interest rates. At inception, contracts are evaluated in order to determine if they will qualify for hedge accounting treatment and will be accounted for either on a deferral, accrual or market value basis depending on the nature of the hedge strategy and the method used to account for the hedged item. Hedge criteria include demonstrating the manner in which the hedge will reduce risk, identifying the specific asset, liability or firm commitment being hedged, and citing the time horizon being hedged.

For the year ended December 31, 2004, the Company entered into treasury contracts with a futures commission merchant with yields ranging from 3.27% to 3.85% for 5 year treasury contracts and 4.00% to 4.63% for 10 year treasury contracts. On December 31, 2004, the treasury contracts had a liquidation value of $46,005 resulting in a loss of $3,666,894 for the year ended December 31, 2004.  As these treasury contracts are not offsetting future commitments and therefore do not qualify as hedges, the net loss is recognized currently in earnings.

Differences between the carrying amount of the investment in unconsolidated joint ventures and the Company’s equity in the underlying assets are depreciated over 30 years.

Real estate acquisitions are recorded at costs less accumulated depreciation.  Ordinary repairs and maintenance are expensed as incurred.

Depreciation expense is computed using the straight line method.  Building and improvements are depreciated based upon estimated useful lives of 30 years for building and improvements and 15 years for site improvements.

50

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.
(A Maryland Corporation)

Notes to Consolidated Financial Statements
December 31, 2004 and 2003
 (continued)

In accordance with SFAS No. 144, the Company performs an analysis to identify impairment indicators to ensure that the investment property’s carrying value does not exceed its fair value.  The valuation analysis performed by the Company is based upon many factors which require difficult, complex or subjective judgments to be made.  Such assumptions include projecting vacancy rates, rental rates, operating expenses, lease terms, tenant financial strength, economy, demographics, property location, capital expenditures and sales value among other assumptions to be made upon valuing each property.  This valuation is sensitive to the actual results of any of these uncertain factors, either individually or taken as a whole.  Based upon the Company’s judgment, no impairment was warranted as of December 31, 2004 or December 31, 2003.

Tenant improvements are amortized on a straight line basis over the life of the related lease as a component of amortization expense.

Leasing fees are amortized on a straight-line basis over the life of the related lease.

Loan fees are amortized on a straight-line basis over the life of the related loans.

The Company allocates the purchase price of each acquired investment property between land, building and improvements, acquired above market and below market leases, in-place lease value, and any assumed financing that is determined to be above or below market terms. In addition, we allocate a portion of the purchase price to the value of the customer relationships. The allocation of the purchase price is an area that requires judgment and significant estimates.  The Company uses the information contained in the independent appraisal obtained at acquisition as the primary basis for the allocation to land and building and improvements. The Company determines whether any financing assumed is above or below market based upon comparison to similar financing terms for similar investment properties.  The Company also allocates a portion of the purchase price to the estimated acquired in-place lease costs based on estimated lease execution costs for similar leases as well as lost rent payments during assumed lease-up period when calculating as if vacant fair values.  The Company considers various factors including geographic location and size of leased space.  The Company also evaluates each acquired lease based upon current market rates at the acquisition date and considers various factors including geographical location, size and location of leased space within the investment property, tenant profile, and the credit risk of the tenant in determining whether the acquired lease is above or below market lease costs.  After an acquired lease is determined to be above or below market lease costs, the Company allocates a portion of the purchase price to such above or below acquired lease costs based upon the present value of the difference between the contractual lease rate and the estimated market rate. However, for below market leases with fixed rate renewals, renewal periods are included in the calculation of below market in-place lease values. The determination of the discount rate used in the present value calculation is based upon the “risk free rate.” This discount rate is a significant factor in determining the market valuation which requires the Company’s judgment of subjective factors such as market knowledge, economics, demographics, location, visibility, age and physical condition of the property.

The application of the SFAS Nos. 141 and 142 resulted in the recognition upon acquisition of additional intangible assets and liabilities relating to real estate acquisitions during the years ended December 31, 2004 and December 31, 2003. The portion of the purchase price allocated to acquired above market lease costs and acquired below market lease costs are amortized on a straight line basis over the life of the related lease as an adjustment to rental income and over the respective renewal period for below market lease costs with fixed rate renewals. Amortization pertaining to the above market lease costs of $3,118,699 was applied as a reduction to rental income for the year ended December 31, 2004 and $5,227 for the period from March 5, 2003 (inception) through December 31, 2003.  Amortization pertaining to the below market lease costs of $4,703,357 was applied as an increase to rental income for the year ended December 31, 2004 and $15,386 for the period from March 5, 2003 (inception) through December 31, 2003.

51

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.
(A Maryland Corporation)

Notes to Consolidated Financial Statements
December 31, 2004 and 2003
 (continued)

The portion of the purchase price allocated to acquired in-place lease intangibles is amortized on a straight line basis over the life of the related lease. The Company incurred amortization expense pertaining to acquired in-place lease intangibles of $9,923,630 for the year ended December 31, 2004 and $51,773 for the period from March 5, 2003 (inception) through December 31, 2003.

The portion of the purchase price allocated to customer relationship value is amortized on a straight line basis over the life of the related lease.

The following table presents the amortization during the next five years related to the acquired in-place lease intangibles, customer relationship value, acquired above market lease costs and the below market lease costs for properties owned at December 31, 2004.

Amortization of:	2005				2006		2007		2008		2009		Thereafter
Acquired above market lease costs	$		(5,576,668	)	(5,391,370	)	(4,558,366	)	(4,275,216	)	(3,783,749	)	(17,188,977	)
Acquired below market lease costs	9,930,801				9,166,611		8,238,008		7,337,557		6,580,442		44,732,278
Net rental income increase	$		4,354,133		3,775,241		3,679,642		3,062,341		2,796,693		27,543,301
Acquired in-place lease intangibles	$		(25,857,397	)	(25,857,397	)	(25,857,397	)	(25,803,230	)	(24,532,397	)	(110,207,994	)
Customer relationship value	$	(200,000		)	(200,000	)	(200,000	)	(200,000	)	(200,000	)	(1,000,000	)

In conjunction with certain acquisitions, the Company receives payments under master lease agreements pertaining to certain, non-revenue producing spaces either at the time of, or subsequent to, the purchase of some of the Company’s properties.  Upon receipt of the payments, the receipts are recorded as a reduction in the purchase price of the related properties rather than as rental income.  These master leases were established at the time of purchase in order to mitigate the potential negative effects of loss of rent and expense reimbursements.  Master lease payments are received through a draw of funds escrowed at the time of purchase and may cover a period from three months to three years.  These funds may be released to either the Company or the seller when certain leasing conditions are met.  Restricted cash includes funds received by third party escrow agents from sellers pertaining to master lease agreements.  The Company records the third party escrow funds as both an asset and a corresponding liability, until certain leasing conditions are met.

Restricted escrows primarily consist of lenders’ restricted escrows and earnout escrows.  Earnout escrows are established upon the acquisition of certain investment properties for which the funds may be released to the seller when certain leasing conditions have been met.

Notes receivable relate to real estate financing arrangements and bear interest at a market rate based on the borrower’s credit quality and are recorded at face value.  Interest is recognized over the life of the note.  The Company requires collateral for the notes.

52

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.

(A Maryland Corporation)

Notes to Consolidated Financial Statements

December 31, 2004 and 2003

 (continued)

A note is considered impaired pursuant to SFAS No. 114, Accounting by Creditors for Impairment of a Loan.  Pursuant to SFAS No. 114, a note is impaired if it is probable that the Company will not collect all principal and interest contractually due.  The impairment is measured based on the present value of expected future cash flows discounted at the note’s effective interest rate.  The Company does not accrue interest when a note is considered impaired.  When ultimate collectibility of the principal balance of the impaired note is in doubt, all cash receipts on impaired notes are applied to reduce the principal amount of such notes until the principal has been recovered and are recognized as interest income, thereafter.

The carrying amount of the Company’s debt approximates fair value. The Company estimates the fair value of its mortgages payable by discounting the future cash flows of each instrument at rates currently offered to the Company for similar debt instruments of comparable maturities by the Company’s lenders. The carrying amount of the Company’s other financial instruments approximate fair value because of the relatively short maturity of these instruments.

New Accounting Pronouncements

In December 2004, the FASB issued SFAS No. 153, Exchange of Nonmonetary Assets, an amendment of APB Opinion No. 29, (“SFAS 153”). The amendments made by SFAS 153 are based on the principle that exchanges of nonmonetary assets should be measured on the fair value of assets exchanged. It eliminates the exceptions for nonmonetary exchanges of similar productive assets and replaces it with a broader exception for exchanges of nonmonetary assets that do not have commercial substance. The statement is effective for nonmonetary exchanges occurring in fiscal periods beginning after June 15, 2005. The Company does not believe that the adoption of SFAS 153 will have a material impact on its Consolidated Financial Statements.

(3)  Transactions with Affiliates

The Business Manager or Advisor contributed $200,000 to the capital of the Company for which it received 20,000 shares of common stock.

Certain compensation and fees payable to the Business Manager or Advisor for services to be provided to the Company are limited to maximum amounts.

Nonsubordinated payments:

Offering stage:
	Selling commissions	7.5% of the sale price for each share
	Marketing contribution and due diligence allowance	3.0% of the gross offering proceeds
	Reimbursable expenses and other expenses of issuance	We will reimburse our sponsor for actual costs incurred, on our behalf, in connection with the offerings
Acquisition stage:
	Acquisition expenses	We will reimburse an affiliate of our business manager or advisor for costs incurred, on our behalf, in connection with the acquisition of properties

53

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.

(A Maryland Corporation)

Notes to Consolidated Financial Statements

December 31, 2004 and 2003

(continued)

Operational stage:
	Property management fee This fee terminates upon a business combination with the property management company.	4.5% of the gross income from the properties. (cannot exceed 90% of the fee which would be payable to an unrelated third party)
	Loan servicing fee	.03% per year on the first billion dollars of mortgages serviced and .01% thereafter
	Other property level services	Compensation for these services will not exceed 90% of that which would be paid to any third party for such services
	Reimbursable expenses relating to administrative services	The compensation and reimbursements to our business manager or advisor and its affiliates will be approved by a majority of our directors
Liquidation stage:
	Property disposition fee This fee terminates upon a business combination with the Advisor	Lesser of 3% of sales price or 50% of the customary commission which would be paid to a third party

Subordinated payments:

Operational stage:
	Advisor asset management fee This fee terminates upon a business combination with the Advisor	Not more than 1% per annum of our average assets; Subordinated to a non-cumulative, non-compounded return, equal to 6% per annum
Liquidation stage:
	Incentive advisory fee This fee terminates upon a business combination with the Advisor	After the stockholders have first received a 10% cumulative, non-compounded return per year and a return of their net investment, an incentive advisory fee equal to 15% on net proceeds from the sale of a property will be paid to the business manager or advisor

54

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.

(A Maryland Corporation)

Notes to Consolidated Financial Statements

December 31, 2004 and 2003

(continued)

On October 31, 2003, the Company acquired an existing shopping center known as The Shops at Park Place through the purchase of all of the membership interests of the general partner and the membership interests of the limited partner of the limited partnership holding title to this property.  The center contains approximately 116,300 gross leasable square feet and is located in Plano, Texas. An affiliate of our Advisor, Inland Park Place Limited Partnership, acquired this property on September 30, 2003 from CDG Park Place LLC, an unaffiliated third party for $23,868,000.  Inland Park Place Limited Partnership agreed to sell this property to the Company when sufficient funds from the sale of shares to acquire this property were raised. Inland Park Place Limited Partnership agreed to sell this property to the Company for the price the affiliate paid to the unaffiliated third party, plus any actual costs incurred. The Company’s board of directors unanimously approved acquiring this property, including a unanimous vote of the independent directors. The total acquisition cost to the Company was $24,000,000, which included $132,000 of costs incurred by the affiliate.

As of December 31, 2004 and December 31, 2003, the Company had incurred $234,014,231 and $22,144,814 of offering costs, of which $175,508,624 and $16,859,779, respectively, were paid or accrued to affiliates. Pursuant to the terms of the offerings, the Business Manager or Advisor has guaranteed payment of all public offering expenses (excluding sales commissions and the marketing contribution and the due diligence expense allowance) in excess of 5.5% of the gross proceeds of the offerings or all organization and offering expenses (including selling commissions) which together exceed 15% of gross proceeds. As of December 31, 2004 and December 31, 2003, offering costs did not exceed the 5.5% and 15% limitations. The Company anticipates that these costs will not exceed these limitations upon completion of the offerings.

The Business Manager or Advisor and its affiliates are entitled to reimbursement for salaries and expenses of employees of the Business Manager or Advisor and its affiliates relating to the offerings.  In addition, an affiliate of the Business Manager or Advisor is entitled to receive selling commissions, and the marketing contribution and due diligence expense allowance from the Company in connection with the offerings.  Such costs are offset against the stockholders’ equity accounts. Such costs totaled $175,508,624 and $16,859,779, of which $2,879,894 and $1,061,791 were unpaid at December 31, 2004 and December 31, 2003, respectively.

The Business Manager or Advisor and its affiliates are entitled to reimbursement for general and administrative costs relating to the Company’s administration.  Such costs are included in general and administrative expenses to affiliates, in addition to costs that were capitalized pertaining to property acquisitions.  For the year ended December 31, 2004 and the period from March 5, 2003 (inception) through December 31, 2003, the Company incurred $1,542,986 and $194,017 of these costs, respectively, of which $957,471 and $40,703 remained unpaid as of December 31, 2004 and 2003, respectively, and are included in due to affiliates on the Consolidated Balance Sheets.

An affiliate of the Business Manager or Advisor provides loan servicing to the Company for an annual fee.  The agreement allows for annual fees totaling .03% of the first $1 billion in mortgage balance outstanding and ..01% of the remaining mortgage balances, payable monthly.  Such fees totaled $140,859 for the year ended December 31, 2004 and $328 for the period from March 5, 2003 (inception) through December 31, 2003.

The Company used the services of an affiliate of the Business Manager or Advisor to facilitate the mortgage financing that the Company obtained on some of the properties purchased. The Company pays the affiliate .02% of the principal amount of each loan obtained on the Company’s behalf.  Such costs are capitalized as loan fees and amortized over the respective loan term.  For the year ended December 31, 2004 and for the period from March 5, 2003 (inception) through December 31, 2003, the Company paid loan fees totaling $3,475,472 and $59,523 to this affiliate, respectively.

55

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.
(A Maryland Corporation)

Notes to Consolidated Financial Statements
December 31, 2004 and 2003

 (continued)

The Company may pay an advisor asset management fee of not more than 1% of the average assets. Average asset value is defined as the average of the total book value, including acquired intangibles, of the Company’s real estate assets plus the Company’s loans receivable secured by real estate, before reserves for depreciation, reserves for bad debt or other similar non-cash reserves. The Company computes the average assets by taking the average of these values at the end of each month for which the fee is being calculated.  The fee would be payable quarterly in an amount equal to 1/4 of 1% of average assets as of the last day of the immediately preceding quarter.  For any year in which the Company qualifies as a REIT, the advisor must reimburse the Company for the following amounts if any: (1) the amounts by which total operating expenses, the sum of the advisor asset management fee plus other operating expenses, paid during the previous fiscal year exceed the greater of: (i) 2% of average assets for that fiscal year, or (ii) 25% of net income for that fiscal year; plus (2) an amount, which will not exceed the advisor asset management fee for that year, equal to any difference between the total amount of distributions to stockholders for that year and the 6% minimum annual return on the net investment of stockholders.  The Company neither paid nor accrued such fees because the Business Manager or Advisor agreed to forego such fees for the year ended December 31, 2004 and for the period from March 5, 2003 (inception) to December 31, 2003.

The property managers, entities owned principally by individuals who are affiliates of the Business Manager or Advisor, are entitled to receive property management fees totaling 4.5% of gross operating income, for management and leasing services.  The Company incurred property management fees of $5,381,721 and $16,627 for the year ended December 31, 2004 and the period from March 5, 2003 (inception) through December 31, 2003, respectively. None remained unpaid as of December 31, 2004 or December 31, 2003.

The Company established a discount stock purchase policy for affiliates of the Company and the Business Manager or Advisor that enables the affiliates to purchase shares of common stock at a discount at either $8.95 or $9.50 per share depending on when the shares are purchased. The Company sold 605,060 and 59,497 shares of common stock to affiliates and recognized an expense related to these discounts of $427,122 and $62,472 for the year ended December 31, 2004 and the period from March 5, 2003 (inception) to December 31, 2003, respectively.

As of December 31, 2004 and 2003, the Company was due funds from affiliates in the amount of $654,004 and $918,750, respectively which is comprised of $654,004 and $845,000, respectively, which is due from the sponsor for reimbursement of a portion of distributions paid.  The remaining $73,750 as of December 31, 2003 is due from an affiliate for costs paid on their behalf by the Company.  The sponsor has agreed to advance funds to the Company for a portion of distributions paid to the Company’s shareholders until funds available for distributions are sufficient to cover the distributions.  The sponsor forgave $2,369,139 of these amounts during the second quarter of 2004 and these funds are no longer due and are recorded as a contribution to capital in the accompanying Consolidated Financial Statements. As of December 31, 2004 and December 31, 2003, the Company owed funds to the sponsor in the amount of $3,522,670 and $1,202,519, respectively, for repayment of the funds advanced for payment of distributions.

As of December 31, 2003 the Company owed funds to an affiliate in the amount of $2,154,158 for the reimbursement of costs paid by the affiliate on behalf of the Company.  The amount due at December 31, 2003 was repaid during 2004.

56

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.
(A Maryland Corporation)

Notes to Consolidated Financial Statements
December 31, 2004 and 2003

(continued)

(4)  Stock Option Plan

The Company has adopted an Independent Director Stock Option Plan which, subject to certain conditions, provides for the grant to each independent director of an option to acquire 3,000 shares following their becoming a director and for the grant of additional options to acquire 500 shares on the date of each annual stockholders’ meeting. The options for the initial 3,000 shares are exercisable as follows: 1,000 shares on the date of grant and 1,000 shares on each of the first and second anniversaries of the date of grant. The subsequent options will be exercisable on the second anniversary of the date of grant. The initial options will be exercisable at $8.95 per share. The subsequent options will be exercisable at the fair market value of a share on the last business day preceding the annual meeting of stockholders. As of December 31, 2004 and 2003, we have issued 3,500 and 3,000 options, respectively, to acquire shares to each of our independent directors, for a total of 17,500 and 15,000 options, respectively, of which none have been exercised or expired.

The per share weighted average fair value of options granted was $0.60 on the date of the grant using the Black Scholes option-pricing model with the following assumptions: expected dividend yield of 8%, risk free interest rate of 2.0%, expected life of five years and expected volatility rate of 18.0%. The Company had recorded $3,000 as expense for the 5,000 options (1,000 options per director) vesting upon the date of grant as of December 31, 2003 and is recording the remaining $6,000 in expense related to 2003 grants ratably over the remaining two-year vesting period. During the year ended December 31, 2004, the Company issued an additional 2,500 options with a weighted average fair value at the date of grant of $1,500 and recorded $3,375 of expense related to stock options.

(5) Leases

Master Lease Agreements

In conjunction with certain acquisitions, the Company received payments under master lease agreements pertaining to certain non-revenue producing spaces at the time of purchase, for periods ranging from three months to three years after the date of purchase or until the spaces are leased.  As these payments are received, they are recorded as a reduction in the purchase price of the respective property rather than as rental income.  The cumulative amount of such payments was $3,024,547 as of December 31, 2004. No such payments were received in 2003.

Operating Leases

Minimum lease payments to be received under operating leases, excluding rental income under master lease agreements and assuming no expiring leases are renewed, are as follows:

	Minimum Lease Payments
2005	$	227,000,049
2006	221,072,711
2007	212,006,042
2008	201,306,939
2009	184,145,285
Thereafter	1,106,350,470
Total	$	2,151,881,496

The remaining lease terms range from one year to 55 years.  Pursuant to the lease agreements, tenants of the property are required to reimburse the Company for some or their entire pro rata share of the real estate taxes, operating expenses and management fees of the properties.  Such amounts are included in tenant recovery income.

57

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.

(A Maryland Corporation)

Notes to Consolidated Financial Statements

December 31, 2004 and 2003

 (continued)

Ground Leases

The Company leases land under noncancelable operating leases at certain of the properties expiring in various years from 2028 to 2096.  For the year ended December 31, 2004, ground lease rent was $2,187,286. No ground lease payments were made in 2003.  Minimum future rental payments to be paid under the ground leases are as follows:

	Minimum Lease Payments
2005	$	3,186,464
2006	3,187,605
2007	3,238,811
2008	3,240,086
209	3,402,159
Thereafter	342,280,751
Total	$	358,535,876

(6) Notes Receivable

The notes receivable balance of $31,771,731 as of December 31, 2004 consisted of two installment notes, one from Newman Development Group of Gilroy, LLC (Gilroy) and one from Newman Development Group of Richland, LLC (Richland) that mature on July 15, 2005 and August 15, 2005, respectively. These notes are secured by first mortgages on Pacheco Pass Shopping Center and Quakertown Shopping Center, respectively and are guaranteed personally by the owners of Gilroy and Richland.  Interest only is due in advance on the first of each month at a rate of 6.993% per annum for Gilroy and 7.5572% per annum for Richland.  Upon closing, an interest reserve escrow totaling three months of interest payments was established for both notes.

The notes receivable balance of $7,552,155 as of December 31 2003 consisted of an installment note from Fourth Quarter Properties XIV, LLC (Fourth) that matured on January 15, 2004.  This installment note was secured by a 49% interest in Fourth, which owned the remaining portion of the Newnan Crossing shopping center and was also guaranteed personally by the owner of Fourth.  Interest only at a rate of 7.6192% per annum was due on the note. The installment note was advanced to Fourth in contemplation of the Company purchasing the remaining portions of Newnan Crossing.  The Company did not call the note on January 15, 2004 and subsequently purchased the property on February 13, 2004 at which time the note was paid in full by Fourth as a credit to the purchase price of the property.

(7) Mortgages and Note Payable

Mortgage loans outstanding as of December 31, 2004 were $1,782,538,627 and had a weighted average interest rate of 4.58%.  Of this amount, $1,635,745,627 had fixed rates ranging from 3.96% to 8.02% and a weighted average fixed rate of 4.67% at December 31, 2004. The rate of 8.02% represented the interest rate on the mortgage for Cardiff Hall East (Cardiff), a joint venture entity which the Company consolidates. Excluding the Cardiff mortgage, the highest fixed rate on our mortgage debt was 6.34%.  The remaining $146,793,000 represented variable rate loans with a weighted average interest rate of 3.55% at December 31, 2004. Properties with a net carrying value of $2,906,338,366 at December 31, 2004 and related tenant leases are pledged as collateral. As of December 31, 2004, scheduled maturities for the Company’s outstanding mortgage indebtedness had various due dates through August 2023.

58

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.

(A Maryland Corporation)

Notes to Consolidated Financial Statements

December 31, 2004 and 2003

 (continued)

The following table shows the mortgage debt maturing during the next five years:

	2005	2006	2007	2008	2009	Thereafter
Maturing debt
Fixed rate debt	920,574	981,221	57,906,321	47,322,706	960,152,489	568,462,316
Variable rate debt	15,672,533	637,533	637,533	637,533	111,635,533	17,572,335

The debt is cross-collateralized among the properties in connection with the financing of Heritage Towne Crossing and Eckerd Drug Stores in Norman and Edmond, OK.

As part of the Plaza Santa Fe II loan assumption, a promissory note approximating $414,000 was executed between the Company and the seller for the total amount that the seller had paid into escrows under the loan agreement as of the acquisition date. The note bears interest at the rate of prime less 3.00%, payable to the seller upon maturity of the note in 2006. The seller also agreed to fund the Company’s monthly required payments into this escrow for a period of two years. Each monthly payment funded by the seller increases the principal balance of the note payable. The outstanding note payable balance at December 31, 2004 is approximately $575,000.

(8)  Line of Credit

On December 24, 2003, the Company entered into a $150,000,000 unsecured line of credit arrangement a bank for a period of one year.  The funds from this line of credit were used to provide liquidity from the time a property was purchased until permanent debt was placed on the property.  The Company was required to pay interest only on the outstanding balance from time to time under the line at the rate equal to LIBOR plus 175 basis points.  The Company was also required to pay, on a quarterly basis, an amount ranging from .15% to ..30%, per annum, on the average daily undrawn funds remaining under this line.  The line of credit required compliance with certain covenants, such as debt service ratios, minimum net worth requirements, distribution limitations and investment restrictions.  As of December 31, 2003, the Company was in compliance with such covenants.  In connection with obtaining this line of credit, the Company paid fees in an amount totaling approximately $1,044,000 (which included a .65% commitment fee).  The outstanding balance on the line of credit was $5,000,000 as of December 31, 2003 with an effective interest rate of 2.9375% per annum.

On December 16, 2004, the Company terminated the existing line of credit agreement and executed a new unsecured line of credit facility with a bank for up to $100,000,000 with an optional unsecured borrowing capacity of $150,000,000 for a total unsecured borrowing capacity of $250,000,000.  The facility has an initial term of one year with two one-year extension options, with an annual variable interest rate.  The funds from this line of credit may be used to provide liquidity from the time a property is purchased until permanent debt is placed on that property.  The line of credit requires interest only payments monthly at the rate equal to the London InterBank Offered Rate or LIBOR plus 175 basis points which ranged from 2.34% to 2.42% during the quarter ended December 31, 2004.  The Company is also required to pay, on a quarterly basis, an amount ranging from .15% to .25%, per annum, on the average daily undrawn funds under this line.  The line of credit requires compliance with certain covenants, such as debt service ratios, minimum net worth requirements, distribution limitations and investment restrictions. As of December 31, 2004, the Company was in compliance with such covenants. There was no outstanding balance on the line as of December 31, 2004.

(9)  Investments in Unconsolidated Joint Ventures

On August 11, 2004, CR Investors, LLC, an entity wholly owned by Reisterstown Plaza Holdings, LLC (a joint venture entity consolidated by the Company), invested $5,781,600 to purchase a 36.5% tenancy in common interest in an apartment complex known as Courthouse Square located in Towson, MD.

59

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.

(A Maryland Corporation)

Notes to Consolidated Financial Statements

December 31, 2004 and 2003

(continued)

On November 5, 2004, CRP Power Plant Investors, LLC, an entity wholly owned by Reisterstown Plaza Holdings, LLC (a joint venture entity consolidated by the Company), invested $15,000,000 to purchase a 37.5% interest in a retail/office complex known as The Power Plant located in Baltimore, MD. On the same day, CGW Power Plant Investors, LLC, an entity wholly owned by Gateway Village Holding, LLC (a joint venture entity consolidated by the Company), invested $5,000,000 to purchase a 12.5% interest in The Power Plant.

On November 5, 2004, CTC Pier IV Investors, LLC, an entity wholly owned by Towson Circle Holding, LLC (a joint venture entity consolidated by the Company), invested $5,000,000 to purchase a 16.67% interest in a retail/office complex known as Pier IV located in Baltimore, MD. On the same day, CTOLL Pier IV Investors, LLC, an entity wholly owned by Tollgate Marketplace Holding Company, LLC (a joint venture entity consolidated by the Company), invested $15,000,000 to purchase a 50.0% interest in Pier IV.

On December 23, 2004, NP Acquisitions, LLC, an entity wholly owned by CR Investors, LLC an entity wholly owned by Reisterstown Plaza Holdings, LLC (a joint venture entity consolidated by the Company), invested $2,250,000 to purchase a 25% tenancy in common interest in a retail complex known as North Plaza Shopping Center located in Parkville, MD.

On December 29, 2004, CGW Louisville Investors, LLC, an entity wholly owned by Gateway Village Holding, LLC (a joint venture entity consolidated by the Company), invested $1,900,000 to  purchase a 3.3% interest in a retail/office complex known as Louisville Galleria located in Louisville, KY. On the same day, CTOLL Louisville Investors, LLC, an entity wholly owned by Tollgate Marketplace Holding Company, LLC (a joint venture entity consolidated by the Company), invested $7,200,000 to purchase a 12.0% interest in Louisville Galleria. Also, on the same day, CCC Louisville Investors, LLC an entity wholly owned by Capital Centre Holdings, LLC (a joint venture entity consolidated by the Company), invested $19,100,000 to purchase a 31.8% member interest in Louisville Galleria.

These investments are accounted for utilizing the equity method of accounting.  Under the equity method of accounting, the net equity investment of the Company is reflected on the Consolidated Balance Sheets and the Consolidated Statements of Operations includes the Company’s share of net income or loss from the unconsolidated entity. For the year ended December 31, 2004, all equity in earnings of unconsolidated entities was allocated to the Company’s joint venture partners in accordance with the entities’ operating agreements.

(10)  Segment Reporting

The Company owns and seeks to acquire single-user net lease properties and multi-tenant shopping centers principally in the western United States. The Company’s shopping centers are typically anchored by discount retailers, home improvement retailers, grocery and drugstores complemented with additional stores providing a wide range of other goods and services to shoppers.

The Company assesses and measures operating results on an individual property basis for each of its properties based on net property operations.  Since all of the Company’s properties exhibit highly similar economic characteristics, cater to the day-to-day living needs of their respective surrounding communities, and offer similar degrees of risk and opportunities for growth, the properties have been aggregated and reported as one operating segment.

60

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.

(A Maryland Corporation)

Notes to Consolidated Financial Statements

December 31, 2004 and 2003

 (continued)

Net property operations are summarized in the following table for the year ended December 31, 2004 and for the period from March 5, 2003 through December 31, 2003, along with a reconciliation to net income.

	2004			2003
Property rental income and additional property income	$	130,404,581		$	744,633
Total property operating expenses	(32,521,195		)	(143,244		)
Interest expense	(33,174,623		)	(135,735		)
Net property operations	64,708,763			465,654
Other income	3,681,067			37,648
Less non-property expenses:
General and administrative expenses	(4,857,101		)	(459,476		)
Depreciation and amortization	(47,973,208		)	(217,105		)
Realized loss on sale of treasury contracts	(3,666,894		)	—
Minority interests	397,357			—
Equity in earnings (losses) of unconsolidated entities	(589,251		)	—
Net income (loss)	$	11,700,733		$	(173,279	)

The following table summarizes property asset information as of December 31, 2004 and December 31, 2003.

	December 31, 2004		December 31, 2003
Total assets:
Rental real estate	$	3,601,512,810	$	142,804,128
Non-segment assets	354,302,750		69,298,035
	$	3,955,815,560	$	212,102,163

The Company does not derive any of its consolidated revenue from foreign countries and does not have any major customers that individually account for 10% or more of the Company’s consolidated revenues.

(11)  Earnings (loss) per Share

Basic earnings (loss) per share (“EPS”) are computed by dividing income by the weighted average number of common shares outstanding for the period (the “common shares”).  Diluted EPS is computed by dividing net income (loss) by the common shares plus shares issuable upon exercising options or other contracts. As a result of the net loss incurred in 2003, diluted weighted average shares outstanding do not give effect to common stock equivalents as to do so would be anti-dilutive.  As of December 31, 2004, options to purchase 17,500 shares of common stock at an exercise price of $8.95 per share were outstanding.  These options were not included in the computation of basic or diluted EPS as the effect would be immaterial.

The basic and diluted weighted average number of common shares outstanding was 98,562,885 and 2,520,986 for the year ended December 31, 2004 and the period from March 5, 2003 (inception) to December 31, 2003, respectively.

61

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.

(A Maryland Corporation)

Notes to Consolidated Financial Statements

December 31, 2004 and 2003

(continued)

(12)  Commitments and Contingencies

The Company has closed on several properties which have earnout components, meaning the Company did not pay for portions of these properties that were not rent producing.  The Company is obligated, under certain agreements, to pay for those portions when the tenant moves into its space and begins to pay rent.  The earnout payments are based on a predetermined formula. Each earnout agreement has a time limit regarding the obligation to pay any additional monies.  If at the end of the time period allowed certain space has not been leased and occupied, the Company will own that space without any further obligation. Based on pro forma leasing rates, the Company may pay as much as $189,042,868 in the future, as retail space covered by earnout agreements is occupied and becomes rent producing.

During 2004, the Company entered into two installment note agreements in which the Company is obligated to fund up to a total of $33,398,314.  The notes maintain stated interest rates of 6.993% and 7.5572% per annum and mature in July 2005 and August 2005.  Each note requires monthly interest payments with the entire principal balance due at maturity.  The combined receivable balance at December 31, 2004 was $31,771,731.  Therefore, the Company may be required to fund up to an additional $1,626,583 on these notes.

The Company has obtained three irrevocable letters of credit related to loan fundings against earnout spaces at certain properties.  Once the Company purchases the remaining portion of these properties and meet certain occupancy requirements, the letters of credit will be released. The balance of outstanding letters of credit at December 31, 2004 is $11,573,100.

In connection with the purchase of one of our properties, the Company received a price adjustment in the amount of $763,072 related to spaces that were vacant at the time of closing. If at any time during the next two years the seller is able to lease that space under conditions satisfactory to the Company, the Company is obligated to pay the seller a pro-rata share of the purchase price reduction.

The Company has entered into interest rate lock agreements with various lenders to secure interest rates on mortgage debt on properties the Company currently owns or will purchase in the future. The Company has outstanding rate lock deposits in the amount of $2,826,055 as of December 31, 2004 which are applied as credits to the mortgage fundings as they occur.  These agreements lock interest rates from 4.45% to 5.12% for periods from 60 days to 90 days on approximately $240 million in principal.

The Company is currently considering acquiring nine properties for an estimated purchase price of $226 million. The Company’s decision to acquire each property will generally depend upon no material adverse change occurring relating to the property, the tenants or in the local economic conditions and the Company’s receipt of satisfactory due diligence information including appraisals, environmental reports and lease information prior to purchasing the property.

(13)  Subsequent Events

The Company issued 42,629,352 shares of common stock and repurchased 28,459 shares of common stock from January 1, 2005 through February 28, 2005 in connection with the initial public offering and second offering, resulting in gross proceeds of approximately $425 million.

The Company paid distributions of $11,377,712 and $12,232,404 to its stockholders in January and February 2005, respectively.

62

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.
(A Maryland Corporation)

Notes to Consolidated Financial Statements
December 31, 2004 and 2003

(continued)

The Company has acquired the following properties or joint venture interests in properties during the period January 1 to February 28, 2005.  The respective acquisitions are detailed in the table below.

Date Acquired	Property	Year Built	Approximate Purchase Price ($)	Gross Leasable Area (Sq. Ft.)	Major Tenants
01/05/05	Fairgrounds Plaza Middletown, NY	2002- 2004	21,994,125	59,970	Super Stop N’ Shop
01/06/05	Maytag Distribution Center Iowa City, IA	2004	23,159,499	750,000	Maytag
01/10/05	Midtown Center Milwaukee, WI	1986- 1987	53,000,000	319,108	Wal-Mart Pick ‘N Save
01/10/05	Hobby Lobby Concord, NC	2004	5,500,000	60,000	Hobby Lobby
01/19/05	Stanley Works/Mac Tools Westerville, OH	2004	10,000,000	72,500	Mac Tools
01/25/05	American Express Markham, Ontario, Canada	1983 & 1987	42,000,000	306,710	American Express
01/28/05	Academy Sports San Antonio, TX	2004	7,150,000	70,910	Academy Sports
02/01/05	Magnolia Square Houma, LA	2004	19,113,739	116,079	Ross Dress for Less PETsMART Circuit City
02/02/05	Cottage Plaza Pawtucket, RI	2004-2005	23,439,950	75,543	Stop ‘N Shop
02/09/05	The Village at Quail Springs Oklahoma City, OK	2003-2004	10,428,978	101,128	Gordmans Best Buy
02/11/05	Holliday Towne Center Duncansville, PA	2003	14,827,645	83,122	Martin’s
02/18/05	Trenton Crossing McAllen, TX	2003	29,212,209	221,019	Hobby Lobby Ross Dress for Less Marshalls Bealls

63

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.
(A Maryland Corporation)

Notes to Consolidated Financial Statements
December 31, 2004 and 2003

(continued)

The mortgage debt and financings obtained during the period January 1 to February 28, 2005, are detailed in the table below.

Date Funded	Mortgage Payable	Annual Interest Rate	Maturity Date	Principal Borrowed ($)
01/05/05	Fairgrounds Plaza Middletown, NY	5.690%	02/01/33	15,982,376
01/24/05	Hobby Lobby Concord, NC	5.115%	02/01/10	3,025,000
01/25/05	American Express Markham, Ontario, Canada	4.2975%	02/01/15	25,380,000
01/28/05	Coram Plaza Coram, NY	4.550%	02/01/10	20,755,300
01/31/05	Low Country Village II Bluffton, SC	5.130%	05/01/09	5,440,000
01/31/05	Irmo Station Irmo, SC	5.1236%	02/01/10	7,085,000
02/01/05	Evans Towne Centre Evans, GA	4.670%	02/01/10	5,005,000
02/03/05	Magnolia Square Houma, LA	5.115%	03/01/10	10,265,000
02/04/05	Green’s Corner Cumming, GA	4.500%	02/11/10	7,022,366
02/04/05	Newton Crossroads Covington, GA	4.500%	02/11/10	5,547,622
02/04/05	Stilesboro Oaks Acworth, GA	4.500%	02/11/10	6,951,971
02/09/05	Five Forks Simpsonville, NC	4.815%	02/11/10	4,482,500

64

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.
(A Maryland Corporation)

Notes to Consolidated Financial Statements
December 31, 2004 and 2003

(continued)

Date Funded	Mortgage Payable	Annual Interest Rate	Maturity Date	Principal Borrowed ($)
02/14/05	University Town Center Tuscaloosa, AL	4.430%	03/01/10	5,810,000
02/14/05	Edgemont Town Center Homewood, AL	4.430%	03/01/10	8,600,000
02/16/05	Southlake Town Square Southlake, TX	4.550%	03/11/10	70,570,880
02/16/05	Midtown Center Milwaukee, WI	4.460%	03/11/10	28,227,617
02/17/05	McAllen Shopping Center McAllen, TX	5.060%	03/01/10	2,455,000
02/18/05	Southlake Town Square II Southlake, TX	4.550%	03/11/10	10,429,120
02/18/05	Mesa Fiesta Mesa, AZ	5.300%	02/01/10	23,500,000
02/24/05	Academy Sports San Antonio, TX	5.060%	03/01/10	3,933,000
02/25/05	The Village at Quail Springs Oklahoma City, OK	5.060%	03/01/10	5,740,000

The Company is obligated under earnout agreements to pay for certain tenant space in our existing properties after the tenant moves into its space and begins paying rent.  During the period from January 1 to February 28, 2005, the Company funded earnouts totaling $20,552,372 at 7 of its existing properties.

During the period from January 1, 2005 to February 28, 2005, the Company entered into rate lock agreements which lock interest rates from 4.47% to 4.69% for periods from 30 days to 90 days on approximately $300 million in principal.

65

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.
(A Maryland Corporation)

Notes to Consolidated Financial Statements
December 31, 2004 and 2003

(continued)

(14) Supplemental Financial Information (unaudited)

The following represents the results of operations, for the each quarterly period, during 2004 and 2003.

	2004
	Dec. 31		Sept. 30	June 30	March 31
Total income	$	62,433,343	42,199,376	19,935,978	9,516,950
Net income (loss)	7,286,936		2,266,656	2,111,373	35,768
Net income (loss), per common share, basic and diluted:	.04		.02	.04	—
Weighted average number of common shares outstanding, basic and diluted	182,739,194		112,887,491	59,688,094	32,314,792

	2003
	Dec. 31			Sept. 30		June 30		March 31
Total income	$	782,281		—		—		—
Net income (loss)	(132,535		)	(32,794	)	(450	)	(7,500	)
Net income (loss), per common share, basic and diluted:	(.02		)	(1.64	)	(.02	)	(.38	)
Weighted average number of common shares outstanding, basic and diluted	8,319,975			20,000		20,000		20,000

66

Inland Western Retail Real Estate Trust, Inc.
(A Maryland Corporation)

Schedule III

Real Estate and Accumulated Depreciation

December 31, 2004

		Initial Cost (A)				Gross amount carried at end of period
Multi-Tenant	Encumbrances	Land	Buildings and Improvements	Adjustments to Basis (C)		Land	Buildings and Improvements	Total (B) (D)	Accumulated Depreciation (E)	Date Constructed	Date Acquired
23rd Street Plaza Panama City, FL	—	1,300,000	5,318,806			1,300,000	5,318,806	6,618,806	—	2003	12/04
Alison’s Corner San Antonio, TX.	3,850,000	1,045,000	5,700,345			1,045,000	5,700,345	6,745,345	139,668	2003	04/04
Arvada Connection and Arvada Marketplace Arvada, CO	28,510,000	8,125,000	39,383,116	17,682		8,125,000	39,400,798	47,525,798	974,072	1987-1990	04/04
Azalea Square Summerville, SC	16,535,000	6,375,000	21,303,772	(14,793	)	6,375,000	21,288,979	27,663,979	130,069	2004	10/04
Bed, Bath & Beyond Plaza Miami, FL	11,192,500	—	18,367,361			—	18,367,361	18,367,361	168,316	2004	10/04
Best on the Boulevard Las Vegas, NV	19,525,000	7,460,000	25,583,195	(84,486	)	7,460,000	25,498,709	32,958,709	702,197	1996-1999	04/04
Bluebonnet Parc Baton Rouge, LA	12,100,000	4,450,000	16,407,032	(101,955	)	4,450,000	16,305,078	20,755,078	419,934	2002	04/04
Boulevard at the Capital Centre Largo, MD	71,500,000	—	114,702,961	(418,558	)	—	114,284,403	114,284,403	1,383,741	2004	09/04
The Columns Jackson, TN	14,865,400	5,830,000	19,438,839	(22,200	)	5,830,000	19,416,639	25,246,639	224,291	2004	8/04 & 10/04
Coram Plaza Coram, NY	20,760,000	10,200,000	26,177,515			10,200,000	26,177,515	36,377,515	—	2004	12/04
CorWest Plaza New Britain, CT	18,150,000	6,900,000	23,850,938	(13,950	)	6,900,000	23,836,988	30,736,988	875,539	1999 - 2003	01/04
Cranberry Square Cranberry Township, PA	10,900,000	3,000,000	18,736,381			3,000,000	18,736,381	21,736,381	343,369	1996-1997	07/04
Darien Towne Center Darien, IL	16,500,000	7,000,000	22,468,408	213,305		7,000,000	22,681,714	29,681,714	847,581	1994	12/03
Davis Towne Crossing North Richland Hills, TX.	5,365,200	1,850,000	5,681,061			1,850,000	5,681,061	7,531,061	103,773	2003-2004	06/04
Denton Crossing Denton, TX	35,200,000	6,000,000	43,433,763			6,000,000	43,433,763	49,433,763	258,849	2003-2004	10/04
Dorman Center - Phase 1 & II Spartanburg, SC	27,610,000	17,025,000	29,478,484	(103,087	)	17,025,000	29,375,397	46,400,397	909,740	2003-2004	3/04 & 7/04
Eastwood Towne Center Lansing, MI	46,750,000	12,000,000	65,066,567			12,000,000	65,066,567	77,066,567	1,590,128	2002	05/04
Edgemont Town Center Homewood, AL	—	3,500,000	10,956,495			3,500,000	10,956,495	14,456,495	33,474	2003	11/04
Evans Towne Centre Evans, GA	—	1,700,000	6,424,805			1,700,000	6,424,805	8,124,805	—	1995	12/04

67

		Initial Cost (A)				Gross amount carried at end of period
Multi-Tenant	Encumbrances	Land	Buildings and Improvements	Adjustments to Basis (C)		Land	Buildings and Improvements	Total (B) (D)	Accumulated Depreciation (E)	Date Constructed	Date Acquired
Five Forks Simpsonville, SC	—	2,100,000	5,374,421			2,100,000	5,374,421	7,474,421	16,400	1999	12/04
Forks Town Center Easton, PA	10,395,000	2,430,000	14,835,863			2,430,000	14,835,863	17,265,863	226,641	2002	07/04
Fox Creek Village Longmont, CO	11,485,000	3,755,000	15,563,434	(33,181	)	3,755,000	15,530,253	19,285,253	47,426	2003-2004	11/04
Fullerton Metrocenter Fullerton, CA	28,050,000	—	47,403,451	(199,396	)	—	47,204,055	47,204,055	864,861	1998	06/04
Gateway Pavilions Avondale, AZ	35,842,000	9,880,000	55,194,702			9,880,000	55,194,702	65,074,702	168,492	2003-2004	12/04
Gateway Plaza Southlake, TX	18,163,000	—	26,370,511			—	26,370,511	26,370,511	403,357	2000	07/04
Gateway Station College Station, TX	—	1,050,000	3,910,500			1,050,000	3,910,500	4,960,500	11,932	2003-2004	12/04
Gateway Village Annapolis, MD	31,458,000	8,550,000	39,298,239			8,550,000	39,298,239	47,848,239	597,527	1996	07/04
Governor’s Marketplace Tallahassee, FL	20,625,000	—	30,377,452	(56,281	)	—	30,321,171	30,321,171	370,888	2001	08/04
Green’s Corner Cumming, GA	—	3,200,000	8,663,397			3,200,000	8,663,397	11,863,397	—	1997	12/04
Gurnee Town Center Gurnee, IL	24,360,000	7,000,000	35,146,950	(22,965	)	7,000,000	35,123,985	42,123,985	214,573	2000	10/04
Harvest Towne Center Knoxville, TN	5,005,000	3,155,000	5,085,037			3,155,000	5,085,037	8,240,037	62,188	1996-1999	09/04
Henry Town Center McDonough, GA	35,814,616	10,650,000	46,813,649			10,650,000	46,813,649	57,463,649	—	2002	12/04
Heritage Towne Crossing Euless, TX	8,950,000	3,065,000	10,729,077			3,065,000	10,729,077	13,794,077	327,196	2002	03/04
Hickory Ridge Hickory, NC	23,650,000	6,860,000	30,517,166			6,860,000	30,517,166	37,377,166	1,088,098	1999	01/04
Huebner Oaks Center San Antonio, TX	48,000,000	14,080,000	59,825,626	88,560		14,080,000	59,914,186	73,994,186	1,283,898	1997-1998	06/04
Irmo Station Irmo, SC	—	2,600,000	9,247,308			2,600,000	9,247,308	11,847,308	—	1980 &1985	12/04
John’s Creek Village Duluth, GA	23,300,000	5,750,000	21,269,874			5,750,000	21,269,874	27,019,874	392,876	2003-2004	06/04
La Plaza Del Norte San Antonio, TX	32,528,000	16,005,000	37,744,002	(288,670	)	16,005,000	37,455,332	53,460,332	1,276,221	1996/1999	01/04
Lake Mary Pointe Orlando, FL	3,657,500	2,075,000	4,009,147			2,075,000	4,009,147	6,084,147	24,484	1999	10/04
Lakewood Towne Center Lakewood, WA	51,260,000	11,200,000	70,796,423	(360,223	)	11,200,000	70,436,200	81,636,200	1,294,701	1988/2002-2003	06/04
Larkspur Landing Larkspur, CA	33,630,000	20,800,000	32,820,864	480,656		20,800,000	33,301,520	54,101,520	1,211,593	1978/2001	01/04
Lincoln Park Dallas, TX	26,153,000	9,360,000	34,717,980			9,360,000	34,717,980	44,077,980	424,282	1998	09/04
Low Country Village Bluffton, SC	5,370,000	1,550,000	8,778,906	(4,871	)	1,550,000	8,774,035	10,324,035	160,970	2004	06/04

68

		Initial Cost (A)				Gross amount carried at end of period
Multi-Tenant	Encumbrances	Land	Buildings and Improvements	Adjustments to Basis (C)		Land	Buildings and Improvements	Total (B) (D)	Accumulated Depreciation (E)	Date Constructed	Date Acquired
MacArthur Crossing Los Colinas, TX	12,700,000	4,710,000	16,264,562			4,710,000	16,264,562	20,974,562	546,335	1995-1996	02/04
Manchester Meadows Town and Country, MO	31,064,550	14,700,000	39,737,846	(84,875	)	14,700,000	39,652,971	54,352,971	608,067	1994-1995	08/04
Mansfield Towne Crossing Mansfield, TX	10,982,300	3,300,000	12,194,571			3,300,000	12,194,571	15,494,571	74,502	2003-2004	11/04
McAllen Shopping Center McAllen, TX	—	850,000	2,958,498			850,000	2,958,498	3,808,498	—	2004	12/04
Mesa Fiesta Mesa, AZ	—	7,372,000	26,730,387			7,372,000	26,730,387	34,102,387	—	2004	12/04
Mitchell Ranch Plaza New Port Richey, FL	18,700,000	5,550,000	26,212,826	(65,767	)	5,550,000	26,147,060	31,697,060	319,699	2003	08/04
Newnan Crossing I Newnan, GA	21,543,091	4,542,244	12,188,579	(832,534	)	4,542,244	11,356,045	15,898,289	414,663	1999	12/03
Newnan Crossing II Newnan, GA	2,223,100	10,557,591	21,798,114			10,557,591	21,798,114	32,355,705	449,285	2004	02/04
Newton Crossroads Covington, GA	—	3,350,000	6,926,760			3,350,000	6,926,760	10,276,760	—	1997	12/04
North Ranch Pavilions Thousand Oaks, CA	10,157,400	9,705,000	8,295,988	43,735		9,705,000	8,339,723	18,044,723	306,554	1992	01/04
North Rivers Town Center Charleston, SC	11,050,000	3,350,000	15,720,415			3,350,000	15,720,415	19,070,415	384,070	2003-2004	04/04
Northgate North Seattle, WA	26,650,000	7,540,000	49,077,929			7,540,000	49,077,929	56,617,929	899,882	1999-2003	06/04
Northpointe Plaza Spokane, WA	30,850,000	13,800,000	37,706,966	(48,029	)	13,800,000	37,658,937	51,458,937	807,530	1991-1993	05/04
Northwoods Center Wesley Chapel, FL	11,192,500	3,415,000	9,474,629			3,415,000	9,474,629	12,889,629	28,945	2002-2004	12/04
Oswego Commons Oswego, IL	19,262,100	6,250,000	26,629,204			6,250,000	26,629,204	32,879,204	81,370	2002-2004	11/04
Paradise Valley Marketplace Phoenix, AZ	15,680,500	6,590,000	20,425,319	(147,469	)	6,590,000	20,277,850	26,867,850	521,508	2002	04/04
Pavilion at King’s Grant Concord, NC	5,342,000	4,300,000	2,741,212	15,748		4,300,000	2,756,960	7,056,960	107,010	2002-2003	12/03
Peoria Crossings Peoria, AZ	20,497,400	6,240,000	29,190,441	(68,395	)	6,240,000	29,122,046	35,362,046	964,437	2002-2003	03/04
Phenix Crossing Phenix City, AL	—	2,600,000	6,776,273			2,600,000	6,776,273	9,376,273	—	2004	12/04
Pine Ridge Plaza Lawrence, KS	14,700,000	5,000,000	19,802,170			5,000,000	19,802,170	24,802,170	421,316	1998-2004	06/04
Placentia Town Center Placentia, CA	13,695,000	11,200,000	11,750,963			11,200,000	11,750,963	22,950,963	35,898	1973/2000	12/04
Plaza at Marysville Marysville, WA	11,800,000	6,600,000	13,727,658			6,600,000	13,727,658	20,327,658	207,702	1995	07/04
Plaza at Riverlakes Bakersfield, CA	—	5,100,000	10,824,341			5,100,000	10,824,341	15,924,341	66,115	2001	10/04

69

		Initial Cost (A)				Gross amount carried at end of period
Multi-Tenant	Encumbrances	Land	Buildings and Improvements	Adjustments to Basis (C)		Land	Buildings and Improvements	Total (B) (D)	Accumulated Depreciation (E)	Date Constructed	Date Acquired
Plaza Santa Fe II Santa Fe, NM	17,393,732	—	28,587,813	(59,393	)	—	28,528,421	28,528,421	610,545	2000-2002	06/04
Pleasant Run Towne Center Cedar Hill, TX	22,800,000	4,200,000	29,084,836			4,200,000	29,084,836	33,284,836	—	2004	12/04
Promenade at Red Cliff St. George, UT	10,590,000	5,340,000	12,664,907			5,340,000	12,664,907	18,004,907	425,495	1997	02/04
Reisterstown Road Plaza Baltimore, MD	49,650,000	15,800,000	70,371,762	(260,184	)	15,800,000	70,111,578	85,911,578	1,034,081	1986/2004	08/04
Saucon Valley Square Bethlehem, PA	8,850,900	3,200,000	12,641,881			3,200,000	12,641,881	15,841,881	154,414	1999	09/04
Shoppes at Lake Andrew Viera, FL	15,656,511	4,000,000	22,996,002			4,000,000	22,996,002	26,996,002	—	2003	12/04
The Shoppes at Park West (Publix Center) Mt. Pleasant, SC	6,655,000	2,240,000	9,356,781	210		2,240,000	9,356,991	11,596,991	57,018	2004	11/04
Shoppes at Quarterfield(Metro Square Center) Severn, MD	6,067,183	2,190,000	8,839,520			2,190,000	8,839,520	11,029,520	296,973	1999	01/04
Shoppes of Dallas Dallas, GA	7,178,700	1,350,000	11,045,345	84,202		1,350,000	11,129,547	12,479,547	204,210	2004	07/04
Shoppes of Prominence Point Canton, GA	9,954,300	2,850,000	11,148,965	(7,331	)	2,850,000	11,141,635	13,991,635	204,307	2004	06/04
The Shops at Boardwalk Kansas City, MO	20,150,000	5,000,000	30,540,431	(203,838	)	5,000,000	30,336,593	35,336,593	558,200	2003-2004	07/04
Shops at Forest Commons Round Rock, TX	5,229,789	1,050,000	6,132,547			1,050,000	6,132,547	7,182,547	18,664	2002	12/04
Shops at Park Place Plano, TX	13,127,000	9,096,000	13,174,867	256,937		9,096,000	13,431,805	22,527,805	593,842	2001	10/03
Southlake Town Square Southlake, TX	—	16,350,000	110,778,125			16,350,000	110,778,125	127,128,125	—	1998-2004	12/04
Stilesboro Oaks Acworth, GA	—	2,200,000	9,426,287			2,200,000	9,426,287	11,626,287	—	1997	12/04
Stony Creek Marketplace Noblesville, IN	14,162,000	6,735,000	17,564,434	20,945		6,735,000	17,585,379	24,320,379	733,916	2003	12/03
Tollgate Marketplace Bel Air, MD	39,765,000	8,700,000	61,247,363			8,700,000	61,247,363	69,947,363	932,050	1979/1994	07/04
Towson Circle Towson, MD	19,197,500	9,050,000	17,840,034	(36,654	)	9,050,000	17,803,379	26,853,379	272,109	1998	07/04
University Town Center Tuscaloosa, AL	—	—	9,556,971			—	9,556,971	9,556,971	29,195	2002	11/04
Village Shoppes at Simonton Lawrenceville, GA	7,561,700	2,200,000	10,873,898	(86,687	)	2,200,000	10,787,211	12,987,211	165,348	2004	08/04
Watauga Pavilion Watauga, TX	17,100,000	5,185,000	27,503,862			5,185,000	27,503,862	32,688,862	588,588	2003-2004	05/04
Winchester Commons Memphis, TN	7,235,000	4,400,000	7,471,467	(2,918	)	4,400,000	7,468,549	11,868,549	45,641	1999	11/04
Subtotal Multi-Tenant	1,423,423,471	506,632,835	2,138,977,574	(2,406,708	)	506,632,835	2,136,570,866	2,643,203,701	33,742,830

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		Initial Cost (A)				Gross amount carried at end of period
Single-User	Encumbrances	Land	Buildings and Improvements	Adjustments to Basis (C)		Land	Buildings and Improvements	Total (B) (D)	Accumulated Depreciation (E)	Date Constructed	Date Acquired
Academy Sports Houma, LA	2,920,000	1,230,000	3,751,721			1,230,000	3,751,721	4,981,721	57,225	2004	07/04
Academy Sports Midland, TX	2,337,500	1,340,000	2,942,634			1,340,000	2,942,634	4,282,634	17,969	2004	10/04
Academy Sports Port Arthur, TX	2,775,000	1,050,000	3,954,157			1,050,000	3,954,157	5,004,157	24,164	2004	10/04
American Express De Pere, WI	11,623,000	1,400,000	15,370,089			1,400,000	15,370,089	16,770,089	—	2000	12/04
American Express Fort Lauderdale, FL	37,170,000	2,900,000	55,966,421			2,900,000	55,966,421	58,866,421	—	1975	12/04
American Express Greensboro, NC	33,040,000	2,800,000	49,470,089			2,800,000	49,470,089	52,270,089	—	1986	12/04
American Express Minneapolis, MN	56,050,000	14,200,000	74,607,812			14,200,000	74,607,812	88,807,812	—	1989	12/04
American Express - 19th Ave. Phoenix, AZ	8,260,000	2,900,000	10,170,089			2,900,000	10,170,089	13,070,089	—	1983	12/04
American Express - 31st Ave. Phoenix, AZ	31,860,000	5,100,000	45,270,089			5,100,000	45,270,089	50,370,089	—	1985	12/04
CVS Pharmacy (Eckerd Drug Store) Edmund, OK	1,850,000	975,000	2,400,249	1,336		975,000	2,401,585	3,376,585	89,028	2003	12/03
CVS Pharmacy (Eckerd Drug Store) Norman, OK	2,900,000	932,000	4,369,730			932,000	4,369,730	5,301,730	163,287	2003	12/03
CVS Pharmacy Sylacauga, AL	1,685,000	600,000	2,469,216			600,000	2,469,216	3,069,216	15,090	2004	10/04
Eckerd Drug Store Columbia, SC	1,750,000	900,000	2,376,504			900,000	2,376,504	3,276,504	52,171	2003-2004	06/04
Eckerd Drug Store Crossville, TN	1,425,000	600,000	2,033,000			600,000	2,033,000	2,633,000	43,468	2003-2004	06/04
Eckerd Drug Store Greer, SC	1,650,000	1,050,000	2,047,200			1,050,000	2,047,200	3,097,200	43,688	2003-2004	06/04
Eckerd Drug Store Kill Devil Hills, NC	1,975,000	700,000	2,960,139			700,000	2,960,139	3,660,139	63,299	2003-2004	06/04
GMAC Winston-Salem, NC	33,000,000	8,250,000	50,287,192			8,250,000	50,287,192	58,537,192	460,933	1980/1990	09/04
Harris Teeter Wilmington, NC	3,960,000	1,810,000	5,152,401			1,810,000	5,152,401	6,962,401	62,960	1977/1995	09/04
Kohl’s/Wilshire Plaza III Kansas City, MO	5,417,500	2,600,000	6,848,649			2,600,000	6,848,649	9,448,649	20,926	2004	07/04
Shaw’s Supermarket New Britain, CT	6,450,000	2,700,000	11,532,191	(139,774	)	2,700,000	11,392,417	14,092,417	431,997	1995	12/03
Wal-Mart Supercenter Blytheville, AR	7,100,000	1,756,000	10,913,942			1,756,000	10,913,942	12,669,942	166,680	1999	07/04
Wal-Mart Supercenter Jonesboro, AR	6,088,500	2,397,000	8,089,320			2,397,000	8,089,320	10,486,320	123,525	1997	08/04
Wrangler El Paso, TX	11,300,000	1,218,669	16,249,921			1,218,669	16,249,921	17,468,590	248,226	1993	07/04

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		Initial Cost (A)				Gross amount carried at end of period
Single-User	Encumbrances	Land	Buildings and Improvements	Adjustments to Basis (C)		Land	Buildings and Improvements	Total (B) (D)	Accumulated Depreciation (E)	Date Constructed	Date Acquired
Zurich Towers Schaumburg, IL	81,420,000	7,900,000	121,312,096			7,900,000	121,312,096	129,212,096	369,841	1988-1990	11/04
Subtotal Single-User	354,006,500	67,308,669	510,544,848	(138,437	)	67,308,669	510,406,411	577,715,080	2,454,475
Consolidated Joint Ventures
Cardiff Hall East Towson, MD	5,108,656	1,090,000	7,607,874	—		1,090,000	7,607,874	8,697,873	92,725	1990	10/04
Total Investment Properties	1,782,538,627	575,031,504	2,657,130,296	(2,545,145	)	575,031,504	2,654,585,151	3,229,616,655	36,290,031

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INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.
(A Maryland Corporation)

Schedule III (continued)
Real Estate and Accumulated Depreciation

December 31, 2004 and 2003

Notes:

(A)The initial cost to the Company represents the original purchase price of the property, including amounts incurred subsequent to acquisition which were contemplated at the time the property was acquired.

(B)The aggregate cost of real estate owned at December 31, 2004 for Federal income tax purposes was approximately $3,029,000,000 (unaudited).

(C)Reconciliation of real estate owned:

	2004			2003
Balance at beginning of period	$	122,719,914		—
Purchases of property	3,308,730,780			127,195,469
Payments received under master leases and principal escrow	(3,024,547		)	—
Acquired in-place lease intangibles and customer relationship value	(241,285,534		)	(8,805,681	)
Acquired above market lease intangibles	(42,302,599		)	(1,595,673	)
Acquired below market lease intangibles	84,778,641			5,925,799
Balance at end of period	$	3,229,616,655		122,719,914

(D)Reconciliation of accumulated depreciation:

Balance at beginning of period	$		140,497	—
Depreciation expense	36,149,534			140,497
Balance at end of period	$	36,290,031		140,497

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Item 9.  Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

There were no disagreements on accounting or financial disclosure during 2004.

Item 9(a)  Controls and Procedures

Evaluation of Disclosure Controls and Procedures

We have established disclosure controls and procedures to ensure that material information relating us, including our consolidated subsidiaries, is made known to the officers who certify our financial reports and to the members of senior management and the Board of Directors.

Based on management’s evaluation as of December 31, 2004, our chief executive officer, principal financial officer and principal accounting officer have concluded that our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934) are effective to ensure that the information required to be disclosed by us in our reports that we file or submit under the Securities Exchange Act of 1934 is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission’s rules and forms.

Management’s Report on Internal Control Over Financial Reporting

Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Exchange Act Rules 13a-15(f). Under the supervision and with the participation of our management, including our chief executive officer, principal financial officer and principal accounting officer, we conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework in Internal Control – Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on our evaluation under the framework in Internal Control – Integrated Framework, our management concluded that our internal control over financial reporting was effective as of December 31, 2004. Management’s assessment of the effectiveness of our internal control over financial reporting as of December 31, 2004 has been audited by KPMG LLP, an independent registered public accounting firm, as stated in their report which is included herein.

Changes in Internal Controls

There were no changes to our internal controls over financial reporting during the fourth quarter ended December 31, 2004 that has materially affected, or is reasonably likely to materially affect, our internal controls over financial reporting.

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PART III

Item 10.  Directors and Executive Officers of the Registrant

Our Directors and Executive Officers

The following table sets forth information with respect to our directors and executive officers:

Name	Age	Position and office with us
Robert D. Parks	61	Chairman, chief executive officer and affiliated director
Roberta S. Matlin	60	Vice president - administration
Scott W. Wilton	44	Secretary
Steven P. Grimes	38	Principal financial officer
Lori J. Foust	40	Principal accounting officer
Brenda G. Gujral	62	Affiliated director
Frank A. Catalano, Jr.	43	Independent director
Kenneth H. Beard	65	Independent director
Paul R. Gauvreau	65	Independent director
Gerald M. Gorski	62	Independent director
Barbara A. Murphy	67	Independent director

*As of January 1, 2005

The Inland Group, Inc. or Inland, together with its subsidiaries and its and their affiliates (collectively, the “Inland Affiliated Companies” or the “Inland Organization”), is a fully integrated real estate company providing property management, leasing, marketing, acquisition, disposition, development, redevelopment, syndication, renovation, construction, finance and other related services. Inland Real Estate Investment Corporation or IREIC, a subsidiary of Inland, and one of the Inland Affiliated Companies, is the sponsor and organizer of the Company. Inland Western Retail Real Estate Advisory Services, Inc., or the Advisor, is a wholly owned subsidiary of IREIC. Inland Securities Corporation or ISC, another of the Inland Affiliated Companies, is the Dealer Manager of our offerings. ISC was formed in 1984 and is qualified to do business as a securities broker-dealer throughout the United States. Since its formation, ISC has provided the marketing function for distribution of the investment products sponsored by IREIC. ISC does not render such services to anyone other than the Inland Affiliated Companies.  Our senior management includes executives of the Inland Affiliated Companies named above.

Robert D. Parks is a Director of The Inland Group, Inc. and one of its four original principals; Chairman of Inland Real Estate Investment Corporation, Director of Inland Securities Corporation, and a Director of Inland Investment Advisors, Inc.  Mr. Parks is Chairman, Chief Executive Officer, and Affiliated Director of Inland American Real Estate Trust, Inc. and President, Chief Executive Officer and a Director of Inland Real Estate Corporation.  He is Chairman, Chief Executive Officer and Affiliated Director of Inland Retail Real Estate Trust, Inc., and Mr. Parks is Chairman, Chief Executive Officer, and Affiliated Director of Inland Western Retail Real Estate Trust, Inc. and Affiliated Director of Inland Real Estate Exchange Corporation.

Mr. Parks is responsible for the ongoing administration of existing investment programs, corporate budgeting and administration for Inland Real Estate Investment Corporation. He oversees and coordinates the marketing of all investments and investor relations.

Prior to joining Inland, Mr. Parks taught in Chicago’s public schools. He received his B.A. Degree from Northeastern Illinois University and his M.A. Degree from the University of Chicago.  He is a registered Direct Participation Program Limited Principal with the National Association of Securities Dealers.  He is a member of the Real Estate Investment Association, the Financial Planning Association, the Foundation for Financial Planning as well as a member of the National Association of Real Estate Investment Trusts (NAREIT).

Roberta S. Matlin joined Inland Real Estate Investment Corporation (IREIC) in 1984 as Director of Investor Administration and currently serves as Senior Vice President of IREIC, directing the day-to-day internal operations.  Ms. Matlin is a Director of IREIC and president of Inland Investment Advisors, Inc., and Intervest Southern Real Estate

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Corporation, and a director and vice president of Inland Securities Corporation. She is the president of Inland American Advisory Services, Inc. Since 2003, she has been Vice President of Administration of Inland Western Retail Real Estate Trust, Inc., and since 2004, vice president of administration of Inland American Real Estate Trust, Inc.  She was Vice President of Administration of Inland Real Corporation from 1995 until 2000 and of Inland Retail Real Estate Trust, Inc from 1998 until 2004. From June 2001 until April 2004, she was a trustee and executive vice president of Inland Mutual Fund Trust. Prior to joining Inland, she worked for the Chicago Region of the Social Security Administration of the Untied States Department of Health and Human Services.  Ms. Matlin is a graduate of the University of Illinois. She holds Series 7, 22, 24, 39, 63 and 65 licenses from the National Association of Securities Dealers.

Scott W. Wilton has been our secretary since our formation.  Mr. Wilton joined The Inland Group in January 1995.  He is assistant vice president of The Inland Real Estate Group, Inc. and assistant counsel with The Inland Real Estate Group law department. From 1998 through 2004, Mr. Wilton was secretary of Inland Retail Real Estate Trust, Inc. and Inland Retail Real Estate Advisory Services, Inc.  In 2001, he became the Secretary of Inland Real Estate Exchange Corporation. In 2003, he became secretary of Inland Western Retail Real Estate Trust, Inc. Mr. Wilton is involved in all aspects of The Inland Group’s business, including real estate acquisitions and financing, securities law and corporate governance matters, leasing and tenant matters, and litigation management.  He received B.S. degrees in economics and history from the University of Illinois at Champaign 1982 and his law degree from Loyola University of Chicago, Illinois 1985.  Prior to joining The Inland Group, Mr. Wilton worked for the Chicago law firm of Williams, Rutstein, Goldfarb, Sibrava and Midura, Ltd., specializing in real estate and corporate transactions and litigation.

Steven P. Grimes joined our advisor as its Chief Financial Officer and became our treasurer and principal financial officer in 2004.  He is responsible for our finances and borrowings. Prior to joining our advisor, Mr. Grimes was a director with Cohen Financial and was a senior manager with Deloitte and Touche. Mr. Grimes received his B.S. Degree in Accounting from Indiana University and is a Certified Public Accountant. Mr. Grimes is a member of the AICPA and the Illinois CPA Society.

Lori J. Foust joined the Inland organization as Vice President of Inland Western Retail Real Estate Advisory Services, Inc. in 2003. Ms. Foust is also our principal accounting officer.  She is responsible for our financial and SEC reporting.  Prior to joining the Inland organization, Ms. Foust worked in the field of public accounting and was a senior manager in the real estate division for Ernst and Young, LLP. She received her B.S. Degree in Accounting and her M.B.A. Degree from the University of Central Florida.  Ms. Foust is a certified public accountant and a member of the American Institute of Certified Public Accountants.

Brenda G. Gujral is President, Chief Operating Officer and a director of Inland Real Estate Investment Corporation (IREIC) and President, Chief Operating Officer and a director of Inland Securities Corporation (ISC) - a member firm of the National Association of Securities Dealers (NASD). Mrs. Gujral is also an affiliated director of Inland Western Retail Real Estate Trust, Inc.; a director of Inland Investment Advisors, Inc.; Chairman of the Board of Inland Real Estate Exchange Corporation; and Affiliated Director of Inland American Real Estate Trust, Inc.

Mrs. Gujral has overall responsibility for the operations of IREIC, including the distribution of checks to over 50,000 investors, review of periodic communications to those investors, the filing of quarterly and annual reports for Inland’s publicly registered investment programs with the Securities and Exchange Commission, compliance with other SEC and NASD securities regulations both for IREIC and ISC, review of asset management activities, and marketing and communications with the independent broker/dealer firms selling Inland’s current and prior programs.  Mrs. Gujral works with internal and outside legal counsel in structuring IREIC’s investment programs and in connection with the preparation of its offering documents and registering the related securities with the Securities and Exchange Commission and state securities commissions.

Mrs. Gujral has been with the Inland organization for 22 years, becoming an officer in 1982.  Prior to joining Inland, she worked for the Land Use Planning Commission establishing an office in Portland, Oregon, to implement land use legislation for that state.

She is a graduate of California State University.  She holds Series 7, 22, 39 and 63 licenses from the NASD.  Mrs. Gujral is a member of the National Association of Real Estate Investment Trusts (NAREIT), the Financial Planning Association (FPA), the Foundation for Financial Planning (FFP) and the National Association for Female Executives.

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Frank A. Catalano, Jr. has served as president of Catalano & Associates since 1999.  Catalano & Associates is a real estate company that includes brokerage, property management and rehabilitation and leasing of office buildings.  Mr. Catalano’s experience also includes mortgage banking.  Since 2002, he has been a vice president of First Home Mortgage Company.  Prior to that, Mr. Catalano was a regional manager at Flagstar Bank.  He also was president and chief executive officer of CCS Mortgage, Inc. from 1995 through 2000, when Flagstar Bank acquired it.

Mr. Catalano is a member of the Elmhurst, IL Chamber of Commerce and as past chairman of the board, he is also a member of the Elmhurst Jaycees, Elmhurst Hospital Board of Governors, Elmhurst Kiwanis and is currently the President of Elmhurst Historical Museum Commission.  Mr. Catalano holds a mortgage broker’s license.

Kenneth H. Beard is president and chief executive officer of Midwest Mechanical Group, a mechanical construction and service company.   From 1999-2002 he was president and chief executive officer of Exelon Services, a subsidiary of Exelon Corporation, where he had responsibility for financial performance including being accountable for creating business strategy, growing the business through acquisition, integrating acquired companies and developing infrastructure for the combined acquired businesses.  Prior to that position, from 1974 to 1999, Mr. Beard was the founder, president and chief executive officer of Midwest Mechanical, Inc., a heating, ventilation and air conditioning company providing innovative and cost effective construction services and solutions for commercial, industrial, and institutional facilities.  From 1964 to 1974, Mr. Beard was employed by The Trane Company, a manufacturer of heating, ventilating and air conditioning equipment having positions in sales, sales management and general management.

Mr. Beard holds a MBA and BSCE from the University of Kentucky and is a licensed mechanical engineer.  He is on the board of directors of the Wellness House in Hinsdale, Illinois, a cancer support organization and serves on the Dean’s Advisory Council of the University of Kentucky, School of Engineering.  Mr. Beard is a past member of the Oak Brook, Illinois Plan Commission (1981-1991) and a past board member of Harris Bank, Hinsdale (1985-2004).

Paul R. Gauvreau is the retired chief financial officer, financial vice president and treasurer of Pittway Corporation, New York Stock exchange listed manufacturer and distributor of professional burglar and fire alarm systems and equipment from 1966 until its sale to Honeywell, Inc. in 2001.  He was president of Pittway’s non-operating real estate and leasing subsidiaries through 2001.  He was a financial consultant to Honeywell, Inc.; Genesis Cable, L.L.C.; ADUSA, Inc.  He was a director and audit committee member of Cylink Corporation, a NASDAQ Stock Market listed manufacturer of voice and data security products from 1998 until its merger with Safenet, Inc. in February 2003.

Mr. Gauvreau holds a MBA from the University of Chicago and a BSC from Loyola University of Chicago.  He is on the Board of Trustees, Chairman of the Advancement Committee, and Vice Chairman of the Finance Committee of Benedictine University, Lisle, Illinois; a member of the Board of Trustees of the Chaddick Institute of DePaul University, Chicago, Illinois; and a member of the board of directors and vice president of the Children’s Brittle Bone Foundation, Pleasant Prairie, Wisconsin.

Gerald M. Gorski is a partner in the law firm of Gorski and Good, Wheaton Illinois.  Mr. Gorski’s practice is limited to governmental law.  His firm represents numerous units of local government in Illinois and Mr. Gorski has served as a Special Assistant State’s Attorney and Special Assistant Attorney General in Illinois.  He received a Bachelor of Arts degree from North Central College with majors in Political Science and Economics and a Juris Doctor degree from DePaul University Law School where he was placed on the Deans Honor List.  Mr. Gorski serves as the Vice-Chairman of the Board of Commissioners for the DuPage Airport Authority.  He has written numerous articles on various legal issues facing Illinois municipalities; has been a speaker at a number of municipal law conferences and is a member of the Illinois Bar Association, the Institute for Local Government Law and the International Municipal Lawyers Association.

Barbara A. Murphy is the Chairwoman of the DuPage Republican Party.  Ms. Murphy is also a member of Illinois Motor Vehicle Review Board and a member of Matrimonial Fee Arbitration Board. Ms. Murphy is a Milton Township Trustee and a committeeman for Milton Township Republican Central Committee.  Ms. Murphy previously served as State Central Committeewoman for the Sixth Congressional District and has also served on the DuPage Civic Center Authority Board, the DuPage County Domestic Violence Task Force, and the Illinois Toll Highway Advisory Committee.  Ms. Murphy is a founding member of the Family Shelter Service Board.  As an active volunteer for Central DuPage Hospital, she acted as the “surgery hostess” (cared for families while a family member was undergoing surgery).  Ms. Murphy was a department manager and buyer for J.W. Robinson’s and Bloomingdale’s and the co-owner of Daffy Down Dilly Gift Shop.

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The information which appears under the captions “Proposal No. 1 - Election of Directors and Executive Officers” in the Company’s definitive proxy statement for its 2004 Annual Meeting of Stockholders is incorporated by reference into this Item 10.

Item 11.  Executive Compensation

The information which appears under the caption “Executive Compensation” in the Company’s definitive proxy statement for its 2004 Annual Meeting of Stockholders is incorporated by reference into this Item 11, provided, however, that the Report of the Compensation Committee of the board of directors on Executive Compensation set forth there in shall not be incorporated by reference herein, in any of the Company’s previous filings under the Securities Action of 1933, as amended, or the Securities Exchange Act of 1934, as amended, or in any of the Company’s future filings.

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Item 12.  Security Ownership of Certain Beneficial Owners and Management and Related Statements

The information which appears under the captions “Certain Relationships and Related Transactions” and “Common Stock Ownership of Management” in the Company’s definitive proxy statement for its 2004 Annual Meeting of Stockholders is incorporated by reference into this Item 12.

Item 13   Certain Relationships and Related Transactions

The information which appears under the caption “Certain Relationships and Related Transactions” in the Company’s definitive proxy statement for its 2004 Annual Meeting of Stockholders is incorporated by reference into this Item 13.

Item 14   Principal Accountant Fees and Services

The information which appears under the caption “Principal Accounting Fees and Services” in the Company’s definitive Proxy Statement for its 2004 Annual Meeting of Shareholders is incorporated by reference into this Item 14.

PART IV

Item 15.  Exhibits, Financial Statement Schedules, and Reports on Form 8-K

(a)  List of documents filed:

(1)  Reports of Independent Registered Public Accounting Firm

(2) The consolidated financial statements of the Company are set forth in the report in Item 8.

(3) Financial Statement Schedules:

Financial statement schedule for the year ended December 31, 2004 is submitted herewith.

Real Estate and Accumulated Depreciation (Schedule III) 67

Schedules not filed:

All schedules other than those indicated in the index have been omitted as the required information is inapplicable or the information is presented in the consolidated financial statements or related notes.

(4) Exhibits:  See Item (c) below

(b)  Reports on Form 8-K

The following reports on Form 8-K were filed during the quarter of the period covered by this report.

Report on Form 8-K dated September 29, 2004

Item 2.01 - Completion of Acquisition or Disposition of Assets

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

Report on Form 8-K dated October 5, 2004

Item 2.01 - Completion of Acquisition or Disposition of Assets

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

Report on Form 8-K dated October 18, 2004

Item 2.01 - Completion of Acquisition or Disposition of Assets

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

Report on Form 8-K dated October 25, 2004

Item 2.01 - Completion of Acquisition or Disposition of Assets

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

Report on Form 8-K dated October 29, 2004

Item 2.01 - Completion of Acquisition or Disposition of Assets

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

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Report on Form 8-K dated November 3, 2004

Item 2.01 - Completion of Acquisition or Disposition of Assets

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

Report on Form 8-K dated November 9, 2004

Item 2.01 - Completion of Acquisition or Disposition of Assets

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

Report on Form 8-K dated November 17, 2004

Item 2.01 - Completion of Acquisition or Disposition of Assets

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

Report on Form 8-K dated November 23, 2004

Item 2.01 - Completion of Acquisition or Disposition of Assets

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

Report on Form 8-K dated November 23, 2004

Item 2.01 - Completion of Acquisition or Disposition of Assets

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

Report on Form 8-K dated December 3, 2004

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

Report on Form 8-K dated December 7, 2004

Item 2.01 - Completion of Acquisition or Disposition of Assets

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

Report on Form 8-K dated December 16, 2004

Item 2.01 - Completion of Acquisition or Disposition of Assets

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

Report on Form 8-K dated December 17, 2004

Item 7.01 - Regulation FD Disclosure

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

Report on Form 8-K dated December 22, 2004

Item 2.01 - Completion of Acquisition or Disposition of Assets

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

Report on Form 8-K dated December 28, 2004

Item 1.01 - Entry into a Material Definitive Agreement

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

Report on Form 8-K dated December 30, 2004

Item 7.01 - Regulation FD Disclosure

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

Report on Form 8-K/A dated October 18, 2004

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

Report on Form 8-K/A dated October 25, 2004

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

Report on Form 8-K/A dated November 3, 2004

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

Report on Form 8-K/A dated November 17, 2004

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

Report on Form 8-K/A dated November 23, 2004

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

80

Report on Form 8-K/A dated December 7, 2004

Item 9.01 - Financial Statements, Pro Forma Financial Information and Exhibits

(c)  Exhibits:

EXHIBIT NO.	DESCRIPTION
1.1*	Form of Dealer Manager Agreement by and between Inland Western Retail Real Estate Trust, Inc. and Inland Securities Corporation.
1.2*	Form of Soliciting Dealers Agreement by and between Inland Securities Corporation and the Soliciting Dealers.
3.1*	First Amended and Restated Articles of Incorporation of Inland Western Retail Real Estate Trust, Inc.
3.2*	Bylaws of Inland Western Retail Real Estate Trust, Inc.
3.2.1	Second Amended and Restated Bylaws of Inland Western Retail Real Estate Trust, Inc. as of February 11, 2005
4.1*	Specimen Certificate for the Shares.
5*	Opinion of Duane Morris LLP as to the legality of the Shares being registered.
8*	Opinion of Duane Morris LLP as to tax matters.
10.1*	Form of Escrow Agreement by and among Inland Western Retail Real Estate Trust, Inc., Inland Securities Corporation and LaSalle Bank National Association.
10.2*	Form of Advisory Agreement by and between Inland Western Retail Real Estate Trust, Inc. and Inland Western Retail Real Estate Advisory Services, Inc.
10.2.1	Amended and Restated Advisory Agreement dated December 28, 2004
10.2.2	Second Amended and Restated Advisory Agreement dated December 28, 2004
10.3*	Form of Master Management Agreement, including the form of Management Agreement for each Property by and between Inland Western Retail Real Estate Trust, Inc. and Inland Western Property Management Corp.
10.4*	Property Acquisition Service Agreement by and among Inland Western Retail Real Estate Trust, Inc., Inland Western Retail Real Estate Advisory Services, Inc., Inland Real Estate Corporation, Inland Real Estate Advisory Services, Inc., and Inland Real Estate Acquisitions, Inc.
10.4.1	Property Acquisition Agreement dated February 10, 2005 by and between Inland Real Estate Acquisitions, Inc, Inland Western Retail Real Estate Trust, Inc., and Inland Western Retail Real Estate Advisory Services, Inc.
10.5*	Independent Director Stock Option Plan.
10.6*	Indemnification Agreement by and between Inland Western Retail Real Estate Trust, Inc. and its directors and executive officers.

81

EXHIBIT NO.	DESCRIPTION
10.7*	Purchase and Sale Agreement (Re: Peoria Station) dated January 31, 2003.
10.8*	Assignment of Purchase and Sale Agreement (Re: Peoria Station) dated June 3, 2003.
10.9*	Share Repurchase Plan.
10.10*	Agreement for Purchase and Sale (Re: Stony Creek) dated November 11, 2003.
10.11*	Real Property Purchase Agreement (Re: Plaza 205 and Mall 205) dated December 3, 2003.
10.12*	Amended Real Estate Purchase Contract (Re: Edmond Oklahoma Eckerd Drug Store) dated November 11, 2003.
10.13*	Amended Real Estate Purchase Contract (Re: Norman Oklahoma Eckerd Drug Store) dated November 11, 2003.
10.14*	Sale-Purchase Agreement Contract (Re: Shops at Park Place) dated September 5, 2003.
10.15*	Assignment of Contract (Re: Shops at Park Place) dated September 23, 2003.
10.16*	Assignment of Membership Interests (Re: Shops at Park Place) dated October 31, 2003.
10.17*	Promissory Note (Re: Shops at Park Place) dated October 31, 2003.
10.18*	Loan Agreement (Re: Shops at Park Place) dated October 31, 2003.
10.19*	Post Closing Agreement (Re: Shops at Park Place) dated October 31, 2003.
10.20*	Purchase and Sale Agreement (Re: Darien Towne Center) dated November 12, 2003.
10.21*	Purchase and Sale Agreement (Re: Shaws Supermarkets – New Britain) dated November 20, 2003.
10.22*	Agreement Relating to PetsMart Claims (Re: Darien Towne Center) dated December 18, 2003.
10.23*	Agreement Relating to Irv’s Lease (Re: Darien Towne Center) dated December 18, 2003.
10.24*	Amended Purchase Agreement (Re: Newnan Crossing) dated December 18, 2003.
10.25*	Mortgage Note $10M (Re: Darien Towne Center) dated December 19, 2003.
10.26*	Mortgage Note $6.5M (Re: Darien Towne Center) dated December 19, 2003.
10.27*	Mortgage, Assignment of Leases, Rents and Contracts, Security Agreement and Fixture Filing (Re: Darien Towne Center) dated December 19, 2003.
10.28*	Related Agreement (Re: Darien Towne Center) dated December 19, 2003.
10.29*	Assignment (Re: Darien Towne Center) dated December 19, 2003.
10.30*	Partial Assignment and Assumption of Purchase and Sale Agreement (Re: Shaws Supermarket – New Britain) dated December 30, 2003.
10.31*	Amended Purchase Agreement (Re: Pavilion at Kings Grant) dated December 31, 2003.

82

EXHIBIT NO.	DESCRIPTION
10.32*	Post Closing and Indemnity Agreement (Re: Pavilion at Kings Grant) dated December 31, 2003.
10.33*	Mortgage Note (Re: CorWest Plaza) dated January 1, 2004.
10.34*	Mortgage, Assignment of Leases and Rents and Security Agreement (Re: CorWest Plaza) dated January 1, 2004.
10.35*	Guaranty Agreement (Re: CorWest Plaza) dated January 1, 2004.
10.36*	Letter Agreement (Re: Stoney Creek Marketplace) dated January 5, 2004.
10.37*	Mortgage Note (Re: Stoney Creek Marketplace) dated January 5, 2004.
10.38*	Mortgage, Assignment of Leases and Rents and Security Agreement (Re: Stoney Creek Marketplace) dated January 5, 2004.
10.39*	Amended Contract of Sale (Re: La Plaza Del Norte) dated January 16, 2004.
10.40*	Promissory Note (Re: Hickory Ridge) dated January 23, 2004.
10.41*	Post Closing Agreement (Re: Hickory Ridge) dated January 2004.
10.42*	Loan Agreement (Re: Hickory Ridge) dated January 23, 2004.
10.43*	Amended and Restated Promissory Noted (Re: Shops at Park Place and Shaws Supermarket – New Britain) dated January 2004.
10.44*	Promissory Note (Re: Shops at Park Place and Shaws Supermarket – New Britain) dated January 2004.
10.45*	Open-End Mortgage and Security Agreement (Re: Shops at Park Place and Shaws Supermarket – New Britain) dated January 2004.
10.46*	Loan Agreement (Re: Shops at Park Place and Shaws Supermarket – New Britain) dated January 2004.
10.47*	Guaranty Agreement Regarding Cross-Collateralization (Re: Shops at Park Place) dated January 2004.
10.48*	Guaranty Agreement Regarding Cross-Collateralization (Re: Shaws Supermarket – New Britain) dated January 2004.
10.49*	Notice of Final Agreement (Re: La Plaza Del Norte) dated February 2004.
10.50*	Secured Promissory Note Loan No. 753821 (Re: La Plaza Del Norte) dated February 2004.
10.51*	Deed of Trust, Security Agreement and Assignment of Rents Loan No. 753821 (Re: La Plaza Del Norte) dated February 2004.
10.52*	Guaranty Loan No, 753821 (Re: La Plaza Del Norte) dated February 2004.
10.53*	Amended Purchase and Sale Agreement (Re: CorWest Plaza) dated October 8, 2003.

83

EXHIBIT NO.	DESCRIPTION
10.54*	Assignment and Assumption of Purchase and Sale Agreement (Re: CorWest Plaza) dated January 5, 2004.
10.55*	Amended Purchase and Sale Agreement (Re: Metro Square Center) dated January 16, 2004.
10.56*	Assignment and Assumption of Letter Agreement (Re: Metro Square Center) dated January 20, 2004.
10.57*	Reinstatement of and Amendment to Purchase and Sale Agreement (Re: North Ranch Pavilions) dated January 14, 2004.
10.58*	Assignment and Assumption of Purchase and Sale Agreement (Re: North Ranch Pavilions) dated January 15, 2004.
10.59*	Letter Agreement (Re: MacArthur Crossing) dated November 20, 2003.
10.60*	Assignment of Contract (Re: MacArthur Crossing) dated February 2004.
10.61*	Secured Promissory Note Loan No. 753820 (Re: Larkspur Landing) dated January 30, 2004.
10.62*	Deed of Trust, Security Agreement and Assignment of Rents (Re: Larkspur Landing) dated January 30, 2004.
10.63*	Guaranty Loan No. 753820 (Re: Larkspur Landing) dated January 30, 2004.
10.64*	Amended Option to Purchase Partnership Interests (Re: Hickory Ridge) dated December 23, 2003.
10.65*	Assignment (Re: La Plaza Del Norte) dated January 21, 2004.
10.66*	Purchase and Sale Agreement (Re: Larkspur Landing) dated December 12, 2003.
10.67*	Assignment (Re: Larkspur Landing) dated January 14, 2004.
10.68*	Amended Letter Agreement Offer to Purchase (Re: The Promenade at Red Cliff) dated February 13, 2004.
10.69	Agreement of Sale (Re: Peoria Crossng) dated January, 2004
10.70	Letter Agreement to Purchase (Re: Heritage Towne Crossing) dated January 8, 2004.
10.71*	Secured Promissory Note Loan No. 753865 (Re: Pavilion at King’s Grant) dated April 6, 2004.
10.72*	Deed of Trust, Security Agreement and Assignment of Rents Loan No. 753865 (Re: Pavilion at King’s Grant) dated April 6, 2004.
10.73*	Guaranty Loan No. 753865 (Re: Pavilion at King’s Grant) dated April 6, 2004.
10.74*	Guaranty - II Loan No. 753865 (Re: Pavilion at King’s Grant) dated April 6, 2004.
10.75*	Assignment of Contract (Re: Hickory Ridge) dated January 9, 2004.
10.76*	Promissory Note Loan No. 6518303 (Re: Metro Square Center) dated March 26, 2004.

84

EXHIBIT NO.	DESCRIPTION
10.77*	Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing Loan No. 6518303 (Re: Metro Square Center) dated March 26, 2004.
10.78*	Non-Recourse Guaranty Agreement Loan No. 6518303 (Re: Metro Square Center) dated March 26, 2004.
10.79*	Payment Guaranty Agreement Loan No. 6518303 (Re: Metro Square Center) dated March 26, 2004.
10.80*	Secured Promissory Note Loan No. 753864 (Re: MacArthur Crossing) dated March 26, 2004.
10.81*	Deed of Trust, Security Agreement and Assignment of Rents Loan No. 753864 (Re: MacArthur Crossing) dated March 26, 2004.
10.82*	Guaranty Loan No. 753864 (Re: MacArthur Crossing) dated March 26, 2004.
10.83*	Promissory Note Loan No. 57968 (Re: Promenade at Red Cliff) dated April 8, 2004.
10.84*	Exceptions to Non-Recourse Guaranty Agreement Loan No. 57968 (Re: Promenade at Red Cliff) dated April 8, 2004.
10.85*	Loan Agreement No. 57968 (Re: Promenade at Red Cliff) dated April 8, 2004.
10.86*	Post Closing and Indemnity Agreement (Re: Heritage Towne Crossing) dated March 5, 2004.
10.87*	Vacancy Escrow Agreement (Re: Heritage Towne Crossing) dated March 5, 2004.
10.88*	General Assignment (Re: Heritage Towne Crossing) dated March 5, 2004.
10.89*	Assignment of Contract (Re: Heritage Towne Crossing) dated March 5, 2004.
10.90*	Assignment of Contract (Re: Dorman Center) dated December 29, 2003.
10.91*	Amended Purchase Agreement (Re: Dorman Center) dated December 10, 2003.
10.92*	Dorman Center Pier 1 Escrow (Re: Dorman Center) dated March 4, 2004.
10.93*	Dorman Center Escrow (Re: Dorman Center) dated March 4, 2004.
10.94*	Mortgage Note Loan No. 6518291 (Re: Dorman Center) dated April 9, 2004.
10.95*	Mortgage, Assignment of Leases and Rents and Security Agreement (Re: Dorman Center) dated April 9, 2004.
10.96*	Transitional Security (Phase II) Reserve Agreement (Re: Dorman Center) dated April 9, 2004,
10.97*	Guaranty Agreement Loan No. 6518291 (Re: Dorman Center) dated April 9, 2004.
10.98*	Promissory Note: (Re: Heritage Towne Crossing) dated April 26, 2004.
10.99*	Promissory Note: (Re: Eckerds - Edmond, OK.) dated April 26, 2004.
10.100*	Promissory Note: (Re: Eckerds - Norman, OK.) dated April 26, 2004.

85

EXHIBIT NO.	DESCRIPTION
10.101*	Loan Agreement (Re: Heritage Towne Crossing, Eckerds - Edmond, OK. And Eckerds - Norman, OK.) dated April 26, 2004.
10.102*	Post-Closing Agreement (Re: Heritage Towne Crossing, Eckerds - Edmond, OK. And Eckerds - Norman, OK.) dated April 26, 2004.
10.103*	Guaranty Agreement Regarding Cross-Collateralization (Re: Heritage Towne Crossing) dated April 26, 2004.
10.104*	Guaranty Agreement Regarding Cross-Collateralization (Re: Eckerds - Edmond, OK.) dated April 26, 2004.
10.105*	Guaranty Agreement Regarding Cross-Collateralization (Re: Eckerds - Norman, OK.) dated April 26, 2004.
10.106*	Assignment of Contract (Re: Promenade at Red Cliff) dated February 13, 2004.
10.107*	Assignment of Contract (Re: Peoria Crossings) dated March 3, 2004.
10.108*	Post Closing Agreement (Re: Peoria Crossings) dated March 3, 2004.
10.109*	Master Lease Escrow Agreement (Re: Peoria Crossings) dated February 4, 2004.
10.110*	Tax Proration Agreement (Re: Peoria Crossings) dated March 3, 2004.
10.111*	Promissory Note Loan No. 10023006 (Re: Peoria Crossings) dated March 5, 2004.
10.112*	Loan Agreement -Loan No. 10023006 (Re: Peoria Crossings) dated March 5, 2004.
10.113*	Assignment of Contract (Re: Paradise Valley Marketplace) dated April 8, 2004.
10.114*	Revised Letter Agreement to Purchase (Re: Paradise Valley Marketplace) dated January 21, 2004.
10.115*	Escrow Agreement (Re: Paradise Valley Marketplace) dated April 8, 2004.
10.116*	Assignment and Assumption of Purchase and Sale Agreement (Re: Best on the Boulevard) dated April 4, 2004.
10.117*	Post-Closing Agreement (Re: Best on the Boulevard) dated April 14, 2004.
10.118*	Amended Purchase and Sale Agreement (Re: Best on the Boulevard) dated March 29, 2004.
10.119*	Assignment and Assumption of Purchase and Sales Agreement (Re: Bluebonnet Parc) dated April 21, 2004.
10.120*	Escrow Agreement (Re: Bluebonnet Parc) dated April 22, 2004.
10.121*	Letter Agreement to Purchase (Re: Bluebonnet Parc) dated February 4, 2004.
10.122*	Loan Agreement (Re: Bluebonnet Parc) dated May 7, 2004.
10.123*	Assignment and Assumption of Agreement for Purchase and Sale (Re: Alison’s Corner) dated April 20, 2004.

86

EXHIBIT NO.	DESCRIPTION
10.124*	Post Closing Agreement (Re: Alison’s Corner) dated April 28, 2004.
10.125*	Amended Purchase and Sale Agreement (Re: Alison’s Corner) dated April 23, 2004.
10.126*	Promissory Note (Re: Alison’s Corner) dated May 10, 2004.
10.127*	Loan Agreement (Re: Alison’s Corner) dated May 10, 2004.
10.128*	Letter Agreement Regarding Escrow (Re: Alison’s Corner) dated May 10, 2004.
10.129*	Post-Closing Agreement (Re: Alison’s Corner) dated May 10, 2004.
10.130*	Assignment and Assumption of Purchase and Sales Agreement (Re: North Rivers Town Center) dated April 27, 2004.
10.131*	Post-Closing Agreement (Re: North Rivers Town Center) dated April 2004.
10.132*	Amended Agreement for Purchase and Sale (Re: North Rivers Town Center) dated April 26, 2004.
10.133*	Assignment and Assumption of Purchase and Sales Agreement (Re: Eastwood Towne Center) dated May 12, 2004.
10.134*	Revised Letter Agreement (Re: Eastwood Towne Center) dated March 29, 2004.
10.135*	Master Fund Escrow Agreement (Eastwood Towne Center) dated May 13, 2004.
10.136*	Holdback Agreement (Re: Eastwood Towne Center) dated May 13, 2004.
10.137*	Bill of Sale, Assignment and Assumption of Contracts (Re: Eastwood Towne Center) dated May 13, 2004.
10.138*	Assignment and Assumption of Purchase and Sales Agreement (Re: Arvada Connection and Arvada Marketplace) dated April 28, 2004.
10.139*	Bill of Sale, Assignment and Assumption of Contracts (Re: Arvada Connection and Arvada Marketplace) dated April 29, 2004.
10.140*	Purchase and Sale Agreement (Re: Arvada Connection and Arvada Marketplace) dated March 31, 2004.
10.141*	Escrow Agreement (Re: Arvada Connection and Arvada Marketplace) dated April 29, 2004.
10.142*	Redevelopment Agreement (Re: Arvada Connection and Arvada Marketplace) dated April 28, 2004.
10.143*	Easements With Covenants and Restrictions Affecting Land (Re: Arvada Marketplace) dated April 29, 2004.
10.144*	Assignment of Contract (Re: Watauga Pavilion) dated May 20, 2004.
10.145*	Amended Purchase and Sale Agreement (Re: Watauga Pavilion) dated May 11, 2004.
10.146*	Post-Closing Escrow and Master Lease Agreement (Re: Watauga Pavilion) dated May 21, 2004.

87

EXHIBIT NO.	DESCRIPTION
10.147*	CAM Reconciliation Escrow Agreement (Re: Northpointe Plaza) dated May 2004.
10.148*	Reinstatement of and First Amendment to Agreement of Purchase and Sale (Re: Northpointe Plaza) dated April 2004.
10.149*	Vacancy Escrow Agreement (Re: Northpointe Plaza) dated May 2004.
10.150*	Promissory Note - Loan No. 58108 (Re: Paradise Valley Marketplace) dated June 3, 2004.
10.151*	Loan Agreement - Loan No. 58108 (Re: Paradise Valley Marketplace) dated June 3, 2004.
10.152*	Promissory Note (Re: North Rivers Town Center) dated June 3, 2004.
10.153*	Mortgage and Security Agreement (Re: North Rivers Town Center) dated June 3, 2004.
10.154*	Post-Closing Agreement (Re: North Rivers Town Center) dated June 3, 2004.
10.155*	Real Estate Purchase and Leaseback Agreement (Re: Eckerds - Kill Devil Hills, NC) dated March 18, 2004.
10.156*	Real Estate Purchase and Leaseback Agreement (Re: Eckerds - Greer, SC) dated April 1, 2004.
10.157*	Real Estate Purchase and Leaseback Agreement (Re: Eckerds - Columbia, SC) dated March 18, 2004.
10.158*	Real Estate Purchase and Leaseback Agreement (Re: Eckerds - Crossville, TN) dated March 18, 2004.
10.159*	Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing Loan No. 58108 (Re: Peoria Crossing) dated June 3, 2004.
10.160*	Loan Agreement (Re: North Rivers Town) dated June 3, 2004.
10.161*	Secured Promissory Note Loan No. 753946 (Re: Arvada Marketplace) dated June 17, 2004.
10.162*	Deed of Trust, Security Agreement and Assignment of Rents Loan No. 753946 (Re: Arvada Marketplace) dated June 17, 2004.
10.163*	Guaranty Loan No. 753946 (Re: Arvada Marketplace) dated June 17, 2004.
10.164*	Mortgage Note Loan No. 6518370 (Re: Eastwood Town Center) dated June 15, 2004.
10.165*	Mortgage - Loan No. 6518370 (Re: Eastwood Town Center) dated June 15, 2004.
10.166*	Guaranty Agreement Loan No. 6518370 (Re: Eastwood Town Center) dated June 15, 2004.
10.167*	Secured Promissory Note Loan No. 753943 (Re: Watauga Pavilion) dated June 7, 2004.
10.168*	Deed of Trust, Security Agreement and Assignment of Rents Loan No. 753943 (Re: Watauga Pavilion) dated June 7, 2004.
10.169*	Notice of Final Agreement Loan No. 753943 (Re: Watauga Pavilion) dated June 7, 2004.
10.170*	Guaranty Loan No. 753943 (Re: Watauga Pavilion) dated June 7, 2004.

88

EXHIBIT NO.	DESCRIPTION
10.171*	General Assignment (Re: Northpointe Plaza) dated May 25, 2004.
10.172*	Post Closing and Indemnity Agreement (Re: Northpointe Plaza) dated May, 2004.
10.173*	Promissory Note (Re: Northpointe Plaza) dated June 4, 2004.
10.174*	Loan Agreement (Re: Northpointe Plaza) dated June 4, 2004.
10.175*	Deed of Trust, Security Agreement and Fixture Filing (Re: Northpointe Plaza) dated June 4, 2004.
10.176*	Revised Letter Agreement to Purchase (Re: Plaza Santa Fe) dated December 4, 2004.
10.177*	Promissory Note Secured By Leasehold Deed of Trust (Re: Plaza Santa Fe) dated November 22, 2002.
10.178*	Leasehold Deed of Trust and Absolute Assignment of Rents and Leases and Security Agreement and Fixture Filing Loan No. 31-0900141A (Re: Plaza Santa Fe) dated November, 2002.
10.179*	Assignment of Purchase and Sale Agreement (Re: Pine Ridge Plaza) dated June 4, 2004.
10.180*	Assignment and Assumption Agreement Purchase and Sale Agreement (Re: Pine Ridge Plaza) dated May 26, 2004.
10.181*	Amended Purchase and Sale Agreement (Re: Pine Ridge Plaza) dated March 30, 2004.
10.182*	Assignment of Contract (Re: Huebner Oaks Center) dated June 8, 2004.
10.183*	Agreement of Purchase and Sale (Re: Huebner Oaks Center).
10.184*	Secured Promissory Note 1 Loan No. 753971 (Re: Huebner Oaks Center) dated June 22, 2004.
10.185*	Secured Promissory Note 2 Loan No. 753972 (Re: Huebner Oaks Center) dated June 22, 2004.
10.186*	Deed of Trust, Security Agreement and Assignment of Rents Loan Nos. 753971 and 753972 (Re: Huebner Oaks Center) dated June 22, 2004.
10.187*	Guaranty Loan Nos. 753971 and 753972 (Re: Huebner Oaks Center) dated June 22, 2004.
10.188*	Notice of Final Agreement Loan Nos. 753971 and 753972 (Huebner Oaks Center) dated June 22, 2004.
10.189*	Amended Letter Purchase Agreement (Re: John’s Creek Village) dated June 18, 2004.
10.190*	Earn-out Agreement (Re: John’s Creek Village) dated June 23, 2004.
10.191*	Assignment of Contract (Re: Lakewood Towne Center) dated June, 2004.
10.192*	Agreement for Purchase and Sale of Real Property and Escrow Instructions (Re: Lakewood Towne Center) dated May 6, 2004.
10.193*	Escrow and Leasing Agreement (Re: Lakewood Towne Center) dated June, 2004.
10.194*	Commitment Letter Loan Nos. 122498 and 122499 (Re: Lakewood Towne Center) dated June 28, 2004.

89

EXHIBIT NO.	DESCRIPTION
10.195*	Deed of Trust Note A Loan No. 122498 (Re: Lakewood Towne Center) dated June 28, 2004.
10.196*	Deed of Trust Note B Loan No. 122499 (Re: Lakewood Towne Center) dated June 28, 2004.
10.197*	Deed of Trust, Assignment of Leases, Rents and Contracts, Security Agreement and Fixture Filing (Re: Lakewood Towne Center) dated June 28, 2004.
10.198*	First Amendment to Escrow and Leasing Agreement Loan Nos. 122498 and 122499 (Re: Lakewood Towne Center) dated June 28, 2004.
10.199*	Master Lease Escrow Agreement (Re: Paradise Shoppes at Prominence Point) dated June 30, 2004.
10.200*	Assignment of Purchase and Sale Agreement (Re: Northgate North) dated June 24, 2004.
10.201*	Amended Agreement to Purchase and Sale Agreement (Re: Northgate North) dated June 23, 2004.
10.202*	Escrow Agreement Regarding July Rents (Re: Northgate North) dated June 30, 2004.
10.203*	Escrow Agreement Regarding Bassett TI Work/Leasing Commission (Re: Northgate North) dated June, 2004.
10.204*	Access Agreement (Re: Northgate North) dated June 30, 2004.
10.205*	Post Closing and Indemnity Agreement (Re: Davis Towne Crossing) dated June 30, 2004.
10.206*	Letter Agreement to Purchase (Re: Davis Towne Crossing) dated April 21, 2004.
10.207*	** NOT USED
10.208*	Assignment of Purchase and Sale Agreement (Re: Fullerton Metrocenter) dated June 24, 2004.
10.209*	Post Closing and Indemnity Agreement (Re: Fullerton Metrocenter) dated June, 2004.
10.210*	Amended Purchase and Sale Agreement and Joint Escrow Instructions (Re: Fullerton Metrocenter) dated June 30, 2004.
10.211*	Assignment and Assumption of Agreement for Purchase and Sale (Re: Low Country Village) datd June 30, 2004.
10.212*	Post Closing Agreement (Re: Low Country Village) dated June 30, 2004.
10.213*	Agreement of Purchase and Sale (Re: Low Country Village) dated May 20, 2004.
10.214*	Installment Note (Re: Pacheco Pass) dated June 30, 2004.
10.215*	Loan Proceeds Holdback Agreement (Re: Pacheco Pass) dated June 30, 2004.
10.216*	Interest Reserve Holdback Agreement (Re: Pacheco Pass) dated June 30, 2004.
10.217*	Loan Guaranty Agreement (Secured Note) (Re: Pacheco Pass) dated June 30, 2004.
10.218*	Escrow Agreement (Re: Shoppes at Boardwalk) dated July 1, 2004.

90

EXHIBIT NO.	DESCRIPTION
10.219*	Secured Promissory Note Loan No. 753948 (Re: Shoppes at Boardwalk) dated July 2, 2004.
10.220*	Deed of Trust, Security Agreement and Assignment of Rents (Re: Shoppes at Boardwalk) dated July 2, 2004.
10.221*	Guaranty Loan No. 75348 (Re: Shoppes at Boardwalk) dated July 2, 2004.
10.222*	Property Reserves Agreement Loan No. 753948 (Re: Shoppes at Boardwalk) dated July 2, 2004.
10.223*	Master Lease Escrow Agreement (Re: Paradise Shoppes at Dallas) dated July 1, 2004.
10.224*	Assignment of Purchase Agreement (Re: Plaza Santa Fe II) dated May 25, 2004
10.225*	Assignment of Contract (Re: Eckerds - Greer) dated May 2004
10.226*	Assignment of Contract (Re: Eckerds – Kill Devil Hills) dated May 2004
10.227*	Assignment of Contract (Re: Eckerds - Crossville) dated May 2004
10.228*	Assignment of Contract (Re: Eckerds - Colimbia) dated May 2004
10.229*	Promissory Note (Re: Eckerds – Crossville) dated July 21, 2004
10.230*	Post-Closing Agreement (Re: Eckerds – Crossville) dated July 21, 2004
10.231*	Guaranty Agreement Regarding Cross-Collateralization (Re: Eckerds- Crossville) dated July 21, 2004
10.232*	Promissory Note (Re: Eckerds – Columbia) dated July 21, 2004
10.233*	Guaranty Agreement Regarding Cross-Collateralization (Re: Eckerds- Columbia) dated July 21, 2004
10.234*	Promissory Note (Re: Eckerds – Kill Devil Hills) dated July 21, 2004
10.235*	Post-Closing Agreement (Re: Eckerds – Kill Devil Hills) dated July 21, 2004
10.236*	Guaranty Agreement Regarding Cross-Collateralization (Re: Eckerds - Kill Devil Hills) dated July 21, 2004
10.237*	Promissory Note (Re: Eckerds – Greer) dated July 21, 2004
10.238*	Guaranty Agreement Regarding Cross-Collateralization (Re: Eckerds - Greer) dated July 21, 2004
10.239*	Loan Agreement (Re: Eckerds – Crossville, Columbia, Greer and Kill Devil Hills) dated July 21, 2003
10.240*	Promissory Note (Re: Pine Ridge Plaza) dated July 27, 2004
10.241*	Loan Agreement (Re: Pine Ridge Plaza) dated July 27, 2004
10.242*	Earn-Out Agreement (Re: Johns Creek Village) dated June 23, 2004

91

EXHIBIT NO.	DESCRIPTION
10.243*	Transitional Security (Phase II) Reserve Agreement (Re: Johns Creek Village) dated June 28, 2004
10.244*	Mortgage Note (Re: Johns Creek Village) dated June 28, 2004
10.245*	Deed to Secure Debt, Assignment of Leases and Rents and Security Agreement (Re: Johns Creek Village) dated June 28, 2004
10.246*	Guaranty Agreement (Re: Johns Creek Village) dated June 28, 2004
10.247*	Post-Closing Agreement (Re: Fullerton Metrocenter) dated July 9, 2004
10.248*	Promissory Note (Re: Fullerton Metrocenter) dated July 9, 2004
10.249*	Loan Agreement (Re: Fullerton Metrocenter) dated July 9, 2004
10.250*	Deed of Trust Note (Re: Northgate North) dated July 2004
10.251*	Letter Agreement (Re: Northgate North) dated July 14, 2004
10.252*	Closing Certificate (Re: Northgate North) dated July 2004
10.253*	Limited Payment Guaranty (Re: Northgate North) dated July 2004
10.254*	Post-Closing Agreement (Re: Cranberry Square) dated July 2004
10.255*	Loan Agreement (Re: Cranberry Square) dated July 2004
10.256*	Letter Agreement (Re: Tollgate Marketplace) dated July 21, 2004
10.257*	Closing Certificate (Re: Tollgate Marketplace) dated July 21, 2004
10.258*	Mortgage Note (Re: Tollgate Marketplace) dated July 21, 2004
10.259*	Post Closing Delivery Covenant (Re: Tollgate Marketplace) dated July 21, 2004
10.260*	Indemnity Guaranty (Re: Tollgate Marketplace) dated July 21, 2004
10.261*	Real Estate Purchase Contract (Re: Wal-Mart Supercenter – Blytheville) dated May 28, 2004
10.262*	Letter Agreement (Re: Gateway Village) dated July 21, 2004
10.263*	Closing Certificate (Re: Gateway Village) dated July 21, 2004
10.264*	Mortgage Note A (Re: Gateway Village) dated July 21, 2004
10.265*	Mortgage Note B (Re: Gateway Village) dated July 21, 2004
10.266*	Indemnity Guaranty (Re: Gateway Village) dated July 21, 2004
10.267*	Post Closing Delivery Covenant (Re: Gateway Village, Towson Circle, and Tollgate Marketplace) dated July 21, 2004

92

EXHIBIT NO.	DESCRIPTION
10.268*	Letter Agreement (Re: Towson Circle) dated July 21, 2004
10.269*	Closing Certificate (Re: Towson Circle) dated July 21, 2004
10.270*	Mortgage Note A (Re: Towson Circle) dated July 21, 2004
10.271*	Mortgage Note B (Re: Towson Circle) dated July 21, 2004
10.272*	Indemnity Guaranty (Re: Towson Circle) dated July 21, 2004
10.273*	Letter Agreement (Re: Gateway Plaza Shopping Center) dated May 20, 2004
10.274*	Promissory Note (Re: Wrangler Company Western Headquarters and Distribution Facility) dated July 26, 2004
10.275*	Loan Agreement (Re: Wrangler Company Western Headquarters and Distribution Facility) Dated July 26, 2004
10.276*	Promissory Note (Re: Plaza at Marysville) dated July 30, 2004
10.277*	Loan Agreement (Re: Plaza at Marysville) dated July 30, 2004
10.278*	Forks Town Center China Moon Escrow (Re: Forks Town Center) dated July 27, 2004
10.279*	Earn Out Agreement (Re: Forks Town Center) dated July 27, 2004
10.280*	Promissory Note (Re: Academy Sports and Outdoors – Houma) dated August 4, 2004
10.281*	Loan Agreement (Re: Academy Sports and Outdoors - Houma) dated August 4, 2004
10.282*	Promissory Note (Re: Reisterstown Plaza) dated August 4, 2004
10.283*	Letter Agreement (Re: Reisterstown Plaza) dated July 30, 2004
10.284*	Loan Agreement (Re: Reisterstown Plaza) dated August 4, 2004
10.285*	Guaranty Agreement (Re: Reisterstown Plaza) dated August 4, 2004
10.286*	Limited Guaranty Agreement (Re: Reisterstown Plaza) dated August 4, 2004
10.287*	Post-Closing Agreement (Re: Reisterstown Plaza) dated August 4, 2004
10.288*	Letter Agreement (Re: Wal-Mart Supercenter – Jonesboro) dated June 4, 2004
10.289*	Promissory Note (Re: Wal-Mart Supercenter – Jonesboro) dated August 6, 2004
10.290*	Loan Agreement (Re: Wal-Mart Supercenter – Jonesboro) dated August 6, 2004
10.291*	Promissory Note Loan No. 10024997 (Re: Davis Towne Crossing) dated August 9, 2004.
10.292*	Loan Agreement No. 10024997 (Re: Davis Towne Crossing) dated August 9, 2004.
10.293*	Promissory Note Loan No. 10024995 (Re: Shoppes of Prominence Point) dated August 2004.

93

EXHIBIT NO.	DESCRIPTION
10.294*	Loan Agreement No. 10024995 (Re: Shoppes of Prominence Point) dated August 2004.
10.295*	Assignment of Contract (Re: Shops at Boardwalk) dated July 1, 2004.
10.296*	Letter Agreement to Purchase (Re: Shops at Boardwalk) dated March 2004.
10.297*	Amended Agreement of Sale (Re: Shops at Boardwalk) dated April 15, 2004.
10.298*	Assignment of Contract (Re: Cranberry Square) dated June 23, 2004.
10.299*	Letter Agreement to Purchase (Re: Cranberry Square) dated April 27, 2004.
10.300*	Construction Agreement (Re: Dorman Center Phase II) dated July 15, 2004.
10.301*	Escrow Agreement (Re: Dorman Center Phase II) dated July 14, 2004.
10.302*	Assignment and Assumption of Purchase and Sale Agreement (Re: Gateway Plaza) dated July 21, 2004.
10.303*	Amended Purchase and Sale Agreement (Re: Gateway Plaza) dated July 15, 2004.
10.304*	Letter Agreement to Purchase (Re: Gateway Plaza) dated May 20, 2004.
10.305*	Assignment of Contract (Re: Plaza at Marysville) dated July 26, 2004.
10.306*	Reinstated and Amended Purchase and Sale Agreement (Re: Plaza at Marysville) dated July 23, 2004.
10.307*	Purchase and Sale Agreement (Re: Plaza at Marysville) dated May 6, 2004.
10.308*	Letter Agreement to Purchase (Re: Forks Town Center) dated August 10, 2004.
10.309*	Mortgage Note Loan No. 122483 (Re: Forks Town Center) dated August 10, 2004.
10.310*	Limited Payment Guarantee Agreement Loan No. 122483 (Re: Forks Town Center) dated August 10, 2004.
10.311*	Post-Closing Agreement (Re: Village Shoppes at Simonton) dated August 9, 2004.
10.312*	Escrow and Guarantee Agreement (Re: Village Shoppes at Simonton) dated August 2004.
10.313*	Assignment and Assumption of Purchase and Sale Agreement (Re: Village Shoppes at Simonton) dated August 2004.
10.314*	Letter Agreement to Purchase (Re: Village Shoppes at Simonton) dated April 30, 2004.
10.315*	Secured Promissory Note Loan No. 754044 (Re: Manchester Meadows) dated August 24, 2004.
10.316*	Deed of Trust, Security Agreement and Assignment of Rents (Re: Manchester Meadows) dated August 24, 2004.
10.317*	Guaranty Agreement Loan No. 754044 (Re: Manchester Meadows) dated August 24, 2004.

94

EXHIBIT NO.	DESCRIPTION
10.318*	Escrow and Guarantee Agreement (Re: Manchester Meadows) dated August 2004.
10.319*	St. Louis Playscapes Escrow and Guarantee Agreement (Re: Manchester Meadows) dated August 2004.
10.320*	Assignment and Assumption of Purchase and Sale Agreement (Re: Manchester Meadows) dated August 2004.
10.321*	Purchase and Sale Agreement (Re: Manchester Meadows) dated July 13, 2004.
10.322*	Amended and Restated Promissory Note Loan No. 10024998 (Re: Governor’s Marketplace) dated August 17, 2004.
10.323*	Post-Closing Agreement (Re: Governor’s Marketplace) dated August 2004.
10.324*	Loan Agreement No. 10024998 (Re: Governor’s Marketplace) dated August 17, 2004.
10.325*	Master Lease Escrow Agreement (Re: Mitchell Ranch Plaza) dated August 23, 2004.
10.326*	Agreement of Purchase and Sale (Re: Mitchell Ranch Plaza) dated July 20, 2004.
10.327*	Master Lease Escrow Agreement (Re: The Columns) dated August 24, 2004.
10.328*	Escrow Agreement (Re: The Columns) dated August 24, 2004.
10.329*	Assignment (Re: John’s Creek Village) dated June 23, 2004.
10.330*	Assignment (Re: Shoppes at Prominence Point) dated June 30, 2004.
10.331*	Amended Agreement of Purchase and Sale of Shopping Center (Re: Shoppes at Prominence Point) dated June 18, 2004.
10.332*	Assignment (Re: Shoppes of Dallas) dated July, 2 2004.
10.333*	Amended Agreement of Purchase and Sale of Shopping Center (Re: Shoppes of Dallas) dated June 29, 2004.
10.334*	Letter Agreement (Re: Shoppes of Dallas) dated September 27, 2004.
10.335*	Mortgage Note A Loan No. 122533 (Re: Shoppes of Dallas) dated September 27, 2004.
10.336*	Mortgage Note B Loan No. 122533 (Re: Shoppes of Dallas) dated September 27, 2004.
10.337*	Deed to Secure Debt and Security Agreement (Re: Shoppes of Dallas) dated September 27, 2004.
10.338*	NOT USED
10.339*	Contribution Agreement (Re: Tollgate Marketplace) dated July 19, 2004.
10.340*	Contribution Agreement (Re: Gateway Village) dated July 21, 2004.
10.341*	Promissory Note (Re: Plaza at Marysville) dated July 30, 2004.

95

EXHIBIT NO.	DESCRIPTION
10.342*	Loan Agreement (Re: Plaza at Marysville) dated July 30, 2004.
10.343*	Assignment of Contract (Re: Forks Town Center) dated June 18, 2004.
10.344*	Reinstated and Amended Contract (Re: Forks Town Center) dated July 2, 2004.
10.345*	NOT USED
10.346*	Contribution Agreement (Re: Towson Circle) dated July 2004.
10.347*	Letter Agreement (Re: Gateway Plaza) dated August 19, 2004.
10.348*	Deed of Trust Note Loan No. 122520 (Re: Gateway Plaza) dated August 19, 2004.
10.349*	Limited Payment Guaranty (Re: Gateway Plaza) dated August 19, 2004.
10.350*	Contribution Agreement (Re: Reisterstown Road Plaza) dated July 2004.
10.351*	Letter Agreement (Re: Village Shops at Simonton) dated September 27, 2004.
10.352*	Mortgage Note A Loan No. 122532 (Re: Village Shops at Simonton) dated September 27, 2004.
10.353*	Mortgage Note A Loan No. 122532 (Re: Village Shops at Simonton) dated September 27, 2004.
10.354*	Deed to Secure Debt and Security Agreement (Re: Village Shops at Simonton) dated September 27, 2004.
10.355*	Amendment Agreement (Re: Governor’s Marketplace) dated August 12, 2004.
10.356*	Master Lease Escrow Agreement (Re: Governor’s Marketplace) dated August 17, 2004.
10.357*	Secured Promissory Note Loan No. 754065 (Re: Mitchell Ranch Plaza) dated September 2, 2004.
10.358*	Mortgage and Security Agreement (Re: Mitchell Ranch Plaza) dated September 2, 2004.
10.359*	Guaranty (Re: Mitchell Ranch Plaza) dated September 2, 2004.
10.360*	Assignment (Re: The Columns) dated August 24, 2004.
10.361*	Amendment Agreement (Re: The Columns) dated August 2, 2004.
10.362*	Letter Agreement (Re: The Columns) dated October 1, 2004.
10.363*	Mortgage Note A Loan No. 122534 (Re: The Columns) dated September 27, 2004.
10.364*	Mortgage Note B Loan No. 122534 (Re: The Columns) dated September 27, 2004.
10.365*	Installment Note (Re: Quakertown) dated August 25, 2004.

96

EXHIBIT NO.	DESCRIPTION
10.366*	Loan Guaranty Agreement (Re: Quakertown) dated August 25, 2004.
10.367*	Amended Agreement (Re: Saucon Valley Square) dated September 7, 2004.
10.368*	Assignment and Assumption of Purchase and Sale Agreement (Re: Lincoln Park) dated September 1, 2004.
10.369*	Amended and Restated Purchase and Sale Agreement (Re: Lincoln Park) dated August 6, 2004.
10.370*	Promissory Note (Re: Lincoln Park) dated October 8, 2004.
10.371*	Loan Agreement (Re: Lincoln Park) dated October 8, 2004.
10.372*	Assignment and Assumption of Purchase and Sale Agreement (Re: Harvest Towne Center) dated September 2004.
10.373*	Amended Purchase Agreement (Re: Harvest Towne Center) dated August 2004.
10.374*	Easement Indemnity Escrow Agreement (Re: Harvest Towne Center) dated September 8, 2004.
10.375*	Master Lease Agreement (Re: Harvest Towne Center) dated September 8, 2004.
10.376*	Amended and Restated Promissory Note (Re: Boulevard at the Capital Centre) dated September 8, 2004.
10.377*	Loan Agreement (Re: Boulevard at the Capital Centre) dated September 8, 2004.
10.378*	Amended and Restated Limited Guaranty Agreement (Re: Boulevard at the Capital Centre) dated September 8, 2004.
10.379*	Post Closing Agreement (Re: Boulevard at the Capital Centre) dated September 8, 2004.
10.380*	Agreement of Sale (Re: GMAC Insurance Building) dated August 2004.
10.381*	Escrow Agreement (Re: GMAC Insurance Building) dated September 2004.
10.382*	Guaranty (Re: GMAC Insurance Building) dated September 2004.
10.383*	Promissory Note (Re: GMAC Insurance Building) dated September 29, 2004.
10.384*	Loan Agreement (Re: GMAC Insurance Building) dated September 29, 2004.
10.385*	Promissory Note (Re: Saucon Valley Square) dated September 7, 2004.
10.386(	Loan Agreement (Re: Saucon Valley Square) dated September 7, 2004.
10.387*	Amended Agreement to Option to Purchase Real Property (Re: Azalea Square) dated September 29, 2004.
10.388*	Amended Agreement to Contract for Sale and Purchase (Re: Edgemont Town Center) dated November 23, 2004.
10.389*	Assignment (Re: University Town Center) dated November 23, 2004.

97

EXHIBIT NO.	DESCRIPTION
10.390*	Amended Agreement to Contract for Sale and Purchase (Re: University Town Center) dated November 19, 2004.
10.391*	Promissory Note (Re: Azalea Square) dated November 11, 2004.
10.392*	Loan Agreement (Re: Azalea Square) dated November 11, 2004.
10.394*	Loan Agreement (Re: Manfield Towne Crossing) dated November 12, 2004.
10.395*	Amendment to Loan Documents (Re: The Columns) dated November 2, 2004.
10.396*	Mortgage Note A Loan No. 122541 (Re: The Columns) dated November 2, 2004.
10.397*	Mortgage Note B Loan No. 122541 (Re: The Columns) dated November 2, 2004.
10.398*	Promissory Note (Re: Bed Bath & Beyond Plaza) dated November 12, 2004.
10.399*	Loan Agreement (Re: Bed Bath & Beyond Plaza) dated November 12, 2004.
10.400*	Promissory Note (Re:Oswego Commons) dated November 23, 2004.
10.401*	Loan Agreement (Re: Oswego Commons) dated November 23, 2004.
10.402*	Promissory Note (Re:Zurich Towers) dated November 23, 2004.
10.403*	Loan Agreement (Re: Zurich Towers) dated November 23, 2004.
10.404*	Assignment and Assumption of Purchase and Sale Agreement (Bed, Bath & Beyond Plaza) dated September 2004.
10.405*	Agreement to Purchase (Re: Bed, Bath & Beyond Plaza) dated March 24, 2004.
10.406*	Amended Ground Lease Agreement (Re: Bed, Bath & Beyond Plaza) dated May 28, 2004.
10.407*	Letter Agreement to Purchase (Re: Publix - Mt. Pleasant) dated August 27, 2004.
10.408*	Agreement of Purchase and Sale (Re: Denton Crossing) dated August 20, 2004.
10.409*	Escrow Agreement (Re: Denton Crossing) dated October 18, 2004.
10.410*	Letter Agreement to Purchase (Re: Oswego Commons) dated July 21, 2004.
10.411*	Agreement of Purchase and Sale (Re: Gurnee Town Centre) dated October 5, 2004.
10.412*	Vacancy Escrow Agreement (Re: Gurnee Town Centre) dated October 29, 2004.
10.413*	Assignment of Contract (Re: Mansfield Town Crossing) dated November 3, 2004.
10.414*	Amended Letter Agreement to Purchase (Re: Mansfield Town Crossing) dated October 29, 2004.
10.415*	Amended Purchase and Sale Agreement and Joint Escrow Instructions (Re: Mansfield Town Crossing) dated October 20, 2004.

98

EXHIBIT NO.	DESCRIPTION
10.416*	Assignment of Contract (Re: Fox Creek Village) dated November 21, 2004.
10.417*	Amended Letter Agreement (Re: Fox Creek Village) dated November 15, 2004.
10.418*	Escrow Agreement (Re: Fox Creek Village) dated November 22, 2004.
10.419*	Letter Agreement to Purchase (Re: Winchester Commons) dated September 8, 2004.
10.420*	Escrow Agreement (Re: Winchester Commons) dated November 5, 2004.
10.421*	Assignment of Contract (Re: Zurich Towers) dated November 2, 2004.
10.422*	Purchase and Sale Agreement (Re: Zurich Towers) dated November 2, 2004.
10.423	Assignment of Contract (Re: Denton Crossing) dated October 12, 2004.
10.424	Promissory Note (Re: Denton Crossing) dated December 7, 2004.
10.425	Promissory Note (Re: Denton Crossing) dated December 7, 2004.
10.426	Guaranty Agreement (Re: Denton Crossing) dated December 7, 2004.
10.427	Assignment of Purchase Agreement (Re: Plaza at Riverlakes) dated October 21, 2004.
10.428	Amended Purchase and Sale Agreement and Joint Escrow Instructions (Re: Plaza at Riverlakes) dated October 20, 2004.
10.429	Assignment of Contract (Re: Gurnee Town Center) dated October 26, 2004.
10.430	Promissory Note (Re: Gurnee Town Center) dated December 20, 2004.
10.431	Loan Agreement (Re: Gurnee Town Center) dated December 20, 2004.
10.432	Mortgage Note (Re: Fox Creek Village) dated December 23, 2004.
10.433	Loan Letter Agreement (Re: Fox Creek Village) dated December 23, 2004.
10.434	Assignment of Contract (Re: Five Forks) dated December 6, 2004.
10.435	Agreement of Purchase and Sale (Re: Five Forks) dated September 10, 2004.
10.436	Assignment of Real Estate Purchase Contract (Re: Placentia Town Center) dated November 29, 2004.
10.437	Reinstated and Amended Purchase and Sale Agreement and Joint Escrow Instructions (Re: Placentia Town Center) dated November 4, 2004.
10.438	Promissory Note (Re: Placentia Town Center) dated December 21, 2004.
10.439	Loan Agreement (Re: Placentia Town Center) dated December 21, 2004.
10.440	Assignment and Assumption of Purchase and Sale Agreement (Re: Gateway Station) dated December 2004.

99

EXHIBIT NO.	DESCRIPTION
10.441	Letter Agreement to Purchase (Re: Gateway Station) dated October 22, 2004.
10.442	Assignment (Re: Northwoods) dated November 7, 2004.
10.443	Amended Agreement to Sale (Re: Northwoods) dated November 8, 2004.
10.444	Promissory Note (Re: Northwoods) dated December 29, 2004.
10.445	Loan Agreement (Re: Northwoods) dated December 29, 2004.
10.446	Assignment of Contract (Re: Gateway Pavilions) dated December, 2004.
10.447	Purchase and Sale Agreement and Escrow Instructions (Re: Gateway Pavilions) dated August 9, 2004.
10.448	Promissory Note (Re: Gateway Pavilions) dated December 30, 2004.
10.449	Loan Agreement (Re: Gateway Pavilions) dated December 30, 2004.
10.450	Assignment and Assumption of Purchase and Sale Agreement (Re: American Express - 31st Avenue, Phoenix, AZ) dated December 16, 2004.
10.451	Assignment and Assumption of Purchase and Sale Agreement (Re: American Express - 19th Avenue, Phoenix, AZ) dated December 16, 2004.
10.452	Assignment and Assumption of Purchase and Sale Agreement (Re: American Express - Minneapolis, MN) dated December 16, 2004.
10.453	Assignment and Assumption of Purchase and Sale Agreement (Re: American Express - Depere, WI) dated December 16, 2004.
10.454	Assignment and Assumption of Purchase and Sale Agreement (Re: American Express - Greensboro, NC) dated December 16, 2004.
10.455	Assignment and Assumption of Purchase and Sale Agreement (Re: American Express - Fort Lauderdale, FL) dated December 16, 2004.
10.456	Purchase and Sale Agreement (Re: American Express - 31st Avenue, Phoenix, AZ, 19th Avenue, Phoenix, AZ, Minneapolis, MN, Depere, WI, Greensboro, NC and Fort Lauderdale, FL) dated December 16, 2004.
10.457	Promissory Note (Re: American Express - 31st Avenue, Phoenix, AZ) dated December 16, 2004.
10.458	Loan Agreement (Re: American Express - 31st Avenue, Phoenix, AZ) dated December 16, 2004.
10.459	Promissory Note (Re: American Express - 19th Avenue, Phoenix, AZ) dated December 16, 2004.
10.460	Loan Agreement (Re: American Express - 19th Avenue, Phoenix, AZ) dated December 16, 2004.

100

EXHIBIT NO.	DESCRIPTION
10.461	Promissory Note (Re: American Express - Minneapolis, MN) dated December 16, 2004.
10.462	Loan Agreement (Re: American Express - Minneapolis, MN) dated December 16, 2004.
10.463	Promissory Note (Re: American Express - Depere, WI) dated December 16, 2004.
10.464	Loan Agreement (Re: American Express - Depere, WI) dated December 16, 2004.
10.465	Promissory Note (Re: American Express - Greensboro, NC) dated December 16, 2004.
10.466	Loan Agreement (Re: American Express - Greensboro, NC) dated December 16, 2004.
10.467	Promissory Note (Re: American Express - Fort Lauderdale, FL) dated December 16, 2004.
10.468	Loan Agreement (Re: American Express - Fort Lauderdale, FL) dated December 16, 2004.
10.469	Assignment and Assumption of Purchase and Sale Agreement (Re: Southlake Town Square) dated December 22, 2004.
10.470	Amended and Restated Purchase and Sale Agreement (Re: Southlake Town Square) dated November 5, 2004.
10.471	Assignment and Assumption of Agreement to Admit Partners (Re: Southlake Town Square) dated December 22, 2004.
10.472	Agreement to Admit Partner (Re: Southlake Town Square) dated November 5, 2004.
10.473	Assignment (Re: Henry Town Center) dated December 23, 2004.
10.474	Amended Agreement of Purchase and Sale (Re: Henry Town Center) dated December 1, 2004.
10.475	Promissory Note (Re: Henry Town Center) dated January 8, 2003.
10.476	Deed to Secure Debt and Security Agreement (Re: Henry Town Center) dated January 8, 2003.
10.477	Assignment (Re: 23rd Street Plaza) dated December 23, 2004.
10.478	Agreement of Sale (Re: 23rd Street Plaza) dated November 19, 2004.
10.479	Assignment (Re: Coram Plaza) dated December 23, 2004.
10.480	Amended Agreement of Purchase and Sale (Re: Coram Plaza) dated October 21, 2004.
10.481	Assignment (Re: Phenix Crossing) dated December 28, 2004.
10.482	Amended Real Estate Sale Agreement (Re: Phenix Crossing) dated December 20, 2004.
10.483	Assignment and Assumption of Purchase and Sale Agreement (Re: Mesa Fiesta) dated December 2004.
10.484	Agreement of Purchase and Sale (Re: Mesa Fiesta) dated December 7, 2004.
10.485	Assignment (Re: Green’s Corner, Newton Crossroads and Stilesboro Oaks) dated December 29, 2004.

101

EXHIBIT NO.	DESCRIPTION
10.486	Amended Purchase and Sale Agreement (Re: Green’s Corner, Newton Crossroads and Stilesboro Oaks) dated December 20, 2004.
10.487	Assignment of Contract (Re: Shoppes at Lake Andrew) dated December 30, 2004.
10.488	Letter Agreement to Purchase (Re: Shoppes at Lake Andrew) dated November 8, 2004.
10.489	Promissory Note (Re: Shoppes at Lake Andrew) dated October 30, 2002.
10.490	Future Advance and Renewal Note (Re: Shoppes at Lake Andrew) dated February 26, 2004.
10.491	Notice of Future Advance, Mortgage Modification and Amended and Restated Mortgage and Security Agreement (Re: Shoppes at Lake Andrew) dated February 26, 2004.
10.492	Renewal Note (Re: Shoppes at Lake Andrew) dated December 2004.
10.493	Mortgage Modification and Amended and Restated Mortgage and Security Agreement (Re: Shoppes at Lake Andrew) dated December 30, 2004.
10.494	Assignment of Contract (Re: Pleasant Run Towne Crossing) dated December 29, 2004.
10.495	Promissory Note (Re: Pleasant Run Towne Crossing) dated December 30, 2004.
10.496	Loan Agreement (Re: Pleasant Run Towne Crossing) dated December 30, 2004.
10.497	Assignment and Assumption of Purchase and Sale Agreement (Re: Evans Town Center) dated December 2004.
10.498	Assignment and Assumption of Purchase and Sale Agreement (Re: Irmo Station) dated December 2004.
10.499	Amended Agreement of Purchase and Sale (Re: Evans Town Center and Irmo Station) dated December 29, 2004.
10.500	Assignment and Assumption of Purchase and Sale Agreement (Re: American Express - Markham, Ontario, Canada) dated January 25, 2005.
10.501	Purchase and Sale Agreement (Re: American Express - Markham, Ontario, Canada) dated January 25, 2005.
10.502	Purchase Agreement (Re: American Express - Markham, Ontario, Canada) dated January 25, 2005.
10.503	Promissory Note (Re: American Express - Markham, Ontario, Canada) dated January 26, 2005.
10.504	Loan Agreement (Re: American Express - Markham, Ontario, Canada) dated January 26, 2005.
10.505	Amended and Restated Project Promissory Note (Re: Coram Plaza) dated December 7, 2004.
10.506	Amended and Restated Acquisition Promissory Note (Re: Coram Plaza) dated December 7, 2004.
10.507	Amended and Restated Building Loan Promissory Note (Re: Coram Plaza) dated December 7, 2004.

102

EXHIBIT NO.	DESCRIPTION
10.508	Assignment, Assumption, Modification and Release Agreement (Re: Coram Plaza) dated December 7, 2004.
10.509	Interim Secured Promissory Note Loan No. 754183 (Re: Coram Plaza) dated January 26, 2005.
10.510	Consolidated, Amended and Restated Secured Promissory Note Loan No. 754183 (Re: Coram Plaza) dated January 26, 2005.
10.511	Loan Agreement Loan No. 754183 (Re: Coram Plaza) dated January 26, 2005.
10.512	Guaranty Loan No. 754183 (Re: Coram Plaza) dated January 26, 2005.
23.2*	Consent of Duane Morris LLP (included in Exhibit 5).
23.3*	Consent of Duane Morris LLP (included in Exhibit 8).
31.1	Rule 13a-15(e)/15d-15(e) Certification by Chief Executive Officer.
31.2	Rule 13a-15(e)/15d-15(e) Certification by Principal Financial Officer.
31.3	Rule 13a-15(e)/15d-15(e) Certification by Principal Accounting Officer.
32.1	Section 1350 Certification by Chief Executive Officer and Principal Accounting Officer and Principal   Financial Officer.
99.1*	Code of Business Conduct and Ethics
99.2*	Nonretaliation Policy

* Previously filed.

103

SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.

	/s/ Robert D. Parks
By:	Robert D. Parks
	Chairman and Chief Executive Officer and Affiliated Director
Date:	March 7, 2005

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated:

	/s/ Robert D. Parks
			/s/ Kenneth H. Beard
By:	Robert D. Parks	By:	Kenneth H. Beard
	Chairman and Chief Executive Officer and Affiliated Director		Independent Director
Date:	March 7, 2005	Date:	March 7, 2005
	/s/ Steven P. Grimes
			/s/ Paul R. Gauvreau
By:	Steven P. Grimes	By:	Paul R. Gauvreau
	Principal Financial Officer		Independent Director
Date:	March 7, 2005	Date:	March 7, 2005
	/s/ Lori J. Foust
			/s/ Gerald M. Gorski
By:	Lori J. Foust	By:	Gerald M. Gorski
	Principal Accounting Officer		Independent Director
Date:	March 7, 2005	Date:	March 7, 2005
	/s/ Brenda G. Gujral
			/s/ Barbara A. Murphy
By:	Brenda G. Gujral	By:	Barbara A. Murphy
	Affiliated Director		Independent Director
Date:	March 7, 2005	Date:	March 7, 2005
	/s/ Frank A. Catalano, Jr.
By:	Frank A. Catalano, Jr.
	Independent Director
Date:	March 7, 2005

104

EX-3.2.1

Exhibit 3.2.1

SECOND AMENDED AND RESTATED BYLAWS

OF
INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.

ARTICLE I
OFFICES AND FISCAL YEAR

SECTION 1. REGISTERED OFFICE/AGENT. Inland Western Retail Real Estate Trust, Inc. (the “Company”) shall continuously maintain in the State of Maryland a registered office and a registered agent whose office is identical with such registered office. The address of the Company’s registered office in the State of Maryland is 300 East Lombard Street, Baltimore, Maryland 21202. The name of the Company’s registered agent at such address is The Corporation Trust Incorporated. The Company reserves the power to change its registered agent and registered office at any time.

SECTION 2. PRINCIPAL OFFICE.The post office address of the principal office of the Company in the State of Maryland is c/o The Corporation Trust Incorporated, 300 East Lombard Street, Baltimore, Maryland 21202.

SECTION 3. OTHER OFFICES. The Company may also have offices other than its principal office at such other places both within and without the State of Maryland as the Board of Directors of the Company (the “Board”) may from time to time determine or as the business of the Company may require.

SECTION 4. FISCAL AND TAXABLE YEARS. The fiscal and taxable years of the Company shall begin on January 1 and end on December 31.

ARTICLE II
STOCKHOLDERS

SECTION 1.ANNUAL MEETING.An annual meeting of the stockholders of the Company (the “Stockholders”) shall be held on the first Tuesday in May of each year, commencing in 2003, or on such other day in May as the Board may determine; provided, however, such meeting shall not be held less than 30 days after delivery of the annual report to the Stockholders. The purpose of each annual meeting of the Stockholders is to elect directors of the Company (the “Directors”) and to transact such other business, as may properly come before the meeting. If the day fixed for the annual meeting shall be a legal holiday, such meeting shall be held on the next succeeding business day.

SECTION 2. SPECIAL MEETINGS. Special meetings of the Stockholders may be called by the chairman, the president, a majority of the Directors or a majority of the Independent Directors (as defined in the Articles of Incorporation of the Company), and shall be called by the

secretary or another officer of the Company upon written request (which request states the purpose of the meeting and the matter(s) to be acted upon) of Stockholders holding in the aggregate not less than 10% of the outstanding shares of capital stock of the Company (“Shares”) entitled to vote at such meeting. Upon receipt of such a written request, the secretary of the Company shall inform the Stockholders making the request of the reasonably estimated cost of preparing and mailing a notice of such meeting; and upon payment of these costs to the Company, notify each Stockholder entitled to notice of the meeting not less than fifteen (15) nor more than sixty (60) days prior to the date of such meeting. Unless requested by the Stockholders entitled to cast a majority of all the votes entitled to be cast at such meeting, a special meeting need not be called to consider any matter which is substantially the same as a matter voted on at any special meeting of the Stockholders held during the preceding 12 months. At such meeting, a majority of then outstanding shares may, without the necessity for concurrence by the Board of Directors, vote to amend the Articles (as defined below), terminate the Company or remove any member of the Board of Directors, consistent with these Bylaws.

SECTION 3. PLACE OF MEETINGS. Each meeting of the Stockholders for the election of Directors shall be held at the principal executive offices of the Company unless the Board shall by resolution designate any other place for such meeting. Meetings of Stockholders for any other purpose may be held at such place, within or without the State of Maryland, and at such time as shall be determined pursuant to Section 2 of this Article II, and stated in the notice of the meeting or in a duly executed waiver of notice thereof.

SECTION 4. NOTICE OF MEETINGS. Except as provided in the second sentence of Section 2 of this Article II, not less than ten (10) nor more than ninety (90) days before an annual or a special meeting of Stockholders, the secretary shall give to each Stockholder entitled to vote at such meeting and to each Stockholder not entitled to vote who is entitled to notice of the meeting, written or printed notice stating the time and place of the meeting and, in the case of a special meeting or as otherwise may be required by any statute, the purpose for which the meeting is called, either by mail, by presenting it to such Stockholder personally or by leaving it at such Stockholder’s residence or usual place of business. If mailed, such notice shall be deemed to be given when deposited in the United States mail addressed to the Stockholder at its post office address which appears in the records of the Company, with postage thereon prepaid.

SECTION 5. SCOPE OF NOTICE. Any business of the Company may be transacted at an annual meeting of Stockholders without being specifically designated in the notice required in Section 4 of this Article II, except such business as is required by any statute to be stated in such notice. No business shall be transacted at a special meeting of Stockholders except as specifically designated in the notice.

SECTION 6. WAIVER OF NOTICE. Anything in these Bylaws to the contrary notwithstanding, with respect to any meeting of the Stockholders, any Stockholder who in person or by proxy shall have waived in writing notice of the meeting, either before or after such meeting, or who shall attend the meeting in person or by proxy, shall be deemed to have waived notice of such meeting unless such Stockholder attends for the express purpose of objecting, at the beginning of the meeting, and docs so object to the transaction of any business because the meeting is not lawfully called or convened.

SECTION 7. QUORUM; MANNER OF ACTING AND ORDER OF BUSINESS. Subject to any other provision of these Bylaws, the Articles of Incorporation of the Company, as

amended and restated (the “Articles”), and the Maryland General Corporation Law (the “MGCL”), as to the vote that is required for a specified action, the presence in person or by proxy of the holders of a majority of the outstanding Shares entitled to vote at any meeting of Stockholders shall constitute a quorum for the transaction of business and may, without the necessity for concurrence by the Directors, vote to elect the Directors, The vote of the holders of a majority of the Shares entitled to vote, present in person or represented by proxy at a meeting at which a quorum is present, shall be binding on all Stockholders, unless the vote of a greater number or voting by classes is required by the MGCL, the Articles or these Bylaws, The Stockholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of Stockholders such that less than a quorum is present.

In the absence of a quorum, Stockholders holding a majority of the Shares present in person or by proxy and entitled to vote, or if no Stockholders are present, any officer entitled to preside at or act as secretary of the meeting, may adjourn the meeting to another time and place. Any business which might have been transacted at the original meeting may be transacted at any adjourned meeting at which a quorum is present. No notice of an adjourned meeting need be given if the lime and place are announced at the meeting at which the adjournment is taken except that, if adjournment is for more than 120 days or if, after the adjournment, a new record date is fixed for the meeting, notice of the adjourned meeting shall be given pursuant to Section 4 of this Article II.

Meetings of the Stockholders shall be presided over by the chairman, or in his absence by the president, or in his absence by a vice president, or in the absence of the foregoing persons by a chairman designated by the Board, or in the absence of such designation, by a chairman chosen at the meeting. The secretary of the Company shall act as secretary of the meeting, but in his absence the chairman of the meeting may appoint any person to act as secretary of the meeting. The order of business at all meetings of the Stockholders shall be determined by the chairman. The order of business so determined, however, may be changed by vote of the holders of a majority of the Shares present in person or represented by proxy at a meeting at which a quorum is present.

SECTION 8. VOTING; PROXIES. (a) Except as provided in paragraph (b) of this Section 8, or the Articles, each Stockholder of record on the record date, as determined pursuant to Section 6 of Article VI of these Bylaws, shall be entitled to one vote for every Share registered in his name. Each Stockholder entitled to vote at any meeting of Stockholders or to express consent to or dissent from corporate action in writing without a meeting may authorize another person to act for him by proxy. No proxy shall be valid after 11 months from its date of execution, unless the proxy provides for a longer period.

(b)Notwithstanding any other provision in these Bylaws, Subtitle 7 of Title 3 of the MGCL (or any successor statute) shall not apply to any acquisition by The Inland Group, Inc., a Delaware corporation, or any affiliate of The Inland Group, Inc. This Section 8(b) may be altered or repealed, in whole or in part, by a majority of the Directors (including a majority of the Independent Directors) at any time.

(c)With respect to Shares held by the advisor and the Board of Directors, neither the advisor, nor the members of the Board of Directors, nor any affiliate will vote or consent on

matters submitted to the Stockholders regarding the removal of the advisor, Board of Directors or any affiliate or any transaction between the Company and any of them.

SECTION 9. FIXING DATE FOR DETERMINATION OF SHAREHOLDERS OF RECORD. In order that the Company may determine the Stockholders entitled to notice of or to vote at any meeting of Stockholders or any adjournment thereof or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of Shares or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which shall not be (i) more than ninety (90) nor less than ten (10) days before the date of such meeting nor (ii) more than ninety (90) days prior to any other action. If no record date is fixed: (a) the record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; and (b) the record date for determining Stockholders for any other purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto. A determination of Stockholders of record entitled to notice of or to vote at a meeting of Stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.

SECTION 10. VOTING OF SHARES BY CERTAIN HOLDERS. Any Shares registered in the name of a corporation, partnership, trust or other entity, if entitled to be voted, may be voted by the president, a vice president, a general partner or trustee thereof, as the case may be, or by a proxy appointed by any of the foregoing individuals, unless some other person, who has been appointed to vote such Shares pursuant to a bylaw or a resolution of the governing board of such corporation or other entity or agreement of the partners of the partnership, presents a certified copy of such bylaw, resolution or agreement, in which case such person may vote such Shares. Any trustee or other fiduciary may vote Shares registered in his name as such fiduciary, either in person or by proxy.

Shares of the Company directly or indirectly owned by it shall not be voted at any meeting and shall not be counted in determining the total number of outstanding Shares entitled to be voted at any given time, unless they are held by it in a fiduciary capacity, in which case they may be voted and shall be counted in determining the total number of outstanding Shares at any given time.

The Directors may adopt by resolution a procedure by which a Stockholder may certify in writing to the Company that any Shares registered in the name of the Stockholder are held for the account of a specified person other than the Stockholder. The resolution shall set forth the class of Stockholders who may make the certification, the purpose for which the certification may be made, the form of certification and the information to be contained in it; and any other provisions with respect to the procedure which the Directors consider necessary or desirable. On receipt of such certification, the person specified in the certification shall be regarded as, for the purposes set forth in the certification, the Stockholder of record of the specified Shares in place of the Stockholder who makes the certification.

SECTION 11. INSPECTORS OF ELECTION.

(a)In advance of any meeting of Stockholders, the Board may appoint inspectors of election to act at each meeting of Stockholders and any adjournment thereof. If inspectors of election are not so appointed, the chairman of the meeting may, and upon the request of any Stockholder or his proxy shall, appoint inspectors of election at the meeting. The number of inspectors shall be either one or three. If appointed at the meeting upon the request of one or more Stockholders or proxies, the vote of the holders of a majority of Shares present in person or by proxy shall determine whether one or three inspectors are appointed. In any case, if any person appointed as an inspector fails to appear or fails or refuses to act, the vacancy may be filled by appointment made by the Directors in advance of the meeting or at the meeting by the person acting as chairman.

(b)The inspector(s) of election shall determine the number of outstanding Shares, the Shares represented at the meeting and the existence of a quorum, shall receive votes or consents, shall count and tabulate all votes and shall determine the result; and in connection therewith, the inspector(s) shall determine the authority, validity and effect of proxies, hear and determine all challenges and questions, and do such other ministerial acts as may be proper to conduct the election or vote with fairness to all Stockholders. If there are three inspectors of election, the decision, act or certificate of a majority is effective in all respects as the decision, act or certificate of all. If no inspectors of election are appointed, the secretary shall pass upon all questions and shall have all other duties specified in this Section 11.

(c)Upon request of the chairman of the meeting or any Stockholder or his proxy, the inspector(s) of election shall make a report in writing of any challenge or question or other matter determined by him and shall execute a certificate of any fact found in connection therewith. Any such report or certificate shall be filed with the record of the meeting.

SECTION 12. REPORTS TO STOCKHOLDERS.

(a)The Directors shall submit to the Stockholders at or before the annual meeting of Stockholders a report of the business and operations of the Company during such fiscal year, containing a balance sheet and a statement of income and surplus of the Company, accompanied by the certification of an independent certified public accountant, and such further information as the Directors may determine is required pursuant to any law or regulation to which the Company is subject or is deemed desirable. Within the earlier of twenty (20) days after the annual meeting of Stockholders or one hundred and twenty (120) days after the end of the fiscal year of the Company, the Directors shall place the annual report on file at the principal office of the Company and with any governmental agencies as may be required by law and as the Directors may deem appropriate.

(b)Not later than forty-five (45) days after the end of each of the first three (3) quarterly periods of each fiscal year, the Directors shall deliver or cause to be delivered an interim report to the Stockholders containing unaudited financial statements for such quarter and for the period from the beginning of the fiscal year to the end of such quarter, and such further information as the Directors may determine is required pursuant to any law or regulation to which the Company is subject or is deemed desirable.

SECTION 13. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The secretary shall make, at least ten (10) days before every meeting of Stockholders, a complete list of the Stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each Stockholder and the number of Shares registered in the name of each Stockholder. Such list shall be open to the examination of any Stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any Stockholder who is present.

SECTION 14. ACTION WITHOUT A MEETING. Any action required or permitted to be taken at a meeting of Stockholders may be taken without a meeting if a unanimous consent in writing, setting forth such action, is signed by each Stockholder entitled to vote on the matter and any other Stockholder entitled to notice of a meeting of Stockholders (but not to vote thereat) has waived in writing any right to dissent from such action, and such consent and waiver are filed with the minutes of proceedings of the Stockholders.

SECTION 15. NOMINATIONS AND STOCKHOLDER BUSINESS.

(a)Annual Meetings of Stockholders.

(1)Nominations of persons for election to the Board and the proposal of business to be considered by the Stockholders may be made at an annual meeting of Stockholders: (i) pursuant to the Company’s notice of meeting; (ii) by or at the direction of the Board; or (iii) by any Stockholder of the Company who was a Stockholder of record at the time of giving of notice provided for in this Section 15(a), who is entitled to vote at the meeting and who complied with the notice procedures set forth in this Section 15(a).

(2)For nominations or other business to be properly brought before an annual meeting by a Stockholder pursuant to clause (iii) of paragraph (a)(l) of this Section 15, the Stockholder must have given timely notice thereof in writing to the secretary of the Company. To be timely, a Stockholder’s notice shall be delivered to the secretary at the principal executive offices of the Company not less than 45 days before the date on which the Company first mailed its notice of meeting and accompanying proxy materials for the prior year’s annual meeting of Stockholders. Such Stockholder’s notice shall set forth: (i) as to each person whom the Stockholder proposes to nominate for election or reelection as a Director all information relating to such person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected); (ii) as to any other business that the Stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such Stockholder and of the beneficial owner, if any, on whose behalf the proposal is made; and (iii) as to the Stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made, the name and address of such Stockholder, as they appear on the Company’s books, and that of such beneficial owner, and the class and number of Shares which are owned beneficially and of record by such beneficial owner and such Stockholder.

(3)Notwithstanding anything in the second sentence of paragraph (a)(2) of this Section 15 to the contrary, in the event that the number of Directors to be elected to the Board is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board made by the Company at least 70 days prior to the first anniversary of the preceding year’s annual meeting, a Stockholder’s notice required by this Section 15(a) shall also he considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the secretary at the principal executive offices of the Company not later than the close of business on the tenth day following the day on which such public announcement is first made by the Company.

(b)Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of Stockholders as shall have been brought before the meeting pursuant to the Company’s notice of meeting. Nominations of persons for election to the Board may be made at a special meeting of Stockholders at which Directors are to be elected: (i) pursuant to the Company’s notice of meeting; (ii) by or at the direction of the Board; or (iii) provided that the Board has determined that Directors shall be elected at such special meeting, by any Stockholder of the Company who is a Stockholder of record at the time of giving of notice provided for in this Section 15(b), who is entitled to vote at the meeting and who complied with the notice procedures set forth in this Section 15(b). In the event the Company calls for a special meeting of Stockholders for the purpose of electing one or more Directors to the Board, any such Stockholder may nominate a person or persons (as the case may be) for election to such position as specified in the Company’s notice of meeting, if the Stockholder’s notice required by paragraph (a)(2) of this Section 15 shall be delivered to the secretary at the principal executive offices of the Company not earlier than the 90th day prior to such special meeting and not later than the close of business on the later of the 60th day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board to be elected at such meeting.

(c)Access to Records. Any Stockholder and any designated representative thereof shall be permitted access to all records of the Company at all reasonable times, and may inspect and copy any of them for purposes specified below. Inspection of the Company’s books and records by a state securities administrator shall be provided upon reasonable notice and during normal business hours at the business office of the Company. In addition, an alphabetical list of names, addresses and business telephone numbers of the Stockholders of the Company along with the number of Shares held by each of them (the “Stockholder List”) shall be maintained and updated quarterly as part of the books and records of the Company and shall be available for inspection by any Stockholder or the Stockholder’s designated agent at the business office of the Company upon the request of the Stockholder. A copy of the Stockholder List shall be mailed to any Stockholder requesting the Stockholder List within ten days of the request. The copy of the Stockholder List shall be printed in alphabetical order, on white paper, and in a readily readable type size (in no event smaller than 10-point type). The Company may impose a reasonable charge for expenses incurred in reproducing such list. The permitted purposes for which a Stockholder may request a copy of the Stockholder List include, without limitation, matters relating to Stockholders’ voting rights under the Articles and the exercise of Stockholders’ rights under federal proxy laws and regulations. If the advisor of the Company (the “Advisor”) or the Directors neglect or refuse to exhibit, produce or mail a copy of the Stockholder List as requested in accordance with and as required by applicable law and the Articles, the Advisor and the Directors shall be liable to any Stockholder requesting the Stockholder List, for the costs,

including reasonable attorneys’ fees, incurred by that Stockholder for compelling the production of the Stockholder List, and for actual damages suffered by any Stockholder by reason of such refusal or neglect. It shall be a defense to such liability that the actual purpose and reason for the requests for inspection or for a copy of the Stockholder List is to secure such list of Stockholders or other information for the purpose of selling such Stockholder List or copies thereof, or of using the same for a commercial purpose or other purpose not in the interest of the applicant as a Stockholder relative to the affairs of the Company. The Company may require the Stockholder requesting the Stockholder List to represent that the Stockholder List is not requested for a commercial purpose unrelated to the Stockholder’s interest in the Company. The remedies provided hereunder to Stockholders requesting copies of the Stockholder List arc in addition to, and shall not in any way limit, other remedies available to Stockholders under federal law, or the laws of any state.

(d)General.

(1)Only such persons who are nominated in accordance with the procedures set forth in this Section 15 shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 15. The presiding officer of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 15 and, if any proposed nomination or business is not in compliance with this Section 15, to declare that such defective nomination or business proposal be disregarded.

(2)For purposes of this Section 15, “public announcement” shall mean disclosure in a press release prepared by or on behalf of the Company and reported by the Dow Jones News Service, Associated Press or comparable news service or in a document publicly filed by the Company with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.

(3)Notwithstanding the foregoing provisions of this Section 15, a Stockholder shall also comply with all applicable requirements of state law and of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 15. Nothing in this Section 15 shall be deemed to affect any rights of Stockholders to request inclusion of proposals in any of the Company’s proxy statements pursuant to Rule 14a-8 under the Exchange Act.

ARTICLE III
BOARD OF DIRECTORS

SECTION 1. GENERAL POWERS. The business and affairs of the Company shall be managed by or under the direction of the Board. Unless otherwise provided by the Articles, Directors need not be Stockholders. A Director shall be an individual at least 21 years of age who is not under legal disability.

SECTION 2. NUMBER, TENURE AND QUALIFICATIONS. The number of Directors of the Company shall be five (5). At any regular meeting or at any special meeting called for that purpose, by the affirmative vote of at least a majority of the Directors (including a

majority of the Independent Directors), the Board may increase or decrease the number of Directors; provided, that the number thereof shall not be fewer than three (3) nor more than eleven (11); and provided further, that the tenure of office of a Director shall not be affected by any decrease in the number of Directors.

SECTION 3. RESIGNATIONS AND REMOVAL. Any Director may resign by written notice to the Board, effective upon execution and delivery to the Company of such written notice or upon any future date specified in the notice. A Director may be removed at any time, with or without cause, at an annual or special meeting of the Stockholders, by the affirmative vote of the holders of not less than a majority of Shares then outstanding and entitled to vote generally in the election of Directors.

SECTION 4. MEETINGS. Meetings of the Board may be called by or at the request of the chairman, the president, a majority of the Directors or a majority of the Independent Directors. The person or persons authorized to call meetings of the Board may Fix any place as the place for holding any meeting of the Board called by them. Meetings of the Board may be held within or outside the State of Maryland.

SECTION 5. BUSINESS OF MEETINGS. Except as otherwise expressly provided in these Bylaws, any and all business may be transacted at any meeting of the Board.

SECTION 6. NOTICE OF MEETINGS. Notice of any meeting shall be given to each Director at his principal place of business: (i) at least two days previous thereto if delivered by messenger, overnight courier or facsimile; or (ii) at least five days previous thereto if mailed.

SECTION 7. ATTENDANCE BY TELEPHONE. Directors may participate in meetings of the Board by means of conference telephone or similar communications equipment by means of which all Directors participating in the meeting can hear and speak to one another, and such participation shall constitute presence in person at the meeting.

SECTION 8. QUORUM AND MANNER OF ACTING; ADJOURNMENT. Subject to the following sentence, a majority of the Directors shall constitute a quorum for the transaction of business at any meeting of the Board and the act of a majority of the Directors present at any meeting at which a quorum is present shall be the act of the Board. If less than a majority of such Directors are present at said meeting, a majority of the Directors present may adjourn the meeting from time to time without further notice, and provided further that if, pursuant to the Articles or these Bylaws, the vote of a majority of Independent Directors is required for action, a quorum must also include a majority of such group.

SECTION 9. ACTION WITHOUT A MEETING. Any action which could be taken at a meeting of the Board may be taken without a meeting if all of the Directors consent to the action in writing and the writing or writings are filed with the minutes of proceedings of the Board.

SECTION 10. FILLING OF VACANCIES. If for any reason any or all the Directors cease to be Directors, such event shall not terminate the Company or affect these Bylaws or the powers of the remaining Directors hereunder (even if fewer than three Directors remain). If a vacancy in the Board of Directors shall occur (whether arising through death, resignation or through an increase in the number of Directors), the vacancy shall be filled by the affirmative

vote of a majority of the remaining Directors, at any regular meeting or any special meeting called for that purpose, even though less than a quorum of the Board of Directors may exist. Any vacancy in the number of Directors created as a result of the removal of a Director by the Stockholders shall be filled by a majority vote of the Stockholders. Any Director may resign at any time and may be removed with or without cause at an annual or special meeting of Stockholders by the affirmative vote of the holders of not less than a majority of the outstanding Shares entitled to vote generally in the election of Directors. Any individual so elected as Director shall hold office for the unexpired term of the Director he is replacing.

SECTION 11. COMPENSATION OF DIRECTORS. The Board shall have the authority to fix the compensation of Directors, unless otherwise provided in the Articles.

SECTION 12. PRESIDING OFFICER. The presiding officer at any meeting of the Board shall be the chairman, or in his absence, any other Director elected chairman by vote of a majority of the Directors present at the meeting.

SECTION 13. COMMITTEE. The Board will designate an Audit Committee consisting of at least three Independent Directors. The Audit Committee shall (i) engage the independent public accountants, (ii) review the plans and results of the audit engagement with the independent public accountants, (iii) approve professional services provided by, and the independence of, the independent public accountants, (iv) consider the range of audit and non-audit fees, (v) consult with the independent public accountants regarding the adequacy of the Company’s internal accounting controls and (vi) such other duties and responsibilities as the law requires.

The Board may establish an Executive Committee consisting of three Directors, including two Independent Directors. The Executive Committee, to the extent provided by the Board and otherwise permitted by law, shall have and exercise all of the authority of the Board in the management of the Company, such Executive Committee to keep minutes of its proceedings and report the same to the Board when required.

The Board may establish an Executive Compensation Committee consisting of three Directors, including two Independent Directors, to establish compensation policies and programs for the Company’s executive officers. The Executive Compensation Committee will exercise all powers of the Board in connection with establishing and implementing compensation matters, including incentive compensation and benefit plans.

The Board may establish such other committees as the Directors deem appropriate and appoint the members thereof. Service on such committees shall be at the pleasure of the Board, which may by a majority vote taken in accordance with these Bylaws, increase or decrease committee membership, remove a committee member and appoint members to fill vacancies in a committee. Any committee of the Board shall make such reports as required by the Board available to the entire Board for review and any necessary action by the Board.

Nothing in this Section 13 shall be construed as precluding the Board or officers from appointing such other committees as they deem necessary and proper, to aid in the management and operation of the Company’s business.

SECTION 14. RELIANCE. Each Director, officer, employee and agent of the Company shall, in the performance of his duties with respect to the Company, be fully justified and protected with regard to any act or failure to act in reliance in good faith upon the books of account or other records of the Company, upon an opinion of counsel or upon reports made to the Company by any of its officers or employees or by the Advisor, accountants, appraisers or other experts or consultants selected by the Board or officers of the Company, regardless of whether such counsel or expert may also be a Director.

ARTICLE IV
OFFICERS

SECTION 1. NUMBER. The officers of the Company may consist of the chairman, the president, one or more vice presidents (the number thereof to be determined by the Board), the secretary, the treasurer and such assistant secretaries and assistant treasurers or any other officers thereunto authorized or elected by the Board. Any two or more offices may be held by the same person.

SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the Company shall be elected by the Board at their first meeting and thereafter at any subsequent meeting and shall hold their offices for such term as determined by the Board. Each officer shall hold office until his successor is duly elected and qualified, or until his death or disability, or until he resigns or is removed from his duties in the manner hereinafter provided.

SECTION 3. REMOVAL AND RESIGNATION. Any officer may be removed, either with or without cause, by a majority of the Directors then in office, at any meeting of the Board. Any officer may resign at any time by giving written notice to the Company. Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein.

SECTION 4. VACANCIES. A vacancy in any office because of death, resignation or removal or any other cause may be filled by the Board.

SECTION 5. CHAIRMAN. The chairman shall be the chief executive officer of the Company. The chairman shall preside at all meetings of the Board, and at all Stockholders’ meetings, whether annual or special, at which he or she is present and shall exercise such other powers and perform such other duties as the Board may from time to time assign to him or her or as may be prescribed by these Bylaws. Except in those instances in which the authority to execute is expressly delegated to another officer or agent of the Company, or a different mode of execution is expressly prescribed by the Board or these Bylaws, the chairman may execute for the Company certificates for its Shares and any contracts, deeds, mortgages, bonds or other instruments which the Board have authorized to be executed, and the chairman may accomplish such execution either under or without the seal of the Company, or either individually or with the secretary, any assistant secretary or any other officer thereunto authorized by the Board, according to the requirements of the form of the instrument or applicable law.

SECTION 6. PRESIDENT. The president shall be the chief operating officer of the Company. Subject to the direction and control of the Board, the president shall be in charge of the business of the Company; the president shall see that the resolutions and directions of the

Board arc carried into effect, except in those instances in which that responsibility is specifically assigned to some other person by the Board; and in general, the president shall discharge all duties incident to the office of president and such other duties as may be prescribed by the Board from time to time. Except in those instances in which the authority to execute is expressly delegated to another officer or agent of the Company, or a different mode of execution is expressly prescribed by the Board or these Bylaws, the president may execute for the Company, certificates for its Shares, and any contracts, deeds, mortgages, bonds or other instruments which the Board have authorized to be executed, and the president may accomplish such execution either under or without the seal of the Company, or either individually or with the secretary, any assistant secretary or any other officer thereunto authorized by the Board, according to the requirements of the form of the instrument or applicable law. The president may vote all securities which the Company is entitled to vote, except as and to the extent such authority shall be vested in a different officer or agent of the Company by the Board.

SECTION 7. VICE PRESIDENT. The vice president (or in the event there be more than one vice president, each of the vice presidents), if one shall be elected, shall assist the president in the discharge of the president’s duties, as the president may direct, and shall perform such other duties as from time to time may be assigned to him or her by the president or by the Board. In the absence of the president or in the event of the president’s inability or refusal to act, the vice president (or in the event there be more than one vice president, the vice presidents in the order designated by the Board, or in the absence of any designation, then in the order of seniority of tenure as vice president) shall perform the duties of the president, and when so acting, shall have the powers of and be subject to all the restrictions upon the president. Except in those instances in which the authority to execute is expressly delegated to another officer or agent of the Company, or a different mode of execution is expressly prescribed by the Board or these Bylaws, the vice president (or each of them if there are more than one) may execute for the Company, certificates for its Shares and any contracts, deeds, mortgages, bonds or other instruments which the Board have authorized to be executed, and he or she may accomplish such execution either under or without the seal of the Company, and either individually or with the secretary, any assistant secretary or any other officer thereunto authorized by the Board, according to the requirements of the form of the instrument or applicable law.

SECTION 8. TREASURER. The treasurer shall be the chief financial officer of the Company. The treasurer shall: (i) have charge of and be responsible for the maintenance of the adequate books and records for the Company; (ii) have charge and custody of all funds and securities of the Company, and be responsible therefor and for the receipt and disbursement thereof; and (iii) perform all the duties incident to the office of treasurer and such other duties as from time to time may be assigned to him or her by the president or by the Board. If required by the Board, the treasurer shall give a bond for the faithful discharge of his or her duties in such sum and with such surety or sureties as the Board may determine.

SECTION 9. SECRETARY. The secretary shall: (i) record the minutes of the Stockholders’ and of the Board of Directors’ meetings in one or more books provided for that purpose; (ii) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (iii) be custodian of the corporate books and records and of the seal of the Company; (iv) keep a register of the post-office address of each Stockholder which shall be furnished to the secretary by such Stockholder; (v) sign with the chairman or the president or a vice president or any other officer thereunto authorized by the Board, certificates for the Shares, and any contracts, deeds, mortgages, bonds or other instruments which the Board have

authorized to be executed, according to the requirements of the form of the instrument or applicable law, except when a different mode of execution is expressly prescribed by the Board or these Bylaws; (vi) have general charge of the stock transfer books of the Company; and (vii) perform all duties incident to the office of secretary and such other duties as from time to time may be assigned to him or her by the president or by the Board.

SECTION 10. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. The assistant treasurers and assistant secretaries shall perform such duties as shall be assigned to them by the Board. When the secretary is unavailable, any assistant secretary may sign with the president, or a vice president, or any other officer thereunto authorized by the Board, any contracts, deeds, mortgages, bonds or other instruments according to the requirements of the form of the instrument or applicable law, except when a different mode of execution is expressly prescribed by the Board or these Bylaws. The assistant treasurers shall if required by the Board, give bonds for the faithful discharge of their duties in such sums and with such sureties as the Board shall determine.

SECTION 11. SALARIES. The salaries of the officers shall be fixed from time to time by the Board (or an appropriately designated committee of the Board) and no officer shall be prevented from receiving such salary by reason of the fact that he is also a Director of the Company.

ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS

SECTION 1. CONTRACTS. The Board may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Company and such authority may be general or confined to specific instances.

SECTION 2. LOANS. No loans shall be contracted on behalf of the Company and no evidences of indebtedness shall be issued in its name, unless authorized by a resolution of the Board. Such authority may be general or confined to specific instances.

SECTION 3. CHECKS, DRAFTS, ETC.All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Company shall be signed by such officer or officers or agent or agents of the Company and in such manner as shall from time to time be determined by resolution of the Board.

SECTION 4. DEPOSITS. All funds of the Company not otherwise employed shall be deposited from time to time to the credit of the Company in such banks, trust companies or other depositories as the Board may designate.

ARTICLE VI
SHARES OF EQUITY STOCK

SECTION 1. RECORDS AND CERTIFICATES. Records shall be kept by or on behalf of the Company, which shall contain the names and addresses of Stockholders, the number of Shares held by them, respectively, and the number of certificates, if any, representing the Shares, and in which there shall be recorded all transfers of Shares. Every Stockholder shall be entitled to a certificate signed by the chairman, or the president or a vice president, and by the secretary or an assistant secretary of the Company, certifying the class and number of Shares owned by him in the Company, provided that any and all signatures on a certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Company with the same effect as if he or it were such officer, transfer agent or registrar at the date of issue. Each certificate representing Shares which are restricted as to their transferability or voting powers, which are preferred or limited as to their dividends or as to their allocable portion of the assets of the Company upon liquidation or which are redeemable at the option of the Company, shall have a statement of such restriction, limitation, preference or redemption provision, or a summary thereof, plainly stated on the certificate. In lieu of such statement or summary, the Company may set forth upon the face or back of the certificate a statement that the Company will furnish to any Stockholder, upon request and without charge, a full statement of such information.

SECTION 2. TRANSFER AGENTS AND REGISTRARS. The Company may serve as the transfer agent and registrar of the Shares, or the Board may, in its discretion, appoint one or more responsible banks or trust companies as the board may deem advisable, from time to time, to act as transfer agents and registrars of Shares. No certificate for Shares shall be valid until countersigned by the transfer agent and registered by the registrar.

SECTION 3. STOCKHOLDERS’ ADDRESSES. Every Stockholder or transferee shall furnish the secretary or a transfer agent with the address to which notice of meetings and all other notices may be served upon or mailed to such Stockholder or transferee, and in default thereof, such Stockholder or transferee shall not be entitled to service or mailing of any such notice.

SECTION 4. LOST CERTIFICATES. In the event a certificate for Shares is lost, stolen or destroyed, the Board, in its discretion, or any transfer agent duly authorized by the Board in its discretion, may authorize the issue of a substitute certificate in place of the certificate so lost, stolen or destroyed. The Company may require the owner of the lost, stolen or destroyed certificate or his legal representative to give the Company a bond sufficient to indemnify the Company against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertified Shares.

SECTION 5. DISTRIBUTIONS TO STOCKHOLDERS. To the extent permitted by the MGCL and subject to any restrictions contained in the Articles, the Directors may declare and pay dividends upon the Shares in the manner and upon the terms and conditions provided by the MGCL and the Articles.

SECTION 6. RECORD DATES. The Board may set, in advance, a record date for the purpose of determining Stockholders entitled to notice of or to vote at any meeting of Stockholders, or Stockholders entitled to receive payment of any dividend or the allotment of any other rights, or in order to make a determination of Stockholders for any other proper purpose. Such date, in any case, shall not be prior to the close of business on the day the record date is fixed and shall be not more than 90 days and, in the case of a meeting of Stockholders, not less than ten days, before the date on which the meeting or particular action requiring such determination of Stockholders is to be held or taken.

In lieu of fixing a record date, the Board may provide that the stock transfer books shall be closed for a stated period but not longer than 20 days. If the stock transfer books are closed for the purpose of determining Stockholders entitled to notice of or to vote at a meeting of Stockholders, such books shall be closed for at least ten days before the date of such meeting.

If no record date is fixed and the stock transfer books are not closed for the determination of Stockholders: (a) the record date for the determination of Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day on which the notice of meeting is mailed or the 30th day before the meeting, whichever is the closer date to the meeting; and (b) the record date for the determination of Stockholders entitled to receive payment of a dividend or an allotment of any other rights shall be the close of business on the day on which the resolution of the Directors, declaring the dividend or allotment of rights, is adopted.

When a determination of Stockholders entitled to vote at any meeting of Stockholders has been made as provided in this Section 6, such determination shall apply to any adjournment thereof, except where the determination has been made through the closing of the transfer books and the stated period of closing has expired.

SECTION 7. TRANSFERS OF SHARES. Shares of the Company may be transferred by delivery of the certificates therefor, accompanied either by an assignment in writing on the back of the certificates, or by written power of attorney to sell, assign and transfer the same, signed by the record holder thereof; but no transfer shall affect the right of the Company to pay any distribution upon the Shares to the holder of record thereof, or to treat the holder of record as the holder in fact thereof for all purposes, and no transfer shall be valid, except between the parties thereto, until such transfer shall have been made upon the books of the Company.

SECTION 8. REPURCHASE OF SHARES ON OPEN MARKET. The Company may purchase its Shares on the open market and invest its assets in its own Shares, provided that in each case the consent of the Board shall have been obtained.

ARTICLE VII
INDEMNIFICATION AND INSURANCE

Capitalized terms used in this Article VII and not otherwise defined shall have the meanings set forth in the Articles.

SECTION 1. INDEMNIFICATION.

(a)Subject to paragraphs (b), (c) and (d) of this Section 1, the Company shall, to the fullest extent permitted by Maryland statutory or decisional law, as amended or interpreted and, without limiting the generality of the foregoing, in accordance with Section 2-418 of the MGCL, indemnify and pay, advance or reimburse reasonable expenses to any Director, officer, employee and agent of the Company and the Advisor and its Affiliates (each an “Indemnified Party”).

(b)As long as the Company qualifies as a REIT, it shall not indemnify nor pay, advance or reimburse expenses to an Indemnified Party unless: (i) the Indemnified Party has determined, in good faith, that the course of conduct which caused the loss or liability was in the best interest of the Company; (ii) the indemnified Party was acting on behalf of or performing services on the part of the Company; (iii) such liability or loss was not the result of negligence or misconduct on the part of the Indemnified Party except that in the event the Indemnified Party is or was an Independent Director, such liability or loss shall not have been the result of gross negligence or willful misconduct; and (iv) such indemnification or agreement to be held harmless is recoverable only out of the Net Assets of the Company and not from the Stockholders.

(c)As long as the Company qualifies as a REIT and notwithstanding anything to the contrary in Section l(b) of this Article VII, the Company shall not indemnify a Director, officer, employee or agent of the Company or the Advisor or its Affiliates for losses, liabilities or expenses arising from or out of an alleged violation of federal or state securities laws by such party unless one or more of the following conditions are met: (i) there has been a successful adjudication on the merits of each count involving alleged securities law violations as to the particular Indemnified Party; (ii) such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to the particular Indemnified Party; or (iii) a court of competent jurisdiction approves a settlement of the claims and finds that indemnification of the settlement and related costs should be made and the court considering the request has been advised of the position of the Securities and Exchange Commission and the published opinions of any state securities regulatory authority in which securities of the Company were offered or sold as to indemnification for violations of securities laws.

(d)The Company may advance amounts to an Indemnified Party for legal and other expenses and costs incurred as a result of any legal action for which indemnification is being sought only in accordance with Section 2-418 of the Maryland General Corporation Law, and, as long as the Company qualifies as a REIT, only if all of the following conditions are satisfied: (i) the legal action relates to acts or omissions with respect to the performance of duties or services by the Indemnified Party for or on behalf of the Company; (ii) the legal action is initiated by a third party who is not a Stockholder or the legal action is initiated by a Stockholder acting in his or her capacity as such and a court of competent jurisdiction specifically approves such advancement; and (iii) the Indemnified Party receiving such advances undertakes in writing to repay the advanced funds to the Company, together with the applicable legal rate of interest thereon, in cases in which such party is found not to be entitled to indemnification.

(c)Neither the amendment nor repeal of this Article VII, nor the adoption or amendment of any other provision of the Bylaws or the Articles inconsistent with this Article VII, shall apply to or affect in any respect the applicability of the preceding paragraphs with respect to any act or failure to act which occurred prior to such amendment, repeal or adoption.

SECTION 2. INDEMNIFICATION INSURANCE. The Company shall have the power to purchase and maintain insurance on behalf of an indemnified party against any liability asserted which was incurred in any such capacity with the Company, or arising out of such status; provided, however, that the Company shall not incur the costs of any liability insurance which insures any person against liability for which he, she or it could not be indemnified under

the provisions of this Article VII. Nothing contained herein shall constitute a waiver by any Indemnified Party of any right which he, she or it may have against any party under federal or state securities laws.

ARTICLE VIII

SEAL

SECTION 1. SEAL. The Board may authorize the adoption of a seal by the Company. The seal shall have inscribed thereon the name of the Company and the year of its organization. The Board may authorize one or more duplicate seals and provide for the custody thereof.

SECTION 2. AFFIXING SEAL.Whenever the Company is required to place its seal to a document, it shall be sufficient to meet the requirements of any law, rule or regulation relating to a seal to place the word “(SEAL)” adjacent to the signature of the person authorized to execute the document on behalf of the Company.

ARTICLE IX
AMENDMENTS

Unless otherwise provided in the Articles, these Bylaws may be altered, amended or repealed and new Bylaws, not inconsistent with the Articles or the laws of the State of Maryland or other applicable law, may be adopted at any properly constituted meeting of the Board by a majority vote of the Directors present at the meeting, except that in the case of a matter which requires greater than a majority vote of the Directors, any amendment with respect to such matter must be approved by a vote of Directors equal to or greater than the number of votes required under these Bylaws to effectuate the matter in question.

EX-10.2.1

Exhibit 10.2.1

AMENDED AND RESTATED
ADVISORY AGREEMENT

This AMENDED AND RESTATED ADVISORY AGREEMENT (this “Agreement”) is made as of December 28, 2004 between Inland Western Retail Real Estate Trust, Inc., a Maryland corporation (the “Company”), and Inland Western Retail Real Estate Advisory Services, Inc., an Illinois corporation (the “Advisor”).

W I T N E S S E T H:

WHEREAS, the Company and the Advisor have agreed to enter into this Agreement to cause the Advisor to provide certain services with respect to the Property (as defined below) on behalf of the Company; and

NOW, THEREFORE, in consideration of the mutual covenants herein set forth, the parties hereto agree as follows:

1.DEFINITIONS.  As used herein, the following terms shall have the meanings set forth below:

a)“Acquisition Expenses” means expenses related to the Company’s selection, evaluation and acquisition of, and investment in, properties, whether or not acquired or made, including but not limited to legal fees and expenses, travel and communications expenses, cost of appraisals and surveys, nonrefundable option payments on property not acquired, accounting fees and expenses, computer use related expenses, architectural and engineering reports, environmental and asbestos audits, title insurance and escrow fees, loan fees or points or any fee of a similar nature, however designated, and personnel and miscellaneous expenses related to the selection and acquisition of properties. Acquisition Expenses will accrue and be paid on Properties purchased with the Gross Offering Proceeds and proceeds of Shares sold via the Company’s Distribution Reinvestment Program, as well as on the entire purchase price of all Properties including any acquisition financing related thereto.

b)“Advisor Asset Management Fee” means an amount equal to 1% of the Average Invested Assets.

c)“Affiliate” means, with respect to any other Person: (i) any Person directly or indirectly owning, controlling or holding, with the power to vote 10% or more of the outstanding voting securities of such other Person; (ii) any Person 10% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held, with the power to vote, by such other Person; (iii) any Person directly or indirectly controlling, controlled by or under common control with such other Person; (iv) any executive officer, director, trustee or general partner of such other Person; and (v) any legal entity for which such Person acts as an executive officer, director, trustee or general partner.

d)“Affiliated Directors” means those Directors of the Company who are affiliated with the Company or its Affiliates.

e)“Articles of Incorporation” means the Articles of Incorporation of the Company, as amended from time to time.

f)“Average Invested Assets” means, for any period, the average of the aggregate Book Value of the assets of the Company invested, directly or indirectly, in equity interests and in loans secured by real estate, before reserves for depreciation or bad debts or other similar noncash reserves, computed by taking the average of such values at the end of each month during such period.

g)“Board of Directors” means the board of directors of the Company.

h)“Book Value” of an asset means the value of such asset on the books of the Company, before allowance for depreciation or amortization.

i)“Code” means the Internal Revenue Code of 1986, as amended.

j)“Company Fixed Assets” means the real estate, together with the buildings, leasehold interests, improvements, equipment, furniture, fixtures and personal property associated therewith, used by the Company in the conduct of its business.

k)“Competitive Real Estate Commission” means the real estate or brokerage commission paid for the purchase or sale of a Property which is reasonable, customary and competitive in light of the size, type and location of such Property.

l)“Contract Price for the Property” means the amount actually paid or allocated to the purchase, development, construction or improvement of a Property exclusive of Acquisition Expenses.

m)“Cumulative Return” means a cumulative, non-compounded return, equal to 6% per annum on Invested Capital commencing upon acceptance of the investor’s subscription.

n)“Current Return” means a noncumulative, noncompounded return, equal to 7% per annum on Invested Capital.

o)“Fiscal Year” means any period for which any income tax return is submitted by the Company to the Internal Revenue Service and which is treated by the Internal Revenue Service as a reporting period.

p)“Gross Dollars Invested in Properties” means the amount actually paid or allocated to the purchase, development, construction or improvement of Properties acquired by the Company.

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q)“Gross Offering Proceeds” means the total proceeds from the sale of the 250,000,000 Shares offered on “best efforts” basis during the public offering period before deductions for Offering Expenses. For purposes of calculating Gross Offering Proceeds, the purchase price for all Shares, including those for which volume discounts apply, shall be deemed to be $10 per Share. Unless specifically included, Gross Offering Proceeds does not include the total proceeds from the sale of up to 20,000,000 Shares under the Company’s Distribution Reinvestment Program during the public offering period, the purchase price for which shall be $9.50 per Share;

r)“Gross Revenues From Properties” means all cash receipts derived from the operation of Company Fixed Assets.

s)“Incentive Advisory Fee” means an amount equal to 15% of the net proceeds from the sale of a Property after the Stockholders have first received: (i) their Cumulative Return; and (ii) a return of their Invested Capital.

t)“Independent Directors” means the Directors of the Company who: (i) are not affiliated and have not been affiliated within the two years prior to their becoming an Independent Director, directly or indirectly, with the Company, the Sponsor or the Advisor, whether by ownership of, ownership interest in, employment by, any material business or professional relationship with, or as an officer or director of the Company, the Sponsor, the Advisor or any of their Affiliates; (ii) do not serve as a director for more than two other REITs organized by the Company or the Advisor or advised by the Advisor; and (iii) perform no other services for the Company, except as Directors. For this purpose, an indirect relationship shall include circumstances in which a member of the immediate family of a Director has one of the foregoing relationships with the Company, the Sponsor or the Advisor or any of their Affiliates. For purposes of determining whether or not the business or professional relationship is material, the aggregate gross revenue derived by the prospective Independent Director from the Company, the Sponsor, the Advisor and their Affiliates shall be deemed material PER SE if it exceeds five percent of the prospective Independent Director’s: (i) annual gross revenue, derived from all sources, during either of the last two years; or (ii) net worth, on a fair market value basis.

u)“Invested Capital” means the original issue price paid for the Shares reduced by prior distributions from the sale or financing of the Company’s Properties.

v)“IREIC” means Inland Real Estate Investment Corporation, which is a wholly-owned subsidiary of The Inland Group, Inc. The Advisor is a wholly owned subsidiary of IREIC. IREIC is the Sponsor of the Company.

w)“IWRREAI” means Inland Western Retail Real Estate Acquisitions, Inc.

x)“Management Agent” means an entity which provides property rental, leasing, operation and management services to the Company. The Management Agent is

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Inland Southeast Property Management Corp., an Affiliate of the Advisor, or anyone which succeeds it in such capacity.

y)“Net Income” means, for any period, total revenues applicable to such period, less the expenses applicable to such period other than additions to or allowances for reserves for depreciation, amortization or bad debts or other similar noncash reserves; provided, however, that Net Income shall not include the gain from the sale of the Company’s assets.

z)“Offering” means the offering of Shares of the Company pursuant to the Prospectus.

aa)“Offering Expenses” means all those expenses incurred by and to be paid from the assets of the Company in connection with and in preparing the Company for registration and subsequently offering and distributing Shares to the public, including, but not limited to, total underwriting and brokerage discounts and commissions (including fees and expenses of underwriters and their accountants and attorneys paid by the Company), expenses for printing, engraving, mailing, salaries of the Company’s employees while engaged in sales activity, charges of transfer agents, registrars, trustees, escrow holders, depositaries, experts, expenses of qualification of the sale of the securities under federal and state laws, including taxes and fees, and accountants’ and attorneys’ fees and expenses.

bb)“Person” means any individual, corporation, business trust, estate, trust, partnership, limited liability company, association, two or more persons having a joint or common interest, or any other legal or commercial entity.

cc)“Primary Geographical Area of Investment” of the Company means the states west of the Mississippi River in the United States.

dd)“Property” or “Properties” means any, or all, respectively, of the real property and improvements thereon owned or to be owned by the Company, directly or indirectly.

ee)“Property Disposition Fee” means a real estate disposition fee, payable (under certain conditions) to the Advisor and its Affiliates upon the sale of the Company’s Property in an amount equal to the lesser of: (i) 3% of the contracted for sales price of the Property; or  (ii) 50% of the commission paid to third parties which is reasonable, customary and competitive in light of the size, type and location of such Property.

ff)“Property Management Fee” means any fee paid to an Affiliate or third party as compensation for management of the Company’s Properties. The Property Management Fee shall be equal to not more than 90% of the fee which would be payable to an unrelated party providing such services, which fee shall initially be 4.5% of the gross revenues from the Properties.

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gg)“Prospectus” means the final prospectus of the Company in connection with the registration of Shares filed with the Securities and Exchange Commission on Form S-11, as amended and supplemented.

hh)“Real Property” means improved and unimproved land, improvements, furniture and fixtures located on or used in connection with, land and any interest in any of the foregoing, including an interest in air and subterranean or mineral rights.

ii)“REIT” means a real estate investment trust as defined in Sections 856 through 860 of the Code.

jj)“Retail Center” means real estate primarily improved for use as retail establishments, principally multi-tenant shopping centers.

kk)“Shares” means the shares of common stock, par value $.001 per share, of the Company, and “Share” means one of those Shares.

ll)“Shopping Center” means a group of commercial establishments planned, developed, owned and managed as a unit related in location, size and type of shops to the trade area the unit serves. It provides on-site parking in definite relationship to the types and sizes of stores.”Sponsor” means IREIC.

mm) “Stockholders” means holders of Shares.

nn)“Total Operating Expenses” means the aggregate expenses of every character paid or incurred by the Company as determined under generally accepted accounting principles, including Advisor Asset Management Fees, but excluding:

i)the expenses of raising capital such as Offering Expenses, legal, audit, accounting, underwriting, brokerage, listing, registration and other fees, printing and other such expenses, and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Shares;

ii)interest payments;

iii)taxes;

iv)noncash expenditures such as depreciation, amortization and bad debt reserves;

v)the Incentive Advisory Fee payable to the Advisor; and

vi)Acquisition Expenses, real estate commissions on resale of Real Property and other expenses connected with the acquisition, disposition and ownership of real estate interests, mortgage loans or other property (such as the costs of foreclosure, insurance premiums, legal services, maintenance, repair and improvement of Real Property).

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2.DUTIES OF ADVISOR.  The Advisor shall consult with the Company and shall, at the request of the Board of Directors or the officers of the Company, furnish advice and recommendations with respect to all aspects of the business and affairs of the Company. In general, the Advisor shall inform the Board of Directors of factors which come to its attention which would influence the policies of the Company. Subject to the supervision of the Board of Directors and consistent with the provisions of the Articles of Incorporation, the Advisor shall use its best efforts to:

a)Present to the Company a continuing and suitable real estate investment program and opportunities to make investments in Real Properties consistent with the investment policies of the Company and the investment program adopted by the Board of Directors and in effect at the time and furnish the Company with advice with respect to the making, acquisition, holding and disposition of investments and commitments therefor. In presenting investment opportunities hereunder, the Advisor shall comply with, and be subject to, the provisions of that certain Property Acquisition Service Agreement, dated the date hereof, among IWRREAI, the Advisor, and the Company (the “Property Acquisition Service Agreement”), as the same may be amended from time to time. To the extent possible, the resolution of conflicting investment opportunities between the Company and other investment entities advised or managed by the Advisor and its Affiliates for a prospective investment opportunity (a “Proposed Property”) will be resolved by giving priority to the Company, provided that the Proposed Property meets the acquisition criteria of the Company. The Property Acquisition Service Agreement grants the Company the first opportunity to purchase such Proposed Property which is placed under contract by IREAI, the Advisor or its Affiliates, provided the Company is able to close the purchase of the Proposed Property within 60 days.  Other factors which may be considered in connection with evaluating the suitability of the Proposed Property for investment include:

i)the effect of the acquisition on the diversification of each entity’s portfolio; (ii) the amount of funds available for investment;

ii)cash flow; and

iii)the estimated income tax effects of the purchase and subsequent disposition. The Independent Directors of the Company must, by a majority vote, approve all actions by the Advisor or its Affiliates which present potential conflicts with the Company as set forth in the Property Acquisition Service Agreement.

b)Manage the Company’s day-to-day investment operations, subject to the final paragraph of this Section 2, to effect the investment program adopted by the Board of Directors and perform or supervise the performance of such other administrative functions necessary in connection with the management of the Company as may be agreed upon by the Advisor and the Company;

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c)Serve as the Company’s investment advisor, subject to the final paragraph of this Section 2, in connection with policy decisions to be made by the Board of Directors and, as requested, furnish reports to the Board of Directors and provide research, economic and statistical data in connection with the Company’s investments and investment policies;

d)On behalf of the Company, investigate, select and conduct relations with lenders, consultants, accountants, brokers, property managers, attorneys, underwriters, appraisers, insurers, corporate fiduciaries, banks, builders and developers, sellers and buyers of investments and persons acting in any other capacity specified by the Company from time to time, and enter into contracts with, retain and supervise services performed by such parties in connection with investments which have been or may be acquired or disposed of by the Company;

e)Cooperate with the Management Agent in connection with property management services and other activities relating to the Company’s assets as the Advisor shall deem appropriate in the particular circumstances, subject to the requirement that the Advisor or the Management Agent, as the case may be, qualifies as an “independent contractor” as that phrase is used in connection with applicable laws, rules and regulations affecting REITs that own Real Property;

f)Upon request of the Company, act, or obtain the services of others to act, as attorney-in-fact or agent of the Company in making, acquiring and disposing of investments, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Company and handling, prosecuting and settling any claims of the Company, including foreclosing and otherwise enforcing mortgage and other liens and security interests securing investments;

g)Assist in negotiations on behalf of the Company with investment banking firms and other institutions or investors for public or private sales of securities of the Company or for other financing on behalf of the Company, but in no event in such a way that the Advisor shall be acting as a broker, dealer, underwriter or investment advisor in securities of or for the Company;

h)Maintain, with respect to any Real Property and to the extent available, title insurance or other assurance of title and customary fire, casualty and public liability insurance;

i)Upon request of the Board of Directors, and subject to the final paragraph of this Section 2, invest and reinvest any money of the Company;

j)Supervise the preparation and filing and distribution of returns and reports to governmental agencies and to investors and act on behalf of the Company in connection with investor relations;

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k)Provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;

l)Advise the Company of the operating results of the Company properties, to cause the Manager to prepare on a timely basis, and to review, for such properties operating budgets, maintenance and improvement schedules, one, three and five year projections of operating results and such other reports as may be appropriate;

m)As requested by the Company, make reports to the Company of its performance of the foregoing services and furnish advice and recommendations with respect to other aspects of the business of the Company;

n)Prepare on behalf of the Company all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies;

o)Undertake and perform all services or other activities necessary and proper to carry out the investment objectives of the Company; and

p)Undertake communications with Stockholders in accordance with applicable law and the Articles of Incorporation, provided, however, that Affiliates of the Advisor have no obligations to the Company other than as expressly stated herein, and the Advisor and its Affiliates have no obligations to present to the Company any specific investment opportunity except as described in the Prospectus. In providing advice and services as provided in subparagraphs (a) through (p) above of this Section 2, the Advisor shall not (i) engage in any activity which would require it to be registered as an “Investment Advisor,” as that term is defined in the Investment Advisors Act of 1940 OR in any state securities law or (ii) cause the Company to make such investments as would cause the Company to become an “Investment Company,” as that term is defined in the Investment Company Act of 1940.

3.NO PARTNERSHIP OR JOINT VENTURE.  The Company and the Advisor are not, and shall not be deemed to be, partners or joint venturers with each other.

4.RECORDS.  The Advisor shall maintain appropriate books of account and records relating to services performed hereunder, which shall be accessible for inspection by the Company at any time during ordinary business hours.

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5.REIT QUALIFICATIONS.  Notwithstanding any other provision of this Agreement to the contrary, the Advisor shall refrain from any action which, in its reasonable judgment or in any judgment of the Board of Directors of which the Advisor has written notice, would adversely affect the qualification of the Company as a REIT under the Code or which would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or its securities, or which would otherwise not be permitted by the Articles of Incorporation. If any such action is ordered by the Board of Directors, the Advisor shall promptly notify the Board of Directors of the Advisor’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Articles of Incorporation and shall refrain from taking such action pending further clarification or instruction from the Board of Directors.

6.BANK ACCOUNTS.  At the direction of the Board of Directors, the Advisor may establish and maintain bank accounts in the name of the Company, and may collect and deposit into and disburse from such accounts moneys on behalf of the Company, upon such terms and conditions as the Board of Directors may approve, provided that no funds in any such account shall be commingled with funds of the Advisor. The Advisor shall from time to time, as the Company may require, render appropriate accountings of such collections, deposits and disbursements to the Board of Directors and to the auditors of the Company.

7.FIDELITY BOND.  The Advisor shall not be required to obtain or maintain a fidelity bond in connection with the performance of its services hereunder.

8.INFORMATION FURNISHED ADVISOR.  The Board of Directors will keep the Advisor informed in writing concerning the investment and financing policies of the Company. The Board of Directors shall notify the Advisor promptly in writing of its intention to make any investments or to sell or dispose of any existing investments. The Company shall furnish the Advisor with a certified copy of all financial statements, a signed copy of each report prepared by independent certified public accountants, and such other information with regard to its affairs as the Advisor may reasonably request.

9.COMPENSATION.  The Advisor and its Affiliates shall be paid for services rendered by the Advisor under this Agreement as follows:

a)Acquisition Expenses, for the expenses attendant to Property acquisitions, in an aggregate amount not in excess of 0.5% of (i) the Gross Offering Proceeds, and (ii) the gross proceeds from the sale of up to 20,000,000 Shares pursuant to the Company’s Distribution Reinvestment Program, PROVIDED THAT the Acquisition Expenses respecting any specific Property acquired by the Company shall not exceed 6% of the gross purchase price of that Property;

b)An Advisor Asset Management Fee of not more than 1% of the Average Invested Assets. This fee will be payable quarterly in an amount equal to one fourth of 1% of the Average Invested Assets of the Company as of the last day of the immediately preceding quarter. For any year in which the Company qualifies as a REIT, the Advisor may be required to reimburse the Company certain sums as described in Section 14;

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c)Reimbursement for the cost to the Advisor and its Affiliates for:

i)the cost to the Advisor or its Affiliates of goods and services used for and by the Company and obtained from unaffiliated parties; and

ii)administrative services related thereto. “Administrative Services” include ministerial services such as typing, record keeping, preparation and dissemination of Company reports, preparation and maintenance of records regarding Stockholders, record keeping and administration of the Company’s Distribution Reinvestment and Share Repurchase Programs, preparation and dissemination of responses to Stockholder inquiries and other communications with Stockholders and any other record keeping required for Company purposes. Such reimbursements are subject to limitations imposed by Sections 10(b) and (c) hereof;

d)An Incentive Advisory Fee equal to 15% of the remaining proceeds from the sale of Real Properties after the Stockholders have first received: (i) their Cumulative Return; and (ii) the return of their Invested Capital. At such time as the business of the Advisor is acquired by or consolidated into the Company pursuant to Section 12 hereof, the Incentive Advisory Fee shall also terminate;

e)A Property Disposition Fee, payable upon the sale of a Real Property equal to the lesser of: (i) 3% of the contracted for sales price of the Real Property or (ii) 50% of the commission paid to third parties which is reasonable, customary and competitive in light of the size, type and location of such property (“Competitive Real Estate Commission”). The amount paid to the Advisor, when added to the sums paid to unaffiliated parties, shall not exceed the lesser of the Competitive Real Estate Commission or an amount equal to 6% of the contracted for sales price. Payment of such Property Disposition Fee shall be made only if the Advisor provides a substantial amount of services in connection with the sale of the particular parcel(s) of Real Property; and

f)The compensation and reimbursements paid by the Company to the Advisor and its Affiliates shall be approved by a majority of the Directors (including a majority of the Independent Directors), as being fair and reasonable to the Company and not less favorable to the Company than would be available from an unaffiliated source.

10.COMPENSATION FOR ADDITIONAL SERVICES, CERTAIN LIMITATIONS.

a)If the Company shall request the Advisor or its Affiliates to render services for the Company other than those required to be rendered by the Advisor hereunder, such additional services, if performed, will be compensated separately on terms to be agreed upon between such party and the Company from time to time in accordance with this Section. The rate of compensation for such services and any reimbursements to be paid by the Company to the Advisor and its Affiliates

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shall be approved by a majority of the Board of Directors, including a majority of the Independent Directors, as being fair and reasonable to the Company and not less favorable to the Company than would be available from an unaffiliated source.

b)In extraordinary circumstances fully justified to the official or agency administering the appropriate state securities laws, the Advisor and its Affiliates may provide other goods and services to the Company if all of the following criteria are met:

i)the goods or services must be necessary to the prudent operation of the Company;

ii)the compensation, price or fee must be equal to the lesser of 90% of the compensation, price or fee the Company would be required to pay to independent parties who are rendering comparable services or selling or leasing comparable goods on competitive terms in the same geographic location, or 90% of the compensation, price or fee charged by the Advisor or its Affiliates for rendering comparable services or selling or leasing comparable goods on competitive terms; and

iii)if at least 95% of gross revenues attributable to the business of rendering such services or selling or leasing such goods are derived from persons other than Affiliates, the compensation, price or fee charged by an unaffiliated person who is rendering comparable services or selling or leasing comparable goods must be on competitive terms in the same geographic location. Extraordinary circumstances shall be presumed only when there is an emergency situation requiring immediate action by the Advisor or its Affiliates and the goods or services are not immediately available from unaffiliated parties. Services which may be performed in such extraordinary circumstances include emergency maintenance of Company properties, janitorial and other related services due to strikes or lockouts, emergency tenant evictions and repair services which require immediate action, as well as operating and releasing properties with respect to which the leases are in default or have been terminated.

c)Permitted reimbursements shall include salaries and related salary expenses for nonsupervisory services which could be performed directly for the Company by independent parties such as legal, accounting, transfer agent, data processing and duplication. The Advisor believes that the employees of the Advisor and its Affiliates who may perform services for the Company for which reimbursement is allowed pursuant to Section 10(b) or 10(c), will have the experience and educational background, in their respective fields of expertise, appropriate for the performance of any such services.

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11.STATEMENTS.  The Advisor shall furnish to the Company not later than the 10th day of each calendar quarter, beginning with the second calendar quarter of the term of this Agreement, a statement showing the computation of any Advisor Asset Management Fee payable to it during such quarter under Section 9 hereof. The Advisor shall furnish to the Company not later than the 30th day following the end of each Fiscal Year, a statement showing a computation of: (i) the Incentive Advisory Fee, if any, payable in respect of such Fiscal Year under Section 9 hereof; and (ii) the fees or other compensation payable to the Advisor or an Affiliate of the Advisor with respect to such Fiscal Year under Sections 9 and 10 hereof. The final settlement or compensation payable under Sections 9 and 10 hereof for each Fiscal Year shall be subject to adjustments in accordance with, and upon completion of, the annual audit of the Company’s financial statements.

12.BUSINESS COMBINATION OF THE COMPANY AND THE ADVISOR.

a)From and after September 15, 2008, the Company shall have the right, but not the obligation, to acquire the entire business, affairs, operations and assets of the Advisor (collectively, the “Advisor’s Business”) in whatever form agreed upon between the Company and the Advisor (a “Business Combination”), as set forth in writing between them (“Merger Agreement”). If the Company desires to acquire the Advisor’s Business in a Business Combination, the Company shall send a written notice to the Advisor to that effect (“Election Notice”).  Any agreement with respect to a Business Combination shall contain provisions providing for: (i) the termination of this Agreement and all Advisory Agreements entered into pursuant hereto and the release or waiver of all fees payable by the Company to the Advisor under the Advisory Agreements (except for the payment of fees due and payable under the Advisory Agreements for services rendered by the Advisor up to and until the consummation of the Business Combination); and (ii) the issuance of a certain number of shares of common stock of the Company as determined below (the “Shares”) to be issued to the Advisor, or its stockholders, members or other equity holders, as the case may be, in connection with the Business Combination. The Advisor represents to the Company that the Advisor has obtained the consent of its board of directors and its shareholders to a Business Combination with the Company and that Advisor will obtain similar consents from any future shareholders, members or other equity holders of the Advisor.

b)The number of Shares to be issued by the Company to the Advisor or its shareholders, members or other equity holders as the case may be, shall be determined as follows: The net income of the Advisor for the calendar month immediately preceding the month in which the Merger Agreement is executed, as determined by an independent audit conducted in accordance with generally accepted auditing standards, shall be annualized (the “Annual Net Income”). The Annual Net Income shall then be multiplied by ninety percent (90%) and then divided by the “Funds from Operations per Weighted Average Share” of the Company.  “Funds from Operations per Weighted Average Share” shall be equal to the annualized Funds from Operations, on the basis of four (4) times the Funds from Operations for the fiscal quarter immediately preceding the

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month in which the Merger Agreement is executed, per weighted average Share of the Company for such quarter as stated in the quarterly report on Form 10-Q of the Company given to its shareholders for such quarter.  The resulting quotient shall constitute the number of Shares to be issued by the Company to the Advisor or its shareholders, members or other equity holders as the case may be, with delivery thereof and the closing of the Business Combination to occur within ninety (90) days after the date the Election Notice is given to Advisor.  Any such transaction will occur, if at all, only if the Board of Directors of the Company obtains a fairness opinion from an investment banking or valuation firm to the effect that the consideration to be paid for the Business Combination is fair, from a financial point of view, to the Company.

13.EXPENSES OF THE COMPANY.  The Company shall pay all of its expenses and shall reimburse the Advisor for its expenses as provided in Sections 9 and 10 hereof and, without limiting the generality of the foregoing, it is agreed that the following expenses of the Company shall be paid by the Company:

a)To the extent the Advisor is not expressly required to pay such expenses pursuant to this Agreement, salaries and other employment expenses of the personnel employed by the Company, Directors’ fees and expenses incurred in attending Directors meetings, travel and other expenses incurred by Directors, officers and employees of the Company and the cost of Directors’ liability insurance;

b)The cost of borrowed moneys;

c)All taxes applicable to the Company;

d)Legal, accounting, auditing, underwriting, brokerage, listing, registration and other expenses and taxes incurred in connection with the organization or termination of the Company, the issuance, distribution, transfer, registration and stock exchange or quotation system listing of the Company’s securities;

e)Fees and expenses paid to advisors, independent contractors, the Management Agent, consultants, managers and other agents employed directly by the Company or by the Advisor at the Company’s request for the account of the Company or by Affiliates of the Advisor, as provided above;

f)Expenses in connection with the acquisition, disposition, leasing and ownership of investments, including to the extent not paid by others, but not limited to, legal fees and other expenses of professional services, maintenance, repair and improvement of property and brokerage and sales commissions, expenses of maintaining and managing Real Property equity interests (including the fees and charges of the Management Agent);

g)All insurance costs incurred in connection with the Company;

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h)Expenses connected with payments of dividends or interest or distributions in cash or in any form made or caused to be made by the Board of Directors to holders of securities of the Company;

i)All expenses connected with communications to holders of securities of the Company and the other bookkeeping and clerical work necessary in maintaining relations with holders of securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies, including the cost of printing and mailing certificates for securities and proxy solicitation materials and reports to holders of the Company’s securities;

j)Transfer agent and registrar’s fees and charges; and

k)Expenses relating to any office or office facilities maintained by the Company separate from the office or offices of the Advisor.

14.REIMBURSEMENT BY ADVISOR.  The Advisor shall be obligated to reimburse the Company in the following circumstances:

a)On or before the 15th day after the completion of the annual audit of the Company’s financial statements for each Fiscal Year, the Advisor will reimburse the Company for the amounts, if any, (i) by which the Total Operating Expenses (including the Advisor Asset Management Fee) of the Company for such Fiscal Year exceeded the greater of: (a) 2% of the total of the Company’s Average Invested Assets for such Fiscal Year; or (b) 25% of the Net Income for such Fiscal Year; PLUS (ii) equal to any deficit between the total amount of distributions to Stockholders for such Fiscal Year and the Current Return; provided, however, that the Company may instead permit such reimbursements to be effected by a reduction in the amount of the monthly payments of compensation under Section 9(a) hereof during the balance of the Fiscal Year next following the Fiscal Year with respect to which such reimbursement is to be made; and provided, further, that only so much of such excess specified in clause (i) of this paragraph  (a) need be reimbursed as the Board of Directors, including a majority of the Independent Directors of the Company, shall determine should justifiably be reimbursed in light of such unanticipated, unusual or nonrecurring factors as may have occurred within 60 days after the end of an fiscal quarter of the Company for which Total Operating Expenses  (for the 12 months then ended) exceeded 2% of Average Invested Assets or 25% of Net Income, whichever is greater, and there shall be sent to the Stockholders a written disclosure of such fact, together with an explanation of the factors the Independent Directors considered in arriving at the conclusion that such higher Total Operating Expenses were justified.

b)If the aggregate of all Offering Expenses attendant to the Offering (including Selling Commissions and the Marketing Contribution and Due Diligence Expense Allowance) should exceed 15% of the Gross Offering Proceeds OR if the aggregate of all Offering Expenses (excluding any Selling Commissions)

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should exceed 5.5% of the Gross Offering Proceeds, the Advisor shall pay directly and/or cause its Affiliates to pay directly any such excess Offering Expenses incurred by the Company and the Company will have no liability for such excess expenses.

15.OTHER ACTIVITIES OF THE ADVISOR.  Nothing herein contained shall prevent the Advisor or an Affiliate of the Advisor from engaging in any other business or activity including the rendering of services and investment advice with respect to real estate investment opportunities to any other person or entity and the management of other investments (including the investments of the Advisor and its Affiliates).

Directors, officers, employees and agents of the Advisor or of Affiliates of the Advisor may serve as Directors, trustees, officers, employees or agents of the Company, but shall receive no compensation (other than reimbursement for expenses) from the Company for such service.

16.TERM; TERMINATION OF AGREEMENT.  This Agreement shall have an initial term of one year and, thereafter, will continue in force for successive one year renewals with the mutual consent of the parties including an affirmative vote of a majority of the Independent Directors. Each extension shall be executed in writing by both parties hereto before the expiration of this Agreement or of any extension thereof.

Notwithstanding any other provision of the Agreement to the contrary, either the Company or the Advisor may terminate this Agreement, or any extension hereof, or the parties by mutual consent or a majority of the Independent Directors may do so, in each case upon 60 days written notice without cause or penalty. In the event of the termination of the Agreement, the Advisor will cooperate with the Company and take all reasonable steps requested to assist the Board of Directors in making an orderly transition of the advisory function.

This Agreement shall terminate upon the consummation of a business combination involving the Advisor and the Company as described in Section 12.

If this Agreement is terminated pursuant to this Section, such termination shall be without any further liability or obligation of either party to the other, except as provided in Section 19.

If this Agreement is terminated for any reason other than a business combination involving the Advisor and the Company as described in Section 12, all obligations of the Advisor and its Affiliates to offer Property to the Company for purchase, as described in Section 2(a), shall also terminate.

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17.ASSIGNMENTS.  The Company may terminate this Agreement in the event of its assignment by the Advisor except an assignment to a successor organization which acquires substantially all of the property and carries on the affairs of the Advisor, provided that following such assignment the persons who controlled the operations of the Advisor immediately prior thereto all control the operations of the successor organization, including the performance of its duties under this Agreement; however, if at any time subsequent to such assignment such persons shall cease to control the operations of the successor organization, the Company may thereupon terminate this Agreement. This Agreement shall not be assignable by the Company without the consent of the Advisor, except in the case of assignment by the Company to a corporation, trust or other organization which is a successor to the Company. Any assignment of this Agreement shall bind the assignee hereunder in the same manner as the assignor is bound hereunder.

18.DEFAULT, BANKRUPTCY, ETC.  At the option solely of the Company, this Agreement shall be terminated immediately upon written notice of termination from the Board of Directors to the Advisor if any of the following events occurs:

a)The Advisor violates any provisions of this Agreement and after notice of such violation shall not cure such default within 30 days; or

b)A court of competent jurisdiction enters a decree or order for relief in respect of the Advisor in any involuntary case under the applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appoints a receiver liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Advisor or for any substantial part of its property or orders the winding up or liquidation of the Advisor’s affairs; or

c)The Advisor commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, or consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Advisor or for any substantial part of its property, or makes any general assignment for the benefit of creditors, or fails generally to pay its debts as they become due.

The Advisor agrees that if any of the events specified in subsections(b) and (c) of this Section 18 occur, it will give written notice thereof to the Company within seven days after the occurrence of such event.

19.ACTION UPON TERMINATION.  The Advisor shall not be entitled to compensation after the date of termination of this Agreement for further services hereunder, but shall be paid all compensation accruing to the date of termination. Subject to the provisions of Section 12, the Advisor shall forthwith upon a termination caused by factors other than the listing for trading of the Shares on a national stock exchange or market:

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a)Pay over to the Company all moneys collected and held for the account of the Company pursuant to this Agreement, after deducting any accrued compensation and reimbursement for its expenses to which it is then entitled;

b)Deliver to the Board of Directors a full accounting, including a statement showing all payments collected by it and a statement of all money held by it, covering the period following the date of the last accounting furnished to the Board of Directors;

c)Deliver to the Board of Directors all property and documents of the Company then in the custody of the Advisor; and

d)Cooperate with the Company and take all reasonable steps requested by the Company to assist the Board of Directors in making an orderly transition of the Advisory function.

20.CHANGE OF NAME.  The Company recognizes that the name and mark “Inland” have established prestige and goodwill and have acquired valuable secondary meanings in the real estate and related industries and in the mind of the public. The Company desires to associate itself with and benefit from the “Inland” name, and in consideration of the grant by the Advisor and its Affiliates of a perpetual royalty free license to the Company (which license has been authorized), subject to the conditions set forth in this Section 20, to use the name and mark “Inland” in connection with a real estate investment trust throughout the United States, its territories and possessions, the Company agrees that:

a)The value of the “Inland” name cannot be reasonably and adequately compensated for in damages in action at law and unauthorized use of the “Inland” name will cause irreparable injury and damage to the Advisor and its Affiliates. The Advisor or its Affiliates shall be entitled as a matter of right to injunctive relief to prevent the use of the “Inland” name by the Company in the event of the circumstances described in Subsection (d) below.

b)The Company agrees to use the “Inland” name and mark in a manner which will protect the right of the Advisor and its Affiliates therein and such use shall be as licensee for the account and benefit of the Advisor and its Affiliates. To the extent any rights in the name or mark “Inland” are deemed to accrue to the Company, the Company hereby assigns any and all such rights to the Advisor and its Affiliates at such time as they may be deemed to accrue.

c)Nothing contained in this Agreement shall be construed an assignment or grant to the Company of any right, title or interest in or to the name or mark “Inland” or any other trademarks, trade names or related service marks, insignias, logos, designs and color schemes, it being understood that all rights relating thereto are reserved by the Advisor and its Affiliates, except for the license hereunder to the Company of the rights to use the name or mark as specifically and expressly provided herein. The Company agrees to cooperate fully and in good faith with the Advisor and its Affiliates, at the expense of the Advisor and its Affiliates, in

17

securing and preserving the rights of the Advisor and its Affiliates in and to the name and mark “Inland” and to assist the Advisor and its Affiliates in executing and causing to be recorded such documents as may be necessary or desirable to evidence, protect and implement the rights of the Advisor and its Affiliates pursuant to this Agreement.

d)At such time as the Advisor is no longer providing services to the Company pursuant to this Agreement for some reason other than the consummation of a business combination described in Section 12, the Board of Directors will upon the request of the Advisor and its Affiliates, promptly cause the name of the Company to be changed in perpetuity to a name which does not include any reference to the name “Inland” or any successor thereof. Without limiting the generality of the foregoing, upon termination of this Agreement by either party for some reason other than the consummation of a business combination described in Section 12, the Board of Directors will promptly cause the name of the Company to be changed in perpetuity to a name which does not include any references to the name “Inland” or any successor thereof.

21.AMENDMENTS.  This Agreement shall not be amended, changed, modified, terminated or discharged in whole or in part except by an instrument in writing signed by both parties hereto, or their respective successors or assigns, or otherwise provided herein.

22.SUCCESSORS AND ASSIGNS.  This Agreement shall bind any successors or assigns of the parties hereto as herein provided.

23.GOVERNING LAW.  The provisions of this Agreement shall be governed, construed and interpreted in accordance with the laws of the State of Illinois as at the time in effect.

24.LIABILITY AND INDEMNIFICATION.

a)The Company shall, to the fullest extent permitted by Maryland statutory or decisional law, as amended or interpreted, and, without limiting the generality of the foregoing, in accordance with Section 2418 of the General Corporation Law of Maryland, indemnify and pay or reimburse reasonable expenses to the Advisor and its Affiliates, provided, that: (i) the Advisor or other party seeking indemnification has determined, in good faith, that the course of conduct which caused the loss or liability was in the best interests of the Company; (ii) the Advisor or other person seeking indemnification was acting on behalf of or performing services on the part of the Company; (iii) such liability or loss was not the result of negligence or misconduct on the part of the indemnified party; and (iv) such indemnification or agreement to be held harmless is recoverable only out of the assets of the Company and not from the Stockholders thereof.

b)The Company shall not indemnify the Advisor or its Affiliates for losses, liabilities or expenses arising from or out of an alleged violation of federal or state securities laws by such party unless one or more of the following

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conditions are met: (i) there has been a successful adjudication on the merits of each count involving alleged securities law violations as to the particular indemnitee; (ii) such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to the particular indemnitee; or (iii) a court of competent jurisdiction approves a settlement of the claims and finds that indemnification of the settlement and related costs should be made and the court considering the request has been advised of the position of the Securities and Exchange Commission and the published opinions of any state securities regulatory authority in which securities of the Company were offered and sold with respect to the availability or propriety of indemnification for securities law violations.

c)The Company may advance amounts to persons entitled to indemnification hereunder for legal and other expenses and costs incurred as a result of any legal action for which indemnification is being sought only if all of the following conditions are satisfied: (i) the legal action relates to acts or omissions with respect to the performance of duties or services by the indemnified part for or on behalf of the Company; (ii) the legal action is initiated by a third party and a court of competent jurisdiction specifically approves such advancement; and  (iii) the indemnified party receiving such advances undertakes to repay the advanced funds to the Company, together with the applicable legal rate of interest thereon, in any case(s) in which such party is found not to be entitled to indemnification.

25.NOTICES.  Any notice, report or other communication required or permitted to be given hereunder shall be in writing unless some other method of giving such notice, report or other communication is accepted by the party to whom it is given and shall be given by being delivered at the following addresses of the parties hereto:

The Company and/or the Board of Directors:

Inland Western Retail Real Estate Trust, Inc.

2901 Butterfield Road

Oak Brook, Illinois 60523

Attention: Ms. Roberta S. Matlin, Vice President

The Advisor:

Inland Western Retail Real Estate Advisory Services, Inc.

2901 Butterfield Road

Oak Brook, Illinois 60523

Attention: President

Either party may at any time give notice in writing to the other party of a change of its address for the purpose of this Section 25.

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26.CONFLICTS OF INTEREST AND FIDUCIARY DUTIES TO THE COMPANY AND TO THE COMPANY’S STOCKHOLDERS.  The Company and the Advisor recognize that their relationship is subject to various conflicts of interest as set forth in the Prospectus. The Advisor, on behalf of itself and its Affiliates, acknowledges that the Advisor and its Affiliates have fiduciary duties to the Company and to the Company’s Stockholders. The Advisor, on behalf of itself and its Affiliates, represents and agrees (i) that the Advisor and its Affiliates will endeavor to balance the interests of the Company with the interests of the Advisor and its Affiliates in making any determination where a conflict of interest exists between the Company and the Advisor or its Affiliates; and (ii) that the actions and decisions of the Advisor and its Affiliates under this Agreement (including but not limited to actions and decisions in connection with the purchase of Properties for the Company) will be made in the manner most favorable to the Company and to the Company’s Stockholders, so as not to breach their respective fiduciary duties to the Company and to the Company’s Stockholders.

27.HEADINGS.  The section headings hereof have been inserted for convenience of reference only and shall not be construed to affect the meaning, construction or effect of this Agreement.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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IN WITNESS WHEREOF, the undersigned have executed this First Amended and Restated Advisory Agreement as of the date first above written.

COMPANY:

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.

By: /s/ Roberta S. Matlin

Title: Vice President - Administration

ADVISOR:

INLAND WESTERN RETAIL REAL ESTATE ADVISORY SERVICES, INC.

By: /s/ Robert D. Parks

Title: President

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EX-10.2.2

Exhibit 10.2.2

SECOND AMENDED AND RESTATED

ADVISORY AGREEMENT

This SECOND AMENDED AND RESTATED ADVISORY AGREEMENT (this “Agreement”) is made as of December 28, 2004 between Inland Western Retail Real Estate Trust, Inc., a Maryland corporation (the “Company”), and Inland Western Retail Real Estate Advisory Services, Inc., an Illinois corporation (the “Advisor”).

W I T N E S S E T H:

WHEREAS, the Company and the Advisor have agreed to enter into this Agreement to cause the Advisor to provide certain services with respect to the Property (as defined below) on behalf of the Company; and

NOW, THEREFORE, in consideration of the mutual covenants herein set forth, the parties hereto agree as follows:

1.DEFINITIONS. As used herein, the following terms shall have the meanings set forth below:

a)“Acquisition Expenses” means expenses related to the Company’s selection, evaluation and acquisition of, and investment in, properties, whether or not acquired or made, including but not limited to legal fees and expenses, travel and communications expenses, cost of appraisals and surveys, nonrefundable option payments on property not acquired, accounting fees and expenses, computer use related expenses, architectural and engineering reports, environmental and asbestos audits, title insurance and escrow fees, loan fees or points or any fee of a similar nature, however designated, and personnel and miscellaneous expenses related to the selection and acquisition of properties. Acquisition Expenses will accrue and be paid on Properties purchased with the Gross Offering Proceeds and proceeds of Shares sold via the Company’s Distribution Reinvestment Program, as well as on the entire purchase price of all Properties including any acquisition financing related thereto.

b)“Advisor Asset Management Fee” means an amount equal to 1% of the Average Invested Assets.

c)“Affiliate” means, with respect to any other Person: (i) any Person directly or indirectly owning, controlling or holding, with the power to vote 10% or more of the outstanding voting securities of such other Person; (ii) any Person 10% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held, with the power to vote, by such other Person; (iii) any Person directly or indirectly controlling, controlled by or under common control with such other Person; (iv) any executive officer, director, trustee or general partner of such other Person; and (v) any legal entity for which such Person acts as an executive officer, director, trustee or general partner.

d)“Affiliated Directors” means those Directors of the Company who are affiliated with the Company or its Affiliates.

e)“Articles of Incorporation” means the Articles of Incorporation of the Company, as amended from time to time.

f)“Average Invested Assets” means, for any period, the average of the aggregate Book Value of the assets of the Company invested, directly or indirectly, in equity interests and in loans secured by real estate, before reserves for depreciation or bad debts or other similar noncash reserves, computed by taking the average of such values at the end of each month during such period.

g)“Board of Directors” means the board of directors of the Company.

h)“Book Value” of an asset means the value of such asset on the books of the Company, before allowance for depreciation or amortization.

i)“Code” means the Internal Revenue Code of 1986, as amended.

j)“Company Fixed Assets” means the real estate, together with the buildings, leasehold interests, improvements, equipment, furniture, fixtures and personal property associated therewith, used by the Company in the conduct of its business.

k)“Competitive Real Estate Commission” means the real estate or brokerage commission paid for the purchase or sale of a Property which is reasonable, customary and competitive in light of the size, type and location of such Property.

l)“Contract Price for the Property” means the amount actually paid or allocated to the purchase, development, construction or improvement of a Property exclusive of Acquisition Expenses.

m)“Cumulative Return” means a cumulative, non-compounded return, equal to 10% per annum on Invested Capital commencing upon acceptance of the investor’s subscription.

n)“Current Return” means a noncumulative, non-compounded return, equal to 6% per annum on Invested Capital.

o)“Fiscal Year” means any period for which any income tax return is submitted by the Company to the Internal Revenue Service and which is treated by the Internal Revenue Service as a reporting period.

p)“Gross Dollars Invested in Properties” means the amount actually paid or allocated to the purchase, development, construction or improvement of Properties acquired by the Company.

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q)“Gross Offering Proceeds” means the total proceeds from the sale of the 250,000,000 Shares offered on “best efforts” basis during the public offering period before deductions for Offering Expenses. For purposes of calculating Gross Offering Proceeds, the purchase price for all Shares, including those for which volume discounts apply, shall be deemed to be $10 per Share. Unless specifically included, Gross Offering Proceeds does not include the total proceeds from the sale of up to 20,000,000 Shares under the Company’s Distribution Reinvestment Program during the public offering period, the purchase price for which shall be $9.50 per Share;

r)“Gross Revenues From Properties” means all cash receipts derived from the operation of Company Fixed Assets.

s)“Incentive Advisory Fee” means an amount equal to 15% of the net proceeds from the sale of a Property after the Stockholders have first received: (i) their Cumulative Return; and (ii) a return of their Invested Capital.

t)“Independent Directors” means the Directors of the Company who: (i) are not affiliated and have not been affiliated within the two years prior to their becoming an Independent Director, directly or indirectly, with the Company, the Sponsor or the Advisor, whether by ownership of, ownership interest in, employment by, any material business or professional relationship with, or as an officer or director of the Company, the Sponsor, the Advisor or any of their Affiliates; (ii) do not serve as a director for more than two other REITs organized by the Company or the Advisor or advised by the Advisor; and (in) perform no other services for the Company, except as Directors. For this purpose, an indirect relationship shall include circumstances in which a member of the immediate family of a Director has one of the foregoing relationships with the Company, the Sponsor or the Advisor or any of their Affiliates. For purposes of determining whether or not the business or professional relationship is material, the aggregate gross revenue derived by the prospective Independent Director from the Company, the Sponsor, the Advisor and their Affiliates shall be deemed material PER SE if it exceeds five percent of the prospective Independent Director’s; (i) annual gross revenue, derived from all sources, during either of the last two years; or (ii) net worth, on a fair market value basis.

u)“Invested Capital” means the original issue price paid for the Shares reduced by prior distributions from the sale or financing of the Company’s Properties.

v)“IREIC” means Inland Real Estate Investment Corporation, which is a wholly-owned subsidiary of The Inland Group, Inc. The Advisor is a wholly owned subsidiary of IREIC. IREIC is the Sponsor of the Company.

w)“IWRREAI” means Inland Western Retail Real Estate Acquisitions, Inc.

x)“Management Agent” means an entity which provides property rental, leasing, operation and management services to the Company. The Management Agent is

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collectively, Inland US Management LLC, Inland Southwest Property Management LLC and Inland Pacific Property Management LLC, each an Affiliate of the Advisor, or anyone which succeeds any of them in such capacity.

y)“Net Income” means, for any period, total revenues applicable to such period, less the expenses applicable to such period other than additions to or allowances for reserves for depreciation, amortization or bad debts or other similar noncash reserves; provided, however, that Net Income shall not include the gain from the sale of the Company’s assets.

z)“Offering” means the offering of Shares of the Company pursuant to the Prospectus.

aa)“Offering Expenses” means all those expenses incurred by and to be paid from the assets of the Company in connection with and in preparing the Company for registration and subsequently offering and distributing Shares to the public, including, but not limited to, total underwriting and brokerage discounts and commissions (including fees and expenses of underwriters and their accountants and attorneys paid by the Company), expenses for printing, engraving, mailing,salaries of the Company’s employees while engaged in sales activity, charges of transfer agents, registrars, trustees, escrow holders, depositaries, experts, expenses of qualification of the sale of the securities under federal and state laws, including taxes and fees, and accountants’ and attorneys’ fees and expenses.

bb)“Person” means any individual, corporation, business trust, estate, trust, partnership, limited liability company, association, two or more persons having a joint or common interest or any other legal or commercial entity.

cc)“Primary Geographical Area of Investment” of the Company means the states west of the Mississippi River in the United States.

dd)   “Property” or “Properties” means any, or all, respectively, of the real property and improvements thereon owned or to be owned by the Company, directly or indirectly.

ee)“Property Disposition Fee” means a real estate disposition fee, payable (under certain conditions) to the Advisor and its Affiliates upon the sale of the Company’s Property in an amount equal to the lesser of: (i) 3% of the contracted for sales price of the Property; or (ii) 50% of the commission paid to third parties which is reasonable, customary and competitive in light of the size, type and location of such Property.

ff)“Property Management Fee” means any fee paid to an Affiliate or third party as compensation for management of the Company’s Properties. The Property Management Fee shall be equal to not more than 90% of the fee which would be payable to an unrelated party providing such services, which fee shall initially be 4.5% of the gross revenues from the Properties.

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gg)“Prospectus” means the final prospectus of the Company in connection with the registration of Shares filed with the Securities and Exchange Commission on Form S-11, as amended and supplemented.

hh)“Real Property” means improved and unimproved land, improvements, furniture and fixtures located on or used in connection with, land and any interest in any of the foregoing, including an interest in air and subterranean or mineral rights.

ii)“REIT” means a real estate investment trust as defined in Sections 856 through 860 of the Code.

jj)“Retail Center” means real estate primarily improved for use as retail establishments, principally multi-tenant shopping centers.

kk)“Shares” means the shares of common stock, par value $.001 per share, of the Company, and “Share” means one of those Shares.

ll)“Shopping Center” means a group of commercial establishments planned, developed, owned and managed as a unit related in location, size and type of shops to the trade area the unit serves. It provides on-site parking in definite relationship to the types and sizes of stores. “Sponsor” means IREIC.

mm) “Stockholders” means holders of Shares.

nn)“Total Operating Expenses” means the aggregate expenses of every character paid or incurred by the Company as determined under generally accepted accounting principles, including Advisor Asset Management Fees, but excluding:

i)  the expenses of raising capital such as Offering Expenses, legal, audit, accounting, underwriting, brokerage, listing, registration and other fees, printing and other such expenses, and taxes incurred in connection with the issuance, distribution, transfer, registration and stock exchange listing of the Shares;

ii) interest payments;

iii) taxes;

iv) noncash expenditures such as depreciation, amortization and bad debt reserves;

v) the incentive Advisory Fee payable to the Advisor; and

vi) Acquisition Expenses, real estate commissions on resale of Real Property and other expenses connected with the acquisition, disposition and ownership of real estate interests, mortgage loans or other property (such as the costs of foreclosure, insurance premiums, legal services, maintenance, repair and improvement of Real Property).

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2.DUTIES OF ADVISOR. The Advisor shall consult with the Company and shall, at the request of the Board of Directors or the officers of the Company, furnish advice and recommendations with respect to all aspects of the business and affairs of the Company. In general, the Advisor shall inform the Board of Directors of factors which come to its attention which would influence the policies of the Company. Subject to the supervision of the Board of Directors and consistent with the provisions of the Articles of Incorporation, the Advisor shall use its best efforts to:

a)Present to the Company a continuing and suitable real estate investment program and opportunities to make investments in Real Properties consistent with the investment policies of the Company and the investment program adopted by the Board of Directors and in effect at the time and furnish the Company with advice with respect to the making, acquisition, holding and disposition of investments and commitments therefor. In presenting investment opportunities hereunder, the Advisor shall comply with, and be subject to, the provisions of that certain Property Acquisition Service Agreement, dated the date hereof, among IWRREAI, the Advisor, and the Company (the “Property Acquisition Service Agreement”), as the same may be amended from time to time. To the extent possible, the resolution of conflicting investment opportunities between the Company and other investment entities advised or managed by the Advisor and its Affiliates for a prospective investment opportunity (a “Proposed Property”) will be resolved by giving priority to the Company, provided that the Proposed Property meets the acquisition criteria of the Company. The Property Acquisition Service Agreement grants the Company the first opportunity to purchase such Proposed Property which is placed under contract by IREAI, the Advisor or its Affiliates, provided the Company is able to close the purchase of the Proposed Property within 60 days. Other factors which may be considered in connection with evaluating the suitability of the Proposed Property for investment include:

i)   the effect of the acquisition on the diversification of each entity’s portfolio; (ii) the amount of funds available for investment;

ii)   cash flow; and

iii)  the estimated income tax effects of the purchase and subsequent disposition. The Independent Directors of the Company must, by a majority vote, approve all actions by the Advisor or its Affiliates which present potential conflicts with the Company as set forth in the Property Acquisition Service Agreement.

b)Manage the Company’s day-to-day investment operations, subject to the final paragraph of this Section 2, to effect the investment program adopted by the Board of Directors and perform or supervise the performance of such other administrative functions necessary in connection with the management of the Company as may be agreed upon by the Advisor and the Company;

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c)Serve as the Company’s investment advisor, subject to the final paragraph of this Section 2, in connection with policy decisions to be made by the Board of Directors and, as requested, furnish reports to the Board of Directors and provide research, economic and statistical data in connection with the Company’s investments and investment policies;

d)On behalf of the Company, investigate, select and conduct relations with lenders, consultants, accountants, brokers, property managers, attorneys, underwriters, appraisers, insurers, corporate fiduciaries, banks, builders and developers, sellers and buyers of investments and persons acting in any other capacity specified by the Company from time to time, and enter into contracts with, retain and supervise services performed by such parties in connection with investments which have been or may be acquired or disposed of by the Company;

e)Cooperate with the Management Agent in connection with property management services and other activities relating to the Company’s assets as the Advisor shall deem appropriate in the particular circumstances, subject to the requirement that the Advisor or the Management Agent, as the case may be, qualifies as an “independent contractor” as that phrase is used in connection with applicable laws, rules and regulations affecting REITs that own Real Property;

f)Upon request of the Company, act, or obtain the services of others to act, as attorney-in-fact or agent of the Company in making, acquiring and disposing of investments, disbursing, and collecting the funds, paying the debts and fulfilling the obligations of the Company and handling, prosecuting and settling any claims of the Company, including foreclosing and otherwise enforcing mortgage and other liens and security interests securing investments;

g)Assist in negotiations on behalf of the Company with investment banking firms and other institutions or investors for public or private sales of securities of the Company or for other financing on behalf of the Company, but in no event in such a way that the Advisor shall be acting as a broker, dealer, underwater or investment advisor in securities of or for the Company;

h)Maintain, with respect to any Real Property and to the extent available, title insurance or other assurance of title and customary fire, casualty and public liability insurance;

i)Upon request of the Board of Directors, and subject to the final paragraph of this Section 2, invest and reinvest any money of the Company;

j) Supervise the preparation and filing and distribution of returns and reports to governmental agencies and to investors and act on behalf of the Company in connection with investor relations;

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k)Provide office space, equipment and personnel as required for the performance of the foregoing services as Advisor;

1)Advise the Company of the operating results of the Company properties, to cause the Manager to prepare on a timely basis, and to review, for such properties operating budgets, maintenance and improvement schedules, one, three and five year projections of operating results and such other reports as may be appropriate;

m)As requested by the Company, make reports to the Company of its performance of the foregoing services and furnish advice and recommendations with respect to other aspects of the business of the Company;

n)Prepare on behalf of the Company all reports and returns required by the Securities and Exchange Commission, Internal Revenue Service and other state or federal governmental agencies;

o)Undertake and perform all services or other activities necessary and proper to carry out the investment objectives of the Company; and

p)Undertake communications with Stockholders in accordance with applicable law and the Articles of Incorporation, provided, however, that Affiliates of the Advisor have no obligations to the Company other than as expressly stated herein, and the Advisor and its Affiliates have no obligations to present to the Company any specific investment opportunity except as described in the Prospectus. In providing advice and services as provided in subparagraphs (a) through (p) above of this Section 2, the Advisor shall not (i) engage in any activity which would require it to be registered as an “Investment Advisor,” as that term is defined in the Investment Advisors Act of 1940 OR in any state securities law or (ii) cause the Company to make such investments as would cause the Company to become an “Investment Company,” as that term is defined in the Investment Company Act of 1940.

3.NO PARTNERSHIP OR JOINT VENTURE. The Company and the Advisor are not, and shall not be deemed to be, partners or joint venturers with each other.

4.RECORDS. The Advisor shall maintain appropriate books of account and records relating to services performed hereunder, which shall be accessible for inspection by the Company at any time during ordinary business hours.

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5.REIT QUALIFICATIONS. Notwithstanding any other provision of this Agreement to the contrary, the Advisor shall refrain from any action which, in its reasonable judgment or in any judgment of the Board of Directors of which the Advisor has written notice, would adversely affect the qualification of the Company as a REIT under the Code or which would violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company or its securities, or which would otherwise not be permitted by the Articles of Incorporation. If any such action is ordered by the Board of Directors, the Advisor shall promptly notify the Board of Directors of the Advisor’s judgment that such action would adversely affect such status or violate any such law, rule or regulation or the Articles of Incorporation and shall refrain from taking such action pending further clarification or instruction from the Board of Directors.

6.BANK ACCOUNTS. At the direction of the Board of Directors, the Advisor may establish and maintain bank accounts in the name of the Company, and may collect and deposit into and disburse from such accounts moneys on behalf of the Company, upon such terms and conditions as the Board of Directors may approve, provided mat no funds in any such account shall be commingled with funds of the Advisor. The Advisor shall from time to time, as the Company may require, render appropriate accountings of such collections, deposits and disbursements to the Board of Directors and to the auditors of the Company.

7.FIDELITY BOND. The Advisor shall not be required to obtain or maintain a fidelity bond in connection with the performance of its services hereunder.

8.INFORMATION FURNISHED ADVISOR. The Board of Directors will keep the Advisor informed in writing concerning the investment and financing policies of the Company. The Board of Directors shall notify the Advisor promptly in writing of its intention to make any investments or to sell or dispose of any existing investments. The Company shall furnish the Advisor with a certified copy of all financial statements, a signed copy of each report prepared by independent certified public accountants, and such other information with regard to its affairs as the Advisor may reasonably request.

9.COMPENSATION.   The Advisor and its Affiliates shall be paid for services rendered by the Advisor under this Agreement as follows:

a)Acquisition Expenses, for the expenses attendant to Property acquisitions, in an aggregate amount not in excess of 0.5% of (i) the Gross Offering Proceeds, and (ii) the gross proceeds from the sale of up to 20,000,000 Shares pursuant to the Company’s Distribution Reinvestment Program, PROVIDED THAT the Acquisition Expenses respecting any specific Property acquired by the Company shall not exceed 6% of the gross purchase price of that Property;

b)An Advisor Asset Management Fee of not more than 1% of the Average Invested Assets. This fee will be payable quarterly in an amount equal to one fourth of 1 % of the Average Invested Assets of the Company as of the last day of the immediately preceding quarter. For any year in which the Company qualifies as a REIT, the Advisor may be required to reimburse the Company certain sums as described in Section 14;

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c)Reimbursement for the cost to the Advisor and its Affiliates for:

i)the cost to the Advisor or its Affiliates of goods and services used for and by the Company and obtained from unaffiliated parties; and

ii)administrative services related thereto. “Administrative Services” include ministerial services such as typing, record keeping, preparation and dissemination of Company reports, preparation and maintenance of records regarding Stockholders, record keeping and administration of the Company’s Distribution Reinvestment and Share Repurchase Programs, preparation and dissemination of responses to Stockholder inquiries and other communications with Stockholders and any other record keeping required for Company purposes. Such reimbursements are subject to limitations imposed by Sections 10(b) and (c) hereof;

d)An Incentive Advisory Fee equal to 15% of the remaining proceeds from the sale of Real Properties after the Stockholders have first received: (i) their Cumulative Return; and (ii) the return of their Invested Capital. At such time as the business of the Advisor is acquired by or consolidated into the Company pursuant to Section 12 hereof, the Incentive Advisory Fee shall also terminate;

e)A Property Disposition Fee, payable upon the sale of a Real Property equal to the lesser of: (i) 3% of the contracted for sales price of the Real Property or (ii) 50% of the commission paid to third parties which is reasonable, customary and competitive in light of the size, type and location of such property (“Competitive Real Estate Commission”). The amount paid to the Advisor, when added to the sums paid to unaffiliated parties, shall not exceed the lesser of the Competitive Real Estate Commission or an amount equal to 6% of the contracted for sales price. Payment of such Property Disposition Fee shall be made only if the Advisor provides a substantial amount of services in connection with the sale of the particular parcel(s) of Real Property; and

f)The compensation and reimbursements paid by the Company to the Advisor and its Affiliates shall be approved by a majority of the Directors (including a majority of the Independent Directors), as being fair and reasonable to the Company and not less favorable to the Company than would be available from an unaffiliated source.

10.COMPENSATION FOR ADDITIONAL SERVICES, CERTAIN LIMITATIONS.

a)If the Company shall request the Advisor or its Affiliates to render services for the Company other than those required to be rendered by the Advisor hereunder, such additional services, if performed, will be compensated separately on terms to be agreed upon between such party and the Company from time to time in accordance with this Section. The rate of compensation for such services and any reimbursements to be paid by the Company to the Advisor and its Affiliates

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shall be approved by a majority of the Board of Directors, including a majority of the Independent Directors, as being fair and reasonable to the Company and not less favorable to the Company than would be available from an unaffiliated source.

b)In extraordinary circumstances fully justified to the official or agency administering the appropriate state securities laws, the Advisor and its Affiliates may provide other goods and services to the Company if all of the following criteria are met:

i)the goods or services must be necessary to the prudent operation of the Company;

ii)the compensation, price or fee must be equal to the lesser of 90% of the compensation, price or fee the Company would be required to pay to independent parties who are rendering comparable services or selling or leasing comparable goods on competitive terms in the same geographic location, or 90% of the compensation, price or fee charged by the Advisor or its Affiliates for rendering comparable services or selling or leasing comparable goods on competitive terms; and

iii)if at least 95% of gross revenues attributable to the business of rendering such services or selling or leasing such goods are derived from persons other than Affiliates, the compensation, price or fee charged by an unaffiliated person who is rendering comparable services or selling or leasing comparable goods must be on competitive terms in the same geographic location. Extraordinary circumstances shall be presumed only when there is an emergency situation requiring immediate action by the Advisor or its Affiliates and the goods or services are not immediately available from unaffiliated parties. Services which may be performed in such extraordinary circumstances include emergency maintenance of Company properties, janitorial and other related services due to strikes or lockouts, emergency tenant evictions and repair services which require immediate action, as well to operating and releasing properties with respect to which the leases are in default or have been terminated.

c)Permitted reimbursements shall include salaries and related salary expenses for nonsupervisory services which could be performed directly for the Company by independent parties such as legal, accounting, transfer agent, data processing and duplication. The Advisor believes that the employees of the Advisor and its Affiliates who may perform services for the Company for which reimbursement is allowed pursuant to Section 10(b) or 10(c), will have the experience and educational background, in their respective fields of expertise, appropriate for the performance of any such services.

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11.STATEMENTS. The Advisor shall furnish to the Company not later than the 10th day of each calendar quarter, beginning with the second calendar quarter of the term of this Agreement, a statement showing the computation of any Advisor Asset Management Fee payable to it during such quarter under Section 9 hereof. The Advisor shall furnish to the Company not later than the 30th day following the end of each Fiscal Year, a statement showing a computation of: (i) the Incentive Advisory Fee, if any, payable in respect of such Fiscal Year under Section 9 hereof; and (ii) the fees or other compensation payable to the Advisor or an Affiliate of the Advisor with respect to such Fiscal Year under Sections 9 and 10 hereof. The final settlement or compensation payable under Sections 9 and 10 hereof for each Fiscal Year shall be subject to adjustments in accordance with, and upon completion of, the annual audit of the Company’s financial statements.

12.BUSINESS COMBINATION OF THE COMPANY AND THE ADVISOR.

a)From and after September 15, 2008, the Company shall have the right, but not the obligation, to acquire the entire business, affairs, operations and assets of the Advisor (collectively, the “Advisor’s Business”) in whatever form agreed upon between the Company and the Advisor (a “Business Combination”), as set forth in writing between them (“Merger Agreement”). If the Company desires to acquire the Advisor’s Business in a Business Combination, the Company shall send a written notice to the Advisor to that effect (“Election Notice”). Any agreement with respect to a Business Combination shall contain provisions providing for: (i) the termination of this Agreement and all Advisory Agreements entered into pursuant hereto and the release or waiver of all fees payable by the Company to the Advisor under the Advisory Agreements (except for the payment of fees due and payable under the Advisory Agreements for services rendered by the Advisor up to and until the consummation of the Business Combination); and (ii) the issuance of a certain number of shares of common stock of the Company as determined below (the “Shares”) to be issued to the Advisor, or its stockholders, members or other equity holders, as the case may be, in connection with the Business Combination. The Advisor represents to the Company that the Advisor has obtained the consent of its board of directors and its shareholders to a Business Combination with the Company and that Advisor will obtain similar consents from any future shareholders, members or other equity holders of the Advisor.

b)The number of Shares to be issued by the Company to the Advisor or its shareholders, members or other equity holders as the case may be, shall be determined as follows: The net income of the Advisor for the calendar month immediately preceding the month in which the Merger Agreement is executed, as determined by an independent audit conducted in accordance with generally accepted auditing standards, shall be annualized (the “Annual Net Income”). The Annual Net Income shall then be multiplied by ninety percent (90%) and then divided by the “Funds from Operations per Weighted Average Share” of the Company. “Funds from Operations per Weighted Average Share” shall be equal to the annualized Funds from Operations, on the basis of four (4) times the Funds from Operations for the fiscal quarter immediately preceding the

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month in which the Merger Agreement is executed, per weighted average Share of the Company for such quarter as stated in the quarterly report on Form 10-Q of the Company given to its shareholders for such quarter. The resulting quotient shall constitute the number of Shares to be issued by the Company to the Advisor or its shareholders, members or other equity holders as the case may be, with delivery thereof and the closing of the Business Combination to occur within ninety (90) days after the date the Election Notice is given to Advisor. Any such transaction will occur, if at all, only if the Board of Directors of the Company obtains a fairness opinion from an investment banking or valuation firm to the effect that the consideration to be paid for the Business Combination is fair, from a financial point of view, to the Company.

13.EXPENSES OF THE COMPANY. The Company shall pay all of its expenses and shall reimburse the Advisor for its expenses as provided in Sections 9 and 10 hereof and, without limiting the generality of the foregoing, it is agreed that the following expenses of the Company shall be paid by the Company:

a)To the extent the Advisor is not expressly required to pay such expenses pursuant to this Agreement, salaries and other employment expenses of the personnel employed by the Company, Directors’ fees and expenses incurred in attending Directors meetings, travel and other expenses incurred by Directors, officers and employees of the Company and the cost of Directors, liability insurance;

b)The cost of borrowed moneys;

c)All taxes applicable to the Company;

d)Legal, accounting, auditing, underwriting, brokerage, listing, registration and other expenses and taxes incurred in connection with the organization or termination of the Company, the issuance, distribution, transfer, registration and stock exchange or quotation system listing of the Company’s securities;

e)Fees and expenses paid to advisors, independent contractors, the Management Agent, consultants, managers and other agents employed directly by the Company or by the Advisor at the Company’s request for the account of the Company or by Affiliates of the Advisor, as provided above;

f)Expenses in connection with the acquisition, disposition, leasing and ownership of investments, including to the extent not paid by others, but not limited to, legal fees and other expenses of professional services, maintenance, repair and improvement of property and brokerage and sales commissions, expenses of maintaining and managing Real Property equity interests (including the fees and charges of the Management Agent);

g)All insurance costs incurred in connection with the Company;

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h)Expenses connected with payments of dividends or interest or distributions in cash or in any form made or caused to be made by the Board of Directors to holders of securities of the Company;

i)All expenses connected with communications to holders of securities of the Company and the other bookkeeping and clerical work necessary in maintaining relations with holders of securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies, including the cost of printing and mailing certificates for securities and proxy solicitation materials and reports to holders of the Company’s securities;

j)Transfer agent and registrar’s fees and charges; and

k)Expenses relating to any office or office facilities maintained by the Company separate from the office or offices of the Advisor.

14.REIMBURSEMENT BY ADVISOR. The Advisor shall be obligated to reimburse the Company in the following circumstances:

a)On or before the 15th day after the completion of the annual audit of the Company’s financial statements for each Fiscal Year, the Advisor will reimburse the Company for the amounts, if any, (i) by which the Total Operating Expenses (including the Advisor Asset Management Fee) of the Company for such Fiscal Year exceeded the greater of: (a) 2% of the total of the Company’s Average Invested Assets for such Fiscal Year; or (b) 25% of the Net Income for such Fiscal Year; PLUS (ii) equal to any deficit between the total amount of distributions to Stockholders for such Fiscal Year and the Current Return; provided, however, that the Company may instead permit such reimbursements to be effected by a reduction in the amount of the monthly payments of compensation under Section 9(a) hereof during the balance of the Fiscal Year next following the Fiscal Year with respect to which such reimbursement is to be made; and provided, further, that only so much of such excess specified in clause (i) of this paragraph  (a) need be reimbursed as the Board of Directors, including a majority of the Independent Directors of the Company, shall determine should justifiably be reimbursed in light of such unanticipated, unusual or nonrecurring factors as may have occurred within 60 days after the end of an fiscal quarter of the Company for which Total Operating Expenses (for the 12 months then ended) exceeded 2% of Average Invested Assets or 25% of Net Income, whichever is greater, and there shall be sent to the Stockholders a written disclosure of such fact, together with an explanation of the factors the Independent Directors considered in arriving at the conclusion that such higher Total Operating Expenses were justified.

b)If the aggregate of all Offering Expenses attendant to the Offering (including Selling Commissions and the Marketing Contribution and Due Diligence Expense Allowance) should exceed 15% of the Gross Offering Proceeds OR if the aggregate of all Offering Expenses (excluding any Selling Commissions)

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should exceed 5.5% of the Gross Offering Proceeds, the Advisor shall pay directly and/or cause its Affiliates to pay directly any such excess Offering Expenses incurred by the Company and the Company will have no liability for such excess expenses.

15.OTHER ACTIVITIES OF THE ADVISOR. Nothing herein contained shall prevent the Advisor or an Affiliate of the Advisor from engaging in any other business or activity including the rendering of services and investment advice with respect to real estate investment opportunities to any other person or entity and the management of other investments (including the investments of the Advisor and its Affiliates).

Directors, officers, employees and agents of the Advisor or of Affiliates of the Advisor may serve as Directors, trustees, officers, employees or agents of the Company, but shall receive no compensation (other than reimbursement for expenses) from the Company for such service.

16.TERM; TERMINATION OF AGREEMENT. This Agreement shall have an initial term of one year and, thereafter, will continue in force for successive one year renewals with the mutual consent of the parties including an affirmative vote of a majority of the Independent Directors. Each extension shall be executed in writing by both parties hereto before the expiration of this Agreement or of any extension thereof.

Notwithstanding any other provision of the Agreement to the contrary, either the Company or the Advisor may terminate this Agreement, or any extension hereof, or the parties by mutual consent or a majority of the Independent Directors may do so, in each case upon 60 days written notice without cause or penalty. In the event of the termination of the Agreement, the Advisor will cooperate with the Company and take all reasonable steps requested to assist the Board of Directors in making an orderly transition of the advisory function.

This Agreement shall terminate upon the consummation of a business combination involving the Advisor and the Company as described in Section 12.

If this Agreement is terminated pursuant to this Section, such termination shall be without any further liability or obligation of either party to the other, except as provided in Section 19.

If this Agreement is terminated for any reason other than a business combination involving the Advisor and the Company as described in Section 12, all obligations of the Advisor and its Affiliates to offer Property to the Company for purchase, as described in Section 2(a), shall also terminate.

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17.ASSIGNMENTS. The Company may terminate this Agreement in the event of its assignment by the Advisor except an assignment to a successor organization which acquires substantially all of the property and carries on the affairs of the Advisor, provided that following such assignment the persons who controlled the operations of the Advisor immediately prior thereto all control the operations of the successor organization, including the performance of its duties under this Agreement; however, if at any time subsequent to such assignment such persons shall cease to control the operations of the successor organization, the Company may thereupon terminate this Agreement. This Agreement shall not be assignable by the Company without the consent of the Advisor, except in the case of assignment by the Company to a corporation, trust or other organization which is a successor to the Company. Any assignment of this Agreement shall bind the assignee hereunder in the same manner as the assignor is bound hereunder.

18.DEFAULT, BANKRUPTCY, ETC. At the option solely of the Company, this Agreement shall be terminated immediately upon written notice of termination from the Board of Directors to the Advisor if any of the following events occurs:

a)The Advisor violates any provisions of this Agreement and after notice of such violation shall not cure such default within 30 days; or

b)A court of competent jurisdiction enters a decree or order for relief in respect of the Advisor in any involuntary case under the applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appoints a receiver liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Advisor or for any substantial part of its property or orders the winding up or liquidation of the Advisor’s affairs; or

c)The Advisor commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, or consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Advisor or for any substantial part of its property, or makes any general assignment for the benefit of creditors, or fails generally to pay its debts as they become due.

The Advisor agrees that if any of the events specified in subsections (b) and (c) of this Section 18 occur, it will give written notice thereof to the Company within seven days after the occurrence of such event.

19.ACTION UPON TERMINATION. The Advisor shall not be entitled to compensation after the date of termination of this Agreement for further services hereunder, but shall be paid all compensation accruing to the date of termination. Subject to the provisions of Section 12, the Advisor shall forthwith upon a termination caused by factors other than the listing for trading of the Shares on a national stock exchange or market:

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a)Pay over to the Company all moneys collected and held for the account of the Company pursuant to this Agreement, after deducting any accrued compensation and reimbursement for its expenses to which it is then entitled;

b)Deliver to the Board of Directors a full accounting, including a statement, showing all payments collected by it and a statement of all money held by it, covering the period following the date of the last accounting furnished to the Board of Directors;

c)Deliver to the Board of Directors all property and documents of the Company then in the custody of the Advisor; and

d)Cooperate with the Company and take all reasonable steps requested by the Company to assist the Board of Directors in making an orderly transition of the Advisory function.

20.CHANGE OF NAME. The Company recognizes that the name and mark “Inland” have established prestige and goodwill and have acquired valuable secondary meanings in the real estate and related industries and in the mind of the public. The Company desires to associate itself with and benefit from the “Inland” name, and in consideration of the grant by the Advisor and its Affiliates of a perpetual royalty free license to the Company (which license has been authorized), subject to the conditions set forth in this Section 20, to use the name and mark “Inland” in connection with a real estate investment trust throughout the United States, its territories and possessions, the Company agrees that:

a)The value of the “Inland” name cannot be reasonably and adequately compensated for in damages in action at law and unauthorized use of the “Inland” name will cause irreparable injury and damage to the Advisor and its Affiliates. The Advisor or its Affiliates shall be entitled as a matter of right to injunctive relief to prevent the use of the “Inland” name by the Company in the event of the circumstances described in Subsection (d) below.

b)The Company agrees to use the “Inland” name and mark in a manner which will protect the right of the Advisor and its Affiliates therein and such use shall be as licensee for the account and benefit of the Advisor and its Affiliates. To the extent any rights in the name or mark “Inland” are deemed to accrue to the Company, the Company hereby assigns any and all such rights to the Advisor and its Affiliates at such time as they may be deemed to accrue.

c)Nothing contained in this Agreement shall be construed an assignment or grant to the Company of any right, title or interest in or to the name or mark “Inland” or any other trademarks, trade names or related service marks, insignias, logos, designs and color schemes, it being understood that all rights relating thereto are reserved by the Advisor and its Affiliates, except for the license hereunder to the Company of the rights to use the name or mark as specifically and expressly provided herein. The Company agrees to cooperate fully and in good faith with the Advisor and its Affiliates, at the expense of the Advisor and its Affiliates, in

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securing and preserving the rights of the Advisor and its Affiliates in and to the name and mark “Inland” and to assist the Advisor and its Affiliates in executing and causing to be recorded such documents as may be necessary or desirable to evidence, protect and implement the rights of the Advisor and its Affiliates pursuant to this Agreement.

d)At such time as the Advisor is no longer providing services to the Company pursuant to this Agreement for some reason other than the consummation of a business combination described in Section 12, the Board of Directors will upon the request of the Advisor and its Affiliates, promptly cause the name of the Company to be changed in perpetuity to a name which does not include any reference to the name “Inland” or any successor thereof. Without limiting the generality of the foregoing, upon termination of this Agreement by either party for some reason other than the consummation of a business combination described in Section 12, the Board of Directors will promptly cause the name of the Company to be changed in perpetuity to a name which does not include any references to the name ‘‘Inland” or any successor thereof.

21.AMENDMENTS. This Agreement shall not be amended, changed, modified, terminated or discharged in whole or in part except by an instrument in writing signed by both parties hereto, or their respective successors or assigns, or otherwise provided herein.

22.SUCCESSORS AND ASSIGNS. This Agreement shall bind any successors or assigns of the parties hereto as herein provided.

23.GOVERNING LAW. The provisions of this Agreement shall be governed, construed and interpreted in accordance with the laws of the State of Illinois as at the time in effect.

24.LIABILITY AND INDEMNIFICATION.

a)The Company shall, to the fullest extent permitted by Maryland statutory or decisional law, as amended or interpreted, and, without limiting the generality of the foregoing, in accordance with Section 2418 of the General Corporation Law of Maryland, indemnify and pay or reimburse reasonable expenses to the Advisor and its Affiliates, provided, that: (i) the Advisor or other party seeking indemnification has determined, in good faith, that the course of conduct which caused the loss or liability was in the best interests of the Company; (ii) the Advisor or other person seeking indemnification was acting on behalf of or performing services on the part of the Company; (iii) such liability or loss was not the result of negligence or misconduct on the part of the indemnified party; and (iv) such indemnification or agreement to be held harmless is recoverable only out of the assets of the Company and not from the Stockholders thereof.

b)The Company shall not indemnify the Advisor or its Affiliates for losses, liabilities or expenses arising from or out of an alleged violation of federal or state securities laws by such party unless one or more of the following

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conditions are met: (i) there has been a successful adjudication on the merits of each count involving alleged securities law violations as to the particular indemnitee; (ii) such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to the particular indemnitee; or (iii) a court of competent jurisdiction approves a settlement of the claims and finds that indemnification of the settlement and related costs should be made and the court considering the request has been advised of the position of the Securities and Exchange Commission and the published opinions of any state securities regulatory authority in which securities of the Company were offered and sold with respect to the availability or propriety of indemnification for securities law violations.

c)The Company may advance amounts to persons entitled to indemnification hereunder for legal and other expenses and costs incurred as a result of any legal action for which indemnification is being sought only if all of the following conditions are satisfied: (i) the legal action relates to acts or omissions with respect to the performance of duties or services by the indemnified part for or on behalf of the Company; (ii) the legal action is initiated by a third party and a court of competent jurisdiction specifically approves such advancement; and (iii) the indemnified party receiving such advances undertakes to repay the advanced funds to the Company, together with the applicable legal rate of interest thereon, in any case(s) in which such party is found not to be entitled to indemnification.

25.NOTICES. Any notice, report or other communication required or permitted to be given hereunder shall be in writing unless some other method of giving such notice, report or other communication is accepted by the party to whom it is given and shall be given by being delivered at the following addresses of the parties hereto:

The Company and/or the Board of Directors:

Inland Western Retail Real Estate Trust, Inc.

2901 Butterfield Road

Oak Brook, Illinois 60523

Attention: Ms. Roberta S. Matlin, Vice President

The Advisor:

Inland Western Retail Real Estate Advisory Services, Inc.

2901 Butterfield Road

Oak Brook, Illinois 60523

Attention: President

Either party may at any time give notice in writing to the other party of a change of its address for the purpose of this Section 25.

26.CONFLICTS OF INTEREST AND FIDUCIARY DUTIES TO THE COMPANY

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AND TO THE COMPANY’S STOCKHOLDERS. The Company and the Advisor recognize that their relationship is subject to various conflicts of interest as set forth in the Prospectus. The Advisor, on behalf of itself and its Affiliates, acknowledges that the Advisor and its Affiliates have fiduciary duties to the Company and to the Company’s Stockholders. The Advisor, on behalf of itself and its Affiliates, represents and agrees (i) that the Advisor and its Affiliates will endeavor to balance the interests of the Company with the interests of the Advisor and its Affiliates in making any determination where a conflict of interest exists between the Company and the Advisor or its Affiliates; and (ii) that the actions and decisions of the Advisor and its Affiliates under this Agreement (including but not limited to actions and decisions in connection with the purchase of Properties for the Company) will be madein the manner most favorable to the Company and to the Company’s Stockholders, so as not to breach their respective fiduciary duties to the Company and to the Company’s Stockholders.

27.HEADINGS. The section headings hereof have been inserted for convenience of reference only and shall not be construed to affect the meaning, construction or effect of this Agreement.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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IN WITNESS WHEREOF, the undersigned have executed this Second Amended and Restated Advisory Agreement as of the date first above written.

COMPANY:

INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.

By:  /s/ Roberta S. Matlin, Vice President

Title: Vice President - Administration

ADVISOR:

INLAND WESTERN RETAIL REAL ESTATE ADVISORY SERVICES, INC.

By  /s/ [ILLEGIBLE]

Title: President

EX-10.4.1

Exhibit 10.4.1

PROPERTY ACQUISITION AGREEMENT

THIS PROPERTY ACQUISITION AGREEMENT (this “Agreement”) is entered into as of the 11th day of February, 2005, by and between Inland Real Estate Acquisitions, Inc., an Illinois corporation (“Acquisitions”), Inland Western Retail Real Estate Trust, Inc., a Maryland corporation (the “Company”) and Inland Western Retail Real Estate Advisory Services, Inc., an Illinois corporation (the “Advisor”). Acquisitions and the Company and the Advisor are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”

WHEREAS, the Company is in the business, among other things, of acquiring and managing real estate assets, primarily multi-tenant properties improved for use as retail establishments or improved for use as multi-family and/or office facilities that also provide retail services and single-tenant retail or commercial properties, located mainly in the western United States;

WHEREAS, Acquisitions is an indirect wholly-owned subsidiary of The Inland Group, Inc., an Illinois corporation (“The Inland Group”);

WHEREAS, Robert D. Parks is an affiliated director of the Company;

WHEREAS, Mr. Cosenza is an officer and director of Acquisitions and a stockholder and director of The Inland Group;

WHEREAS, Mr. Parks is also a stockholder and director of The Inland Group;

WHEREAS, Acquisitions is in the business of acquiring and assisting certain third parties in acquiring properties such as the Subject Properties;

WHEREAS, Acquisitions is willing to grant the Company an exclusive right of first refusal to acquire each and every Subject Property identified by Acquisitions;

WHEREAS, the Parties have previously entered into a Property Acquisition Service Agreement dated as of the 18^th day of September, 2003 and now wish to terminate that agreement and enter into this Agreement;

WHEREAS, the Advisor and the Company arc parties to a certain advisory agreement (the “Advisory Agreement”), dated the date hereof; and

WHEREAS, under the terms of the Advisory Agreement, the Advisor generally has responsibility for the day-to-day operations of the Company, administers the Company’s bookkeeping and accounting functions, serves as the Company’s consultant in connection with policy decisions to be made by the directors of the Company (the “Directors”), manages or

causes to be managed by another party the Company’s properties and renders other services as the Directors deem appropriate; the Advisor is subject to the supervision of the Directors and has only such functions as are delegated to it by the Directors; and

WHEREAS, the Company, the Advisor and Acquisitions are all affiliates; and

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and in consideration of the expense reimbursement provisions set forth herein, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1.Incorporation of Recitals. By this reference, the recitals set forth above are hereby incorporated into this Agreement as if fully set forth herein.

2.Definitions. The following capitalized terms used in this Agreement shall have the following meanings:

(a)“Market Area” shall mean the geographic area located west of the Mississippi River in the continental United States but excluding that portion of such geographic area located within a four hundred (400) mile radius of Oak Brook, Illinois.

(b)“Retail Facility” shall mean real estate improved for use as a multi-tenant shopping center with gross leasable retail area of not less than 50,000 square feet and not more than 300,000 square feet.

(c)“Mixed-Use Property” shall mean real estate, other than a Retail Facility or a Single-User Property, improved for use as a combination of two or more of (a) multi-family use, (b) office use, and (c) retail facility use, provided such real estate contains gross leasable retail area of not less than 50,000 square feet and not more than 300,000 square feet.

(d)“Single-User Property” shall mean real estate improved for use as a single-tenant retail or commercial property.

(e)“Subject Property” shall mean any Retail Facility, Mixed-Use Property or Single-User Property identified by Acquisitions and located within the Market Area.

3.Right of First Refusal. For and during the term of this Agreement, Acquisitions hereby grants to the Company an exclusive right of first refusal to acquire each and every Subject Property identified by Acquisitions, and, until the occurrence of a Right of First Refusal Termination Event (hereinafter defined) with respect to an applicable Subject Property, Acquisitions covenants and agrees that it shall not (a) present or offer for sale such Subject Property to, (b) forward any information regarding the potential acquisition of such Subject Property to, or (c) pursue the acquisition of any such Subject Property on behalf or for the benefit of, any of its clients other than the Company. Notwithstanding the foregoing, the right of first refusal set forth in this Section 3 shall not apply to either (i) the Acquisition of an Operating Company (hereinafter defined), regardless of whether the Operating Company owns, directly or indirectly, a Subject Property, or (ii) the acquisition (in a manner described in clause (i), (ii) or (iii) of the definition of “Acquisition of an Operating Company” below) of any entity that owns, directly or indirectly, in addition to Subject Properties, other real estate located outside the

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Market Area. Upon Acquisitions’ identification of a Subject Property, Acquisitions shall deliver to the Company written notice (in form and substance attached hereto as Exhibit A, each a “Property Notice”) that Acquisitions has identified, or entered into a letter of intent or acquisition agreement with respect to, the applicable Subject Property. The Company shall have ten (10) business days after the date of its receipt of a Property Notice (the “Notice Period”) to inform Acquisitions in writing (a “Company Notice”) whether the Company has elected to pursue the acquisition of the applicable Subject Property. Upon the occurrence of a Right of First Refusal Termination Event, the Company shall be deemed to have waived any and all rights under this Section 3 to acquire the Subject Property, including any corporate opportunity with respect to the particular Subject Property. In the event that the right of first refusal contained in this Section 3 shall not apply as provided in clause (ii) above, then Acquisitions shall determine, in good faith, an equitable manner for addressing any potential corporate opportunity issues that may arise with respect to the Subject Properties owned by the acquired entity. Except as provided above, Acquisitions will not grant a right of first refusal to any other person or entity (or Subject Properties owned by such entity) that are excluded as a result of clause (ii) above from the right of first refusal contained in Section 3. The Company shall upon request provide Acquisitions with reasonable evidence (i.e., a resolution adopted by the Board of Directors of the Company) setting forth the authority of certain officers of the Company to make decisions in regards to responding to Property Notices and the acquisition of Subject Properties. If the Company delivers to Acquisitions a Company Notice pursuant to which the Company elects to pursue the acquisition of a Subject Property, but thereafter the Company determines not to pursue such acquisition, then the Company shall deliver to Acquisitions written notice of same (each, a “Property Termination Notice”).

The Company’s election, whether in response to or at any time after its receipt of a Property Notice, not to pursue the acquisition of a particular Subject Property shall not affect or impair any of the Company’s rights set forth in this Agreement with respect to any other Subject Property or other property that could thereafter constitute a Subject Property.

For the purposes hereof, the term “Right of First Refusal Termination Event” shall mean the first to occur of (i) the Company’s failure to deliver to Acquisitions a Company Notice prior to the expiration of the Notice Period, (ii) the Company’s delivery to Acquisitions of a Company Notice pursuant to which the Company elects not to pursue the acquisition of a Subject Property, and (iii) at any time after the expiration of the Notice Period, the Company’s delivery to Acquisitions of a Property Termination Notice or the Company’s failure to diligently pursue the acquisition of a Subject Property.

For the purposes hereof, the term “Acquisition of an Operating Company” shall mean the acquisition of an Operating Company (hereinafter defined) (i) by purchasing stock or other equity interest in the entity or by merger or other business combination or reorganization, or tender offer, (ii) by acquisition of all or substantially all of an Operating Company’s assets (provided that the excluded assets do not comprise all or substantially all of such Operating Company’s non-real property or other non-real estate assets), or (iii) by obtaining management control of such Operating Company, through its board of directors or other comparable management position, such as, without limitation, managing general partner or managing member.

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For the purposes hereof, the term “Operating Company” shall mean (a) any entity that has equity securities registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or files periodic reports under Sections 13 or 15(d) of the Exchange Act, or (b) any entity that, cither itself or through its subsidiaries:

(a)Owns and operates interests in real estate on a going concern basis rather than as a conduit vehicle for investors to participate in the ownership of assets for a limited period of time;

(b)Has a policy or purpose of reinvesting sale, financing or refinancing proceeds or cash from operations;

(c)Has its own directors, managers or managing general partners, as applicable; and

(d)Either (i) has its own officers and employees that, on a daily basis, actively operate such entity and its subsidiaries and businesses, or (ii) has retained the services of an affiliate or sponsor of, or advisor to, such entity to, on a daily basis, actively operate such entity and its subsidiaries and businesses.

To the extent possible, the resolution of conflicting investment opportunities between the Company and other investment entities advised or managed by the Advisor and its affiliates shall be resolved by giving priority to the Company, provided that the Proposed Property meets the acquisition criteria of the Company. The Company shall have the first opportunity to purchase such Proposed Property placed under contract by Acquisitions, the Advisor or its affiliates, provided the Company is able to close the purchase of the Proposed Property within 60 days.

4.Acquisition Agreements. Acquisitions may, from time to time, enter into a letter of intent or other acquisition agreement with respect to a Subject Property in its own name to facilitate, among other things, the offer to, and possible purchase by, the Company of the applicable Subject Property. In any such case, if the Company exercises its right of first refusal with respect to and elects to pursue the acquisition of an applicable Subject Property, and the Company is willing to enter into an agreement to acquire such Subject Property, then, upon the Company’s request, Acquisitions shall assign the letter of intent or other acquisition agreement to the Company or its designee.

5.Compensation. Acquisitions shall be paid for services rendered by Acquisitions under this Agreement as follows:

(a)the Company shall reimburse Acquisitions in full for all Acquisition Expenses (as defined below) incurred by Acquisitions on behalf of the Company in connection with its performance of its duties under this Agreement; provided, however, the total of all Acquisition Expenses paid by the Company in connection with the purchase of a Subject Property by the Company may not exceed an amount equal to [3%] of the Contract Price for the Property (as defined below);

(b)“Acquisition Expenses” means expenses related to the selection, evaluation and acquisition of, and investment in, properties, whether or not acquired or made,

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including but not limited to legal fees and expenses, travel and communications expenses, cost of appraisals and surveys, nonrefundable option payments on property not acquired, accounting fees and expenses, computer use related expenses, architectural and engineering reports, environmental and asbestos audits, title insurance and escrow fees, loan fees or points or any fee of a similar nature, however designated, and personnel and miscellaneous expenses related to the selection and acquisition of properties; and

(c)“Contract Price for the Property” means the amount actually paid or allocated to the purchase of a Subject Property exclusive of Acquisition Expenses.

6.No Partnership or Joint Venture. The Parties to this Agreement are independent contractors. Nothing in this Agreement is intended or shall be deemed to constitute a partnership, agency, franchise or joint venture relationship between the Parties.

7.Term; Termination of Agreement. This term of this Agreement shall commence on the date hereof and shall continue until the earlier to occur of (a) five (5) years after the date of this Agreement, and (b) the occurrence of a Change in Control. For purposes of this Section 7, the term “Change in Control” shall mean:

(a)Any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets of the Company to any person or group of related persons for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended; provided, however, that any sale, lease, exchange or transfer to (including, without limitation, any merger or other business combination with or into) any of the following shall not constitute a Change of Control: (i) any affiliate controlled by the Company, (ii) Inland Real Estate Corporation, (iii) Inland Retail Real Estate Trust, Inc., (iv) Inland American Real Estate Trust, Inc., (v) The Inland Group, Inc., or (vi) any affiliate controlled by any of the persons or entities listed in clauses (i) through (v) above (all of the persons and entities described in clauses (i) through (vi) above to be hereinafter sometimes referred to as the “Inland Companies”);

(b)The approval by the holders of the outstanding shares of the Company of any plan or proposal for the liquidation or dissolution of the Company;

(c)Any person or group of related persons for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (other than any one or more of the Inland Companies) shall become the owner, directly or indirectly, beneficially or of record, of shares of the Company representing more than twenty-five percent (25%) of the aggregate ordinary voting power represented by the issued and outstanding common shares of the Company; or

(d)Following any change in the composition of the board of directors of the Company, a majority of the board of directors of the Company arc not a combination of either (i) members of the board of directors of the Company as of the date hereof, or (ii) members of the board of directors of the Company whose nomination for election or election to the board of directors of the Company has been recommended, approved or ratified by at least eighty percent (80%) of the board of directors of the Company then in office who were either members of the board of directors of the Company as of the date

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hereof or whose election as a member of the board of directors of the Company was previously so approved pursuant to this clause (ii), or (iii) members of the board of directors of the Company who have been elected pursuant to a proxy consent solicitation other than in connection with a business combination transaction that would otherwise result in a “Change in Control” under clauses (a) or (c) above.

8.Business Combination Of Either Company And Its Advisor. From and after September 15, 2008, the Company shall have the right, but not the obligation, to acquire the entire business, affairs, operations and assets of the Advisor (collectively, the “Advisory’s Business”) in whatever form agreed upon between the Company and the Advisor (a “Business Combination”), as set forth in writing between them (“Merger Agreement”). If the Company desires to acquire the Advisor’s Business in a Business Combination, the Company shall send a written notice to the Advisor to that effect (“Election Notice”). Any agreement with respect to a Business Combination shall contain provisions providing for: (i) the termination of this Agreement and all Advisory Agreements entered into pursuant hereto and the release or waiver of all fees payable by the Company to the Advisor under the Advisory Agreements (except for the payment of fees due and payable under the Advisory Agreements for services rendered by the Advisor up to and until the consummation of the Business Combination); and (ii) the issuance of a certain number of shares of common stock of the Company as determined below (the “Shares”) to be issued to the Advisor, or its stockholders, members or other equity holders, as the case may be, in connection with the Business Combination. The Advisor represents to the Company that the Advisor has obtained the consent of its board of directors and its shareholders to a Business Combination with the Company and that Advisor will obtain similar consents from any future shareholders, members or other equity holders of the Advisor.

The number of Shares to be issued by the Company to the Advisor or its shareholders, members or other equity holders as the case may be, shall be determined as follows: The net income of the Advisor for the calendar month immediately preceding the month in which the Merger Agreement is executed, as determined by an independent audit conducted in accordance with generally accepted auditing standards, shall be annualized (the “Annual Net Income”). The Annual Net Income shall then be multiplied by ninety percent (90%) and then divided by the “Funds from Operations per Weighted Average Share” of the Company. “Funds from Operations per Weighted Average Share” shall be equal to the annualized Funds from Operations, on the basis of four (4) times the Funds from Operations for the fiscal quarter immediately preceding the month in which the Merger Agreement is executed, per weighted average Share of the Company for such quarter as stated in the quarterly report on Form 10-Q of the Company given to its shareholders for such quarter. The resulting quotient shall constitute the number of Shares to be issued by the Company to the Advisor or its shareholders, members or other equity holders as the case may be, with delivery thereof and the closing of the Business Combination to occur within ninety (90) days after the date the Election Notice is given to Advisor. Any such transaction will occur, if at all, only if the Board of Directors of the Company obtains a fairness opinion from an investment banking or valuation firm to the effect that the consideration to be paid for the Business Combination is fair, from a financial point of view, to the Company.

9.Assignments. This Agreement may not be assigned except with the written consent of each Party hereto, except in the case of assignment by a Party to a corporation, trust or

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other organization which is a successor to such Party. Any assignment of this Agreement shall bind the assignee hereunder in the same manner as the assignor is bound hereunder.

10.Amendments. This Agreement shall not be amended, changed, modified, terminated or discharged in whole or in part except by an instrument in writing signed by each Party hereto or their respective successors or assigns.

11.Successors and Assigns. This Agreement shall bind any successors or assigns of the Parties hereto as herein provided.

12.Governing Law. The provisions of this Agreement shall be governed, construed and interpreted in accordance with the internal laws of the State of Illinois.

13.Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be deemed given or delivered: (i) when delivered personally or by commercial messenger; (ii) one business day following deposit with a recognized overnight courier service, provided such deposit occurs prior to the deadline imposed by such service for overnight delivery; (iii) when transmitted, if sent by facsimile copy, provided confirmation of receipt is received by sender and such notice is sent by an additional method provided hereunder, in each case above provided such communication is addressed to the intended recipient thereof as set forth below:

If to Acquisition or the Advisor:

Inland Real Estate Acquisitions, Inc.

2901 Butterfield Road

Oak Brook, Illinois 60523

Phone: (630) 218-8000

Fax: (630) 218-4935

Attn: G. Joseph Cosenza (in the case of Acquisition)
Brenda Gujral (in the case of the Advisor)

with a copy to :

The Inland Real Estate Group, Inc.

2901 Butter field Road

Oak Brook, Illinois 60523

Attn: Robert H. Baum, General Counsel

If to the Company:

Inland Western Retail Real Estate Trust, Inc.

2901 Butterfield Road

Oak Brook, Illinois 60523

Attention: Steven P. Grimes

Phone: (630) 645-7241

Fax: (630) 218-4955

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with a copy to:

Duane Morris LLP

227 West Monroe Street

Suite 3400

Chicago, Illinois 60606

Attn: David J. Kaufman, Esq.

Phone: (312) 499-6741

Fax: (312) 499-6701

Any Party may at any time give notice in writing to the other Parties of a change of its address for the purpose of this Section 13.

14.Headings. The section headings hereof have been inserted for convenience of reference only and shall not be construed to affect the meaning, construction or effect of this Agreement.

15.Equitable Relief. Each Party hereto recognizes and acknowledges that a breach by the other party of this Agreement will cause irreparable damage to the non-breaching party which cannot be readily remedied in monetary damages in an action at law. In the event of any default or breach by either party, the non-breaching party shall be entitled to seek immediate injunctive relief to prevent such irreparable harm or loss, in addition to any other remedies available at law and in equity.

[The remainder of this page intentionally blank]

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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.

INLAND REAL ESTATE ACQUISITIONS, INC.
By:	/s/ G. Joseph Cosenza
Title:	President
INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.
By:	/s/ Roberta S. Matlin
Title:	Vice President
INLAND WESTERN RETAIL REAL ESTATE ADVISORY SERVICES, INC.
By:	/s/ Steven P. Grimes
Title:	Chief Financial Officer

EX-10.423

Exhibit 10.423

ASSIGNMENT OF CONTRACT

This ASSIGNMENT OF CONTRACT (the “Assignment”) is made and entered into this 12th day of October, 2004 by INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation (“Assignor”) and INLAND WESTERN DENTON CROSSING LIMITED PARTNERSHIP, an Illinois limited partnership (“Assignee”).

Assignor does hereby sell, assign, transfer, set over and convey unto Assignee all of its right, title and interest as under that certain Agreement of Purchase and Sale dated August 20, 2004, as amended, entered into by ORIX HUNT DENTON VENTURE, an Illinois general partnership, as Seller, and Assignor, as Purchaser (collectively, the “Agreement”), solely as the Agreement applies to the sale and purchase of the property described by the Agreement, located in Denton, Texas.

Assignor represents and warrants that it is the Purchaser under the Agreement, and that it has not sold, assigned, transferred, or encumbered such interest in any way to any other person or entity. By acceptance hereof, Assignee accepts the foregoing Assignment and agrees, from and after the date hereof, to (i) perform all of the obligations of Purchaser under the Agreement, and (ii) indemnify, defend, protect and hold Assignor harmless from and against all claims and liabilities arising under the Agreement.

(signature page follows)

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SIGNATURE PAGE FOR

ASSIGNMENT OF CONTRACT BETWEEN

INLAND REAL ESTATE ACQUISITIONS, INC.

AND INLAND WESTERN DENTON CROSSING LIMITED PARTNERSHIP

IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to be executed as of the day and year first above written.

ASSIGNOR:
INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
By:			/s/ Mark Youngman
Name:			Mark Youngman
Title:			Vice President
ASSIGNEE:
INLAND WESTERN DENTON CROSSING LIMITED PARTNERSHIP, an Illinois limited partnership
By:	Inland Western Denton Crossing GP, L.L.C., a Delaware limited liability company
		By:		Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
				By:	/s/ Valerie Medina
				Name:	Valerie Medina
				Title:	Asst. Secretary

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EX-10.424

Exhibit 10.404

PROMISSORY NOTE

DEFINED TERMS

Execution Date: December 7, 2004								City and State of Signing: Oak Brook, Illinois
Loan Amount:				Twenty-Five Million Two Hundred Thousand and No/100 Dollars ($25,200,000.00)				Interest Rate:  4.3% per annum
Borrower:		Inland Western Denton Crossing Limited Partnership, an Illinois limited partnership
Borrower’s Address:					2901 Butterfield Road Oak Brook, Illinois 60523
Holder:	METROPOLITAN LIFE INSURANCE COMPANY, A NEW YORK CORPORATION
Holder’s Address:						Metropolitan Life Insurance Company 10 Park Avenue Morristown, New Jersey 07960 Attention: Senior Vice President Real Estate Investments and: Metropolitan Life Insurance Company Two Lincoln Centre 5420 LBJ Freeway, Suite 1310 Dallas, Texas 75240 Attention: Director and OIC, Real Estate Investments
Maturity Date:			January 1, 2010				Advance Date: The date funds arc disbursed to Borrower.
Monthly Installment: Monthly installments of interest only at the Interest Rate (which monthly installments shall each be in the amount of $90,300.00)							Permitted Prepayment Period: During the 90 day period prior to the Maturity Date, Borrower may prepay the Loan without a Prepayment Fee on 30 days prior written notice. In addition, commencing on the first day of the full 31st month following the Advance Date, Borrower may prepay the Loan with a Prepayment Fee on 30 days prior written notice to Holder.
Liable Parties:			Inland Western Retail Real Estate, Inc.
Addresses of Liable Parties: 2901 Butterfield Road, Oak Brook, Illinois 60523
Late Charge: An amount equal to four cents ($.04) for each dollar that is overdue, subject, however, to the limitations contained in Section 7 hereof; and provided, however, the balloon payment at the Maturity Date shall not be subject to a Late Charge.
Default Rate: An annual rate equal to the Interest Rate plus four percent (4%).

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Note: This Promissory Note. Other Note: Promissory Note of even date in the amount of $10,000,000.00 executed by Borrower to the order of MetLife Bank, N,A. Deed of Trust: Deed of Trust, Security Agreement, and Fixture Filing dated as of the Execution Date granted by Borrower to the Trustee named in the Deed of Trust for the benefit of Metropolitan Life insurance Company and MetLife Bank, N.A, Loan Documents: This Note, the Other Note, the Deed of Trust and any other documents related to this Note, the Other Note and/or the Deed of Trust and all renewals, amendments, modifications, restatements and extensions of these documents. Guaranty: Guaranty dated as of the Execution Date and executed by Liable Parties. Indemnity Agreement; Unsecured Indemnity Agreement dated as of the Execution Date and executed by Borrower in favor of Metropolitan Life Insurance Company and MetLife Bank, N.A. The Unsecured Indemnity Agreement and Guaranty are not Loan Documents and shall survive repayment of the Loan or other termination of the Loan Documents. Loan: The Loan evidenced by this Note, Other Loan: The Loan evidenced by the Other Note.

FOR VALUE RECEIVED, Borrower promises to pay to the order of Holder at Holder’s Address or such other place as Holder may from time to time designate, the Loan Amount with interest payable in the manner described below, in money of the United States of America that at the time of payment shall be legal tender for payment of all obligations.

Capitalized terms which are not defined in this Note shall have the meanings set forth in the Deed of Trust.

1.Payment of Principal and Interest. Principal and interest under this Note shall be payable as follows:

(a)Commencing on the first day of the second calendar month following the Advance Date (assuming stub interest for the month of closing of the Loan is paid on the Execution Date) and on the first day of each calendar month thereafter, to and including the first day of the calendar month immediately preceding the Maturity Date, Borrower shall pay the Monthly Installment; and

(b)On the Maturity Date, a final payment in the aggregate amount of the unpaid principal sum evidenced by this Note, all accrued and unpaid interest, and all other sums evidenced by this Note or secured by the Deed of Trust and/or any other Loan Documents as well as any future advances under the Deed of Trust that may be made to or on behalf of Borrower by Holder following the Advance Date (collectively, the “Secured Indebtedness”), shall become immediately payable in full.

Borrower acknowledges and agrees that a substantial portion of the original Loan Amount may be outstanding and due on the Maturity Date.

Interest shall be calculated on the basis of a thirty (30) day month and a three hundred sixty (360) day year, except that (i) if the Advance Date occurs on a date other than the first day of a calendar month, interest payable for the period commencing on the Advance Date and ending on the last day of the month in which the Advance Date occurs shall be calculated on the basis of the actual number of days elapsed over a 365 day or 366 day year, as applicable, and (ii) if the Maturity Date occurs on a date other than the last day of the month, interest payable for the period commencing on the first day of the month in which the Maturity Date occurs and ending on the Maturity Date shall he calculated on the basis of the actual number of days elapsed over a 365 day or 366 day year, as applicable.

2.Application of Payments. At the election of Holder, and to the extent permitted by law, all payments shall be applied in the order selected by Holder to any expenses, prepayment fees, late charges, escrow deposits and other sums due and payable under the Loan Documents, and to unpaid interest at the Interest Rate or at the Default Rate, as applicable. The balance of any payments shall be applied to reduce the then unpaid Loan Amount.

3.Security. The covenants of the Deed of Trust are incorporated by reference into this Note. This Note shall evidence, and the Deed of Trust shall secure the Secured Indebtedness and the Secured Indebtedness (as defined in the Other Note) under the Other Note.

4.Late Charge. If any payment of interest, any payment of a Monthly Installment or any payment of a required escrow deposit is not paid within 7 days of the due date, Holder shall have the option to charge Borrower the Late Charge. The Late Charge is for the purpose of defraying the expenses incurred in connection with

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handling and processing delinquent payments and is payable in addition to any other remedy Holder may have. Unpaid Late Charges shall become part of the Secured Indebtedness and shall be added to any subsequent payments due under the Loan Documents.

5.Acceleration Upon Default. At the option of Holder, if Borrower fails to pay any sum specified in this Note within 7 days of the due date, or if an Event of Default occurs, the Secured Indebtedness, and all other sums evidenced and/or secured by the Loan Documents, including without limitation any applicable prepayment fees (collectively, the “Accelerated Loan Amount”) shall become immediately due and payable.

6.Interest Upon Default. The Accelerated Loan Amount shall bear interest at the Default Rate which shall never exceed the maximum rate of interest permitted to be contracted for under the Jaws of the State of Texas. The Default Rate shall commence upon the occurrence of an Event of Default and shall continue until all defaults are cured.

7.Limitation on Interest.

(a)Sayings Clause. It is expressly stipulated and agreed to be the intent of Borrower and Holder at all times to comply strictly with the applicable Texas law governing the maximum rate or amount of interest payable on this Note or the Related Indebtedness (as herein defined) (or applicable United States federal law to the extent that it permits Holder to contract for, charge, take, reserve or receive a greater amount of interest than under Texas law). If the applicable law is ever judicially interpreted so as to render usurious any amount (i) contracted for, charged, taken, reserved or received pursuant to this Note, any of the other Loan Documents or any other communication or writing by or between Borrower and Holder related to the transaction or transactions that are the subject matter of the Loan Documents, (ii) contracted for, charged or received by reason of Holder’s exercise of the option to accelerate the maturity of this Note and/or the Related Indebtedness, or (iii) Borrower will have paid or Holder will have received by reason of any voluntary prepayment by Borrower of this Note and/or the Related Indebtedness, then it is Borrower’s and Holder’s express intent that all amounts charged in excess of the Maximum Lawful Rate shall be automatically cancelled, ab initio, and all amounts in excess of the Maximum Lawful Rate theretofore collected by Holder shall be credited on the principal balance of this Note and/or the Related Indebtedness without payment of the Prepayment Fee (or, if this Note and all Related Indebtedness have been or would thereby be paid in full, refunded to Borrower), and the provisions of this Note and the other Loan Documents immediately be deemed reformed and the amounts thereafter collectible hereunder and thereunder reduced, without the necessity of the execution of any new document, so as to comply with the applicable law, but so as to permit the recovery of the fullest amount otherwise called for hereunder and thereunder; provided, however, if this Note has been paid in full before the end of the stated term of this Note, then Borrower and Holder agree that Holder shall, with reasonable promptness after Holder discovers or is advised by Borrower that interest was received in an amount in excess of the Maximum Lawful Rate, either refund such excess interest to Borrower and/or credit such excess interest against this Note and/or any Related Indebtedness then owing by Borrower to Holder without payment of the Prepayment Fee, Borrower hereby agrees that as a condition precedent to any claim seeking usury penalties against Holder, Borrower will provide written notice to Holder, advising Holder in reasonable detail of the nature and amount of the violation, and Holder shall have sixty (60) days after receipt of such notice in which to correct such usury violation, if any, by either refunding such excess interest to Borrower or crediting such excess interest against this Note and/or the Related Indebtedness then owing by Borrower to Holder without payment of the Prepayment Fee. All sums contracted for, charged or received by Holder for the use, forbearance or detention of any debt evidenced by this Note and/or the Related Indebtedness shall, to the extent permitted by applicable law, be amortized or spread, using the actuarial method, throughout the stated term of this Note and/or the Related Indebtedness (including any and all renewal and extension periods) until payment in full so that the rate or amount of interest on account of this Note and/or the Related Indebtedness does not exceed the Maximum Lawful Rate from time to time in effect and applicable to this Note and/or the Related Indebtedness for so long as debt is outstanding. In no event shall the provisions of Chapter 346 of the Texas Finance Code (which regulates certain revolving credit loan accounts and revolving triparty accounts) apply to this Note and/or the Related Indebtedness. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, it is not the intention of Holder to accelerate the maturity of any interest that has not accrued at the time of such acceleration or to collect unearned interest at the time of such acceleration,

(b)Definitions. As used herein, the term “Maximum Lawful Rate” shall mean the maximum lawful rate of interest which may be contracted for, charged, taken, received or reserved by Holder in accordance with the applicable laws of the State of Texas (or applicable United States federal law to the extent that it permits Holder to contract for, charge, take, receive or reserve a greater amount of interest than under Texas law), taking into account all Charges (as herein defined) made in connection with the transaction evidenced by this Note and the other Loan Documents. As used herein, the term “Charges” shall mean all fees, charges and/or any other things of value, if

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any, Contracted for, charged, received, taken or reserved by Holder in connection with the transactions relating to this Note and the other Loan Documents, which are treated as interest under applicable law. As used herein, the term “Related Indebtedness” shall mean any and all debt paid or payable by Borrower to Holder pursuant to the Loan Documents or any other communication or writing by or between Borrower and Holder related to the transaction or transactions that arc the subject matter of the Loan Documents, except such debt which has been paid or is payable by Borrower to Holder under this Note.

(c)Ceiling Election. To the extent that Holder is relying on Chapter 1D of the Texas Credit Title to determine the Maximum Lawful Rate payable on this Note and/or the Related Indebtedness, Holder will utilize the weekly ceiling from time to time in effect as provided in such Chapter 1D, as amended. To the extent United States federal law permits Holder to contract for, charge, take, receive or reserve a greater amount of interest than under Texas law, Holder will rely on United States federal law instead of such Chapter 1D for the purpose of determining the Maximum Lawful Rate. Additionally, to the extent permitted by applicable law now or hereafter in effect, Holder may, at its option and from time to time, utilize any other method of establishing the Maximum Lawful Rate under such Chapter 1D or under other applicable law by giving notice, if required, to Borrower as provided by applicable law now or hereafter in effect.

8.Prepayment. Borrower shall not have the right to prepay all or any portion of the Loan Amount at any time during the term of this Note except as expressly set forth in the Defined Terms. If Borrower provides notice of its intention to prepay, the Accelerated Loan Amount shall become due and payable on the date specified in the prepayment notice. In addition to the above limitations upon prepayment, this Note may not be prepaid without the simultaneous prepayment of the Other Note in accordance with its terms.

9.Prepayment Fee.

(a)Any tender of payment by Borrower or any other person or entity of the Secured Indebtedness, other than as expressly provided in the Loan Documents, shall constitute a prohibited prepayment. If a prepayment of all or any part of the Secured Indebtedness is made following (i) an Event of Default and an acceleration of the Maturity Date, or (ii) in connection with a purchase of the Property or a repayment of the Secured Indebtedness at any time before, during or after, a judicial or non-judicial foreclosure or sale of the Property, then to compensate Holder for the loss of the investment, Borrower shall pay an amount equal to the Prepayment Fee (as hereinafter defined).

(b)The “Prepayment Fee” shall be the greater of (A) the Prepayment Ratio (as hereinafter defined) multiplied by the difference between (x) and (y), where (x) is the present value of all remaining payments of principal and interest including the outstanding principal due on the Maturity Date, discounted at the rate which, when compounded monthly, is equivalent to the Treasury Rate plus fifty basis points (.5%) compounded semi-annually, and (y) is the amount of the principal then outstanding, or (B) one percent (1%) of the amount of the principal being prepaid.

(c)The “Treasury Rate” shall be the annualized yield on securities issued by the United States Treasury having a maturity equal to the remaining stated term of this Note, as quoted in the Federal Reserve Statistical Release [H. 15 (519)] under the heading “U.S. Government Securities - Treasury Constant Maturities” for the date on which prepayment is being made. If this rate is not available as of the date of prepayment, the Treasury Rate shall be determined by interpolating between the yield on securities of the next longer and next shorter maturity. If the Treasury Rate is no longer published, Holder shall select a comparable rate. Holder will, upon request, provide an estimate of the amount of the Prepayment Fee two weeks before the date of the scheduled prepayment.

(d)The “Prepayment Ratio” shall be a fraction, the numerator of which shall be the amount of principal being prepaid, and the denominator of which shall be the principal then outstanding.

10.Waiver of Right to Prepay Note Without Prepayment Fee. Borrower acknowledges that Holder has relied upon the anticipated investment return under this Note in entering into transactions with, and in making commitments to, third parties and that the tender of any prohibited prepayment, shall, to the extent permitted by law, include the Prepayment Fee. Borrower agrees that the Prepayment Fee represents the reasonable estimate of Holder and Borrower of a fair average compensation for the loss that may be sustained by Holder as a result of a prohibited prepayment of this Note and it shall be paid without prejudice to the right of Holder to collect any other amounts provided to be paid under the Loan Documents.

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BORROWER EXPRESSLY (A) WAIVES ANY RIGHTS IT MAY HAVE UNDER TEXAS LAW TO PREPAY THIS NOTE, IN WHOLE OR IN PART, WITHOUT FEE OR PENALTY, UPON ACCELERATION OF THE MATURITY DATE OF THIS NOTE, AND (B) AGREES THAT IF, FOR ANY REASON, A PREPAYMENT OF THIS NOTE IS MADE, UPON OR FOLLOWING ANY ACCELERATION OF THE MATURITY DATE OF THIS NOTE BY HOLDER ON ACCOUNT OF ANY DEFAULT BY BORROWER UNDER ANY LOAN DOCUMENT, INCLUDING BUT NOT LIMITED TO ANY TRANSFER, FURTHER ENCUMBRANCE OR DISPOSITION WHICH IS PROHIBITED OR RESTRICTED BY THE DEED OF TRUST, THEN BORROWER SHALL BE OBLIGATED TO PAY CONCURRENTLY THE PREPAYMENT FEE SPECIFIED IN SECTION 9. BY EXECUTING THIS NOTE, BORROWER AGREES THAT HOLDER’S AGREEMENT TO MAKE THE LOAN AT THE INTEREST RATE AND FOR THE TERM SET FORTH IN THIS NOTE CONSTITUTES ADEQUATE CONSIDERATION FOR THIS WAIVER AND AGREEMENT.

11.Liability of Borrower. Upon the occurrence of an Event of Default, except as provided in this Section 11, Holder will look solely to the Property and the security under the Loan Documents for the repayment of the Loan and will not enforce a deficiency judgment against Borrower. However, nothing contained in this section shall limit the rights of Holder to proceed against Borrower and the general partners of Borrower and/or the Liable Parties, if any, (i) to enforce any Leases entered into by Borrower or its affiliates as tenant, guarantees, or other agreements entered into by Borrower in a capacity other than as borrower or any policies of insurance; (ii) to recover damages for fraud, material misrepresentation, material breach of warranty or waste; (iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misapplied by Borrower or which, under the terms of the Loan Documents, should have been paid to Holder; (iv) to recover any tenant security deposits, tenant letter of credit or other deposits or fees paid to Borrower that are part of the collateral for the Loan or prepaid rents for a period of more than 30 days which have not been delivered to Holder; (v) to recover Rents and Profits received by Borrower after the first day of the month in which an Event of Default occurs and prior to the date Holder acquires title to the Property which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property; (vi) to recover damages, costs and expenses arising from, or in connection with Article VI of the Deed of Trust pertaining to hazardous materials or the Indemnity Agreement; (vii) to recover all amounts due and payable pursuant to Sections 11.06 and 11.07 of the Deed of Trust and any amount expended by Holder in connection with the foreclosure of the Deed of Trust; (viii) to recover damages arising from Borrower’s failure to comply with Section 8.01 of the Deed of Trust pertaining to ERlSA; (ix) to recover all amounts due and payable, or to recover any damages for Borrower’s failure to comply with Section 2.05 of the Deed of Trust pertaining to Premiums and Impositions; and/or (x) to recover all amounts due and payable, or to recover any damages for Borrower’s failure to comply with, the provisions of Article XV of the Deed of Trust.

The limitation of liability set forth in this Section 11 shall not apply and the Loan shall be fully recourse to Borrower and Liable Parties (i) in the event that prior to the repayment of the Secured Indebtedness, Borrower commences a voluntary bankruptcy or insolvency proceeding or an involuntary bankruptcy or insolvency proceeding is commenced against Borrower and is not dismissed within 90 days of filing or (ii) to recover damages arising from Borrower’s failure to comply with Sections 10.02 and ll.0l(g) of the Deed of Trust pertaining to subordinate financing and Transfers, respectively. In addition, this agreement shall not waive any rights which Holder would have under any provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Secured Indebtedness or to require that the Property shall continue to secure all of the Secured Indebtedness.

12.Waiver by Borrower. Borrower and others who may become liable for the payment of all or any part of this Note, and each of them, waive diligence, demand, presentment for payment, notice of nonpayment, protest, notice of dishonor and notice of protest, notice of intent to accelerate and notice of acceleration and specifically consent to and waive notice of any amendments, modifications, renewals or extensions of this Note, including the granting of extension of time for payment, whether made to or in favor of Borrower or any other person or persons.

13.Exercise of Rights. No single or partial exercise by Holder, or delay or omission in the exercise by Holder, of any right or remedy under the Loan Documents shall waive or limit the exercise of any such right or remedy. Holder shall at all times have the right to proceed against any portion of or interest in the Property in the manner that Holder may deem appropriate, without waiving any other rights or remedies. The release of any party under this Note shall not operate to release any other party which is liable under this Note and/or under the other Loan Documents or under the Indemnity Agreement.

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14.Fees and Expenses. If Borrower defaults under this Note, Borrower shall be personally liable for and shall pay to Holder, in addition to the sums stated above, the costs and expenses of enforcement and collection, including a reasonable sum as an attorney’s fee. This obligation is not limited by Section 11.

15.No Amendments. This Note may not be modified or amended except in a writing executed by Borrower and Holder. No waivers shall be effective unless they are set forth in a writing signed by the party which is waiving a right. This Note and the other Loan Documents are the final expression of the lending relationship between Borrower.

16.Governing Law. This Note is to be construed and enforced in accordance with the laws of the State of Texas.

17.Construction. The words “Borrower” and “Holder” shall be deemed to include their respective heirs, representatives, successors and assigns, and shall denote the singular and/or plural, and the masculine and/or feminine, and natural and/or artificial persons, as appropriate. The provisions of this Note shall remain in full force and effect notwithstanding any changes in the shareholders, partners or members of Borrower. If more than one party is Borrower, the obligations of each party shall be joint and several. The captions in this Note are inserted only for convenience of reference and do not expand, limit or define the scope or intent of any section of this Note.

18.Notices. All notices, demands, requests and consents permitted or required under this Note shall be given in the manner prescribed in the Deed of Trust.

19.Time of the Essence. Time shall be of the essence with respect to all of Borrower’s obligations under this Note.

20.Severability. If any provision of this Note should be held unenforceable or void, then that provision shall be deemed separable from the remaining provisions and shall not affect the validity of this Note, except that if that provision relates to the payment of any monetary sum, then Holder may, at its option, declare the Secured Indebtedness (together with the Prepayment Fee) immediately due and payable.

IN WITNESS WHEREOF, Borrower has executed this Note as of the Execution Date.

INLAND WESTERN DENTON CROSSING LIMITED PARTNERSHIP,
an Illinois limited partnership
By:		Inland Western Denton Crossing GP, L.L.C., a Delaware limited liability company, its sole general partner
	By:		Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member.
			By:	/s/ VALERIE MEDINA
			Name:	VALERIE MEDINA
			Title:	Assistant Secretary

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EX-10.425

Exhibit 10.425

PROMISSORY NOTE

DEFINED TERMS

Execution Date: December 7, 2004			City and State of Signing: Oak Brook, Illinois
Loan Amount:	Ten Million and No/100 Dollars ($10,000,000.00)		Interest Rate:  4.3% per annum
Borrower: Inland Western Denton Crossing Limited Partnership, an Illinois limited partnership
Borrower’s Address:	2901 Butterfield Road Oak Brook, Illinois 60523
Holder: METLIFE BANK, N.A.
Holder’s Address:	c/o Metropolitan Life Insurance Company 10 Park Avenue Morristown, New Jersey 07960 Attention: Senior Vice President Real Estate Investments and: Metropolitan Life Insurance Company Two Lincoln Centre 5420 LBJ Freeway, Suite 1310 Dallas, Texas 75240 Attention: Director and OIC, Real Estate Investments
Maturity Date: January 1, 2010		Advance Date: The date funds arc disbursed to Borrower.
Monthly Installment: Monthly installments of interest only at the Interest Rate (which monthly payments shall each be in the amount of $35,833.33)		Permitted Prepayment Period:    During the 90 day period prior to the Maturity Date, Borrower may prepay the Loan without a Prepayment Fee on 30 days prior written notice. In addition, commencing on the first day of the full 31st month following the Advance Date, Borrower may prepay the Loan with a Prepayment Fee on 30 days prior written notice to Holder.
Liable Parties: Inland Western Retail Real Estate, Inc. Addresses of Liable Parties: 2901 Butterfield Road, Oak Brook, Illinois 60523
Late Charge: An amount equal to four cents ($.04) for each dollar that is overdue, subject, however, to the limitations contained in Section 7 hereof, and provided, however, the balloon payment at the Maturity Date shall not be subject to a Late Charge. Default Rate: An annual rate equal to the Interest Rate plus four percent (4%).

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Note: This Promissory Note, Other Note: Promissory Note of even date in the amount of $25,200,000.00 executed by Borrower to the order of Metropolitan Life Insurance Company. Deed of Trust: Deed of Trust, Security Agreement, and Fixture Filing dated as of the Execution Date granted by Borrower to the Trustee named in the Deed of Trust for the benefit of Metropolitan Life insurance Company and MetLife Bank, N.A. Loan Documents: This Note, the Other Note, the Deed of Trust and any other documents related to this Note, the Other Note and/or the Deed of Trust and all renewals, amendments, modifications, restatements and extensions of these documents. Guaranty: Guaranty dated as of the Execution Date and executed by Liable Parties. Indemnity Agreement: Unsecured Indemnity Agreement dated as of the Execution Date and executed by Borrower in favor of Metropolitan Life Insurance Company and MetLife Bank, N.A. The Unsecured Indemnity Agreement and Guaranty are not Loan Documents and shall survive repayment of the Loan or other termination of the Loan Documents. Loan: The Loan evidenced by this Note. Other Loan: The Loan evidenced by the Other Note.

FOR VALUE RECEIVED, Borrower promises to pay to the order of Holder at Holder’s Address or such other place as Holder may from time to time designate, the Loan Amount with interest payable in the manner described below, in money of the United States of America that at the time of payment shall be legal tender for payment of all obligations.

Capitalized terms which are not defined in this Note shall have the meanings set forth in the Deed of Trust.

1.Payment of Principal and Interest. Principal and interest under this Note shall be payable as follows:

(a)Commencing on the first day of the second calendar month following the Advance Date (assuming stub interest for the month of closing of the Loan is paid on the Execution Date) and on the first day of each calendar month thereafter, to and including the first day of the calendar month immediately preceding the Maturity Date, Borrower shall pay the Monthly Installment; and

(b)On the Maturity Date, a final payment in the aggregate amount of the unpaid principal sum evidenced by this Note, all accrued and unpaid interest, and all other sums evidenced by this Note or secured by the Deed of Trust and/or any other Loan Documents as well as any future advances under the Deed of Trust that may be made to or on behalf of Borrower by Holder following the Advance Date (collectively, the “Secured Indebtedness”), shall become immediately payable in full.

Borrower acknowledges and agrees that a substantial portion of the original Loan Amount may be outstanding and due on the Maturity Date.

Interest shall be calculated on the basis of a thirty (30) day month and a three hundred sixty (360) day year, except that (i) if the Advance Date occurs on a date other than the first day of a calendar month, interest payable for the period commencing on the Advance Date and ending on the last day of the month in which the Advance Date occurs shall be calculated on the basis of the actual number of days elapsed over a 365 day or 366 day year, as applicable, and (ii) if the Maturity Date occurs on a date other than the last day of the month, interest payable for the period commencing on the first day of the month in which the Maturity Date occurs and ending on the Maturity Date shall he calculated on the basis of the actual number of days elapsed over a 365 day or 366 day year, as applicable.

2.Application of Payments. At the election of Holder, and to the extent permitted by law, all payments shall be applied in the order selected by Holder to any expenses, prepayment fees, late charges, escrow deposits and other sums due and payable under the Loan Documents, and to unpaid interest at the Interest Rate or at the Default Rate, as applicable. The balance of any payments shall be applied to reduce the then unpaid Loan Amount.

3.Security. The covenants of the Deed of Trust are incorporated by reference into this Note. This Note shall evidence, and the Deed of Trust shall secure the Secured Indebtedness and the Secured Indebtedness (as defined in the Other Note) under the Other Note.

4.Late Charge. If any payment of interest, any payment of a Monthly Installment or any payment of a required escrow deposit is not paid within 7 days of the due date, Holder shall have the option to charge Borrower the Late Charge. The Late Charge is for the purpose of defraying the expenses incurred in connection with

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handling and processing delinquent payments and is payable in addition to any other remedy Holder may have. Unpaid Late Charges shall become part of the Secured Indebtedness and shall be added to any subsequent payments due under the Loan Documents.

5.Acceleration Upon Default. At the option of Holder, if Borrower fails to pay any sum specified in this Note within 7 days of the due date, or if an Event of Default occurs, the Secured Indebtedness, and all other sums evidenced and/or secured by the Loan Documents, including without limitation any applicable prepayment fees (collectively, the “Accelerated Loan Amount”) shall become immediately due and payable.

6.Interest Upon Default. The Accelerated Loan Amount shall bear interest at the Default Rate which shall never exceed the maximum rate of interest permitted to be contracted for under the laws of the State of Texas. The Default Rate shall commence upon the occurrence of an Event of Default and shall continue until all defaults are cured.

7.Limitation on Interest.

(a)Sayings Clause. It is expressly stipulated and agreed to be the intent of Borrower and Holder at all times to comply strictly with the applicable Texas law governing the maximum rate or amount of interest payable on this Note or the Related Indebtedness (as herein defined) (or applicable United States federal law to the extent that it permits Holder to contract for, charge, take, reserve or receive a greater amount of interest than under Texas law). If the applicable law is ever judicially interpreted so as to render usurious any amount (i) contracted for, charged, taken, reserved or received pursuant to this Note, any of the other Loan Documents or any other communication or writing by or between Borrower and Holder related to the transaction or transactions that are the subject matter of the Loan Documents, (ii) contracted for, charged or received by reason of Holder’s exercise of the option to accelerate the maturity of this Note and/or the Related Indebtedness, or (iii) Borrower will have paid or Holder will have received by reason of any voluntary prepayment by Borrower of this Note and/or the Related Indebtedness, then it is Borrower’s and Holder’s express intent that all amounts charged in excess of the Maximum Lawful Rate shall be automatically cancelled, ab initio, and all amounts in excess of the Maximum Lawful Rate theretofore collected by Holder shall be credited on the principal balance of this Note and/or the Related Indebtedness without payment of the Prepayment Fee (or, if this Note and all Related Indebtedness have been or would thereby be paid in full, refunded to Borrower), and the provisions of this Note and the other Loan Documents immediately be deemed reformed and the amounts thereafter collectible hereunder and thereunder reduced, without the necessity of the execution of any new document, so as to comply with the applicable law, but so as to permit the recovery of the fullest amount otherwise called for hereunder and thereunder; provided, however, if this Note has been paid in full before the end of the stated term of this Note, then Borrower and Holder agree that Holder shall, with reasonable promptness after Holder discovers or is advised by Borrower that interest was received in an amount in excess of the Maximum Lawful Rate, either refund such excess interest to Borrower and/or credit such excess interest against this Note and/or any Related Indebtedness then owing by Borrower to Holder without payment of the Prepayment Fee, Borrower hereby agrees that as a condition precedent to any claim seeking usury penalties against Holder, Borrower will provide written notice to Holder, advising Holder in reasonable detail of the nature and amount of the violation, and Holder shall have sixty (60) days after receipt of such notice in which to correct such usury violation, if any, by either refunding such excess interest to Borrower or crediting such excess interest against this Note and/or the Related Indebtedness then owing by Borrower to Holder without payment of the Prepayment Fee. All sums contracted for, charged or received by Holder for the use, forbearance or detention of any debt evidenced by this Note and/or the Related Indebtedness shall, to the extent permitted by applicable law, be amortized or spread, using the actuarial method, throughout the stated term of this Note and/or the Related Indebtedness (including any and all renewal and extension periods) until payment in full so that the rate or amount of interest on account of this Note and/or the Related Indebtedness does not exceed the Maximum Lawful Rate from time to time in effect and applicable to this Note and/or the Related Indebtedness for so long as debt is outstanding. In no event shall the provisions of Chapter 346 of the Texas Finance Code (which regulates certain revolving credit loan accounts and revolving triparty accounts) apply to this Note and/or the Related Indebtedness. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, it is not the intention of Holder to accelerate the maturity of any interest that has not accrued at the time of such acceleration or to collect unearned interest at the time of such acceleration.

(b)Definitions. As used herein, the term “Maximum Lawful Rate” shall mean the maximum lawful rate of interest which may be contracted for, charged, taken, received or reserved by Holder in accordance with the applicable laws of the State of Texas (or applicable United States federal law to the extent that it permits Holder to contract for, charge, take, receive or reserve a greater amount of interest than under Texas law), taking into account all Charges (as herein defined) made in connection with the transaction evidenced by this Note and the other Loan Documents. As used herein, the term “Charges” shall mean all fees, charges and/or any other things of value, if

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any, contracted for, charged, received, taken or reserved by Holder in connection with the transactions relating to this Note and the other Loan Documents, which are treated as interest under applicable law. As used herein, the term “Related Indebtedness” shall mean any and all debt paid or payable by Borrower to Holder pursuant to the Loan Documents or any other communication or writing by or between Borrower and Holder related to the transaction or transactions that arc the subject matter of the Loan Documents, except such debt which has been paid or is payable by Borrower to Holder under this Note.

(c)Ceiling Election. To the extent that Holder is relying on Chapter ID of the Texas Credit Title to determine the Maximum Lawful Rate payable on this Note and/or the Related Indebtedness, Holder will utilize the weekly ceiling from time to time in effect as provided in such Chapter ID, as amended. To the extent United States federal law permits Holder to contract for, charge, take, receive or reserve a greater amount of interest than under Texas law, Holder will rely on United States federal law instead of such Chapter ID for the purpose of determining the Maximum Lawful Rate. Additionally, to the extent permitted by applicable law now or hereafter in effect, Holder may, at its option and from time to time, utilize any other method of establishing the Maximum Lawful Rate under such Chapter ID or under other applicable law by giving notice, if required, to Borrower as provided by applicable law now or hereafter in effect.

8.Prepayment. Borrower shall not have the right to prepay all or any portion of the Loan Amount at any time during the term of this Note except as expressly set forth in the Defined Terms. If Borrower provides notice of its intention to prepay, the Accelerated Loan Amount shall become due and payable on the date specified in the prepayment notice. In addition to the above limitations upon prepayment, this Note may not be prepaid without the simultaneous prepayment of the Other Note in accordance with its terms.

9.Prepayment Fee.

(a)Any tender of payment by Borrower or any other person or entity of the Secured Indebtedness, other than as expressly provided in the Loan Documents, shall constitute a prohibited prepayment. If a prepayment of all or any part of the Secured Indebtedness is made following (i) an Event of Default and an acceleration of the Maturity Date, or (ii) in connection with a purchase of the Property or a repayment of the Secured Indebtedness at any time before, during or after, a judicial or non-judicial foreclosure or sale of the Property, then to compensate Holder for the loss of the investment, Borrower shall pay an amount equal to the Prepayment Fee (as hereinafter defined).

(b)The “Prepayment Fee” shall be the greater of (A) the Prepayment Ratio (as hereinafter defined) multiplied by the difference between (x) and (y), where (x) is the present value of all remaining payments of principal and interest including the outstanding principal due on the Maturity Date, discounted at the rate which, when compounded monthly, is equivalent to the Treasury Rate plus fifty basis points (.5%) compounded semi-annually, and (y) is the amount of the principal then outstanding, or (B) one percent (1%) of the amount of the principal being prepaid.

(c)The “Treasury Rate” shall be the annualized yield on securities issued by the United States Treasury having a maturity equal to the remaining stated term of this Note, as quoted in the Federal Reserve Statistical Release [H. 15 (519)]under the heading “U.S. Government Securities - Treasury Constant Maturities” for the date on which prepayment is being made. If this rate is not available as of the date of prepayment, the Treasury Rate shall be determined by interpolating between the yield on securities of the next longer and next shorter maturity. If the Treasury Rate is no longer published, Holder shall select a comparable rate. Holder will, upon request, provide an estimate of the amount of the Prepayment Fee two weeks before the date of the scheduled prepayment.

(d)The “Prepayment Ratio” shall be a fraction, the numerator of which shall be the amount of principal being prepaid, and the denominator of which shall be the principal then outstanding.

10.Waiver of Right to Prepay Note Without Prepayment Fee. Borrower acknowledges that Holder has relied upon the anticipated investment return under this Note in entering into transactions with, and in making commitments to, third parties and that the tender of any prohibited prepayment, shall, to the extent permitted by law, include the Prepayment Fee. Borrower agrees that the Prepayment Fee represents the reasonable estimate of Holder and Borrower of a fair average compensation for the loss that may be sustained by Holder as a result of a prohibited prepayment of this Note and it shall be paid without prejudice to the right of Holder to collect any other amounts provided to be paid under the Loan Documents.

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BORROWER EXPRESSLY (A) WAIVES ANY RIGHTS IT MAY HAVE UNDER TEXAS LAW TO PREPAY THIS NOTE, IN WHOLE OR IN PART, WITHOUT FEE OR PENALTY, UPON ACCELERATION OF THE MATURITY DATE OF THIS NOTE, AND (B) AGREES THAT IF, FOR ANY REASON, A PREPAYMENT OF THIS NOTE IS MADE, UPON OR FOLLOWING ANY ACCELERATION OF THE MATURITY DATE OF THIS NOTE BY HOLDER ON ACCOUNT OF ANY DEFAULT BY BORROWER UNDER ANY LOAN DOCUMENT, INCLUDING BUT NOT LIMITED TO ANY TRANSFER, FURTHER ENCUMBRANCE OR DISPOSITION WHICH IS PROHIBITED OR RESTRICTED BY THE DEED OF TRUST, THEN BORROWER SHALL BE OBLIGATED TO PAY CONCURRENTLY THE PREPAYMENT FEE SPECIFIED IN SECTION 9. BY EXECUTING THIS NOTE, BORROWER AGREES THAT HOLDER’S AGREEMENT TO MAKE THE LOAN AT THE INTEREST RATE AND FOR THE TERM SET FORTH IN THIS NOTE CONSTITUTES ADEQUATE CONSIDERATION FOR THIS WAIVER AND AGREEMENT.

11.Liability of Borrower. Upon the occurrence of an Event of Default, except as provided in this Section 11, Holder will look solely to the Property and the security under the Loan Documents for the repayment of the Loan and will not enforce a deficiency judgment against Borrower. However, nothing contained in this section shall limit the rights of Holder to proceed against Borrower and the general partners of Borrower and/or the Liable Parties, if any, (i) to enforce any Leases entered into by Borrower or its affiliates as tenant, guarantees, or other agreements entered into by Borrower in a capacity other than as borrower or any policies of insurance; (ii) to recover damages for fraud, material misrepresentation, material breach of warranty or waste; (iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misapplied by Borrower or which, under the terms of the Loan Documents, should have been paid to Holder; (iv) to recover any tenant security deposits, tenant letter of credit or other deposits or fees paid to Borrower that are part of the collateral for the Loan or prepaid rents for a period of more than 30 days which have not been delivered to Holder; (v) to recover Rents and Profits received by Borrower after the first day of the month in which an Event of Default occurs and prior to the date Holder acquires title to the Property which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property; (vi) to recover damages, costs and expenses arising from, or in connection with Article VI of the Deed of Trust pertaining to hazardous materials or the Indemnity Agreement; (vii) to recover all amounts due and payable pursuant to Sections 11.06 and 11.07 of the Deed of Trust and any amount expended by Holder in connection with the foreclosure of the Deed of Trust; (viii) to recover damages arising from Borrower’s failure to comply with Section 8.01 of the Deed of Trust pertaining to ERlSA; and/or (ix) to recover any damages for Borrower’s failure to comply with Section 2.05 of the Deed of Trust pertaining to Premiums and Impositions; and/or (x) to recover all amounts due and payable, or to recover any damages for Borrower’s failure to comply with, the provisions of Article XV of the Deed of Trust.

The limitation of liability set forth in this Section 11 shall not apply and the Loan shall be fully recourse to Borrower and Liable Parties (i) in the event that prior to the repayment of the Secured Indebtedness, Borrower commences a voluntary bankruptcy or insolvency proceeding or an involuntary bankruptcy or insolvency proceeding is commenced against Borrower and is not dismissed within 90 days of filing or (ii) to recover damages arising from Borrower’s failure to comply with Sections 10.02 and ll.0l(g) of the Deed of Trust pertaining to subordinate financing and Transfers, respectively. In addition, this agreement shall not waive any rights which Holder would have under any provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Secured Indebtedness or to require that the Property shall continue to secure all of the Secured Indebtedness.

12.Waiver by Borrower. Borrower and others who may become liable for the payment of all or any part of this Note, and each of them, waive diligence, demand, presentment for payment, notice of nonpayment, protest, notice of dishonor and notice of protest, notice of intent to accelerate and notice of acceleration and specifically consent to and waive notice of any amendments, modifications, renewals or extensions of this Note, including the granting of extension of time for payment, whether made to or in favor of Borrower or any other person or persons.

13.Exercise of Rights. No single or partial exercise by Holder, or delay or omission in the exercise by Holder, of any right or remedy under the Loan Documents shall waive or limit the exercise of any such right or remedy. Holder shall at all times have the right to proceed against any portion of or interest in the Property in the manner that Holder may deem appropriate, without waiving any other rights or remedies. The release of any party under this Note shall not operate to release any other party which is liable under this Note and/or under the other Loan Documents or under the Indemnity Agreement.

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14.Fees and Expenses. If Borrower defaults under this Note, Borrower shall be personally liable for and shall pay to Holder, in addition to the sums stated above, the costs and expenses of enforcement and collection, including a reasonable sum as an attorney’s fee. This obligation is not limited by Section 11.

15.No Amendments. This Note may not be modified or amended except in a writing executed by Borrower and Holder. No waivers shall be effective unless they are set forth in a writing signed by the party which is waiving a right. This Note and the other Loan Documents are the final expression of the lending relationship between Borrower.

16.Governing Law. This Note is to be construed and enforced in accordance with the laws of the State of Texas.

17.Construction. The words “Borrower” and “Holder” shall be deemed to include their respective heirs, representatives, successors and assigns, and shall denote the singular and/or plural, and the masculine and/or feminine, and natural and/or artificial persons, as appropriate. The provisions of this Note shall remain in full force and effect notwithstanding any changes in the shareholders, partners or members of Borrower. If more than one party is Borrower, the obligations of each party shall be joint and several. The captions in this Note are inserted only for convenience of reference and do not expand, limit or define the scope or intent of any section of this Note.

18.Notices. All notices, demands, requests and consents permitted or required under this Note shall be given in the manner prescribed in the Deed of Trust.

19.Time of the Essence. Time shall be of the essence with respect to all of Borrower’s obligations under this Note.

20.Severability. If any provision of this Note should be held unenforceable or void, then that provision shall be deemed separable from the remaining provisions and shall not affect the validity of this Note, except that if that provision relates to the payment of any monetary sum, then Holder may, at its option, declare the Secured Indebtedness (together with the Prepayment Fee) immediately due and payable.

IN WITNESS WHEREOF, Borrower has executed this Note as of the Execution Date.

INLAND WESTERN DENTON CROSSING LIMITED
PARTNERSHIP,
an Illinois limited partnership
By:		Inland Western Denton Crossing GP, L.L.C., a Delaware limited liability company, its sole general partner
	By:		Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
			By:	/s/ VALERIE MEDINA
			Name:		VALERIE MEDINA
			Title:		Assistant Secretary

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EX-10.426

Exhibit 10.426

GUARANTY AGREEMENT

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

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

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

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

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

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

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

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

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

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

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

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

8.Guarantor represents and warrants to Lender as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(signature follows on next page)

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EXECUTED effective the 7^th day of December, 2004.

GUARANTOR:
INLAND WESTERN RETAIL REAL ESTATE
TRUST, INC.,
a Maryland corporation
By:	/s/ VALERIE MEDINA
Name:			VALERIE MEDINA
Title:		ASS'T SECRETARY

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EX-10.427

Exhibit 10.427

ASSIGNMENT OF PURCHASE AGREEMENT

For good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned, INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation, (“Assignor”) hereby assigns to INLAND WESTERN BAKERSFIELD CALLOWAY, L.L.C., a Delaware limited liability company, (“Assignee”) all of its right, title and interest in that certain Purchase Agreement (the “Purchase Agreement”) dated September 2, 2004 by and between Assignor, as Buyer, and Donahue Shriber Realty Group, L.P., a Delaware limited partnership, as Seller, for purchase and sale of certain real property commonly known as Plaza at Riverlakes, Bakersfield, California (the “Property”).

By execution hereof by Assignee, Assignee hereby accept the assignment and assumes all of the obligations of Assignor under the Purchase Agreement.

This Assignment is effective as of October 21, 2004.

ASSIGNOR:	INLAND REAL ESTATE ACQUISITIONS, INC.
	By:		/s/ [ILLEGIBLE]
			SR VP
ASSIGNEE:	INLAND WESTERN BAKERSFIELD CALLOWAY, L.L.C.
	By:				Inland Western Retail Real Estate Trust, Inc.
	By:			/s/ Valerie Medina
	Its:	Asst. Secretary

EX-10.428

Exhibit 10.428

FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS

THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (this “Amendment”) is entered into as of October 20, 2004 by and between Donahue Schriber Realty Group, L.P., a Delaware limited partnership (“Seller”), and Inland Real Estate Acquisitions, Inc., an Illinois corporation (“Buyer”).

RECITALS:

A.Seller and Buyer entered into that certain Purchase and Sale Agreement and Joint Escrow Instructions dated as of September 2, 2004 (the “Agreement”; capitalized terms used but not defined in this Amendment shall have the meanings given to them in the Agreement) with respect to the property known as Plaza at River Lakes located in Bakersfield, California.

B.Seller and Buyer now desire to acknowledge certain matters with respect to the Agreement, and to amend the Agreement, as set forth herein.

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, Buyer and Seller agree as follows with respect to the Agreement:

1.             Waiver of Contingencies; Reduction of Purchase Price; Coldwell Banker Credit.  October 20, 2004 is acknowledged to be the Decision Date, and Buyer’s execution and delivery of this Amendment (effective upon receipt of a faxed counterpart executed by Seller) constitutes Buyer’s waiver of all rights to terminate the Agreement (i) on or before the Decision Date, or (ii) in accordance with Section 4.7 of the Agreement (Buyer hereby acknowledges it has received and approved estoppels from the Majors as well as Minors occupying at least 75% of the remaining leased space at the Property not occupied by the Major).  Seller hereby confirms it shall deliver Seller Estoppels as required by the last sentence of Section 4.7 of the Agreement.  The Purchase Price is hereby reduced by the sum of $400,000.00 and accordingly is the sum of Seventeen Million Dollars ($17,000,000.00).  Seller agrees that, at Closing, Seller shall provide Buyer with a credit against the Purchase Price in the amount of $92,338.00 (less any amount thereof allocable to the period prior to Closing), by reason of prepaid rent paid to Seller by Coldwell Banker, plus a credit against the Purchase Price in the amount of the Monthly Smoothie Rent allocable to the period from the Closing Date through October 30, 2004, plus a credit against the Purchase Price in the amount of the Monthly Quick One Rent allocable to the period from the Closing Date through November 30, 2004.

2.Escrow for Planet Smoothie.  Seller has entered into a lease (the “Smoothie Lease”) dated July 14, 2004 with Addis Enterprises, Inc. (“Smoothie”)covering a portion of the Property as more particularly described therein (the “Smoothie Premises”).  Smoothie has not yet finished its tenant improvements as required by the Smoothie Lease nor has Smoothie obtained the certificate of occupancy to be issued by the City of Bakersfield (the “Smoothie Certificate”) upon Smoothie’s

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completion of such tenant improvements.  Pursuant to the Smoothie Lease, Seller is obligated to pay $19,500 to Smoothie for tenant improvements (the “Smoothie TIs”),and $5,215 to the broker owed the same (the “Broker”)for leasing commissions (the “Smoothie Commissions”) Pursuant to the Smoothie Lease, commencing November 1, 2004 Smoothie is obligated to pay to the landlord thereunder the sum of $2,459 per month for base tent and $653.12 per month for estimated operating expenses (the sum of the foregoing amounts, being $3,112.12, is herein called the “Monthly Smoothie Rent”).At Closing, Seller shall deposit into escrow, with Escrow Holder, the sum of $56,018.16 (“Smoothie Escrowed Funds”)with respect to the Smoothie Lease (said sum equals the product of the Monthly Smoothie Rent times eighteen (18), plus the Smoothie TIs and plus the Smoothie Commission).  The Smoothie TI’s (or the applicable portion thereof) shall be released to Buyer (for immediate release to Smoothie) upon Buyer’s delivery of Buyer’s written certification (“Buyer’s Smoothie Certification”)to Seller and Escrow Holder that Smoothie is entitled to the Smoothie TIs (or the specified portion thereof) pursuant to Article VII of Exhibit B to the Smoothies Lease.  The Smoothie Commission shall be disbursed by Escrow Holder to Broker upon receipt of Buyer’s Smoothie Certification.  If Smoothie shall not have paid the Monthly Smoothie Rent due for November 2004 prior to November 8, 2004, commencing November 8, 2004,, and on the same day of each month thereafter until the earlier of (i) the date Smoothie shall have commenced paying the Monthly Smoothie Rent, or (ii) the date of the issuance of the Smoothie Certificate and the date Smoothie shall have taken possession of the Smoothie Space (whichever is later), the Smoothie Monthly Rent shall be promptly disbursed to Buyer from the Escrowed Funds upon Buyer’s delivery of written certification to Escrow Holder and Seller that Smoothie has not yet paid the Smoothie Monthly Rent then due.  In the event that, after Buyer shall have been paid the Smoothie Monthly Rent (or any portion thereof) out of the Smoothie Escrowed Funds for any particular month, Buyer should receive payment of all or any portion of the Smoothie Monthly Rent from Smoothie for such month, Buyer shall immediately remit the same to Seller.  Upon the later to occur of (i) issuance of the Smoothie Certificate, and (ii) the date Smoothie commences paying the Monthly Smoothie Rent (Buyer agrees to enforce the Smoothie Lease with respect thereto), the Smoothie Escrowed Funds still being held by Escrow Holder and not previously disbursed by Escrow Holder pursuant to this Section 3 shall be promptly disbursed to Seller.  Buyer agrees to notify Seller in writing promptly upon Buyer acquiring knowledge of the issuance of the Smoothie Certificate and promptly upon Smoothie taking possession of the Smoothie Space and payment of the Smoothie Monthly Rent.

3.Escrow for Quick One.  Seller has entered into a lease (the “Quick One Lease”) dated May 21, 2004 with Anher Corporation (“Quick One”)covering a portion of the Property as more particularly described therein (the “Quick One Premises”). Quick One has not yet finished its tenant improvements as required by the Quick One Lease nor has Quick One obtained the certificate of occupancy to be issued by the City of Bakersfield (the “Quick One Certificate”)upon Quick One’s completion of such tenant improvements.  Pursuant to the Quick One Lease, Seller is obligated to pay $21,000 to Quick One for tenant improvements (the “Quick One TIs”), and $3,750 to the broker owed such amount for leasing commissions (the “Quick One Commissions”),Pursuant to the Quick One Lease, commencing November 1, 2004 Quick One is obligated to pay to the landlord thereunder the sum of $2,505 per month for base rent and $720,000 per month for estimated operating expenses (the sum of the foregoing amounts, being $3,225.00, is herein called

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the “Monthly Quick One Rent”).  At Closing, Seller shall deposit into escrow, with Escrow Holder, the sum of $58,050.00 (the “Quick One Escrowed Funds”) with respect to the Quick One Lease (said sum equals the product of the Monthly Quick One Rent times eighteen (18), plus the Quick One TIs and plus the Quick One Commission).  The Quick One TI’s (or the applicable portion thereof) shall be released to Buyer (for immediate release to Quick One) upon Buyer’s delivery of Buyer’s written certification (“Buyer’s Quick One Certification”) to Seller and Escrow Holder that Quick One is entitled to the Quick One TIs (or the specified portion thereof) pursuant to Article VII of Exhibit B to the Quick Ones Lease.  The Quick One Commission shall be disbursed by Escrow Holder to Broker upon receipt of Buyer’s Quick One Certification.  If Quick One shall not have paid the Monthly Quick One Rent due for December 2004 prior to December 8, 2004, commencing December 8, 2004, and on the same day of each month thereafter until the earlier of (i) the date Quick One shall have commenced paying the Monthly Quick One Rent, or (ii) the date of the issuance of the Quick One Certificate and the date Quick One shall have taken possession of the Quick One Space (whichever is later), the Quick One Monthly Rent shall be promptly disbursed to Buyer from the Escrowed Funds upon Buyer’s delivery of written certification to Escrow Holder and Seller that Quick One has not yet paid the Quick One Monthly Rent then due.  In the event that, after Buyer shall have been paid the Quick One Monthly Rent (or any portion thereof) out of the Quick One Escrowed Funds for any particular month.  Buyer should receive payment of all or any portion of the Quick One Monthly Rent from Quick One for such month, Buyer shall immediately remit the same to Seller.  Upon the later to occur of (i) issuance of the Quick One Certificate, and (ii) the date Quick One commences paying the Monthly Quick One Rent (Buyer agrees to enforce the Quick One Lease with respect thereto), the Quick One Escrowed Funds still being held by Escrow Holder and not previously disbursed by Escrow Holder pursuant to this Section 4 shall be promptly disbursed to Seller.  Buyer agrees to notify Seller in writing promptly upon Buyer acquiring knowledge of the issuance of the Quick One Certificate and promptly upon Quick One taking possession of the Quick One Space and payment of the Quick One Monthly Rent.

5.Holdback for Cingular Wireless.  Seller has entered into a Site Access Telecommunications License Agreement Ground Space Site (the “Cingular Lease”) dated October 8, 2004 with Pacific Bell Wireless, LLC (“Cingular”) with respect to the Property.  Pursuant to the Cingular Lease, commencing the “Commencement Date” (as defined in the Cingular Lease), Cingular is obligated to pay to the landlord thereunder the sum of $1,750 per month (the “Monthly Cingular Rent”).  Seller and Buyer acknowledge that Cingular may not have obtained the governmental permits (the “Permits”) required to operate its business pursuant to the Cingular Lease prior to the Closing.  At Closing, Seller shall deposit into escrow, with Escrow Holder, the sum of $284,037.11 (the “Cingular Escrowed Funds”) with respect to the Cingular Lease (the Purchase Price payable by Buyer shall be the source of the Cingular Escrowed Funds).  Upon written confirmation from Cingular that it has obtained the Permits (if Cingular refuses to confirm in writing that Cingular has obtained the Permits, Cingular’s commencement of its business operations on the Property pursuant to the Cingular Lease shall be deemed Cingular’s written confirmation that it has obtained the Permits), the Cingular Escrowed Funds shall be released to Seller.  Buyer and Seller agree to exert diligent good faith efforts to obtain such written confirmation.  If Cingular terminates the Cingular Lease pursuant to Section 16.10 thereof prior to the release of the Cingular Funds to

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Seller, upon such termination the Cingular Escrowed Funds shall be delivered to Buyer.  Prior to release of the Cingular Escrowed Funds to Seller, all Monthly Cingular Rent paid to Buyer shall be promptly remitted to Seller.

6.Agreement in Effect.  The terms and provisions of this Amendment shall control over any inconsistent terms and provisions of the Agreement.  Except as amended hereby, the parties acknowledge and agree that the Agreement is in full force and effect in accordance with its terms.  If required by Escrow Holder, Buyer and Seller shall enter into a separate escrow agreement with Escrow Holder to implement the post-Closing elements of this Amendment, provided such escrow agreement is not in conflict with this Amendment.  This Amendment may be executed in counterparts, each of which shall be an original and both of which, together, shall constitute one and the same instrument.

SIGNATURES ON NEXT PAGE

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IN WITNESS WHEREOF, the parties have duly executed this Amendment as of the day and year first above written.

SELLER:	Donahue Schriber Realty Group, L.P., a Delaware limited partnership
	By: Donahue Schriber Realty Group, Inc., a Maryland corporation its general partner
	By:	/s/ Patrick S. Donahue
	Name:					Patrick S. Donahue
	Title:		President
	By:	/s/ Dirk Van Wyk
	Name:				Dirk Van Wyk
	Title:			Vice President
BUYER:	Inland Real Estate Acquisitions, Inc., an Illinois corporation
	By:	/s/ Karen M. Kautz
	Name:				Karen M. Kautz
	Title:		Vice President

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PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS

THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (this “Agreement”) is entered into as of September 2, 2004 by and between Donahue Schriber Realty Group, L.P., a Delaware limited partnership (“Seller”), and Inland Real Estate Acquisitions, Inc., an Illinois corporation (“Buyer”).

RECITALS:

A.Seller is the owner of certain real property improved as aretail center known as Plaza at River Lakes located in Bakersfield, California.

B.Buyer desires to purchase that property, and Seller desires to sell that property, on the terms and conditions contained in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement, Buyer and Seller agree as follows:

1.  PURCHASE AND SALE

1.1  Agreement to Buy and Sell.  Subject to all of the terms and conditions of this Agreement, Seller hereby agrees to sell and convey to Buyer and Buyer hereby agrees to acquire and purchase from Seller the following (collectively, the “Property”):

1.1.1  All of Seller’s right, title and interest in and to that certain parcel of real property described on) Exhibit “A” attached hereto, together with all of Seller’s rights, privileges and easements appurtenant thereto (collectively, the “Land”);

1.1.1  All of Seller’s right, title and interest in and to all improvements, structures, equipment and fixtures located on or under the Land (collectively, the “Improvements”) (the Land and Improvements are herein collectively called the “Project”);

1.1.2  All of Seller’s right, title and interest in and to all tangible personal property, if any, located on or affixed to the Project and used in connection with the ownership, operation, use or maintenance of the Project, and all intangible property, if any, owned or held by Seller that pertains to the ownership, maintenance, use or operation of the Project, including but not limited to the Project’s name (collectively, the “Personal Property”);

1.1.3  All of Seller’s interest in any leases or other agreements demising space in or providing for the use or occupancy of any portion of the Project (collectively, the “Leases”); and

1.1.4  All of Seller’s right, title and interest in and to any and all service contracts, maintenance agreements, warranties, guaranties, permits and licenses and other contracts and agreements relating to the Property, if any, which continue in full force and effect beyond the

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“Closing” (as defined below) (collectively, the “Contracts”), to the extent the Contracts are assignable.  The Property does not include cash, any insurance claims (except to the extent Section 4.5 is applicable), or any other claims against third parties.

1.2  Purchase Price.  The purchase price to be paid by Buyer to Seller for the Property shall be the sum of Seventeen Million Four Hundred Dollars ($17,400,000) (the “Purchase Price”).

1.3  Payment of Purchase Price.  The Purchase Price shall be payable as follows:

1.3.1  Within two (2) business days after the “Effective Date” (as defined below), Buyer shall deliver to Stewart Title Insurance Company (“Escrow Holder” or the “Title Company”), in immediately available funds, the sum of Four Hundred Thousand Dollars ($400,000) (said sum, together with any interest earned thereon while held by Escrow Holder, is herein called the “Deposit”).  Escrow Holder shall deposit the Deposit into an interest-bearing account satisfactory to Buyer pending disbursement in accordance with the terms of this Agreement.  Unless Buyer terminates this Agreement by delivery of written notice of termination (the “Termination Notice”) to Seller and Escrow Holder on or before the date (the “Decision Date”) that is thirty (30) days after the Effective Date, the Deposit shall be non-refundable after the Decision Date, except in the event of Seller’s material default and except as otherwise expressly herein provided, and shall be applied to the Purchase Price at Closing.

1.3.2  Not later than 10:00 am Pacific time on the “Closing Date” (as defined below), Buyer shall deposit into Escrow, by wire transfer of federal funds, the balance of the Purchase Price, subject to adjustment by reason of any applicable prorations and the allocation of closing costs described below.

2.  OPENING OF ESCROW

2.1  Escrow; Escrow Holder.  Within two (2) business days after Seller shall have executed this Agreement, Seller shall open an escrow (the “Escrow”) with Escrow Holder at 505 N.  Brand Blvd., Ste. 800, Glendale, CA 91203, Attn: Josette Loaiza, by delivering an executed copy of this Agreement to Escrow Holder.  The date the Escrow is opened pursuant to the preceding sentence is herein called the “Effective Date”.  Escrow Holder shall promptly advise Buyer and Seller of the Effective Date.

2.2  Escrow Instructions.  The terms and conditions set forth in this Agreement shall constitute both an agreement between Seller and Buyer and escrow instructions for Escrow Holder.  Seller and Buyer shall promptly execute and deliver to Escrow Holder any separate or additional escrow instructions requested by Escrow Holder that are consistent with the terms of this Agreement.  Any separate or additional instructions shall not modify or amend the provisions of this Agreement unless otherwise expressly set forth by mutual consent of Buyer and Seller.  As used in this Agreement, “Closing” shall mean the recordation (or the commitment of the Title Company to do so to the satisfaction of Buyer) of the “Deed” (as defined below) in the Official Records of Kern County, California and the payment of the Purchase Price to Seller.

2.3  Closing Date.  Escrow shall close on or before the date (the “Closing Date”) that is thirty-five (35) days after the Effective Date.

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3.  ACTIONS PENDING CLOSING

3.1  Buyer’s Review of Title.

3.1.1  Seller shall cause the Title Company, promptly after the Effective Date, to deliver to Buyer a copy of a current preliminary title report or commitment for title insurance (as well as a copy of each exception referenced therein) showing the condition of title to the Property (the “Title Report”).  Upon receipt from Buyer of funds sufficient to pay for a survey of the Property, Seller shall engage a surveyor to prepare a survey of the Property (the “Survey”) that meets the requirements set forth on Schedule 3.1.1 hereof.  Seller is ordering the Survey as an accommodation to Buyer, and in no event shall Seller be in breach or default by reason of the contents, or timing of delivery, of the Survey.

3.1.2  Buyer shall have until the later of five (5) days after receipt of the Title Report and Survey or twenty five (25) days after the Effective Date ((the “Title Date”) within which to deliver to Seller written notice of Buyer’s disapproval of title as shown on the Title Report and Survey (those title matters identified on the Title Report and Survey and timely disapproved in writing by Buyer are hereafter called the “Disapproved Exceptions”).  Buyer’s failure to deliver such notice to Seller on or before the Title Date shall constitute Buyer’s approval of the condition of title as shown on the Title Report and Survey.

3.1.3  Seller shall notify Buyer in writing within three (3) business days after Seller’s receipt of Buyer’s notice of Disapproved Exceptions that: (a) Seller will remove such Disapproved Exceptions from title as of or before Closing; or (b) Seller will not remove any or certain specified Disapproved Exceptions from title.  Seller’s failure to address any Disapproved Exceptions in any notice, or failure to give a notice as to any Disapproved Exceptions, shall constitute Seller’s statement that it will not remove such Disapproved Exceptions from title.

3.1.4  If Seller does not provide Buyer with written notice that it shall remove all Disapproved Exceptions from title, Buyer shall have the right to terminate this Agreement by delivery of written notice of termination in accordance with Section 3.3 on or before the Decision Date, as Buyer’s sole and exclusive remedy.  Buyer’s failure to provide such notice of termination on or before the Decision Date shall constitute Buyer’s waiver of its disapproval of the Disapproved Exceptions.  In the case of Buyer’s waiver (or deemed waiver) of Disapproved Exceptions, Seller shall have no obligation to remove or otherwise address such Disapproved Exceptions from title, and such waived Disapproved Exceptions shall be deemed approved.  If Buyer elects to terminate this Agreement pursuant to this Section 3.1.4, the provisions of Section 3.3 shall apply.  Except for the Disapproved Exceptions Seller removes or covenants to remove, the exceptions to title shown by the Title Report and Survey and any encumbrance arising from the acts of Buyer are called the “Permitted Exceptions” in this Agreement.  In no event shall any mortgage or judgment liens be Permitted Exceptions, and Seller shall cause the same to be removed at or before Closing.  Should a supplemental Title Report be issued by the Title Company after the date of the original Title Report disclosing additional title exceptions that adversely affect the condition of title to the Property, then the Title Date shall, if applicable, be extended to the date that is three (3) business days after Buyer’s receipt of the supplemental Title Report, and if necessary, the Closing Date shall be automatically

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extended to the extent necessary to accommodate the approval procedures of Section 3.1.3 and this Section 3.1.4.

3.2  Buyer’s Review of the Property; Agreements.  Promptly after the Effective Date, Seller shall provide Buyer with copies of (or make available to Buyer for review at the Project) the items reflected on Schedule 3.1 attached hereto (collectively, the “Due Diligence Documents”).  Notwithstanding the foregoing or any other provision hereof to the contrary, (i) Seller’s responsibility to provide Due Diligence Documents shall be limited to those Due Diligence Documents in Seller’s (or its property manager’s) possession (without limiting the foregoing, those items that are marked “not in our possession” on Schedule 3.1 shall not be provided), (ii) Seller shall not be required to generate reports or analyses not typically prepared (or reflecting information not typically reflected) in Seller’s ordinary course of business, and (iii) the Due Diligence Documents are provided as an accommodation to Buyer and Seller expressly disclaims any and all representations and warranties regarding the same.  On or before the Decision Date, Buyer shall have reviewed the foregoing and prepared, obtained, reviewed (or shall have chosen not to have prepared, obtained or reviewed) and approved, among other things, all other reports of investigations of the Property, including, such soil, environmental, geological and engineering tests and reports, and other inspections of the Property as Buyer shall deem necessary in order to determine whether the Property is suitable for Buyer’s intended use, as well as investigated (or chosen not to have investigated) all zoning requirements, federal, state and local laws, ordinances, rules, regulations, permits, licenses, approvals and orders applicable to the Property.  Pursuant to and subject to the requirements of Section 3.5 of this Agreement, Buyer may enter onto the Property for the purpose of conducting its inspection (the “Inspection”) of the Property; provided, however, without first obtaining Seller’s prior written consent, which consent will not be unreasonably withheld, Buyer shall only conduct a visual inspection, with no right to conduct any physical testing, boring, sampling or removal (collectively “Physical Testing”) of any portion of the Property.  If Buyer wishes to conduct any Physical Testing of the Property, Buyer shall submit a work plan to Seller prior to the Decision Date for Seller’s prior written approval, which work plan Seller may modify, limit or disapprove in its reasonable discretion.  If, on the basis of the review and the Inspection described in this Section 3.2, or if for any other reason or no reason, Buyer determines that the Property is not suitable for Buyer’s intended use, then Buyer may terminate this Agreement by delivering the Termination Notice to Seller and Escrow Holder on or before the Decision Date.  Buyer’s failure to deliver the Termination Notice to Seller and Escrow Holder on or before the Decision Date shall constitute Buyer’s approval of the aforementioned items and of the condition of the Property.

3.3  Buyer’s Termination.  If Buyer elects to terminate this Agreement in accordance with Sections 3.1.4 or 3.2, Buyer shall deliver the Termination Notice to Seller and Escrow Holder on or before the Decision Date.  If Buyer elects to terminate this Agreement in accordance with Sections 4.4 or 4.5, then on or before the dates specified therein, Buyer shall deliver a Termination Notice to Seller and Escrow Holder that Buyer elects to terminate this Agreement pursuant to said Sections.  Buyer’s failure to timely deliver such termination notice pursuant to said Sections of this Agreement shall constitute Buyer’s waiver of Buyer’s right to terminate this Agreement pursuant to said Sections.  If Buyer timely elects to terminate this Agreement pursuant to Sections 3.1.4, 3.2, 4.4 or 4.5, Escrow Holder shall deliver the Deposit to Buyer, less fifty percent (50%) of any Escrow termination fee, and Escrow Holder shall return to the depositor thereof any other materials

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previously placed in Escrow and remaining in Escrow; and neither party shall thereafter have any further rights or obligations under this Agreement unless expressly provided otherwise herein.

3.4  No Processing.  Without Seller’s prior written consent, until the Closing, Buyer shall not make any application to any governmental agency for any permit, approval, license or other entitlement for the Property or the use or development thereof.

3.5  Access to Property.

3.5.1  Subject to the rights of existing tenants of the Property (“Tenants”), whom Buyer hereby agrees not to interview or question without having provided Seller and Seller’s Broker (as defined below) with at least 24 hours prior written notice of its intention to do so during such interview, Seller hereby grants to Buyer and Buyer’s representatives, agents, employees and contractors (collectively, “Buyer’s Agents”) a nonexclusive license to enter onto the Property solely for the purpose of conducting Buyer’s Inspection.  Any Inspection work shall be at the sole cost and expense of Buyer.  The license created under this Section 3.5.1 shall expire on termination of this Agreement.  At least forty-eight (48) hours prior to any entry and Inspection, Buyer shall provide Seller with sufficient evidence to show that Buyer and Buyer’s Agents, who are to enter upon the Property, are adequately covered by policies of insurance issued by a carrier reasonably acceptable to Seller insuring Buyer and Seller against any and all liability arising out of Buyer’s or Buyer’s Agents’ entry upon and Inspection of the Property, including without limitation any loss or damage to the Property, with coverage in the amount of not less than $1,000,000 per occurrence.

3.5.2  Buyer agrees to keep the Property free from any liens arising out of any work performed, materials furnished or obligations incurred by or on behalf of Buyer or Buyer’s Agents with respect to any Inspection or Physical Testing of the Property.  If any such lien shall at any time be filed, Buyer shall cause the same to be discharged of record within twenty (20) days thereafter by satisfying the same or, if Buyer in its discretion and in good faith determines that such lien should be contested, by recording a bond.  Failure by Buyer to discharge such lien shall be a material breach of this Agreement and Seller may terminate this Agreement by written notice thereof to Buyer.

3.5.3  Buyer shall, at its sole cost and expense, comply with all applicable federal, state and local laws, statutes, rules, regulations, ordinances, or policies in conducting the Inspection and the Physical Testing.

3.5.4  Buyer hereby agrees to hold harmless, protect, defend and indemnify, and hereby releases, Seller and its trustees, officers, directors, employees, contractors, agents, subsidiaries and affiliates, and its and their respective successors and assigns (collectively, the “Indemnitees”) and the Property from and against any and all claims, demands, causes of action, losses, liabilities, liens, encumbrances, costs or expenses (including without limitation reasonable attorneys’ fees and litigation costs) arising out of, connected with or incidental to: (a) any injuries to persons (including death) or property (real or personal), or (b) any mechanics’, workers’ or other liens on the Property, by reason of or relating to the work or activities conducted on the Property by Buyer or Buyer’s Agents.  The provisions of this Section 3.5.4 shall survive any termination of this Agreement and shall not be limited in any way by any other terms of this Agreement.

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3.5.5  In no event shall Buyer or Buyer’s Agents have the right to place any materials or equipment on the Property (including, without limitation, signs or other advertising material) until after the Closing has occurred.

3.5.6  Buyer shall, at its sole cost and expense, clean up and repair the Property, in whatever manner necessary, after Buyer’s or Buyer’s Agents’ entry thereon so that the Property shall be returned to the same condition that existed prior to Buyer’s or Buyer’s Agents’ entry thereon.

4.  ADDITIONAL AGREEMENTS OF THE PARTIES

4.1  Seller’s Representations and Warranties.  Seller hereby represents, warrants and covenants to and agrees with Buyer as follows:

4.1.1  Seller has the legal right, power and authority to own the Property and to enter into and consummate the transactions contemplated by this Agreement, and this Agreement and all instruments, documents and agreements to be executed by Seller in connection herewith are, or when delivered shall be, duly authorized, executed and delivered by Seller and are, or when delivered shall be, valid, binding and enforceable obligations of Seller.

4.1.2  There are no pending or, to Seller’s knowledge, threatened legal proceedings, administrative actions, or pending governmental investigation of any kind or character adversely affecting the Project or Seller’s interest therein.

4.1.3  To Seller’s knowledge and except as may be disclosed in the Due Diligence Documents, Seller has received no written notice from any government authority of any violation of any statute, ordinance, code or regulation with respect to the Project, which violation has not been corrected.

4.1.4  To Seller’s knowledge and except as may be disclosed in the Due Diligence Documents, Seller has received no written notice that the Project is in violation of any federal, state and local laws, ordinances and regulations applicable to the Project with respect to “Hazardous Materials” (as defined below), nor to Seller’s knowledge have any Hazardous Materials been or are currently being produced, disposed of, used or stored on or under the Property in violation of applicable law.

4.1.5  Seller is not required to obtain any consents or approvals to consummate the transactions contemplated in this Agreement.

4.1.6  To Seller’s knowledge, the copies of the Leases and Contracts delivered to Buyer (or made available to Buyer) for its review are true and correct copies of the Leases and Contracts and are all of the Leases and Contracts affecting the Property.

4.1.7  As used herein, “to Seller’s knowledge” and phrases of similar import means the actual (not constructive and without attribution) conscious knowledge, without undertaking, and without any duty to undertake, any investigation or inquiry, of Deborah Hawthorne and Dirk Van Wyk, which individuals are the employees of Seller (or its affiliates) with the operational/asset

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disposition responsibility for the Project.  It is expressly agreed and understood that in no event shall Buyer be entitled to bring any action(s) for damages or otherwise against such individuals.  In the event Seller or Buyer should become aware of any facts or circumstances prior to the Closing Date that should render any of Seller’s representations and warranties that are limited to Seller’s knowledge no longer accurate, the party first becoming so aware shall promptly notify the other party Buyer in writing, and Buyer shall have the right, as its sole and exclusive remedy, to terminate this Agreement by written notice to Seller and Escrow Holder delivered within seven (7) days after receipt of Seller’s notice or first becoming aware of such facts, in which case this Agreement shall terminate in accordance with Section 3.3.  This Section 4.1.7 shall supersede any inconsistent provision of this Agreement.

4.2  Buyer’s Representations and Warranties.  Buyer hereby represents, warrants and covenants to and agrees with Seller as follows:

4.2.1  Buyer’s Investigation and Release.  (a) Buyer acknowledges that, except as explicitly set forth herein, there are no representations or warranties of any kind whatsoever, express or implied, made by Seller in connection with this Agreement, the purchase of the Property by Buyer, the Contracts, the Leases, the physical condition of the Property or whether the Property complies with applicable laws or is appropriate for Buyer’s intended use; (b) prior to the Decision Date Buyer shall have (or shall have chosen not to have) fully investigated the Property (including the Leases and Contracts) and all matters pertaining thereto; (c) Buyer is not relying on any statement or representation of Seller, its agents or its representatives nor on any information supplied by Seller, its agents or its representatives; (d) Buyer, in entering into this Agreement and in completing its purchase of the Property, is relying, and shall rely, entirely on its own investigation of the Property based on its extensive experience in and knowledge of real property in the areas where the Property is located; (e) Buyer is aware (or has chosen not to be aware) of all zoning regulations, other governmental requirements, legal, site and physical conditions, and other matters affecting the use and condition of the Property; (f) Buyer’s decision to purchase the Property on the terms and conditions hereof has been, and at all times shall be, made solely and exclusively in reliance on Buyer’s own review, inspection and investigation of the Property (including the Leases and Contracts) and of materials, documents, information and studies relating to the Property; (g) BUYER SHALL PURCHASE THE PROPERTY IN ITS “AS IS”CONDITION AS OF THE DATE OF CLOSING.  Without limiting the foregoing, Buyer acknowledges that Buyer has accepted full responsibility for assuring the Property complies at Closing with all applicable laws, rules, regulations, orders and ordinances, and in the event any such laws, rules, regulations, orders or ordinances impose any pre-Closing obligations upon Seller, Seller shall have the right to (i) perform the same at Buyer’s expense and the cost thereof shall be added to the Purchase Price at Closing, if Seller is obligated by law to perform the same prior to Closing, and/or (ii) require Buyer to execute and deliver at Closing any documentation requested by Seller or required by governmental authorities confirming Buyer has accepted such responsibility and indemnifying Seller against the same.

4.2.2  Authority.  Buyer has the power and authority to own the Property and to consummate the transactions contemplated by this Agreement.  This Agreement and all instruments, documents and agreements to be executed by Buyer in connection herewith are or when delivered shall be duly authorized, executed and delivered by Buyer and are valid, binding and enforceable

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obligations of Buyer.  Each individual executing this Agreement on behalf of Buyer represents and warrants to Seller that he or she is duly authorized to do so.

4.2.3  Consents.  Buyer is not required to obtain any consents or approvals to consummate the transactions contemplated in this Agreement.

4.3  Reaffirmation.  The representations and warranties of Seller and Buyer set forth in Sections 4.1 and 4.2 are true and correct as of the date of this Agreement and shall be true and correct as of the Closing.  The Closing shall constitute each party’s reaffirmation of those representations and warranties as of the Closing, and each party shall execute and deliver at Closing a document (a “Reaffirmation Certificate”) reaffirming such representations and warranties.

4.4  Condemnation.  If, prior to Closing, any portion of the Property shall be condemned or become the subject of any pending or threatened condemnation action, Seller shall promptly notify Buyer thereof.  This Agreement shall remain in full force and effect, regardless of such condemnation or threatened or pending action, and if any condemnation award is received by Seller prior to Closing, the amount of such award shall be applied as a credit against the Purchase Price.  Any condemnation awards received by Seller on or after Closing shall be promptly delivered by Seller to Buyer.  Notwithstanding the foregoing, in the event such condemnation involves 5% or more of the Land or the Improvements or affects any of the existing access points to the Property, Buyer shall be entitled to terminate this Agreement by written notice thereof to Seller given within five (5) business days after Buyer shall have been notified of such condemnation, whereupon the Deposit (to the extent previously delivered to Escrow Holder) shall be returned to Buyer.  Buyer’s failure to timely deliver such notice to Seller within such five (5) business day period shall constitute Buyer’s election to proceed to Closing.

4.5  Damage or Destruction.  In the event of any damage to or destruction of the Property prior to the Closing, Seller shall promptly notify Buyer thereof and the Closing shall nevertheless occur as otherwise provided for in this Agreement, except Seller shall assign to Buyer upon the Closing all insurance proceeds paid or payable to Seller in connection with such occurrences.  Seller shall have no obligation to repair such damage or destruction.  Notwithstanding the foregoing, if such damage or destruction to the Property shall cost more than $ 100,000 to repair, then Seller shall promptly so notify Buyer and within five (5) business days after receipt of such notice, Buyer shall deliver written notice to Seller and Escrow Holder, electing either: (a) to proceed with this transaction and Closing in accordance with this Agreement notwithstanding such damage or destruction; or (b) to terminate this Agreement in accordance with the terms of Section 3.3.  Buyer’s failure to deliver either of such notices to Seller and Escrow Holder within such five (5) business day period shall constitute Buyer’s election to proceed to Closing under clause (a).

4.6  Tenant Lease Amendments; Management of Property.  Seller agrees to promptly provide Buyer with a copy of all proposed amendments to existing Leases, and all proposed new Leases, of any portion of the Property proposed to be executed after the Effective Date and before the date (the “Stop Date”) that is seven (7) days prior to the Decision Date for Buyer’s review, but in no event shall Buyer have any right to approve the same, and Buyer’s failure to terminate this Agreement on or before the Decision Date shall constitute Buyer’s deemed approval of all such Lease amendments and new Leases.  From and after the Stop Date, Buyer shall not execute any amendments to any

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existing Leases, or any new Leases, without Buyer’s prior written consent.  Upon the Closing, Buyer shall reimburse Seller for, or assume Seller’s obligations with respect to, all leasing commissions paid or payable by Seller and/or tenant improvement obligations of Seller with respect to all Lease amendments and new Leases approved (or deemed approved) by Buyer pursuant to this Section 4.6 (except Seller shall be responsible for all such expenses related to any such lease with Cingular Wireless, and Seller shall be responsible for any leasing commissions payable with respect to any Leases that are renewed or extended before the Closing Date).  Subject to damage or destruction, or other matters outside of Seller’s control, Seller agrees to continue to manage the Property until Closing in the same manner it is currently managing the Property (in no event shall Seller have any obligation to make capital repairs, replacements or improvements, nor to cause the Property to comply with applicable laws).  Prior to Closing, and for a reasonable period of time thereafter, Seller agrees to reasonably cooperate with Buyer and Buyer’s accountants to facilitate Buyer’s evaluations and required reports, including at least a one-year audit of the books and records of the Property, which audit shall conclude with the execution by Seller of a letter in the form attached hereto as Schedule 4.6 (Seller confirms that the representations in such letter are, to Seller’s knowledge, correct as of the date of execution of this Agreement, but Seller reserves the right to revise such letter to reflect the state of Seller’s knowledge at the time Seller is requested to execute such letter).

4.7  Estoppel Certificates.  Seller agrees to promptly exert good faith efforts to obtain estoppel certificates (“Estoppels”) and subordination, non-disturbance and attornment agreements (“SNDAs”), on Seller’s form or on such other reasonable forms as Buyer shall deliver to Seller within five (5) days after the Effective Date, from the Tenants.  Seller shall not be in default hereunder by reason of the unavailability, or contents, of any Estoppel or SNDA.  Subject to the further terms of this Section 4.7, Buyer shall have the right to terminate this Agreement pursuant to Section 3.3 if prior to Closing Seller shall be unable to obtain Estoppels approved by Buyer executed by (i) Ralph’s (the “Major”), plus (ii) other tenants (the “Minors”) which, in the aggregate, occupy at least seventy five percent (75%) of the remaining leased space at the Property not counting the space leased by the Major.  Buyer shall be deemed to have approved each Estoppel delivered to it by Seller unless Buyer shall have delivered written notice to Seller objecting to such Estoppel within four (4) days after Seller’s delivery of such Estoppel to Buyer.  Buyer shall have no right to object to, and shall be deemed to have approved, any Estoppel executed on a form set forth in, or stipulated by, the applicable lease that does not reflect a default by landlord or tenant and that does not contain any information materially inconsistent with the information set forth in the applicable lease to which it pertains.  Buyer shall have no right to terminate this Agreement by reason of the unavailability, or contents, of any SNDAs.  Seller agrees to execute and deliver to Buyer at Closing a “Seller Estoppel” with respect to those Minors as to which Seller has been unable to obtain an executed Estoppel, but each Seller Estoppel shall be limited “to Seller’s knowledge” (as defined in Section 4.1.7).

4.8  Hazardous Material Waiver.  Buyer, on behalf of itself, its successors and assigns, hereby releases Indemnitees from and against any and all liabilities, claims, demands, suits, judgments, causes of action (including, but not limited to, causes of action arising under the Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601 et. seq.), losses, costs, damages, injuries, penalties, enforcement actions, fines, taxes, remedial actions, removal and disposal costs, investigation and remediation costs and expenses (including, without limit, attorneys’ fees, litigation, arbitration and administrative proceeding costs,

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expert and consultant fees and laboratory costs), sums paid in settlement of claims, whether direct or indirect, known or unknown, arising out of, related in any way to, or resulting from or in connection with, in whole or in part, the presence or suspected presence of Hazardous Materials (defined below) in, on, under, or about the Property.

“Hazardous Material(s)” means any chemical, substance, material, controlled substance, object, condition, waste living organisms or combination thereof which is or may be hazardous to human health or safety or to the environment due to his radioactivity, ignitability, corrosivity, reactivity, explosivity, toxicity, carcinogenicity, mutagenicity, phytotoxicity, infectiousness or other harmful or potentially harmful properties or effects, including, without limitation, petroleum hydrocarbons and petroleum products, lead, asbestos, radon, polychlorinated biphenyls (PCBs) and all of those chemicals, substances, materials, controlled substances, objects, conditions, wastes, living organisms or combinations thereof which are now or become in the future listed, defined or regulated in any manner by any federal, state or local law based upon, directly or indirectly, such properties or effects.

5.  CLOSING

5.1  Deposits Into Escrow.

5.1.1  At least one (1) business day prior to the Closing Date, Seller shall deposit into Escrow:

(a)  A grant deed conveying the Project to Buyer (the “Deed”), subject to the Permitted Exceptions;

(b)  An affidavit or qualifying statement which satisfies the requirements of Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations thereunder (the “Non-Foreign Affidavit”), and a “Withholding Exemption Certificate, Form 593”, pursuant to the California Revenue and Taxation Code stating either the amount of withholding required from Seller’s proceeds or that Seller is exempt from such withholding requirement (the “Certificate”).

(c)  An original bill of sale and assignment (the “Bill of Sale”), duly executed by Seller, assigning and conveying to Buyer all of Seller’s right, title and interest in and to the Personal Property.  The Bill of Sale shall be in the form of Exhibit “B” attached hereto;

(d)  An original assignment and assumption agreement (the “Assignment and Assumption Agreement”) duly executed by Seller assigning all of Seller’s right, title and interest in and to the Leases and the Contracts.  The Assignment and Assumption Agreement shall be in the form of Exhibit “C” attached hereto; and

(e)  A letter to each Tenant (the “Tenant Letters”) advising the Tenant of the sale of the Property, the transfer of the Tenant’s security deposit to Buyer and of the name and address of Buyer (or its property manager).

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5.1.2  On or before 10:00 a.m.  Pacific time or the Closing Date, Buyer shall deposit into Escrow:

(a)  Funds in accordance with the provisions of Section 1.3.2;

(b)  Buyer’s Reaffirmation Certificate;

(c)  An original counterpart of the Assignment and Assumption Agreement duly executed by Buyer; and

(d)  the Tenant Letters.

5.1.3  Seller and Buyer shall each deposit such other instruments and funds as are reasonably required by Escrow Holder or otherwise required to close Escrow and consummate the sale of the Property in accordance with the terms of this Agreement, including but not limited to documents required under Section 5.4.1.

5.2  Prorations.

5.2.1  Rentals from Leases (including fixed monthly rentals and other periodic rentals, additional rentals, percentage rentals, operating cost pass-throughs and other sums and charges payable by the tenants), prepaid rentals and prepaid payments (collectively, “Rent”) shall, subject to the further provisions hereof, be prorated on the basis that Buyer shall receive a credit for all security deposits actually held by Seller and for all Rent which Seller has actually received before the Closing which is allocable to the period after the Closing.  Seller shall not receive a credit for any Rent Seller has not received as of the Closing that is allocable to the period prior to the Closing.  If Buyer shall collect any such Rent (including without limitation percentage rent) after the Closing, Buyer shall promptly pay the same to Seller, after application of the same to any rent due from the applicable Tenant after the Closing.

5.2.2  Real estate taxes shall be prorated as of the Closing on the basis of the most recent assessed valuation of and rates and multiplier applicable to the Property.  If prorations are not made on the basis of the current tax year or if supplemental taxes are assessed after the Closing for the period prior to the Closing, the parties shall make any necessary adjustment after Closing by cash payment upon demand to the party entitled thereto so that Seller shall have borne all taxes allocable to the period prior to the Closing (including all supplemental taxes which are allocable to the period prior to Closing) and Buyer shall bear all taxes allocable to the period after the Closing (including all supplemental taxes which arc allocable to the period after the Closing).

5.2.3  Seller shall endeavor to have all of its utility accounts with respect to the Property closed out effective as of the Closing Date; if such close-out is not possible, utilities shall be prorated as of the Closing (with the assumption that utility charges were uniformly incurred during the billing period in which the Closing occurs).

5.2.4  Common area and maintenance charges, property taxes, insurance and other operating cost pass-throughs payable by Tenants which accrue as of the Closing Date, but which are

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not then due and payable (collectively, the “Operating Expenses”), shall not be prorated, except as herein provided.  Buyer shall receive and retain any Operating Expenses paid by Tenants on or after the Closing Date and Seller shall receive and retain any Operating Expenses paid by Tenants prior to the Closing Date; provided, however, that any monthly or periodic deposits or payments of estimated Operating Expenses with respect to the month in which the Closing occurs received by Seller prior to the Closing Date or by Buyer on or after the Closing Date shall be prorated as of the Closing Date.  Buyer and Seller shall prorate at Closing, actual Operating Expenses collected by Seller from Tenants prior to Closing with actual Operating Expenses paid by Seller with respect to such period, so that if there are any rebates owing to Tenants for the period of Seller’s ownership, Seller shall pay Buyer the amount of such rebates at Closing, and if the Tenants owe the landlord any additional amounts for Operating Expenses with respect to the period of Seller’s ownership, Buyer shall promptly pay Seller the amount so owed to the landlord upon Buyer’s receipt of the same (and Buyer shall exert diligent good faith efforts to collect the same).  Any prorations under this Agreement based upon monthly amounts shall be based upon a thirty (30) day month; any prorations under this Agreement based upon annual amounts shall be based upon a 366 day year.

5.3  Payment of Closing Costs.

5.3.1  Closing Costs Borne by Seller.  Seller shall bear and Escrow Holder shall discharge on Seller’s behalf out of the sums payable to Seller hereunder (a) one-half of Escrow Holder’s fee, (b) the Kern County documentary transfer taxes, (c) all costs and expenses of the Owner’s Policy (except Buyer shall pay all costs attributable to any endorsements, any extended coverage and any deletion of the survey exception from the policy), and (d) any additional charges payable in accordance with common escrow practices in Kern County, California.

5.3.2  Closing Costs Borne by Buyer.  Buyer shall deposit with Escrow Holder for disbursement by Escrow Holder (a) one-half of Escrow Holder’s fee, (b) all costs and expenses of the Owner’s Policy not borne by Seller, (c) the recording fees and documentary transfer fees not borne by Seller required in connection with the transfer of the Property to Buyer, and (d) any additional charges payable in accordance with common escrow practices in Kern County, California.

5.4  Closing of Escrow.

5.4.1  Pursuant to Section 6045 of the Internal Revenue and Taxation Code, Escrow Holder shall be designated the “closing agent” hereunder and shall be solely responsible for complying with the tax reform act of 1986 with regard to reporting all settlement information to the Internal Revenue Service.

5.4.2  Escrow Holder shall hold the Closing on the Closing Date if: (i) it has received in a timely manner all the funds and materials required to be delivered into Escrow by Buyer and Seller; and (ii) it has received assurances satisfactory to it that, effective as of the Closing, the Title Company will issue to Buyer, its standard coverage CLTA title insurance policy in the amount of the Purchase Price, insuring Buyer as the owner of the Property, subject only to the Permitted Exceptions (the “Owner’s Policy”).

5.4.3  To Close the Escrow, Escrow Holder shall:

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(a)  Cause the Deed to be recorded and thereafter mailed to Buyer, and deliver the Owner’s Policy, Bill of Sale, Assignment and Assumption Agreement (executed by Seller) and Non-Foreign Affidavit and Certificate to Buyer; and

(b)  Deliver to Seller the Buyer’s Reaffirmation Certificate, the Assignment and Assumption Agreement (executed by Buyer), and by wire transfer of federal funds, funds in the amount of the Purchase Price, plus or less any net debit or credit to Seller by reason of the prorations and allocations of closing costs provided for in this Agreement.

5.5  Failure to Close; Cancellation.  If Escrow Holder is not in a position to Close the Escrow on the Closing Date, then this Agreement shall terminate (and if Buyer is in default the Deposit shall be paid to Seller), except that no such termination shall relieve either party of liability for any failure to comply with the terms of this Agreement.

5.6  LIQUIDATED DAMAGES.  BUYER AND SELLER AGREE THAT IN THE EVENT OF A MATERIAL DEFAULT OR BREACH HEREUNDER BY BUYER (INCLUDING, WITHOUT LIMITATION, ANY DEFAULT OR BREACH BY BUYER WHICH RESULTS IN THE FAILURE OF ESCROW TO CLOSE), THE DAMAGES TO SELLER WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN, AND THAT THEREFORE THE DEPOSIT IS A REASONABLE ESTIMATE OF THE DAMAGES TO SELLER, SUCH DAMAGES INCLUDING COSTS OF NEGOTIATING AND DRAFTING OF THIS AGREEMENT, COSTS OF COOPERATING IN SATISFYING CONDITIONS TO CLOSING, COSTS OF SEEKING ANOTHER BUYER UPON BUYER’S DEFAULT, OPPORTUNITY COSTS IN, AND CARRYING COST ASSOCIATED WITH, KEEPING THE PROPERTY OUT OF THE MARKETPLACE, AND OTHER COSTS INCURRED IN CONNECTION HEREWITH.  ACCORDINGLY, BUYER AND SELLER AGREE THAT, EXCEPT FOR ANY DAMAGES, COSTS AND EXPENSES INCURRED IN CONNECTION WITH OR RESULTING FROM BUYER’S DEFAULT, OR BREACH OF ITS INDEMNITY OBLIGATIONS UNDER SECTIONS 3.5 AND 6.16 (WHICH DAMAGES, COSTS AND EXPENSES SHALL SURVIVE ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND ARE NOT LIMITED BY THIS SECTION 5.6), RECEIPT AND RETENTION OF THE DEPOSIT SHALL BE THE SOLE DAMAGES OF SELLER IN THE EVENT OF ANY BREACH OR DEFAULT BY BUYER HEREUNDER.

/s/ PSD/[ILLEGIBLE]	/s/ [ILLEGIBLE]
Seller’s Initials	Buyer’s Initials

5.7  Seller’s Breach.  In the event of a material breach by Seller hereunder, Buyer’s remedies shall be limited to (i) termination of this Agreement and the return to it of the Deposit, or (ii) specific performance of this Agreement.  Buyer expressly waives and releases any right to sue Seller for damages.

5.8  Possession.  Subject to the Permitted Exceptions and the rights of the Tenants, possession of the Property shall be delivered to Buyer upon Closing.

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6.  GENERAL PROVISIONS

6.1  Counterparts.  This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same instrument.

6.2  Entire Agreement.  This Agreement contains the entire integrated agreement between the parties respecting the subject matter of this Agreement and supersedes all prior and contemporaneous understandings and agreements, whether oral or in writing, between the parties respecting the subject matter of this Agreement.

6.3  Legal Advice; Neutral Interpretation; Headings.  Each party has received independent legal advice from its attorneys with respect to the advisability of executing this Agreement and the meaning of the provisions hereof.  The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any party based upon any attribution to such party as the source of the language in question.  Headings used in this Agreement are for convenience of reference only and shall not be used in construing this Agreement.

6.4  Choice of Law.  This Agreement shall be governed by the laws of the State of California.

6.5  Severability.  If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby.

6.6  Waiver of Covenants, Conditions or Remedies.  The waiver by one party of the performance of any covenant, condition or promise under this Agreement shall not invalidate this Agreement nor shall it be considered a waiver by it of any other covenant, condition or promise under this Agreement.  The waiver by Either or both parties of the time for performing any act under this Agreement shall not constitute a waiver of the time for performing any other act or an identical act required to be performed at a later time.  The exercise of any remedy provided in this Agreement shall not be a waiver of any consistent remedy provided by law, and the provision in this Agreement for any remedy shall not exclude other consistent remedies unless they are expressly excluded.

6.7  Exhibits.  All exhibits to which reference is made in this Agreement are deemed incorporated in this Agreement.

6.8  Amendment.  This Agreement may be amended at any time by the written agreement of Buyer and Seller.  All amendments, changes, revisions and discharges of this Agreement, in whole or in part, and from time to time, shall be binding upon the parties despite any lack of legal consideration, so long as the same shall be in writing and executed by the parties hereto.

6.9  Relationship of Parties.  The parties agree that their relationship is that of seller and buyer, and that nothing contained herein shall constitute either party the agent or legal representative of the other for any purpose whatsoever, nor shall this Agreement be deemed to create any form of business organization between the parties hereto, nor is either party granted any right or authority to

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assume or create any obligation or responsibility on behalf of the other party, nor shall either party be in any way liable for any debt of the other.

6.10  No Third Party Benefit.  This Agreement is intended to benefit only the parties hereto and no other person or entity has or shall acquire any rights hereunder.

6.11  Time of the Essence.  Time shall be of the essence as to all dates and times of performance, whether contained herein or contained in any escrow instructions to be executed pursuant to this Agreement, and all escrow instructions shall contain a provision to this effect.

6.12  Further Acts.  Each party agrees to perform any further acts and to execute, acknowledge and deliver any documents, which may be reasonably necessary to carry out the provisions of this Agreement.

6.13   Recordation.  Buyer shall not record this Agreement, any memorandum of this Agreement, any assignment of this Agreement or any other document that would cause a cloud on the title to the Property.

6.14  Assignment.  Upon written notice to Seller, Buyer shall be entitled to assign Buyer’s rights and delegate its obligations hereunder to a third party controlled by Buyer, but no such assignment shall release Buyer of any liability hereunder.  Each party agrees to cooperate with the other party in competing an exchange qualifying for nonrecognition of gain under Internal Revenue Code §1031 and the applicable provisions of the California Revenue and Taxation Code (“Exchange”), and each party reserves the right to convert this transaction to an Exchange at any time before the Closing Date.  If either party does elect to complete an Exchange, the other party shall execute all escrow instructions, documents, agreements or instruments reasonably requested by the first party to complete the Exchange; provided, however, that the other party shall incur no additional liabilities, expenses or costs (other than its attorneys fees in reviewing customary Exchange documentation) as a result of or connected with such Exchange, and shall not be required to take title to any other property.  Notwithstanding that the transaction contemplated hereby should be effected as an Exchange through a third party as a qualified IRC §1031 intermediary, all obligations, representation, warranties and indemnities made by Buyer shall run to Seller, and all obligations, representations, warranties and indemnities made by Seller shall run to Buyer, despite the fact that an intermediary or other third party facilitating a party’s tax-deferred exchange was substituted hereunder for that party.  Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties to this Agreement.

6.15  Attorneys’ Fees.  In the event of any litigation involving the parties to this Agreement to enforce any provision of this Agreement, to enforce any remedy available upon default under this Agreement, or seeking a declaration of the rights of either party under this Agreement, the prevailing party shall be entitled to recover from the other such attorneys’ fees and costs as may be reasonably incurred, including the costs of reasonable investigation, preparation and professional or expert consultation incurred by reason of such litigation.  All other attorneys’ fees and costs relating to this Agreement and the transactions contemplated hereby shall be borne by the party incurring the same.

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6.16  Brokers.  Pursuant to separate agreement, Seller shall pay CB Richard Ellis (“Seller’s Broker”), a brokerage commission for its services as broker in this transaction if, as and when the Closing occurs (and Seller understands that Seller’s Broker has an agreement with Buyer’s broker, CB Richard Ellis, to pay CB Richard Ellis a portion of such commission at Closing).  Buyer and Seller each represent and warrant to the other that, except as stated in the preceding sentence (a) they have not dealt with any brokers or finders in connection with the purchase and sale of the Property, and (b) insofar as such party knows, no broker or other person is entitled to any commission or finder’s fee in connection with the purchase and sale of the Property.  Seller and Buyer each agree to indemnify and hold harmless the other against any loss, liability, damage, cost, claim or expense incurred by reason of any brokerage fee, commission or finder’s fee which is payable or alleged to be payable to any broker or finder because of any agreement, act, omission or statement of the indemnifying party.  The provisions of this Section 6.16 shall not be limited in any way by any terms of this Agreement.

6.17  Manner of Giving Notice.  All notices and demands which either party is required or desires to give to the other shall be given in writing by personal delivery, express courier service or by telecopy followed by next day delivery of a hard copy to the address or telecopy number set forth below for the respective party, provided that if any party gives notice of a change of name, address or telecopy number, notices to that party shall thereafter be given as demanded in that notice.  All notices and demands so given shall be effective upon receipt by the party to whom notice or a demand is being given.

To Buyer:	To Seller:
Inland Real Estate Acquisitions, Inc.	Donahue Schriber Realty Group, L.P.
2901 Butterfield Road	200 E. Baker Street, Suite 100
Oak Brook, IL 60523	Costa Mesa, CA 92626
Attn.: Mark Youngman	Attn.: Dirk Van Wyk
Telephone: 630-218-4948	Telephone: (714) 545-1400
Fax: 630-218-4935	Fax: (714) 545-4222
With a copy to:	With a copy to:
	David Greenman
	18800 Von Karman Avenue, Suite 100
	Irvine, CA 92612
	Telephone: (949) 224-0338
	Fax:  (949) 224-0339

6.18  Survival.  The terms and provisions of this Agreement shall survive the Closing and the consummation of the transactions contemplated by this Agreement or the termination of this Agreement for any reason without the conveyance of the Property to Buyer.

SIGNATURES ON NEXT PAGE

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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first above written.

SELLER:	Donahue Schriber Realty Group, L.P., a Delaware limited partnership
	By: Donahue Shriber Realty Group, Inc., a Maryland corporation its general partner
	By:	/s/ Patrick S. Donahue
	Name:			Patrick S. Donahue
	Title:		President
	By:	/s/ Dirk Van Wyk
	Name:			Dirk Van Wyk
	Title:		Vice President
BUYER:	Inland Real Estate Acquisitions, Inc., an Illinois corporation
	By:	/s/ Mark Youngman
	Name:			Mark Youngman
	Title:		Vice President

JOINDER OF ESCROW HOLDER

Escrow Holder executes this Agreement for the purpose of agreeing to serve as escrow agent with respect to the Deposit and closing in accordance with this Agreeement.

STEWART TITLE GUARANTY COMPANY
By:	/s/ Josette Loaiza
Name:		Josette Loaiza
Title:		Commercial Escrow Officer

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EX-10.429

Exhibit 10.429

ASSIGNMENT OF CONTRACT

This ASSIGNMENT OF CONTRACT (the “Assignment”) is made and entered into this 26 day of October 2004by INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation (“Assignor”) and INLAND WESTERN GURNEE, L.L.C., a Delaware limited liability company (“Assignee”).

Assignor does hereby sell, assign, transfer, set over and convey unto Assignee all of its right, title and interest as Purchaser under that certain Agreement of Purchase and Sale dated as of October 5, 2004, as amended, and entered into by Rubloff Gurnee Town Centre, L.L.C., an Illinois limited liability company, as Seller, and Assignor, as Purchaser (collectively, the “Agreement”), solely as the Agreement applies to the sale and purchase of the property described by the Agreement, located in Gurnee, Illinois, and known as Gurnee Town Centre.

Assignor represents and warrants that it is the Purchaser under the Agreement, and that it has not sold, assigned, transferred, or encumbered such interest in any way to any other person or entity. By acceptance hereof, Assignee accepts the foregoing Assignment and agrees, from and after the date hereof, to (i) perform all of the obligations of Purchaser under the Agreement, and (ii) indemnify, defend, protect and hold Assignor harmless from and against all claims and liabilities arising under the Agreement.

ASSIGNOR:
INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
By:	/s/ G. Joseph Cosenza
Name:	G. JOSEPH COSENZA
Title:	PRESIDENT

ASSIGNEE:
INLAND WESTERN GURNEE, L.L.C., a Delaware limited liability company
By:	Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
	By:	/s/ Debra A. Palmer
	Name:	Debra A. Palmer
	Title:	Asst Secretary

EX-10.430

Exhibit 10.430

PROMISSORY NOTE

$24,360,000.00 New York, New York
December 20, 2004

FOR VALUE RECEIVED, INLAND WESTERN GURNEE, L.L.C., a Delaware limited liability company having its principal place of business at 2901 Butterfield Road, Oak Brook, Illinois 60523, a maker hereunder (referred to herein as “Borrower”), hereby unconditionally promises to pay to the order of BEAR STEARNS COMMERCIAL MORTGAGE, INC., a New York corporation, as payee, having an address at 383 Madison Avenue, New York, New York 10179 (“Lender”), or at such other place as the holder hereof may from time to time designate in writing, the principal sum of TWENTY FOUR MILLION THREE HUNDRED SIXTY THOUSAND AND NO/100 DOLLARS ($24,360,000.00), in lawful money of the United States of America with interest thereon to be computed from the date of this Note at the Interest Rate, and to be paid in accordance with the terms of this Note and that certain Loan Agreement, dated as of the date hereof, between Borrower and Lender (the “Loan Agreement”). All capitalized terms not defined herein shall have the respective meanings set forth in the Loan Agreement.

ARTICLE 1

PAYMENT TERMS

Borrower agrees to pay interest on the unpaid principal sum of this Note from time to time outstanding at the rates and at the times specified in the Loan Agreement and the outstanding balance of the principal sum of this Note and all accrued and unpaid interest thereon shall be due and payable on the Maturity Date. This Note shall be the “Note” as defined in the Loan Agreement.

ARTICLE 2

DEFAULT AND ACCELERATION

The Debt shall without notice become immediately due and payable at the option of Lender if any payment required in this Note is not paid on or prior to the date when due or if not paid on the Maturity Date or on the happening of any other Event of Default.

ARTICLE 3

LOAN DOCUMENTS

This Note is secured by the Mortgage and the other Loan Documents. All of the terms, covenants and conditions contained in the Loan Agreement, the Mortgage and the other Loan Documents are hereby made part of this Note to the same extent and with the same force as if they were fully set forth herein. In the event of a conflict or inconsistency between the terms of this Note and the Loan Agreement, the terms and provisions of the Loan Agreement shall govern.

ARTICLE 4

SAVINGS CLAUSE

Notwithstanding anything to the contrary, (a) all agreements and communications between Borrower and Lender are hereby and shall automatically be limited so that, after taking into account all amounts deemed interest, the interest contracted for, charged or received by Lender shall never exceed the maximum lawful rate or amount, (b) in calculating whether any interest exceeds the lawful maximum, all such interest shall be amortized, prorated, allocated and spread over the full amount and term of all principal indebtedness of Borrower to Lender, and (c) if through any contingency or event, Lender receives or is deemed to receive interest in excess of the lawful maximum, any such excess shall be deemed to have been applied (without prepayment penalty or premium) toward payment of the principal of any and all then outstanding indebtedness of Borrower to Lender, or if there is no such indebtedness, shall immediately be returned to Borrower.

ARTICLE 5

NO ORAL CHANGE

This Note may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Borrower or Lender, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.

ARTICLE 6

WAIVERS

Borrower and all others who may become liable for the payment of all or any part of the Debt do hereby severally waive presentment and demand for payment, notice of dishonor, notice of intention to accelerate, notice of acceleration, protest and notice of protest and non-payment and all other notices of any kind. No release of any security for the Debt or extension of time for payment of this Note or any installment hereof, and no alteration, amendment or waiver of any provision of this Note, the Loan Agreement or the other Loan Documents made by agreement between Lender or any other Person shall release, modify, amend, waive, extend, change, discharge, terminate or affect the liability of Borrower, and any other Person who may become liable for the payment of all or any part of the Debt, under this Note, the Loan Agreement or the other Loan Documents. No notice to or demand on Borrower shall be deemed to be a waiver of the obligation of Borrower or of the right of Lender to take further action without further notice or demand as provided for in this Note, the Loan Agreement or the other Loan Documents. If Borrower is a partnership, the agreements herein contained shall remain in force and applicable, notwithstanding any changes in the individuals comprising the partnership, and the term “Borrower,” as used herein, shall include any alternate or successor partnership, but any predecessor partnership and their partners shall not thereby be released from any liability, If Borrower is a limited liability company, the agreements herein contained shall remain in force and applicable, notwithstanding any changes in the members comprising the company, and the

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term “Borrower”, as used herein, shall include any alternate or successor company, but any predecessor company shall not thereby be released from any liability.  If Borrower is a corporation, the agreements contained herein shall remain in full force and applicable notwithstanding any changes in the shareholders comprising, or the officers and directors relating to, the corporation, and the term “Borrower” as used herein, shall include any alternative or successor corporation, but any predecessor corporation shall not be relieved of liability hereunder.  (Nothing in the foregoing sentence shall be construed as a consent to, or a waiver of, any prohibition or restriction on transfers of interests in such entity which may be set forth in the Loan Agreement, the Mortgage or any other Loan Document.)

ARTICLE 7

TRANSFER

Upon the transfer of this Note, Borrower hereby waiving notice of any such transfer except as provided in the Loan Agreement, Lender may deliver all the collateral mortgaged, granted, pledged or assigned pursuant to the Loan Documents, or any part thereof, to the transferee who shall thereupon become vested with all the rights herein or under applicable law given to Lender with respect thereto, and Lender shall from that date forward forever be relieved and fully discharged from any liability or responsibility in the matter; but Lender shall retain all rights hereby given to it with respect to any liabilities and the collateral not so transferred.

ARTICLE 8

EXCULPATION

The provisions of Section 9.4 of the Loan Agreement are hereby incorporated by reference into this Note to the same extent and with the same force as if fully set forth herein.

ARTICLE 9

GOVERNING LAW

THIS NOTE SHALL BE DEEMED TO BE A CONTRACT ENTERED INTO PURSUANT TO THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND SHALL IN ALL RESPECTS BE GOVERNED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND APPLICABLE FEDERAL LAWS.

ARTICLE 10

NOTICES

All notices or other written communications hereunder shall be delivered in accordance with Section 10.6 of the Loan Agreement.

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[NO FURTHER TEXT ON THIS PAGE]

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IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and year first above written.

BORROWER:
INLAND WESTERN GURNEE, L.L.C., a Delaware limited liability company
By:	Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
	By:	/s/ Valerie Medina
		Name: Valerie Medina
		Title: Assistant Secretary

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ACKNOWLEDGMENT

STATE OF ILLINOIS

COUNTY OF DUPAGE

The foregoing instrument was acknowledged before me this 17 day of December, 2004 by VALERIE MEDINA asAssistant Secretary of INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation, which is the sole member and manager of INLAND WESTERN GURNEE, L.L.C., a Delaware limited liability company, who executed the foregoing instrument, and acknowledged the execution thereof to be his/her free act and deed as such officer on behalf of said corporation in its capacity as sole member and manager of said limited liability company for the use and purposes therein mentioned, and the said instrument is the act and deed of said corporation and limited liability company. She is personally known to me or who has produced                                as identification.

My commission expires:    10/13/08

[Notarial Seal]	/s/ Doris E Ahern
	Print Name: DORIS E. AHERN
	Notary Public Serial Number:

OFFICIAL SEAL

DORIS E AHERN

NOTARY PUBLIC - STATE OF ILLINOIS

MY COMMISSION EXPRESS 10/13/08

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EX-10.431

Exhibit 10.431

LOAN AGREEMENT

THIS LOAN AGREEMENT, dated as of this 20^th day of December, 2004 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”), between BEAR STEARNS COMMERCIAL MORTGAGE, INC., a New York corporation, having an address at 383 Madison Avenue, New York, New York 10179 (“Lender”), and INLAND WESTERN GURNEE, L.L.C., a Delaware limited liability company, having an address at 2901 Butterfield Road, Oak Brook, Illinois 60523 (“Borrower”).

W I T N E S S E T H:

WHEREAS, Borrower desires to obtain the Loan (as hereinafter defined) from Lender; and

WHEREAS, Lender is willing to make the Loan to Borrower, subject to and in accordance with the terms of this Agreement and the other Loan Documents (as hereinafter defined).

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

ARTICLE I
DEFINITIONS; PRINCIPLES OF CONSTRUCTION

Section 1.1Definitions. For all purposes of this Agreement, except as otherwise expressly required or unless the context clearly indicates a contrary intent:

“Additional Insolvency Opinion”  shall mean any subsequent Insolvency Opinion.

“Affiliate” shall mean, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person or is a director or officer of such Person or of an Affiliate of such Person.

“ALTA” shall mean American Land Title Association, or any successor thereto.

“Anchor Tenant” shall mean shall mean, collectively (a) Borders, Inc., (b) LNT West, Inc., (c) Cost Plus, Inc., and (d) Old Navy, LLC, pursuant to the Anchor Tenant Lease.

“Anchor Tenant Lease”  shall mean:

(i)with respect to LNT West, Inc., that certain Lease, dated October 28, 1999, by and between Rubloff Gurnee Town Centre, L.L.C., f/k/a Dalan/Rubloff Gurnee, L.L.C., as original landlord and predecessor-in-interest to Borrower, as landlord, and Anchor Tenant (or its predecessor-in-interest) as tenant as the same has previously been amended and may be further amended, restated, renewed, substituted or replaced (but only to the extent permitted under this Agreement);

(ii)with respect to Cost Plus, Inc., that certain Lease, dated October 18, 1999, by and between Rubloff Gurnee Town Centre, L.L.C., f/k/a Dalan/Rubloff Gurnee, L.L.C., as original landlord and predecessor-in-interest to Borrower, as landlord, and Anchor Tenant (or its predecessor-in-interest) as tenant as the same has previously been amended and may be further amended, restated, renewed, substituted or replaced (but only to the extent permitted under this Agreement);

(iii)with respect to Borders, Inc., that certain Lease, dated October 24, 1999, by and between Rubloff Gurnee Town Centre, L.L.C., f/k/a Dalan/Rubloff Gurnee, L.L.C., as original landlord and predecessor-in-interest to Borrower, as landlord, and Anchor Tenant (or its predecessor-in-interest) as tenant as the same has previously been amended and may be further amended, restated, renewed, substituted or replaced (but only to the extent permitted under this Agreement); and

(iv)with respect to Old Navy, LLC, that certain Lease, dated September 20, 2004, by and between Dalan/Rubloff Gurnee, L.L.C., as original landlord and predecessor-in-interest to Borrower, as landlord, and Anchor Tenant (or its predecessor-in-interest) as tenant as the same has previously been amended and may be further amended, restated, renewed, substituted or replaced (but only to the extent permitted under this Agreement).

“Annual Budget” shall mean the operating budget, including all planned capital expenditures, for the Property prepared by Borrower for the applicable Fiscal Year or other period.

“Assignment of Leases” shall mean, with respect to the Property, that certain first priority Assignment of Leases and Rents, dated as of the Closing Date, from Borrower, as assignor, to Lender, as assignee, assigning to Lender all of Borrower’s interest in and to the Leases and Rents of the Property as security for the Loan, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Assignment of Management Agreement” shall mean that certain Assignment of Management Agreement and Subordination of Management Fees dated as of the Closing Date among Lender, Borrower and Manager, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Award” shall mean any compensation paid by any Governmental Authority in connection with a Condemnation in respect of all or any part of the Property.

“Basic Carrying Costs” shall mean, with respect to the Property, the sum of the following costs associated with the Property for the relevant Fiscal Year or payment period: (i) Taxes and (ii) Insurance Premiums.

“Borrower” shall mean Inland Western Gurnee, L.L.C., together with its permitted successors and assigns.

“Business Day” shall mean any day other than a Saturday, Sunday or any other day on which national banks in New York, New York are not open for business.

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“Capital Expenditures” shall mean, for any period, the amount expended for items capitalized under accounting principles reasonably acceptable to Lender, consistently applied (including expenditures for building improvements or major repairs, leasing commissions and tenant improvements).

“Cash Expenses” shall mean, for any period, the operating expenses for the operation of the Property as set forth in an Approved Annual Budget to the extent that such expenses are actually incurred by Borrower minus any payments into the Tax and Insurance Escrow Fund.

“Cash Management Agreement” shall have the meaning specified in Section 2.6.3.

“Cash Management Termination Event” shall mean the Debt Service Coverage Ratio shall be equal to or greater than 1.35 to 1.0 for two (2) complete, consecutive calendar quarters following the calendar quarter in which the Cash Management Trigger caused by a Debt Service Coverage Ratio deficiency occurred, provided, however, there shall not be more than two (2) Cash Management Termination Events during the term of the Loan.

“Cash Management Trigger” shall mean (i) the existence of an Event of Default, (ii) the bankruptcy or insolvency of Borrower or Manager, or (iii) Lender’s determination that the Debt Service Coverage Ratio for the preceding six (6) months annualized is less than or equal to 1.25 to 1.0.

“Casualty” shall have the meaning specified in Section 6.2 hereof.

“Casualty/Condemnation Prepayment” shall have the meaning specified in Section 6.4(e) hereof.

“Casualty Consultant” shall have the meaning set forth in Section 6.4(b)(iii) hereof.

“Casualty Retainage” shall have the meaning set forth in Section 6.4(b)(iv) hereof.

“Closing Date” shall mean the date hereof.

“Code” shall mean the Internal Revenue Code of 1986, as amended, as it may be further amended from time to time, and any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.

“Condemnation” shall mean a temporary or permanent taking by any Governmental Authority as the result or in lieu or in anticipation of the exercise of the right of condemnation or eminent domain, of all or any part of the Property, or any interest therein or right accruing thereto, including any right of access thereto or any change of grade affecting the Property or any part thereof.

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“Debt” shall mean the outstanding principal amount set forth in, and evidenced by, this Agreement and the Note together with all interest accrued and unpaid thereon and all other sums (including the Prepayment Consideration) due to Lender in respect of the Loan under the Note, this Agreement, the Mortgage or any other Loan Document.

“Debt Service” shall mean, with respect to any particular period of time, scheduled interest payments under the Note.

“Debt Service Coverage Ratio” shall mean a ratio for the applicable period in which:

(b)the numerator is the Net Operating Income (excluding interest on credit accounts) for such period as set forth in the statements required hereunder, without deduction for (i) actual management fees incurred in connection with the operation of the Property, (ii) amounts paid to the Reserve Funds, less (A) management fees equal to the greater of (1) assumed management fees of four percent (4.0%) of Gross Income from Operations or (2) the actual management fees incurred, (B) assumed Replacement Reserve Fund contributions equal to $0.15 per square foot of gross leaseable area at the Property; and (C) assumed reserves for tenant improvements and leasing commissions equal to $0.44 per square foot of gross leaseable area at the Property; and

(c)the denominator is the aggregate amount of interest due and payable on the Note for such applicable period.

“Default” shall mean the occurrence of any event hereunder or under any other Loan Document which, but for the giving of notice or passage of time, or both, would be an Event of Default.

“Default Rate” shall mean, with respect to the Loan, a rate per annum equal to the lesser of (a) the maximum rate permitted by applicable law, or (b) five percent (5%) above the Interest Rate.

“Disclosure Document” shall have the meaning set forth in Section 9.2hereof.

“Eligible Account” shall mean a separate and identifiable account from all other funds held by the holding institution that is either (a) an account or accounts maintained with a federal or state-chartered depository institution or trust company which complies with the definition of Eligible Institution or (b) a segregated trust account or accounts maintained with a federal or state chartered depository institution or trust company acting in its fiduciary capacity which, in the case of a state chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R. §9.10(b), having in either case a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal and state authority. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.

“Eligible Institution” shall mean a depository institution or trust company insured by the Federal Deposit Insurance Corporation the short term unsecured debt obligations or commercial paper of which are rated at least A-1 by Standard Poor’s Ratings Services, P-1

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by Moody’s Investors Service, Inc., and F-1+ by Fitch, Inc. in the case of accounts in which funds are held for 30 days or less (or, in the case of accounts in which funds are held for more than 30 days, the long term unsecured debt obligations of which are rated at least “AA” by Fitch and S&P and “Aa” by Moody’s).

“Environmental Indemnity” shall mean that certain Environmental Indemnity Agreement executed by Borrower in connection with the Loan for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Environmental Report” shall have the meaning as defined in the Environmental Indemnity executed by the Borrower.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.

“Event of Default” shall have the meaning set forth in Section 8.1(a) hereof.

“Excess Cash Flow” shall have the meaning set forth in Section 2.6.3 hereof

“Exchange Act” shall have the meaning set forth in. Section 9.2 hereof.

“Fiscal Year” shall mean each twelve (12) month period commencing on January 1 and ending on December 31 during each year of the term of the Loan.

“Governmental Authority” shall mean any court, board, agency, commission, office or other authority of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city or otherwise) whether now or hereafter in existence.

“Gross Income from Operations” shall mean all sustainable income as reported on the financial statements delivered by the Borrower in accordance with this Agreement, computed in accordance with accounting principles reasonably acceptable to Lender, consistently applied, derived from the ownership and operation of the Property from whatever source, including, but not limited to, (i) Rents from Tenants that arc in occupancy, open for business and paying unabated Rent, (ii) utility charges, (iii) escalations, (iv) intentionally omitted; (v) service fees or charges, (vi) license fees, (vii) parking fees, and (viii) other required pass-throughs but excluding (i) Rents from Tenants that are subject to any bankruptcy proceeding (unless such Tenant has affirmed its Lease or Inland Western Retail Real Estate Trust, Inc. has master leased such Tenant’s premises for full contract rent for a period not less than three years, and the net worth of Inland Western Retail Real Estate Trust, Inc. (as determined by Lender) is not less than such entity’s net worth as of September 30, 2003), or are not in occupancy, open for business or paying unabated Rent, (ii) sales, use and occupancy or other taxes on receipts required to be accounted for by Borrower to any Governmental Authority, (iii) refunds and uncollectible accounts, (iv) sales of furniture, fixtures and equipment, (v) Insurance Proceeds (other than business interruption or other loss of income insurance), (vi) Awards, (vii) unforfeited security deposits, (viii) utility and other similar deposits and (ix) any disbursements to Borrower from the Reserve Funds. Gross income shall not be diminished as a

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result of the Mortgage or the creation of any intervening estate or interest in the Property or any part thereof.

“Improvements” shall have the meaning set forth in the granting clause of the Mortgage with respect to the Property.

“Indebtedness” of a Person, at a particular date, means the sum (without duplication) at such date of (a) indebtedness or liability for borrowed money; (b) obligations evidenced by bonds, debentures, notes, or other similar instruments; (c) obligations for the deferred purchase price of property or services (including trade obligations); (d) obligations under letters of credit; (e) obligations under acceptance facilities; (f) all guaranties, endorsements (other than for collection or deposit in the ordinary course of business) and other contingent obligations to purchase, to provide funds for payment, to supply funds, to invest in any Person or entity, or otherwise to assure a creditor against loss; and (g) obligations secured by any Liens, whether or not the obligations have been assumed.

“Indemnitor” shall mean Inland Western Retail Real Estate Trust, Inc., a Maryland corporation.

“Indemnity Agreement” shall mean that certain Indemnity Agreement dated as of the Closing Date by Borrower and Indemnitor in favor of Lender.

“Independent Director” shall mean a director of a corporation or a limited liability company who is not at the time of initial appointment, or at any time while serving as a director of such an entity, and has not been at any time during the preceding five (5) years: (a) a stockholder, director (with the exception of serving as the Independent Director), officer, employee, partner, attorney or counsel of the Borrower or any Affiliate of either of them; (b) a customer, supplier or other person who derives any of its purchases or revenues from its activities with the Borrower or any Affiliate of either of them; (c) a Person controlling or under common control with any such stockholder, director, officer, partner, customer, supplier or other Person; or (d) a member of the immediate family of any such stockholder, director, officer, employee, partner, customer, supplier or other person. As used in this definition, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise.

“Inland Western Retail Real Estate Trust. Inc.” shall mean Inland Western Retail Real Estate Trust, Inc., a Maryland corporation.

“Insolvency Opinion” shall have the meaning set forth in Section 3.1.6 hereof.

“Insurance Premiums” shall have the meaning set forth in Section 6.1(b) hereof.

“Insurance Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.

“Interest Rate” shall mean four and 597/1000 percent (4.597%) per annum.

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“Lease” shall mean any lease, sublease or subsublease, letting, license, concession or other agreement (whether written or oral and whether now or hereafter in effect) pursuant to which any Person is granted a possessory interest in, or right to use or occupy all or any portion of any space in the Property of Borrower, and every modification, amendment or other agreement relating to such lease, sublease, subsublease, or other agreement entered into in connection with such lease, sublease, subsublease, or other agreement and every guarantee of the performance and observance of the covenants, conditions and agreements to be performed and observed by the other party thereto.

“Legal Requirements” shall mean, with respect to the Property, all federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting the Property or any part thereof, or the construction, use, alteration or operation thereof, or any part thereof, whether now or hereafter enacted and in force, and all permits, licenses and authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Borrower, at any time in force affecting the Property or any pan thereof, including, without limitation, any which may (a) require repairs, modifications or alterations in or to the Property or any part thereof, or (b) in any way limit the use and enjoyment thereof.

“Lender” shall mean Bear Stearns Commercial Mortgage, Inc., together with its successors and assigns.

“Licenses” shall have the meaning set forth in Section 4.1.22 hereof.

“Lien” shall mean, with respect to the Property, any mortgage, deed of trust, deed to secure debt, lien, pledge, hypothecation, assignment, security interest, or any other encumbrance, charge or transfer of, on or affecting Borrower, the Property, any portion thereof or any interest therein, including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialmen’s and other similar liens and encumbrances.

“Loan” shall mean the loan made by Lender to Borrower pursuant to this Agreement and evidenced by the Note.

“Loan Documents” shall mean, collectively, this Agreement, the Note, the Mortgage, the Assignment of Leases and Rents, the Environmental Indemnity, the Assignment of Management Agreement, the Indemnity Agreement and all other documents executed and/or delivered in connection with the Loan.

“Lockbox Account” shall have the meaning specified in Section 2.6.3 hereof.

“Lockbox Bank” shall have the meaning specified in Section 2.6.3 hereof.

“Lockbox Trigger” shall mean (i) Lender’s determination that the Debt Service Coverage Ratio for the preceding six (6) months annualized is less than or equal to 1.75 to 1.0 or (ii) a Cash Management Trigger.

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“Management Agreement” shall mean, with respect to the Property, the management agreement entered into by and between Borrower and the Manager, pursuant to which the Manager is to provide management and other services with respect to the Property.

“Manager” shall mean Inland US Management LLC, a Delaware limited liability company.

“Maturity Date” shall mean January 1, 2010, or such other date on which the final payment of principal of the Note becomes due and payable as therein or herein provided, whether at such stated maturity dale, by declaration of acceleration, or otherwise.

“Maximum Legal Rate” shall mean the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by the Note and as provided for herein or the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan.

“Monthly Debt Service Payment Amount” shall mean an amount equal to $93,319.10.

“Mortgage” shall mean, with respect to the Property, that certain first priority Mortgage and Security Agreement, dated the Closing Date, executed and delivered by Borrower as security for the Loan and encumbering the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Net Cash Flow” shall mean, with respect to the Property for any period, the amount obtained by subtracting Operating Expenses and Capital Expenditures for such period from Gross Income from Operations for such period.

“Net Cash Flow After Debt Service” shall mean, with respect to the Property for any period, the amount obtained by subtracting Debt Service for such period from Net Cash Flow for such period.

“Net Cash Flow Schedule” shall have the meaning set forth in Section 5.1.1 l(b) hereof.

“Net Operating Income” shall mean the amount obtained by subtracting from Gross Income from Operations (i) Operating Expenses, and (ii) a vacancy allowance equal to the greater of (x) market vacancy (as reasonably determined by Lender), less actual vacancy, and (y) underwritten vacancy of 5.87%, less actual vacancy. Notwithstanding the foregoing, if actual vacancy exceeds market vacancy and underwritten vacancy, then there shall be no adjustment for a vacancy allowance.

“Net Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.

“Net Proceeds Deficiency” shall have the meaning set forth in Section 6.4(b)(vi) hereof.

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“Net Proceeds Prepayment” shall have the meaning set forth in Section 6.4(e) hereof.

“Note” shall mean that certain Promissory Note of even date herewith in the principal amount of TWENTY FOUR MILLION THREE HUNDRED SIXTY THOUSAND AND NO/100 DOLLARS ($24,360,000.00), made by Borrower in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Officers’ Certificate” shall mean a certificate delivered to Lender by Borrower which is signed by the Sole Member.

“Operating Expenses” shall mean the total of all expenditures, computed in accordance with accounting principles reasonably acceptable to Lender, consistently applied, of whatever kind relating to the operation, maintenance and management of the Property that are incurred on a regular monthly or other periodic basis, including without limitation, utilities, ordinary repairs and maintenance, insurance, license fees, property taxes and assessments, advertising expenses, management fees, payroll and related taxes, computer processing charges, operational equipment or other lease payments as approved by Lender, and other similar costs, taut excluding depreciation, Debt Service, Capital Expenditures and contributions to the Reserve Funds.

“Other Charges” shall mean all ground rents, maintenance charges, impositions other than Taxes, and any other charges, including, without limitation, vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Property, now or hereafter levied or assessed or imposed against the Property or any part thereof.

“Other Contract Funds” shall mean any payment due to Borrower under any of the agreements described on Schedule X.

“Payment Date” shall mean the first (1st) day of each calendar month during the term of the Loan or, if such day is not a Business Day, the immediately succeeding Business Day.

“Permitted Encumbrances” shall mean, with respect to the Property, collectively, (a) the Liens and security interests created by the Loan Documents, (b) all Liens, encumbrances and other matters disclosed in the Title Insurance Policy relating to the Properly or any part thereof, (c) Liens, if any, for Taxes imposed by any Governmental Authority not yet due or delinquent, and (d) such other title and survey exceptions as Lender has approved or may approve in writing in Lender’s reasonable discretion, which Permitted Encumbrances in the aggregate do not materially adversely affect the value or use of the Property or Borrower’s ability to repay the Loan.

“Permitted Investments” shall mean any one or more of the following obligations or securities acquired at a purchase price of not greater than par, including those issued by Servicer, the trustee under any Securitization or any of their respective Affiliates, payable on demand or having a maturity date not later than the Business Day immediately prior to the first Payment Date following the date of acquiring such investment and meeting one of the appropriate standards set forth below:

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(i)obligations of, or obligations fully guaranteed as to payment of principal and interest by,the United States or any agency or instrumentality thereof provided such obligations are backed by the full faith and credit of the United States of America including, without limitation, obligations of: the U.S. Treasury (all direct or fully guaranteed obligations), the Farmers Home Administration (certificates of beneficial ownership), the General Services Administration (participation certificates), the U.S. Maritime Administration (guaranteed Title XI financing), the Small Business Administration (guaranteed participation certificates and guaranteed pool certificates), the U.S. Department of Housing and Urban Development (local authority bonds) and the Washington Metropolitan Area Transit Authority (guaranteed transit bonds); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(ii)Federal Housing Administration debentures;

(iii)obligations of the following United States government sponsored agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm Credit System (consolidated systemwide bonds and notes), the Federal Home Loan Banks (consolidated debt obligations), the Federal National Mortgage Association (debt obligations), the Student Loan Marketing Association (debt obligations), the Financing Corp. (debt obligations), and the Resolution Funding Corp. (debt obligations); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(iv)federal funds, unsecured certificates of deposit, time deposits, bankers’ acceptances and repurchase agreements with maturities of not more than 365 days of any bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot, vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

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(v)fully Federal Deposit Insurance Corporation-insured demand and time deposits in, or certificates of deposit of, or bankers’ acceptances issued by, any bank or trust company, savings and loan association or savings bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(vi)debt obligations with maturities of not more than 365 days and at all times rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest long-term unsecured rating category; provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(vii)commercial paper (including both non-interest-bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one year after the date of issuance thereof) with maturities of not more than 365 days and that at all times is rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result, in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest short-term unsecured debt rating; provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must, not be subject to liquidation prior to their maturity.

(viii)units of taxable money market funds, which funds arc regulated investment companies, seek to maintain a constant, net asset value per share and invest solely in obligations backed by the full faith and credit of the United States, which funds

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have the highest rating available from each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) for money market funds; and

(ix)any other security, obligation or investment which has been approved as a Permitted Investment in writing by (a) Lender and (b) each Rating Agency, as evidenced by a written confirmation that the designation of such security, obligation or investment as a Permitted Investment will not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities by such Rating Agency;

provided, however, that no obligation or security shall be a Permitted Investment if (A) such obligation or security evidences a right to receive only interest payments or (B) the right to receive principal and interest payments on such obligation or security are derived from an underlying investment that provides a yield to maturity in excess of 120% of the yield to maturity at par of such underlying investment.

“Permitted Prepayment Date” shall mean the date that is three (3) years from the first day of the calendar month immediately following the Closing Date.

“Person” shall mean any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.

“Personal Property” shall have the meaning set forth in the granting clause of the Mortgage with respect to the Property.

“Physical Conditions Report” shall mean, with respect to the Property, a report prepared by a company satisfactory to Lender regarding the physical condition of the Property, satisfactory in form and substance to Lender in its sole discretion, which report shall, among other things, (a) confirm that the Property and its use complies, in all material respects, with all applicable Legal Requirements (including, without limitation, zoning, subdivision and building laws) and (b) include a copy of a final certificate of occupancy with respect to all Improvements on the Property.

“Policies” shall have the meaning specified in Section 6.1(b) hereof,

“Prepayment Consideration” shall have the meaning set forth in Section 2.3.1.

“Prepayment Rate” shall mean the bond equivalent yield (in the secondary market) on the United States Treasury Security that as of the Prepayment. Rate Determination Date has a remaining term to maturity closest to, but not exceeding, the remaining term to the Maturity Date, as most recently published in the “Treasury Bonds, Notes and Bills” section in The Wall Street Journal as of the date of the related tender of the payment. If more than one issue of United States Treasury Securities has the remaining term to the Maturity Dale referred to

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above, the “Prepayment Rate” shall be the yield on the United States Treasury Security most recently issued as of such date. If the publication of the Prepayment Rate in The Wall Street Journal is discontinued, Lender shall determine the Prepayment Rate on the basis of “Statistical Release H.15(519), Selected Interest Rates,” or any successor publication, published by the Board of Governors of the Federal Reserve System, or on the basis of such other publication or statistical guide as Lender may reasonably select.

“Prepayment Rate Determination Date” shall mean the date which is five (5) Business Days prior to the prepayment date.

“Property” shall mean the parcel of real property, the Improvements thereon and all personal property owned by Borrower and encumbered by the Mortgage, together with all rights pertaining to such property and Improvements, as more particularly described in the Granting Clauses of the Mortgage and referred to therein as the “Property”.

“Provided Information” shall have the meaning set forth in Section 9.1(a) hereof.

“Qualifying Entity” shall have the meaning set forth in Section 5.2.13(b) hereof.

“Qualifying Manager” shall mean either (a) a reputable and experienced management organization reasonably satisfactory to Lender, which organization or its principals possess at least ten (10) years experience in managing properties similar in size, scope and value of the Property and which, on the date Lender determines whether such management organization is a Qualifying Manager, manages at least one million square feet of retail space, provided that Borrower shall have obtained prior written confirmation from the Rating Agency that management of the Property by such entity wilt not cause a downgrading, withdrawal or qualification of the then current rating of the securities issued pursuant to the Securitization, or (b) the fee owner of the Property, provided that such owner possesses experience in managing and operating properties similar in size, scope and value of the Property. Lender acknowledges that on the Closing Date, Manager shall be deemed to be a Qualifying Manager.

“Rating Agencies” shall mean each of Standard & Poor’s Ratings Services, a division of McGraw-Hill, Inc., Moody’s Investors Service, Inc, and Fitch, Inc., or any other nationally-recognized statistical rating agency which has been approved by Lender.

“Rating Surveillance Charge” shall have the meaning yet forth in Section 9.3 hereof.

“Relevant Leasing Threshold” shall mean, any Lease For an amount of leaseable square footage equal to or greater than 10,000 square feet.

“Relevant Restoration Threshold” shall mean Three Hundred Fifty Thousand and No/100 dollars ($350,000.00).

“REMIC Trust” shall mean a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code that holds the Note.

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“Rents” shall mean, with respect to the Property, all rents, rent equivalents, moneys payable as damages or in lieu of rent or rent equivalents, royalties (including, without limitation, all oil and gas or other mineral royalties and bonuses), income, receivables, receipts, revenues, deposits (including, without limitation, security, utility and other deposits), accounts, cash, issues, profits, charges for services rendered, and other consideration of whatever form or nature received by or paid to or for the account of or benefit of Borrower or its agents or employees from any and all sources arising from or attributable to the Property, and proceeds, if any, from business interruption or other loss of income insurance, including the Other Contract Funds.

“Replacement Reserve Account” shall have the meaning set forth in Section 7.3.1 hereof.

“Replacement Reserve Fund” shall have the meaning set forth in Section 7.3.1 hereof.

“Replacement Reserve Monthly Deposit” shall have the meaning set forth in Section 7.3.1 hereof.

“Replacements” shall have the meaning set forth in Section 7.3.1(a) hereof.

“Required Repair Account” shall have the meaning set forth in Section 7.1.1 hereof.

“Required Repair Fund” shall have the meaning set forth in Section 7.1.1 hereof.

“Required Repairs” shall have the meaning set forth in Section 7.1.1 hereof.

“Reserve Funds” shall mean the Tax and Insurance Escrow Fund, the Replacement Reserve Fund, the Required Repair Fund (if any), or any other escrow fund established by the Loan Documents.

“Restoration” shall have the meaning set forth in Section 6.2 hereof.

“Securities” shall have the meaning set forth in Section 9.1 hereof.

“Securities Act” shall have the meaning set forth in Section 9.2 hereof.

“Securitization” shall have the meaning set forth in Section 9.1 hereof.

“Servicer” shall have the meaning set forth in Section 9.6 hereof.

“Servicing Agreement” shall have the meaning set forth in Section 9.6 hereof.

“Severed Loan Documents” shall have the meaning set. forth in Section 8.2(c) hereof.

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“Severing Documentation” shall have the meaning set forth in Section 9.7 hereof.

“Sole Member” shall mean Inland Western Retail Real Estate Trust, Inc.

“Special Purpose Entity” means a corporation, limited partnership, limited liability company, or Delaware statutory trust which at all times on and after the Closing Date:

(i)is organized solely for the purpose of (A) acquiring, developing, owning, holding, selling, leasing, transferring, exchanging, managing and operating the Property, entering into this Agreement with the Lender, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing; or (B) acting as a general partner of the limited partnership that owns the Property, a member of the limited liability company that owns the Property or the beneficiary or trustee of a Delaware statutory trust that owns the Property;

(ii)is not engaged and will not engage in any business unrelated to (A) the acquisition, development, ownership, management or operation of the Property, (B) acting as general partner of the limited partnership that owns the Property, (C) acting as a member of the limited liability company that owns the Property, or (D) acting as the beneficiary or trustee of a Delaware statutory trust that owns the Property, as applicable;

(iii)does not have and will not have any assets other than those related to the Property or its partnership interest in the limited partnership, the member interest in the limited liability company or the beneficial interest in the Delaware statutory trust that owns the Property or acts as the general partner, managing member or beneficiary or trustee thereof, as applicable;

(iv)has not engaged, sought or consented to and will not engage in, seek or consent to any dissolution, winding up, liquidation, consolidation, merger, sale of all or substantially all of its assets, transfer of partnership, membership or beneficial or trustee interests (if such entity is a general partner in a limited partnership, a member in a limited liability company or a beneficiary of a Delaware trust) or amendment of its limited partnership agreement, articles of incorporation, articles of organization, certificate of formation, operating agreement or trust formation and governance documents (as applicable) with respect to the matters set forth in this definition;

(v)if such entity is a limited partnership, has as its only general partners, Special Purpose Entities that are corporations, limited partnerships or limited liability companies;

(vi)if such entity is a corporation, has at least one (1) Independent Director, and has not caused or allowed and will not cause or allow the board of directors of such entity to take any action related to a bankruptcy or insolvency proceeding or a voluntary dissolution without the unanimous affirmative vote of 100% of the members of its board of directors, including the Independent Director;

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(vii)if such entity is a limited liability company and such limited liability company has more than one member, such limited liability company has as its manager a Special Purpose Entity that is a corporation and that owns at least 1.0% (one percent) of the equity of the limited liability company;

(viii)if such entity is a limited liability company and such limited liability company has only one member, such limned liability company (a) has been formed under Delaware law, and (b) has either a corporation or other person or entity that shall become a member of the limited liability company upon the dissolution or disassociation of the member, and (c) has a board of directors with not less than one (1) Independent Director, and (d) will not cause or allow its board of directors to take any action related to a bankruptcy or insolvency proceeding or a voluntary dissolution without the unanimous affirmative vote of 100% of the members of its hoard of directors, including the Independent Director;

(ix)if such entity is (a) a limited liability company, has articles of organization, a certificate of formation and/or an operating agreement, as applicable, (b) a limited partnership, has a limited partnership agreement, (c) a corporation, has a certificate or articles of incorporation and bylaws, as applicable, or (d) a Delaware statutory trust, has organizational documents that, in each case, provide that such entity will not: (1) dissolve, merge, liquidate, consolidate; (2) except as permitted herein, sell all or substantially all of its assets or the assets of the Borrower (as applicable) except as permitted herein; (3) engage in any other business activity, or amend its organizational documents with respect to the matters set forth in this definition without the consent of the Lender; or (4) without the affirmative vote of all directors of the corporation (that is such entity or the general partner or managing or co-managing member or manager of such entity), file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings with respect to itself or to any other entity in which it has a direct or indirect legal or beneficial ownership interest;

(x)has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, beneficiaries, shareholders or Affiliates except (A) in the ordinary course of its business and on terms which are intrinsically fair, commercially reasonable and arc no less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party and (B) in connection with this Agreement;

(xi)is solvent, and pays its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same become due, and is maintaining adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;

(xii)has not failed and will not fail to correct any known misunderstanding regarding the separate identity of such entity;

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(xiii)will file its own tax returns; provided, however, that Borrower’s assets and income may be included in a consolidated tax return of its parent companies if inclusion on such consolidated tax return is in compliance with applicable law;

(xiv)has maintained and will maintain its own resolutions and agreements;

(xv)(a) has not commingled and will not commingle its funds or assets with those of any other Person and (b) has not participated and will not participate in any cash management system with any other Person, except with respect to a custodial account maintained by the Manager on behalf of Affiliates of Borrower and, with respect to funds in such custodial account, has separately accounted, and will continue to separately account for, each item of income and expense applicable to the Property and Borrower;

(xvi)has held and will hold its assets in its own name;

(xvii)has conducted and will conduct its business in its name or in a name franchised or licensed to it by an entity other than an Affiliate of Borrower;

(xviii)has maintained and will maintain its balance sheets, operating statements and other entity documents separate from any other Person and has not permitted and will not permit its assets to be listed as assets on the financial statement of any other entity except as required or permitted by applicable accounting principles acceptable to Lender, consistently applied; provided, however, that (i) any such consolidated financial statement shall contain a note indicating that it maintains separate balance sheets and operating statements for the Borrower and the Property, or (ii) if such Person is controlled by Inland Western Retail Real Estate Trust, Inc., then such Person may be included in the consolidated financial statement of Inland Western Retail Real Estate Trust, Inc. provided such consolidated financial statement contains a note indicating that it maintains separate financial records for each Person controlled by Inland Western Retail Real Estate Trust, Inc.;

(xix)has a sufficient number of employees in light of its contemplated business operations, which may be none;

(xx)has observed and will observe all partnership, corporate, limited liability company or Delaware statutory trust formalities, as applicable;

(xxi)has and will have no Indebtedness (including loans (whether or not such loans are evidenced by a written agreement) between Borrower and any Affiliates of Borrower and relating to the management of funds in the custodial account maintained by the Manager) other man (i) the Loan, (ii) liabilities incurred in the ordinary course of business relating to the ownership and operation of the Property and the routine administration of Borrower, which liabilities are not more than sixty (60) days past the date incurred (unless disputed in accordance with applicable law), are not evidenced by a note and are paid when due, and which amounts are normal and reasonable under the circumstances, and (iii) such other liabilities that are permitted pursuant to this Agreement;

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(xxii)has not and will not assume or guarantee or become obligated for the debts of any other Person or hold out its credit as being available to satisfy the obligations of any other Person except as otherwise permitted pursuant to this Agreement;

(xxiii)has not and will not acquire obligations or securities of its partners, members, beneficiaries or shareholders or any other Affiliate;

(xxiv)has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, but not limited to, paying for shared office space and services performed by any employee of an affiliate;

(xxv)has not maintained or used, and will not maintain or use, invoices and checks bearing the name of any other Person, provided, however, that Manager, on behalf of such Person, may maintain and use invoices and checks bearing Manager’s name;

(xxvi)has not pledged and will not. pledge its assets for the benefit of any other Person except as permitted or required pursuant to this Agreement;

(xxvii)has held itself out and identified itself and will hold itself out and identify itself as a separate and distinct entity under its own name or in a name franchised or licensed to it by an entity other than an Affiliate of Borrower and not as a division or part of any other Person, except for services rendered by Manager under the Management Agreement, so long as Manager holds itself out as an agent of the Borrower;

(xxviii)has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;

(xxix)has not made and will not make loans to any Person or hold evidence of indebtedness issued by any other person or entity (other than cash and investment-grade securities issued by an entity that is not an Affiliate of or subject to common ownership with such entity);

(xxx)has not identified and will not identify its partners, members, beneficiaries or shareholders, or any Affiliate of any of them, as a division or part of it, and has not identified itself and shall not identify itself as a division of any other Person;

(xxxi)docs not and will not have any of its obligations guaranteed by any Affiliate except as otherwise required in the Loan Documents;

(xxxii)has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, beneficiaries, shareholders or Affiliates except (A) in the ordinary course of its business and on terms which are intrinsically fair, commercially reasonable and are no less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party and (B) in connection with this Agreement; and

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(xxxiii)has complied and will comply with all of the terms and provisions contained in its organizational documents. The statement of facts contained in its organizational documents are true and correct and will remain true and correct.

“State” shall mean, with respect to the Properly, the State or Commonwealth in which the Property or any part thereof is located.

“Survey” shall mean a survey of the Property in question prepared by a surveyor licensed in the State and satisfactory to Lender and the company or companies issuing the Title Insurance Policy, and containing a certification of such surveyor satisfactory to Lender.

“Tax and Insurance Escrow Fund” shall have the meaning set forth in Section 7.2 hereof regardless of whether the funds held therein are held by Lender for the payment of Taxes or Insurance Premiums or both.

“Taxes” shall mean all real estate and personal property taxes, assessments, water rates or sewer rents, now or hereafter levied or assessed or imposed against the Property or any part thereof.

“Tenant” shall mean any person or entity with a possessory right to all or any part of the Property pursuant to a Lease or other written agreement.

“Tenant Direction Letter” shall mean a letter in the form of Schedule I attached hereto from Borrower to the tenant under each Lease with respect to the Property (whether such Lease is presently effective or executed after the Closing Date) directing such tenant to send directly to the Lockbox Account all payments of Rent payable to Borrower under such Lease.

“Terrorism Insurance Guarantor” shall have the meaning set forth in Section 6.1 hereof.

“Title Insurance Policy” shall mean, with respect to the Property, an ALTA mortgagee title insurance policy in the form (acceptable to Lender) (or, if the Property is in a State which does not permit the issuance of such ALTA policy, such form as shall be permitted in such State and acceptable to Lender) issued with respect to the Property and insuring the lien of the Mortgage encumbering the Property.

“Transferee” shall have the meaning set forth in Section 5.2.13 hereof.

“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in the applicable State in which the Property is located.

“U.S. Obligations” shall mean direct non-callable obligations of the United States of America as defined in Section 2(a)(16) of the Investment Company Act as amended (15 USC 80a-l) stated in REMIC Section 1.86 OG-2(a)(8).

Section 1.2Principles of Construction.  All references to sections and schedules are to sections and schedules in or to this Agreement unless otherwise specified, All uses of the word “including” shall mean “including, without limitation” unless the context shall

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indicate otherwise. Unless otherwise specified, the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified, all meanings attributed to defined terms herein shall be equally applicable to both the singular and plural forms of the terms so defined.

ARTICLE II

GENERAL TERMS

Section 2.1Loan Commitment; Disbursement to Borrower.

2.1.1The Loan.  Subject to and upon the terms and conditions set forth herein, Lender hereby agrees to make and Borrower hereby agrees to accept the Loan on the Closing Date.

2.1.2Disbursement to Borrower.   Borrower may request and receive only one borrowing hereunder in respect of the Loan and any amount borrowed and repaid hereunder in respect of the Loan may not be reborrowed.

2.1.3The Note. Mortgage and Loan Documents.  The Loan shall be evidenced by the Note and secured by the Mortgage, the Assignment of Leases and the other Loan Documents.

2.1.4Use of Proceeds.   Borrower shall use the proceeds of the Loan to (a) repay and discharge any existing loans relating to the Property, (b) pay all past-due Basic Carrying Costs, if any, in respect of the Property, (c) make deposits into the Reserve Funds on the Closing Date in the amounts provided herein, (d) pay costs and expenses incurred in connection with the closing of the Loan, as approved by Lender, (e) fund any working capital requirements of the Property, and (f) distribute the balance, if any, to Borrower.

Section 2.2Interest; Loan Payments; Late Payment Charge.

2.2.1Interest Generally.   Interest on the outstanding principal balance of the Loan shall accrue from the Closing Date to but excluding the Maturity Date at the Interest Rate.

2.2.2Interest Calculation.   Interest on the outstanding principal balance of the Loan shall be calculated on the basis of a three hundred sixty (360) day year comprised of twelve (12) months of thirty (30) days each, except that interest due and payable for a period of less than a full month shall be calculated by multiplying the actual number of days elapsed in the period for which the calculation is being made by a daily rate based on a three hundred sixty (360) day year.

2.2.3Payments Generally.   Borrower shall pay to Lender (a) on the Closing Date, an amount equal to interest only on the outstanding principal balance of the Loan from the Closing Date up to but not including the first Payment Date following the Closing Date, and (b) on February 1, 2005 and each Payment Date thereafter up to but not including the Maturity Date, an amount equal to the Monthly Debt Service Payment Amount, which shall be applied to

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interest on the outstanding principal amount of the Loan for the prior calendar month at the Interest Rate.

2.2.4Intentionally Omitted.

2.2.5Payment on Maturity Date.   Borrower shall pay to Lender on the Maturity Date the outstanding principal balance of the Loan, all accrued and unpaid interest and all other amounts due hereunder and under the Note, the Mortgage and other the Loan Documents.

2.2.6Payments after Default.   Upon the occurrence and during the continuance of an Event of Default, interest on the outstanding principal balance of the Loan and, to the extent permitted by law, overdue interest and other amounts due in respect of the Loan, shall accrue at. the Default Rate, calculated from the date such payment was due without regard to any grace or cure periods contained herein.  Interest at the Default Rate shall be computed from the occurrence of the Event of Default until the earlier of (i) in the event of a non-monetary default, the cure of such Event of Default by Borrower and acceptance of such cure by Lender, and (ii) in the event of a monetary default, the actual receipt and collection of the Debt (or that portion thereof that is then due).  To the extent permitted by applicable law, interest at the Default Rate shall be added to the Debt, shall itself accrue interest at the same rate as the Loan and shall be secured by the Mortgage. This paragraph shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of the occurrence of any Event of Default and Lender retains its rights under the Note and this Agreement to accelerate and to continue to demand payment of the Debt upon the happening and continuance of any Event of Default.

2.2.7Late Payment Charge.   If any principal, interest or any other sums due under the Loan Documents is not paid by Borrower on or prior to the date which is five (5) days after the date on which it is due, Borrower shall pay to Lender upon demand an amount equal to the lesser of five percent (5%) of such unpaid sum or the maximum amount permitted by applicable law in order to defray the expense incurred by Lender in handling and processing such delinquent payment and to compensate Lender for the loss of the use of such delinquent payment. Any such amount shall be secured by the Mortgage and the other Loan Documents to the extent permitted by applicable law. The foregoing late payment charge shall not apply to the payment of all outstanding principal, interest and other sums due on the Maturity Date.

2.2.8Usury Savings.   This Agreement and the Note are subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the principal balance of the Loan at a rate which could subject Lender to either civil or criminal liability as a result of being in excess of the Maximum Legal Rate.  If, by the terms of this Agreement or the other Loan Documents, Borrower is at any time required or obligated to pay interest on the principal balance due hereunder at a rate in excess of the Maximum Legal Rate, the Interest Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced to the Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. All sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the sums due under the Loan, shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full

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so that the rate or amount of interest on account of the Loan does not exceed the Maximum Legal Rate of interest from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.

Section 2.3Prepayments.

2.3.1Voluntary Prepayments.

(a)Except as otherwise provided herein, Borrower shall not have the right to prepay the Loan in whole or in part prior to the Permitted Prepayment Date.  On or after the Permitted Prepayment Date, Borrower may, provided it has given Lender prior written notice in accordance with the terms of this Agreement, prepay the unpaid principal balance of the Loan in whole, but not in. part, by paying, together with the amount to be prepaid, (i) interest accrued and unpaid on the outstanding principal balance of the Loan being prepaid to and including the date of prepayment, (ii) unless prepayment is tendered on a Payment Date, an amount equal to the interest that would have accrued on the amount being prepaid after the date of prepayment through and including the next Payment Date had the prepayment not been made (which amount shall constitute additional consideration for the prepayment), (iii) all other sums then due under this Agreement, the Note, the Mortgage and the other Loan Documents, and (iv) if prepayment occurs prior to the Payment Date which is one month prior to the Maturity Date, a prepayment consideration (the “Prepayment Consideration”) equal to the greater of (A) one percent (1%) of the outstanding principal balance of the Loan being prepaid or (B) the excess, if any, of (1) the sum of the present values of all then-scheduled payments of principal and interest under this Agreement including, but not limited to, principal and interest on the Maturity Date (with each such payment discounted to its present value at the date of prepayment at the rate which, when compounded monthly, is equivalent to the Prepayment Rate), over (2) the outstanding principal amount of the Loan, Lender shall notify Borrower of the amount and the basis of determination of the required prepayment consideration.

(b)On the Payment Date that is one month prior to the Maturity Date, and on each day thereafter through the Maturity Date, Borrower may, at its option, prepay the Debt without payment of any Prepayment Consideration or other penalty or premium; provided, however, if such prepayment is not paid on a regularly scheduled Payment Date, the Debt shall include interest that would have accrued on such prepayment through and including the day immediately preceding the Maturity Date, Borrower’s right to prepay any portion of the principal balance of the Loan shall be subject to (i) Borrower’s submission of a notice to Lender setting forth the amount to be prepaid and the projected date of prepayment, which date shall be no less than thirty (30) days from the date of such notice, and (ii) Borrower’s actual payment to Lender of the amount to be prepaid as set forth in such notice on the projected date set forth in such notice or any day following such projected date occurring in the same calendar month as such projected date.

2.3.2Mandatory Prepayments, (a) On the next occurring Payment Date following the date on winch Borrower actually receives any Net Proceeds, if Lender is not. obligated to make such Net Proceeds available to Borrower pursuant to this Agreement for the restoration of the Property, Borrower shall at Lender’s option, prepay the outstanding principal balance of the Note in an amount equal to one hundred percent (100%) of such Net Proceeds.

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No Prepayment Consideration or other penalty or premium shall be due in connection with any prepayment made pursuant to this Section 2.3.2. Any partial prepayment under this Section shall be applied to the last payments of principal due under the Loan.

(b)On the date on which Borrower tenders a Casualty/Condemnation Prepayment pursuant to Section 6.4(e) below, such tender shall include (a) all accrued and unpaid interest and the principal indebtedness being prepaid, including interest on the outstanding principal amount of the applicable Note through the last day of the month within which such tender occurs, and (b) any other sums due hereunder relating to the applicable Note. Except as set forth in this Section 2.3.2(b), other than following an Event of Default, no Prepayment Consideration or other penalty or premium shall be due in connection with any Casualty/Condemnation Prepayment.

2.3.3Prepayments after Default. Following an Event of Default, if Borrower or anyone on Borrower’s behalf makes a tender of payment of all or any portion of the Debt at any time prior to a foreclosure sale (including a sale under the power of sale under the Mortgage), or during any redemption period after foreclosure, (i) the tender of payment shall constitute an evasion of Borrower’s obligation to pay any Prepayment Consideration due under this Agreement and such payment shall, therefore, to the maximum extent permitted by law, include a premium equal to the Prepayment Consideration that would have been payable on the date of such tender had the Loan not been so accelerated, or (ii) if at the time of such tender a prepayment of the principal amount of the Loan would have been prohibited under this Agreement had the principal amount of the Loan not been so accelerated, the tender of payment shall constitute an evasion of such prepayment prohibition and shall, therefore, to the maximum extent permitted by law, include an amount equal to the greater of (i) 1% of the then principal amount of the Loan (or the relevant portion thereof being prepaid) and (ii) an amount equal to the excess of (A) the sum of the present values of a series of payments payable at the times and in the amounts equal to the payments of principal and interest (including, but not limited to the principal and interest payable on the Maturity Date) which would have been scheduled to be payable after the date of such tender under this Agreement had the Loan (or the relevant portion thereof) not been accelerated, with each such payment discounted to its present value at the date of such tender at the rate which when compounded monthly is equivalent to the Prepayment Rate, over (B) the then principal amount of the Loan.

Section 2.4Intentionally Omitted.

Section 2.5Release of Property. Except as set forth in this Section 2.5, no repayment or prepayment of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of any Lien of the Mortgage on the Property. If Borrower has elected to prepay the entire amount of the Loan pursuant to Section 2.3.1 and the requirements of this Section 2.5 have been satisfied, the Property shall be released from the Lien of the Mortgage.

2.5.1Release on Payment in Full. Lender shall, upon the written request and at the expense of Borrower, upon payment in full of all principal and interest on the Loan and all other amounts due and payable under the Loan Documents in accordance with the terms and

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provisions of Section 2.3.1 of this Loan Agreement, release the Lien of the Mortgage on the Property not theretofore released.

2.5.2Intentionally Omitted.

Section 2.6Manner of Making Payments.

2.6.1Making of Payments. Each payment by Borrower hereunder or under the Note shall be made in funds settled through the New York Clearing House Interbank Payments System or other funds immediately available to Lender by 1:00 p.m., New York City time, on the date such payment is due, to Lender by deposit to such account as Lender may designate by written notice to Borrower.  Whenever any payment hereunder or under the Note shall be stated to be due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day.

2.6.2No Deductions, Etc.  All payments made by Borrower hereunder or under the Note or the other Loan Documents shall be made irrespective of, and without any deduction for, any setoff, defense or counterclaims.

2.6.3Cash Management.  In connection with the Closing, Borrower shall execute and deliver to Lender a Tenant Direction Letter for each of the tenants at the Property, which Tenant Direction Letter instructs each such tenant to deposit Rent and other receivables related to the Property directly into an account (the “Lockbox Account”) owned and controlled by Lender at a bank to be selected by Lender (the “Lockbox Bank”).  Borrower covenants and agrees to execute and deliver to Lender a Tenant Direction Letter for each new tenant at the Property within thirty (30) days after the execution of each new Lease for premises at the Property. Lender will hold the Tenant Direction Letters in escrow; provided, however, upon the occurrence of a Lockbox Trigger, Lender shall have the right to deliver a Tenant Direction Letter to each tenant at the Property, Within five (5) Business Days after receiving notice of Lender’s determination that a Lockbox Trigger has occurred, Borrower shall enter into a “cash management agreement” with Lender and Lockbox Bank, in form and substance acceptable to Lender (“Cash Management Agreement”), which shall provide, among other things, that tenants at the Property shall deposit Rent and other receivables related to the Property directly into Lockbox Account. The Lockbox Bank shall apply funds in the Lockbox Account to pay debt service and required reserves, fees of the Lockbox Bank and budgeted operating expenses for the Property, as to be more particularly set forth in the Cash Management Agreement.  Funds remaining in the Lockbox Account after payment of the foregoing (the “Excess Cash Flow”) shall be distributed to Borrower; provided, however, upon the occurrence of a Cash Management Trigger and until the occurrence of a Cash Management Termination Event, such Excess Cash Flow shall be distributed to Borrower only to the extent of unbudgeted operating expenses approved by Lender and any remaining funds shall remain in such Lockbox Account as additional collateral for the Loan. Upon the occurrence of a Cash Management Termination Event, the balance of the funds in the Lockbox Account shall be distributed to Borrower.  The Borrower shall be responsible for the costs associated with the Lockbox Bank and the Lockbox Account.

Section 2.7Intentionally Omitted.

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ARTICLE III

CONDITIONS PRECEDENT

Section 3.1Conditions Precedent to Closing. The obligation of Lender to make the Loan hereunder is subject to the fulfillment by Borrower or waiver by Lender of the following conditions precedent no later than the Closing Date:

3.1.1Representations and Warranties; Compliance with Conditions. The representations and warranties of Borrower contained in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on and as of such date, and no Default or an Event of Default shall have occurred and be continuing; and Borrower shall be in compliance in all material respects with all terms and conditions set forth in this Agreement and in each other Loan Document on its part to be observed or performed.

3.1.2Loan Agreement and Note. Lender shall have received a copy of this Agreement and the Note, in each case, duly executed and delivered on behalf of Borrower.

3.1.3Delivery of Loan Documents; Title Insurance; Reports; Leases, Etc.

(a)Mortgage, Assignment of Leases and other Loan Documents.    Lender shall have received from Borrower fully executed and acknowledged counterparts of the Mortgage and the Assignment of Leases and evidence that counterparts of the Mortgage and Assignment of Leases have been delivered to the title company for recording, in the reasonable judgment of Lender, so as to effectively create upon such recording valid and enforceable first priority Liens upon the Property in favor of Lender (or such trustee as may be required under local law), subject only to the Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents. Lender shall have also received from Borrower fully executed counterparts of the Assignment of Management Agreement and the other Loan Documents.

(b)Title Insurance.    Lender shall have received a Title Insurance Policy issued by a title company acceptable to Lender and dated as of the Closing Date, Such Title Insurance Policy shall (i) provide coverage in an amount equal to the principal amount of the Loan together with, if applicable, a “tie-in” or similar endorsement, (ii) insure Lender that the Mortgage creates a valid first priority lien on the Property encumbered thereby, free and clear of all exceptions from coverage other than Permitted Encumbrances and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements), (iii) contain such endorsements and affirmative coverages as Lender may reasonably request, and (iv) name Lender, its successors and assigns, as the insured. The Title Insurance Policy shall he assignable without cost to Lender. Lender also shall have received evidence that all premiums in respect of such Title Insurance Policy have been paid.

(c)Survey.    Lender shall have received a title survey for the Property, certified to the title company and Lender and their successors and assigns, in form and content satisfactory to Lender and prepared by a professional and properly licensed land surveyor satisfactory to Lender in accordance with the most recent Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys.  The following additional items from the

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list of “Optional Survey Responsibilities and Specifications” (Table A) should be added to each survey: 2, 3, 4, 6, 8, 9, 10, 11 and 13. The survey shall reflect the same legal description contained in the Title Insurance Policy relating to the Property referred to in clause (ii) above and shall include, among other things, a legal description of the real property comprising part of such Property reasonably satisfactory to Lender. The surveyor’s seal shall be affixed to each survey and the surveyor shall provide a certification for each survey in form and substance acceptable to Lender.

(d)Insurance.  Lender shall have received valid certificates of insurance for the policies of insurance required hereunder, satisfactory to Lender in its sole discretion, and evidence of the payment of all premiums payable for the existing policy period.

(e)Environmental Reports.    Lender shall have received an environmental report in respect of the Property, in each case reasonably satisfactory to Lender.

(f)Zoning.   With respect to the Property, Lender shall have received, at Lender’s option, (i) letters or other evidence with respect to the Property from the appropriate municipal authorities (or other Persons) concerning applicable zoning and building laws, (ii) an ALTA 3.1 zoning endorsement to the Title Insurance Policy or (iii) other evidence of zoning compliance, in each case in substance reasonably satisfactory to Lender.

(g)Encumbrances.   Borrower shall have taken or caused to be taken such actions in such a manner so that Lender has a valid and perfected first Lien on the Property as of the Closing Date with respect to the Mortgage, subject only to applicable Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents, and Lender shall have received satisfactory evidence thereof.

3.1.4Related Documents. Each additional document not specifically referenced herein, but relating to the transactions contemplated herein, shall have been duly authorized, executed and delivered by all parties thereto and Lender shall have received and approved certified copies thereof.

3.1.5Delivery of Organizational Documents.   On or before the Closing Date, Borrower shall deliver or cause to be delivered to Lender copies certified by Borrower of all organizational documentation related to Borrower and/or the formation, structure, existence, good standing and/or qualification to do business, as Lender may request in its sole discretion, including, without limitation, good standing certificates, qualifications to do business in the appropriate jurisdictions, resolutions authorizing the entering into of the Loan and incumbency certificates as may be requested by Lender.

3.1.6Opinions of Borrower’s Counsel.   Lender shall have received opinions of Borrower’s counsel (and if applicable, Borrower’s local counsel) (a) with respect to non-consolidation issues (an “Insolvency Opinion”) and (b) with respect to due execution, authority, enforceability of the Loan Documents and such other matters as Lender may reasonably require, all such opinions in form, scope and substance reasonably satisfactory to Lender and Lender’s counsel in their reasonable discretion.

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3.1.7Budgets. Borrower shall have delivered, and Lender shall have approved, the Annual Budget for the current Fiscal Year.

3.1.8Basic Carrying Costs.  Borrower shall have paid all Basic Carrying Costs relating to the Property which are in arrears, including without limitation, (a) accrued but unpaid insurance premiums relating to the Property, (b) currently due and payable Taxes (including any in arrears) relating to the Property, and (c) currently due Other Charges relating to the Property, which amounts shall be funded with proceeds of the Loan.

3.1.9Completion of Proceedings. All organizational proceedings taken or to be taken in connection with the transactions contemplated by this Agreement and other Loan Documents and all documents incidental thereto shall he reasonably satisfactory in form and substance to Lender, and Lender shall have received all such counterpart originals or certified copies of such documents as Lender may reasonably request.

3.1.10Payments.   All payments, deposits or escrows required to be made or established by Borrower under this Agreement, the Note and the other Loan Documents on or before the Closing Date shall have been paid.

3.1.11Tenant Estoppels. Borrower shall exercise reasonable commercial efforts to deliver estoppel letters from Tenants occupying not less than eighty percent (80%) of the gross leasable area of the Property; provided, however, that, in the event that Borrower is unable to deliver some or all of the estoppels described above in this Section 3.1.11, Lender agrees that the requirement to deliver such letters to Lender shall be waived by Lender as a condition precedent to the closing of the Loan so long as Borrower delivers on or before the Closing Date, a certificate executed by Borrower with respect to all applicable leases which shall be in substantially the same form and contain the same terms as set forth in Lender’s standard form of estoppel certificate.  Borrower shall deliver to Lender an estoppel letter executed by Anchor Tenant in form reasonably acceptable to Lender.

3.1.12Transaction Costs. Borrower shall have paid or reimbursed Lender for all title insurance premiums, recording and filing fees or taxes, costs of environmental reports, Physical Conditions Reports, appraisals and other reports, the fees and costs of Lender’s counsel and all other third party out-of-pocket expenses incurred in connection with the origination of the Loan.

3.1.13Material Adverse Change.   There shall have been no material adverse change in the financial condition or business condition of Borrower or the Property since the date of the most recent financial statements delivered to Lender.  The income and expenses of the Property, the occupancy leases thereof, and all other features of the transaction shall be as represented to Lender without material adverse change. Neither Borrower, any of its constituent Persons, shall be the subject of any bankruptcy, reorganization, or insolvency proceeding.

3.1.14Leases and Rent Roll.   Lender shall have received copies of all tenant leases, certified copies of any tenant leases as requested by Lender and certified copies of all ground leases affecting the Property.  Lender shall have received a current certified rent roll of the Property, reasonably satisfactory in form and substance to Lender.

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3.1.15Subordination and Attornment.   Lender shall have received appropriate instruments acceptable to Lender in its commercially reasonable discretion subordinating any Leases of record prior to the Mortgage and including an agreement by such Tenants to attorn to Lender in the event of a foreclosure or delivery of a deed in lieu thereof.

3.1.16Tax Lot. Lender shall have received evidence that the Property constitutes one (1) or more separate tax lots, which evidence shall be reasonably satisfactory in form and substance to Lender.

3.1.17Physical Conditions Reports. Lender shall have received Physical Conditions Reports with respect to the Property, which reports shall be reasonably satisfactory in form and substance to Lender.

3.1.18Management Agreement.   Lender shall have received a certified copy of the Management Agreement with respect to the Property which shall be satisfactory in form and substance to Lender.   Lender acknowledges that it has reviewed the Management Agreement, and as drafted, such Management Agreement does not violate Borrower’s covenant that affiliated agreements be on terms which are intrinsically fair, commercially reasonable and are no less favorable to it than would be obtained in a comparable arm’s length transaction with an unrelated third party.

3.1.19Appraisal. Lender shall have received an appraisal of the Property, which shall be satisfactory in form and substance to Lender.

3.1.20Financial Statements. Lender shall have received (a) a balance sheet with respect to the Property for the two most recent Fiscal Years and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years, each in form and substance reasonably satisfactory to Lender or (b) such other financial statements relating to the ownership and operation of the Property, in form and substance reasonably satisfactory to Lender.

3.1.21Further Documents.  Lender or its counsel shall have received such other and further approvals, opinions, documents and information as Lender or its counsel may have reasonably requested including the Loan Documents in form and substance reasonably satisfactory to Lender and its counsel.

3.1.22Environmental Insurance.   If required by Lender, Borrower shall have obtained a secured creditor environmental insurance policy with respect to the Property, which shall be in form and substance satisfactory to Lender. Any such policy shall have a term not less than the term of the Loan. Borrower shall have provided to Lender evidence that the premiums for such policy has been paid in full.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

Section 4.1Borrower Representations. Borrower represents and warrants as of the date hereof and as of the Closing Date that:

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4.1.1Organization.   Borrower has been duly organized and is validly existing and in good standing with requisite power and authority to own the Property and to transact the businesses in which it is now engaged. Borrower is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with the Property, businesses and operations.  Borrower possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own the Property and to transact the businesses in which it is now engaged, and the sole business of Borrower is the ownership, management and operation of the Property.

4.1.2Proceedings.   Borrower has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the other Loan Documents.  This Agreement and such other Loan Documents have been duly executed and delivered by or on behalf of Borrower and constitute legal, valid and binding obligations of Borrower enforceable against Borrower in accordance with their respective terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

4.1.3No Conflicts.   The execution, delivery and performance of this Agreement and the other Loan Documents by Borrower will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance (other than pursuant to the Loan Documents) upon any of the property or assets of Borrower pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument to which Borrower is a party or by which any of Borrower’s property or assets is subject, nor will such action result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Borrower or any of Borrower’s properties or assets, and any consent, approval, authorization, order, registration or qualification of or with any court or any such regulatory authority or other governmental agency or body required for the execution, delivery and performance by Borrower of this Agreement or any other Loan Documents has been obtained and is in full force and effect.

4.1.4Litigation.   To Borrower’s knowledge, there are no actions, suits or proceedings at law or in equity by or before any Governmental Authority or other agency now pending or threatened against or affecting Borrower or the Property, which actions, suits or proceedings, if determined against Borrower or the Property, might materially adversely affect the condition (financial or otherwise) or business of Borrower or the condition or ownership of the Property.

4.1.5Agreements.   Except such instruments and agreements set forth as Permitted Exceptions inthe Title Insurance Policy, Borrower is not a party to any agreement or instrument or subject to any restriction which might materially and adversely affect Borrower or the Property, or Borrower’s business, properties or assets, operations or condition, financial or otherwise. To Borrower’s knowledge, Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party or by which Borrower or the property are bound. Borrower has no material financial obligation under any indenture,

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mortgage, deed of trust, loan agreement or other agreement or instrument to which Borrower is a party or by which Borrower or the Property is otherwise bound, other than (a) obligations incurred in the ordinary course of the operation of the Property and (b) obligations under the Loan Documents.

4.1.6Title.   Borrower has good and indefeasible fee simple title to the real property comprising part of the Property and good title to the balance of the Property, free and clear of all Liens whatsoever except the Permitted Encumbrances, such other Liens as are permitted pursuant to the Loan Documents and the Liens created by the Loan Documents.  The Mortgage, when properly recorded in the appropriate records, together with any Uniform Commercial Code financing statements required to be filed in connection therewith, will create (a) a valid, perfected lien on the Property, subject only to Permitted Encumbrances and the Liens created by the Loan Documents and (b) perfected security interests in and to, and perfected collateral assignment of, all personalty (including the Leases), all in accordance with the terms thereof, in each case subject only to any applicable Permitted Encumbrances, such other Liens as are permitted pursuant to the Loan Documents and the Liens created by the Loan Documents. There are no claims for payment for work, labor or materials affecting the Property which are due and unpaid under the contracts pursuant to which such work or labor was performed or materials provided which are or may become a lien prior to, or of equal priority with, the Liens created by the Loan Documents.

4.1.7Solvency; No Bankruptcy Filing.   Borrower (a) has not entered into the transaction or executed the Note, this Agreement or any other Loan Documents with the actual intent to hinder, delay or defraud any creditor and (b) received reasonably equivalent value in exchange for its obligations under such Loan Documents.  Giving effect to the Loan, the fair saleable value of Borrower’s assets exceeds and will, immediately following the making of the Loan, exceed Borrower’s total liabilities, including, without limitation, subordinated, unliquidated, disputed and contingent liabilities.  The fair saleable value of Borrower’s assets is and will, immediately following the making of the Loan, be greater than Borrower’s probable liabilities, including the maximum amount of its contingent liabilities on its debts as such debts become absolute and matured. Borrower’s assets do not and, immediately following the making of the Loan will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted.  Borrower does not intend to, and does not believe that it will, incur debt and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such debt and liabilities as they mature (taking into account the timing and amounts of cash to be received by Borrower and the amounts to be payable on or in respect of obligations of Borrower).  Except as expressly disclosed to Lender in writing, no petition in bankruptcy has been filed against Borrower, or to the best of Borrower’s knowledge, any constituent Person in the last seven (7) years, and neither Borrower, nor to the best of Borrower’s knowledge, any constituent Person in the last seven (7) years has ever made an assignment for the benefit of creditors or taken advantage of any insolvency act for the benefit of debtors.  Neither Borrower nor any of its constituent Persons are contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of Borrower’s assets or property, and Borrower has no knowledge of any Person contemplating the filing of any such petition against it or such constituent Persons.

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4.1.8Full and Accurate Disclosure. To Borrower’s knowledge, no statement of fact made by Borrower in this Agreement or in any of the other Loan Documents contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained herein or therein not misleading. There is no material fact presently known to Borrower which has not been disclosed to Lender which adversely affects, nor as far as Borrower can foresee, might adversely affect, the Property or the business, operations or condition (financial or otherwise) of Borrower.

4.1.9No Plan Assets.   Borrower is not an “employee benefit plan,” as defined in Section 3(3) of ERISA, subject to Title I of ERISA, and none of the assets of Borrower constitutes or will constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101.  In addition, (a) Borrower is not a “governmental plan” within the meaning of Section 3(32) of ERISA and (b) transactions by or with Borrower are not subject to state statutes regulating investment of, and fiduciary obligations with respect to, governmental plans similar to the provisions of Section 406 of ERISA or Section 4975 of the Code currently in effect, which prohibit or otherwise restrict the transactions contemplated by this Loan Agreement.

4.1.10Compliance.   To Borrower’s knowledge, Borrower and the Property and the use thereof comply in all material respects with all applicable Legal Requirements, including, without limitation, building and zoning ordinances and codes.  Borrower is not in default or violation of any order, writ, injunction, decree or demand of any Governmental Authority. There has not been committed by Borrower or, to Borrower’s knowledge, any other Person in occupancy of or involved with the operation or use of the Property any act or omission affording the federal government or any other Governmental Authority the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents.

4.1.11Financial Information.   All financial data, including, without limitation, the statements of cash flow and income and operating expense, that have been delivered to Lender in respect of the Property (i) are, to the best of Borrower’s knowledge, true, complete and correct in all material respects, (ii) accurately represent the financial condition of the Property as of the date of such reports, and (iii) to the extent prepared or audited by an independent certified public accounting firm, have been prepared in accordance with accounting principles reasonably acceptable to Lender, consistently applied throughout the periods covered, except as disclosed therein; provided, however, that if any financial data is delivered to Lender by any Person other than Borrower, Indemnitor or any of their Affiliates, or if such financial data has been prepared by or at the direction of any Person other than Borrower, Indemnitor or any of their Affiliates, then the foregoing representations with respect to such financial data shall be to the best of Borrower’s knowledge, after due inquiry.  Borrower does not have any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that are known to Borrower and reasonably likely to have a materially adverse effect on the Property or the operation thereof as a retail shopping center, except as referred to or reflected in said financial statements.  Since the date of such financial statements, there has been no materially adverse change in the financial condition. operations or business of Borrower from that set forth in said financial statements.

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4.1.12Condemnation.   No Condemnation or other proceeding has been commenced or, to Borrower’s knowledge, is contemplated with respect to all or any portion of the Property or for the relocation of roadways providing access to the Property.

4.1.13Federal Reserve Regulations.   No part of the proceeds of the Loan will be used for the purpose ofpurchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by Legal Requirements or by the terms and conditions of this Agreement or the other Loan Documents.

4.1.14Utilities and Public Access.   The Property has rights of access to public ways and is served by water, sewer, sanitary sewer and storm drain facilities adequate to service the Property for its respective intended uses.  All public utilities necessary or convenient to the full use and enjoyment of the Property arc located either in the public right-of-way abutting the Property (which are connected so as to serve the Property without passing over other property) or in recorded easements serving the Property and such easements are set forth in and insured by the Title Insurance Policy.  All roads necessary for the use of the Property for their current respective purposes have been completed and dedicated to public use and accepted by all Governmental Authorities.

4.1.15Not a Foreign Person.   Borrower is not a “foreign person” within the meaning of §1445(f)(3) of the Code.

4.1.16Separate Lots.   The Property is comprised of one (1) or more parcels which constitute a separate tax lot or lots and does not constitute a portion of any other tax lot not a part of the Property.

4.1.17Assessments.   There are no pending, or to Borrower’s knowledge, proposed special or other assessments for public improvements or otherwise affecting the Property, nor are there any contemplated improvements to the Property that may result in such special or other assessments.

4.1.18Enforceability.   The Loan Documents are not subject to any right of rescission, set-off, counterclaim or defense by Borrower, including the defense of usury, nor would the operation of any of the terms of the Loan Documents, or the exercise of” any right thereunder, render the Loan Documents unenforceable, and Borrower has not asserted any right of rescission, set-off, counterclaim or defense with respect thereto.

4.1.19No Prior Assignment.   There is no prior assignment of the Leases or any portion of the Rents by Borrower or any of its predecessors in interest, given as collateral security which are presently outstanding.

4.1.20Insurance.   Borrower has obtained and has delivered to Lender certified copies of all insurance policies reflecting the insurance coverages, amounts and other requirements set forth in this Agreement. To the best of Borrower’s knowledge, no claims have been made under any such policy, and no Person, including Borrower, has done, by act or omission, anything which would impair the coverage of any such policy.

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4.1.21Use of Property. The Property is used exclusively for retail purposes and other appurtenant and related uses.

4.1.22Certificate of Occupancy; Licenses.  All certifications, permits, licenses and approvals, including without limitation, certificates of completion and occupancy permits required to be obtained by Borrower for the legal use, occupancy and operation of the Property as a retail shopping center have been obtained and are in full force and effect, and to the best of Borrower’s knowledge, after due inquiry, all certifications, permits, licenses and approvals, including without limitation, certificates of completion and occupancy permits required to be obtained by any Person other than Borrower for the legal use, occupancy and operation of the Property as a retail shopping center, have been obtained and are in full force and effect (all of the foregoing certifications, permits, licenses and approvals are collectively referred to as the “Licenses”). Borrower shall and shall cause all other Persons to, keep and maintain all licenses necessary for the operation of the Property as a retail shopping center.  To Borrower’s knowledge, the use being made of the Property is in conformity with all certificates of occupancy issued for the Property.

4.1.23Flood Zone.  To the best of Borrower’s knowledge, after due inquiry, no Improvements on the Property are located in an area identified by the Federal Emergency Management Agency as an area having special flood hazards.

4.1.24Physical Condition.  Except as disclosed in the Physical Conditions Reports delivered to Lender in connecting with this Loan, to Borrower’s knowledge, the Property, including, without limitation, all buildings, improvements, parking facilities, sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, are in good condition, order and repair in all material respects; there exists no structural or other material defects or damages in the Property, whether latent or otherwise, and Borrower has not received notice from any insurance company or bonding company of any defects or inadequacies in the Property, or any part thereof, which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond.

4.1.25Boundaries.  To the best of Borrower’s knowledge, after due inquiry, all of the improvements which were included in determining the appraised value of the Property lie wholly within the boundaries and building restriction lines of the Property, and no improvements on adjoining properties encroach upon the Property, and no easements or other encumbrances upon the Property encroach upon any of the improvements, so as to affect the value or marketability of the Property except those which are insured against by title insurance.

4.1.26Leases.  The Property is not subject to any Leases other than the Leases described on the Rent Roll attached as Schedule IV hereto and made a part hereof (and subleases permitted under the Anchor Lease).  No Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and to Borrower’s knowledge after inquiry, there are no defaults thereunder by either party and there are no conditions that, with the passage of time or

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the giving of notice, or both, would constitute defaults thereunder. No Rent (including security deposits) has been paid more than one (1) month in advance of its due date. All work to be performed by Borrower under each Lease has been performed as required and has been accepted by the applicable tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any tenant has already been received by such tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein which is outstanding. To Borrower’s knowledge after inquiry, except as set forth on Schedule IV, no tenant listed on Schedule IV has assigned its Lease or sublet all or any portion of the premises demised thereby, no such tenant holds its leased premises under assignment or sublease, nor does anyone except such tenant and its employees occupy such leased premises. No tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as set forth in Schedule IV, no tenant under any Lease has any right or option for additional space in the Improvements except as set forth in Schedule IV. To Borrower’s actual knowledge based on the Environmental Report delivered to Lender in connection herewith, no hazardous wastes or toxic substances, as defined by applicable federal, state or local statutes, rules and regulations, have been disposed, stored or treated by any tenant under any Lease on or about the leased premises nor does Borrower have any knowledge of any tenant’s intention to use its leased premises for any activity which, directly or indirectly, involves the use, generation, treatment, storage, disposal or transportation of any petroleum product or any toxic or hazardous chemical, material, substance or waste, except in either event, in compliance with applicable federal, state or local statues, rules and regulations.

4.1.27Survey.  The Survey for the Property delivered to Lender in connection with this Agreement has been prepared in accordance with the provisions of Section 3.1.3(c) hereof, and does not fail to reflect any material matter affecting the Property or the title thereto.

4.1.28Loan to Value.  The maximum principal amount of the Note does not exceed one hundred twenty-five percent (125%) of the fair market value of the Property as set forth on the appraisal of the Property delivered to Lender.

4.1.29Filing and Recording Taxes.  All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the acquisition of the Property by Borrower have been paid or are simultaneously being paid. All mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents, including, without limitation, the Mortgage, have been paid, and, under current Legal Requirements, the Mortgage is enforceable in accordance with its terms by Lender (or any subsequent holder thereof).

4.1.30Special Purpose Entity/Separateness.   (a)  Until the Debt has been paid in full, Borrower hereby represents, warrants and covenants that the Borrower is, shall be and shall continue to be a Special Purpose Entity.  IF Borrower consists of more than one Person, each such Person shall be a Special Purpose Entity.

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(b)The representations, warranties and covenants set forth in Section 4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.

(c)Any and all of the assumptions made in any Insolvency Opinion, including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects, and Borrower will have complied and will comply with all of the assumptions made with respect to it in any Insolvency Opinion. Each entity other than Borrower with respect to which an assumption is made in any Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any such Insolvency Opinion.

4.1.31Management Agreement.  The Management Agreement is in full force and effect and, to Borrower’s knowledge, there is no default thereunder by any party thereto and no event has occurred that, with the passage of time and/or the giving of notice would constitute a default thereunder.

4.1.32Illegal Activity.  To Borrower’s knowledge, no portion of the Property has been or will be purchased with proceeds of any illegal activity.

4.133No Change in Facts or Circumstances; Disclosure.  All information submitted by Borrower to Lender and in all financial statements, rent rolls, reports, certificates and other documents submitted in connection with the Loan or in satisfaction of the terms thereof and all statements of fact made by Borrower in this Agreement or in any other Loan Document, are accurate, complete and correct in all material respects, provided, however, that if such information was provided to Borrower by non-affiliated third parties, Borrower represents that such information is, to the best of its knowledge after due inquiry, accurate, complete and correct in all material respects. There has been no material adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading in any material respect or that otherwise materially and adversely affects or might materially and adversely affect the Property or the business operations or the financial condition of Borrower. Borrower has disclosed to Lender all material facts and has not failed to disclose any material fact that could cause any representation or warranty made herein to be materially misleading.

4.1.34Investment Company Act.  Borrower is not (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; (b) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (c) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

4.1.35Principal Place of Business and Organization.  Borrower shall not change its principal place of business set forth in the introductory paragraph of this Agreement without first giving Lender thirty (30) days prior written notice. Borrower shall not change the place of its organization as set forth in the introductory paragraph of this Agreement without the consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed.  Upon

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Lender’s request, Borrower shall execute and deliver additional financing statements, security agreements and other instruments which may be necessary to effectively evidence or perfect Lender’s security interest in the Property as a result of such change of principal place of business or place of organization.

Section 4.2Survival of Representations.  Borrower agrees that all of the representations and warranties of Borrower set forth in Section 4.1 and elsewhere in this Agreement and in the other Loan Documents shall survive for so long as any amount remains owing to Lender under this Agreement or any of the other Loan Documents by Borrower. All representations, warranties, covenants and agreements made in this Agreement or in the other Loan Documents by Borrower shall be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf

ARTICLE V

BORROWER COVENANTS

Section 5.1Affirmative Covenants.  From the Closing Date and until payment and performance in full of all obligations of Borrower under the Loan Documents or the earlier release of the Lien of the Mortgage encumbering the Property (and all related obligations) in accordance with the terms of this Agreement and the other Loan Documents, Borrower hereby covenants and agrees with Lender that:

5.1.1Existence; Compliance with Legal Requirements; Insurance.  Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, rights, licenses, permits and franchises and comply with all Legal Requirements applicable to it and the Property. Borrower shall not commit, nor shall Borrower permit any other Person in occupancy of or involved with the operation or use of the Property to commit, any act or omission affording the federal government or any stale or local government the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents. Borrower hereby covenants and agrees not to commit, permit or suffer to exist any act or omission affording such right of forfeiture. Borrower shall at all times maintain, preserve and protect all its franchises and trade names and preserve all the remainder of its property used or useful in the conduct of its business and shall keep the Property in good working order and repair, and from time to time make, or cause to be made, all reasonably necessary repairs, renewals, replacements, betterments and improvements thereto, all as more fully provided in the Mortgage. Borrower shall keep the Property insured at all times by financially sound and reputable insurers, to such extent and against such risks, and maintain liability and such other insurance, as is more fully provided in this Agreement. Borrower shall operate, or cause the tenant to operate, any Property that is the subject of an O&M Agreement (if any) in accordance with the terms and provisions thereof in all material respects. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding promptly initiated and conducted in good faith and with due diligence, the validity of any Legal Requirement, the applicability of any Legal Requirement to Borrower or the Property or any alleged violation of any Legal Requirement, provided that, (i) no Event of Default has occurred and remains uncured; (ii) intentionally omitted; (iii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any instrument to which Borrower is subject and shall not constitute a default thereunder and such

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proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iv) the Property or any part thereof or interest therein will not be in danger of being sold, forfeited, terminated, cancelled or lost; (v) Borrower shall promptly upon final determination thereof comply with any such Legal Requirement determined to be valid or applicable or cure any violation of any Legal Requirement; (vi) such proceeding shall suspend the enforcement of the contested Legal Requirement against Borrower or the Property; and (vii) Borrower shall furnish such security as may be required in the proceeding, or as may be requested by Lender, to insure compliance with such Legal Requirement, together with all interest and penalties payable in connection therewith. Lender may apply any such security, as necessary to cause compliance with such Legal Requirement at any time when, in the reasonable judgment of Lender, the validity, applicability or violation of such Legal Requirement is finally established or the Property (or any part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost.

5.1.2Taxes and Other Charges.  Borrower shall pay or cause to be paid all Taxes and Other Charges now or hereafter levied or assessed or imposed against the Property or any part thereof as the same become due and payable; provided, however, Borrower’s obligation to directly pay to the appropriate taxing authority Taxes shall be suspended for so long as Borrower complies with the terms and provisions of Section 7.2 hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or arc not then delinquent no later than, ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate Segal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall he permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or

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part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.

5.1.3Litigation.  Borrower shall give prompt written notice to Lender of any litigation or governmental proceedings pending or threatened against Borrower which might materially adversely affect Borrower’s condition (financial or otherwise) or business or the Property.

5.1.4Access to Property.  Borrower shall permit agents, representatives and employees of Lender to inspect the Property or any part thereof at reasonable hours upon reasonable advance notice, subject to the rights of Tenants under their respective Leases.

5.1.5Notice of Default.  Borrower shall promptly advise Lender of any material adverse change in Borrower’s condition, financial or otherwise, or of the occurrence of any Default or Event of Default of which Borrower has knowledge.

5.1.6Cooperate in Legal Proceedings.  Borrower shall cooperate fully with Lender with respect to any proceedings before any court, board or other Governmental Authority which may in any way affect the rights of Lender hereunder or any rights obtained by Lender under any of the other Loan Documents and, in connection therewith, permit Lender, at its election, to participate in any such proceedings.

5.1.7Perform Loan Documents.  Borrower shall observe, perform and satisfy all the terms, provisions, covenants and conditions of, and shall pay when due all costs, fees and expenses to the extent required under the Loan Documents executed and delivered by, or applicable to, Borrower.

5.1.8Insurance Benefits.  Borrower shall cooperate with Lender in obtaining for Lender the benefits of any Insurance Proceeds lawfully or equitably payable in connection with the Property, and Lender shall be reimbursed for any expenses incurred in connection therewith (including reasonable attorneys’ fees and disbursements, and the payment by Borrower of the expense of an appraisal on behalf of Lender in case of a fire or other casualty affecting the Property or any part thereof) out of such Insurance Proceeds.

5.1.9Further Assurances.  Borrower shall, at Borrower’s sole cost and expense:

(a)furnish to Lender all instruments, documents, boundary surveys, footing or foundation surveys, certificates, plans and specifications, appraisals, title and other insurance reports and agreements, and each and every other document, certificate, agreement and instrument required to be furnished by Borrower pursuant to the terms of the Loan Documents or reasonably requested by Lender in connection therewith;

(b)execute and deliver to Lender such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect the collateral at any time securing or intended to secure the obligations of Borrower under the Loan Documents, as Lender may reasonably require; and

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(c)do and execute all and such further lawful and reasonable acts, conveyances and assurances for the better and more effective carrying out of the intents and purposes of this Agreement and the other Loan Documents, as Lender shall reasonably require from time to time.

5.1.10Intentionally Omitted.

5.1.11Financial Reporting.   (a) Borrower will keep and maintain or will cause to be kept and maintained on a Fiscal Year basis, in accordance with the requirements for a Special Purpose Entity set forth above, proper and accurate books, records and accounts reflecting all of the financial affairs of Borrower and all items of income and expense in connection with the operation on an individual basis of the Property. Lender shall have the right from time to time at all times during normal business hours upon reasonable notice to examine such books, records and accounts at the office of Borrower or other Person maintaining such books, records and accounts and to make such copies or extracts thereof as Lender shall desire. After the occurrence and during the continuance of an Event of Default, Borrower shall pay any costs and expenses incurred by Lender to examine Borrower’s accounting records with respect to the Property, as Lender shall reasonably determine to be necessary or appropriate in the protection of Lender’s interest.

(b)Borrower will furnish to Lender annually, within ninety (90) days following the end of each Fiscal Year of Borrower, either (i) a complete copy of Borrower’s annual financial statements audited by an accounting firm or other independent certified public accountant reasonably acceptable to Lender in accordance with the requirements for a Special Purpose Entity set forth above, or (ii) a consolidated and annotated financial statement of Borrower and Sole Member (as applicable), audited by an accounting firm or other independent certified public accountant reasonably acceptable to Lender in accordance with the requirements for a Special Purpose Entity set forth above, together with unaudited financial statements relating to the Borrower and the Property. Such financial statements for the Property for such Fiscal Year and shall contain statements of profit and loss for Borrower and the Property and a balance sheet for Borrower. Such statements shall set forth the financial condition and the results of operations for the Property for such Fiscal Year, and shall include, but not be limited to, amounts representing annual Net Cash Flow, Net Operating Income, Gross Income from Operations and Operating Expenses. Borrower’s annual financial statements shall be accompanied by (i) a comparison of the budgeted income and expenses and the actual income and expenses for the prior Fiscal Year, (ii) a certificate executed by the chief financial officer of Borrower or Sole Member, as applicable, stating that each such annual financial statement presents fairly the financial condition and the results of operations of Borrower and the Property being reported upon and has been prepared in accordance with accounting principles reasonably acceptable to Lender, consistently applied, (iii) an unqualified opinion of an accounting firm or other independent certified public accountant reasonably acceptable to Lender, (iv) a certified rent roll containing current rent, lease expiration dates and the square footage occupied by each tenant; (v) a schedule audited by such independent certified public accountant reconciling Net Operating Income to Net Cash Flow (the “Net Cash Flow Schedule”), which shall itemize all adjustments made to Net Operating Income to arrive at Net Cash Flow deemed material by such independent certified public accountant. Together with Borrower’s annual financial statements, Borrower shall furnish to Lender an Officer’s Certificate certifying as of the date thereof whether there

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exists an event or circumstance which constitutes a Default or Event of Default under the Loan Documents executed and delivered by, or applicable to, Borrower, and if such Default or Event of Default exists, the nature thereof, the period of time it has existed and the action then being taken to remedy the same.

(c)Borrower will furnish, or cause to be furnished, to Lender on or before forty five (45) days after the end of each calendar quarter the following items, accompanied by a certificate of the chief financial officer of Borrower or Sole Member, as applicable, stating that such items are true, correct, accurate, and complete and fairly present the financial condition and results of the operations of Borrower and the Property (subject to normal year-end adjustments) as applicable: (i) a rent roll for the subject month accompanied by an Officer’s Certificate with respect thereto;  (ii)  quarterly and year-to-date operating statements (including capital Expenditures) prepared for each calendar quarter, noting Net Operating Income, Gross Income from Operations, and Operating Expenses (not including any contributions to the Replacement Reserve Fund, and other information necessary and sufficient to fairly represent the financial position and results of operation of the Property during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses together with a detailed explanation of any variances of five percent (5%) or more between budgeted and actual amounts for such periods, all in form satisfactory to Lender; (iii) a calculation reflecting the annual Debt Service Coverage Ratio for the immediately preceding twelve (12) month period as of the last day of such month accompanied by an Officer’s Certificate with respect thereto; and (iv) a Net Cash Flow Schedule (such Net Cash Flow for the Borrower may be unaudited if it is certified by an officer of the Borrower). In addition, such certificate shall also be accompanied by a certificate of the chief financial officer of Borrower or Sole Member stating that the representations and warranties of Borrower set forth in Section 4.1.30(a) are true and correct as of the date of such certificate.

(d)For the partial year period commencing on the Closing Date, and for each Fiscal Year thereafter, Borrower shall submit to Lender an Annual Budget not later than thirty (30) days after the commencement of such period or Fiscal Year in form reasonably satisfactory to Lender.

(e)Borrower shall furnish to Lender, within ten (10) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information with respect to the operation of the Property and the financial affairs of Borrower as may be reasonably requested by Lender.

(f)Borrower shall furnish to Lender, within ten (10) Business Days after Lender’s request (or as soon thereafter as may be reasonably possible), financial and sales information from any Tenant designated by Lender (to the extent such financial and sales information is required to be provided under the applicable Lease and same is received by Borrower after request therefor).

(g)Borrower will cause Indemnitor to furnish to Lender annually, within one hundred twenty (120) days following the end of each Fiscal Year of Indemnitor, financial statements audited by an independent certified public accountant, which shall include an annua1

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balance sheet and profit and loss statement of Indemnitor, in the form reasonably required by Lender.

(h) Any reports, statements or other information required to be delivered under this Agreement shall be delivered (i) in paper form, (ii) on a diskette, and (iii) if requested by Lender and within the capabilities of Borrower’s data systems without change or modification thereto, in electronic form and prepared using a Microsoft Word for Windows or WordPerfect for Windows files (which files may be prepared using a spreadsheet program and saved as word processing files).

5.1.12Business and Operations.  Borrower will continue to engage in the businesses presently conducted by it as and to the extent the same are necessary for the ownership, maintenance, management and operation of the Property.  Borrower will qualify to do business and will remain in good standing under the laws of each jurisdiction as and to the extent the same are required for the ownership, maintenance, management and operation of the Property.

5.1.13Title to the Property. Borrower will warrant and defend (a) the title to the Property and every part thereof, subject only to Liens permitted hereunder (including Permitted Encumbrances) and (b) the validity and priority of the Liens of the Mortgage and the Assignment of Leases on the Property, subject only to Liens permitted hereunder (including Permitted Encumbrances), in each case against the claims of all Persons whomsoever.  Borrower shall reimburse Lender for any losses, costs, damages or expenses (including reasonable attorneys’ fees and court costs) incurred by Lender if an interest in the Property, other than as permitted hereunder, is claimed by another Person.

5.1.14Costs of Enforcement. In the event (a) that the Mortgage encumbering the Property is foreclosed in whole or in part or that the Mortgage is put into the hands of an attorney for collection, suit, action or foreclosure, (b) of the foreclosure of any mortgage prior to or subsequent to the Mortgage encumbering the Property in which proceeding Lender is made a party, or (c) of the bankruptcy, insolvency, rehabilitation or other similar proceeding in respect of Borrower or any of its constituent Persons or an assignment by Borrower or any of its constituent Persons for the benefit of its creditors, Borrower, its successors or assigns, shall be chargeable with and agrees to pay all costs of collection and defense, including reasonable attorneys’ fees and costs, incurred by Lender or Borrower in connection therewith and in connection with any appellate proceeding or post-judgment action involved therein, together with all required service or use taxes.

5.1.15Estoppel Statement.   (a) After request by Lender, Borrower shall within ten (10) days furnish Lender with a statement, duly acknowledged and certified, setting forth (i) the amount of the original principal amount of the Note, (ii) the unpaid principal amount of the Note, (iii) the applicable interest rate of the Note, (iv) the date installments of interest and/or principal were last paid, (v) any offsets or defenses to the payment of the Debt, if any, and (vi) that the Note, this Agreement, the Mortgage and the other Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such modification.

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(b)Borrower shall use commercially reasonable efforts to deliver to Lender upon request, tenant estoppel certificates from each commercial tenant leasing space at the Property in form and substance reasonably satisfactory to Lender provided that Borrower shall not be required to deliver such certificates more frequently than one (1) time in any calendar year.

(c)Within thirty (30) days of request by Borrower, Lender shall deliver to Borrower a statement setting forth the items described at (a)(i), (ii), (iii) and (iv) of this Section 5.1.15.

5.1.16Loan Proceeds.  Borrower shall use the proceeds of the Loan received by it on the Closing Date only for the purposes set forth in Section 2.1.4.

5.1.17Performance by Borrower.  Borrower shall in a timely manner observe, perform and fulfill each and every covenant, term and provision of each Loan Document executed and delivered by, or applicable to, Borrower, and shall not enter into or otherwise suffer or permit any amendment, waiver, supplement, termination or other modification of any Loan Document executed and delivered by, or applicable to, Borrower without the prior written consent of Lender.

5.1.18Confirmation of Representations.  Borrower shall deliver, in connection with any Securitization, (a) one or more Officer’s Certificates certifying as to the accuracy of all representations made by Borrower in the Loan Documents as of the date of the closing of such Securitization, and (b) certificates of the relevant Governmental Authorities in all relevant jurisdictions indicating the good standing and qualification of Borrower and its member as of the date of the Securitization.

5.1.19No Joint Assessment.  Borrower shall not suffer, permit or initiate the joint assessment of the Property (a) with any other real property constituting a tax lot separate from the Properly, and (b) which constitutes real property with any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to such real property portion of the Property.

5.1.20Leasing Matters.  Any Leases with respect to the Property written after the Closing Date for more than the Relevant Leasing Threshold square footage shall be subject to the prior written approval of Lender, which approval may be given or withheld in the sole discretion of Lender. Lender shall approve or disapprove any such Lease within ten (10) Business Days of Lender’s receipt of a final execution draft of such Lease (including all exhibits, schedules, supplements, addenda or other agreements relating thereto) and a written notice from Borrower requesting Lender’s approval to such Lease, and such Lease shall be deemed approved, if Lender does not disapprove such Lease within said ten (10) Business Day period provided such written notice conspicuously states, in large bold type, that “PURSUANT TO SECTION 5.1.20 OF THE LOAN AGREEMENT, THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN TEN (10) BUSINESS DAYS OF LENDER’S RECEIPT OF SUCH LEASE AND WRITTEN NOTICE”. Borrower shall furnish Lender with executed copies of all Leases. All renewals of Leases and all

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proposed Leases shall provide for rental rates comparable to existing local market rates (unless such rental rates are otherwise set forth in the Leases executed prior to the Closing Date). All proposed Leases shall be on commercially reasonable terms and shall not contain any terms which would materially affect Lender’s rights under the Loan Documents. All Leases executed after the Closing Date shall provide that they are subordinate to the Mortgage encumbering the Property and that the tenant thereunder agrees to attorn to Lender or any purchaser at a sale by foreclosure or power of sale. Borrower (i) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner not to impair the value of the Property involved except that no termination by Borrower or acceptance of surrender by a tenant of any Lease shall be permitted unless by reason of a tenant default and then only in a commercially reasonable manner to preserve and protect the Property provided, however, that no such termination or surrender of any Lease covering more than the Relevant Leasing Threshold will be permitted without the written consent of Lender which consent may be withheld in the sole discretion of Lender; (iii) shall not collect any of the rents more than one (1) month in advance (other than security deposits); (iv) shall not execute any other assignment of lessor’s interest in the Leases or the Rents (except as contemplated by the Loan Documents); (v) shall not alter, modify or change the terms of the Leases in a manner inconsistent with the provisions of the Loan Documents without the prior written consent of Lender, which consent may be withheld in the sole discretion of Lender; and (vi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignment in connection with the Leases as Lender shall from time to time reasonably require. Notwithstanding the foregoing, Borrower may, without the prior written consent of Lender, terminate any Lease which demises less than the Relevant Leasing Threshold under any of the following circumstances: (i) the tenant under said Lease is in default beyond any applicable grace and cure period, and Borrower has the right to terminate such Lease; (ii) such termination is permitted by the terms of the Lease in question and Borrower has secured an obligation from a third party to lease the space under the Lease to be terminated at a rental equal to or higher than the rental due under the Lease to be terminated; and (iii) if the tenant under the Lease to be terminated, has executed a right under said Lease to terminate its lease upon payment of a termination fee to Borrower, and has in fact terminated its lease and paid said fee, Borrower may accept said termination.

5.1.21Alterations.  Subject to the rights of tenants to make alterations pursuant to the terms of their respective Leases, Borrower shall obtain Lender’s prior written consent to any alterations to any Improvements, which consent shall not be unreasonably withheld or delayed except with respect to alterations that may have a material adverse effect on Borrower’s financial condition, the value of the Property or the Net Operating Income. Notwithstanding the foregoing, Lender’s consent shall not be required in connection with any alterations that will not have a material adverse effect on Borrower’s financial condition, the value of the Property or the Net Operating Income, provided that such alterations are made in connection with (a) tenant improvement work performed pursuant to the terms of any Lease executed on or before the Closing Date, (b) tenant improvement work performed pursuant to the terms and provisions of a Lease and not adversely affecting any structural component of any Improvements, any utility or HVAC system contained in any Improvements or the exterior of any building constituting a part of any Improvements, (c) alterations performed in connection with the restoration of the Property after the occurrence of a casualty in accordance with the terms and provisions of this Agreement

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or (d) any structural alteration which costs less than $50,000.00 in the aggregate for all components thereof which constitute such alteration or any non-structural alteration which costs less than $100,000.00 in the aggregate for all components thereof which constitute such alteration. If the total unpaid amounts due and payable with respect to alterations to the Improvements at the Property (other than such amounts to be paid or reimbursed by tenants under the Leases) shall at any time equal or exceed $350,000.00 (the “Threshold Amount”), Borrower, upon Lender’s request, shall promptly deliver to Lender as security for the payment of such amounts and as additional security for Borrower’s obligations under the Loan Documents any of the following: (A) cash, (B) U.S. Obligations, (C) other securities having a rating acceptable to Lender and that the applicable Rating Agencies have confirmed in writing will not, in and of itself, result in a downgrade, withdrawal or qualification of the initial, or, if higher, then current ratings assigned in connection with any Securitization, or (D) a completion bond or letter of credit issued by a financial institution having a rating by Standard £ Poor’s Ratings Group of not less than A-1+ if the term of such bond or letter of credit is no longer than three (3) months or, if such term is in excess of three (3) months, issued by a financial institution having a rating that is acceptable to Lender and that the applicable Rating Agencies have confirmed in writing will not, in and of itself, result in a downgrade, withdrawal or qualification of the initial, or, if higher, then current ratings assigned in connection with any Securitization. Such security shall be in an amount equal to the excess of the total unpaid amounts with respect to alterations to the Improvements on the Property (other than such amounts to be paid or reimbursed by tenants under the Leases) over the Threshold Amount and, if cash, may be applied from time to time, at the option of Borrower, to pay for such alterations. At the option of Lender, following the occurrence and during the continuance of an Event of Default, Lender may terminate any of the alterations and use the deposit to restore the Property to the extent necessary to prevent any material adverse effect on the value of the Property.

5.1.22Intentionally Omitted.

5.1.23Intentionally Omitted.

Section 5.2Negative Covenants.  From the Closing Date until payment and performance in full of all obligations of Borrower under the Loan Documents or the earlier release of the Lien of the Mortgage encumbering the Property in accordance with the terms of this Agreement and the other Loan Documents, Borrower covenants and agrees with Lender that it will not do, directly or indirectly, any of the following:

5.2.1Operation of Property.  Borrower shall not, without the prior consent of Lender, terminate the Management Agreement or otherwise replace the Manager or enter into any other management agreement with respect to the Property unless the Manager is in default thereunder beyond any applicable grace or cure period, in which event no consent by Lender shall be required. Lender agrees that its consent will not be unreasonably withheld, delayed or conditioned provided that the Person chosen by Borrower as the replacement Manager is a Qualifying Manager and provided further that Borrower shall deliver an acceptable non-consolidation opinion covering such replacement Manager if such Person was not covered by such opinion delivered at the closing of the Loan.

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5.2.2Liens.  Borrower shall not, without the prior written consent of Lender, create, incur, assume or suffer to exist any Lien on any portion of the Property or permit any such action to be taken, except:

(i)Permitted Encumbrances;

(ii)Liens created by or related to Indebtedness permitted pursuant to the Loan Documents; and

(iii)Liens for Taxes or Other Charges not yet due (or that Borrower is contesting in accordance with the terms of Section 5.1.2 hereof).

5.2.3Dissolution.  Borrower shall not (a) engage in any dissolution, liquidation or consolidation or merger with or into any other business entity, (b) engage in any business activity not related to the ownership and operation of the Property, (c) transfer, lease or sell, in one transaction or any combination of transactions, the assets or all or substantially all of the properties or assets of Borrower except to the extent permitted by the Loan Documents, (d) modify, amend, waive or terminate its organizational documents or its qualification and good standing in any jurisdiction or (e) cause the Sole Member to (i) dissolve, wind up or liquidate or take any action, or omit to take an action, as a result of which the Sole Member would be dissolved, wound up or liquidated in whole or in part, or (ii) amend, modify, waive or terminate the certificate of limited partnership or partnership agreement of the Sole Member, in each case, without obtaining the prior written consent of Lender or Lender’s designee.

5.2.4Change in Business.  Borrower shall not enter into any line of business other than the ownership and operation of the Property, or make any material change in the scope or nature of its business objectives, purposes or operations, or undertake or participate in activities other than the continuance of its present business.

5.2.5Debt Cancellation.  Borrower shall not cancel or otherwise forgive or release any claim or debt (other than termination of Leases in accordance herewith) owed to Borrower by any Person, except for adequate consideration and in the ordinary course of Borrower’s business.

5.2.6Affiliate Transactions.  Borrower shall not enter into, or be a party to, any transaction with an Affiliate of Borrower or any of the partners of Borrower except in the ordinary course of business and on terms which are fully disclosed to Lender in advance and are no less favorable to Borrower or such Affiliate than would be obtained in a comparable arm’s-length transaction with an unrelated third party.

5.2.7Zoning.  Borrower shall not initiate or consent to any zoning reclassification of any portion of the Property or seek any variance under any existing zoning ordinance or use or permit the use of any portion of the Property in any manner that could result in such use becoming a non-conforming use under any zoning ordinance or any other applicable land use law, rule or regulation, without the prior consent of Lender.

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5.2.8Assets.  Borrower shall not purchase or own any properties other than the Property owned by Borrower as of the Closing Date as reflected in the applicable Title Insurance Policy.

5.2.9Debt.  Borrower shall not create, incur or assume any Indebtedness other than the Debt except to the extent expressly permitted hereby.

5.2.10No Joint Assessment.  Borrower shall not suffer, permit or initiate the joint assessment of the Property with (a) any other real property constituting a tax lot separate from the Property, or (b) any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the Lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to the Property.

5.2.11Intentionally Omitted.

5.2.12ERISA.   (a)  Borrower shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under the Note, this Agreement or the other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA.

(b)Borrower further covenants and agrees to deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan, as requested by Lender in its sole discretion, that (A) Borrower is not and does not maintain an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmental plan” within the meaning of Section 3(3) of ERISA; (B) Borrower is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (C) one or more of the following circumstances is true:

(i)Equity interests in Borrower arc publicly offered securities, within the meaning of 29 C.F.R. §2510.3-101 (b)(2);

(ii)Less than twenty-five percent (25%) of each outstanding class of equity interests in Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R. §2510.3-101(f)(2); or

(iii)Borrower qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. §2510.3-101 (c) or (e).

5.2.13Transfers.  Unless such action is permitted by the provisions of this Section 5.2.13, Borrower agrees that it will not (i) sell, assign, convey, transfer or otherwise dispose of its interests in the Property or any part thereof, (ii) permit any owner, directly or indirectly, of an ownership interest in the Property, to transfer such interest, whether by transfer of stock or other interest in Borrower or any entity, or otherwise, (iii) incur Indebtedness (other than the Indebtedness permitted pursuant to the terms of this Agreement), (iv) mortgage, hypothecate or otherwise encumber or grant a security interest in the Property or any part thereof, (v) sell, assign, convey, transfer, mortgage, encumber, grant a security interest in, or otherwise dispose of any direct or indirect ownership interest in Borrower, or permit any owner of an interest in Borrower to do the same, or (vi) file a declaration of condominium with respect

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to the Property (any of the foregoing transactions, a “Transfer”). For purposes hereof, a “Transfer” shall not include (A) any issuance, sale or transfer of interests in Inland Western Retail Real Estate Trust, Inc., (B) transfer by devise or descent or by operation of law upon the death of a member of Borrower, and (C) a sale, transfer or hypothecation of a membership interest in Borrower, whichever the case may be, by the current member(s), as applicable, to an immediate family member (i.e., parents, spouses, siblings, children or grandchildren) of such member (or a trust for the benefit of any such persons).

(a)On and after the date that is twelve (12) months following the Closing Date, Lender shall not withhold its consent to a Transfer of the Property, provided that the following conditions are satisfied:

(1)the transferee of the Property shall be a Special Purpose Entity (the “Transferee”) which at the time of such transfer will be in compliance with the covenants contained in Section 5.1.1 and the representations contained in 4.1.30 hereof and which shall have assumed in writing (subject to the terms of Section 9.4 hereof) and agreed to comply with all the terms, covenants and conditions set forth in this Loan Agreement and the other Loan Documents, expressly including the covenants contained in Section 5.1.1 and the representations contained in 4.1.30 hereof;

(2)if requested by Lender, Borrower shall deliver confirmation in writing from the Rating Agencies that such proposed Transfer will not cause a downgrading, withdrawal or qualification of the then current rating of any securities issued pursuant to such Securitization;

(3)if Manager does not act as manager of the transferred Property then the manager of the Property must be a Qualifying Manager;

(4)no Event of Default shall have occurred and be continuing;

(5)if required or requested by any of the Rating Agencies, Borrower shall deliver an Additional Insolvency Opinion, and if required by a Rating Agency, a fraudulent conveyance opinion which in each case may be relied upon by the holder of the Note, the Ratings Agencies and their respective counsel, agents and representatives with respect to the proposed transaction, including the Transferee, which opinion shall be acceptable to Lender in its reasonable discretion;

(6)Borrower shall have paid (A) an assumption fee equal to one percent (1.0%) of the then outstanding principal balance of the Loan, and (B) the reasonable and customary third-party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer, provided, however, no assumption fee shall be required for a Transfer of the Property to a Transferee acceptable to Lender in connection with a joint venture between Inland Western Retail Real Estate Trust, Inc. and an institution acceptable to Lender

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provided Inland Western Retail Real Estate Trust, Inc., or an Affiliate wholly-owned (directly or indirectly) by Inland Western Retail Real Estate Trust, Inc., owns at least twenty percent (20%) of the ownership interests in such Transferee and for which Inland Western Retail Real Estate Trust, Inc, or an Affiliate wholly-owned (directly or indirectly) by Inland Western Retail Real Estate Trust, Inc., is the managing entity and otherwise maintains operational and managerial control of such Transferee, provided that Borrower shall pay all of Lender’s reasonable and customary third-party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer and a processing fee of $5,000.

Lender shall approve or disapprove any proposed Transfer governed by this Section 5.2.13(a) within thirty (30) days of Lender’s receipt of a written notice from Borrower requesting Lender’s approval, provided such notice includes all information necessary to make such decision, and further provided that such written notice from Borrower shall conspicuously state, in large bold type, that “PURSUANT TO SECTION 5.2.13 OF THE LOAN AGREEMENT, A RESPONSE IS REQUIRED WITHIN THIRTY (30) DAYS OF LENDER’S RECEIPT OF THIS WRITTEN NOTICE”. If Lender fails to disapprove any such matter within such period, Borrower shall provide a second written notice requesting approval, which written notice shall conspicuously state, in large bold type, that “PURSUANT TO SECTION 5.2.13 OF THE LOAN AGREEMENT, THE MATTER DESCRIBED HEREIN SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN TEN (10) DAYS OF LENDER’S RECEIPT OF THIS WRITTEN NOTICE”. Thereafter, if Lender does not disapprove such matter within said ten (10) day period such matter shall be deemed approved.

(b)On and after the date that is twelve (12) months following the Closing Date, Lender shall not withhold its consent to, and shall not charge an assumption fee in connection with, (1) a Transfer of up to, in the aggregate, forty-nine percent (49%) of the direct or indirect ownership interests in Borrower, or (2) a Transfer of greater than forty-nine percent (49%) of the direct or indirect ownership interest in Borrower, provided that (A) such transfer is to a Qualified Entity (as defined below), and (B) Borrower shall pay all of Lender’s reasonable and customary third-party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer and a processing fee of $5,000. For purposes of this Agreement, a “Qualified Entity” shall mean an entity (x) with a net worth of $200,000,000 or more, (y) with sufficient experience (determined by Lender in its reasonable discretion) in the ownership and management of properties similar to the Property, and (z) which owns or manages retail properties containing at least 1,000,000 square feet of gross leasable area. If required or requested by any of the Rating Agencies, Borrower shall deliver a substantive non-consolidation opinion with respect to any party not now owning more than 49% of the ownership interests in Borrower acquiring more than 49% of the ownership interests in Borrower.

(c)Notwithstanding anything in this Section 5.2.13 to the contrary, on or after the date that is twelve (12) months after the Closing Date, Borrower shall be permitted to Transfer the entire Property in a single transaction to one newly-formed Special Purpose Entity which shall be wholly-owned subsidiary of Inland Western Retail Real Estate Trust, Inc.

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(“Permitted Affiliate Transferee”) which shall be approved by Lender in its reasonable discretion (“Permitted Affiliate Transfer”), provided (1) no Event of Default shall have occurred and be continuing, (2) the creditworthiness of Inland Western Retail Real Estate Trust, Inc., as applicable, has not deteriorated, in the sole discretion of Lender, from the Closing Date to the date of the proposed Transfer, and (3) Borrower shall have paid all reasonable and customary third party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer (but not any assumption or processing fee).

(d)Borrower, without the consent of Lender, may grant easements, restrictions, covenants, reservations and rights of way in the ordinary course of business for access, parking, water and sewer lines, telephone and telegraph lines, electric lines and other utilities or for other similar purposes, provided that no transfer, conveyance or encumbrance shall materially impair the utility and operation of the Property or materially adversely affect the value of the Property or the Net Operating Income of the Property. If Borrower shall receive any consideration in connection with any of said described transfers or conveyances, Borrower shall have the right to use any such proceeds in connection with any alterations performed in connection therewith, or required thereby. In connection with any transfer, conveyance or encumbrance permitted above, the Lender shall execute and deliver any instrument reasonably necessary or appropriate to evidence its consent to said action or to subordinate the Lien of the Mortgage to such easements, restrictions, covenants, reservations and rights of way or other similar grants upon receipt by the Lender of: (A) a copy of the instrument of transfer, and (B) an Officer’s Certificate stating with respect to any transfer described above, that such transfer does not materially impair the utility and operation of the Property or materially reduce the value of the Property or the Net Operating Income of the Property.

ARTICLE VI

INSURANCE; CASUALTY; CONDEMNATION

Section 6.1Insurance.   (a) Borrower shall obtain and maintain, or shall cause Anchor Tenant to maintain, insurance for Borrower and the Property providing at least the following coverages:

(i)comprehensive all risk insurance on the Improvements and the Personal Property, including contingent liability from Operation of Building Laws, Demolition Costs and Increased Cost of Construction Endorsements, in each case (A) in an amount equal to one hundred percent (100%) of the “Full Replacement Cost,^” which for purposes of this Agreement shall mean actual replacement value (exclusive of costs of excavations, foundations, underground utilities and footings) with a waiver of depreciation; (B) containing an agreed amount endorsement with respect to the Improvements and Personal Property waiving all co-insurance provisions; (C) providing for no deductible in excess of Ten Thousand and No/100 Dollars ($10,000) for all such insurance coverage; and (D) containing an “Ordinance or Law Coverage’’ or “Enforcement” endorsement if any of the Improvements or the use of the. Property shall at any time constitute legal non-conforming structures or uses. In addition, Borrower shall obtain: (y) if any portion of the Improvements is currently or at any time in the future located in a federally designated “special flood hazard area”, flood hazard insurance in an amount equal to the lesser of (1) the outstanding principal balance of the Note or (2) the maximum amount of

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such insurance available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended or such greater amount as Lender shall require; and (z) earthquake insurance in amounts and in form and substance satisfactory to Lender in the event the Property is located in an area with a high degree of seismic activity, provided that the insurance pursuant to clauses (y) and (z) hereof shall be on terms consistent with the comprehensive all risk insurance policy required under this subsection (i).

(ii)commercial general liability insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about the Property, such insurance (A) to be on the so-called “occurrence” form with a combined limit, including umbrella coverage, of not less than Five Million and No/100 Dollars ($5,000,000.00); (B) to continue at not less than the aforesaid limit until required to be changed by Lender in writing by reason of changed economic conditions making such protection inadequate; and (C) to cover at least the following hazards: (1) premises and operations; (2) products and completed operations on an “if any” basis; (3) independent contractors; (4) blanket contractual liability for all legal contracts; and (5) contractual liability covering the indemnities contained in Article 9 of the Mortgage to the extent the same is available;

(iii)business income insurance (A) with loss payable to Lender; (B) covering all risks required to be covered by the insurance provided for in subsection (i) above; (C) covering rental losses or business interruption, as may be applicable, for a period of at least twelve (12) months after the date of the casualty; and (D) in an annual amount equal to (100%) of the rents or estimated gross revenues from the operation of the Property (as reduced to reflect expenses not incurred during a period of Restoration). The amount of such business income insurance shall be determined prior to the date hereof and at least once each year thereafter based on Borrower’s reasonable estimate of the gross income from the Property for the succeeding twelve (12) month period. All proceeds payable to Lender pursuant to this subsection shall be held by Lender and shall be applied to the obligations secured by the Loan Documents from time to time due and payable hereunder and under the Note; provided, however, that nothing herein contained shall be deemed to relieve Borrower of its obligations to pay the obligations secured by the Loan Documents on the respective dates of payment provided for in the Note and the other Loan Documents except to the extent such amounts are actually paid out of the proceeds of such business income insurance;

(iv)at all times during which structural construction, repairs or alterations are being made with respect to the Improvements, and only if the Property coverage form does not otherwise apply, (A) owner’s contingent or protective liability insurance covering claims not covered by or under the terms or provisions of the above mentioned commercial general liability insurance policy; and (B) the insurance provided for in subsection (i) above written in a so-called builder’s risk completed value form (1) on a non-reporting basis, (2) against all risks insured against pursuant to subsection (i) above, (3) including permission to occupy the Property, and (4) with an agreed amount endorsement waiving co-insurance provisions;

(v)workers’ compensation, subject to the statutory limits of the State;

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(vi)comprehensive boiler and machinery insurance, if applicable, in amounts as shall be reasonably required by Lender on terms consistent with the commercial property insurance policy required under subsection (i) above;

(vii)umbrella liability insurance in an amount not less than Five Million and No/100 Dollars ($5,000,000.00) per occurrence on terms consistent with the commercial general liability insurance policy required under subsection (ii) above;

(viii)if any of the policies of insurance covering the risks required to be covered under subsections (i) through (vii) above contains an exclusion from coverage for acts of terrorism, Borrower shall obtain and maintain a separate policy providing such coverages in the event of any act of terrorism, provided such coverage is commercially available for properties similar to the Property and located in or around the region in which the Property is located. Notwithstanding the foregoing, Borrower shall not be required to obtain such a policy, provided (I) Borrower confirms to Lender, in writing, that it shall protect and hold Lender harmless from any losses associated with such risks by, among other things, either (A) depositing with Lender sums sufficient to pay for all uninsured costs related to a Restoration of the Property following any act of terrorism (which sum shall be treated as a Net Proceeds Deficiency), or (B) provided such act of terrorism occurs on or after the Permitted Prepayment Date, prepaying the Loan in accordance with the terms hereof; (II) Inland Western Retail Real Estate Trust, Inc. (“Terrorism Insurance Guarantor”) executes a guaranty, in form and substance satisfactory to Lender, guaranteeing in the event of any act of terrorism, payment to Lender of any sums that Borrower is obligated to pay to Lender under clause (I) above (which shall be applied in accordance with Section 6.4 hereof) and (III) Terrorism Insurance Guarantor maintains a net worth of at least $300,000,000 (as determined by such entity’s most recent audited financial statements), such entity maintains a direct or indirect ownership interest in Borrower, and the aggregate loan-to-value ratio (as determined by Lender) (“LTV”) for all properties on which such entity has a direct or indirect ownership interest shall not exceed 55%, however, Terrorism Insurance Guarantor may exceed the 55% LTV for a period not to exceed six (6) months out of any twelve (12) month period cither 1) during the time period when Terrorism Insurance Guarantor is offering securities to the public, or 2) when in the business judgement of Terrorism Insurance Guarantor, exceeding an LTV of 55% is necessary given existing circumstances of the credit environment, but in no event shall the LTV exceed 65% if Terrorism Insurance Guarantor maintains a net worth greater than or equal to $300,000,000, but less than $400,000,000, or 70% if Terrorism Insurance Guarantor maintains a net worth of at least $400,000,000.

(ix)upon sixty (60) days’ written notice, such other reasonable insurance and in such reasonable amounts as Lender from time to time may reasonably request against such other insurable hazards which at the time are commonly insured against for property similar to the Property located in or around the region in which the Property is located.

(b)All insurance provided for in Section 6.1(a) shall be obtained under valid and enforceable policies (collectively, the “Policies” or in the singular, the “Policy”), and shall be subject to the approval of Lender as to insurance companies, amounts, deductibles, loss payees and insureds. The Policies shall be issued by financially sound and responsible insurance

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companies authorized to do business in the State and having a rating of “A:X” or better in the current Best’s Insurance Reports and a claims paying ability rating of “AA” or better by at least two (2) of the Rating Agencies including, (i) Standard & Poor’s Ratings Group, and (ii) Moody’s Investors Services, Inc. if Moody’s Investors Service, Inc. is rating the Securities. The Policies described in Section 6.1 (other than those strictly limited to liability protection) shall designate Lender as loss payee. Not less than thirty (30) days prior to the expiration dates of the Policies theretofore furnished to Lender, certificates of insurance evidencing the Policies accompanied by evidence satisfactory to Lender of payment of the premiums due thereunder (the “Insurance Premiums”), shall be delivered by Borrower to Lender.

(c)Any blanket insurance Policy shall specifically allocate to the Property the amount of coverage from time to time required hereunder and shall otherwise provide the same protection as would a separate Policy insuring only the Property in compliance with the provisions of Section 6.1 (a).

(d)All Policies of insurance provided for or contemplated by Section 6.1(a), except for the Policy referenced in Section 6.1(a)(v), shall name Borrower, or the Tenant, as the insured and Lender as the additional insured, as its interests may appear, and in the case of property damage, boiler and machinery, flood and earthquake insurance, shall contain a so-called New York standard non-contributing mortgagee clause in favor of Lender providing that the loss thereunder shall be payable to Lender.

(e)All Policies of insurance provided for in Section 6.1 (a) shall contain clauses or endorsements to the effect that:

(i)no act or negligence of Borrower, or anyone acting for Borrower, or of any Tenant or other occupant, or failure to comply with the provisions of any Policy, which might otherwise result in a forfeiture of the insurance or any part thereof, shall in any way affect the validity or enforceability of the insurance insofar as Lender is concerned;

(ii)the Policy shall not be materially changed (other than to increase the coverage provided thereby) or canceled without at least thirty (30) days’ written notice to Lender and any other party named therein as an additional insured;

(iii)the issuers thereof shall give written notice to Lender if the Policy has not been renewed fifteen (15) days prior to its expiration; and

(iv)Lender shall not be liable for any Insurance Premiums thereon or subject to any assessments thereunder.

(f)If at any time Lender is not in receipt of written evidence that all insurance required hereunder is in full force and effect, Lender shall have the right, after ten (10) Business Days written notice to Borrower, to take such action as Lender deems necessary to protect its interest in the Property, including, without limitation, the obtaining of such insurance coverage as Lender in its sole discretion deems appropriate. All premiums incurred by Lender in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by Borrower to Lender upon demand and, until paid, shall be secured by the Mortgage and shall

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bear interest at the Default Rate. If Borrower fails in so insuring the Property or in so assigning and delivering the Policies, Lender may, at its option, obtain such insurance using such carriers and agencies as Lender shall elect from year to year and pay the premiums therefor, and Borrower will reimburse Lender for any premium so paid, with interest thereon as stated in the Note from the time of payment, on demand, and the amount so owning to Lender shall be secured by the Mortgage. The insurance obtained by Lender may, but need not, protect Borrower’s interest and the coverage that Lender purchases may not pay any claim that Borrower makes or any claim that is made against Borrower in connection with the Property.

Section 6.2Casualty.  If the Property shall be damaged or destroyed, in whole or in part, by fire or other casualty (a “Casualty”), Borrower (a) shall give to Lender prompt notice of such damage reasonably estimated by Borrower to cost more than One Hundred Thousand Dollars ($100,000.00) to repair, and (b) shall promptly commence and diligently prosecute the completion of the repair and restoration of the Property as nearly as possible to the condition the Property was in immediately prior to such fire or other casualty, with such alterations as may be reasonably approved by Lender (a “Restoration”) and otherwise in accordance with Section 6.4. Borrower shall pay all costs of such Restoration whether or not such costs are covered by insurance. Lender may, but shall not be obligated to make proof of loss if not made promptly by Borrower.

Section 6.3Condemnation.

(a)Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the Condemnation of the Property and shall deliver to Lender copies of any and all papers served in connection with such proceedings. Lender may participate in any such proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Debt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the provisions of Section 6.4. If the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.

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Section 6.4Restoration.  The following provisions shall apply in connection with the Restoration of the Property:

(a)If the Net Proceeds shall be less than Relevant Restoration Threshold and the costs of completing the Restoration shall be less than the Relevant Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.

(b)If the Net Proceeds are equal to or greater than the Relevant Restoration Threshold or the costs of completing the Restoration is equal to or greater than the Relevant Restoration Threshold, then in either case, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4(b).  The term. “Net Proceeds” for purposes of this Section 6.4 shall mean: (x) the net amount of ail insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi) and (viii) as a result of such damage or destruction, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting same (“Insurance Proceeds”), or (y) the net amount of the Award, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.

(i)The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:

(A)no Event of Default shall have occurred and be continuing;

(B)(1) in the event the Net Proceeds are Insurance Proceeds, and (x) less than twenty-five percent (25%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such fire or other casualty, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property, or (2) in the event the Net Proceeds are Condemnation Proceeds, and (x) less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property;

(C)Leases demising in the aggregate a percentage amount equal to or greater than the Rentable Space Percentage of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such fire or other casualty or taking, whichever the case maybe, and will make all necessary repairs and restorations thereto at their sole cost and expense.  The term “Rentable Space Percentage”

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shall mean (x) in the event the Net Proceeds are Insurance Proceeds, a percentage amount equal to fifty percent (50%) and (y) in the event the Net Proceeds are Condemnation Proceeds, a percentage amount equal to fifty percent (50%);

(D)Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than ninety (90) days after such damage or destruction or taking, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion;

(E)Lender shall be satisfied that any operating deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the Property as a result of the occurrence of any such fire or other casualty or taking, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 6.1(a)(iii), if applicable, or (3) by other funds of Borrower;

(F)Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) the Maturity Date, (2) the earliest date required for such completion under the terms of any Leases, (3) such time as may be required under applicable zoning law, ordinance, rule or regulation in order to repair and restore the Property to the condition it was in immediately prior to such fire or other casualty or to as nearly as possible the condition it was in immediately prior to such taking, as applicable or (4) the expiration of the insurance coverage referred to in Section 6.1(a)(iii);

(G)the Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable zoning laws, ordinances, rules and regulations provided, however, that compliance with such zoning laws, ordinances, rules and regulations (including, without limitation, parking requirements) will not require restoration of the Improvements or the Property to a size, condition, or configuration materially different, than that which existed immediately prior to such Casualty or taking;

(H)the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable governmental laws, rules and regulations (including, without limitation, all applicable environmental laws);

(I)such fire or other casualty or taking, as applicable, does not result in the loss of access to the Property or the related Improvements;

(J)the Debt Service Coverage Ratio, after giving effect to the Restoration, shall be equal lo or greater than 2.49:1.0;

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(K)Borrower shall deliver or cause to be delivered to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, which budget should be consistent with restoration budgets of similar retail properties then owned and operated by nationally recognized owners and operators of retail properties located in the areas in which the Property is located; and

(L)the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s discretion to cover the cost of the Restoration.

(ii)The Net Proceeds shall be held by Lender in an interest bearing account and, until disbursed in accordance with the provisions of this Section 6.4(b), shall constitute additional security for the Debt and other obligations under the Loan Documents. The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all materials installed and work and labor performed to be paid for out of the requested disbursement in connection with the Restoration have been performed, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy.

(iii)All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Casualty Consultant”), such review and acceptance not to be unreasonably withheld or delayed. Lender shall have the use of the plans arid specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration, as well as the contracts under which they have been engaged, shall be subject to prior review and acceptance by Lender and the Casualty Consultant, such review and acceptance not to he unreasonably withheld or delayed. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be paid by Borrower.

(iv)In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Casualty Retainage. The term “Casualty Retainage” shall mean an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until the Restoration has been completed. The Casualty Retainage shall in no event, and notwithstanding anything to

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the contrary set forth above in this Section 6.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Casualty Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 6.4(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate governmental and quasi-governmental authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Casualty Retainage; provided, however, that Lender will release the portion of the Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company issuing the Title Insurance Policy, and Lender receives an endorsement to the Title Insurance Policy insuring the continued priority of the lien of the Mortgage and evidence of payment of any premium payable for such endorsement. If required by Lender, the release of any such portion of the Casualty Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.

(v)Lender shall not be obligated to make disbursements of the Net Proceeds more frequently than once every calendar month.

(vi)If at any time the Net Proceeds or the undisbursed balance thereof shall not, in the reasonable opinion of Lender in consultation with the Casualty Consultant, be sufficient to pay in full the balance of the costs which are estimated by the Casualty Consultant to be incurred in connection with the completion of the Restoration, Borrower shall deposit the deficiency (the “Net Proceeds Deficiency”) with Lender before any further disbursement of the Net Proceeds shall be made. The Net Proceeds Deficiency deposited with Lender shall be held by Lender and shall be disbursed for costs actually incurred in connection with the Restoration on the same conditions applicable to the disbursement of the Net Proceeds, and until so disbursed pursuant to this Section 6.4(b) shall constitute additional security for the Debt and other obligations under the Loan Documents.

(vii)The excess, if any, of the Net Proceeds and the remaining balance, if any, of the Net Proceeds Deficiency deposited with Lender after the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 6.4(b), and the receipt by Lender of evidence satisfactory to Lender that all costs incurred in connection with the Restoration have been paid in full, shall be remitted by Lender to Borrower, provided no Event of Default shall have occurred and shall be continuing under the Note, this Agreement or any of the other Loan Documents.

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(c)All Net Proceeds not required (i) to be made available for the Restoration or (ii) to be returned to Borrower as excess Net Proceeds pursuant to Section 6.4(b) (vii) may be retained and applied by Lender toward the payment of the Debt whether or not then due and payable in such order, priority and proportions as Lender in its sole discretion shall deem proper (provided no Event of Default exists, such Borrower shall not be required to pay any Prepayment Consideration in connection with such payment), or, at the discretion of Lender, the same may be paid, either in whole or in part, to Borrower for such purposes as Lender shall designate, in its discretion.

(d)In the event of foreclosure of the Mortgage with respect to the Property, or other transfer of title to the Property in extinguishment in whole or in part of the Debt all right, title and interest of Borrower in and to the Policies that are not blanket Policies then in force concerning the Property and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure or Lender or other transferee in the event of such other transfer of title.

(e)Lender shall with reasonable promptness following any Casualty or Condemnation notify Borrower whether or not Net Proceeds are required to be made available to Borrower for restoration pursuant to this Section 6.4.  All Net Proceeds not required to be made available for Restoration shall be retained and applied by Lender in accordance with Section 2.3.2(a) hereof (a “Net Proceeds Prepayment”).  If such Net Proceeds Prepayment shall be equal to or greater than Fourteen Million Five Hundred Thousand and 00/100 Dollars ($14,500,000.00), Borrower shall have the right to elect to prepay the remaining outstanding principal balance of the Note (a “Casualty/Condemnation Prepayment”) in accordance with Section 2.3.2(b) hereof upon satisfaction of the following conditions:  (i) within thirty (30) days following the date of the Net Proceeds Prepayment, Borrower shall provide Lender with written notice of Borrower’s intention to pay the Note in full, (ii) Borrower shall prepay the Note in accordance with Section 2.3.2(b) hereof on or before the second Payment Date occurring following the date of the Net Proceeds Prepayment, and (iii) no Event of Default shall exist on the date of such Casualty/Condemnation Prepayment.  Notwithstanding anything in Section 6.2 or Section 6.3 to the contrary, Borrower shall have no obligation to commence Restoration of the Property upon delivery of the written notice set forth in clause (i) of the preceding sentence (unless Borrower subsequently shall fail to satisfy the requirement of clause (ii) of the preceding sentence).

ARTICLE VII

RESERVE FUNDS

Section 7.1Required Repair Funds.

7.1.1Deposits.  Borrower shall perform the repairs at the Property, if any, as more particularly set forth on Schedule III hereto (such repairs hereinafter referred to as “Required Repairs”) within six (6) months from the Closing Date, or such earlier time as specified on Schedule III. If Borrower has not delivered to Lender evidence reasonably satisfactory to Lender that it has completed all Required Repairs on or before the date that is six (6) months from the Closing Date, or such earlier time as specified on Schedule III, Borrower shall deposit with Lender the amount for the Property set forth on such Schedule III hereto, if

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any (less the amount allocated to the performance of Required Repairs for which evidence of completion has been delivered to Lender), to perform the Required Repairs for the Property. Amounts so deposited with Lender, if any, shall be held by Lender in an interest bearing account. Amounts so deposited, if any, shall hereinafter be referred to as Borrower’s “Required Repair Fund” and the account, if any, in which such amounts are held shall hereinafter be referred to as Borrower’s “Required Repair Account”.  It shall be an Event of Default under this Agreement if Borrower does not either (i) does not deposit with Lender the Required Repair Fund as set forth above, or (ii) complete the Required Repairs at the Property within nine (9) months from the Closing Date. Upon the occurrence of such an Event of Default, Lender, at its option, may withdraw all Required Repair Funds from the Required Repair Account and Lender may apply such funds either to completion of the Required Repairs at the Property or toward payment of the Debt in such order, proportion and priority as Lender may determine in its sole discretion. Lender’s right to withdraw and apply Required Repair Funds shall be in addition to all other rights and remedies provided to Lender under this Agreement and the other Loan Documents.

7.1.2Release of Required Repair Funds.  Lender shall disburse to Borrower the Required Repair Funds from the Required Repair Account from time to time upon satisfaction by Borrower of each of the following conditions: (i) Borrower shall submit a written request for payment to Lender at least fifteen (15) days prior to the date on which Borrower requests such payment be made and specifics the Required Repairs to be paid, (ii) on the date such request is received by Lender and on the date such payment is to be made, no Default or Event of Default shall exist and remain uncured, (iii) Lender shall have received a certificate from Borrower (A) stating that all Required Repairs at the Property to be funded by the requested disbursement have been completed in good and workmanlike manner and in accordance with all applicable federal, state and local laws, rules and regulations, such certificate to be accompanied by a copy of any license, permit or other approval by any Governmental Authority required to commence and/or complete the Required Repairs, (B) identifying each Person that supplied materials or labor in connection with the Required Repairs performed at the Property to be funded by the requested disbursement under a contract in excess of $50,000, and (C) stating that each Person who has supplied materials or labor in connection with the Required Repairs to be funded by the requested disbursement has been paid in full or will be paid in full upon such disbursement, such certificate to be accompanied by lien waivers or other evidence of payment satisfactory to Lender, (iv) at Lender’s option, a title search for the Property indicating that the Property is free from all liens, claims and other encumbrances not previously approved by Lender, and (v) Lender shall have received such other evidence as Lender shall reasonably request that the Required Repairs at the Property to be funded by the requested disbursement have been completed and are paid for or will be paid upon such disbursement to Borrower. Lender shall not be required to make disbursements from the Required Repair Account with respect to the Property more than once each calendar month and such disbursement shall be made only upon satisfaction of each condition contained in this Section 7.1.2.

Section 7.2Tax and Insurance Escrow Fund.

Borrower shall pay to Lender on each Payment Date (a) one-twelfth of the Taxes that Lender estimates will be payable during the next ensuing twelve (12) months in order to accumulate with Lender sufficient funds to pay all such Taxes at least thirty (30) days prior to their respective due dates and (b) one-twelfth of the Insurance Premiums that Lender estimates

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will be payable for the renewal of the coverage afforded by the Policies upon the expiration thereof in order to accumulate with Lender sufficient funds to pay all such Insurance Premiums at least thirty (30) days prior to the expiration of the Policies, (said amounts in (a) and (b) above are hereinafter called the “Tax and Insurance Escrow Fund”).  The Tax and Insurance Escrow Fund and the payments of interest or principal or both, payable pursuant to the Note, shall be added together and shall be paid as an aggregate sum by Borrower to Lender. Lender will apply the Tax and Insurance Escrow Fund to payments of Taxes and Insurance Premiums required to be made by Borrower pursuant to this Agreement and under the Mortgage. In making any payment relating to the Tax and Insurance Escrow Fund, Lender may do so according to any bill, statement or estimate procured from the appropriate public office (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums) or from Borrower without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof, provided, however, Lender shall use reasonable efforts to pay such real property taxes sufficiently early to obtain the benefit of any available discounts of which it has knowledge. If the amount of the Tax and Insurance Escrow Fund shall exceed the amounts due for Taxes and Insurance Premiums, Lender shall, in its sole discretion, return any excess to Borrower or credit such excess against future payments to be made to the Tax and Insurance Escrow Fund. The Tax and Insurance Escrow Fund shall be held by Lender in an interest-bearing account and shall at Lender’s option be held in Eligible Account at an Eligible Institution. Any interest earned on said account shall accrue in said account for the benefit of Borrower, but shall remain in and constitute part of the Tax and Insurance Escrow Fund, and shall be disbursed in accordance with the terms hereof. Any amount remaining in the Tax and Insurance Escrow Fund after the Debt has been paid in full shall be returned to Borrower. In allocating such excess, Lender may deal with the Person shown on the records of Lender to be the owner of the Property. If at any time Lender reasonably determines that the Tax and Insurance Escrow Fund is not or will not be sufficient to pay Taxes or Insurance Premiums by the dates set forth above, Lender shall notify Borrower of such determination and Borrower shall increase its monthly payments to Lender by the amount that Lender estimates is sufficient to make up the deficiency at least thirty (30) days prior to delinquency of the Taxes or Insurance Premiums.

Notwithstanding anything to the contrary hereinbefore contained, in the event that Borrower provides (1) evidence satisfactory to Lender that the Property is insured in accordance with Section 6.1 of this Agreement and (2) evidence satisfactory to Lender that the Taxes for the Properly have been paid in accordance with the requirements set forth in this Agreement, Lender will waive the requirement set forth herein for Borrower to make deposits into the Tax and Insurance Escrow Fund for the payment of Insurance Premiums and for payment of such Taxes, provided, however, Lender expressly reserves the right to require Borrower to make deposits to the Tax and Insurance Escrow Fund for the payment of Insurance Premiums if at any time the Property is not insured in accordance with Section 6.1 of this Agreement or Taxes are not paid in accordance with the requirements of this Agreement.

Section 7.3Replacements and Replacement Reserve.

Section 7.3.1Replacement Reserve Fund.  Borrower shall pay to Lender on the Closing Date and on each Payment Date one twelfth of the amount (the “Replacement Reserve Monthly Deposit”) reasonably estimated by Lender in its sole discretion to be due for

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replacements and repairs required to be made to the Property during the calendar year (collectively, the “Replacements”) which Replacement Reserve Monthly Deposit shall be in an amount equal to no less than $0.15 per year per square foot of gross leasable area. Amounts so deposited shall hereinafter be referred to as Borrower’s “Replacement Reserve Fund” and the account in which such amounts are held shall hereinafter be referred to as Borrower’s “Replacement Reserve Account”. Lender may reassess its estimate of the amount necessary for the Replacement Reserve Fund from time to time, and may increase the monthly amounts required to be deposited into the Replacement Reserve Fund upon thirty (30) days notice to Borrower if Lender determines in its reasonable discretion that an increase is necessary to maintain the proper maintenance and operation of the Property. Any amount held in the Replacement Reserve Account and allocated for the Property shall be retained by Lender in an interest bearing account, or, at the option of Lender, in an Eligible Account at an Eligible Institution; provided, however, that, any interest earned on said account shall accrue in said account for the benefit of Borrower, but shall remain in and constitute part of the Replacement Reserve Fund, and shall be disbursed in accordance with the terms hereof.

Notwithstanding anything to the contrary in this Section 7.3, Borrower shall not be required to make Replacement Reserve Monthly Deposits, provided that: (i) no Event of Default shall have occurred; and (ii) Borrower makes all necessary Replacements and otherwise maintains the Property to Lender’s satisfaction. Upon notice from Lender following: (a) an Event of Default; or (b) the failure of Borrower to make necessary Replacements or otherwise maintain the Properly to Lender’s satisfaction, Borrower shall begin to deposit the Replacement Reserve Monthly Deposit into the Replacement Reserve Fund beginning on the Payment Date (as defined herein) immediately following the date of such notice.

Section 7.3.2Disbursements from Replacement Reserve Account.

(a)Lender shall make disbursements from the Replacement Reserve Account to pay Borrower only for the costs of the Replacements.  Lender shall rot be obligated to make disbursements from the Replacement Reserve Account to reimburse Borrower for the costs of routine maintenance to the Property or for costs which arc to be reimbursed from the Required Repair Fund (if any).

(b)Lender shall, upon written request from Borrower and satisfaction of the requirements set forth in this Section 7.3.2, disburse to Borrower amounts from the Replacement Reserve Account necessary to pay for the actual approved costs of Replacements or to reimburse Borrower therefor, upon completion of such Replacements (or, upon partial completion in the case of Replacements made pursuant to Section 7.3.2(f)) as determined by Lender.  In no event shall Lender be obligated to disburse funds from the Replacement Reserve Account if a Default or an Event of Default exists.

(c)Each request for disbursement from the Replacement Reserve Account shall be in a form specified or approved by Lender and shall specify (i) the specific Replacements for which the disbursement is requested, (ii) the quantity and price of each item purchased, if the Replacement includes the purchase or replacement of specific items, (iii) the price of all materials (grouped by type or category) used in any Replacement other than the purchase or replacement of specific items, and (iv) the cost of all contracted labor or other

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services applicable to each Replacement for which such request for disbursement is made. With each request Borrower shall certify that all Replacements have been made in accordance with all applicable Legal Requirements of any Governmental Authority having jurisdiction over the Property to which the Replacements are being provided and, unless Lender has agreed to issue joint checks as described below, each request shall include evidence of payment of all such amounts. Each request for disbursement shall include copies of invoices for all items or materials purchased and all contracted labor or services provided. Except as provided in Section 7.3.2(e), each request for disbursement from the Replacement Reserve Account shall be made only after completion of the Replacement for which disbursement is requested. Borrower shall provide Lender evidence of completion satisfactory to Lender in its reasonable judgment.

(d)Borrower shall pay all invoices in connection with the Replacements with respect to which a disbursement is requested prior to submitting such request for disbursement from the Replacement Reserve Account or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with a Replacement.  In the case of payments made by joint check, Lender may require a waiver of lien from each Person receiving payment prior to Lender’s disbursement from the Replacement Reserve Account. In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $100,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to the requirements of applicable law and shall cover all work performed and materials supplied (including equipment and fixtures) for the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current reimbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request).

(e)If (i) the cost of a Replacement exceeds $100,000, (ii) the contractor performing such Replacement requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for reimbursement from the Replacement Reserve Account may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of the work, (B) the materials for which the request is made are on site at the Property and are properly secured or have been installed in the Property, (C) all other conditions in this Agreement for disbursement have been satisfied, (D) funds remaining in the Replacement Reserve Account arc, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required, and (E) if required by Lender, each contractor or subcontractor receiving payments under such contract shall provide a waiver o! lien with respect to amounts which have been, paid to that contractor or subcontractor.

(f)Borrower shall not make a request for disbursement from the Replacement Reserve Account more frequently than once in any calendar month and (except in connection with the final disbursement) the total cost of all Replacements in any request shall not be less than $5,000.00.

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Section 7.3.3Performance of Replacements.

(a)Borrower shall make Replacements when required in order to keep the Property in condition and repair consistent with other first class, full service retail properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating.  Borrower shall complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.

(b)Lender reserves the right, at its option, to approve all contracts or work orders with materialmen, mechanics, suppliers, subcontractors, contractors or other parties providing labor or materials under contracts for an amount in excess of $100,000 in connection with the Replacements performed by Borrower.  Upon Lender’s request, Borrower shall assign any contract or subcontract to Lender.

(c)In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner, and such failure continues to exist for more than thirty (30) days after notice from Lender to Borrower, Lender shall have the option to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.

(d)In order to facilitate Lender’s completion or making of the Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right to enter onto the Property and perform any and all work and labor necessary to complete or make the Replacements and/or employ watchmen to protect the Property from damage, subject to the rights of Tenants.  All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage.  For this purpose Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake the Replacements in the name of Borrower.  Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked but shall only be effective following an Event of Default.  Borrower empowers said attorney-in-fact as follows:  (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing the Replacements; (ii) to make such additions, changes and corrections to the Replacements as shall be necessary or desirable to complete the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.

(e)Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing the Replacements; (ii) require Lender to expend funds in addition to the

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Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.

(f)Borrower shall permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of tenants under their Leases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.3.3.  Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(1) or the completion of Replacements pursuant to this Section 7.3.3.

(g)Lender may require an inspection of the Property at Borrower’s expense prior to making a monthly disbursement in excess of $10,000 from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account.  Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.

(h)The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialman’s or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).

(i)Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the Property effective to the date of the disbursement, which search shows that no mechanic’s or materialmen’s liens or other liens of any nature have been placed against the Property since the date of recordation of the Mortgage and that title to the Property is free and clear of all Liens (other than the lien of the Mortgage and any other Liens previously approved in writing by Lender, if any).

(j)All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.

(k)In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s compensation insurance, builder’s risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard

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mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed.  Certified copies of such policies shall be delivered to Lender.

Section 7.3.4Failure to Make Replacements.   (a)  It shall be an Event of Default under this Agreement if Borrower fails to comply with any provision of this Section 7.3 and such failure is not cured within thirty (30) days after notice from Lender; provided, however, if such failure is not capable of being cured within said thirty (30) day period, then provided that Borrower commences action to complete such cure and thereafter diligently proceeds to complete such cure, such thirty (30) day period shall be extended for such time as is reasonably necessary for Borrower, in the exercise of due diligence, to cure such failure, but such additional period of time shall not exceed sixty (60) days.  Upon the occurrence of such an Event of Default, Lender may use the Replacement Reserve Fund (or any portion thereof) for any purpose, including but not limited to completion of the Replacements as provided in Section 7.3.3, or for any other repair or replacement to the Property or toward payment of the Debt in such order, proportion and priority as Lender may determine in its sole discretion.  Lender’s right to withdraw and apply the Replacement Reserve Funds shall be in addition to all other rights and remedies provided to Lender under this Agreement and the other Loan Documents.

(b)Nothing in this Agreement shall obligate Lender to apply all or any portion of the Replacement Reserve Fund on account of an Event of Default to payment of the Debt or in any specific order or priority.

Section 7.3.5Balance in the Replacement Reserve Account.   The insufficiency of any balance in the Replacement Reserve Account shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.

Section 7.3.6Indemnification.   Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys fees and expenses) arising from or in any way connected with the performance of the Replacements unless the same are solely due to gross negligence or willful misconduct of Lender.  Borrower shall assign to Lender all rights and claims Borrower may have against all persons or entities supplying labor or materials in connection with the Replacements; provided, however, that Lender may not pursue any such right or claim unless an Event of Default has occurred and remains uncured.

Section 7.4Intentionally Omitted.

Section 7.5Intentionally Omitted.

Section 7.6Intentionally Omitted.

Section 7.7Reserve Funds, Generally.

7.7.1Borrower grants to Lender a first-priority perfected security interest in each of the Reserve Funds and any and all monies now or hereafter deposited in each Reserve Fund as additional security for payment of the Debt.  Until expended or applied in accordance herewith, the Reserve Funds shall constitute additional security for the Debt.

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7.7.2Upon the occurrence of an Event of Default, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in any or all of the Reserve Funds to the payment of the Debt in any order in its sole discretion.

7.7.3The Reserve Funds shall not constitute trust funds and may be commingled with other monies held by Lender.

7.7.4Intentionally omitted.

7.7.5Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any Reserve Fund or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.

7.7.6Lender shall not be liable for any loss sustained on the investment of any funds constituting the Reserve Funds unless occasioned by the gross negligence or willful misconduct of Lender.

7.7.7Upon payment in full of the Debt and performance of all other obligations under this Agreement and the other Loan Documents, Lender shall disburse to Borrower all remaining Reserve Funds.

ARTICLE VIII

DEFAULTS

Section 8.1Event of Default.   (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):

(i)if any portion of the Debt is not paid within five (5) days of the applicable due date;

(ii)if any of the Taxes or Other Charges are not paid prior to the date when the same become delinquent, except to the extent that Borrower is contesting same in accordance with the terms of Section 5.1.2 hereof, or there are sufficient funds in the Tax and Insurance Escrow Fund to pay such Taxes or Other Charges and Lender fails to or refuses to release the same from the Tax and Insurance Escrow Fund;

(iii)if the Policies are not kept in full force and effect, or if certified copies of the Policies are not delivered to Lender within ten (10) days of request;

(iv)if Borrower transfers or encumbers any portion of the Property without Lender’s prior written consent (to extent such consent, is required) or otherwise violates the provisions of Section 5.2.13 of this Loan Agreement;

(v)if any material representation or warranty made by Borrower herein or in any other Loan Document, or in any report, certificate financial statement or other instrument, agreement or document furnished to Lender shall have been false or

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misleading in any material respect as of the date the representation or warranty was made;

(vi)if Borrower or indemnitor or any guarantor under any guaranty or indemnity issued in connection with the Loan shall make an assignment for the benefit of creditors;

(vii)if a receiver, liquidator or trustee shall be appointed for Borrower or any guarantor or indemnitor under any guarantee or indemnity issued in connection with the Loan or if Borrower or such guarantor or indemnitor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or such guarantor or indemnitor, or if any proceeding for the dissolution or liquidation of Borrower or such guarantor or indemnitor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by Borrower or such guarantor or indemnitor, upon the same not being discharged, stayed or dismissed within one hundred eighty (180) days;

(viii)if Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;

(ix)if Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 hereof;

(x)with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;

(xi)if any of the assumptions contained in any Insolvency Opinion or Additional Insolvency Opinion are or shall become untrue in any material respect;

(xii)if Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xi) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such 30-day period and provided further that Borrower shall have commenced to cure such Default within such 30-day period and thereafter diligently and expeditiously proceeds to cure the same, such 30-day period shall be extended for such time as is reasonably necessary for Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred eighty (180) days; or

(xiii)if there shall be default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to Borrower or the

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Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt.

(b)Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi), (vii) or (viii) above) and at any time thereafter Lender may, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in the Property, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents against Borrower and the Property, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi), (vii) or (viii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.

Section 8.2Remedies.   (a) Upon the occurrence of an Event of Default, all or any one or more of the rights, powers, privileges and other remedies available to Lender against Borrower under this Agreement or any of the other Loan Documents executed and delivered by, or applicable to, Borrower or at law or in equity may be exercised by Lender at any time and from time to time, whether or not all or any of the Debt shall be declared due and payable, and whether or not Lender shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Loan Documents with respect to the Property.  Any such actions taken by Lender shall be cumulative and concurrent and may be pursued independently, singly, successively, together or otherwise, at such time and in such order as Lender may determine in its sole discretion, to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of Lender permitted by law, equity or contract or as set forth herein or in the other Loan Documents. Without limiting the generality of the foregoing, Borrower agrees that if an Event of Default is continuing (i) Lender is not subject to any “one action” or “election of remedies” law or rule, and (ii) all liens and other rights, remedies or privileges provided to Lender shall remain in full force and effect until Lender has exhausted all of its remedies against the Property and the Mortgage has been foreclosed, sold and/or otherwise realized upon in satisfaction of the Debt or the Debt has been paid in full.

(b)Lender shall have the right from time to time to partially foreclose the Mortgage in any manner and for any amounts secured by the Mortgage then due and payable as determined by Lender in its sole discretion including, without limitation, the following circumstances: (i) in the event Borrower defaults beyond any applicable grace period in the payment of one or more scheduled payments of principal and interest, Lender may foreclose the Mortgage to recover such delinquent payments, or (ii) in the event Lender elects to accelerate less than the entire outstanding principal balance of the Loan, Lender may foreclose the Mortgage to recover so much of the principal balance of the Loan as Lender may accelerate and such other sums secured by the Mortgage as Lender may elect. Notwithstanding one or more

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partial foreclosures, the Property shall remain subject to the Mortgage to secure payment of sums secured by the Mortgage and not previously recovered.

(c)Lender shall have the right from time to time to sever the Note and the other Loan Documents into one or more separate notes, mortgages and other security documents (the “Severed Loan Documents”) in such denominations as Lender shall determine in its sole discretion for purposes of evidencing and enforcing its rights and remedies provided hereunder. Borrower shall execute and deliver to Lender from time to time, promptly after the request of Lender, a severance agreement and such other documents as Lender shall request in order to effect the severance described in the preceding sentence, all in form and substance reasonably satisfactory to Lender.  Borrower hereby absolutely and irrevocably appoints Lender following the occurrence of an Event of Default as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect the aforesaid severance, Borrower ratifying all that its said attorney shall do by virtue thereof; provided, however, Lender shall not make or execute any such documents under such power until three (3) days after notice has been given to Borrower by Lender of Lender’s intent to exercise its rights under such power.  Borrower shall not be obligated to pay any costs or expenses incurred in connection with the preparation, execution, recording or filing of the Severed Loan Documents, and the Severed Loan Documents shall not contain any representations, warranties or covenants not contained in the Loan Documents and any such representations and warranties contained in the Severed Loan Documents will be given by Borrower only as of the Closing Date.

(d)As used in this Section 8.2, a “foreclosure” shall include any sale by power of sale.

Section 8.3Remedies Cumulative; Waivers.   The rights, powers and remedies of Lender under this Agreement shall be cumulative and not exclusive of any other right, power or remedy which Lender may have against Borrower pursuant to this Agreement or the other Loan Documents, or existing at law or in equity or otherwise. Lender’s rights, powers and remedies may be pursued singly, concurrently or otherwise, at such time and in such order as Lender may determine in Lender’s sole discretion. No delay or omission to exercise any remedy, right or power accruing upon an Event of Default shall impair any such remedy, right or power or shall be construed as a waiver thereof, but any such remedy, right or power may he exercised from time to time and as often as may be deemed expedient. A waiver of one Default or Event of Default with respect to Borrower shall not be construed to be a waiver of any subsequent Default or Event of Default by Borrower or to impair any remedy, right or power consequent thereon.

ARTICLE IX

SPECIAL PROVISIONS

Section 9.1Sale of Notes and Securitization.   At the request of the holder of the Note and, to the extent not already required to be provided by Borrower under this Agreement, Borrower shall cooperate with Lender to allow Lender to satisfy the market standards to which the holder of the Note customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with the sale of the Note or

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participations therein or the first successful securitization (such sale and/or securitization, the “Securitization”) of rated single or multi-class securities (the “Securities”) secured by or evidencing ownership interests in the Note and the Mortgage.  In this regard Borrower shall;

(a)(i)provide such financial and other information with respect to the Property, Borrower and the Manager, (ii) provide budgets relating to the Property and (iii) to perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of the Property, as may be reasonably requested by the holder of the Note or the Rating Agencies or as may be necessary or appropriate in connection with the Securitization (the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to Lender and the Rating Agencies;

(b)cause counsel to render opinions, which may be relied upon by the holder of the Note, the Rating Agencies and their respective counsel, agents and representatives, as to non-consolidation, fraudulent conveyance, and true sale and/or lease or any other opinion customary in securitization transactions, which counsel and opinions shall be reasonably satisfactory to the holder of the Note and the Rating Agencies;

(c)make such representations and warranties as of the closing date of the Securitization with respect to the Property, Borrower, and the Loan Documents as are consistent with the representations and warranties made in the Loan Documents; and

(d)execute such amendments to the Loan Documents and organizational documents as may be reasonably requested by the holder of the Note or the Rating Agencies or otherwise to effect the Securitization; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of the Loan.

All material out-of-pocket third party costs and expenses incurred by Borrower in connection with complying with requests made under this Section 9.1 shall be paid by Lender.

Section 9.2Securitization.   Borrower understands that certain of the Provided Information may be included in disclosure documents in connection with the Securitization, including, without limitation, a prospectus, prospectus supplement or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Discloser Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects.

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Section 9.3Rating Surveillance.   Lender, at its option, may retain the Rating Agencies to provide rating surveillance services on any certificates issued in a Securitization. Such rating surveillance will be at the expense of Lender (the “Rating Surveillance Charge”).

Section 9.4Exculpation.   Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Rents following an Event of Default, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents following an Event of Default and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Mortgage; (c) affect the validity or enforceability of or any guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of any of the Assignment of Leases following an Event of Default; (f) constitute a prohibition against Lender commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment, or otherwise, to the extent of any loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:

(i)fraud or intentional misrepresentation by Borrower or any guarantor in connection with the Loan;

(ii)the gross negligence or willful misconduct of Borrower;

(iii)material physical waste of the Property;

(iv)the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;

(v)the removal or disposal of any portion of the Property after an Event of Default;

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(vi)the misapplication or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property which are not applied by Borrower in accordance with this Agreement, (B) any awards or other amounts received in connection with the condemnation of all or a portion of the Property which are not applied by Borrower in accordance with this Agreement, or (C) any Rents following an Event of Default;

(vii)failure to pay charges for labor or materials or other charges that can create liens on any portion of the Property; or

(viii)any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof.

Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) the Debt shall be fully recourse to the Borrower and (B) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 111 l(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured by the Mortgage or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents in the event that the (I) first full monthly payment under the Note is not paid within five (5) days of notice that such payment is late (provided, however, that such grace period relates only to the recourse trigger described in this paragraph), or (II) failure of Borrower to permit on-site inspections of the Property subject to the rights of Tenants and any applicable cure period set forth in the Loan Documents, to provide financial information as required under the Loan Documents subject to any applicable cure period (except for financial information required to be delivered by a tenant pursuant to the applicable Lease that has not been delivered to Borrower, provided Borrower has requested such financial information from such tenant), or (III) failure of Borrower to comply with Section 4.1.30 hereof, or (IV) failure of Borrower to obtain Lender’s prior written consent. (to extent such consent is required) to any subordinate financing or other voluntary lien encumbering the Property, or (V) failure of Borrower to obtain Lender’s prior written consent to any assignment, transfer or conveyance of the Property, or any portion thereof, or any interest therein as required by this Agreement. Notwithstanding the provision set forth in clause (IV) of this paragraph, a voluntary lien other than a lien securing an extension of credit filed against the Property shall not constitute a recourse trigger for purposes of this paragraph provided such lien (A) is fully bonded to the satisfaction of Lender and discharged of record within ninety (90) days of filing, or (B) within such ninety (90) day period, Lender receives affirmative title insurance from the title insurance company insuring the lien of the Mortgage that such lien is subject and subordinate to the lien of the Mortgage and no enforcement action is commenced by the applicable lien holder. Upon the acceptance by Lender of any cure by Borrower of a recourse trigger described in clauses (I), (II) or (IV) above, the Debt shall no longer be fully recourse to Borrower solely as a result of such trigger. Upon the acceptance by Lender of any cure by Borrower of a recourse trigger described in clauses (III) or (V) above, the Debt shall no longer be fully recourse to Borrower solely as a result of such trigger, provided, however, Borrower shall remain liable to

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the extent of any loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with such trigger.

Section 9.5Termination of Manager.   If (a) the amounts evidenced by the Note have been accelerated pursuant to Section 8.1(b) hereof, (b) the Manager shall become insolvent, (c) the Manager is in default under the terms of the Management Agreement beyond any applicable grace or cure period, or (d) Manager is not managing the Property in accordance with the management practices of nationally recognized management companies managing similar properties in locations comparable to those of the Property, then, in the case of (a), (b), (c) or (d), Borrower shall, at the request of Lender, terminate the Management Agreement and replace the Manager with a manager reasonably approved by Lender on terms and conditions reasonably satisfactory to Lender, it being understood and agreed that the management fee for such replacement manager shall not exceed then prevailing market rates. In addition and without limiting the rights of Lender hereunder or under any of the other Loan Documents, in the event that (i) the Management Agreement is terminated, (ii) the Manager no longer manages the Property, or (iii) a receiver, liquidator or trustee shall be appointed for Manager or if Manager shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Manager, or if any proceeding for the dissolution or liquidation of Manager shall be instituted, then Borrower (at Borrower’s sole cost and expense) shall immediately, in its name, establish new deposit accounts separate from any other Person with a depository satisfactory to Lender into which all Rents and other income from the Property shall be deposited and shall grant Lender a first priority security interest in such account pursuant to documentation satisfactory in form and substance to Lender.

Section 9.6Servicer.   At the option of Lender, the Loan may be serviced by a servicer/trustee (the “Servicer”) selected by Lender and Lender may delegate all or any portion of its responsibilities under this Agreement and the other Loan Documents to the Servicer pursuant to a servicing agreement (the “Servicing Agreement”) between Lender and Servicer. Lender shall be responsible for any set-up fees or any other costs relating to or arising under the Servicing Agreement.

Section 9.7Splitting the Loan.   At the election of Lender in its sole discretion, the Loan or any individual Note making up the Loan shall be split and severed into two or more loans which, at Lender’s election, shall not be cross-collateralized or cross-defaulted with each other. Borrower hereby agrees to deliver to Lender to effectuate such severing of the Loan or any individual Note, as the case may be, as reasonably requested by Lender, (a) additional executed documents, or amendments and modifications to the applicable Loan Documents, (b) new opinions or updates to the opinions delivered to Lender in connection with the closing of the Loan, (c) endorsements and/or updates to the title insurance policies delivered to Lender in connection with the closing of the Loan, and (d) any other certificates, instruments and documentation reasonably determined by Lender as necessary or appropriate to such severance (the items described in subsections (a) through (d) collectively hereinafter shall be referred to as “Severing Documentation”), which Severing Documentation shall be acceptable to Lender in form and substance in its reasonable discretion. Lender hereby agrees to be responsible for all reasonable third-party expenses incurred in connection with the preparation and delivery of the

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Severing Documentation and the effectuation of the uncrossing of the Loan from the additional Loans. Borrower hereby acknowledges and agrees that upon such severing of the Loan, Lender may effect, in its sole discretion, one or more Securitizations of which the severed loans may be apart.

ARTICLE X

MISCELLANEOUS

Section 10.1Survival.   This Agreement and all covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the making by Lender of the Loan and the execution and delivery to Lender of the Note, and shall continue in full force and effect so long as all or any of the Debt is outstanding and unpaid unless a longer period is expressly set forth herein or in the other Loan Documents. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the legal representatives, successors and assigns of such party. All covenants, promises and agreements in this Agreement, by or on behalf of Borrower, shall inure to the benefit of the legal representatives, successors and assigns of Lender.

Section 10.2Lender’s Discretion.   Whenever pursuant to this Agreement, Lender exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Lender, the decision of Lender to approve or disapprove or to decide whether arrangements or terms are satisfactory or not satisfactory shall (except as is otherwise specifically herein provided) be in the sole discretion of Lender and shall be final and conclusive.

Section 10.3Governing Law.   THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT ENTERED INTO PURSUANT TO THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND SHALL IN ALL RESPECTS BE GOVERNED, CONSTRUED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND APPLICABLE FEDERAL LAWS.

Section 10.4Modification. Waiver in Writing.   No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement, or of the Note, or of any other Loan Document, nor consent to any departure by Borrower therefrom, shall in any event be effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given. Except as otherwise expressly provided herein, no notice to, or demand on Borrower, shall entitle Borrower to any other or future notice or demand in the same, similar or other circumstances.

Section 10.5Delay Not a Waiver.   Neither any failure nor any delay on the part of Lender in insisting upon strict performance of any term, condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under the Note or under any other Loan Document, or any other instrument given as security therefor, shall operate as or constitute a waiver thereof, nor shall a single or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege. In particular, and not by way of limitation, by accepting payment after the due date of any amount payable under this Agreement,

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the Note or any other Loan Document, Lender shall not be deemed to have waived any right either to require prompt payment when due of all other amounts due under this Agreement, the Note or the other Loan Documents, or to declare a default for failure to effect prompt payment of any such other amount.

Section 10.6Notices.   All notices, consents, approvals and requests required or permitted hereunder or under any other Loan Document shall be given in writing and shall be effective for all purposes if hand delivered or sent by (a) certified or registered United States mail, postage prepaid, return receipt requested or (b) expedited prepaid delivery service, either commercial or United States Postal Service, with proof of attempted delivery, and by telecopier (with answer back acknowledged), addressed as follows (or at such other address and Person as shall be designated from time to time by any party hereto, as the case may be, in a written notice to the other parties hereto in the manner provided for in this Section):

If to Lender:

Bear Steams Commercial Mortgage, Inc.

383 Madison Avenue

New York, New York. 10179

Attention: J. Christopher Hoeffel

with a copy to:

Katten Muchin Zavis Rosenman

401 South Tryon Street

Suite 2600

Charlotte, North Carolina 28202-1935

Attention: Daniel S. Huffenus, Esq.

If to Borrower:

Inland Western Gurnee, L.L.C.

2901 Butlerfield Road

Oak Brook, TL 60523

Attention: Steven Grimes

with a copy to:

Inland Western Retail Real Estate Trust, Inc.

2901 Butterfield Road

Oak Brook IL 60523

Attention: Robert H. Baum, Esq.

and with a copy to:

Inland Western Retail Real Estate Trust, Inc.

2901 Butterfield Road

Oak Brook, IL 60523

Attention: Roberta Matlin

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A notice shall be deemed to have been given: in the case of hand delivery, at the time of delivery; in the case of registered or certified mail, when delivered or the first attempted delivery on a Business Day; or in the case of expedited prepaid delivery and telecopy, upon the first attempted delivery on a Business Day.

Section 10.7Trial by Jury.   BORROWER AND LENDER HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER AND LENDER.

Section 10.8Headings.   The Article and/or Section headings and the Table of Contents in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

Section 10.9Severability.   Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Section 10.10Preferences.

Lender shall have the continuing and exclusive right to apply or reverse and reapply any and all payments by Borrower to any portion of the obligations of Borrower hereunder. To the extent Borrower makes a payment or payments to Lender, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or proceeds received, the obligations hereunder or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by Lender.

Section 10.11Waiver of Notice.   Borrower shall not be entitled to any notices of any nature whatsoever from Lender except with respect to matters for which this Agreement or the other Loan Documents specifically and expressly provide for the giving of notice by Lender to Borrower and except with respect to matters for which Borrower is not, pursuant to applicable

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Legal Requirements, permitted to waive the giving of notice. Borrower hereby expressly waives the right to receive any notice from Lender with respect to any matter for which this Agreement or the other Loan Documents do not specifically and expressly provide for the giving of notice by Lender to Borrower.

Section 10.12Remedies of Borrower.   In the event that a claim or adjudication is made that Lender or its agents have acted unreasonably or unreasonably delayed acting in any case where by law or under this Agreement or the other Loan Documents, Lender or such agent, as the case may be, has an obligation to act reasonably or promptly, Borrower agrees that neither Lender nor its agents shall be liable for any monetary damages, and Borrower’s sole remedies shall be limited to commencing an action seeking injunctive relief or declaratory judgment. The parties hereto agree that any action or proceeding to determine whether Lender has acted reasonably shall be determined by an action seeking declaratory judgment.

Section 10.13Expenses; Indemnity.

(a)Borrower covenants and agrees to pay or, if Borrower fails to pay, to reimburse, Lender upon receipt of written notice from Lender for all reasonable costs and expenses (including reasonable attorneys’  fees and disbursements)  incurred by Lender in connection with (i) the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby and thereby and all the costs of furnishing all opinions by counsel for Borrower (including without limitation any opinions requested by Lender as to any legal matters arising under this Agreement or the other Loan Documents with respect to the Property); (ii) Borrower’s ongoing performance of and compliance with Borrower’s respective agreements and covenants contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date, including, without limitation, confirming compliance with environmental and insurance requirements; (iii) Lender’s ongoing performance and compliance with all agreements and conditions contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date; (iv) except as otherwise provided in this Agreement, the negotiation, preparation, execution, delivery and administration of any consents, amendments, waivers or other modifications to this Agreement and the other Loan Documents and any other documents or matters reasonably requested by Lender; (v) securing Borrower’s compliance with any requests made pursuant to the provisions of this Agreement; (vi) the filing and recording fees and expenses, title insurance and reasonable fees and expenses of counsel for providing to Lender all required legal opinions, and other similar expenses incurred in creating and perfecting the Liens in favor of Lender pursuant to this Agreement and the other Loan Documents; (vii) enforcing or preserving any rights, in response to third party claims or the prosecuting or defending of any action or proceeding or other litigation, in each case against, under or affecting Borrower, this Agreement, the other Loan Documents, the Property, or any other security given for the Loan; and (viii) enforcing any obligations of or collecting any payments due from Borrower under this Agreement, the other Loan Documents or with respect to the Property or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out”‘ or of any insolvency or bankruptcy proceedings; provided, however, that Borrower shall not be liable for the payment of any such costs and expenses to the extent the same arise by reason of the gross negligence, illegal acts, fraud or willful misconduct of Lender.

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(b)Borrower shall indemnify, defend and hold harmless Lender from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for Lender in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not Lender shall be designated a party thereto), that may be imposed on, incurred by, or asserted against Lender in any manner relating to or arising out of (i) any breach by Borrower of its obligations under, or any material misrepresentation by Borrower contained in, this Agreement or the other Loan Documents, or (ii) the use or intended use of the proceeds of the Loan (collectively, the “Indemnified Liabilities”);provided, however, that Borrower shall not have any obligation to Lender hereunder to the extent that such Indemnified Liabilities arise from the gross negligence, illegal acts, fraud or willful misconduct of Lender. To the extent that the undertaking to indemnify, defend and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, Borrower shall pay the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Lender.

Section 10.14Schedules Incorporated.   The Schedules annexed hereto are hereby incorporated herein as a part of this Agreement with the same effect as if set forth in the body hereof.

Section 10.15Offsets, Counterclaims and Defenses.   Any assignee of Lender’s interest in and to this Agreement the Note and the other Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses which are unrelated to such documents which Borrower may otherwise have against any assignor of such documents, and no such unrelated counterclaim or defense shall be interposed or asserted by Borrower in any action or proceeding brought by any such assignee upon such documents and any such right to interpose or assert any such unrelated offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by Borrower.

Section 10.16No Joint Venture or Partnership; No Third Party Beneficiaries.

(a)Borrower and Lender intend that the relationships created hereunder and under the other Loan Documents be solely that of borrower and lender.   Nothing herein or therein is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower and Lender nor to grant Lender any interest in the Property other than that of mortgagee, beneficiary or lender.

(b)This Agreement and the other Loan Documents arc solely for the benefit of Lender and Borrower and nothing contained in this Agreement or the other Loan Documents shall be deemed to confer upon anyone other than Lender and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or therein. All conditions to the obligations of Lender to make the Loan hereunder arc imposed solely and exclusively for the benefit of Lender and no other Person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lender will refuse to make the Loan in the absence of strict compliance with any or all thereof and no other Person shall under any circumstances be deemed to be a beneficiary of such

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conditions, any or all of which may be freely waived in whole or in part by Lender if, in Lender’s sole discretion, Lender deems it advisable or desirable to do so.

Section 10.17Publicity.   All news releases, publicity or advertising by Borrower or their Affiliates through any media intended to reach the general public which refers to the Loan Documents or the financing evidenced by the Loan Documents, to Lender, Bear Stearns, or any of their Affiliates shall be subject to the prior written approval of Lender. All news releases, publicity or advertising by Lender through, any media intended to reach the general public which refers solely to the Borrower or to the Loan made by the Lender to the Borrower shall be subject to the prior written approval of Borrower, provided however, the foregoing shall not apply to Provided Information included in disclosure documents in connection with a Securitization.

Section 10.18Waiver of Marshalling of Assets.   To the fullest extent permitted by law, Borrower, for itself and its successors and assigns, waives all rights to a marshalling of the assets of Borrower, Borrower’s partners and others with interests in Borrower, and of the Property, or to a sale in inverse order of alienation in the event of foreclosure of the Mortgage or sale of the Property by power of sale, and agrees not to assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce or affect the right of Lender under the Loan Documents to a sale of the Property for the collection of the Debt without any prior or different resort for collection or of the right of Lender to the payment of the Debt out of the net proceeds of the Property in preference to every other claimant whatsoever.

Section 10.19Waiver of Counterclaim.   Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Lender or its agents.

Section 10.20Conflict; Construction of Documents; Reliance.   In the event of any conflict between the provisions of this Loan Agreement and any of the other Loan Documents, the provisions of this Loan Agreement shall control. The parties hereto acknowledge that they were represented by competent counsel in connection with the negotiation, drafting and execution of the Loan Documents and that such Loan Documents shall not be subject to the principle of construing their meaning against the party which drafted same. Borrower acknowledges that, with respect to the Loan, Borrower shall rely solely on its own judgment and advisors in entering into the Loan without relying in any manner on any statements, representations or recommendations of Lender or any parent, subsidiary or Affiliate of Lender. Lender shall not be subject to any limitation whatsoever in the exercise of any rights or remedies available to it under any of the Loan Documents or any other agreements or instruments which govern the Loan by virtue of the ownership by it or any parent, subsidiary or Affiliate of Lender of any equity interest any of them may acquire in Borrower, and Borrower hereby irrevocably waives the right to raise any defense or take any action on the basis of the foregoing with respect to Lender’s exercise of any such rights or remedies. Borrower acknowledges that Lender engages in the business of real estate financings and other real estate transactions and investments which may be viewed as adverse to or competitive with the business of Borrower or its Affiliates.

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Section 10.21Brokers and Financial Advisors.   Borrower hereby represents that it has dealt with no financial advisors, brokers, underwriters, placement agents, agents or finders in connection with the transactions contemplated by this Agreement other than Inland Mortgage Corp. Borrower hereby agrees to indemnify, defend and hold Lender harmless from and against any and all claims, liabilities, costs and expenses of any kind (including Lender’s reasonable attorneys’ fees and expenses) in any way relating to or arising from a claim by any Person that such Person acted on behalf of Borrower or Lender in connection with the transactions contemplated herein. The provisions of this Section 10.21 shall survive the expiration and termination of this Agreement and the payment of the Debt.

Section 10.22Prior Agreements.   This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and all prior agreements or understandings among or between such parties, whether oral or written, arc superseded by the terms of this Agreement and the other Loan Documents and unless specifically set forth in a writing contemporaneous herewith the terms, conditions and provisions of such prior agreement do not survive execution of this Agreement.

Section 10.23Transfer of Loan.   In the event that Lender transfers the Loan, Borrower shall continue to make payments at the place set forth in the Note until such time that Borrower is notified in writing by Lender that payments are to be made at another place.

Section 10.24Joint and Several Liability.   If Borrower consists of more than one person or party, the obligations and liabilities of Teach person or party shall be joint and several.

(THE BALANCE OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK)

80

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written.

BORROWER:
INLAND WESTERN GURNEE, L.L.C., a
Delaware limited liability company
By:	Inland Western Retail Real Estate Trust,
	Inc., a Maryland corporation, its sole
	member
	By:	/s/ Valerie Medina
		Name: Valerie Medina
		Title:  Assistant Secretary
LENDER:
BEAR STEARNS COMMERCIAL
MORTGAGE, INC., a New York corporation
By:
	Michael A. Forastiere Managing Director

SCHEDULE 1

TENANT DIRECTION LETTER

INLAND WESTERN GURNEE, L.L.C.

               , 200    

(Tenant’s name and address)

Re:Lease, dated                , by and between                          ,as original landlord and predecessor-in-interest to Inland Western Gurnee, L.L.C., as landlord, and                       as tenant as the same has been amended, concerning premises at Gurnee Town Center, Gurnee, Illinois

Ladies and Gentlemen:

The undersigned hereby requests that, commencing with the First Rent payment date occurring after the date hereof, you deliver all Rent to the following address:

Account Name:

Account No.

Attention:

ABA#

INLAND WESTERN GURNEE, L.L.C., a
Delaware limited liability company
By:	Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
	By:
		Name:
		Title: Assistant Secretary

SCHEDULE II

Intentionally Omitted.

X-2

PROPERTY CONDITION ASSESSMENT UPDATE

GURNEE TOWN CENTRE

Gurnee, Illinois

November 3, 2004

REPLACEMENT RESERVE SCHEDULE 7-YEAR PROJECTION

Property Component

Quantity

Units

Unit Cost

Footnote

Cost

Expected Life (a)

Remaining Life (b)

Year 1 2005

Year 2 2006

Year 3 2007

Year 4 2008

Year 5 2009

Year 6 2010

Year 7 2011

7-Year Totals

Site

Payment Maintenance	315,000	sf	$	0.12	(d)	$	37,800	5	1	$	7,560	$	7,560	$	7,560	$	7,560	$	7,560	$	7,560	$	7,560	$	52,920
Payment Replacement	5,000	sf	$	1.75	(e)	$	8,750	30	1	$	8,750													$	8,750
Payment Repairs	3,500	sf	$	0.75	(f)	$	2,625	5	5											$	2,625			$	2,625
Concrete Sidewalk Repair	1	yr	$	1,750.00	(g)	$	1,750	1	1					$	1,750	$	1,750	$	1,750	$	1,750	$	1,750	$	8,750
Building					(c)
Masanry & Seetants	1	yr	$	4,000.00	(h),(i)	$	4,000	1	1	$	4,000	$	4,000	$	4,000	$	4,000	$	4,000	$	4,000	$	4,000	$	28,000
Roofing Repairs & Maintenance	179,902	sf	$	0.030	(j),(k)	$	5,397	1	1	$	5,397	$	5,397	$	5,397	$	5,397	$	5,397	$	5,397	$	5,397	$	37,779
Curtain Wall Maintenance	1	yr	$	1,250.00	(l)	$	1,250	1	1	$	1,250	$	1,250	$	1,250	$	1,250	$	1,250	$	1,250	$	1,250	$	8,750
EIFS & Soffit Paint & Patch	1	yr	$	3,500.00	(m)	$	3,500	1	1	$	3,500	$	3,500	$	3,500	$	3,500	$	3,500	$	3,500	$	3,500	$	24,500
TOTALS										$	30,457	$	21,707	$	23,457	$	23,457	$	23,457	$	26,082	$	23,457	$	172,074
Escalation Factor–2.5% per year										1.025		1.051		1.077		1.104		1.131		1.160		1.189
Escalated Cost per year										$	31,218	$	22,806	$	25,261	$	25,892	$	26,540	$	30,247	$	27,883	$	183,847
Facility Area	179,902	sf
$/sf/yr										$	0.17	$	0.12	$	0.13	$	0.13	$	0.13	$	0.14	$	0.13	$	0.14
Escalated $/sf/yr										$	0.17	$	0.13	$	0.14	$	0.14	$	0.15	$	0.17	$	0.15	$	0.15
																								$	172,074

45

Cost Summary

	Immediate
Code Compliance/Life Safety Issues Subtotal	$	4,500.00
ADA Barrier Removal Issues Subtotal	$	2,500.00
Deferred Maintenance/Property Deficiency Subtotal	$	41,125.00
Cost Estimate Total	$	48,125.00

43

SCHEDULE III

REQUIRED REPAIRS

None.

X-3

SCHEDULE IV

RENT ROLL

X-4

SCHEDULE V

Intentionally omitted.

X-5

SCHEDULE VI

Intentionally omitted.

X-6

SCHEDULE Vll

PROPERTY AFFECTED BY SECTION 4.1.22

Not Applicable.

X-7

SCHEDULE VIII

Intentionally Omitted.

X-8

SCHEDULE IX

Intentionally Omitted.

X-9

SCHEDULE X

OTHER CONTRACT FUNDS AGREEMENTS

None.

10

EX-10.432

Exhibit 10.432

Allstate Life Insurance Company

Loan No. 122561

MORTGAGE NOTE

Chicago, Illinois

December 23, 2004

$11,485,000

1.             Payment of Principal and Interest.     FOR VALUE RECEIVED,  INLAND WESTERN LONGMONT FOX CREEK, L.L.C., a Delaware limited liability company (the “Maker”), hereby promises to pay to the order of ALLSTATE LIFE INSURANCE COMPANY, and any subsequent holder of this Note (“Holder” or “Holders”) in the manner hereinafter provided, the principal amount of ELEVEN MILLION FOUR HUNDRED EIGHTY FIVE THOUSAND DOLLARS ($11,485,000), together with interest on the outstanding principal balance from the date of the initial disbursement (for purposes of this Note, “disbursement” means the date funds ate wire transferred from Holder’s account) of all or a part of the principal of this Note (“Disbursement Date”) until maturity at the rate of five and 21/100 percent (5.21%) per annum (“Contract Rate”) as follows:

(a)           on the Disbursement Date, interest only,  in advance,  accruing from the Disbursement Date to the last day of December, 2004, both inclusive; and

(b)           interest only, in arrears, in the amount of FORTY NINE THOUSAND EIGHT HUNDRED SIXTY FOUR AND 04/100 DOLLARS ($49,864.04) on the first day of February, 2005, and on the first day of each month thereafter until this Note is fully paid (the initial payment and each subsequent payment under this subparagraph (b) shall each hereinafter be referred to as “Monthly Payment”); and

(c)           on December 1, 2009, the entire unpaid principal amount and any interest accrued but remaining unpaid and all other sums due under this Note.

Except for the interest payable under paragraph (a) above, interest shall be payable in arrears and calculated on the basis of a 360 day year containing twelve 30 day months. All such payments on account of the indebtedness evidenced by this Note shall be first applied to interest accrued on the unpaid principal amount and the remainder toward reduction of the unpaid principal amount.

2.             Payment Information. All payments required to be made hereunder shall be made during regular business hours to Holder at its office c/o Commercial Mortgage Division, Allstate Plaza South, Suite G5C, 3075 Sanders Road, Northbrook, Illinois 60062, Attention: Servicing Manager, with sufficient information to identify the source and application of such payment to Holder’s Loan #122561, or at such other place as Holder may from time to time designate in writing.   All payments shall be made in currency of the United States of America without presentment or surrender of this Note.   Payments to Holder shall be made by transferring immediately available federal funds by bank wire or interbank transfer for the account of Holder. Any payment of principal or interest received after 1:00 p.m. Chicago time shall be deemed to have been received by Holder on the next business day and shall bear interest accordingly.  If and so long as Holder directs Maker to make payments to a servicing agent, then payments may

be made by check. Payments made by check will not be deemed made until good funds for such check are received by Holder or the servicing agent.

3.             Security For Note. The payment of this Note and all other sums due Holder is secured by (a) (i) a Deed of Trust, Assignment of Leases, Rents and Contracts, Security Agreement and Fixture Filing (“Deed of Trust”) of even date herewith, granted by Maker, as trustor, to the Public Trustee of Boulder County, Colorado (“Trustee”), as trustee, in favor of Holder, as beneficiary, covering a leasehold estate in certain real property, the improvements thereon and certain personal property situated in the County of Boulder, State of Colordao and described in the Deed of Trust (“Property”), and, with respect to any loan made by Holder to Inland Western Winter Springs Red Bug, L.L.C. a Delaware limited liability company and an affiliate of Grantor (“Affiliated Borrower”), (ii) a Mortgage, Assignment of Leases, Rents and Contracts, Security Agreement and Fixture Filing (the “Other Mortgage”) granted by Affiliated Borrower, as mortgagee, covering certain real property owned by Affiliated Borrower, the improvements thereon and said grantor’s interest, if any, in certain personal property situated in the County of Seminole, State of Florida and described in the Other Mortgage (the “Other Property”), and (b) those certain instruments of indebtedness and security described as “Related Agreements” in the Deed of Trust and/or the Other Mortgage.   Except as otherwise defined herein, all of the defined terms contained in the Deed of Trust and the Related Agreements arc hereby incorporated herein by express reference.

4.             Late Charges. If any Monthly Payment required under this Note not be paid in full on or before the fifth (5^th) day of the month in which such payment is due, Maker acknowledges that the Holder will incur extra expenses for the handling of the delinquent payment and servicing the indebtedness evidenced hereby, and that the exact amount of these extra expenses is extremely difficult and impractical to ascertain, but that a charge of five percent (5%) of the amount of the delinquent payment (“Late Charge”) would be a fair approximation of the expense so incurred by Holder.  If applicable law requires a lesser charge, however, then the maximum charge permitted by such law may be charged by Holder for said purpose. Therefore, Maker shall, in such event, without further notice, and without prejudice to the right of Holder to collect any other amounts provided to be paid hereunder or under the Deed of Trust, the Related Agreements or any other instrument executed for purposes of further securing payment of the obligations evidenced by this Note, or to declare an Event of Default, as defined below, pay to Holder immediately upon demand the Late Charge to compensate Holder for expenses incurred in handling delinquent payments.

5.             Interest Payable Upon Default. If there occurs an Event of Default under this Note or the Deed of Trust or under any Related Agreement, then the unpaid principal amount of this Note, and all accrued and unpaid interest thereon shall bear interest at the Contract Rate plus five percent (5%) per annum compounded monthly (“Default Rate”) from the date of expiration of any applicable cure or grace period until such time, if any, as the Event of Default is cured and the Deed of Trust and this Note are reinstated as permitted by applicable law, or otherwise until such time as the unpaid principal amount of this Note and all other indebtedness evidenced by this Note are fully repaid, whichever is earlier.

2

6.             Events of Default. An “Event of Default” shall exist under this Note:

(a)           in the event Maker shall fail to make any payment due under this Note, other than the final payment and Prepayment Premium, on or before the fifth (5^th) day of the month in which such payment is due;

(b)           in the event Maker shall fail to make the final payment or the Prepayment Premium when such payment is due; or

(c)           if there shall exist an Event of Default under the Deed of Trust, the Other Mortgage or in any of the Related Agreements.

7.             Additional Payments. The additional payments called for under Paragraphs 4 and 5 shall be in addition to, and shall in no way limit, any other rights and remedies provided for in this Note, the Deed of Trust, the Other Mortgage, any Related Agreements, or otherwise provided by law.

8.             Payment of Taxes and Expenses.   Maker further promises to pay to Holder, immediately upon written notice from Holder: (i) all recordation, transfer, stamp, documentary or other fees or taxes levied on Holder (exclusive of Holder’s income taxes) by reason of the making or recording of this Note, the Deed of Trust or any of the Related Agreements, and (ii) all intangible property taxes levied upon any Holder of this Note or mortgagee under the Deed of Trust or secured party under the Related Agreements.

Maker further promises to pay to Holder, immediately upon written notice from Holder, all actual costs, expenses, disbursements, escrow fees, title charges and reasonable legal fees and expenses actually incurred by Holder and its counsel in (i) the collection, attempted collection, or negotiation and documentation of any settlement or workout of the principal amount of this Note, the interest thereon or any installment or other payment due hereunder, and (ii) any suit or proceeding whatsoever at all trial and appellate levels in regard to this Note or to protect, sustain or enforce the lien of any instrument securing this Note, including, without limitation, in any bankruptcy proceeding or judicial or nonjudicial foreclosure proceeding. It is the intent of the parties that Maker pay all expenses and reasonable attorneys’ and paralegals’ fees incurred by Holder as a result of or in connection with (A) matters described in clauses (i) and (ii) above, (B) the negotiation and closing of the loan transaction evidenced by this Note and any supplements or amendments thereto, (C) the protection of property given as security for the indebtedness evidenced hereby, and (D) responding to requests from Maker that Holder take certain actions, and as may otherwise be reasonably incurred by Holder as a result of or in connection with entering into the loan transaction evidenced by this Note.

9.             Prepayment. Maker is prohibited from prepaying this Note until July 1, 2005 (the “No-Prepayment Period”).   Subsequent to the No-Prepayment Period, at any time with thirty (30) days prior written notice to Holder, specifying the date of prepayment, Maker will have the privilege of prepaying the outstanding principal amount together with any accrued but unpaid interest, any other sums secured by the Deed of Trust and the Related Agreements, and a prepayment premium (“Prepayment Premium”) equal to the greater of:

(a) one percent of the principal amount prepaid, or

3

(b)the yield maintenance payment calculated as follows:

If the Prevailing Interest Rate is less than the Contract Rate, the yield maintenance payment shall be the remainder of (x) minus (y) where “(x)” is the present value of all unpaid installments of principal and interest due under this Note from the date of prepayment to and including the original maturity date of this Note, discounted at the Prevailing Interest Rate, plus 0.50 percent (50 basis points), and “(y)” is the outstanding principal balance of this Note as of the prepayment date. The term “Prevailing Interest Rate” as used herein shall mean the yield to maturity on a United States Treasury Bond or Treasury Note selected by Holder having a maturity date as near as possible to the original maturity date of this Note and an “ask” price, as close as possible to par (as published two weeks prior to the specified date of prepayment in The Wall Street Journal or similar publication or available from the Federal Reserve Bank of New York), less the Basis Point Adjustment as computed in accordance with Exhibit A attached hereto to convert the monthly payments to a semi-annual equivalent.

No Prepayment Premium shall be due on the principal balance prepaid within the thirty (30) day period prior to the Maturity Date of this Note.

Written notice of Maker’s election to make a prepayment in full of this Note shall be given in the manner provided for notices under the Deed of Trust. Partial prepayment of the outstanding principal amount of this Note shall not be permitted except in accordance with the terms of the Deed of Trust. In the event of such a permitted partial prepayment, the Prepayment Premium calculated in this Paragraph 9 shall be prorated based on the amount of the partial prepayment relative to the then current outstanding principal balance of this Note.

Maker acknowledges that Holder:

(a)           has advanced the amounts evidenced by this Note with the expectation that such amounts would be outstanding for a period at least equal to the No-Prepayment Period;

(b)           would not have been willing to advance such amounts on these terms for a shorter period of time;

(c)           in making the loan evidenced by this Note, is relying on Maker’s creditworthiness and its agreement to pay in strict accordance with the terms set forth in the Note; and

(d)           would not make the loan evidenced by this Note without full and complete assurance by Maker of its agreement not to prepay all or a part of the principal of this Note except as expressly permitted herein and in the Deed of Trust.

Maker has been advised and acknowledges that Holder is relying on the receipt of payments under this Note to, among other things, match and support its obligations under contracts entered into by Holder with third parties and that in the event of a prepayment, Holder could suffer loss and additional expenses which are extremely difficult and impractical to ascertain. Accordingly, it is the express intent of Maker and Holder that: (a) Maker shall have no right to prepay this Note during the No-Prepayment Period; (b) any prepayment of this Note

4

during the No-Prepayment Period shall only occur in the event Holder accelerates payment under this Note or as otherwise set forth in the Deed of Trust; (c) any prepayment described in foregoing clause (b) shall (unless otherwise expressly permitted in the Deed of Trust) require the payment of the Prepayment Premium; and (d) to the extent permitted by applicable law, Maker has waived, and hereby waives, any right to prepay this Note except as expressly provided in the Deed of Trust or this Note during the No-Prepayment Period. In the event, notwithstanding the foregoing express intent of Maker and Holder and the express waiver by Maker of any right to prepay this Note during the No-Prepayment Period, that the applicable law of the jurisdiction in which the Property is located permits the Maker to prepay this Note during the No-Prepayment Period, then the applicable Prepayment Premium described in clause (c) in the third sentence of this grammatical paragraph shall be paid to Holder as a condition to any such prepayment.

Maker expressly acknowledges that, pursuant to the provisions of this Note and except as otherwise provided in this Note or the Deed of Trust, Maker has no right to prepay this Note in whole or in part during the No-Prepayment Period. In the event any prepayment is required or expressly permitted, Maker shall be liable for the payment of the Prepayment Premium unless expressly stated otherwise in this Note or in the Deed of Trust. Furthermore, Maker waives any rights it may have under any applicable state laws as they relate to any prepayment restrictions contained in this Paragraph 9 or otherwise contained in this Note and expressly acknowledges that Holder has made the loan evidenced by this Note in reliance upon such agreement and waiver of Maker and that Holder would not have made the loan evidenced by this Note without such agreement and waiver of Maker. Maker acknowledges that specific weight has been given to the consideration given for such agreement, which consideration is the granting of the loan.

10.           Evasion of Prepayment Premium.   Maker acknowledges that in the event of an acceleration of payment of this Note following an Event of Default by Maker, a tender of payment of an amount necessary to satisfy the indebtedness evidenced hereby, but not including the Prepayment Premium, made at any time prior to a foreclosure, trustee’s or power of sale by Maker, its successors or assigns or by anyone on behalf of Maker, or by a buyer upon foreclosure, trustee’s or power of sale, shall constitute a prepayment hereunder and shall be presumed to be and conclusively deemed to constitute a deliberate evasion of the prepayment provisions hereof and shall therefore be subject to the Prepayment Premium in accordance with this Note with the date of prepayment being deemed the date of occurrence of the foreclosure sale or the tender of payment of the amount necessary to pay the entire indebtedness evidenced hereby in full, including the Prepayment Premium.

11.           Maker’s Covenants. Maker agrees that:

(a)           this instrument and the rights and obligations of all parties hereunder shall be governed by and construed under the laws of the state or commonwealth in which the Property is located;

(b)           the obligation evidenced by this Note is an exempted transaction under the Truth-in-Lending Act, 15 U.S.C §1601, et seq. (1982);

(c)           said obligation constitutes a business loan for the purpose of the application of any laws that distinguish between consumer loans and business loans and that have as their

5

purpose the protection of consumers in the state or commonwealth in which the Property is located;

(d)           at the option of the Holder, the United States District Court for the district in which the Property is located and any court of competent jurisdiction of the state or commonwealth in which the Property is located shall have jurisdiction in any action, suit or other proceeding arising out of or relating to any act taken or omitted hereunder or the enforcement of this Note, the Deed of Trust and the Related Agreements and Maker shall not assert in any such action, suit or other proceeding that it is not personally subject to the jurisdiction of such courts, that the action, suit or other proceeding is brought in an inconvenient forum or that the venue of the action, suit or other proceeding is improper;

(e)           it hereby waives any objections to venue; and

(f)            it hereby waives its right to a trial by jury.

12.           Severability.   The parties hereto intend and believe that each provision of this Note comports with all applicable local, state and federal laws and judicial decisions. However, if any provision or any portion of any provision contained in this Note is held by a court of law to be invalid, illegal, unlawful, void or unenforceable as written in any respect, then it is the intent of all parties hereto that such portion or provision shall be given force to the fullest possible extent that it is legal, valid and enforceable, that the remainder of the Note shall be construed as if such illegal, invalid, unlawful, void or unenforceable portion or provision was not contained therein, and the rights, obligations and interests of Maker and Holder under the remainder of this Note shall continue in full force and effect.

13.           Usury Laws.  It is the intention of Maker and Holder to conform strictly to the usury laws now or hereafter in force in the state or commonwealth in which the Property is located, and any interest payable under this Note, the Deed of Trust, or any Related Agreement shall be subject to reduction to an amount not to exceed the maximum non-usurious amount for commercial loans allowed under the usury laws of the state or commonwealth in which the Property is located as now or hereafter construed by the courts having jurisdiction over such matters.   In the event such interest (whether designated as interest, service charges, points, or otherwise) does exceed the maximum legal rate, it shall be:

(a)           cancelled automatically to the extent that such interest exceeds the maximum legal rate;

(b)           if already paid, at the option of the Holder, either be rebated to Maker or credited on the principal amount of the Note; and

(c)           if the Note has been prepaid in full, then such excess shall be rebated to Maker.

14.           Acceleration.  Upon an Event of Default, Holder shall have the right, without further demand or notice, to declare the entire principal amount of this Note and/or any Future Advance (as defined in the Deed of Trust) then outstanding, all accrued and unpaid interest thereon and all other further sums payable under this Note, which shall include the Prepayment Premium (calculated as provided in Paragraph 9 above), the Deed of Trust, the Other Mortgage

6

or any note evidencing any Future Advance, to be immediately due and payable and, notwithstanding the stated maturity in this Note or any note evidencing any Future Advance, all such sums declared due and payable shall thereupon become immediately due and payable. During the existence of such Event of Default, Holder may apply payments received on any amounts due under the Note, the Deed of Trust, the Other Mortgage, any Related Agreement or any note evidencing any Future Advance as Holder may determine in its sole discretion.

15.           Waivers by Maker.  As to this Note, the Deed of Trust, the Related Agreements and any other instruments securing the indebtedness, Maker and all guarantors, sureties and endorsers, severally waive all applicable exemption rights, whether under any state constitution, homestead laws or otherwise, and also severally waive diligence, valuation and appraisement, presentment for payment, protest and demand, notice of protest, demand and dishonor and diligence in collection and nonpayment of this Note and all other notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note (except notice of default specifically provided for in the Deed of Trust and the Related Agreements). To the extent permitted by law, Maker further waives all benefit that might accrue to Maker by virtue of any present or future laws exempting the Property, or any other property, real or personal, or the proceeds arising from any sale of any such property, from attachment, levy, or sale under execution, or providing for any stay of execution to be issued on any judgment recovered on this Note or in any action to foreclose the Deed of Trust, injunction against sale pursuant to power of sale, exemption from civil process or extension of time for payment.  Maker agrees that any real estate or any personalty that may be levied upon pursuant to a judgment obtained by virtue of this Note, or any writ of execution issued thereon, may be sold upon any such writ in whole or in part in any order desired by Holder.

16.           Maker Not Released. No delay or omission of Holder to exercise any of its rights and remedies under this Note, the Deed of Trust or any Related Agreements at any time following the happening of an Event of Default shall constitute a waiver of the right of Holder to exercise such rights and remedies at a later time by reason of such Event of Default or by reason of any subsequently occurring Event of Default. The acceptance by Holder of payment of any sum payable hereunder after the due date of such payment shall not be a waiver of Holder’s right to either require prompt payment when due of all other sums payable hereunder or to declare a default for failure to make prompt payment.   This Note, or any payment hereunder, may be extended from time to time by agreement in writing between Maker and Holder without in any other way affecting the liability and obligations of Maker and endorsers, if any.

17.           Nonrecourse. Except as otherwise set forth in this Paragraph, Holder’s recourse under this Note, the Deed of Trust, the Other Mortgage and the Related Agreements shall be limited to and satisfied from the Property, the Other Property and the proceeds thereof, the rents and all other income arising therefrom during and after the month in which an Event of Default has occurred, the other assets of Maker or the owner arising out of the Property and the Other Property which are given as collateral for this Note and any other collateral given in writing to Holder as security for repayment of this Note (all of the foregoing are collectively referred to as the “Loan Collateral”). Notwithstanding the preceding sentence:

(a)        Holder may, in accordance with the terms of this Note, the Deed of Trust, the Other Mortgage or any Related Agreement: (i) foreclose the lien of the Deed of Trust or the

7

Other Mortgage; (ii) take appropriate action to enforce this Note, the Deed of Trust, the Other Mortgage and the Related Agreements to realize upon and/or protect the Loan Collateral; (iii) name Maker as a party defendant in any action brought under this Note, the Deed of Trust, the Other Mortgage or the Related Agreements so long as the exercise of any remedy is limited to the Loan Collateral; (iv) pursue all of its rights and remedies against any guarantor or surety or master tenant whether or not a partner, member or other owner of Maker; and (v) pursue all of its rights and remedies against Maker and the indemnitors under that certain Environmental Indemnity Agreement of even date herewith and that certain Terrorism Insurance Indemnity Agreement of even date herewith;

(b)          Holder may seek damages or other monetary relief, to the extent of actual monetary loss, or any other remedy at law or in equity against Maker, and the indemnitors/guarantors, if any, under any nonrecourse exception indemnity agreements (“Nonrecourse Indemnitors”) by reason of or in connection with: (i) the failure of Maker to pay to Holder, upon demand, all rents, issues and profits of the Property to which Holder is entitled pursuant to this Note, the Deed of Trust or the Related Agreements following an Event of Default; (ii) any waste of the Property or any willful act or omission by Maker which damages or materially reduces the value of the Property; (iii) the distribution of rents, issues and profits from the Property prior to the payment of operating expenses or the provision for reserves, if any, to be made pursuant to this Note, the Deed of Trust or the Related Agreement prior to any other expenditure or distribution by Maker; (iv) the failure to account for and to turn over security deposits (and interest required by law or agreement to be paid thereon) or prepaid rents following the occurrence of an Event of Default under this Note, the Deed of Trust or any Related Agreements; (v) the failure to timely pay all real estate taxes or any regular or special assessments affecting the Property; (vi) the failure to account for and to turn over real estate tax accruals following the occurrence of an Event of Default under this Note, the Deed of Trust or any Related Agreements; (vii) the failure to maintain casualty and liability insurance as required under the Deed of Trust or the Related Agreements or to apply insurance proceeds or condemnation awards relating to the Property or other collateral in the manner required under applicable provisions of this Note, the Deed of Trust or any Related Agreements; (viii) any modification, termination or cancellation of any lease of all or any portion of the Property without Holder’s prior written consent, if and to the extent such consent is required under the Deed of Trust or the Related Agreements and if and to the extent such modification, termination or cancellation has a material adverse affect on the value of the Property; (ix) a default by Maker under any lease of all or any portion of the Property; (x) all transfer, recordation or other taxes imposed at any time by the State of Colorado, Boulder County, Colorado or other governmental authority with jurisdiction over the Property relating to this Note, the Deed of Trust or any Related Agreement; or (xi) costs and expenses, including, without limitation, attorney’s fees and transfer taxes, incurred by Holder in connection with the enforcement of this Note, the Deed of Trust or the Related Agreements or in connection with a deed-in-lieu of foreclosure if the Event of Default giving rise to the enforcement action is one described in subsections (b) or (c) as an exception to the nonrecourse provisions, or if the Maker or any principal of Maker objects to any actions taken by Holder to exercise its remedies under the Loan Documents; Maker or principal of Maker commences any lawsuit to enjoin or delay a foreclosure of the Property by Holder, or raises defenses or counterclaims to a foreclosure action; Maker applies for the appointment, of a receiver, trustee or liquidator for it or for any of its property, or, as a debtor, files a voluntary petition in bankruptcy, or petition or answer seeking reorganization or an arrangement with

8

creditors or takes advantage of any bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or liquidation law or statute, or makes a general assignment for the benefit of creditors; or in the event any bankruptcy or reorganization proceedings (voluntary or involuntary), the Maker or any principal of Maker opposes any motion by Holder for relief from the Automatic Stay; and

(c)           Maker, any general partners of Maker and the Nonrecourse Indemnitor(s), if any, shall become personally liable for payment of all the indebtedness evidenced by this Note and performance of all other obligations of Maker under this Note, the Deed of Trust and Related Agreements upon the occurrence of any of the following: (i) fraud or willful misrepresentation of a material fact by Maker, any general partners of Maker, or Nonrecourse Indemnitor(s), if any, in connection with this Note, the Deed of Trust, the Related Agreements or any request for any action or consent by Holder; (ii) a Transfer of any interest in Maker or all or any portion of the Property or any interest therein in violation of the terms of this Note, the Deed of Trust or the Related Agreements; or (iii) the incurrence by Maker of any indebtedness in violation of the terms of this Note, the Deed of Trust or Related Agreements (whether secured or unsecured, direct or contingent), other than unsecured debt or routine trade payables incurred in the ordinary course of business in connection with the operation of the Property.

In addition, Maker, any general partners of Maker and the Nonrecourse Indemnitors, if any, shall be responsible for any costs and expenses incurred by Holder in connection with the collection of any amounts for which Maker, its general partners, if any, and the Nonrecourse Indemnitors, if any, are personally liable under this Paragraph 17, including attorneys’ fees and expenses, court costs, filing fees and all other costs and expenses incurred in connection therewith.

18.           Successors and Assigns. The provisions of this Note shall be binding upon Maker and its legal representatives, successors and assigns and shall inure to the benefit of any Holder and its successors and assigns.   In the event Maker is composed of more than one party, obligations arising from this Note are and shall be joint and several as to each such party.

19.           Remedies Cumulative. The remedies of Holder as provided in this Note or in the Deed of Trust, the Other Mortgage or the Related Agreements, and the warranties contained herein or therein shall be cumulative and concurrent, may be pursued singly, successively or together at the sole discretion of Holder, may be exercised as often as occasion for their exercise shall occur and in no event shall the failure to exercise any such right or remedy be construed as a waiver or release of such right or remedy.   No remedy under this Note, conferred upon or reserved to Holder is intended to be exclusive of any other remedy provided in this Note, the Deed of Trust, the Other Mortgage or any of the Related Agreements or provided by law, but each shall be cumulative and shall be in addition to every other remedy given under the Deed of Trust, the Other Mortgage or any of the Related Agreements or hereunder or now or hereafter existing at law or in equity or by statute.

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20.           Notices.    All notices, written confirmation of wire transfers and all other communications with respect to this Note shall be directed as follows:

If to Holder:

c/o Allstate Investments, LLC

Allstate Plaza South, Suite G5C

3075 Sanders Road

Northbrook, Illinois 60062

Attention:       Commercial Mortgage Division

                       Servicing Manager

With a copy to:

c/o Allstate Investments, LLC

Allstate Plaza South, Suite G5A

3075 Sanders Road

Northbrook, Illinois 60062

Attention:       Investment Law Division

If to Maker:

Inland Western Longmont Fox Creek, L.L.C.

2901 Butterfield Road

Oakbrook, Illinois 60523

Attention: Roberta Matlin

With a copy to:

The Inland Real Estate Group, Inc.

2901 Butterfield Road

Oakbrook, Illinois 60523

Attention: General Counsel

or at such other place as Holder or Maker may from time to time designate in writing. All notices shall be in writing and shall be (a) hand-delivered, (b) sent by United States express mail or by private overnight courier, or (c) served by certified mail postage prepaid, return receipt requested, to the appropriate address set forth above. Notices served as provided in (a) and (b) shall be deemed to be effective upon delivery. Any notice served by certified mail shall be deposited in the United States mail with postage thereon fully prepaid and shall be deemed effective on the day of actual delivery as shown by the addressee’s return receipt or the expiration of three business days after the date of mailing, whichever is earlier in time.

21.           No Oral Modification. This Note may not be modified or discharged orally, but only by an agreement in writing signed by the party against whom enforcement of any waiver, modification or discharge is sought.

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22.           Time. Time is of the essence with regard to the performance of the obligations of Maker in this Note and each and every term, covenant and condition herein by or applicable to Maker.

23.           Captions.   The captions and headings of the paragraphs of this Note are for convenience only and are not to be used to interpret, define or limit the provisions hereof.

24.           Replacement Note. Upon receipt of evidence reasonably satisfactory to Maker of the loss, theft, destruction or mutilation of this Note, and in the case of any such loss, theft or destruction, upon delivery of an indemnity agreement reasonably satisfactory to Maker or, in the case of any such mutilation, upon surrender and cancellation of this Note, Maker will execute and deliver to Holder in lieu thereof, a replacement note dated as of the date of this Note, identical in form and substance to this Note and upon such execution and delivery all references in the Deed of Trust to this Note shall be deemed to refer to such replacement note.

25.           Transfer of Note.  Holder may, at any time, sell, transfer or assign this Note, the Deed of Trust and the Related Agreements, and any or all servicing rights with respect to this Note, or grant participations in this Note or issue mortgage pass-through certificates or other securities evidencing a beneficial interest in this Note. Holder may forward to any prospective purchaser or any rating agency rating securities all documents and information Holder now has or may acquire, as Holder determines necessary or desirable, including, without limitation, financial information regarding Maker, its general partners, shareholders, members or other principals.

*           *           *           *           *

[Signature Page Follows]

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IN WITNESS WHEREOF, Maker has caused this Mortgage Note to be duly executed on the date first above written.

MAKER:
INLAND WESTERN LONGMONT FOX CREEK, L.L.C., a Delaware limited liability company
By:	INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation, Its sole member
	By:	/s/ [ILLEGIBLE]
	Its:	Asst. Secretary

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EXHIBIT A

BASIS POINT ADJUSTMENT TABLE

U.S. Treasury Bond or Note Yield	Basis Point Adjustment	U.S. Treasury Bond or Note Yield	Basis Point Adjustment
0.00-1.55	.00	14.07-14.24	.40
1.56-2.69	.01	14.25-14.41	.41
2.70-3.48	.02	14.42-14.59	.42
3.49-4.12	.03	14.60-14.77	.43
4.13-4.68	.04	14.78-14.94	.44
4.69-5.17	.05	14.95-15.11	.45
5.18-5.63	.06	15.12-15.28	.46
5.64-6.05	.07	15.29-15.44	.47
6.06-6.44	.08	15.45-15.61	.48
6.45-6.82	.09	15.62-15.77	.49
6.83-7.17	.10	15.78-15.94	.50
7.18-7.51	.11	15.95-16.10	.51
7.52-7.83	.12	16.11-16.26	.52
7.84-8.14	.13	16.27-16.41	.53
8.15-8.44	.14	16.42-16.57	.54
8.45-8.73	.15	16.58-16.73	.55
8.74-9.02	.16	16.74-16.88	.56
9.03-9.29	.17	16.89-17.03	.57
9.30-9.55	.18	17.04-17.18	.58
9.56-9.81	.19	17.19-17.33	.59
9.82-10.07	.20	17.34-17.48	.60
10.08-10.31	.21	17.49-17.63	.61
10.32-10.55	.22	17.64-17.78	.62
10.56-10.79	.23	17.79-17.92	.63
10.80-11.02	.24	17.93-18.07	.64
11.03-11.25	.25	18.08-18.21	.65
11.26-11.47	.26	18.22-18.35	.66
11.48-11.69	.27	18.36-18.49	.67
11.70-11.90	.28	18.50-18.63	.68
11.91-12.11	.29	18.64-18.77	.69
12.12-12.32	.30	18.78-18.91	.70
12.33-12.52	.31	18.92-19.05	.71
12.53-12.72	.32	19.06-19.18	.72
12.73-12.92	.33	19.19-19.32	.73
12.93-13.12	.34	19.33-19.45	.74
13.13-13.31	.35	19.46-19.59	.75
13.32-13.50	.36	19.60-19.72	.76
13.51-13.69	.37	19.73-19.85	.77
13.70-13.87	.38	19.86-19.99	.78
13.88-14.06	.39	20.00-20.12	.79

EX-10.433

Exhibit 10.433

ALLSTATE LIFE INSURANCE COMPANY

ALLSTATE PLAZA SOUTH, SUITE G5C

NORTHBROOK, ILLINOIS 60062

December 23, 2004

Inland Western Longmont Fox Creek, L.L.C.

2901 Butterfield Road

Oakbrook, Illinois 60523

Re:      Allstate Life Insurance Company

            Loan No. 122561

            Fox Creek Village, 1601-1645 Pace Street

            Longmont, Colorado(the “Property”)

Ladies and Gentlemen:

Reference is made to our Commitment Letter dated December 17, 2004, as amended (the “Commitment”) with respect to a$11,485,000 loan (the “Loan”) to be evidenced by a Mortgage Note of even date herewith payable to Allstate Life Insurance Company in the principal amount the Loan (the “Note”), and to be secured by a Deed of Trust, Assignment of Leases, Rents and Contracts, Security Agreement and Fixture Filing of even date herewith (the “Deed of Trust”) encumbering the Property. Initially capitalized terms used but not otherwise defined in this letter agreement (the “Letter Agreement”) have the same meanings given them in the Deed of Trust.

In consideration of your execution and delivery of the documents evidencing, securing or otherwise pertaining to the Loan (the “Loan Documents”), you (the “Borrower”) and we (“Lender”) hereby agree as follows:

1.             Related Agreement. This Letter Agreement shall constitute a Related Agreement

2.             Impounds. With regard to the provisions contained in Section 1.06 of the Deed of Trust requiring Borrower to deposit 1/12 of the annual amounts of real estate taxes, regular and special assessments and insurance premiums, Lender hereby agrees to defer collection of such monthly deposits for so long as (a) Borrower is the sole fee simple owner of the Property; and (b) no Event of Default exists under the Loan Documents and no condition or event exists which with notice, the passage of time, or both, would constitute an Event of Default; and (c) at Lender’s election, Borrower either pays for a tax reporting service or Borrower promptly and consistently furnishes evidence that taxes and insurance are being currently paid.

3.             Earthquake Insurance. With regard to the provisions contained in Section 1.02 of the Deed of Trust requiring Borrower obtain earthquake insurance coverage on the Property, Lender hereby agrees to waive such requirement until such time as such coverage is available at commercially reasonable rates and in Lender’s reasonable opinion such coverage is generally required by other institutional lenders.

4.             Borrower’s Right to Transfer the Property.    Notwithstanding the provisions contained in Section 1.08 and other applicable provisions of the Deed of Trust, Borrower shall have a one time right, provided there is no Event of Default or default or event which, with notice or the passage of time, or both, could result in an Event of Default by Borrower under the Loan Documents, to assign, sell or transfer all of the Property (the “Permitted Transfer”) to a

party with experience, reasonably satisfactory to Lender, in managing property similar to the Property and whose financial condition is reasonably satisfactory to Lender (“Permitted Transferee”). The Permitted Transfer shall be further conditioned upon:

(a)           the payment by Borrower to Lender of a transfer fee equal to one percent of the outstanding principal balance of the Note (a nonrefundable $5,000 deposit toward such transfer fee shall be due at the time Borrower initially requests a Permitted Transfer, the balance of the transfer fee shall be due on the closing of the transaction);

(b)           the reimbursement of all of Lender’s expenses, including legal fees, incurred in connection with the Permitted Transfer;

(c)           the Permitted Transferee and such general partners or principals of Permitted Transferee as Lender may request, assuming, in form and substance satisfactory to Lender, all obligations  of Borrower  under the  Loan  Documents,  including,  without  limitation,  the Environmental Indemnity Agreement and any nonrecourse exception indemnity agreement, with the same degree of recourse liability as Borrower and subject to the same exculpatory provisions;

(d)           Lender’s receipt of a title policy complying with the requirements of the Commitment, updated to the date of the Permitted Transfer, evidencing that such Permitted Transfer will not adversely affect Lender’s first and prior lien on the Property or any other rights or interests granted to Lender under the Loan Documents;

(e)           Lender’s receipt of opinions of counsel acceptable to Lender that all previous opinions, pertaining to Borrower are true with respect to the Permitted Transferee and the Permitted Transferee has duly assumed the Loan Documents, and same are valid and enforceable against Permitted Transferee and the Property; and that Borrower has the requisite power and authority to properly transfer the Property;

(f)            the Property having maintained a Debt Coverage Ratio of not less than 180 percent for the 12 month period ending 30 days before the date of the Permitted Transfer and the Property having a projected Debt Coverage Ratio for the next 12 months based on the most recently approved and certified financial statements and annual rent roll of not less than 180 percent;

(g)           the Permitted Transferee paying to Borrower at least 40 percent cash down payment on the date of the Permitted Transfer;

(h)           Lender’s receipt and approval of the purchase and sale contract and copies of the proposed transfer documentation;

(i)            Lender’s receipt and approval of the Permitted Transferee’s resume and financial statements; and

(j)            Lender’s receipt and approval of an updated MAI appraisal by an appraiser satisfactory to Lender (prepared at Borrower’s expense) specifically confirming a loan to value ratio of no more than 60 percent.

In addition, Borrower shall have the right, provided there is no Event of Default or default or event which, with notice or the passage of time, or both, could result in an Event of Default by Borrower under the Loan Documents, to make a Permitted Transfer to INLAND

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WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation (“Member”), the sole member of Borrower, so long as (x) Borrower pays to Lender a transfer fee equal to $5,000, (y) the Member assumes, in form and substance satisfactory to Lender, all obligations of Borrower under the Loan Documents, including, without limitation, the Environmental Indemnity Agreement, with the same degree of recourse liability as Borrower and subject to the same exculpatory provisions, and (z) the conditions and requirements set forth in subparagraphs 4(b), (d) and (e) above are satisfied.

Net Operating Income shall be certified to be true and correct by the managing general partner, manager or chief financial officer of Borrower.

5.             Right to Change Ownership Interests in Borrower. Notwithstanding the provisions contained in Section 1.08 and other applicable provisions of the Deed of Trust, so long as Member maintains its status as a Real Estate Investment Trust (a “REIT”), any encumbrance, security interest or assignment or transfer of ownership of all types and classes of the shares of Member shall not constitute an improper encumbrance or transfer.

6              Damage to Property. With regard to the provisions contained in Section 1.04(A) of the Deed of Trust requiring Borrower to notify Lender of damage to the Property, the cost threshold for notification shall be increased to One Hundred Thousand Dollars ($100,000). With regard to the provisions contained in Section 1.04(B) and 1.04(C) of the Deed of Trust regarding the estimated cost of restoration, the threshold amounts shall be increased to Two Hundred Fifty Thousand Dollars ($250,000).

7.             Insurance.   Lender hereby approves the insurance evidenced by the certificates attached as Exhibit A hereto.

8.             Property Manager. Lender hereby approves Inland Southwest Management LLC, as manager of the Property, subject to its execution of the letter attached as Exhibit B hereto.

9.             Red Bug Loan.   In connection with the Loan, INLAND WESTERN WINTER SPRINGS RED BUG, L.L.C., a Delaware limited liability company (“Affiliated Borrower”), an affiliate of Borrower has applied to Allstate for a loan to be evidenced and secured by (a) a Mortgage Note from Affiliated Borrower to Lender (the “Other Note”), (b) a Mortgage, Assignment of Leases, Rents and Contracts, Security Agreement and Fixture Filing of even date herewith (the “Other Mortgage”) encumbering certain real property owned by Affiliated Borrower and the respective improvements thereon and personal property associated therewith located in Winter Springs, Seminole County, Florida, as described in the Other Mortgage (the “Other Property”), and (c) the Related Agreements defined in the Other Mortgage (collectively and as the same may be amended, modified or supplemented from time to time, the “Other Loan Documents”).   Borrower acknowledges and agrees that Lender is making the Loan with the understanding that the Loan will also be secured by the Other Mortgage and that an Event of Default under either the Loan Documents or the Other Loan Documents shall constitute an Event of Default under both the Loan and the Other Loan.   In connection with the Other Loan, Borrower shall execute an Amendment to Loan Documents to be recorded in Boulder County, Colorado,  and any other documentation necessary to ensure that the loans arc “cross- collateralized” and “cross-defaulted”.

10.           Rights Personal to Borrower.    This Letter Agreement shall be binding upon Borrower and its successors and assigns, except that the rights granted to Borrower in this Letter Agreement shall be personal to Borrower and shall not inure to the benefit of any subsequent

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owner of the Property. In the event Lender transfers all or any part of the Loan or any interest in the Loan Documents to any other person or entity, Lender agrees to notify such transferee(s) of the existence of this Letter Agreement and the fact that it is binding upon Lender’s successors and assigns by delivering such transferee(s) a true, correct and complete copy of this Letter Agreement concurrently with such transfer accompanied by a letter of transmittal from Lender advising such transferee(s) of the binding nature of the provisions of this Letter Agreement. Lender will send a copy of its letter of transmittal and the enclosure to Borrower, and Borrower’s name will be shown on the face of the original letter of transmittal as an addressee thereof.

*           *           *           *           *

[Signature Page Follows]

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	Very truly yours,
	ALLSTATE LIFE INSURANCE COMPANY, an Illinois insurance corporation
	By:
	By:
	Its Authorized Signatories
	Accepted and agreed:
	INLAND WESTERN LONGMONT FOX CREEK, L.L.C., a Delaware limited liability company
	By:	INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation, Its sole member
		By:	/s/ [ILLEGIBLE]
		Its:	Asst. Secretary
Dated: December 23, 2004

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EXHIBIT A

INSURANCE CERTIFICATES

EXHIBIT B

PROPERTY MANAGER LETTER

INLAND SOUTHWEST MANAGEMENT LLC

December 23, 2004

Inland Western Longmont Fox Creek, L.L.C.

290l Butterfield Road

Oakbrook, Illinois 60523

Re:      Allstate Life Insurance Company

            Loan No. 122561

            Fox Creek Village, 1601-1645 Pace Street

            Longmont, Colorado (the “Property”)

Ladies and Gentlemen:

The undersigned (“Manager”) is the current property manager of the Property pursuant to that certain Management Agreement (the “Agreement”) dated as of November 22, 2004, by and between INLAND WESTERN LONGMONT FOX CREEK, L.L.C., a Delaware limited liability company (“Owner”) and Manager. In consideration of your making the Loan to Owner (Manager being an affiliate of Owner), Manager acknowledges and agrees to the following:

1.Allstate, in its sole discretion, may terminate the Agreement by notice to Manager upon acquisition by Allstate of title to the Property by foreclosure, deed in lieu of foreclosure, or other transfer of the Property or upon Allstate otherwise obtaining possession of the Property by any lawful means. Upon the appointment of a receiver or court appointed officer, either Allstate or such receiver or officer may terminate the Agreement in its sole discretion by notice to Manager.

2Manager waives any right to create a lien against the Property to secure payment of unpaid management fees.

3.Upon the occurrence of, and during the continuation of, a default under any of the documents evidencing the Loan which has not been cured in Allstate’s sole judgment, all management fees paid or payable to Manager thereafter shall be subordinate to amounts owed to Allstate under such Loan documents.

4.Upon the occurrence of, and during the continuation of, a default under any of the documents evidencing the Loan which has not been cured in Allstate’s sole judgment, all management fees and other sums received by Manager thereafter in connection with management of the Property shall be held in trust for the benefit of Allstate.

5.Until Allstate elects to terminate the Agreement as provided herein, Manager will perform all of its obligations, covenants, conditions and agreements under the Agreement for the benefit of Allstate and its successors and assigns, so long as Allstate performs the duties and obligations of Owner under the Agreement accruing after the date Allstate exercises its rights under the Deed of Trust.

INLAND SOUTHWEST MANAGEMENT LLC
By:
	Its

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EX-10.434

Exhibit 10.434

ASSIGNMENT OF CONTRACT

This ASSIGNMENT OF CONTRACT (the “Assignment”) is made and entered into this 6^THday of December, 2004 by INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation (“Assignor”) and INLAND WESTERN GREENVILLE FIVE FORKS, L.L.C., a Delaware limited liability company (“Assignee”).

        Assignor does hereby sell, assign, transfer, set over and convey unto Assignee all of its right, title and interest as Purchase under that certain agreement dated as of September 10, 2004, as amended, and entered into by Sun Life Assurance Company of Canada, a Canadian corporation, as Seller, and Assignor, as Purchaser (collectively, the “Agreement”), solely as the Agreement applies to the sale and purchase of the property described by the Agreement, located in Simpsonville, South Carolina, and known as Five Forks Shopping Center.

Assignor represents and warrants that it is the Purchaser under the Agreement, and that it has not sold, assigned, transferred, or encumbered such interest in any way to any other person or entity. By acceptance hereof, Assignee accepts the foregoing Assignment and agrees, from and after the date hereof, to (i) perform all of the obligations of Purchaser under the Agreement, and (ii) indemnify, defend, protect and hold Assignor harmless from and against all claims and liabilities arising under the Agreement.

ASSIGNOR:
INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
By:	/s/ G. Joseph Cosenza
Name:	G. JOSEPH COSENZA
Title:	President

ASSIGNEE:
INLAND WESTERN GREENVILLE, FIVE FORKS, L.L.C., a Delaware limited liability company
By:	Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
	By:	/s/ Valerie Medina
	Name:	VALERIE MEDINA
	Title:	Secretary

EX-10.435

Exhibit 10.435

AGREEMENT OF PURCHASE AND SALE

This Agreement of Purchase and Sale (“Agreement”) is made and entered into by and between Purchaser and Seller.

RECITALS

A.Defined terms are indicated by initial capital letters.  Defined terms shall have the meaning set forth herein, whether or not such terms are used before or after the definitions are set forth.

B.Purchaser desires to purchase the Property and Seller desires to sell the Property, all upon the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual terms, provisions, covenants and agreements set forth herein, as well as the sums to be paid by Purchaser to Seller, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Purchaser and Seller agree as follows:

ARTICLE 1

BASIC INFORMATION

1.1Certain Basic Terms.  The following defined terms shall have the meanings set forth below:

1.1.1Seller:    Sun Life Assurance Company of Canada, a Canadian corporation

1.1.2Purchaser:     Inland Real Estate Acquisitions,  Inc.,  an Illinois corporation

1.1.3Purchase Price:   Eight Million One Hundred Fifty Thousand and No/100 Dollars ($8,150,000.00).

1.1.4Earnest Money:    One Hundred Thousand and No/100 Dollars ($100,000.00) (the  “Earnest Money”), to be deposited in accordance with Section 3.1 below.

1.1.5 Title Company: Chicago Title Insurance Company
171 N. Clark Street
Chicago, IL 60601
Attn: David Kozicki
Telephone: 312-223-3117
Fax: 312-223-5800

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1.1.6	Escrow Agent:	Chicago Title Insurance Company 171 N. Clark Street Chicago, IL 60601 Attn: Ms. Nancy Castro Telephone: 312-223-2709 Fax: 312-223-2709
1.1.7	Broker:	Robert S. Carter Berkeley Capital Advisors, LLC 831 East Morehead, Suite 650 Charlotte, North Carolina 28202 Telephone: 704.379.1983 Fax: 704.379.1988

1.1.8Effective Date:  The date on which this Agreement is executed by the latter to sign of Purchaser or Seller, as indicated on the signature page of this Agreement.

1.1.9Property Information Delivery Date:  The date which is three (3) business days after the Effective Date.

1.1.10Title and Survey Review Period:  The period beginning on the Effective Date and ending thirty (30) days thereafter.

1.1.11     Inspection Period:  The period beginning on the Effective Date and ending on thirty (30) days thereafter.

1.1.12Closing Date:  Immediately upon expiration of the Title and Survey Review Period and Inspection Period.

1.1.13Seller’s Knowledge:  The actual knowledge, without independent investigation, of William M. Barres, Seller’s Investment Officer.

1.2Closing Costs.  Closing costs shall be allocated and paid as follows:

Cost	Responsible Party
Title Commitment required to be delivered pursuant to Section 5.1	Purchaser
Premium for standard coverage form Title Policy required to be delivered pursuant to Section 5.4	Purchaser
Premium for any upgrade of Title Policy to extended coverage and any endorsements desired by Purchaser.	Purchaser
Costs of Survey Update or any revisions, modifications or recertifications  thereto	Purchaser
Costs of environmental studies and tests	Purchaser

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Escrow Fees	Purchaser l/2Seller l/2
South Carolina State/Greenville County real estate transfer tax	Seller
Real Estate Sales Commission to Broker	Seller
All other closing costs, expenses, charges and fees	Purchaser or Seller, as Applicable

1.3Notice Addresses:

Seller: Sun Life Assurance Company of Canada, One Sun Life Executive Park, SC-1307, Wellesley Hills, MA, 02481; Attn: William M. Barres, Telephone: 781.446.1159; Facsimile: 781.304.5525 with a copy to Joanne M. Schreiner, Esq., 1900 Chemed Center, 255 East Fifth Street, Cincinnati, OH 45202.

Purchaser: Inland Real Estate Acquisitions, Inc., 2901 Butterfield Road, Oak Brook, Illinois, 60523; Attn: Joseph G. Cosenza, Telephone: 630.218.4948; Facsimile; 630.218.4035, with copy to Robin Rash, Esq. The Inland Real Estate Group, Inc., 2901 Butterfield Road, Oak Brook, Illinois 60523, Telephone: 630.218.8000, ext. 2854; Facsimile 630.218.4900.

1.4Index of Certain Additional Defined Terms:

Assignment: Subsection 7.3.2

Casualty Notice: Section 6.2

Closing: Section 7.1

Closing Agent: Section 7.1

Deed:  Subsection 7.3.1

Due Diligence Termination Notice: Section 4.4

Estoppel Certificates: Subsection 7.3.5

Improvements: Subsection 2.1.1

Intangible Personal Property: Subsection 2.1.4

Land: Subsection 2.1.1

Leases: Subsection 2.1.2

Leasing Commission Agreements: Subsection 4.1.7

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Material Damage: Subsection 6.2.1

Operating Statements: Subsection 4.1.1

Permitted Exceptions: Section 5.3

Permitted Outside Parties: Section 4.7

Property: Section 2.1

Property Documents: Section 4.4

Property Information: Section 4.1

Real Property: Subsection 2.1.1

Reports: Section 4.5

Service Contracts: Subsection 4.1.5

Survey: Section 5.2

Survival Period: Section 9.3

Tangible Personal Property: Subsection 2.1.3

Taxes: Section 8.1

Tenant Receivables: Subsection 8.1.3

Title Commitment: Section 5.1

Unbilled Tenant Receivables: Subsection 8.1.3(a)

Uncollected Delinquent Tenant Receivables: Subsection 8.1.3(a)

ARTICLE 2

PROPERTY

2.1Subject to the terms and conditions of this Agreement, Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, the property commonly known as the Five Forks Shopping Center, Greenville County, South Carolina, a retail shopping center containing approximately 64,173 net rentable square feet, situated on approximately 8.1 acres of land, including the following (collectively, the “Property”):

2.1.1Real Property.  The land described in “Exhibit A” attached hereto (the “Land”), together with (i) all improvements located thereon (“Improvements”), (ii) all and singular the rights, benefits, privileges, easements,

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tenements, hereditaments, and appurtenances thereon or in anyway appertaining thereto, and (iii) without warranty, all right, title, and interest of Seller, if any, in and to all strips and gores and any land lying in the bed of any street, road or alley, open or proposed, adjoining such Land (collectively, the “Real Property”).

2.1.2Leases.  All of Seller’s right, title and interest, in all leases of the Real Property, including leases which may be made by Seller after the Effective Date and prior to Closing as permitted by this Agreement (the “Leases”).

2.1.3Tangible Personal Property.  All of Seller’s right, title and interest, without warranty, except as specifically provided herein, in  the equipment, machinery, furniture, furnishings, supplies and other tangible personal property, if any, owned by Seller and now or hereafter located in and used in connection with the operation, ownership or management of the Real Property, but specifically excluding any items of personal property owned by tenants at or on the Real Property and further excluding any items of personal property owned by third parties and leased to Seller (collectively, the “Tangible Personal Property”).

2.1.4Intangible Personal Property.  All of Seller’s right, title and interest, if any, without warranty, except as specifically provided herein, in all intangible personal property related to the Real Property and the Improvements, including, without limitation: all trade names and trade marks associated with the Real Property and the Improvements, including Seller’s rights and interests, if any, in the name of the Real Property; the plans and specifications and other architectural and engineering drawings for the Improvements, if any (to the extent assignable without cost to Seller); warranties (to the extent assignable without cost to Seller); contract rights related to the construction, operation, ownership or management of the Real Property, if any (but only to the extent assignable without cost to Seller and Seller’s obligations thereunder are expressly assumed by Purchaser pursuant to this Agreement); governmental permits, approvals and licenses, if any (to the extent assignable without cost to Seller); and telephone exchange numbers (to the extent assignable without cost to Seller) (collectively the “Intangible Personal Property”).

ARTICLE 3

EARNEST MONEY

3.1Deposit and Investment of Earnest Money.  Within three (3) business days after the Effective Date, Purchaser shall deposit the Earnest Money with Escrow Agent. Escrow Agent shall invest the Earnest Money in government insured interest-bearing accounts if and as directed by Purchaser, shall not commingle the Earnest Money with any funds of Escrow Agent or others. Such account shall have no penalty for early withdrawal, and Purchaser accepts all risks with regard to such account. Interest on the Earnest Money shall be deemed to accrue for the benefit of Purchaser for tax purposes, and Purchaser shall provide a U.S. federal taxpayer identification number to Escrow

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Agent promptly following the deposit of the Earnest Money. Interest earned on the Earnest Money, if any, shall otherwise be deemed to be part of the Earnest Money. The parties shall, upon the Effective Date, execute the Disclosure and Escrow Agreement attached as Exhibit C.

3.2Form; Failure to Deposit.  The Earnest Money shall be in the form of (a) check or (b) wire transfer to Escrow Agent of immediately available U.S. federal funds. If Purchaser fails to timely deposit the Earnest Money within the time periods required, Seller may terminate this Agreement by written notice to Purchaser, and thereafter the parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof.

3.3Disposition of Earnest Money.  The Earnest Money shall be applied as a credit to the Purchase Price at Closing or, if elected by Purchaser, shall be returned to Purchaser.    However, if Purchaser elects to terminate this Agreement prior to the expiration of the Inspection Period pursuant to Section 4.4, Escrow Agent shall pay the entire Earnest Money to Purchaser within two (2) business days following receipt of the Due Diligence Termination Notice from Purchaser (as long as the current investment can be liquidated and disbursed in two (2) business days),  provided Escrow Agent notifies Seller of Purchaser’s election to terminate this Agreement prior to paying the Earnest Money to Purchaser. In the event of a termination of this Agreement by either Seller or Purchaser for any reason other than pursuant to Section 4.4, Escrow Agent is directed to deliver the Earnest Money to the party hereto entitled to same pursuant to the terms hereof on or before the third (3^rd) business day following receipt by Escrow Agent and the non-terminating party of written notice of such termination from the terminating party, unless the other party hereto notifies Escrow Agent that it disputes the right of the other party to receive the Earnest Money,   In such event, Escrow Agent may interplead the Earnest Money into a court of competent jurisdiction in the county in which the Earnest Money has been deposited.   All attorneys’ fees and costs and Escrow Agent’s costs and expenses incurred in connection with such interpleader shall be assessed against the party that is not awarded the Earnest Money, or if the Earnest Money is distributed in part to both parties, then in the inverse proportion of such distribution.

ARTICLE 4

DUE DILIGENCE

4.1Due Diligence Materials To Be Delivered.  To the extent such items are in Seller’s possession or control, Seller shall deliver to Purchaser the following (the “Property Information”) on or before the Property Information Delivery Date:

4.1.1Financial Information.  Copy of operating statements and a summary of capital expenditures pertaining to the Property for the twelve (12) months preceding the Effective Date of this Agreement or such lesser period as Seller has owned the Property (“Operating Statements”);

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4.1.2Environmental Reports.  Copy of any environmental reports or site assessments related to the Property prepared for the benefit of Seller;

4.1.3Tax Statements.  Copy of ad valorem tax statements relating to the Property for the current tax period;

4.1.4Title and Survey.  Copy of Seller’s most current title insurance information and survey of the Property;

4.1.5Service Contracts.  Copies of the service, supply, equipment rental, and other service contracts and license agreements related to the operation of the Property (“Service Contracts”);

4.1.6Personal Property.  A list of Tangible Personal Property;

4.1.7Leasing Commissions.  A list of contingent leasing commission agreements with respect to the Leases of the Property (“Leasing Commission Agreements”); and

4.1.8.       Additional Materials.  To the extent not included in the foregoing, additional documentation listed on   Exhibit G (the “Due Diligence Items”).

4.2Physical Due Diligence.  Commencing on the Effective Date and continuing until the Closing, Purchaser shall have reasonable access to the Property at all reasonable times during normal business hours, upon appropriate notice to tenants as permitted or required under the Leases, for the purpose of conducting reasonably necessary tests, including surveys and architectural, engineering, geotechnical and environmental inspections and tests, provided that Purchaser must give Seller forty eight (48) hours prior telephone or written notice of any such inspection or test. At Seller’s election, a representative of Seller shall be present at any entry by Purchaser or its agents, contractors or employees (collectively, “Purchaser Parties”) upon the Property.  All persons or entities conducting tests or inspections on the Property shall be duly qualified, experienced, and, if required by the State of South Carolina, registered and licensed with the State of South Carolina for the investigations, inspections and tests which they will perform on the Property. Purchaser shall not perform any invasive or intrusive inspection, test or investigation of the Property (including, without limitation, any drillings, test borings, core samplings, or other disturbance of the Property for review of soils, compaction, environmental, structure or other conditions of the Property) without Seller’s prior written consent, which consent may be given, withheld or conditioned in Seller’s sole discretion. Subject to the provisions of Section 4.7 hereof, Purchaser or Purchaser’s representatives may meet with any tenant; provided, however, Purchaser must contact Seller at least forty-eight (48) hours in advance by telephone or fax to inform Seller of Purchaser’s intended meeting and to allow Seller the opportunity to attend such meeting if Seller desires. Subject to the provisions of Section 4.7 hereof, Purchaser or Purchaser’s representatives may meet with any governmental authority for any good faith, reasonable purpose in connection with the transaction contemplated by this Agreement; provided, however, Purchaser must contact Seller at least forty-eight

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(48) hours in advance by telephone or fax to inform Seller of Purchaser’s intended meeting and to allow Seller the opportunity to attend such meeting if Seller desires.

Following any such entry or work, unless otherwise directed in writing by Seller, Purchaser shall restore the Property to the condition it was in prior to such entry or work, including without limitation repairs to and the re-compaction or removal of any disrupted soil or material as Seller may reasonably direct. All activities, including without limitation, restoration or repair work, shall be in accordance with applicable laws, including without limitation, laws relating to worker safety and the proper disposal of discarded materials.

Purchaser and all Purchaser Parties shall, prior to commencing and at all times while performing any investigations, inspections and tests on the Property, maintain all risk commercial general liability insurance in an amount not less than $1,000,000.00 per occurrence and $2,000,000.00 annual aggregate covering any accident arising in connection with the presence of Purchaser or Purchaser Parties on the Property, naming Seller as additional insured thereunder. All such insurance policies shall be provided by insurance companies reasonably acceptable to Seller. Prior to performing any investigations, inspections and tests on the Property, Purchaser and the Purchaser Parties performing the work shall deliver one or more certificates of insurance to Seller evidencing the insurance required hereunder. Purchaser shall indemnify, defend, protect and hold harmless Seller, its property manager, and their directors, officers, agents, employees, members, representatives and managers from any and all claims, liabilities, demands, losses, costs, expenses (including reasonable legal fees, expenses and costs of investigation), damages or recoveries, including those for injury to person or property, arising out of or relating to any such Due Diligence activities or the acts or omissions of Purchaser or Purchaser Parties on the Property.

Buyer acknowledges that extensive local, state and federal legislation and regulation establish broad liability upon owners and/or users of real property for the investigation and remediation of Hazardous Substances (as that term is defined below). Buyer acknowledges that Seller has advised Buyer to consult its own technical and legal experts with respect to the possible existence of Hazardous Substances at, on, under and near the Property and Buyer hereby assumes all risks with respect to the effect of the existence or possible existence of all Hazardous Substances. Such investigations may include searches of records of governmental offices to determine whether Hazardous Substances or any equipment or facility generating, manufacturing, producing, handling, storing, using, transporting, disposing or otherwise dealing with Hazardous Substances may have been or is located in, on, under or in the vicinity of the Property and, if so, whether any clean up, containment, removal or other remedial action must or should be taken in connection therewith. The term “Hazardous Substances” means any material, waste, chemical, compound, substance, mixture, or byproduct that is identified, defined, designated, listed, restricted or otherwise regulated under federal, state or local environmental laws as a “hazardous constituent,” “hazardous substance,” “hazardous material,” “extremely hazardous material,” “hazardous waste,” “acutely hazardous waste,” “hazardous waste constituent,” “infectious waste,” “medical waste,”

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“biohazardous waste,” “extremely hazardous waste,” “pollutant,” “toxic pollutant,” or “contaminant,” or any other formulation intended to classify substances by reason of properties that are deleterious to the environment, natural resources or public health or safety including, without limitation, ignitability, corrosiveness, reactivity, carcinogenicity, toxicity, and reproductive toxicity. The term “Hazardous Substances” includes without limitation any material or substance which is (i) petroleum, (ii) asbestos, (iii) designated as a “hazardous substance” pursuant to Section 311 of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (33 U.S.C. § 1321), (iv) defined as a “hazardous waste” pursuant to Section 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (42 U.S.C. § 6903), (v) defined as a “hazardous substance” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq. (42 U.S.C. § 9601), or (vi) designated as a hazardous substance, material or waste pursuant to the Washington Model Toxics Control Act, RCW 70.105D.010 et seq.

The terms of this Section 4.2 shall survive Closing or termination of the Agreement.

4.3Estoppel Certificates.  Following the Effective Date, Seller will make good faith efforts to obtain from each of the tenants under the Leases, signed estoppel certificates in the form attached hereto as Exhibit F-l (the “Estoppel Certificates”). The parties acknowledge that “good faith efforts” will not be deemed to require the payment of fees or other consideration that may be required by a tenant as a condition to issuing an Estoppel Certificate; provided that Purchaser shall be under no obligation to close unless, not later than five (5) business days prior to the Closing Date, original or faxed copies of estoppel certificates have been received for the following tenants (a) Bi-Lo Supermarket and Blockbuster Video; plus (b) tenants of at least seventy-five percent (75%) of the remaining square footage of the Property currently leased to tenants, not including Blockbuster Video and Bi-Lo Supermarket (the “Required Estoppels”). Following receipt from a tenant, Seller shall fax or deliver the signed Estoppel Certificates to Purchaser for Purchaser’s approval or disapproval. Purchaser’s failure to disapprove of any Estoppel Certificate by written notice to Seller within five (5) business days after delivery of a copy thereof shall be deemed Purchaser’s approval thereof. Notwithstanding the foregoing, Purchaser shall not have the right to disapprove of any Estoppel Certificate which is in form and substance materially the same as the form attached hereto as Exhibit F-l (except as to information provided by the tenant) or in the form of estoppel certificate permitted under such tenant’s Lease and which is not materially inconsistent with the Lease of such Tenant. Furthermore, Purchaser shall not reject Estoppel Certificates with commercially reasonable markups or changes initiated by the Tenant. If any Estoppel Certificate is disapproved by Purchaser, Seller shall have the right, but not the obligation to cure such deficiencies and obtain and deliver to Purchaser, a revised Estoppel Certificate, on or before three (3) business days prior to Closing. Additionally, if Seller provides the Required Estoppels but is unable to provide an acceptable Estoppel Certificate from any remaining tenant (up to 100% of the total square footage of the Property), then Seller, not later than three (3) business days prior to Closing, shall deliver to Purchaser an Estoppel Certificate certified by Seller, to Seller’s

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knowledge, in the form attached hereto as Exhibit F-2 (the “Seller’s Estoppel”), which certification shall survive the Closing for a maximum period of one (1) year (provided, however, if Seller subsequently delivers a Estoppel Certificate from such tenant(s), Seller shall thereafter be released from such certification).

If, by three (3) business days prior to the Closing Date, Seller has not delivered all of the Estoppel Certificates or Seller’s Estoppel required hereunder, Purchaser shall have the right to terminate this Agreement upon written notice to Seller; provided, however, that Seller shall have the right to avoid termination of this Agreement by extending the Closing Date for one (1) period of up to fifteen (15) days for the purposes of obtaining the necessary Estoppel Certificates to satisfy the requirements of this Section 4.3 by providing written notice to Purchaser not later than two (2) days prior to the scheduled Closing Date. If Purchaser timely terminates this Agreement, the Earnest Money shall be delivered by Escrow Holder to Purchaser, and Purchaser and Seller shall not have any further liability to the other under this Agreement except those obligations expressly surviving termination of this Agreement.  Failure to obtain the Estoppel Certificates shall not be a breach of this Agreement, unless Seller has failed to make a good faith effort to obtain such Estoppel Certificates.

4.4Due Diligence/Termination Right.  Purchaser shall have through the last day of the Inspection Period in which to (i) examine, inspect, and investigate the Property Information (collectively, the “Property Documents”) and the Property and, in Purchaser’s sole and absolute judgment and discretion, determine whether the Property is acceptable to Purchaser, (ii) obtain all necessary internal approvals, and (iii) satisfy all other contingencies of Purchaser. Notwithstanding anything to the contrary in this Agreement, Purchaser may terminate this Agreement for any reason or no reason by giving written notice of termination to Seller and Escrow Agent (the “Due Diligence Termination Notice”) on or before the last day of the Inspection Period. If Purchaser does not give a Due Diligence Termination Notice, this Agreement shall continue in full force and effect, Purchaser shall be deemed to have waived its right to terminate this Agreement pursuant to this Section 4.4, and Purchaser shall be deemed to have acknowledged that it has received or had access to all Property Documents and conducted all inspections and tests of the Property that it considers important.

4.5Return of Documents and Reports.  If this Agreement terminates for any reason, Purchaser shall promptly return and/or deliver to Seller all Property Documents and copies thereof.   Additionally, if this Agreement terminates for any reason, then Purchaser must deliver to Seller copies of all third party reports, investigations and studies, other than economic analyses (collectively, the “Reports” and, individually, a “Report”) prepared for Purchaser in connection with its due diligence review of the Property provided Seller first delivers to Purchaser the total, actual cost of all such Reports. The Reports shall be delivered to Seller without any representation or warranty as to the completeness or accuracy of the Reports or any other matter relating thereto, and Seller shall have no right to rely on any Report without the written consent of the party preparing same.    Purchaser’s obligation to deliver the Property Documents and the Reports to Seller shall survive the termination of this Agreement.

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4.6Service Contracts.  Seller shall deliver at Closing notices of termination of all Service Contracts.

4.7Proprietary Information; Confidentiality.  Purchaser acknowledges that the Property Documents are proprietary and confidential (except to the extent available from third parties) and will be delivered to Purchaser solely to assist Purchaser in determining the feasibility of purchasing the Property.    Purchaser shall not use the Property Documents for any purpose other than as set forth in the preceding sentence. Purchaser shall not disclose the contents to any person other than to those persons who are responsible for determining the feasibility of Purchaser’s acquisition of the Property and who have agreed to preserve the confidentiality of such information as required hereby, or to any governmental or quasi-governmental agency to which Purchaser is legally obligated to disclose such matters, (collectively, “Permitted Outside Parties”). At any time and from time to time, within two (2) business days after Seller’s request, Purchaser shall deliver to Seller a list of all parties to whom Purchaser has provided any Property Documents or any information taken from the Property Documents,  Purchaser shall not divulge the contents of the Property Documents and other information except in strict accordance with the confidentiality standards set forth in this Section 4.7.    In permitting Purchaser to review the Property Documents or any other information, Seller has not waived any privilege or claim of confidentiality with respect thereto, and no third party benefits or relationships of any kind, either express or implied, have been offered, intended or created.

4.8No Representation or Warranty by Seller.  Purchaser acknowledges that, except as expressly set forth in this Agreement, Seller has not made any warranty or representation regarding the truth, accuracy or completeness of the Property Documents or the source(s) thereof.   Purchaser further acknowledges that some if not all of the Property Documents were prepared by third parties other than Seller.  Except as otherwise set forth in this Agreement, Seller expressly disclaims any and all liability for representations or warranties, express or implied, statements of fact and other matters contained in such information, or for omissions from the Property Documents, or in any other written or oral communications transmitted or made available to Purchaser. Except as otherwise set forth in this Agreement, Purchaser shall rely solely upon its own investigation with respect to the Property, including, without limitation, the Property’s physical, environmental or economic condition, compliance or lack of compliance with any ordinance, order, permit or regulation or any other attribute or matter relating thereto. Seller has not undertaken any independent investigation as to the truth, accuracy or completeness of the Property Documents and is providing the Property Documents solely as an accommodation to Purchaser.

4.9Purchaser’s Responsibilities.  In conducting any inspections, investigations or tests of the Property and/or Property Documents, Purchaser and its agents and representatives shall: (i) not unreasonably disturb the tenants or interfere with their use of the Property pursuant to their respective Leases; (ii) not interfere with the operation and maintenance of the Property; (iii) not damage any part of the Property or any personal property owned or held by any tenant or any third party unless any such

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damage is repaired promptly to Seller’s satisfaction; (iv) not injure or otherwise cause bodily harm to Seller, or its respective agents, guests, invitees, contractors and employees or any tenants or their guests or invitees; (v) comply with all applicable laws; (vi) promptly pay when due the costs of all its tests, investigations, and examinations done with regard to the Property; (vii) not permit any liens to attach to the Real Property by reason of the exercise of its rights hereunder; (viii) repair any damage to the Real Property resulting directly or indirectly from any such inspection or tests; and (ix) not reveal or disclose prior to Closing any information obtained during the Inspection Period concerning the Property and the Property Documents to anyone other than the Permitted Outside Parties, in accordance with the confidentiality standards set forth in Section 4.7 above, or except as may be otherwise required by law.

4.10Purchaser’s Agreement to Indemnify.  Purchaser indemnifies and holds Seller harmless from and against any and all liens, claims, causes of action, damages, liabilities and expenses (including reasonable attorneys’ fees) arising out of Purchaser’s inspections or tests permitted under this Agreement or any violation of the provisions of Sections 4.2, 4.7 and 4.9; provided, however, the indemnity shall not extend to protect Seller from any pre-existing liabilities for matters merely discovered by Purchaser (i.e., latent environmental contamination) so long as Purchaser’s actions do not aggravate any pre-existing liability of Seller. Purchaser also indemnifies and holds Seller and any tenant harmless from and against any and all claims, causes of action, damages, liabilities and expenses which such tenant may suffer or incur due to Purchaser’s breach of its obligation under Section 4.8 above to maintain the confidential nature of any Property Documents or other information relative to such tenant. Purchaser’s obligations under this Section 4.10 shall survive the termination of this Agreement and shall survive the Closing.

ARTICLE 5

TITLE AND SURVEY

5.1Title Commitment.  Purchaser shall obtain: (i) a   current  ALTA commitment for title insurance with extended coverage (the “Title Commitment”) issued by the Title Company, in the amount of the Purchase Price, with Purchaser as the proposed insured, and (ii) copies of all documents of record referred to in the Title Commitment as exceptions to title to the Property.

5.2New or Updated Survey.  Purchaser, at its expense, may elect to obtain a new survey or revise, modify, or re-certify Seller’s existing survey (“Survey”)  as necessary in order for the Title Company to delete the survey exception from the Title Policy or to otherwise satisfy Purchaser’s objectives.

5.3Title Review.  During the Title and Survey Review Period, Purchaser shall review title to the Property as disclosed by the Title Commitment and the Survey. Seller shall have no obligation to cure title objections except financing liens of an ascertainable amount created by, under or through Seller, which liens Seller shall cause to be released at or prior to Closing, and Seller shall deliver the Property free and clear of

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any such financing liens. Seller further agrees to remove any exceptions or encumbrances to title which are voluntarily created by, under or through Seller after the Effective Date without Purchaser’s consent.

Prior to the expiration of the Title and Survey Review Period, Purchaser shall notify Seller of any objections to the state of title to the Property, which objections shall be made in writing and delivered to Seller (a “Title/Survey Objection Notice”). If Purchaser shall fail to deliver a Title/Survey Objection Notice on or before the expiration of the Title and Survey Review Period, Purchaser shall be deemed to have accepted all exceptions to the Title Commitment and the form and substance of the Survey and all matters shown thereon, except those exceptions that Seller is obligated to remove as provided herein. If Purchaser delivers a Title/Survey Objection Notice, Seller may, but shall have no obligation to, within five (5) days after receipt of the Title/Survey Objection Notice (“Seller’s Election Period”), elect to eliminate or ameliorate to Purchaser’s reasonable satisfaction the disapproved title or survey matters by giving Purchaser written notice (“Seller’s Title/Survey Notice”) of those disapproved title or survey matters, if any, which Seller agrees to so eliminate or ameliorate by the Closing Date. Any title exception disapproved by Purchaser shall be deemed ameliorated to Purchaser’s reasonable satisfaction to the extent that Seller either causes such exception to be removed from the Title Commitment or to be affirmatively insured over, if Seller does not elect to, or is unable to, eliminate or ameliorate any disapproved title or survey matters, or if Seller fails to timely deliver Seller’s Title/Survey Notice, Purchaser shall have the right, on or before five (5) days following the expiration of Seller’s Election Period, to either: (a) waive its prior disapproval, in which event said disapproved matters shall be deemed approved; or (b) terminate this Agreement. Failure to take either one of the actions described in subsections (a) and (b), above, shall be deemed to be Purchaser’s election to take the action described in subsection (a), above. If Purchaser elects to terminate this Agreement as provided in subsection (b), above, this Agreement shall automatically terminate, the Earnest Money shall be delivered by Escrow Agent to Purchaser, and Purchaser and Seller shall not have any further liability to the other under this Agreement except those obligations expressly surviving termination of this Agreement.

For the purpose of this Agreement, the term “Permitted Exceptions” shall mean: the specific exceptions in the Title Commitment or Survey which were not disapproved by Purchaser as provided in this Section 5.3; matters created by, through or under Purchaser; real estate taxes not yet due and payable; tenants under the Leases; and any licensees under any Service Contracts not terminated as of Closing.

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ARTICLE 6

OPERATIONS AND RISK OF LOSS

6.1Ongoing Operations.

6.1.1Leases and Service Contracts.  From the Effective Date through Closing, Seller will perform its material obligations under the Leases and Service Contracts.

6.1.2New Contracts.  From the Effective Date through Closing, Seller will not enter into any contract that will be an obligation affecting the Property subsequent to the Closing, except contracts entered into in the ordinary course of business that are terminable without cause and without the payment of any termination penalty on not more than thirty (30) days’ prior notice.

6.1.3Maintenance of Improvements; Removal of Personal Property.  From the Effective Date through Closing, subject to Sections 6.2 and 6.3, Seller shall maintain all Improvements substantially in their present condition (ordinary wear and tear and casualty excepted) and in a manner consistent with Seller’s maintenance of the Improvements during Seller’s period of ownership. Seller will not remove any Tangible Personal Property except as may be required for necessary repair or replacement, and replacement shall be of approximately equal quality and quantity as the removed item of Tangible Personal Property. Seller will maintain all policies of insurance with respect to the Property which were in effect on the Effective Date.

6.1.4Leasing.  From and after the date which is five (5) days prior to the expiration of the Inspection Period, Seller will not amend or terminate any existing Lease or enter into any new Lease without the consent of Purchaser.  If Purchaser’s consent is requested by Seller as to any amendment or termination of a Lease or new Lease, Purchaser agrees to give Seller written notice of approval or disapproval of a proposed amendment or termination of a Lease or new Lease within five (5) business days after Purchaser’s receipt of the proposed amendment, termination, or new Lease. If Purchaser does not respond to Seller’s request within such time period, then Purchaser will be deemed to  have  approved such amendment, termination or new  Lease. Purchaser shall not unreasonably withhold its consent to any proposed amendment, termination or new Lease. Purchaser’s  disapproval  will  be  deemed  to  be  reasonable  if a  proposed amendment or new Lease is on terms and conditions which are not consistent with those other Leases in the Real Property, including, but not limited to, term, rentals and expense recoveries.

6.2Damage.  If prior to Closing the Property is damaged by fire or other casualty, Seller shall estimate the cost to repair and the time required to complete repairs and will provide Purchaser written notice of Seller’s estimation (the “Casualty Notice”) as soon as reasonably possible after the occurrence of the casualty.

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6.2.1Material.  In the event of any Material Damage to or destruction of the Property or any portion thereof prior to Closing, Purchaser may, at its option, terminate this Agreement by delivering written notice to Seller on or before the expiration of thirty (30) days after the date Seller delivers the Casualty Notice to Purchaser (and if necessary, the Closing Date shall be extended to give the parties the full thirty-day period to make such election and to obtain insurance settlement agreements with Seller’s insurers).   Upon any such termination, the Earnest Money shall be returned to Purchaser and the parties hereto shall have no further rights or obligations hereunder, other than those that by their terms survive the termination of this  Agreement.     If Purchaser does not terminate  this Agreement within said thirty (30) day period, then the parties shall proceed under this Agreement and close on schedule (subject to extension of Closing as provided above), and as of Closing Seller shall assign to Purchaser, without representation or warranty by or recourse against Seller, all of Seller’s rights in and to any resulting insurance proceeds (including any rent loss insurance applicable to any period on and after the Closing Date) due Seller as a result of such damage or destruction and credit Purchaser at Closing for the amount of the deductible, if any, and Purchaser shall assume full responsibility for all needed repairs. For the purposes of this Agreement, “Material Damage” and “Materially Damaged” means damage which, in Seller’s reasonable estimation, exceeds $250,000.00 to repair or which, in Seller’s reasonable estimation, will take longer than one hundred eighty (180) days to repair.

6.2.2Not Material.  If the Property is not Materially Damaged, then neither Purchaser nor Seller shall have the right to terminate this Agreement, and Seller shall, at Closing, assign the insurance proceeds to Purchaser and credit Purchaser at Closing for the amount of the deductible, if any.

6.3Condemnation.  If proceedings in eminent domain are instituted with respect to the entire Property or any portion thereof which affects (a) the Improvements; (b) any parking areas in the Property; or (c) access to a public street, Purchaser may, at its option, by written notice to Seller given within ten (10) days after Seller notifies Purchaser of such proceedings (and if necessary the Closing Date shall be automatically extended to give Purchaser the full ten-day period to make such election), either: (i) terminate this Agreement, in which case the Earnest Money shall he immediately returned to Purchaser and the parties hereto shall have no further rights or obligations, other than those that by their terms survive the termination of this Agreement, or (ii) proceed under this Agreement, in which event Seller shall, at the Closing, assign to Purchaser its entire right, title and interest in and to any condemnation award, and Purchaser shall have the sole right after the Closing to negotiate and otherwise deal with the condemning authority in respect of such matter. If Purchaser does not give Seller written notice of its election within the time required above, then Purchaser shall be deemed to have elected option (ii) above.

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ARTICLE 7

CLOSING

7.1Closing.  The consummation of the transaction contemplated herein (“Closing”) shall occur on the Closing Date at the offices of the Title Company (the “Closing Agent”) (or such other location as may be mutually agreed upon by Seller and Purchaser). Funds shall be deposited into and held by Closing Agent in a closing escrow account.   Upon satisfaction or completion of all closing conditions and deliveries, the parties  shall direct Closing Agent to immediately record  and deliver the closing documents to the appropriate parties and make disbursements according to the closing statements executed by Seller and Purchaser.

7.2Conditions to Parties’ Obligation to Close.  In addition to all other conditions set forth herein, the obligation of Seller, on the one hand, and Purchaser, on the other hand, to consummate the transactions contemplated hereunder are conditioned upon the following:

7.2.1Representations and Warranties.  The other party’s representations and warranties contained herein shall be true and correct in all material respects as of the date of this Agreement and the Closing Date;

7.2.2Deliveries.  As of the Closing Date, the parties shall have tendered all deliveries to be made at Closing; and

7.2.3Actions, Suits, etc.  There shall exist no pending or threatened actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, against the other party that would materially and adversely affect the operation or value of the Property or the other party’s ability to perform its obligations under this Agreement.

In addition, the obligation of Purchaser to consummate the transactions contemplated hereunder is conditioned upon the following:

7.2.4Title Policy.  The Title Company shall have issued and delivered to Purchaser, or shall have committed to issue and deliver to Purchaser, with respect to the Real Property, an Extended Coverage ALTA Owner’s Policy of Title Insurance (1992 Form) (the “Title Policy”) issued by the Title Company as of the date and time of the recording of the Deed (as defined in section 7.3.1, below), in the amount of the Purchase Price, insuring Purchaser as owner of good and marketable fee simple title to the Real Property, subject only to the Permitted Exceptions; and,

7.2.5Audit Representation Letter.  Seller shall have delivered to Purchaser the audit representation letter described in Section 13.17, in the form attached as Exhibit I, at least three (3) business days prior to the Closing Date.

7.2.6Leasing.  One Hundred Percent (100%) of the existing leases for the leasable space in the Real Property shall remain in effect as of the Closing Date, on the terms shown on Exhibit J.

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7.2.7       Postal Annex.  Either (i) the lease with Postal Annex shall have been renewed for a minimum period of one year on the terms set forth on Exhibit J, or (ii) the Master Lease Escrow Agreement shall have been revised to provide for an additional escrow deposit equal to twelve (12) months’ rent and twelve (12) months’ CAM (as defined in the Master Lease Escrow Agreement) for Postal Annex, as shown on Exhibit J.

So long as a party is not in default hereunder, if any condition to such party’s obligation to proceed with the Closing hereunder has not been satisfied as of the Closing Date (or such earlier date as is provided herein), such party may, in its sole discretion terminate this Agreement by delivering written notice to the other party on or before the Closing Date (or such earlier date as is provided herein), or elect to close (or to permit any such earlier termination deadline to pass) notwithstanding the non-satisfaction of such condition, in which event such party shall be deemed to have waived any such condition. In the event such party elects to close (or to permit any such earlier termination deadline to pass), notwithstanding the non-satisfaction of such condition, said party shall be deemed to have waived said condition, and there shall be no liability on the part of any other party hereto for breaches of representations and warranties of which the party electing to close had knowledge at the Closing.

7.3Seller’s Deliveries in Escrow.  As of or prior to the Closing Date, Seller shall deliver in escrow to Closing Agent the following:

7.3.1Deed.  A limited warranty deed in a form prepared by Seller and approved by Purchaser, subject only to the Permitted Exceptions to which the conveyance shall be subject, executed and acknowledged by Seller, conveying to Purchaser Seller’s interest in the Real Property (the “Deed”);

7.3.2Bill of Sale, Assignment and Assumption.  A Bill of Sale, Assignment and Assumption of Leases and Contracts in the form of Exhibit B attached  hereto  (the  “Assignment”),  executed and acknowledged by Seller, vesting in Purchaser, with limited warranty, Seller’s right, title and interest in and to the property described therein free of any claims, except for the Permitted Exceptions to the extent applicable;

7.3.3Conveyance   or  Transfer  Tax   Forms   or   Returns.  Such conveyance or transfer tax forms or returns, if any, as are required to be delivered or signed by Seller by applicable state and local law in connection with the conveyance of the Real Property;

7.3.4FIRPTA.  A Foreign Investment in Real  Property Tax Act affidavit executed by Seller;

7.3.5Estoppel Certificates.  Original Estoppel Certificates as provided in Section 4.3 above to the extent not provided previously;

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7.3.6Master Lease.  Three (3) counterparts of the Master Lease Escrow Agreement, executed by Seller.

7.3.7Additional Documents.  Any additional documents that Closing Agent or the Title Company may reasonably require for the proper consummation of the transaction contemplated by this Agreement (provided, however, no such additional document shall expand any obligation, covenant, representation or warranty of Seller or result in any new or additional obligation, covenant, representation or warranty of Seller under this Agreement beyond those expressly set forth in this Agreement).

7.4Purchaser’s Deliveries in Escrow.  As of or prior to the Closing Date, Purchaser shall deliver in escrow to Closing Agent the following:

7.4.1Bill of Sale, Assignment and Assumption.  The Assignment, executed and acknowledged by Purchaser;

7.4.2Conveyance or Transfer Tax Forms or Returns.  Such conveyance or transfer tax forms or returns, if any, as are required to be delivered or signed by Purchaser by applicable state and local law in connection with the conveyance of Real Property; and

7.4.3Master Lease.  Three (3) counterparts of the Master Lease Escrow Agreement, executed by Purchaser.

7.4.4Additional Documents.  Any additional documents that Seller, Closing Agent or the Title Company may reasonably require for the proper consummation of the transaction contemplated by this Agreement (provided, however, no such additional document shall expand any obligation, covenant, representation or warranty of Purchaser or result in any new or additional obligation, covenant, representation or warranty of Purchaser under this Agreement beyond those expressly set forth in this Agreement).

7.5Closing Statements.  As of or prior to the Closing Date, Seller and Purchaser shall deposit with Closing Agent executed closing statements consistent with this Agreement in the form required by Closing Agent.

7.6Purchase Price.  At or before 11:00 a.m. local time on the Closing Date, Purchaser shall deliver to Closing Agent the Purchase Price less any portion of the Earnest Money that is applied to the Purchase Price, plus or minus applicable prorations, in immediate, same-day U.S. federal funds wired for credit into Closing Agent’s escrow account, which funds must be delivered in a manner to permit Closing Agent to deliver good funds to Seller or its designee on the Closing Date (and, if requested by Seller, by wire transfer).

7.7Possession.  Seller shall deliver possession of the Property to Purchaser at the Closing subject only to the Permitted Exceptions.

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7.8Notice to Tenants.  Seller and Purchaser shall each execute, and Purchaser shall deliver to each tenant immediately after the Closing, a notice regarding the sale in substantially the form of Exhibit D attached hereto. This obligation on the part of Purchaser and Seller shall survive the Closing.

ARTICLE 8

PRORATIONS, DEPOSITS, COMMISSIONS

8.1Prorations.  At Closing, the following items shall be prorated as of the date of Closing with all items of income and expense for the Property being borne by Purchaser from and after (but including) the date of Closing: Tenant Receivables (defined below) and other income and rents that were due and payable prior to Closing; fees and assessments; prepaid expenses and obligations under Service Contracts; accrued operating expenses; real and personal ad valorem taxes (“Taxes”); and any assessments by private covenant for the then-current calendar year of Closing. Specifically, the following shall apply to such prorations and to post-Closing collections of Tenant Receivables:

8.1.1Taxes.  If Taxes for the year of Closing are not known or cannot be reasonably estimated, Taxes shall be prorated based on Taxes for the year prior to Closing, subject to adjustment by the parties if the actual Taxes vary from the prior year’s Taxes, pursuant to Section 8.1(b). Any additional Taxes relating to the year of Closing or prior years arising solely out of a change in the use of the Real Property or a change in ownership from Seller to Purchaser shall be assumed by Purchaser effective as of Closing and paid by Purchaser when due and payable, and Purchaser shall indemnify Seller from and against any and all such Taxes, which indemnification obligation shall survive the Closing. At Closing, Purchaser and Seller shall determine the estimated amount of Taxes to be reimbursed by Bi-Lo Supermarkets for the period of time up to the Closing (the “Bi-Lo Tax Payment”). The amount of the Bi-Lo Tax Payment shall be calculated based on the most recently-available tax bill. The Bi-Lo Tax Payment shall be deposited by Purchaser with Escrow Agent, to be released to Seller if and when Bi-Lo Supermarkets makes the Bi-Lo Tax Payment to Purchaser (and subject to adjustment pursuant to Section 8.1.3(b)). If Bi-Lo Supermarkets fails or refuses to make the Bi-Lo Tax Payment when it is due after demand is made by Purchaser, then the Bi-Lo Tax Payment shall be released to Purchaser and Seller shall reserve all rights to pursue payment of the Bi-Lo Tax Payment from Bi-Lo Supermarkets.

8.1.2Utilities.  Purchaser shall take all steps necessary to effectuate the transfer of all utilities to its name as of the Closing Date, and where necessary, post deposits with the utility companies. Seller shall be entitled to recover any and all deposits held by any utility company as of the Closing Date or, alternatively, to take a credit for same on the settlement statement at Closing if said deposit remains in place for Buyer’s benefit.

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8.1.3Tenant Receivables.  Rents due from tenants under Leases and operating expenses and/or taxes payable by tenants under Leases (collectively, “Tenant Receivables”) and not collected by Seller as of Closing shall not be prorated between Seller and Purchaser at Closing but shall be apportioned on the basis of the period for which the same is payable and if, as and when collected, as follows:

(a)Rent and other income received from tenants under Leases after Closing shall be applied in the following order of priority: (i) first, to Tenant Receivables first coming due after Closing and applicable to the period of time after Closing, which amount shall be retained by Purchaser; and (ii) second, to payment of Tenant Receivables first coming due after Closing but applicable to the period of time before Closing, including, without limitation, the Tenant Receivables described in Subsection 8.1.3(b) below (collectively, “Unbilled Tenant Receivables”), which amount shall be delivered to Seller; and (iii) thereafter, to delinquent Tenant Receivables which were due and payable as of Closing but not collected by Seller as of Closing (collectively, “Uncollected Delinquent Tenant Receivables”), which amount shall be delivered to Seller. Any sums received by Purchaser to which Seller is entitled shall be held in trust for Seller on account of such past due rents payable to Seller, and Purchaser shall remit to Seller any such sums received by Purchaser to which Seller is entitled within ten (10) business days after receipt thereof less reasonable, actual costs and expenses of collection, including reasonable attorneys’ fees, court costs and disbursements, if any. Seller expressly agrees that if Seller receives any amounts after the Closing Date which are attributable, in whole or in part, to any period after the Closing Date, Seller shall remit to Purchaser that portion of the monies so received by Seller to which Purchaser is entitled within ten (10) business days after receipt thereof. With respect to Unbilled Tenant Receivables, Purchaser covenants and agrees to (A) bill the same when billable and (B) cooperate with Seller to determine the correct amount of operating expenses and/or taxes due. The provisions of this Subsection 8.1.3(a) shall survive the Closing.

(b)Not later than thirty (30) days after the date on which reconciliation for 2004 with tenants are complete (the “Final Reconciliation Date”), Seller and Purchaser shall agree upon a final reconciliation of operating expenses and/or taxes due under the Leases, and adjustments may be made to the Closing prorations (i) to the extent expenses were not prorated at Closing, or (ii) to the extent expenses were prorated at Closing based on estimates which can now be updated or verified with actual figures. Without limiting the generality of the requirements of Subsection 8.1.3(a) above, if the final reconciliation (after consideration of any escrow accounts held by Lender) shows that a net amount is owed by Seller to Purchaser, said amount shall be paid by Seller

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to Purchaser within ten (10) business days of the Final Reconciliation Date. If the final reconciliation shows that a net amount is owed by Purchaser to Seller, Purchaser shall, within ten (10) business days of the Final Reconciliation Date, remit said amount to Seller. There shall be no reconciliations or re-prorations from and after the Final Reconciliation Date.

8.2Leasing Costs.  Seller agrees to pay or discharge all leasing commissions under the Leasing Commission Agreements, costs for tenant improvements, legal fees and other costs and expenses (collectively, “Leasing Costs”) with respect to Leases executed or in force as of or prior to the Closing Date. Purchaser agrees to pay or discharge all Leasing Costs with respect to Leases executed after the Closing Date.

8.3Closing Costs.  Closing costs shall be allocated between Seller and Purchaser in accordance with Section 1.2.

8.4Tenant Deposits.  All tenant security deposits collected and not applied by Seller pursuant to the Leases (and interest thereon if required by law or contract) shall be transferred or credited to Purchaser at Closing.   As of the Closing, Purchaser shall assume Seller’s obligations related to tenant security deposits, but only to the extent they are credited or transferred to Purchaser.

8.5Commissions.  Seller shall be responsible to Broker for a real estate sales commission at Closing (but only in the event of a Closing in strict accordance with this Agreement) pursuant to a separate written agreement.  Broker may share its commission with any other licensed broker involved in this transaction, but the payment of the commission by Seller to Broker shall fully satisfy any obligations of Seller to pay a commission hereunder.  Under no circumstances shall Seller owe a commission or other compensation directly to any other broker, agent or person. Other than as stated above in this Section 8.5, Seller and Purchaser each represent and warrant to the other that no real estate brokerage commission is payable to any person or entity in connection with the transaction contemplated hereby, and each agrees to and does hereby indemnify and hold the other harmless against the payment of any commission to any other person or entity claiming by, through or under Seller or Purchaser, as applicable.   This indemnification shall extend to any and all claims, liabilities, costs and expenses (including reasonable attorneys’ fees and litigation costs) arising as a result of such claims and shall survive the Closing.

ARTICLE 9

REPRESENTATIONS AND WARRANTIES

9.1Seller’s Representations and Warranties.  Seller represents and warrants to Purchaser as of the Effective Date and as of the Closing Date that:

9.1.1Organization and Authority.Seller has been duly organized and is validly existing as a corporation in good standing in Canada. Seller has the full right and authority and has obtained any and all consents required to enter into

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this Agreement and to consummate or cause to be consummated the transactions contemplated hereby. This Agreement has been, and all of the documents to be delivered by Seller at the Closing will be, authorized and properly executed and constitute, or will constitute, as appropriate, the valid and binding obligation of Seller, enforceable in accordance with their terms.

9.1.2Conflicts and Pending Actions.  There is no agreement to which Seller is a party or, to Seller’s knowledge, that is binding on Seller which is in conflict with this Agreement.   There is no action or proceeding pending or to Seller’s knowledge, threatened against Seller or relating to the Property, which challenges or impairs Seller’s ability to execute or perform its obligations under this Agreement.

9.1.3Tenant/Leases.  As of the Effective Date, Exhibit E lists all effective leases and amendments with respect to the Property.

9.1.4Service Contracts.  As of the Effective Date, the list of Service Contracts includes all Service Contracts with respect to the Property.

9.1.5Notices from Governmental Authorities.  Seller has not received from any governmental authority written notice of any material violation of any laws applicable (or alleged to be applicable) to the Real Property, or any part thereof, that has not been corrected, except as may be reflected by the Property Documents or otherwise disclosed in writing to Purchaser.

9.1.6Purchase Rights.  To Seller’s knowledge, no person or entity, except Purchaser, has been granted any options, rights of first refusal or other purchase rights with respect to the Property.

9.1.7Condemnation.  No portion of the Property has been condemned or otherwise taken by any public authority, and Seller has no knowledge that any such condemnation or taking is threatened or contemplated.

9.1.8Assessments.  To Seller’s knowledge, Seller has received no notice concerning any existing or proposed special assessments or similar taxes, charges or assessments against the Property or any utility service moratoriums or other moratoriums affecting the Property.

9.1.9Environmental Reports.  To Seller’s knowledge, other than as may be disclosed in the Due Diligence Items, (i) no Hazardous Substances in violation of any state, federal or local law, regulation or ordinance arc contained within or located at or under the Property; (ii) there are no underground storage tanks located under the Property; and (iii) no portion of the Property is located in an area that has been designated a wetlands or other environmental protection area.

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9.2Purchaser’s Representations and Warranties.  Purchaser represents and warrants to Seller as of the Effective Date and as of the Closing Date that:

9.2.1Organization and Authority.  Purchaser has been duly organized, is validly existing as a corporation in good standing in Illinois. Purchaser has the full right and authority and has obtained any and all consents required to enter into this Agreement and to consummate or cause to be consummated the transactions contemplated hereby. This Agreement has been, and all of the documents to be delivered by Purchaser at the Closing will be, authorized and properly executed and constitute, or will constitute, as appropriate, the valid and binding obligation of Purchaser, enforceable in accordance with their terms.

9.2.2Conflicts and Pending Action.  There is no agreement to which Purchaser is a party or to Purchaser’s knowledge binding on Purchaser which is in conflict with this Agreement. There is no action or proceeding pending or, to Purchaser’s knowledge, threatened against Purchaser which challenges or impairs Purchaser’s ability to execute or perform its obligations under this Agreement.

9.3Survival of Representations and Warranties.  The representations and warranties set forth in this Article 9 are made as of the date of this Agreement and are remade as of the Closing Date and shall not be deemed to be merged into or waived by the instruments of Closing, but shall survive the Closing for a period of twelve (12) months (the “Survival Period”). No broker, agent, or party other than Seller is authorized to make any representation or warranty for or on behalf of Seller.  Each party shall have the right to bring an action against the other on the breach of a representation or warranty hereunder, but only if the party bringing the action for breach first learns of the breach after Closing and files such action within the Survival Period. The provisions of this Section 9.3 shall survive the Closing.   Any breach of a representation or warranty that occurs prior to Closing shall be governed by Article 10.

ARTICLE 10

DEFAULT AND REMEDIES

10.1Seller’s Remedies.  If Purchaser fails, without legal excuse, to complete the purchase of the Property or otherwise fails to perform its obligations pursuant to this Agreement at or prior to Closing for any reason except failure by Seller to perform hereunder, or if prior to Closing any one or more of Purchaser’s representations or warranties are breached in any material respect, Seller shall be entitled, as its sole remedy (except as provided in Sections 4.10, 8.5, 10.3 and 10.4 hereof), to terminate this Agreement and recover the Earnest Money as liquidated damages and not as penalty, in full satisfaction of claims against Purchaser hereunder for Purchaser’s failure or breach. Seller and Purchaser agree that Seller’s damages resulting from Purchaser’s default are difficult, if not impossible, to determine and the Earnest Money is a fair estimate of those damages which has been agreed to in an effort to cause the amount of such damages to be certain. Notwithstanding anything in this Section 10.1 to the contrary, in the event of Purchaser’s default or a termination of this Agreement, Seller shall have all remedies

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available at law or in equity in the event Purchaser or any party related to or affiliated with Purchaser is asserting any claims or right to the Property (other than a claim for money damages) that would otherwise delay or prevent Seller from having clear, indefeasible and marketable title to the Property. In all other events Seller’s remedies shall be limited to those described in this Section 10.1 and Sections 4.10, 8.5, 10.3 and 10.4 hereof. If Closing is consummated, Seller shall have all remedies available at law or in equity in the event Purchaser fails to perform any obligation of Purchaser under this Agreement.

10.2Purchaser’s Remedies.  If Seller fails to perform its obligations pursuant to this Agreement for any reason except failure by Purchaser to perform hereunder, or if prior to Closing any one or more of Seller’s representations or warranties are breached in any material respect, Purchaser shall elect, as its sole remedy, either to (i) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover the Earnest Money, (ii) enforce specific performance or (iii) waive said failure or breach and proceed to Closing. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before thirty (30) business days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within six (6) months following the scheduled Closing Date. Purchaser’s remedies shall be limited to those described in this Section 10.2 and Sections 10.3 and 10.4 hereof.

IN NO EVENT SHALL EITHER SELLER’S OR PURCHASER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.

10.3Attorneys’ Fees.  In the event either party hereto employs an attorney in connection with claims by one party against the other arising from the operation of this Agreement, then upon the entry of a final, non-appealable judgment, the non-prevailing party shall pay the prevailing party all reasonable fees and expenses, including attorneys’ fees, and court costs, incurred in connection with such transaction.

10.4Other Expenses.  If this Agreement is terminated due to the default of a party, then the defaulting party shall pay any fees or charges due to Escrow Agent for holding the Earnest Money as well as any escrow cancellation fees or charges and any fees or charges due to the Title Company for preparation and/or cancellation of the Title Commitment.

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10.5Damages.  Notwithstanding anything to the contrary contained in this Agreement, in no event whatsoever shall Purchaser or Seller have the right to seek or recover money damages from the other except for actual pecuniary loss not to exceed Two Hundred Fifty Thousand and No/100 Dollars ($250,000) in the aggregate, as a result of any breach or default by Seller or Purchaser under any of the terms of this Agreement. Each party specifically and without limitation hereby waives and relinquishes any right to seek or recover from Seller, and specifically acknowledges and agrees that in no event shall such other party be liable, any damages in excess of Two Hundred Fifty Thousand and No/100 Dollars ($250,000) nor for any punitive, speculative or consequential damages.

ARTICLE 11

DISCLAIMERS, RELEASE AND INDEMNITY

11.1Disclaimers By Seller.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN A DOCUMENT EXECUTED IN CONNECTION WITH THE CLOSING, IT IS UNDERSTOOD AND AGREED THAT SELLER HAS NOT AT ANY TIME MADE AND IS NOT NOW MAKING, AND IT SPECIFICALLY DISCLAIMS, ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR REPRESENTATIONS AS TO (I) MATTERS OF TITLE, (II) ENVIRONMENTAL MATTERS RELATING TO THE PROPERTY OR ANY PORTION THEREOF, INCLUDING, WITHOUT LIMITATION, THE PRESENCE OF HAZARDOUS MATERIALS IN, ON, UNDER OR IN THE VICINITY OF THE PROPERTY, (III) GEOLOGICAL CONDITIONS, INCLUDING, WITHOUT LIMITATION, SUBSIDENCE, SUBSURFACE CONDITIONS, WATER TABLE, UNDERGROUND WATER RESERVOIRS, LIMITATIONS REGARDING THE WITHDRAWAL OF WATER, AND GEOLOGIC FAULTS AND THE RESULTING DAMAGE OF PAST AND/OR FUTURE FAULTING, (IV) WHETHER, AND TO THE EXTENT TO WHICH THE PROPERTY OR ANY PORTION THEREOF IS AFFECTED BY ANY STREAM (SURFACE OR UNDERGROUND), BODY OF WATER, WETLANDS, FLOOD PRONE AREA, FLOOD PLAIN, FLOODWAY OR SPECIAL FLOOD HAZARD, (V) DRAINAGE, (VI) SOIL CONDITIONS, INCLUDING THE EXISTENCE OF INSTABILITY, PAST SOIL REPAIRS, SOIL ADDITIONS OR CONDITIONS OF SOIL FILL, OR SUSCEPTIBILITY TO LANDSLIDES, OR THE SUFFICIENCY OF ANY UNDERSHORING, (VII) THE PRESENCE OF ENDANGERED SPECIES OR ANY ENVIRONMENTALLY SENSITIVE OR PROTECTED AREAS, (VIII) ZONING OR BUILDING ENTITLEMENTS TO WHICH THE PROPERTY OR ANY PORTION THEREOF MAY BE SUBJECT, (IX) THE AVAILABILITY OF ANY UTILITIES TO THE PROPERTY OR ANY PORTION THEREOF INCLUDING, WITHOUT LIMITATION, WATER, SEWAGE, GAS AND ELECTRIC, (X) USAGES OF ADJOINING PROPERTY, (XI) ACCESS TO THE PROPERTY OR ANY PORTION THEREOF, (XII) THE VALUE, COMPLIANCE WITH THE PLANS AND

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SPECIFICATIONS, SIZE, LOCATION, AGE, USE, DESIGN, QUALITY, DESCRIPTION, SUITABILITY, STRUCTURAL INTEGRITY, OPERATION, TITLE TO, OR PHYSICAL OR FINANCIAL CONDITION OF THE PROPERTY OR ANY PORTION THEREOF, OR ANY INCOME, EXPENSES, CHARGES, LIENS, ENCUMBRANCES, RIGHTS OR CLAIMS ON OR AFFECTING OR PERTAINING TO THE PROPERTY OR ANY PART THEREOF, (XIII) THE CONDITION OR USE OF THE PROPERTY OR COMPLIANCE OF THE PROPERTY WITH ANY OR ALL PAST, PRESENT OR FUTURE FEDERAL, STATE OR LOCAL ORDINANCES, RULES, REGULATIONS OR LAWS, BUILDING, FIRE OR ZONING ORDINANCES, CODES OR OTHER SIMILAR LAWS, (XIV) THE EXISTENCE OR NON-EXISTENCE OF UNDERGROUND STORAGE TANKS, SURFACE IMPOUNDMENTS, OR LANDFILLS, (XV) THE MERCHANTABILITY OF THE PROPERTY OR FITNESS OF THE PROPERTY FOR ANY PARTICULAR PURPOSE, (XVI) THE TRUTH, ACCURACY OR COMPLETENESS OF THE PROPERTY DOCUMENTS, (XVII) TAX CONSEQUENCES, OR (XVIII) ANY OTHER MATTER OR THING WITH RESPECT TO THE PROPERTY.

11.2Sale “As Is, Where Is.”  PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING, SELLER SHALL SELL AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY “AS IS, WHERE IS, WITH ALL FAULTS,” EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT AND ANY DOCUMENT EXECUTED BY SELLER AND DELIVERED TO PURCHASER AT CLOSING. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PURCHASER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER HAS NOT MADE AND IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTEES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION, PROPERTY INFORMATION PACKAGES DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY SELLER OR ANY REAL ESTATE BROKER, AGENT OR THIRD PARTY REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATE AND THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTY AND SHALL MAKE AN INDEPENDENT VERIFICATION OF THE ACCURACY OF ANY DOCUMENTS AND INFORMATION PROVIDED BY SELLER. PURCHASER WILL CONDUCT SUCH INSPECTIONS AND INVESTIGATIONS OF THE PROPERTY AS PURCHASER DEEMS NECESSARY, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AND SHALL RELY UPON SAME. BY FAILING TO TERMINATE THIS AGREEMENT PRIOR TO THE EXPIRATION OF THE INSPECTION PERIOD, PURCHASER ACKNOWLEDGES THAT SELLER HAS AFFORDED PURCHASER A FULL

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OPPORTUNITY TO CONDUCT SUCH INVESTIGATIONS OF THE PROPERTY AS PURCHASER DEEMED NECESSARY TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR NON-EXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS MATERIALS ON OR DISCHARGED FROM THE PROPERTY, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO, OTHER THAN SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. UPON CLOSING, PURCHASER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL OR CONSTRUCTION DEFECTS OR ADVERSE ENVIRONMENTAL, HEALTH OR SAFETY CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONS.

11.3Indemnity.  Each of Purchaser and Seller agrees to indemnify and hold the other party harmless of and from any and all liabilities, claims, demands, and expenses of any kind or nature which arise or accrue before or after Closing, based upon facts which occur before Closing (as to Seller), or after Closing (as to Purchaser), and which are in any way related to the ownership, maintenance, or operation of the Property by Seller or Purchaser and its successors and assigns.

11.4Survival.  THE TERMS AND CONDITIONS OF THIS ARTICLE 11 SHALL EXPRESSLY SURVIVE THE CLOSING, AND SHALL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS OR THE DEED.

PURCHASER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH ABOVE.

ARTICLE 12

MASTER LEASE ESCROW AGREEMENT

The parties recognize that the lease of the tenant Blockbuster Video expires in October, 2005, and that Blockbuster Video may not renew its lease. Seller and Purchaser agree that on the Closing Date, they will enter into a Master Lease Escrow Agreement substantially according to the form attached as Exhibit H. The amount to be deposited in the escrow account under the Master Lease Escrow Agreement shall be deposited into such account on the Closing Date by Seller. The amount of the escrow account and the conditions for disbursement thereof will be as set forth in the Master Lease Escrow Agreement.

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ARTICLE 13

MISCELLANEOUS

13.1Parties Bound; Assignment.  This Agreement, and the terms, covenants, and conditions herein contained, shall inure to the benefit of and be binding upon the heirs, personal representatives, successors, and assigns of each of the parties hereto. Purchaser may assign its rights under this Agreement upon the following conditions: (i) the assignee of Purchaser must be an affiliate of Purchaser or an entity controlling, controlled by, or under common control with Purchaser, or to a real estate investment trust of which Purchaser or Purchaser’s affiliates are a sponsor (ii) all of the Earnest Money must have been delivered in accordance herewith, (iii)  assignee of Purchaser shall assume all obligations of Purchaser hereunder, but Purchaser shall remain primarily liable for the performance of Purchaser’s obligations, and (iv) a copy of the fully executed written assignment and assumption agreement shall be delivered to Seller at least five (5) days prior to Closing.

13.2Headings.  The  article,  section,  subsection,  paragraph  and/or other headings of this Agreement are for convenience only and in no way limit or enlarge the scope or meaning of the language hereof.

13.3Invalidity and Waiver.  If any portion of this Agreement is held invalid or inoperative, then so far as is reasonable and possible the remainder of this Agreement shall be deemed valid and operative, and, to the greatest extent legally possible, effect shall be given to the intent manifested by the portion held invalid or inoperative.   The failure by either party to enforce against the other any term or provision of this Agreement shall not be deemed to be a waiver of such party’s right to enforce against the other party the same or any other such term or provision in the future.

13.4Governing Law.  This Agreement shall, in all respects, be governed, construed, applied, and enforced in accordance with the law of the state in which the Real Property is located.

13.5Survival.  The provisions of this Agreement that contemplate performance after the Closing and the obligations of the parties not fully performed at the Closing shall survive the Closing and shall not be deemed to be merged into or waived by the instruments of Closing.

13.6Entirety  and  Amendments.  This Agreement  embodies  the  entire agreement between the parties and supersedes all prior agreements and understandings relating to the Property.  This Agreement may be amended or supplemented only by an instrument in writing executed by the party against whom enforcement is sought.

13.7Time.Time is of the essence in the performance of this Agreement.

13.8Confidentiality.  Purchaser shall  make no public  announcement or disclosure of any information related to this Agreement to outside brokers or third parties, before the Closing, without the prior written specific consent of Seller; provided,

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however, that Purchaser may, subject to the provisions of Section 4.7, make disclosure of this Agreement to its Permitted Outside Parties as necessary to perform its obligations hereunder and as may be required under laws or regulations applicable to Purchaser.

13.9Notices.  All notices required or permitted hereunder shall be in writing and shall be served on the parties at the addresses set forth in Section 1.3.   Any such notices shall, unless otherwise provided herein, be given or served (i) by depositing the same in the United States mail, postage paid, certified and addressed to the party to be notified, with return receipt requested, (ii) by overnight delivery using a nationally recognized overnight courier, (iii) by personal delivery, or (iv) by facsimile, evidenced by confirmed receipt.   Notice deposited in the mail in the manner hereinabove described shall be effective on the third (3rd) business day after such deposit.   Notice given by facsimile shall be effective upon transmission if evidenced by a confirmed receipt. Notice given in any other manner shall be effective only if and when received by the party to be notified between the hours of 8:00 a.m. and 5:00 p.m. of any business day with delivery made after such hours to be deemed received the following business day. A party’s address may be changed by written notice to the other party; provided, however, that no notice of a change of address shall be effective until actual receipt of such notice. Copies of notices are for informational purposes only, and a failure to give or receive copies of any notice shall not be deemed a failure to give notice. Notices given by counsel to the Purchaser shall be deemed given by Purchaser and notices given by counsel to the Seller shall be deemed given by Seller.

13.10Construction.  The parties acknowledge that the parties and their counsel have reviewed and revised this Agreement and agree that the normal rule of construction – to the effect that any ambiguities are to be resolved against the drafting party – shall not be employed in the interpretation of this Agreement or any exhibits or amendments hereto.

13.11Calculation of Time Periods.  Unless otherwise specified, in computing any period of time described herein, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is a Saturday, Sunday or legal holiday for national banks in the location where the Property is located, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday, or legal holiday.   The last day of any period of time described herein shall be deemed to end at 5:00 p.m. local time in the state in which the Real Property is located.

13.12Execution in Counterparts.  This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of such counterparts shall constitute one Agreement.   To facilitate execution of this Agreement, the parties may execute and exchange by telephone facsimile counterparts of the signature pages, provided that executed originals thereof are forwarded to the other party on the same day by any of the delivery methods set forth in Section 13.9 other than facsimile.

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13.13No Recordation.  Without the prior written consent of Seller, there shall be no recordation of either this Agreement or any memorandum hereof, or any affidavit pertaining hereto, and any such recordation of this Agreement or memorandum or affidavit by Purchaser without the prior written consent of Seller shall constitute a default hereunder by Purchaser, whereupon Seller shall have the remedies  set  forth in Section 10.1 hereof.

13.14Further Assurances.  In addition to the acts and deeds recited herein and contemplated to be performed, executed and/or delivered by either party at Closing, each party agrees to perform, execute and deliver, but without any obligation to incur any additional liability or expense, on or after the Closing any further deliveries and assurances as may be reasonably necessary to consummate the transactions contemplated hereby or to further perfect the conveyance, transfer and assignment of the Property to Purchaser.

13.15Discharge of Obligations.  The acceptance of the Deed by Purchaser shall be deemed to be a full performance and discharge of every representation and warranty made by Seller herein and every agreement and obligation on the part of Seller to be performed pursuant to the provisions of this Agreement, except those which are herein specifically stated to survive Closing.

13.16No Third Party Beneficiary.  The provisions of this Agreement and of the documents to be executed and delivered at Closing are and will be for the benefit of Seller and Purchaser only and are not for the benefit of any third party, and accordingly, no third party shall have the right to enforce the provisions of this Agreement or of the documents to be executed and delivered at Closing, except that a tenant of the Property may enforce Purchaser’s indemnity obligation under Section 4.10 hereof.

13.17Cooperation with Purchaser’s Audit.  Seller agrees, at Purchaser’s expense, to cooperate fully with Purchaser and Purchaser’s representatives to facilitate Purchaser’s evaluations and reports, including at least a one (1) year audit of the books and records of the Property that qualify, comply with and can be used in a public offering. Seller shall execute and deliver to Purchaser an audit representation letter in the form attached as Exhibit I.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written below.

SELLER:

Sun  Life  Assurance  Company  of

Canada, a Canadian corporation

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Date executed by Purchaser:	By:				/s/ Thomas V. Pedulla
	Name:						THOMAS V. PEDULLA
9.10.04		Title:				VICE PRESIDENT
			By:					/s/ William M. Barres
			Name:							WILLIAM M. BARRES
			Title:						SENIOR INVESTMENT OFFICER
	PURCHASER:
	Inland Real Estate Acquisitions, Inc., an Illinois Corporation
Date executed by Seller:	By:			/s/ Lou Quilici
	Name:						Lou Quilici
September 10, 2004		Title:				SR VP

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EX-10.436

Exhibit 10.436

ASSIGNMENT OF REAL ESTATE PURCHASE CONTRACT

For good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned, INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation, (“Assignor”) hereby assigns to INLAND WESTERN PLACENTIA, L.L.C., a Delaware limited liability company, (“Assignee”) all of its right, title and interest in that certain Agreement of Purchase and Sale by and between INLAND REAL ESTATE ACQUISITIONS, INC., as Purchaser, and DONAHUE SCHRIBER REALTY GROUP, L.P., a Delaware limited partnership, as Seller, dated October 11, 2004, as amended, for purchase and sale of certain real property commonly known as Placentia Town Center, 104-198 Yorba Linda Blvd., Placentia, California (the “Property”).

By execution hereof by Assignee, Assignee hereby accepts the assignment and assumes all of the obligations of Assignor under the Purchase Agreement.

This Assignment is effective as of the 29th day of November, 2004.

ASSIGNOR:	INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
	By:	/s/ G. Joseph Cosenza
		G. Joseph Cosenza
	Its:	President
ASSIGNEE:	INLAND WESTERN PLACENTIA, L.L.C., a
	Delaware limited liability company By: Inland Western Retail Real Estate Trust, Inc., its sole member
	By:	/s/ [ILLEGIBLE]
	Its: Assistant Secretary

EX-10.437

Exhibit 10.437

REINSTATEMENT OF AND AMENDMENT TO PURCHASE AND

SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS

THIS REINSTATEMENT OF AND AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (this “Amendment”) is entered into as of November 4, 2004 by and between Donahue Schriber Realty Group, L.P., a Delaware limited partnership (“Seller”), and Inland Real Estate Acquisitions, Inc., an Illinois corporation (“Buyer”).

RECITALS:

A.Seller and Buyer entered into that certain Purchase and Sale Agreement and Joint Escrow Instructions dated as of October 11, 2004 (as previously amended in writing, the “Agreement”; capitalized terms used but not defined in this Amendment shall have the meanings given to them in the Agreement) with respect to the property known as Placentia Village Center located in Placentia, California. Buyer terminated the Agreement in accordance with its terms on November 3, 2004.

B.Seller and Buyer now desire to reinstate the Agreement, to acknowledge certain matters with respect to the Agreement, and to amend the Agreement, as set forth herein.

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, Buyer and Seller agree as follows with respect to the Agreement:

1.Reinstatement; Waiver of Contingencies; Reduction of Purchase Price; Closing Date. The Agreement is hereby reinstated in accordance with its terms, as amended by this Amendment. November 3, 2004 is acknowledged to have been the Decision Date, and Buyer’s execution and delivery of this Amendment (effective upon receipt of a faxed counterpart executed by Seller) constitutes Buyer’s waiver of all rights to terminate the Agreement on or before the Decision Date. Due to the amount of scheduled rent under the November 1, 2004 lease (the “Callender Lease”) between Landlord and Marie Callender Pie Shops Inc. lease (the “Callender”), the Purchase Price is hereby reduced by the sum of $35,000.00 and accordingly is the sum of Twenty Four Million Eight Hundred Sixty Five Thousand Dollars ($24,865,000.00). Notwithstanding any other provision of the Agreement to the contrary, if Callender does not execute and deliver an extension of the Callender Lease prior to Closing, in substantially the form of the extension previously delivered to Buyer, Buyer shall have the right to terminate the Agreement and have the Deposit returned to it. The Closing Date shall be November 10, 2004; provided, however, if Buyer has the right to terminate the Agreement on November 10, 2004 pursuant to the previous sentence or in accordance with Section 4.7 of the Agreement, Seller shall have the right to extend the Closing Date until November 16, 2004 to enable Seller to attempt to obtain more Estoppols (and a CC&R Estoppel, if applicable, and the executed Callender Lease extension, if applicable).

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2.Escrow for Callender. Pursuant to Exhibit C of the Callender Lease, Seller is to provide Callender with a tenant improvement allowance in the amount of up to $100,000. At Closing, Seller shall deposit into escrow, with Escrow Holder, the sum of $100,000 (the “Callender Funds”). The Callendar Funds (or the applicable portion thereof) shall be released to Buyer (for immediate release to Callender) upon Buyer’s delivery of Buyer’s written certification (“Buyer’s Callender Certification”) to Seller and Escrow Holder that Callender is entitled to the Callender Funds (or the specified portion thereof) pursuant to Exhibit C of the Callender Lease.  Once Callender has obtained all of the Callender Funds to which it is entitled under Exhibit C to the Callender Lease, any remaining balance of the Callender Funds still held by Escrow Holder shall be released to Seller.

3.Escrow for Huntington. Seller has entered into a lease (the “Huntington Lease”) dated September 7, 2004 with S&E Learning, Inc. (“Huntington”) covering a portion of the Property as more particularly described therein (the “Huntington Premises”). Huntington has not yet finished its tenant improvements as required by the Huntington Lease nor has the “Commencement Date” (as defined in the Huntington Lease) occurred. Pursuant to the Huntington Lease, Seller is obligated to pay $25,000 to Huntington for tenant improvements (the “Huntington TIs”), and $16,520 to the broker owed the same (the “Broker”) for leasing commissions (the “Huntington Commissions”). Pursuant to the Huntington Lease, on the Commencement Date, Huntington is obligated to pay to the landlord thereunder the sum of $5,451.58 per month for base rent (for the 1^st 12 months, to be increased by 3% for the 2^nd12 months and $1,355.00 per month for estimated operating expenses (the sum of the foregoing amounts, being $6,806.58, not taking into consideration the 3% increase, is herein called the “Monthly Huntington Rent”). At Closing, Seller shall deposit into escrow, with Escrow Holder, the sum of $207,328.29 (the “Huntington Funds”) with respect to the Huntington Lease (said sum equals the product of the Monthly Huntington Rent times twenty four (24), plus the Huntington TIs and plus the Huntington Commission). The Huntington TIs (or the applicable portion thereof) shall be released to Buyer (for immediate release to Huntington) upon Buyer’s delivery of Buyer’s written certification (“Buyer’s Huntington Certification”) to Seller and Escrow Holder that Huntington is entitled to the Huntington TIs (or the specified portion thereof) pursuant to Article VII of Exhibit B to the Huntington’s Lease. The Huntington Commission shall be disbursed by Escrow Holder to Broker upon the Commencement Date. Commencing the Closing Date, and on the eighth (8^th) day of each month thereafter until the Commencement Date, the Huntington Monthly Rent (or a prorated portion thereof for the month of Closing and the month the Commencement Date occurs) shall be promptly disbursed to Buyer from the Huntington Funds upon Buyer’s delivery of written certification to Escrow Holder and Seller that Huntington has not yet paid the Huntington Monthly Rent then due. In the event that, after Buyer shall have been paid the Huntington Monthly Rent (or any portion thereof) out of the Huntington Funds for any particular month, Buyer should receive payment of all or any portion of the Huntington Monthly Rent from Huntington for such month, Buyer shall immediately remit the same to Seller. Upon the Commencement Date, the Huntington Funds still being held by Escrow Holder and not previously disbursed by Escrow Holder pursuant to this Section 3 shall be promptly disbursed to Seller. Buyer agrees to notify Seller in writing promptly upon the Commencement Date.

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4.Baskin Robbins and Beauty Avenue. Seller agrees to use diligent good faith efforts to extend the existing Baskin Robbins lease prior to Closing. Seller further agrees that Seller shall not, for a period of 2 years after the Closing, lease space in Seller’s adjacent shopping center to the tenant at the Property doing business as “Beauty Avenue”.

5.Agreement in Effect. The terms and provisions of this Amendment shall control over any inconsistent terms and provisions of the Agreement. Except as amended hereby, the parties acknowledge and agree that the Agreement is in full force and effect in accordance with its terms. If required by Escrow Holder, Buyer and Seller shall enter into a separate escrow agreement with
Escrow Holder to implement the post-Closing elements of this Amendment, provided such escrow agreement is not in conflict with this Amendment. This Amendment may be executed in counterparts, each of which shall be an original and both of which, together, shall constitute one and the same instrument.

IN WITNESS WHEREOF, the parties have duly executed this Amendment as of the day and year first above written.

SELLER:	Donahue Schriber Realty Group, L.P., a Delaware limited partnership
	By: Donahue Schriber Realty Group, Inc., a Maryland corporation, its general partner
	By:		/s/ Patrick S. Donahue
	Name:					PATRICK S. DONAHUE
	Title:				PRESIDENT
	By:	/s/ Dirk Van Wyk
	Name:						Dirk Van Wyk
	Title:			Vice President
BUYER:	Inland Real Estate Acquisitions, Inc., an Illinois corporation
	By:	/s/ G. Joseph Cosenza
	Name:					G. JOSEPH COSENZA
	Title:				PRESIDENT

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PURCHASE AND SALE AGREEMENT

AND JOINT ESCROW INSTRUCTIONS

THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (this “Agreement”) is entered into as of October 11,2004 by and between Donahue Schriber Realty Group, L.P., a Delaware limited partnership (“Seller”), and Inland Real Estate Acquisitions, Inc., an Illinois corporation (“Buyer”).

RECITALS:

A.Seller is the owner of certain real property improved as a retail center known as Placentia Village Center located in Placentia, California.

B.Buyer desires to purchase that property, and Seller desires to sell that property, on the terms and conditions contained in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement, Buyer and Seller agree as follows:

1.PURCHASE AND SALE

1.1Agreement to Buy and Sell. Subject to all of the terms and conditions of this Agreement, Seller hereby agrees to sell and convey to Buyer and Buyer hereby agrees to acquire and purchase from Seller the following (collectively, the “Property”):

1.1.1        All of Seller’s right, title and interest in and to that certain parcel of real property described on Exhibit “A” attached hereto, together with all of Seller’s rights, privileges and easements appurtenant thereto (collectively, the “Land”);

1.1.1All of Seller’s right, title and interest in and to all improvements, structures, equipment and fixtures located on or under the Land (collectively, the “Improvements”) (the Land and Improvements are herein collectively called the “Project”);

1.1.2All of Seller’s right, title and interest in and to all tangible personal property, if any, located on or affixed to the Project and used in connection with the ownership, operation, use or maintenance of the Project, and all intangible property, if any, owned or held by Seller that pertains to the ownership, maintenance, use or operation of the Project, including but not limited to the Project’s name (collectively, the “Personal Property”);

1.1.3All of Seller’s interest in any leases or other agreements demising space in or providing for the use or occupancy of any portion of the Project (collectively, the “Leases”); and

1.1.4All of Seller’s right, title and interest in and to any and all service contracts, maintenance agreements, warranties, guaranties, permits and licenses and other contracts and agreements relating to the Property, if any, which continue in full force and effect beyond the

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“Closing” (as defined below) (collectively, the “Contracts”), to the extent the Contracts are assignable. The Property does not include cash, any insurance claims (except to the extent Section 4.5 is applicable), or any other claims against third parties.

1.2Purchase Price. The purchase price to be paid by Buyer to Seller for the Property shall be the sum of Twenty Four Million Nine Hundred Thousand Dollars ($24,900,000) (the “Purchase Price”).

1.3Payment of Purchase Price.   The Purchase Price shall be payable as follows:

1.3.1Within two (2) business days after the “Effective Date” (as defined below), Buyer shall deliver to Stewart Title Insurance Company (“Escrow Holder” or the “Title Company”), in immediately available funds, the sum of Five Hundred Thousand Dollars ($500,000) (said sum, together with any interest earned thereon while held by Escrow Holder, is herein called the “Deposit”).    Escrow Holder shall deposit the Deposit into an interest-bearing account satisfactory to Buyer pending disbursement in accordance with the terms of this Agreement. Unless Buyer terminates this Agreement by delivery of written notice of termination (the “Termination Notice”) to Seller and Escrow Holder on or before October 27, 2004 (the “Decision Date”), the Deposit shall be non-refundable after the Decision Date, except in the event of Seller’s “Default” (as defined below) that occurs or continues after the Decision Date and except as otherwise expressly herein provided, and shall be applied to the Purchase Price at Closing. As used herein, Seller’s “Default” shall not be deemed to have occurred unless Seller shall be in default hereunder and shall not have cured such default within five (5) days after written notice from Buyer.

1.3.2Not later than 10:00 am Pacific time on the “Closing Date” (as defined below), Buyer shall deposit into Escrow, by wire transfer of federal funds, the balance of the Purchase Price, subject to adjustment by reason of any applicable prorations and the allocation of closing costs described below.

2.OPENING OF ESCROW

2.1Escrow; Escrow Holder. Within two (2) business days after Seller shall have executed this Agreement, Seller shall open an escrow (the “Escrow”) with Escrow Holder at 505 N. Brand Blvd., Ste. 800, Glendale, CA 91203, Attn: Josette Loaiza, by delivering an executed copy of this Agreement to Escrow Holder. The date the Escrow is opened pursuant to the preceding sentence is herein called the “Effective Date”. Escrow Holder shall promptly advise Buyer and Seller of the Effective Date.

2.2Escrow Instructions. The terms and conditions set forth in this Agreement shall constitute both an agreement between Seller and Buyer and escrow instructions for Escrow Holder. Seller and Buyer shall promptly execute and deliver to Escrow Holder any separate or additional escrow instructions requested by Escrow Holder that are consistent with the terms of this Agreement. Any separate or additional instructions shall not modify or amend the provisions of this Agreement unless otherwise expressly set forth by mutual consent of Buyer and Seller. As used in this Agreement, “Closing” shall mean the recordation (or the commitment of the Title Company to do so to the

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satisfaction of Buyer) of the “Deed” (as defined below) in the Official Records of Orange County, California and the payment of the Purchase Price to Seller.

2.3Closing Date. Escrow shall close on or before November 1, 2004 (the “Closing Date”).

3.ACTIONS PENDING CLOSING

3.1Buyer’s Review of Title.

3.1.1Prior to execution of this Agreement Seller has delivered to Buyer a copy of a current preliminary title report or commitment for title insurance (as well as a copy of each exception referenced therein) showing the condition of title to the Property (the “Title Report”), and a survey of the Property (the “Survey”). Seller shall cooperate with Buyer in connection with obtaining an update of the Survey, but in no event shall Seller be in breach or default by reason of the contents, or timing of delivery of the update, of the Survey.

3.1.2Buyer shall have until October 25, 2004 (the “Title Date”) within which to deliver to Seller written notice of Buyer’s disapproval of title as shown on the Title Report and Survey (those title matters identified on the Title Report and Survey and timely disapproved in writing by Buyer are hereafter called the “Disapproved Exceptions”). Buyer’s failure to deliver such notice to Seller on or before the Title Date shall constitute Buyer’s approval of the condition of title as shown on the Title Report and Survey.

3.1.3Seller shall notify Buyer in writing within two (2) business days after Seller’s receipt of Buyer’s notice of Disapproved Exceptions that: (a) Seller will remove such Disapproved Exceptions from title as of or before Closing; or (b) Seller will not remove any or certain specified Disapproved Exceptions from title. Seller’s failure to address any Disapproved Exceptions in any notice, or failure to give a notice as to any Disapproved Exceptions, shall constitute Seller’s statement that it will not remove such Disapproved Exceptions from title.

3.1.4If Seller does not provide Buyer with written notice that it shall remove all Disapproved Exceptions from title, Buyer shall have the right to terminate this Agreement by delivery of written notice of termination in accordance with Section 3.3 on or before the Decision Date, as Buyer’s sole and exclusive remedy. Buyer’s failure to provide such notice of termination on or before the Decision Date shall constitute Buyer’s waiver of its disapproval of the Disapproved Exceptions. In the case of Buyer’s waiver (or deemed waiver) of Disapproved Exceptions, Seller shall have no obligation to remove or otherwise address such Disapproved Exceptions from title, and such waived Disapproved Exceptions shall be deemed approved. If Buyer elects to terminate this Agreement pursuant to this Section 3.1.4, the provisions of Section 3.3 shall apply. Except for the Disapproved Exceptions Seller removes or covenants to remove, the exceptions to title shown by the Title Report and Survey and any encumbrance arising from the acts of Buyer are called the “Permitted Exceptions” in this Agreement. In no event shall any mortgage or judgment liens be Permitted Exceptions, and in no event shall any exceptions created by Seller after the Effective Date that materially adversely affect title to the Property be Permitted Exceptions, and Seller shall cause the same to be removed at or before Closing. Should a supplemental Title Report be issued by the Title Company after the date of the original Title Report disclosing additional title exceptions that

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adversely affect the condition of title to the Property, then the Title Date shall, if applicable, be extended to the date that is three (3) business days after Buyer’s receipt of the supplemental Title Report, and if necessary, the Closing Date shall be automatically extended to the extent necessary to accommodate the approval procedures of Section 3.1.3 and this Section 3.1.4.

3.2Buyer’s Review of the Property; Agreements. Seller has provided Buyer with copies of (or make available to Buyer for review at the Project) the items reflected on Schedule 3.1 attached hereto (collectively, the “Due Diligence Documents”). Notwithstanding the foregoing or any other provision hereof to the contrary, (i) Seller’s responsibility to provide Due Diligence Documents shall be limited to those Due Diligence Documents in Seller’s (or its property manager’s) possession (without limiting the foregoing, those items that are marked “not in our possession” on Schedule 3.1 shall not be provided), (ii) Seller shall not be required to generate reports or analyses not typically prepared (or reflecting information not typically reflected) in Seller’s ordinary course of business, and (iii) the Due Diligence Documents are provided as an accommodation to Buyer and, except for any representations and warranties expressly set forth in this Agreement, Seller expressly disclaims any and all representations and warranties regarding the same. On or before the Decision Date, Buyer shall have reviewed the foregoing and prepared, obtained, reviewed (or shall have chosen not to have prepared, obtained or reviewed) and approved, among other things, all other reports of investigations of the Property, including, such soil, environmental, geological and engineering tests and reports, and other inspections of the Property as Buyer shall deem necessary in order to determine whether the Property is suitable for Buyer’s intended use, as well as investigated (or chosen not to have investigated) all zoning requirements, federal, state and local laws, ordinances, rules, regulations, permits, licenses, approvals and orders applicable to the Property. Pursuant to and subject to the requirements of Section 3.5 of this Agreement, Buyer may enter onto the Property for the purpose of conducting its inspection (the “Inspection”) of the Property; provided, however, without first obtaining Seller’s prior written consent, which consent will not be unreasonably withheld, Buyer shall only conduct a visual inspection, with no right to conduct any physical testing, boring, sampling or removal (collectively “Physical Testing”) of any portion of the Property. If Buyer wishes to conduct any Physical Testing of the Property, Buyer shall submit a work plan to Seller prior to the Decision Date for Seller’s prior written approval, which work plan Seller may modify, limit or disapprove in its reasonable discretion. If, on the basis of the review and the Inspection described in this Section 3.2, or if for any other reason or no reason, Buyer determines that the Property is not suitable for Buyer’s intended use, then Buyer may terminate this Agreement by delivering the Termination Notice to Seller and Escrow Holder on or before the Decision Date. Buyer’s failure to deliver the Termination Notice to Seller and Escrow Holder on or before the Decision Date shall constitute Buyer’s approval of the aforementioned items and of the condition of the Property.

3.3Buyer’s Termination. If Buyer elects to terminate this Agreement in accordance with Sections 3.1.4 or 3.2, Buyer shall deliver the Termination Notice to Seller and Escrow Holder on or before the Decision Date. If Buyer elects to terminate this Agreement in accordance with Sections 4.4 or 4.5, then on or before the dates specified therein, Buyer shall deliver a Termination Notice to Seller and Escrow Holder that Buyer elects to terminate this Agreement pursuant to said Sections. Buyer’s failure to timely deliver such termination notice pursuant to said Sections of this Agreement shall constitute Buyer’s waiver of Buyer’s right to terminate this Agreement pursuant to said Sections. If Buyer timely elects to terminate this Agreement pursuant to Sections 3.1.4, 3.2, 4.1.7,

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4.3, 4.4, 4.5 or 4.7, Escrow Holder shall deliver the Deposit to Buyer, less fifty percent (50%) of any Escrow termination fee, and Escrow Holder shall return to the depositor thereof any other materials previously placed in Escrow and remaining in Escrow; and neither party shall thereafter have any further rights or obligations under this Agreement unless expressly provided otherwise herein.

3.4No Processing. Without Seller’s prior written consent, until the Closing, Buyer shall not make any application to any governmental agency for any permit, approval, license or other entitlement for the Property or the use or development thereof.

3.5Access to Property.

3.5.1Subject to the rights of existing tenants of the Property (“Tenants”), whom Buyer hereby agrees not to interview or question without having provided Seller and Seller’s Broker (as defined below) with at least 24 hours prior written notice of its intention to do so during such interview, Seller hereby grants to Buyer and Buyer’s representatives, agents, employees and contractors (collectively, “Buyer’s Agents”) a nonexclusive license to enter onto the Property solely for the purpose of conducting Buyer’s Inspection. Any Inspection work shall be at the sole cost and expense of Buyer. The license created under this Section 3.5.1 shall expire on termination of this Agreement. At least forty-eight (48) hours prior to any entry and Inspection, Buyer shall provide Seller with sufficient evidence to show that Buyer and Buyer’s Agents, who are to enter upon the Property, are adequately covered by policies of insurance issued by a carrier reasonably acceptable to Seller insuring Buyer and Seller against any and all liability arising out of Buyer’s or Buyer’s Agents’ entry upon and Inspection of the Property, including without limitation any loss or damage to the Property, with coverage in the amount of not less than $1,000,000 per occurrence.

3.5.2Buyer agrees to keep the Property free from any liens arising out of any work performed, materials furnished or obligations incurred by or on behalf of Buyer or Buyer’s Agents with respect to any Inspection or Physical Testing of the Property. If any such lien shall at any time be filed, Buyer shall cause the same to be discharged of record within twenty (20) days thereafter by satisfying the same or, if Buyer in its discretion and in good faith determines that such lien should be contested, by recording a bond. Failure by Buyer to discharge such lien shall be a material breach of this Agreement and Seller may terminate this Agreement by written notice thereof to Buyer.

3.5.3Buyer shall, at its sole cost and expense, comply with all applicable federal, state and local laws, statutes, rules, regulations, ordinances, or policies in conducting the Inspection and the Physical Testing.

3.5.4Buyer hereby agrees to hold harmless, protect, defend and indemnify, and hereby releases, Seller and its trustees, officers, directors, employees, contractors, agents, subsidiaries and affiliates, and its and their respective successors and assigns (collectively, the “Indemnitees”) and the Property from and against any and all claims, demands, causes of action, losses, liabilities, liens, encumbrances, costs or expenses (including without limitation reasonable attorneys’ fees and litigation costs) arising out of, connected with or incidental to: (a) any injuries to persons (including death) or property (real or personal), or (b) any mechanics’, workers’ or other liens on the Property, by reason of or relating to the work or activities conducted on the Property by Buyer or Buyer’s

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Agents. The provisions of this Section 3.5.4 shall survive any termination of this Agreement and shall not be limited in any way by any other terms of this Agreement.

3.5.5In no event shall Buyer or Buyer’s Agents have the right to place any materials or equipment on the Property (including, without limitation, signs or other advertising material) until after the Closing has occurred.

3.5.6Buyer shall, at its sole cost and expense, clean up and repair the Property, in whatever manner necessary, after Buyer’s or Buyer’s Agents’ entry thereon so that the Property shall be returned to the same condition that existed prior to Buyer’s or Buyer’s Agents’ entry thereon.

4.ADDITIONAL AGREEMENTS OF THE PARTIES

4.1Seller’s Representations and Warranties. Seller hereby represents, warrants and covenants to and agrees with Buyer as follows:

4.1.1Seller has the legal right, power and authority to own the Property and to enter into and consummate the transactions contemplated by this Agreement, and this Agreement and all instruments, documents and agreements to be executed by Seller in connection herewith are, or when delivered shall be, duly authorized, executed and delivered by Seller and are, or when delivered shall be, valid, binding and enforceable obligations of Seller.

4.1.2There are no pending or, to Seller’s knowledge, threatened legal proceedings, administrative actions, or pending governmental investigation of any kind or character adversely affecting the Project or Seller’s interest therein.

4.1.3To Seller’s knowledge and except as may be disclosed in the Due Diligence Documents, Seller has received no written notice from any government authority of any violation of any statute, ordinance, code or regulation with respect to the Project, which violation has not been corrected.

4.1.4To Seller’s knowledge and except as may be disclosed in the Due Diligence Documents, Seller has received no written notice that the Project is in violation of any federal, state and local laws, ordinances and regulations applicable to the Project with respect to “Hazardous Materials” (as defined below), nor to Seller’s knowledge have any Hazardous Materials been or are currently being produced, disposed of, used or stored on or under the Property in violation of applicable law.

4.1.5Seller is not required to obtain any consents or approvals to consummate the transactions contemplated in this Agreement.

4.1.6To Seller’s knowledge, the copies of the Leases and Contracts delivered to Buyer (or made available to Buyer) for its review are true and correct copies of the Leases and Contracts and are all of the Leases and Contracts affecting the Property. To Seller’s knowledge all of the Leases and Contracts are in full force and effect and there are no defaults by any party thereto under the Leases and Contracts. To Seller’s knowledge, except as may be set forth on the rent roll

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that is a part of the Due Diligence items, Seller has received no notice of a current default by the landlord or tenant under any Leases in effect on the Effective Date or of any tenant’s intention to vacate its premises or discontinue its operations at the Property. Upon the Closing Date, there will be no unpaid leasing commissions or tenant improvement costs with respect to any of the Leases (except to the extent such tenant improvement costs may arise in the future pursuant to a Lease if, for example, a tenant were to renew its Lease and thereby be entitled to tenant improvements).

4.1.7As used herein, “to Seller’s knowledge” and phrases of similar import means the actual (not constructive and without attribution) conscious knowledge, without undertaking, and without any duty to undertake, any investigation or inquiry, of Deborah Hawthorne and Dirk Van Wyk, which individuals are the employees of Seller (or its affiliates) with the operational/asset disposition responsibility for the Project. It is expressly agreed and understood that in no event shall Buyer be entitled to bring any action(s) for damages or otherwise against such individuals. In the event Seller or Buyer should become aware of any facts or circumstances prior to the Closing Date that should render any of Seller’s representations and warranties that are limited to Seller’s knowledge no longer accurate, the party first becoming so aware shall promptly notify the other party in writing, and Buyer shall have the right, as its sole and exclusive remedy, to terminate this Agreement by written notice to Seller and Escrow Holder delivered within seven (7) days after receipt of Seller’s notice or first becoming aware of such facts, in which case this Agreement shall terminate in accordance with Section 3.3. This Section 4.1.7 shall supersede any inconsistent provision of this Agreement.

4.2Buyer’s Representations and Warranties.    Buyer hereby represents, warrants and covenants to and agrees with Seller as follows:

4.2.1Buyer’s Investigation and. Release. (a) Buyer acknowledges that, except as explicitly set forth herein, there are no representations or warranties of any kind whatsoever, express or implied, made by Seller in connection with this Agreement, the purchase of the Property by Buyer, the Contracts, the Leases, the physical condition of the Property or whether the Property complies with applicable laws or is appropriate for Buyer’s intended use; (b) prior to the Decision Date Buyer shall have (or shall have chosen not to have) fully investigated the Property (including the Leases and Contracts) and all matters pertaining thereto; (c) Buyer is not relying on any statement or representation of Seller, its agents or its representatives nor on any information supplied by Seller, its agents or its representatives; (d) Buyer, in entering into this Agreement and in completing its purchase of the Property, is relying, and shall rely, entirely on its own investigation of the Property based on its extensive experience in and knowledge of real property in the areas where the Property is located; (e) Buyer is aware (or has chosen not to be aware) of all zoning regulations, other governmental requirements, legal, site and physical conditions, and other matters affecting the use and condition of the Property; (f) Buyer’s decision to purchase the Property on the terms and conditions hereof has been, and at all times shall be, made solely and exclusively in reliance on Buyer’s own review, inspection and investigation of the Property (including the Leases and Contracts) and of materials, documents, information and studies relating to the Property; (g) BUYER SHALL PURCHASE THE PROPERTY IN ITS “AS IS” CONDITION AS OF THE DATE OF CLOSING. Without limiting the foregoing, Buyer acknowledges that Buyer has accepted full responsibility for assuring the Property complies at Closing with all applicable laws, rules, regulations, orders and ordinances, and in the event any such laws, rules, regulations, orders or

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ordinances impose any pre-Closing obligations upon Seller, Seller shall have the right to (i) perform the same at Buyer’s expense and the cost thereof shall be added to the Purchase Price at Closing, if Seller is obligated by law to perform the same prior to Closing, and/or (ii) require Buyer to execute and deliver at Closing any documentation requested by Seller or required by governmental authorities confirming Buyer has accepted such responsibility and indemnifying Seller against the same.

4.2.2Authority.  Buyer has the power and authority to own the Property and to consummate the transactions contemplated by this Agreement. This Agreement and all instruments, documents and agreements to be executed by Buyer in connection herewith are or when delivered shall be duly authorized, executed and delivered by Buyer and are valid, binding and enforceable obligations of Buyer. Each individual executing this Agreement on behalf of Buyer represents and warrants to Seller that he or she is duly authorized to do so.

4.2.3Consents.   Buyer is not required to obtain any consents or approvals to consummate the transactions contemplated in this Agreement.

4.3Reaffirmation.   The representations and warranties of Seller and Buyer set forth in Sections 4.1 and 4.2 are true and correct as of the date of this Agreement and shall be true and correct as of the Closing and shall be a condition of Buyer’s obligation to Close this transaction (except if Buyer shall have received written notice from Seller pursuant to Section 4.1.7 of any facts or circumstances prior to the Closing Date that should render any of Seller’s representations and warranties that are limited to Seller’s knowledge no longer accurate, or if Buyer itself shall have become aware of any facts or circumstances prior to the Closing Date that should render any of Seller’s representations and warranties that are limited to Seller’s knowledge no longer accurate, the foregoing condition to Closing shall be deemed waived after the expiration of the seven-day period referenced in Section 4.1.7).   Subject to Section 4.1.7, the Closing shall constitute each party’s reaffirmation of those representations and warranties as of the Closing, and each party shall execute and deliver at Closing a document (a “Reaffirmation Certificate”) reaffirming such representations and warranties, which shall survive the Closing.

4.4Condemnation. If, prior to Closing, any portion of the Property shall be condemned or become the subject of any pending or threatened condemnation action, Seller shall promptly notify Buyer thereof. This Agreement shall remain in full force and effect, regardless of such condemnation or threatened or pending action, and if any condemnation award is received by Seller prior to Closing, the amount of such award shall be applied as a credit against the Purchase Price. Any condemnation awards received by Seller on or after Closing shall be promptly delivered by Seller to Buyer. Notwithstanding the foregoing, in the event such condemnation involves 5% or more of the Land or the Improvements or affects any of the existing access points to the Property or permits a tenant to terminate its Lease or abate or reduce its rent, Buyer shall be entitled to terminate this Agreement by written notice thereof to Seller given within five (5) business days after Buyer shall have been notified of such condemnation, whereupon the Deposit (to the extent previously delivered to Escrow Holder) shall be returned to Buyer. Buyer’s failure to timely deliver such notice to Seller within such five (5) business day period shall constitute Buyer’s election to proceed to Closing.

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4.5Damage or Destruction. In the event of any damage to or destruction of the Property prior to the Closing, Seller shall promptly notify Buyer thereof and the Closing shall nevertheless occur as otherwise provided for in this Agreement, except Seller shall assign to Buyer upon the Closing all insurance proceeds paid or payable to Seller in connection with such occurrences. Seller shall have no obligation to repair such damage or destruction. Notwithstanding the foregoing, if such damage or destruction to the Property shall cost more than $100,000 to repair, or permits a tenant to terminate its Lease or abate or reduce its rent, then Seller shall promptly so notify Buyer and within five (5) business days after receipt of such notice, Buyer shall deliver written notice to Seller and Escrow Holder, electing either: (a) to proceed with this transaction and Closing in accordance with this Agreement notwithstanding such damage or destruction; or (b) to terminate this Agreement in accordance with the terms of Section 3.3. Buyer’s failure to deliver either of such notices to Seller and Escrow Holder within such five (5) business day period shall constitute Buyer’s election to proceed to Closing under clause (a), in which event Seller shall assign to Buyer upon the Closing all insurance proceeds paid or payable to Seller in connection with such occurrences and credit Buyer with all deductibles or self-insured amounts applicable to such occurrences.

4.6Tenant Lease Amendments; Management of Property. Seller agrees to promptly provide Buyer with a copy of all proposed amendments to existing Leases, and all proposed new Leases, of any portion of the Property proposed to be executed after the Effective Date and before the date (the “Stop Date”) that is seven (7) days prior to the Decision Date for Buyer’s review, but in no event shall Buyer have any right to approve the same, and Buyer’s failure to terminate this Agreement on or before the Decision Date shall constitute Buyer’s deemed approval of all such Lease amendments and new Leases. From and after the Stop Date, Seller shall not execute any amendments to any existing Leases, or any new Leases, without Buyer’s prior written consent. Upon the Closing, Buyer shall reimburse Seller for, or assume Seller’s obligations with respect to, all leasing commissions paid or payable by Seller and/or tenant improvement obligations of Seller with respect to all Lease amendments and new Leases approved (or deemed approved) by Buyer pursuant to this Section 4.6 (except Seller shall be responsible for any leasing commissions payable with respect to any Leases that are renewed or extended before the Closing Date). Subject to damage or destruction, or other matters outside of Seller’s control, Seller agrees to continue to manage the Property until Closing in the same manner it is currently managing the Property (in no event shall Seller have any obligation to make capital repairs, replacements or improvements, nor to cause the Property to comply with applicable laws). Prior to Closing, and for a reasonable period of time thereafter, Seller agrees to reasonably cooperate with Buyer and Buyer’s accountants to facilitate Buyer’s evaluations and required reports, including at least a one-year audit of the books and records of the Property, which audit shall conclude with the execution by Seller of a letter in the form attached hereto as Schedule 4.6 (Seller confirms that the representations in such letter are, to Seller’s knowledge, correct as of the date of execution of this Agreement, but Seller reserves the right to revise such letter to reflect the state of Seller’s knowledge at the time Seller is requested to execute such letter).

4.7Estoppel Certificates. Seller agrees to promptly exert good faith efforts to obtain estoppel certificates (“Estoppels”) and subordination, non-disturbance and attornment agreements (“SNDAs”), on Seller’s form or on such other reasonable forms as Buyer shall deliver to Seller within five (5) days after the Effective Date, from the Tenants. Seller shall not be in default hereunder by reason of the unavailability, or contents, of any Estoppel or SNDA (but Seller shall act

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in good faith with respect to any defaults of Seller alleged by any Tenant in any Estoppel or SNDA). Subject to the further terms of this Section 4.7, Buyer shall have the right to terminate this Agreement pursuant to Section 3.3 if three (3) business days prior to Closing Seller shall be unable to obtain Estoppels approved by Buyer executed by (i) Office Max, Bank of America, Marie Callender’s, Ross Dress for Less and Silk Pavillion (collectively, the “Majors”), plus (ii) other tenants (the “Minors”) which, in the aggregate, occupy at least seventy five percent (75%) of the remaining leased space at the Property not counting the space leased by the Majors, plus, if applicable, any owner’s association or similar authority under any active, recorded covenants, conditions and restrictions affecting the Property (a “CC&R Estoppel”). Buyer shall be deemed to have approved each Estoppel delivered to it by Seller unless Buyer shall have delivered written notice to Seller objecting to such Estoppel within four (4) days after Seller’s delivery of such Estoppel to Buyer. Buyer shall have no right to object to, and shall be deemed to have approved, any Estoppel executed on a form set forth in, or stipulated by, the applicable lease that does not reflect a default by landlord or tenant and that does not contain any information materially inconsistent with the information set forth in the applicable lease to which it pertains. Buyer shall have no right to terminate this Agreement by reason of the unavailability, or contents, of any SNDAs. Seller agrees to execute and deliver to Buyer at Closing a “Seller Estoppel” with respect to those Majors and Minors and any CC&R Estoppel as to which Seller has been unable to obtain an executed Estoppel (or CC&R Estoppel), but each Seller Estoppel shall be limited “to Seller’s knowledge” (as defined in Section 4.1.7). Buyer shall further have the right to terminate this Agreement and to obtain a return of its Deposit if any Tenant shall, on the Closing Date, be delinquent, beyond any applicable grace period set forth in its Lease, in paying its monthly rent due under its Lease.

4.8Hazardous Material Waiver. Buyer, on behalf of itself, its successors and assigns, hereby releases Indemnitees from and against any and all liabilities, claims, demands, suits, judgments, causes of action (including, but not limited to, causes of action arising under the Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601 et. seq.), losses, costs, damages, injuries, penalties, enforcement actions, fines, taxes, remedial actions, removal and disposal costs, investigation and remediation costs and expenses (including, without limit, attorneys’ fees, litigation, arbitration and administrative proceeding costs, expert and consultant fees and laboratory costs), sumspaid in settlement of claims, whether direct or indirect, known or unknown, arising out of, related in any way to, or resulting from or in connection with, in whole or in part, the presence or suspected presence of Hazardous Materials (defined below) in, on, under, or about the Property.

“Hazardous Material(s)” means any chemical, substance, material, controlled substance, object, condition, waste living organisms or combination thereof which is or may be hazardous to human health or safety or to the environment due to his radioactivity, ignitability, corrosivity, reactivity, explosivity, toxicity, carcinogenicity, mutagenicity, phytotoxicity, infectiousness or other harmful or potentially harmful properties or effects, including, without limitation, petroleum hydrocarbons and petroleum products, lead, asbestos, radon, polychlorinated biphenyls (PCBs) and all of those chemicals, substances, materials, controlled substances, objects, conditions, wastes, living organisms or combinations thereof which are now or become in the future listed, defined or regulated in any manner by any federal, state or local law based upon, directly or indirectly, such properties or effects.

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5.CLOSING

5.1Deposits IntoEscrow.

5.1.1At least one (1) business day prior to the Closing Date, Seller shall deposit into Escrow:

(a)A grant deed conveying the Project to Buyer (the “Deed”), subject to the Permitted Exceptions;

(b)An affidavit or qualifying statement which satisfies the requirements of Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations thereunder (the “Non-Foreign Affidavit”), and a “Withholding Exemption Certificate, Form 593”, pursuant to the California Revenue and Taxation Code stating either the amount of withholding required from Seller’s proceeds or that Seller is exempt from such withholding requirement (the “Certificate”).

(c)An original bill of sale and assignment (the “Bill of Sale”), duly executed by Seller, assigning and conveying to Buyer all of Seller’s right, title and interest in and to the Personal Property. The Bill of Sale shall be in the form of Exhibit “B” attached hereto;

(d)An original assignment and assumption agreement (the “Assignment and Assumption Agreement”) duly executed by Seller assigning all of Seller’s right, title and interest in and to the Leases and the Contracts. The Assignment and Assumption Agreement shall be in the form of Exhibit “C” attached hereto (at or before Closing, Seller shall terminate all Contracts as to which Buyer shall have directed Seller in writing to terminate);

(e)A letter to each Tenant (the “Tenant Letters”) advising the Tenant of the sale of the Property, the transfer of the Tenant’s security deposit to Buyer and of the name and address of Buyer (or its property manager); and

(f)Seller’s Reaffirmation Certificate (subject to Section 4.1.7), and any certificates of occupancy and zoning letters with respect to the Property in Seller’s possession not previously delivered to Buyer (Seller has no obligation to obtain any such certificates of occupancy or zoning letters).

5.1.2On or before 10:00 a.m. Pacific time or the Closing Date, Buyer shall deposit into Escrow:

(a)Funds in accordance with the provisions of Section 1.3.2;

(b)Buyer’s Reaffirmation Certificate;

(c)An original counterpart of the Assignment and Assumption Agreement duly executed by Buyer; and

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(d)the Tenant Letters.

5.1.3Seller and Buyer shall each deposit such other instruments and funds as are reasonably required by Escrow Holder or otherwise required to close Escrow and consummate the sale of the Property in accordance with the terms of this Agreement, including but not limited to documents required under Section 5.4.1 and closing statements.

5.2Prorations.

5.2.1Rentals from Leases (including fixed monthly rentals and other periodic rentals, additional rentals, percentage rentals, operating cost pass-throughs and other sums and charges payable by the tenants), prepaid rentals and prepaid payments (collectively, “Rent”) shall, subject to the further provisions hereof, be prorated on the basis that Buyer shall receive a credit for all security deposits actually held by Seller and for all Rent which Seller has actually received before the Closing which is allocable to the period after the Closing. Seller shall not receive a credit for any Rent Seller has not received as of (the Closing that is allocable to the period prior to the Closing. If Buyer shall collect any such Rent (including without limitation percentage rent) after the Closing allocable to the period prior to the Closing, Buyer shall promptly pay the same to Seller, after application of the same to any rent due from the applicable Tenant after the Closing.

5.2.2Real estate taxes shall be prorated as of the Closing on the basis of the most recent assessed valuation of and rates and multiplier applicable to the Property. If prorations are not made on the basis of the current tax year or if supplemental taxes are assessed after the Closing for the period prior to the Closing, the parties shall make any necessary adjustment after Closing by cash payment upon demand to the party entitled thereto so that Seller shall have borne all taxes allocable to the period prior to the Closing (including all supplemental taxes which are allocable to the period prior to Closing) and Buyer shall bear all taxes allocable to the period after the Closing (including all supplemental taxes which are allocable to the period after the Closing).

5.2.3Seller shall endeavor to have all of its utility accounts with respect to the Property closed out effective as of the Closing Date; if such close-out is not possible, utilities shall be prorated as of the Closing (with the assumption that utility charges were uniformly incurred during the billing period in which the Closing occurs).

5.2.4Common area and maintenance charges, property taxes, insurance and other operating cost pass-throughs payable by Tenants which accrue as of the Closing Date, but which are not then due and payable (collectively, the “Operating Expenses”), shall not be prorated, except as herein provided. Buyer shall receive and retain any Operating Expenses paid by Tenants on or after the Closing Date and Seller shall receive and retain any Operating Expenses paid by Tenants prior to the Closing Date; provided, however, that any monthly or periodic deposits or payments of estimated Operating Expenses with respect to the month in which the Closing occurs received by Seller prior to the Closing Date or by Buyer on or after the Closing Date shall be prorated as of the Closing Date. Buyer and Seller shall prorate at Closing, actual Operating Expenses collected by Seller from Tenants prior to Closing with actual Operating Expenses paid by Seller with respect to such period, so that if there are any rebates owing to Tenants for the period of Seller’s ownership, Seller shall pay Buyer the amount of such rebates at Closing, and if the Tenants owe the landlord any additional amounts for Operating Expenses with respect to the period of Seller’s ownership,

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Buyer shall promptly pay Seller the amount so owed to the landlord upon Buyer’s receipt of the same (and Buyer shall exert diligent good faith efforts to collect the same but shall not required to terminate any Lease or evict any Tenant in connection therewith). Any prorations under this Agreement based upon monthly amounts shall be based upon a thirty (30) day month; any prorations under this Agreement based upon annual amounts shall be based upon a 366 day year.

5.3Payment of Closing Costs.

5.3.1Closing Costs Borne by Seller. Seller shall bear and Escrow Holder shall discharge on Seller’s behalf out of the sums payable to Seller hereunder (a) one-half of Escrow Holder’s fee, (b) the Orange County documentary transfer taxes, (c) all costs and expenses of the Owner’s Policy (except Buyer shall pay all costs attributable to any endorsements, any extended coverage and any deletion of the survey exception from the policy), and (d) any additional charges payable in accordance with common escrow practices in Orange County, California.

5.3.2Closing Costs Borne by Buyer. Buyer shall deposit with Escrow Holder for disbursement by Escrow Holder (a) one-half of Escrow Holder’s fee, (b) all costs and expenses of the Owner’s Policy not borne by Seller, (c) the recording fees and documentary transfer fees not borne by Seller required in connection with the transfer of the Property to Buyer, and (d) any additional charges payable in accordance with common escrow practices in Orange County, California.

5.4Closing of Escrow.

5.4.1Pursuant to Section 6045 of the Internal Revenue and Taxation Code, Escrow Holder shall be designated the “closing agent” hereunder and shall be solely responsible for complying with the tax reform act of 1986 with regard to reporting all settlement information to the Internal Revenue Service.

5.4.2Escrow Holder shall hold the Closing on the Closing Date if: (i) it has received in a timely manner all the funds and materials required to be delivered into Escrow by Buyer and Seller; and (ii) it has received assurances satisfactory to it that, effective as of the Closing, the Title Company will issue to Buyer, its standard coverage CLTA title insurance policy in the amount of the Purchase Price, insuring Buyer as the owner of the Property, subject only to the Permitted Exceptions (the “Owner’s Policy”).

5.4.3To Close the Escrow, Escrow Holder shall:

(a)Cause the Deed to be recorded and thereafter mailed to Buyer, and deliver the Owner’s Policy, Bill of Sale, Assignment and Assumption Agreement (executed by Seller) and Non-Foreign Affidavit and Certificate (and any additional documents delivered pursuant to Section 5.1.1) to Buyer; and

(b)Deliver to Seller the Buyer’s Reaffirmation Certificate, the Assignment and Assumption Agreement (executed by Buyer), and by wire transfer of federal funds, funds in the amount of the Purchase Price, plus or less any net debit or credit to Seller by reason of the prorations and allocations of closing costs provided for in this Agreement.

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5.5Failure to Close; Cancellation. If Escrow Holder is not in a position to Close the Escrow on the Closing Date, then this Agreement shall terminate (and if Buyer is in default the Deposit shall be paid to Seller), except that no such termination shall relieve either party of liability for any failure to comply with the terms of this Agreement.

5.6LIQUIDATED DAMAGES. BUYER AND SELLER AGREE THAT IN THE EVENT OF A MATERIAL DEFAULT OR BREACH HEREUNDER BY BUYER (INCLUDING, WITHOUT LIMITATION, ANY DEFAULT OR BREACH BY BUYER WHICH RESULTS IN THE FAILURE OF ESCROW TO CLOSE), THE DAMAGES TO SELLER WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN, AND THAT THEREFORE THE DEPOSIT IS A REASONABLE ESTIMATE OF THE DAMAGES TO SELLER, SUCH DAMAGES INCLUDING COSTS OF NEGOTIATING AND DRAFTING OF THIS AGREEMENT, COSTS OF COOPERATING IN SATISFYING CONDITIONS TO CLOSING, COSTS OF SEEKING ANOTHER BUYER UPON BUYER’S DEFAULT, OPPORTUNITY COSTS IN, AND CARRYING COST ASSOCIATED WITH, KEEPING THE PROPERTY OUT OF THE MARKETPLACE, AND OTHER COSTS INCURRED IN CONNECTION HEREWITH. ACCORDINGLY, BUYER AND SELLER AGREE THAT, EXCEPT FOR ANY DAMAGES, COSTS AND EXPENSES INCURRED IN CONNECTION WITH OR RESULTING FROM BUYER’S DEFAULT, OR BREACH OF ITS INDEMNITY OBLIGATIONS UNDER SECTIONS 3.5 AND 6.16 (WHICH DAMAGES, COSTS AND EXPENSES SHALL SURVIVE ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND ARE NOT LIMITED BY THIS SECTION 5.6), RECEIPT AND RETENTION OF THE DEPOSIT SHALL BE THE SOLE DAMAGES OF SELLER IN THE EVENT OF ANY BREACH OR DEFAULT BY BUYER HEREUNDER.

/s/ P.D.[ILLEGIBLE]	/s/ [ILLEGIBLE]
Seller’s Initials	Buyer’s Initials

5.7Seller’s Breach. In the event of a material breach by Seller hereunder, Buyer’s remedies shall be limited to (i) termination of this Agreement and the return to it of the Deposit, or (ii) specific performance of this Agreement, except that after Closing Seller shall remain liable for damages caused by Seller’s intentional wrongful actions in breach of this Agreement and for any damages for any breach of Seller’s representations and warranties that Buyer does not discover prior to Closing (in order for Buyer to recover any damages for any such breach, Buyer shall be required to allege and prove that at least one of the individuals referenced in Section 4.1.7 had actual conscious knowledge of the falsity of such representation and warranty when made, and Buyer shall be required to file a lawsuit against Seller with respect thereto not later than nine (9) months after the Closing Date). Except as expressly set forth in the preceding sentence, Buyer expressly waives and releases any right to sue Seller for damages.

5.8Possession. Subject to the Permitted Exceptions and the rights of the Tenants, possession of the Property shall be delivered to Buyer upon Closing.

6.GENERAL PROVISIONS

6.1Counterparts. This Agreement may be executed in counterparts, each of which shall

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be deemed an original, but all of which, taken together, shall constitute one and the same instrument.

6.2Entire Agreement. This Agreement contains the entire integrated agreement between the parties respecting the subject matter of this Agreement and supersedes all prior and contemporaneous understandings and agreements, whether oral or in writing, between the parties respecting the subject matter of this Agreement.

6.3Legal Advice; Neutral Interpretation; Headings. Each party has received independent legal advice from its attorneys with respect to the advisability of executing this Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any party based upon any attribution to such party as the source of the language in question. Headings used in this Agreement are for convenience of reference only and shall not be used in construing this Agreement.

6.4Choice of Law. This Agreement shall be governed by the laws of the State of California.

6.5Severability. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby.

6.6Waiver of Covenants, Conditions or Remedies. The waiver by one party of the performance of any covenant, condition or promise under this Agreement shall not invalidate this Agreement nor shall it be considered a waiver by it of any other covenant, condition or promise under this Agreement. The waiver by either or both parties of the time for performing any act under this Agreement shall not constitute a waiver of the time for performing any other act or an identical act required to be performed at a later time. The exercise of any remedy provided in this Agreement shall not be a waiver of any consistent remedy provided by law, and the provision in this Agreement for any remedy shall not exclude other consistent remedies unless they are expressly excluded.

6.7Exhibits.   All exhibits to which reference is made in this Agreement are deemed incorporated in this Agreement.

6.8Amendment. This Agreement may be amended at any time by the written agreement of Buyer and Seller. All amendments, changes, revisions and discharges of this Agreement, in whole or in part, and from lime to time, shall be binding upon the parties despite any lack of legal consideration, so long as the same shall be in writing and executed by the parties hereto.

6.9Relationship of Parties. The parties agree that their relationship is that of seller and buyer, and that nothing contained herein shall constitute either party the agent or legal representative of the other for any purpose whatsoever, nor shall this Agreement be deemed to create any form of business organization between the parties hereto, nor is either party granted any right or authority to assume or create any obligation or responsibility on behalf of the other party, nor shall either party be in any way liable for any debt of the other.

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6.10No Third Party Benefit.   This Agreement is intended to benefit only the parties hereto and no other person or entity has or shall acquire any rights bereunder.

6.11Time of the Essence.   Time shall be of the essence as to all dates and times of performance, whether contained herein or contained in any escrow instructions to be executed pursuant to this Agreement, and all escrow instructions shall contain a provision to this effect.

6.12Further Acts.   Each party agrees to perform any further acts and to execute, acknowledge and deliver any documents, which may be reasonably necessary to carry out the provisions of this Agreement.

6.13Recordation.   Buyer shall not record this Agreement, any memorandum of this Agreement, any assignment of this Agreement or any other document that would cause a cloud on the title to the Property.

6.14Assignment. Upon written notice to Seller, Buyer shall be entitled to assign Buyer’s rights and delegate its obligations hereunder to a third party controlled by Buyer, but no such assignment shall release Buyer of any liability hereunder. Each party agrees to cooperate with the other party in competing an exchange qualifying for nonrecognition of gain under Internal Revenue Code §1031 and the applicable provisions of the California Revenue and Taxation Code (“Exchange”), and each party reserves the right to convert this transaction to an Exchange at any time before the Closing Date. If either party does elect to complete an Exchange, the other party shall execute all escrow instructions, documents, agreements or instruments reasonably requested by the first party to complete the Exchange; provided, however, that the other party shall incur no additional liabilities, expenses or costs (other than its attorneys fees in reviewing customary Exchange documentation) as a result of or connected with such Exchange, and shall not be required to take title to any other property. Notwithstanding that the transaction contemplated hereby should be effected as an Exchange through a third party as a qualified IRC §1031 intermediary, all obligations, representation, warranties and indemnities made by Buyer shall run to Seller, and all obligations, representations, warranties and indemnities made by Seller shall ran to Buyer, despite the fact that an intermediary or other third party facilitating a party’s tax-deferred exchange was substituted hereunder for that party. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties to this Agreement.

6.15Attorneys’ Fees. In the event of any litigation involving the parties to this Agreement to enforce any provision of this Agreement, to enforce any remedy available upon default under this Agreement, or seeking a declaration of the rights of cither party under this Agreement, the prevailing party shall be entitled to recover from the other such attorneys’ fees and costs as may be reasonably incurred, including the costs of reasonable investigation, preparation and professional or expert consultation incurred by reason of such litigation. All other attorneys’ fees and costs relating to this Agreement and the transactions contemplated hereby shall be borne by the party incurring the same.

6.16Brokers. Pursuant to separate agreement, Seller shall pay Marcus & Millichap (“Seller’s Broker”), a brokerage commission for its services as broker in this transaction if, as and when the Closing occurs. Buyer and Seller each represent and warrant to the other that, except as stated in the preceding sentence (a) they have not dealt with any brokers or finders in connection

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with the purchase and sale of the Property, and (b) insofar as such party knows, no broker or other person is entitled to any commission or finder’s fee in connection with the purchase and sale of the Property. Seller and Buyer each agree to indemnify and hold harmless the other against any loss, liability, damage, cost, claim or expense incurred by reason of any brokerage fee, commission or finder’s fee which is payable or alleged to be payable to any broker or finder because of any agreement, act, omission or statement of the indemnifying party. The provisions of this Section 6.16 shall not be limited in any way by any terms of this Agreement.

6.17Manner of Giving Notice. All notices and demands which either party is required or desires to give to the other shall be given in writing by personal delivery, express courier service or by telecopy followed by next day delivery of a hard copy to the address or telecopy number set forth below for the respective party, provided that if any party gives notice of a change of name, address or telecopy number, notices to that party shall thereafter be given as demanded in that notice. All notices and demands so given shall be effective upon receipt by the party to whom notice or a demand is being given.

To Buyer:	To Seller:
Inland Real Estate Acquisitions, Inc.	Donahue Schriber Realty Group, L.P.
2901 Butterfield Road	200 E. Baker Street, Suite 100
Oak Brook, IL 60523	Costa Mesa, CA 92626
Attn.: Steven Sanders	Attn.: Dirk Van Wyk
Telephone: 630-218-4948	Telephone: (714) 545-1400
Fax: 630-218-4935	Fax: (714) 545-4222
With a copy to:	With a copy to:
	David Grccnman
	18800 Von Karman Avenue, Suite 100
	Irvine, CA 92612
	Telephone: (949) 224-0338
	Fax: (949) 224-0339

6.18Survival. The terms and provisions of this Agreement shall survive the Closing and the consummation of the transactions contemplated by this Agreement or the termination of this Agreement for any reason without the conveyance of the Property to Buyer.

SIGNATURES ON NEXT PAGE

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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first above written.

SELLER:	Donahue Schriber Realty Group, L.P., a Delaware limited
	Partnership
	By: Donahue Schriber Realty Group, Inc., a Maryland corporation, its general partner
	By:	/s/ [ILLEGIBLE]
	Name:				[ILLEGIBLE]
	Title:			President
	By:		/s/ Dirk Van Wyk
	Name:					Dirk Van Wyk
	Title:			Vice President
BUYER:	Inland Real Estate Acquisitions, Inc., an Illinois corporation
	By:	/s/ G. Joseph Cosenza
	Name:					G. JOSEPH COSENZA
	Title:			PRESIDENT

JOINDER OF ESCROW HOLDER

Escrow Holder executes this Agreement for the purpose of agreeing to serve as escrow agent with respect to the Deposit and closing in accordance with this Agreement.

STEWART TITLE INSURANCE COMPANY

By:

Name:

Title:

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EX-10.438

Exhibit 10.438

PROMISSORY NOTE

$13,695,000.00	New York, New York
	December 21,2004

FOR VALUE RECEIVED, INLAND WESTERN PLACENTIA, L.L.C., a Delaware limited liability company having its principal place of business at 2901 Butterfield Road, Oak Brook, Illinois 60523, a maker hereunder (referred to herein as “Borrower”), hereby unconditionally promises to pay to the order of BEAR STEARNS COMMERCIAL MORTGAGE, INC., a New York corporation, as payee, having an address at 383 Madison Avenue, New York, New York 10179 (“Lender”), or at such other place as the holder hereof may from time to time designate in writing, the principal sum of THIRTEEN MILLION SIX HUNDRED NINETY FIVE THOUSAND AND NO/100 DOLLARS ($13,695,000.00), in lawful money of the United States of America with interest thereon to be computed from the date of this Note at the Interest Rate, and to be paid in accordance with the terms of this Note and that certain Loan Agreement, dated as of the date hereof, between Borrower and Lender (the “Loan Agreement”). All capitalized terms not defined herein shall have the respective meanings set forth in the Loan Agreement.

ARTICLE 1

PAYMENT TERMS

Borrower agrees to pay interest on the unpaid principal sum of this Note from time to time outstanding at the rates and at the times specified in the Loan Agreement and the outstanding balance of the principal sum of this Note and all accrued and unpaid interest thereon shall be due and payable on the Maturity Date. This Note shall be the “Note” as defined in the Loan Agreement.

ARTICLE 2

DEFAULT AND ACCELERATION

The Debt shall without notice become immediately due and payable at the option of Lender if any payment required in this Note is not paid on or prior to the date when due or if not paid on the Maturity Date or on the happening of any other Event of Default.

ARTICLE 3

LOAN DOCUMENTS

This Note is secured by the Mortgage and the other Loan Documents. All of the terms, covenants and conditions contained in the Loan Agreement, the Mortgage and the other Loan Documents are hereby made part of this Note to the same extent and with the same force as if they were fully set forth herein. In the event of a conflict or inconsistency between the terms of this Note and the Loan Agreement, the terms and provisions of the Loan Agreement shall govern.

ARTICLE 4

SAVINGS CLAUSE

Notwithstanding anything to the contrary, (a) all agreements and communications between Borrower and Lender are hereby and shall automatically be limited so that, after taking into account all amounts deemed interest, the interest contracted for, charged or received by Lender shall never exceed the maximum lawful rate or amount, (b) in calculating whether any interest exceeds the lawful maximum, all such interest shall be amortized, prorated, allocated and spread over the full amount and term of all principal indebtedness of Borrower to Lender, and (c) if through any contingency or event, Lender receives or is deemed to receive interest in excess of the lawful maximum, any such excess shall be deemed to have been applied (without prepayment penalty or premium) toward payment of the principal of any and all then outstanding indebtedness of Borrower to Lender, or if there is no such indebtedness, shall immediately be returned to Borrower.

ARTICLE 5

NO ORAL CHANGE

This Note may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Borrower or Lender, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.

ARTICLE 6

WAIVERS

Borrower and all others who may become liable for the payment of all or any part of the Debt do hereby severally waive presentment and demand for payment, notice of dishonor, notice of intention to accelerate, notice of acceleration, protest and notice of protest and non-payment and all other notices of any kind. No release of any security for the Debt or extension of time for payment of this Note or any installment hereof, and no alteration, amendment or waiver of any provision of this Note, the Loan Agreement or the other Loan Documents made by agreement between Lender or any other Person shall release, modify, amend, waive, extend, change, discharge, terminate or affect the liability of Borrower, and any other Person who may become liable for the payment of all or any part of the Debt, under this Note, the Loan Agreement or the other Loan Documents. No notice to or demand on Borrower shall be deemed to be a waiver of the obligation of Borrower or of the right of Lender to take further action without further notice or demand as provided for in this Note, the Loan Agreement or the other Loan Documents. If Borrower is a partnership, the agreements herein contained shall remain in force and applicable, notwithstanding any changes in the individuals comprising the partnership, and the term “Borrower,” as used herein, shall include any alternate or successor partnership, but any predecessor partnership and their partners shall not thereby be released from any liability. If Borrower is a limited liability company, the agreements herein contained shall remain in force and applicable, notwithstanding any changes in the members comprising the company, and the

2

term “Borrower,” as used herein, shall include any alternate or successor company, but any predecessor company shall not thereby be released from any liability. If Borrower is a corporation, the agreements contained herein shall remain in full force and applicable notwithstanding any changes in the shareholders comprising, or the officers and directors relating to, the corporation, and the term “Borrower” as used herein, shall include any alternative or successor corporation, but any predecessor corporation shall not be relieved of liability hereunder. (Nothing in the foregoing sentence shall be construed as a consent to, or a waiver of, any prohibition or restriction on transfers of interests in such entity which may be set forth in the Loan Agreement, the Mortgage or any other Loan Document.)

ARTICLE 7

TRANSFER

Upon the transfer of this Note, Borrower hereby waiving notice of any such transfer except as provided in the Loan Agreement, Lender may deliver all the collateral mortgaged, granted, pledged or assigned pursuant to the Loan Documents, or any part thereof, to the transferee who shall thereupon become vested with all the rights herein or under applicable law given to Lender with respect thereto, and Lender shall from that date forward forever be relieved and fully discharged from any liability or responsibility in the matter; but Lender shall retain all rights hereby given to it with respect to any liabilities and the collateral not so transferred.

ARTICLE 8

EXCULPATION

The provisions of Section 9.4 of the Loan Agreement are hereby incorporated by reference into this Note to the same extent and with the same force as if fully set forth herein.

ARTICLE 9

GOVERNING LAW

THIS NOTE SHALL BE DEEMED TO BE A CONTRACT ENTERED INTO PURSUANT TO THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND SHALL IN ALL RESPECTS BE GOVERNED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND APPLICABLE FEDERAL LAWS.

ARTICLE 10

NOTICES

All notices or other written communications hereunder shall be delivered in accordance with Section 10.6 of the Loan Agreement.

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[NO FURTHER TEXT ON THIS PAGE]

4

IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and year first above written.

BORROWER:
INLAND WESTERN PLACENTIA, L.L.C., a
Delaware limited liability company
By:	Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
	By:	/s/ Debra A. Palmer
		Name: Debra A. Palmer
		Title:    Asst Secretary

5

ACKNOWLEDGMENT

STATE OF ILLINOIS

COUNTY OF DUPAGE

The foregoing instrument was  acknowledged before me this 6^th day of  December, 2004 by Debra Palmer as Ass't. Secretary of INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation, which is the sole member and manager of INLAND WESTERN PLACENTIA, L.L.C., a Delaware limited liability company, who executed the foregoing instrument, and acknowledged the execution thereof to be his/her free act and deed as such officer on behalf of said corporation in its capacity as sole member and manager of said limited liability company for the use and purposes therein mentioned, and the said instrument is the act and deed of said corporation and limited liability company. He/She is personally known to me as identification.

My commission expires:

[Notarial Seal]	/s/ Nancy Christina Phillips
	Print Name:
	Notary Public
	Serial Number:
	OFFICIAL SEAL
	NANCY CHRISTINA PHILLIPS
	NOTARY PUBLIC - STATE OF ILLINOIS
	MY COMMISSION EXPIRES:03/24/08

6

EX-10.439

Exhibit 10.439

LOAN AGREEMENT

Dated as of December 21, 2004

Between

INLAND WESTERN PLACENTIA, L.L.C.,

as Borrower

and

BEAR STEARNS COMMERCIAL MORTGAGE, INC.,

as Lender

TABLE OF CONTENTS

Section 4.2 Survival of Representations

ARTICLE V BORROWER COVENANTS

Section 5.1 Affirmative Covenants

Section 5.2 Negative Covenants

ARTICLE VI INSURANCE; CASUALTY; CONDEMNATION

Section 6.1 Insurance

Section 6.2 Casualty

Section 6.3 Condemnation

Section 6.4 Restoration

ARTICLE VII RESERVE FUNDS

Section 7.1 Required Repair Funds

Section 7.2 Tax and Insurance Escrow Fund

Section 7.3 Replacements and Replacement Reserve

Section 7.4 Intentionally Omitted

Section 7.5 Intentionally Omitted

Section 7.6 Intentionally Omitted

Section 7.7 Reserve Funds, Generally

ARTICLE VIII DEFAULTS

Section 8.1 Event of Default

Section 8.2 Remedies

Section 8.3 Remedies Cumulative; Waivers

ARTICLE IX SPECIAL PROVISIONS

Section 9.1 Sale of Notes and Securitization

Section 9.2 Securitization

Section 9.3 Rating Surveillance

Section 9.4 Exculpation

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Section 9.5 Termination of Manager

Section 9.6 Servicer

Section 9.7 Splitting the Loan

ARTICLE X MISCELLANEOUS

Section 10.1 Survival

Section l0.2 Lender’s Discretion

Section 10.3 Governing Law

Section 10.4 Modification, Waiver in Writing

Section 10.5 Delay Not a Waiver

Section 10.6 Notices

Section l0.7 Trial by Jury

Section l0.8 Headings

Section 10.9 Severability

Section 10.10 Preferences

Section 10.11 Waiver of Notice

Section 10.12 Remedies of Borrower

Section 10.13 Expenses; Indemnity

Section 10.14 Schedules Incorporated

Section 10.15 Offsets, Counterclaims and Defenses

Section 10.16 No Joint Venture or Partnership; No Third Party Beneficiaries

Section 10.17 Publicity

Section 10.18 Waiver of Marshalling of Assets

Section 10.19 Waiver of Counterclaim

Section 10.20 Conflict; Construction of Documents; Reliance

Section 10.21 Brokers and Financial Advisors

Section 10.22 Prior Agreements

Section 10.23 Transfer of Loan

Section 10.24 Joint and Several Liability

SCHEDULES

Schedule I	-	Intentionally Omitted
Schedule II	-	Intentionally Omitted
Schedule III	-	Required Repairs
Schedule IV	-	Rent Roll
Schedule V	-	Intentionally Omitted
Schedule VI	-	Intentionally Omitted
Schedule VII	-	Intentionally Omitted
Schedule VIII	-	Intentionally Omitted
Schedule IX	-	Intentionally Omitted
Schedule X	-	Other Contract Funds Agreements

ii

LOAN AGREEMENT

THIS LOAN AGREEMENT, dated as of this 21 day of December, 2004 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”), between BEAR STEARNS COMMERCIAL MORTGAGE, INC., a New York corporation, having an address at 383 Madison Avenue, New York, New York 10179 (“Lender”), and INLAND WESTERN PLACENTIA, L.L.C., a Delaware limited liability company, having an address at 2901 Butterfield Road, Oak Brook, Illinois 60523 (“Borrower”).

W I T N E S S E T H:

WHEREAS, Borrower desires to obtain the Loan (as hereinafter defined) from Lender; and

WHEREAS, Lender is willing to make the Loan to Borrower, subject to and in accordance with the terms of this Agreement and the other Loan Documents (as hereinafter defined).

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

ARTICLE I

DEFINITIONS; PRINCIPLES OF CONSTRUCTION

Section 1.1Definitions. For all purposes of this Agreement, except as otherwise expressly required or unless the context clearly indicates a contrary intent:

“Affiliate” shall mean, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person or is a director or officer of such Person or of an Affiliate of such Person.

“ALTA” shall mean American Land Title Association, or any successor thereto.

“Anchor Tenant” shall mean, collectively, (a) Office Max North America, Inc., f.k.a. Office Max, Inc. and (b) Ross Stores, Inc., pursuant to the Anchor Tenant Lease.

“Anchor Tenant Lease” shall mean:

(i)with respect to Office Max North America, Inc., f.k.a. Office Max, Inc. that certain Lease Agreement, dated August 27, 1996, by and between Donahue Schriber, as original landlord and predecessor-in-interest to Borrower, as landlord, and Anchor Tenant (or its predecessor-in-interest) as tenant as the same has previously been amended and may be further amended, restated, renewed, substituted or replaced (but only to the extent permitted under this Agreement); and

(ii)with respect to Ross Stores, Inc. that certain Lease, dated August 16, 1993, by and between Diversified Shopping Center, as original landlord and predecessor-in-interest

to Borrower, as landlord, and Anchor Tenant (or its predecessor-in-interest) as tenant as the same has previously been amended and may be further amended, restated, renewed, substituted or replaced (but only to the extent permitted under this Agreement).

“Annual Budget”shall mean the operating budget, including all planned capital expenditures, for the Property prepared by Borrower for the applicable Fiscal Year or other period.

“Assignment of Leases”shall mean, with respect to the Property, that certain first priority Assignment of Leases and Rents, dated as of the Closing Date, from Borrower, as assignor, to Lender, as assignee, assigning to Lender all of Borrower’s interest in and to the Leases and Rents of the Property as security for the Loan, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Assignment of Management Agreement”shall mean that certain Assignment of Management Agreement and Subordination of Management Fees dated as of the Closing Date among Lender, Borrower and Manager, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Award”shall mean any compensation paid by any Governmental Authority in connection with a Condemnation in respect of all or any part of the Property.

“Basic Carrying Costs” shall mean, with respect to the Property, the sum of the following costs associated with the Property for the relevant Fiscal Year or payment period: (i) Taxes and (ii) Insurance Premiums.

“Borrower”shall mean Inland Western Placentia, L.L.C., together with its permitted successors and assigns.

“Business Day”shall mean any day other than a Saturday, Sunday or any other day on which national banks in New York, New York are not open for business.

“Capital Expenditures”shall mean, for any period, the amount expended for items capitalized under accounting principles reasonably acceptable to Lender, consistently applied (including expenditures for building improvements or major repairs, leasing commissions and tenant improvements).

“Cash Expenses”shall mean, for any period, the operating expenses for the operation of the Property as set forth in an Approved Annual Budget to the extent that such expenses are actually incurred by Borrower minus any payments into the Tax and Insurance Escrow Fund.

“Casualty”shall have the meaning specified in Section 6.2 hereof.

“Casualty/Condemnation Prepayment”shall have the meaning specified in Section 6.4(e) hereof.

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“Casualty Consultant” shall have the meaning set forth in Section 6.4(b)(iii) hereof.

“Casualty Retainage” shall have the meaning set forth in Section 6.4(b)(iv) hereof.

“Closing Date” shall mean the date hereof.

“Code” shall mean the Internal Revenue Code of 1986, as amended, as it may be further amended from time to time, and any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.

“Condemnation” shall mean a temporary or permanent taking by any Governmental Authority as the result or in lieu or in anticipation of the exercise of the right of condemnation or eminent domain, of all or any part of the Property, or any interest therein or right accruing thereto, including any right of access thereto or any change of grade affecting the Property or any part thereof.

“Debt” shall mean the outstanding principal amount set forth in, and evidenced by, this Agreement and the Note together with all interest accrued and unpaid thereon and all other sums (including the Prepayment Consideration) due to Lender in respect of the Loan under the Note, this Agreement, the Mortgage or any other Loan Document.

“Debt Service” shall mean, with respect to any particular period of time, scheduled interest payments under the Note.

“Debt Service Coverage Ratio” shall mean a ratio for the applicable period in which:

(b)the numerator is the Net Operating Income (excluding interest on credit accounts) for such period as set forth in the statements required hereunder, without deduction for (i) actual management fees incurred in connection with the operation of the Property, (ii) amounts paid to the Reserve Funds, less (A) management fees equal to the greater of (1) assumed management fees of four percent (4.0%) of Gross Income from Operations or (2) the actual management fees incurred, (B) assumed Replacement Reserve Fund contributions equal to $0.15 per square foot of gross leaseable area at the Property; and (C) assumed reserves for tenant improvements and leasing commissions equal to $0.28 per square foot of gross leaseable area at the Property; and

(c)the denominator is the aggregate amount of interest due and payable on the Note for such applicable period.

“Default” shall mean the occurrence of any event hereunder or under any other Loan Document which, but for the giving of notice or passage of time, or both, would be an Event of Default.

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“Default Rate”shall mean, with respect to the Loan, a rate per annum equal to the lesser of (a) the maximum rate permitted by applicable law, or (b) five percent (5%) above the Interest Rate.

“Disclosure Document”shall have the meaning set forth in Section 9.2 hereof.

“Eligible Account”shall mean a separate and identifiable account from all other funds held by the holding institution that is either (a) an account or accounts maintained with a federal or state-chartered depository institution or trust company which complies with the definition of Eligible Institution or (b) a segregated trust account or accounts maintained with a federal or state chartered depository institution or trust company acting in its fiduciary capacity which, in the case of a state chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R. §9.10(b), having in either case a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal and state authority. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.

“Eligible Institution”shall mean a depository institution or trust company insured by the Federal Deposit Insurance Corporation the short term unsecured debt obligations or commercial paper of which are rated at least A-l by Standard & Poor’s Ratings Services, P-l by Moody’s Investors Service, Inc., and F-1+ by Fitch, Inc. in the case of accounts in which funds are held for 30 days or less (or, in the case of accounts in which funds are held for more than 30 days, the long term unsecured debt obligations of which are rated at least “AA” by Fitch and S&P and “Aa” by Moody’s).

“Environmental Indemnity”shall mean that certain Environmental Indemnity Agreement executed by Borrower in connection with the Loan for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Environmental Report”shall have the meaning as defined in the Environmental Indemnity executed by the Borrower.

“ERISA”shall mean the Employee Retirement Income Security Act of 1974, as amended.

“Event of Default”shall have the meaning set forth in Section 8.1(a) hereof.

“Exchange Act” shall have the meaning set forth in Section 9.2 hereof.

“Fiscal Year”shall mean each twelve (12) month period commencing on January 1 and ending on December 31 during each year of the term of the Loan.

“Governmental Authority”shall mean any court, board, agency, commission, office or other authority of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city or otherwise) whether now or hereafter in existence.

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“Gross Income from Operations”shall mean all sustainable income as reported on the financial statements delivered by the Borrower in accordance with this Agreement, computed in accordance with accounting principles reasonably acceptable to Lender, consistently applied, derived from the ownership and operation of the Property from whatever source, including, but not limited to, (i) Rents from Tenants that are in occupancy, open for business and paying unabated Rent, (ii) utility charges, (iii) escalations, (iv) intentionally omitted; (v) service fees or charges, (vi) license fees, (vii) parking fees, and (viii) other required pass-throughs but excluding (i) Rents from Tenants that are subject to any bankruptcy proceeding (unless such Tenant has affirmed its Lease or Inland Western Retail Real Estate Trust, Inc. has master leased such Tenant’s premises for full contract rent for a period not less than three years, and the net worth of Inland Western Retail Real Estate Trust, Inc. (as determined by Lender) is not less than such entity’s net worth as of September 30, 2003), or are not in occupancy, open for business or paying unabated Rent, (ii) sales, use and occupancy or other taxes on receipts required to be accounted for by Borrower to any Governmental Authority, (iii) refunds and uncollectible accounts, (iv) sales of furniture, fixtures and equipment, (v) Insurance Proceeds (other than business interruption or other loss of income insurance), (vi) Awards, (vii) unforfeited security deposits, (viii) utility and other similar deposits and (ix) any disbursements to Borrower from the Reserve Funds. Gross income shall not be diminished as a result of the Mortgage or the creation of any intervening estate or interest in the Property or any part thereof.

“Improvements”shall have the meaning set forth in the granting clause of the Mortgage with respect to the Property.

“Indebtedness”of a Person, at a particular date, means the sum (without duplication) at such date of (a) indebtedness or liability for borrowed money; (b) obligations evidenced by bonds, debentures, notes, or other similar instruments; (c) obligations for the deferred purchase price of property or services (including trade obligations); (d) obligations under letters of credit; (e) obligations under acceptance facilities; (f) all guaranties, endorsements (other than for collection or deposit in the ordinary course of business) and other contingent obligations to purchase, to provide funds for payment, to supply funds, to invest in any Person or entity, or otherwise to assure a creditor against loss; and (g) obligations secured by any Liens, whether or not the obligations have been assumed.

“Indemnitor”shall mean Inland Western Retail Real Estate Trust, Inc., a Maryland corporation.

“Indemnity Agreement”shall mean that certain Indemnity Agreement dated as of the Closing Date by Borrower and Indemnitor in favor of Lender.

“Inland Western Retail Real Estate Trust, Inc.”shall mean Inland Western Retail Real Estate Trust, Inc., a Maryland corporation.

‘‘Insurance Premiums”shall have the meaning set forth in Section 6.1(b) hereof.

“Insurance Proceeds”shall have the meaning set forth in Section 6.4(b) hereof.

“Interest Rate”shall mean four and 597/1000 percent (4.597%) per annum.

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“Lease” shall mean any lease, sublease or subsublease, letting, license, concession or other agreement (whether written or oral and whether now or hereafter in effect) pursuant to which any Person is granted a possessory interest in, or right to use or occupy all or any portion of any space in the Property of Borrower, and every modification, amendment or other agreement relating to such lease, sublease, subsublease, or other agreement entered into in connection with such lease, sublease, subsublease, or other agreement and every guarantee of the performance and observance of the covenants, conditions and agreements to be performed and observed by the other party thereto.

“Legal Requirements” shall mean, with respect to the Property, all federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting the Property or any part thereof, or the construction, use, alteration or operation thereof, or any part thereof, whether now or hereafter enacted and in force, and all permits, licenses and authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Borrower, at any time in force affecting the Property or any part thereof, including, without limitation, any which may (a) require repairs, modifications or alterations in or to the Property or any part thereof, or (b) in any way limit the use and enjoyment thereof.

“Lender” shall mean Bear Stearns Commercial Mortgage, Inc., together with its successors and assigns.

“Licenses” shall have the meaning set forth in Section 4.1.22 hereof.

“Lien” shall mean, with respect to the Property, any mortgage, deed of trust, deed to secure debt, lien, pledge, hypothecation, assignment, security interest, or any other encumbrance, charge or transfer of, on or affecting Borrower, the Property, any portion thereof or any interest therein, including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialmen’s and other similar liens and encumbrances.

“Loan” shall mean the loan made by Lender to Borrower pursuant to this Agreement and evidenced by the Note.

“Loan Documents” shall mean, collectively, this Agreement, the Note, the Mortgage, the Assignment of Leases and Rents, the Environmental Indemnity, the Assignment of Management Agreement, the Indemnity Agreement and all other documents executed and/or delivered in connection with the Loan.

“Management Agreement” shall mean, with respect to the Property, the management agreement entered into by and between Borrower and the Manager, pursuant to which the Manager is to provide management and other services with respect to the Property.

“Manager” shall mean Inland Pacific Management LLC.

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“Maturity Date” shall mean January 1, 2010, or such other date on which the final payment of principal of the Note becomes due and payable as therein or herein provided, whether at such stated maturity date, by declaration of acceleration, or otherwise.

“Maximum Legal Rate” shall mean the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by the Note and as provided for herein or the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan.

“Monthly Debt Service Payment Amount” shall mean an amount equal to $52,463.26.

“Mortgage” shall mean, with respect to the Property, that certain first priority Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated the Closing Date, executed and delivered by Borrower as security for the Loan and encumbering the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Net Cash Flow” shall mean, with respect to the Property for any period, the amount obtained by subtracting Operating Expenses and Capital Expenditures for such period from Gross Income from Operations for such period.

“Net Cash Flow After Debt Service” shall mean, with respect to the Property for any period, the amount obtained by subtracting Debt Service for such period from Net Cash Flow for such period.

“Net Cash Flow Schedule” shall have the meaning set forth in Section 5.1.1l (b) hereof.

“Net Operating Income” shall mean the amount obtained by subtracting from Gross Income from Operations (i) Operating Expenses, and (ii) a vacancy allowance equal to the greater of (x) market vacancy (as reasonably determined by Lender), less actual vacancy, and (y) underwritten vacancy of 4.36%, less actual vacancy. Notwithstanding the foregoing, if actual vacancy exceeds market vacancy and underwritten vacancy, then there shall be no adjustment for a vacancy allowance.

“Net Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.

“Net Proceeds Deficiency” shall have the meaning set forth in Section 6.4(b)(vi) hereof.

“Net Proceeds Prepayment” shall have the meaning set forth in Section 6.4(e) hereof.

“Note” shall mean that certain Promissory Note of even date herewith in the principal amount of Thirteen Million Six Hundred Ninety Five Thousand and NO/100 Dollars

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($13,695,000.00), made by Borrower in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Officers’ Certificate”shall mean a certificate delivered to Lender by Borrower which is signed by the Sole Member.

“Operating Expenses”shall mean the total of all expenditures, computed in accordance with accounting principles reasonably acceptable to Lender, consistently applied, of whatever kind relating to the operation, maintenance and management of the Property that are incurred on a regular monthly or other periodic basis, including without limitation, utilities, ordinary repairs and maintenance, insurance, license fees, property taxes and assessments, advertising expenses, management fees, payroll and related taxes, computer processing charges, operational equipment or other lease payments as approved by Lender, and other similar costs, but excluding depreciation, Debt Service, Capital Expenditures and contributions to the Reserve Funds.

“Other Charges”shall mean all ground rents, maintenance charges, impositions other than Taxes, and any other charges, including, without limitation, vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Property, now or hereafter levied or assessed or imposed against the Property or any part thereof.

“Other Contract Funds”shall mean any payment due to Borrower under any of the agreements described on Schedule X.

“Payment Date”shall mean the first (1st) day of each calendar month during the term of the Loan or, if such day is not a Business Day, the immediately succeeding Business Day.

“Permitted Encumbrances”shall mean, with respect to the Property, collectively, (a) the Liens and security interests created by the Loan Documents, (b) all Liens, encumbrances and other matters disclosed in the Title Insurance Policy relating to the Property or any part thereof, (c) Liens, if any, for Taxes imposed by any Governmental Authority not yet due or delinquent, and (d) such other title and survey exceptions as Lender has approved or may approve in writing in Lender’s reasonable discretion, which Permitted Encumbrances in the aggregate do not materially adversely affect the value or use of the Property or Borrower’s ability to repay the Loan.

“Permitted Investments”shall mean any one or more of the following obligations or securities acquired at a purchase price of not greater than par, including those issued by Servicer, the trustee under any Securitization or any of their respective Affiliates, payable on demand or having a maturity date not later than the Business Day immediately prior to the first Payment Date following the date of acquiring such investment and meeting one of the appropriate standards set forth below:

(i)obligations of, or obligations fully guaranteed as to payment of principal and interest by, the United States or any agency or instrumentality thereof provided such obligations are backed by the full faith and credit of the United States of America including, without limitation, obligations of: the U.S. Treasury (all direct or fully

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guaranteed obligations), the Farmers Home Administration (certificates of beneficial ownership), the General Services Administration (participation certificates), the U.S. Maritime Administration (guaranteed Title XI financing), the Small Business Administration (guaranteed participation certificates and guaranteed pool certificates), the U.S. Department of Housing and Urban Development (local authority bonds) and the Washington Metropolitan Area Transit Authority (guaranteed transit bonds); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(ii)Federal Housing Administration debentures;

(iii)obligations of the following United States government sponsored agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm Credit System (consolidated systemwide bonds and notes), the Federal Home Loan Banks (consolidated debt obligations), the Federal National Mortgage Association (debt obligations), the Student Loan Marketing Association (debt obligations), the Financing Corp. (debt obligations), and the Resolution Funding Corp. (debt obligations); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(iv)federal funds, unsecured certificates of deposit, time deposits, bankers’ acceptances and repurchase agreements with maturities of not more than 365 days of any bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(v)fully Federal Deposit Insurance Corporation-insured demand and time deposits in, or certificates of deposit of, or bankers’ acceptances issued by, any bank or trust company, savings and loan association or savings bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating

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Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(vi)debt obligations with maturities of not more than 365 days and at all times rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest long-term unsecured rating category; provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(vii)commercial paper (including both non-interest-bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one year after the date of issuance thereof) with maturities of not more than 365 days and that at all times is rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest short-term unsecured debt rating; provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(viii)units of taxable money market funds, which funds are regulated investment companies, seek to maintain a constant net asset value per share and invest solely in obligations backed by the full faith and credit of the United States, which funds have the highest rating available from each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself,

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result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) for money market funds; and

(ix)any other security, obligation or investment which has been approved as a Permitted Investment in writing by (a) Lender and (b) each Rating Agency, as evidenced by a written confirmation that the designation of such security, obligation or investment as a Permitted Investment will not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities by such Rating Agency;

provided, however, that no obligation or security shall be a Permitted Investment if (A) such obligation or security evidences a right to receive only interest payments or (B) the right to receive principal and interest payments on such obligation or security are derived from an underlying investment that provides a yield to maturity in excess of 120% of the yield to maturity at par of such underlying investment.

“Permitted Prepayment Date” shall mean the date that is three (3) years from the first day of the calendar month immediately following the Closing Date.

“Person” shall mean any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.

“Personal Property” shall have the meaning set forth in the granting clause of the Mortgage with respect to the Property.

“Physical Conditions Report” shall mean, with respect to the Property, a report prepared by a company satisfactory to Lender regarding the physical condition of the Property, satisfactory in form and substance to Lender in its sole discretion, which report shall, among other things, (a) confirm that the Property and its use complies, in all material respects, with all applicable Legal Requirements (including, without limitation, zoning, subdivision and building laws) and (b) include a copy of a final certificate of occupancy with respect to all Improvements on the Property.

“Policies” shall have the meaning specified in Section 6.l(b) hereof.

“Prepayment Consideration” shall have the meaning set forth in Section 2.3.1.

“Prepayment Rate” shall mean the bond equivalent yield (in the secondary market) on the United States Treasury Security that as of the Prepayment Rate Determination Date has a remaining term to maturity closest to, but not exceeding, the remaining term to the Maturity Date, as most recently published in the “Treasury Bonds, Notes and Bills” section in The Wall Street Journal as of the date of the related tender of the payment. If more than one issue of United States Treasury Securities has the remaining term to the Maturity Date referred to above, the “Prepayment Rate” shall be the yield on the United States Treasury Security most recently issued as of such date. If the publication of the Prepayment Rate in The Wall Street Journal is discontinued, Lender shall determine the Prepayment Rate on the basis of “Statistical

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Release H.I5(519), Selected Interest Rates,” or any successor publication, published by the Board of Governors of the Federal Reserve System, or on the basis of such other publication or statistical guide as Lender may reasonably select.

“Prepayment Rate Determination Date” shall mean the date which is five (5) Business Days prior to the prepayment date.

“Property” shall mean the parcel of real property, the Improvements thereon and all personal property owned by Borrower and encumbered by the Mortgage, together with all rights pertaining to such property and Improvements, as more particularly described in the Granting Clauses of the Mortgage and referred to therein as the “Property”.

“Provided Information” shall have the meaning set forth in Section 9.1(a) hereof.

“Qualifying Entity” shall have the meaning set forth in Section 5.2.13(b) hereof.

“Qualifying Manager” shall mean either (a) a reputable and experienced management organization reasonably satisfactory to Lender, which organization or its principals possess at least ten (10) years experience in managing properties similar in size, scope and value of the Property and which, on the date Lender determines whether such management organization is a Qualifying Manager, manages at least one million square feet of retail space, provided that Borrower shall have obtained prior written confirmation from the Rating Agency that management of the Property by such entity will not cause a downgrading, withdrawal or qualification of the then current rating of the securities issued pursuant to the Securitization, or (b) the fee owner of the Property, provided that such owner possesses experience in managing and operating properties similar in size, scope and value of the Property. Lender acknowledges that on the Closing Date, Manager shall be deemed to be a Qualifying Manager.

“Rating Agencies” shall mean each of Standard & Poor’s Ratings Services, a division of McGraw-Hill, Inc., Moody’s Investors Service, Inc. and Fitch, Inc., or any other nationally-recognized statistical rating agency which has been approved by Lender.

“Rating Surveillance Charge” shall have the meaning set forth in Section 9.3 hereof.

“Relevant Leasing Threshold” shall mean, any Lease for an amount of leaseable square footage equal to or greater than 10,000 square feet.

“Relevant Restoration Threshold” shall mean Three Hundred Fifty Thousand and No/100 dollars ($350,000.00).

“REMIC Trust” shall mean a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code that holds the Note.

“Rents” shall mean, with respect to the Property, all rents, rent equivalents, moneys payable as damages or in lieu of rent or rent equivalents, royalties (including, without limitation, all oil and gas or other mineral royalties and bonuses), income, receivables, receipts,

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revenues, deposits (including, without limitation, security, utility and other deposits), accounts, cash, issues, profits, charges for services rendered, and other consideration of whatever form or nature received by or paid to or for the account of or benefit of Borrower or its agents or employees from any and all sources arising from or attributable to the Property, and proceeds, if any, from business interruption or other loss of income insurance, including the Other Contract Funds.

“Replacement Reserve Account” shall have the meaning set forth in Section 7.3.1 hereof.

“Replacement Reserve Fund” shall have the meaning set forth in Section 7.3.1 hereof.

“Replacement Reserve Monthly Deposit” shall have the meaning set forth in Section 7.3.1 hereof.

“Replacements” shall have the meaning set forth in Section 7.3.1 (a) hereof.

“Required Repair Account” shall have the meaning set forth in Section 7.1.1 hereof.

“Required Repair Fund” shall have the meaning set forth in Section 7.1.1 hereof.

“Required Repairs”shall have the meaning set forth in Section 7.1.1 hereof.

“Reserve Funds”shall mean the Tax and Insurance Escrow Fund, the Replacement Reserve Fund, the Required Repair Fund (if any), or any other escrow fund established by the Loan Documents.

“Restoration”shall have the meaning set forth in Section 6.2 hereof.

“Securities”shall have the meaning set forth in Section 9.1 hereof.

“Securities Act”shall have the meaning set forth in Section 9.2 hereof.

“Securitization”shall have the meaning set forth in Section 9.1 hereof.

“Servicer”shall have the meaning set forth in Section 9.6 hereof.

“Servicing Agreement”shall have the meaning set forth in Section 9.6 hereof.

“Severed Loan Documents”shall have the meaning set forth in Section 8.2(c) hereof.

“Severing Documentation”shall have the meaning set forth in Section 9.7 hereof.

“Sole Member”shall mean Inland Western Retail Real Estate Trust, Inc.

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“Special Purpose Entity”means a corporation, limited partnership, limited liability company, or Delaware statutory trust which at all times on and after the Closing Date:

(i)is organized solely for the purpose of (A) acquiring, developing, owning, holding, selling, leasing, transferring, exchanging, managing and operating the Property, entering into this Agreement with the Lender, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing; or (B) acting as a general partner of the limited partnership that owns the Property, a member of the limited liability company that owns the Property or the beneficiary or trustee of a Delaware statutory trust that owns the Property;

(ii)is not engaged and will not engage in any business unrelated to (A) the acquisition, development, ownership, management or operation of the Property, (B) acting as general partner of the limited partnership that owns the Property, (C) acting as a member of the limited liability company that owns the Property, or (D) acting as the beneficiary or trustee of a Delaware statutory trust that owns the Property, as applicable;

(iii)does not have and will not have any assets other than those related to the Property or its partnership interest in the limited partnership, the member interest in the limited liability company or the beneficial interest in the Delaware statutory trust that owns the Property or acts as the general partner, managing member or beneficiary or trustee thereof, as applicable;

(iv)has not engaged, sought or consented to and will not engage in, seek or consent to any dissolution, winding up, liquidation, consolidation, merger, sale of all or substantially all of its assets, transfer of partnership, membership or beneficial or trustee interests (if such entity is a general partner in a limited partnership, a member in a limited liability company or a beneficiary of a Delaware trust) or amendment of its limited partnership agreement, articles of incorporation, articles of organization, certificate of formation, operating agreement or trust formation and governance documents (as applicable) with respect to the matters set forth in this definition;

(v)if such entity is a limited partnership, has as its only general partners, Special Purpose Entities that are corporations, limited partnerships or limited liability companies;

(vi)intentionally omitted;

(vii)if such entity is a limited liability company and such limited liability company has more than one member, such limited liability company has as its manager a Special Purpose Entity that is a corporation and that owns at least 1.0% (one percent) of the equity of the limited liability company;

(viii)if such entity is a limited liability company and such limited liability company has only one member, such limited liability company (a) has been formed under Delaware law, and (b) has either a corporation or other person or entity that shall become

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a member of the limited liability company upon the dissolution or disassociation of the member;

(ix)if such entity is (a) a limited liability company, has articles of organization, a certificate of formation and/or an operating agreement, as applicable, (b) a limited partnership, has a limited partnership agreement, (c) a corporation, has a certificate or articles of incorporation and bylaws, as applicable, or (d) a Delaware statutory trust, has organizational documents that, in each case, provide that such entity will not: (1) dissolve, merge, liquidate, consolidate; (2) except as permitted herein, sell all or substantially all of its assets or the assets of the Borrower (as applicable) except as permitted herein; (3) engage in any other business activity, or amend its organizational documents with respect to the matters set forth in this definition without the consent of the Lender; or (4) without the affirmative vote of all directors of the corporation (that is such entity or the general partner or managing or co-managing member or manager of such entity), file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings with respect to itself or to any other entity in which it has a direct or indirect legal or beneficial ownership interest;

(x)has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, beneficiaries, shareholders or Affiliates except (A) in the ordinary course of its business and on terms which are intrinsically fair, commercially reasonable and are no less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party and (B) in connection with this Agreement;

(xi)is solvent and pays its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same become due, and is maintaining adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;

(xii)has not failed and will not fail to correct any known misunderstanding regarding the separate identity of such entity;

(xiii)will file its own tax returns; provided, however, that Borrower’s assets and income may be included in a consolidated tax return of its parent companies if inclusion on such consolidated tax return is in compliance with applicable law;

(xiv)has maintained and will maintain its own resolutions and agreements;

(xv)(a) has not commingled and will not commingle its funds or assets with those of any other Person and (b) has not participated and will not participate in any cash management system with any other Person, except with respect to a custodial account maintained by the Manager on behalf of Affiliates of Borrower and, with respect to funds in such custodial account, has separately accounted, and will continue to separately account for, each item of income and expense applicable to the Property and Borrower;

(xvi)has held and will hold its assets in its own name;

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(xvii)has conducted and will conduct its business in its name or in a name franchised or licensed to it by an entity other than an Affiliate of Borrower;

(xviii)has maintained and will maintain its balance sheets, operating statements and other entity documents separate from any other Person and has not permitted and will not permit its assets to be listed as assets on the financial statement of any other entity except as required or permitted by applicable accounting principles acceptable to Lender, consistently applied; provided, however, that (i) any such consolidated financial statement shall contain a note indicating that it maintains separate balance sheets and operating statements for the Borrower and the Property, or (ii) if such Person is controlled by Inland Western Retail Real Estate Trust, Inc., then such Person may be included in the consolidated financial statement of Inland Western Retail Real Estate Trust, Inc. provided such consolidated financial statement contains a note indicating that it maintains separate financial records for each Person controlled by Inland Western Retail Real Estate Trust, Inc.;

(xix)has a sufficient number of employees in light of its contemplated business operations, which may be none;

(xx)has observed and will observe all partnership, corporate, limited liability company or Delaware statutory trust formalities, as applicable;

(xxi)has and will have no Indebtedness (including loans (whether or not such loans are evidenced by a written agreement) between Borrower and any Affiliates of Borrower and relating to the management of funds in the custodial account maintained by the Manager) other than (i) the Loan, (ii) liabilities incurred in the ordinary course of business relating to the ownership and operation of the Property and the routine administration of Borrower, which liabilities are not more than sixty (60) days past the date incurred (unless disputed in accordance with applicable law), are not evidenced by a note and are paid when due, and which amounts are normal and reasonable under the circumstances, and (iii) such other liabilities that are permitted pursuant to this Agreement;

(xxii)has not and will not assume or guarantee or become obligated for the debts of any other Person or hold out its credit as being available to satisfy the obligations of any other Person except as otherwise permitted pursuant to this Agreement;

(xxiii)has not and will not acquire obligations or securities of its partners, members, beneficiaries or shareholders or any other Affiliate;

(xxiv)has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, but not limited to, paying for shared office space and services performed by any employee of an affiliate;

(xxv)has not maintained or used, and will not maintain or use, invoices and checks bearing the name of any other Person, provided, however, that Manager, on behalf of such Person, may maintain and use invoices and checks bearing Manager’s name;

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(xxvi)has not pledged and will not pledge its assets for the benefit of any other Person except as permitted or required pursuant to this Agreement;

(xxvii)has held itself out and identified itself and will hold itself out and identify itself as a separate and distinct entity under its own name or in a name franchised or licensed to it by an entity other than an Affiliate of Borrower and not as a division or part of any other Person, except for services rendered by Manager under the Management Agreement, so long as Manager holds itself out as an agent of the Borrower;

(xxviii)has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;

(xxix)has not made and will not make loans to any Person or hold evidence of indebtedness issued by any other person or entity (other than cash and investment-grade securities issued by an entity that is not an Affiliate of or subject to common ownership with such entity);

(xxx)has not identified and will not identify its partners, members, beneficiaries or shareholders, or any Affiliate of any of them, as a division or part of it, and has not identified itself and shall not identify itself as a division of any other Person;

(xxxi)does not and will not have any of its obligations guaranteed by any Affiliate except as otherwise required in the Loan Documents;

(xxxii)has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, beneficiaries, shareholders or Affiliates except (A) in the ordinary course of its business and on terms which are intrinsically fair, commercially reasonable and are no less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party and (B) in connection with this Agreement; and

(xxxiii)has complied and will comply with all of the terms and provisions contained in its organizational documents. The statement of facts contained in its organizational documents are true and correct and will remain true and correct.

“State” shall mean, with respect to the Property, the State or Commonwealth in which the Property or any part thereof is located.

“Survey” shall mean a survey of the Property in question prepared by a surveyor licensed in the State and satisfactory to Lender and the company or companies issuing the Title Insurance Policy, and containing a certification of such surveyor satisfactory to Lender.

“Tax and insurance Escrow Fund” shall have the meaning set forth In Section 7.2 hereof regardless of whether the funds held therein are held by Lender for the payment of Taxes or Insurance Premiums or both.

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“Taxes” shall mean all real estate and personal property taxes, assessments, water rates or sewer rents, now or hereafter levied or assessed or imposed against the Property or any part thereof.

“Tenant” shall mean any person or entity with a possessory right to all or any part of the Property pursuant to a Lease or other written agreement.

“Terrorism Insurance Guarantor” shall have the meaning set forth in Section 6.1 hereof.

“Title Insurance Policy” shall mean, with respect to the Property, an ALTA mortgagee title insurance policy in the form (acceptable to Lender) (or, if the Property is in a State which does not permit the issuance of such ALTA policy, such form as shall be permitted in such State and acceptable to Lender) issued with respect to the Property and insuring the lien of the Mortgage encumbering the Property.

“Transferee” shall have the meaning set forth in Section 5.2.13 hereof.

“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in the applicable State in which the Property is located.

“U.S. Obligations” shall mean direct non-callable obligations of the United States of America as defined in Section 2(a)(16) of the Investment Company Act as amended (15 USC 80a-l) stated in REMIC Section 1.86 OG-2(a)(8).

Section 1.2Principles of Construction.  All references to sections and schedules are to sections and schedules in or to this Agreement unless otherwise specified. All uses of the word “including” shall mean “including, without limitation” unless the context shall indicate otherwise. Unless otherwise specified, the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified, all meanings attributed to defined terms herein shall be equally applicable to both the singular and plural forms of the terms so defined.

ARTICLE II

GENERAL TERMS

Section 2.1Loan Commitment; Disbursement to Borrower.

2.1.1The Loan.  Subject to and upon the terms and conditions set forth herein, Lender hereby agrees to make and Borrower hereby agrees to accept the Loan on the Closing Date.

2.1.2Disbursement to Borrower.  Borrower may request and receive only one borrowing hereunder in respect of the Loan and any amount borrowed and repaid hereunder in respect of the Loan may not be reborrowed.

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2.1.3The Note, Mortgage and Loan Documents.  The Loan shall be evidenced by the Note and secured by the Mortgage, the Assignment of Leases and the other Loan Documents.

2.1.4Use of Proceeds.  Borrower shall use the proceeds of the Loan to (a) repay and discharge any existing loans relating to the Property, (b) pay all past-due Basic Carrying Costs, if any, in respect of the Property, (c) make deposits into the Reserve Funds on the Closing Date in the amounts provided herein, (d) pay costs and expenses incurred in connection with the closing of the Loan, as approved by Lender, (e) fund any working capital requirements of the Property, and (f) distribute the balance, if any, to Borrower.

Section 2.2Interest; Loan Payments; Late Payment Charge.

2.2.1Interest Generally.  Interest on the outstanding principal balance of the Loan shall accrue from the Closing Date to but excluding the Maturity Date at the Interest Rate.

2.2.2Interest Calculation.  Interest on the outstanding principal balance of the Loan shall be calculated on the basis of a three hundred sixty (360) day year comprised of twelve (12) months of thirty (30) days each, except that interest due and payable for a period of less than a full month shall be calculated by multiplying the actual number of days elapsed in the period for which the calculation is being made by a daily rate based on a three hundred sixty (360) day year.

2.2.3Payments Generally.  Borrower shall pay to Lender (a) on the Closing Date, an amount equal to interest only on the outstanding principal balance of the Loan from the Closing Date up to but not including the first Payment Date following the Closing Date, and (b) on February 1, 2005 and each Payment Date thereafter up to but not including the Maturity Date, an amount equal to the Monthly Debt Service Payment Amount, which shall be applied to interest on the outstanding principal amount of the Loan for the prior calendar month at the Interest Rate.

2.2.4Intentionally Omitted.

2.2.5Payment on Maturity Date.  Borrower shall pay to Lender on the Maturity Date the outstanding principal balance of the Loan, all accrued and unpaid interest and all other amounts due hereunder and under the Note, the Mortgage and other the Loan Documents.

2.2.6Payments after Default.  Upon the occurrence and during the continuance of an Event of Default, interest on the outstanding principal balance of the Loan and, to the extent permitted by law, overdue interest and other amounts due in respect of the Loan, shall accrue at the Default Rate, calculated from the date such payment was due without regard to any grace or cure periods contained herein. Interest at the Default Rate shall be computed from the occurrence of the Event of Default until the earlier of (i) in the event of a non-monetary default, the cure of such Event of Default by Borrower and acceptance of such cure by Lender, and (ii) in the event of a monetary default, the actual receipt and collection of the Debt (or that portion thereof that is then due). To the extent permitted by applicable law, interest at the Default Rate shall be added to the Debt, shall itself accrue interest at the same rate as the Loan and shall be secured by the Mortgage. This paragraph shall not be construed as an agreement or privilege to

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extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of the occurrence of any Event of Default and Lender retains its lights under the Note and this Agreement to accelerate and to continue to demand payment of the Debt upon the happening and continuance of any Event of Default.

2.2.7Late Payment Charge.  If any principal, interest or any other sums due under the Loan Documents is not paid by Borrower on or prior to the date which is five (5) days after the date on which it is due, Borrower shall pay to Lender upon demand an amount equal to the lesser of five percent (5%) of such unpaid sum or the maximum amount permitted by applicable law in order to defray the expense incurred by Lender in handling and processing such delinquent payment and to compensate Lender for the loss of the use of such delinquent payment. Any such amount shall be secured by the Mortgage and the other Loan Documents to the extent permitted by applicable law. The foregoing late payment charge shall not apply to the payment of all outstanding principal, interest and other sums due on the Maturity Date.

2.2.8Usury Savings.  This Agreement and the Note are subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the principal balance of the Loan at a rate which could subject Lender to either civil or criminal liability as a result of being in excess of the Maximum Legal Rate. If, by the terms of this Agreement or the other Loan Documents, Borrower is at any time required or obligated to pay interest on the principal balance due hereunder at a rate in excess of the Maximum Legal Rate, the Interest Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced to the Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. All sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the sums due under the Loan, shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the Loan does not exceed the Maximum Legal Rate of interest from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.

Section 2.3Prepayments.

2.3.1Voluntary Prepayments.

(a)Except as otherwise provided herein, Borrower shall not have the right to prepay the Loan in whole or in part prior to the Permitted Prepayment Date. On or after the Permitted Prepayment Date, Borrower may, provided it has given Lender prior written notice in accordance with the terms of this Agreement, prepay the unpaid principal balance of the Loan in whole, but not in part, by paying, together with the amount to be prepaid, (i) interest accrued and unpaid on the outstanding principal balance of the Loan being prepaid to and including the date of prepayment, (ii) unless prepayment is tendered on a Payment Date, an amount equal to the interest that would have accrued on the amount being prepaid after the date of prepayment through and including the next Payment Date had the prepayment not been made (which amount shall constitute additional consideration for the prepayment), (iii) all other sums then due under this Agreement, the Note, the Mortgage and the other Loan Documents, and (iv) if prepayment occurs prior to the Payment Date which is one month prior to the Maturity Date, a prepayment

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consideration (the “Prepayment Consideration”) equal to the greater of (A) one percent (1%) of the outstanding principal balance of the Loan being prepaid or (B) the excess, if any, of (1) the sum of the present values of all then-scheduled payments of principal and interest under this Agreement including, but not limited to, principal and interest on the Maturity Date (with each such payment discounted to its present value at the date of prepayment at the rate which, when compounded monthly, is equivalent to the Prepayment Rate), over (2) the outstanding principal amount of the Loan. Lender shall notify Borrower of the amount and the basis of determination of the required prepayment consideration.

(b)On the Payment Date that is one month prior to the Maturity Date, and on each day thereafter through the Maturity Date, Borrower may, at its option, prepay the Debt without payment of any Prepayment Consideration or other penalty or premium; provided, however, if such prepayment is not paid on a regularly scheduled Payment Date, the Debt shall include interest that would have accrued on such prepayment through and including the day immediately preceding the Maturity Date. Borrower’s right to prepay any portion of the principal balance of the Loan shall be subject to (i) Borrower’s submission of a notice to Lender setting forth the amount to be prepaid and the projected date of prepayment, which date shall be no less than thirty (30) days from the date of such notice, and (ii) Borrower’s actual payment to Lender of the amount to be prepaid as set forth in such notice on the projected date set forth in such notice or any day following such projected date occurring in the same calendar month as such projected date.

2.3.2Mandatory Prepayments.  (a)On the next occurring Payment Date following the date on which Borrower actually receives any Net Proceeds, if Lender is not obligated to make such Net Proceeds available to Borrower pursuant to this Agreement for the restoration of the Property, Borrower shall, at Lender’s option, prepay the outstanding principal balance of the Note in an amount equal to one hundred percent (100%) of such Net Proceeds. No Prepayment Consideration or other penalty or premium shall be due in connection with any prepayment made pursuant to this Section 2.3.2. Any partial prepayment under this Section shall be applied to the last payments of principal due under the Loan.

(b)On the date on which Borrower tenders a Casualty/Condemnation Prepayment pursuant to Section 6.4(e) below, such tender shall include (a) all accrued and unpaid interest and the principal indebtedness being prepaid, including interest on the outstanding principal amount of the applicable Note through the last day of the month within which such tender occurs, and (b) any other sums due hereunder relating to the applicable Note. Except as set forth in this Section 2.3.2(b), other than following an Event of Default, no Prepayment Consideration or other penalty or premium shall be due in connection with any Casualty/Condemnation Prepayment.

2.3.3Prepayments after Default.  Following an Event of Default, if Borrower or anyone on Borrower’s behalf makes a tender of payment of all or any portion of the Debt at any time prior to a foreclosure sale (including a sale under the power of sale under the Mortgage), or during any redemption period after foreclosure, (i) the tender of payment shall constitute an evasion of Borrower’s obligation to pay any Prepayment Consideration due under this Agreement and such payment shall, therefore, to the maximum extent permitted by law, include a premium equal to the Prepayment Consideration that would have been payable on the date of

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such tender had the Loan not been so accelerated, or (ii) if at the time of such tender a prepayment of the principal amount of the Loan would have been prohibited under this Agreement had the principal amount of the Loan not been so accelerated, the tender of payment shall constitute an evasion of such prepayment prohibition and shall, therefore, to the maximum extent permitted by law, include an amount equal to the greater of (i) 1% of the then principal amount of the Loan (or the relevant portion thereof being prepaid) and (ii) an amount equal to the excess of (A) the sum of the present values of a series of payments payable at the times and in the amounts equal to the payments of principal and interest (including, but not limited to the principal and interest payable on the Maturity Date) which would have been scheduled to be payable after the date of such tender under this Agreement had the Loan (or the relevant portion thereof) not been accelerated, with each such payment discounted to its present value at the date of such tender at the rate which when compounded monthly is equivalent to the Prepayment Rate, over (B) the then principal amount of the Loan.

Section 2.4Intentionally Omitted.

Section 2.5Release of Property.  Except as set forth in this Section 2.5, no repayment or prepayment of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of any Lien of the Mortgage on the Property. If Borrower has elected to prepay the entire amount of the Loan pursuant to Section 2.3.1 and the requirements of this Section 2.5 have been satisfied, the Property shall be released from the Lien of the Mortgage.

2.5.1Release on Payment in Full.  Lender shall, upon the written request and at the expense of Borrower, upon payment in full of all principal and interest on the Loan and all other amounts due and payable under the Loan Documents in accordance with the terms and provisions of Section 2.3.1 of this Loan Agreement, release the Lien of the Mortgage on the Property not theretofore released.

2.5.2Intentionally Omitted.

Section 2.6Manner of Making Payments.

2.6.1Making of Payments.  Each payment by Borrower hereunder or under the Note shall be made in funds settled through the New York Clearing House Interbank Payments System or other funds immediately available to Lender by 1:00 p.m., New York City time, on the date such payment is due, to Lender by deposit to such account as Lender may designate by written notice to Borrower. Whenever any payment hereunder or under the Note shall be stated to be due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day.

2.6.2No Deductions Etc.  All payments made by Borrower hereunder or under the Note or the other Loan Documents shall be made irrespective of, and without any deduction for, any setoff, defense or counterclaims.

2.6.3Intentionally Omitted.

Section 2.7Intentionally Omitted.

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ARTICLE III

CONDITIONS PRECEDENT

Section 3.1Conditions Precedent to Closing.  The obligation of Lender to make the Loan hereunder is subject to the fulfillment by Borrower or waiver by Lender of the following conditions precedent no later than the Closing Date:

3.1.1Representations and Warranties; Compliance with Conditions.  The representations and warranties of Borrower contained in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on and as of such date, and no Default or an Event of Default shall have occurred and be continuing; and Borrower shall be in compliance in all material respects with all terms and conditions set forth in this Agreement and in each other Loan Document on its part to be observed or performed.

3.1.2Loan Agreement and Note.  Lender shall have received a copy of this Agreement and the Note, in each case, duly executed and delivered on behalf of Borrower.

3.1.3Delivery of Loan Documents; Title Insurance; Reports; Leases; Etc.

(a)Mortgage, Assignment of Leases and other Loan Documents.  Lender shall have received from Borrower fully executed and acknowledged counterparts of the Mortgage and the Assignment of Leases and evidence that counterparts of the Mortgage and Assignment of Leases have been delivered to the title company for recording, in the reasonable judgment of Lender, so as to effectively create upon such recording valid and enforceable first priority Liens upon the Property in favor of Lender (or such trustee as may be required under local law), subject only to the Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents. Lender shall have also received from Borrower fully executed counterparts of the Assignment of Management Agreement and the other Loan Documents.

(b)Title Insurance.  Lender shall have received a Title Insurance Policy issued by a title company acceptable to Lender and dated as of the Closing Date.  Such Title Insurance Policy shall (i) provide coverage in an amount equal to the principal amount of the Loan together with, if applicable, a “tie-in” or similar endorsement, (ii) insure Lender that the Mortgage creates a valid first priority lien on the Property encumbered thereby, free and clear of all exceptions from coverage other than Permitted Encumbrances and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements), (iii) contain such endorsements and affirmative coverages as Lender may reasonably request, and (iv) name Lender, its successors and assigns, as the insured. The Title Insurance Policy shall be assignable without cost to Lender. Lender also shall have received evidence that all premiums in respect of such Title Insurance Policy have been paid.

(c)Survey.  Lender shall have received a title survey for the Property, certified to the title company and Lender and their successors and assigns, in form and content satisfactory to Lender and prepared by a professional and properly licensed land surveyor satisfactory to Lender in accordance with the most recent Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys.  The following additional items from the

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list of “Optional Survey Responsibilities and Specifications” (Table A) should be added to each survey: 2, 3, 4, 6, 8, 9, 10, 11 and 13. The survey shall reflect the same legal description contained in the Title Insurance Policy relating to the Property referred to in clause (ii) above and shall include, among other things, a legal description of the real property comprising part of such Property reasonably satisfactory to Lender. The surveyor’s seal shall be affixed to each survey and the surveyor shall provide a certification for each survey in form and substance acceptable to Lender.

(d)Insurance.  Lender shall have received valid certificates of insurance for the policies of insurance required hereunder, satisfactory to Lender in its sole discretion, and evidence of the payment of all premiums payable for the existing policy period.

(e)Environmental Reports.  Lender shall have received an environmental report in respect of the Property, in each case reasonably satisfactory to Lender.

(f)Zoning.  With respect to the Property, Lender shall have received, at Lender’s option, (i) letters or other evidence with respect to the Property from the appropriate municipal authorities (or other Persons) concerning applicable zoning and building laws, (ii) an ALTA 3.1 zoning endorsement to the Title Insurance Policy or (iii) other evidence of zoning compliance, in each case in substance reasonably satisfactory to Lender.

(g)Encumbrances.  Borrower shall have taken or caused to be taken such actions in such a manner so that Lender has a valid and perfected first Lien on the Property as of the Closing Date with respect to the Mortgage, subject only to applicable Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents, and Lender shall have received satisfactory evidence thereof.

3.1.4Related Documents.  Each additional document not specifically referenced herein, but relating to the transactions contemplated herein, shall have been duly authorized, executed and delivered by all parties thereto and Lender shall have received and approved certified copies thereof.

3.1.5Delivery of Organizational Documents.  On or before the Closing Date, Borrower shall deliver or cause to be delivered to Lender copies certified by Borrower of all organizational documentation related to Borrower and/or the formation, structure, existence, good standing and/or qualification to do business, as Lender may request in its sole discretion, including, without limitation, good standing certificates, qualifications to do business in the appropriate jurisdictions, resolutions authorizing the entering into of the Loan and incumbency certificates as may be requested by Lender.

3.1.6Opinions of Borrower’s Counsel.  Lender shall have received opinions of Borrower’s counsel (and if applicable, Borrower’s local counsel) with respect to due execution, authority, enforceability of the Loan Documents and such other matters as Lender may reasonably require, all such opinions in form, scope and substance reasonably satisfactory to Lender and Lender’s counsel in their reasonable discretion.

3.1.7Budgets.  Borrower shall have delivered, and Lender shall have approved, the Annual Budget for the current Fiscal Year.

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3.1.8Basic Carrying Costs.  Borrower shall have paid all Basic Carrying Costs relating to the Property which are in arrears, including without limitation, (a) accrued but unpaid insurance premiums relating to the Property, (b) currently due and payable Taxes (including any in arrears) relating to the Property, and (c) currently due Other Charges relating to the Property, which amounts shall be funded with proceeds of the Loan.

3.1.9Completion of Proceedings.  All organizational proceedings taken or to be taken in connection with the transactions contemplated by this Agreement and other Loan Documents and all documents incidental thereto shall be reasonably satisfactory in form and substance to Lender, and Lender shall have received all such counterpart originals or certified copies of such documents as Lender may reasonably request.

3.1.10Payments.  All payments, deposits or escrows required to be made or established by Borrower under this Agreement, the Note and the other Loan Documents on or before the Closing Date shall have been paid.

3.1.11Tenant Estoppels.  Borrower shall exercise reasonable commercial efforts to deliver estoppel letters from Tenants occupying not less than eighty percent (80%) of the gross leasable area of the Property; provided, however, that, in the event that Borrower is unable to deliver some or all of the estoppels described above in this Section 3.1.11, Lender agrees that the requirement to deliver such letters to Lender shall be waived by Lender as a condition precedent to the closing of the Loan so long as Borrower delivers on or before the Closing Date, a certificate executed by Borrower with respect to all applicable leases which shall be in substantially the same form and contain the same terms as set forth in Lender’s standard form of estoppel certificate.  Borrower shall deliver to Lender an estoppel letter executed by Anchor Tenant in form reasonably acceptable to Lender.

3.1.12Transaction Costs.  Borrower shall have paid or reimbursed Lender for all title insurance premiums, recording and filing fees or taxes, costs of environmental reports, Physical Conditions Reports, appraisals and other reports, the fees and costs of Lender’s counsel and all other third party out-of-pocket expenses incurred in connection with the origination of the Loan.

3.1.13Material Adverse Change.  There shall have been no material adverse change in the financial condition or business condition of Borrower or the Property since the date of the most recent financial statements delivered to Lender.  The income and expenses of the Property, the occupancy leases thereof, and all other features of the transaction shall be as represented to Lender without material adverse change. Neither Borrower, any of its constituent Persons, shall be the subject of any bankruptcy, reorganization, or insolvency proceeding.

3.1.14Leases and Rent Roll.  Lender shall have received copies of all tenant leases, certified copies of any tenant leases as requested by Lender and certified copies of all ground leases affecting the Property.  Lender shall have received a current certified rent roll of the Property, reasonably satisfactory in form and substance to Lender.

3.1.15Subordination and Attornment.  Lender shall have received appropriate instruments acceptable to Lender in its commercially reasonable discretion subordinating any

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Leases of record prior to the Mortgage and including an agreement by such Tenants to attorn to Lender in the event of a foreclosure or delivery of a deed in lieu thereof.

3.1.16Tax Lot.  Lender shall have received evidence that the Property constitutes one (1) or more separate tax lots, which evidence shall be reasonably satisfactory in form and substance to Lender.

3.1.17Physical Conditions Reports.  Lender shall have received Physical Conditions Reports with respect to the Property, which reports shall be reasonably satisfactory in form and substance to Lender.

3.1.18Management Agreement.  Lender shall have received a certified copy of the Management Agreement with respect to the Property which shall be satisfactory in form and substance to Lender. Lender acknowledges that it has reviewed the Management Agreement, and as drafted, such Management Agreement does not violate Borrower’s covenant that affiliated agreements be on terms which are intrinsically fair, commercially reasonable and are no less favorable to it than would be obtained in a comparable arm’s length transaction with an unrelated third party.

3.1.19Appraisal.  Lender shall have received an appraisal of the Property, which shall be satisfactory in form and substance to Lender.

3.1.20Financial Statements.  Lender shall have received (a) a balance sheet with respect to the Property for the two most recent Fiscal Years and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years, each in form and substance reasonably satisfactory to Lender or (b) such other financial statements relating to the ownership and operation of the Property, in form and substance reasonably satisfactory to Lender.

3.1.21Further Documents.  Lender or its counsel shall have received such other and further approvals, opinions, documents and information as Lender or its counsel may have reasonably requested including the Loan Documents in form and substance reasonably satisfactory to Lender and its counsel.

3.1.22Environmental Insurance.  If required by Lender, Borrower shall have obtained a secured creditor environmental insurance policy with respect to the Property, which shall be in form and substance satisfactory to Lender. Any such policy shall have a term not less than the term of the Loan. Borrower shall have provided to Lender evidence that the premiums for such policy has been paid in full.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

Section 4.1Borrower Representations.  Borrower represents and warrants as of the date hereof and as of the Closing Date that:

4.1.1Organization.  Borrower has been duly organized and is validly existing and in good standing with requisite power and authority to own the Property and to transact the

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businesses in which it is now engaged. Borrower is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with the Property, businesses and operations. Borrower possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own the Property and to transact the businesses in which it is now engaged, and the sole business of Borrower is the ownership, management and operation of the Property.

4.1.2Proceedings.  Borrower has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the other Loan Documents.  This Agreement and such other Loan Documents have been duly executed and delivered by or on behalf of Borrower and constitute legal, valid and binding obligations of Borrower enforceable against Borrower in accordance with their respective terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

4.1.3No Conflicts.  The execution, delivery and performance of this Agreement and the other Loan Documents by Borrower will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance (other than pursuant to the Loan Documents) upon any of the property or assets of Borrower pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument to which Borrower is a party or by which any of Borrower’s property or assets is subject, nor will such action result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Borrower or any of Borrower’s properties or assets, and any consent, approval, authorization, order, registration or qualification of or with any court or any such regulatory authority or other governmental agency or body required for the execution, delivery and performance by Borrower of this Agreement or any other Loan Documents has been obtained and is in full force and effect.

4.1.4Litigation.  To Borrower’s knowledge, there are no actions, suits or proceedings at law or in equity by or before any Governmental Authority or other agency now pending or threatened against or affecting Borrower or the Property, which actions, suits or proceedings, if determined against Borrower or the Property, might materially adversely affect the condition (financial or otherwise) or business of Borrower or the condition or ownership of the Property.

4.1.5Agreements.  Except such instruments and agreements set forth as Permitted Exceptions in the Title Insurance Policy, Borrower is not a party to any agreement or instrument or subject to any restriction which might materially and adversely affect Borrower or the Property, or Borrower’s business, properties or assets, operations or condition, financial or otherwise.  To Borrower’s knowledge, Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party or by which Borrower or the Property are bound.  Borrower has no material financial obligation under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Borrower is a party or by which Borrower or the Property is otherwise bound, other than (a) obligations

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incurred in the ordinary course of the operation of the Property and (b) obligations under the Loan Documents.

4.1.6Title.  Borrower has good and indefeasible fee simple title to the real property comprising part of the Property and good title to the balance of the Property, free and clear of all Liens whatsoever except the Permitted Encumbrances, such other Liens as are permitted pursuant to the Loan Documents and the Liens created by the Loan Documents. The Mortgage, when properly recorded in the appropriate records, together with any Uniform Commercial Code financing statements required to be filed in connection therewith, will create (a) a valid, perfected lien on the Property, subject only to Permitted Encumbrances and the Liens created by the Loan Documents and (b) perfected security interests in and to, and perfected collateral assignment of, all personalty (including the Leases), all in accordance with the terms thereof, in each case subject only to any applicable Permitted Encumbrances, such other Liens as are permitted pursuant to the Loan Documents and the Liens created by the Loan Documents. There are no claims for payment for work, labor or materials affecting the Property which are due and unpaid under the contracts pursuant to which such work or labor was performed or materials provided which are or may become a lien prior to, or of equal priority with, the Liens created by the Loan Documents.

4.1.7Solvency; No Bankrupcy Filing.  Borrower (a) has not entered into the transaction or executed the Note, this Agreement or any other Loan Documents with the actual intent to hinder, delay or defraud any creditor and (b) received reasonably equivalent value in exchange for its obligations under such Loan Documents. Giving effect to the Loan, the fair saleable value of Borrower’s assets exceeds and will, immediately following the making of the Loan, exceed Borrower’s total liabilities, including, without limitation, subordinated, unliquidated, disputed and contingent liabilities. The fair saleable value of Borrower’s assets is and will, immediately following the making of the Loan, be greater than Borrower’s probable liabilities, including the maximum amount of its contingent liabilities on its debts as such debts become absolute and matured. Borrower’s assets do not and, immediately following the making of the Loan will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Borrower does not intend to, and does not believe that it will, incur debt and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such debt and liabilities as they mature (taking into account the timing and amounts of cash to be received by Borrower and the amounts to be payable on or in respect of obligations of Borrower). Except as expressly disclosed to Lender in writing, no petition in bankruptcy has been filed against Borrower, or to the best of Borrower’s knowledge, any constituent Person in the last seven (7) years, and neither Borrower, nor to the best of Borrower’s knowledge, any constituent Person in the last seven (7) years has ever made an assignment for the benefit of creditors or taken advantage of any insolvency act for the benefit of debtors. Neither Borrower nor any of its constituent Persons are contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of Borrower’s assets or property, and Borrower has no knowledge of any Person contemplating the filing of any such petition against it or such constituent Persons.

4.1.8Full and Accurate Disclosure.  To Borrower’s knowledge, no statement of fact made by Borrower in this Agreement or in any of the other Loan Documents contains any untrue statement of a material fact or omits to state any material fact necessary to make

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statements contained herein or therein not misleading.  There is no material fact presently known to Borrower which has not been disclosed to Lender which adversely affects, nor as far as Borrower can foresee, might adversely affect, the Property or the business, operations or condition (financial or otherwise) of Borrower.

4.1.9No Plan Assets.  Borrower is not an “employee benefit plan,” as defined in Section 3(3) of ERISA, subject to Title I of ERISA, and none of the assets of Borrower constitutes or will constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101.  In addition, (a) Borrower is not a “governmental plan” within the meaning of Section 3(32) of ERISA and (b) transactions by or with Borrower are not subject to state statutes regulating investment of, and fiduciary obligations with respect to, governmental plans similar to the provisions of Section 406 of ERISA or Section 4975 of the Code currently in effect, which prohibit or otherwise restrict the transactions contemplated by this Loan Agreement.

4.1.10Compliance.  To Borrower’s knowledge, Borrower and the Property and the use thereof comply in all material respects with all applicable Legal Requirements, including, without limitation, building and zoning ordinances and codes.  Borrower is not in default or violation of any order, writ, injunction, decree or demand of any Governmental Authority. There has not been committed by Borrower or, to Borrower’s knowledge, any other Person in occupancy of or involved with the operation or use of the Property any act or omission affording the federal government or any other Governmental Authority the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents.

4.1.11Financial Information.  All financial data, including, without limitation, the statements of cash flow and income and operating expense, that have been delivered to Lender in respect of the Property (i) are, to the best of Borrower’s knowledge, true, complete and correct in all material respects, (ii) accurately represent the financial condition of the Property as of the date of such reports, and (iii) to the extent prepared or audited by an independent certified public accounting firm, have been prepared in accordance with accounting principles reasonably acceptable to Lender, consistently applied throughout the periods covered, except as disclosed therein; provided, however, that if any financial data is delivered to Lender by any Person other than Borrower, Indemnitor or any of their Affiliates, or if such financial data has been prepared by or at the direction of any Person other than Borrower, Indemnitor or any of their Affiliates, then the foregoing representations with respect to such financial data shall be to the best of Borrower’s knowledge, after due inquiry.  Borrower does not have any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that are known to Borrower and reasonably likely to have a materially adverse effect on the Property or the operation thereof as a retail shopping center, except as referred to or reflected in said financial statements.  Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of Borrower from that set forth in said financial statements.

4.1.12Condemnation.  No Condemnation or other proceeding has been commenced or, to Borrower’s knowledge, is contemplated with respect to all or any portion of the Property or for the relocation of roadways providing access to the Property.

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4.1.13Federal Reserve Regulations.  No part of the proceeds of the Loan will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by Legal Requirements or by the terms and conditions of this Agreement or the other Loan Documents.

4.1.14Utilities and Public Access.  The Property has rights of access to public ways and is served by water, sewer, sanitary sewer and storm drain facilities adequate to service the Property for its respective intended uses.  All public utilities necessary or convenient to the full use and enjoyment of the Property are located either in the public right-of-way abutting the Property (which are connected so as to serve the Property without passing over other property) or in recorded easements serving the Property and such easements are set forth in and insured by the Title Insurance Policy.  All roads necessary for the use of the Property for their current respective purposes have been completed and dedicated to public use and accepted by all Governmental Authorities.

4.1.15Not a Foreign Person.  Borrower is not a “foreign person” within the meaning of §1445(f)(3) of the Code.

4.1.16Separate Lots.  The Property is comprised of one (1) or more parcels which constitute a separate tax lot or lots and does not constitute a portion of any other tax lot not a part of the Property.

4.1.17Assessments.  There are no pending, or to Borrower’s knowledge, proposed special or other assessments for public improvements or otherwise affecting the Property, nor are there any contemplated improvements to the Property that may result in such special or other assessments.

4.1.18Enforceability.  The Loan Documents are not subject to any right of rescission, set-off, counterclaim or defense by Borrower, including the defense of usury, nor would the operation of any of the terms of the Loan Documents, or the exercise of any right thereunder, render the Loan Documents unenforceable, and Borrower has not asserted any right of rescission, set-off, counterclaim or defense with respect thereto.

4.1.19No Prior Assignment.  There is no prior assignment of the Leases or any portion of the Rents by Borrower or any of its predecessors in interest, given as collateral security which are presently outstanding.

4.1.20Insurance.  Borrower has obtained and has delivered to Lender certified copies of all insurance policies reflecting the insurance coverages, amounts and other requirements set forth in this Agreement. To the best of Borrower’s knowledge, no claims have been made under any such policy, and no Person, including Borrower, has done, by act or omission, anything which would impair the coverage of any such policy.

4.1.21Use of Property.  The Property is used exclusively for retail purposes and other appurtenant and related uses.

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4.1.22Certificate of Occupancy; Licenses.  All certifications, permits, licenses and approvals, including without limitation, certificates of completion and occupancy permits required to be obtained by Borrower for the legal use, occupancy and operation of the Property as a retail shopping center have been obtained and are in full force and effect, and to the best of Borrower’s knowledge, after due inquiry, all certifications, permits, licenses and approvals, including without limitation, certificates of completion and occupancy permits required to be obtained by any Person other than Borrower for the legal use, occupancy and operation of the Property as a retail shopping center, have been obtained and are in full force and effect (all of the foregoing certifications, permits, licenses and approvals are collectively referred to as the “Licenses”). Borrower shall and shall cause all other Persons to, keep and maintain all licenses necessary for the operation of the Property as a retail shopping center. To Borrower’s knowledge, the use being made of the Property is in conformity with all certificates of occupancy issued for the Property.

4.1.23Flood Zone.  To the best of Borrower’s knowledge, after due inquiry, no Improvements on the Property are located in an area identified by the Federal Emergency Management Agency as an area having special flood hazards.

4.1.24Physical Condition.  Except as disclosed in the Physical Conditions Reports delivered to Lender in connecting with this Loan, to Borrower’s knowledge, the Property, including, without limitation, all buildings, improvements, parking facilities, sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, are in good condition, order and repair in all material respects; there exists no structural or other material defects or damages in the Property, whether latent or otherwise, and Borrower has not received notice from any insurance company or bonding company of any defects or inadequacies in the Property, or any part thereof, which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond.

4.1.25Boundaries.  To the best of Borrower’s knowledge, after due inquiry, all of the improvements which were included in determining the appraised value of the Property lie wholly within the boundaries and building restriction lines of the Property, and no improvements on adjoining properties encroach upon the Property, and no easements or other encumbrances upon the Property encroach upon any of the improvements, so as to affect the value or marketability of the Property except those which are insured against by title insurance.

4.1.26Leases.  The Property is not subject to any Leases other than the Leases described on the Rent Roll attached as Schedule IV hereto and made a part hereof (and subleases permitted under the Anchor Lease).  No Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and to Borrower’s knowledge after inquiry, there are no defaults thereunder by either party and there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. No Rent (including security deposits) has been paid more than one (1) month in advance of its due date.  All work to be performed by Borrower under each Lease has been performed as required and has been accepted

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by the applicable tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any tenant has already been received by such tenant. There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein which is outstanding. To Borrower’s knowledge after inquiry, except as set forth on Schedule IV, no tenant listed on Schedule IV has assigned its Lease or sublet all or any portion of the premises demised thereby, no such tenant holds its leased premises under assignment or sublease, nor does anyone except such tenant and its employees occupy such leased premises. No tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as set forth in Schedule IV, no tenant under any Lease has any right or option for additional space in the Improvements except as set forth in Schedule IV. To Borrower’s actual knowledge based on the Environmental Report delivered to Lender in connection herewith, no hazardous wastes or toxic substances, as defined by applicable federal, state or local statutes, rules and regulations, have been disposed, stored or treated by any tenant under any Lease on or about the leased premises nor does Borrower have any knowledge of any tenant’s intention to use its leased premises for any activity which, directly or indirectly, involves the use, generation, treatment, storage, disposal or transportation of any petroleum product or any toxic or hazardous chemical, material, substance or waste, except in either event, in compliance with applicable federal, state or local statues, rules and regulations.

4.1.27Survey.  The Survey for the Property delivered to Lender in connection with this Agreement has been prepared in accordance with the provisions of Section 3.1.3(c) hereof, and does not fail to reflect any material matter affecting the Property or the title thereto.

4.1.28Loan to Value.  The maximum principal amount of the Note does not exceed one hundred twenty-five percent (125%) of the fair market value of the Property as set forth on the appraisal of the Property delivered to Lender.

4.1.29Filing and Recording Taxes.  All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the acquisition of the Property by Borrower have been paid or are simultaneously being paid. All mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents, including,  without limitation, the Mortgage,  have been paid, and, under current Legal Requirements, the Mortgage is enforceable in accordance with its terms by Lender (or any subsequent holder thereof).

4.1.30Special Purpose Entity/Separateness.  (a)  Until the Debt has been paid in full, Borrower hereby represents, warrants and covenants that the Borrower is, shall be and shall continue to be a Special Purpose Entity.  If Borrower consists of more than one Person, each such Person shall be a Special Purpose Entity.

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(b)The representations,  warranties and covenants set forth in Section 4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.

(c)Intentionally omitted

4.1.31Management Agreement.  The Management Agreement is in full force and effect and, to Borrower’s knowledge, there is no default thereunder by any party thereto and no event has occurred that, with the passage of time and/or the giving of notice would constitute a default thereunder.

4.1.32Illegal Activity.  To Borrower’s knowledge, no portion of the Property has been or will be purchased with proceeds of any illegal activity.

4.1.33No Change in Facts or Circumstances; Disclosure.  All information submitted by Borrower to Lender and in all financial statements, rent rolls, reports, certificates and other documents submitted in connection with the Loan or in satisfaction of the terms thereof and all statements of fact made by Borrower in this Agreement or in any other Loan Document, are accurate, complete and correct in all material respects, provided, however, that if such information was provided to Borrower by non-affiliated third parties, Borrower represents that such information is, to the best of its knowledge after due inquiry, accurate, complete and correct in all material respects.  There has been no material adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading in any material respect or that otherwise materially and adversely affects or might materially and adversely affect the Property or the business operations or the financial condition of Borrower. Borrower has disclosed to Lender all material facts and has not failed to disclose any material fact that could cause any representation or warranty made herein to be materially misleading.

4.1.34Investment Company Act.  Borrower is not (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; (b) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (c) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

4.1.35Principal Place of Business and Organization.  Borrower shall not change its principal place of business set forth in the introductory paragraph of this Agreement without first giving Lender thirty (30) days prior written notice. Borrower shall not change the place of its organization as set forth in the introductory paragraph of this Agreement without the consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed.  Upon Lender’s request, Borrower shall execute and deliver additional financing statements, security agreements and other instruments which may be necessary to effectively evidence or perfect Lender’s security interest in the Property as a result of such change of principal place of business or place of organization.

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Section 4.2Survival of Representations.  Borrower agrees that all of the representations and warranties of Borrower set forth in Section 4.1 and elsewhere in this Agreement and in the other Loan Documents shall survive for so long as any amount remains owing to Lender under this Agreement or any of the other Loan Documents by Borrower.  All representations, warranties, covenants and agreements made in this Agreement or in the other Loan Documents by Borrower shall be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.

ARTICLE V

BORROWER COVENANTS

Section 5.1Affirmative Covenants.  From the Closing Date and until payment and performance in full of all obligations of Borrower under the Loan Documents or the earlier release of the Lien of the Mortgage encumbering the Property (and all related obligations) in accordance with the terms of this Agreement and the other Loan Documents, Borrower hereby covenants and agrees with Lender that:

5.1.1Existence; Compliance with Legal Requirements; Insurance.  Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, rights, licenses, permits and franchises and comply with all Legal Requirements applicable to it and the Property.  Borrower shall not commit, nor shall Borrower permit any other Person in occupancy of or involved with the operation or use of the Property to commit, any act or omission affording the federal government or any state or local government the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents. Borrower hereby covenants and agrees not to commit, permit or suffer to exist any act or omission affording such right of forfeiture. Borrower shall at all times maintain, preserve and protect all its franchises and trade names and preserve all the remainder of its property used or useful in the conduct of its business and shall keep the Property in good working order and repair, and from time to time make, or cause to be made, all reasonably necessary repairs, renewals, replacements, betterments and improvements thereto, all as more fully provided in the Mortgage. Borrower shall keep the Property insured at all times by financially sound and reputable insurers, to such extent and against such risks, and maintain liability and such other insurance, as is more fully provided in this Agreement. Borrower shall operate, or cause the tenant to operate, any Property that is the subject of an O&M Agreement (if any) in accordance with the terms and provisions thereof in all material respects. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding promptly initiated and conducted in good faith and with due diligence, the validity of any Legal Requirement, the applicability of any Legal Requirement to Borrower or the Property or any alleged violation of any Legal Requirement, provided that (i) no Event of Default has occurred and remains uncured; (ii) intentionally omitted; (iii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iv) the Property or any part thereof or interest therein will not be in danger of being sold, forfeited, terminated, cancelled or lost; (v) Borrower shall promptly upon final determination thereof comply with any such Legal Requirement determined to be valid or applicable or cure any violation of any Legal Requirement; (vi) such proceeding shall suspend the enforcement of

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the contested Legal Requirement against Borrower or the Property; and (vii) Borrower shall furnish such security as may be required in the proceeding, or as may be requested by Lender, to insure compliance with such Legal Requirement, together with all interest and penalties payable in connection therewith. Lender may apply any such security, as necessary to cause compliance with such Legal Requirement at any time when, in the reasonable judgment of Lender, the validity, applicability or violation of such Legal Requirement is finally established or the Property (or any part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost.

5.1.2Taxes and Other Charges.  Borrower shall pay or cause to be paid all Taxes and Other Charges now or hereafter levied or assessed or imposed against the Property or any part thereof as the same become due and payable; provided, however, Borrower’s obligation to directly pay to the appropriate taxing authority Taxes shall be suspended for so long as Borrower complies with the terms and provisions of Section 7.2 hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid.  Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.

5.1.3Litigation.  Borrower shall give prompt written notice to Lender of any litigation or governmental proceedings pending or threatened against Borrower which might

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materially adversely affect Borrower’s condition (financial or otherwise) or business or the Property.

5.1.4Access to Property.  Borrower shall permit agents, representatives and employees of Lender to inspect the Property or any part thereof at reasonable hours upon reasonable advance notice, subject to the rights of Tenants under their respective Leases.

5.1.5Notice of Default.  Borrower shall promptly advise Lender of any material adverse change in Borrower’s condition, financial or otherwise, or of the occurrence of any Default or Event of Default of which Borrower has knowledge.

5.1.6Cooperate in Legal Proceedings.  Borrower shall cooperate fully with Lender with respect to any proceedings before any court, board or other Governmental Authority which may in any way affect the rights of Lender hereunder or any rights obtained by Lender under any of the other Loan Documents and, in connection therewith, permit Lender, at its election, to participate in any such proceedings.

5.1.7Perform Loan Documents.  Borrower shall observe, perform and satisfy all the terms, provisions, covenants and conditions of, and shall pay when due all costs, fees and expenses to the extent required under the Loan Documents executed and delivered by, or applicable to, Borrower.

5.1.8Insurance Benefits.  Borrower shall cooperate with Lender in obtaining for Lender the benefits of any Insurance Proceeds lawfully or equitably payable in connection with the Property, and Lender shall be reimbursed for any expenses incurred in connection therewith (including reasonable attorneys’ fees and disbursements, and the payment by Borrower of the expense of an appraisal on behalf of Lender in case of a fire or other casualty affecting the Property or any part thereof) out of such Insurance Proceeds.

5.1.9Further Assurances.  Borrower shall, at Borrower’s sole cost and expense:

(a)furnish to Lender all instruments, documents, boundary surveys, footing or foundation surveys, certificates, plans and specifications, appraisals, title and other insurance reports and agreements, and each and every other document, certificate, agreement and instrument required to be furnished by Borrower pursuant to the terms of the Loan Documents or reasonably requested by Lender in connection therewith;

(b)execute and deliver to Lender such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect the collateral at any time securing or intended to secure the obligations of Borrower under the Loan Documents, as Lender may reasonably require; and

(c)do and execute all and such further lawful and reasonable acts, conveyances and assurances for the better and more effective carrying out of the intents and purposes of this Agreement and the other Loan Documents, as Lender shall reasonably require from time to time.

5.1.10Intentionally Omitted.

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5.1.11Financial Reporting.  (a) Borrower will keep and maintain or will cause to be kept and maintained on a Fiscal Year basis, in accordance with the requirements for a Special Purpose Entity set forth above, proper and accurate books, records and accounts reflecting all ofthe financial affairs of Borrower and all items of income and expense in connection with the operation on an individual basis of the Property. Lender shall have the right from time to time at all times during normal business hours upon reasonable notice to examine such books, records and accounts at the office of Borrower or other Person maintaining such books, records and accounts and to make such copies or extracts thereof as Lender shall desire. After the occurrence and during the continuance of an Event of Default, Borrower shall pay any costs and expenses incurred by Lender to examine Borrower’s accounting records with respect to the Property, as Lender shall reasonably determine to be necessary or appropriate in the protection of Lender’s interest.

(b)Borrower will furnish to Lender annually,  within ninety (90) days following the end of each Fiscal Year of Borrower, either (i) a complete copy of Borrower’s annual financial statements audited by an accounting firm or other independent certified public accountant reasonably acceptable to Lender in accordance with the requirements for a Special Purpose Entity set forth above, or (ii) a consolidated and annotated financial statement of Borrower and Sole Member (as applicable), audited by an accounting firm or other independent certified public accountant reasonably acceptable to Lender in accordance with the requirements for a Special Purpose Entity set forth above, together with unaudited financial statements relating to the Borrower and the Property.  Such financial statements for the Property for such Fiscal Year and shall contain statements of profit and loss for Borrower and the Property and a balance sheet for Borrower.  Such statements shall set forth the financial condition and the results of operations for the Property for such Fiscal Year, and shall include, but not be limited to, amounts representing annual Net Cash Flow, Net Operating Income, Gross Income from Operations and Operating Expenses.  Borrower’s annual financial statements shall be accompanied by (i) a comparison of the budgeted income and expenses and the actual income and expenses for the prior Fiscal Year, (ii) a certificate executed by the chief financial officer of Borrower or Sole Member, as applicable, stating that each such annual financial statement presents fairly the financial condition and the results of operations of Borrower and the Property being reported upon and has been prepared in accordance with accounting principles reasonably acceptable to Lender, consistently applied, (iii) an unqualified opinion of an accounting firm or other independent certified public accountant reasonably acceptable to Lender, (iv) a certified rent roll containing current rent, lease expiration dates and the square footage occupied by each tenant; (v) a schedule audited by such independent certified public accountant reconciling Net Operating Income to Net Cash Flow (the “Net Cash Flow Schedule”), which shall itemize all adjustments made to Net Operating Income to arrive at Net Cash Flow deemed material by such independent certified public accountant.  Together with Borrower’s annual financial statements, Borrower shall furnish to Lender an Officer’s Certificate certifying as of the date thereof whether there exists an event or circumstance which constitutes a Default or Event of Default under the Loan Documents executed and delivered by, or applicable to, Borrower, and if such Default or Event of Default exists, the nature thereof, the period of time it has existed and the action then being taken to remedy the same.

(c)Borrower will furnish, or cause to be furnished, to Lender on or before forty five (45) days after the end of each calendar quarter the following items, accompanied by a

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certificate of the chief financial officer of Borrower or Sole Member, as applicable, stating that such items are true, correct, accurate, and complete and fairly present the financial condition and results of the operations of Borrower and the Property (subject to normal year-end adjustments) as applicable: (i) a rent roll for the subject month accompanied by an Officer’s Certificate with respect thereto; (ii) quarterly and year-to-date operating statements (including Capital Expenditures) prepared for each calendar quarter, noting Net Operating Income, Gross Income from Operations, and Operating Expenses (not including any contributions to the Replacement Reserve Fund, and other information necessary and sufficient to fairly represent the financial position and results of operation of the Property during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses together with a detailed explanation of any variances of five percent (5%) or more between budgeted and actual amounts for such periods, all in form satisfactory to Lender; (iii) a calculation reflecting the annual Debt Service Coverage Ratio for the immediately preceding twelve (12) month period as of the last day of such month accompanied by an Officer’s Certificate with respect thereto; and (iv) a Net Cash Flow Schedule (such Net Cash Flow for the Borrower may be unaudited if it is certified by an officer of the Borrower). In addition, such certificate shall also be accompanied by a certificate of the chief financial officer of Borrower or Sole Member stating that the representations and warranties of Borrower set forth in Section 4.1.30(a) are true and correct as of the date of such certificate.

(d)For the partial year period commencing on the Closing Date, and for each Fiscal Year thereafter, Borrower shall submit to Lender an Annual Budget not later than thirty (30) days after the commencement of such period or Fiscal Year in form reasonably satisfactory to Lender.

(e)Borrower shall furnish to Lender, within ten (10) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information with respect to the operation of the Property and the financial affairs of Borrower as may be reasonably requested by Lender.

(f)Borrower shall furnish to Lender, within ten (10) Business Days after Lender’s request (or as soon thereafter as may be reasonably possible), financial and sales information from any Tenant designated by Lender (to the extent such financial and sales information is required to be provided under the applicable Lease and same is received by Borrower after request therefor).

(g)Borrower will cause Indemnitor to furnish to Lender annually, within one hundred twenty (120) days following the end of each Fiscal Year of Indemnitor, financial statements audited by an independent certified public accountant, which shall include an annual balance sheet and profit and loss statement of Indemnitor, in the form reasonably required by Lender.

(h)Any reports, statements or other information required to be delivered under this Agreement shall be delivered (i) in paper form, (ii) on a diskette, and (iii) if requested by Lender and within the capabilities of Borrower’s data systems without change or modification thereto, in electronic form and prepared using a Microsoft Word for Windows or WordPerfect

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for Windows files (which files may be prepared using a spreadsheet program and saved as word processing files).

5.1.12Business and Operations.  Borrower will continue to engage in the businesses presently conducted by it as and to the extent the same are necessary for the ownership, maintenance, management and operation of the Property.  Borrower will qualify to do business and will remain in good standing under the laws of each jurisdiction as and to the extent the same are required for the ownership, maintenance, management and operation of the Property.

5.1.13Title to the Property.  Borrower will warrant and defend (a) the title to the Property and every part thereof, subject only to Liens permitted hereunder (including Permitted Encumbrances) and (b) the validity and priority of the Liens of the Mortgage and the Assignment of Leases on the Property, subject only to Liens permitted hereunder (including Permitted Encumbrances), in each case against the claims of all Persons whomsoever.  Borrower shall reimburse Lender for any losses, costs, damages or expenses (including reasonable attorneys’ fees and court costs) incurred by Lender if an interest in the Property, other than as permitted hereunder, is claimed by another Person.

5.1.14Costs of Enforcement.  In the event (a) that the Mortgage encumbering the Property is foreclosed in whole or in part or that the Mortgage is put into the hands of an attorney for collection, suit, action or foreclosure, (b) of the foreclosure of any mortgage prior to or subsequent to the Mortgage encumbering the Property in which proceeding Lender is made a party, or (c) of the bankruptcy, insolvency, rehabilitation or other similar proceeding in respect of Borrower or any of its constituent Persons or an assignment by Borrower or any of its constituent Persons for the benefit of its creditors, Borrower, its successors or assigns, shall be chargeable with and agrees to pay all costs of collection and defense, including reasonable attorneys’ fees and costs, incurred by Lender or Borrower in connection therewith and in connection with any appellate proceeding or post-judgment action involved therein, together with all required service or use taxes.

5.1.15Estoppel Statement.  (a)  After request by Lender, Borrower shall within ten (10) days furnish Lender with a statement, duly acknowledged and certified, setting forth (i) the amount of the original principal amount of the Note, (ii) the unpaid principal amount of the Note, (iii) the applicable interest rate of the Note, (iv) the date installments of interest and/or principal were last paid, (v) any offsets or defenses to the payment of the Debt, if any, and (vi) that the Note, this Agreement, the Mortgage and the other Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such modification.

(b)Borrower shall use commercially reasonable efforts to deliver to Lender upon request, tenant estoppel certificates from each commercial tenant leasing space at the Property in form and substance reasonably satisfactory to Lender provided that Borrower shall not be required to deliver such certificates more frequently than one (1) time in any calendar year.

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(c)Within thirty (30) days of request by Borrower, Lender shall deliver to Borrower a statement setting forth the items described at (a)(i), (ii), (iii) and (iv) of this Section 5.1.15.

5.1.16Loan Proceeds.  Borrower shall use the proceeds of the Loan received by it on the Closing Date only for the purposes set forth in Section 2.1.4.

5.1.17Performance by Borrower.  Borrower shall in a timely manner observe, perform and fulfill each and every covenant, term and provision of each Loan Document executed and delivered by, or applicable to, Borrower, and shall not enter into or otherwise suffer or permit any amendment, waiver, supplement, termination or other modification of any Loan Document executed and delivered by, or applicable to, Borrower without the prior written consent of Lender.

5.1.18Confirmation of Representations.  Borrower shall deliver, in connection with any Securitization, (a) one or more Officer’s Certificates certifying as to the accuracy of all representations made by Borrower in the Loan Documents as of the date of the closing of such Securitization, and (b) certificates of the relevant Governmental Authorities in all relevant jurisdictions indicating the good standing and qualification of Borrower and its member as of the date of the Securitization.

5.1.19No Joint Assessment.  Borrower shall not suffer, permit or initiate the joint assessment of the Property (a) with any other real property constituting a tax lot separate from the Property, and (b) which constitutes real property with any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to such real property portion of the Property.

5.1.20Leasing Matters.  Any Leases with respect to the Property written after the Closing Date for more than the Relevant Leasing Threshold square footage shall be subject to the prior written approval of Lender, which approval may be given or withheld in the sole discretion of Lender. Lender shall approve or disapprove any such Lease within ten (10) Business Days of Lender’s receipt of a final execution draft of such Lease (including all exhibits, schedules, supplements, addenda or other agreements relating thereto) and a written notice from Borrower requesting Lender’s approval to such Lease, and such Lease shall be deemed approved, if Lender does not disapprove such Lease within said ten (10) Business Day period provided such written notice conspicuously states, in large bold type, that “PURSUANT TO SECTION 5.1.20 OF THE LOAN AGREEMENT, THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN TEN (10) BUSINESS DAYS OF LENDER’S RECEIPT OF SUCH LEASE AND WRITTEN NOTICE”.  Borrower shall furnish Lender with executed copies of all Leases. All renewals of Leases and all proposed Leases shall provide for rental rates comparable to existing local market rates (unless such rental rates are otherwise set forth in the Leases executed prior to the Closing Date).  All proposed Leases shall be on commercially reasonable terms and shall not contain any terms which would materially affect Lender’s rights under the Loan Documents. All Leases executed after the Closing Date shall provide that they are subordinate to the Mortgage encumbering the Property and that the tenant thereunder agrees to attorn to Lender or any purchaser at a sale by

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foreclosure or power of sale. Borrower (i) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner not to impair the value of the Property involved except that no termination by Borrower or acceptance of surrender by a tenant of any Lease shall be permitted unless by reason of a tenant default and then only in a commercially reasonable manner to preserve and protect the Property provided, however, that no such termination or surrender of any Lease covering more than the Relevant Leasing Threshold will be permitted without the written consent of Lender which consent may be withheld in the sole discretion of Lender; (iii) shall not collect any of the rents more than one (1) month in advance (other than security deposits); (iv) shall not execute any other assignment of lessor’s interest in the Leases or the Rents (except as contemplated by the Loan Documents); (v) shall not alter, modify or change the terms of the Leases in a manner inconsistent with the provisions of the Loan Documents without the prior written consent of Lender, which consent may be withheld in the sole discretion of Lender; and (vi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignment in connection with the Leases as Lender shall from time to time reasonably require. Notwithstanding the foregoing, Borrower may, without the prior written consent of Lender, terminate any Lease which demises less than the Relevant Leasing Threshold under any of the following circumstances: (i) the tenant under said Lease is in default beyond any applicable grace and cure period, and Borrower has the right to terminate such Lease; (ii) such termination is permitted by the terms of the Lease in question and Borrower has secured an obligation from a third party to lease the space under the Lease to be terminated at a rental equal to or higher than the rental due under the Lease to be terminated; and (iii) if the tenant under the Lease to be terminated, has executed a right under said Lease to terminate its lease upon payment of a termination fee to Borrower, and has in fact terminated its lease and paid said fee, Borrower may accept said termination.

5.1.21Alterations.  Subject to the rights of tenants to make alterations pursuant to the terms of their respective Leases, Borrower shall obtain Lender’s prior written consent to any alterations to any Improvements, which consent shall not be unreasonably withheld or delayed except with respect to alterations that may have a material adverse effect on Borrower’s financial condition, the value of the Property or the Net Operating Income. Notwithstanding the foregoing, Lender’s consent shall not be required in connection with any alterations that will not have a material adverse effect on Borrower’s financial condition, the value of the Property or the Net Operating Income, provided that such alterations are made in connection with (a) tenant improvement work performed pursuant to the terms of any Lease executed on or before the Closing Date, (b) tenant improvement work performed pursuant to the terms and provisions of a Lease and not adversely affecting any structural component of any Improvements, any utility or HVAC system contained in any Improvements or the exterior of any building constituting a part of any Improvements, (c) alterations performed in connection with the restoration of the Property after the occurrence of a casualty in accordance with the terms and provisions of this Agreement or (d) any structural alteration which costs less than $50,000.00 in the aggregate for all components thereof which constitute such alteration or any non-structural alteration which costs less than $100,000.00 in the aggregate for all components thereof which constitute such alteration. If the total unpaid amounts due and payable with respect to alterations to the Improvements at the Property (other than such amounts to be paid or reimbursed by tenants under the Leases) shall at any time equal or exceed $350,000.00 (the “Threshold Amount”),

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Borrower, upon Lender’s request, shall promptly deliver to Lender as security for the payment of such amounts and as additional security for Borrower’s obligations under the Loan Documents any of the following: (A) cash, (B) U.S. Obligations, (C) other securities having a rating acceptable to Lender and that the applicable Rating Agencies have confirmed in writing will not, in and of itself, result in a downgrade, withdrawal or qualification of the initial, or, if higher, then current ratings assigned in connection with any Securitization, or (D) a completion bond or letter of credit issued by a financial institution having a rating by Standard & Poor’s Ratings Group of not less than A-1+ if the term of such bond or letter of credit is no longer than three (3) months or, if such term is in excess of three (3) months, issued by a financial institution having a rating that is acceptable to Lender and that the applicable Rating Agencies have confirmed in writing will not, in and of itself, result in a downgrade, withdrawal or qualification of the initial, or, if higher, then current ratings assigned in connection with any Securitization. Such security shall be in an amount equal to the excess of the total unpaid amounts with respect to alterations to the Improvements on the Property (other than such amounts to be paid or reimbursed by tenants under the Leases) over the Threshold Amount and, if cash, may be applied from time to time, at the option of Borrower, to pay for such alterations. At the option of Lender, following the occurrence and during the continuance of an Event of Default, Lender may terminate any of the alterations and use the deposit to restore the Property to the extent necessary to prevent any material adverse effect on the value of the Property.

5.1.22Intentionally Omitted.

5.1.23Intentionally Omitted.

Section 5.2Negative Covenants.  From the Closing Date until payment and performance in full of all obligations of Borrower under the Loan Documents or the earlier release of the Lien of the Mortgage encumbering the Property in accordance with the terms of this Agreement and the other Loan Documents, Borrower covenants and agrees with Lender that it will not do, directly or indirectly, any of the following:

5.2.1Operation of Property.  Borrower shall not, without the prior consent of Lender, terminate the Management Agreement or otherwise replace the Manager or enter into any other management agreement with respect to the Property unless the Manager is in default thereunder beyond any applicable grace or cure period, in which event no consent by Lender shall be required.  Lender agrees that its consent will not be unreasonably withheld, delayed or conditioned provided that the Person chosen by Borrower as the replacement Manager is a Qualifying Manager and provided further that Borrower shall deliver an acceptable non-consolidation opinion covering such replacement Manager if such Person was not covered by such opinion delivered at the closing of the Loan.

5.2.2Liens.  Borrower shall not, without the prior written consent of Lender, create, incur, assume or suffer to exist any Lien on any portion of the Property or permit any such action to be taken, except:

(i)Permitted Encumbrances;

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(ii)Liens created by or related to Indebtedness permitted pursuant to the Loan Documents; and

(iii)Liens for Taxes or Other Charges not yet due (or that Borrower is contesting in accordance with the terms of Section 5.1.2 hereof).

5.2.3Dissolution.  Borrower shall not (a) engage in any dissolution, liquidation or consolidation or merger with or into any other business entity, (b) engage in any business activity not related to the ownership and operation of the Property, (c) transfer, lease or sell, in one transaction or any combination of transactions, the assets or all or substantially all of the properties or assets of Borrower except to the extent permitted by the Loan Documents, (d) modify, amend, waive or terminate its organizational documents or its qualification and good standing in any jurisdiction or (e) cause the Sole Member to (i) dissolve, wind up or liquidate or take any action, or omit to take an action, as a result of which the Sole Member would be dissolved, wound up or liquidated in whole or in part, or (ii) amend, modify, waive or terminate the certificate of limited partnership or partnership agreement of the Sole Member, in each case, without obtaining the prior written consent of Lender or Lender’s designee.

5.2.4Change in Business.  Borrower shall not enter into any line of business other than the ownership and operation of the Property, or make any material change in the scope or nature of its business objectives, purposes or operations, or undertake or participate in activities other than the continuance of its present business.

5.2.5Debt Cancellation.  Borrower shall not cancel or otherwise forgive or release any claim or debt (other than termination of Leases in accordance herewith) owed to Borrower by any Person, except for adequate consideration and in the ordinary course of Borrower’s business.

5.2.6Affiliate Transactions.  Borrower shall not enter into, or be a party to, any transaction with an Affiliate of Borrower or any of the partners of Borrower except in the ordinary course of business and on terms which are fully disclosed to Lender in advance and are no less favorable to Borrower or such Affiliate than would be obtained in a comparable arm’s-length transaction with an unrelated third party.

5.2.7Zoning.  Borrower shall not initiate or consent to any zoning reclassification of any portion of the Property or seek any variance under any existing zoning ordinance or use or permit the use of any portion of the Property in any manner that could result in such use becoming a non-conforming use under any zoning ordinance or any other applicable land use law, rule or regulation, without the prior consent of Lender.

5.2.8Assets.  Borrower shall not purchase or own any properties other than the Property owned by Borrower as of the Closing Date as reflected in the applicable Title Insurance Policy.

5.2.9Debt.  Borrower shall not create, incur or assume any Indebtedness other than the Debt except to the extent expressly permitted hereby.

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5.2.10No Joint Assessment.  Borrower shall not suffer, permit or initiate the joint assessment of the Property with (a) any other real property constituting a tax lot separate from the Property, or (b) any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the Lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to the Property.

5.2.11Intentionally Omitted.

5.2.12ERISA.  (a)  Borrower shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under the Note, this Agreement or the other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA.

(b)Borrower further covenants and agrees to deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan, as requested by Lender in its sole discretion, that (A) Borrower is not and does not maintain an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmental plan” within the meaning of Section 3(3) of ERISA; (B) Borrower is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (C) one or more of the following circumstances is true:

(i)Equity interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R. §2510.3-101(b)(2);

(ii)Less than twenty-five percent (25%) of each outstanding class of equity interests in Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R. §2510.3-101(f)(2); or

(iii)Borrower qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. §2510.3-101(c) or (e).

5.2.13Transfers.  Unless such action is permitted by the provisions of this Section 5.2.13, Borrower agrees that it will not (i) sell, assign, convey, transfer or otherwise dispose of its interests in the Property or any part thereof, (ii) permit any owner, directly or indirectly, of an ownership interest in the Property, to transfer such interest, whether by transfer of stock or other interest in Borrower or any entity, or otherwise, (iii) incur indebtedness (other than the Indebtedness permitted pursuant to the terms of this Agreement), (iv) mortgage, hypothecate or otherwise encumber or grant a security interest in the Property or any part thereof, (v) sell, assign, convey, transfer, mortgage, encumber, grant a security interest in, or otherwise dispose of any direct or indirect ownership interest in Borrower, or permit any owner of an interest in Borrower to do the same, or (vi) file a declaration of condominium with respect to the Property (any of the foregoing transactions, a “Transfer”). For purposes hereof, a “Transfer” shall not include (A) any issuance, sale or transfer of interests in Inland Western Retail Real Estate Trust, Inc., (B) transfer by devise or descent or by operation of law upon the death of a member of Borrower, and (C) a sale, transfer or hypothecation of a membership interest in Borrower, whichever the case may be, by the current member(s), as applicable, to an

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immediate family member (i.e., parents, spouses, siblings, children or grandchildren) of such member (or a trust for the benefit of any such persons).

(a)On and after the date that is twelve (12) months following the Closing Date, Lender shall not withhold its consent to a Transfer of the Property, provided that the following conditions are satisfied:

(1)the transferee of the Property shall be a Special Purpose Entity (the “Transferee”) which at the time of such transfer will be in compliance with the covenants contained in Section 5.1.1 and the representations contained in 4.1.30 hereof and which shall have assumed in writing (subject to the terms of Section 9.4 hereof) and agreed to comply with all the terms, covenants and conditions set forth in this Loan Agreement and the other Loan Documents, expressly including the covenants contained in Section 5.1.1 and the representations contained in 4.1.30 hereof;

(2)if requested by Lender, Borrower shall deliver confirmation in writing from the Rating Agencies that such proposed Transfer will not cause a downgrading, withdrawal or qualification of the then current rating of any securities issued pursuant to such Securitization;

(3)if Manager does not act as manager of the transferred Property then the manager of the Property must be a Qualifying Manager;

(4)no Event of Default shall have occurred and be continuing;

(5)if required or requested by any of the Rating Agencies, Borrower shall have caused counsel to render a substantive non-consolidation opinion which may be relied upon by the holder of the Note, the Ratings Agencies and their respective counsel, agents and representatives with respect to the proposed transaction, including the Transferee, which opinion shall be acceptable to Lender in its reasonable discretion;

(6)Borrower shall have paid (A) an assumption fee equal to one percent (1.0%) of the then outstanding principal balance of the Loan, and (B) the reasonable and customary third-party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer; provided, however, no assumption fee shall be required for a Transfer of the Property to a Transferee acceptable to Lender in connection with a joint venture between Inland Western Retail Real Estate Trust, Inc. and an institution acceptable to Lender provided Inland Western Retail Real Estate Trust, Inc., or an Affiliate wholly-owned (directly or indirectly) by Inland Western Retail Real Estate Trust, Inc., owns at least twenty percent (20%) of the ownership interests in such Transferee and for which Inland Western Retail Real Estate Trust, Inc., or an Affiliate wholly-owned (directly or indirectly) by Inland Western Retail Real Estate Trust,  Inc., is the managing entity and

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otherwise maintains operational and managerial control of such Transferee, provided that Borrower shall pay all of Lender’s reasonable and customary third-party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer and a processing fee of $5,000.

Lender shall approve or disapprove any proposed Transfer governed by this Section 5.2.13(a) within thirty (30) days of Lender’s receipt of a written notice from Borrower requesting Lender’s approval, provided such notice includes all information necessary to make such decision, and further provided that such written notice from Borrower shall conspicuously state, in large bold type, that “PURSUANT TO SECTION 5.2.13 OF THE LOAN AGREEMENT, A RESPONSE IS REQUIRED WITHIN THIRTY (30) DAYS OF LENDER’S RECEIPT OF THIS WRITTEN NOTICE”. If Lender fails to disapprove any such matter within such period, Borrower shall provide a second written notice requesting approval, which written notice shall conspicuously state, in large bold type, that “PURSUANT TO SECTION 5.2.13 OF THE LOAN AGREEMENT, THE MATTER DESCRIBED HEREIN SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN TEN (10) DAYS OF LENDER’S RECEIPT OF THIS WRITTEN NOTICE”. Thereafter, if Lender does not disapprove such matter within said ten (10) day period such matter shall be deemed approved.

(b)On and after the date that is twelve (12) months following the Closing Date, Lender shall not withhold its consent to, and shall not charge an assumption fee in connection with, (1) a Transfer of up to, in the aggregate, forty-nine percent (49%) of the direct or indirect ownership interests in Borrower, or (2) a Transfer of greater than forty-nine percent (49%) of the direct or indirect ownership interest in Borrower, provided that (A) such transfer is to a Qualified Entity (as defined below), and (B) Borrower shall pay all of Lender’s reasonable and customary third-party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer and a processing fee of $5,000. For purposes of this Agreement, a “Qualified Entity” shall mean an entity (x) with a net worth of $200,000,000 or more, (y) with sufficient experience (determined by Lender in its reasonable discretion) in the ownership and management of properties similar to the Property, and (z) which owns or manages retail properties containing at least 1,000,000 square feet of gross leasable area. If required or requested by any of the Rating Agencies, Borrower shall deliver a substantive non-consolidation opinion with respect to any party not now owning more than 49% of the ownership interests in Borrower acquiring more than 49% of the ownership interests in Borrower.

(c)Notwithstanding anything in this Section 5.2.13 to the contrary, on or after the date that is twelve (12) months after the Closing Date, Borrower shall be permitted to Transfer the entire Property in a single transaction to one newly-formed Special Purpose Entity which shall be wholly-owned subsidiary of Inland Western Retail Real Estate Trust, Inc. (“Permitted Affiliate Transferee”) which shall be approved by Lender in its reasonable discretion (“Permitted Affiliate Transfer”) provided (1) no Event of Default shall have occurred and be continuing, (2) the creditworthiness of Inland Western Retail Real Estate Trust, Inc., as applicable, has not deteriorated, in the sole discretion of Lender, from the Closing Date to the date of the proposed Transfer, and (3) Borrower shall have paid all reasonable and

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customary third party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer (but not any assumption or processing fee).

(d)Borrower, without the consent of Lender, may grant easements, restrictions, covenants, reservations and rights of way in the ordinary course of business for access, parking, water and sewer lines, telephone and telegraph lines, electric lines and other utilities or for other similar purposes, provided that no transfer, conveyance or encumbrance shall materially impair the utility and operation of the Property or materially adversely affect the value of the Property or the Net Operating Income of the Property. If Borrower shall receive any consideration in connection with any of said described transfers or conveyances, Borrower shall have the right to use any such proceeds in connection with any alterations performed in connection therewith, or required thereby. In connection with any transfer, conveyance or encumbrance permitted above, the Lender shall execute and deliver any instrument reasonably necessary or appropriate to evidence its consent to said action or to subordinate the Lien of the Mortgage to such easements, restrictions, covenants, reservations and rights of way or other similar grants upon receipt by the Lender of: (A) a copy of the instrument of transfer; and (B) an Officer’s Certificate stating with respect to any transfer described above, that such transfer does not materially impair the utility and operation of the Property or materially reduce the value of the Property or the Net Operating Income of the Property.

ARTICLE VI
INSURANCE; CASUALTY; CONDEMNATION

Section 6.1Insurance.  (a) Borrower shall obtain and maintain, or shall cause Anchor Tenant to maintain, insurance for Borrower and the Property providing at least the following coverages:

(i)comprehensive all risk insurance on the Improvements and the Personal Property, including contingent liability from Operation of Building Laws, Demolition Costs and Increased Cost of Construction Endorsements, in each case (A) in an amount equal to one hundred percent (100%) of the “Full Replacement Cost,” which for purposes of this Agreement shall mean actual replacement value (exclusive of costs of excavations, foundations, underground utilities and footings) with a waiver of depreciation; (B) containing an agreed amount endorsement with respect to the Improvements and Personal Property waiving all co-insurance provisions; (C) providing for no deductible in excess of Ten Thousand and No/100 Dollars ($10,000) for all such insurance coverage; and (D) containing an “Ordinance or Law Coverage” or “Enforcement” endorsement if any of the Improvements or the use of the Property shall at any time constitute legal non-conforming structures or uses. In addition, Borrower shall obtain: (y) if any portion of the Improvements is currently or at any time in the future located in a federally designated “special flood hazard area”, flood hazard insurance in an amount equal to the lesser of (1) the outstanding principal balance of the Note or (2) the maximum amount of such insurance available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended or such greater amount as Lender shall require; and (z)earthquake insurance in amounts and in form and substance satisfactory to Lender in the event the Property is located in an area with a high degree of seismic activity, provided that the

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insurance pursuant to clauses (y) and (z) hereof shall be on terms consistent with the comprehensive all risk insurance policy required under this subsection (i).

(ii)commercial general liability insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about the Property, such insurance (A) to be on the so-called “occurrence” form with a combined limit, including umbrella coverage, of not less than Five Million and No/100 Dollars ($5,000,000.00); (B) to continue at not less than the aforesaid limit until required to be changed by Lender in writing by reason of changed economic conditions making such protection inadequate; and (C) to cover at least the following hazards: (1) premises and operations; (2) products and completed operations on an “if any” basis; (3) independent contractors; (4) blanket contractual liability for all legal contracts; and (5) contractual liability covering the indemnities contained in Article 9 of the Mortgage to the extent the same is available;

(iii)business income insurance (A) with loss payable to Lender; (B) covering all risks required to be covered by the insurance provided for in subsection (i) above; (C) covering rental losses or business interruption, as may be applicable, for a period of at least twelve (12) months after the date of the casualty; and (D) in an annual amount equal to (100%) of the rents or estimated gross revenues from the operation of the Property (as reduced to reflect expenses not incurred during a period of Restoration). The amount of such business income insurance shall be determined prior to the date hereof and at least once each year thereafter based on Borrower’s reasonable estimate of the gross income from the Property for the succeeding twelve (12) month period. All proceeds payable to Lender pursuant to this subsection shall be held by Lender and shall be applied to the obligations secured by the Loan Documents from time to time due and payable hereunder and under the Note; provided, however, that nothing herein contained shall be deemed to relieve Borrower of its obligations to pay the obligations secured by the Loan Documents on the respective dates of payment provided for in the Note and the other Loan Documents except to the extent such amounts are actually paid out of the proceeds of such business income insurance;

(iv)at all times during which structural construction, repairs or alterations are being made with respect to the Improvements, and only if the Property coverage form does not otherwise apply, (A) owner’s contingent or protective liability insurance covering claims not covered by or under the terms or provisions of the above mentioned commercial general liability insurance policy; and (B) the insurance provided for in subsection (i) above written in a so-called builder’s risk completed value form (1) on a non-reporting basis, (2) against all risks insured against pursuant to subsection (i) above, (3) including permission to occupy the Property, and (4) with an agreed amount endorsement waiving co-insurance provisions;

(v)workers’ compensation, subject to the statutory limits of the State;

(vi)comprehensive boiler and machinery insurance, if applicable, in amounts as shall be reasonably required by Lender on terms consistent with the commercial property insurance policy required under subsection (i) above;

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(vii)umbrella liability insurance in an amount not less than Five Million and No/100 Dollars ($5,000,000.00) per occurrence on terms consistent with the commercial general liability insurance policy required under subsection (ii) above;

(viii)if any of the policies of insurance covering the risks required to be covered under subsections (i) through (vii) above contains an exclusion from coverage for acts of terrorism, Borrower shall obtain and maintain a separate policy providing such coverages in the event of any act of terrorism, provided such coverage is commercially available for properties similar to the Property and located in or around the region in which the Property is located. Notwithstanding the foregoing, Borrower shall not be required to obtain such a policy, provided (I) Borrower confirms to Lender, in writing, that it shall protect and hold Lender harmless from any losses associated with such risks by, among other things, either (A) depositing with Lender sums sufficient to pay for all uninsured costs related to a Restoration of the Property following any act of terrorism (which sum shall be treated as a Net Proceeds Deficiency), or (B) provided such act of terrorism occurs on or after the Permitted Prepayment Date, prepaying the Loan in accordance with the terms hereof; (II) Inland Western Retail Real Estate Trust, Inc. (“Terrorism Insurance Guarantor”) executes a guaranty, in form and substance satisfactory to Lender, guaranteeing in the event of any act of terrorism, payment to Lender of any sums that Borrower is obligated to pay to Lender under clause (I) above (which shall be applied in accordance with Section 6.4 hereof) and (III) Terrorism Insurance Guarantor maintains a net worth of at least $300,000,000 (as determined by such entity’s most recent audited financial statements), such entity maintains a direct or indirect ownership interest in Borrower, and the aggregate loan-to-value ratio (as determined by Lender) (“LTV”) for all properties on which such entity has a direct or indirect ownership interest shall not exceed 55%, however, Terrorism Insurance Guarantor may exceed the 55% LTV for a period not to exceed six (6) months out of any twelve (12) month period either 1) during the time period when Terrorism Insurance Guarantor is offering securities to the public, or 2) when in the business judgement of Terrorism Insurance Guarantor, exceeding an LTV of 55% is necessary given existing circumstances of the credit environment, but in no event shall the LTV exceed 65% if Terrorism Insurance Guarantor maintains a net worth greater than or equal to $300,000,000, but less than $400,000,000, or 70% if Terrorism Insurance Guarantor maintains a net worth of at least $400,000,000.

(ix)upon sixty (60) days’ written notice, such other reasonable insurance and in such reasonable amounts as Lender from time to time may reasonably request against such other insurable hazards which at the time are commonly insured against for property similar to the Property located in or around the region in which the Property is located.

(b)All insurance provided for in Section 6.1(a) shall be obtained under valid and enforceable policies (collectively, the “Policies” or in the singular, the “Policy”), and shall be subject to the approval of Lender as to insurance companies, amounts, deductibles, loss payees and insureds. The Policies shall be issued by financially sound and responsible insurance companies authorized to do business in the State and having a rating of “A:X” or better in the current Best’s Insurance Reports and a claims paying ability rating of “AA” or better by at least two (2) of the Rating Agencies including, (i) Standard & Poor’s Ratings Group, and (ii) Moody’s Investors Services, Inc. if Moody’s Investors Service, Inc. is rating the Securities. The Policies

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described in Section 6.1 (other than those strictly limited to liability protection) shall designate Lender as loss payee. Not less than thirty (30) days prior to the expiration dates of the Policies theretofore furnished to Lender, certificates of insurance evidencing the Policies accompanied by evidence satisfactory to Lender of payment of the premiums due thereunder (the “Insurance Premiums”), shall be delivered by Borrower to Lender.

(c)Any blanket insurance Policy shall specifically allocate to the Property the amount of coverage from time to time required hereunder and shall otherwise provide the same protection as would a separate Policy insuring only the Property in compliance with the provisions of Section 6.1(a).

(d)All Policies of insurance provided for or contemplated by Section 6.1(a), except for the Policy referenced in Section 6.1(a)(v), shall name Borrower, or the Tenant, as the insured and Lender as the additional insured, as its interests may appear, and in the case of property damage, boiler and machinery, flood and earthquake insurance, shall contain a so-called New York standard non-contributing mortgagee clause in favor of Lender providing that the loss thereunder shall be payable to Lender.

(e)All Policies of insurance provided for in Section 6.1(a) shall contain clauses or endorsements to the effect that:

(i)no act or negligence of Borrower, or anyone acting for Borrower, or of any Tenant or other occupant, or failure to comply with the provisions of any Policy, which might otherwise result in a forfeiture of the insurance or any part thereof, shall in any way affect the validity or enforceability of the insurance insofar as Lender is concerned;

(ii)the Policy shall not be materially changed (other than to increase the coverage provided thereby) or canceled without at least thirty (30) days’ written notice to Lender and any other party named therein as an additional insured;

(iii)the issuers thereof shall give written notice to Lender if the Policy has not been renewed fifteen (15) days prior to its expiration; and

(iv)Lender shall not be liable for any Insurance Premiums thereon or subject to any assessments thereunder.

(f)If at any time Lender is not in receipt of written evidence that all insurance required hereunder is in full force and effect, Lender shall have the right, after ten (10) Business Days written notice to Borrower, to take such action as Lender deems necessary to protect its interest in the Property, including, without limitation, the obtaining of such insurance coverage as Lender in its sole discretion deems appropriate.  All premiums incurred by Lender in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by Borrower to Lender upon demand and, until paid, shall be secured by the Mortgage and shall bear interest at the Default Rate. If Borrower fails in so insuring the Property or in so assigning and delivering the Policies, Lender may, at its option, obtain such insurance using such carriers and agencies as Lender shall elect from year to year and pay the premiums therefor, and Borrower will reimburse Lender for any premium so paid, with interest thereon as stated in the

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Note from the time of payment, on demand, and the amount so owning to Lender shall be secured by the Mortgage. The insurance obtained by Lender may, but need not, protect Borrower’s interest and the coverage that Lender purchases may not pay any claim that Borrower makes or any claim that is made against Borrower in connection with the Property.

Section 6.2Casualty.  If the Property shall be damaged or destroyed, in whole or in part, by fire or other casualty (a “Casualty”), Borrower (a) shall give to Lender prompt notice of such damage reasonably estimated by Borrower to cost more than One Hundred Thousand Dollars ($100,000.00) to repair, and (b) shall promptly commence and diligently prosecute the completion of the repair and restoration of the Property as nearly as possible to the condition the Property was in immediately prior to such fire or other casualty, with such alterations as may be reasonably approved by Lender (a “Restoration”) and otherwise in accordance with Section 6.4. Borrower shall pay all costs of such Restoration whether or not such costs are covered by insurance. Lender may, but shall not be obligated to make proof of loss if not made promptly by Borrower.

Section 6.3Condemnation.

(a)Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the Condemnation of the Property and shall deliver to Lender copies of any and all papers served in connection with such proceedings. Lender may participate in any such proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Debt, Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note, If the Property or any portion thereof is taken by a condemning authority, Borrower shall promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the provisions of Section 6.4. If the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.

Section 6.4Restoration.

(a)If the Net Proceeds shall be less than Relevant Restoration Threshold and the costs of completing the Restoration shall be less than the Relevant Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to

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satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.

(b)If the Net Proceeds are equal to or greater than the Relevant Restoration Threshold or the costs of completing the Restoration is equal to or greater than the Relevant Restoration Threshold, then in either case, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4(b). The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (x) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi) and (viii) as a result of such damage or destruction, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting same (“Insurance Proceeds”), or (y) the net amount of the Award, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.

(i)The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:

(A)no Event of Default shall have occurred and be continuing;

(B)(1) in the event the Net Proceeds are Insurance Proceeds, and (x) less than twenty-five percent (25%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such fire or other casualty, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property, or (2) in the event the Net Proceeds are Condemnation Proceeds, and (x) less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property;

(C)Leases demising in the aggregate a percentage amount equal to or greater than the Rentable Space Percentage of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such fire or other casualty or taking, whichever the case may be, and will make all necessary repairs and restorations thereto at their sole cost and expense. The term “Rentable Space Percentage” shall mean (x) in the event the Net Proceeds are Insurance Proceeds, a percentage amount equal to fifty percent (50%) and (y)  in the event the Net Proceeds are Condemnation Proceeds, a percentage amount equal to fifty percent (50%);

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(D)Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than ninety (90) days after such damage or destruction or taking, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion;

(E)Lender shall be satisfied that any operating deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the Property as a result of the occurrence of any such fire or other casualty or taking, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 6.1(a)(iii), if applicable, or (3) by other funds of Borrower;

(F)Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) the Maturity Date, (2) the earliest date required for such completion under the terms of any Leases, (3) such time as may be required under applicable zoning law, ordinance, rule or regulation in order to repair and restore the Property to the condition it was in immediately prior to such fire or other casualty or to as nearly as possible the condition it was in immediately prior to such taking, as applicable or (4) the expiration of the insurance coverage referred to in Section 6.1(a)(iii);

(G)the Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable zoning laws, ordinances, rules and regulations provided, however, that compliance with such zoning laws, ordinances, rules and regulations (including, without limitation, parking requirements)  will not require restoration of the Improvements or the Property to a size, condition, or configuration materially different than that which existed immediately prior to such Casualty or taking;

(H)the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable governmental laws, rules and regulations (including, without limitation, all applicable environmental laws);

(I)such fire or other casualty or taking, as applicable, does not result in the loss of access to the Property or the related Improvements;

(J)the Debt Service Coverage Ratio, after giving effect to the Restoration, shall be equal to or greater than 2.50:1.0;

(K)Borrower shall deliver or cause to be delivered to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, which budget should be consistent with restoration budgets of similar retail

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properties then owned and operated by nationally recognized owners and operators of retail properties located in the areas in which the Property is located; and

(L)the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s discretion to cover the cost of the Restoration.

(ii)The Net Proceeds shall be held by Lender in an interest bearing account and, until disbursed in accordance with the provisions of this Section 6.4(b), shall constitute additional security for the Debt and other obligations under the Loan Documents. The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all materials installed and work and labor performed to be paid for out of the requested disbursement in connection with the Restoration have been performed, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy.

(iii)All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Casualty Consultant”), such review and acceptance not to be unreasonably withheld or delayed. Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration, as well as the contracts under which they have been engaged, shall be subject to prior review and acceptance by Lender and the Casualty Consultant, such review and acceptance not to be unreasonably withheld or delayed. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be paid by Borrower.

(iv)In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Casualty Retainage. The term “Casualty Retainage” shall mean an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until the Restoration has been completed. The Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Section 6.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Casualty Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the

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provisions of this Section 6.4(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate governmental and quasi-governmental authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Casualty Retainage; provided, however, that Lender will release the portion of the Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company issuing the Title Insurance Policy, and Lender receives an endorsement to the Title Insurance Policy insuring the continued priority of the lien of the Mortgage and evidence of payment of any premium payable for such endorsement. If required by Lender, the release of any such portion of the Casualty Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.

(v)Lender shall not be obligated to make disbursements of the Net Proceeds more frequently than once every calendar month.

(vi)If at any time the Net Proceeds or the undisbursed balance thereof shall not, in the reasonable opinion of Lender in consultation with the Casualty Consultant, be sufficient to pay in full the balance of the costs which are estimated by the Casualty Consultant to be incurred in connection with the completion of the Restoration, Borrower shall deposit the deficiency (the “NetProceeds Deficiency”) with Lender before any further disbursement of the Net Proceeds shall be made. The Net Proceeds Deficiency deposited with Lender shall be held by Lender and shall be disbursed for costs actually incurred in connection with the Restoration on the same conditions applicable to the disbursement of the Net Proceeds, and until so disbursed pursuant to this Section 6.4(b) shall constitute additional security for the Debt and other obligations under the Loan Documents.

(vii)The excess, if any, of the Net Proceeds and the remaining balance, if any, of the Net Proceeds Deficiency deposited with Lender after the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 6.4(b), and the receipt by Lender of evidence satisfactory to Lender that all costs incurred in connection with the Restoration have been paid in full, shall be remitted by Lender to Borrower, provided no Event of Default shall have occurred and shall be continuing under the Note, this Agreement or any of the other Loan Documents.

(c)All Net Proceeds not required (i) to be made available for the Restoration or (ii) to be returned to Borrower as excess Net Proceeds pursuant to Section 6.4(b)(vii) may be retained and applied by Lender toward the payment of the Debt whether or not then due and payable in such order, priority and proportions as Lender in its sole discretion shall deem proper

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(provided no Event of Default exists, such Borrower shall not be required to pay any Prepayment Consideration in connection with such payment), or, at the discretion of Lender, the same may be paid, either in whole or in part, to Borrower for such purposes as Lender shall designate, in its discretion.

(d)In the event of foreclosure of the Mortgage with respect to the Property, or other transfer of title to the Property in extinguishment in whole or in part of the Debt all right, title and interest of Borrower in and to the Policies that are not blanket Policies then in force concerning the Property and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure or Lender or other transferee in the event of such other transfer of title.

(e)Lender shall with reasonable promptness following any Casualty or Condemnation notify Borrower whether or not Net Proceeds are required to be made available to Borrower for restoration pursuant to this Section 6.4.  All Net Proceeds not required to be made available for Restoration shall be retained and applied by Lender in accordance with Section 2.3.2(a) hereof (a “NetProceeds Prepayment”).  If such Net Proceeds Prepayment shall be equal to or greater than Eight Million and 00/100 Dollars ($8,000,000.00), Borrower shall have the right to elect to prepay the remaining outstanding principal balance of the Note (a “Casualty/Condemnation Prepayment”) in accordance with Section 2.3.2(b) hereof upon satisfaction of the following conditions: (i) within thirty (30) days following the date of the Net Proceeds Prepayment, Borrower shall provide Lender with written notice of Borrower’s intention to pay the Note in full, (ii) Borrower shall prepay the Note in accordance with Section 2.3.2(b) hereof on or before the second Payment Date occurring following the date of the Net Proceeds Prepayment, and (iii) no Event of Default shall exist on the date of such Casualty/Condemnation Prepayment. Notwithstanding anything in Section 6.2 or Section 6.3 to the contrary, Borrower shall have no obligation to commence Restoration of the Property upon delivery of the written notice set forth in clause (i) of the preceding sentence (unless Borrower subsequently shall fail to satisfy the requirement of clause (ii) of the preceding sentence).

ARTICLE VII
RESERVE FUNDS

Section 7.1Required Repair Funds.

7.1.1Deposits.  Borrower shall perform the repairs at the Property, if any, as more particularly set forth on Schedule III hereto (such repairs hereinafter referred to as “Required Repairs”) within six (6) months from the Closing Date, or such earlier time as specified on Schedule III. If Borrower has not delivered to Lender evidence reasonably satisfactory to Lender that it has completed all Required Repairs on or before the date that is six (6) months from the Closing Date, or such earlier time as specified on Schedule III, Borrower shall deposit with Lender the amount for the Property set forth on such Schedule III hereto, if any (less the amount allocated to the performance of Required Repairs for which evidence of completion has been delivered to Lender), to perform the Required Repairs for the Property.  Amounts so deposited with Lender, if any, shall be held by Lender in an interest bearing account. Amounts so deposited, if any, shall hereinafter be referred to as Borrower’s “Required Repair Fund” and the account, if any, in which such amounts are held shall hereinafter be referred to as

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Borrower’s “Required Repair Account”. It shall be an Event of Default under this Agreement if Borrower does not either (i) does not deposit with Lender the Required Repair Fund as set forth above, or (ii) complete the Required Repairs at the Property within nine (9) months from the Closing Date. Upon the occurrence of such an Event of Default, Lender, at its option, may withdraw all Required Repair Funds from the Required Repair Account and Lender may apply such funds either to completion of the Required Repairs at the Property or toward payment of the Debt in such order, proportion and priority as Lender may determine in its sole discretion. Lender’s right to withdraw and apply Required Repair Funds shall be in addition to all other rights and remedies provided to Lender under this Agreement and the other Loan Documents.

7.1.2Release of Required Repair Funds.  Lender shall disburse to Borrower the Required Repair Funds from the Required Repair Account from time to time upon satisfaction by Borrower of each of the following conditions: (i) Borrower shall submit a written request for payment to Lender at least fifteen (15) days prior to the date on which Borrower requests such payment be made and specifies the Required Repairs to be paid, (ii) on the date such request is received by Lender and on the date such payment is to be made, no Default or Event of Default shall exist and remain uncured, (iii) Lender shall have received a certificate from Borrower (A) stating that all Required Repairs at the Property to be funded by the requested disbursement have been completed in good and workmanlike manner and in accordance with all applicable federal, state and local laws, rules and regulations, such certificate to be accompanied by a copy of any license, permit or other approval by any Governmental Authority required to commence and/or complete the Required Repairs, (B) identifying each Person that supplied materials or labor in connection with the Required Repairs performed at the Property to be funded by the requested disbursement under a contract in excess of $50,000, and (C) stating that each Person who has supplied materials or labor in connection with the Required Repairs to be funded by the requested disbursement has been paid in full or will be paid in full upon such disbursement, such certificate to be accompanied by lien waivers or other evidence of payment satisfactory to Lender, (iv) at Lender’s option, a title search for the Property indicating that the Property is free from all liens, claims and other encumbrances not previously approved by Lender, and (v) Lender shall have received such other evidence as Lender shall reasonably request that the Required Repairs at the Property to be funded by the requested disbursement have been completed and are paid for or will be paid upon such disbursement to Borrower. Lender shall not be required to make disbursements from the Required Repair Account with respect to the Property more than once each calendar month and such disbursement shall be made only upon satisfaction of each condition contained in this Section 7.1.2.

Section 7.2Tax and Insurance Escrow Fund.

Borrower shall pay to Lender on each Payment Date (a) one-twelfth of the Taxes that Lender estimates will be payable during the next ensuing twelve (12) months in order to accumulate with Lender sufficient funds to pay all such Taxes at least thirty (30) days prior to their respective due dates and (b) one-twelfth of the Insurance Premiums that Lender estimates will be payable for the renewal of the coverage afforded by the Policies upon the expiration thereof in order to accumulate with Lender sufficient funds to pay all such Insurance Premiums at least thirty (30) days prior to the expiration of the Policies, (said amounts in (a) and (b) above are hereinafter called the “Tax and Insurance Escrow Fund”). The Tax and Insurance Escrow Fund and the payments of interest or principal or both, payable pursuant to the Note, shall be

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added together and shall be paid as an aggregate sum by Borrower to Lender. Lender will apply the Tax and Insurance Escrow Fund to payments of Taxes and Insurance Premiums required to be made by Borrower pursuant to this Agreement and under the Mortgage. In making any payment relating to the Tax and Insurance Escrow Fund, Lender may do so according to any bill, statement or estimate procured from the appropriate public office (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums) or from Borrower without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof, provided, however, Lender shall use reasonable efforts to pay such real property taxes sufficiently early to obtain the benefit of any available discounts of which it has knowledge. If the amount of the Tax and Insurance Escrow Fund shall exceed the amounts due for Taxes and Insurance Premiums, Lender shall, in its sole discretion, return any excess to Borrower or credit such excess against future payments to be made to the Tax and Insurance Escrow Fund. The Tax and Insurance Escrow Fund shall be held by Lender in an interest-bearing account and shall at Lender’s option be held in Eligible Account at an Eligible Institution. Any interest earned on said account shall accrue in said account for the benefit of Borrower, but shall remain in and constitute part of the Tax and Insurance Escrow Fund, and shall be disbursed in accordance with the terms hereof. Any amount remaining in the Tax and Insurance Escrow Fund after the Debt has been paid in full shall be returned to Borrower. In allocating such excess, Lender may deal with the Person shown on the records of Lender to be the owner of the Property. If at any time Lender reasonably determines that the Tax and Insurance Escrow Fund is not or will not be sufficient to pay Taxes or Insurance Premiums by the dates set forth above, Lender shall notify Borrower of such determination and Borrower shall increase its monthly payments to Lender by the amount that Lender estimates is sufficient to make up the deficiency at least thirty (30) days prior to delinquency of the Taxes or Insurance Premiums.

Notwithstanding anything to the contrary hereinbefore contained, in the event that Borrower provides (1) evidence satisfactory to Lender that the Property is insured in accordance with Section 6.1 of this Agreement and (2) evidence satisfactory to Lender that the Taxes for the Property have been paid in accordance with the requirements set forth in this Agreement, Lender will waive the requirement set forth herein for Borrower to make deposits into the Tax and Insurance Escrow Fund for the payment of Insurance Premiums and for payment of such Taxes, provided, however, Lender expressly reserves the right to require Borrower to make deposits to the Tax and Insurance Escrow Fund for the payment of Insurance Premiums if at any time the Property is not insured in accordance with Section 6.1 of this Agreement or Taxes are not paid in accordance with the requirements of this Agreement.

Section 7.3Replacements and Replacement Reserve.

Section 7.3.1Replacement Reserve Fund.  Borrower shall pay to Lender on the Closing Date and on each Payment Date one twelfth of the amount (the “Replacement Reserve Monthly Deposit”) reasonably estimated by Lender in its sole discretion to be due for replacements and repairs required to be made to the Property during the calendar year (collectively, the “Replacements”), which Replacement Reserve Monthly Deposit shall be in an amount equal to no less than $0.15 per year per square foot of gross leasable area. Amounts so deposited shall hereinafter be referred to as Borrower’s “Replacement ReserveFund” and the account in which such amounts are held shall hereinafter be referred to as Borrower’s

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“Replacement Reserve Account”. Lender may reassess its estimate of the amount necessary for the Replacement Reserve Fund from time to time, and may increase the monthly amounts required to be deposited into the Replacement Reserve Fund upon thirty (30) days notice to Borrower if Lender determines in its reasonable discretion that an increase is necessary to maintain the proper maintenance and operation of the Property.  Any amount held in the Replacement Reserve Account and allocated for the Property shall be retained by Lender in an interest bearing account, or, at the option of Lender, in an Eligible Account at an Eligible Institution; provided, however, that, any interest earned on said account shall accrue in said account for the benefit of Borrower, but shall remain in and constitute part of the Replacement Reserve Fund, and shall be disbursed in accordance with the terms hereof.

Notwithstanding anything to the contrary in this Section 7.3, Borrower shall not be required to make Replacement Reserve Monthly Deposits, provided that: (i) no Event of Default shall have occurred; and (ii) Borrower makes all necessary Replacements and otherwise maintains the Property to Lender’s satisfaction. Upon notice from Lender following: (a) an Event of Default; or (b) the failure of Borrower to make necessary Replacements or otherwise maintain the Property to Lender’s satisfaction, Borrower shall begin to deposit the Replacement Reserve Monthly Deposit into the Replacement Reserve Fund beginning on the Payment Date (as defined herein) immediately following the date of such notice.

Section 7.3.2Disbursements from Replacement Reserve Account.

(a)Lender shall make disbursements from the Replacement Reserve Account to pay Borrower only for the costs of the Replacements.  Lender shall not be obligated to make disbursements from the Replacement Reserve Account to reimburse Borrower for the costs of routine maintenance to the Property or for costs which are to be reimbursed from the Required Repair Fund (if any).

(b)Lender shall, upon written request from Borrower and satisfaction of the requirements set forth in this Section 7.3.2, disburse to Borrower amounts from the Replacement Reserve Account necessary to pay for the actual approved costs of Replacements or to reimburse Borrower therefor, upon completion of such Replacements (or, upon partial completion in the case of Replacements made pursuant to Section 7.3.2(f)) as determined by Lender. In no event shall Lender be obligated to disburse funds from the Replacement Reserve Account if a Default or an Event of Default exists.

(c)Each request for disbursement from the Replacement Reserve Account shall be in a form specified or approved by Lender and shall specify (i) the specific Replacements for which the disbursement is requested, (ii) the quantity and price of each item purchased, if the Replacement includes the purchase or replacement of specific items, (iii) the price of all materials (grouped by type or category) used in any Replacement other than the purchase or replacement of specific items, and (iv) the cost of all contracted labor or other services applicable to each Replacement for which such request for disbursement is made. With each request Borrower shall certify that all Replacements have been made in accordance with all applicable Legal Requirements of any Governmental Authority having jurisdiction over the Property to which the Replacements are being provided and, unless Lender has agreed to issue joint checks as described below, each request shall include evidence of payment of all such

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amounts. Each request for disbursement shall include copies of invoices for all items or materials purchased and all contracted labor or services provided. Except as provided in Section 7.3.2(e), each request for disbursement from the Replacement Reserve Account shall be made only after completion of the Replacement for which disbursement is requested. Borrower shall provide Lender evidence of completion satisfactory to Lender in its reasonable judgment.

(d)Borrower shall pay all invoices in connection with the Replacements with respect to which a disbursement is requested prior to submitting such request for disbursement from the Replacement Reserve Account or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with a Replacement.  In the case of payments made by joint check, Lender may require a waiver of lien from each Person receiving payment prior to Lender’s disbursement from the Replacement Reserve Account. In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $100,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to the requirements of applicable law and shall cover all work performed and materials supplied (including equipment and fixtures) for the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current reimbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request).

(e)If (i) the cost of a Replacement exceeds $100,000, (ii) the contractor performing such Replacement requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for reimbursement from the Replacement Reserve Account may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of the work, (B) the materials for which the request is made are on site at the Property and are properly secured or have been installed in the Property, (C) all other conditions in this Agreement for disbursement have been satisfied, (D) funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required, and (E) if required by Lender, each contractor or subcontractor receiving payments under such contract shall provide a waiver of lien with respect to amounts which have been paid to that contractor or subcontractor.

(f)Borrower shall not make a request for disbursement from the Replacement Reserve Account more frequently than once in any calendar month and (except in connection with the final disbursement) the total cost of all Replacements in any request shall not be less than $5,000,00.

Section 7.3.3Performance of Replacements.

(a)Borrower shall make Replacements when required in order to keep the Property in condition and repair consistent with other first class, full service retail properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete all

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Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.

(b)Lender reserves the right, at its option, to approve all contracts or work orders with materialmen, mechanics, suppliers, subcontractors, contractors or other parties providing labor or materials under contracts for an amount in excess of $100,000 in connection with the Replacements performed by Borrower.  Upon Lender’s request, Borrower shall assign any contract or subcontract to Lender.

(c)In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner, and such failure continues to exist for more than thirty (30) days after notice from Lender to Borrower, Lender shall have the option to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.

(d)In order to facilitate Lender’s completion or making of the Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right to enter onto the Property and perform any and all work and labor necessary to complete or make the Replacements and/or employ watchmen to protect the Property from damage, subject to the rights of Tenants.  All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage.  For this purpose Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake the Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked but shall only be effective following an Event of Default.  Borrower empowers said attorney-in-fact as follows:   (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing the Replacements; (ii) to make such additions, changes and corrections to the Replacements as shall be necessary or desirable to complete the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.

(e)Nothing in this Section 7.3.3 shall:  (i) make Lender responsible for making or completing the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.

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(f)Borrower shall permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of tenants under their Leases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.3.3.  Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.

(g)Lender may require an inspection of the Property at Borrower’s expense prior to making a monthly disbursement in excess of $10,000 from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.

(h)The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialman’s or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).

(i)Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the Property effective to the date of the disbursement, which search shows that no mechanic’s or materialmen’s liens or other liens of any nature have been placed against the Property since the date of recordation of the Mortgage and that title to the Property is free and clear of all Liens (other than the lien of the Mortgage and any other Liens previously approved in writing by Lender, if any).

(j)All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.

(k)In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s compensation insurance, builder’s risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.

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Section 7.3.4Failure to Make Replacements.  (a)  It shall be an Event of Default under this Agreement if Borrower fails to comply with any provision of this Section 7.3 and such failure is not cured within thirty (30) days after notice from Lender; provided, however, if such failure is not capable of being cured within said thirty (30) day period, then provided that Borrower commences action to complete such cure and thereafter diligently proceeds to complete such cure, such thirty (30) day period shall be extended for such time as is reasonably necessary for Borrower, in the exercise of due diligence, to cure such failure, but such additional period of time shall not exceed sixty (60) days. Upon the occurrence of such an Event of Default, Lender may use the Replacement Reserve Fund (or any portion thereof) for any purpose, including but not limited to completion of the Replacements as provided in Section 7.3.3, or for any other repair or replacement to the Property or toward payment of the Debt in such order, proportion and priority as Lender may determine in its sole discretion. Lender’s right to withdraw and apply the Replacement Reserve Funds shall be in addition to all other rights and remedies provided to Lender under this Agreement and the other Loan Documents.

(b)Nothing in this Agreement shall obligate Lender to apply all or any portion of the Replacement Reserve Fund on account of an Event of Default to payment of the Debt or in any specific order or priority.

Section 7.3.5Balance in the Replacement Reserve Account.  The insufficiency of any balance in the Replacement Reserve Account shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.

Section 7.3.6Indemnification.  Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys fees and expenses) arising from or in any way connected with the performance of the Replacements unless the same are solely due to gross negligence or willful misconduct of Lender.  Borrower shall assign to Lender all rights and claims Borrower may have against all persons or entities supplying labor or materials in connection with the Replacements; provided, however, that Lender may not pursue any such right or claim unless an Event of Default has occurred and remains uncured.

Section 7.4Intentionally Omitted.

Section 7.5Intentionally Omitted.

Section 7.6Intentionally Omitted.

Section 7.7Reserve Funds, Generally.

7.7.1Borrower grants to Lender a first-priority perfected security interest in each of the Reserve Funds and any and all monies now or hereafter deposited in each Reserve Fund as additional security for payment of the Debt. Until expended or applied in accordance herewith, the Reserve Funds shall constitute additional security for the Debt.

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7.7.2Upon the occurrence of an Event of Default, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in any or all of the Reserve Funds to the payment of the Debt in any order in its sole discretion.

7.7.3The Reserve Funds shall not constitute trust funds and may be commingled with other monies held by Lender.

7.7.4Intentionally omitted.

7.7.5Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any Reserve Fund or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.

7.7.6Lender shall not be liable for any loss sustained on the investment of any funds constituting the Reserve Funds unless occasioned by the gross negligence or willful misconduct of Lender.

7.7.7Upon payment in full of the Debt and performance of all other obligations under this Agreement and the other Loan Documents, Lender shall disburse to Borrower all remaining Reserve Funds.

ARTICLE VIII
DEFAULTS

Section 8.1Event of Default.  (a)  Each of the following events shall constitute an event of default hereunder (an “Event of Default”):

(i)if any portion of the Debt is not paid within five (5) days of the applicable due date;

(ii)if any of the Taxes or Other Charges are not paid prior to the date when the same become delinquent, except to the extent that Borrower is contesting same in accordance with the terms of Section 5.1.2 hereof, or there are sufficient funds in the Tax and Insurance Escrow Fund to pay such Taxes or Other Charges and Lender fails to or refuses to release the same from the Tax and Insurance Escrow Fund;

(iii)if the Policies are not kept in full force and effect, or if certified copies of the Policies are not delivered to Lender within ten (10) days of request;

(iv)if Borrower transfers or encumbers any portion of the Property without Lender’s prior written consent (to extent such consent is required) or otherwise violates the provisions of Section 5.2.13 of this Loan Agreement;

(v)if any material representation or warranty made by Borrower herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document furnished to Lender shall have been false or

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misleading in any material respect as of the date the representation or warranty was made;

(vi)if Borrower or indemnitor or any guarantor under any guaranty or indemnity issued in connection with the Loan shall make an assignment for the benefit of creditors;

(vii)if a receiver, liquidator or trustee shall be appointed for Borrower or any guarantor or indemnitor under any guarantee or indemnity issued in connection with the Loan or if Borrower or such guarantor or indemnitor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or such guarantor or indemnitor, or if any proceeding for the dissolution or liquidation of Borrower or such guarantor or indemnitor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by Borrower or such guarantor or indemnitor, upon the same not being discharged, stayed or dismissed within one hundred eighty (180) days;

(viii)if Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;

(ix)if Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 hereof;

(x)with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;

(xi)if any of the assumptions contained in any substantive non-consolidation opinion delivered in connection herewith are or shall become untrue in any material respect;

(xii)if Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xi) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such 30-day period and provided further that Borrower shall have commenced to cure such Default within such 30-day period and thereafter diligently and expeditiously proceeds to cure the same, such 30-day period shall be extended for such time as is reasonably necessary for Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred eighty (180) days; or

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(xiii)if there shall be default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to Borrower or the Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt.

(b)Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi), (vii) or (viii) above) and at any time thereafter Lender may, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in the Property, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents against Borrower and the Property, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi), (vii) or (viii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.

Section 8.2Remedies.  (a) Upon the occurrence of an Event of Default, all or any one or more of the rights, powers, privileges and other remedies available to Lender against Borrower under this Agreement or any of the other Loan Documents executed and delivered by, or applicable to, Borrower or at law or in equity may be exercised by Lender at any time and from time to time, whether or not all or any of the Debt shall be declared due and payable, and whether or not Lender shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Loan Documents with respect to the Property. Any such actions taken by Lender shall be cumulative and concurrent and may be pursued independently, singly, successively, together or otherwise, at such time and in such order as Lender may determine in its sole discretion, to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of Lender permitted by law, equity or contract or as set forth herein or in the other Loan Documents. Without limiting the generality of the foregoing, Borrower agrees that if an Event of Default is continuing (i) Lender is not subject to any “one action” or “election of remedies” law or rule, and (ii) all liens and other rights, remedies or privileges provided to Lender shall remain in full force and effect until Lender has exhausted all of its remedies against the Property and the Mortgage has been foreclosed, sold and/or otherwise realized upon in satisfaction of the Debt or the Debt has been paid in full.

(b)Lender shall have the right from time to time to partially foreclose the Mortgage in any manner and for any amounts secured by the Mortgage then due and payable as determined by Lender in its sole discretion including, without limitation, the following circumstances: (i) in the event Borrower defaults beyond any applicable grace period in the payment of one or more scheduled payments of principal and interest, Lender may foreclose the Mortgage to recover such delinquent payments, or (ii) in the event Lender elects to accelerate less than the entire outstanding principal balance of the Loan, Lender may foreclose the Mortgage to recover so much of the principal balance of the Loan as Lender may accelerate and

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such other sums secured by the Mortgage as Lender may elect. Notwithstanding one or more partial foreclosures, the Property shall remain subject to the Mortgage to secure payment of sums secured by the Mortgage and not previously recovered.

(c)Lender shall have the right from time to time to sever the Note and the other Loan Documents into one or more separate notes, mortgages and other security documents (the “Severed Loan Documents”) in such denominations as Lender shall determine in its sole discretion for purposes of evidencing and enforcing its rights and remedies provided hereunder. Borrower shall execute and deliver to Lender from time to time, promptly after the request of Lender, a severance agreement and such other documents as Lender shall request in order to effect the severance described in the preceding sentence, all in form and substance reasonably satisfactory to Lender.  Borrower hereby absolutely and irrevocably appoints Lender following the occurrence of an Event of Default as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect the aforesaid severance, Borrower ratifying all that its said attorney shall do by virtue thereof; provided, however, Lender shall not make or execute any such documents under such power until three (3) days after notice has been given to Borrower by Lender of Lender’s intent to exercise its rights under such power.  Borrower shall not be obligated to pay any costs or expenses incurred in connection with the preparation, execution, recording or filing of the Severed Loan Documents, and the Severed Loan Documents shall not contain any representations, warranties or covenants not contained in the Loan Documents and any such representations and warranties contained in the Severed Loan Documents will be given by Borrower only as of the Closing Date.

(d)As used in this Section 8.2, a “foreclosure” shall include any sale by power of sale.

Section 8.3Remedies Cumulative; Waivers.  The rights, powers and remedies of Lender under this Agreement shall be cumulative and not exclusive of any other right, power or remedy which Lender may have against Borrower pursuant to this Agreement or the other Loan Documents, or existing at law or in equity or otherwise. Lender’s rights, powers and remedies may be pursued singly, concurrently or otherwise, at such time and in such order as Lender may determine in Lender’s sole discretion. No delay or omission to exercise any remedy, right or power accruing upon an Event of Default shall impair any such remedy, right or power or shall be construed as a waiver thereof, but any such remedy, right or power may be exercised from time to time and as often as may be deemed expedient. A waiver of one Default or Event of Default with respect to Borrower shall not be construed to be a waiver of any subsequent Default or Event of Default by Borrower or to impair any remedy, right or power consequent thereon.

ARTICLE IX
SPECIAL PROVISIONS

Section 9.1Sale of Notes and Securitization.  At the request of the holder of the Note and, to the extent not already required to be provided by Borrower under this Agreement, Borrower shall cooperate with Lender to allow Lender to satisfy the market standards to which the holder of the Note customarily adheres or which may be reasonably

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required in the marketplace or by the Rating Agencies in connection with the sale of the Note or participations therein or the first successful securitization (such sale and/or securitization, the “Securitization”) of rated single or multi-class securities (the “Securities”) secured by or evidencing ownership interests in the Note and the Mortgage. In this regard Borrower shall:

(a)(i)  provide such financial and other information with respect to the Property, Borrower and the Manager, (ii) provide budgets relating to the Property and (iii) to perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of the Property, as may be reasonably requested by the holder of the Note or the Rating Agencies or as may be necessary or appropriate in connection with the Securitization (the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to Lender and the Rating Agencies;

(b)cause counsel to render opinions, which may be relied upon by the holder of the Note, the Rating Agencies and their respective counsel, agents and representatives, as to non-consolidation, fraudulent conveyance, and true sale and/or lease or any other opinion customary in securitization transactions, which counsel and opinions shall be reasonably satisfactory to the holder of the Note and the Rating Agencies;

(c)make such representations and warranties as of the closing date of the Securitization with respect to the Property, Borrower, and the Loan Documents as are consistent with the representations and warranties made in the Loan Documents; and

(d)execute such amendments to the Loan Documents and organizational documents as may be reasonably requested by the holder of the Note or the Rating Agencies or otherwise to effect the Securitization; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of the Loan.

All material out-of-pocket third party costs and expenses incurred by Borrower in connection with complying with requests made under this Section 9.1 shall be paid by Lender.

Section 9.2Securitization.  Borrower understands that certain of the Provided Information may be included in disclosure documents in connection with the Securitization, including, without limitation, a prospectus, prospectus supplement or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects.

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Section 9.3Rating Surveillance.  Lender, at its option, may retain the Rating Agencies to provide rating surveillance services on any certificates issued in a Securitization. Such rating surveillance will be at the expense of Lender (the “Rating Surveillance Charge”).

Section 9.4Exculpation.  Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Rents following an Event of Default, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents following an Event of Default and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Mortgage; (c) affect the validity or enforceability of or any guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of any of the Assignment of Leases following an Event of Default; (f) constitute a prohibition against Lender commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:

(i)fraud or intentional misrepresentation by Borrower or any guarantor in connection with the Loan;

(ii)the gross negligence or willful misconduct of Borrower;

(iii)material physical waste of the Property;

(iv)the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;

(v)the removal or disposal of any portion of the Property after an Event of Default;

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(vi)the misapplication or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property which are not applied by Borrower in accordance with this Agreement, (B) any awards or other amounts received in connection with the condemnation of all or a portion of the Property which are not applied by Borrower in accordance with this Agreement, or (C) any Rents following an Event of Default;

(vii)failure to pay charges for labor or materials or other charges that can create liens on any portion of the Property; or

(viii)any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof.

Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) the Debt shall be fully recourse to the Borrower and (B) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 111l(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured by the Mortgage or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents in the event that the (I) first full monthly payment under the Note is not paid within five (5) days of notice that such payment is late (provided, however, that such grace period relates only to the recourse trigger described in this paragraph), or (II) failure of Borrower to permit on-site inspections of the Property subject to the rights of Tenants and any applicable cure period set forth in the Loan Documents, to provide financial information as required under the Loan Documents subject to any applicable cure period (except for financial information required to be delivered by a tenant pursuant to the applicable Lease that has not been delivered to Borrower, provided Borrower has requested such financial information from such tenant), or (III) failure of Borrower to comply with Section 4.1.30 hereof, or (IV) failure of Borrower to obtain Lender’s prior written consent (to extent such consent is required) to any subordinate financing or other voluntary lien encumbering the Property, or (V) failure of Borrower to obtain Lender’s prior written consent to any assignment, transfer or conveyance of the Property, or any portion thereof, or any interest therein as required by this Agreement. Notwithstanding the provision set forth in clause (IV) of this paragraph, a voluntary lien other than a lien securing an extension of credit filed against the Property shall not constitute a recourse trigger for purposes of this paragraph provided such lien (A) is fully bonded to the satisfaction of Lender and discharged of record within ninety (90) days of filing, or (B) within such ninety (90) day period, Lender receives affirmative title insurance from the title insurance company insuring the lien of the Mortgage that such lien is subject and subordinate to the lien of the Mortgage and no enforcement action is commenced by the applicable lien holder. Upon the acceptance by Lender of any cure by Borrower of a recourse trigger described in clauses (I), (II) or (IV) above, the Debt shall no longer be fully recourse to Borrower solely as a result of such trigger. Upon the acceptance by Lender of any cure by Borrower of a recourse trigger described in clauses (III) or (V) above, the Debt shall no longer be fully recourse to Borrower solely as a result of such trigger, provided, however, Borrower shall remain liable to

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the extent of any loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with such trigger.

Section 9.5Termination of Manager.  If (a) the amounts evidenced by the Note have been accelerated pursuant to Section 8.1(b) hereof, (b) the Manager shall become insolvent, (c) the Manager is in default under the terms of the Management Agreement beyond any applicable grace or cure period, or (d) Manager is not managing the Property in accordance with the management practices of nationally recognized management companies managing similar properties in locations comparable to those of the Property, then, in the case of (a), (b), (c) or (d), Borrower shall, at the request of Lender, terminate the Management Agreement and replace the Manager with a manager reasonably approved by Lender on terms and conditions reasonably satisfactory to Lender, it being understood and agreed that the management fee for such replacement manager shall not exceed then prevailing market rates. In addition and without limiting the rights of Lender hereunder or under any of the other Loan Documents, in the event that (i) the Management Agreement is terminated, (ii) the Manager no longer manages the Property, or (iii) a receiver, liquidator or trustee shall be appointed for Manager or if Manager shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Manager, or if any proceeding for the dissolution or liquidation of Manager shall be instituted, then Borrower (at Borrower’s sole cost and expense) shall immediately, in its name, establish new deposit accounts separate from any other Person with a depository satisfactory to Lender into which all Rents and other income from the Property shall be deposited and shall grant Lender a first priority security interest in such account pursuant to documentation satisfactory in form and substance to Lender.

Section 9.6Servicer.  At the option of Lender, the Loan may be serviced by a servicer/trustee (the “Servicer”) selected by Lender and Lender may delegate all or any portion of its responsibilities under this Agreement and the other Loan Documents to the Servicer pursuant to a servicing agreement (the “Servicing Agreement”) between Lender and Servicer.  Lender shall be responsible for any set-up fees or any other costs relating to or arising under the Servicing Agreement.

Section 9.7Splitting the Loan.  At the election of Lender in its sole discretion, the Loan or any individual Note making up the Loan shall be split and severed into two or more loans which, at Lender’s election, shall not be cross-collateralized or cross-defaulted with each other. Borrower hereby agrees to deliver to Lender to effectuate such severing of the Loan or any individual Note, as the case may be, as reasonably requested by Lender, (a) additional executed documents, or amendments and modifications to the applicable Loan Documents, (b) new opinions or updates to the opinions delivered to Lender in connection with the closing of the Loan, (c) endorsements and/or updates to the title insurance policies delivered to Lender in connection with the closing of the Loan, and (d) any other certificates, instruments and documentation reasonably determined by Lender as necessary or appropriate to such severance (the items described in subsections (a) through (d) collectively hereinafter shall be referred to as “Severing Documentation”), which Severing Documentation shall be acceptable to Lender in form and substance in its reasonable discretion. Lender hereby agrees to be responsible for all reasonable third-party expenses incurred in connection with the preparation and delivery of the

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Severing Documentation and the effectuation of the uncrossing of the Loan from the additional Loans. Borrower hereby acknowledges and agrees that upon such severing of the Loan, Lender may effect, in its sole discretion, one or more Securitizations of which the severed loans may be a part.

ARTICLE X
MISCELLANEOUS

Section 10.1Survival.  This Agreement and all covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the making by Lender of the Loan and the execution and delivery to Lender of the Note, and shall continue in full force and effect so long as all or any of the Debt is outstanding and unpaid unless a longer period is expressly set forth herein or in the other Loan Documents. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the legal representatives, successors and assigns of such party.  All covenants, promises and agreements in this Agreement, by or on behalf of Borrower, shall inure to the benefit of the legal representatives, successors and assigns of Lender.

Section 10.2Lender’s Discretion.  Whenever pursuant to this Agreement, Lender exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Lender, the decision of Lender to approve or disapprove or to decide whether arrangements or terms are satisfactory or not satisfactory shall (except as is otherwise specifically herein provided) be in the sole discretion of Lender and shall be final and conclusive.

Section 10.3Governing Law.  THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT ENTERED INTO PURSUANT TO THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND SHALL IN ALL RESPECTS BE GOVERNED, CONSTRUED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND APPLICABLE FEDERAL LAWS.

Section 10.4Modification, Waiver in Writing.  No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement, or of the Note, or of any other Loan Document, nor consent to any departure by Borrower therefrom, shall in any event be effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given. Except as otherwise expressly provided herein, no notice to, or demand on Borrower, shall entitle Borrower to any other or future notice or demand in the same, similar or other circumstances.

Section 10.5Delay Not a Waiver.  Neither any failure nor any delay on the part of Lender in insisting upon strict performance of any term, condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under the Note or under any other Loan Document, or any other instrument given as security therefor, shall operate as or constitute a waiver thereof, nor shall a single or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege. In particular, and not by way of limitation, by accepting payment after the due date of any amount payable under this Agreement,

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the Note or any other Loan Document, Lender shall not be deemed to have waived any right either to require prompt payment when due of all other amounts due under this Agreement, the Note or the other Loan Documents, or to declare a default for failure to effect prompt payment of any such other amount.

Section 10.6Notices.  All notices, consents, approvals and requests required or permitted hereunder or under any other Loan Document shall be given in writing and shall be effective for all purposes if hand delivered or sent by (a) certified or registered United States mail, postage prepaid, return receipt requested or (b) expedited prepaid delivery service, either commercial or United States Postal Service, with proof of attempted delivery, and by telecopier (with answer back acknowledged), addressed as follows (or at such other address and Person as shall be designated from time to time by any party hereto, as the case may be, in a written notice to the other parties hereto in the manner provided for in this Section):

If to Lender:

Bear Stearns Commercial Mortgage, Inc.
383 Madison Avenue
New York, New York 10179
Attention: J. Christopher Hoeffel

with a copy to:

Katten Muchin Zavis Rosenman
401 South Tryon Street
Suite 2600
Charlotte, North Carolina 28202-1935
Attention: Daniel S. Huffenus, Esq.

If to Borrower:

Inland Western Placentia, L.L.C.
2901 Butterfield Road
Oak Brook, IL 60523
Attention: Steven Grimes

with a copy to:

Inland Western Retail Real Estate Trust, Inc.
2901 Butterfield Road
Oak Brook, IL 60523
Attention: Robert H. Baum, Esq.

and with a copy to:

Inland Western Retail Real Estate Trust, Inc.
2901 Butterfield Road
Oak Brook, IL 60523
Attention: Roberta Matlin

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A notice shall be deemed to have been given; in the case of hand delivery, at the time of delivery; in the case of registered or certified mail, when delivered or the first attempted delivery on a Business Day; or in the case of expedited prepaid delivery and telecopy, upon the first attempted delivery on a Business Day.

Section 10.7Trial by Jury.  BORROWER AND LENDER HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER AND LENDER.

Section 10.8Headings.  The Article and/or Section headings and the Table of Contents in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

Section 10.9Severability.  Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Section 10.10Preferences.

Lender shall have the continuing and exclusive right to apply or reverse and reapply any and all payments by Borrower to any portion of the obligations of Borrower hereunder. To the extent Borrower makes a payment or payments to Lender, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or proceeds received, the obligations hereunder or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by Lender.

Section 10.11Waiver of Notice.  Borrower shall not be entitled to any notices of any nature whatsoever from Lender except with respect to matters for which this Agreement or the other Loan Documents specifically and expressly provide for the giving of notice by Lender to Borrower and except with respect to matters for which Borrower is not, pursuant to applicable

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Legal Requirements, permitted to waive the giving of notice. Borrower hereby expressly waives the right to receive any notice from Lender with respect to any matter for which this Agreement or the other Loan Documents do not specifically and expressly provide for the giving of notice by Lender to Borrower.

Section 10.12Remedies of Borrower.  In the event that a claim or adjudication is made that Lender or its agents have acted unreasonably or unreasonably delayed acting in any case where by law or under this Agreement or the other Loan Documents, Lender or such agent, as the case may be, has an obligation to act reasonably or promptly, Borrower agrees that neither Lender nor its agents shall be liable for any monetary damages, and Borrower’s sole remedies shall be limited to commencing an action seeking injunctive relief or declaratory judgment. The parties hereto agree that any action or proceeding to determine whether Lender has acted reasonably shall be determined by an action seeking declaratory judgment.

Section 10.13Expenses; Indemnity.

(a)Borrower covenants and agrees to pay or, if Borrower fails to pay, to reimburse, Lender upon receipt of written notice from Lender for all reasonable costs and expenses (including reasonable attorneys’ fees and disbursements) incurred by Lender inconnection with (i) the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby and thereby and all the costs of furnishing all opinions by counsel for Borrower (including without limitation any opinions requested by Lender as to any legal matters arising under this Agreement or the other Loan Documents with respect to the Property); (ii) Borrower’s ongoing performance of and compliance with Borrower’s respective agreements and covenants contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date, including, without limitation, confirming compliance with environmental and insurance requirements; (iii) Lender’s ongoing performance and compliance with all agreements and conditions contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date; (iv) except as otherwise provided in this Agreement, the negotiation, preparation, execution, delivery and administration of any consents, amendments, waivers or other modifications to this Agreement and the other Loan Documentsand any other documents or matters reasonably requested by Lender; (v) securing Borrower’s compliance with any requests made pursuant to the provisions of this Agreement; (vi) the filing and recording fees and expenses, title insurance and reasonable fees and expenses of counsel for providing to Lender all required legal opinions, and other similar expenses incurred in creating and perfecting the Liens in favor of Lender pursuant to this Agreement and the other LoanDocuments; (vii) enforcing or preserving any rights, in response to third party claims or the prosecuting or defending of any action or proceeding or other litigation, in each case against, under or affecting Borrower, this Agreement, the other Loan Documents, the Property, or any other security given for the Loan; and (viii) enforcing any obligations of or collecting any payments due from Borrower under this Agreement, the other Loan Documents or with respect to the Property or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or of any insolvency or bankruptcyproceedings; provided, however, that Borrower shall not be liable for the payment of any such costs and expenses to the extent the same arise by reason of the gross negligence, illegal acts, fraud or willful misconduct of Lender.

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(b)Borrower shall indemnify, defend and hold harmless Lender from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for Lender in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not Lender shall be designated a party thereto), that may be imposed on, incurred by, or asserted against Lender in any manner relating to or arising out of (i) any breach by Borrower of its obligations under, or any material misrepresentation by Borrower contained in, this Agreement or the other Loan Documents, or (ii) the use or intended use of the proceeds of the Loan (collectively, the “Indemnified Liabilities”); provided, however, that Borrower shall not have any obligation to Lender hereunder to the extent that such Indemnified Liabilities arise from the gross negligence, illegal acts, fraud or willful misconduct of Lender. To the extent that the undertaking to indemnify, defend and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, Borrower shall pay the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Lender.

Section 10.14Schedules Incorporated.  The Schedules annexed hereto are hereby incorporated herein as a part of this Agreement with the same effect as if set forth in the body hereof.

Section 10.15Offsets, Counterclaims and Defenses.  Any assignee of Lender’s interest in and to this Agreement, the Note and the other Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses which are unrelated to such documents which Borrower may otherwise have against any assignor of such documents, and no such unrelated counterclaim or defense shall be interposed or asserted by Borrower in any action or proceeding brought by any such assignee upon such documents and any such right to interpose or assert any such unrelated offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by Borrower.

Section 10.16No Joint Venture or Partnership: No Third Party Beneficiaries.

(a)Borrower and Lender intend that the relationships created hereunder and under the other Loan Documents be solely that of borrower and lender.  Nothing herein or therein is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower and Lender nor to grant Lender any interest in the Property other than that of mortgagee, beneficiary or lender.

(b)This Agreement and the other Loan Documents are solely for the benefit of Lender and Borrower and nothing contained in this Agreement or the other Loan Documents shall be deemed to confer upon anyone other than Lender and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or therein, All conditions to the obligations of Lender to make the Loan hereunder are imposed solely and exclusively for the benefit of Lender and no other Person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lender will refuse to make the Loan in the absence of strict compliance with any or all thereof and no other Person shall under any circumstances be deemed to be a beneficiary of such

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conditions, any or all of which may be freely waived in whole or in part by Lender if, in Lender’s sole discretion, Lender deems it advisable or desirable to do so.

Section 10.17Publicity.  All news releases, publicity or advertising by Borrower or their Affiliates through any media intended to reach the general public which refers to the Loan Documents or the financing evidenced by the Loan Documents, to Lender, Bear Stearns, or any of their Affiliates shall be subject to the prior written approval of Lender. All news releases, publicity or advertising by Lender through any media intended to reach the general public which refers solely to the Borrower or to the Loan made by the Lender to the Borrower shall be subject to the prior written approval of Borrower, provided however, the foregoing shall not apply to Provided Information included in disclosure documents in connection with a Securitization.

Section 10.18Waiver of Marshalling of Assets.  To the fullest extent permitted by law, Borrower, for itself and its successors and assigns, waives all rights to a marshalling of the assets of Borrower, Borrower’s partners and others with interests in Borrower, and of the Property, or to a sale in inverse order of alienation in the event of foreclosure of the Mortgage or sale of the Property by power of sale, and agrees not to assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce or affect the right of Lender under the Loan Documents to a sale of the Property for the collection of the Debt without any prior or different resort for collection or of the right of Lender to the payment of the Debt out of the net proceeds of the Property in preference to every other claimant whatsoever.

Section 10.19Waiver of Counterclaim.  Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Lender or its agents.

Section 10.20Conflict; Construction of Documents: Reliance.  In the event of any conflict between the provisions of this Loan Agreement and any of the other Loan Documents, the provisions of this Loan Agreement shall control. The parties hereto acknowledge that they were represented by competent counsel in connection with the negotiation, drafting and execution of the Loan Documents and that such Loan Documents shall not be subject to the principle of construing their meaning against the party which drafted same. Borrower acknowledges that, with respect to the Loan, Borrower shall rely solely on its own judgment and advisors in entering into the Loan without relying in any manner on any statements, representations or recommendations of Lender or any parent, subsidiary or Affiliate of Lender. Lender shall not be subject to any limitation whatsoever in the exercise of any rights or remedies available to it under any of the Loan Documents or any other agreements or instruments which govern the Loan by virtue of the ownership by it or any parent, subsidiary or Affiliate of Lender of any equity interest any of them may acquire in Borrower, and Borrower hereby irrevocably waives the right to raise any defense or take any action on the basis of the foregoing with respect to Lender’s exercise of any such rights or remedies. Borrower acknowledges that Lender engages in the business of real estate financings and other real estate transactions and investments which may be viewed as adverse to or competitive with the business of Borrower or its Affiliates.

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Section 10.21Brokers and Financial Advisors.  Borrower hereby represents that it has dealt with no financial advisors, brokers, underwriters, placement agents, agents or finders in connection with the transactions contemplated by this Agreement other than Inland Mortgage Corp. Borrower hereby agrees to indemnify, defend and hold Lender harmless from and against any and all claims, liabilities, costs and expenses of any kind (including Lender’s reasonable attorneys’ fees and expenses) in any way relating to or arising from a claim by any Person that such Person acted on behalf of Borrower or Lender in connection with the transactions contemplated herein. The provisions of this Section 10.21 shall survive the expiration and termination of this Agreement and the payment of the Debt.

Section 10.22Prior Agreements.  This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and all prior agreements or understandings among or between such parties, whether oral or written, are superseded by the terms of this Agreement and the other Loan Documents and unless specifically set forth in a writing contemporaneous herewith the terms, conditions and provisions of such prior agreement do not survive execution of this Agreement.

Section 10.23Transfer of Loan.  In the event that Lender transfers the Loan, Borrower shall continue to make payments at the place set forth in the Note until such time that Borrower is notified in writing by Lender that payments are to be made at another place.

Section 10.24Joint and Several Liability.  If Borrower consists of more than one person or party, the obligations and liabilities of each person or party shall be joint and several.

(THE BALANCE OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK)

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written.

BORROWER:
INLAND WESTERNPLACENTIA, L.L.C., a
Delaware limited liability company
By:	Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
	By:	/s/ Debra A. Palmer
		Name:  Debra A. Palmer
		Title:  Assistant Secretary
LENDER:
BEARSTEARNSCOMMERCIAL
MORTGAGE, INC., a New York corporation
By:
	Michael A. Forastiere Managing Director

SCHEDULE I

Intentionally omitted.

SCHEDULE II

Intentionally omitted.

SCH. X-2

EX-10.440

Exhibit 10.440

ASSIGNMENT AND ASSUMPTION

OF PURCHASE AND SALE AGREEMENT

This ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT (this “Assignment”) is made and entered into this          day of December, 2004 by Inland Real Estate Acquisitions, Inc., an Illinois Corporation, (“Assignor”), and Inland Western College Station Gateway Limited Partnership, an Illinois limited partnership, (“Assignee”).

RECITALS

A.P.T. Gateway, Ltd. (“Seller”) and Assignor have previously entered into that certain Purchase and Sale Agreement dated as of October 22, 2004 (the “Purchase Agreement”), relating to the sale of a certain shopping center commonly known as Gateway Station Shopping Center located in the City of College Station, Texas.

B.Assignor desires to assign its interest in and to the Purchase Agreement to Assignee upon the terms and conditions contained herein.

NOW, THEREFORE, in consideration of the receipt of ten and 00/100 Dollars ($10.00) and other good and valuable consideration in hand paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged by Assignor, the parties hereby agree as follows:

1.Recitals.  The foregoing recitals are, by this reference, incorporated into the body of this Assignment as if the same had been set forth in the body hereof in their entirety.

2.Assignment and Assumption.  Assignor hereby assigns, conveys, transfers, and sets over to Assignee all of Assignor’s right, title, and interest in and to the Purchase Agreement. Assignee hereby accepts the foregoing Assignment and assumes, and agrees to perform, all duties, obligations, liabilities, indemnities, covenants, and agreements of Assignor set forth in the Purchase Agreement.

3.Counterparts.  This document may be executed in any number of counterparts, each of which may be executed by any one or more of the parties hereto, but all of which must constitute one instrument and shall be binding and effective when all parties hereto have executed at least one counterpart.

4,Successors.  This Assignment shall be binding upon and for the benefit of the parties hereto and their respective Successors and Assigns.

IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to be executed as of the day and year first written above.

ASSIGNOR:
INLAND REAL ESTATE ACQUISITIONS, INC.,
An Illinois Corporation
By:	/s/ Karen M. Kautz
Name:			Karen M. Kautz
Title:		Vice President
ASSIGNEE:
INLAND WESTERN COLLEGE STATION GATEWAY
LIMITED PARTNERSHIP, an Illinois limited partnership
By:			Inland Western College Station Gateway GP, L.L.C., a
			Delaware limited liability company, its sole general partner
			By:	Inland Western Retail Real Estate Trust, Inc.,
				a Maryland corporation, its sole member
			By:	/s/ Debra A. Palmer
			Name:	Debra A. Palmer
			Its:	Asst Secretary

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EX-10.441

Exhibit 10.441

	Inland Real Estate Acquisitions, Inc.
	2901 Butterfield Road
	Oak Brook, IL 60523
	Phone: (630) 218-4948 Fax: 4935
	www.inlandgroup.com

P.T. Gateway, Ltd.
Attn: Frank Mihalopoulos	October 22, 2004
15900 Dooley Road
Addison, Texas 75001

Re:Gateway Station Shopping Center
College Station, Texas

Dear Frank:

This letter represents this corporation’s offer to purchase the Gateway Station Shopping Center with 23,431 net rentable square feet, situated on approximately 2.08 acres of land, located at 1501 University Drive at Loop 6, College Station, TX. (see Exhibit B attached)

The above property shall include all the land and buildings and common facilities, as well as all personalty within the buildings and common areas, supplies, landscaping equipment, and any other items presently used on the site and belonging to owner, and all intangible rights relating to the property.

This corporation or its affiliated nominee will consummate this transaction on the following basis:

1.The total purchase price shall be $6,300,443.00 all cash, plus or minus prorations, with no mortgage contingencies, to be paid at Closing on or before December 15, 2004 (see Paragraphs 5, 11 and 13).

Purchaser shall allocate the land, building and depreciable improvements prior to closing.

2.Seller represents and warrants (to the best of the Seller’s knowledge), that the above referenced property is leased to the tenants described on Exhibit A on triple net leases covering the building and all of the land, parking areas, reciprocal easements and REA/OEA agreements (if any), for the entire terms and option periods. Any concessions given to any tenants that extend beyond the Closing day shall be settled at Closing by Seller giving a full cash credit to Purchaser for any and all of those concessions.

3.Seller warrants and represents (to the best of the Seller’s knowledge), that the property is free of violations, and the interior and exterior structures are in a good state of repair, free of leaks, structural problems, and mold, and the property is in full compliance with Federal, State, City and County ordinances, environmental laws and concerns, and no one has a lease that exceeds the lease term stated in said leases, nor does anyone have an option or right of first refusal to purchase or extend except for extension options expressly set forth in the leases, nor is there any contemplated condemnation of any part of the property, nor are there any current or contemplated assessments.

4.Seller warrants and represents (to the best of the Seller’s knowledge), that during the term of the leases the tenants and guarantors are responsible for and pay all operating expenses relating to the property on a prorata basis, including but not limited to, real estate taxes, REA/OEA agreements, utilities, insurance, all common area maintenance, parking lot and the building, etc.

/s/ [ILLEGIBLE]

Gateway Station Shopping Center
October 15, 2004

Prior to closing, Seller shall not enter into or extend any agreements without Purchaser’s approval and any contract presently in existence not accepted by Purchaser shall be terminated by Seller. All work on the property shall be completed by Seller prior to Closing except for tenant improvements in the space subject to the Earnout provisions of paragraph 14 hereof.

5.Seller shall indemnify Purchaser with respect to and warrants and represents to Purchaser that Purchaser shall have no obligation whatsoever regarding the construction of the shopping center or placing tenants into the rentable rental space.

Any and all tenants and guarantors shall acknowledge in writing that they shall look solely to the Seller, but not to the Purchaser and titleholder, for anything regarding the construction or improvements of the above-referenced shopping center.

Seller shall indemnify and guarantee to absolutely pay any costs whatsoever to complete the construction of the above shopping center, including any costs whatsoever needed to place the tenants into their agreed space according to each tenant’s lease which lease shall be subject to Purchaser’s approval. Further, Seller shall warrant that all construction (including tenant improvements constructed by Seller) shall be free from defect for a period of one year from Closing, and Seller shall promptly make any required repairs with respect thereto or cause Seller’s contractors to do so pursuant to their warranties.

6. Ten (10) days prior to closing Seller shall furnish Purchaser with estoppel letters acceptable to Purchaser from all tenants and guarantors, if applicable.

7.Seller is responsible for payment of any leasing brokerage fees or commissions which are due any leasing brokers for the existing leases stated above or for the renewal of same.

8.This offer is subject to Seller supplying to Purchaser prior to closing certificates of insurance from the tenants in the form and coverage specified in their respective leases.

9.It is understood that Seller has in its possession Level 1 Environmental Reports which Seller will supply to Purchaser within 5 (five) days of its acceptance hereof. Said reports must be acceptable to Purchaser.

10.The above sale of the real estate shall be consummated by conveyance of a special warranty deed from Seller to Purchaser or its affiliated nominee, with the Seller paying any city, state, or county transfer taxes for the closing, and Seller agrees to cooperate with Purchaser’s lender, if any, and the money lender’s escrow. Seller will reserve a non-exclusive easement for the benefit of Seller.  Home Depot and the developer of the project for the construction, maintenance and reconstruction of a multi-tenant pylon sign to be located near the southwest corner of the property. The exact legal description of such easement will be agreed upon prior to the Initial Closing.

11.The closing shall occur through Chicago Title & Trust Company, in Chicago, Illinois with Nancy Castro as Escrowee, and Fidelity National Title Agency, Inc. in Dallas, Texas, with Polly Kendall providing the title work and issuing the policy, on or before December 15, 2004, at which time title to the above property shall be marketable; i.e., free and clear of all liens, encroachments and encumbrances other than those matters which are acceptable to or waived by Purchaser, and a Texas Form T-1owner’s title policy (with owner’s comprehensive, survey, access and contiguity endorsements), paid by Seller, shall be issued, with all warranties and representations being true now and at closing and surviving the closing for a period of two (2) years, and each party shall be paid in cash their respective credits, including, but not limited to, security deposits, rent and expenses, with a proration of real estate taxes based on the most recent bill or latest assessment, with a later reproration of taxes when the actual bills are received. In addition, Seller shall be solely responsible for all “rollback” taxes assessed against the Property before and after closing. At closing, no credit will be given to Sellers for any past due, unpaid or delinquent rents; however, Purchaser shall remit to Seller, promptly after receipt of same, any such past due or delinquent rents that accrued before closing and are received by

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Purchaser after closing provided that all such amounts received by Purchaser shall be first applied to amounts due Purchaser.

12.Neither Seller (Landlord) or any tenants and guarantor shall be in default on any lease or agreement at closing, nor is there any pending or, to Seller’s knowledge, threatened litigation.

13.Prior to closing, Seller shall furnish to Purchaser copies of all guarantees and warranties which Seller received from any and all contractors and sub-contractors pertaining to the property. This offer is subject to Purchaser’s satisfaction that all material guarantees and warranties received by Seller are assignable and transferable to Purchaser.

14.This offer is subject to the property being 100% occupied at the time of closing, with all tenants occupying their space, open for business, and paying full rent, including CAM, tax and insurance current, as shown on Exhibit A attached.  In the event the property is less than 100% occupied, then the Purchaser and Seller agree that there shall be an Initial Closing. The Initial Closing will be based on the Purchase Price/Earnout Formula which shall be equal to the actual Base Minimum Rent, less the amount, if any, by which the pass-through amount paid by any tenant is less than 100% of such tenant’s proportionate share; i.e.; Slippage, divided by a Base Rent Divider of 8.0654%.

The Seller shall have 24 months following the Initial Closing to receive the balance of the potential Earnout at the Earnout Closing(s) provided they are successful in the leasing of the vacant space and each tenant shall have accepted their space “as is” and takes total possession, has opened for business and commences full rental payments, including CAM, taxes an insurance on a prorata basis. It shall be Seller’s responsibility and sole cost and expense for leasing out and paying all costs related to placing the tenants into their leasable space. Each Earnout Closing shall occur upon 10 days prior written notice to Purchaser; it being expressly understood that the Seller waives its right to the additional Earnout if the final Seller’s notice has not been sent within 24 months after the Initial Closing date.

Seller shall be responsible on a monthly basis for all CAM, tax and insurance on a prorata basis for the space that is part of the Earnout formula until such time as the Seller perfects the income for such space, but in no event, following 24 months following the Initial Closing.

Not withstanding anything to the contrary, all Earnout Closings must comply with all of the terms, requirements and conditions contained in this entire agreement. At the Initial Closing, Purchaser shall deliver an undertaking from Inland Western Real Estate Trust, Inc. guaranteeing Purchaser’s obligation with respect to any potential Earnout.

Notwithstanding anything to the contrary the purchase price of $6,300,443.00 is the maximum purchase price.

15.There are no real estate brokerage commissions involved in this transaction.

16.Fifteen (15) days prior to closing, Seller must provide the title as stated above and a current Urban ALTA/ACSM spotted survey in accordance with the minimum standard detail requirements for ALTA/ACSM Land Title surveys jointly established and adopted by ALTA and ACSM in 1999 and includes all Table A optional survey responsibilities and acceptable to Purchaser and the title company.

17.Seller agrees to immediately make available and disclose all information that Purchaser needs to evaluate the above property, including all inducements, abatements, concessions or cash payments given to tenants, and for CAM, copies of the bills. Seller agrees to cooperate fully with Purchaser and Purchaser’s representatives to facilitate Purchaser’s evaluations and reports, including at least a one-year audit of the books and records of the property.

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This offer is, of course, predicated upon the Purchaser’s review and written approval of the existing ease, new lease, lease modifications (if any), all tenants correspondence. REA/OEA agreements, tenants and guarantors financial statements, sales figures, representations of income and expenses made by Seller, site inspection, environmental, appraisal, etc.

If this offer is acceptable, please sign the original of this letter and initial each page keeping for your files and returning the original to me by October 25, 2004.

			Sincerely,
ACCEPTED:			INLAND REAL ESTATE ACQUISITIONS, INC.
P.T. GATEWAY, LTD.
			or nominee
By:	GP-PT Gateway, LLC,
	Its general partner
	By:	/s/ [ILLEGIBLE]
			/s/ Mark Youngman
Date:	10/24/04		Mark Youngman
			Vice President
			/s/ G. Joseph Cosenza
			G. Joseph Cosenza
			Vice Chairman

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[SITE PLAN]

EX-10.442

Exhibit 10.442

ASSIGNMENT

This Assignment is made as of the 7th day of November, 2004 by INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation (“Assignor”) to and for the benefit of INLAND WESTERN WESLEY CHAPEL NORTHWOODS, L.L.C., a Delaware limited liability company (“Assignee”).

Assignor does hereby sell, assign, transfer, set over and convey unto Assignee all of its right, title and interest as Buyer under that certain Agreement of Sale dated as of September 3, 2004, as amended, and entered into by Kimco Tampa, LP, as Seller, and Inland Real Estate Acquisitions, Inc., Assignor, as Buyer (collectively, the “Agreement”), solely as the Agreement applies to the sale and purchase of the property described by the Agreement, located in Wesley Chapel, Florida commonly known as Northwoods Square.

Assignor represents and warrants that it is the Buyer under the Agreement, and that it has not sold, assigned, transferred, or encumbered such interest in any way to any other person or entity. By acceptance hereof, Assignee accepts the foregoing Assignment and agrees, from and after the date hereof, to (i) perform all of the obligations of Buyer under the Agreement, and (ii) indemnify, defend, protect and hold Assignor harmless from and against all claims and liabilities arising under the Agreement.

IN WITNESS WHEREOF, Assignor and Assignee have executed this instrument as of the date first written above.

ASSIGNOR:
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By:		/s/ G. Joseph Cosenza
Name:			G. Joseph Cosenza
Its:		President
ASSIGNEE:
INLAND WESTERN WESLEY CHAPEL
NORTHWOODS, L.L.C., a Delaware limited
liability company
By:	INLAND WESTERN RETAIL REAL
	ESTATE TRUST, INC., its sole member
By:		/s/ [ILLEGIBLE]
Name:				[ILLEGIBLE]
Its:		[ILLEGIBLE]

EX-10.443

Exhibit 10.443

AMENDMENT TO AGREEMENT

THIS AMENDMENT TO AGREEMENT (the “Amendment”) is made and entered into as of the 8^th of November 2004, by and between KIMCO TAMPA LP, a Florida limited partnership (“Seller”) and INLAND REAL ESTATE ACQUISITIONS, INC. (“Buyer”).

W I T N E S S E T H:

WHEREAS, Seller and Buyer entered into that certain Agreement of Sale dated September 3, 2004, (as amended) (“the Agreement”), for the sale and purchase of the property commonly known as Northwoods Square located in Tampa, Florida, as legally described by the Agreement (the “Property”).

WHEREAS, Buyer and Seller have mutually agreed to amend certain provisions of the Agreement.

NOW THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Buyer and Seller agree as follows:

1.Prior to Closing, Buyer shall have approved of the Amendment to Development Order described in paragraph 4.4 of the Agreement and the post closing obligations to be assumed by an affiliate of Seller in regard to same.

2.Paragraph 11.1 is hereby amended by placing a period immediately after the words “Closing Date” in line 10 thereof and truncating the remainder of that sentence.

3.Paragraph 11.2(B)(d) (Cash Flow Holdback Escrow) is hereby deleted in its entirety.

4.A new paragraph 3 D, is hereby added: “Notwithstanding the terms of this Section 3 which describe payment of the Purchase Price by Purchaser to Seller at Closing, a portion of the $20,200,000 Purchase Price shall be subject to the “Earnout” provisions hereinafter described.

(i)At Closing, Buyer shall pay to Seller that part of the Purchase Price equal to the value of the Property then existing (based upon tenants under leases satisfying the Tenant Conditions (as hereinafter defined in paragraph 11.1, hereof)): Thirteen Million Nine Hundred Sixty-three Thousand Eight Hundred Forty-seven and no/100

Dollars ($13,963,847.00) (the “Initial Closing Payment”).

(ii)For a period of one (1) year from the Closing Date (the “Earnout Period”), Seller shall have the right to earn payment from Buyer of an amount equal to the difference between the Purchase Price (less the Tire Kingdom Payment (as hereinafter defined)) and the Initial Closing Payment: Four Million Six Hundred Twenty-five Thousand Four Hundred Sixteen and no/100 Dollars ($4,625,416.00) (the “Building C Payment”) (the “Building C Earnout”). The Building C Earnout applies to the Property spaces described upon Exhibit A, attached hereto and made a part hereof (the “Earnout Spaces”). The Building C Payment shall be made by Buyer to Seller at one or more Earnout closings (to occur no more frequently than every 30-days) during the Earnout Period upon notice to Buyer by Seller (accompanied by a current title later-date search showing no liens or other encumbrances having been placed of record by reason of Seller or tenants under Earnout Spaces activities upon the Property) stating that one or more of the tenants for the Earnout Spaces have satisfied the Tenant Conditions (including copies of documentation evincing same).

(a)One qualification to the requirement that each tenant for the Earnout Spaces must satisfy each of the Tenant Conditions prior to an Earnout closing is that in the event any 2-tenants (only) under lease for an Earnout Space have satisfied each of the Tenant Conditions, except that such tenant(s) have not opened for business to the public, Seller may call for an Earnout closing as to those 2-tenants (only).

(b)A second qualification to the requirement that each tenant for the Earnout Spaces must satisfy each of the Tenant  Conditions prior to  an Earnout closing is that Seller may tender a Seller estoppel in the form, and in lieu, of a  tenant estoppel from the applicable tenant. The Seller estoppel  shall  survive the applicable Earnout closing for a period of time from the earnout closing until the first to occur of: (A)

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one (1) year following the Earnout closing and (B) the date an acceptable (to Buyer) tenant estoppel is received from the applicable tenant.

(c)In addition, with regard to the Friedman Jeweler space (described upon Exhibit A), the Building C Payment is subject to adjustment (increase or decrease) by dividing the base rent divider of .079296 into the initial year base rent achieved by the lease then signed for the Friedman Jeweler space (the “Friedman Jeweler Space Achieved Value”). The Building C Payment adjustment in regard to the Friedman Jeweler space shall be calculated by subtracting the proforma value of the Friedman Jeweler space: Five Hundred One Thousand Nine Hundred Sixteen and 87/100 Dollars ($501,916.87) from the Friedman Jeweler Space Achieved Value. If the sum is a positive number, the Building C Payment shall be increased by that amount. If the sum is a negative number, the Building C Payment shall be decreased by that amount.

(iii)During the Earnout Period, Seller shall have the right to earn payment from Buyer of an amount equal to One Million Six Hundred Ten Thousand Seven Hundred Thirty-seven and no/100 Dollars ($1,610,737.00) (the “Tire Kingdom Payment”). The Tire Kingdom Payment shall be made by Buyer to Seller upon notice from Seller to Buyer during the Earnout Period (accompanied by a current title later-date search showing no liens or other encumbrances having been placed of record by reason of Seller or tenants under Earnout Spaces activities upon the Property) stating that the Tire Kingdom tenant has satisfied the Tenant Conditions (including copies of documentation evincing same).”

5.In regard to the construction activities of Seller upon the Property after the Closing Date, Seller agrees to comply with the Development Covenants described upon Exhibit B, attached hereto and made a part hereof.

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6.This Amendment may be executed in one or more counterparts, each of which shall constitute an original and all of which taken together shall constitute one Amendment. Each person executing this Amendment represents that such person has fall authority and legal power to do so and bind the party on whose behalf he or she has executed this Amendment.  Any counterpart to this Amendment may be executed by facsimile copy and shall be binding on the parties.

7.In recognition of the structure of the purchase and sale transaction described by the Agreement, as of the Closing Date, Seller shall assign its interests in and to the Agreement to an affiliate of Seller (as constituted as of the date hereof).  References to Seller described by this Agreement shall be to Seller’s assignee from and after the Closing Date.

Except as modified herein by this Amendment, the Agreement shall remain unmodified and in full force and effect.

(2-SIGNATURE PAGES FOLLOW)

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	BUYER:
	INLAND REAL ESTATE ACQUISITIONS, INC.
WITNESSES:
/s/ [ILLEGIBLE]	By:	/s/ G. Joseph Cosenza
		G. Joseph Cosenza, President
/s/ [ILLEGIBLE]		Date of Execution:	11/8/04

	SELLER:
	KIMCO TAMPA, L.P.
	By:       Kimco Tampa 470, Inc.
WITNESSES:
	By:
	Name:
	Title:
	Date of Execution:

WITNESSES:		ESCROW AGENT:
		CHICAGO TITLE & TRUST COMPANY
	By:
			Nancy Castro, Senior Escrow Officer
			Date of Execution:

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	Inland Guarantor signs to confirm its agreement with the provisions of Section 3 D., hereof.
WITNESSES:		INLAND GUARANTOR: INLAND WESTERN RETAIL REAL ESTATE TRUST INC., a Maryland corporation
/s/ [ILLEGIBLE]
/s/ [ILLEGIBLE]
		By:	/s/ G. Joe Cosenza
		Name: G. Joe Cosenza
		Title:		Authorized Agent
		Date of Execution:			11/8/04

	Kimco Guarantor signs to confirm its agreement with the provisions of Section 3 D. (ii)(b), and Section 5hereof.
WITNESSES:			KIMCO GUARANTOR: KIMCO DEVELOPERS, INC.
		By:
		Name:
		Title:
		Date of Execution:

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EXHIBIT A

PAD C EARNOUT SPACES

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EXHIBIT B

DEVELOPMENT COVENANTS

a.To the fullest extent permitted by law, Seller hereby agrees to indemnify, defend and hold Purchaser and its agents and employees, harmless from and against any and all causes of action, damages, losses, demands, judgments, liens, claims, costs, and expenses (including reasonable attorney’s fees and court costs) which arise or occur in connection with: (1) any matter related to bodily injury, death or property damage arising in the performance of Seller’s work, and (2) any mechanics lien claim arising in the performance of Seller’s work, and (3) any matter related to the payment of money owed for the obligations of Seller in regard to the performance of Seller’s work. In the event any liens are placed of record in regard to the performance of Seller’s work, within 30-days from the date Seller is notified thereof, Seller agrees that Seller shall either cause said encumbrance to be removed from title or Seller shall bond over said encumbrance or provide appropriate indemnities to the Title Company as may be required to allow the Title Company to issue its later date endorsement (or like-coverage) to Buyer and its lender, if any, under its respective Policies of title insurance.  In the event a lien is placed of record against the Property by reason of tenant work, Seller agrees to reasonably cooperate with Buyer in regard to causing said tenant to cause the lien to be removed in accordance with the terms of the applicable lease.

b.Seller, or Seller’s contractor, shall purchase and maintain, in a company or companies lawfully authorized to do business in the State of Florida, comprehensive general liability insurance and insurance for protection from claims under worker’s or workmen’s compensation acts and other employee benefit acts which are applicable, claims for damages because of bodily injury, including death, and from claims for damages, other than for the Seller’s work itself, to property which may arise out of or result from the performance of Seller’s work, whether actually performed by Seller or a contractor/subcontractor or anyone directly or indirectly employed by any of them.  This insurance shall be written for not less than $2,000,000.00 and shall include contractual liability insurance applicable to Seller’s obligations.

c.Seller shall assign to Purchaser all warranties in respect of Seller’s work at the time of the applicable Earnout closing.

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AMENDMENT TO AGREEMENT

THIS AMENDMENT TO AGREEMENT (the “Amendment”) is made and entered into as of the 12^th of October 2004, by and between KIMCO TAMPA, L.P., a Florida limited partnership (“Seller”) and INLAND REAL ESTATE ACQUISITIONS, INC. (“Buyer”).

W I T N E S S E T H:

WHEREAS, Seller and Buyer entered into that certain Agreement of Sale dated September 3, 2004, (“the Agreement”), for the sale and purchase of the property commonly known as Northwoods Shopping Center located in Tampa, Florida, as legally described by the Agreement (the “Property”).

WHEREAS, Buyer and Seller have mutually agreed to amend certain provisions of the Agreement.

NOW THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Buyer and Seller agree as follows:

1.The “Due Diligence Period”, as defined in Section 1.7 of the Agreement is hereby amended by deleting the words “on the 30^th business day thereafter or the first business day after such 30^th day if such 30^th day is not a business day,” and inserting the date of “November 1, 2004” therein.

2.This Amendment may be executed in one or more counterparts, each of which shall constitute an original and all of which taken together shall constitute one Amendment.  Each person executing this Amendment represents that such person has full authority and legal power to do so and bind the party on whose behalf he or she has executed this Amendment.  Any counterpart to this Amendment may be executed by facsimile copy and shall be binding on the parties.

Except as modified herein by this Amendment, the Agreement shall remain unmodified and in full force and effect.

(SIGNATURE PAGE FOLLOWS)

	BUYER:
	INLAND REAL ESTATE ACQUISITIONS, INC.
WITNESSES:
	By:	/s/ G. Joseph Cosenza
		Name:
		Title:
		Date:	10-12-04

	SELLER:
	KIMCO TAMPA, L.P.
	By:       Kimco Tampa 470, Inc.
WITNESSES:
/s/ [ILLEGIBLE]	By:		/s/ Daniel C. Slattery
		Name:			DANIEL C. SLATTERY
		Title:			Executive Vice President
		Date:		10-12-04

	Escrow Agent signs to confirm its agreement with the provisions of Section 3(A)(ii) hereof:
WITNESSES:		ESCROW AGENT:
CHICAGO TITLE & TRUST COMPANY
	By:		/s/  Nancy Castro
			Name:	Nancy Castro
			Title:	AVP
			Date:	10/13/04

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AGREEMENT OF SALE

THIS AGREEMENT made this 3^rdday of Sept, 2004, between Kimco Tampa, LP, a Florida Limited Partnership, with an office at 3333 New Hyde Park Road, Suite 100 (P. O. Box 5020), New Hyde Park, New York 11042 (hereinafter, “Seller”), and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois Corporation, with an office at 2901 Butterfield Road, Oak Brook, Illinois 60523 (hereinafter, “Buyer”).

WHEREAS, prior to closing the partners of Seller shall transfer their interests in Seller to a newly formed Limited Partnership, Kimco Tampa Holding, L.P. (Affiliate Seller);

WHEREAS, prior to closing Seller shall merge into the newly formed Limited Liability company known as Inland Western Tampa Northwoods, LLC, a Delaware limited liability company whose sole member and owner of 100% Membership Interests (the “Interests”) shall be Affiliate Seller;

WHEREAS, Seller owns a portion of the shopping center commonly known as Northwoods Square, located in Tampa, Florida (the “Shopping Center”) and Seller wishes to sell and Buyer wishes to buy Seller’s entire right title and interest in the Shopping Center;

WHEREAS, at closing Affiliate Seller shall then assign all of its interests in Owner to Buyer; and

WHEREAS, as the Shopping Center consists of: (a) the Real Estate subject to the Permitted Exceptions and Space Leases, (b) the Space Leases, (c) any Personal Property, (d) any land lying in the bed of any street, road or avenue, opened or proposed, in front of or adjoining the Real Estate, (e) any strips or gores adjoining the Real Estate, (f) all appurtenances and hereditaments appertaining to the Real Estate (g) the right to use, in common with others the name “Northwoods Shopping Center” provided Buyer’s use of same is done in a commercially reasonable manner in connection with the first class operation of the Property.

NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows:

1.DEFINITIONS.The following expressions shall have the meanings set forth below:

1.1“Real Estate” means the fee interest in the land described on Exhibit 1 and all of the buildings and other improvements constructed thereon.

1.2“Space Lease(s)” means all lease(s), license(s), concessions or other occupancy or use agreements, including all modifications, addenda and supplements thereto and guarantees thereof, applicable to any part of the Real Estate. All existing Space Leases as of the date hereof are listed on attached Exhibit 2.

1.3“Property” means collectively all of Seller’s rights and interests in the Real Estate, the Space Leases and the other assets described in Article 2 hereof.

1.4“Closing Date” means the date on which Closing occurs.  “Closing” means the event whereby title to the Property is actually conveyed by Seller to Buyer.

1.5“Service Contracts” means all written agreements pursuant to which goods, services or supplies are furnished on a recurring basis for the operation of the Real Estate and are approved by Buyer during the Due Diligence Period (as hereinafter defined). Copies of such Service Contracts are attached asExhibit 3.

1.6“Escrow Agent” means Chicago Title and Trust Company, 171 North Clark Street, Chicago, Illinois, Attn: Nancy Castro, Escrow Agent. Chicago Title and Trust Company may also be hereinafter referred to as the “Title Company”.

1.7“Due Diligence Period” means a period of time commencing on the date a fully executed copy of this Agreement is received by Buyer in accordance with Article 13 hereof and expiring at midnight, New York time, on the 30th business day thereafter or the first businessday after such 30th day if such 30th day is not abusiness day.

1.8“Permitted Exceptions” means those certain title exceptions set forth in Exhibit 6 attached hereto that are approved by Buyer in accordance with the terms of Article 6 hereof.

1.9“Personal Property” means all personal property and equipment (if any) owned by Seller and located on the Real Estate.

1.10“Deposit” means adeposit, to be paid by Buyer to Escrow Agent upon the execution hereof, in the amount of Three Hundred Thousand ($300,000.00) Dollars, plus all interest earned thereon.

1.11“REA” means that certain Operation and Easement Agreement by and among Target Corporation, Kimco Tampa L.P., Northwood Centers, LLP and MJG, LTD, dated March 23, 2001 and recorded in

2.SALE AND PURCHASE.In accordance with the provisions of this Agreement, Seller agrees to sell, convey, assign and transfer to Buyer, and Buyer agrees to purchase and acquire from Seller, all of Seller’s right, title and interest in and to the (“Interests”).

3.PURCHASE PRICE. The “Purchase Price” for the Property shall be Twenty Million, Two Hundred Thousand, ($20,200,000.00) Dollars plus the Contingent Amount if any, as set forth in Section 11.6 hereof, shall be paid as follows:

A.(i)Upon the execution of this Agreement Buyer shall pay the Deposit to Escrow Agent by bank check to the order of Escrow Agent or wire transfer of federal funds for immediate credit.

(ii)The Deposit shall be invested by Escrow Agent in a sound financial institution’s money market fund or account which pays interest or dividends, in Escrow Agent’s name separate from its personal and business accounts. All investment decisions shall be made by Buyer. If no Closing occurs, all interest or dividends earned shall be paid to the party entitled to the escrowed proceeds, which party shall pay all income taxes thereon. The parties shall furnish Escrow Agent with their respective tax identification numbers. At Closing, Escrow Agent shall pay the Deposit (together with all interest earned thereon) to Seller, and the principal portion of the Deposit shall be a credit against the Purchase Price (but no such credit shall be given for the interest earned on such principal portion of the Deposit, if any, which shall be the property of Buyer). All escrow fees, if any, charged by Escrow Agent shall be equally shared by Seller and Buyer. Escrow Agent shall hold the Deposit as set forth above unless either Seller or Buyer makes a written demand upon Escrow Agent for the Deposit accompanied by an affidavit signed by the party making the demand stating sufficient facts to show that said party is entitled to receive the Deposit pursuant to the terms of this Agreement. Upon receipt of such demand, Escrow Agent shall give ten (10) days written notice to the other party of such demand and of Escrow Agent’s intention to remit the Deposit to the party making the demand on the stated date, together with a copy of the affidavit. If Escrow Agent does not receive a written objection before the proposed date for remitting the Deposit, Escrow Agent is hereby authorized to so remit. If, however, Escrow Agent actually receives written objection from the other party before the proposed date on which the Deposit is to be remitted, Escrow Agent shall continue to hold the Deposit until otherwise directed by joint written instructions from Seller and Buyer or until a final judgment of an appropriate court.  In the event of a dispute, Escrow Agent may place the Deposit with an appropriate court and, after giving written notice of such action to the parties, Escrow Agent shall have no further obligations with respect to the Deposit. The parties acknowledge that Escrow Agent is acting as a stakeholder at their request and for their convenience, that Escrow Agent shall not be deemed to be the agent of either of the parties, and the Escrow Agent shall not be liable to either of the parties for any act or omission on its part unless taken or suffered in bad faith or in willful or negligent disregard of this Agreement. Seller and Buyer shall jointly and severally indemnify and hold Escrow Agent harmless from and against all costs, claims and expenses, including reasonable attorney’ fees, incurred in connection with the faithful performance of Escrow Agent’s duties hereunder. Escrow Agent acknowledges agreement to the provisions of this Agreement applicable to it by signing on the signature page of this Agreement. Notwithstanding the foregoing, Buyer shall have the right to deliver a notice of termination of this Agreement to Escrow Agent and Seller on or prior to the expiration of the Due Diligence Period and Escrow Agent shall be authorized, immediately upon receipt of such notice and verification of Seller’s receipt of same, to return the Earnest Money to Buyer. Buyer agrees to return all documents provided to Buyer by or on behalf of Seller to Seller within fifteen (15) days of Tenant’s delivery of the notice of termination to Escrow Agent and Seller.

B.At Closing, and subject to the terms and provisions of this Agreement, Buyer shall pay Seller the balance of the Purchase Price by wire transfer of immediately available federal funds into a so-called “New York Style” closing escrow to be established by the Escrow Agent.  Seller shall furnish Escrow Agent with wire transfer instructions prior to Closing.

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C.In connection with any Personal Property included in the sale, the parties agree that no part of the Purchase Price shall be deemed to have been paid by Buyer on account thereof.

4.CONDITIONS PRIOR TO CLOSING; DUE DILIGENCE PERIOD.

4.1(A) Buyer shall at Closing accept the Property in AS IS physical condition as exists on the date hereof, subject to reasonable wear and tear between the date hereof and the Closing Date. Buyer acknowledges that Buyer will have the Due Diligence Period to inspect the Shopping Center or cause an inspection thereof to be made on Buyer’s behalf and it is understood and agreed that neither Seller nor any person acting or purporting to act for Seller has made or now makes any representation as to the physical condition (latent or patent or otherwise), income, expense, operation, legality of current rents, or any other matter of thing affecting or relating to the Shopping Center except as herein specifically set forth.  Buyer hereby expressly acknowledges that except as expressly set forth herein, no such representations have been made and Buyer further agrees to take the Shopping Center “as is” as of the date hereof and subject to normal use, wear, tear, and deterioration between now and Closing. Buyer agrees that Seller is not liable or bound in any manner by any financial or written statements, representations, real estate brokers’ “set-ups”, or information pertaining to the Shopping Center furnished by any real estate broker, agent, employee, trustee, servant or other person, unless the same are specifically set forth herein.  It is understood and agreed that all understandings and agreements heretofore had between the parties are hereby merged in this Agreement which alone fully and completely expresses their agreement and that the same is entered into after full investigation, neither party relying upon any statement or representation made by the other not embodied in this Agreement.

(B) Seller’s Required Pre-Closing Deliveries

Seller shall, as soon as practicable after the date of this Agreement but not later than five (5) business days after the date of this Agreement,, deliver to Buyer the following (which are referred to herein as “Pre-Closing Deliveries”): (a) copy of the Space Leases affecting the Property; (b) a certification from Seller (pursuant to the terms of the Rent Roll (Exhibit 2) setting forth the name of each tenant at the Property and the date of the Space Leases and any modifications or amendments thereto, the amount of rent payable by each tenant throughout the term of its respective Space Lease, any concessions granted to the tenants, the amount of security deposits, if any, (or a certification that Seller is not holding any security deposits), the expiration date of the Space Leases, and the existence of any options to renew or extend the term of the Space Leases or to purchase all or any part of the Property and such information with respect to any subtenant if Seller has knowledge thereof; (c) a certification by Seller that there are no employees at the Property; (d) a certification by Seller that, other than as disclosed to Buyer, there are no service agreements, maintenance contracts or other similar agreements affecting the Property; (e) copies of the most recent tax bill for the Property, together with copies of any notice of assessments received by Seller, or any other information relative to taxes assessed against the Property; (f) copies, if any, of any environmental reports, architectural drawings, warranties, guarantees, plans and specs or any similar document in Seller’s possession relating to the Property; (g) copies of any insurance policies or certificates insuring the Property, whether purchased by Seller or by the tenants under the Space Leases; (h) copies of certificates of occupancy for each tenant at the Property and copies of any building code violations received by Seller with respect to the Property during the last two years and evidence reasonably acceptable to Buyer that such violations have been corrected, or a certification from Seller that it has not received any notice of building code violations; (i) the materials described on Buyer’s Due Diligence Checklist, attached hereto as Exhibit 12, and made a part hereof; (j) as applicable (depending upon the number of years the Property has been operating), an operating statement for the Property for the two calendar years prior to the year of the date hereof, and monthly operating statements for the Property for each month of the year of the date hereof. Such statements shall include reasonable detail of all items of income and expense, other than construction costs as well as all items of capital expenditures made during the relevant periods, other than capital expenditures made in connection with the initial construction of the Shopping Center, and (k) an engagement and representation letter signed by Seller and prepared by and for the benefit of Buyer’s auditors substantially in the form attached hereto as Exhibit 18, and made a part hereof.

4.2On and after the date hereof, Buyer shall have access to the Property for the purpose of making engineering, survey or non-intrusive inspections and independent investigations; and Seller will on receipt of reasonable prior written notice, provide Buyer with access to information within its possession or control with respect to the Property, including (without limitation) full and accurate copies of Space Leases, Service Contracts, title information or instruments, and books and operating records of the Shopping Center.  Buyer agrees to defend, indemnify and hold Seller harmless from any personal injury or property damage caused by Buyer in doing any testing, inspections or survey and such obligation shall survive the Closing or sooner termination of this Agreement. Buyer shall give Seller true, accurate and complete copies of all written reports prepared by third parties resulting from Buyer’s inspections and investigations.

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4.3(a)Buyer shall have the Due Diligence Period within which to inspect and examine the Real Estate, the Space Leases, and the Service Contracts.

(b)In the event that during the Due Diligence Period, Buyer, in its sole judgment, and absolute discretion, determines that Buyer is not satisfied with the condition of the Real Estate, the Property, the Space Leases, the Ground Leases, or the Service Contracts then, prior to the end of the Due Diligence Period, Buyer shall have the right by giving written notice to Seller and Escrow Agent to cancel and terminate this Agreement without liability except as set forth in Sections 4.2 and 15.8. Upon receipt of such notice prior to the end of the Due Diligence Period, Escrow Agent shall deliver the Deposit to Buyer. In the event Buyer fails to give such notice prior to the end of the Due Diligence Period, Buyer’s right to cancel this Agreement pursuant to this Section 4 shall lapse.

4.4Amendment to the Development Order for Northwood Development Regional Impact (Resolution No, 86-17).  There is a pending amendment to the current Resolution No. 86-17, which is currently scheduled to be voted on August 6, 2004 (the “Amendment to DRI”).  The Amendment to DRI would impose certain financial obligations on the Seller for construction of Pipeline Project A as defined therein.  The Amendment to DRI effects several properties including the Real Estate. The various owners of the effected properties (Northwood Centers LLP, MJG Ventures, Ltd. the Spano Corporation and Seller) are currently negotiating a Joint Agreement to allocate the financial obligations imposed by the Amendment to DRI. Seller hereby agrees that it shall be responsible for any and all costs imposed on the Real Estate by the Amendment to DRI and the Joint Agreement.  Buyer acknowledges and agrees that Seller shall be entitled to any and all “Reimbursements” or equivalent term or repayment that enure to the Real Estate pursuant to the Joint Agreement or Amendment to DRI, that arise in connection therewith. In the event same are paid to Buyer as successor in interest to owner of the Real Estate, Buyer shall promptly forwarded to Seller. Seller’s and Buyer’s obligations set forth in this Section 4.4 shall survive Closing.

4.5Audit. At such time as Buyer’s auditors (KPMG) complete the audit of Property operations, Seller agrees to execute and deliver to KPMG the audit letter attached hereto as Exhibit 18, and made a part hereof. The provisions of this Section 4.5 shall survive Closing.

5.ADJUSTMENTS AND PRORATIONS.

5.1Seller shall be entitled to all income produced from the operation of the Property which is allocable to the period prior to the Closing Date and shall be responsible for all expenses allocable to that period; and Buyer shall be entitled to all income and responsible for all expenses allocable to the period beginning at 12:01 A.M. on the Closing Date. At Closing, all items of income and expense with respect to the Property shall be prorated in accordance with the foregoing provisions and the rules for the specific items set forth hereafter:

5.1.1Seller shall arrange for a billing under all those Service Contracts, for which fees are based on usage and with utility companies for a billing for utilities, to include all utilities or service used up to the Closing Date, and Seller shall pay the resultant bills.  In the event any of the Service Contracts set forth in Exhibit 3 cover periods beyond the Closing Date the same shall be prorated on a per diem basis.

5.1.2Real estate taxes, general, special and/or betterment assessments and personal property taxes shall be prorated for those taxes which are due and payable as of the Closing Date. In the event that as of theClosing Date the actual tax bills for the tax year or years in question are not available and the amount of taxes to be prorated as aforesaid cannot be ascertained, then rates, millages and assessed valuation of the previous year, with known changes, shall be used; and after the Closing occurs and when the actual amount of taxes for the year or years in question shall be determinable, such taxes will be re-prorated between the parties to reflect the actual amount of such taxes.

5.1.3Rentals and other payments (other than “percentage rent” and common area maintenance charges which are dealt with in Section 5.1.4 and Section 5.1.6) which are payable pursuant to Space Leases shall be prorated on a per diem basis as and when collected (subject to the provisions of Section 5.3). However as to the following tenants (“the Credit Tenants”) Superfresh and Blockbuster, Seller shall at closing, receive a credit in an amount equal to real estate taxes that have accrued as of the Closing Date but are either unpaid or not yet due and payable from the Credit Tenants as of the Closing Date. Except as provided in the preceding sentence in respect of the Credit Tenants. Buyer shall not be obligated to make any payment or give any credit to Seller on account of or by reason of any rental or other payments which are unpaid as of the Closing Date, but shall be required to turn over Seller’s share of the same within ten (10) days if, as and when received by Buyer after the Closing;

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likewise, Seller agrees to turn over Buyer’s share of any payments received from tenants applicable to any period from and after the date of Closing within ten (10) days of Seller’s receipt of same; this provision shall survive Closing.

5.1.4Percentage rent; if any, payable under each Space Lease shall be prorated with respect to the lease year thereunder in which Closing occurs on a per diem basis as and when collected.  Any percentage rent collected by Buyer including any percentage rent which is delinquent and pertaining to (i) an entire lease year or accounting period of a tenant under a Space Lease which ends on a date prior to the Closing Date, or (ii) that portion of a lease year or accounting period of such tenant covering a period prior to the Closing Date where such lease year or accounting period begins prior to the Closing Date and ends thereafter shall in both cases be paid to Seller within ten (10) days of receipt by Buyer; and if any tenant’s Space Lease provides for offsets or deductions against percentage rent, then such offsets or deductions shall be prorated in the same manner as the percentage rent itself is prorated. This provision shall survive Closing.

5.1.5Gas, water, electricity, heat, fuel, sewer and other utilities charges to which Section 5.1.1 cannot be applied, and the governmental licenses, permits and inspection fees and operating expenses relating to the Shopping Center (expressly excluding therefrom, however, such expenses relating to the initial construction of the Shopping Center), shall be prorated on a per diem basis.

5.1.6Common area maintenance expenses and charges shall be prorated. Seller shall beresponsible for all common area expenses and charges incurred prior to the Closing Date, and Buyer shall be responsible for the same accruing on and subsequent to the Closing Date.  All common area expense payments made by each tenant and such charges paid under its Space Lease for the entire lease year during which the Closing occurs, including end-of-year adjustments, if any, shall be prorated between Seller and Buyer in the following manner:  Not later than three (3) days prior to Closing, Seller shall deliver in Buyer, with regard to each Shopping Center tenant required to pay common area charges (“CAM Charges”) under its lease, a detailed computation showing all CAM Charge expenses incurred by Seller for the period from the beginning of each such tenant’s then current billing period for CAM Charges (e.g., calendar year, lease year, etc.) through the Closing Date, any CAM estimated payments or charges collected by Seller relating to such tenant (hereinafter “CAM Estimates”), and a bill for the tenant’s pro rata share of CAM Charges (i.e., for CAM charges through the Closing Date net of any such CAM Estimates held by Seller), together with all invoices and other evidence documenting such CAM Charges in detail required by such tenant’s lease.  Buyer shall send any such bills to tenants promptly following Closing, in which event such tenant shall pay any amount shown due directly to Seller, and except as otherwise stated in Section 5.3.3 below Buyer shall have no responsibility to collect same.  However, if any tenant rightfully refuses to pay such bill for CAM Charges due through the Closing Date, then Buyer shall resubmit such bill to any such tenant at the same time as Buyer next submits Buyer’s own bill to any such tenant; and any payment thereafter made by any such tenant on account of CAM Charges shall belong to and be forwarded within ten (10) days of its receipt to Seller until Seller’s bill is paid in full.

Any CAM Estimates for any tenant shall be retained by Seller up to the amount of the pre-Closing CAM Charges payable by such tenant as evidenced by such bills and computations delivered by Seller at Closing, and Buyer shall receive a credit for any excess CAM Estimates collected by Seller.

5.1.7All prepaid rentals, other prepaid payments (other than monthly real estate tax estimates or installments), security deposits paid pursuant to Space Leases, electric, gas, sewer and water deposits deposited with Seller by tenants, (including any accrued interest required under any Space Lease on all of the foregoing, unless Seller is entitled to retain the benefit thereof) under any Space Leases, license agreements or concession agreements relating to the Property, shall all belong to Buyer and all shall be assigned and delivered to Buyer at Closing, whereupon Seller shall be released from all liability with respect thereto.  At Seller’s option, Buyer shall receive a cash credit in the amount ofall Security Deposits to be delivered to Buyer at Closing, and Seller may retain same.

5.1.8Buyer shall not be responsible for any charges, salaries, vacation pay or fringe benefits of employees of Seller prior to or following the Closing and none of the foregoing shall be prorated.

5.2All prorations and payments to be made under the foregoing provisions shall be made on the basis of a written statement or statements delivered to Buyer by Seller and approved by Buyer. In the event any prorations, apportionments or computation shall prove tobe incorrect for any reason, then either party shall be entitled to an adjustment to correct the same, provided that it makes

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written demand on the one from who it is entitled to such adjustment within two (2) years after the erroneous payment or computation was made; this provision shall survive Closing.

5.3All accounts receivable flowing from the Property shall be treated as follows:

5.3.1Buyer and Seller agree to treat all base or minimum rental payments received from a tenant as applicable to base or minimum rent which was owed by that tenant, if any, first for the month prior to the month in which Closing occurs and next for the month in which Closing occurs until the base or minimum rental amount due to Seller for such periods have been collected.  In the event that there remains any unpaid base or minimum rent for a period prior to such periods, all payments of base or minimum rent received from such tenant shall be applied to sums owed Buyer before any part thereof shall be treated as belonging to Seller.    In the event that there remains anyunpaid tenant receivable other than base or minimum rent (including without limitation any tax, CAM, insurance or percentage rent payments) for any period prior to Closing, all payments received from any tenant in arrears (whether base or minimum rent or any other amount) shall be applied first to any such sums owed Buyer from such tenant before any part thereof shall be treated as belonging to Seller.

5.3.2In the event that any tenant of Seller or Buyer shall hereafter apply or shall have heretofore applied for relief under the provisions of any bankruptcy or similar laws for the protection of debtors, the provisions of Section 5.3.1 shall not apply, and the parties shall have the right to seek collection of their respective accounts, their entitlements being determined by the Closing and the other provisions of this Agreement. Neither party shall have the right to enter into any transactions that purport to compromise claims belonging to the other, without the other party’s prior written consent.

5.3.3“If at the Closing Date any tenants owe  Seller any money (i.e. reimbursements to Seller for payment of liens or violations on the Property that were created by tenant(s) but that Seller is required hereunder to satisfy in order to effectuate the sale of the Property or rent arrears (which shall include CAM and tax reimbursements)), Seller shall have the right, subsequent to the Closing, to collect such sums directly from the tenants, including bringing lawsuits against the tenants (at Seller’s sole expense) for such collection (except that Seller is prohibited from bringing a lawsuit against any tenant(s) to collect rent in arrears for a period of thirty (30) days after such dispute or arrears has arisen (the“ Buyer Collection Period”); instead Buyer agrees to use commercially reasonable efforts to collect such arrears on Seller’s behalf, if Buyer is unsuccessful in collecting the tenant arrears by the expiration of the Buyer Collection Period, then Seller shall have the right to collect such sums directly form the tenants including bringing lawsuits against the tenants (at Sellers sole expense) for such collection, however, Seller agrees that any such legal action or collection shall not include any disturbance of the possession, use or occupancy of the tenants or any right to evict the tenants, whether pursuant to the lease provisions or otherwise, and Buyer shall at Seller’s expense join in any lawsuit and/or also participate or cooperate with Seller in its collection attempts. Buyer will (at Seller’s expense) join in such a lawsuit or action only if the same does not include or require disturbance of the possession of any tenants.”

5.3.4In the event Seller has granted rent concessions to tenants under space lease(s) that would extend beyond the Closing Date, Buyer shall receive credit for same.

5.4Intentionally Deleted.

5.5The provisions of this Article 5 will survive Closing.

6.TITLE AND SURVEY.

6.1Seller shall convey and Buyer shall accept, subject to the right of Buyer to review and approve all title matters, documents and plats of record in regard to the condition of title to the Property, title such as the Title Company will be willing to approve and insure subject only toPermitted Exceptions as provided for in this Agreement.  Buyer acknowledges that it has heretofore received copies of Seller’s existing title insurance policy for the Real Estate (the “Existing Title Policy”) and of Seller’s existing survey of the Real Estate (the “Existing Survey”).  Promptly following the execution of this Agreement, Buyer may (if it so elects) obtain (the costs of which shall be borne solely by Buyer) updates of the Existing Survey to the certification standards described upon the Surveyor’s certification attached hereto Exhibit 13 and made a part hereof (such updated survey hereinafter referred to as the “Updated Survey”); if Buyer does obtain such an Updated Survey, Buyer shall cause it to be certified to Seller and Buyer shall promptly furnish Buyer, Seller and the Title Company with a copy thereof.  Promptly following the execution of this Agreement, Buyer shall also (the costs of which shall be borne by Buyer) obtain a commitment for ALTA Form B Leasehold Title Insurance (the “Title Commitment”); and Buyer shall promptly cause the Title Company to furnish Seller and Buyer with true accurate and complete copies thereof (including true, accurate and complete copies of all underlying title

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exception documents referenced therein). Not later than the expiration of the Due Diligence Period, Buyer shall give Seller written notice (“Buyer’s Title/Survey Notice”) of any title exceptions which are contained in the Title Commitment and/or the Survey which are not Permitted Exceptions. Failure by Buyer to give Buyer’s Title/Survey Notice (or to object to any matter referenced in the Title Commitment) to Seller on or before said date shall constitute Buyer’s final and irrevocable approval of the condition of title (and to any such unobjected to matter) in and to the Real Estate. If Buyer’s Title/Survey Notice shall be timely given Seller shall have a period of fifteen (15) days following Seller’s receipt of Buyer’s Title/Survey Notice, to commence to remove, correct, cure or satisfy (provided Seller does in fact elect to so remove, correct, cure or satisfy) any title exceptions that were identified in Buyer’s Title/Survey Notice as not being Permitted Exceptions, it being nevertheless agreed that Seller shall have no obligation to undertake any action or to incur any expense in order to effectuate any such removal, correction, cure or satisfaction (except that notwithstanding the foregoing Seller shall be required to remove or discharge any fee mortgages or deeds of trust, as well as any other liens in an ascertainable dollar amount ). In the event that Seller elects not to attempt to remove, correct, cure or satisfy the matters raised in Buyer’s Title/Survey Notice, or if having elected to do so, does not within thirty (30) days thereafter, (or such additional time as is reasonably necessary (not to exceed an additional fifteen (15) days without Buyer’s written consent) to remove, correct, cure or satisfy the matter(s) so raised using commercially reasonable good faith efforts) effectuate any such removal, correction, cure or satisfaction as aforesaid (hereinafter called “title correction”), Buyer shall have the right at its sole option either (a) to terminate this Agreement, in which event the Deposit shall be returned to Buyer and neither party shall thereafter have any further liability hereunder, or (b) to accept such title as is disclosed by the Title Commitment and/or Survey without title correction and without Survey correction and without any reduction to the Purchase Price, thereby waiving any lights against Seller with respect thereto. Said election shall be made by Buyer within three (3) days following Buyer’s receipt of written notification by Seller that Seller has not effectuated (or has elected not to effectuate) title correction. In the event that Seller (even though under no duty to do so) shall undertake title correction and/or Survey correction as aforesaid, and shall be successful, this Agreement shall continue in full force and effect and Buyer shall close the transaction contemplated hereby in accordance with the terms hereof. In the event that Seller shall only be partially successful in obtaining title and/or Survey correction, Buyer shall have the same alternative rights as Buyer would have in the event Seller had declined to seek title and/or Survey correction (as set forth above). Buyer shall make its election within three (3) days after Buyer’s receipt of written notice from Seller to Buyer of the extent to which title and/or the Survey has been corrected.

6.2If at the Closing Date there may be any liens or encumbrance which render title unmarketable or otherwise are not permitted title exceptions hereunder, and which Seller is obligated or desires to pay and discharge, Seller may use any portion of the balance of the Purchase Price to satisfy the same, provided Seller shall simultaneously either deliver to Buyer at the Closing instruments in recordable form and sufficient to satisfy such liens and encumbrances of record together with the cost of recording or filing said instruments; or provided that Seller has made arrangements with the title company in advance of Closing, Seller will deposit with said company sufficient monies, acceptable to and required by it to insure obtaining and the recording of such satisfactions and the issuance of title insurance to Buyer either  free of any such liens and encumbrances, or with insurance against enforcement of same out of the insured premises.  The existence of any such liens and encumbrances shall not be deemed objections to title, if Seller shall comply with the foregoing requirements. Unpaid liens for taxes, water charges, sewer rents and assessments which are the obligation of Seller to satisfy and discharge shall be objections to title, and thus the amount thereof, plus interest and penalties thereon, shall be deducted from the Purchase Price to be paid hereunder and allowed to Buyer, subject to the provisions for apportionment of taxes, water charges and sewer rents contained herein. Unpaid franchise taxof any  entity in the chain of title to which such tax is applicable, or estate, income or other taxes which may be liens against the Property as of the Closing Date shall not be an objection to title, provided the title company agrees to insure against the collection of said taxes from the Property and in such event if required by the title company, Seller agrees to deposit at Closing with the title company an amount deemed reasonable by it to secure the payment of such unpaid franchise tax, or other tax.

6.3In the event that Seller is unable to convey title in accordance with the terms of this Agreement, or if any representation of Seller herein is untrue in a material respect on the Closing Date and Seller does not correct same (it being understood Seller will be entitled to a reasonable adjournment of Closing for such purpose, not to exceed Fifteen (15) days), the sole responsibility of Seller will be to refund, (or cause to be refunded by the Escrow Agent) to Buyer any amount paid on account of the Purchase Price; upon the making of such refund, this Agreement shall be deemed canceled, neither party shall have any further claim against the other by reason of this Agreement, except that Buyer shall remain liable on its obligations under Sections 4.2 and 15.8.

6.4The costs of obtaining the Title Commitment, the policy of title insurance to issue at Closing (in form subject to Buyer’s sole discretion, and agreed to prior to the expiration of the

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Due Diligence Period) including the costs of any excess coverage or endorsements Zoning 3.1; Survey; Access, Usury, Location, Tax ID, Contiguity, EPA, Comprehensive and Doing Business, to the extent available or applicable, shall be borne solely by Buyer (the “Title Policy”) and costs of updated Survey shall be borne solely by Buyer, however expressly excluding therefrom, however, the costs to release any monetary encumbrance affecting the Property and any title curative endorsements which shall be borne by Seller.

7.DAMAGE, DESTRUCTION OR REQUIRED ALTERATION.

7.1 Prior to Closing, in the event of any damage to or destruction of all or part of the Real Estate (notice of which shall be given to Buyer by Seller as soon as  practicable following its occurrence), then Seller shall have the right (but not the obligation) to adjourn the Closing Date for up to sixty (60) days in order to repair or replace such damage or destruction, except that if the cost of such repair or replacement exceeds ten percent of the Purchase Price, then in any such case (i) Buyer shall have the right to terminate this Agreement by giving Seller written notice of its intention to do so, such notice by Buyer to Seller to be given not later than three (3) days after Buyer shall have received the notice from Seller of such aforesaid occurrence, (in which event the Deposit shall forthwith be returned to Buyer, whereupon this Agreement shall be null and void and of no further force or effect whatsoever, except that Buyer shall remain liable on its obligations under Sections 4.2 and 15.8); or (ii) if Buyer elects not to (or does not have the right to) terminate this Agreement, this Agreement shall continue in full force and effect except that at Closing Buyer shall receive an abatement of the Purchase Price in an amount equal to Seller’s reasonable good faith estimate of the amount required to repair and restore all unrepaired damage (and Seller shall retain all rights to collect insurance proceeds for such loss). Buyer may elect to have its architect provide a good faith estimate of the amount required to repair and restore all unrepaired damage. If Seller’s estimate disagrees with Buyer’s architect’s estimate, the parties shall select another architect to make a final determination of the amount required to repair and restore all unrepaired damage and both parties shall be bound by the third architect’s determination. The party whose architect differs most from the third architect’s determination shall pay the third architect’s fee.

7.2(a)  In the event that any governmental authority having jurisdiction of all or part of the Real Estate has notified Seller before the Closing that some alteration of or addition to the Real Estate is required to be made by law, rule or regulation (notice of which shall be given to Buyer by Seller as soon as practicable after its receipt) or otherwise requires a cure of a violation, then (subject to the provisions of Section 7.2(b)) Seller shall have the right (but not the obligation) to undertake such alteration or addition or cure; provided, however, that if the cost of such alteration or addition or cure shall exceed the sum of one (1%) percent of the Purchase Price, then in such event Seller may either elect to pay the entire cost and cure the same before the Closing or may decline to undertake the same, in which event Buyer shall have the option, exercisable within three (3) days following notice from Seller of the requirement and Seller’s refusal to comply therewith, (i) to terminate this Agreement by giving Seller notice thereof (in which event the Deposit shall forthwith he returned to Buyer, whereupon the Agreement shall be null and void and of no further force or effect whatsoever, except that Buyer shall remain liable on its obligations under Sections 4.2 and 15.8); or (ii) if such notice of termination is not timely given, to proceed with the Closing, in which event the Purchase Price shall be reduced by Seller’s reasonable good faith estimate of the cost to cure, up to the maximum sum of one percent of the Purchase Price. Buyer may elect to have its engineer provide a good faith estimate of the cost to cure. If Seller’s estimate disagrees with Buyer’s architect’s estimate, the parties shall select a another engineer to make a final determination of the cost to cure and both parties shall be bound by the third engineer’s determination. The party whose engineer differs most from the third engineer’s determination shall pay the third engineer’s fee.

(b)Notwithstanding the foregoing provisions of Section 7.2(a), Seller may elect but shall have no obligation to cure or pay for, , any violation which either (i) is first placed (i.e., notice first given to Seller or first placed of record) after the date of this Agreement, or (ii) is the responsibility of a Shopping Center tenant to cure or discharge pursuant to its Space Lease. In the event Seller elects to cure or pay for such violation(s), Seller shall have a period of fifteen (15) days after receipt of notice of the violation to commence to cure or pay for same, and shall proceed with diligence to cure same, however, if Seller elects to cure a violation, and Seller reasonably believe that the Closing Date (as hereinafter defined) will need to be extended more than thirty (30) days to effectuate the cure, then Seller shall not commence to cure the violation then Buyer may elect to (i) complete the purchase without any adjustment in the Purchase Price or (ii) terminate the Agreement in such event, unless Buyer agrees to the required extension. In the event Seller elects not to cure or pay for such violation, the sole responsibility of Seller will be to refund (or cause to be refunded by the Escrow Agent) to Buyer any amount paid on account of the Purchase Price; upon the making of such refund, this Agreement shall be

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deemed cancelled, neither party shall have any further claim against the other by reason of this Agreement, except that Buyer shall remain liable on its obligations under Sections 4.2 and 15.8.

8.EMINENT DOMAlN.  In the event that any eminent domain proceedings shall be commenced prior to the Closing affecting (i)  any of the parking area(s) within the Real Estate or any access roadway serving the Real Estate that is not replaced by an access roadway in a comparable location with respect to the Real Estate; or (ii) which is of such a nature as would permit any tenant occupying leased premises to cancel its Space Lease, Buyer shall have the right to terminate this Agreement, by written notice given to Seller within three (3) days after the event, (in which case the Deposit shall forthwith be returned to Buyer, whereupon the Agreement shall be null and void and of no further force or effect whatsoever). In any case wherein Buyer has the right to terminate this Agreement pursuant to this Section 8 and Buyer elects not to terminate, or in any case wherein Buyer does not have the right to terminate, Buyer and Seller shall consummate Closing on the Closing Date, without any reduction to or abatement of the Purchase Price, and all theretofore unpaid condemnation awards shall belong to Buyer.

9.NO ASSIGNMENT.  Buyer shall not have the right to assign this Agreement or its rights under this Agreement without obtaining in each instance Seller’s prior written consent. Notwithstanding the foregoing, Buyer shall have the right, without Seller’s consent, to assign its entire right, title and interest in and to this Agreement, expressly including the Deposit, to any entity controlling, controlled by, or under common control with Buyer or Inland Real Estate Trust, Int., a Maryland corporation, (an “Affiliate”); provided that, not less than three (3) business days prior to Closing, Seller receives an executed assignment and assumption agreement, in a commercially reasonable form , which expressly assigns the Deposit and in which such assignee expressly assumes performance of this Agreement for the benefit of Seller.  No such assignment or designation shall relieve or release Buyer from any obligations under this Agreement (whether arising pre- or post-closing), and Buyer shall remain jointly and severally liable for all of same together with such assignee.

10.COVENANTS AND REPRESENTATIONS. As of the date hereof, and to the best of Seller’s knowledge, Seller covenants, warrants and represents to Buyer the following:

10.1Seller has obtained any consents from partners and/or shareholders required to permit the transactions contemplated by this Agreement including the sale of the Property to Buyer.

10.2There is no pending or threatened litigation affecting the Property brought by or against Seller that would materially adversely affect Buyer except as set forth in Exhibit 7 attached hereto and made a part hereof. If Seller is served with process or receives notice that litigation relating to the Property has been commenced against it, Seller shall promptly notify Buyer. The provisions of this Section shall not apply to any litigation relating to the property involving personal injury or property damage(s) covered by insurance.

10.3The Space Leases described in Exhibit 2comprise all the Space Leases presently existing, and same have not been materially amended or modified except (if at all) as may be set forth in Exhibit 2. Seller has neither given nor received any outstanding, uncured notice of default to orfrom any Space Lease tenant. Following a date which is five (5) business days prior to the expiration of the Due Diligence Period (the “Cut Off Date”), and prior to Closing, Seller will not, without the prior written consent of Buyer(which Buyer agrees not to reasonably withhold or delay), cancel (except for default by a tenant) or materially amend any Space Lease, or enter into any new Space Lease or any Service Contract affecting the Property not cancelable on 30 days notice. On or prior to the Cut Off Date, Seller may take any of the foregoing actions without Buyer’s consent, provided it delivers a copy of any new documentation evidencing same to Buyer not later than three (3) business days prior to the expiration of the Due Diligence Period.

10.4Except as otherwise expressly provided herein, there are no contracts or agreements affecting the Property other than the Service Contracts, Space Leases, and Permitted Exceptions; and there are no on-site employees or hired persons in connection with the management, operation or maintenance of the Property; and Buyer shall have no obligation, liability or responsibility with respect to charges, salaries, vacation pay, fringe benefits or like items subsequent to Closing, nor with any management or employment agreements with respect to the Property.

10.5Ownership of Transferred Interest. The Seller is the sole member of the Owner as of the date hereof, and holds one hundred (100%) percent of the membership interests in the Owner. The Interests were issued to the Seller without violating any state or federal laws applicable to the issuance of securities or otherwise. The Seller is the legal and beneficial owner of the Interests and will be the legal and beneficial owner of the Interests immediately prior to Closing; such ownership consists of and will consist of good, valid and indefeasible title thereto, free of all liens and encumbrances of any

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kind or nature whatsoever; and upon consummation of the transfer of the Interests to Buyer pursuant to the terms hereof, Buyer will acquire title to the Interests, free and clear of all liens and encumbrances whatsoever and will own, in the aggregate, one hundred (100%) percent of the membership interests in the Owner.

10.6Organization. The Owner or if entity not formed will be at the time of closing a is duly organized and validly existing as a limited liability company under the laws of the State of Delaware.

10.7Other Agreements.  Except for this Agreement, there are no agreements or arrangements to which Owner or Seller is a party, or by which Owner or Seller is bound, relating to the issuance, acquisition or disposition of any interest in Owner, and there are no agreements or arrangements to which Owner or Seller is a party or by which they arc bound relating to the repurchase or redemption of any interest in Owner.  Except for this Agreement, there are no outstanding options, warrants or other rights to subscribe for or purchase or acquire any interest in Owner or any agreements or arrangements to which Owner or Seller is a party or by which they are bound pursuant to which any Owner or Seller is or may be required to issue or sell any additional interest in Owner.  Owner does not own, directly or indirectly, any capital stock or other equity securities of any corporation or have any direct or indirect equity or other ownership interest in any entity or business.

10.8Organizational Liabilities.   All federal, state and local income, excise, sales, property and other tax returns required to be filed by the Owner, if any, have been timely filed and are correct and complete in all material respects.  All taxes, assessments, penalties and interest due in respective of any such tax returns have been paid in full, and there are no pending or threatened claims, assessments, deficiencies, audits or notices with respect to any such taxes. The Owner is not a party or otherwise subject to any judgment, order, writ, injunction or decree of any court, governmental or any administrative agency or a tribunal having jurisdiction over the Interests. There are no and have never been any employees of the Owner and the Owner shall not have any employees through the date of Closing.  The Owner does not maintain, sponsor, participate in or contribute to, and in the past, the Owner has not maintained, sponsored, participated in or contributed to, any employee health or benefit plan (as defined in Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), any employee pension benefit plan (as defined in Section 3(2)(A) of ERISA), or any bonus, severance, deferred compensation, retirement option or any other plans or amendments providing for any benefits to employees of the Owner, and the Owner is not, and has not been, a member of any controlled group of entities, agroup of trades or businesses under common control, or an affiliated service group, as defined in ERISA and the Internal Revenue Code of 1986, as amended.

10.9The signatories to this Agreement on behalf of Seller have the power and authority to enterinto this Agreement and to bind Seller to the provisions hereof.

10.10As of the date hereof: (i) to Norm Brody and Todd Zinmaster’s knowledge Seller is not aware of and has receive no building code violation notices with respect to the Property (other than notices of violations which have been removed or corrected); and (ii) to Norm Brody and Todd Zinmaster’s knowledge Seller is not aware of and has received no notices of any action or governmental proceeding in connection with eminent domain, or for a zoning change, which would affect the Property; and (iii) to Norm Brody and Todd Zinmaster’s knowledge Seller is not aware of any structural problems in the improvements constructed upon the Property and the exterior structures are in good condition and repair.

11.THE CLOSING.

11.1The Closing shall beheld at the Title Company’s offices (at the address set forth above) at 9:00 A.M. on the Closing Date. The Closing Date shall be the first business day after the expiration of the Due Diligence Period, but in no event earlier than October 1, 2004  not later than November 17, 2004. In the event the condition precedent to Closing described at Section 16(c)(ii) (the “Lease-up Requirement”) is not satisfied as of November 17, 2004, the following shall apply so long as Seller is not then in default of its obligations hereunder: (A)(i) Closing shall be delayed until such time as the Lease-up Requirement is achieved (in no event later than April. 1 2005), and (ii) at Closing, Seller shall credit Buyer an amount equal to Twenty-eight Thousand and no/100 Dollars ($28,000.00) per month foreach 30-day period that Closing does not occur from and including November 18, 2004 (prorated for any partial month) through the Closing Date, or at Seller’s option (B) if the Property is no less than seventy-five percent (75%) leased (within the context of Section 16(c)(ii), Buyer and Seller shall close on November 17, 2004 and Seller shall deposit into the Cash Flow Holdback escrow (described in Section 11.3(d), hereof), a sum equal to six (6) months of rent and reimbursements for such tenant spaces leased but with the Tenant Conditions (as hereinafter defined) not satisfied (the “Lease-up Requirement Shortfall Escrow”). For the purposes hereof, the Tenant Conditions are hereby defined as (i)

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a signed lease, and (ii) with Tenant either paying full rent and reimbursements and all conditions precedent to Rent Commencement Date (as defined in such tenant lease) shall have occurred or been satisfied, and (iii) with all the leasing commissions and tenant improvement allowances either paid for by Seller or credited to Buyer, and (iv) with a certificate of occupancy or its equivalent occupancy permit issued by the local governmental authorities, for such tenant’s respective demised premises, (v) Tenant shall have open and operated for its permitted use for at lease one day, and (vi) Seller obtains an estoppel from the Tenant stating that the delivery conditions (i.e. landlord work) has been completed or Seller shall give a Seller estoppel to that effect.

11.2At Closing, Buyer shall pay the Purchase Price as adjusted in accordance with the provisions of this Agreement; and Buyer shall execute and deliver such other instruments as Seller may reasonably request in connection with or to consummate the transactions contemplated by this Agreement.

11.3(A)At Closing, Seller shall deliver to Buyer the following:

(a)Intentionally Deleted.

(b)A F.I.R.P.T.A. affidavit.

(c)It shall be a condition precedent to Buyer’s obligation to remit the remainder of the Purchase Price to the Title Company on the Closing Date and effectuate the transaction contemplated herein that on or before the third (3rd) business day prior to the Closing Date, Buyer shall have received an estoppel certificate from the Space Lease Tenants operating under the trade names Marshall’s and Petco (hereinafter “Anchor Tenant”), as well as from sixty (60%) percent of the remaining tenants (each such tenant hereinafter referred to as a “Non-Anchor Tenant”) (collectively such Non-Anchor Tenants hereinafter referred to as the “Minimum Threshold”), each such estoppel to be dated not more than 30 days prior to the Closing Date, in either the form required by its Space Lease, or otherwise in the form attached hereto as Exhibit 10, and made a part hereof, as well as Seller’s estoppel in the form of Exhibit 10 for any tenant (other than an Anchor Tenant and so long as the Minimum Threshold is met) not delivering an estoppel as required to achieve one hundred percent (100%) estoppel delivery for the Property.  If Seller is unable to obtain any such required estoppel from a tenant prior to Closing, Seller shall deliver its own estoppel in the form attached as Exhibit 10 (provided, however, Buyer shall not be obligated to accept Seller’s estoppel for any Anchor Tenant nor for more than thirty (30%) percent of the Non-Anchor Tenants at the Property) , which shall survive Closing (but if post-Closing Seller delivers any such tenant estoppel, Seller shall be relieved from responsibility under any Seller estoppel it delivered regarding all matters confirmed by such tenant estoppel).  If Seller fails to deliver any such required estoppel, Seller shall have no liability by reason thereof provided, however that Seller shall not be required to deliver its own estoppel containing an assertion that Seller in good faith believes to be untrue, and Buyer’s sole right shall be to terminate this Agreement and to obtain a refund of the Deposit as set forth in Section 14.3. If any estoppel certificate is dated earlier than forty (40) days prior to the Closing Date, in lieu of requiring Seller to obtain a new estoppel from the subject tenant(s), which shall be required of Seller if any estoppel certificate is dated earlier than sixty (60) days prior to the Closing Date, Buyer agrees that Seller may deliver, at Closing, its representation that to the best of Seller’s knowledge, the facts in said estoppel remain true in all material respects as of  the Closing Date.

(d)(d) Seller shall use its commercially reasonable good faith efforts to obtain, prior to the expiration of the Due Diligence Period, an estoppel certificate from each party to, or affected by any declaration, association, reciprocal easement, or like agreement affecting the Property (hereinafter “REA estoppel”).  Seller will request that the estoppel be in a form substantially similar to the form attached hereto as Exhibit 11 and made a part hereof. In the alternative, within five (5) days of the date this Agreement is fully executed by Seller and Buyer. Seller shall provide Buyer with the necessary information for each REA party such that during the Due Diligence Period.  Buyer may request the REA estoppel from the REA parties directly.  In the event Seller and Buyer are unable to obtain these estoppels despite Seller’s commercially reasonable good faith efforts prior to the expiration of the Due Diligence Period, Seller may deliver and Buyer may accept (although nothing contained herein shall require Buyer to accept), its own estoppel in the form attached as Exhibit 11, which shall survive Closing (but if post-Closing Seller delivers any such REA estoppel, Seller shall be relieved from responsibility under any Seller estoppel it delivered regarding all matters confirmed by such “REA” estoppel).

(e)It shall be a condition precedent to Buyer’s obligation to remit the remainder of the Purchase Price to the Title Company on the Closing Date and effectuate the transaction contemplated herein that on or before the third (3^rd)business day prior to the Closing Date, Buyer shall have received an assignment of all warranties and guaranties, if available, for materials and workmanship benefiting the Property, including an acknowledgment by the material and/or service provider of the acceptance of the assignment where required by the terms of the warranty and/or guaranty, with all fees and costs of such

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assignment (and inspection, if required) (not toexceed One Thousand Dollars (S1,000.00)) being paid at the sole cost and expense of Seller; any such costs or fees in excess of One Thousand Dollars ($1,000.00) being shared equally between the parties hereto.

(B)At Closing, Seller and Buyer shall each execute and deliver tothe other the following:

(a)An Assignment and Assumption of membership Interests in Inland Western Northwoods LLC in form set forth as Exhibit 8.

(b)Intentionally Deleted.

(c)Notices to tenants, in the form attached hereto as Exhibit 14, and made a part hereof, notifying them of the sale and (if applicable) the transfer of their security deposit to Buyer.

(d)Cash Flow Holdback.  To the extent at Closing the Rent Commencement Date (“RCD”) of a Space Lease, as the RCD is defined in the respective Space Lease, has not occurred, (such a Space Lease being hereinafter referred to as a“Pending Lease”) then Seller shall put in escrow account to be held by the title company the “Cash Flow Deficiency” as hereinafter defined for any such Pending Leases.  The Cash Flow Deficiency shall mean the Fixed Rent, CAM, taxes and insurances payable under the Pending Lease calculated from the day of the Closing to the RCD under such Pending Lease.  At Closing the parties shall enter into formal Escrow Agreement outlining the terms of the Cash Flow Holdback.

11.4Each party shall pay its own legal fees and travel and lodging expenses in connection with this transaction.  Seller and Buyer shall split the payment in accordance with local custom for all transfer taxes and the parties shall each pay ^1/2 of the documentary stamps or recording charges for transfer of title to the Real Estate and the “New York Style” closing escrow fees charged by the Title Company.

11.5Buyer also agrees to cooperate with Seller to permit the conveyance of the Property to be consummated as a part of a transaction intended by Seller to qualify as a tax-free exchange under Section 1031 of the Internal Revenue Code and in conjunction therewith to execute such documents as Seller may reasonably request (such cooperation may include, without limitation, accepting a conveyance from a party other than Seller and paying the Purchase Price to a party other than Seller). In no event, however, shall (a) Buyer bear any expense associated with the exchange transaction, (b) Buyer be obligated to take title to Seller’s exchange property, (c) the consummation of such tax-free exchange materially delay the conveyance to Buyer of the Property, (d) Buyer have any liability to Seller or any other party for the qualification of the exchange transaction for tax-free exchange treatment under Section 1031 of the Internal Revenue Code or under any other provision and (e) the consummation of such tax free exchange relieve Seller of any of its obligations hereunder.

12.BROKERS.

Each party represents and warrants to the other that it dealt with no broker other than Cushman & Wakefield (the “Broker”) in connection with this transaction. Seller shall pay Broker pursuant to a separate agreement and Buyer shall pay Broker one hundred fifty thousand dollars ($150,000.00). Each party agrees to defend, indemnify and hold the other harmless from and against any and all loss, liability and expense, including reasonable attorney’s fees, that the indemnitee may incur arising by reason of the above representation by the indemnitor being false. The provisions of this Section 12 shall survive Closing.

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13.NOTICES.  All notices, demands, requests, consents, approvals or other communications (for the purpose of this Section collectively called “Notices”) required or permitted to begiven hereunder or which are given with respect to this Agreement shall be valid only if in writing and sent by registered or certified United States mail, return receipt requested, postage prepaid, or delivered by Federal Express or UPS courier service, addressed as follows:

To Seller:
	3333 New Hyde Park Road
	Suite 100
	New Hyde Park, New York 11042
	Attn: Barbara E.Briamonte, Esq.
	Phone: (516) 869-7157
	Fax: (516) 869-7201
	with a copy to:
	1111 Burlington Avenue Suite 113 Lisle, IL 60532 Attn: Daniel Slattery Phone: (630) 322-9206 Fax: (630) 322-9204
To Buyer:	Inland Real Estate Acquisitions, Inc. 2901 Butterfield Road Oakbrook, IL 60523 Phone: (630) 218-4948 Fax: (630) 218-4935 Attention: G. Joseph Cosenza
and a copy to:	Steven D. Sanders Fax: (914) 779-2000
	with a copy to:
	The Inland Group, Inc. 2901 Butterfield Road Oak Brook, IL 60523 Attn: Robert Baum, General Counsel Facsimile Nos: (630) 218-4900 Copy via facsimile: Charles R. Benvenuto (630) 571-2360
To Escrow Agent:	CHICAGO TITLE & TRUST COMPANY 171 North Clark Street Chicago, Illinois 60601 Attn: Nancy Castro, Escrow Agent Phone: (312) 223-2709 Fax: (312) 223-2108

orsuch other address as such party shall hereafter have specified by Notice given by the same means.  Any Notice shall be deemed given when delivered to the carrier delivering same, delivery charges prepaid, and properly scaled and addressed. Any Notice may also be given by telecopier to the following numbers: Seller (516) 869-7201, Buyer (843) 852-3675, (630) 218-4935, (678) 996-2140 and (630) 218-4900;, and Escrow Agent (312) 223-2108, Attn: Nancy Castro, provided that a “hard copy” of such notice is sent within one (1) business day after such telecopier transmission in the manner above set forth; and in the case of notice by telecopier (with confirmation sent as aforesaid), notice shall be deemed given upon electronic confirmation of receipt.

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14.DEFAULTS.

14.1If Closing does not take place because of Buyer’s default the Deposit shall be retained by Seller as agreed upon liquidated damages as Seller’s sole remedy for such default, and thereupon this Agreement shall be null and void and of no further force or effect whatsoever (except that Buyer shall remain liable on its obligations under Sections 4.2 and 15.8). The parties hereto expressly agree that Seller’s actual damages in the event of a default by Buyer would be extremely difficult or impractical to ascertain, and that the amount of the Deposit represents the parties’ reasonable estimate of such damages.

14.2If Closing does not occur due to Seller’s willful default and refusal to close despite Buyer’s willingness to do so (such willingness includes waiver by Buyer of any uncured title objection properly made by Buyer under Section 6.1 or material breach of representation or warranty by Seller) (such willful default and refusal being hereinafter referred to as a “Seller Default”), then Buyer, as its sole and exclusive right and remedy as a result of such Seller Default, may elect to either (i) cancel this Agreement, in which event the Deposit shall be returned to Buyer, Seller shall be liable for any title and survey costs, as well as environmental site assessment, appraisal and legal fees theretofore incurred by Buyer (however Seller shall not be obligated to reimburse Buyer more than Twenty-Five Thousand Dollars ($25,000.00) in the aggregate for such environmental site assessment, appraisal and legal fees), and thereupon no party shall have any further right or obligation hereunder (except that Buyer shall remain liable on its obligations under Sections 4.2  and 15.8),  or (ii) Buyer may enforce specific performance of this Agreement without any reduction or abatement of the Purchase Price, together with the right of Buyer to collect its reasonable attorney’s fees and costs of suit, subject to the limitation on Landlord’s reimbursement of same described above.

14.3Subject to the provisions of Article 14.1 and 14.2 above, if Closing should not occur for any reason whatsoever other than a default by Buyer or a Seller Default (including without limitation by reason of a material breach of representation or warranty of Seller or an uncured title objection properly made by Buyer under Section 6.1, or a failure to deliver any tenant estoppel required hereunder) which Buyer is not willing to waive, then in such event this Agreement shall be and be deemed cancelled, the Deposit shall bereturned to Buyer, and thereupon Buyer shall have no other right, by way of damages or otherwise, against Seller notwithstanding the existence of any failure or breach of representation, warranty, covenant, title, provision of estoppel or other Closing condition (provided that Buyer will remain liable on its obligations under Sections 4.2 and 15.8).

15.MISCELLANEOUS.

15.1The representations, warranties and covenants contained in Article 10 of this Agreement shall survive delivery of the deed for a period of twelve (12) months. Other than the survival of such representations, warranties and covenants, the acceptance of the deed by Buyer shall be conclusive evidence of the performance by Seller of all of the provisions of this Agreement to be performed by Seller.

15.2This Agreement (including the Exhibits attached hereto) contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings, if any, with respect thereto.

15.3This Agreement may not be canceled, modified, changed or supplemented, nor may any obligation hereunder be waived, except by written instrument signed by the party to be charged or by its agent duly authorized in writing.

15.4The parties do not intend to confer any benefit hereunder on any person, firm or corporation other than the parties hereto and their respective successors or assigns.

15.5“TIME IS OF THE ESSENCE” with respect to all provisions of this Agreement, with the sole exception that each of Buyer and Seller shall be entitled to a single adjournment (not to exceed two (2) business days in any event) of the Closing Date.

15.6This Agreement shall extend toand be binding upon the legal representatives, heirs, executors, administrators and, subject to the provisions of this Agreement, the permitted assigns of the parties hereto.

15.7Intentionally Deleted.

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15.8Buyer represents and warrants that it will keep all information and/or reports and/or documents obtained from Seller or its agents (including without limitation the rent and other terms of the Space Leases), or related to or connected with the Property (including without limitation the existence of this Agreement and the Purchase Price) strictly confidential and will not disclose any such information to any person or entity (except for Buyer’s attorneys, consultants and advisors and except as required by law; provided that any such parties similarly agree to treat such material confidentially), without the prior written consent of Seller. In amplification and not in limitation of the foregoing, Buyer may not make any public disclosure of the existence or terms of this Agreement prior to Closing.

15.9This Agreement shall be governed by, interpreted under, and construed and enforced in accordance with, the laws of the State wherein the Property is located. This Agreement shall be construed in accordance with its plain meaning and without reference to any maxim or rule of interpretation providing that a writing should be construed against the party responsible for the drafting thereof.

15.10This Agreement shall not be recorded or filed in the public records of any jurisdiction by either party and any attempt to do so may be treated by the other party as a breach of this Agreement.

15.11This Agreement may be executed in one or more counterparts, each of which when so executed and delivered shall be deemed an original.

16.CONDITIONS PRECEDENT TO BUYER’S OBLIGATION.

In addition to the conditions precedent described in Article 11.3(A) (c), (d) &. (e), Buyer’s obligation to remit the remainder of the Purchase Price to the Title Company on the Closing Date and effectuate the transaction contemplated hereunder is subject to and contingent upon the following:

(a)The Title Company’s issuing or committing to issue the Title Policy insuring that fee simple title to the Property is vested in Buyer as required in Article 6hereof;

(b)The completeness, truth and accuracy in all material respects and to the best, of Ruth Mitteldorf or Norm Brody’s knowledge of the Rent Roll, and any certifications, schedules, covenants and statements prepared and executed by Seller as part of the Pre-Closing Deliveries, the completeness in all material respects and to the best of Seller’s knowledge of the Space Leases delivered by Seller as part of the Pre-Closing Deliveries, the completeness, truth and accuracy in all material respects and to the best of Seller’s knowledge as of Closing, of the representations and warranties of Seller contained in Section 10 hereof, and the performance by Seller, to the extent possible by the date of Closing, of the covenants contained in Section 10 hereof. It shall be a condition to Buyer’s obligation to close with respect in the Property that, at the Closing, Seller shall deliver to Buyer a Certificate that shall confirm, to the best of Seller’s knowledge, the truth and accuracy in all material respects, as of Closing, of Seller’s representations contained in this Agreement, and the representations contained in such certificate, as well as any continuing obligations of Seller hereunder, shall survive the Closing for a period of twelve (12) months; and

(c)That as of the date of closing: (i) neither Seller, as landlord under the Space Leases, nor any tenant thereunder, shall be in material default under the terms of any Space Lease and (ii) and space currently occupied by Petco and Marshalls and ninety-five percent (95%) of the remainder of Property gross leasable area being leased to tenants, excluding the Marshalls and Petco spaces.

[SEE SIGNATURE BLOCKS ON NEXT PAGE]

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IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of the day and year first above written.

	BUYER:
	INLAND REAL ESTATE ACQUISITIONS, INC.
WITNESSES:
	By:
		Name:
		Title:
		Date of Execution:

	SELLER:
	KIMCO TAMPA, L.P.
	By:      Kimco Tampa 470, Inc.
WITNESSES:
/s/ [ILLEGIBLE]	By:	/s/ Daniel C. Slattery
		Name:		Daniel C. Slattery
		Title:	Executive Vice President
/s/ [ILLEGIBLE]		Date of Execution:			9/3/04

	Escrow Agent signs to confirm its agreement with the provisions of Section 3(A)(ii) hereof:
WITNESSES:	ESCROW AGENT:
CHICAGO TITLE & TRUST COMPANY
	By:
		Name:	Nancy Castro
		Title:
		Date of Execution:

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IN WITNESS WHEREOF,Seller and Buyer have executed this Agreement as of the day and year first above written.

	BUYER:
	INLAND REAL ESTATE ACQUISITIONS, INC.
WITNESSES:
/s/ [ILLEGIBLE]	By:	/s/ [ILLEGIBLE]
		Name:
		Title: SR VP
/s/ [ILLEGIBLE]		Date of Execution:	8/31/04

	SELLER:
	KIMCO TAMPA, L.P.
	By:      Kimco Tampa 470, Inc.
WITNESSES:
	By:
		Name:
		Title:
		Date of Execution:

	Escrow Agent signs to confirm its agreement with the provisions of Section 3(A)(ii) hereof:
WITNESSES:	ESCROW AGENT:
CHICAGO TITLE & TRUST COMPANY
		By:
			Name:	Nancy Castro
			Title:
			Date of Execution:

16

EX-10.444

Exhibit 10.444

Florida documentary stamp tax in the amount of $                  has been affixed to the recorded instrument securing this promissory note pursuant to Section 201.08, Florida Statutes.

PROMISSORY NOTE

$11,192,500.00	New York, New York
	December 29, 2004

FOR VALUE RECEIVED, INLAND WESTERN WESLEY CHAPEL NORTHWOODS, L.L.C., a Delaware limited liability company, having its principal place of business at 2901 Butterfield Road, Oak Brook, Illinois 60523, a maker hereunder (referred to herein as “Borrower”), hereby unconditionally promises to pay to the order of NOMURA CREDIT & CAPITAL, INC., a Delaware corporation, as payee, having an address at 2 World Financial Center, Bldg. B, New York, New York 10281 (“Lender”), or at such other place as the holder hereof may from time to time designate in writing, the principal sum of ELEVEN MILLION ONE HUNDRED NINETY TWO THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($11,192,500.00), in lawful money of the United States of America with interest thereon to be computed from the date of this Note at the Interest Rate, and to be paid in accordance with the terms of this Note and that certain Loan Agreement, dated as of the date hereof, between Borrower and Lender (the “Loan Agreement”).All capitalized terms not defined herein shall have the respective meanings set forth in the Loan Agreement.

ARTICLE 1

PAYMENT TERMS

Borrower agrees to pay interest on the unpaid principal sum of this Note from time to time outstanding at the rates and at the times specified in the Loan Agreement and the outstanding balance of the principal sum of this Note and all accrued and unpaid interest thereon shall be due and payable on the Maturity Date. This Note shall be the “Note” as defined in the Loan Agreement.

ARTICLE 2

DEFAULT AND ACCELERATION

The Debt shall without notice become immediately due and payable at the option of Lender if any payment required in this Note is not paid on or prior to the date when due or if not paid on the Maturity Date or on the happening of any other Event of Default.

ARTICLE 3

LOAN DOCUMENTS

This Note is secured by the Mortgage and the other Loan Documents. All of the terms, covenants and conditions contained in the Loan Agreement, the Mortgage and the other Loan Documents are hereby made part of this Note to the same extent and with the same force as if they were fully set forth herein. In the event of a conflict or inconsistency between the terms of this Note and the Loan Agreement, the terms and provisions of the Loan Agreement shall govern.

ARTICLE 4

SAVINGS CLAUSE

Notwithstanding anything to the contrary, (a) all agreements and communications between Borrower and Lender are hereby and shall automatically be limited so that, after taking into account all amounts deemed interest, the interest contracted for, charged or received by Lender shall never exceed the maximum lawful rate or amount, (b) in calculating whether any interest exceeds the lawful maximum, all such interest shall be amortized, prorated, allocated and spread over the full amount and term of all principal indebtedness of Borrower to Lender, and (c) if through any contingency or event, Lender receives or is deemed to receive interest in excess of the lawful maximum, any such excess shall be deemed to have been applied toward payment of the principal of any and all then outstanding indebtedness of Borrower to Lender, or if there is no such indebtedness, shall immediately be returned to Borrower.

ARTICLE 5

NO ORAL CHANGE

This Note may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Borrower or Lender, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.

ARTICLE 6

WAIVERS

Borrower and all others who may become liable for the payment of all or any part of the Debt do hereby severally waive presentment and demand for payment, notice of dishonor, notice of intention to accelerate, notice of acceleration, protest and notice of protest and non-payment and all other notices of any kind. No release of any security for the Debt or extension of time for payment of this Note or any installment hereof, and no alteration, amendment or waiver of any provision of this Note, the Loan Agreement or the other Loan Documents made by agreement between Lender or any other Person shall release, modify, amend, waive, extend, change, discharge, terminate or affect the liability of Borrower, and any other Person who may

2

become liable for the payment of all or any part of the Debt, under this Note, the Loan Agreement or the other Loan Documents. No notice to or demand on Borrower shall be deemed to be a waiver of the obligation of Borrower or of the right of Lender to take further action without further notice or demand as provided for in this Note, the Loan Agreement or the other Loan Documents. If Borrower is a partnership, the agreements herein contained shall remain in force and applicable, notwithstanding any changes in the individuals comprising the partnership, and the term “Borrower,” as used herein, shall include any alternate or successor partnership, but any predecessor partnership and their partners shall not thereby be released from any liability. If Borrower is a limited liability company, the agreements herein contained shall remain in force and applicable, notwithstanding any changes in the members comprising the company, and the term “Borrower,” as used herein, shall include any alternate or successor company, but any predecessor company shall not thereby be released from any liability.  If Borrower is a corporation, the agreements contained herein shall remain in full force and applicable notwithstanding any changes in the shareholders comprising, or the officers and directors relating to, the corporation, and the term “Borrower” as used herein, shall include any alternative or successor corporation, but any predecessor corporation shall not be relieved of liability hereunder. (Nothing in the foregoing sentence shall be construed as a consent to, or a waiver of, any prohibition or restriction on transfers of interests in such entity which may be set forth in the Loan Agreement, the Mortgage or any other Loan Document.)

ARTICLE 7

TRANSFER

Upon the transfer of this Note, Borrower hereby waiving notice of any such transfer except as provided in the Loan Agreement, Lender may deliver all the collateral mortgaged, granted, pledged or assigned pursuant to the Loan Documents, or any part thereof, to the transferee who shall thereupon become vested with all the rights herein or under applicable law given to Lender with respect thereto, and Lender shall from that date forward forever be relieved and fully discharged from any liability or responsibility in the matter; but Lender shall retain all rights hereby given to it with respect to any liabilities and the collateral not so transferred.

ARTICLE 8

EXCULPATION

The provisions of Section 9.4 of the Loan Agreement are hereby incorporated by reference into this Note to the same extent and with the same force as if fully set forth herein.

ARTICLE 9

GOVERNING LAW

THIS NOTE SHALL BE DEEMED TO BE A CONTRACT ENTERED INTO PURSUANT TO THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND SHALL IN ALL RESPECTS BE GOVERNED, APPLIED AND

3

ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND APPLICABLE FEDERAL LAWS.

ARTICLE 10

NOTICES

All notices or other written communications hereunder shall be delivered in accordance with Section 10.6 of the Loan Agreement.

[NO FURTHER TEXT ON THIS PAGE]

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IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and year first above written.

BORROWER:
INLAND WESTERN WESLEY CHAPEL NORTHWOODS, L.L.C.,
a Delaware limited liability company
	By:	Inland Western Retail Real Estate Trust, Inc., a Maryland corporation
		By:	/s/ Valerie Medina
			Name:	Valerie Medina
			Title:	Asst. Secretary

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ACKNOWLEDGMENT

STATE OF Illinois	)
	) ss:
COUNTY OF DuPage	)

I, the undersigned, a Notary Public, in and forsaid County and State, do hereby certify that VALERIE MEDINA, the ASST. SECRETARY of INLAND WESTERN RETAIL REAL ESTATE TRUST, INC, personally known to me to be the same person whose name is subscribed to the foregoing instrument, as having executed the same, appeared before me this day in person and acknowledged that he/she signed and delivered the said instrument as his/her free and voluntary act on behalf of the INLAND WESTERN RETAIL REAL ESTATE TRUST, INC,for the uses and purposes therein set forth.

Given under my hand and official seal this 22nd day of December, 2004.

	/s/ Rose Marie Allred
	Notary Public
Commission expires:
“OFFICIAL SEAL”
Rose Marie Allred
Notary Public, State of Illinois
My Commission Exp. 05/21/2005

6

EX-10.445

Exhibit 10.445

LOAN AGREEMENT

THIS LOAN AGREEMENT, dated as of the 29^th day of December, 2004, (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”), between NOMURA CREDIT & CAPITAL INC., a Delaware corporation, having an address at Two World Financial Center, Building B, New York, New York 10281 (“Lender”), and INLAND WESTERN WESLEY CHAPEL NORTHWOODS, L.L.C., a Delaware limited liability company, having an address at 2901 Butterfield Road, Oak Brook, Illinois 60523 (“Borrower”).

W I T N E S S E T H:

WHEREAS, Borrower desires to obtain the Loan (as hereinafter defined) from Lender;and

WHEREAS, Lender is willing to make the Loan to Borrower, subject to and in accordance with the terms of this Agreement and the other Loan Documents (as hereinafter defined).

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

ARTICLE I

DEFINITIONS; PRINCIPLES OF CONSTRUCTION

Section 1.1Definitions. For all purposes of this Agreement, except as otherwise expressly required or unless the context clearly indicates a contrary intent:

“Affiliate” shall mean, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person or is a director or officer of such Person or of an Affiliate of such Person.

“ALTA” shall mean American Land Title Association, or any successor thereto.

“Annual Budget” shall mean the operating budget, including all planned capital expenditures, for the Property prepared by Borrower for the applicable Fiscal Year or other period.

“Assignment of Leases” shall mean, with respect to the Property, that certain first priority Assignment of Leases and Rents, dated as of the Closing Date, from Borrower, as assignor, to Lender, as assignee, assigning to Lender all of Borrower’s interest in and to the Leases and Rents of the Property as security for the Loan, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Assignment of Management Agreement” shall mean that certain Assignment of Management Agreement and Subordination of Management Fees dated as of the Closing Date

among Lender, Borrower and Manager, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Award” shall mean any compensation paid by any Governmental Authority in connection with a Condemnation in respect of all or any part of the Property.

“Basic Carrying Costs” shall mean, with respect to the Property, the sum of the following costs associated with the Property for the relevant Fiscal Year or payment period: (i) Taxes and (ii) Insurance Premiums.

“Borrower” shall mean INLAND WESTERN WESLEY CHAPEL NORTHWOODS, L.L.C., a Delaware limited liability company, together with its permitted successors and assigns.

“Business Day” shall mean any day other than a Saturday, Sunday or any other day on which national banks in New York, New York are not open for business.

“Capital Expenditures” shall mean, for any period, the amount expended for items capitalized under accounting principles reasonably acceptable to Lender, consistently applied (including expenditures for building improvements or major repairs, leasing commissions and tenant improvements).

“Cash Expenses” shall mean, for any period, the operating expenses for the operation of the Property as set forth in an Approved Annual Budget to the extent that such expenses are actually incurred by Borrower minus any payments into the Tax and Insurance Escrow Fund.

“Casualty” shall have the meaning specified in Section 6.2 hereof.

“Casualty/Condemnation Prepayment” shall have the meaning specified in Section 6.4(e) hereof.

“Casualty Consultant” shall have the meaning set forth in Section 6.4(b)(iii) hereof.

“Casualty Retainage” shall have the meaning set forth in Section 6.4(b)(iv) hereof.

“Closing Date” shall mean the date hereof.

“Code” shall mean the Internal Revenue Code of 1986, as amended, as it may be further amended from time to time, and any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.

“Condemnation” shall mean a temporary or permanent taking by any Governmental Authority as the result or in lieu or in anticipation of the exercise of the right of condemnation or eminent domain, of all or any part of the Property, or any interest therein or

2

right accruing thereto, including any right of access thereto or any change of grade affecting the Property or any part thereof.

“Contract of Sale Earnout Period” shall mean the period commencing on the date hereof and continuing through and including December 7, 2005.

“Debt” shall mean the outstanding principal amount set forth in, and evidenced by, this Agreement and the Note together with all interest accrued and unpaid thereon and all other sums (including the Prepayment Consideration) due to Lender in respect of the Loan under the Note, this Agreement, the Mortgage or any other Loan Document.

“Debt Service” shall mean, with respect to any particular period of time, scheduled interest payments under the Note.

“Debt Service Coverage Ratio” shall mean a ratio for the applicable period in which:

(a)the numerator is the Net Operating Income (excluding interest on credit accounts) for such period as set forth in the statements required hereunder, without deduction for (i) actual management fees incurred in connection with the operation of the Property, (ii) amounts paid to the Reserve Funds, less (A) management fees equal to the greater of (1) assumed management fees of four and a half percent (4.5%) of Gross Income from Operations or (2) the actual management fees incurred, (B) assumed Replacement Reserve Fund contributions equal to $0.15 per square foot of gross leaseable area at the Property; and (C) assumed reserves for tenant improvements and leasing commissions equal to $1.15 per square foot of gross leaseable area at the Property; and

(b)the denominator is the aggregate amount of interest due and payable on the Note for such applicable period.

“Default” shall mean the occurrence of any event hereunder or under any other Loan Document which, but for the giving of notice or passage of time, or both, would be an Event of Default.

“Default Rate” shall mean, with respect to the Loan, a rate per annum equal to the lesser of (a) the maximum rate permitted by applicable law, or (b) five percent (5%) above the Interest Rate.

“Disclosure Document” shall have the meaning set forth in Section 9.2 hereof.

“Eligible Account” shall mean a separate and identifiable account from all other funds held by the holding institution that is either (a) an account or accounts maintained with a federal or state-chartered depository institution or trust company which complies with the definition of Eligible Institution or (b) a segregated trust account or accounts maintained with a federal or state chartered depository institution or trust company acting in its fiduciary capacity which, in the case of a state chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R. §9.10(b), having in either case a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal and state

3

authority.  An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.

“Eligible Institution” shall mean a depository institution or trust company insured by the Federal Deposit Insurance Corporation the short term unsecured debt obligations or commercial paper of which are rated at least A-1 by Standard & Poor’s Ratings Services, P-1 by Moody’s Investors Service, Inc., and F-1 + by Fitch, Inc. in the case of accounts in which funds are held for 30 days or less (or, in the case of accounts in which funds are held for more than 30 days, the long term unsecured debt obligations of which are rated at least “AA” by Fitch and S&P and “Aa” by Moody’s).

“Environmental Indemnity” shall mean that certain Environmental Indemnity Agreement executed by Borrower in connection with the Loan for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Environmental Report” shall have the meaning as defined in the Environmental Indemnity executed by the Borrower.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.

“Event of Default” shall have the meaning set forth in Section 8.1(a) hereof.

“Exchange Act” shall have the meaning set forth in Section 9.2 hereof.

“Fiscal Year” shall mean each twelve (12) month period commencing on January 1 and ending on December 31 during each year of the term of the Loan.

“Governmental Authority” shall mean any court, board, agency, commission, office or other authority of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city or otherwise) whether now or hereafter in existence.

“Gross Income from Operations” shall mean all sustainable income as reported on the financial statements delivered by the Borrower in accordance with this Agreement, computed in accordance with accounting principles reasonably acceptable to Lender, consistently applied, derived from the ownership and operation of the Property from whatever source, including, but not limited to, (i) Rents from Tenants that are in occupancy, open for business and paying unabated Rent, (ii) utility charges, (iii) escalations, (iv) intentionally omitted; (v) service fees or charges, (vi) license fees, (vii) parking fees, and (viii) other required pass-throughs but excluding (i) Rents from Tenants that are subject to any bankruptcy proceeding (unless such Tenant has affirmed its Lease or Inland Western Retail Real Estate Trust, Inc. has master leased such Tenant’s premises for full contract rent for a period not less than three years, and the net worth of Inland Western Retail Real Estate Trust, Inc. (as determined by Lender) is not less than such entity’s net worth as of December 31, 2003), or are not in occupancy, open for business or paying unabated Rent, (ii) sales, use and occupancy or other taxes on receipts required to be accounted for by Borrower to any Governmental Authority, (iii) refunds and uncollectible accounts, (iv) sales of furniture, fixtures and equipment, (v)

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Insurance Proceeds (other than business interruption or other loss of income insurance), (vi) Awards, (vii) unforfeited security deposits, (viii) utility and other similar deposits and (ix) any disbursements to Borrower from the Reserve Funds.  Gross income shall not be diminished as a result of the Mortgage or the creation of any intervening estate or interest in the Property or any part thereof.

“Improvements” shall have the meaning set forth in the granting clause of the Mortgage with respect to the Property.

“Indebtedness” of a Person, at a particular date, means the sum (without duplication) at such date of (a) indebtedness or liability for borrowed money; (b) obligations evidenced by bonds, debentures, notes, or other similar instruments; (c) obligations for the deferred purchase price of property or services (including trade obligations); (d) obligations under letters of credit; (e) obligations under acceptance facilities; (f) all guaranties, endorsements (other than for collection or deposit in the ordinary course of business) and other contingent obligations to purchase, to provide funds for payment, to supply funds, to invest in any Person or entity, or otherwise to assure a creditor against loss; and (g) obligations secured by any Liens, whether or not the obligations have been assumed.

“Indemnitor” shall mean Inland Western Retail Real Estate Trust, Inc., a Maryland corporation.

“Indemnity Agreement” shall mean that certain Indemnity Agreement dated as of the Closing Date by Borrower and Indemnitor in favor of Lender.

“Inland Western Retail Real Estate Trust, Inc.” shall mean Inland Western Retail Real Estate Trust, Inc., a Maryland corporation.

“Insurance Premiums” shall have the meaning set forth in Section 6.1(b) hereof.

“Insurance Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.

“Interest Rate” shall mean FOUR AND EIGHTY HUNDRED FIFTEEN THOUSANDTHS percent (4.815%) per annum.

“Lease” shall mean any lease, sublease or subsublease, letting, license, concession or other agreement (whether written or oral and whether now or hereafter in effect) pursuant to which any Person is granted a possessory interest in, or right to use or occupy all or any portion of any space in the Property of Borrower, and every modification, amendment or other agreement relating to such lease, sublease, subsublease, or other agreement entered into in connection with such lease, sublease, subsublease, or other agreement and every guarantee of the performance and observance of the covenants, conditions and agreements to be performed and observed by the other party thereto.

“Lease-Up Reserve Tenants” shall mean, collectively, tenants on the Rent Roll identified as occupying the following spaces: (i) Cellular Services, (ii) Anything Computers, (iii) Cork & Olive, (iv) The Bombay Company, (v) Tanning and Smoothie Store, (vi) Friedman’s Jewelry, (vii) Florida Health and Wellness, (viii) 1 800 Dry Cleaners and (ix) Tire Kingdom, the

5

demised spaces for which are more particularly described in that certain Amendment to Agreement dated as of November 8, 2004 between Borrower and Kimco Tampa LP.

“Legal Requirements” shall mean, with respect to the Property, all federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting the Property or any part thereof, or the construction, use, alteration or operation thereof, or any part thereof, whether now or hereafter enacted and in force, and all permits, licenses and authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Borrower, at any time in force affecting the Property or any part thereof, including, without limitation, any which may (a) require repairs, modifications or alterations in or to the Property or any part thereof, or (b) in any way limit the use and enjoyment thereof.

“Lender” shall mean Nomura Credit & Capital Inc., together with its successors and assigns.

“Licenses” shall have the meaning set forth in Section 4.1.22 hereof.

“Lien” shall mean, with respect to the Property, any mortgage, deed of trust, deed to secure debt, lien, pledge, hypothecation, assignment, security interest, or any other encumbrance, charge or transfer of, on or affecting Borrower, the Property, any portion thereof or any interest therein, including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialmen’s and other similar liens and encumbrances.

“Loan” shall mean the loan made by Lender to Borrower pursuant to this Agreement and evidenced by the Note.

“Loan Documents” shall mean, collectively, this Agreement, the Note, the Mortgage, the Assignment of Leases and Rents, the Environmental Indemnity, the Assignment of Management Agreement, the Indemnity Agreement and all other documents executed and/or delivered in connection with the Loan.

“Management Agreement” shall mean, with respect to the Property, the management agreement entered into by and between Borrower and the Manager, pursuant to which the Manager is to provide management and other services with respect to the Property.

“Manager” shall mean INLAND US MANAGEMENT, LLC.

“Maturity Date” shall mean January 11, 2010 or such other date on which the final payment of principal of the Note becomes due and payable as therein or herein provided, whether at such stated maturity date, by declaration of acceleration, or otherwise.

“Maximum Legal Rate” shall mean the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by the Note and as provided for herein or the other Loan

6

Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan.

“Monthly Debt Service Payment Amount” shall mean an amount equal to $44,909.91.

“Mortgage” shall mean, with respect to the Property, that certain first priority Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated the Closing Date, executed and delivered by Borrower as security for the Loan and encumbering the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Net Cash Flow” shall mean, with respect to the Property for any period, the amount obtained by subtracting Operating Expenses and Capital Expenditures for such period from Gross Income from Operations for such period.

“Net Cash Flow After Debt Service” shall mean, with respect to the Property for any period, the amount obtained by subtracting Debt Service for such period from Net Cash Flow for such period.

“Net Cash Flow Schedule” shall have the meaning set forth in Section 5.1.11(b) hereof.

“Net Operating Income” shall mean the amount obtained by subtracting from Gross Income from Operations (i) Operating Expenses, and (ii) a vacancy allowance equal to the greater of (x) market vacancy (as reasonably determined by Lender), less actual vacancy, and (y) underwritten vacancy of seven (7%) percent, less actual vacancy.  Notwithstanding the foregoing, if actual vacancy exceeds market vacancy and underwritten vacancy, then there shall be no adjustment for a vacancy allowance.

“Net Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.

“Net Proceeds Deficiency” shall have the meaning set forth in Section 6.4(b)(vi) hereof.

“Net Proceeds Prepayment” shall have the meaning set forth in Section 6.4(c) hereof.

“Note” shall mean that certain Promissory Note of even date herewith in the principal amount of Eleven Million One Hundred Ninety Two Thousand Five Hundred and No/100 Dollars ($11,192,500.00), made by Borrower in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Officers’ Certificate” shall mean a certificate delivered to Lender by Borrower which is signed by the Sole Member.

“Operating Expenses” shall mean the total of all expenditures, computed in accordance with accounting principles reasonably acceptable to Lender, consistently applied, of

7

whatever kind relating to the operation, maintenance and management of the Property that are incurred on a regular monthly or other periodic basis, including without limitation, utilities, ordinary repairs and maintenance, insurance, license fees, property taxes and assessments, advertising expenses, management fees, payroll and related taxes, computer processing charges, operational equipment or other lease payments as approved by Lender, and other similar costs, but excluding depreciation, Debt Service, Capital Expenditures and contributions to the Reserve Funds.

“Other Charges” shall mean all ground rents, maintenance charges, impositions other than Taxes, and any other charges, including, without limitation, vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Property, now or hereafter levied or assessed or imposed against the Property or any part thereof.

“Partial Prepayment Conditions” shall have the meaning set forth in Schedule II hereof.

“Payment Date” shall mean the eleventh (11th) day of each calendar month during the term of the Loan or, if such day is not a Business Day, the immediately succeeding Business Day.

“Permitted Encumbrances” shall mean, with respect to the Property, collectively, (a) the Liens and security interests created by the Loan Documents, (b) all Liens, encumbrances and other matters disclosed in the Title Insurance Policy relating to the Property or any part thereof, (c) Liens, if any, for Taxes imposed by any Governmental Authority not yet due or delinquent, and (d) such other title and survey exceptions as Lender has approved or may approve in writing in Lender’s reasonable discretion, which Permitted Encumbrances in the aggregate do not materially adversely affect the value or use of the Property or Borrower’s ability to repay the Loan.

“Permitted Investments” shall mean any one or more of the following obligations or securities acquired at a purchase price of not greater than par, including those issued by Servicer, the trustee under any Securitization or any of their respective Affiliates, payable on demand or having a maturity date not later than the Business Day immediately prior to the first Payment Date following the date of acquiring such investment and meeting one of the appropriate standards set forth below:

(i)obligations of, or obligations fully guaranteed as to payment of principal and interest by, the United States or any agency or instrumentality thereof provided such obligations are backed by the full faith and credit of the United States of America including, without limitation, obligations of: the U.S. Treasury (all direct or fully guaranteed obligations), the Farmers Home Administration (certificates of beneficial ownership), the General Services Administration (participation certificates), the U.S. Maritime Administration (guaranteed Title XI financing), the Small Business Administration (guaranteed participation certificates and guaranteed pool certificates), the U.S. Department of Housing and Urban Development (local authority bonds) and the Washington Metropolitan Area Transit Authority (guaranteed transit bonds); provided, however, that the investments described in this clause must (A) have a predetermined

8

fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(ii)Federal Housing Administration debentures;

(iii)obligations of the following United States government sponsored agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm Credit System (consolidated systemwide bonds and notes), the Federal Home Loan Banks (consolidated debt obligations), the Federal National Mortgage Association (debt obligations), the Student Loan Marketing Association (debt obligations), the Financing Corp. (debt obligations), and the Resolution Funding Corp. (debt obligations); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(iv)federal funds, unsecured certificates of deposit, time deposits, bankers’ acceptances and repurchase agreements with maturities of not more than 365 days of any bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(v)fully Federal Deposit Insurance Corporation-insured demand and time deposits in, or certificates of deposit of, or bankers’ acceptances issued by, any bank or trust company, savings and loan association or savings bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their

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rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(vi)debt obligations with maturities of not more than 365 days and at all times rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest long-term unsecured rating category; provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(vii)commercial paper (including both non-interest-bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one year after the date of issuance thereof) with maturities of not more than 365 days and that at all times is rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest short-term unsecured debt rating; provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(viii)units of taxable money market funds, which funds are regulated investment companies, seek to maintain a constant net asset value per share and invest solely in obligations backed by the full faith and credit of the United States, which funds have the highest rating available from each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) for money market funds; and

(ix)any other security, obligation or investment which has been approved as a Permitted Investment in writing by (a) Lender and (b) each Rating Agency, as evidenced by a written confirmation that the designation of such security, obligation or investment as a Permitted Investment will not, in and of itself, result in a downgrade, qualification or

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withdrawal of the initial, or, if higher, then current ratings assigned to the Securities by such Rating Agency;

provided, however, that no obligation or security shall be a Permitted Investment if (A) such obligation or security evidences a right to receive only interest payments or (B) the right to receive principal and interest payments on such obligation or security are derived from an underlying investment that provides a yield to maturity in excess of 120% of the yield to maturity at par of such underlying investment.

“Permitted Prepayment Date” shall mean the date that is three (3) years from the first day of the calendar month immediately following the Closing Date.

“Person” shall mean any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.

“Personal Property” shall have the meaning set forth in the granting clause of the Mortgage with respect to the Property.

“Physical Conditions Report” shall mean, with respect to the Property, a report prepared by a company satisfactory to Lender regarding the physical condition of the Property, satisfactory in form and substance to Lender in its sole discretion, which report shall, among other things, (a) confirm that the Property and its use complies, in all material respects, with all applicable Legal Requirements (including, without limitation, zoning, subdivision and building laws) and (b) include a copy of a final certificate of occupancy with respect to all Improvements on the Property.

“Policies” shall have the meaning specified in Section 6.1(b) hereof.

“Prepayment Consideration” shall have the meaning set forth in Section 2.3.1.

“Prepayment Rate” shall mean the bond equivalent yield (in the secondary market) on the United States Treasury Security that as of the Prepayment Rate Determination Date has a remaining term to maturity closest to, but not exceeding, the remaining term to the Maturity Date, as most recently published in the “Treasury Bonds, Notes and Bills” section in The Wall Street Journal as of the date of the related tender of the payment.  If more than one issue of United States Treasury Securities has the remaining term to the Maturity Date referred to above, the “Prepayment Rate” shall be the yield on the United States Treasury Security most recently issued as of such date.  If the publication of the Prepayment Rate in The Wall Street Journal is discontinued, Lender shall determine the Prepayment Rate on the basis of “Statistical Release H.15(519), Selected Interest Rates,” or any successor publication, published by the Board of Governors of the Federal Reserve System, or on the basis of such other publication or statistical guide as Lender may reasonably select.

“Prepayment Rate Determination Date” shall mean the date which is five (5) Business Days prior to the prepayment date.

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“Property” shall mean the parcel of real property, the Improvements thereon and all personal property owned by Borrower and encumbered by the Mortgage, together with all rights pertaining to such property and Improvements, as more particularly described in the Granting Clauses of the Mortgage and referred to therein as the “Property”.

“Provided Information” shall have the meaning set forth in Section 9.1(a) hereof.

“Qualifying Entity” shall have the meaning set forth in Section 5.2.13(b) hereof.

“Qualifying Manager” shall mean either (a) a reputable and experienced management organization reasonably satisfactory to Lender, which organization or its principals possess at least ten (10) years experience in managing properties similar in size, scope and value of the Property and which, on the date Lender determines whether such management organization is a Qualifying Manager, manages at least one million square feet of retail space, provided that Borrower shall have obtained prior written confirmation from the Rating Agency that management of the Property by such entity will not cause a downgrading, withdrawal or qualification of the then current rating of the securities issued pursuant to the Securitization, or (b) the fee owner of the Property, provided that such owner possesses experience in managing and operating properties similar in size, scope and value of the Property.  Lender acknowledges that on the Closing Date, Manager shall be deemed to be a Qualifying Manager.

“Rating Agencies” shall mean each of Standard & Poor’s Ratings Services, a division of McGraw-Hill, Inc., Moody’s Investors Service, Inc. and Fitch, Inc., or any other nationally-recognized statistical rating agency which has been approved by Lender.

“Rating Surveillance Charge” shall have the meaning set forth in Section 9.3 hereof.

“Relevant Leasing Threshold” shall mean Four Thousand or more leasable square footage at the Property.

“Relevant Restoration Threshold” shall mean Three Hundred Fifty Thousand and No/100 dollars ($350,000.00).

“REMIC Trust” shall mean a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code that holds the Note.

“Rents” shall mean, with respect to the Property, all rents, rent equivalents, moneys payable as damages or in lieu of rent or rent equivalents, royalties (including, without limitation, all oil and gas or other mineral royalties and bonuses), income, receivables, receipts, revenues, deposits (including, without limitation, security, utility and other deposits), accounts, cash, issues, profits, charges for services rendered, and other consideration of whatever form or nature received by or paid to or for the account of or benefit of Borrower or its agents or employees from any and all sources arising from or attributable to the Property, and proceeds, if any, from business interruption or other loss of income insurance.

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“Replacement Reserve Account” shall have the meaning set forth in Section 7.3.1 hereof.

“Replacement Reserve Fund” shall have the meaning set forth in Section 7.3.1 hereof.

“Replacement Reserve Monthly Deposit” shallhave the meaning set forth in Section 7.3.1 hereof.

“Replacements” shall have the meaning set forth in Section 7.3.1(a) hereof.

“Required Repair Account” shall have the meaning set forth in Section 7.1.1 hereof.

“Required Repair Fund” shall have the meaning set forth in Section 7.1.1 hereof.

“Required Repairs” shall have the meaning set forth in Section 7.1.1 hereof.

“Reserve Funds” shall mean the Tax and Insurance EscrowFund, the Replacement Reserve Fund, the Required Repair Fund (if any), or any other escrow fund established by the Loan Documents.

“Restoration” shall have the meaning set forth in Section 6.2 hereof.

“Securities” shall have the meaning set forth in Section 9.1 hereof.

“Securities Act” shall have the meaning set forth in Section 9.2 hereof.

“Securitization” shall have the meaning set forth in Section 9.1 hereof.

“Servicer” shall have the meaning set forth in Section 9.6 hereof.

“Servicing Agreement” shall have the meaning set forth in Section 9.6 hereof.

“Severed Loan Documents” shall have the meaning set forth in Section 8.2(c) hereof.

“Severing Documentation” shall have the meaning set forth in Section 9.7 hereof.

“Sole Member” shall mean Inland Western Retail Real Estate Trust, Inc., a Maryland corporation.

“Special Purpose Entity” means a corporation, limited partnership, limited liability company, or Delaware statutory trust which at all times on and after the Closing Date:

(i)is organized solely for the purpose of (A) acquiring, developing, owning, holding, selling, leasing, transferring, exchanging, managing and operating the Property,

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entering into this Agreement with the Lender, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing; or (B) acting as a general partner of the limited partnership that owns the Property, a member of the limited liability company that owns the Property or the beneficiary or trustee of a Delaware statutory trust that owns the Property;

(ii)is not engaged and will not engage in any business unrelated to (A) the acquisition, development, ownership, management or operation of the Property, (B) acting as general partner of the limited partnership that owns the Property, (C) acting as a member of the limited liability company that owns the Property, or (D) acting as the beneficiary or trustee of a Delaware statutory trust that owns the Property, as applicable;

(iii)does not have and will not have any assets other than those related to the Property or its partnership interest in the limited partnership, the member interest in the limited liability company or the beneficial interest in the Delaware statutory trust that owns the Property or acts as the general partner, managing member or beneficiary or trustee thereof, as applicable;

(iv)has not engaged, sought or consented to and will not engage in, seek or consent to any dissolution, winding up, liquidation, consolidation, merger, sale of all or substantially all of its assets, transfer of partnership, membership or beneficial or trustee interests (if such entity is a general partner in a limited partnership, a member in a limited liability company or a beneficiary of a Delaware trust) or amendment of its limited partnership agreement, articles of incorporation, articles of organization, certificate of formation, operating agreement or trust formation and governance documents (as applicable) with respect to the matters set forth in this definition;

(v)if such entity is a limited partnership, has as its only general partners, Special Purpose Entities that are corporations, limited partnerships or limited liability companies;

(vi)intentionally omitted;

(vii)if such entity is a limited liability company and such limited liability company has more than one member, such limited liability company has as its manager a Special Purpose Entity that is a corporation and that owns at least 1.0% (one percent) of the equity of the limited liability company;

(viii)if such entity is a limited liability company and such limited liability company has only one member, such limited liability company (a) has been formed under Delaware law, and (b) has either a corporation or other person or entity that shall become a member of the limited liability company upon the dissolution or disassociation of the member;

(ix)if such entity is (a) a limited liability company, has articles of organization, a certificate of formation and/or an operating agreement, as applicable, (b) a limited partnership, has a limited partnership agreement, (c) a corporation, has a

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certificate or articles of incorporation and bylaws, as applicable, or (d) a Delaware statutory trust, has organizational documents that, in each case, provide that such entity will not: (1) dissolve, merge, liquidate, consolidate; (2) except as permitted herein, sell all or substantially all of its assets or the assets of the Borrower (as applicable) except as permitted herein; (3) engage in any other business activity, or amend its organizational documents with respect to the matters set forth in this definition without the consent of the Lender; or (4) without the affirmative vote of all directors of the corporation (that is such entity or the general partner or managing or co-managing member or manager of such entity), file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings with respect to itself or to any other entity in which it has a direct or indirect legal or beneficial ownership interest;

(x)has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, beneficiaries, shareholders or Affiliates except (A) in the ordinary course of its business and on terms which are intrinsically fair, commercially reasonable and are no less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party and (B) in connection with this Agreement;

(xi)is solvent and pays its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same become due, and is maintaining adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;

(xii)has not failed and will not fail to correct any known misunderstanding regarding the separate identity of such entity;

(xiii)will file its own tax returns; provided, however, that Borrower’s assets and income may be included in a consolidated tax return of its parent companies if inclusion on such consolidated tax return is in compliance with applicable law;

(xiv)has maintained and will maintain its own resolutions and agreements;

(xv)(a) has not commingled and will not commingle its funds or assets with those of any other Person and (b) has not participated and will not participate in any cash management system with any other Person, except with respect to a custodial account maintained by the Manager on behalf of Affiliates of Borrower and, with respect to funds in such custodial account, has separately accounted, and will continue to separately account for, each item of income and expense applicable to the Property and Borrower;

(xvi)has held and will hold its assets in its own name;

(xvii)has conducted and will conduct its business in its name or in a name franchised or licensed to it by an entity other than an Affiliate of Borrower;

(xviii)has maintained and will maintain its balance sheets, operating statements and other entity documents separate from any other Person and has not permitted and will not permit its assets to be listed as assets on the financial statement of any other entity

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except as required or permitted by applicable accounting principles acceptable to Lender, consistently applied; provided, however, that (i) any such consolidated financial statement shall contain a note indicating that it maintains separate balance sheets and operating statements for the Borrower and the Property, or (ii) if such Person is controlled by Inland Western Retail Real Estate Trust, Inc., then such Person may be included in the consolidated financial statement of Inland Western Retail Real Estate Trust, Inc. provided such consolidated financial statement contains a note indicating that it maintains separate financial records for each Person controlled by Inland Western Retail Real Estate Trust, Inc.;

(xix)has a sufficient number of employees in light of its contemplated business operations, which may be none;

(xx)has observed and will observe all partnership, corporate, limited liability company or Delaware statutory trust formalities, as applicable;

(xxi)has and will have no Indebtedness (including loans (whether or not such loans are evidenced by a written agreement) between Borrower and any Affiliates of Borrower and relating to the management of funds in the custodial account maintained by the Manager) other than (i) the Loan, (ii) liabilities incurred in the ordinary course of business relating to the ownership and operation of the Property and the routine administration of Borrower, which liabilities are not more than sixty (60) days past the date incurred (unless disputed in accordance with applicable law), are not evidenced by a note and are paid when due, and which amounts are normal and reasonable under the circumstances and do not, in any event, exceed $100,000 in the aggregate, and (iii) such other liabilities that are permitted pursuant to this Agreement;

(xxii)has not and will not assume or guarantee or become obligated for the debts of any other Person or hold out its credit as being available to satisfy the obligations of any other Person except as otherwise permitted pursuant to this Agreement;

(xxiii)has not and will not acquire obligations or securities of its partners, members, beneficiaries or shareholders or any other Affiliate;

(xxiv)has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, but not limited to, paying for shared office space and services performed by any employee of an affiliate;

(xxv)has not maintained or used, and will not maintain or use, invoices and checks bearing the name of any other Person, provided, however, that Manager, on behalf of such Person, may maintain and use invoices and checks bearing Manager’s name;

(xxvi)has not pledged and will not pledge its assets for the benefit of any other Person except as permitted or required pursuant to this Agreement;

(xxvii)has held itself out and identified itself and will hold itself out and identify itself as a separate and distinct entity under its own name or in a name franchised or licensed to it by an entity other than an Affiliate of Borrower and not as a division or part

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of any other Person, except for services rendered by Manager under the Management Agreement, so long as Manager holds itself out as an agent of the Borrower;

(xxviii)has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;

(xxix)has not made and will not make loans to any Person or hold evidence of indebtedness issued by any other person or entity (other than cash and investment-grade securities issued by an entity that is not an Affiliate of or subject to common ownership with such entity);

(xxx)has not identified and will not identify its partners, members, beneficiaries or shareholders, or any Affiliate of any of them, as a division or part of it, and has not identified itself and shall not identify itself as a division of any other Person;

(xxxi)does not and will not have any of its obligations guaranteed by any Affiliate except as otherwise required in the Loan Documents;

(xxxii)has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, beneficiaries, shareholders or Affiliates except (A) in the ordinary course of its business and on terms which are intrinsically fair, commercially reasonable and are no less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party and (B) in connection with this Agreement; and

(xxxiii)has complied and will comply with all of the terms and provisions contained in its organizational documents.  The statement of facts contained in its organizational documents are true and correct and will remain true and correct.

“State” shall mean, with respect to the Property, the State or Commonwealth in which the Property or any part thereof is located.

“Survey” shall mean a survey of the Property in question prepared by a surveyor licensed in the State and satisfactory to Lender and the company or companies issuing the Title Insurance Policy, and containing a certification of such surveyor satisfactory to Lender.

“Tax and Insurance Escrow Fund” shall have the meaning set forth in Section 7.2 hereof regardless of whether the funds held therein are held by Lender for the payment of Taxes or Insurance Premiums or both.

“Taxes” shall mean all real estate and personal property taxes, assessments, water rates or sewer rents, now or hereafter levied or assessed or imposed against the Property or any part thereof.

“Tenant” shall mean any person or entity with a possessory right to all or any part of the Property pursuant to a Lease or other written agreement.

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“Tenant Reserve Earnout Conditions” shall mean the following with respect to each of the Lease-Up Reserve Tenants: (i) the full execution and delivery of a lease satisfying the conditions of this Loan Agreement, (ii) the rent commencement date under the applicable Lease-Up Reserve Tenant’s lease shall have occurred and the tenant thereunder shall have commenced the payment of full rent, (iii) all leasing commissions and tenant improvement allowances shall have been fully paid, (iv) a certificate of occupancy (or the local legal equivalent indicating that the applicable space may be lawfully occupied by the tenant for the conduct of its business) shall have been issued for the applicable demised premises, (v) the applicable Lease-Up Reserve Tenant shall have opened for business to the public for its permitted use for at least one (1) day and (vi) the applicable Lease-Up Reserve Tenant shall have delivered to Lender a tenant estoppel certificate in form reasonably satisfactory to Lender stating, inter alia, that all delivery conditions have been completed and that the tenant has accepted possession of the demised premises.

“Tenant Reserve Earnout Conditions Certificate” shall mean a certificate, executed by an officer or other authorized signatory of Borrower, duly certifying that the Tenant Reserve Earnout Conditions for a particular Lease-Up Reserve Tenant have been satisfied.

“Terrorism Insurance Guarantor” shall have the meaning set forth in Section 6.1 hereof.

“Title Insurance Policy” shall mean, with respect to the Property, an ALTA mortgagee title insurance policy in the form (acceptable to Lender) (or, if the Property is in a State which does not permit the issuance of such ALTA policy, such form as shall be permitted in such State and acceptable to Lender) issued with respect to the Property and insuring the lien of the Mortgage encumbering the Property.

“Transferee” shall have the meaning set forth in Section 5.2.13 hereof.

“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in the applicable State in which the Property is located.

“U.S. Obligations” shall mean direct non-callable obligations of the United States of America as defined in Section 2(a)(16) of the Investment Company Act as amended (15 USC 80a-1) stated in REMIC Section 1.86 OG-2(a)(8).

Section 1.2Principles of Construction.  All references to sections and schedules are to sections and schedules in or to this Agreement unless otherwise specified.  All uses of the word “including” shall mean “including, without limitation” unless the context shall indicate otherwise.  Unless otherwise specified, the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  Unless otherwise specified, all meanings attributed to defined terms herein shall be equally applicable to both the singular and plural forms of the terms so defined.

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ARTICLE II

GENERAL TERMS

Section 2.1Loan Commitment; Disbursement to Borrower.

2.1.1The Loan.  Subject to and upon the terms and conditions set forth herein, Lender hereby agrees to make and Borrower hereby agrees to accept the Loan on the Closing Date.

2.1.2Disbursement to Borrower.  Borrower may request and receive only one borrowing hereunder in respect of the Loan and any amount borrowed and repaid hereunder in respect of the Loan may not be reborrowed.

2.1.3The Note, Mortgage and Loan Documents.  The Loan shall be evidenced by the Note and secured by the Mortgage, the Assignment of Leases and the other Loan Documents.

2.1.4Use of Proceeds.  Borrower shall use the proceeds of the Loan to (a) repay and discharge any existing loans relating to the Property, (b) pay all past-due Basic Carrying Costs, if any, in respect of the Property, (c) make deposits into the Reserve Funds on the Closing Date in the amounts provided herein, (d) pay costs and expenses incurred in connection with the closing of the Loan, as approved by Lender, (e) fund any working capital requirements of the Property, and (f) distribute the balance, if any, to Borrower.

Section 2.2Interest; Loan Payments; Late Payment Charge.

2.2.1Interest Generally.  Interest on the outstanding principal balance of the Loan shall accrue from the Closing Date to but excluding the Maturity Date at the Interest Rate.

2.2.2Interest Calculation.  Interest on the outstanding principal balance of the Loan shall be calculated on the basis of a three hundred sixty (360) day year comprised of twelve (12) months of thirty (30) days each, except that interest due and payable for a period of less than a full month shall be calculated by multiplying the actual number of days elapsed in the period for which the calculation is being made by a daily rate based on a three hundred sixty (360) day year.

2.2.3Payments Generally.  Borrower shall pay to Lender (a) on the Closing Date, an amount equal to interest only on the outstanding principal balance of the Loan from the Closing Date up to but not including the first Payment Date following the Closing Date, and (b) on February 11, 2005 and each Payment Date thereafter up to but not including the Maturity Date, an amount equal to the Monthly Debt Service Payment Amount, which shall be applied to interest on the outstanding principal amount of the Loan for the prior calendar month at the Interest Rate.

2.2.4Intentionally Omitted.

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2.2.5Payment on Maturity Date.  Borrower shall pay to Lender on the Maturity Date the outstanding principal balance of the Loan, all accrued and unpaid interest and all other amounts due hereunder and under the Note, the Mortgage and other the Loan Documents.

2.2.6Payments after Default.  Upon the occurrence and during the continuance of an Event of Default, interest on the outstanding principal balance of the Loan and, to the extent permitted by law, overdue interest and other amounts due in respect of the Loan, shall accrue at the Default Rate, calculated from the date such payment was due without regard to any grace or cure periods contained herein.  Interest at the Default Rate shall be computed from the occurrence of the Event of Default until the earlier of (i) in the event of a non-monetary default, the cure of such Event of Default by Borrower and acceptance of such cure by Lender, and (ii) in the event of a monetary default, the actual receipt and collection of the Debt (or that portion thereof that is then due).  To the extent permitted by applicable law, interest at the Default Rate shall be added to the Debt, shall itself accrue interest at the same rate as the Loan and shall be secured by the Mortgage.  This paragraph shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of the occurrence of any Event of Default and Lender retains its rights under the Note and this Agreement to accelerate and to continue to demand payment of the Debt upon the happening and continuance of any Event of Default.

2.2.7Late Payment Charge.  If any principal, interest or any other sums due under the Loan Documents is not paid by Borrower on or prior to the date on which it is due, Borrower shall pay to Lender upon demand an amount equal to the lesser of five percent (5%) of such unpaid sum or the maximum amount permitted by applicable law in order to defray the expense incurred by Lender in handling and processing such delinquent payment and to compensate Lender for the loss of the use of such delinquent payment.  Any such amount shall be secured by the Mortgage and the other Loan Documents to the extent permitted by applicable law.  The foregoing late payment charge shall not apply to the payment of all outstanding principal, interest and other sums due on the Maturity Date.

2.2.8Usury Savings.  This Agreement and the Note are subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the principal balance of the Loan at a rate which could subject Lender to either civil or criminal liability as a result of being in excess of the Maximum Legal Rate.  If, by the terms of this Agreement or the other Loan Documents, Borrower is at any time required or obligated to pay interest on the principal balance due hereunder at a rate in excess of the Maximum Legal Rate, the Interest Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced to the Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder.  All sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the sums due under the Loan, shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the Loan does not exceed the Maximum Legal Rate of interest from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.

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Section 2.3Prepayments.

2.3.1Voluntary Prepayments.

(a)Except as otherwise provided herein, Borrower shall not have the right to prepay the Loan in whole or in part on or prior to the Permitted Prepayment Date.  After the Permitted Prepayment Date, Borrower may, provided it has given Lender prior written notice in accordance with the terms of this Agreement, prepay the unpaid principal balance of the Loan in whole, but not in part, by paying, together with the amount to be prepaid, (i) interest accrued and unpaid on the outstanding principal balance of the Loan being prepaid to and including the date of prepayment, (ii) unless prepayment is tendered on a Payment Date, an amount equal to the interest that would have accrued on the amount being prepaid after the date of prepayment through and including the next Payment Date had the prepayment not been made (which amount shall constitute additional consideration for the prepayment), (iii) all other sums then due under this Agreement, the Note, the Mortgage and the other Loan Documents, and (iv) if prepayment occurs prior to the Payment Date which is three months prior to the Maturity Date, a prepayment consideration (the “Prepayment Consideration”) equal to the greater of (A) one percent (1%)  of the outstanding principal balance of the Loan being prepaid or (B) the excess, if any, of (1) the sum of the present values of all then-scheduled payments of principal and interest under this Agreement including, but not limited to, principal and interest on the Maturity Date (with each such payment discounted to its present value at the date of prepayment at the rate which, when compounded monthly, is equivalent to the Prepayment Rate), over (2) the outstanding principal amount of the Loan.  Lender shall notify Borrower of the amount and the basis of determination of the required prepayment consideration.

(b)On the Payment Date that is three (3) months prior to the Maturity Date, and on each day thereafter through the Maturity Date, Borrower may, at its option, prepay the Debt without payment of any Prepayment Consideration or other penalty or premium; provided, however, if such prepayment is not paid on a regularly scheduled Payment Date, the Debt shall include interest that would have accrued on such prepayment through and including the day immediately preceding the Maturity Date.  Borrower’s right to prepay any portion of the principal balance of the Loan shall be subject to (i) Borrower’s submission of a notice to Lender setting forth the amount to be prepaid and the projected date of prepayment, which date shall be no less than thirty (30) days from the date of such notice, and (ii) Borrower’s actual payment to Lender of the amount to be prepaid as set forth in such notice on the projected date set forth in such notice or any day following such projected date occurring in the same calendar month as such projected date.

2.3.2Mandatory Prepayments.  (a) On the next occurring Payment Date following the date on which Borrower actually receives any Net Proceeds, if Lender is not obligated to make such Net Proceeds available to Borrower pursuant to this Agreement for the restoration of the Property, Borrower shall, at Lender’s option, prepay the outstanding principal balance of the Note in an amount equal to one hundred percent (100%) of such Net Proceeds.  No Prepayment Consideration or other penalty or premium shall be due in connection with any prepayment made pursuant to this Section 2.3.2.  Any partial prepayment under this Section shall be applied to the last payments of principal due under the Loan.

(b)On the date on which Borrower tenders a Casualty/Condemnation Prepayment pursuant to Section 6.4(e) below, such tender shall include (a) all accrued and

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unpaid interest and the principal indebtedness being prepaid, including interest on the outstanding principal amount of the applicable Note through the last day of the month within which such tender occurs; and (b) any other sums due hereunder relating to the applicable Note.  Except as set forth in this Section 2.3.2(b), other than following an Event of Default, no Prepayment Consideration or other penalty or premium shall be due in connection with any Casualty/Condemnation Prepayment.

2.3.3Prepayments after Default.  Following an Event of Default, if Borrower or anyone on Borrower’s behalf makes a tender of payment of all or any portion of the Debt at any time prior to a foreclosure sale (including a sale under the power of sale under the Mortgage), or during any redemption period after foreclosure, (i) the tender of payment shall constitute an evasion of Borrower’s obligation to pay any Prepayment Consideration due under this Agreement and such payment shall, therefore, to the maximum extent permitted by law, include a premium equal to the Prepayment Consideration that would have been payable on the date of such tender had the Loan not been so accelerated, or (ii) if at the time of such tender a prepayment of the principal amount of the Loan would have been prohibited under this Agreement had the principal amount of the Loan not been so accelerated, the tender of payment shall constitute an evasion of such prepayment prohibition and shall, therefore, to the maximum extent permitted by law, include an amount equal to the greater of (i) 1% of the then principal amount of the Loan (or the relevant portion thereof being prepaid) and (ii) an amount equal to the excess of (A) the sum of the present values of a series of payments payable at the times and in the amounts equal to the payments of principal and interest (including, but not limited to the principal and interest payable on the Maturity Date) which would have been scheduled to be payable after the date of such tender under this Agreement had the Loan (or the relevant portion thereof) not been accelerated, with each such payment discounted to its present value at the date of such tender at the rate which when compounded monthly is equivalent to the Prepayment Rate, over (B) the then principal amount of the Loan.

Section 2.4Intentionally Omitted.

Section 2.5Release of Property.  Except as set forth in this Section 2.5, no repayment or prepayment of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of any Lien of the Mortgage on the Property.  If Borrower has elected to prepay the entire amount of the Loan pursuant to Section 2.3.1 and the requirements of this Section 2.5 have been satisfied, the Property shall be released from the Lien of the Mortgage.

2.5.1Release on Payment in Full.  Lender shall, upon the written request and at the expense of Borrower, upon payment in full of all principal and interest on the Loan and all other amounts due and payable under the Loan Documents in accordance with the terms and provisions of Section 2.3.1 of this Loan Agreement, release the Lien of the Mortgage on the Property not theretofore released.

2.5.2Intentionally Omitted.

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Section. 2.6Manner of Making Payments.

2.6.1Making of Payments.  Each payment by Borrower hereunder or under the Note shall be made in funds settled through the New York Clearing House Interbank Payments System or other funds immediately available to Lender by 1:00 p.m., New York City time, on the date such payment is due, to Lender by deposit to such account as Lender may designate by written notice to Borrower.  Whenever any payment hereunder or under the Note shall be stated to be due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day.

2.6.2No Deductions, Etc.  All payments made by Borrower hereunder or under the Note or the other Loan Documents shall be made irrespective of, and without any deduction for, any setoff, defense or counterclaims.

ARTICLE III

CONDITIONS PRECEDENT

Section 3.1Conditions Precedent to Closing.  The obligation of Lender to make the Loan hereunder is subject to the fulfillment by Borrower or waiver by Lender of the following conditions precedent no later than the Closing Date:

3.1.1Representations and Warranties;  Compliance with Conditions.  The representations and warranties of Borrower contained in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on and as of such date, and no Default or an Event of Default shall have occurred and be continuing; and Borrower shall be in compliance in all material respects with all terms and conditions set forth in this Agreement and in each other Loan Document on its part to be observed or performed.

3.1.2Loan Agreement and Note.  Lender shall have received a copy of this Agreement and the Note, in each case, duly executed and delivered on behalf of Borrower.

3.1.3Delivery of Loan Documents; Title Insurance; Reports; Leases, Etc.

(a)Mortgage, Assignment of Leases and other Loan Documents.  Lender shall have received from Borrower fully executed and acknowledged counterparts of the Mortgage and the Assignment of Leases and evidence that counterparts of the Mortgage and Assignment of Leases have been delivered to the title company for recording, in the reasonable judgment of Lender, so as to effectively create upon such recording valid and enforceable first priority Liens upon the Property in favor of Lender (or such trustee as may be required under local law), subject only to the Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents.  Lender shall have also received from Borrower fully executed counterparts of the Assignment of Management Agreement and the other Loan Documents.

(b)Title Insurance.  Lender shall have received a Title Insurance Policy issued by a title company acceptable to Lender and dated as of the Closing Date.  Such Title Insurance Policy shall (i) provide coverage in an amount equal to the principal amount of the

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Loan together with, if applicable, a “tie-in” or similar endorsement, (ii) insure Lender that the Mortgage creates a valid first priority lien on the Property encumbered thereby, free and clear of all exceptions from coverage other than Permitted Encumbrances and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements), (iii) contain such endorsements and affirmative coverages as Lender may reasonably request, and (iv) name Lender, its successors and assigns, as the insured.  The Title Insurance Policy shall be assignable without cost to Lender.  Lender also shall have received evidence that all premiums in respect of such Title Insurance Policy have been paid.

(c)Survey.  Lender shall have received a title survey for the Property, certified to the title company and Lender and their successors and assigns, in form and content satisfactory to Lender and prepared by a professional and properly licensed land surveyor satisfactory to Lender in accordance with the most recent Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys.  The following additional items from the list of “Optional Survey Responsibilities and Specifications” (Table A) should be added to each survey: 2, 3, 4, 6, 8, 9, 10, 11 and 13.  The survey shall reflect the same legal description contained in the Title Insurance Policy relating to the Property referred to in clause (ii) above and shall include, among other things, a legal description of the real property comprising part of such Property reasonably satisfactory to Lender.  The surveyor’s seal shall be affixed to each survey and the surveyor shall provide a certification for each survey in form and substance acceptable to Lender.

(d)Insurance.  Lender shall have received valid certificates of insurance for the policies of insurance required hereunder, satisfactory to Lender in its sole discretion, and evidence of the payment of all premiums payable for the existing policy period.

(e)Environmental Reports.  Lender shall have received an environmental report in respect of the Property, in each case reasonably satisfactory to Lender.

(f)Zoning.  With respect to the Property, Lender shall have received, at Lender’s option, (i) letters or other evidence with respect to the Property from the appropriate municipal authorities (or other Persons) concerning applicable zoning and building laws, (ii) an ALTA 3.1 zoning endorsement to the Title Insurance Policy or (iii) other evidence of zoning compliance, in each case in substance reasonably satisfactory to Lender.

(g)Encumbrances.  Borrower shall have taken or caused to be taken such actions in such a manner so that Lender has a valid and perfected first Lien on the Property as of the Closing Date with respect to the Mortgage, subject only to applicable Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents, and Lender shall have received satisfactory evidence thereof.

3.1.4Related Documents.  Each additional document not specifically referenced herein, but relating to the transactions contemplated herein, shall have been duly authorized, executed and delivered by all parties thereto and Lender shall have received and approved certified copies thereof.

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3.1.5Delivery of Organizational Documents.  On or before the Closing Date, Borrower shall deliver or cause to be delivered to Lender copies certified by Borrower of all organizational documentation related to Borrower and/or the formation, structure, existence, good standing and/or qualification to do business, as Lender may request in its sole discretion, including, without limitation, good standing certificates, qualifications to do business in the appropriate jurisdictions, resolutions authorizing the entering into of the Loan and incumbency certificates as may be requested by Lender.

3.1.6Opinions of Borrower’s Counsel.  Lender shall have received opinions of Borrower’s counsel (and if applicable, Borrower’s local counsel) with respect to due execution, authority, enforceability of the Loan Documents and such other matters as Lender may reasonably require, all such opinions in form, scope and substance reasonably satisfactory to Lender and Lender’s counsel in their reasonable discretion.

3.1.7Budgets.  Borrower shall have delivered, and Lender shall have approved, the Annual Budget for the current Fiscal Year.

3.1.8Basic Carrying Costs.  Borrower shall have paid all Basic Carrying Costs relating to the Property which are in arrears, including without limitation, (a) accrued but unpaid insurance premiums relating to the Property, (b) currently due and payable Taxes (including any in arrears) relating to the Property, and (c) currently due Other Charges relating to the Property, which amounts shall be funded with proceeds of the Loan.

3.1.9Completion of Proceedings.  All organizational proceedings taken or to be taken in connection with the transactions contemplated by this Agreement and other Loan Documents and all documents incidental thereto shall be reasonably satisfactory in form and substance to Lender, and Lender shall have received all such counterpart originals or certified copies of such documents as Lender may reasonably request.

3.1.10Payments.  All payments, deposits or escrows required to be made or established by Borrower under this Agreement, the Note and the other Loan Documents on or before the Closing Date shall have been paid.

3.1.11Tenant Estoppels.  Borrower shall exercise reasonable commercial efforts to deliver estoppel letters from Tenants occupying not less than eighty percent (80%) of the gross leasable area of the Property.

3.1.12Transaction Costs.  Borrower shall have paid or reimbursed Lender for all title insurance premiums, recording and filing fees or taxes, costs of environmental reports, Physical Conditions Reports, appraisals and other reports, the fees and costs of Lender’s counsel and all other third party out-of-pocket expenses incurred in connection with the origination of the Loan.

3.1.13Material Adverse Change.  There shall have been no material adverse change in the financial condition or business condition of Borrower, Indemnitor or the Property since the date of the most recent financial statements delivered to Lender.  The income and expenses of the Property, the occupancy leases thereof, and all other features of the transaction shall be as represented to Lender without material adverse change.  Neither Borrower, any of its

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constituent Persons, shall be the subject of any bankruptcy, reorganization, or insolvency proceeding.

3.1.14Leases and Rent Roll.  Lender shall have received copies of all tenant leases, certified copies of any tenant leases as requested by Lender and certified copies of all ground leases affecting the Property.  Lender shall have received a current certified rent roll of the Property, reasonably satisfactory in form and substance to Lender.

3.1.15Subordination and Attornment.  Lender shall have received appropriate instruments acceptable to Lender in its commercially reasonable discretion subordinating any Leases of record prior to the Mortgage and any Tenant occupying more than 10,000 square feet and including an agreement by such Tenants to attorn to Lender in the event of a foreclosure or delivery of a deed in lieu thereof.

3.1.16Tax Lot.  Lender shall have received evidence that the Property constitutes one (1) or more separate tax lots, which evidence shall be reasonably satisfactory in form and substance to Lender.

3.1.17Physical Conditions Reports.  Lender shall have received Physical Conditions Reports with respect to the Property, which reports shall be reasonably satisfactory in form and substance to Lender.

3.1.18Management Agreement.  Lender shall have received a certified copy of the Management Agreement with respect to the Property which shall be satisfactory in form and substance to Lender.  Lender acknowledges that it has reviewed the Management Agreement, and as drafted, such Management Agreement does not violate Borrower’s covenant that affiliated agreements be on terms which are intrinsically fair, commercially reasonable and are no less favorable to it than would be obtained in a comparable arm’s length transaction with an unrelated third party.

3.1.19Appraisal.  Lender shall have received an appraisal of the Property, which shall be satisfactory in form and substance to Lender.

3.1.20Financial Statements.  Lender shall have received (a) a balance sheet with respect to the Property for the two most recent Fiscal Years and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years, each in form and substance reasonably satisfactory to Lender or (b) such other financial statements relating to the ownership and operation of the Property, in form and substance reasonably satisfactory to Lender.

3.1.21Further Documents.  Lender or its counsel shall have received such other and further approvals, opinions, documents and information as Lender or its counsel may have reasonably requested including the Loan Documents in form and substance reasonably satisfactory to Lender and its counsel.

3.1.22Environmental Insurance.  If required by Lender, Borrower shall have obtained a secured creditor environmental insurance policy with respect to the Property, which shall be in form and substance satisfactory to Lender.  Any such policy shall have a term not less

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than the term of the Loan.  Borrower shall have provided to Lender evidence that the premiums for such policy has been paid in full.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

Section 4.1Borrower Representations.  Borrower represents and warrants as of the date hereof and as of the Closing Date that:

4.1.1Organization.  Borrower has been duly organized and is validly existing and in good standing with requisite power and authority to own the Property and to transact the businesses in which it is now engaged.  Borrower is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with the Property, businesses and operations.  Borrower possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own the Property and to transact the businesses in which it is now engaged, and the sole business of Borrower is the ownership, management and operation of the Property.

4.1.2Proceedings.  Borrower has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the other Loan Documents.  This Agreement and such other Loan Documents have been duly executed and delivered by or on behalf of Borrower and constitute legal, valid and binding obligations of Borrower enforceable against Borrower in accordance with their respective terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

4.1.3No Conflicts.  The execution, delivery and performance of this Agreement and the other Loan Documents by Borrower will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance (other than pursuant to the Loan Documents) upon any of the property or assets of Borrower pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument to which Borrower is a party or by which any of Borrower’s property or assets is subject, nor will such action result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Borrower or any of Borrower’s properties or assets, and any consent, approval, authorization, order, registration or qualification of or with any court or any such regulatory authority or other governmental agency or body required for the execution, delivery and performance by Borrower of this Agreement or any other Loan Documents has been obtained and is in full force and effect.

4.1.4Litigation.  To Borrower’s knowledge, there are no actions, suits or proceedings at law or in equity by or before any Governmental Authority or other agency now pending or threatened against or affecting Borrower or the Property, which actions, suits or proceedings, if determined against Borrower or the Property, might materially adversely affect

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the condition (financial or otherwise) or business of Borrower or the condition or ownership of the Property.

4.1.5Agreements.  Except such instruments and agreements set forth as Permitted Exceptions in the Title Insurance Policy, Borrower is not a party to any agreement or instrument or subject to any restriction which might materially and adversely affect Borrower or the Property, or Borrower’s business, properties or assets, operations or condition, financial or otherwise.  To Borrower’s knowledge, Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party or by which Borrower or the Property are bound.  Borrower has no material financial obligation under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Borrower is a party or by which Borrower or the Property is otherwise bound, other than (a) obligations incurred in the ordinary course of the operation of the Property and (b) obligations under the Loan Documents.

4.1.6Title.  Borrower has good and indefeasible fee simple title to the real property comprising part of the Property and good title to the balance of the Property, free and clear of all Liens whatsoever except the Permitted Encumbrances, such other Liens as are permitted pursuant to the Loan Documents and the Liens created by the Loan Documents.  The Mortgage, when properly recorded in the appropriate records, together with any Uniform Commercial Code financing statements required to be filed in connection therewith, will create (a) a valid, perfected lien on the Property, subject only to Permitted Encumbrances and the Liens created by the Loan Documents and (b) perfected security interests in and to, and perfected collateral assignment of, all personalty (including the Leases), all in accordance with the terms thereof, in each case subject only to any applicable Permitted Encumbrances, such other Liens as are permitted pursuant to the Loan Documents and the Liens created by the Loan Documents.  There are no claims for payment for work, labor or materials affecting the Property which are due and unpaid under the contracts pursuant to which such work or labor was performed or materials provided which are or may become a lien prior to, or of equal priority with, the Liens created by the Loan Documents.

4.1.7Solvency: No Bankrupcy Filing.  Borrower (a) has not entered into the transaction or executed the Note, this Agreement or any other Loan Documents with the actual intent to hinder, delay or defraud any creditor and (b) received reasonably equivalent value in exchange for its obligations under such Loan Documents.  Giving effect to the Loan, the fair saleable value of Borrower’s assets exceeds and will, immediately following the making of the Loan, exceed Borrower’s total liabilities, including, without limitation, subordinated, unliquidated, disputed and contingent liabilities.  The fair saleable value of Borrower’s assets is and will, immediately following the making of the Loan, be greater than Borrower’s probable liabilities, including the maximum amount of its contingent liabilities on its debts as such debts become absolute and matured.  Borrower’s assets do not and, immediately following the making of the Loan will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted.  Borrower does not intend to, and does not believe that it will, incur debt and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such debt and liabilities as they mature (taking into account the timing and amounts of cash to be received by Borrower and the amounts to be payable on or in respect of obligations

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of Borrower).  Except as expressly disclosed to Lender in writing, no petition in bankruptcy has been filed against Borrower, or to the best of Borrower’s knowledge, any constituent Person in the last seven (7) years, and neither Borrower, nor to the best of Borrower’s knowledge, any constituent Person in the last seven (7) years has ever made an assignment for the benefit of creditors or taken advantage of any insolvency act for the benefit of debtors.  Neither Borrower nor any of its constituent Persons are contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of Borrower’s assets or property, and Borrower has no knowledge of any Person contemplating the filing of any such petition against it or such constituent Persons.

4.1.8Full and Accurate Disclosure.  To Borrower’s knowledge, no statement of fact made by Borrower in this Agreement or in any of the other Loan Documents contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained herein or therein not misleading.  There is no material fact presently known to Borrower which has not been disclosed to Lender which adversely affects, nor as far as Borrower can foresee, might adversely affect, the Property or the business, operations or condition (financial or otherwise) of Borrower.

4.1.9No Plan Assets.  Borrower is not an “employee benefit plan,” as defined in Section 3(3) of ERISA, subject to Title I of ERISA, and none of the assets of Borrower constitutes or will constitute “plan assets” of one or more such plans within the meaning of 29 C. F. R. Section 2510.3-101.  In addition, (a) Borrower is not a “governmental plan” within the meaning of Section 3(32) of ERISA and (b) transactions by or with Borrower are not subject to state statutes regulating investment of, and fiduciary obligations with respect to, governmental plans similar to the provisions of Section 406 of ERISA or Section 4975 of the Code currently in effect, which prohibit or otherwise restrict the transactions contemplated by this Loan Agreement.

4.1.10Compliance.  To Borrower’s knowledge, Borrower and the Property and the use thereof comply in all material respects with all applicable Legal Requirements, including, without limitation, building and zoning ordinances and codes.  Borrower is not in default or violation of any order, writ, injunction, decree or demand of any Governmental Authority.  There has not been committed by Borrower or, to Borrower’s knowledge, any other Person in occupancy of or involved with the operation or use of the Property any act or omission affording the federal government or any other Governmental Authority the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents.

4.1.11Financial Information.  All financial data, including, without limitation, the statements of cash flow and income and operating expense, that have been delivered to Lender in respect of the Property (i) are, to the best of Borrower’s knowledge, true, complete and correct in all material respects, (ii) accurately represent the financial condition of the Property as of the date of such reports, and (iii) to the extent prepared or audited by an independent certified public accounting firm, have been prepared in accordance with accounting principles reasonably acceptable to Lender, consistently applied throughout the periods covered, except as disclosed therein; provided, however, that if any financial data is delivered to Lender by any Person other than Borrower, Indemnitor or any of their Affiliates, or if such financial data has been prepared

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by or at the direction of any Person other than Borrower, Indemnitor or any of their Affiliates, then the foregoing representations with respect to such financial data shall be to the best of Borrower’s knowledge, after due inquiry.  Borrower does not have any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that are known to Borrower and reasonably likely to have a materially adverse effect on the Property or the operation thereof as a retail shopping center, except as referred to or reflected in said financial statements.  Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of Borrower from that set forth in said financial statements.

4.1.12Condemnation.  No Condemnation or other proceeding has been commenced or, to Borrower’s knowledge, is contemplated with respect to all or any portion of the Property or for the relocation of roadways providing access to the Property.

4.1.13Federal Reserve Regulations.  No part of the proceeds of the Loan will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by Legal Requirements or by the terms and conditions of this Agreement or the other Loan Documents.

4.1.14Utilities and Public Access.  The Property has rights of access to public ways and is served by water, sewer, sanitary sewer and storm drain facilities adequate to service the Property for its respective intended uses.  All public utilities necessary or convenient to the full use and enjoyment of the Property are located either in the public right-of-way abutting the Property (which are connected so as to serve the Property without passing over other property) or in recorded easements serving the Property and such easements are set forth in and insured by the Title Insurance Policy.  All roads necessary for the use of the Property for their current respective purposes have been completed and dedicated to public use and accepted by all Governmental Authorities.

4.1.15Not a Foreign Person.  Borrower is not a “foreign person” within the meaning of §1445(f)(3) of the Code.

4.1.16Separate Lots.  The Property is comprised of one (1) or more parcels which constitute a separate tax lot or lots and does not constitute a portion of any other tax lot not a part of the Property.

4.1.17Assessments.  There are no pending, or to Borrower’s knowledge, proposed special or other assessments for public improvements or otherwise affecting the Property, nor are there any contemplated improvements to the Property that may result in such special or other assessments.

4.1.18Enforceability.  The Loan Documents are not subject to any right of rescission, set-off, counterclaim or defense by Borrower, including the defense of usury, nor would the operation of any of the terms of the Loan Documents, or the exercise of any right

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thereunder, render the Loan Documents unenforceable, and Borrower has not asserted any right of rescission, set-off, counterclaim or defense with respect thereto.

4.1.19No Prior Assignment.  There is no prior assignment of the Leases or any portion of the Rents by Borrower or any of its predecessors in interest, given as collateral security which are presently outstanding.

4.1.20Insurance.  Borrower has obtained and has delivered to Lender certified copies of all insurance policies reflecting the insurance coverages, amounts and other requirements set forth in this Agreement.  To the best of Borrower’s knowledge, no claims have been made under any such policy, and no Person, including Borrower, has done, by act or omission, anything which would impair the coverage of any such policy.

4.1.21Use of Property.  The Property is used exclusively for retail purposes and other appurtenant and related uses.

4.1.22Certificate of Occupancy; Licenses.  All certifications, permits, licenses and approvals, including without limitation, certificates of completion and occupancy permits required to be obtained by Borrower for the legal use, occupancy and operation of the Property as a retail shopping center have been obtained and are in full force and effect, and to the best of Borrower’s knowledge, after due inquiry, all certifications, permits, licenses and approvals, including without limitation, certificates of completion and occupancy permits required to be obtained by any Person other than Borrower for the legal use, occupancy and operation of the Property as a retail shopping center, have been obtained and are in full force and effect (all of the foregoing certifications, permits, licenses and approvals are collectively referred to as the “Licenses”).  Borrower shall and shall cause all other Persons to, keep and maintain all licenses necessary for the operation of the Property as a retail shopping center.  To Borrower’s knowledge, the use being made of the Property is in conformity with all certificates of occupancy issued for the Property.

4.1.23Flood Zone.  To the best of Borrower’s knowledge, after due inquiry, no Improvements on the Property are located in an area identified by the Federal Emergency Management Agency as an area having special flood hazards.

4.1.24Physical Condition.  Except as disclosed in the Physical Conditions Reports delivered to Lender in connecting with this Loan, to Borrower’s knowledge, the Property, including, without limitation, all buildings, improvements, parking facilities, sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, are in good condition, order and repair in all material respects; there exists no structural or other material defects or damages in the Property, whether latent or otherwise, and Borrower has not received notice from any insurance company or bonding company of any defects or inadequacies in the Property, or any part thereof, which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond.

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4.1.25Boundaries.  To the best of Borrower’s knowledge, after due inquiry, all of the improvements which were included in determining the appraised value of the Property lie wholly within the boundaries and building restriction lines of the Property, and no improvements on adjoining properties encroach upon the Property, and no easements or other encumbrances upon the Property encroach upon any of the improvements, so as to affect the value or marketability of the Property except those which are insured against by title insurance.

4.1.26Leases.  The Property is not subject to any Leases other than the Leases described on the Rent Roll attached as Schedule IV hereto and made a part hereof (and subleases permitted under the Anchor Lease, if any).  No Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases.  The current Leases are in full force and effect and to Borrower’s knowledge after inquiry, there are no defaults thereunder by either party and there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder.  No Rent (including security deposits) has been paid more than one (1) month in advance of its due date.  All work to be performed by Borrower under each Lease has been performed as required and has been accepted by the applicable tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any tenant has already been received by such tenant.  There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein which is outstanding.  To Borrower’s knowledge after inquiry, except as set forth on Schedule IV, no tenant listed on Schedule IV has assigned its Lease or sublet all or any portion of the premises demised thereby, no such tenant holds its leased premises under assignment or sublease, nor does anyone except such tenant and its employees occupy such leased premises.  No tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part.  Except as set forth in Schedule IV, no tenant under any Lease has any right or option for additional space in the Improvements except as set forth in Schedule IV.  To Borrower’s actual knowledge based on the Environmental Report delivered to Lender in connection herewith, no hazardous wastes or toxic substances, as defined by applicable federal, state or local statutes, rules and regulations, have been disposed, stored or treated by any tenant under any Lease on or about the leased premises nor does Borrower have any knowledge of any tenant’s intention to use its leased premises for any activity which, directly or indirectly, involves the use, generation, treatment, storage, disposal or transportation of any petroleum product or any toxic or hazardous chemical, material, substance or waste, except in either event, in compliance with applicable federal, state or local statues, rules and regulations.

4.1.27Survey.  The Survey for the Property delivered to Lender in connection with this Agreement has been prepared in accordance with the provisions of Section 3.1.3(c) hereof, and does not fail to reflect any material matter affecting the Property or the title thereto.

4.1.28Loan to Value.  The maximum principal amount of the Note does not exceed sixty percent (60%) of the fair market value of the Property as set forth on the appraisal of the Property delivered to Lender.

4.1.29Filing and Recording Taxes.  All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid by any Person under

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applicable Legal Requirements currently in effect in connection with the acquisition of the Property by Borrower have been paid or are simultaneously being paid.  All mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents, including, without limitation, the Mortgage, have been paid, and, under current Legal Requirements, the Mortgage is enforceable in accordance with its terms by Lender (or any subsequent holder thereof).

4.1.30Special Purpose Entity/Separateness.  (a) Until the Debt has been paid in full, Borrower hereby represents, warrants and covenants that the Borrower is, shall be and shall continue to be a Special Purpose Entity.  If Borrower consists of more than one Person, each such Person shall be a Special Purpose Entity.

(b)The representations, warranties and covenants set forth in Section 4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.

4.1.31Management Agreement.  The Management Agreement is in full force and effect and, to Borrower’s knowledge, there is no default thereunder by any party thereto and no event has occurred that, with the passage of time and/or the giving of notice would constitute a default thereunder.

4.1.32Illegal Activity.  To Borrower’s knowledge, no portion of the Property has been or will be purchased with proceeds of any illegal activity.

4.1.33No Change in Facts or Circumstances; Disclosure.  All information submitted by Borrower to Lender and in all financial statements, rent rolls, reports, certificates and other documents submitted in connection with the Loan or in satisfaction of the terms thereof and all statements of fact made by Borrower in this Agreement or in any other Loan Document, are accurate, complete and correct in all material respects, provided, however, that if such information was provided to Borrower by non-affiliated third parties, Borrower represents that such information is, to the best of its knowledge after due inquiry, accurate, complete and correct in all material respects.  There has been no material adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading in any material respect or that otherwise materially and adversely affects or might materially and adversely affect the Property or the business operations or the financial condition of Borrower.  Borrower has disclosed to Lender all material facts and has not failed to disclose any material fact that could cause any representation or warranty made herein to be materially misleading.

4.1.34Investment Company Act.  Borrower is not (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; (b) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (c)

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subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

4.1.35Principal Place of Business and Organization.  Borrower shall not change its principal place of business set forth in the introductory paragraph of this Agreement without first giving Lender thirty (30) days prior written notice.  Borrower shall not change the place of its organization as set forth in the introductory paragraph of this Agreement without the consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed.  Upon Lender’s request, Borrower shall execute and deliver additional financing statements, security agreements and other instruments which may be necessary to effectively evidence or perfect Lender’s security interest in the Property as a result of such change of principal place of business or place of organization.

4.1.36Service and Maintenance Contracts.  Borrower has delivered to Lender a true and complete copy of all material service, maintenance or similar type contracts or agreements affecting or pertaining to the Property or its operation, or any portion thereof.

Section 4.2Survival of Representations.  Borrower agrees that all of the representations and warranties of Borrower set forth in Section 4.1 and elsewhere in this Agreement and in the other Loan Documents shall survive for so long as any amount remains owing to Lender under this Agreement or any of the other Loan Documents by Borrower.  All representations, warranties, covenants and agreements made in this Agreement or in the other Loan Documents by Borrower shall be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.

ARTICLE V

BORROWER COVENANTS

Section 5.1Affirmative Covenants.  From the Closing Date and until payment and performance in full of all obligations of Borrower under the Loan Documents or the earlier release of the Lien of the Mortgage encumbering the Property (and all related obligations) in accordance with the terms of this Agreement and the other Loan Documents, Borrower hereby covenants and agrees with Lender that:

5.1.1Existence; Compliance with Legal Requirements; Insurance.  Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, rights, licenses, permits and franchises and comply with all Legal Requirements applicable to it and the Property.  Borrower shall not commit, nor shall Borrower permit any other Person in occupancy of or involved with the operation or use of the Property to commit, any act or omission affording the federal government or any state or local government the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents.  Borrower hereby covenants and agrees not to commit, permit or suffer to exist any act or omission affording such right of forfeiture.  Borrower shall at all times maintain, preserve and protect all its franchises and trade names and preserve all the remainder of its property used or useful in the conduct of its business and shall keep the Property in good working order and repair, and from time to time

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make, or cause to be made, all reasonably necessary repairs, renewals, replacements, betterments and improvements thereto, all as more fully provided in the Mortgage.  Borrower shall keep the Property insured at all times by financially sound and reputable insurers, to such extent and against such risks, and maintain liability and such other insurance, as is more fully provided in this Agreement.  Borrower shall operate, or cause the tenant to operate, any Property that is the subject of an O&M Agreement (if any) in accordance with the terms and provisions thereof in all material respects.  After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding promptly initiated and conducted in good faith and with due diligence, the validity of any Legal Requirement, the applicability of any Legal Requirement to Borrower or the Property or any alleged violation of any Legal Requirement, provided that (i) no Event of Default has occurred and remains uncured; (ii) intentionally omitted; (iii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iv) the Property or any part thereof or interest therein will not be in danger of being sold, forfeited, terminated, cancelled or lost; (v) Borrower shall promptly upon final determination thereof comply with any such Legal Requirement determined to be valid or applicable or cure any violation of any Legal Requirement; (vi) such proceeding shall suspend the enforcement of the contested Legal Requirement against Borrower or the Property; and (vii) Borrower shall furnish such security as may be required in the proceeding, or as may be requested by Lender, to insure compliance with such Legal Requirement, together with all interest and penalties payable in connection therewith.  Lender may apply any such security, as necessary to cause compliance with such Legal Requirement at any time when, in the reasonable judgment of Lender, the validity, applicability or violation of such Legal Requirement is finally established or the Property (or any part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost.

5.1.2Taxes and Other Charges.  Borrower shall pay or cause to be paid all Taxes and Other Charges now or hereafter levied or assessed or imposed against the Property or any part thereof as the same become due and payable; provided, however, Borrower’s obligation to directly pay to the appropriate taxing authority Taxes shall be suspended for so long as Borrower complies with the terms and provisions of Section 7.2 hereof.  Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof).  If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2.  Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid.  Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property.  After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or

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application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon.  Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.

5.1.3Litigation.  Borrower shall give prompt written notice to Lender of any litigation or governmental proceedings pending or threatened against Borrower which might materially adversely affect Borrower’s condition (financial or otherwise) or business or the Property.

5.1.4Access to Property.  Borrower shall permit agents, representatives and employees of Lender to inspect the Property or any part thereof at reasonable hours upon reasonable advance notice, subject to the rights of Tenants under their respective Leases.

5.1.5Notice of Default.  Borrower shall promptly advise Lender of any material adverse change in Borrower’s condition, financial or otherwise, or of the occurrence of any Default or Event of Default of which Borrower has knowledge.

5.1.6Cooperate in Legal Proceedings.  Borrower shall cooperate fully with Lender with respect to any proceedings before any court, board or other Governmental Authority which may in any way affect the rights of Lender hereunder or any rights obtained by Lender under any of the other Loan Documents and, in connection therewith, permit Lender, at its election, to participate in any such proceedings.

5.1.7Perform Loan Documents.  Borrower shall observe, perform and satisfy all the terms, provisions, covenants and conditions of, and shall pay when due all costs, fees and expenses to the extent required under the Loan Documents executed and delivered by, or applicable to, Borrower.

5.1.8Insurance Benefits.  Borrower shall cooperate with Lender in obtaining for Lender the benefits of any Insurance Proceeds lawfully or equitably payable in connection with the Property, and Lender shall be reimbursed for any expenses incurred in connection therewith (including reasonable attorneys’ fees and disbursements, and the payment by Borrower of the expense of an appraisal on behalf of Lender in case of a fire or other casualty affecting the Property or any part thereof) out of such Insurance Proceeds.

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5.1.9Further Assurances.  Borrower shall, at Borrower’s sole cost and expense:

(a)furnish to Lender all instruments, documents, boundary surveys, footing or foundation surveys, certificates, plans and specifications, appraisals, title and other insurance reports and agreements, and each and every other document, certificate, agreement and instrument required to be furnished by Borrower pursuant to the terms of the Loan Documents or reasonably requested by Lender in connection therewith;

(b)execute and deliver to Lender such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect the collateral at any time securing or intended to secure the obligations of Borrower under the Loan Documents, as Lender may reasonably require; and

(c)do and execute all and such further lawful and reasonable acts, conveyances and assurances for the better and more effective carrying out of the intents and purposes of this Agreement and the other Loan Documents, as Lender shall reasonably require from time to time.

5.1.10Intentionally Omitted.

5.1.11Financial Reporting. (a)  Borrower will keep and maintain or will cause to be kept and maintained on a Fiscal Year basis, in accordance with the requirements for a Special Purpose Entity set forth above, proper and accurate books, records and accounts reflecting all of the financial affairs of Borrower and all items of income and expense in connection with the operation on an individual basis of the Property.  Lender shall have the right from time to time at all times during normal business hours upon reasonable notice to examine such books, records and accounts at the office of Borrower or other Person maintaining such books, records and accounts and to make such copies or extracts thereof as Lender shall desire.  After the occurrence and during the continuance of an Event of Default, Borrower shall pay any costs and expenses incurred by Lender to examine Borrower’s accounting records with respect to the Property, as Lender shall reasonably determine to be necessary or appropriate in the protection of Lender’s interest.

(b)Borrower will furnish to Lender annually, within ninety (90) days following the end of each Fiscal Year of Borrower, either (i) a complete copy of Borrower’s annual financial statements audited by an accounting firm or other independent certified public accountant reasonably acceptable to Lender in accordance with the requirements for a Special Purpose Entity set forth above, or (ii) a consolidated and annotated financial statement of Borrower and Sole Member (as applicable), audited by an accounting firm or other independent certified public accountant reasonably acceptable to Lender in accordance with the requirements for a Special Purpose Entity set forth above, together with unaudited financial statements relating to the Borrower and the Property.  Such financial statements for the Property for such Fiscal Year and shall contain statements of profit and loss for Borrower and the Property and a balance sheet for Borrower.  Such statements shall set forth the financial condition and the results of operations for the Property for such Fiscal Year, and shall include, but not be limited to, amounts representing annual Net Cash Flow, Net Operating Income, Gross Income from Operations and Operating Expenses.  Borrower’s annual financial statements shall be accompanied by (i) a comparison of

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the budgeted income and expenses and the actual income and expenses for the prior Fiscal Year, (ii) a certificate executed by the chief financial officer of Borrower or Sole Member, as applicable, stating that each such annual financial statement presents fairly the financial condition and the results of operations of Borrower and the Property being reported upon and has been prepared in accordance with accounting principles reasonably acceptable to Lender, consistently applied, (iii) an unqualified opinion of an accounting firm or other independent certified public accountant reasonably acceptable to Lender, (iv) a certified rent roll containing current rent, lease expiration dates and the square footage occupied by each tenant; (v) a schedule audited by such independent certified public accountant reconciling Net Operating Income to Net Cash Flow (the “Net Cash Flow Schedule”), which shall itemize all adjustments made to Net Operating Income to arrive at Net Cash Flow deemed material by such independent certified public accountant.  Together with Borrower’s annual financial statements, Borrower shall furnish to Lender an Officer’s Certificate certifying as of the date thereof whether there exists an event or circumstance which constitutes a Default or Event of Default under the Loan Documents executed and delivered by, or applicable to, Borrower, and if such Default or Event of Default exists, the nature thereof, the period of time it has existed and the action then being taken to remedy the same.

(c)Borrower will furnish, or cause to be furnished, to Lender on or before ninety (90) days after the end of each calendar quarter the following items, accompanied by a certificate of the chief financial officer of Borrower or Sole Member, as applicable, stating that such items are true, correct, accurate, and complete and fairly present the financial condition and results of the operations of Borrower and the Property (subject to normal year-end adjustments) as applicable: (i) a rent roll for the subject month accompanied by an Officer’s Certificate with respect thereto; (ii) quarterly and year-to-date operating statements (including Capital Expenditures) prepared for each calendar quarter, noting Net Operating Income, Gross Income from Operations, and Operating Expenses (not including any contributions to the Replacement Reserve Fund, and other information necessary and sufficient to fairly represent the financial position and results of operation of the Property during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses together with a detailed explanation of any variances of five percent (5%) or more between budgeted and actual amounts for such periods, all in form satisfactory to Lender; (iii) a calculation reflecting the annual Debt Service Coverage Ratio for the immediately preceding twelve (12) month period as of the last day of such month accompanied by an Officer’s Certificate with respect thereto; and (iv) a Net Cash Flow Schedule (such Net Cash Flow for the Borrower may be unaudited if it is certified by an officer of the Borrower).  In addition, such certificate shall also be accompanied by a certificate of the chief financial officer of Borrower or Sole Member stating that the representations and warranties of Borrower set forth in Section 4.1.30(a) are true and correct as of the date of such certificate.

(d)For the partial year period commencing on the Closing Date, and for each Fiscal Year thereafter, Borrower shall submit to Lender an Annual Budget not later than thirty (30) days after the commencement of such period or Fiscal Year in form reasonably satisfactory to Lender.

(e)Borrower shall furnish to Lender, within ten (10) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information with respect

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to the operation of the Property and the financial affairs of Borrower as may be reasonably requested by Lender.

(f)Borrower shall furnish to Lender, within ten (10) Business Days after Lender’s request (or as soon thereafter as may be reasonably possible), financial and sales information from any Tenant designated by Lender (to the extent such financial and sales information is required to be provided under the applicable Lease and same is received by Borrower after request therefor).

(g)Borrower will cause Indemnitor to furnish to Lender annually, within one hundred twenty (120) days following the end of each Fiscal Year of Indemnitor, financial statements audited by an independent certified public accountant, which shall include an annual balance sheet and profit and loss statement of Indemnitor, in the form reasonably required by Lender.

(h)Any reports, statements or other information required to be delivered under this Agreement shall be delivered (i) in paper form, (ii) on a diskette, and (iii) if requested by Lender and within the capabilities of Borrower’s data systems without change or modification thereto, in electronic form and prepared using a Microsoft Word for Windows or WordPerfect for Windows files (which files may be prepared using a spreadsheet program and saved as word processing files).

5.1.12Business and Operations.  Borrower will continue to engage in the businesses presently conducted by it as and to the extent the same are necessary for the ownership, maintenance, management and operation of the Property.  Borrower will qualify to do business and will remain in good standing under the laws of each jurisdiction as and to the extent the same are required for the ownership, maintenance, management and operation of the Property.

5.1.13Title to the Property.  Borrower will warrant and defend (a) the title to the Property and every part thereof, subject only to Liens permitted hereunder (including Permitted Encumbrances) and (b) the validity and priority of the Liens of the Mortgage and the Assignment of Leases on the Property, subject only to Liens permitted hereunder (including Permitted Encumbrances), in each case against the claims of all Persons whomsoever.  Borrower shall reimburse Lender for any losses, costs, damages or expenses (including reasonable attorneys’ fees and court costs) incurred by Lender if an interest in the Property, other than as permitted hereunder, is claimed by another Person.

5.1.14Costs of Enforcement.  In the event (a) that the Mortgage encumbering the Property is foreclosed in whole or in part or that the Mortgage is put into the hands of an attorney for collection, suit, action or foreclosure, (b) of the foreclosure of any mortgage prior to or subsequent to the Mortgage encumbering the Property in which proceeding Lender is made a party, or (c) of the bankruptcy, insolvency, rehabilitation or other similar proceeding in respect of Borrower or any of its constituent Persons or an assignment by Borrower or any of its constituent Persons for the benefit of its creditors, Borrower, its successors or assigns, shall be chargeable with and agrees to pay all costs of collection and defense, including reasonable attorneys’ fees and costs, incurred by Lender or Borrower in connection therewith and in

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connection with any appellate proceeding or post-judgment action involved therein, together with all required service or use taxes.

5.1.15Estoppel Statement.  (a)  After request by Lender, Borrower shall within ten (10) days furnish Lender with a statement, duly acknowledged and certified, setting forth (i) the amount of the original principal amount of the Note, (ii) the unpaid principal amount of the Note, (iii) the applicable interest rate of the Note, (iv) the date installments of interest and/or principal were last paid, (v) any offsets or defenses to the payment of the Debt, if any, and (vi) that the Note, this Agreement, the Mortgage and the other Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such modification.

(b)Borrower shall use commercially reasonable efforts to deliver to Lender upon request, tenant estoppel certificates from each commercial tenant leasing space at the Property in form and substance reasonably satisfactory to Lender provided that Borrower shall not be required to deliver such certificates more frequently than one (1) time in any calendar year.

(c)Within thirty (30) days of request by Borrower, Lender shall deliver to Borrower a statement setting forth the items described at (a)(i), (ii), (iii) and (iv) of this Section 5.1.15.

5.1.16Loan Proceeds.  Borrower shall use the proceeds of the Loan received by it on the Closing Date only for the purposes set forth in Section 2.1.4.

5.1.17Performance by Borrower.  Borrower shall in a timely manner observe, perform and fulfill each and every covenant, term and provision of each Loan Document executed and delivered by, or applicable to, Borrower, and shall not enter into or otherwise suffer or permit any amendment, waiver, supplement, termination or other modification of any Loan Document executed and delivered by, or applicable to, Borrower without the prior written consent of Lender.

5.1.18Confirmation of Representations.  Borrower shall deliver, in connection with any Securitization, (a) one or more Officer’s Certificates certifying as to the accuracy of all representations made by Borrower in the Loan Documents as of the date of the closing of such Securitization, and (b) certificates of the relevant Governmental Authorities in all relevant jurisdictions indicating the good standing and qualification of Borrower and its member as of the date of the Securitization.

5.1.19No Joint Assessment.  Borrower shall not suffer, permit or initiate the joint assessment of the Property (a) with any other real property constituting a tax lot separate from the Property, and (b) which constitutes real property with any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to such real property portion of the Property.

5.1.20Leasing Matters.  Any Leases with respect to the Property written after the Closing Date for more than the smallest of the Relevant Leasing Threshold square footage shall be subject to the prior written approval of Lender, which approval may be given or withheld in the sole discretion of Lender.  Lender shall approve or disapprove any such Lease within ten (10)

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Business Days of Lender’s receipt of a final execution draft of such Lease (including all exhibits, schedules, supplements, addenda or other agreements relating thereto) and a written notice from Borrower requesting Lender’s approval to such Lease, and such Lease shall be deemed approved, if Lender does not disapprove such Lease within said ten (10) Business Day period provided such written notice conspicuously states, in large bold type, that “PURSUANT TO SECTION 5.1.20 OF THE LOAN AGREEMENT, THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN TEN (10) BUSINESS DAYS OF LENDER’S RECEIPT OF SUCH LEASE AND WRITTEN NOTICE”.  Borrower shall furnish Lender with executed copies of all Leases.  All renewals of Leases and all proposed Leases shall provide for rental rates comparable to existing local market rates (unless such rental rates are otherwise set forth in the Leases executed prior to the Closing Date).  All proposed Leases shall be on commercially reasonable terms and shall not contain any terms which would materially affect Lender’s rights under the Loan Documents.  All Leases executed after the Closing Date shall provide that they are subordinate to the Mortgage encumbering the Property and that the tenant thereunder agrees to attorn to Lender or any purchaser at a sale by foreclosure or power of sale.  Borrower (i) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner not to impair the value of the Property involved except that no termination by Borrower or acceptance of surrender by a tenant of any Lease shall be permitted unless by reason of a tenant default and then only in acommercially reasonable manner to preserve and protect the Property provided, however, that no such termination or surrender of any Lease covering more than the smallest Relevant Leasing Threshold will be permitted without the written consent of Lender which consent may be withheld in the sole discretion of Lender; (iii) shall not collect any of the rents more than one (1) month in advance (other than security deposits); (iv) shall not execute any other assignment of lessor’s interest in the Leases or the Rents (except as contemplated by the Loan Documents); (v) shall not alter, modify or change the terms of the Leases in a manner inconsistent with the provisions of the Loan Documents without the prior written consent of Lender, which consent may be withheld in the sole discretion of Lender; and (vi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignment in connection with the Leases as Lender shall from time to time reasonably require.  Notwithstanding the foregoing, Borrower may, without the prior written consent of Lender, terminate any Lease which demises less than the smallest of the Relevant Leasing Threshold under any of the following circumstances: (i) the tenant under said Lease is in default beyond any applicable grace and cure period, and Borrower has the right to terminate such Lease; (ii) such termination is permitted by the terms of the Lease in question and Borrower has secured an obligation from a third party to lease the space under the Lease to be terminated at a rental equal to or higher than the rental due under the Lease to be terminated; and (iii) if the tenant under the Lease to be terminated, has executed a right under said Lease to terminate its lease upon payment of a termination fee to Borrower, and has in fact terminated its lease and paid said fee, Borrower may accept said termination.

5.1.21Alterations.  Subject to the rights of tenants to make alterations pursuant to the terms of their respective Leases, Borrower shall obtain Lender’s prior written consent to any alterations to any Improvements, which consent shall not be unreasonably withheld or delayed except with respect to alterations that may have a material adverse effect on Borrower’s financial

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condition, the value of the Property or the Net Operating Income.  Notwithstanding the foregoing, Lender’s consent shall not be required in connection with any alterations that will not have a material adverse effect on Borrower’s financial condition, the value of the Property or the Net Operating Income, provided that such alterations are made in connection with (a) tenant improvement work performed pursuant to the terms of any Lease executed on or before the Closing Date, (b) tenant improvement work performed pursuant to the terms and provisions of a Lease and not adversely affecting any structural component of any Improvements, any utility or HVAC system contained in any Improvements or the exterior of any building constituting a part of any Improvements, (c) alterations performed in connection with the restoration of the Property after the occurrence of a casualty in accordance with the terms and provisions of this Agreement or (d) any structural alteration which costs less than $50,000.00 in the aggregate for all components thereof which constitute such alteration or any non-structural alteration which costs less than $100,000.00 in the aggregate for all components thereof which constitute such alteration.  If the total unpaid amounts due and payable with respect to alterations to the Improvements at the Property (other than such amounts to be paid or reimbursed by tenants under the Leases) shall at any time equal or exceed $350,000.00 (the “Threshold Amount”), Borrower, upon Lender’s request, shall promptly deliver to Lender as security for the payment of such amounts and as additional security for Borrower’s obligations under the Loan Documents any of the following: (A) cash, (B) U.S.  Obligations, (C) other securities having a rating acceptable to Lender and that the applicable Rating Agencies have confirmed in writing will not, in and of itself, result in a downgrade, withdrawal or qualification of the initial, or, if higher, then current ratings assigned in connection with any Securitization, or (D) a completion bond or letter of credit issued by a financial institution having a rating by Standard & Poor’s Ratings Group of not less than A-1+ if the term of such bond or letter of credit is no longer than three (3) months or, if such term is in excess of three (3) months, issued by a financial institution having a rating that is acceptable to Lender and that the applicable Rating Agencies have confirmed in writing will not, in and of itself, result in a downgrade, withdrawal or qualification of the initial, or, if higher, then current ratings assigned in connection with any Securitization.  Such security shall be in an amount equal to the excess of the total unpaid amounts with respect to alterations to the Improvements on the Property (other than such amounts to be paid or reimbursed by tenants under the Leases) over the Threshold Amount and, if cash, may be applied from time to time, at the option of Borrower, to pay for such alterations.  At the option of Lender, following the occurrence and during the continuance of an Event of Default, Lender may terminate any of the alterations and use the deposit to restore the Property to the extent necessary to prevent any material adverse effect on the value of the Property.

Section 5.2Negative Covenants.  From the Closing Date until payment and performance in full of all obligations of Borrower under the Loan Documents or the earlier release of the Lien of the Mortgage encumbering the Property in accordance with the terms of this Agreement and the other Loan Documents, Borrower covenants and agrees with Lender that it will not do, directly or indirectly, any of the following:

5.2.1Operation of Property.  Borrower shall not, without the prior consent of Lender, terminate the Management Agreement or otherwise replace the Manager or enter into any other management agreement with respect to the Property unless the Manager is in default thereunder beyond any applicable grace or cure period, in which event no consent by Lender shall be required.  Lender agrees that its consent will not be unreasonably withheld, delayed or

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conditioned provided that the Person chosen by Borrower as the replacement Manager is a Qualifying Manager and provided further that Borrower shall deliver an acceptable non-consolidation opinion covering such replacement Manager if such Person was not covered by such opinion delivered at the closing of the Loan.

5.2.2Liens.  Borrower shall not, without the prior written consent of Lender, create, incur, assume or suffer to exist any Lien on any portion of the Property or permit any such action to be taken, except:

(i)Permitted Encumbrances;

(ii)Liens created by or related to Indebtedness permitted pursuant to the Loan Documents; and

(iii)Liens for Taxes or Other Charges not yet due (or that Borrower is contesting in accordance with the terms of Section 5.1.2 hereof).

5.2.3Dissolution.  Borrower shall not (a) engage in any dissolution, liquidation or consolidation or merger with or into any other business entity, (b) engage in any business activity not related to the ownership and operation of the Property, (c) transfer, lease or sell, in one transaction or any combination of transactions, the assets or all or substantially all of the properties or assets of Borrower except to the extent permitted by the Loan Documents, (d) modify, amend, waive or terminate its organizational documents or its qualification and good standing in any jurisdiction or (e) cause the Sole Member to (i) dissolve, wind up or liquidate or take any action, or omit to take an action, as a result of which the Sole Member would be dissolved, wound up or liquidated in whole or in part, or (ii) amend, modify, waive or terminate the certificate of limited partnership or partnership agreement of the Sole Member, in each case, without obtaining the prior written consent of Lender or Lender’s designee.

5.2.4Change in Business.  Borrower shall not enter into any line of business other than the ownership and operation of the Property, or make any material change in the scope or nature of its business objectives, purposes or operations, or undertake or participate in activities other than the continuance of its present business.

5.2.5Debt Cancellation.  Borrower shall not cancel or otherwise forgive or release any claim or debt (other than termination of Leases in accordance herewith) owed to Borrower by any Person, except for adequate consideration and in the ordinary course of Borrower’s business.

5.2.6Affiliate Transactions.  Borrower shall not enter into, or be a party to, any transaction with an Affiliate of Borrower or any of the partners of Borrower except in the ordinary course of business and on terms which are fully disclosed to Lender in advance and are no less favorable to Borrower or such Affiliate than would be obtained in a comparable arm’s-length transaction with an unrelated third party.

5.2.7Zoning.  Borrower shall not initiate or consent to any zoning reclassification of any portion of the Property or seek any variance under any existing zoning ordinance or use or permit the use of any portion of the Property in any manner that could result

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in such use becoming a non-conforming use under any zoning ordinance or any other applicable land use law, rule or regulation, without the prior consent of Lender.

5.2.8Assets.  Borrower shall not purchase or own any properties other than the Property owned by Borrower as of the Closing Date as reflected in the applicable Title Insurance Policy.

5.2.9Debt.  Borrower shall not create, incur or assume any Indebtedness other than the Debt except to the extent expressly permitted hereby.

5.2.10No Joint Assessment.  Borrower shall not suffer, permit or initiate the joint assessment of the Property with (a) any other real property constituting a tax lot separate from the Property, or (b) any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the Lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to the Property.

5.2.11Intentionally Omitted.

5.2.12ERISA.  (a)  Borrower shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under the Note, this Agreement or the other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA.

(b)Borrower further covenants and agrees to deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan, as requested by Lender in its sole discretion, that (A) Borrower is not and does not maintain an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmental plan” within the meaning of Section 3(3) of ERISA; (B) Borrower is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (C) one or more of the following circumstances is true:

(i)Equity interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R. §25l0.3-101(b)(2);

(ii)Less than twenty-five percent (25%) of each outstanding class of equity interests in Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R. §2510.3-101(f)(2); or

(iii)Borrower qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. §2510.3-10l(c) or (e).

5.2.13Transfers.  Unless such action is permitted by the provisions of this Section 5.2.13, Borrower agrees that it will not (i) sell, assign, convey, transfer or otherwise dispose of its interests in the Property or any part thereof, (ii) permit any owner, directly or indirectly, of an ownership interest in the Property, to transfer such interest, whether by transfer of stock or other interest in Borrower or any entity, or otherwise, (iii) incur Indebtedness (other than the Indebtedness permitted pursuant to the terms of this Agreement), (iv) mortgage, hypothecate or otherwise encumber or grant a security interest in the Property or any part

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thereof, (v) sell, assign, convey, transfer, mortgage, encumber, grant a security interest in, or otherwise dispose of any direct or indirect ownership interest in Borrower, or permit any owner of an interest in Borrower to do the same, or (vi) file a declaration of condominium with respect to the Property (any of the foregoing transactions, a “Transfer”).  For purposes hereof, a “Transfer” shall not include (A) any issuance, sale or transfer of interests in Inland Western Retail Real Estate Trust, Inc., (B) transfer by devise or descent or by operation of law upon the death of a member of Borrower, and (C) a sale, transfer or hypothecation of a membership interest in Borrower, whichever the case may be, by the current member(s), as applicable, to an immediate family member (i.e., parents, spouses, siblings, children or grandchildren) of such member (or a trust for the benefit of any such persons).

(a)On and after the date that is twelve (12) months following the Closing Date, Lender shall not withhold its consent to a Transfer of the Property, provided that the following conditions are satisfied:

(1)the transferee of the Property shall be a Special Purpose Entity (the “Transferee”) which at the time of such transfer will be in compliance with the covenants contained in Section 5.1.1 and the representations contained in 4.1.30 hereof and which shall have assumed in writing (subject to the terms of Section 9.4 hereof) and agreed to comply with all the terms, covenants and conditions set forth in this Loan Agreement and the other Loan Documents, expressly including the covenants contained in Section 5.1.1 and the representations contained in 4.1.30 hereof;

(2)if requested by Lender, Borrower shall deliver confirmation in writing from the Rating Agencies that such proposed Transfer will not cause a downgrading, withdrawal or qualification of the then current rating of any securities issued pursuant to such Securitization;

(3)if Manager does not act as manager of the transferred Property then the manager of the Property must be a Qualifying Manager;

(4)no Event of Default shall have occurred and be continuing;

(5)if required or requested by any of the Rating Agencies, Borrower shall have caused counsel to render a substantive non-consolidation opinion which in each case may be relied upon by the holder of the Note, the Ratings Agencies and their respective counsel, agents and representatives with respect to the proposed transaction, including the Transferee, which opinion shall be acceptable to Lender in its reasonable discretion;

(6)Borrower shall have paid (A) an assumption fee equal to one percent (1.0%) of the then outstanding principal balance of the Loan, and (B) the reasonable and customary third-party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer; provided, however, no assumption fee shall be required for a Transfer of the Property to a Transferee acceptable

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to Lender inconnection with a joint venture between Inland Western Retail Real Estate Trust, Inc. or Inland Western Retail Real Estate Limited Partnership and an institution acceptable to Lender provided Inland Western Retail Real Estate Trust, Inc., or an Affiliate wholly-owned (directly or indirectly) by Inland Western Retail Real Estate Trust, Inc., owns at least twenty percent (20%) of the ownership interests in such Transferee (which shall include the right to receive material economic benefits from the operation of the Property) and for which Inland Western Retail Real Estate Trust, Inc., or an Affiliate wholly-owned (directly or indirectly) by Inland Western Retail Real Estate Trust, Inc., is the managing entity and otherwise maintains operational and managerial control of such Transferee, provided that Borrower shall pay all of Lender’s reasonable and customary third-party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer and a processing fee of $5,000.

Lender shall approve or disapprove any proposed Transfer governed by this Section 5.2.l3(a) within thirty (30) days of Lender’s receipt of a written notice from Borrower requesting Lender’s approval, provided such notice includes all information necessary to make such decision, and further provided that such written notice from Borrower shall conspicuously state, in large bold type, that “PURSUANT TO SECTION 5.2.13 OF THE LOAN AGREEMENT, A RESPONSE IS REQUIRED WITHIN THIRTY (30) DAYS OF LENDER’S RECEIPT OF THIS WRITTEN NOTICE”.  If Lender fails to disapprove any such matter within such period, Borrower shall provide a second written notice requesting approval, which written notice shall conspicuously state, in large bold type, that “PURSUANT TO SECTION 5.2.13 OF THE LOAN AGREEMENT, THE MATTER DESCRIBED HEREIN SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN TEN (10) DAYS OF LENDER’S RECEIPT OF THIS WRITTEN NOTICE”.  Thereafter, if Lender does not disapprove such matter within said ten (10) day period such matter shall be deemed approved.

(b)On and after the date that is twelve (12) months following the Closing Date, Lender shall not withhold its consent to, and shall not charge an assumption fee in connection with, (1) a Transfer of up to, in the aggregate, forty-nine percent (49%) of the direct or indirect ownership interests in Borrower, or (2) a Transfer of greater than forty-nine percent (49%) of the direct or indirect ownership interest in Borrower, provided that (A) such transfer is to a Qualified Entity (as defined below), and (B) Borrower shall pay all of Lender’s reasonable and customary third-party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer and a processing fee of $5,000.  For purposes of this Agreement, a “Qualified Entity” shall mean an entity (x) with a net worth of $200,000,000 or more, (y) with sufficient experience (determined by Lender in its reasonable discretion) in the ownership and management of properties similar to the Property, and (z) which owns or manages retail properties containing at least 1,000,000 square feet of gross leasable area.  If required or requested by any of the Rating Agencies, Borrower shall deliver a substantive non-consolidation opinion with respect to any party not now owning more than 49% of the ownership interests in Borrower acquiring more than 49% of the ownership interests in Borrower.

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(c)Notwithstanding anything in this Section 5.2.13 to the contrary, on or after the date that is twelve (12) months after the Closing Date, Borrower shall be permitted to Transfer the entire Property in a single transaction to one newly-formed Special Purpose Entity which shall be wholly-owned subsidiary of Inland Western Retail Real Estate Trust, Inc. (“Permitted Affiliate Transferee”) which shall be approved by Lender in its reasonable discretion (“Permitted Affiliate Transfer”), provided (1) no Event of Default shall have occurred and be continuing, (2) the creditworthiness of Inland Western Retail Real Estate Trust, Inc., as applicable, has not deteriorated, in the sole discretion of Lender, from the Closing Date to the date of the proposed Transfer, and (3) Borrower shall have paid all reasonable and customary third party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer (but not any assumption or processing fee).

(d)Borrower, without the consent of Lender, may grant easements, restrictions, covenants, reservations and rights of way in the ordinary course of business for access, parking, water and sewer lines, telephone and telegraph lines, electric lines and other utilities or for other similar purposes, provided that no transfer, conveyance or encumbrance shall materially impair the utility and operation of the Property or materially adversely affect the value of the Property or the Net Operating Income of the Property.  If Borrower shall receive any consideration in connection with any of said described transfers or conveyances, Borrower shall have the right to use any such proceeds in connection with any alterations performed in connection therewith, or required thereby.  In connection with any transfer, conveyance or encumbrance permitted above, the Lender shall execute and deliver any instrument reasonably necessary or appropriate to evidence its consent to said action or to subordinate the Lien of the Mortgage to such easements, restrictions, covenants, reservations and rights of way or other similar grants upon receipt by the Lender of: (A) a copy of the instrument of transfer; and (B) an Officer’s Certificate stating with respect to any transfer described above, that such transfer does not materially impair the utility and operation of the Property or materially reduce the value of the Property or the Net Operating Income of the Property.

ARTICLE VI

INSURANCE; CASUALTY; CONDEMNATION

Section 6.1Insurance.  (a) Borrower shall obtain and maintain insurance for Borrower and the Property providing at least the following coverages:

(i)comprehensive all risk insurance on the Improvements and the Personal Property, including contingent liability from Operation of Building Laws, Demolition Costs and Increased Cost of Construction Endorsements, in each case (A) in an amount equal to one hundred percent (100%) of the “Full Replacement Cost,” which for purposes of this Agreement shall mean actual replacement value (exclusive of costs of excavations, foundations, underground utilities and footings) with a waiver of depreciation; (B) containing an agreed amount endorsement with respect to the Improvements and Personal Property waiving all co-insurance provisions; (C) providing for no deductible in excess of Ten Thousand and No/100 Dollars ($10,000) for all such insurance coverage; and (D) containing an “Ordinance or Law Coverage” or “Enforcement” endorsement if any of the Improvements or the use of the Property shall at any time constitute legal

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non-conforming structures or uses.  In addition, Borrower shall obtain: (y) if any portion of the Improvements is currently or at any time in the future located in a federally designated “special flood hazard area”, flood hazard insurance in an amount equal to the lesser of (1) the outstanding principal balance of the Note or (2) the maximum amount of such insurance available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended or such greater amount as Lender shall require; and (z) earthquake insurance in amounts and in form and substance satisfactory to Lender in the event the Property is located in an area with a high degree of seismic activity, provided that the insurance pursuant to clauses (y) and (z) hereof shall be on terms consistent with the comprehensive all risk insurance policy required under this subsection (i).

(ii)commercial general liability insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about the Property, such insurance (A) to be on the so-called “occurrence” form with a combined limit, including umbrella coverage, of not less than Five Million and No/100 Dollars ($5,000,000.00); (B) to continue at not less than the aforesaid limit until required to be changed by Lender in writing by reason of changed economic conditions making such protection inadequate; and (C) to cover at least the following hazards: (1) premises and operations; (2) products and completed operations on an “if any” basis; (3) independent contractors; (4) blanket contractual liability for all legal contracts; and (5) contractual liability covering the indemnities contained in Article 9 of the Mortgage to the extent the same is available;

(iii)business income insurance (A) with loss payable to Lender; (B) covering all risks required to be covered by the insurance provided for in subsection (i) above; (C) covering rental losses or business interruption, as may be applicable, for a period of at least twelve (12) months after the date of the casualty; and (D) in an annual amount equal to (100%) of the rents or estimated gross revenues from the operation of the Property (as reduced to reflect expenses not incurred during a period of Restoration).  The amount of such business income insurance shall be determined prior to the date hereof and at least once each year thereafter based on Borrower’s reasonable estimate of the gross income from the Property for the succeeding twelve (12) month period.  All proceeds payable to Lender pursuant to this subsection shall be held by Lender and shall be applied to the obligations secured by the Loan Documents from time to time due and payable hereunder and under the Note; provided, however, that nothing herein contained shall be deemed to relieve Borrower of its obligations to pay the obligations secured by the Loan Documents on the respective dates of payment provided for in the Note and the other Loan Documents except to the extent such amounts are actually paid out of the proceeds of such business income insurance;

(iv)at all times during which structural construction, repairs or alterations are being made with respect to the Improvements, and only if the Property coverage form does not otherwise apply, (A) owner’s contingent or protective liability insurance covering claims not covered by or under the terms or provisions of the above mentioned commercial general liability insurance policy; and (B) the insurance provided for in subsection (i) above written in a so-called builder’s risk completed value form (1) on a non-reporting basis, (2) against all risks insured against pursuant to subsection (i) above,

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(3) including permission to occupy the Property, and (4) with an agreed amount endorsement waiving co-insurance provisions;

(v)workers’ compensation, subject to the statutory limits of the State;

(vi)comprehensive boiler and machinery insurance, if applicable, in amounts as shall be reasonably required by Lender on terms consistent with the commercial property insurance policy required under subsection (i) above;

(vii)umbrella liability insurance in an amount not less than Five Million and No/100 Dollars ($5,000,000.00) per occurrence on terms consistent with the commercial general liability insurance policy required under subsection (ii) above;

(viii)if any of the policies of insurance covering the risks required to be covered under subsections (i) through (vii) above contains an exclusion from coverage for acts of terrorism, Borrower shall obtain and maintain a separate policy providing such coverages in the event of any act of terrorism, provided such coverage is commercially available for properties similar to the Property and located in or around the region in which the Property is located.  Notwithstanding the foregoing, Borrower shall not be required to obtain such a policy, provided (I) Borrower confirms to Lender, in writing, that it shall protect and hold Lender harmless from any losses associated with such risks by, among other things, either (A) depositing with Lender sums sufficient to pay for all uninsured costs related to a Restoration of the Property following any act of terrorism (which sum shall be treated as a Net Proceeds Deficiency), or (B) provided such act of terrorism occurs on or after the Permitted Prepayment Date, prepaying the Loan in accordance with the terms hereof;  (II) Inland Western Retail Real Estate Trust, Inc. (“Terrorism Insurance Guarantor”) executes a guaranty, in form and substance satisfactory to Lender, guaranteeing in the event of any act of terrorism, payment to Lender of any sums that Borrower is obligated to pay to Lender under clause (I) above (which shall be applied in accordance with Section 6.4 hereof) and (III) Terrorism Insurance Guarantor maintains a net worth of at least $300,000,000 (as determined by such entity’s most recent audited financial statements), such entity maintains a direct or indirect ownership interest in Borrower, and the aggregate loan-to-value ratio (as determined by Lender) (“LTV”) for all properties on which such entity has a direct or indirect ownership interest shall not exceed 60%, however, Terrorism Insurance Guarantor may exceed the 60% LTV for a period not to exceed six (6) months out of any twelve (12) month period either 1) during the time period when Terrorism Insurance Guarantor is offering securities to the public, or 2) when in the business judgement of Terrorism Insurance Guarantor, exceeding an LTV of 60% is necessary given existing circumstances of the credit environment, but in no event shall the LTV exceed 65% if Terrorism Insurance Guarantor maintains a net worth greater than or equal to $300,000,000, but less than $400,000,000, or 70% if Terrorism Insurance Guarantor maintains a net worth of at least $400,000,000.

(ix)upon sixty (60) days’ written notice, such other reasonable insurance and in such reasonable amounts as Lender from time to time may reasonably request against such other insurable hazards which at the time are commonly insured against for property similar to the Property located in or around the region in which the Property is located.

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(b)All insurance provided for in Section 6.1(a) shall be obtained under valid and enforceable policies (collectively, the “Policies” or in the singular, the “Policy”), and shall be subject to the approval of Lender as to insurance companies, amounts, deductibles, loss payees and insureds.  The Policies shall be issued by financially sound and responsible insurance companies authorized to do business in the State and having a rating of “A:X” or better in the current Best’s Insurance Reports and a claims paying ability rating of “AA” or better by at least two (2) of the Rating Agencies including, (i) Standard & Poor’s Ratings Group, and (ii) Moody’s Investors Services, Inc. if Moody’s Investors Service, Inc. is rating the Securities.  The Policies described in Section 6.1 (other than those strictly limited to liability protection) shall designate Lender as loss payee.  Not less than thirty (30) days prior to the expiration dates of the Policies theretofore furnished to Lender, certificates of insurance evidencing the Policies accompanied by evidence satisfactory to Lender of payment of the premiums due thereunder (the “Insurance Premiums”), shall be delivered by Borrower to Lender.

(c)Any blanket insurance Policy shall specifically allocate to the Property the amount of coverage from time to time required hereunder and shall otherwise provide the same protection as would a separate Policy insuring only the Property in compliance with the provisions of Section 6.1(a).

(d)All Policies of insurance provided for or contemplated by Section 6.1(a), except for the Policy referenced in Section 6.1(a)(v), shall name Borrower, or the Tenant, as the insured and Lender as the additional insured, as its interests may appear, and in the case of property damage, boiler and machinery, flood and earthquake insurance, shall contain a so-called New York standard non-contributing mortgagee clause in favor of Lender providing that the loss thereunder shall be payable to Lender.

(e)All Policies of insurance provided for in Section 6.1(a) shall contain clauses or endorsements to the effect that:

(i)no act or negligence of Borrower, or anyone acting for Borrower, or of any Tenant or other occupant, or failure to comply with the provisions of any Policy, which might otherwise result in a forfeiture of the insurance or any part thereof, shall in any way affect the validity or enforceability of the insurance insofar as Lender is concerned;

(ii)the Policy shall not be materially changed (other than to increase the coverage provided thereby) or canceled without at least thirty (30) days’ written notice to Lender and any other party named therein as an additional insured;

(iii)the issuers thereof shall give written notice to Lender if the Policy has not been renewed fifteen (15) days prior to its expiration; and

(iv)Lender shall not be liable for any Insurance Premiums thereon or subject to any assessments thereunder.

(f)If at any time Lender is not in receipt of written evidence that all insurance required hereunder is in full force and effect, Lender shall have the right, after ten (10) Business Days written notice to Borrower, to take such action as Lender deems necessary to protect its

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interest in the Property, including, without limitation, the obtaining of such insurance coverage as Lender in its sole discretion deems appropriate.  All premiums incurred by Lender in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by Borrower to Lender upon demand and, until paid, shall be secured by the Mortgage and shall bear interest at the Default Rate.  If Borrower fails in so insuring the Property or in so assigning and delivering the Policies, Lender may, at its option, obtain such insurance using such carriers and agencies as Lender shall elect from year to year and pay the premiums therefor, and Borrower will reimburse Lender for any premium so paid, with interest thereon as stated in the Note from the time of payment, on demand, and the amount so owning to Lender shall be secured by the Mortgage.  The insurance obtained by Lender may, but need not, protect Borrower’s interest and the coverage that Lender purchases may not pay any claim that Borrower makes or any claim that is made against Borrower in connection with the Property.

Section 6.2Casualty.  If the Property shall be damaged or destroyed, in whole or in part, by fire or other casualty (a “Casualty”), Borrower (a) shall give to Lender prompt notice of such damage reasonably estimated by Borrower to cost more than One Hundred Thousand Dollars ($100,000.00) to repair, and (b) shall promptly commence and diligently prosecute the completion of the repair and restoration of the Property as nearly as possible to the condition the Property was in immediately prior to such fire or other casualty, with such alterations as may be reasonably approved by Lender (a “Restoration”) and otherwise in accordance with Section 6.4.  Borrower shall pay all costs of such Restoration whether or not such costs are covered by insurance.  Lender may, but shall not be obligated to make proof of loss if not made promptly by Borrower.

Section 6.3Condemnation.  Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the Condemnation of the Property and shall deliver to Lender copies of any and all papers served in connection with such proceedings.  Lender may participate in any such proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation.  Borrower shall, at its expense, diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings.  Notwithstanding any taking by any public or quasi-public authority through Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Debt.  Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note.  If the Property or any portion thereof is taken by a condemning authority, Borrower shall promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the provisions of Section 6.4.  If the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.

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Section 6.4Restoration.  The following provisions shall apply in connection with the Restoration of the Property:

(a)If the Net Proceeds shall be less than Relevant Restoration Threshold and the costs of completing the Restoration shall be less than the Relevant Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.

(b)If the Net Proceeds are equal to or greater than the Relevant Restoration Threshold or the costs of completing the Restoration is equal to or greater than the Relevant Restoration Threshold, then in either case, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4(b).  The term “Net Proceeds” for purposes of this Section 6.4 shall mean; (x) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi) and (viii) as a result of such damage or destruction, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting same (“Insurance Proceeds”), or (y) the net amount of the Award, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.

(i)The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:

(A)no Event of Default shall have occurred and be continuing;

(B)(1) in the event the Net Proceeds are Insurance Proceeds, and (x) less than twenty-five percent (25%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such fire or other casualty, or (y) Borrower is required under a Lease exceeding the smallest of the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property, or (2) in the event the Net Proceeds are Condemnation Proceeds, and (x) less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land, or (y) Borrower is required under a Lease exceeding the smallest of the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property;

(C)Leases demising in the aggregate a percentage amount equal to or greater than the Rentable Space Percentage of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration,

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notwithstanding the occurrence of any such fire or other casualty or taking, whichever the case may be, and will make all necessary repairs and restorations thereto at their sole cost and expense.  The term “Rentable Space Percentage” shall mean (x) in the event the Net Proceeds are Insurance Proceeds, a percentage amount equal to fifty percent (50%) and (y) in the event the Net Proceeds are Condemnation Proceeds, a percentage amount equal to fifty percent (50%);

(D)Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than ninety (90) days after such damage or destruction or taking, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion;

(E)Lender shall be satisfied that any operating deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the Property as a result of the occurrence of any such fire or other casualty or taking, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 6.1(a)(iii), if applicable, or (3) by other funds of Borrower;

(F)Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) the Maturity Date, (2) the earliest date required for such completion under the terms of any Leases, (3) such time as may be required under applicable zoning law, ordinance, rule or regulation in order to repair and restore the Property to the condition it was in immediately prior to such fire or other casualty or to as nearly as possible the condition it was in immediately prior to such taking, as applicable or (4) the expiration of the insurance coverage referred to in Section 6.1(a)(iii);

(G)the Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable zoning laws, ordinances, rules and regulations provided, however, that compliance with such zoning laws, ordinances, rules and regulations (including, without limitation, parking requirements)  will not require restoration of the Improvements or the Property to a size, condition, or configuration materially different than that which existed immediately prior to such Casualty or taking;

(H)the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable governmental laws, rules and regulations (including, without limitation, all applicable environmental laws);

(I)such fire or other casualty or taking, as applicable, does not result in the loss of access to the Property or the related Improvements;

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(J)the Debt Service Coverage Ratio, after giving effect to the Restoration, shall be equal to or greater than 2.10:1.0;

(K)Borrower shall deliver or cause to be delivered to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, which budget should be consistent with restoration budgets of similar retail properties then owned and operated by nationally recognized owners and operators of retail properties located in the areas in which the Property is located; and

(L)the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s discretion to cover the cost of the Restoration.

(ii)The Net Proceeds shall be held by Lender in an interest bearing account and, until disbursed in accordance with the provisions of this Section 6.4(b), shall constitute additional security for the Debt and other obligations under the Loan Documents.  The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all materials installed and work and labor performed to be paid for out of the requested disbursement in connection with the Restoration have been performed, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy.

(iii)All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Casualty Consultant”), such review and acceptance not to be unreasonably withheld or delayed.  Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration.  The identity of the contractors, subcontractors and materialmen engaged in the Restoration, as well as the contracts under which they have been engaged, shall be subject to prior review and acceptance by Lender and the Casualty Consultant, such review and acceptance not to be unreasonably withheld or delayed.  All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be paid by Borrower.

(iv)In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Casualty Retainage.  The term “Casualty Retainage” shall mean an amount equal to

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ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until the Restoration has been completed.  The Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Section 6.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration.  The Casualty Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 6.4(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate governmental and quasi-governmental authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Casualty Retainage; provided, however, that Lender will release the portion of the Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company issuing the Title Insurance Policy, and Lender receives an endorsement to the Title Insurance Policy insuring the continued priority of the lien of the Mortgage and evidence of payment of any premium payable for such endorsement.  If required by Lender, the release of any such portion of the Casualty Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.

(v)Lender shall not be obligated to make disbursements of the Net Proceeds more frequently than once every calendar month.

(vi)If at any time the Net Proceeds or the undisbursed balance thereof shall not, in the reasonable opinion of Lender in consultation with the Casualty Consultant, be sufficient to pay in full the balance of the costs which are estimated by the Casualty Consultant to be incurred in connection with the completion of the Restoration, Borrower shall deposit the deficiency (the “Net Proceeds Deficiency”) with Lender before any further disbursement of the Net Proceeds shall be made.  The Net Proceeds Deficiency deposited with Lender shall be held by Lender and shall be disbursed for costs actually incurred in connection with the Restoration on the same conditions applicable to the disbursement of the Net Proceeds, and until so disbursed pursuant to this Section 6.4(b) shall constitute additional security for the Debt and other obligations under the Loan Documents.

(vii)The excess, if any, of the Net Proceeds and the remaining balance, if any, of the Net Proceeds Deficiency deposited with Lender after the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 6.4(b), and the receipt by Lender of evidence satisfactory to Lender that all costs incurred in connection with the Restoration have been paid in full, shall be remitted by Lender to Borrower, provided no Event of Default shall have

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occurred and shall be continuing under the Note, this Agreement or any of the other Loan Documents.

(c)All Net Proceeds not required (i) to be made available for the Restoration or (ii) to be returned to Borrower as excess Net Proceeds pursuant to Section 6.4(b)(vii) may be retained and applied by Lender toward the payment of the Debt whether or not then due and payable in such order, priority and proportions as Lender in its sole discretion shall deem proper (provided no Event of Default exists, such Borrower shall not be required to pay any Prepayment Consideration in connection with such payment), or, at the discretion of Lender, the same may be paid, either in whole or in part, to Borrower for such purposes as Lender shall designate, in its discretion.

(d)In the event of foreclosure of the Mortgage with respect to the Property, or other transfer of title to the Property in extinguishment in whole or in part of the Debt all right, title and interest of Borrower in and to the Policies that are not blanket Policies then in force concerning the Property and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure or Lender or other transferee in the event of such other transfer of title.

(e)Lender shall with reasonable promptness following any Casualty or Condemnation notify Borrower whether or not Net Proceeds are required to be made available to Borrower for restoration pursuant to this Section 6.4.  All Net Proceeds not required to be made available for Restoration shall be retained and applied by Lender in accordance with Section 2.3.2(a) hereof (a “Net Proceeds Prepayment”).  If such Net Proceeds Prepayment shall be equal to or greater than One Million Two Hundred Twenty-Five Thousand and No/100 Dollars ($1,225,000.00), Borrower shall have the right to elect to prepay the remaining outstanding principal balance of the Note (a “Casualty/Condemnation Prepayment”) in accordance with Section 2.3.2(b) hereof upon satisfaction of the following conditions: (i) within thirty (30) days following the date of the Net Proceeds Prepayment, Borrower shall provide Lender with written notice of Borrower’s intention to pay the Note in full, (ii) Borrower shall prepay the Note in accordance with Section 2.3.2(b) hereof on or before the second Payment Date occurring following the date of the Net Proceeds Prepayment, and (iii) no Event of Default shall exist on the date of such Casualty/Condemnation Prepayment.  Notwithstanding anything in Section 6.2 or Section 6.3 to the contrary, Borrower shall have no obligation to commence Restoration of the Property upon delivery of the written notice set forth in clause (i) of the preceding sentence (unless Borrower subsequently shall fail to satisfy the requirement of clause (ii) of the preceding sentence).

ARTICLE VII

RESERVE FUNDS

Section 7.1Required Repair Funds.

7.1.1Deposits.  Borrower shall perform the repairs at the Property, if any, as more particularly set forth on Schedule III hereto (such repairs hereinafter referred to as “Required Repairs”) within nine (9) months from the Closing Date, or such earlier time as

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specified on Schedule III.  If Borrower has not delivered to Lender evidence reasonably satisfactory to Lender that it has completed all Required Repairs on or before the date that is nine (9) months from the Closing Date, or such earlier time as specified on Schedule III,  Borrower shall deposit with Lender the amount for the Property set forth on such Schedule III hereto, if any (less the amount allocated to the performance of Required Repairs for which evidence of completion has been delivered to Lender), to perform the Required Repairs for the Property.  Amounts so deposited with Lender, if any, shall be held by Lender in an interest bearing account.  Amounts so deposited, if any, shall hereinafter be referred to as Borrower’s “Required Repair Fund” and the account, if any, in which such amounts are held shall hereinafter be referred to as Borrower’s “Required Repair Account”.  It shall be an Event of Default under this Agreement if Borrower does not either (i) does not deposit with Lender the Required Repair Fund as set forth above, or (ii) complete the Required Repairs at the Property within nine (9) months from the Closing Date.  Upon the occurrence of such an Event of Default, Lender, at its option, may withdraw all Required Repair Funds from the Required Repair Account and Lender may apply such funds either to completion of the Required Repairs at the Property or toward payment of the Debt in such order, proportion and priority as Lender may determine in its sole discretion.  Lender’s right to withdraw and apply Required Repair Funds shall be in addition to all other rights and remedies provided to Lender under this Agreement and the other Loan Documents.

7.1.2Release of Required Repair Funds.  Lender shall disburse to Borrower the Required Repair Funds from the Required Repair Account from time to time upon satisfaction by Borrower of each of the following conditions: (i) Borrower shall submit a written request for payment to Lender at least fifteen (15) days prior to the date on which Borrower requests such payment be made and specifies the Required Repairs to be paid, (ii) on the date such request is received by Lender and on the date such payment is to be made, no Default or Event of Default shall exist and remain uncured, (iii) Lender shall have received a certificate from Borrower (A) stating that all Required Repairs at the Property to be funded by the requested disbursement have been completed in good and workmanlike manner and in accordance with all applicable federal, state and local laws, rules and regulations, such certificate to be accompanied by a copy of any license, permit or other approval by any Governmental Authority required to commence and/or complete the Required Repairs, (B) identifying each Person that supplied materials or labor in connection with the Required Repairs performed at the Property to be funded by the requested disbursement under a contract in excess of $50,000, and (C) stating that each Person who has supplied materials or labor in connection with the Required Repairs to be funded by the requested disbursement has been paid in full or will be paid in full upon such disbursement, such certificate to be accompanied by lien waivers or other evidence of payment satisfactory to Lender, (iv) at Lender’s option, a title search for the Property indicating that the Property is free from all liens, claims and other encumbrances not previously approved by Lender, and (v) Lender shall have received such other evidence as Lender shall reasonably request that the Required Repairs at the Property to be funded by the requested disbursement have been completed and are paid for or will be paid upon such disbursement to Borrower.  Lender shall not be required to make disbursements from the Required Repair Account with respect to the Property more than once each calendar month and such disbursement shall be made only upon satisfaction of each condition contained in this Section 7.1.2.

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Section 7.2Tax and Insurance Escrow Fund.

Borrower shall pay to Lender on each Payment Date (a) one-twelfth of the Taxes that Lender estimates will be payable during the next ensuing twelve (12) months in order to accumulate with Lender sufficient funds to pay all such Taxes at least thirty (30) days prior to their respective due dates and (b) one-twelfth of the Insurance Premiums that Lender estimates will be payable for the renewal of the coverage afforded by the Policies upon the expiration thereof in order to accumulate with Lender sufficient funds to pay all such Insurance Premiums at least thirty (30) days prior to the expiration of the Policies, (said amounts in (a) and (b) above are hereinafter called the “Tax and Insurance Escrow Fund”).  The Tax and Insurance Escrow Fund and the payments of interest or principal or both, payable pursuant to the Note, shall be added together and shall be paid as an aggregate sum by Borrower to Lender.  Lender will apply the Tax and Insurance Escrow Fund to payments of Taxes and Insurance Premiums required to be made by Borrower pursuant to this Agreement and under the Mortgage.  In making any payment relating to the Tax and Insurance Escrow Fund, Lender may do so according to any bill, statement or estimate procured from the appropriate public office (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums) or from Borrower without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof, provided, however, Lender shall use reasonable efforts to pay such real property taxes sufficiently early to obtain the benefit of any available discounts of which it has knowledge.  If the amount of the Tax and Insurance Escrow Fund shall exceed the amounts due for Taxes and Insurance Premiums, Lender shall, in its sole discretion, return any excess to Borrower or credit such excess against future payments to be made to the Tax and Insurance Escrow Fund.  The Tax and Insurance Escrow Fund shall be held by Lender in an interest-bearing account and shall at Lender’s option be held in Eligible Account at an Eligible Institution.  Any interest earned on said account shall accrue in said account for the benefit of Borrower, but shall remain in and constitute part of the Tax and Insurance Escrow Fund, and shall be disbursed in accordance with the terms hereof.  Any amount remaining in the Tax and Insurance Escrow Fund after the Debt has been paid in full shall be returned to Borrower.  In allocating such excess, Lender may deal with the Person shown on the records of Lender to be the owner of the Property.  If at any time Lender reasonably determines that the Tax and Insurance Escrow Fund is not or will not be sufficient to pay Taxes or Insurance Premiums by the dates set forth above, Lender shall notify Borrower of such determination and Borrower shall increase its monthly payments to Lender by the amount that Lender estimates is sufficient to make up the deficiency at least thirty (30) days prior to delinquency of the Taxes or Insurance Premiums.

Notwithstanding anything to the contrary hereinbefore contained, in the event that Borrower provides (1) evidence satisfactory to Lender that the Property is insured in accordance with Section 6.1 of this Agreement and (2) evidence satisfactory to Lender that the Taxes for the Property have been paid in accordance with the requirements set forth in this Agreement, Lender will waive the requirement set forth herein for Borrower to make deposits into the Tax and Insurance Escrow Fund for the payment of Insurance Premiums and for payment of such Taxes, provided, however, Lender expressly reserves the right to require Borrower to make deposits to the Tax and Insurance Escrow Fund for the payment of Insurance Premiums if at any time the Property is not insured in accordance with Section 6.1 of this Agreement or Taxes are not paid in accordance with the requirements of this Agreement.

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Section 7.3Replacements and Replacement Reserve.

Section 7.3.1Replacement Reserve Fund.  Borrower shall pay to Lender on the Closing Date and on each Payment Date one twelfth of the amount (the “Replacement Reserve Monthly Deposit”) reasonably estimated by Lender in its sole discretion to be due for replacements and repairs required to be made to the Property during the calendar year (collectively, the “Replacements”), which Replacement Reserve Monthly Deposit shall be in an amount equal to no less than $0.15 per year per square foot of gross leasable area.  Amounts so deposited shall hereinafter be referred to as Borrower’s “Replacement Reserve Fund” and the account in which such amounts are held shall hereinafter be referred to as Borrower’s “Replacement Reserve Account”.  Lender may reassess its estimate of the amount necessary for the Replacement Reserve Fund from time to time, and may increase the monthly amounts required to be deposited into the Replacement Reserve Fund upon thirty (30) days notice to Borrower if Lender determines in its reasonable discretion that an increase is necessary to maintain the proper maintenance and operation of the Property.  Any amount held in the Replacement Reserve Account and allocated for the Property shall be retained by Lender in an interest bearing account, or, at the option of Lender, in an Eligible Account at an Eligible Institution; provided, however, that, any interest earned on said account shall accrue in said account for the benefit of Borrower, but shall remain in and constitute part of the Replacement Reserve Fund, and shall be disbursed in accordance with the terms hereof.

Notwithstanding anything to the contrary in this Section 7.3, Borrower shall not be required to make Replacement Reserve Monthly Deposits, provided that: (i) no Event of Default shall have occurred; and (ii) Borrower makes all necessary Replacements and otherwise maintains the Property to Lender’s satisfaction.  Upon notice from Lender following: (a) an Event of Default; or (b) the failure of Borrower to make necessary Replacements or otherwise maintain the Property to Lender’s satisfaction, Borrower shall begin to deposit the Replacement Reserve Monthly Deposit into the Replacement Reserve Fund beginning on the Payment Date (as defined herein) immediately following the date of such notice.

Section 7.3.2Disbursements from Replacement Reserve Account.

(a)Lender shall make disbursements from the Replacement Reserve Account to pay Borrower only for the costs of the Replacements.  Lender shall not be obligated to make disbursements from the Replacement Reserve Account to reimburse Borrower for the costs of routine maintenance to the Property or for costs which are to be reimbursed from the Required Repair Fund (if any).

(b)Lender shall, upon written request from Borrower and satisfaction of the requirements set forth in this Section 7.3.2, disburse to Borrower amounts from the Replacement Reserve Account necessary to pay for the actual approved costs of Replacements or to reimburse Borrower therefor, upon completion of such Replacements (or, upon partial completion in the case of Replacements made pursuant to Section 7.3.2(f)) as determined by Lender.  In no event shall Lender be obligated to disburse funds from the Replacement Reserve Account if a Default or an Event of Default exists.

(c)Each request for disbursement from the Replacement Reserve Account shall be in a form specified or approved by Lender and shall specify (i) the specific Replacements for which the disbursement is requested, (ii) the quantity and price of each item

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purchased, if the Replacement includes the purchase or replacement of specific items, (iii) the price of all materials (grouped by type or category) used in any Replacement other than the purchase or replacement of specific items, and (iv) the cost of all contracted labor or other services applicable to each Replacement for which such request for disbursement is made.  With each request Borrower shall certify that all Replacements have been made in accordance with all applicable Legal Requirements of any Governmental Authority having jurisdiction over the Property to which the Replacements are being provided and, unless Lender has agreed to issue joint checks as described below, each request shall include evidence of payment of all such amounts.  Each request for disbursement shall include copies of invoices for all items or materials purchased and all contracted labor or services provided.  Except as provided in Section 7.3.2(e), each request for disbursement from the Replacement.  Reserve Account shall be made only after completion of the Replacement for which disbursement is requested.  Borrower shall provide Lender evidence of completion satisfactory to Lender in its reasonable judgment.

(d)Borrower shall pay all invoices in connection with the Replacements with respect to which a disbursement is requested prior to submitting such request for disbursement from the Replacement Reserve Account or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with a Replacement.  In the case of payments made by joint check, Lender may require a waiver of lien from each Person receiving payment prior to Lender’s disbursement from the Replacement Reserve Account.  In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $100,000 for completion of its work or delivery of its materials.  Any lien waiver delivered hereunder shall conform to the requirements of applicable law and shall cover all work performed and materials supplied (including equipment and fixtures) for the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current reimbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request).

(e)If (i) the cost of a Replacement exceeds $100,000, (ii) the contractor performing such Replacement requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for reimbursement from the Replacement Reserve Account may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of the work, (B) the materials for which the request is made are on site at the Property and are properly secured or have been installed in the Property, (C) all other conditions in this Agreement for disbursement have been satisfied, (D) funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required, and (E) if required by Lender, each contractor or subcontractor receiving payments under such contract shall provide a waiver of lien with respect to amounts which have been paid to that contractor or subcontractor.

(f)Borrower shall not make a request for disbursement from the Replacement Reserve Account more frequently than once in any calendar month and (except in connection

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with the final disbursement) the total cost of all Replacements in any request shall not be less than $5,000.00.

Section 7.3.3Performance of Replacements.

(a)Borrower shall make Replacements when required in order to keep the Property in condition and repair consistent with other first class, full service retail properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Properly or any portion thereof from deteriorating.  Borrower shall complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.

(b)Lender reserves the right, at its option, to approve all contracts or work orders with materialmen, mechanics, suppliers, subcontractors, contractors or other parties providing labor or materials under contracts for an amount in excess of $100,000 in connection with the Replacements performed by Borrower.  Upon Lender’s request, Borrower shall assign any contract or subcontract to Lender.

(c)In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner, and such failure continues to exist for more than thirty (30) days after notice from Lender to Borrower, Lender shall have the option to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.

(d)In order to facilitate Lender’s completion or making of the Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right to enter onto the Property and perform any and all work and labor necessary to complete or make the Replacements and/or employ watchmen to protect the Property from damage, subject to the rights of Tenants.  All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage.  For this purpose Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake the Replacements in the name of Borrower.  Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked but shall only be effective following an Event of Default.  Borrower empowers said attorney-in-fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing the Replacements; (ii) to make such additions, changes and corrections to the Replacements as shall be necessary or desirable to complete the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the

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rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.

(e)Nothing in this Section 7.3.3 shall:  (i) make Lender responsible for making or completing the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.

(f)Borrower shall permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of tenants under their Leases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.3.3.  Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.

(g)Lender may require an inspection of the Property at Borrower’s expense prior to making a monthly disbursement in excess of $10,000 from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought.  Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account.  Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.

(h)The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialman’s or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).

(i)Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the Property effective to the date of the disbursement, which search shows that no mechanic’s or materialmen’s liens or other liens of any nature have been placed against the Property since the date of recordation of the Mortgage and that title to the Property is free and clear of all Liens (other than the lien of the Mortgage and any other Liens previously approved in writing by Lender, if any).

(j)All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.

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(k)In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s compensation insurance, builder’s risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement.  All such policies shall be in form and amount reasonably satisfactory to Lender.  All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed.  Certified copies of such policies shall be delivered to Lender.

Section 7.3.4Failure to Make Replacements.  (a) It shall be an Event of Default under this Agreement if Borrower fails to comply with any provision of this Section 7.3 and such failure is not cured within thirty (30) days after notice from Lender; provided, however, if such failure is not capable of being cured within said thirty (30) day period, then provided that Borrower commences action to complete such cure and thereafter diligently proceeds to complete such cure, such thirty (30) day period shall be extended for such time as is reasonably necessary for Borrower, in the exercise of due diligence, to cure such failure, but such additional period of time shall not exceed sixty (60) days.  Upon the occurrence of such an Event of Default, Lender may use the Replacement Reserve Fund (or any portion thereof) for any purpose, including but not limited to completion of the Replacements as provided in Section 7.3.3, or for any other repair or replacement to the Property or toward payment of the Debt in such order, proportion and priority as Lender may determine in its sole discretion.  Lender’s right to withdraw and apply the Replacement Reserve Funds shall be in addition to all other rights and remedies provided to Lender under this Agreement and the other Loan Documents.

(b)     Nothing in this Agreement shall obligate Lender to apply all or any portion of the Replacement Reserve Fund on account of an Event of Default to payment of the Debt or in any specific order or priority.

Section 7.3.5Balance in the Replacement Reserve Account.  The insufficiency of any balance in the Replacement Reserve Account shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.

Section 7.3.6Indemnification.  Borrower shall indemnify Lender and hold Lender harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys fees and expenses) arising from or in any way connected with the performance of the Replacements unless the same are solely due to gross negligence or willful misconduct of Lender.  Borrower shall assign to Lender all rights and claims Borrower may have against all persons or entities supplying labor or materials in connection with the Replacements; provided, however, that Lender may not pursue any such right or claim unless an Event of Default has occurred and remains uncured.

Section 7.4Lease-Up Reserve Letter of Credit.

As additional security for the Loan, Borrower has contemporaneously herewith delivered to Lender a clean, unconditional and irrevocable “evergreen” letter of credit in the amount of $3,429,884.00 (the “Letter of Credit”), which Letter of Credit is equal to 55% of the contract earnout reserve established under the Borrower’s Agreement of Sale dated April 3, 2004, as

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amended by Amendment to Agreement of Sale dated November 8, 2004, in respect of certain spaces at the Property currently leased to the Lease-Up Reserve Tenants.  The Letter of Credit has a stated expiration of not earlier than one (1) year after the date hereof and has an “evergreen” feature, whereby the Letter of Credit is automatically renewed for additional one-year periods unless the issuer gives to Lender not less than sixty (60) days prior notice that it shall not renew the Letter of Credit.

The parties agree that (i) if an Event of Default shall occur hereunder, or (ii) if, within the 30 day period preceding the expiration date of the Letter of Credit (as the same may have been reduced, modified, amended or renewed as permitted hereunder), an amendment, replacement or renewal of such letter of credit satisfactory in all respects to Lender in its sole discretion has not been delivered to Lender( the preceding items (i) and (ii) above being referred to herein as the “Letter of Credit Drawdown Conditions”), then Lender shall be entitled, in its sole discretion, to (A) draw down the Letter of Credit without notice to Borrower, and apply the proceeds thereof to the prepayment of the Debt in whatever order Lender directs or (B) continue to hold the Letter of Credit as additional collateral security for the Loan; provided, however, if the Event of Default results from Borrower’s failure to timely remit any installment of the Monthly Debt Service Payment Amount as and when due, then Lender shall not draw down the Letter of Credit until the expiration of three (3) days following Borrower’s receipt of written notice of such Event of Default.  If Lender elects to draw down the Letter of Credit and apply the proceeds thereof toward the prepayment of the Debt, Borrower shall, upon demand, pay to Lender (in addition to the amount of the letter of credit so drawn and applied) a Prepayment Consideration in an amount calculated pursuant to Section 2.3.1 (a) hereof and based on the amount of the letter of credit so drawn down and applied.  Borrower’s failure to pay the foregoing Prepayment Consideration shall be an Event of Default hereunder.

Borrower may, from time to time, reduce the amount of the Letter of Credit as follows:

(i) During the Contract of Sale Earnout Period, Borrower may submit to Lender, not more frequently than once in any calendar month, a Tenant Reserve Earnout Conditions Certificate certifying (A) that the Tenant Reserve Earnout Conditions for a particular Lease-Up Reserve Tenant have been satisfied and (B) the purchase price attributable to the applicable Lease-Up Reserve Tenant’s Space, such purchase price to be reasonably determined by Borrower based upon a capitalization rate tied to the rental income derived from the applicable lease.  Lender shall, within ten (10) business days following its receipt of such Tenant Reserve Earnout Conditions Certificate and certification regarding the purchase price, either (A) forward to Borrower a written consent authorizing the reduction of the Letter of Credit by an amount equal to fifty five percent (55%) of the purchase price as certified by Borrower as attributable to the applicable Lease-Up Reserve Tenant’s space or (B) forward to Borrower a written explanation substantiating its refusal to permit the aforesaid reduction together, if applicable, with a request for such additional documentation and/or information as Lender shall require to renew its review of the Tenant Reserve Earnout Conditions Certificate.  As a condition to Lender’s consent to the aforesaid fifty five percent (55%) reduction in the Letter of Credit, Borrower shall furnish Lender with documentation evidencing that the purchase price for the applicable Lease-Up Reserve Tenant’s space has actually been paid by the Borrower.

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(ii) Following the expiration of the Contract of Sale Earnout Period, Borrower may submit to Lender, not more frequently than once in any calendar month, a Tenant Reserve Earnout Conditions Certificate certifying (A) that the Tenant Reserve Earnout Conditions for a particular Lease-Up Reserve Tenant have been satisfied and (B) the annual base rent for the applicable Lease-Up Reserve Tenant’s space.  Lender shall, within ten (10) business days following its receipt of such Tenant Reserve Earnout Conditions Certificate and statement regarding annual base rent, either (A) forward to Borrower a written consent authorizing the reduction of the Letter of Credit by an amount equal to fifty five percent (55%) of the annual base rent for the applicable Lease-Up Reserve Tenant’s space divided by .079296 or (B) forward to Borrower a written explanation substantiating its refusal to permit the aforesaid reduction together, if applicable, with a request for such additional documentation and/or information as Lender shall require to renew its review of the Tenant Reserve Earnout Conditions Certificate.

The Letter of Credit, as the same may have been reduced, amended, renewed or modified as permitted hereunder, shall at all times be acceptable in form to Lender and issued by a bank with a rating of not less than “A” by Standard & Poor’s Ratings Services.

Section 7.5Intentionally Omitted.

Section 7.6Intentionally Omitted.

Section 7.7Reserve Funds. Generally.

7.7.1Borrower grants to Lender a first-priority perfected security interest in each of the Reserve Funds and any and all monies now or hereafter deposited in each Reserve Fund as additional security for payment of the Debt.  Until expended or applied in accordance herewith, the Reserve Funds shall constitute additional security for the Debt.

7.7.2Upon the occurrence of an Event of Default, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in any or all of the Reserve Funds to the payment of the Debt in any order in its sole discretion.

7.7.3The Reserve Funds shall not constitute trust funds and may be commingled with other monies held by Lender.

7.7.4Intentionally omitted.

7.7.5Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any Reserve Fund or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.

7.7.6Lender shall not be liable for any loss sustained on the investment of any funds constituting the Reserve Funds unless occasioned by the gross negligence or willful misconduct of Lender.

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7.7.7Upon payment in full of the Debt and performance of all other obligations under this Agreement and the other Loan Documents, Lender shall disburse to Borrower all remaining Reserve Funds.

ARTICLE VIII

DEFAULTS

Section 8.lEvent of Default.  (a) Each of the following events shall constitute an event of default hereunder (an “Event of Default”):

(i)if any portion of the Debt is not paid on the applicable due date;

(ii)if any of the Taxes or Other Charges are not paid prior to the date when the same become delinquent, except to the extent that Borrower is contesting same in accordance with the terms of Section 5.1.2 hereof, or there are sufficient funds in the Tax and Insurance Escrow Fund to pay such Taxes or Other Charges and Lender fails to or refuses to release the same from the Tax and Insurance Escrow Fund;

(iii)if the Policies are not kept in full force and effect, or if certified copies of the Policies are not delivered to Lender within ten (10) days of request;

(iv)if Borrower transfers or encumbers any portion of the Property without Lender’s prior written consent (to extent such consent is required) or otherwise violates the provisions of Section 5.2.13 of this Loan Agreement;

(v)if any material representation or warranty made by Borrower herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made;

(vi)if Borrower or indemnitor or any guarantor under any guaranty or indemnity issued in connection with the Loan shall make an assignment for the benefit of creditors;

(vii)if a receiver, liquidator or trustee shall be appointed for Borrower or any guarantor or indemnitor under any guarantee or indemnity issued in connection with the Loan or if Borrower or such guarantor or indemnitor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or such guarantor or indemnitor, or if any proceeding for the dissolution or liquidation of Borrower or such guarantor or indemnitor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by Borrower or such guarantor or indemnitor, upon the same not being discharged, stayed or dismissed within one hundred eighty (180) days;

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(viii)if Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;

(ix)if Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 hereof;

(x)with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;

(xi)if any of the assumptions contained in any substantive non-consolidation opinion required to be delivered in connection herewith are or shall become untrue in any material respect;

(xii)if Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xi) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such 30-day period and provided further that Borrower shall have commenced to cure such Default within such 30-day period and thereafter diligently and expeditiously proceeds to cure the same, such 30-day period shall be extended for such time as is reasonably necessary for Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred eighty (180) days; or

(xiii)if there shall be default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to Borrower or the Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt.

(b)Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi), (vii) or (viii) above) and at any time thereafter Lender may, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in the Property, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents against Borrower and the Property, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi), (vii) or (viii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.

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Section 8.2Remedies.  (a) Upon the occurrence of an Event of Default, all or any one or more of the rights, powers, privileges and other remedies available to Lender against Borrower under this Agreement or any of the other Loan Documents executed and delivered by, or applicable to, Borrower or at law or in equity may be exercised by Lender at any time and from time to time, whether or not all or any of the Debt shall be declared due and payable, and whether or not Lender shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Loan Documents with respect to the Property.  Any such actions taken by Lender shall be cumulative and concurrent and may be pursued independently, singly, successively, together or otherwise, at such time and in such order as Lender may determine in its sole discretion, to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of Lender permitted by law, equity or contract or as set forth herein or in the other Loan Documents.  Without limiting the generality of the foregoing, Borrower agrees that if an Event of Default is continuing (i) Lender is not subject to any “one action” or “election of remedies” law or rule, and (ii) all liens and other rights, remedies or privileges provided to Lender shall remain in full force and effect until Lender has exhausted all of its remedies against the Property and the Mortgage has been foreclosed, sold and/or otherwise realized upon in satisfaction of the Debt or the Debt has been paid in full.

(b)Lender shall have the right from time to time to partially foreclose the Mortgage in any manner and for any amounts secured by the Mortgage then due and payable as determined by Lender in its sole discretion including, without limitation, the following circumstances: (i) in the event Borrower defaults beyond any applicable grace period in the payment of one or more scheduled payments of principal and interest, Lender may foreclose the Mortgage to recover such delinquent payments, or (ii) in the event Lender elects to accelerate less than the entire outstanding principal balance of the Loan, Lender may foreclose the Mortgage to recover so much of the principal balance of the Loan as Lender may accelerate and such other sums secured by the Mortgage as Lender may elect.  Notwithstanding one or more partial foreclosures, the Property shall remain subject to the Mortgage to secure payment of sums secured by the Mortgage and not previously recovered.

(c)Lender shall have the right from time to time to sever the Note and the other Loan Documents into one or more separate notes, mortgages and other security documents (the “Severed Loan Documents”) in such denominations as Lender shall determine in its sole discretion for purposes of evidencing and enforcing its rights and remedies provided hereunder.  Borrower shall execute and deliver to Lender from time to time, promptly after the request of Lender, a severance agreement and such other documents as Lender shall request in order to effect the severance described in the preceding sentence, all in form and substance reasonably satisfactory to Lender.  Borrower hereby absolutely and irrevocably appoints Lender following the occurrence of an Event of Default as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect the aforesaid severance, Borrower ratifying all that its said attorney shall do by virtue thereof; provided, however, Lender shall not make or execute any such documents under such power until three (3) days after notice has been given to Borrower by Lender of Lender’s intent to exercise its rights under such power.  Borrower shall not be obligated to pay any costs or expenses incurred in connection with the preparation, execution, recording or filing of the Severed Loan Documents, and the Severed Loan Documents shall not contain any

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representations, warranties or covenants not contained in the Loan Documents and any such representations and warranties contained in the Severed Loan Documents will be given by Borrower only as of the Closing Date.

(d)As used in this Section 8.2, a “foreclosure” shall include any sale by power of sale.

Section 8.3Remedies Cumulative; Waivers.  The rights, powers and remedies of Lender under this Agreement shall be cumulative and not exclusive of any other right, power or remedy which Lender may have against Borrower pursuant to this Agreement or the other Loan Documents, or existing at law or in equity or otherwise.  Lender’s rights, powers and remedies may be pursued singly, concurrently or otherwise, at such time and in such order as Lender may determine in Lender’s sole discretion.  No delay or omission to exercise any remedy, right or power accruing upon an Event of Default shall impair any such remedy, right or power or shall be construed as a waiver thereof, but any such remedy, right or power may be exercised from time to time and as often as may be deemed expedient.  A waiver of one Default or Event of Default with respect to Borrower shall not be construed to be a waiver of any subsequent Default or Event of Default by Borrower or to impair any remedy, right or power consequent thereon.

ARTICLE IX

SPECIAL PROVISIONS

Section 9.1Sale of Notes and Securitization.  At the request of the holder of the Note and, to the extent not already required to be provided by Borrower under this Agreement, Borrower shall cooperate with Lender to allow Lender to satisfy the market standards to which the holder of the Note customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with the sale of the Note or participations therein or the first successful securitization (such sale and/or securitization, the “Securitization”) of rated single or multi-class securities (the “Securities”) secured by or evidencing ownership interests in the Note and the Mortgage.  In this regard Borrower shall:

(a)(i)provide such financial and other information with respect to the Property, Borrower and the Manager, (ii) provide budgets relating to the Property and (iii) to perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of the Property, as may be reasonably requested by the holder of the Note or the Rating Agencies or as may be necessary or appropriate in connection with the Securitization (the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to Lender and the Rating Agencies;

(b)cause counsel to render opinions, which may be relied upon by the holder of the Note, the Rating Agencies and their respective counsel, agents and representatives, as to non-consolidation, fraudulent conveyance, and true sale and/or lease or any other opinion

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customary in securitization transactions, which counsel and opinions shall be reasonably satisfactory to the holder of the Note and the Rating Agencies;

(c)make such representations and warranties as of the closing date of the Securitization with respect to the Property, Borrower, and the Loan Documents as are consistent with the representations and warranties made in the Loan Documents; and

(d)execute such amendments to the Loan Documents and organizational documents as may be reasonably requested by the holder of the Note or the Rating Agencies or otherwise to effect the Securitization; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of the Loan.

All material out-of-pocket third party costs and expenses incurred by Borrower in connection with complying with requests made under this Section 9.1 shall be paid by Lender.

Section 9.2Securitization.  Borrower understands that certain of the Provided Information may be included in disclosure documents in connection with the Securitization, including, without limitation, a prospectus, prospectus supplement or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization.  In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects.

Section 9.3Rating Surveillance.  Lender, at its option, may retain the Rating Agencies to provide rating surveillance services on any certificates issued in a Securitization.  Such rating surveillance will be at the expense of Lender (the “Rating Surveillance Charge”).

Section 9.4Exculpation.  Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Rents following an Event of Default, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents following an Event of Default and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against

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Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents.  The provisions of this section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Mortgage; (c) affect the validity or enforceability of or any guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of any of the Assignment of Leases following an Event of Default; (f) constitute a prohibition against Lender commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:

(i)fraud or intentional misrepresentation by Borrower or any guarantor in connection with the Loan;

(ii)the gross negligence or willful misconduct of Borrower;

(iii)material physical waste of the Property;

(iv)the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;

(v)the removal or disposal of any portion of the Property after an Event of Default;

(vi)the misapplication or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property which are not applied by Borrower in accordance with this Agreement, (B) any awards or other amounts received in connection with the condemnation of all or a portion of the Property which are not applied by Borrower in accordance with this Agreement, or (C) any Rents following an Event of Default;

(vii)failure to pay charges for labor or materials or other charges that can create liens on any portion of the Property;

(viii)any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;

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(ix)obligations imposed pursuant to that certain Development Agreement dated as of August 10, 2004 among Kimco Tampa, L.P., Pasco County, Florida, Northwood Centers, LLP, MJG Ventures, Ltd. and Spanos Corporation for the Northwood Development of Regional Impact No. 119, and that certain Resolution (04-205) Amending the Development Order for the Northwood Development of Regional Impact (86-17).

Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) the Debt shall be fully recourse to the Borrower and (B) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured by the Mortgage or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents in the event that the (1) first full monthly payment under the Note is not paid within five (5) days of notice that such payment is late (provided, however, that such grace period relates only to the recourse trigger described in this paragraph), or (II) failure of Borrower to permit on-site inspections of the Property subject to the rights of Tenants and any applicable cure period set forth in the Loan Documents, to provide financial information as required under the Loan Documents subject to any applicable cure period (except for financial information required to be delivered by a tenant pursuant to the applicable Lease that has not been delivered to Borrower, provided Borrower has requested such financial information from such tenant), or to comply with Section 4.1.30 hereof, or (III) failure of Borrower to obtain Lender’s prior written consent (to extent such consent is required) to any subordinate financing or other voluntary lien encumbering the Property, or (IV) failure of Borrower to obtain Lender’s prior written consent to any assignment, transfer or conveyance of the Property, or any portion thereof, or any interest therein as required by this Agreement.  Notwithstanding the provision set forth in clause (III) of this paragraph, a voluntary lien other than a lien securing an extension of credit filed against the Property shall not constitute a recourse trigger for purposes of this paragraph provided such lien (A) is fully bonded to the satisfaction of Lender and discharged of record within ninety (90) days of filing, or (B) within such ninety (90) day period, Lender receives affirmative title insurance from the title insurance company insuring the lien of the Mortgage that such lien is subject and subordinate to the lien of the Mortgage and no enforcement action is commenced by the applicable lien holder.

Section 9.5Termination of Manager.  If (a) the amounts evidenced by the Note have been accelerated pursuant to Section 8.1(b) hereof, (b) the Manager shall become insolvent, (c) the Manager is in default under the terms of the Management Agreement beyond any applicable grace or cure period, (d) Manager is not managing the Property in accordance with the management practices of nationally recognized management companies managing similar properties in locations comparable to those of the Property or the Debt Service Coverage Ratio for the Property for the preceeding twelve month period is less than or equal to 2.10  to 1.0, or (e) if Manager shall assign the Management Agreement without Lender’s consent (if such consent is required pursuant to the Assignment and Subordination of Management Agreement between Manager, Lender and Borrower) then, in the case of (a), (b), (c), (d) or (e), Borrower shall, at the request of Lender, terminate the Management Agreement and replace the Manager with a manager reasonably approved by Lender on terms and conditions reasonably satisfactory to Lender, it being understood and agreed that the management fee for such replacement manager shall not exceed then prevailing market rates.  In addition and without limiting the rights of

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Lender hereunder or under any of the other Loan Documents, in the event that (i) the Management Agreement is terminated, (ii) the Manager no longer manages the Property, or (iii) a receiver, liquidator or trustee shall be appointed for Manager or if Manager shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Manager, or if any proceeding for the dissolution or liquidation of Manager shall be instituted, then Borrower (at Borrower’s sole cost and expense) shall immediately, in its name, establish new deposit accounts separate from any other Person with a depository satisfactory to Lender into which all Rents and other income from the Property shall be deposited and shall grant Lender a first priority security interest in such account pursuant to documentation satisfactory in form and substance to Lender.

Section 9.6Servicer.  At the option of Lender, the Loan may be serviced by a servicer/trustee (the “Servicer”) selected by Lender and Lender may delegate all or any portion of its responsibilities under this Agreement and the other Loan Documents to the Servicer pursuant to a servicing agreement (the “Servicing Agreement”) between Lender and Servicer.  Lender shall be responsible for any set-up fees or any other costs relating to or arising under the Servicing Agreement.

Section 9.7Splitting the Loan.  At the election of Lender in its sole discretion, the Loan or any individual Note making up the Loan shall be split and severed into two or more loans which, at Lender’s election, shall not be cross-collateralized or cross-defaulted with each other.  Borrower hereby agrees to deliver to Lender to effectuate such severing of the Loan or any individual Note, as the case may be, as reasonably requested by Lender, (a) additional executed documents, or amendments and modifications to the applicable Loan Documents, (b) new opinions or updates to the opinions delivered to Lender in connection with the closing of the Loan, (c) endorsements and/or updates to the title insurance policies delivered to Lender in connection with the closing of the Loan, and (d) any other certificates, instruments and documentation reasonably determined by Lender as necessary or appropriate to such severance (the items described in subsections (a) through (d) collectively hereinafter shall be referred to as “Severing Documentation”), which Severing Documentation shall be acceptable to Lender in form and substance in its reasonable discretion.  Lender hereby agrees to be responsible for all reasonable third-party expenses incurred in connection with the preparation and delivery of the Severing Documentation and the effectuation of the uncrossing of the Loan from the additional Loans.  Borrower hereby acknowledges and agrees that upon such severing of the Loan, Lender may effect, in its sole discretion, one or more Securitizations of which the severed loans may be a part.

ARTICLE X

MISCELLANEOUS

Section 10.1Survival.  This Agreement and all covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the making by Lender of the Loan and the execution and delivery to Lender of the Note, and shall continue in full force and effect so long as all or any of the Debt is outstanding and unpaid unless a longer period is expressly set forth herein or in the other Loan Documents.

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Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the legal representatives, successors and assigns of such party.  All covenants, promises and agreements in this Agreement, by or on behalf of Borrower, shall inure to the benefit of the legal representatives, successors and assigns of Lender.

Section 10.2Lender’s Discretion.  Whenever pursuant to this Agreement, Lender exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Lender, the decision of Lender to approve or disapprove or to decide whether arrangements or terms are satisfactory or not satisfactory shall (except as is otherwise specifically herein provided) be in the sole discretion of Lender and shall be final and conclusive.

Section 10.3Governing Law.  THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT ENTERED INTO PURSUANT TO THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND SHALL IN ALL RESPECTS BE GOVERNED, CONSTRUED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND APPLICABLE FEDERAL LAWS.

Section 10.4Modification, Waiver in Writing.  No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement, or of the Note, or of any other Loan Document, nor consent to any departure by Borrower therefrom, shall in any event be effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given.  Except as otherwise expressly provided herein, no notice to, or demand on Borrower, shall entitle Borrower to any other or future notice or demand in the same, similar or other circumstances.

Section 10.5Delay Not a Waiver.  Neither any failure nor any delay on the part of Lender in insisting upon strict performance of any term, condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under the Note or under any other Loan Document, or any other instrument given as security therefor, shall operate as or constitute a waiver thereof, nor shall a single or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege.  In particular, and not by way of limitation, by accepting payment after the due date of any amount payable under this Agreement, the Note or any other Loan Document, Lender shall not be deemed to have waived any right either to require prompt payment when due of all other amounts due under this Agreement, the Note or the other Loan Documents, or to declare a default for failure to effect prompt payment of any such other amount.

Section 10.6Notices.  All notices, consents, approvals and requests required or permitted hereunder or under any other Loan Document shall be given in writing and shall be effective for all purposes if hand delivered or sent by (a) certified or registered United States mail, postage prepaid, return receipt requested or (b) expedited prepaid delivery service, either commercial or United States Postal Service, with proof of attempted delivery, and by telecopier (with answer back acknowledged), addressed as follows (or at such other address and Person as shall be designated from time to time by any party hereto, as the case may be, in a written notice to the other parties hereto in the manner provided for in this Section):

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If to Lender:

Nomura Credit & Capital Inc.

Two World Financial Center

Building B

New York, New York 10281

with a copy to:

ArCap Servicing, Inc.

5605 N. MacArthur Blvd.

Suite 950

Irving TX 75038

Attn:  Clyde Greenhouse

or any other servicer of the Loan

If to Borrower:

INLAND WESTERN WESLEY CHAPEL NORTHWOODS, L.L.C.

2901 Butterfield Road, Oak Brook, Illinois 60523

with a copy to:

The Inland Real Estate Group, Inc.

2901 Butterfield Road

Oak Brook, IL 60523

Attention: Robert Baum

and with a copy to:

Inland Retail Real Estate Trust, Inc.

2901 Butterfield Road

Oak Brook, IL 60523

Attention: Roberta Matlin

A notice shall be deemed to have been given:  in the case of hand delivery, at the time of delivery; in the case of registered or certified mail, when delivered or the first attempted delivery on a Business Day; or in the case of expedited prepaid delivery and telecopy, upon the first attempted delivery on a Business Day.

Section 10.7Trial by Jury.  BORROWER AND LENDER HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR

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OTHER ACTION ARISING IN CONNECTION THEREWITH.  THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE.  LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER AND LENDER.

Section 10.8Headings.  The Article and/or Section headings and the Table of Contents in this Agreement are included herein for convenience of reference only and shall not constitute apart of this Agreement for any other purpose.

Section 10.9Severability.  Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Section 10.10         Preferences.  Lender shall have the continuing and exclusive right to apply or reverse and reapply any and all payments by Borrower to any portion of the obligations of Borrower hereunder.  To the extent Borrower makes a payment or payments to Lender, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or proceeds received, the obligations hereunder or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by Lender.

Section 10.11         Waiver of Notice.  Borrower shall not be entitled to any notices of any nature whatsoever from Lender except with respect to matters for which this Agreement or the other Loan Documents specifically and expressly provide for the giving of notice by Lender to Borrower and except with respect to matters for which Borrower is not, pursuant to applicable Legal Requirements, permitted to waive the giving of notice.  Borrower hereby expressly waives the right to receive any notice from Lender with respect to any matter for which this Agreement or the other Loan Documents do not specifically and expressly provide for the giving of notice by Lender to Borrower.

Section 10.12         Remedies of Borrower.  In the event that a claim or adjudication is made that Lender or its agents have acted unreasonably or unreasonably delayed acting in any case where by law or under this Agreement or the other Loan Documents, Lender or such agent, as the case may be, has an obligation to act reasonably or promptly, Borrower agrees that neither Lender nor its agents shall be liable for any monetary damages, and Borrower’s sole remedies shall be limited to commencing an action seeking injunctive relief or declaratory judgment.  The parties hereto agree that any action or proceeding to determine whether Lender has acted reasonably shall be determined by an action seeking declaratory judgment.

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Section 10.13         Expenses; Indemnity.

(a)Borrower covenants and agrees to pay or, if Borrower fails to pay, to reimburse, Lender upon receipt of written notice from Lender for all reasonable costs and expenses (including reasonable attorneys’  fees and disbursements) incurred by Lender in connection with (i) the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby and thereby and all the costs of furnishing all opinions by counsel for Borrower (including without limitation any opinions requested by Lender as to any legal matters arising under this Agreement or the other Loan Documents with respect to the Property); (ii) Borrower’s ongoing performance of and compliance with Borrower’s respective agreements and covenants contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date, including, without limitation, confirming compliance with environmental and insurance requirements; (iii) Lender’s ongoing performance and compliance with all agreements and conditions contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date; (iv) except as otherwise provided in this Agreement, the negotiation, preparation, execution, delivery and administration of any consents, amendments, waivers or other modifications to this Agreement and the other Loan Documents and any other documents or matters reasonably requested by Lender; (v) securing Borrower’s compliance with any requests made pursuant to the provisions of this Agreement; (vi) the filing and recording fees and expenses, title insurance and reasonable fees and expenses of counsel for providing to Lender all required legal opinions, and other similar expenses incurred in creating and perfecting the Liens in favor of Lender pursuant to this Agreement and the other Loan Documents; (vii) enforcing or preserving any rights, in response to third party claims or the prosecuting or defending of any action or proceeding or other litigation, in each case against, under or affecting Borrower, this Agreement, the other Loan Documents, the Property, or any other security given for the Loan; and (viii) enforcing any obligations of or collecting any payments due from Borrower under this Agreement, the other Loan Documents or with respect to the Property or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or of any insolvency or bankruptcy proceedings; provided, however, that Borrower shall not be liable for the payment of any such costs and expenses to the extent the same arise by reason of the gross negligence, illegal acts, fraud or willful misconduct of Lender.

(b)Borrower shall indemnify, defend and hold harmless Lender from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for Lender in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not Lender shall be designated a party thereto), that may be imposed on, incurred by, or asserted against Lender in any manner relating to or arising out of (i) any breach by Borrower of its obligations under, or any material misrepresentation by Borrower contained in, this Agreement or the other Loan Documents, or (ii) the use or intended use of the proceeds of the Loan (collectively, the “Indemnified Liabilities”); provided, however, that Borrower shall not have any obligation to Lender hereunder to the extent that such Indemnified Liabilities arise from the gross negligence, illegal acts, fraud or willful misconduct of Lender.  To the extent that the undertaking to indemnify, defend and hold harmless set forth in the preceding sentence may

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be unenforceable because it violates any law or public policy, Borrower shall pay the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Lender.

Section 10.14Schedules Incorporated.  The Schedules annexed hereto are hereby incorporated herein as a part of this Agreement with the same effect as if set forth in the body hereof.

Section 10.15Offsets, Counterclaims and Defenses.  Any assignee of Lender’s interest in and to this Agreement, the Note and the other Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses which are unrelated to such documents which Borrower may otherwise have against any assignor of such documents, and no such unrelated counterclaim or defense shall be interposed or asserted by Borrower in any action or proceeding brought by any such assignee upon such documents and any such right to interpose or assert any such unrelated offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by Borrower.

Section 10.16No Joint Venture or Partnership; No Third Party Beneficiaries.

(a)Borrower and Lender intend that the relationships created hereunder and under the other Loan Documents be solely that of borrower and lender.  Nothing herein or therein is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower and Lender nor to grant Lender any interest in the Property other than that of mortgagee, beneficiary or lender.

(b)This Agreement and the other Loan Documents are solely for the benefit of Lender and Borrower and nothing contained in this Agreement or the other Loan Documents shall be deemed to confer upon anyone other than Lender and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or therein.  All conditions to the obligations of Lender to make the Loan hereunder are imposed solely and exclusively for the benefit of Lender and no other Person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lender will refuse to make the Loan in the absence of strict compliance with any or all thereof and no other Person shall under any circumstances be deemed to be a beneficiary of such conditions, any or all of which may be freely waived in whole or in part by Lender if, in Lender’s sole discretion.  Lender deems it advisable or desirable to do so.

Section 10.17Publicity.  All news releases, publicity or advertising by Borrower or their Affiliates through any media intended to reach the general public which refers to the Loan Documents or the financing evidenced by the Loan Documents, to Lender, Nomura Credit & Captial Inc., or any of their Affiliates shall be subject to the prior written approval of Lender.  All news releases, publicity or advertising by Lender through any media intended to reach the general public which refers solely to the Borrower or to the Loan made by the Lender to the Borrower shall be subject to the prior written approval of Borrower, provided however, the foregoing shall not apply to Provided Information included in disclosure documents in connection with a Securitization.

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Section 10.18Waiver of Marshalling of Assets.  To the fullest extent permitted by law, Borrower, for itself and its successors and assigns, waives all rights to a marshalling of the assets of Borrower, Borrower’s partners and others with interests in Borrower, and of the Property, or to a sale in inverse order of alienation in the event of foreclosure of the Mortgage or sale of the Property by power of sale, and agrees not to assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce or affect the right of Lender under the Loan Documents to a sale of the Property for the collection of the Debt without any prior or different resort for collection or of the right of Lender to the payment of the Debt out of the net proceeds of the Property in preference to every other claimant whatsoever.

Section 10.19Waiver of Counterclaim.  Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Lender or its agents.

Section 10.20Conflict; Construction of Documents; Reliance.  In the event of any conflict between the provisions of this Loan Agreement and any of the other Loan Documents, the provisions of this Loan Agreement shall control.  The parties hereto acknowledge that they were represented by competent counsel in connection with the negotiation, drafting and execution of the Loan Documents and that such Loan Documents shall not be subject to the principle of construing their meaning against the party which drafted same.  Borrower acknowledges that, with respect to the Loan, Borrower shall rely solely on its own judgment and advisors in entering into the Loan without relying in any manner on any statements, representations or recommendations of Lender or any parent, subsidiary or Affiliate of Lender.  Lender shall not be subject to any limitation whatsoever in the exercise of any rights or remedies available to it under any of the Loan Documents or any other agreements or instruments which govern the Loan by virtue of the ownership by it or any parent, subsidiary or Affiliate of Lender of any equity interest any of them may acquire in Borrower, and Borrower hereby irrevocably waives the right to raise any defense or take any action on the basis of the foregoing with respect to Lender’s exercise of any such rights or remedies.  Borrower acknowledges that Lender engages in the business of real estate financings and other real estate transactions and investments which may be viewed as adverse to or competitive with the business of Borrower or its Affiliates.

Section 10.21Brokers and Financial Advisors.  Borrower hereby represents that it has dealt with no financial advisors, brokers, underwriters, placement agents, agents or finders in connection with the transactions contemplated by this Agreement other than Inland Mortgage Corp.  Borrower hereby agrees to indemnify, defend and hold Lender harmless from and against any and all claims, liabilities, costs and expenses of any kind (including Lender’s reasonable attorneys’ fees and expenses) in any way relating to or arising from a claim by any Person that such Person acted on behalf of Borrower or Lender in connection with the transactions contemplated herein.  The provisions of this Section 10.21 shall survive the expiration and termination of this Agreement and the payment of the Debt.

Section 10.22Prior Agreements.  This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect of the transactions

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contemplated hereby and thereby, and all prior agreements or understandings among or between such parties, whether oral or written, are superseded by the terms of this Agreement and the other Loan Documents and unless specifically set forth in a writing contemporaneous herewith the terms, conditions and provisions of such prior agreement do not survive execution of this Agreement.

Section 10.23Transfer of Loan.  In the event that Lender transfers the Loan, Borrower shall continue to make payments at the place set forth in the Note until such time that Borrower is notified in writing by Lender that payments are to be made at another place.

Section 10.24Joint and Several Liability.  If Borrower consists of more than one person or party, the obligations and liabilities of each person or party shall be joint and several.

(THE BALANCE OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK)

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written.

BORROWER:
INLAND WESTERN WESLEY CHAPEL NORTHWOODS, L.L.C.,
a Delaware limited liability company
	By:	Inland Western Retail Real Estate Trust, Inc., a Maryland corporation
		By:	/s/ Valerie Medina
		Name:	Valerie Medina
		Title:	Asst. Secretary
LENDER:
NOMURA CREDIT & CAPITAL INC.,
a Delaware corporation
By:
Name:
Its:

SCHEDULE I

Intentionally omitted

SCHEDULE II

Intentionally omitted.

SCHEDULE III

REQUIRED REPAIRS

1.  Confirm sinkhole recess

2.  Repair asphalt concrete distress

3.  Install lock at unsecured ladder and make related repairs

4.  Apply waterproofing sealant to Marshall’s walls.

As each of such items is more particularly described in that certain Property Conditions Assessment prepared by RCI Consulting dated November 10, 2004.

SCHEDULE IV

RENT ROLL

[exhibit follows this page]

EX-10.446

Exhibit 10.446

ASSIGNMENT OF CONTRACT

This ASSIGNMENT OF CONTRACT (the “Assignment”) is made and entered into this          day of December, 2004 by INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation (“Assignor”) and INLAND WESTERN AVONDALE MCDOWELL, L.L.C., a Delaware limited liability company (“Assignee”).

Assignor does hereby sell, assign, transfer, set over and convey unto Assignee all of its right, title and interest as Purchaser under that certain agreement dated as of August      , 2004, as amended, and entered into by Gateway Pavilions, L.L.C., an Arizona limited liability company, as Seller, and Assignor, as Purchaser (collectively, the “Agreement”), with respect to the sale and purchase of the property described by the Agreement, located in Avondale, Arizona, and known as Gateway Pavilions Shopping Center.

Assignor represents and warrants that it is the Purchaser under the Agreement, and that it has not sold, assigned, transferred, or encumbered such interest in any way to any other person or entity. By acceptance hereof, Assignee accepts the foregoing Assignment and agrees, from and after the date hereof, to (i) perform all of the obligations of Purchaser under the Agreement, and (ii) indemnify, defend, protect and hold Assignor harmless from and against all claims and liabilities arising under the Agreement.

ASSIGNOR:
INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
By:		/s/ Mark Youngman
Name:		Mark Youngman
Title:		Vice President
ASSIGNEE:
INLAND WESTERN AVONDALE MCDOWELL, L.L.C., a Delaware limited liability company
By:	Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
	By:		/s/ Debra A. Palmer
	Name:		Debra A. Palmer
	Title:		Ass't Secretary

EX-10.447

Exhibit 10.447

PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS

THIS PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (this “Agreement”) is made and entered into as of August   , 2004, between GATEWAY PAVILIONS, L.L.C., an Arizona limited liability company (“Seller”), and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation, or its assigns permitted under section 15.2, below (“Purchaser”), with reference to the following:

A.Seller is the owner of the improved real property (the “Real Property”) described on Exhibit A attached hereto together with certain personal property located upon or used in connection with such improved real property and certain other assets relating thereto, all as more particularly described in section 2, below.

B.Seller desires to sell to Purchaser, and Purchaser desires to purchase from Seller, the Property (defined in section
2, below) on the terms and subject tothe conditions contained in this Agreement.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1.BASIC TERMS AND DEFINITIONS; REFERENCES

1.1Basic Terms and Definitions.

(a)Effective Date.  The effective date of this Agreement shall be the date set forth above (“Effective Date”) .

(b)Closing Date.  The Close of Escrow shall occur on December 15, 2004 (the “Closing Date”).

(c)Title Review Period.  The “Title Review Period” shall end at 5:00 p.m. on August 13, 2004.

(d)Due Diligence Period.  The “Due Diligence Period” shall end on August 2, 2004, at 5:00 p.m.

(e)Escrow Holder.  The escrow holder shall be First American Title Insurance Company in Chicago, Illinois (“Escrow Holder”).

(f)Title Company.  Thetitle company shall be First American Title Insurance Company (“Title Company”).

1.2References.  All references to Exhibits and Schedules refer to Exhibits and Schedules attached to this Agreement, and all such Exhibits and Schedules are incorporated herein by reference.

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2.PURCHASE AND SALE.

Subject to the terms and conditions of this Agreement, Seller agrees to sell, assign and transfer to Purchaser and Purchaser agrees to purchase from Seller, for the purchase price set forth in section 3 hereof, the following (collectively, the “Property”):

2.1The Real Property, together with the buildings located thereon, all associated parking areas thereon and all other improvements located thereon (the buildings and such other improvements are, collectively, the “Improvements”).  All references hereinafter made to the Real Property shall be deemed to include, to the extent owned by Seller, all rights, privileges, easements and appurtenances benefiting the Real Property and/or the Improvements, including, without limitation, all mineral and water rights, and all easements, rights-of-way and other appurtenances used or connected with the beneficial use or enjoyment of the Real Property;

2.2All of Seller’s right, title and interest in and to the personal property, equipment, supplies and fixtures (collectively, the “Personal Property”) listed on Exhibit B attached hereto or otherwise left on the Real Property at the Close of Escrow (as defined in section 8.1 hereof) to the extent owned by Seller;

2.3All of Seller’s right, title and interest in and to any intangible property used or useful in connection with the foregoing, including, without limitation, all contract rights, warranties, guaranties, licenses, permits, entitlements, the name “Gateway Pavilions,” governmental approvals and certificates of occupancy which benefit the Real Property and/or the Personal Property;

2.4All of Seller’s right, title and interest in and to all leases affecting the Real Property as of the Close of Escrow listed on the Rent Roll attached hereto as Exhibit I (the “Rent Roll”), or approved or deemed approved by Purchaser under section 5.3, below (the “Leases”), together with all security deposits, letters of credit, guaranties and any other security for the obligations of the tenants under the Leases delivered to Seller and not theretofore applied to tenant obligations under the Leases; and

2.5All of Seller’s right, title and interest in, and to the contracts listed on Exhibit C attached hereto, and all contracts hereafter entered into by Seller to the extent permitted by the provisions of this Agreement (the “Contracts”).

Notwithstanding anything to the contrary contained herein, but subject to the last sentence of section 10.1, below, the term “Property” shall expressly exclude: (a) any Rents (as defined in section 10.1, below) and any other amounts payable by tenants under the Leases for periods before the Close of Escrow, (b) any Rents or other amounts payable by any former tenants of the Property, (c) any payments owed to Seller under the Development Agreement (defined in section 4.l(f), below) or the Sharing

2

Agreement (defined in Section 4.5 below) for periods or with respect to events occurring before or after the Close of Escrow, and (d) with respect to services or materials provided by Seller before the Closing Date: (i) any site, or monument or pylon sign reimbursement costs, or similar costs, paid by any tenant or by any occupant after the Close of Escrow, (ii) any judgments, stipulations, orders or settlements with any tenants, any occupants, or former tenants or occupants, paid after the Close of Escrow, for periods or with respect to events occurring before the Close of Escrow, and (iii) any sums payable by third parties to Seller in respect of, or arising out of, the Property, paid after the Close of Escrow for periods or with respect to events occurring before the Close of Escrow.

3.PURCHASE PRICE AND DEPOSIT.

3.1Purchase Price.  The purchase price for the Property shall be $65,141,045 (the “Purchase Price”).

3.2Payment of Purchase Price.  The Purchase Price shall be payable as follows :

3.2.1 Within three business days after the Opening of Escrow (defined below), Purchaser shall deposit in escrow with Escrow Holder, by check or in immediate, same-day federal funds, the sum of $1,500,000 (the “Deposit”). Immediately upon Escrow Holder’s receipt of the Deposit (the “Opening of Escrow”), Escrow Holder shall invest the same in a federally insured interest-bearing account acceptable to Seller and Purchaser. All interest accruing on the Deposit shall be deemed part of the Deposit. Upon expiration of the Due Diligence Period, if Purchaser has not previously terminated this Agreement by its terms, the Deposit shall become nonrefundable, except as expressly provided herein.

3.2.2 If all the conditions in section 7.1 hereof have been satisfied or waived by Purchaser, Purchaser shall deposit in current funds with Escrow Holder, at least one business day before or, if it shall not delay the Close of Escrow on, the Closing Date, an amount equal to the Purchase Price minus the Deposit and all interest accrued thereon, and plus or minus applicable prorations pursuant to section 10 hereof.

3.3Disposition of Deposit Upon Failure to Close. Ifthe Close of Escrow fails to occur due to Purchaser’s default under this Agreement (all of the conditions to Purchaser’s obligation to close having been satisfied or waived), the disposition of the Deposit and all interest accrued thereon shall be governed by section 13.1 hereof. If the Close of Escrow fails to occur due to Seller’s default under this Agreement (all of the conditions to Seller’s obligation to close having been satisfied or waived), the Deposit and all interest accrued thereon shall promptly be refunded to Purchaser. If the Close of Escrow fails to occur due to the failure of any of the conditions set forth in sections 7.1 or 7.2, hereof other than as a result of Purchaser’s or Seller’s default under this Agreement, the disposition of the Deposit and

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all interest accrued thereon shall be governed by section 9.3 hereof.

4.PROPERTY INFORMATION; TITLE AND SURVEY REVIEW; INSPECTIONS AND DUE DILIGENCE; TENANT ESTOPPEL CERTIFICATES; CONFIDENTIALITY.

4.1Property Information.  If not delivered by Seller to Purchaser before the Effective Date, Seller shall deliver to Purchaser within five business days after the Effective Date, to the extent in Seller’s possession, the following (collectively, the “Property Information”):

(a)           the Leases;

(b)           [intentionally deleted];

(c)the most current operating statements for the Real Property;

(d)copies of the Contracts;

(e)existing land title surveys, if any, for the Real Property;

(f)Development Agreement dated November 5, 2001, among Seller, Costco Wholesale Corporation, and Harkins Phoenix Cinemas, L.L.C., and all amendments thereto (the “Development Agreement”); and

(g)any environmental, soils and/or engineering reports prepared for Seller or Seller’s predecessors.

4.2Title and Survey Review; Title Policy.

4.2.1 Delivery of Title Commitment and Survey. Seller has, prior to the Effective Date, at Seller’s sole cost and expense, obtained and delivered to Purchaser: (i) a preliminary title commitment covering the Real Property (the “Title Commitment”), together with legible photocopies of all documents (collectively, the “Title Documents”) referenced in the Title Commitment, which is intended to comply with the Title Commitment Requirements specified in Schedule 1; and, (ii) a new or updated ALTA survey for the Real Property, dated not more than thirty (30) days prior to the Effective Date (the “Survey”), which is intended to comply with the Survey Requirements specified in Schedule 2.  Notwithstanding the foregoing, Seller makes no representations or warranties, and Seller shall have no responsibility, with respect to the completeness of the Title Documents made available to Purchaser by the Title Company, or the accuracy of the Survey.

4.2.2 Title and Survey Review and Cure. On or before the end of the Title Review Period, Purchaser shall deliver to Seller and Escrow Holder written notice (“Purchaser’sTitle and Survey Notice”) of Purchaser’s approval or disapproval of the matters reflected in the Title Commitment and Survey. The failure

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of Purchaser to deliver to Seller Purchaser’s Title and Survey Notice on or before the end of the Title Review Period shall be deemed to constitute Purchaser’s approval of the condition of title to the Real Property.  If Purchaser disapproves any matter of title shown in the Title Commitment or Survey, Seller may, but shall have no obligation to, within five days after its receipt of the Purchaser’s Title and Survey Notice (“Seller’s Election Period”), elect to eliminate or ameliorate to Purchaser’s reasonable satisfaction the disapproved title matters by giving Purchaser written notice (“Seller’s Title and Survey Notice”) of those disapproved title matters, if any, which Seller agrees to so eliminate or ameliorate by the Closing Date.  Any title exception disapproved by Purchaser shall be deemed ameliorated to Purchaser’s reasonable satisfaction to the extent that Seller either causes such exception to be removed from the Title Policy (as defined in section 4.2.3, below)  or to be affirmatively insured over.  If Seller does not elect to, or is unable to, eliminate or ameliorate any disapproved title matters, if Purchaser reasonably disapproves Seller’s Title and Survey Notice, or if Seller fails to timely deliver Seller’s Title and Survey Notice, Purchaser shall have the right, upon delivery to Seller and Escrow Holder, on or before five days following the expiration of Seller’s Election Period, of a written notice, to either: (a) waive its prior disapproval, in which event said disapproved matters shall be deemed approved; or (b) terminate this Agreement and the Escrow (as defined in section 9.1, below).  Failure to take either one of the actions described in subsections (a) and (b), above, shall be deemed to be Purchaser’s election to take the action described in subsection (a), above.  If Purchaser elects to terminate this Agreement as provided in subsection (b), above, this Agreement shall automatically terminate, the parties shall be released from all further obligations under this Agreement (except pursuant to any provisions which by their terms survive a termination of this Agreement), the Deposit shall be immediately returned to Purchaser and Purchaser shall immediately return all Property Information to Seller.  Notwithstanding the foregoing, Seller shall cause to be released on or before the Close of Escrow all consensual monetary liens encumbering the Property (other than Permitted Exceptions [defined in section 4.2.3, below], and those created by the actions of Purchaser or its agents, representatives, contractors or employees), except for mechanics’ and materialmen’s liens with respect to which Seller may, in lieu of obtaining releases, at Seller’s sole cost and expense, take such action necessary to have such liens removed as exceptions to the Title Policy or obtain title insurance coverage for such liens.

If any encumbrance or other exception to title arises or is discovered after the delivery of the Title Commitment and Survey (an “Additional Encumbrance”), the party discovering such Additional Encumbrance shall promptly give written notice thereof to the other. No later than five days after delivery of the notice of such Additional Encumbrance, Purchaser shall deliver a new Purchaser’s Title and Survey Notice to Seller specifying whether the Additional Encumbrance is approved or disapproved. In

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addition, Seller may propose Additional Encumbrances to Purchaser, for Purchaser’s approval. No Additional Encumbrance may be disapproved by Purchaser unless it materially and adversely affects the value of the Real Property, or its use or development as a retail shopping center. If Purchaser objects to the Additional Encumbrance, the parties shall proceed in the same manner as set forth above for disapproved title matters arising from the Title Commitment and Survey. If Purchaser fails to deliver Purchaser’s new Title and Survey Notice within the time specified in this paragraph, Purchaser shall be deemed to have approved the Additional
Encumbrance(s).  After the Effective Date, Seller covenants not to cause Additional Encumbrances to be imposed on the Real Property which shall encumber the Real Property after the Close of Escrow without Purchaser’s prior written consent, not be unreasonably withheld or delayed. Not later than fifteen (15) days prior to the Closing, Seller shall obtain and deliver to Purchaser an updated Survey and updated Title Commitment, dated no earlier than 45 days before the Closing Date. Any new items shown on such updated Survey and/or Title Commitment shall, unless previously disclosed to Purchaser as an Additional Encumbrance, be deemed to be an Additional Encumbrance, which shall be resolved as provided above

4.2.3 Delivery of Title Policy at Closing.  As a condition precedent to the Close of Escrow, the Title Company shall have issued and delivered to Purchaser, or shall have committed to issue and deliver to Purchaser, with respect to the Real Property, an Extended Coverage ALTA Owner’s Policy of Title Insurance (1992 Form) (the “Title Policy”) issued by the Title Company as of the date and time of the recording of the Deed (as defined in section 6.1, below) conveying the Real Property, in the amount of the Purchase Price, insuring Purchaser as owner of good and marketable fee simple title to the Real Property, subject only to the Permitted Exceptions, and in compliance with the title requirements described in Schedule 2.  “Permitted Exceptions” shall mean and include: (a) any lien to secure payment of real estate taxes, including special assessments, not delinquent, (b) all matters which could be revealed or disclosed by a physical inspection or a survey of the Real Property, and matters affecting the Real Property which are created by or with the written consent of Purchaser, (c) the rights of the tenants under the Leases affecting the Real Property, (d) all exceptions disclosed by the Title Commitment or Survey relating to the Real Property which are approved, or deemed approved, by Purchaser in accordance with section 4.2.2 hereof, and (e) all applicable laws, ordinances, rules and governmental regulations (Including, without limitation, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property.

4.3Inspections; Due Diligence Period.

4.3.1 Inspections in General. Commencing from the Effective Date and continuing through and including the Closing Date, Purchaser, its agents and employees shall have a limited license (the “License”) to enter upon the Real Property for the

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purpose of making non-invasive inspections at Purchaser’s sole risk, cost and expense. Before any such entry, Purchaser shall provide Seller with a certificate of insurance naming Seller as an additional insured, with an insurer and insurance limits and coverage reasonably satisfactory to Seller. All of such entries upon the Real Property shall be at reasonable times during normal business hours and after at least 48 hours’ prior notice to Seller, and Seller or Seller’s agent shall have the right to accompany Purchaser during any activities performed by Purchaser on the Real Property. Notwithstanding anything stated to the contrary herein, Purchaser’s right to inspect any of the occupied space in the Real Property shall be subject to the terms and conditions of the Lease with respect to such space, and such inspections shall not interfere with the rights of tenants. If any inspection or test disturbs the Real Property, Purchaser shall restore the Real Property to the same condition as existed before the inspection or test. Purchaser shall defend, indemnify Seller and hold Seller, Seller’s, shareholders, directors, members, managers, partners, officers, tenants, agents, contractors and employees and the Real Property harmless from and against all losses, costs, damages, claims and liabilities, including but not limited to, mechanics’ and materialmen’s liens and Seller’s attorneys’ fees, arising out of or in connection with Purchaser’s inspection of the Real Property. The License shall be deemed revoked upon termination of this Agreement. The provisions of this section 4.3.1 shall survive the Close of Escrow or the earlier termination of this Agreement. Notwithstanding anything stated to the contrary herein, Purchaser’s rights under this Section 4.3.1 to inspect the Real Property after the Due Diligence Deadline shall not be deemed or construed to extend the Due Diligence Deadline, or give Purchaser any additional rights to terminate this Agreement.

4.3.2 Environmental Inspections. The inspections under section 4.3.1 may include non-invasive Phase I environmental inspections of the Real Property, but no Phase II environmental inspections or other invasive inspections or sampling of soil or materials, including without limitation construction materials, either as part of the Phase I inspections or any other inspections, shall be performed without the prior written consent of Seller, which may be withheld in its sole and absolute discretion. If consented to bySeller, the proposed scope of work and the party which shall perform the work shall be subject to Seller’s review and approval, which may be withheld in its sole and absolute discretion.

4.3.3 Termination During Due Diligence Period.  If Purchaser determines, in its sole discretion, before the expiration of the Due Diligence Period, that the Real Property is unacceptable for Purchaser’s purposes, Purchaser shall have the right to terminate this Agreement by giving to Seller notice of termination (“Termination Notice”) before the expiration of the Due Diligence Period, in which event the Deposit shall be immediately refunded to Purchaser, Purchaser shall immediately return all Property Information to Seller and, except for those

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provisions of this Agreement which expressly survive the termination of this Agreement, the parties hereto shall have no further obligations hereunder. If Purchaser fails to deliver a Termination Notice to Seller and Escrow Holder on or before the expiration of the Due Diligence Period, Purchaser shall be deemed to be satisfied with all aspects of all of the Real Property (other than title and survey matters, which shall continue to be governed by the provisions of section 4.2), including, without limitation, the condition and suitability of all the Real Property for Purchaser’s intended use, and Purchaser shall be obligated to acquire the Real Property in accordance with the provisions of this Agreement.

4.4Tenant and REA Estoppel Certificates. It is a condition precedent to Purchaser’sobligation to consummate this transaction that Seller obtain and deliver to Purchaser, not less than tan (10) business days prior to the Closing Date, estoppel certificates (“Tenant Estoppel Certificates”), dated no earlier than 45 days before the Closing Date, in the form attached as Exhibit H or other form required under each particular Lease, executed by: (a) each of the following named tenants: Bed Bath & Beyond, Borders Books, Marshalls, Circuit City, Sports Authority, Mor Furniture, Carrabbas, Red Robin, Petco, Krispy Kreme, Paul Lee’s Chinese Kitchen (if a lease has then been executed with Paul Lee’s Chinese Kitchen), Village Inn, McDonalds and Peter Piper Pizza and (b) tenants occupying at least 85% of the leased rental floor area of the Real Property, excluding the floor area leased under the leases described in subsection (a), above.  Seller shall diligently attempt to obtain Tenant Estoppel Certificates from all tenants of the Property.

Only with respect to Leases described in subsection (b), above, for which Seller shall not have received and delivered to Purchaser Tenant Estoppel Certificates (not to exceed 15% of the floor area thereof), Seller shall deliver to Purchaser not less than ten (10) business days prior to Closing, in lieu thereof, a Seller’s certificate substantially in the form of Exhibit E (“Seller’s Estoppel Certificate”), for each such Lease.

It is a condition precedent to Purchaser’s obligation to consummate this transaction that Seller obtain and deliver to Purchaser, not less than ten (10) business days prior to the Closing Date, estoppel certificates (“REA Estoppel Certificates”) from each party to any reciprocal easement agreement, declaration, or similar agreement recorded against the Property (each, an “REA”) stating: (a) whether such party knows of any default tinder the REA, and if there are known defaults, specifying the nature thereof; (b) whether to such party’s knowledge the REA has been assigned, modified or amended in any way (and if it has, then stating the nature thereof); and (c)whether to such party’s knowledge, the REA is in full force and effect.

4.5           Contracts. On or before the end of the Due Diligence Period, Purchaser shall notify Seller which of the Contracts Purchaser wishes to assume at Closing, and which of the Contracts

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Purchaser wishes Seller to terminate as of the Closing Date. If Purchaser doeS not so notify Seller, Purchaser shall be deemed to have elected to assume all of the Contracts at Closing. Notwithstanding anything stated to the contrary herein, Purchaser shall not be obligated to assume any of Seller’s obligations under, and Seller shall terminate at Close of Escrow, the management and leasing agreement with respect to the Property, if any.

Purchaser acknowledges that Seller and Costco Wholesale Corporation are parties to a Sharing Agreement, as amended (the “Sharing Agreement”), with respect to, inter alia, the Development Agreement dated October 15, 2001, between the City of Avondale and Costco Wholesale Corporation, as amended, recorded on November 5, 2001, in the official records of Maricopa County, Arizona, as Instrument no.  2001-1034469. Neither the Sharing Agreement nor the Development Agreement is a Contract. All rights, duties and obligations of Seller under the Development Agreement and the Sharing Agreement shall remain the rights, duties and obligations of Seller following the Closing Date. Seller shall indemnify and hold Purchaser harmless from any asserted claims against Purchaser arising out of or related to the Development Agreement and/or the Sharing Agreement. Purchaser agrees to reasonably cooperate with Seller so that Seller may exercise all of its rights, duties and obligations under the Development Agreement and/or the Sharing Agreement.

4.6Confidentiality. Before the Close of Escrow or if the Close of Escrow never occurs, the Property Information and all other information, other than matters of public record or matters generally known to the public, furnished to, or obtained through inspection of the Real Property by, Purchaser, its affiliates, lenders, employees, attorneys, accountants and other professionals and agents relating to the Real Property, shall be treated by Purchaser, its affiliates, lenders, employees, attorneys, accountants and other professionals and agents as confidential, and shall not be disclosed to anyone (except as reasonably required in connection with Purchaser’s evaluation of the Real Property) except to Purchaser’s consultants who agree to maintain the confidentiality of such information, and the Property Information shall be returned to Seller by Purchaser if the Close of Escrow does not occur. The terms of this Agreement shall not be disclosed to anyone before the Close of Escrow except to Purchaser’s and Seller’s consultants who agree to maintain the confidentiality of such information. The confidentiality provisions of this section 4.6 shall not apply to any disclosures made by Purchaser or Seller as required by law, by court order, or in connection with any subpoena served upon Purchaser or Seller, although Purchaser and Seller shall provide each other with written notice before making any such disclosure.

5.OPERATIONS AND RISK OF LOSS

5.1           Ongoing Operations. During the pendency of this Agreement, but subject to the limitations set forth below, Seller

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shall carry on its businesses and activities relating to the Real Property in the same manner as it did before the Effective Date.

5.2New Contracts.  Before the expiration of the Due Diligence Period, Seller may, without Purchaser’s consent, enter into contracts relating to the Real Property, as long as Seller provides Purchaser with written notice of the same not later than ten days prior to the end of the Due Diligence Period.  Following the expiration of the Due Diligence Period, Seller shall not enter into any contract that shall be an obligation affecting the Real Property subsequent to the Close of Escrow (except contracts entered into in the ordinary course of business that are terminable without cause on 30-days’ notice), without the prior consent of the Purchaser.  Purchaser’s consent shall not be unreasonably withheld, and Purchaser shall respond to Seller’s request for Purchaser’s consent within ten days.

5.3Leasing Arrangements.  Before the expiration of the Due Diligence Period, Seller may, without Purchaser’s consent, enter into new leases of space in the Real Property and amendments, expansions and renewals of the Leases, as long as Seller provides Purchaser with prior written notice of the same not less than ten days prior to the end of the Due Diligence Period.  Following the expiration of the Due Diligence Period, Seller may enter into new leases of space in the Real Property and amendments, expansions and renewals of Leases, only with Purchaser’s prior written consent, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Purchaser’s failure to consent to a proposed tenant will not be deemed unreasonable if:  (a) the proposed tenant’s use would violate any REA, any existing exclusive or any prohibited use in any tenant Lease, or otherwise be incompatible with a first class shipping center;  (b)  the proposed minimum rent is less than the minimum rent specified for such space in the Rent Roll; or (c) the proposed lease contains sent concessions which extend beyond the Closing Date which are not reflected on the Rent Roll (unless Seller agrees to give Purchaser a credit at the Close of Escrow for such unexpired concession).  Purchaser shall be deemed to have consented to any new Lease or any Lease amendment, expansion or renewal if it has not notified Seller specifying with particularity the matters to which Purchaser reasonably objects, within five days after its receipt of Seller’s written request for consent, together with a copy of the Lease amendment, expansion or renewal, or the new Lease.  Purchaser acknowledges that Seller is currently in negotiations (including negotiations of letters of intent) for those leases (the “Pending Leases”) described on Schedule 3. Purchaser expressly consents to Seller entering into each of the Pending Leases, provided that the final version of each Pending Lease contains economic terms which are no less favorable to the landlord than those shown on Schedule 3.  At the Close of Escrow, Purchaser shall, with respect to all new Leases that were entered into pursuant to this section 5.3, and with respect to all other Lease amendments, expansions, assume in writing (pursuant to the Assignment of Leases and Contracts and Bill of Sale) Seller’s obligations arising on or after the Closing Date under such new

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Leases and Lease amendments, expansions or renewals.

5.4Damage or Condemnation. Risk of loss resulting from any condemnation or eminent domain proceeding which is commenced or has been threatened against the Real Property before the Close of Escrow, and risk of loss to the Real Property due to fire, flood or any other cause before the Close of Escrow, shall remain with Seller, If before the Close of Escrow the Real property or any portion thereof shall be materially damaged, or if the Real Property or any material portion thereof shall be subjected to a bona fide threat of condemnation or shall become the subject of any proceedings, judicial, administrative or otherwise, with respect to taking by eminent domain or condemnation, Purchaser may elect not to acquire the Real Property by delivering written notice of such election to Seller within five days after Purchaser learns of the damage or taking, in which event Purchaser shall no longer be obligated to purchase, and Seller shall no longer be obligated to sell, the Real Property. If the Closing Date is within the said five-day period, the Close of Escrow shall be extended to the next business day following the expiration of said five-day period. If no such election is made or if the damage is not material, this Agreement shall remain in full force and effect, the purchase contemplated herein, less any interest taken by eminent domain or condemnation, shall be effected with no further adjustment, and upon the Close of Escrow, Seller shall assign, transfer and set over to Purchaser all of the right, title and interest of Seller in and to any awards that have been or that may thereafter be paid for such taking, and Seller shall assign, transfer and set over to Purchaser any insurance proceeds that may thereafter be paid for such damage or destruction giving Purchaser a credit at the Close of Escrow for any deductible under such policies.  For purposes of this section 5.4, (i) “Material damage” or “Materially damaged” means damage exceeding $250,000.00, (ii) “material portion” means any portion of the Real Property that has a fair market value exceeding $250,000.00.

The provisions of this section 5.4 hereof shall govern their obligations in the event of damage or destruction to the Real Property or condemnation of all or part of the Real Property.

6.SELLER’S AND PURCHASER’S DELIVERIES

6.1Seller’s Deliveries into Escrow. No later than one business day before or, if it shall not delay the Close of Escrow on, the Closing Date, Seller shall deliver into Escrow (as defined in section 9, below) to the Escrow Holder the following, all in form and substance reasonably acceptable to Purchaser:

(a)Deed.  A special warranty deed (the “Deed”), executed and acknowledged by Seller, conveying to Purchaser Seller’s title to the Real Property;

(b)Assignment of Leases and Contracts and Bill of Sale.  An Assignment of Leases and Contracts and Bill of Sale (“Assignment of Leases and Contracts and Bill of Sale”);

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(c)State Law Disclosures.  Anysuch disclosures and reports as are required by applicable state and local law in connection with the conveyance of the Real Property;

(d)Non-Foreign Certificate.  A Non-foreign Certificate executed by Seller;

(e)Certificates of Insurance.  Certificates of insurance of tenants under the Leases, as required by the Leases;

(f)Vacancy Escrow Agreement.  Three (3) counterparts of a Vacancy Escrow Agreement (as defined in section 7.1(f)), executed by Seller;

(g)Obligation to Purchase and Right of First Refusal Agreement.  An Obligation to Purchase and Right of First Refusal Agreement executed by Seller, in the form of Exhibit G, attached hereto (the “Pad Agreement”);

(h)Notice to Other Owners.  Five counterparts of a Notice to Other Owners, executed by Seller, which shall, under section 11.17 of the Construction, Operation and Easement Agreement among Seller, Costco Wholesale Corporation and Harkins Phoenix Cinemas, L.L.C., recorded on November 5, 2001, in the official records of Maricopa County, Arizona, as instrument no. 2001-1034470, as amended by the First Amendment of Construction, Operation and Reciprocal Agreement dated December 31, 2003, recorded on January 6, 2004, in the official records of Maricopa County, Arizona, as instrument no. 2004-0013091 (collectively, the “OEA”), release Seller from unaccrued obligations under the OEA from and after the Closing Data (the “Notice to Owners”); and

(i)Additional Documents.  Any additional documents that Escrow Holder or the Title Company may reasonably require for the proper consummation of the transaction contemplated by this Agreement.

6.2Purchaser’s Deliveries into Escrow.  No less than one business day before or, if it shall not delay the Close of Escrow on, the Closing Date, Purchaser shall deliver into Escrow to the Escrow Holder the following:

(a)Purchase Price.  The Purchase Price, less the Deposit that is applied to the Purchase Price, plus or minus applicable prorations, deposited by Purchaser with the Escrow Holder in immediate, same-day federal funds wired for credit into the Escrow Holder’s escrow account;

(b)Assignment of Leases and Contracts and Bill of Sale.  An Assignment of Leases and Contracts and Bill of Sale executed by Purchaser;

(c)Vacancy Escrow Agreement.  Three (3) counterparts of a Vacancy Escrow Agreement, executed by Purchaser;

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(d)Pad Agreement.  Pad Agreement, executed by Purchaser;

(e)Notice to Owners.  Five counterparts of the Notice to Owners, executed by Purchaser;

(f)State Law Disclosures.  Any suchdisclosures and reports as are required by applicable state and local law to be provided by purchasers in connection with the conveyance of the Real Property; and

(g)Additional Documents.  Any additional documents that Escrow Holder or the Title Company may reasonably require for the proper consummation of the transaction contemplated by this Agreement.

6.3Closing Statements/Escrow Fees; Tenant Notices.  Concurrently with the Close of Escrow, Seller and Purchaser shall deposit with the Escrow Holder executed closing statements consistent with this Agreement in the form required by the Escrow Holder.  Seller and Purchaser shall execute, at the Close of Escrow, and Purchaser shall deliver to each tenant immediately after the Close of Escrow, tenant notices regarding the sale of the Real Property.

6.4Post-Closing Deliveries.  Immediately after the Close of Escrow, to the extent in Seller’s possession, Seller shall deliver to Purchaser:  the original Leases; copies or originals of the Contracts, receipts for deposits, and unpaid bills; all keys, if any, used in the operation of the Real Property; and, if in Seller’s possession or control, any “as-built” plans and specifications of the Improvements.  Seller shall instruct its property manager to deliver to Purchaser any of the foregoing which is in its property manager’s possession or control.

7.CONDITIONS TO PURCHASER’S AND SELLER’S OBLIGATIONS.

7.1Conditions to Purchaser’s Obligations. The Close of Escrow and Purchaser’s obligation to consummate the transaction contemplated by this Agreement are subject to the satisfaction of the following conditions for Purchaser’s benefit (or Purchaser’s waiver thereof, as Purchaser may waive any or all of such conditions) on or before the Closing Date or on the dates designated below for the satisfaction of such conditions:

(a)All of Seller’s representations and warranties contained in this Agreement shall be true and correct in all material respects as of the Effective Date and as of the Closing Date, subject to any qualifications hereafter made to any of Seller’s representations as provided for in section 11.1 hereof;

(b)As of the Closing Date, Seller shall have performed its obligations hereunder and all deliveries to be made at Close of Escrow by Seller shall have been tendered, including

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but not limited to Seller having obtained and delivered to Purchaser the Tenant Estoppel Certificates, Seller Estoppel Certificate and REA Estoppel Certificates described in section 4.4, above and Seller having delivered to Purchaser the audit representation letter described in section 15.19;

(c)There shall exist no actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, pending or threatened against Seller, that would materially and adversely affect Seller’s ability to perform its obligations under this Agreement;

(d)There shall exist no pending or threatened action, suit or proceeding with respect to Seller before or by any court or administrative agency which seeks to restrain or prohibit, or to obtain damages or a discovery order with respect to, this Agreement or the consummation of the transaction contemplated hereby; and

(e)As of the Closing Date, construction which is landlord’s obligation with respect to the Leases therefor shall have been completed as required under such Leases.  Said construction shall be completed in accordance with all the plans and specifications therefor as accepted by the City of Avondale, Arizona.  If and to the extent of landlord’s obligation under the pertinent Lease, Seller shall be solely liable for any and all “punch list” items.  If such items are not completed as of the Closing Date, Seller shall deposit into the Vacancy Escrow Account an amount reasonably estimated by Seller and Purchaser for completion of such items, to be disbursed upon completion of such work and delivery to Purchaser and the Escrow Agent of estoppel certificates, certificates of occupancy and other evidence reasonably requested by Seller, Purchaser and/or Escrow Holder.

(f)As of the Closing Date, one hundred percent (100%) of the gross leasable area of the Property is leased to tenants who have commenced and are current in their payment of minimum rent under their respective Leases, and have not filed for bankruptcy or other relief from creditors (the “Minimum Occupancy Level”).  Notwithstanding the foregoing, if, on the Closing Date, the Minimum Occupancy Level is not met, the requirements of the preceding sentence shall be deemed to be satisfied if all of the following requirements are met:  (i) at least eighty five percent (85%) of the gross leaseable area of the Property is leased to tenants who have commenced and are current in their payment of minimum rent under their respective Leases, and have not filed for bankruptcy or other relief from creditors; and (ii) on the Closing Date, Seller shall deposit into an account to be held and administered by the Escrow Holder (the “Vacancy Escrow Account”) pursuant to a Vacancy Escrow Agreement in the form attached as Exhibit G(the “Vacancy Escrow Agreement”) an amount for each square foot of the Property which doesn’t meet the Minimum Occupancy Level, equal to the sum of :

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(A)Eighteen (18) months of minimum rent calculated at the minimum rent rates for each such space as shown on the Rent Roll;

(B)Eighteen (18) months of real estate tax, common area expenses, and insurance calculated at $4.00 per square foot;

(C)Leasing commissions, calculated at $5.00 per square foot; and

(D)Tenant improvement allowances, calculated at $25.00 per square foot (if the vacant space is raw) or $5.00 per square foot (if the vacant space has previously been improved).

Notwithstanding the foregoing, if, as of the Closing Date, there are tenant spaces for which Leases have been executed but the tenant has not yet commenced payment of minimum rent under its respective Lease, then the amounts specified in items (A)–(D) above shall be adjusted to reflect the actual amounts of such items per the tenant’s Lease.  If any such Lease provides for concessions (such as abated rent) which is not reflected on the Rent Roll, and which concession hasn’t been fully earned prior to the Closing Date, Purchaser shall receive a credit equal to the portion of the concession which is unearned as of the Closing Date. Following the Closing Date, the amounts deposited into the Vacancy Escrow Account shall be disbursed by the Escrow Holder pursuant to the terms and conditions of the Vacancy Escrow Agreement.

(g)As of the Closing Date, all of the tenants listed on the Rent Roll whose demised premises are 14,000 ormore square feet (the “Major Tenants”) shall be open for business in all or substantially all of their demised premises, have commenced and are current in their payment of minimum rent under their respective Leases, and have not filed for bankruptcy or other relief from creditors.

(h)As of the Closing Date, the updated Survey and updated Title Commitment to be delivered by Seller to Purchaser shall disclose no Additional Encumbrances which have not been resolved pursuant to section 4.2.2, above.

(i)If the Real Property cannot be legally conveyed to Purchaser without first obtaining approval by the City of Avondale, County of Maricopa or other municipal authority of a “Final Plat,” “Plat of Subdivision,” “lot line adjustment” or similar document (in each case, a “Subdivision Plat”) then it is a condition precedent to Purchaser’s obligation to consummate this transaction that Seller obtain final and unconditional approval of the Subdivision Plat, at Seller’s sole cost and expense, prior to the Closing Date. Purchaser shall fully cooperate with Seller’s efforts to obtain municipal approval of the Subdivision Plat, at no cost or expense to Purchaser.  Seller shall provide Purchaser

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with copies of all correspondence, applications and other submissions to the municipal authorities, and shall otherwise regularly apprise Purchaser of the status of approval of the Subdivision Plat.

If, notwithstanding the nonsatisfaction of any such condition, the Close of Escrow occurs, there shall be no liability on the part of Seller for breaches of representations and warranties of which Purchaser had knowledge as of the Close of Escrow.

7.2Conditions to Seller’s Obligations. The Close of Escrow and Seller’s obligations to consummate the transaction contemplated by this Agreement are subject to the satisfaction of the following conditions for Seller’s benefit (or Seller’s waiver thereof, as Seller may waive any or all of such conditions) on or before the Closing Date or the dates designated below for the satisfaction of such conditions:

(a)All of Purchaser’s representations and warranties contained in this Agreement shall be true and correct in all material respects as of the Effective Date and as of the Closing Date;

(b)As of the Closing Date, Purchaser has performed its obligations hereunder and all deliveries to be made at Close of Escrow by Purchaser shall have been tendered including, without limitation, the deposit with Escrow Holder of the amounts set forth in section 6.2(a) hereof;

(c)There shall exist no actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, pending or threatened against Purchaser, that would materially and adversely affect Purchaser’s ability to perform its obligations under this Agreement; and

(d)There shall exist no pending or threatened action, suit or proceeding with respect to Purchaser before or by any court or administrative agency which seeks to restrain or prohibit, or to obtain damages or a discovery order with respect to, this Agreement or the consummation of the transaction contemplated hereby.

8.CLOSE OF ESCROW; POSSESSION.

8.1“Close of Escrow” shall mean the recording of the Deed in the official records of Maricopa County, and Seller’s receipt of the Purchase Price and the other amounts due Seller in accordance with the provisions of section 9.1(b) hereof.  The Escrow and Purchaser’s right to purchase the Real Property shall terminate automatically if the Close of Escrow does not occur on or before the Closing Date.

8.2Sole exclusive possession of the Real Property, subject

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only to the Permitted Exceptions, shall be delivered to Purchaser on the Closing Date.

9.ESCROW.

9.1Closing. The escrow (the “Escrow”) for the consummation of this transaction shall be established, with Escrow Holder at the address indicated in section 15.1 hereof by the deposit of a fully executed counterpart of this Agreement with Escrow Holder.  Escrow Holder shall immediately execute and date the acceptance by Escrow Holder attached to this Agreement and deliver a counterpart thereof to Purchaser and Seller, specifying the date Escrow is opened.  This Agreement shall constitute both an agreement between Purchaser and Seller, and escrow instructions for Escrow Holder. If Escrow Holder requires separate or additional escrow instructions which it deems necessary for its protection, Seller and Purchaser shall promptly, upon request by Escrow Holder, execute and deliver to Escrow Holder such separate or additional escrow instructions (the “Additional Instructions”). In the event of any conflict or inconsistency between this Agreement and the Additional Instructions, this Agreement shall prevail and govern. The Additional Instructions shall not modify or amend the provisions of this Agreement unless otherwise agreed to in writing by Seller and Purchaser.

On the Closing Date, if the conditions set forth in sections 7.1 and 7.2 hereof have been satisfied or waived, Escrow Holder shall take the following actions in the order indicated below:

(a)With respect to all closing documents delivered to Escrow Holder hereunder, to the extent necessary, Escrow Holder is authorized to insert, into all blanks requiring the insertion of dates, the date of the recordation of the Deed or such other date as Escrow Holder may be instructed in writing by Seller and Purchaser;

(b)Simultaneously, record the Deed in the official records of Maricopa County, and deliver to Seller, in immediate, same-day federal funds, the Purchase Price, plus or minus, as the case may be, the amounts determined in accordance with the provisions of section 10 hereof, Purchaser’s signed counterparts of the Assignment of Leases and Contracts and Bill of Sale, the Vacancy Escrow Agreement and the Pad Agreement, and a conformed copy of the recorded Deed;

(c)Deliver to Purchaser a counterpart of those items referred to in section 6.1 hereof and a conformed copy of the recorded Deed;

(d)Cause the Title Company to issue the Title Policy for the Real Property in accordance with the provisions of section 4.2.3 hereof;

(e)Deliver to Seller and Purchaser a final closing statement which has been certified by Escrow Holder to be true and

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correct; and

(f)Deliver an original counterpart of the Owner’s Notice to each of Costco, Harkins, Bank of America and Desert Taco, in the manner required under the QEA.

9.2Escrow and Title Charges.

(a)Upon the Close of Escrow, escrow charges, title charges and other closing costs shall be allocated between Seller and Purchaser as follows:

(i)Seller shall pay:  (A) the premium for a standard ALTA title policy, (B) the cost of recording the Deed, (C) one-half of any escrow fees or similar charges of Escrow Holder, (D) all sales, gross receipts, compensating, stamp, excise, documentary, transfer, deed or similar taxes or fees (City, County and State) payable in connection with the consummation of the transactions contemplated by this Agreement, and (E) all costs incurred in connection with obtaining, updating or recertifying the Survey.

(ii)Purchaser shall pay:  (A) one-half of any escrow fees or similar charges of Escrow Holder, (B) the premium and any additional costs (including any survey costs) for extended ALTA coverage (additional to the premium for standard ALTA coverage) and the cost of any endorsements to the Title Policy, if required by Purchaser, and (C) all costs incurred in connection with Purchaser’s environmental or other inspections of the Real Property.

(iii)Except to the extent otherwise specifically provided herein, all other expenses incurred by Seller and Purchaser with respect to the negotiation, documentation and closing of this transaction, including, without limitation, Purchaser’s and Seller’s attorneys’ fees, shall be borne and paid by the party incurring same.

(b)If the Close of Escrow does not occur by reason of Purchaser’s or Seller’s default under this Agreement, all escrow and title charges (including cancellation fees) shall be borne by the party in default.

9.3Procedures Upon Failure ofCondition. Except as otherwise expressly provided herein, if any condition set forth in sections 7.1 or 7.2 hereof is not timely satisfied or waived for a reason other than the default of Purchaser or Seller in the performance of its respective obligations under this Agreement:

(a)This Agreement, the Escrow and the respective rights and obligations of Seller and Purchaser hereunder shall terminate (other than the indemnity and insurance obligations of Purchaser set forth in sections 4.3.1 and 14 hereof, and the confidentiality provisions of section 4.6 hereof which shall survive such termination) at the written election of the party for

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whose benefit such condition was imposed, which written election must be made (i) within five days after the date such condition was to be satisfied, or (ii) on the date the Close of Escrow occurs, whichever occurs first;

(b)Escrow Holder shall promptly return to Purchaser all funds of Purchaser in its possession, including the Deposit and all interest accrued thereon, and shall promptly return and to Seller and Purchaser all documents deposited by them respectively, which are then held by Escrow Holder;

(c)Purchaser shall return to Seller the Property Information; and

(d)Any escrow cancellation and title charges shall be borne equally by Seller and Purchaser.

10.PRORATIONS.

Each proration hereinafter provided to be made as of the Close of Escrow shall be made as of the end of the day before the Closing Date. In each proration set forth below, the portion thereof applicable to periods beginning as of Close of Escrow shall be credited to Purchaser or charged to Purchaser as applicable, and the portion thereof applicable to periods ending as of Close of Escrow shall be credited to Seller or charged to Seller as applicable.

10.1Rent. All rent (including, without limitation, all minimum rents, additional rents and retroactive rents, but excluding tenant reimbursements for Operating Costs (as defined in section 10.2, below)) and all other income (collectively, the “Rents”) collected under Leases in effect on the Closing Date shall be prorated as of the Close of Escrow on an accrual basis. Any Rents which are in arrears as of the Close of Escrow to the extent payable for the period before the Close of Escrow, shall remain the property of Seller.  Purchaser shall apply Rent from tenants that are collected within 12 months after the Close of Escrow, (a) first, to Rents which are due to Purchaser after the Close of Escrow, and (b) second, to Rents which were due to Seller on or before the Close of Escrow.  Purchaser shall make reasonable efforts, without suit, to collect any Rents applicable to the period before the Close of Escrow including, without limitation, sending to tenants bills for the payment of past-due Rents during the first 12-month period following the Closing Date.  Seller may pursue collection of any Rents that were past-due as of the Closing Date, but Seller shall have no right to terminate any Lease or any tenant’s occupancy under any Lease in connection therewith.

10.2Operating Costs and Additional Rent Reconciliation. Seller, as landlord under the Leases, is currently collecting from tenants under the Leases additional rent to cover taxes, insurance, utilities (to the extent not paid directly by tenants), common area maintenance and other operating costs and expenses

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(collectively, “Operating Costs”) in connection with the ownership, operation, maintenance and management of the Real Property. To the extent that any additional rent (including, without limitation, estimated payments for Operating Costs) is paid by tenants to the landlord under the Leases based on an estimated payment basis (monthly, quarterly or otherwise) for which a future reconciliation of actual Operating Costs to estimated payments is required to be performed at the end of a reconciliation period, Purchaser and Seller shall make an adjustment at the Close of Escrow for the applicable reconciliation period (or periods, if the Leases do not have a common reconciliation period) based on a comparison of the actual Operating Costs as of the Close of Escrow to the estimated payments as of the Close of Escrow. If, as of the Close of Escrow, Seller has received additional rent payments in excess of the amount that tenants shall be required to pay, based on the actual Operating Costs as of the Close of Escrow, Purchaser shall receive a credit in the amount of such excess. If, as of the Close of Escrow, Seller has received additional rent payments that are less than the amount that tenants would be required to pay based on the actual Operating Costs as of the Close of Escrow, Seller shall receive a credit in the amount of such deficiency. Operating Costs that are not payable by tenants either directly or reimbursable under the Leases shall be prorated between Seller and Purchaser and shall be reasonably estimated by the parties if final bills are not available.

10.3Taxes and Assessments.  Real estate taxes and personal property taxes on the Property, including without limitation installments of general, special or betterment assessments on the Property (“Taxes”), shall be prorated based upon the period (i.e., calendar or other tax fiscal year) to which some are attributable, regardless of whether or not any such Taxes are then due and payable or are a lien.  Seller shall pay at or prior to Closing (or Purchaser shall receive credit for) any unpaid Taxes attributable to periods prior to the Closing Date (whether or not than due and payable or a lien as aforesaid) . Seller shall receive credit for any previously paid or prepaid Taxes attributable to periods from and after the Closing Date. In the event that as of the Closing Date the actual tax bills for the tax year or years in question are not available and the amount of Taxes to be prorated as aforesaid cannot be ascertained, then rates, millages and assessed valuation of the previous year, with known changes, shall be used; and after the Closing Date and when the actual amount of Taxes for the year or years in question shall be determinable, such Taxes will be reprorated between the parties to reflect the actual amount of such Taxes.

10.4[Intentionally Omitted.]

10.5Tenant Deposits.  All tenant security deposits reflected in Leases or disclosed in Tenant Estoppel Certificates and not theretofore applied to tenant obligations under the Leases shall be transferred or credited to Purchaser at the Close of Escrow.  As of the Close of Escrow, Purchaser shall assume

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Seller’s obligations related to tenant security deposits. Purchaser shall indemnify, defend and hold Seller harmless from and against all demands and claims made by tenants arising out of the transfer or disposition of any security deposits and shall reimburse Seller for all attorneys’ fees incurred or that may be incurred as a result of any such claims or demands as well as for all losses, expenses, verdicts, judgments, settlements, interest, costs and other expenses incurred or that may be incurred by Seller as a result of any such claims or demands by tenants.

10.6Utilities and Utility Deposits.  Utilities for the Real Property (excluding utilities for which payment is made directly by tenants), including, without limitation, water, sewer, electric and gas, based upon the last reading of meters before the Close of Escrow, shall be prorated.  Seller shall endeavor to obtain meter readings on the day before the Closing Date.  If such readings are obtained, there shall be no proration of such items, Seller shall pay at Close of Escrow the bills therefor for the period to the day before the Close of Escrow, and Purchaser shall pay the bills therefor for the period subsequent thereto.  If the utility company shall not issue separate bills, Purchaser shall receive a credit against the Purchase Price for Seller’s portion and shall pay the entire bill before delinquency after Close of Escrow.  If Seller has paid utilities no more than 30 days in advance in the ordinary course of business, Purchaser shall be charged its portion of such payment at Close of Escrow.  Purchaser shall be responsible for paying any security deposits required by utility companies providing service to the Real Property.

10.7December Stub Period.  Purchaser shall receive a credit at the Close of Escrow for the “December Stub Period” amounts for minimum rent and CAM Expenses for the Unoccupied Spaces, as all such terms are defined in the Vacancy Escrow Agreement.

10.8Percentage Rents.  Percentage rents (“Percentage Rents”) actually collected for the month in which the Close of Escrow occurs shall be prorated as of the Closing Date. Percentage Rents due after the Close of Escrow shall not be prorated.  Nevertheless, after Purchaser has completed any reconciliation of actual Percentage Rents payable and estimated Percentage Rents paid by tenants, and all reconciled amounts have been paid by tenants, a reconciliation shall be made between Seller and Purchaser with respect to such Percentage Rents. Pursuant to such reconciliation, Seller and Purchaser shall each be entitled to its proportionate share of all Percentage Rents paid for the subject Lease year used to calculate each tenant’s Percentage Rents (less any out-of-pocket costs incurred in collecting said amounts, which shall belong to Purchaser) based on the number of days of such year during which Seller and Purchaser owned the Property (and adjusted for any amount of Percentage Rent prorated at Close of Escrow or received by Seller or Purchaser). As used in this section, “Percentage Rents” shall not include and shall have deducted from such Percentage Rent amount any “base” or “minimum” rent component which is payable each month (regardless of actual sales), “base” or “minimum” rent component shall

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be prorated or otherwise handled in the manner provided in this Agreement. Purchaser shall make reasonable efforts, without suit, to collect all Percentage Rents payable after the Close ofEscrow and relating to the period before the Close of Escrow, and all Percentage Rents which are delinquent as of the Close of Escrow, including, without limitation, sending to tenants bills for the payment of the same. Seller may pursue collection of all Percentage Rents payable after the Close of Escrow and relating to the period before the Close of Escrow and all Percentage Rents which are delinquent as of the Close of Escrow, although Seller shall have no right to terminate any Lease or any tenant’s occupancy under any Lease in connection therewith.

10.9Final Adjustment After Closing.  If final prorations cannot be made at the Close of Escrow for any item being prorated under this section 10, as long as Purchaser or Seller identifies any such proration (“Post-Closing Proration”) in writing before the Close of Escrow, Purchaser and Seller shall allocate such items on a fair and equitable basis as soon as invoices or bills are available and applicable reconciliation with tenants have been completed, with final adjustment to be made as soon as reasonably possible after the Close of Escrow (but in no event later than 90 days after the Close of Escrow, except that adjustments arising from Percentage Rants under section 10.8 hereof shall not be subject to such 90-day limitation, but shall be made as soon as reasonably possible).  Operating Costs shall be a Post-Closing Proration. Payments in connection with the final adjustment shall be due no later than 100 days after the Close of Escrow, except that adjustments arising from Percentage Rents under section 10.8 hereof shall not be subject to such 100-day limitation, but shall be made as soon as reasonably possible. Seller shall have reasonable access to, and the right to inspect and audit, Purchaser’s books to confirm the final prorations for a period of one year after the Close of Escrow. Notwithstanding anything to the contrary stated in this section 10, except for any reconciliation arising out of Percentage Rents under section 10.8 hereof and except for any Post-Closing Prorations (which must be determined and paid within 100 days after the Close of Escrow), all prorations made under this section 10 shall be final as of the Close of Escrow and shall not be subject to further adjustment (whether due to an error or for any other reason) after the Close of Escrow.

11.SELLER’S REPRESENTATIONS AND WARRANTIES; AS-IS.

11.1Seller’s Representations and Warranties. In consideration of Purchaser’s entering into this Agreement and as an inducement to Purchaser to purchase the Real Property from Seller, Seller makes the following representations and warranties to Purchaser, as of the Effective Date:

(a)   (i)       Seller has the legal right, power and authority to enter into this Agreement and the instruments described herein, and to consummate the transaction contemplated hereby;

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(ii)       All requisite action (corporate, trust, partnership or otherwise) has been taken by Seller in connection with the entering into this Agreement and the instruments described herein, and the consummation of the transaction contemplated hereby. No consent of any partner, shareholder, trustee, member, manager, trustor, beneficiary, creditor, investor, judicial or administrative body, governmental authority or other party is required;

(iii)      The individuals executing this Agreement and the instruments described herein on behalf of Seller and the partners of Seller, if any, have the legal power, right and actual authority to bind Seller to the terms and conditions hereof and thereof;

(iv)     This Agreement and all documents required hereby to be executed by Seller are and shall be valid, legally binding obligations of, and enforceable against, Seller in accordance with their terms; and

(v)      The execution and delivery of this Agreement and the documents and instruments described herein, the incurrence of the obligations set forth herein, the consummation of the transaction contemplated herein, the compliance with the terms of this Agreement and the documents and instruments referenced herein do not and shall not conflict with or result in the material breach of any term, condition or provision of, or constitute a default under, any bond, note or other evidence of indebtedness or any contract, indenture, mortgage, deed of trust, loan, partnership agreement, articles of organization, operating agreement, lease or other agreement or instrument to which Seller is a party, affecting Seller or affecting the Property;

(b)To Seller’s actual knowledge, Seller has not received any written notice that either the Property or Seller, or both, are subject to any existing, pending or threatened investigation or inquiry by any governmental authority or to any remedial obligations under any applicable laws pertaining to health or the environment;

(c)To Seller’s actual knowledge, the Rent Roll and the copies of the Leases delivered to Purchaser are true, current and complete copies thereof.  There may, however, be minor variances in the copies of Leases resulting from copier errors. Seller shall correct any mistakes in the Lease copies due to copier errors within a reasonable time after becoming aware of such errors;

(d)Seller has no actual knowledge that the Real Property has been contaminated by, or used for the storage or disposal of, any hazardous substances, hazardous waste or petroleum which, as of the Effective Date, is required by any governmental entity to be remediated;

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(e)Seller has no actual knowledge of any pending litigation (including, without limitation, any condemnation or notice of condemnation) affecting or related to the Property;

(f)Seller has no actual knowledge of any governmental violations with respect to the Property, or that the interior and exterior structures are not in a good state of repair, free of leaks, structural problems and mold, or that the Property is not in compliance with federal, state, city and county ordinances, environmental laws and concerns;

(g)no tenant under a Lease has a lease term that exceeds the lease term stated in its Lease, nor does any tenant under a Lease, except as set forth in its Lease, have an option or right of first refusal to purchase or extend; and

(h)Purchaser shall have no obligation whatever regarding the construction described in section 7.1(e), above.

For purposes of this section 11.1, the phrase “To Seller’s Actual Knowledge” shall mean the actual (and not implied, imputed or constructive) knowledge of Jeff Allen (whom the Seller represents is the vice president of the managing member of the managing member of Seller), without any inquiry or investigation of any other parties, including, without limitation, the tenants and the property manager of the Real Property.

The representations and warranties made by Seller in this Agreement shall survive the recordation of the Deed for a period of 12 months and any action for a breach of Seller’s representations or warranties must be made and filed within said 12-month period. If, after the Effective Date, but before the Close of Escrow, Seller becomes aware of any facts or changes in circumstances that would cause any of its representations and warranties in this Agreement to be untrue at Close of Escrow, Seller may notify Purchaser in writing ofsuch fact. In such case, or if Purchaser obtains information which would cause any of Seller’s representations and warranties to be untrue at Close of Escrow, Purchaser, as its sole and exclusive remedy, shall have the right, chosen in a writing from Purchaser to Seller no later than three business days after Seller shall have so notified Purchaser or Purchaser shall have obtained such information, to either (i) terminate this Agreement, in which case the Deposit shall be immediately returned to Purchaser and neither party shall have any rights or obligations under this Agreement (except for sections 4.3.1 and 15.5 which survive termination of this Agreement), or (ii) accept a qualification to Seller’s representations and warranties as of the Close of Escrow and complete the purchase and sale of the Property without any rights to recovery for breach of the unqualified representation and warranty. Failure of Purchaser so to elect either subsection (i) or (ii), above, shall be deemed to be Purchaser’s election to take the action described in subsection (ii), above. If, however, Seller’s representations and warranties shall be untrue at the Close of Escrow because of Seller’s intentional misrepresentation,

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in lieu of the remedies described in subsections (i) and (ii), above, within three business days after Purchaser’s becoming aware of the same, upon written notice from Purchaser to Seller, Seller shall be in default under this Agreement. Other than as set forth in the three immediately preceding sentences, if Purchaser proceeds with the Close ofEscrow, Purchaser shall be deemed to have expressly waived all remedies for the breach of any representation or warranty discovered by Purchaser before the Close of Escrow.

11.2As-Is.  As of the expiration of the Due Diligence Period, Purchaser shall have:

(a)examined and inspected the Property, and shall know and be satisfied with the physical condition, quality, quantity and state of repair of the Property in all respects (including, without limitation, the compliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws, as amended (collectively, the “ADA”)), and by proceeding with this transaction following the expiration of the Due Diligence Period shall be deemed to have determined that the same is satisfactory to Purchaser;

(b)reviewed the Property Information and all instruments, records and documents which Purchaser deems appropriate or advisable to review in connection with this transaction, including, without limitation, all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guaranties relating to the Real Property or the business conducted thereon, and Purchaser, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Purchaser;

(c)reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Purchaser, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Purchaser; and

(d)at its own cost and expense, made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Purchaser, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Purchaser.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF

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THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN THE DEED DELIVERED AT THE CLOSE OF ESCROW (“SELLER’S WARRANTIES”), THIS SALE IS MADE AND SHALL BE MADE WITHOUT REPRESENTATION, COVENANT OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, PURCHASER SHALL ACCEPT THE PROPERTY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA) . PURCHASER ACKNOWLEDGES THAT, EXCEPT FOR SELLER’S WARRANTIES, PURCHASER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE AND LEGAL CONDITION OF THE PROPERTY AND THAT PURCHASER IS NOT NOW RELYING, AND SHALL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, PURCHASER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, PURCHASER IS TAKING THE PROPERTY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, PURCHASER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) PURCHASER TAKES THE PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, EXCEPT FOR SELLER’S WARRANTIES.

WITH RESPECT TO THE FOLLOWING, PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS MADE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND:

THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;

THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE PROPERTY INFORMATION) DELIVERED TO PURCHASER PURSUANT TO PURCHASER’S REVIEW OF THE CONDITION OF THE PROPERTY; AND

THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO PURCHASER BY SELLER OR REVIEWED BY PURCHASER WITH RESPECT TO THE PROPERTY.

PURCHASER IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR

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SHALL BE AS OF THE CLOSE OF ESCROW, FAMILIAR WITH THE REAL PROPERTY AND ITS SUITABILITY FOR PURCHASER’S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSE OF ESCROW.

/s/ [ILLEGIBLE]

PURCHASER’S INITIALS

12.PURCHASER’S COVENANTS, REPRESENTATIONS AND WARRANTIES; RELEASE.

In consideration of Seller entering into this Agreement and as an inducement to Seller to sell the Real Property to Purchaser, Purchaser makes the following covenants, representations and warranties;

12.1Authority.  Purchaser has the legal right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, and the execution, delivery and performance of this Agreement have been duly authorized and no other action by Purchaser is requisite to the valid and binding execution, delivery and performance of this Agreement, except as otherwise expressly set forth herein.  There is no agreement to which Purchaser is a party or to Purchaser’s knowledge binding on Purchaser which is in conflict with this Agreement.

12.2Release.  By proceeding with this transaction following the expiration of the Due Diligence Period, Purchaser shall be deemed to have made its own independent investigation of the Property, the Property Information and the presence of Hazardous Materials on the Real Property as Purchaser deems appropriate. Accordingly, subject to the representations and warranties of Seller expressly set forth in section 11.1 hereof, Purchaser, on behalf of itself and all of its officers, directors, partners, shareholders, members, managers, employees, representatives and affiliated entities (collectively, the “Releasors”), hereby expressly waives and relinquishes all rights and remedies Releasors may now or hereafter have against Seller, its successors and assigns, officers, directors, partners, shareholders, members, managers, employees, representatives and affiliated entities (the “Seller Parties”), whether known or unknown, which may arise from or be related to:  (a) the physical condition, quality, quantity and state of repair of the Real Property, and the prior management and operation of the Real Property, (b) the Property Information, (c) the Real Property’s compliance or lack of compliance with any federal, state or local laws or regulations, and (d) any past, present or future presence or existence of Hazardous Materials on, under or about the Real Property, and with respect to any past, present or future violation of any rules, regulations or laws, now or hereafter enacted, regulating or governing the use, handling, storage or disposal of Hazardous Materials, including, without limitation, (i)  all rights and remedies Raleasors may now or hereafter have under the Comprehensive Environmental Response Compensation and Liability Act of 1980 (“CERCLA”), the Superfund

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Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act, and the Toxic Substance Control Act, each as amended, and any similar state, local or federal environmental law, rule or regulation, and (ii) all claims, whether known or unknown, now or hereafter existing, with respect to the Real Property under section 107 of CERCLA (42 U.S.C.A. §9607) . As used herein, the term “Hazardous Material (s)” includes, without limitation, any hazardous or toxic materials, substances or wastes, such as (1) any materials, substances or wastes which are toxic, ignitable, corrosive or reactive, and which are regulated by any local governmental authority or any agency of the United States government, (2) any other material, substance or waste which is defined or regulated as a hazardous material, extremely hazardous material, hazardous waste or toxic substance pursuant to any laws, rules, regulations or orders of the United States government, or any local governmental body, (3) asbestos, (4) petroleum and petroleum based products, (5) formaldehyde, (6) polychlorinated biphenyls (PCBs), and (7) freon other chlorofluorocarbons.

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PURCHASER, ON BEHALF OF ITSELF AND THE OTHER RELEASORS, HEREBY ASSUMES ALL RISK AND LIABILITY RESULTING OR ARISING FROM, OR RELATING TO THE OWNERSHIP, USE, CONDITION, LOCATION, MAINTENANCE, REPAIR OR OPERATION OF THE PROPERTY.

THE FOREGOING WAIVERS, RELEASES AND AGREEMENTS BY PURCHASER, ON BEHALF OF ITSELF AND THE RELEASORS, SHALL SURVIVE THE CLOSE OF ESCROW AND THE RECORDATION OF THE DEED, AND SHALL NOT BE DEEMED MERGED INTO THE DEED UPON ITS RECORDATION.

13.DEFAULT AND DAMAGES.

13.1DEFAULT BY PURCHASER.  PURCHASER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IF THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO A PURCHASER DEFAULT (ALL OF THE CONDITIONS TO PURCHASER’S OBLIGATIONS TO CLOSE HAVING BEEN SATISFIED OR WAIVED), SELLER SHALL SUFFER DAMAGES IN AN AMOUNT WHICH SHALL, DUE TO THE SPECIAL NATURE OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THE SPECIAL NATURE OF THE NEGOTIATIONS WHICH PRECEDED THIS AGREEMENT, BE IMPRACTICAL OR EXTREMELY DIFFICULT TO ASCERTAIN. IN ADDITION, PURCHASER WISHES TO HAVE A LIMITATION PLACED UPON THE POTENTIAL LIABILITY OF PURCHASER TO SELLER IF THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO A PURCHASER DEFAULT, AND WISHES TO INDUCE SELLER TO WAIVE OTHER REMEDIES WHICH SELLER MAY HAVE IN THE EVENT OF A PURCHASER DEFAULT. PURCHASER AND SELLER, AFTER DUE NEGOTIATION, HEREBY ACKNOWLEDGE AND AGREE THAT THE AMOUNT OF THE DEPOSIT REPRESENTS A REASONABLE ESTIMATE OF THE DAMAGES WHICH SELLER SHALL SUSTAIN IN THE EVENT OF SUCH PURCHASER DEFAULT. PURCHASER AND SELLER HEREBY AGREE THAT SELLER MAY, IF THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO A PURCHASER DEFAULT, TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO PURCHASER AND ESCROW HOLDER, CANCEL THE ESCROW AND RECEIVE OR RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES, AND ESCROW HOLDER SHALL IMMEDIATELY DELIVER (UNLESS IT HAS ALREADY DONE SO) THE DEPOSIT TO SELLER. SUCH RETENTION OF THE DEPOSIT BY

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SELLER IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER AMD SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY.

NOTHING IN THIS SECTION 13.1 SHALL (A) PREVENT OR PRECLUDE ANY RECOVERY OP ATTORNEYS’ FEES OR OTHER COSTS INCURRED BY SELLER PURSUANT TO SECTION 15.5, OR (B) IMPAIR OR LIMIT THE EFFECTIVENESS OR ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATIONS OF PURCHASER CONTAINED IN SECTION 4.3.1 HEREOF. SELLER AND PURCHASER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION 13.1 AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS.

SELLER’S INITIALS:	/s/ [ILLEGIBLE]
PURCHASER’S INITIALS:		/s/ [ILLEGIBLE]

13.2Default by Seller.  If Seller defaults in its obligations to sell and convey the Property to Purchaser pursuant to this Agreement, Purchaser’s sole and exclusive remedy shall be to elect one of the following: (a) to terminate this Agreement, in which event Purchaser shall be entitled to the return by the Escrow Holder to Purchaser of the Deposit, or (b) to bring a suit for specific performance, but any suit for specific performance must be brought within 180 days of Seller’s default, with Purchaser waiving the right to bring suit at any later date to the extent permitted by law, This Agreement confers no present eight, title or interest in the Property to Purchaser, and Purchaser shall not file a lie pendens or other similar notice against the Real Property except in connection with, and after, the proper filing of a suit for specific performance.

14.BROKER’S COMMISSIONS.

Except for Kitchell Development Company, Seller’s broker, and Escee Commercial, Purchaser’s broker, both of which shall be paid by Seller, neither party hereto has had any contact or dealing regarding the Real Property, or any communication in connection with the subject matter of this transaction, through any licensed real estate broker or other person who can claim a right to a commission or finder’s fee as a procuring cause of the sale contemplated herein. If any other broker or finder perfects a claim for a commission or finder’s fee, the party responsible for the contact or communication on which the broker or finder perfected such claim shall indemnify, save harmless and defend the other party from said claim, and all costs and expenses (including reasonable attorneys’ fees) incurred by the other party in defending against the same.

15.MISCELLANEOUS PROVISIONS.

15.1Notices.  All written notices or demands of any kind which either party hereto may be required or may desire to serve on the other in connection with this Agreement shall be served by personal service, by registered or certified mail, recognized overnight courier service or facsimile transmission. Any such

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notice or demand so to be served by registered or certified mail, recognized overnight courier service or facsimile transmission shall be delivered with all applicable delivery charges thereon fully prepaid and, if the party so to be served be Seller, addressed to Seller as follows:

Gateway Pavilions, L.L.C.,

c/o Kitchell Development Company

1707 E. Highland, Suite 100

Phoenix, Arizona 85016

Attention:  Mr. Jeff Allen

Fax No.:  (602) 264-6133

with a copy thereof to:

Martin L. Flicker, Esq.
1000 Quail Street, Suite 210
Newport Beach, California 92660
Fax No.: (949) 252-9335

and, if the party so to be served be Purchaser, addressed to Purchaser as follows:

Inland Real State Acquisitions, Inc.

2901 Butterfield Road

Oak Brook, Illinois  60523

Attention: Mr. Lou Quilici

Fax No.: (630) 218-4935

with a copy thereof to:

Robin Rash, Esq.

The Inland Real Estate Group, Inc./Law Department

2901 Butterfield Road

Oak Brook, Illinois  60523

Fax No.: (630) 218-4900

and, if the party to be served be Escrow Holder, addressed to Escrow Holder as follows:

First American Title Company
National Commercial Services
30 N. LaSalle Street, Suite 310
Chicago, IL 60602
Attention: Steven Zellinger
Fax No.: (312) 553-0480

Service of any such notice or demand so made by personal delivery, registered or certified mail, recognized overnight courier or facsimile transmission shall be deemed given and received on the date of actual delivery as shown by the addressee’s registry or certification of receipt or, as to facsimile transmissions, by “answer back confirmation” (as long as a copy of such notice or demand is delivered by any of the other methods provided above within one business day following receipt of such facsimile

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transmission), as applicable, or at the expiration of the third business day after the date of dispatch, whichever is earlier. Either party hereto may from time to time, by notice in writing served upon the other as aforesaid, designate a different mailing address to which or a different person to whose attention all such notices or demands are thereafter to be addressed.

15.2Assignment; Binding on Successors and Assigns.  Purchaser may assign its rights and obligations under this Agreement to an entity sponsored by Inland Retail Real Estate Trust, Inc., Inland Western Retail Real Estate Trust, Inc. or Inland Real Estate Investment Corporation, or their affiliates, without the consent of Seller, provided Purchaser (a) provides written notice to Seller and Escrow Holder not later than five (5) days prior to the Closing Date; and (b) Purchaser remains liable to Seller for all obligations of Purchaser under this Agreement. Except as described in the previous sentence, Purchaser shall not assign, transfer or convey its rights or obligations under this Agreement or with respect to the Property without the prior written consent of Seller, which consent Seller may withhold in its sole and absolute discretion.  Any such attested assignment without the prior written consent of Seller shall be void and Purchaser shall be deemed in default hereunder.  Seller shall not assign, transfer or convey its rights or obligations under this Agreement or with respect to the Property without the prior written consent of Purchaser, which consent Purchaser may withhold in its sole and absolute discretion.  Any such attempted assignment without the prior written consent of Purchaser shall be void and Seller shall be deemed in default hereunder.  Subject to the foregoing, and except as provided to the contrary herein, the terms, covenants, conditions and warranties contained herein, and the powers granted hereby, shall inure to the benefit of and bind all parties hereto and their respective successors and assigns, and all subsequent owners of the Property.  Any assignment shall not relieve the assigning party from its liability under this Agreement.

15.3[Intentionally Omitted.]

15.4Further Assurances.  In addition to the acts and deeds recited herein and contemplated to be performed, executed or delivered by Seller or Purchaser, Seller and Purchaser shall perform, execute and deliver, or cause to be performed, executed and delivered, on the Closing Date or thereafter, all such further acts, deeds and assurances as Purchaser or Seller, as the case may be, may reasonably require in order to consummate fully the transactions contemplated hereunder.

15.5Attorneys’ Fees.  If any legal action or any arbitration or other proceeding is brought, or if an attorney is retained for the enforcement of this Agreement or any portion thereof, or because of any alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover from the other party reimbursement for the reasonable fees of attorneys

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and other costs (including court costs and witness fees) incurred by it, in addition to any other relief to which it may be entitled. The term “prevailing party” means the party obtaining substantially the relief sought, whether by compromise, settlement or judgment.

15.6Survival of Representations, Warranties and Agreements.  Unless otherwise expressly stated in this Agreement, (a) each of the covenants, obligations, representations, and agreements contained in this Agreement shall survive the Close of Escrow and the execution and delivery of the Deed only for a period of six months immediately following the Closing Date, and (b) any claim based upon a misrepresentation or a breach of a warranty contained in this Agreement shall be actionable or enforceable only if notice of such claim is given to the party which allegedly made such misrepresentation or breached such covenant, obligation, warranty or agreement within six months after the Closing Date. Notwithstanding anything stated to the contrary in this Agreement, the indemnification provisions of sections 4.3.1, 10.5 and 14 hereof and the provisions of sections 4.5, 4.6, 10.1, 10.3, 10.8, 10.9, 11.2, 12.2, 13.2, 15.5, 15.16 and 15.17 hereof shall survive the termination of this Agreement or the Close of Escrow without limitation, and shall not be merged with the recording of the Deed.

15.7Entire Agreement.  This Agreement contains the entire agreement and understanding of the parties in respect to the subject matter hereof.  The literal words of this Agreement shall govern, and all prior negotiations, drafts and other extrinsic communications, whether oral or written, shall have no significance or evidentiary effect.  Neither this Agreement nor any of its provisions may be changed, amended, discharged, waived or otherwise modified orally, but only by an instrument in writing duly executed by the party to be bound thereby.  This Agreement accurately reflect the agreements and understandings of the parties hereto with respect to the subject matter hereof.

15.8Governing Law. This Agreement shall be governed by the laws of the State of Arizona.

15.9Counterparts.  This Agreement may be executed simultaneously in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

15.10Headings; Construction.  The various headings of this Agreement are included for convenience only and shall not affect the meaning or interpretation of this Agreement or any provision hereof. When the context and construction so require, all words used in the singular herein shall be deemed to have been used in the plural, the masculine shall include the feminine and the neuter, and vice versa. The use in this Agreement of the term “including” and related terms such as “include” shall in all cases mean “without limitation.”All references to “days” in this Agreement shall be construed to mean calendar days unless

32

otherwise expressly provided, and all references to “business days” shall be construed to mean days on which national banks are open for business.

15.11Time of Essence. Time is strictly of the essence with respect to each and every term, condition, obligation and provision hereof, and the failure to perform timely any of the terms, conditions, obligations or provisions hereof by either party shall constitute a material breach of, and non-curable (but waivable) default under, this Agreement by the party so failing to perform.

15.12Partial Validity; Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances, other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each such term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.

15.13No Third Party Beneficiaries. This Agreement is for the sole and exclusive benefit of the parties hereto and their respective permitted successors and assigns, and no third party is intended to, or shall have, any rights hereunder.

15.14Joint Product of Parties. This Agreement is the result of arms-length negotiations between Seller and Purchaser and their respective attorneys.  Accordingly, neither party shall be deemed to be the author of this Agreement and this Agreement shall not be construed against either party.

15.15Calculation of Time Periods. If the last day of any period of time hereunder is not a business day, the period shall run until the end of the next business day. The last day of any period of time described herein shall be deemed to end at 5:00 p.m., Mountain Standard Time.

15. 16Waiver of Jury Trial. To the extent permitted by applicable law, the parties hereby waive any right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

15.l7No Personal Liability.  Notwithstanding anything stated to the contrary herein, Seller’s liability under this Agreement shall be limited to Seller’s interest in the Property and neither Seller, Seller’s constituent partners, Seller’s asset manager, nor Seller’s directors, officers, shareholders, partners, members, managers, employees or agents shall have any personal liability hereunder.

15.18Section 1031 Exchange.  Seller may consummate the sale of the Real Property as part of a so-called like kind exchange (the “Exchange”) pursuant to Section 1031 of the Internal Revenue

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Code of 1986, as amended (the “Code”), but only if the Close of Escrow shall not be delayed or affected by reason of the Exchange. The consummation or accomplishment of the Exchange shall not be a condition precedent or condition subsequent to Seller’s obligations under this Agreement. Purchaser shall not, as a result of this section 15.18: (i) have its rights under this Agreement increased or diminished, or (ii) be responsible for compliance with, or be deemed to have warranted to Seller that, the Exchange in fact complies with Section 1031 of the Code.

15.l9Cooperation with Purchaser’s Audit. Seller agrees to cooperate fully with Purchaser and Purchaser’s representatives to facilitate Purchaser’s evaluations and reports, including at least a one (1) year audit of the books and records of the Property that qualify, comply with and can be used in a public offering and an audit representation letter to be delivered by Seller prior to the Closing Date.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written.

               PURCHASER

INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
By:
	Name:
		Title:

SELLER

GATEWAY PAVILIONS, L. L. C., an Arizona limited liability company
By:		KDC-GP Partners, L.L.C.,
		an Arizona limited liability company, Manager and Member
By:			Kitchell Development
			Company, an Arizona
			corporation, Managing Member
By:	/s/ Jeff Allen
	Jeff Allen,
	Vice President

Acceptance by Escrow Holder:

First American Title Company hereby acknowledges that it has

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PURCHASER

INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
By:	/s/ [ILLEGIBLE]
	Name:		[ILLEGIBLE]
	Title:	SRVP

SELLER

GATEWAY PAVILIONS, L.L.C., an Arizona limited liability company
By:		KDC-GP Partners, L.L.C.,
		an Arizona limited liability
		company, Manager and Member
By:			Kitchell Development
			Company, an Arizona
			corporation, Managing
			Member
By:
	Jeff Allen,
	Vice President

Acceptance by Escrow Holder:

First American Title Company hereby acknowledges that it has received a fully executed original or originally executed counterparts of the foregoing Agreement of Purchase and Sale Agreement and Escrow Instructions, agrees to act as Escrow Holder thereunder, and agrees to be bound by and strictly perform the terms thereof as such terms apply to Escrow Holder.

Dated: 8-11-04, 2004.	FIRST AMERICAN TITLE COMPANY
	By:	/s/ Elizabeth Rune
		Its Authorized Agent

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EX-10.448

Exhibit 10.448

PROMISSORY NOTE

$35,842,000.00	Chicago, Illinois
	December 30, 2004

FOR VALUE RECEIVED, INLAND WESTERN AVONDALE MCDOWELL, L.L.C., a Delaware limited liability company, having its principal place of business at 2901 Butterfield Road, Oak Brook, Illinois 60523, a maker hereunder (referred to herein as “Borrower”), hereby unconditionally promises to pay to the order of LASALLE BANK NATIONAL ASSOCIATION, a national banking association, as payee, having an address at 135 South LaSalle Street, Suite 3410, Chicago, Illinois 60603 (“Lender”), or at such other place as the holder hereof may from time to time designate in writing, the principal sum of THIRTY-FIVE MILLION EIGHT HUNDRED FORTY-TWO THOUSAND AND 00/100 DOLLARS ($35,842,000.00), in lawful money of the United States of America with interest thereon to be computed from the date of this Promissory Note at the Interest Rate, and to be paid in accordance with the terms of this Promissory Note and that certain Loan Agreement, dated as of the date hereof, by and between Borrower and Lender (the “Loan Agreement”). All capitalized terms not defined herein shall have the respective meanings set forth in the Loan Agreement.

ARTICLE 1

PAYMENT TERMS

Borrower agrees to pay interest on the unpaid principal sum of this Note from time to time outstanding at the rates and at the times specified in the Loan Agreement and the outstanding balance of the principal sum of this Promissory Note and all accrued and unpaid interest thereon shall be due and payable on the Maturity Date. This Promissory Note shall be the “Note” as defined in the Loan Agreement.

ARTICLE 2

DEFAULT AND ACCELERATION

The Debt shall without notice become immediately due and payable at the option of Lender if any payment required in this Note is not paid on or prior to the date when due or if not paid on the Maturity Date or on the happening of any other Event of Default.

ARTICLE 3

LOAN DOCUMENTS

This Note is secured by the Mortgage and the other Loan Documents. All of the terms, covenants and conditions contained in the Loan Agreement, the Mortgage and the other Loan Documents are hereby made part of this Note to the same extent and with the same force as if they were fully set forth herein. In the event of a conflict or inconsistency between the terms of this Note and the Loan Agreement, the terms and provisions of the Loan Agreement shall govern.

ARTICLE 4

SAVINGS CLAUSE

Notwithstanding anything to the contrary, (a) all agreements and communications between Borrower and Lender are hereby and shall automatically be limited so that, after taking into account all amounts deemed interest, the interest contracted for, charged or received by Lender shall never exceed the maximum lawful rate or amount, (b) in calculating whether any interest exceeds the lawful maximum, all such interest shall be amortized, prorated, allocated and spread over the full amount and term of all principal indebtedness of Borrower to Lender, and (c) if through any contingency or event, Lender receives or is deemed to receive interest in excess of the lawful maximum, any such excess shall be deemed to have been applied toward payment of the principal of any and all then outstanding indebtedness of Borrower to Lender, or if there is no such indebtedness, shall immediately be returned to Borrower.

ARTICLE 5

NO ORAL CHANGE

This Note may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Borrower or Lender, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.

ARTICLE 6

WAIVERS

Borrower and all others who may become liable for the payment of all or any part of the Debt do hereby severally waive presentment and demand for payment, notice of dishonor, notice of intention to accelerate, notice of acceleration, protest and notice of protest and non-payment and all other notices of any kind. No release of any security for the Debt or extension of time for payment of this Note or any installment hereof, and no alteration, amendment or waiver of any provision of this Note, the Loan Agreement or the other Loan Documents made by agreement between Lender or any other Person shall release, modify, amend, waive, extend, change, discharge, terminate or affect the liability of Borrower, and any other Person who may become liable for the payment of all or any part of the Debt, under this Note, the Loan Agreement or the other Loan Documents.  No notice to or demand on Borrower shall be deemed to be a waiver of the obligation of Borrower or of the right of Lender to take further action without further notice or demand as provided for in this Note, the Loan Agreement or the other Loan Documents. If Borrower is a partnership, the agreements herein contained shall remain in force and applicable, notwithstanding any changes in the individuals comprising the partnership, and the term “Borrower,” as used herein, shall include any alternate or successor partnership, but any predecessor partnership and their partners shall not thereby be released from any liability. If Borrower is a limited liability company, the agreements herein contained shall remain in force and applicable, notwithstanding any changes in the members comprising the company, and the term “Borrower,” as used herein, shall include any alternate or successor company, but any

2

predecessor company shall not thereby be released from any liability. If Borrower is a corporation, the agreements contained herein shall remain in full force and applicable notwithstanding any changes in the shareholders comprising, or the officers and directors relating to, the corporation, and the term “Borrower” as used herein, shall include any alternative or successor corporation, but any predecessor corporation shall not be relieved of liability hereunder.  (Nothing in the foregoing sentence shall be construed as a consent to, or a waiver of, any prohibition or restriction on transfers of interests in such entity which may be set forth in the Loan Agreement, the Mortgage or any other Loan Document.)

ARTICLE 7

TRANSFER

Upon the transfer of this Note, Borrower hereby waiving notice of any such transfer except as provided in the Loan Agreement, Lender may deliver all the collateral mortgaged, granted, pledged or assigned pursuant to the Loan Documents, or any part thereof, to the transferee who shall thereupon become vested with all the rights herein or under applicable law given to Lender with respect thereto, and Lender shall from that date forward forever be relieved and fully discharged from any liability or responsibility in the matter; but Lender shall retain all rights hereby given to it with respect to any liabilities and the collateral not so transferred.

ARTICLE 8

EXCULPATION

The provisions of Section 9.4 of the Loan Agreement are hereby incorporated by reference into this Note to the same extent and with the same force as if fully set forth herein.

ARTICLE 9

GOVERNING LAW

THIS NOTE SHALL BE DEEMED TO BE A CONTRACT ENTERED INTO PURSUANT TO THE LAWS OF THE STATE OF ILLINOIS AND SHALL IN ALL RESPECTS BE GOVERNED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES, AND THE APPLICABLE FEDERAL LAWS.  BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY COURT OF COMPETENT JURISDICTION LOCATED IN THE CITY OF CHICAGO AND STATE OF ILLINOIS IN CONNECTION WITH ANY PROCEEDING OUT OF OR RELATING TO THIS NOTE.

3

ARTICLE 10

NOTICES

All notices or other written communications hereunder shall be delivered in accordance with Section l0.6 of the Loan Agreement.

[Signature Page to Follow]

4

IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and year first above written.

BORROWER:
INLAND WESTERN AVONDALE MCDOWELL,
L.L.C., a Delaware limited liability company
By:	Inland Western Retail Real Estate Trust,
	Inc., a Maryland corporation, its sole
	Member
	By:	/s/ Debra A. Palmer
	Name:	Debra A. Palmer
	Title:	Assistant Secretary

EX-10.449

Exhibit 10.449

LOAN AGREEMENT

Dated as of December 30, 2004

Between

INLAND WESTERN AVONDALE MCDOWELL, L.L.C.,

as Borrower

and

LASALLE BANK NATIONAL ASSOCIATION,

as Lender

TABLE OF CONTENTS

ARTICLE I	DEFINITIONS; PRINCIPLES OF CONSTRUCTION
Section 1.1	Definitions
Section 1.2	Principles of Construction
ARTICLE II	GENERAL TERMS
Section 2.1	Loan Commitment; Disbursement to Borrower
Section 2.2	Interest; Loan Payments; Late Payment Charge
Section 2.3	Prepayments
Section 2.4	Intentionally Omitted
Section 2.5	Release of Property
Section 2.6	Manner of Making Payments
Section 2.7	Intentionally Omitted
ARTICLE III	CONDITIONS PRECEDENT
Section 3.1	Conditions Precedent to Closing
ARTICLE IV	REPRESENTATIONS AND WARRANTIES
Section 4.1	Borrower Representations
Section 4.2	Survival of Representations
ARTICLE V	BORROWER COVENANTS
Section 5.1	Affirmative Covenants
Section 5.2	Negative Covenants
ARTICLE VI	INSURANCE; CASUALTY; CONDEMNATION
Section 6.1	Insurance
Section 6.2	Casualty
Section 6.3	Condemnation
Section 6.4	Restoration
ARTICLE VII	RESERVE FUNDS
Section 7.1	Required Repair Funds
Section 7.2	Tax and Insurance Escrow Fund
Section 7.3	Replacements and Replacement Reserve
Section 7.4	Intentionally Omitted
Section 7.5	Intentionally Omitted
Section 7.6	Intentionally Omitted
Section 7.7	Reserve Funds, Generally
ARTICLE VIII	DEFAULTS
Section 8.1	Event of Default
Section 8.2	Remedies
Section 8.3	Remedies Cumulative; Waivers

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ARTICLE IX	SPECIAL PROVISIONS
Section 9.1	Sale of Notes and Securitization
Section 9.2	Securitization
Section 9.3	Rating Surveillance
Section 9.4	Exculpation
Section 9.5	Termination of Manager
Section 9.6	Servicer
Section 9.7	Splitting the Loan
ARTICLE X	MISCELLANEOUS
Section 10.1	Survival
Section 10.2	Lender’s Discretion
Section 10.3	Governing Law
Section 10.4	Modification, Waiver in Writing
Section 10.5	Delay Not a Waiver
Section 10.6	Notices
Section 10.7	Trial by Jury
Section 10.8	Headings
Section 10.9	Severability
Section 10.10	Preferences
Section 10.11	Waiver of Notice
Section 10.12	Remedies of Borrower
Section 10.13	Expenses; Indemnity
Section 10.14	Schedules Incorporated
Section 10.15	Offsets, Counterclaims and Defenses
Section 10.16	No Joint Venture or Partnership; No Third Party Beneficiaries
Section 10.17	Publicity
Section 10.18	Waiver of Marshalling of Assets
Section 10.19	Waiver of Counterclaim
Section 10.20	Conflict; Construction of Documents; Reliance
Section 10.21	BROKERS AND FINANCIAL ADVISORS
Section 10.22	Prior Agreements
Section 10.23	Sale of Loan
Section 10.24	Joint and Several Liability

SCHEDULES
Schedule I	-	Intentionally Omitted
Schedule II	-	Intentionally Omitted
Schedule III	-	Required Repairs
Schedule IV	-	Rent Roll
Schedule V	-	Intentionally Omitted
Schedule VI	-	Intentionally Omitted
Schedule VII	-	Intentionally Omitted
Schedule VIII	-	Intentionally Omitted
Schedule IX	-	Intentionally Omitted
Schedule X	-	Other Contract Funds Agreements

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LOAN AGREEMENT

THIS LOAN AGREEMENT, dated as of this 30 day of December, 2004 (as amended, restated, replaced, supplemented or otherwise modified fromtime to time, this “Agreement”), between LASALLE BANK NATIONAL ASSOCIATION, a national banking association, having an address at 135 South LaSalle Street, Suite 3410, Chicago, Illinois 60603 (“Lender”), and INLAND WESTERN AVONDALE MCDOWELL, L.L.C., a Delaware limited liability company, having an address at 2901 Butterfield Road, Oak Brook, Illinois 60523 (“Borrower”).

WITNESSETH:

WHEREAS, Borrower desires to obtain the Loan (as hereinafter defined) from Lender; and

WHEREAS, Lender is willing to make the Loan to Borrower, subject to and in accordance with the terms of this Agreement and the other Loan Documents (as hereinafter defined).

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

ARTICLE I

DEFINITIONS; PRINCIPLES OF CONSTRUCTION

Section 1.1Definitions.   For all purposes of this Agreement, except as otherwise expressly required or unless the context clearly indicates a contrary intent:

“Additional Insolvency Opinion” shall mean any subsequent Insolvency Opinion.

“Affiliate” shall mean, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person or is a director or officer of such Person or of an Affiliate of such Person.

“ALTA” shall mean American Land Title Association, or any successor thereto.

“Annual Budget” shall mean the operating budget, including all planned capital expenditures, for the Property prepared by Borrower for the applicable Fiscal Year or other period.

“Assignment of Leases” shall mean, with respect to the Property, that certain first priority Assignment of Leases and Rents, dated as of the Closing Date, from Borrower, as assignor, to Lender, as assignee, assigning to Lender all of Borrower’s interest in and to the Leases and Rents of the Property as security for the Loan, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Assignment of Management Agreement” shall mean that certain Assignment of Management Agreement and Subordination of Management Fees dated as of the Closing Date among Lender, Borrower and Manager, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Award” shall mean any compensation paid by any Governmental Authority in connection with a Condemnation in respect of all or any part of the Property.

“Basic Carrying Costs” shall mean, with respect to the Property, the sum of the following costs associated with the Property for the relevant Fiscal Year or payment period: (i) Taxes and (ii) Insurance Premiums.

“Borrower” shall mean Inland Western Avondale McDowell, L.L.C., a Delaware limited liability company, together with its permitted successors and assigns.

“Business Day” shall mean any day other than a Saturday, Sunday or any other days on which national banks in Chicago, Illinois are not open for business.

“Capital Expenditures” shall mean, for any period, the amount expended for items capitalized under accounting principles reasonably acceptable to Lender, consistently applied (including expenditures for building improvements or major repairs, leasing commissions and tenant improvements).

“Cash Expenses” shall mean, for any period, the operating expenses for the operation of the Property as set forth in an Approved Annual Budget to the extent that such expenses are actually incurred by Borrower minus any payments into the Tax and Insurance Escrow Fund.

“Casualty” shall have the meaning specified in Section 6.2 hereof.

“Casualty/Condemnation Prepayment” shall have the meaning specified in Section 6.4(e) hereof.

“Casualty Consultant” shall have the meaning set forth in Section 6.4(b)(iii) hereof.

“Casualty Retainage” shall have the meaning set forth in Section 6.4(b)(iv) hereof.

“Closing Date” shall mean the date hereof.

“Code” shall mean the Internal Revenue Code of 1986, as amended, as it may be further amended from time to time, and any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.

“Condemnation” shall mean a temporary or permanent taking by any Governmental Authority as the result or in lieu or in anticipation of the exercise of the right of condemnation or eminent domain, of all or any part of the Property, or any interest therein or

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right accruing thereto, including any right of access thereto or any change of grade affecting the Property or any part thereof.

“Debt” shall mean the outstanding principal amount set forth in, and evidenced by, this Agreement and the Note together with all interest accrued and unpaid thereon and all other sums (including the Prepayment Consideration) due to Lender in respect of the Loan under the Note, this Agreement, the Mortgage or any other Loan Document.

“Debt Service” shall mean, with respect to any particular period of time, scheduled interest payments under the Note.

“Debt Service Coverage Ratio” shall mean a ratio for the applicable period in which:

(a)           the numerator is the Net Operating Income (excluding interest on credit accounts) for such period as set forth in the statements required hereunder, without deduction for (i) actual management fees incurred in connection with the operation of the Property, (ii) amounts paid to the Reserve Funds, less (A) management fees equal to the greater of (1) assumed management fees of three percent (3.0%) of Gross Income from Operations or (2) the actual management fees incurred, (B) assumed Replacement Reserve Fund contributions equal to $0.28 per square foot of gross leaseable area at the Property; and (C) assumed reserves for tenant improvements and leasing commissions equal to $0.50 per square foot of gross leaseable area at the Property; and

(b)           the denominator is the aggregate amount of interest due and payable on the Note for such applicable period.

“Default” shall mean the occurrence of any event hereunder or under any other Loan Document which, but for the giving of notice or passage of time, or both, would be an Event of Default.

“Default Rate” shall mean, with respect to the Loan, a rate per annum equal to the lesser of (a) the maximum rate permitted by applicable law, or (b) five percent (5%) above the Interest Rate.

“Disclosure Document” shall have the meaning set forth in Section 9.2 hereof.

“Eligible Account” shall mean a separate and identifiable account from all other funds held by the holding institution that is either (a) an account or accounts maintained with a federal or state-chartered depository institution or trust company which complies with the definition of Eligible Institution or (b) a segregated trust account or accounts maintained with a federal or state chartered depository institution or trust company acting in its fiduciary capacity which, in the case of a state chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R. §9.10(b), having in either case a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal and state authority. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.

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“Eligible Institution” shall mean a depository institution or trust company insured by the Federal Deposit Insurance Corporation the short term unsecured debt obligations or commercial paper of which are rated at least A-l by Standard & Poor’s Ratings Services, P-l by Moody’s Investors Service, Inc., and F-1+ by Fitch, Inc. in the case of accounts in which funds are held for 30 days or less (or, in the case of accounts in which funds are held for more than 30 days, the long term unsecured debt obligations of which are rated at least “AA” by Fitch and S&P and “Aa” by Moody’s).

“Environmental Indemnity” shall mean that certain Environmental Indemnity Agreement executed by Borrower in connection with the Loan for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Environmental Report” shall have the meaning as defined in the Environmental Indemnity executed by the Borrower.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.

“Event of Default” shall have the meaning set forth in Section 8.1(a) hereof.

“Exchange Act” shall have the meaning set forth in Section 9.2 hereof.

“Fiscal Year” shall mean each twelve (12) month period commencing on January 1 and ending on December 31 during each year of the term of the Loan.

“Governmental Authority” shall mean any court, board, agency, commission, office or other authority of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city or otherwise) whether now or hereafter in existence.

“Gross Income From Operations” shall mean all sustainable income as reported on the financial statements delivered by the Borrower in accordance with this Agreement, computed in accordance with accounting principles reasonably acceptable to Lender, consistently applied, derived from the ownership and operation of the Property from whatever source, including, but not limited to, (i) Rents from Tenants that are in occupancy, open for business and paying unabated Rent, (ii) utility charges, (iii) escalations, (iv) intentionally omitted; (v) service fees or charges, (vi) license fees, (vii) parking fees, and (viii) other required pass-throughs but excluding (i) Rents from Tenants that are subject to any bankruptcy proceeding (unless such Tenant has affirmed its Lease or Inland Western Retail Real Estate Trust, Inc. has master leased such Tenant’s premises for full contract rent for a period not less than three years, and the net worth of Inland Western Retail Real Estate Trust, Inc. (as determined by Lender) is not less than such entity’s net worth as of June 30, 2004), or are not in occupancy, open for business or paying unabated Rent, (ii) sales, use and occupancy or other taxes on receipts required to be accounted for by Borrower to any Governmental Authority, (iii) refunds and uncollectible accounts, (iv) sales of furniture, fixtures and equipment, (v) Insurance Proceeds (other than business interruption or other loss of income insurance), (vi) Awards, (vii) unforfeited security deposits, (viii) utility and other similar deposits and (ix) any disbursements to Borrower from the Reserve Funds. Gross income shall not be

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diminished as a result of the Mortgage or the creation of any intervening estate or interest in the Property or any part thereof.

“Improvements” shall have the meaning set forth in the granting clause of the Mortgage with respect to the Property.

“Indebtedness” of a Person, at a particular date, means the sum (without duplication) at such date of (a) indebtedness or liability for borrowed money; (b) obligations evidenced by bonds, debentures, notes, or other similar instruments; (c) obligations for the deferred purchase price of property or services (including trade obligations); (d) obligations under letters of credit; (e) obligations under acceptance facilities; (f) all guaranties, endorsements (other than for collection or deposit in the ordinary course of business) and other contingent obligations to purchase, to provide funds for payment, to supply funds, to invest in any Person or entity, or otherwise to assure a creditor against loss; and (g) obligations secured by any Liens, whether or not the obligations have been assumed.

“Indemnitor” shall mean Inland Western Retail Real Estate Trust, Inc., a Maryland corporation.

“Indemnity Agreement” shall mean that certain Indemnity Agreement dated as of the Closing Date by Borrower and Indemnitor in favor of Lender.

“Independent Director” shall mean a director of a corporation or a manager of a limited liability company who is not at the time of initial appointment, or at any time while serving as a director or manager, as the case may be, of such an entity, and has not been at any time during the preceding five (5) years: (a) a stockholder, director (with the exception of serving as the Independent Director), officer, employee, partner, attorney or counsel of the Borrower or any Affiliate of either of them; (b) a customer, supplier or other person who derives any of its purchases or revenues from its activities with the Borrower or any Affiliate of either of them; (c) a Person controlling or under common control with any such stockholder, director, officer, partner, customer, supplier or other Person (other than a fee for its services of being an Independent Director); or (d) a member of the immediate family of any such stockholder, director, officer, employee, partner, customer, supplier or other person. As used in this definition, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise.

“Inland Western Retail Real Estate Trust, Inc.” shall mean Inland Western Retail Real Estate Trust, Inc., a Maryland corporation.

“Insolvency Opinion” shall have the meaning set forth in Section 3.1.6 hereof.

“Insurance Premiums” shall have the meaning set forth in Section 6.1(b) hereof.

“Insurance Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.

“Interest Rate” shall mean four and 67/100 percent (4.67%) per annum.

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“Lease” shall mean any lease, sublease or subsublease, letting, license, concession or other agreement (whether written or oral and whether now or hereafter in effect) pursuant to which any Person is granted a possessory interest in, or right to use or occupy all or any portion of any space in the Property of Borrower, and every modification, amendment or other agreement relating to such lease, sublease, subsublease, or other agreement entered into in connection with such lease, sublease, subsublease, or other agreement and every guarantee of the performance and observance of the covenants, conditions and agreements to be performed and observed by the other party thereto.

“Legal Requirements” shall mean, with respect to the Property, all federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting the Property or any part thereof, or the construction, use, alteration or operation thereof, or any part thereof, whether now or hereafter enacted and in force, and all permits, licenses and authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Borrower, at any time in force affecting the Property or any part thereof, including, without limitation, any which may (a) require repairs, modifications or alterations in or to the Property or any part thereof, or (b) in any way limit the use and enjoyment thereof.

“Lender” shall mean LaSalle Bank National Association, a national banking association, together with its successors and assigns.

“Licenses” shall have the meaning set forth in Section 4.1.22 hereof.

“Lien” shall mean, with respect to the Property, any mortgage, deed of trust, deed to secure debt, lien, pledge, hypothecation, assignment, security interest, or any other encumbrance, charge or transfer of, on or affecting Borrower, the Property, any portion thereof or any interest therein, including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialmen’s and other similar liens and encumbrances.

“Loan” shall mean the loan made by Lender to Borrower pursuant to this Agreement and evidenced by the Note.

“Loan Documents” shall mean, collectively, this Agreement, the Note, the Mortgage, the Assignment of Leases and Rents, the Environmental Indemnity, the Assignment of Management Agreement, the Indemnity Agreement and all other documents executed and/or delivered in connection with the Loan.

“Losses” shall have the meaning set forth in the Indemnity Agreement.

“Management Agreement” shall mean, with respect to the Property, the management agreement entered into by and between Borrower and the Manager, pursuant to which the Manager is to provide management and other services with respect to the Property.

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“Manager” shall mean Inland Southwest Management LLC, a Delaware limited liability company.

“Maturity Date” shall mean January 1, 2010, or such other date on which the final payment of principal of the Note becomes due and payable as therein or herein provided, whether at such stated maturity date, by declaration of acceleration, or otherwise.

“Maximum Legal Rate” shall mean the maximum non-usurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by the Note and as provided for herein or the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan.

“Monthly Debt Service Payment Amount” shall mean an amount equal to $139,485.12.

“Mortgage” shall mean, with respect to the Property, that certain first priority Deed of Trust, Security Agreement and Fixture Filing, dated the Closing Date, executed and delivered by Borrower as security for the Loan and encumbering the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Net Cash Flow” shall mean, with respect to the Property for any period, the amount obtained by subtracting Operating Expenses and Capital Expenditures for such period from Gross Income from Operations for such period.

“Net Cash Flow After Debt Service” shall mean, with respect to the Property for any period, the amount obtained by subtracting Debt Service for such period from Net Cash Flow for such period.       .

“Net Cash Flow Schedule” shall have the meaning set forth in Section 5.1.11(b) hereof.

“Net Operating Income” shall mean the amount obtained by subtracting from Gross Income from Operations (i) Operating Expenses, and (ii) a vacancy allowance equal to the greater of (x) market vacancy (as reasonably determined by Lender), less actual vacancy, and (y) underwritten vacancy of ten percent (10%), less actual vacancy. Notwithstanding the foregoing, if actual vacancy exceeds market vacancy and underwritten vacancy, then there shall be no adjustment for a vacancy allowance.

“Net Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.

“Net Proceeds Deficiency” shall have the meaning set forth in Section 6.4(b)(vi) hereof.

“Net Proceeds Prepayment” shall have the meaning set forth in Section 6.4(e) hereof.

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“Note” shall mean that certain Promissory Note of even date herewith in the principal amount of THIRTY-FIVE MILLION EIGHT HUNDRED FORTY-TWO THOUSAND AND NO/100 DOLLARS ($35,842,000.00), made by Borrower in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Officers’ Certificate” shall mean a certificate delivered to Lender by Borrower which is signed by the Sole Member.

“Operating Expenses” shall mean the total of all expenditures, computed in accordance with accounting principles reasonably acceptable to Lender, consistently applied, of whatever kind relating to the operation, maintenance and management of the Property that are incurred on a regular monthly or other periodic basis, including without limitation, utilities, ordinary repairs and maintenance, insurance, license fees, property taxes and assessments, advertising expenses, management fees, payroll and related taxes, computer processing charges, operational equipment or other lease payments as approved by Lender, and other similar costs, but excluding depreciation, Debt Service, Capital Expenditures and contributions to the Reserve Funds.

“Other Charges” shall mean all ground rents, maintenance charges, impositions other than Taxes, and any other charges, including, without limitation, vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Property, now or hereafter levied or assessed or imposed against the Property or any part thereof.

“Other Contract Funds” shall mean any payment due to Borrower under any of the agreements described on Schedule X.

“Payment Date” shall mean the first (1st) day of each calendar month during the term of the Loan or, if such day is not a Business Day, the immediately succeeding Business Day.

“Permitted Encumbrances” shall mean, with respect to the Property, collectively, (a) the Liens and security interests created by the Loan Documents, (b) all Liens, encumbrances and other matters disclosed in the Title Insurance Policy relating to the Property or any part thereof, (c) Liens, if any, for Taxes imposed by any Governmental Authority not yet due or delinquent, and (d) such other title and survey exceptions as Lender has approved or may approve in writing in Lender’s reasonable discretion, which Permitted Encumbrances in the aggregate do not materially adversely affect the value or use of the Property or Borrower’s ability to repay the Loan.

“Permitted Investments” shall mean any one or more of the following obligations or securities acquired at a purchase price of not greater than par, including those issued by Servicer, the trustee under any Securitization or any of their respective Affiliates, payable on demand or having a maturity date not later than the Business Day immediately prior to the first Payment Date following the date of acquiring such investment and meeting one of the appropriate standards set forth below:

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(i)            obligations of, or obligations fully guaranteed asto payment of principal and interest by, the United States or any agency or instrumentality thereof provided such obligations are backed by the full faith and credit of the United States of America including, without limitation, obligations of: the U.S. Treasury (all direct or fully guaranteed obligations), the Fanners Home Administration (certificates of beneficial ownership), the General Services Administration (participation certificates), the U.S. Maritime Administration (guaranteed Title XI financing), the Small Business Administration (guaranteed participation certificates and guaranteed pool certificates), the U.S. Department of Housing and Urban Development (local authority bonds) and the Washington Metropolitan Area Transit Authority (guaranteed transit bonds); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(ii)           Federal Housing Administration debentures;

(iii)          obligations of the following United States government sponsored agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm Credit System (consolidated systemwide bonds and notes), the Federal Home Loan Banks (consolidated debt obligations), the Federal National Mortgage Association (debt obligations), the Student Loan Marketing Association (debt obligations), the Financing Corp. (debt obligations), and the Resolution Funding Corp. (debt obligations); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(iv)          federal funds, unsecured certificates of deposit, time deposits, bankers’ acceptances and repurchase agreements with maturities of not more than 365 days of any bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

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(v)           fully Federal Deposit Insurance Corporation-insured demand and time deposits in, or certificates of deposit of, or bankers’ acceptances issued by, any bank or trust company, savings and loan association or savings bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(vi)          debt obligations with maturities of not more than 365 days and at all times rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest long-term unsecured rating category; provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(vii)         commercial paper (including both non-interest-bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one year after the date of issuance thereof) with maturities of not more than 365 days and that at all times is rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest short-term unsecured debt rating; provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(viii)        units of taxable money market funds, which funds are regulated investment companies, seek to maintain a constant net asset value per share and invest solely in obligations backed by the full faith and credit of the United States, which funds

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have the highest rating available from each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) for money market funds; and

(ix)           any other security, obligation or investment which has been approved as a Permitted Investment in writing by (a) Lender and (b) each Rating Agency, as evidenced by a written confirmation that the designation of such security, obligation or investment as a Permitted Investment will not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities by such Rating Agency;

provided, however, that no obligation or security shall be a Permitted Investment if (A) such obligation or security evidences a right to receive only interest payments or (B) the right to receive principal and interest payments on such obligation or security are derived from an underlying investment that provides a yield to maturity in excess of 120% of the yield to maturity at par of such underlying investment.

“Permitted Prepayment Date” shall mean the date that is two (2) years from the first day of the calendar month immediately following the Closing Date.

“Person” shall mean any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.

“Personal Property” shall have the meaning set forth in the granting clause of the Mortgage with respect to the Property.

“Physical Conditions Report” shall mean, with respect to the Property, a report prepared by a company satisfactory to Lender regarding the physical condition of the Property, satisfactory in form and substance to Lender in its sole discretion, which report shall, among other things, (a) confirm that the Property and its use complies, in all material respects, with all applicable Legal Requirements (including, without limitation, zoning, subdivision and building laws) and (b) include a copy of a final certificate of occupancy with respect to all Improvements on the Property.

“Policies” shall have the meaning specified in Section 6.1(b) hereof.

“Prepayment Consideration” shall have the meaning set forth in Section 2.3.1.

“Prepayment Rate” shall mean the bond equivalent yield (in the secondary market) on the United States Treasury Security that as of the Prepayment Rate Determination Date has a remaining term to maturity closest to, but not exceeding, the remaining term to the Maturity Date, as most recently published in the “Treasury Bonds, Notes and Bills” section in The Wall Street Journal as of the date of the related tender of the payment. If more than one issue of United States Treasury Securities has the remaining term to the Maturity Date referred to

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above, the “Prepayment Rate” shall be the yield on the United States Treasury Security most recently issued as of such date. If the publication of the Prepayment Rate in The Wall Street Journal is discontinued, Lender shall determine the Prepayment Rate on the basis of “Statistical Release H.15(519), Selected Interest Rates,” or any successor publication, published by the Board of Governors of the Federal Reserve System, or on the basis of such other publication or statistical guide as Lender may reasonably select.

“Prepayment Rate Determination Date” shall mean the date which is five (5) Business Days prior to the prepayment date.

“Property” shall mean the parcel of real property, the Improvements thereon and all personal property owned by Borrower and encumbered by the Mortgage, together with all rights pertaining to such property and Improvements, as more particularly described in the Granting Clauses of the Mortgage and referred to therein as the “Property”.

‘‘Provided Information” shall have the meaning set forth in Section 9.1(a) hereof.

“Qualifying Entity” shall have the meaning set forth in Section 5.2.13(b) hereof.

“Qualifying Manager” shall mean either (a) a reputable and experienced management organization reasonably satisfactory to Lender, which organization or its principals possess at least ten (10) years experience in managing properties similar in size, scope and value of the Property and which, on the date Lender determines whether such management organization is a Qualifying Manager, manages at least one million square feet of retail space, provided that Borrower shall have obtained prior written confirmation from the Rating Agency that management of the Property by such entity will not cause a downgrading, withdrawal or qualification of the then current rating of the securities issued pursuant to the Securitization, or (b) the fee owner of the Property, provided that such owner possesses experience in managing and operating properties similar in size, scope and value of the Property. Lender acknowledges that on the Closing Date, Manager shall be deemed to be a Qualifying Manager.

“Rating Agencies” shall mean each of Standard & Poor’s Ratings Services, a division of McGraw-Hill, Inc., Moody’s Investors Service, Inc. and Fitch, Inc., or any other nationally-recognized statistical rating agency which has been approved by Lender.

“Rating Surveillance Charge” shall have the meaning set forth in Section 9.3 hereof.

“Relevant Leasing Threshold” shall mean, any Lease for an amount of leaseable square footage equal to or greater than 10,000 square feet.

“Relevant Restoration Threshold” shall mean Five Hundred Thousand and No/100 dollars ($500,000.00).

“REMIC Trust” shall mean a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code that holds the Note.

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“Rents” shall mean, with respect to the Property, all rents, rent equivalents, moneys payable as damages or in lieu of rent or rent equivalents, royalties (including, without limitation, all oil and gas or other mineral royalties and bonuses), income, receivables, receipts, revenues, deposits (including, without limitation, security, utility and other deposits), accounts, cash, issues, profits, charges for services rendered, and other consideration of whatever form or nature received by or paid to or for the account of or benefit of Borrower or its agents or employees from any and all sources arising from or attributable to the Property, and proceeds, if any, from business interruption or other loss of income insurance, including the Other Contract Funds.

“Replacement Reserve Account” shall have the meaning set forth in Section 7.3.1 hereof.

“Replacement Reserve Fund” shall have the meaning set forth in Section 7.3.1 hereof.

“Replacement Reserve Monthly Deposit” shall have the meaning set forth in Section 7.3.1 hereof.

“Replacements” shall have the meaning set forth in Section 7.3.1(a) hereof.

“Required Repair Account” shall have the meaning set forth in Section 7.1.1 hereof.

“Required Repair Fund” shall have the meaning set forth in Section 7.1.1 hereof.

“Required Repairs” shall have the meaning set forth in Section 7.1.1 hereof.

“Reserve Funds” shall mean the Tax and Insurance Escrow Fund, the Replacement Reserve Fund, the Required Repair Fund (if any), or any other escrow fund established by the Loan Documents.

“Restoration” shall have the meaning set forth in Section 6.2 hereof.

“Securities” shall have the meaning set forth in Section 9.1 hereof.

“Securities Act” shall have the meaning set forth in Section 9.2 hereof.

“Securitization” shall have the meaning set forth in Section 9.1 hereof.

“Servicer” shall have the meaning set forth in Section 9.6 hereof.

“Servicing Agreement” shall have the meaning set forth in Section 9.6 hereof.

“Severed Loan Documents” shall have the meaning set forth in Section 8.2(c) hereof.

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“Severing Documentation” shall have the meaning set forth in Section 9.7 hereof.

“Sole Member” shall mean Inland Western Retail Real Estate Trust, Inc., a Maryland corporation.

“Special Purpose Entity” means a corporation, limited partnership, limited liability company, or Delaware statutory trust which at all times on and after the Closing Date:

(i)            is organized solely for the purpose of (A) acquiring, developing, owning, holding, selling, leasing, transferring, exchanging, managing and operating the Property, entering into this Agreement with the Lender, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing; or (B) acting as a general partner of the limited partnership that owns the Property, a member of the limited liability company that owns the Property or the beneficiary or trustee of a Delaware statutory trust that owns the Property;

(ii)           is not engaged and will not engage in any business unrelated to (A) the acquisition, development, ownership, management or operation of the Property, (B) acting as general partner of the limited partnership that owns the Property, (C) acting as a member of the limited liability company that owns the Property, or (D) acting as the beneficiary or trustee of a Delaware statutory trust that owns the Property, as applicable;

(iii)          does not have and will not have any assets other than those related to the Property or its partnership interest in the limited partnership, the member interest in the limited liability company or the beneficial interest in the Delaware statutory trust that owns the Property or acts as the general partner, managing member or beneficiary or trustee thereof, as applicable;

(iv)          has not engaged, sought or consented to and will not engage in, seek or consent to any dissolution, winding up, liquidation, consolidation, merger, sale of all or substantially all of its assets, transfer of partnership, membership or beneficial or trustee interests (if such entity is a general partner in a limited partnership, a member in a limited liability company or a beneficiary of a Delaware trust) or amendment of its limited partnership agreement, articles of incorporation, articles of organization, certificate of formation, operating agreement or trust formation and governance documents (as applicable) with respect to the matters set forth in this definition;

(v)           if such entity is a limited partnership, has as its only general partners, Special Purpose Entities that are corporations, limited partnerships or limited liability companies;

(vi)          if such entity is a corporation, has at least one (1) Independent Director, and has not caused or allowed and will not cause or allow the board of directors of such entity to take any action related to a bankruptcy or insolvency proceeding or a voluntary dissolution without the unanimous affirmative vote of 100% of the members of its board of directors, including the Independent Director;

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(vii)         if such entity is a limited liability company and such limited liability company has more than one member, such limited liability company has as its manager a Special Purpose Entity that is a corporation and that owns at least 1.0% (one percent) of the equity of the limited liability company;

(viii)        if such entity is a limited liability company and such limited liability company has only one member, such limited liability company (a) has been formed under Delaware law, and (b) has either a corporation or other person or entity that shall become a member of the limited liability company upon the dissolution or disassociation of the member, and (c) has at least one (1) manager that is an Independent Director, and (d) will not cause or allow its managers to take any action related to a bankruptcy or insolvency proceeding or a voluntary dissolution without the unanimous affirmative vote of 100% of its managers, including the Independent Director;

(ix)           if such entity is (a) a limited liability company, has articles of organization, a certificate of formation and/or an operating agreement, as applicable, (b) a limited partnership, has a limited partnership agreement, (c) a corporation, has a certificate or articles of incorporation and bylaws, as applicable, or (d) a Delaware statutory trust, has organizational documents that, in each case, provide that such entity will not: (1) dissolve, merge, liquidate, consolidate; (2) except as permitted herein, sell all or substantially all of its assets or the assets of the Borrower (as applicable) except as permitted herein; (3) engage in any other business activity, or amend its organizational documents with respect to the matters set forth in this definition without the consent of the Lender; or (4) without the affirmative vote of all directors of the corporation (that is such entity or the general partner or managing or co-managing member or manager of such entity), file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings with respect to itself or to any other entity in which it has a direct or indirect legal or beneficial ownership interest;

(x)            has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, beneficiaries, shareholders or Affiliates except (A) in the ordinary course of its business and on terms which are intrinsically fair, commercially reasonable and are no less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party and (B) in connection with this Agreement;

(xi)           is solvent and pays its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same become due, and is maintaining adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;

(xii)          has not failed and will not fail to correct any known misunderstanding regarding the separate identity of such entity;

(xiii)         will file its own tax returns; provided, however, that Borrower’s assets and income may be included in a tax return of its Sole Member or the general partner of Sole Member if inclusion on such tax return is in compliance with applicable law;

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(xiv)        has maintained and will maintain its own resolutions and agreements;

(xv)         (a) has not commingled and will not commingle its funds or assets with those of any other Person and (b) has not participated and will not participate in any cash management system with any other Person, except with respect to a custodial account maintained by the Manager on behalf of Affiliates of Borrower and, with respect to funds in such custodial account, has separately accounted, and will continue to separately account for, each item of income and expense applicable to the Property and Borrower;

(xvi)        has held and will hold its assets in its own name;

(xvii)       has conducted and will conduct its business in its name or in a name franchised or licensed to it by an entity other than an Affiliate of Borrower;

(xviii)      has maintained and will maintain its balance sheets, operating statements and other entity documents separate from any other Person and has not permitted and will not permit its assets to be listed as assets on the financial statement of any other entity except as required or permitted by applicable accounting principles acceptable to Lender, consistently applied; provided, however, that (i) any such consolidated financial statement shall contain a note indicating that it maintains separate balance sheets and operating statements for the Borrower and the Property, or (ii) if such Person is controlled by Inland Western Retail Real Estate Trust, Inc., then such Person may be included in the consolidated financial statement of Inland Western Retail Real Estate Trust, Inc. provided such consolidated financial statement contains a note indicating that it maintains separate financial records for each Person controlled by Inland Western Retail Real Estate Trust, Inc.;

(xix)         has maintained and will maintain separate books and records for the Property;

(xx)          has a sufficient number of employees in light of its contemplated business operations, which may be none;

(xxi)         has observed and will observe all partnership, corporate, limited liability company or Delaware statutory trust formalities, as applicable;

(xxii)        has and will have no Indebtedness (including loans (whether or not such loans are evidenced by a written agreement) between Borrower and any Affiliates of Borrower and relating to the management of funds in the custodial account maintained by the Manager) other than (i) the Loan, (ii) liabilities incurred in the ordinary course of business relating to the ownership and operation of the Property and the routine administration of Borrower, which liabilities are not more than sixty (60) days past the date incurred (unless disputed in accordance with applicable law), are not evidenced by a note and are paid when due, and which amounts are normal and reasonable under the circumstances, and (iii) such other liabilities that are permitted pursuant to this Agreement;

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(xxiii)       has not and will not assume or guarantee or become obligated for the debts of any other Person or hold out its credit as being available to satisfy the obligations of any other Person except as otherwise permitted pursuant to this Agreement;

(xxiv)       has not and will not acquire obligations or securities of its partners, members, beneficiaries or shareholders or any other Affiliate;

(xxv)        has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, but not limited to, paying for shared office space and services performed by any employee of an affiliate;

(xxvi)       has not maintained or used, and will not maintain or use, invoices and checks bearing the name of any other Person, provided, however, that Manager, on behalf of such Person, may maintain and use invoices and checks bearing Manager’s name;

(xxvii)      has not pledged and will not pledge its assets for the benefit of any other Person except as permitted or required pursuant to this Agreement;

(xxviii)     has held itself out and identified itself and will hold itself out and identify itself as a separate and distinct entity under its own name or in a name franchised or licensed to it by an entity other than an Affiliate of Borrower and not as a division or part of any other Person, except for services rendered by Manager under the Management Agreement, so long as Manager holds itself out as an agent of the Borrower;

(xxix)       has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;

(xxx)        has not made and will not make loans to any Person or hold evidence of indebtedness issued by any other person or entity (other than cash and investment-grade securities issued by an entity that is not an Affiliate of or subject to common ownership with such entity);

(xxxi)       has not identified and will not identify its partners, members, beneficiaries or shareholders, or any Affiliate of any of them, as a division or part of it, and has not identified itself and shall not identify itself as a division of any other Person;

(xxxii)      does not and will not have any of its obligations guaranteed by any Affiliate except as otherwise required in the Loan Documents; and

(xxxiii)     has complied and will comply with all of the terms and provisions contained in its organizational documents. The statement of facts contained in its organizational documents are true and correct and will remain true and correct.

“State” shall mean, with respect to the Property, the State or Commonwealth in which the Property or any part thereof is located.

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“Survey” shall mean a survey of the Property in question prepared by a surveyor licensed in the State and satisfactory to Lender and the company or companies issuing the Title Insurance Policy, and containing a certification of such surveyor satisfactory to Lender.

“Tax And Insurance Escrow Fund” shall have the meaning set forth in Section 7.2 hereof regardless of whether the funds held therein are held by Lender for the payment of Taxes of Insurance Premiums or both.

“Taxes” shall mean all real estate and personal property taxes, assessments, water rates or sewer rents, now or hereafter levied or assessed or imposed against the Property or any part thereof.

“Tenant” shall mean any person or entity with a possessory right to all or any part of the Property pursuant to a Lease or other written agreement.

“Terrorism Insurance Guarantor” shall have the meaning set forth in Section 6.1 hereof.

“Title Insurance Policy” shall mean, with respect to the Property, an ALTA mortgagee title insurance policy in the form (acceptable to Lender) (or, if the Property is in a State which does not permit the issuance of such ALTA policy, such form as shall be permitted in such State and acceptable to Lender) issued with respect to the Property and insuring the lien of the Mortgage encumbering the Property.

“Transferee” shall have the meaning set forth in Section 5.2.13 hereof.

“Trustee” shall have the meaning set forth in the Mortgage.

“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in the applicable State in which the Property is located.

“U.S. Obligations” shall mean direct non-callable obligations of the United States of America as defined in Section 2(a)(16) of the Investment Company Act as amended (15 USC 80a-1) stated in REMIC Section 1.86 OG-2(a)(8).

Section 1.2             Principles of Construction. All references to sections and schedules are to sections and schedules in or to this Agreement unless otherwise specified. All uses of the word “including” shall mean “including, without limitation” unless the context shall indicate otherwise. Unless otherwise specified, the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified, all meanings attributed to defined terms herein shall be equally applicable to both the singular and plural forms of the terms so defined.

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ARTICLE II

GENERAL TERMS

Section 2.1Loan Commitment; Disbursement to Borrower.

2.1.1The Loan.  Subject to and upon the terms and conditions set forth herein, Lender hereby agrees to make and Borrower hereby agrees to accept the Loan on the Closing Date.

2.1.2        Disbursement to Borrower.   Borrower may request and receive only one borrowing hereunder in respect of the Loan and any amount borrowed and repaid hereunder in respect of the Loan may not be re-borrowed.

2.1.3        The Note, Mortgage and Loan Documents.  The Loan shall be evidenced by the Note and secured by the Mortgage, the Assignment of Leases and the other Loan Documents.

2.1.4        Use of Proceeds. Borrower shall use the proceeds of the Loan to (a) repay and discharge any existing loans relating to the Property, (b) pay all past-due Basic Carrying Costs, if any, in respect of the Property, (c) make deposits into the Reserve Funds on the Closing Date in the amounts provided herein, (d) pay costs and expenses incurred in connection with the closing of the Loan, as approved by Lender, (e) fund any working capital requirements of the Property, and (f) distribute the balance, if any, to Borrower.

Section 2.2            Interest; Loan Payments; Late Payment Charge.

2.2.1        Interest Generally.   Interest on the outstanding principal balance of the Loan shall accrue from the Closing Date to but excluding the Maturity Date at the Interest Rate.

2.2.2        Interest Calculation.   Interest on the outstanding principal balance of the Loan shall be calculated on the basis of a three hundred sixty (360) day year comprised of twelve (12) months of thirty (30) days each, except that interest due and payable for a period of less than a full month shall be calculated by multiplying the actual number of days elapsed in the period for which the calculation is being made by a daily rate based on a three hundred sixty (360) day year.

2.2.3        Payments Generally.   Borrower shall pay to Lender (a) on the Closing Date, an amount equal to interest only on the outstanding principal balance of the Loan from the Closing Date up to but not including the first Payment Date following the Closing Date, and (b) on February 1, 2005 and each Payment Date thereafter up to but not including the Maturity Date, an amount equal to the Monthly Debt Service Payment Amount, which shall be applied to interest on the outstanding principal amount of the Loan for the prior calendar month at the Interest Rate.

2.2.4        Intentionally Omitted.

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2.2.5        Payment on Maturity Date. Borrower shall pay to Lender on the Maturity Date the outstanding principal balance of the Loan, all accrued and unpaid interest and all other amounts due hereunder and under the Note, the Mortgage and other the Loan Documents.

2.2.6        Payments after Default. Upon the occurrence and during the continuance of an Event of Default, interest on the outstanding principal balance of the Loan and, to the extent permitted by law, overdue interest and other amounts due in respect of the Loan shall accrue at the Default Rate, calculated from the date such payment was due without regard to any grace or cure periods contained herein. Interest at the Default Rate shall be computed from the occurrence of the Event of Default until the earlier of (i) in the event of a non-monetary default, the cure of such Event of Default by Borrower and acceptance of such cure by Lender, and (ii) in the event of a monetary default, the actual receipt and collection of the Debt (or that portion thereof that is then due). To the extent permitted by applicable law, interest at the Default Rate shall be added to the Debt, shall itself accrue interest at the same rate as the Loan and shall be secured by the Mortgage. This paragraph shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of the occurrence of any Event of Default and Lender retains its rights under the Note and this Agreement to accelerate and to continue to demand payment of the Debt upon the happening and continuance of any Event of Default.

2.2.7        Late Payment Charge. If any principal, interest or any other sums due under the Loan Documents is not paid by Borrower on or prior to the date which is five (5) days after the date on which it is due, Borrower shall pay to Lender upon demand an amount equal to the lesser of five percent (5%) of such unpaid sum or the maximum amount permitted by applicable law in order to defray the expense incurred by Lender in handling and processing such delinquent payment and to compensate Lender for the loss of the use of such delinquent payment. Any such amount shall be secured by the Mortgage and the other Loan Documents to the extent permitted by applicable law. The foregoing late payment charge shall not apply to the payment of all outstanding principal, interest and other sums due on the Maturity Date.

2.2.8        Usury Savings.  This Agreement and the Note are subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the principal balance of the Loan at a rate which could subject Lender to either civil or criminal liability as a result of being in excess of the Maximum Legal Rate. If, by the terms of this Agreement or the other Loan Documents, Borrower is at any time required or obligated to pay interest on the principal balance due hereunder at a rate in excess of the Maximum Legal Rate, the Interest Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced to the Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. All sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the sums due under the Loan, shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the Loan does not exceed the Maximum Legal Rate of interest from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.

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Section 2.3             Prepayments.

2.3.1        Voluntary Prepayments.

(a)           Except as otherwise provided herein, Borrower shall not have the right to prepay the Loan in whole or in part prior to the Permitted Prepayment Date. On or after the Permitted Prepayment Date, Borrower may, provided it has given Lender prior written notice in accordance with the terms of this Agreement, prepay the unpaid principal balance of the Loan in whole, but not in part, by paying, together with the amount to be prepaid, (i) interest accrued and unpaid on the outstanding principal balance of the Loan being prepaid to and including the date of prepayment, (ii) unless prepayment is tendered on a Payment Date, an amount equal to the interest that would have accrued on the amount being prepaid after the date of prepayment through and including the next Payment Date had the prepayment not been made (which amount shall constitute additional consideration for the prepayment), (iii) all other sums then due under this Agreement, the Note, the Mortgage and the other Loan Documents, and (iv) if prepayment occurs prior to the Payment Date which is three (3) months prior to the Maturity Date, a prepayment consideration (the “Prepayment Consideration”)equal to the greater of (A) one percent (1%) of the outstanding principal balance of the Loan being prepaid or (B) the excess, if any, of (1) the sum of the present values of all then-scheduled payments of principal and interest under this Agreement including, but not limited to, principal and interest due on January 1, 2010 (with each such payment discounted to its present value at the date of prepayment at the rate which, when compounded monthly, is equivalent to the Prepayment Rate), over (2) the outstanding principal amount of the Loan. Lender shall notify Borrower of the amount and the basis of determination of the required prepayment consideration.

(b)           On the Payment Date that is three (3) months prior to the Maturity Date, and on each day thereafter through the Maturity Date, Borrower may, at its option, prepay the Debt without payment of any Prepayment Consideration or other penalty or premium; provided, however, if such prepayment is not paid on a regularly scheduled Payment Date, the Debt shall include interest that would have accrued on such prepayment through and including the day immediately preceding the Maturity Date.  Borrower’s right to prepay any portion of the principal balance of the Loan shall be subject to (i) Borrower’s submission of a notice to Lender setting forth the amount to be prepaid and the projected date of prepayment, which date shall be no less than thirty (30) days from the date of such notice, and (ii) Borrower’s actual payment to Lender of the amount to be prepaid as set forth in such notice on the projected date set forth in such notice or any day following such projected date occurring in the same calendar month as such projected date.

2.3.2        Mandatory Prepayments.    (a)    On the next occurring Payment Date following the date on which Borrower actually receives any Net Proceeds, if Lender is not obligated to make such Net Proceeds available to Borrower pursuant to this Agreement for the restoration of the Property, Borrower shall, at Lender’s option, prepay the outstanding principal balance of the Note in an amount equal to one hundred percent (100%) of such Net Proceeds. No Prepayment Consideration or other penalty or premium shall be due in connection with any prepayment made pursuant to this Section 2.3.2. Any partial prepayment under this Section shall be applied to the last payments of principal due under the Loan.

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(b)           On the date on which Borrower tenders a Casualty/Condemnation Prepayment pursuant to Section 6.4(e) below, such tender shall include (a) all accrued and unpaid interest and the principal indebtedness being prepaid, including interest on the outstanding principal amount of the applicable Note through the last day of the month within which such tender occurs, and (b) any other sums due hereunder relating to the applicable Note. Except as set forth in this Section 2.3.2(b), other than following an Event of Default, no Prepayment Consideration or other penalty or premium shall be due in connection with any Casualty/Condemnation Prepayment.

2.3.3        Prepayments after Default. Following an Event of Default, if Borrower or anyone on Borrower’s behalf makes a tender of payment of all or any portion of the Debt at any time prior to a foreclosure sale (including a sale under the power of sale under the Mortgage), or during any redemption period after foreclosure, (i) the tender of payment shall constitute an evasion of Borrower’s obligation to pay any Prepayment Consideration due under this Agreement and such payment shall, therefore, to the maximum extent permitted by law, include a premium equal to the Prepayment Consideration that would have been payable on the date of such tender had the Loan not been so accelerated, or (ii) if at the time of such tender a prepayment of the principal amount of the Loan would have been prohibited under this Agreement had the principal amount of the Loan not been so accelerated, the tender of payment shall constitute an evasion of such prepayment prohibition and shall, therefore, to the maximum extent permitted by law, include an amount equal to the greater of (i) 1% of the then principal amount of the Loan (or the relevant portion thereof being prepaid) and (ii) an amount equal to the excess of (A) the sum of the present values of a series of payments payable at the times and in the amounts equal to the payments of principal and interest (including, but not limited to the principal and interest payable on the Maturity Date) which would have been scheduled to be payable after the date of such tender under this Agreement had the Loan (or the relevant portion thereof) not been accelerated, with each such payment discounted to its present value at the date of such tender at the rate which when compounded monthly is equivalent to the Prepayment Rate, over (B) the then principal amount of the Loan.

Section 2.4             Intentionally Omitted.

Section 2.5             Release of Property. Except as set forth in this Section 2.5, no repayment or prepayment of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of any Lien of the Mortgage on the Property. If Borrower has elected to prepay the entire amount of the Loan pursuant to Section 2.3.1 and the requirements of this Section 2.5 have been satisfied, the Property shall be released from the Lien of the Mortgage.

2.5.1        Release on Payment in Full. Lender shall, upon the written request and at the expense of Borrower, upon payment in full of all principal and interest on the Loan and all other amounts due and payable under the Loan Documents in accordance with the terms and provisions of Section 2.3.1 of this Loan Agreement, release the Lien of the Mortgage on the Property not theretofore released.

2.5.2        Intentionally Omitted.

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Section 2.6             Manner of Making Payments.

2.6.1        Making of Payments. Each payment by Borrower hereunder or under the Note shall be made in funds settled through the Automatic Clearing House Interbank Payments System or other funds immediately available to Lender by 1:00 p.m., Chicago City time, on the date such payment is due, to Lender by deposit to such account as Lender may designate by written notice to Borrower, Whenever any payment hereunder or under the Note shall be stated to be due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day.

2.6.2        No Deductions, Etc. All payments made by Borrower hereunder or under the Note or the other Loan Documents shall be made irrespective of, and without any deduction for, any setoff, defense or counterclaims.

2.6.3        Intentionally Omitted.

Section 2.7            Intentionally Omitted.

ARTICLE III

CONDITIONS PRECEDENT

Section 3.1             Conditions Precedent to Closing. The obligation of Lender to make the Loan hereunder is subject to the fulfillment by Borrower or waiver by Lender of the following conditions precedent no later than the Closing Date:

3.1.1        Representations and Warranties; Compliance with Conditions. The representations and warranties of Borrower contained in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on and as of such date, and no Default or an Event of Default shall have occurred and be continuing; and Borrower shall be in compliance in all material respects with all terms and conditions set forth in this Agreement and in each other Loan Document on its part to be observed or performed.

3.1.2        Loan Agreement and Note. Lender shall have received a copy of this Agreement and the Note, in each case, duly executed and delivered on behalf of Borrower.

3.1.3        Delivery of Loan Documents; Title. Insurance; Reports; Leases, Etc.

(a)           Mortgage, Assignment of Leases and other Loan Documents. Lender shall have received from Borrower fully executed and acknowledged counterparts of the Mortgage and the Assignment of Leases and evidence that counterparts of the Mortgage and Assignment of Leases have been delivered to the title company for recording, in the reasonable judgment of Lender, so as to effectively create upon such recording valid and enforceable first priority Liens upon the Property in favor of Lender (or such trustee as may be required under local law), subject only to the Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents. Lender shall have also received from Borrower fully executed counterparts of the Assignment of Management Agreement and the other Loan Documents.

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(b)           Title Insurance.  Lender shall have received a Title Insurance Policy issued by a title company acceptable to Lender and dated as of the Closing Date.  Such Title Insurance Policy shall (i) provide coverage in an amount equal to the principal amount of the Loan together with, if applicable, a “tie-in” or similar endorsement, (ii) insure Lender that the Mortgage creates a valid first priority lien on the Property encumbered thereby, free and clear of all exceptions from coverage other than Permitted Encumbrances and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements), (iii) contain such endorsements and affirmative coverages as Lender may reasonably request, and (iv) name Lender, its successors and assigns, as the insured. The Title Insurance Policy shall be assignable without cost to Lender. Lender also shall have received evidence that all premiums in respect of such Title Insurance Policy have been paid.

(c)           Survey.  Lender shall have received a title survey for the Property, certified to the title company and Lender and their successors and assigns, in form and content satisfactory to Lender and prepared by a professional and properly licensed land surveyor satisfactory to Lender in accordance with the most recent Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys.  The following additional items from the list of “Optional Survey Responsibilities and Specifications” (Table A) should be added to each survey: 1, 2, 3, 4, 6, 8, 9, 10, 11, 13, 14, 15 and 16.  The survey shall reflect the same legal description contained in the Title Insurance Policy relating to the Property referred to in clause (ii) above and shall include, among other things, a legal description of the real property comprising part of such Property reasonably satisfactory to Lender. The surveyor’s seal shall be affixed to each survey and the surveyor shall provide a certification for each survey in form and substance acceptable to Lender.

(d)           Insurance.  Lender shall have received valid certificates of insurance for the policies of insurance required hereunder, satisfactory to Lender in its sole discretion, and evidence of the payment of all premiums payable for the existing policy period.

(e)           Environmental Reports.   Lender shall have received an environmental report in respect of the Property, in each case reasonably satisfactory to Lender.

(f)            Zoning.    With respect to the Property, Lender shall have received, at Lender’s option, (i) letters or other evidence with respect to the Property from the appropriate municipal authorities (or other Persons) concerning applicable zoning and building laws, (ii) an ALTA 3.1 zoning endorsement to the Title Insurance Policy, if available or (iii) other evidence of zoning compliance, in each case in substance reasonably satisfactory to Lender.

(g)           Encumbrances.   Borrower shall have taken or caused to be taken such actions in such a manner so that Lender has a valid and perfected first Lien on the Property as of the Closing Date with respect to the Mortgage, subject only to applicable Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents, and Lender shall have received satisfactory evidence thereof.

3.1.4        Related Documents. Each additional document not specifically referenced herein, but relating to the transactions contemplated herein, shall have been duly authorized,

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executed and delivered by all parties thereto and Lender shall have received and approved certified copies thereof.

3.1.5        Delivery of Organizational Documents.   On or before the Closing Date, Borrower shall deliver or cause to be delivered to Lender copies certified by Borrower of all organizational documentation related to Borrower and/or the formation, structure, existence, good standing and/or qualification to do business, as Lender may request in its sole discretion, including, without limitation, good standing certificates, qualifications to do business in the appropriate jurisdictions, resolutions authorizing the entering into of the Loan and incumbency certificates as may be requested by Lender.

3.1.6        Opinions of Borrower’s Counsel. Lender shall have received opinions of Borrower’s counsel (and if applicable, Borrower’s local counsel) (a) with respect to non-consolidation issues (an “Insolvency Opinion”) and (b) with respect to due execution, authority, enforceability of the Loan Documents and such other matters as Lender may reasonably require, all such opinions in form, scope and substance reasonably satisfactory to Lender and Lender’s counsel in their reasonable discretion.

3.1.7        Budgets. Borrower shall have delivered, and Lender shall have approved, the Annual Budget for the current Fiscal Year.

3.1.8        Basic Carrying Costs. Borrower shall have paid all Basic Carrying Costs relating to the Property which are in arrears, including without limitation, (a) accrued but unpaid insurance premiums relating to the Property, (b) currently due and payable Taxes (including any in arrears) relating to the Property, and (c) currently due Other Charges relating to the Property, which amounts shall be funded with proceeds of the Loan.

3.1.9        Completion of Proceedings. All organizational proceedings taken or to be taken in connection with the transactions contemplated by this Agreement and other Loan Documents and all documents incidental thereto shall be reasonably satisfactory in form and substance to Lender, and Lender shall have received all such counterpart originals or certified copies of such documents as Lender may reasonably request.

3.1.10      Payments.   All payments, deposits or escrows required to be made or established by Borrower under this Agreement, the Note and the other Loan Documents on or before the Closing Date shall have been paid.

3.1.11      Tenant Estoppels. Borrower shall exercise reasonable commercial efforts to deliver estoppel certificates from Tenants occupying not less than seventy-five percent (75%) of the gross leasable area of the Property; provided, however, that, in the event that Borrower is unable to deliver some or all of the estoppels described above in this Section 3.1.11, Lender agrees that the requirement to deliver such letters to Lender shall be waived by Lender as a condition precedent to the closing of the Loan so long as Borrower delivers on or before the Closing Date, a certificate executed by Borrower with respect to all applicable leases which shall be in substantially the same form and contain the same terms as set forth in Lender’s standard form of estoppel certificate.  At any time and from time to time, Lender may request that Borrower obtain estoppel certificates from Tenants occupying the Property.  If requested by

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Lender Borrower agrees to use commercially reasonable efforts to obtain the estoppel certificates that Lender is requesting, which estoppel certificates shall be in form and substance acceptable to Lender in its reasonable discretion.

3.1.12      Transaction Costs. Borrower shall have paid or reimbursed Lender for all title insurance premiums, recording and filing fees or taxes, costs of environmental reports, Physical Conditions Reports, appraisals and other reports, the fees and costs Lender’s counsel and all other third party out-of-pocket expenses incurred in connection with the origination of the Loan.

3.1.13      Material Adverse Change.   There shall have been no material adverse change in the financial condition or business condition of Borrower or the Property since the date of the most recent financial statements delivered to Lender.  The income and expenses of the Property, the occupancy leases thereof, and all other features of the transaction shall be as represented to Lender without material adverse change.  Neither Borrower, any of its constituent Persons, shall be the subject of any bankruptcy, reorganization, or insolvency proceeding.

3.1.14      Leases and Rent Roll.   Lender shall have received copies of all tenant leases, certified copies of any tenant leases as requested by Lender and certified copies of all ground leases affecting the Property.  Lender shall have received a current certified rent roll of the Property, reasonably satisfactory in form and substance to Lender.

3.1.15      Subordination and Attornment.   Lender shall have received appropriate instruments acceptable to Lender in its commercially reasonable discretion subordinating any Leases of record prior to the Mortgage and including an agreement by such Tenants to attorn to Lender in the event of a foreclosure or delivery of a deed in lieu thereof.

3.1.16      Tax Lot. Lender shall have received evidence that the Property constitutes one (1) or more separate tax lots, which evidence shall be reasonably satisfactory in form and substance to Lender.

3.1.17      Physical Conditions Reports.     Lender shall have received Physical Conditions Reports with respect to the Property, which reports shall be reasonably satisfactory in form and substance to Lender.

3.1.18      Management Agreement.  Lender shall have received a certified copy of the Management Agreement with respect to the Property which shall be satisfactory in form and substance to Lender.  Lender acknowledges that it has reviewed the Management Agreement, and as drafted, such Management Agreement does not violate Borrower’s covenant that affiliated agreements be on terms which are intrinsically fair, commercially reasonable and are no less favorable to it than would be obtained in a comparable arm’s length transaction with an unrelated third party.

3.1.19      Appraisal.  Lender shall have received an appraisal of the Property, which shall be satisfactory in form and substance to Lender.

3.1.20      Financial Statements. Lender shall have received (a) a balance sheet with respect to the Property for the two most recent Fiscal Years and statements of income and

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statements of cash flows with respect to the Property for the three most recent Fiscal Years, each in form and substance reasonably satisfactory to Lender or (b) such other financial statements relating to the ownership and operation of the Property, in form and substance reasonably satisfactory to Lender.

3.1.21      Further Documents. Lender or its counsel shall have received such other and further approvals, opinions, documents and information as Lender or its counsel may have reasonably requested including the Loan Documents in form and substance reasonably satisfactory to Lender and its counsel.

3.1.22      Environmental Insurance.   If required by Lender, Borrower shall have obtained a secured creditor environmental insurance policy with respect to the Property, which shall be in form and substance satisfactory to Lender. Any such policy shall have a term not less than the term of the Loan. Borrower shall have provided to Lender evidence that the premiums for such policy has been paid in full.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

Section 4.1            Borrower Representations.   Borrower represents and warrants as of the date hereof and as of the Closing Date that:

4.1.1        Organization.  Borrower has been duly organized and is validly existing and in good standing with requisite power and authority to own the Property and to transact the businesses in which it is now engaged. Borrower is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with the Property, businesses and operations.  Borrower possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own the Property and to transact the businesses in which it is now engaged, and the sole business of Borrower is the ownership, management and operation of the Property.

4.1.2        Proceedings.   Borrower has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the other Loan Documents.  This Agreement and such other Loan Documents have been duly executed and delivered by or on behalf of Borrower and constitute legal, valid and binding obligations of Borrower enforceable against Borrower in accordance with their respective terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

4.1.3        No Conflicts. The execution, delivery and performance of this Agreement and the other Loan Documents by Borrower will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance (other than pursuant to the Loan Documents) upon any of the property or assets of Borrower pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument to which Borrower is a

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party or by which any of Borrower’s property or assets is subject, nor will such action result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Borrower or any of Borrower’s properties or assets, and any consent, approval, authorization, order, registration or qualification of or with any court or any such regulatory authority or other governmental agency or body required for the execution, delivery and performance by Borrower of this Agreement or any other Loan Documents has been obtained and is in full force and effect.

4.1.4        Litigation.   To Borrower’s knowledge, there are no actions, suits or proceedings at law or in equity by or before any Governmental Authority or other agency now pending or threatened against or affecting Borrower or the Property, which actions, suits or proceedings, if determined against Borrower or the Property, might materially adversely affect the condition (financial or otherwise) or business of Borrower or the condition or ownership of the Property.

4.1.5        Agreements.   Except such instruments and agreements set forth as Permitted Encumbrances in the Title Insurance Policy, Borrower is not a party to any agreement or instrument or subject to any restriction which might materially and adversely affect Borrower or the Property, or Borrower’s business, properties or assets, operations or condition, financial or otherwise.  To Borrower’s knowledge, Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party or by which Borrower or the Property are bound.  Borrower has no material financial obligation under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Borrower is a party or by which Borrower or the Property is otherwise bound, other than (a) obligations incurred in the ordinary course of the operation of the Property and (b) obligations under the Loan Documents.

4.1.6        Title.   Borrower has good and indefeasible fee simple title to the real property comprising part of the Property and good title to the balance of the Property, free and clear of all Liens whatsoever except the Permitted Encumbrances, such other Liens as are permitted pursuant to the Loan Documents and the Liens created by the Loan Documents. The Mortgage, when properly recorded in the appropriate records, together with any Uniform Commercial Code financing statements required to be filed in connection therewith, will create (a) a valid, perfected lien on the Property, subject only to Permitted Encumbrances and the Liens created by the Loan Documents and (b) perfected security interests in and to, and perfected collateral assignment of, all personalty (including the Leases), all in accordance with the terms thereof, in each case subject only to any applicable Permitted Encumbrances, such other Liens as are permitted pursuant to the Loan Documents and the Liens created by the Loan Documents. There are no claims for payment for work, labor or materials affecting the Property which are due and unpaid under the contracts pursuant to which such work or labor was performed or materials provided which are or may become a lien prior to, or of equal priority with, the Liens created by the Loan Documents.

4.1.7        Solvency; No Bankruptcy Filing.   Borrower (a) has not entered into the transaction or executed the Note, this Agreement or any other Loan Documents with the actual intent to hinder, delay or defraud any creditor and (b) received reasonably equivalent value in

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exchange for its obligations under such Loan Documents. Giving effect to the Loan, the fair saleable value of Borrower’s assets exceeds and will, immediately following the making of the Loan, exceed Borrower’s total liabilities, including, without limitation, subordinated, unliquidated, disputed and contingent liabilities. The fair saleable value of Borrower’s assets is and will, immediately following the making of the Loan, be greater than Borrower’s probable liabilities, including the maximum amount of its contingent liabilities on its debts as such debts become absolute and matured. Borrower’s assets do not and, immediately following the making of the Loan will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Borrower does not intend to, and does not believe that it will, incur debt and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such debt and liabilities as they mature (taking into account the timing and amounts of cash to be received by Borrower and the amounts to be payable on or in respect of obligations of Borrower). Except as expressly disclosed to Lender in writing, no petition in bankruptcy has been filed against Borrower, or to the best of Borrower’s knowledge, any constituent Person in the last seven (7) years, and neither Borrower, nor to the best of Borrower’s knowledge, any constituent Person in the last seven (7) years has ever made an assignment for the benefit of creditors or taken advantage of any insolvency act for the benefit of debtors. Neither Borrower nor any of its constituent Persons are contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of Borrower’s assets or property, and Borrower has no knowledge of any Person contemplating the filing of any such petition against it or such constituent Persons.

4.1.8        Full and Accurate Disclosure.   To Borrower’s knowledge, no statement of fact made by Borrower in this Agreement or in any of the other Loan Documents contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained herein or therein not misleading. There is no material fact presently known to Borrower which has not been disclosed to Lender which adversely affects, nor as far as Borrower can foresee, might adversely affect, the Property or the business, operations or condition (financial or otherwise) of Borrower.

4.1.9        No Plan Assets.   Borrower is not an “employee benefit plan,” as defined in Section 3(3) of ERISA, subject to Title I of ERISA, and none of the assets of Borrower constitutes or will constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101. In addition, (a) Borrower is not a “governmental plan” within the meaning of Section 3(32) of ERISA and (b) transactions by or with Borrower are not subject to state statutes regulating investment of, and fiduciary obligations with respect to, governmental plans similar to the provisions of Section 406 of ERISA or Section 4975 of the Code currently in effect, which prohibit or otherwise restrict the transactions contemplated by this Loan Agreement.

4.1.10      Compliance.   To Borrower’s knowledge, Borrower and the Property and the use thereof comply in all material respects with all applicable Legal Requirements, including, without limitation, building and zoning ordinances and codes.  Borrower is not in default or violation of any order, writ, injunction, decree or demand of any Governmental Authority.  There has not been committed by Borrower or, to Borrower’s knowledge, any other Person in occupancy of or involved with the operation or use of the Property any act or omission affording the federal government or any other Governmental Authority the right of forfeiture as against the

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Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents.

4.1.11      Financial Information.   All financial data, including, without limitation, the statements of cash flow and income and operating expense, that have been delivered to Lender in respect of the Property (i) are, to the best of Borrower’s knowledge, true, complete and correct in all material respects, (ii) accurately represent the financial condition of the Property as of the date of such reports, and (iii) to the extent prepared or audited by an independent certified public accounting firm, have been prepared in accordance with accounting principles reasonably acceptable to Lender, consistently applied throughout the periods covered, except as disclosed therein; provided, however, that if any financial data is delivered to Lender by any Person other than Borrower, Indemnitor or any of their Affiliates, or if such financial data has been prepared by or at the direction of any Person other than Borrower, Indemnitor or any of their Affiliates, then the foregoing representations with respect to such financial data shall be to the best of Borrower’s knowledge, after due inquiry. Borrower does not have any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that are known to Borrower and reasonably likely to have a materially adverse effect on the Property or the operation thereof as a retail shopping center, except as referred to or reflected in said financial statements. Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of Borrower from that set forth in said financial statements.

4.1.12      Condemnation.   No Condemnation or other proceeding has been commenced or, to Borrower’s knowledge, is contemplated with respect to all or any portion of the Property or for the relocation of roadways providing access to the Property.

4.1.13      Federal Reserve Regulations.   No part of the proceeds of the Loan will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by Legal Requirements or by the terms and conditions of this Agreement or the other Loan Documents.

4.1.14      Utilities and Public Access.   The Property has rights of access to public ways and is served by water, sewer, sanitary sewer and storm drain facilities adequate to service the Property for its respective intended uses. All public utilities necessary or convenient to the full use and enjoyment of the Property are located either in the public right-of-way abutting the Property (which are connected so as to serve the Property without passing over other property) or in recorded easements serving the Property and such easements are set forth in and insured by the Title Insurance Policy. All roads necessary for the use of the Property for their current respective purposes have been completed and dedicated to public use and accepted by all Governmental Authorities.

4.1.15      Not a Foreign Person.   Borrower is not a “foreign person” within the meaning of §1445(f)(3) of the Code.

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4.1.16      Separate Lots.   The Property is comprised of one (1) or more parcels which constitute a separate tax lot or lots and does not constitute a portion of any other tax lot not a part of the Property.

4.1.17      Assessments.   There are no pending, or to Borrower’s knowledge, proposed special or other assessments for public improvements or otherwise affecting the Property, nor are there any contemplated improvements to the Property that may result in such special or other assessments.

4.1.18      Enforceability.   The Loan Documents are not subject to any right of rescission, set-off, counterclaim or defense by Borrower, including the defense of usury, nor would the operation of any of the terms of the Loan Documents, or the exercise of any right thereunder, render the Loan Documents unenforceable, and Borrower has not asserted any right of rescission, set-off, counterclaim or defense with respect thereto.

4.1.19      No Prior Assignment.   There is no prior assignment of the Leases or any portion of the Rents by Borrower or any of its predecessors in interest, given as collateral security which are presently outstanding.

4.1.20      Insurance.   Borrower has obtained and has delivered to Lender certified copies of all insurance policies reflecting the insurance coverages, amounts and other requirements set forth in this Agreement. To the best of Borrower’s knowledge, no claims have been made under any such policy, and no Person, including Borrower, has done, by act or omission, anything which would impair the coverage of any such policy.

4.1.21      Use of Property.  The Property is used exclusively for retail purposes and other appurtenant and related uses.

4.1.22      Certificate of Occupancy: Licenses.   All certifications, permits, licenses and approvals, including without limitation, certificates of completion and occupancy permits required to be obtained by Borrower for the legal use, occupancy and operation of the Property as a retail shopping center have been obtained and are in full force and effect, and to the best of Borrower’s knowledge, after due inquiry, all certifications, permits, licenses and approvals, including without limitation, certificates of completion and occupancy permits required to be obtained by any Person other than Borrower for the legal use, occupancy and operation of the Property as a retail shopping center, have been obtained and are in full force and effect (all of the foregoing certifications, permits, licenses and approvals are collectively referred to as the “Licenses”). Borrower shall and shall cause all other Persons to, keep and maintain all licenses necessary for the operation of the Property as a retail shopping center. To Borrower’s knowledge, the use being made of the Property is in conformity with all certificates of occupancy issued for the Property.

4.1.23      Flood Zone.   To the best of Borrower’s knowledge, after due inquiry, no Improvements on the Property are located in an area identified by the Federal Emergency Management Agency as an area having special flood hazards.

4.1.24      Physical Condition.   Except as disclosed in the Physical Conditions Reports delivered to Lender in connecting with this Loan, to Borrower’s knowledge, the

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Property, including, without limitation, all buildings, improvements, parking facilities, sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, are in good condition, order and repair in all material respects; there exists no structural or other material defects or damages in the Property, whether latent or otherwise, and Borrower has not received notice from any insurance company or bonding company of any defects or inadequacies in the Property, or any part thereof, which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond.

4.1.25      Boundaries.   To the best of Borrower’s knowledge, after due inquiry, all of the improvements which were included in determining the appraised value of the Property lie wholly within the boundaries and building restriction lines of the Property, and no improvements on adjoining properties encroach upon the Property, and no easements or other encumbrances upon the Property encroach upon any of the improvements, so as to affect the value or marketability of the Property except those which are insured against by title insurance.

4.1.26      Leases.   The Property is not subject to any Leases other than the Leases described on the Rent Roll attached as Schedule IV hereto and made a part hereof. To the best of Borrower’s knowledge after due inquiry, no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases, The current Leases are in full force and effect and to Borrower’s knowledge after inquiry, there are no defaults thereunder by either party and there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. To the best of Borrower’s knowledge after due inquiry, no Rent (including security deposits) has been paid more than one (1) month in advance of its due date. To the best of Borrower’s knowledge after due inquiry, all work to be performed by Borrower under each Lease has been performed as required and has been accepted by the applicable tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any tenant has already been received by such tenant. To the best of Borrower’s knowledge after due inquiry, there has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein which is outstanding. To. Borrower’s knowledge after inquiry, except as set forth on Schedule IV, no tenant listed on Schedule IV has assigned its Lease or sublet all or any portion of the premises demised thereby, no such tenant holds its leased premises under assignment or sublease, nor does anyone except such tenant and its employees occupy such leased premises. No tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as set forth in Schedule IV, no tenant under any Lease has any right or option for additional space in the Improvements except as set forth in Schedule IV. To Borrower’s actual knowledge based on the Environmental Report delivered to Lender in connection herewith, no hazardous wastes or toxic substances, as defined by applicable federal, state or local statutes, rules and regulations, have been disposed, stored or treated by any tenant under any Lease on or about the leased premises nor does Borrower have any knowledge of any tenant’s intention to use its leased premises for any activity which, directly or indirectly, involves the use, generation, treatment, storage, disposal or transportation of any petroleum product or any toxic or hazardous chemical, material, substance or waste,

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except in either event, in compliance with applicable federal, state or local statues, rules and regulations.

4.1.27      Survey.   The Survey for the Property delivered to Lender in connection with this Agreement has been prepared in accordance with the provisions of Section 3.1.3(c) hereof, and does not fail to reflect any material matter affecting the Property or the title thereto.

4.1.28      Loan to Value.   The maximum principal amount of the Note does not exceed one hundred twenty-five percent (125%) of the fair market value of the Property as set forth on the appraisal of the Property delivered to Lender.

4.1.29      Filing and Recording Taxes.   All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the acquisition of the Property by Borrower have been paid or are simultaneously being paid. All mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents, including, without limitation, the Mortgage, have been paid, and, under current Legal Requirements, the Mortgage is enforceable in accordance with its terms by Lender (or any subsequent holder thereof).

4.1.30      Special Purpose Entity/Separateness.   (a)  Until the Debt has been paid in full, Borrower hereby represents, warrants and covenants that the Borrower is, shall be and shall continue to be a Special Purpose Entity. If Borrower consists of more than one Person, each such Person shall be a Special Purpose Entity.

(b)           The representations, warranties and covenants set forth in Section 4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.

(c)           Any and all of the assumptions made in any Insolvency Opinion, including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects, and Borrower will have complied and will comply with all of the assumptions made with respect to it in any Insolvency Opinion. Each entity other than Borrower with respect to which an assumption is made in any Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any such Insolvency Opinion.

4.1.31      Management Agreement.   The Management Agreement is in full force and effect and, to Borrower’s knowledge, there is no default thereunder by any party thereto and no event has occurred that, with the passage of time and/or the giving of notice would constitute a default thereunder.

4.1.32      Illegal Activity.   To Borrower’s knowledge, no portion of the Property has been or will be purchased with proceeds of any illegal activity.

4.1.33      No Change in Facts or Circumstances: Disclosure.   All information submitted by Borrower to Lender and in all financial statements, rent rolls, reports, certificates

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and other documents submitted in connection with the Loan or in satisfaction of the terms thereof and all statements of fact made by Borrower in this Agreement or in any other Loan Document, are accurate, complete and correct in all material respects, provided, however, that if such information was provided to Borrower by non-affiliated third parties, Borrower represents that such information is, to the best of its knowledge after due inquiry, accurate, complete and correct in all material respects. There has been no material adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading in any material respect or that otherwise materially and adversely affects or might materially and adversely affect the Property or the business operations or the financial condition of Borrower. Borrower has disclosed to Lender all material facts and has not failed to disclose any material fact that could cause any representation or warranty made herein to be materially misleading.

4.1.34      Investment Company Act.  Borrower is not (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; (b) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (c) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

4.1.35      Principal Place of Business and Organization. Borrower shall not change its principal place of business set forth in the introductory paragraph of this Agreement without first giving Lender thirty (30) days prior written notice. Borrower shall not change the place of its organization as set forth in the introductory paragraph of this Agreement without the consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed. Upon Lender’s request, Borrower shall execute and deliver additional financing statements, security agreements and other instruments which may be necessary to effectively evidence or perfect Lender’s security interest in the Property as a result of such change of principal place of business or place of organization.

4.1.36      OFAC.    Borrower represents and covenants that it is not and will not become a person (individually, a “Prohibited Person” and collectively “Prohibited Persons”) listed on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Asset Control, U.S. Department of the Treasury (the “OFAC List”) or otherwise subject to any other prohibitions or restriction imposed by laws, regulations or executive orders, including Executive Order No. 13224, administered by OFAC (as may be amended from time to time, collectively the “OFAC Rules”).  Borrower represents and covenants that it also (i) is not and will not become owned or controlled by a Prohibited Person, (ii) is not acting and will not act for or on behalf of a Prohibited Person, (iii) is not otherwise associated with and will not become associated with a Prohibited Person, (iv) is not providing and will not provide any material, financial or technological support for or financial or other service to or in support of acts of terrorism or a Prohibited Person. Borrower will not transfer any interest in Borrower to or enter into a Lease with any Prohibited Person. Borrower shall immediately notify Lender if Borrower has actual knowledge (after commercially reasonable due diligence and inquiry) that Indemnitor or any member or beneficial owner of Borrower or Indemnitor is or becomes a Prohibited Person or (A) is indicted on or (B) arraigned and held over on charges involving

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money laundering or predicate crimes to money laundering. Borrower will not enter into any lease or undertake any activities related to this Agreement in violation of the federal Bank Secrecy Act (as amended from time to time, the “BSA”), 31 U.S.C. § 5311, et seq. or any federal or state laws, including but not limited to 18 U.S.C. §§ 1956, 1957 and 1960, prohibiting money laundering and terrorist financing (as amended from time to time, collectively the “Anti-Money Laundering Laws”). Borrower shall provide information as Lender may require from time to time to permit Lender to satisfy its obligations under the OFAC Rules and/or the Anti-Money Laundering Laws. Borrower shall immediately notify Lender if to Borrower’s actual knowledge (after commercially reasonable due diligence and inquiry) any Tenant becomes a Prohibited Person or (A) is convicted of, (B) pleads nolo contendere to, (C) is indicted on, or (D) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering. In addition to the foregoing, Borrower agrees to indemnify, defend and hold harmless Lender for any actual Losses suffered or incurred (as applicable) by Lender if Borrower does not comply with this Section 4.1.36 or any of the provisions and requirements of the OFAC Rules, BSA and/or any Anti-Money Laundering Laws.

Section 4.2             Survival of Representations.   Borrower agrees that all of the representations and warranties of Borrower set forth in Section 4.1 and elsewhere in this Agreement and in the other Loan Documents shall survive for so long as any amount remains owing to Lender under this Agreement or any of the other Loan Documents by Borrower. All representations, warranties, covenants and agreements made in this Agreement or in the other Loan Documents by Borrower shall be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.

ARTICLE V

BORROWER COVENANTS

Section 5.1             Affirmative Covenants.   From the Closing Date and until payment and performance in full of all obligations of Borrower under the Loan Documents or the earlier release of the Lien of the Mortgage encumbering the Property (and all related obligations) in accordance with the terms of this Agreement and the other Loan Documents, Borrower hereby covenants and agrees with Lender that:

5.1.1        Existence: Compliance with Legal Requirements: Insurance. Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, rights, licenses, permits and franchises and comply with all Legal Requirements applicable to it and the Property. Borrower shall not commit, nor shall Borrower permit any other Person in occupancy of or involved with the operation or use of the Property to commit, any act or omission affording the federal government or any state or local government the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents. Borrower hereby covenants and agrees not to commit, permit or suffer to exist any act or omission affording such right of forfeiture. Borrower shall at all times maintain, preserve and protect all its franchises and trade names and preserve all the remainder of its property used or useful in the conduct of its business and shall keep the Property in good working order and repair, and from time to time make, or cause to be made, all reasonably necessary repairs, renewals, replacements, betterments

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and improvements thereto, all as more fully provided in the Mortgage. Borrower shall keep the Property insured at all times by financially sound and reputable insurers, to such extent and against such risks, and maintain liability and such other insurance, as is more fully provided in this Agreement. Borrower shall operate, or cause the tenant to operate, any Property that is the subject of an O&M Agreement (if any) in accordance with the terms and provisions thereof in all material respects. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate lega1 proceeding promptly initiated and conducted in good faith and with due diligence, the validity of any Legal Requirement, the applicability of any Legal Requirement to Borrower or the Property or any alleged violation of any Legal Requirement, provided that (i) no Event of Default has occurred and remains uncured; (ii) intentionally omitted; (iii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iv) the Property or any part thereof or interest therein will not be in danger of being sold, forfeited, terminated, cancelled or lost; (v) Borrower shall promptly upon final determination thereof comply with any such Legal Requirement determined to be valid or applicable or cure any violation of any Legal Requirement; (vi) such proceeding shall suspend the enforcement of the contested Legal Requirement against Borrower or the Property; and (vii) Borrower shall furnish such security as may be required in the proceeding, or as may be requested by Lender, to insure compliance with such Legal Requirement, together with all interest and penalties payable in connection therewith. Lender may apply any such security, as necessary to cause compliance with such Legal Requirement at any time when, in the reasonable judgment of Lender, the validity, applicability or violation of such Legal Requirement is finally established or the Property (or any part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost.

5.1.2        Taxes and Other Charges. Borrower shall pay or cause to be paid all Taxes and Other Charges now or hereafter levied or assessed or imposed against the Property or any part thereof as the same become due and payable; provided, however, Borrower’s obligation to directly pay to the appropriate taxing authority Taxes shall be suspended for so long as Borrower complies with the terms and provisions of Section 7.2 hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid. Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is

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permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.

5.1.3        Litigation.   Borrower shall give prompt written notice to Lender of any litigation or governmental proceedings pending or threatened against Borrower which might materially adversely affect Borrower’s condition (financial or otherwise) or business or the Property.

5.1.4        Access to Property.  Borrower shall permit agents, representatives and employees of Lender to inspect the Property or any part thereof at reasonable hours upon reasonable advance notice, subject to the rights of Tenants under their respective Leases.

5.1.5        Notice of Default.   Borrower shall promptly advise Lender of any material adverse change in Borrower’s condition, financial or otherwise, or of the occurrence of any Default or Event of Default of which Borrower has knowledge.

5.1.6        Cooperate in Legal Proceedings.   Borrower shall cooperate fully with Lender with respect to any proceedings before any court, board or other Governmental Authority which may in any way affect the rights of Lender hereunder or any rights obtained by Lender under any of the other Loan Documents and, in connection therewith, permit Lender, at its election, to participate in any such proceedings.

5.1.7        Perform Loan Documents.   Borrower shall observe, perform and satisfy all the terms, provisions, covenants and conditions of, and shall pay when due all costs, fees and expenses to the extent required under the Loan Documents executed and delivered by, or applicable to, Borrower.

5.1.8        Insurance Benefits.   Borrower shall cooperate with Lender in obtaining for Lender the benefits of any Insurance Proceeds lawfully or equitably payable in connection with the Property, and Lender shall be reimbursed for any expenses incurred in connection therewith (including reasonable attorneys’ fees and disbursements, and the payment by Borrower of the expense of an appraisal on behalf of Lender in case of a fire or other casualty affecting the Property or any part thereof) out of such Insurance Proceeds.

5.1.9        Further Assurances.   Borrower shall, at Borrower’s sole cost and expense:

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(a)           furnish to Lender all instruments, documents, boundary surveys, footing or foundation surveys, certificates, plans and specifications, appraisals, title and other insurance reports and agreements, and each and every other document, certificate, agreement and instrument required to be furnished by Borrower pursuant to the terms of the Loan Documents or reasonably requested by Lender in connection therewith;

(b)           execute and deliver to Lender such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect the collateral at any time securing or intended to secure the obligations of Borrower under the Loan Documents, as Lender may reasonably require; and

(c)           do and execute all and such further lawful and reasonable acts, conveyances and assurances for the better and more effective carrying out of the intents and purposes of this Agreement and the other Loan Documents, as Lender shall reasonably require from time to time.

5.1.10      Intentionally Omitted.

5.1.11      Financial Reporting.   (a) Borrower will keep and maintain or will cause to be kept and maintained on a Fiscal Year basis, in accordance with the requirements for a Special Purpose Entity set forth above, proper and accurate books, records and accounts reflecting all of the financial affairs of Borrower and all items of income and expense in connection with the operation on an individual basis of the Property. Lender shall have the right from time to time at all times during normal business hours upon reasonable notice to examine such books, records and accounts at the office of Borrower or other Person maintaining such, books, records and accounts and to make such copies or extracts thereof as Lender shall desire. After the occurrence and during the continuance of an Event of Default, Borrower shall pay any costs and expenses incurred by Lender to examine Borrower’s accounting records with respect to the Property, as Lender shall reasonably determine to be necessary or appropriate in the protection of Lender’s interest.

(b)           Borrower will furnish to Lender annually, within ninety (90) days following the end of each Fiscal Year of Borrower, either (i) a complete copy of Borrower’s annual financial statements audited by an accounting firm or other independent certified public accountant reasonably acceptable to Lender in accordance with the requirements for a Special Purpose Entity set forth above, or (ii) a consolidated and annotated financial statement of Borrower and Sole Member (as applicable), audited by an accounting firm or other independent certified public accountant reasonably acceptable to Lender in accordance with the requirements for a Special Purpose Entity set forth above, together with unaudited financial statements relating to the Borrower and the Property. Such financial statements for the Property for such Fiscal Year and shall contain statements of profit and loss for Borrower and the Property and a balance sheet for Borrower.  Such statements shall set forth the financial condition and the results of operations for the Property for such Fiscal Year, and shall include, but not be limited to, amounts representing annual Net Cash Flow, Net Operating Income, Gross Income from Operations and Operating Expenses. Borrower’s annual financial statements shall be accompanied by (i) a comparison of the budgeted income and expenses and the actual income and expenses for the prior Fiscal Year, (ii) a certificate executed by the chief financial officer of Borrower or Sole

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Member, as applicable, stating that each such annual financial statement presents fairly the financial condition and the results of operations of Borrower and the Property being reported upon and has been prepared in accordance with accounting principles reasonably acceptable to Lender, consistently applied, (iii) an unqualified opinion of an accounting firm or other independent certified public accountant reasonably acceptable to Lender, (iv) a certified rent roll containing current rent, lease expiration dates and the square footage occupied by each tenant; (V)a schedule audited by such independent certified public accountant reconciling Net Operating Income to Net Cash Flow (the “Net Cash Flow Schedule”),which shall itemize all adjustments made to Net Operating Income to arrive at Net Cash Flow deemed material by such independent certified public accountant. Together with Borrower’s annual financial statements, Borrower shall furnish to Lender an Officer’s Certificate certifying as of the date thereof whether there exists an event or circumstance which constitutes a Default or Event of Default under the Loan Documents executed and delivered by, or applicable to, Borrower, and if such Default or Event of Default exists, the nature thereof, the period of time it has existed and the action then being taken to remedy the same.

(c)           Borrower will furnish, or cause to be furnished, to Lender on or before forty five (45) days after the end of each calendar quarter the following items, accompanied by a certificate of the chief financial officer of Borrower or Sole Member, as applicable, stating that such items are true, correct, accurate, and complete and fairly present the financial condition and results of the operations of Borrower and the Property (subject to normal year-end adjustments) as applicable: (i) a rent roll for the subject month accompanied by an Officer’s Certificate with respect thereto; (ii) quarterly and year-to-date operating statements (including Capital Expenditures) prepared for each calendar quarter, noting Net Operating Income, Gross Income from Operations, and Operating Expenses (not including any contributions to the Replacement Reserve Fund, and other information necessary and sufficient to fairly represent the financial position and results of operation of the Property during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses together with a detailed explanation of any variances of five percent (5%) or more between budgeted and actual amounts for such periods, all in form satisfactory to Lender; (iii) a calculation reflecting the annual Debt Service Coverage Ratio for the immediately preceding twelve (12) month period as of the last day of such month accompanied by an Officer’s Certificate with respect thereto; and (iv) a Net Cash Flow Schedule (such Net Cash Flow for the Borrower may be unaudited if it is certified by an officer of the Borrower). In addition, such certificate shall also be accompanied by a certificate of the chief financial officer of Borrower or Sole Member stating that the representations and warranties of Borrower set forth in Section 4.1.30(a) are true and correct as of the date of such certificate.

(d)           Intentionally deleted.

(e)           Borrower shall furnish to Lender, within ten (10) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information with respect to the operation of the Property and the financial affairs of Borrower as may be reasonably requested by Lender.

(f)            Borrower shall furnish to Lender, within ten (10) Business Days after Lender’s request (or as soon thereafter as may be reasonably possible), financial and sales

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information from any Tenant designated by Lender (to the extent such financial and sales information is required to be provided under the applicable Lease and same is received by Borrower after request therefor).

(g)           Borrower will cause Indemnitor to furnish to Lender annually, within one hundred twenty (120) days following the end of each Fiscal Year of Indemnitor, Indemnitor’s 10K and/or 10Q filings.

(h)           Any reports, statements or other information required to be delivered under this Agreement shall be delivered (i) in paper form, (ii) on a diskette, and (iii) if requested by Lender and within the capabilities of Borrower’s data systems without change or modification thereto, in electronic form and prepared using a Microsoft Word for Windows or WordPerfect for Windows files (which files may be prepared using a spreadsheet program and saved as word processing files).

5.1.12      Business and Operations.  Borrower will continue to engage in the businesses presently conducted by it as and to the extent the same are necessary for the ownership, maintenance, management and operation of the Property. Borrower will qualify to do business and will remain in good standing under the laws of each jurisdiction as and to the extent the same are required for the ownership, maintenance, management and operation of the Property.

5.1.13      Title to the Property.   Borrower will warrant and defend (a) the title to the Property and every part thereof, subject only to Liens permitted hereunder (including Permitted Encumbrances) and (b) the validity and priority of the Liens of the Mortgage and the Assignment of Leases on the Property, subject only to Liens permitted hereunder (including Permitted Encumbrances), in each case against the claims of all Persons whomsoever. Borrower shall reimburse Lender for any losses, costs, damages or expenses (including reasonable attorneys’ fees and court costs) incurred by Lender if an interest in the Property, other than as permitted hereunder, is claimed by another Person.

5.1.14      Costs of Enforcement.   In the event (a) that the Mortgage encumbering the Property is foreclosed in whole or in part or that the Mortgage is put into the hands of an attorney for collection, suit, action or foreclosure, (b) of the foreclosure of any mortgage prior to or subsequent to the Mortgage encumbering the Property in which proceeding Lender is made a party, or (c) of the bankruptcy, insolvency, rehabilitation or other similar proceeding in respect of Borrower or any of its constituent Persons or an assignment by Borrower or any of its constituent Persons for the benefit of its creditors, Borrower, its successors or assigns, shall be chargeable with and agrees to pay all costs of collection and defense, including reasonable attorneys’ fees and costs, incurred by Lender or Borrower in connection therewith and in connection with any appellate proceeding or post-judgment action involved therein, together with all required service or use taxes.

5.1.15      Estoppel Statement.   (a)  After request by Lender, Borrower shall within ten (10) days furnish Lender with a statement, duly acknowledged and certified, setting forth (i) the amount of the original principal amount of the Note, (ii) the unpaid principal amount of the Note, (iii) the applicable interest rate of the Note, (iv) the date installments of interest and/or

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principal were last paid, (v) any offsets or defenses to the payment of the Debt, if any, and (vi) that the Note, this Agreement, the Mortgage and the other Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such modification.

(b)           Borrower shall use commercially reasonable efforts to deliver to Lender upon request, tenant estoppel certificates from. each commercial tenant leasing space at the Property in form and substance reasonably satisfactory to Lender provided that Borrower shall not be required to deliver such certificates more frequently than one (1) time in any calendar year.

(c)           Within thirty (30) days of request by Borrower, Lender shall deliver to Borrower a statement setting forth the items described at (a)(i), (ii), (iii) and (iv) of this Section 5.1.15.

5.1.16      Loan Proceeds.   Borrower shall use the proceeds of the Loan received by it on the Closing Date only for the purposes set forth in Section 2.1.4.

5.1.17      Performance by Borrower.   Borrower shall in a timely manner observe, perform and fulfill each and every covenant, term and provision of each Loan Document executed and delivered by, or applicable to, Borrower, and shall not enter into or otherwise suffer or permit any amendment, waiver, supplement, termination or other modification of any Loan Document executed and delivered by, or applicable to, Borrower without the prior written consent of Lender.

5.1.18      Confirmation of Representations.   Borrower shall deliver, in connection with any Securitization, (a) one or more Officer’s Certificates certifying as to the accuracy of all representations made by Borrower in the Loan Documents as of the date of the closing of such Securitization, and (b) certificates of the relevant Governmental Authorities in all relevant jurisdictions indicating the good standing and qualification of Borrower and its member as of the date of the Securitization.

5.1.19      No Joint Assessment.   Borrower shall not suffer, permit or initiate the joint assessment of the Property (a) with any other real property constituting a tax lot separate from the Property, and (b) which constitutes real property with any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to such real property portion of the Property.

5.1.20      Leasing Matters.   Any Leases with respect to the Property written after the Closing Date for more than the Relevant Leasing Threshold square footage shall be subject to the prior written approval of Lender, which approval may be given or withheld in the sole discretion of Lender. Lender shall approve or disapprove any such Lease within ten (10) Business Days of Lender’s receipt of a final execution draft of such Lease (including all exhibits, schedules, supplements, addenda or other agreements relating thereto) and a written notice from Borrower requesting Lender’s approval to such Lease, and such Lease shall be deemed approved, if Lender does not disapprove such Lease within said ten (10) Business Day period provided such written

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notice conspicuously states, in large bold type, that “PURSUANT TO SECTION 5.1.20 OF THE LOAN AGREEMENT, THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN TEN (10) BUSINESS DAYS OF LENDER’S RECEIPT OF SUCH LEASE AND WRITTEN NOTICE”.  Borrower shall furnish Lender with executed copies of all Leases. All renewals of Leases and all proposed Leases shall provide for rental rates comparable to existing local market rates (unless such rental rates are otherwise set forth in the Leases executed prior to the Closing Date). All proposed Leases shall be on commercially reasonable terms and shall not contain any terms which would materially affect Lender’s rights under the Loan Documents. All Leases executed after the Closing Date shall provide that they are subordinate to the Mortgage encumbering the Property and that the tenant thereunder agrees to attorn to Lender or any purchaser at a sale by foreclosure or power of sale. Borrower (i) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner not to impair the value of the Property involved except that no termination by Borrower or acceptance of surrender by a tenant of any Lease shall be permitted unless by reason of a tenant default and then only in a commercially reasonable manner to preserve and protect the Property; provided, however, that no such termination or surrender of any Lease covering more than the Relevant Leasing Threshold will be permitted without the written consent of Lender which consent may be withheld in the sole discretion of Lender; (iii) shall not collect any of the rents more than one (1) month in advance (other than security deposits); (iv) shall not execute any other assignment of lessor’s interest in the Leases or the Rents (except as contemplated by the Loan Documents); (v) shall not alter, modify or change the terms of the Leases in a manner inconsistent with the provisions of the Loan Documents without the prior written consent of Lender, which consent may be withheld in the sole discretion of Lender; and (vi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignment in connection with the Leases as Lender shall from time to time reasonably require. Notwithstanding the foregoing, Borrower may, without the prior written consent of Lender, terminate any Lease which demises less than the Relevant Leasing Threshold under any of the following circumstances: (i) the tenant under said Lease is in default beyond any applicable grace and cure period, and Borrower has the right to terminate such Lease; (ii) such termination is permitted by the terms of the Lease in question and Borrower has secured an obligation from a third party to lease the space under the Lease to be terminated at a rental equal to or higher than the rental due under the Lease to be terminated; and (iii) if the tenant under the Lease to be terminated, has executed a right under said Lease to terminate its lease upon payment of a termination fee to Borrower, and has in fact terminated its lease and paid said fee, Borrower may accept said termination.

5.1.21      Alterations.   Subject to the rights of tenants to make alterations pursuant to the terms of their respective Leases, Borrower shall obtain Lender’s prior written consent to any alterations to any Improvements, which consent shall not be unreasonably withheld or delayed except with respect to alterations that may have a material adverse effect on Borrower’s financial condition, the value of the Property or the Net Operating Income. Notwithstanding the foregoing, Lender’s consent shall not be required in connection with any alterations that will not have a material adverse effect on Borrower’s financial condition, the value of the Property or the Net Operating Income, provided that such alterations are made in connection with (a) tenant improvement work performed pursuant to the terms of any Lease executed on or before the

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Closing Date, (b) tenant improvement work performed pursuant to the terms and provisions of a Lease and not adversely affecting any structural component of any Improvements, any utility or HVAC system contained in any Improvements or the exterior of any building constituting a part of any Improvements, (c) alterations performed in connection with the restoration of the Property after the occurrence of a casualty in accordance with the terms and provisions of this Agreement or (d) any structural alteration which costs less than $100,000.00 in the aggregate for all components thereof which constitute such alteration or any non-structural alteration which costs less than $250,000.00 in the aggregate for all components thereof which constitute such alteration. If the total unpaid amounts due and payable with respect to alterations to the Improvements at the Property (other than such amounts to be paid or reimbursed by tenants under the Leases) shall at any time equal or exceed $500,000.00 (the “Threshold Amount”), Borrower, upon Lender’s request, shall promptly deliver to Lender as security for the payment of such amounts and as additional security for Borrower’s obligations under the Loan Documents any of the following: (A) cash, (B) U.S. Obligations, (C) other securities having a rating acceptable to Lender and that the applicable Rating Agencies have confirmed in writing will not, in and of itself, result in a downgrade, withdrawal or qualification of the initial, or, if higher, then current ratings assigned in connection with any Securitization, or (D) a completion bond or letter of credit issued by a financial institution having a rating by Standard & Poor’s Ratings Group of not less than A-1+ if the term of such bond or letter of credit is no longer than three (3) months or, if such term is in excess of three (3) months, issued by a financial institution having a rating that is acceptable to Lender and that the applicable Rating Agencies have confirmed in writing will not, in and of itself, result in a downgrade, withdrawal or qualification of the initial, or, if higher, then current ratings assigned in connection with any Securitization. Such security shall be in an amount equal to the excess of the total unpaid amounts with respect to alterations to the Improvements on the Property (other than such amounts to be paid or reimbursed by tenants under the Leases) over the Threshold Amount and, if cash, may be applied from time to time, at the option of Borrower, to pay for such alterations. At the option of Lender, following the occurrence and during the continuance of an Event of Default, Lender may terminate any of the alterations and use the deposit to restore the Property to the extent necessary to prevent any material adverse effect on the value of the Property.

5.1.22      Intentionally Omitted.

5.1.23      Intentionally Omitted.

Section 5.2             Negative Covenants.   From the Closing Date until payment and performance in full of all obligations of Borrower under the Loan Documents or the earlier release of the Lien of the Mortgage encumbering the Property in accordance with the terms of this Agreement and the other Loan Documents, Borrower covenants and agrees with Lender that it will not do, directly or indirectly, any of the following:

5.2.1        Operation of Property.   Borrower shall not, without the prior consent of Lender, terminate the Management Agreement or otherwise replace the Manager or enter into any other management agreement with respect to the Property unless the Manager is in default thereunder beyond any applicable grace or cure period, in which event no consent by Lender shall be required. Lender agrees that its consent will not be unreasonably withheld, delayed or conditioned provided that the Person chosen by Borrower as the replacement Manager is a

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Qualifying Manager and provided further that Borrower shall deliver an acceptable non-consolidation opinion covering such replacement Manager if such Person was not covered by such opinion delivered at the closing of the Loan.

5.2.2        Liens.  Borrower shall not, without the prior written consent of Lender, create, incur, assume or suffer to exist any Lien on any portion of the Property or permit any such action to be taken, except:

(i)           Permitted Encumbrances;

(ii)          Liens created by or related to Indebtedness permitted pursuant to the Loan Documents; and

(iii)         Liens for Taxes or Other Charges not yet due (or that Borrower is contesting in accordance with the terms of Section 5.1.2 hereof).

5.2.3        Dissolution.   Borrower shall not (a) engage in any dissolution, liquidation or consolidation or merger with or into any other business entity, (b) engage in any business activity not related to the ownership and operation of the Property, (c) transfer, lease or sell, in one transaction or any combination of transactions, the assets or all or substantially all of the properties or assets of Borrower except to the extent permitted by the Loan Documents, (d) modify, amend, waive or terminate its organizational documents or its qualification and good standing in any jurisdiction or (e) cause the Sole Member to (i) dissolve, wind up or liquidate or take any action, or omit to take an action, as a result of which the Sole Member would be dissolved, wound up or liquidated in whole or in part, or (ii) amend, modify, waive or terminate the certificate of formation or operating agreement of the Sole Member, in each case, without obtaining the prior written consent of Lender or Lender’s designee.

5.2.4        Change in Business.   Borrower shall not enter into any line of business other than the ownership and operation of the Property, or make any material change in the scope or nature of its business objectives, purposes or operations, or undertake or participate in activities other than the continuance of its present business.

5.2.5        Debt Cancellation.   Borrower shall not cancel or otherwise forgive or release any claim or debt (other than termination of Leases in accordance herewith) owed to Borrower by any Person, except for adequate consideration and in the ordinary course of Borrower’s business.

5.2.6        Affiliate Transactions.   Borrower shall not enter into, or be a party to, any transaction with an Affiliate of Borrower or any of the partners of Borrower except in the ordinary course of business and on terms which are fully disclosed to Lender in advance and are no less favorable to Borrower or such Affiliate than would be obtained in a comparable arm’s-length transaction with an unrelated third party.

5.2.7        Zoning.   Borrower shall not initiate or consent to any zoning reclassification of any portion of the Property or seek any variance under any existing zoning ordinance or use or permit the use of any portion of the Property in any manner that could result

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in such use becoming a non-conforming use under any zoning ordinance or any other applicable land use law, rule or regulation, without the prior consent of Lender.

5.2.8        Assets.   Borrower shall not purchase or own any properties other than the Property owned by Borrower as of the Closing Date as reflected in the applicable Title Insurance Policy.

5.2.9        Debt.   Borrower shall not create, incur or assume any Indebtedness other than the Debt except to the extent expressly permitted hereby.

5.2.10      No Joint Assessment.   Borrower shall not suffer, permit or initiate the joint assessment of the Property with (a) any other real property constituting a tax lot separate from the Property, or (b) any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the Lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to the Property.

5.2.11      Intentionally Omitted.

5.2.12      ERISA.   (a) Borrower shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under the Note, this Agreement or the other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA.

(b)           Borrower further covenants and agrees to deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan, as requested by Lender in its sole discretion, that (A) Borrower is not and does not maintain an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmental plan” within the meaning of Section 3(3) of ERISA; (B) Borrower is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (C) one or more of the following circumstances is true:

(i)            Equity interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R.
§2510.3-101 (b)(2);

(ii)           Less than twenty-five percent (25%) of each outstanding class of equity interests in Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R. §2510.3-101(f)(2); or

(iii)          Borrower qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. §2510.3-101(c) or (e).

5.2.13      Transfers.   Unless such action is permitted by the provisions of this Section 5.2.13, Borrower agrees that it will not (i) sell, assign, convey, transfer or otherwise dispose of its interests in the Property or any part thereof, (ii) permit any owner, directly or indirectly, of an ownership interest in the Property, to transfer such interest, whether by transfer of stock or other interest in Borrower or any entity, or otherwise, (iii) incur Indebtedness (other than the Indebtedness permitted pursuant to the terms of this Agreement), (iv) mortgage, hypothecate or otherwise encumber or grant a security interest in the Property or any part

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thereof, (v) sell, assign, convey, transfer, mortgage, encumber, grant a security interest in, or otherwise dispose of any direct or indirect ownership interest in Borrower, or permit any owner of an interest in Borrower to do the same, or (vi) file a declaration of condominium with respect to the Property (any of the foregoing transactions, a “Transfer”). For purposes hereof, a “Transfer” shall not include (A) any issuance, sale or transfer of interests in Inland Western Retail Real Estate Trust, Inc., (B) transfer by devise or descent or by operation of law upon the death of a partner or member of Borrower, and (C) a sale, transfer or hypothecation of a partnership or membership interest in Borrower, whichever the case may be, by the current partner(s) or member(s), as applicable, to an immediate family member (i.e., parents, spouses, siblings, children or grandchildren) of such partner or member (or a trust for the benefit of any such persons).

(a)           Lender shall not withhold its consent to a Transfer of the Property, provided that the following conditions are satisfied:

(1)the transferee of the Property shall be a Special Purpose Entity (the “Transferee”) which at the time of such transfer will be in compliance with the covenants contained in Section 5.1.1 and the representations contained in Section 4.1.30 hereof and which shall have assumed in writing (subject to the terms of Section 9.4 hereof) and agreed to comply with all the terms, covenants and conditions set forth in this Loan Agreement and the other Loan Documents, expressly including the covenants contained in Section 5.1.1 and the representations contained in 4.1.30 hereof;

(2)if requested by Lender, Borrower shall deliver confirmation in writing from the Rating Agencies that such proposed Transfer will not cause a downgrading, withdrawal or qualification of the then current rating of any securities issued pursuant to such Securitization;

(3)if Manager does not act as manager of the transferred Property then the manager of the Property must be a Qualifying Manager;

(4)no Event of Default shall have occurred and be continuing;

(5)a substantive non-consolidation opinion was required in connection with the initial Loan closing, Borrower shall deliver an Additional Insolvency Opinion, and if required by a Rating Agency, a fraudulent conveyance opinion, which in each case may be relied upon by the holder of the Note, the Ratings Agencies and their respective counsel, agents and representatives with respect to the proposed transaction, including the Transferee, which opinion shall be acceptable to Lender in its reasonable discretion;

(6)Borrower shall have paid (A) an assumption fee equal to one percent (1.0%) of the then outstanding principal balance of the Loan, and (B) the reasonable and customary third-party expenses (including reasonable

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attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer; provided, however, no assumption fee shall be required for a Transfer of the Property to a Transferee acceptable to Lender in connection with a joint venture between Inland Western Retail Real Estate Trust, Inc. and an institution acceptable to Lender provided Inland Western Retail Real Estate Trust, Inc., or an Affiliate wholly-owned (directly or indirectly) by Inland Western Retail Real Estate Trust, Inc., owns at least twenty percent (20%) of the ownership interests in such Transferee and for which Inland Western Retail Real Estate Trust, Inc., or an Affiliate wholly-owned (directly or indirectly) by Inland Western Retail Real Estate Trust, Inc., is the managing entity and otherwise maintains operational and managerial control of such Transferee, provided that Borrower shall pay all of Lender’s reasonable and customary third-party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer and a processing fee of $5,000.

Lender shall approve or disapprove any proposed Transfer governed by this Section 5.2.13(a) within thirty (30) days of Lender’s receipt of a written notice from Borrower requesting Lender’s approval, provided such notice includes all information necessary to make such decision, and further provided that such written notice from Borrower shall conspicuously state, in large bold type, that “PURSUANT TO SECTION 5.2.13 OF THE LOAN AGREEMENT, A RESPONSE IS REQUIRED WITHIN THIRTY (30) DAYS OF LENDER’S RECEIPT OF THIS WRITTEN NOTICE”. If Lender fails to disapprove any such matter within such period, Borrower shall provide a second written notice requesting approval, which written notice shall conspicuously state, in large bold type, that “PURSUANT TO SECTION 5.2.13 OF THE LOAN AGREEMENT, THE MATTER DESCRIBED HEREIN SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN TEN (10) DAYS OF LENDER’S RECEIPT OF THIS WRITTEN NOTICE”. Thereafter, if Lender does not disapprove such matter within said ten (10) day period such matter shall be deemed approved.

(b)           Lender shall not withhold its consent to, and shall not charge an assumption fee in connection with, (1) a Transfer of up to, in the aggregate, forty-nine percent (49%) of the direct or indirect ownership interests in Borrower, or (2) a Transfer of greater than forty-nine percent (49%) of the direct or indirect ownership interest in Borrower, provided that (A) such transfer is to a Qualified Entity (as defined below), and (B) Borrower shall pay all of Lender’s reasonable and customary third-party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer and a processing fee of $5,000. For purposes of this Agreement, a “Qualified Entity” shall mean an entity (x) with a net worth of $200,000,000 or more, (y) with sufficient experience (determined by Lender in its reasonable discretion) in the ownership and management of properties similar to the Property, and (z) which owns or manages retail properties containing at least 1,000,000 square feet of gross leasable area. If a substantive non-consolidation opinion was required in connection with the initial Loan closing, Borrower shall deliver a substantive non-consolidation opinion with respect to any party not now owning more than 49% of the ownership interests in Borrower acquiring more than 49% of the ownership interests in Borrower.

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(c)           Notwithstanding anything in this Section 5.2.13 to the contrary, Borrower shall be permitted to Transfer the entire Property in a single transaction to one newly-formed Special Purpose Entity which shall be wholly-owned subsidiary of Inland Western Retail Real Estate Trust, Inc. (“Permitted Affiliate Transferee”) which shall be approved by Lender in its reasonable discretion (“Permitted Affiliate Transfer”), provided (1) no Event of Default shall have occurred and be continuing, (2) the creditworthiness of Inland Western Retail Real Estate Trust, Inc., as applicable, has not deteriorated, in the sole discretion of Lender, from the Closing Date to the date of the proposed Transfer, and (3) Borrower shall have paid all reasonable and customary third party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer (but not any assumption or processing fee).

(d)           Borrower, without the consent of Lender, may grant easements, restrictions, covenants, reservations and rights of way in the ordinary course of business for access, parking, water and sewer lines, telephone and telegraph lines, electric lines and other utilities or for other similar purposes, provided that no transfer, conveyance or encumbrance shall materially impair the utility and operation of the Property or materially adversely affect the value of the Property or the Net Operating Income of the Property. If Borrower shall receive any consideration in connection with any of said described transfers or conveyances, Borrower shall have the right to use any such proceeds in connection with any alterations performed in connection therewith, or required thereby. In connection with any transfer, conveyance or encumbrance permitted above, the Lender shall execute and deliver any instrument reasonably necessary or appropriate to evidence its consent to said action or to subordinate the Lien of the Mortgage to such easements, restrictions, covenants, reservations and rights of way or other similar grants upon receipt by the Lender of: (A) a copy of the instrument of transfer; and (B) an Officer’s Certificate stating with respect to any transfer described above, that such transfer does not materially impair the utility and operation of the Property or materially reduce the value of the Property or the Net Operating Income of the Property.

ARTICLE VI

INSURANCE; CASUALTY; CONDEMNATION

Section 6.1         Insurance.

(a)           Borrower shall obtain and maintain insurance for Borrower and the Property providing at least the following coverages:

(i)            comprehensive all risk insurance on the Improvements and the Personal Property, including contingent liability from Operation of Building Laws, Demolition Costs and Increased Cost of Construction Endorsements, in each case (A) in an amount equal to one hundred percent (100%) of the “Full Replacement Cost,” which for purposes of this Agreement shall mean actual replacement value (exclusive of costs of excavations, foundations, underground utilities and footings) with a waiver of depreciation; (B) containing an agreed amount endorsement with respect to the Improvements and Personal Property waiving all co-insurance provisions; (C) providing for no deductible in excess of Twenty-Five Thousand and No/100 Dollars ($25,000.00) for all such insurance coverage; and (D) containing an “Ordinance or Law Coverage” or “Enforcement” endorsement if

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any of the Improvements or the use of the Property shall at any time constitute legal non-conforming structures or uses. In addition, Borrower shall obtain: (y) if any portion of the Improvements is currently or at any time in the future located in a federally designated “special flood hazard area”, flood hazard insurance in an amount equal to the lesser of (1) the outstanding principal balance of the Note or (2) the maximum amount of such insurance available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended or such greater amount as Lender shall require; and (z) earthquake insurance in amounts and in form and substance satisfactory to Lender in the event the Property is located in an area with a high degree of seismic activity, provided that the insurance pursuant to clauses (y) and (z) hereof shall be on terms consistent with the comprehensive all risk insurance policy required under this subsection (i).

(ii)           commercial general liability insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about the Property, such insurance (A) to be on the so-called “occurrence” form with One Million and No/100 Dollars ($1,000,000.00) coverage per occurrence, Two Million and No/100 Dollars ($2,000,000.00) coverage in the aggregate and a combined limit, including umbrella coverage, of not less than Five Million and No/100 Dollars ($5,000,000.00); (B) to continue at not less than the aforesaid limit until required to be changed by Lender in writing by reason of changed economic conditions making such protection inadequate; and (C) to cover at least the following hazards: (1) premises and operations; (2) products and completed operations on an “if any” basis; (3) independent contractors; (4) blanket contractual liability for all legal, contracts; and (5) contractual liability covering the indemnities contained in Article 9 of the Mortgage to the extent the same is available;.

(iii)          business income insurance (A) with loss payable to Lender; (B) covering all risks required to be covered by the insurance provided for in subsection (i) above; (C) covering rental losses or business interruption, as may be applicable, for a period of at least twelve (12) months after the date of the casualty; and (D) in an annual amount equal to (100%) of the rents or estimated gross revenues from the operation of the Property (as reduced to reflect expenses not incurred during a period of Restoration), The amount of such business income insurance shall be determined prior to the date hereof and at least once each year thereafter based on Borrower’s reasonable estimate of the gross income from the Property for the succeeding twelve (12) month period. All proceeds payable to Lender pursuant to this subsection shall be held by Lender and shall be applied to the obligations secured by the Loan Documents from time to time due and payable hereunder and under the Note; provided, however, that nothing herein contained shall be deemed to relieve Borrower of its obligations to pay the obligations secured by the Loan Documents on the respective dates of payment provided for in the Note and the other Loan Documents except to the extent such amounts are actually paid out of the proceeds of such business income insurance;

(iv)          at all times during which structural construction, repairs or alterations are being made with respect to the Improvements, and only if the Property coverage form does not otherwise apply, (A) owner’s contingent or protective liability insurance covering claims not covered by or under the terms or provisions of the above mentioned

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commercial general liability insurance policy; and (B) the insurance provided for in subsection (i) above written in a so-called builder’s risk completed value form (1) on a non-reporting basis, (2) against all risks insured against pursuant to subsection (i) above, (3) including permission to occupy the Property, and (4) with an agreed amount endorsement waiving co-insurance provisions;

(v)           workers’ compensation, subject to the statutory limits of the State;

(vi)          comprehensive boiler and machinery insurance, if applicable, in amounts as shall be reasonably required by Lender on terms consistent with the commercial property insurance policy required under subsection (i) above;

(vii)         umbrella liability insurance in an amount not less than Five Million and No/100 Dollars ($5,000,000.00) per occurrence on terms consistent with the commercial general liability insurance policy required under subsection (ii) above;

(viii)        automobile insurance to cover all owned or non-owned automobiles in an amount not less than One Million and No/100 Dollars (S1,000,000.00) per occurrence;

(ix)           if any of the policies of insurance covering the risks required to be covered under subsections (i) through (vii) above contains an exclusion from coverage for acts of terrorism, Borrower shall obtain and maintain a separate policy providing such coverages in the event of any act of terrorism, provided such coverage is commercially available for properties similar to the Property and located in or around the region in which the Property is located. Notwithstanding the foregoing, Borrower shall not be. required to obtain such a policy, provided (I) Borrower confirms to Lender, in writing, that it shall protect and hold Lender harmless from any losses associated with such risks by, among other things, either (A) depositing with Lender sums sufficient to pay for all uninsured costs related to a Restoration of the Property following any act of terrorism (which sum shall be treated as a Net Proceeds Deficiency), or (B) provided such act of terrorism occurs on or after the Permitted Prepayment Date, prepaying the Loan in accordance with the terms hereof; (II) Inland Western Retail Real Estate Trust, Inc. (“Terrorism Insurance Guarantor”) executes a guaranty, in form and substance satisfactory to Lender, guaranteeing in the event of any act of terrorism, payment to Lender of any sums that Borrower is obligated to pay to Lender under clause (I) above (which shall be applied in accordance with Section 6.4 hereof) and (III) Terrorism Insurance Guarantor maintains a net worth of at least $400,000,000.00 (as determined by such entity’s most recent audited financial statements), such entity maintains a direct or indirect ownership interest in Borrower, and the aggregate loan to value ratio (as determined by Lender) (“LTV”) for all properties on which such entity has a direct or indirect ownership interest shall not exceed 55%, however, Terrorism Insurance Guarantor may exceed the 55% LTV for a period not to exceed six (6) months out of any twelve (12) month period either 1) during the time period when Terrorism Insurance Guarantor is offering securities to the public, or 2) when in the business judgment of Terrorism Insurance Guarantor, exceeding an LTV of 55% is necessary given existing circumstances of the credit environment, but in no event shall the LTV exceed 70%.

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(x)            upon sixty (60) days’ written notice, such other reasonable insurance and in such reasonable amounts as Lender from time to time may reasonably request against such other insurable hazards which at the time are commonly insured against for property similar to the Property located in or around the region in which the Property is located.

(b)           All insurance provided for in Section 6.1 (a) shall be obtained under valid and enforceable policies (collectively, the “Policies” or in the singular, the “Policy”), and shall be subject to the approval of Lender as to insurance companies, amounts, deductibles, loss payees and insureds. The Policies shall be issued by financially sound and responsible insurance companies authorized to do business in the State and having a rating of “A:X” or better in the current Best’s Insurance Reports and a claims paying ability rating of “AA” or better by at least two (2) of the Rating Agencies including, (i) Standard & Poor’s Ratings Group, and (ii) Moody’s Investors Services, Inc. if Moody’s Investors Service, Inc. is rating the Securities, The Policies described in Section 6.1 (other than those strictly limited to liability protection) shall designate Lender as loss payee. Not less than thirty (30) days prior to the expiration dates of the Policies theretofore furnished to Lender, certificates of insurance evidencing the Policies accompanied by evidence satisfactory to Lender of payment of the premiums due thereunder (the “Insurance Premiums”, shall be delivered by Borrower to Lender.

(c)           Any blanket insurance Policy shall specifically allocate to the Property the amount of coverage from time to time required hereunder and shall otherwise provide the same protection as would a separate Policy insuring only the Property in compliance with the provisions of Section 6.1 (a).

(d)           All Policies of insurance provided for or contemplated by Section 6.1(a), except for the Policy referenced in Section 6.1(a)(v), shall name Borrower, or the Tenant, as the insured and Lender as the additional insured, as its interests may appear, and in the case of property damage, boiler and machinery, flood and earthquake insurance, shall contain a so-called New York standard non-contributing mortgagee clause in favor of Lender providing that the loss thereunder shall be payable to Lender.

(e)           All Policies of insurance provided for in Section 6.1(a) shall contain clauses or endorsements to the effect that:

(i)            no act or negligence of Borrower, or anyone acting for Borrower, or of any Tenant or other occupant, or failure to comply with the provisions of any Policy, which might otherwise result in a forfeiture of the insurance or any part thereof, shall in any way affect the validity or enforceability of the insurance insofar as Lender is concerned;

(ii)           the Policy shall not be materially changed (other than to increase the coverage provided thereby) or canceled without at least thirty (30) days’ written notice to Lender and any other party named therein as an additional insured;

(iii)          the issuers thereof shall give written notice to Lender if the Policy has not been renewed fifteen (15) days prior to its expiration; and

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(iv)          Lender shall not be liable for any Insurance Premiums thereon or subject to any assessments thereunder.

(f)            If at any time Lender is not in receipt of written evidence that all insurance required hereunder is in full force and effect, Lender shall have the right, after ten (10) Business Days written notice to Borrower, to take such action as Lender deems necessary to protect its interest in the Property, including, without limitation, the obtaining of such insurance coverage as Lender in its sole discretion deems appropriate. All premiums incurred by Lender in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by Borrower to Lender upon demand and, until paid, shall be secured by the Mortgage and shall bear interest at the Default Rate. If Borrower fails in so insuring the Property or in so assigning and delivering the Policies, Lender may, at its option, obtain such insurance using such carriers and agencies as Lender shall elect from year to year and pay the premiums therefor, and Borrower will reimburse Lender for any premium so paid, with interest thereon as stated in the Note from the time of payment, on demand, and the amount so owning to Lender shall be secured by the Mortgage. The insurance obtained by Lender may, but need not, protect Borrower’s interest and the coverage that Lender purchases may not pay any claim that Borrower makes or any claim that is made against Borrower in connection with the Property.

Section 6.2             Casualty.   If the Property shall be damaged or destroyed, in whole or in part, by fire or other casualty (a “Casualty”), Borrower (a) shall give to Lender prompt notice of such damage reasonably estimated by Borrower to cost more than One Hundred Thousand Dollars ($100,000.00) to repair, and (b) shall promptly commence and diligently prosecute the completion of the repair and restoration of the Property as nearly as possible to the condition the Property was in immediately prior to such fire or other casualty, with such alterations as may be reasonably approved by Lender (a “Restoration”) and otherwise in accordance with Section 6.4. Borrower shall pay all costs of such Restoration whether or not such costs are covered by insurance. Lender may, but shall not be obligated to make proof of loss if not made promptly by Borrower.

Section 6.3             Condemnation.   Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the Condemnation of the Property and shall deliver to Lender copies of any and all papers served in connection with such proceedings. Lender may participate in any such proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Debt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the provisions of

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Section 6.4.  If the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.

Section 6.4               Restoration. The following provisions shall apply in connection with the Restoration of the Property:

(a)            If the Net Proceeds shall be less than Relevant Restoration Threshold and the costs of completing the Restoration shall be less than the Relevant Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.

(b)            If the Net Proceeds are equal to or greater than the Relevant Restoration Threshold or the costs of completing the Restoration is equal to or greater than the Relevant Restoration Threshold, then in either case, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4(b). The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (x) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi) and (viii) as a result of such damage or destruction, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting same (“Insurance Proceeds”), or (y) the net amount of the Award, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.

(i)            The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:

(A)            no Event of Default shall have occurred and be continuing;

(B)            (1) in the event the Net Proceeds are Insurance Proceeds, and (x) less than twenty-five percent (25%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such fire or other casualty, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property, or (2) in the event the Net Proceeds are Condemnation Proceeds, and (x) less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property;

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(C)            Leases demising in the aggregate a percentage amount equal to or greater than the Rentable Space Percentage of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such fire or other casualty or taking, whichever the case may be, and will make all necessary repairs and restorations thereto at their sole cost and expense. The term “Rentable Space Percentage” shall mean (x) in the event the Net Proceeds are Insurance Proceeds, a percentage amount equal to fifty percent (50%) and (y) in the event the Net Proceeds are Condemnation Proceeds, a percentage amount equal to fifty percent (50%);

(D)            Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than ninety (90) days after such damage or destruction or taking, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion;

(E)             Lender shall be satisfied that any operating deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the Property as a result of the occurrence of any such fire or other casualty or taking, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 6.1(a)(iii), if applicable, or (3) by other funds of Borrower;

(F)             Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) the Maturity Date, (2) the earliest date required for such completion under the terms of any Leases, (3) such time as may be required under applicable zoning law, ordinance, rule or regulation in order to repair and restore the Property to the condition it was in immediately prior to such fire or other casualty or to as nearly as possible the condition it was in immediately prior to such taking, as applicable or (4) the expiration of the insurance coverage referred to in Section 6.1(a)(iii);

(G)            the Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable zoning laws, ordinances, rules and regulations provided, however, that compliance with such zoning laws, ordinances, rules and regulations (including, without limitation, parking requirements) will not require restoration of the Improvements or the Property to a size, condition, or configuration materially different than that which existed immediately prior to such Casualty or taking;

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(H)            the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable governmental laws, rules and regulations (including, without limitation, all applicable environmental laws);

(I)              such fire or other casualty or taking, as applicable, does not result in the loss of access to the Property or the related Improvements;

(J)             the Debt Service Coverage Ratio, after giving effect to the Restoration, shall be equal to or greater than 2.71: 1.0;

(K)            Borrower shall deliver or cause to be delivered to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, which budget should be consistent with restoration budgets of similar retail properties then owned and operated by nationally recognized owners and operators of retail properties located in the areas in which the Property is located; and

(L)             the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s discretion to cover the cost of the Restoration.

(ii)           The Net Proceeds shall be held by Lender in an interest bearing account and, until disbursed in accordance with the provisions of this Section 6.4(b), shall constitute additional security for the Debt and other obligations under the Loan Documents. The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all materials installed and work and labor performed to be paid for out of the requested disbursement in connection with the Restoration have been performed, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy.

(iii)          All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Casualty Consultant”), such review and acceptance not to be unreasonably withheld or delayed. Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration, as well as the contracts under which they have been engaged, shall be subject to prior review and acceptance by Lender and the Casualty Consultant, such review and acceptance not to be unreasonably withheld or delayed. All costs and expenses incurred by Lender in connection with making the

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Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be paid by Borrower.

(iv)          In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by Casualty Consultant, minus the Casualty Retainage. The term “Casualty Retainage” shall mean an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until the Restoration has been completed. The Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Section 6.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Casualty Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 6.4(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate governmental and quasi-governmental authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Casualty Retainage; provided, however, that Lender will release the portion of the Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company issuing the Title Insurance Policy, and Lender receives an endorsement to the Title Insurance Policy insuring the continued priority of the lien of the Mortgage and evidence of payment of any premium payable for such endorsement. If required by Lender, the release of any such portion of the Casualty Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.

(v)           Lender shall not be obligated to make disbursements of the Net Proceeds more frequently than once every calendar month.

(vi)          If at any time the Net Proceeds or the undisbursed balance thereof shall not, in the reasonable opinion of Lender in consultation with the Casualty Consultant, be sufficient to pay in full the balance of the costs which are estimated by the Casualty Consultant to be incurred in connection with the completion of the Restoration, Borrower shall deposit the deficiency (the “Net Proceeds Deficiency”) with Lender before any further disbursement of the Net Proceeds shall be made.  The Net Proceeds Deficiency deposited with Lender shall be held by Lender and shall be disbursed for costs actually incurred in connection with the Restoration on the same conditions applicable to the disbursement of the Net Proceeds, and until so disbursed pursuant to this Section 6.4(b)

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shall constitute additional security for the Debt and other obligations under the Loan Documents.

(vii)         The excess, if any, of the Net Proceeds and the remaining balance, if any, of the Net Proceeds Deficiency deposited with Lender after the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 6.4(b), and the receipt by Lender of evidence satisfactory to Lender that all costs incurred in connection with the Restoration have been paid in full, shall be remitted by Lender to Borrower, provided no Event of Default shall have occurred and shall be continuing under the Note, this Agreement or any of the other Loan Documents.

(c)           All Net Proceeds not required (i) to be made available for the Restoration or (ii) to be returned to Borrower as excess Net Proceeds pursuant to Section 6.4(b)(vii) may be retained and applied by Lender toward the payment of the Debt whether or not then due and payable in such order, priority and proportions as Lender in its sole discretion shall deem proper (provided no Event of Default exists, such Borrower shall not be required to pay any Prepayment Consideration in connection with such payment), or, at the discretion of Lender, the same may be paid, either in whole or in part, to Borrower for such purposes as Lender shall designate, in its discretion.

(d)           In the event of foreclosure of the Mortgage with respect to the Property, or other transfer of title to the Property in extinguishment in whole or in part of the Debt all right, title and interest of Borrower in and to the Policies that are not blanket Policies then in force concerning the Property and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure or Lender or other transferee in the event of such other transfer of title.

(e)           Lender shall with reasonable promptness following any Casualty or Condemnation notify Borrower whether or not Net Proceeds are required to be made available to Borrower for restoration pursuant to this Section 6.4. All Net Proceeds not required to be made available for Restoration shall be retained and applied by Lender in accordance with Section 2.3.2(a) hereof (a “Net Proceeds Prepayment”). If such Net Proceeds Prepayment shall be equal to or greater than Twenty-One Million Five Hundred Five Thousand Two Hundred and 00/100 Dollars ($21,505,200.00), Borrower shall have the right to elect to prepay the remaining outstanding principal balance of the Note (a “Casualty/Condemnation Prepayment”) in accordance with Section 2.3.2(b) hereof upon satisfaction of the following conditions: (i) within thirty (30) days following the date of the Net Proceeds Prepayment, Borrower shall provide Lender with written notice of Borrower’s intention to pay the Note in full, (ii) Borrower shall prepay the Note in accordance with Section 23.2(b) hereof on or before the second Payment Date occurring following the date of the Net Proceeds Prepayment, and (iii) no Event of Default shall exist on the date of such Casualty/Condemnation Prepayment. Notwithstanding anything in Section 6.2 or Section 6.3 to the contrary, Borrower shall have no obligation to commence Restoration of the Property upon delivery of the written notice set forth in clause (i) of the preceding sentence (unless Borrower subsequently shall fail to satisfy the requirement of clause (ii) of the preceding sentence).

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ARTICLE VII

RESERVE FUNDS

Section 7.1             Required Repair Funds.

7.1.1        Deposits.   Borrower shall perform the repairs at the Property, if any, as more particularly set forth on Schedule III hereto (such repairs hereinafter referred to as “Required Repairs”) within six (6) months from the Closing Date (or such longer time as Borrower and Lender may mutually agree to), or such earlier time as specified on Schedule III, provided that the estimated cost to complete the Required Repairs is less than One Hundred Thousand and 00/100 Dollars ($100,000.00) in the aggregate. If Borrower has not delivered to Lender evidence reasonably satisfactory to Lender that it has completed all Required Repairs on or before the date that is six (6) months from the Closing Date, or such earlier time as specified on Schedule III or if the estimated cost to complete the Required Repairs is equal to or greater than One Hundred Thousand and 00/100 Dollars ($100,000.00), Borrower shall deposit with Lender one hundred twenty five percent (125%) of the estimated cost to complete such repairs as determined by Lender’s structural consultant, if any (less the amount allocated to the performance of Required Repairs for which evidence of completion has been delivered to Lender), to perform the Required Repairs for the Property. Amounts so deposited with Lender, if any, shall be held by Lender in an interest bearing account. Amounts so deposited, if any, shall hereinafter be referred to as Borrower’s “Required Repair Fund” and the account, if any, in which such amounts are held shall hereinafter be referred to as Borrower’s “Required Repair Account”. It shall be an Event of Default under this Agreement if Borrower does not either (i) does not deposit with Lender the Required Repair Fund as set forth above, or (ii) complete the Required Repairs at the Property within nine (9) months from the Closing Date. Upon the occurrence of such an Event of Default, Lender, at its option, may withdraw all Required Repair Funds from the Required Repair Account and Lender may apply such funds either to completion of the Required Repairs at the Property or toward payment of the Debt in such order, proportion and priority as Lender may determine in its sole discretion. Lender’s right to withdraw and apply Required Repair Funds shall be in addition to all other rights and remedies provided to Lender under this Agreement and the other Loan Documents.

7.1.2        Release of Required Repair Funds.   Lender shall disburse to Borrower the Required Repair Funds from the Required Repair Account from time to time upon satisfaction by Borrower of each of the following conditions: (i) Borrower shall submit a written request for payment to Lender at least fifteen (15) days prior to the date on which Borrower requests such payment be made and specifies the Required Repairs to be paid, (ii) on the date such request is received by Lender and on the date such payment is to be made, no Default or Event of Default shall exist and remain uncured, (iii) Lender shall have received a certificate from Borrower (A) stating that all Required Repairs at the Property to be funded by the requested disbursement have been completed in good and workmanlike manner and in accordance with all applicable federal, state and local laws, rules and regulations, such certificate to be accompanied by a copy of any license, permit or other approval by any Governmental Authority required to commence and/or complete the Required Repairs, (B) identifying each Person that supplied materials or labor in connection with the Required Repairs performed at the Property to be funded by the requested disbursement under a contract in excess of $50,000, and (C) stating that each Person who has

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supplied materials or labor in connection with the Required Repairs to be funded by the requested disbursement has been paid in full or will be paid in full upon such disbursement, such certificate to be accompanied by lien waivers or other evidence of payment satisfactory to Lender, (iv) at Lender’s option, a title search for the Property indicating that the Property is free from all liens, claims and other encumbrances not previously approved by Lender, and (v) Lender shall have received such other evidence as Lender shall reasonably request that the Required Repairs at the Property to be funded by the requested disbursement have been completed and are paid for or will be paid upon such disbursement to Borrower. Lender shall not be required to make disbursements from the Required Repair Account with respect to the Property more than once each calendar month and such disbursement shall be made only upon satisfaction of each condition contained in this Section 7.1.2.

Section 7.2             Tax and Insurance Escrow Fund.      Borrower shall pay to Lender on each Payment Date (a) one-twelfth of the Taxes that Lender estimates will be payable during the next ensuing twelve (12) months in order to accumulate with Lender sufficient funds to pay all such Taxes at least thirty (30) days prior to their respective due dates and (b) one-twelfth of the Insurance Premiums that Lender estimates will be payable for the renewal of the coverage afforded by the Policies upon the expiration thereof in order to accumulate with Lender sufficient funds to pay all such Insurance Premiums at least thirty (30) days prior to the expiration of the Policies, (said amounts in (a) and (b) above are hereinafter called the “Tax and Insurance Escrow Fund”). The Tax and Insurance Escrow Fund and the payments of interest or principal or both, payable pursuant to the Note, shall be added together and shall be paid as an aggregate sum by Borrower to Lender. Lender will apply the Tax and Insurance Escrow Fund to payments of Taxes and Insurance Premiums required to be made by Borrower pursuant to this Agreement and under the Mortgage. In making any payment relating to the Tax and Insurance Escrow Fund, Lender may do so according to any bill, statement or estimate procured from the appropriate public office (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums) or from Borrower without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof, provided, however, Lender shall use reasonable efforts to pay such real property taxes sufficiently early to obtain the benefit of any available discounts of which it has knowledge. If the amount of the Tax and Insurance Escrow Fund shall exceed the amounts due for Taxes and Insurance Premiums, Lender shall, in its sole discretion, return any excess to Borrower or credit such excess against future payments to be made to the Tax and Insurance Escrow Fund. The Tax and Insurance Escrow Fund shall be held by Lender in an interest-bearing account and shall at Lender’s option be held in Eligible Account at an Eligible Institution.  Any interest earned on said account shall accrue in said account for the benefit of Borrower, but shall remain in and constitute part of the Tax and Insurance Escrow Fund, and shall be disbursed in accordance with the terms hereof. Any amount remaining in the Tax and Insurance Escrow Fund after the Debt has been paid in full shall be returned to Borrower. In allocating such excess, Lender may deal with the Person shown on the records of Lender to be the owner of the Property.  If at any time Lender reasonably determines that the Tax and Insurance Escrow Fund is not or will not be sufficient to pay Taxes or Insurance Premiums by the dates set forth above, Lender shall notify Borrower of such determination and Borrower shall increase its monthly payments to Lender by the amount that Lender estimates is sufficient to make up the deficiency at least thirty (30) days prior to delinquency of the Taxes or Insurance Premiums.

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Notwithstanding anything to the contrary hereinbefore contained, in the event that Borrower provides (1) evidence satisfactory to Lender that the Property is insured in accordance with Section 6.1 of this Agreement, (2) evidence satisfactory to Lender that the Taxes for the Property have been paid in accordance with the requirements set forth in this Agreement and (3) so long as no Event of Default shall have occurred, Lender will waive the requirement set forth herein for Borrower to make deposits into the Tax and Insurance Escrow Fund for the payment of Insurance Premiums and for payment of such Taxes, provided, however, Lender expressly reserves the right to require Borrower to make deposits to the Tax and Insurance Escrow Fund for the payment of Insurance Premiums if at any time the Property is not insured in accordance with Section 6.1 of this Agreement, Taxes are not paid in accordance with the requirements of this Agreement or an Event of Default shall have occurred.

Section 7.3             Replacements and Replacement Reserve.

7.3.1        Replacement Reserve Fund.   Borrower shall pay to Lender on the Closing Date and on each Payment Date one twelfth of the amount (the “Replacement Reserve Monthly Deposit”) reasonably estimated by Lender in its sole discretion to be due for replacements and repairs required to be made to the Property during the calendar year (collectively, the “Replacements”), which Replacement Reserve Monthly Deposit shall be in an amount equal to no less than $0.15 per year per square foot of gross leasable area. Amounts so deposited shall hereinafter be referred to as Borrower’s “Replacement Reserve Fund” and the account in which such amounts are held shall hereinafter be referred to as Borrower’s “Replacement Reserve Account”. Lender may reassess its estimate of the amount necessary for the Replacement Reserve Fund from time to time, and may increase the monthly amounts required to be deposited into the Replacement Reserve Fund upon thirty (30) days notice to Borrower if Lender determines in its reasonable discretion that an increase is necessary to maintain the proper maintenance and operation of the Property. Any amount held in the Replacement Reserve Account and allocated for the Property shall be retained by Lender in an interest bearing account, or, at the option of Lender, in an Eligible Account at an Eligible Institution; provided, however, that, any interest earned on said account shall accrue in said account for the benefit of Borrower, but shall remain in and constitute part of the Replacement Reserve Fund, and shall be disbursed in accordance with the terms hereof.

Notwithstanding anything to the contrary in this Section 7.3, Borrower shall not be required to make Replacement Reserve Monthly Deposits, provided that: (i) no Event of Default shall have occurred; and (ii) Borrower makes all necessary Replacements and otherwise maintains the Property to Lender’s satisfaction. Upon notice from Lender following; (a) an Event of Default; or (b) the failure of Borrower to make necessary Replacements or otherwise maintain the Property to Lender’s satisfaction, Borrower shall begin to deposit the Replacement Reserve Monthly Deposit into the Replacement Reserve Fund beginning on the Payment Date (as defined herein) immediately following the date of such notice.

7.3.2        Disbursements from Replacement Reserve Account.    (a)  Lender shall make disbursements from the Replacement Reserve Account to pay Borrower only for the costs of the Replacements. Lender shall not be obligated to make disbursements from the Replacement Reserve Account to reimburse Borrower for the costs of routine maintenance to the Property or for costs which are to be reimbursed from the Required Repair Fund (if any).

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(b)           Lender shall, upon written request from Borrower and satisfaction of the requirements set forth in this Section 7.3.2, disburse to Borrower amounts from the Replacement Reserve Account necessary to pay for the actual approved costs of Replacements or to reimburse Borrower therefor, upon completion of such Replacements (or, upon partial completion in the case of Replacements made pursuant to Section 7.3.2(f)) as determined by Lender. In no event shall Lender be obligated to disburse funds from the Replacement Reserve Account if a Default or an Event of Default exists.

(c)           Each request for disbursement from the Replacement Reserve Account shall be in a form specified or approved by Lender and shall specify (i) the specific Replacements for which the disbursement is requested, (ii) the quantity and price of each item purchased, if the Replacement includes the purchase or replacement of specific items, (iii) the price of all materials (grouped by type or category) used in any Replacement other than the purchase or replacement of specific items, and (iv) the cost of all contracted labor or other services applicable to each Replacement for which such request for disbursement is made. With each request Borrower shall certify that all Replacements have been made in accordance with all applicable Legal Requirements of any Governmental Authority having jurisdiction over the Property to which the Replacements are being provided and, unless Lender has agreed to issue joint checks as described below, each request shall include evidence of payment of all such amounts. Each request for disbursement shall include copies of invoices for all items or materials purchased and all contracted labor or services provided. Except as provided in Section 7.3.2(e), each request for disbursement from the Replacement Reserve Account shall be made only after completion of the Replacement for which disbursement is requested. Borrower shall provide Lender evidence of completion satisfactory to Lender in its reasonable judgment.

(d)           Borrower shall pay all invoices in connection with the Replacements with respect to which a disbursement is requested prior to submitting such request for disbursement from the Replacement Reserve Account or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with a Replacement. In the case of payments made by joint check, Lender may require a waiver of lien from each Person receiving payment prior to Lender’s disbursement from the Replacement Reserve Account.  In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $100,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to the requirements of applicable law and shall cover all work performed and materials supplied (including equipment and fixtures) for the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current reimbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request).

(e)           If (i) the cost of a Replacement exceeds $100,000, (ii) the contractor performing such Replacement requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for reimbursement from the Replacement Reserve Account may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon

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completion of such portion of the work, (B) the materials for which the request is made are on site at the Property and are properly secured or have been installed in the Property, (C) all other conditions in this Agreement for disbursement have been satisfied, (D) funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required, and (E) if required by Lender, each contractor or subcontractor receiving payments under such contract shall provide a waiver of lien with respect to amounts which have been paid to that contractor or subcontractor.

(f)            Borrower shall not make a request for disbursement from the Replacement Reserve Account more frequently than once in any calendar month and (except in connection with the final disbursement) the total cost of all Replacements in any request shall not be less than $5,000.00.

7.3.3        Performance of Replacements.

(a)           Borrower shall make Replacements when required in order to keep the Property in condition and repair consistent with other first class, full service retail properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.

(b)           Lender reserves the right, at its option, to approve all contracts or work orders with materialmen, mechanics, suppliers, subcontractors, contractors or other parties providing labor or materials under contracts for an amount in excess of $100,000 in connection with the Replacements performed by Borrower. Upon Lender’s request, Borrower shall assign any contract or subcontract to Lender.

(c)           In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner, and such failure continues to exist for more than thirty (30) days after notice from Lender to Borrower, Lender shall have the option to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.

(d)           In order to facilitate Lender’s completion or making of the Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right to enter onto the Property and perform any and all work and labor necessary to complete or make the Replacements and/or employ watchmen to protect the Property from damage, subject to the rights of Tenants. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage.  For this purpose Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake the Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be

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revoked but shall only be effective following an Event of Default.  Borrower empowers said attorney-in-fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing the Replacements; (ii) to make such additions, changes and corrections to the Replacements as shall be necessary or desirable to complete the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.

(e)           Nothing in this Section 7.3.3 shall (i) make Lender responsible for making or completing the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.

(f)            Borrower shall permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of tenants under their Leases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.

(g)           Lender may require an inspection of the Property at Borrower’s expense prior to making a monthly disbursement in excess of $10,000 from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account.  Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.

(h)           The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialman’s or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).

(i)            Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the Property effective to the

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date of the disbursement, which search shows that no mechanic’s or materialmen’s liens or other liens of any nature have been placed against the Property since the date of recordation of the Mortgage and that title to the Property is free and clear of all Liens (other than the lien of the Mortgage and any other Liens previously approved in writing by Lender, if any).

(j)            All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.

(k)           In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s compensation insurance, builder’s risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.

7.3.4        Failure to Make Replacements. (a) It shall be an Event of Default under this Agreement if Borrower fails to comply with any provision of this Section 7.3 and such failure is not cured within thirty (30) days after notice from Lender; provided, however, if such failure is not capable of being cured within said thirty (30) day period, then provided that Borrower commences action to complete such cure and thereafter diligently proceeds to complete such cure, such thirty (30) day period shall be extended for such time as is reasonably necessary for Borrower, in the exercise of due diligence, to cure such failure, but such additional period of time shall not exceed sixty (60) days. Upon the occurrence of such an Event of Default, Lender may use the Replacement Reserve Fund (or any portion thereof) for any purpose, including but not limited to completion of the Replacements as provided in Section 7.3.3, or for any other repair or replacement to the Property or toward payment of the Debt in such order, proportion and priority as Lender may determine in its sole discretion. Lender’s right to withdraw and apply the Replacement Reserve Funds shall be in addition to all other rights and remedies provided to Lender under this Agreement and the other Loan Documents.

(b)           Nothing in this Agreement shall obligate Lender to apply all or any portion of the Replacement Reserve Fund on account of an Event of Default to payment of the Debt or in any specific order or priority.

7.3.5        Balance in the Replacement Reserve Account. The insufficiency of any balance in the Replacement Reserve Account shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.

7.3.6        Indemnification. BORROWER SHALL INDEMNIFY LENDER AND HOLD LENDER HARMLESS FROM AND AGAINST ANY AND ALL ACTIONS, SUITS, CLAIMS, DEMANDS, LIABILITIES, LOSSES, DAMAGES, OBLIGATIONS AND COSTS AND EXPENSES (INCLUDING LITIGATION COSTS AND REASONABLE ATTORNEYS FEES AND EXPENSES) ARISING FROM OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OF THE REPLACEMENTS.

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UNLESS THE SAME ARE SOLELY DUE TO GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LENDER. BORROWER SHALL ASSIGN TO LENDER ALL RIGHTS AND CLAIMS BORROWER MAY HAVE AGAINST ALL PERSONS OR ENTITIES SUPPLYING LABOR OR MATERIALS IN CONNECTION WITH THE REPLACEMENTS; PROVIDED, HOWEVER, THAT LENDER MAY NOT PURSUE ANY SUCH RIGHT OR CLAIM UNLESS AN EVENT OF DEFAULT HAS OCCURRED AND REMAINS UNCURED.

Section 7.4             Intentionally Omitted.

Section 7.5             Intentionally Omitted.

Section 7.6             Intentionally Omitted.

Section 7.7             Reserve Funds, Generally.

7.7.1        Borrower grants to Lender a first-priority perfected security interest in each of the Reserve Funds and any and all monies now or hereafter deposited in each Reserve Fund as additional security for payment of the Debt. Until expended or applied in accordance herewith, the Reserve Funds shall constitute additional security for the Debt.

7.7.2        Upon the occurrence of an Event of Default, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in any or all of the Reserve Funds to the payment of the Debt in any order in its sole discretion.

7.7.3        The Reserve Funds shall not constitute trust funds and may be commingled with other monies held by Lender.

7.7.4        Intentionally omitted.

7.7.5        Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any Reserve Fund or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.

7.7.6        Lender shall not be liable for any loss sustained on the investment of any funds constituting the Reserve Funds unless occasioned by the gross negligence or willful misconduct of Lender.

7.7.7        Upon payment in full of the Debt and performance of all other obligations under this Agreement and the other Loan Documents, Lender shall disburse to Borrower all remaining Reserve Funds.

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ARTICLE VIII

DEFAULTS

Section 8.1             Event of Default.

(a)           Each of the following events shall constitute an event of default hereunder (an “Event of Default”):

(i)            if any portion of the Debt is not paid within five (5) days of the applicable due date;

(ii)           if any of the Taxes or Other Charges are not paid prior to the date when the same become delinquent, except to the extent that Borrower is contesting same in accordance with the terms of Section 5.1.2 hereof, or there are sufficient funds in the Tax and Insurance Escrow Fund to pay such Taxes or Other Charges and Lender fails to or refuses to release the same from the Tax and Insurance Escrow Fund;

(iii)          if the Policies are not kept in full force and effect, or if certified copies of the Policies are not delivered to Lender within ten (10) days of request;

(iv)          if Borrower transfers or encumbers any portion of the Property without Lender’s prior written consent (to extent such consent is required) or otherwise violates the provisions of Section 5.2.13 of this Loan Agreement;

(v)           if any material representation or warranty made by Borrower herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made;

(vi)          if Borrower or indemnitor or any guarantor under any guaranty or indemnity issued in connection with the Loan shall make an assignment for the benefit of creditors;

(vii)         if a receiver, liquidator or trustee shall be appointed for Borrower or any guarantor or indemnitor under any guarantee or indemnity issued in connection with the Loan or if Borrower or such guarantor or indemnitor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or such guarantor or indemnitor, or if any proceeding for the dissolution or liquidation of Borrower or such guarantor or indemnitor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by Borrower or such guarantor or indemnitor, upon the same not being discharged, stayed or dismissed within one hundred eighty (180) days;

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(viii)        if Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;

(ix)           if Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 hereof;

(x)            with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;

(xi)           if any of the assumptions contained in any Insolvency Opinion or Additional Insolvency Opinion are or shall become untrue in any material respect;

(xii)          if Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xi) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such 30-day period and provided further that Borrower shall have commenced to cure such Default within such 30-day period and thereafter diligently and expeditiously proceeds to cure the same, such 30-day period shall be extended for such time as is reasonably necessary for Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred eighty (180) days; or

(xiii)         if there shall be default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to Borrower or the Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt.

(b)           Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi), (vii) or (viii) above) and at any time thereafter Lender may, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in the Property, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents against Borrower and the Property, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi), (vii) or (viii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.

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Section 8.2             Remedies.

(a)           Upon the occurrence of an Event of Default, all or any one or more of the rights, powers, privileges and other remedies available to Lender against Borrower under this Agreement or any of the other Loan Documents executed and delivered by, or applicable to, Borrower or at law or in equity may be exercised by Lender at any time and from time to time, whether or not all or any of the Debt shall be declared due and payable, and whether or not Lender shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Loan Documents with respect to the Property. Any such actions taken by Lender shall be cumulative and concurrent and may be pursued independently, singly, successively, together or otherwise, at such time and in such order as Lender may determine in its sole discretion, to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of Lender permitted by law, equity or contract or as set forth herein or in the other Loan Documents. Without limiting the generality of the foregoing, Borrower agrees that if an Event of Default is continuing (i) Lender is not subject to any “one action” or “election of remedies” law or rule, and (ii) all liens and other rights, remedies or privileges provided to Lender shall remain in full force and effect until Lender has exhausted all of its remedies against the Property and the Mortgage has been foreclosed, sold and/or otherwise realized upon in satisfaction of the Debt or the Debt has been paid in full.

(b)           Lender shall have the right from time to time to partially foreclose the Mortgage in any manner and for any amounts secured by the Mortgage then due and payable as determined by Lender in its sole discretion including, without limitation, the following circumstances: (i) in the event Borrower defaults beyond any applicable grace period in the payment of one or more scheduled payments of principal and interest, Lender may foreclose the Mortgage to recover such delinquent payments, or (ii) in the event Lender elects to accelerate less than the entire outstanding principal balance of the Loan, Lender may foreclose the Mortgage to recover so much of the principal balance of the Loan as Lender may accelerate and such other sums secured by the Mortgage as Lender may elect. Notwithstanding one or more partial foreclosures, the Property shall remain subject to the Mortgage to secure payment of sums secured by the Mortgage and not previously recovered.

(c)           Lender shall have the right from time to time to sever the Note and the other Loan Documents into one or more separate notes, mortgages and other security documents (the “Severed Loan Documents”) in such denominations as Lender shall determine in its sole discretion for purposes of evidencing and enforcing its rights and remedies provided hereunder. Borrower shall execute and deliver to Lender from time to time, promptly after the request of Lender, a severance agreement and such other documents as Lender shall request in order to effect the severance described in the preceding sentence, all in form and substance reasonably satisfactory to Lender. Borrower hereby absolutely and irrevocably appoints Lender following the occurrence of an Event of Default as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect the aforesaid severance, Borrower ratifying all that its said attorney shall do by virtue thereof; provided, however, Lender shall not make or execute any such documents under such power until three (3) days after notice has been given to Borrower by Lender of Lender’s intent to exercise its rights under such power. Borrower shall not be obligated to pay any costs or expenses incurred in connection with the preparation, execution, recording or filing of the

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Severed Loan Documents, and the Severed Loan Documents shall not contain any representations, warranties or covenants not contained in the Loan Documents and any such representations and warranties contained in the Severed Loan Documents will be given by Borrower only as of the Closing Date.

(d)           As used in this Section 8.2, a “foreclosure” shall include any sale by power of sale.

Section 8.3             Remedies Cumulative; Waivers. The rights, powers and remedies of Lender under this Agreement shall be cumulative and not exclusive of any other right, power or remedy which Lender may have against Borrower pursuant to this Agreement or the other Loan Documents, or existing at law or in equity or otherwise. Lender’s rights, powers and remedies may be pursued singly, concurrently or otherwise, at such time and in such order as Lender may determine in Lender’s sole discretion. No delay or omission to exercise any remedy, right or power accruing upon an Event of Default shall impair any such remedy, right or power or shall be construed as a waiver thereof, but any such remedy, right or power may be exercised from time to time and as often as may be deemed expedient. A waiver of one Default or Event of Default with respect to Borrower shall not be construed to be a waiver of any subsequent Default or Event of Default by Borrower or to impair any remedy, right or power consequent thereon.

ARTICLE IX

SPECIAL PROVISIONS

Section 9.1             Sale of Notes and Securitization. At the request of the holder of the Note and, to the extent not already required to be provided by Borrower under this Agreement, Borrower shall cooperate with Lender to allow Lender to satisfy the market standards to which the holder of the Note customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with the sale of the Note or participations therein or the first successful securitization (such sale and/or securitization, the “Securitization”) of rated single or multi-class securities (the “Securities”) secured by or evidencing ownership interests in the Note and the Mortgage. In this regard Borrower shall;

(a)           (i)            provide such financial and other information with respect to the Property, Borrower and the Manager, (ii) provide budgets relating to the Property and (iii) to perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of the Property, as may be reasonably requested by the holder of the Note or the Rating Agencies or as may be necessary or appropriate in connection with the Securitization (the “Provided Information”) together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to Lender and the Rating Agencies;

(b)           cause counsel to render opinions, which may be relied upon by the holder of the Note, the Rating Agencies and their respective counsel, agents and representatives, as to non-consolidation, fraudulent conveyance, and true sale and/or lease or any other opinion

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customary in securitization transactions, which counsel and opinions shall be reasonably satisfactory to the holder of the Note and the Rating Agencies;

(c)           make such representations and warranties as of the closing date of the Securitization with respect to the Property, Borrower, and the Loan Documents as are consistent with the representations and warranties made in the Loan Documents; and

(d)           execute such amendments to the Loan Documents and organizational documents as may be reasonably requested by the holder of the Note or the Rating Agencies or otherwise to effect the Securitization; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of the Loan.

All material out-of-pocket third party costs and expenses incurred by Borrower in connection with complying with requests made under this Section 9.1 shall be paid by Lender.

Section 9.2             Securitization.       Borrower understands that certain of the Provided Information may be included in disclosure documents in connection with the Securitization, including, without limitation, a prospectus, prospectus supplement or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization.  In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects.

Section 9.3             Rating Surveillance.     Lender, at its option, may retain the Rating Agencies to provide rating surveillance services on any certificates issued in a Securitization. Such rating surveillance will be at the expense of Lender (the “Rating Surveillance Charge”).

Section 9.4             Exculpation.     Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender or Trustee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender or Trustee to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the Property, the Rents following an Event of Default, or any other collateral given to Lender or Trustee pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents following an Event of Default and in any other collateral given to Lender or Trustee, and Lender or Trustee, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, agrees that it shall not sue for, seek or

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demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender or Trustee to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Mortgage; (c) affect the validity or enforceability of or any guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender or Trustee to obtain the appointment of a receiver; (e) impair the enforcement of any of the Assignment of Leases following an Event of Default; (f) constitute a prohibition against Lender or Trustee commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against the Property; or (g) constitute a waiver of the right of Lender or Trustee to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:

(i)            fraud or intentional misrepresentation by Borrower or any Indemnitor in connection with the Loan;

(ii)           the gross negligence or willful misconduct of Borrower;

(iii)          material physical waste of the Property;

(iv)          the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;

(v)           the removal or disposal of any portion of the Property after an Event of Default;

(vi)          the misapplication, or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property which are not applied by Borrower in accordance with this Agreement, (B) any awards or other amounts received in connection with the condemnation of all or a portion of the Property which are not applied by Borrower in accordance with this Agreement, or (C) any Rents following an Event of Default;

(vii)         failure to pay charges for labor or materials or other charges that can create liens on any portion of the Property; or

(viii)        any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof.

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Notwithstanding anything to the contrary in this Agreement, the Note, the Indemnity Agreement or any of the Loan Documents, (A) the Debt shall be fully recourse to the Borrower and (B) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured by the Mortgage or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents in the event that (I) the first full monthly payment under the Note is not paid within five (5) days of notice that such payment is late (provided, however, that such five (5) day grace period relates only to the recourse trigger described in this paragraph), or (II) Borrower fails to permit on-site inspections of the Property subject to the rights of Tenants and any applicable cure period set forth in the Loan Documents, to provide financial information as required under the Loan Documents subject to any applicable cure period (except for financial information required to be delivered by a tenant pursuant to the applicable Lease that has not been delivered to Borrower, provided Borrower has requested such financial information from such tenant), or to comply with Section 4.1.30 hereof, or (III) Borrower fails to obtain Lender’s prior written consent (to the extent such consent is required) to any subordinate financing or other voluntary lien encumbering the Property, or (IV) Borrower fails to obtain Lender’s prior written consent to any assignment, transfer or conveyance of the Property, or any portion thereof, or any interest therein as required by this Agreement, so long as any of the events described in clauses (I), (II), (III) or (IV) of this paragraph continue to exist. Notwithstanding the provision set forth in clause (III) of this paragraph, a voluntary lien other than a lien securing an extension of credit filed against the Property shall not constitute a recourse trigger for purposes of this paragraph provided such lien (A) is fully bonded to the satisfaction of Lender and discharged of record within ninety (90) days of filing, or (B) within such ninety (90) day period, Lender receives affirmative title insurance from the title insurance company insuring the lien of the Mortgage that such lien is subject and subordinate to the lien of the Mortgage and no enforcement action is commenced by the applicable lien holder.

Section 9.5             Termination of Manager.    If (a) the amounts evidenced by the Note have been accelerated pursuant to Section 8.1(b) hereof, (b) the Manager shall become insolvent, (c) the Manager is in default under the terms of the Management Agreement beyond any applicable grace or cure period, or (d) Manager is not managing the Property in accordance with the management practices of nationally recognized management companies managing similar properties in locations comparable to those of the Property, then, in the case of (a), (b), (c) or (d), Borrower shall, at the request of Lender, terminate the Management Agreement and replace the Manager with a manager reasonably approved by Lender on terms and conditions reasonably satisfactory to Lender, it being understood and agreed that the management fee for such replacement manager shall not exceed then prevailing market rates. In addition and without limiting the rights of Lender hereunder or under any of the other Loan Documents, in the event that (i) the Management Agreement is terminated, (ii) the Manager no longer manages the Property, or (iii) a receiver, liquidator or trustee shall be appointed for Manager or if Manager shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Manager, or if any proceeding for the dissolution or liquidation of Manager shall be instituted, then Borrower (at Borrower’s sole cost and expense) shall immediately, in its name, establish new deposit accounts separate from any other Person with a depository satisfactory to Lender into which all Rents and other income from

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the Property shall be deposited and shall grant Lender a first priority security interest in such account pursuant to documentation satisfactory in form and substance to Lender.

Section 9.6             Servicer.     At the option of Lender, the Loan may be serviced by a servicer/trustee (the “Servicer”) selected by Lender and Lender may delegate all or any portion of its responsibilities under this Agreement and the other Loan Documents to the Servicer pursuant to a servicing agreement (the “Servicing Agreement”) between Lender and Servicer. Lender shall be responsible for any set-up fees or any other costs relating to or arising under the Servicing Agreement.

Section 9.7             Splitting the Loan.     At the election of Lender in its sole discretion, the Loan or any individual Note making up the Loan shall be split and severed into two or more loans which, at Lender’s election, shall not be cross-collateralized or cross-defaulted with each other. Borrower hereby agrees to deliver to Lender to effectuate such severing of the Loan or any individual Note, as the case may be, as reasonably requested by Lender, (a) additional executed documents, or amendments and modifications to the applicable Loan Documents, (b) new opinions or updates to the opinions delivered to Lender in connection with the closing of the Loan, (c) endorsements and/or updates to the title insurance policies delivered to Lender in connection with the closing of the Loan, and (d) any other certificates, instruments and documentation reasonably determined by Lender as necessary or appropriate to such severance (the items described in subsections (a) through (d) collectively hereinafter shall be referred to as “Severing Documentation”), which Severing Documentation shall be acceptable to Lender in form and substance in its reasonable discretion. Lender hereby agrees to be responsible for all reasonable third-party expenses incurred in connection with the preparation and delivery of the Severing Documentation and the effectuation of the uncrossing of the Loan from the additional Loans. Borrower hereby acknowledges and agrees that upon such severing of the Loan, Lender may effect, in its sole discretion, one or more Securitizations of which the severed loans may be a part.

ARTICLE X

MISCELLANEOUS

Section 10.1           Survival.     This Agreement and all covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the making by Lender of the Loan and the execution and delivery to Lender of the Note, and shall continue in full force and effect so long as all or any of the Debt is outstanding and unpaid unless a longer period is expressly set forth herein or in the other Loan Documents.  Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the legal representatives, successors and assigns of such party. All covenants, promises and agreements in this Agreement, by or on behalf of Borrower, shall inure to the benefit of the legal representatives, successors and assigns of Lender.

Section 10.2           Lender’s Discretion.     Whenever pursuant to this Agreement, Lender exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Lender, the decision of Lender to approve or disapprove or to decide whether

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arrangements or terms are satisfactory or not satisfactory shall (except as is otherwise specifically herein provided) be in the sole discretion of Lender and shall be final and conclusive.

Section 10.3           Governing Law.    THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES. BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY COURT OF COMPETENT JURISDICTION LOCATED IN THE CITY OF CHICAGO AND STATE OF ILLINOIS IN CONNECTION WITH ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.

Section 10.4           Modification, Waiver in Writing.      No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement, or of the Note, or of any other Loan Document, nor consent to any departure by Borrower therefrom, shall in any event be effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given. Except as otherwise expressly provided herein, no notice to, or demand on Borrower, shall entitle Borrower to any other or future notice or demand in the same, similar or other circumstances.

Section 10.5           Delay Not a Waiver.            Neither any failure nor any delay on the part of Lender in insisting upon strict performance of any term, condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under the Note or under any other Loan Document, or any other instrument given as security therefor, shall operate as or constitute a waiver thereof, nor shall a single or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege. In particular, and not by way of limitation, by accepting payment after the due date of any amount payable under this Agreement, the Note or any other Loan Document, Lender shall not be deemed to have waived any right either to require prompt payment when due of all other amounts due under this Agreement, the Note or the other Loan Documents, or to declare a default for failure to effect prompt payment of any such other amount.

Section 10.6           Notices. All notices, consents, approvals and requests required or permitted hereunder or under any other Loan Document shall be given in writing and shall be effective for all purposes if hand delivered or sent by (a) certified or registered United States mail, postage prepaid, return receipt requested or (b) expedited prepaid delivery service, either commercial or United States Postal Service, with proof of attempted delivery, and by telecopier (with answer back acknowledged), addressed as follows (or at such other address and Person as shall be designated from time to time by any party hereto, as the case may be, in a written notice to the other parties hereto in the manner provided for in this Section):

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If to Lender:

LaSalle Bank National Association

135 South LaSalle Street, Suite 3410

Chicago, Illinois 60603

Attention: Real Estate Capital Markets
Inland-Gateway Pavilions

Fax: (312) 904-0900

with a copy to:

Katten Muchin Zavis Rosenman

525 W. Monroe Street

Suite 1600

Chicago, Illinois 60661

Attention: David R. Dlugie, Esq.

Fax: (312) 577-8666

If to Borrower:

Inland Western Avondale Mc Dowell, L.L.C.

2901 Butterfield Road

Oak Brook, Illinois 60523

Attention: Steven Grimes

Fax: (630) 218-4955

with a copy to:

Inland Western Retail Real Estate Trust, Inc.

2901 Butterfield Road

Oak Brook, IL 60523

Attention: Robert H. Baum, Esq.

Fax: (630) 218-4900

and with a copy to:

Inland Western Retail Real Estate Trust, Inc.

2901 Butterfield Road

Oak Brook, IL 60523

Attention: Roberta Matlin

Fax: (630) 218-4955

A notice shall be deemed to have been given: in the case of hand delivery, at the time of delivery; in the case of registered or certified mail, when delivered or the first attempted delivery on a Business Day; or in the case of expedited prepaid delivery and telecopy, upon the first attempted delivery on a Business Day.

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Section 10.7           Trial by Jury.     BORROWER AND LENDER HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER AND LENDER. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY BORROWER AND BY LENDER, AND BORROWER ACKNOWLEDGES ON BEHALF OF ITSELF AND ITS PARTNERS, MEMBERS, SHAREHOLDERS, AS THE CASE MAY BE, THAT NEITHER LENDER NOR ANY PERSON ACTING ON BEHALF OF LENDER HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR HAS TAKEN ANY ACTIONS WHICH IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. BORROWER AND LENDER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT BORROWER AND LENDER HAVE ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THE LOAN DOCUMENTS AND THAT EACH OF THEM WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. BORROWER AND LENDER FURTHER ACKNOWLEDGE THAT THEY HAVE BEEN REPRESENTED (OR HAVE HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THE LOAN DOCUMENTS AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF THEIR OWN FREE WILL, AND THAT THEY HAVE HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.

Section 10.8           Headings.     The Article and/or Section headings and the Table of Contents in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

Section 10.9           Severability.     Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Section 10.10         Preferences.     Lender shall have the continuing and exclusive right to apply or reverse and reapply any and all payments by Borrower to any portion of the obligations of Borrower hereunder. To the extent Borrower makes a payment or payments to Lender, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or proceeds received, the obligations hereunder or part thereof intended to be

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satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by Lender.

Section 10.11         Waiver of Notice.      Borrower shall not be entitled to any notices of any nature whatsoever from Lender except with respect to matters for which this Agreement or the other Loan Documents specifically and expressly provide for the giving of notice by Lender to Borrower and except with respect to matters for which Borrower is not, pursuant to applicable Legal Requirements, permitted to waive the giving of notice. Borrower hereby expressly waives the right to receive any notice from Lender with respect to any matter for which this Agreement or the other Loan Documents do not specifically and expressly provide for the giving of notice by Lender to Borrower.

Section 10.12         Remedies of Borrower.     In the event that a claim or adjudication is made that Lender or its agents have acted unreasonably or unreasonably delayed acting in any case where by law or under this Agreement or the other Loan Documents, Lender or such agent, as the case may be, has an obligation to act reasonably or promptly, Borrower agrees that neither Lender nor its agents shall be liable for any monetary damages, and Borrower’s sole remedies shall be limited to commencing an action seeking injunctive relief or declaratory judgment. The parties hereto agree that any action or proceeding to determine whether Lender has acted reasonably shall be determined by an action seeking declaratory judgment.

Section 10.13         Expenses; Indemnity.

(a)           Borrower covenants and agrees to pay or, if Borrower fails to pay, to reimburse, Lender upon receipt of written notice from Lender for all reasonable costs and expenses (including reasonable attorneys’ fees and disbursements) incurred by Lender in connection with (i) the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby and thereby and all the costs of furnishing all opinions by counsel for Borrower (including without limitation any opinions requested by Lender as to any legal matters arising under this Agreement or the other Loan Documents with respect to the Property); (ii) Borrower’s ongoing performance of and compliance with Borrower’s respective agreements and covenants contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date, including, without limitation, confirming compliance with environmental and insurance requirements; (iii) Lender’s ongoing performance and compliance with all agreements and conditions contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date; (iv) except as otherwise provided in this Agreement, the negotiation, preparation, execution, delivery and administration of any consents, amendments, waivers or other modifications to this Agreement and the other Loan Documents and any other documents or matters reasonably requested by Lender; (v) securing Borrower’s compliance with any requests made pursuant to the provisions of this Agreement; (vi) the filing and recording fees and expenses, title insurance and reasonable fees and expenses of counsel for providing to Lender all required legal opinions, and other similar expenses incurred in creating and perfecting the Liens in favor of Lender pursuant to this Agreement and the other Loan Documents; (vii) enforcing or preserving any rights, in response to third party claims or the prosecuting or defending of any action or proceeding or other litigation, in each case against, under or affecting Borrower, this Agreement, the other Loan Documents, the Property, or any

77

other security given for the Loan; and (viii) enforcing any obligations of or collecting any payments due from Borrower under this Agreement, the other Loan Documents or with respect to the Property or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or of any insolvency or bankruptcy proceedings; provided, however, that Borrower shall not be liable for the payment of any such costs and expenses to the extent the same arise by reason of the gross negligence, illegal acts, fraud or willful misconduct of Lender.

(b)           BORROWER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS LENDER FROM AND AGAINST ANY AND ALL OTHER LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, CLAIMS, COSTS, EXPENSES AND DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL FOR LENDER IN CONNECTION WITH ANY INVESTIGATIVE, ADMINISTRATIVE OR JUDICIAL PROCEEDING COMMENCED OR THREATENED, WHETHER OR NOT LENDER SHALL BE DESIGNATED A PARTY THERETO), THAT MAY BE IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST LENDER IN ANY MANNER RELATING TO OR ARISING OUT OF (I) ANY BREACH BY BORROWER OF ITS OBLIGATIONS UNDER, OR ANY MATERIAL MISREPRESENTATION BY BORROWER CONTAINED IN, THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR (II) THE USE OR INTENDED USE OF THE PROCEEDS OF THE LOAN (COLLECTIVELY, THE “INDEMNIFIED LIABILITIES”); PROVIDED, HOWEVER, THAT BORROWER SHALL NOT HAVE ANY OBLIGATION TO LENDER HEREUNDER TO THE EXTENT THAT SUCH INDEMNIFIED LIABILITIES ARISE FROM THE GROSS NEGLIGENCE, ILLEGAL ACTS, FRAUD OR WILLFUL MISCONDUCT OF LENDER. TO THE EXTENT THAT THE UNDERTAKING TO INDEMNIFY, DEFEND AND HOLD HARMLESS SET FORTH IN THE PRECEDING SENTENCE MAY BE UNENFORCEABLE BECAUSE IT VIOLATES ANY LAW OR PUBLIC POLICY, BORROWER SHALL PAY THE MAXIMUM PORTION THAT IT IS PERMITTED TO PAY AND SATISFY UNDER APPLICABLE LAW TO THE PAYMENT AND SATISFACTION OF ALL INDEMNIFIED LIABILITIES INCURRED BY LENDER.

Section 10.14         Schedules Incorporated.     The Schedules annexed hereto are hereby incorporated herein as a part of this Agreement with the same effect as if set forth in the body hereof.

Section 10.15         Offsets, Counterclaims and Defenses.     Any assignee of Lender’s interest in and to this Agreement, the Note and the other Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses which are unrelated to such documents which Borrower may otherwise have against any assignor of such documents, and no such unrelated counterclaim or defense shall be interposed or asserted by Borrower in any action or proceeding brought by any such assignee upon such documents and any such right to interpose or assert any such unrelated offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by Borrower.

78

Section 10.16         No Joint Venture or Partnership; No Third Party Beneficiaries.

(a)           Borrower and Lender intend that the relationships created hereunder and under the other Loan Documents be solely that of borrower and lender. Nothing herein or therein is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower and Lender nor to grant Lender any interest in the Property other than that of mortgagee, beneficiary or lender.

(b)           This Agreement and the other Loan Documents are solely for the benefit of Lender and Borrower and nothing contained in this Agreement or the other Loan Documents shall be deemed to confer upon anyone other than Lender and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or therein.  All conditions to the obligations of Lender to make the Loan hereunder are imposed solely and exclusively for the benefit of Lender and no other Person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lender will refuse to make the Loan in the absence of strict compliance with any or all thereof and no other Person shall under any circumstances be deemed to be a beneficiary of such conditions, any or all of which may be freely waived in whole or in part by Lender if, in Lender’s sole discretion, Lender deems it advisable or desirable to do so.

Section 10.17         Publicity.     All news releases, publicity or advertising by Borrower or their Affiliates through any media intended to reach the general public which refers to the Loan Documents or the financing evidenced by the Loan Documents, to Lender, Bear Steams, or any of their Affiliates shall be subject to the prior written approval of Lender. All news releases, publicity or advertising by Lender through any media intended to reach the general public which refers solely to the Borrower or to the Loan made by the Lender to the Borrower shall be subject to the prior written approval of Borrower, provided however, the foregoing shall not apply to Provided Information included in disclosure documents in connection with a Securitization.

Section 10.18         Waiver of Marshalling of Assets.     To the fullest extent permitted by law, Borrower, for itself and its successors and assigns, waives all rights to a marshalling of the assets of Borrower, Borrower’s members and others with interests in Borrower, and of the Property, or to a sale in inverse order of alienation in the event of foreclosure of the Mortgage or sale of the Property by power of sale, and agrees not to assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce or affect the right of Lender under the Loan Documents to a sale of the Property for the collection of the Debt without any prior or different resort for collection or of the right of Lender to the payment of the Debt out of the net proceeds of the Property in preference to every other claimant whatsoever.

Section 10.19         Waiver of Counterclaim.    Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Lender or its agents.

Section 10.20         Conflict; Construction of Documents; Reliance.     In the event of any conflict between the provisions of this Loan Agreement and any of the other Loan Documents, the provisions of this Loan Agreement shall control. The parties hereto acknowledge that they were represented by competent counsel in connection with the negotiation, drafting and

79

execution of the Loan Documents and that such Loan Documents shall not be subject to the principle of construing their meaning against the party which drafted same. Borrower acknowledges that, with respect to the Loan, Borrower shall rely solely on its own judgment and advisors in entering into the Loan without relying in any manner on any statements, representations or recommendations of Lender or any parent, subsidiary or Affiliate of Lender. Lender shall not be subject to any limitation whatsoever in the exercise of any rights or remedies available to it under any of the Loan Documents or any other agreements or instruments which govern the Loan by virtue of the ownership by it or any parent, subsidiary or Affiliate of Lender of any equity interest any of them may acquire in Borrower, and Borrower hereby irrevocably waives the right to raise any defense or take any action on the basis of the foregoing with respect to Lender’s exercise of any such rights or remedies. Borrower acknowledges that Lender engages in the business of real estate financings and other real estate transactions and investments which may be viewed as adverse to or competitive with the business of Borrower or its Affiliates.

Section 10.21         BROKERS AND FINANCIAL ADVISORS.  BORROWER HEREBY REPRESENTS THAT IT HAS DEALT WITH NO FINANCIAL ADVISORS, BROKERS, UNDERWRITERS, PLACEMENT AGENTS, AGENTS OR FINDERS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OTHER THAN INLAND MORTGAGE CORP. BORROWER HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD LENDER HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, COSTS AND EXPENSES OF ANY KIND (INCLUDING LENDER’S REASONABLE ATTORNEYS’ FEES AND EXPENSES) IN ANY WAY RELATING TO OR ARISING FROM A CLAIM BY ANY PERSON THAT SUCH PERSON ACTED ON BEHALF OF BORROWER OR LENDER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREIN. THE PROVISIONS OF THIS SECTION 10.21 SHALL SURVIVE THE EXPIRATION AND TERMINATION OF THIS AGREEMENT AND THE PAYMENT OF THE DEBT.

Section 10.22         Prior Agreements.  This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and all prior agreements or understandings among or between such parties, whether oral or written, are superseded by the terms of this Agreement and the other Loan Documents and unless specifically set forth in a writing contemporaneous herewith the terms, conditions and provisions of such prior agreement do not survive execution of this Agreement.

Section 10.23         Sale of Loan.  Lender, at any time and without the consent of Borrower or Indemnitor, may grant participation in or sell, transfer, assign and convey all or any portion of its right, title and interest in and to the Loan, the servicing of the Loan, this Agreement and the other Loan Documents, any guaranties given in connection with the Loan and any collateral given to secure the Loan. Borrower covenants to cooperate with Lender’s efforts in the securitization of the Loan; such cooperation includes Borrower’s obligation to (a) make non-material modifications of the Loan Documents (such modifications shall not (i) increase the amount of the Indebtedness, (ii) change the schedule and/or the amount of the monthly payment and (iii) change the Interest Rate), (b) provide additional information regarding Borrower’s financial statements, (c) deliver updated information regarding Borrower and the Property, (d) cooperate

80

with any third parties, including, but not limited to, rating agencies and potential investors to facilitate the rating and securitization of the Loan, (e) review Lender’s securitization offering materials to the extent such materials relate to Borrower, the Property or the Loan and (f) respond to any inquiries of Lender or other party relating thereto. Borrower agrees to represent and warrant the absence of misstatements and/or omissions in the information relating to Borrower, the Property and the Loan that is contained in the offering materials and which has been furnished to or approved by Borrower. Borrower shall not be liable for Lender’s post-closing costs incurred pursuant to any securitization of the Loan by Lender.

Section 10.24         Joint and Several Liability.     If Borrower consists of more than one person or party, the obligations and liabilities of each person or party shall be joint and several.

(THE BALANCE OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK)

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written.

	BORROWER:
WITNESS/ATTEST:	INLAND WESTERN AVONDALE MCDOWELL, L.L.C., a Delaware limited liability company
	By:	Inland Western Retail Real Estate Trust, Inc.,
		a Maryland corporation, its sole member
		By:		/s/ Debra A. Palmer
		Name:		Debra A. Palmer
		Title:	Assistant Secretary
	LENDER:
WITNESS/ATTEST:	LASALLE BANK NATIONAL ASSOCIATION,
	a national banking association
	By:
	Name:
	Title:

SCHEDULE I

Intentionally Omitted

X-1

SCHEDULE II

Intentionally Omitted

X-2

SCHEDULE III

REQUIRED REPAIRS

1.             Repair concrete curb and asphalt repairs in accordance with the recommendations set forth in that certain Property Condition Report prepared by Reeves Consulting, Inc. and dated as of November 19, 2004 (“Property Report”).

2.             Complete concrete flat work repairs in accordance with the recommendations set forth in the Property Report.

3.             Repair roof open seams and EIFS parapet wall repairs in accordance with the recommendations set forth in the Property Report.

X-3

SCHEDULE IV

RENT ROLL

[To Be Attached]

X-4

SCHEDULE V

Intentionally Omitted

X-5

SCHEDULE VI

Intentionally Omitted.

X-6

SCHEDULE VII

PROPERTY AFFECTED BY SECTION 4.1.22

NONE

X-7

SCHEDULE VIII

Intentionally Omitted.

X-8

SCHEDULE IX

Intentionally Omitted.

X-9

SCHEDULE X

OTHER CONTRACT FUNDS AGREEMENTS

NONE

X-10

EX-10.450

Exhibit 10.450

ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT

For good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned, INLAND REAL ESTATE ACQUISITIONSINC.,an Illinois corporation, (“Assignor”) hereby assigns to INLAND WESTERN PHOENIX 31^ST AVENUE, L.L.C., a Delaware limited liability company, (“Assignee”) all of Assignor’s right, title and interest as a party to that certain Purchase and Sale Agreement (the “Purchase Agreement”) by and between INLAND REAL ESTATE ACQUISITIONS, INC., or its designees, (collectively, “Purchaser”), and FRC WEST PROPERTY, L.L.C., AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., and IDS PROPERTY CASUALTY INSURANCE COMPANY, (collectively, “Seller”), dated December 16, 2004 for purchase and sale of certain real property commonly known as 20022 N. 31^st Avenue, Phoenix, AZ (the “Property”).

By execution hereof by Assignee, Assignee for itself and its successors and assigns hereby accepts the assignment and assumes all of the obligations of Assignor under the Purchase Agreement with respect to the Property.

This Assignment is effective as of the 16 day of December, 2004.

ASSIGNOR:	INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
	By:	/s/ G. Joseph Cosenza
		G. Joseph Cosenza
	Its:	President
ASSIGNEE:	INLAND WESTERN PHOENIX 31ST AVENUE, L.L.C., a Delaware limited liability company By: Inland Western Retail Real Estate Trust, Inc., its sole member
	By:	/s/ G. Joseph Cosenza
	Its:  Authorized Representative

EX-10.451

Exhibit 10.451

ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT

For good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned, INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation, (“Assignor”) hereby assigns to INLAND WESTERN PHOENIX 19TH AVENUE, L.L.C., a Delaware limited liability company, (“Assignee”) all of Assignor’s right, title and interest as a party to that certain Purchase and Sale Agreement (the “Purchase Agreement”) by and between INLAND REAL ESTATE ACQUISITIONS, INC., or its designees, (collectively, “Purchaser”), and FRC WEST PROPERTY, L.L.C., AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., and IDS PROPERTY CASUALTY INSURANCE COMPANY, (collectively, “Seller”), dated December 16, 2004 for purchase and sale of certain real property commonly known as 20002 N. 19th Avenue, Phoenix, AZ (the “Property”).

By execution hereof by Assignee, Assignee for itself and its successors and assigns hereby accepts the assignment and assumes all of the obligations of Assignor under the Purchase Agreement with respect to the Property.

This Assignment is effective as of the 16 day of December, 2004.

ASSIGNOR:	INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
	By:	/s/ G. Joseph Cosenza
		G. Joseph Cosenza
	Its:	President
ASSIGNEE:	INLAND WESTERN PHOENIX 19TH AVENUE, L.L.C., a Delaware limited liability company By: Inland Western Retail Real Estate Trust, Inc., its sole member
	By:	/s/ G. Joseph Cosenza
	Its:  Authorized Representative

EX-10.452

Exhibit 10.452

ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT

For good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned, INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation, (“Assignor”) hereby assigns to INLAND WESTERN MINNEAPOLIS 3^RD AVENUE, L.L.C., a Delaware limited liability company, (“Assignee”) all of Assignor’s right, title and interest as a party to that certain Purchase and Sale Agreement (the “Purchase Agreement”) by and between INLAND REAL ESTATE ACQUISITIONS, INC., or its designees, (collectively, “Purchaser”), and FRC WEST PROPERTY, L.L.C., AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., and IDS PROPERTY CASUALTY INSURANCE COMPANY, (collectively, “Seller”), dated December 16, 2004 the purchase and sale of certain real property commonly known as 1001 N. 3^rd Avenue South, Minneapolis, MN (the “Property”).

By execution hereof by Assignee, Assignee for itself and its successors and assigns hereby accepts the assignment and assumes all of the obligations of Assignor under the Purchase Agreement with respect to the Property.

This Assignment is effective as of the 16 day of December, 2004.

ASSIGNOR:	INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
	By:	/s/ G. Joseph Cosenza
		G. Joseph Cosenza
	Its:	President
ASSIGNEE:	INLAND WESTERN MINNEAPOLIS 3RD AVENUE, L.L.C., a Delaware limited liability company By: Inland Western Retail Real Estate Trust, Inc., its sole member
	By:	/s/ G.Joseph Cosenza
	Its:  Authorized Representative

EX-10.453

Exhibit 10.453

ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT

For good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned, INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation, (“Assignor”) hereby assigns to INLAND WESTERN DEPERE, L.L.C., a Delaware limited liability company, (“Assignee”) all of Assignor’s right, title and interest as a party to that certain Purchase and Sale Agreement (the “Purchase Agreement”) by and between INLAND REAL ESTATE ACQUISITIONS, INC., or its designees, (collectively, “Purchaser”), and FRC WEST PROPERTY, L.L.C., AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., and IDS PROPERTY CASUALTY INSURANCE COMPANY, (collectively, “Seller”), dated December 16, 2004 for purchase and sale of certain real property commonly known as 3500 Packerland Drive, DePere, WI (the “Property”).

By execution hereof by Assignee, Assignee for itself and its successors and assigns hereby accepts the assignment and assumes all of the obligations of Assignor under the Purchase Agreement with respect to the Property.

This Assignment is effective as of the 16 day of December, 2004.

ASSIGNOR:	INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
	By:	/s/ G. Joseph Cosenza
		G. Joseph Cosenza
	Its:	President
ASSIGNEE:	INLAND WESTERN DEPERE, L.L.C., a Delaware limited liability company By: Inland Western Retail Real Estate Trust, Inc., its sole member
	By:	/s/ G. Joseph Cosenza
	Its:  Authorized Representative

EX-10.454

Exhibit 10.454

ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT

For good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned, INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation, (“Assignor”) hereby assigns to INLAND WESTERN GREENSBORO AIRPORT CENTER, L.L.C., a Delaware limited liability company, (“Assignee”) all of Assignor’s right, title and interest as a party to that certain Purchase and Sale Agreement (the “Purchase Agreement”) by and between INLAND REAL ESTATE ACQUISITIONS, INC., or its designees, (collectively, “Purchaser”), and FRC WEST PROPERTY, L.L.C., AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., and IDS PROPERTY CASUALTY INSURANCE COMPANY, (collectively, “Seller”), dated December 16, 2004 for purchase and sale of certain real property commonly known as 7701 Airport Center, Greensboro, NC (the “Property”).

By execution hereof by Assignee, Assignee for itself and its successors and assigns hereby accepts the assignment and assumes all of the obligations of Assignor under the Purchase Agreement with respect to the Property.

This Assignment is effective as of the 16day of December, 2004.

ASSIGNOR:	INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
	By:	/s/ G. Joseph Cosenza
		G. Joseph Cosenza
	Its:	President
ASSIGNEE:	INLAND WESTERN GREENSBORO AIRPORT CENTER, L.L.C., a Delaware limited liability company By: Inland Western Retail Real Estate Trust, Inc., its sole member
	By:	/s/ G. Joseph Cosenza
	Its:  Authorized Representative

EX-10.455

Exhibit 10.455

ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT

For good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned, INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation, (“Assignor”) hereby assigns to INLAND WESTERN PLANTATION EXPRESS, L.L.C., a Delaware limited liability company, (“Assignee”) all of Assignor’s right, title and interest as a party to that certain Purchase and Sale Agreement (the “Purchase Agreement”) by and between INLAND REAL ESTATE ACQUISITIONS, INC., or its designees, (collectively, “Purchaser”), and FRC WEST PROPERTY, L.L.C., AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., and IDS PROPERTY CASUALTY INSURANCE COMPANY, (collectively, “Seller”), dated December 16, 2004 for purchase and sale of certain real property commonly known as 777 American Expressway, Ft. Lauderdale, FL (the “Property”).

By execution hereof by Assignee, Assignee for itself and its successors and assigns hereby accepts the assignment and assumes all of the obligations of Assignor under the Purchase Agreement with respect to the Property.

This Assignment is effective as of the 16 day of December, 2004.

ASSIGNOR:	INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
	By:	/s/ G. Joseph Cosenza
		G. Joseph Cosenza
	Its:	President
ASSIGNEE:	INLAND WESTERN PLANTATION EXPRESS, L.L.C., a Delaware limited liability company By: Inland Western Retail Real Estate Trust, Inc., its sole member
	By:	/s/ G. Joseph Cosenza
	Its:  Authorized Representative

EX-10.456

Exhibit 10.456

PURCHASE AND SALE AGREEMENT

AMONG

FRC WEST PROPERTY, L.L.C.;

AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.; and

IDS PROPERTY CASUALTY INSURANCE COMPANY,

collectively, SELLER

AND

INLAND REAL ESTATE ACQUISITIONS, INC., or its designees,

collectively, PURCHASER

DATED AS OF DECEMBER 16, 2004

TABLE OF CONTENTS

1.	SALE OF PROPERTIES
2.	PURCHASE PRICE AND DEPOSIT
3.	APPORTIONMENTS
4.	CLOSING DATE
5.	PERMITTED ENCUMBRANCES
6.	TITLE
7.	PROPERTY NOT INCLUDED IN SALE
8.	REPRESENTATIONS AND WARRANTIES
9.	CLOSING COSTS
10.	CONDITIONS PRECEDENT TO CLOSING
11.	DOCUMENTS TO BE DELIVERED BY SELLER AT CLOSING
12.	DOCUMENTS AND PAYMENTS TO BE DELIVERED BY PURCHASER AT CLOSING
13.	OPERATION OF THE PROPERTIES PRIOR TO THE CLOSING DATE
14.	AS-IS
15.	BROKER
16.	CASUALTY; CONDEMNATION
17.	REMEDIES
18.	INTENTIONALLY DELETED
19.	INTENTIONALLY DELETED
20.	INTENTIONALLY DELETED
21.	ASSIGNMENT
22.	INTENTIONALLY DELETED
23.	NOTICES
24.	PROPERTY INFORMATION AND CONFIDENTIALITY
25.	MISCELLANEOUS
SCHEDULES:
1-A	DESCRIPTION OF THE LAND (20022 N. 31st Ave., Phoenix, AZ)
l-B	DESCRIPTION OF THE LAND (20002 N. 19th Ave., Phoenix, AZ)
1-C	DESCRIPTION OF THE LAND (1001 N. 3rd Ave. South, Minneapolis, MN)
1-D	DESCRIPTION OF THE LAND (3500 Packerland Dr., Depere, WI)

i

1-E	INTENTIONALLY OMITTED.
1-F	DESCRIPTION OF THE LAND (4315 South 2700 West, Salt Lake City, UT)
1-G	DESCRIPTION OF THE LAND (7701 Airport Center, Greensboro, NC)
1-H	DESCRIPTION OF THE LAND (777 American Expressway, Ft. Lauderdale, FL)
2	PERMITTED ENCUMBRANCES
8(4)(2)	MATERIALLY CONTRAVENED DOCUMENTS
8(4)(4)	DUE DILIGENCE ITEMS DELIVERED TO PURCHASER
EXHIBITS:
A.	FORM OF ESCROW AGREEMENT
B.	SELLER’S EQUIPMENT AND PERSONALTY
C.	DOCUMENTS TO WHICH SELLER IS A PARTY
D.	FORM OF SNDA
E.	FORM OF DEEDS
F.	FORM OF LEASE
G.	NON-FOREIGN AFFIDAVIT UNDER INTERNAL REVENUE CODE SECTION 1445(b)(2)

ii

TABLE OF DEFINED TERMS

The following capitalized teams are defined in the respective Section of the Agreement identified below:

•“AEPC Property” - as such term is defined in the WHEREAS clauses hereof.

•“AESC - - F Property” - as such term is defined in the WHEREAS clauses hereof.

•“AESC - - G Property” - as such term is defined in the WHEREAS clauses hereof.

•“AESC - - P Property” - as such term is defined in the WHEREAS clauses hereof.

•“AESC - - SLC Property” - as such term is defined in the WHEREAS clauses hereof.

•“Agreement” - - as such term is defined in the opening paragraph hereof.

•“CITIGROUP” - - as such term is defined in Section 15 hereof.

•“Closing” - - as such term is defined in Section 4 hereof.

•“Closing Date” - as such term is defined in Section 4 hereof.

•“Data Center Property” - as such term is defined in the WHEREAS clauses hereof.

•“Deed” - - as such term is defined in Section 11(1) hereof.

•“Deposit” - - as such term is defined in Section 2(2) hereof.

•“Environmental Laws” - as such term is defined in Section 14(1) hereof.

•“Excess Land” – as such term is defined in Section 4 hereof.

•“Escrow Agent” - as such term is defined in Section 2(3) hereof.

•“Exculpated Parties” - as such term is defined in Section 8(1) hereof.

•“FRC” - - as such term is defined in the opening paragraph hereof.

•“FRC-W Property” - as such term is defined in the WHEREAS clauses hereof.

•“Governmental Action” - as such term is defined in Section 8(4)(3) hereof.

•“Governmental Authority” - as such term is defined in Section 8(4)(3) hereof.

•“Guarantor” - - as such term is defined in Section 8(4)(2)(B) hereof.

iii

•“Hazardous Substances” - as such term is defined in Section 14(1) hereof.

•“Involuntary Liens” - as such term is defined in Section 6(2) hereof.

•“IDS” - - as such term is defined in the opening paragraph hereof.

•“Lease” - - as such term is defined in Section 11(2) hereof.

•“Permitted Encumbrances” - as such term is defined in Section 5 hereof.

•“Property” or “Properties” - as such term is defined in the WHEREAS clauses hereof.

•“Property Information” - as such term is defined in Section 24(4) hereof.

•“Purchase Price” - as such term is defined in Section 2 hereof.

•“Purchaser” - - as such term is defined in the opening paragraph hereof.

•“Purchaser’s Representatives” - as such term is defined in Section 24(4) hereof.

•“Seller” - - as such term is defined in the opening paragraph hereof.

•“Seller’s Affiliates” - as such term is defined in Section 25(5) hereof

•“Subdivision Properties” - as such term is defined in Section 4 hereof.

•“Surveys” - - as such term is defined in Section 6(1)(i) hereof.

•“Surviving Obligations” - as such term is defined in Section 25(19) hereof.

•“Taking” - - as such term is defined in Section 16(2) hereof.

•“TCC” - - as such term is defined in Section 14(3) hereof

•“Termination Obligations” - as such term is defined in Section 17(1) hereof.

•“Third Party Reports” - as such term is defined in Section 8(1) hereof.

•“Title Commitments” - as such term is defined in Section 6(1)(i) hereof.

•“Title Company” - as such term is defined in Section 6(1)(ii) hereof.

•“Title Items” - as such term is defined in Section 6(1)(i) hereof.

•“Title Objection Letters” - as such term is defined in Section 6(1)(i) hereof.

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•“Transfer Tax Payments” - as such term is defined in Section 9 hereof.

•“Transfer Tax Return” - as such term is defined in Section 9 hereof.

•“TRS” - - as such term is defined in the opening paragraph hereof

•“TRS Properties” - as such term is defined in the opening paragraph hereof.

•“Unacceptable Encumbrances” - as such term is defined in Section 6(1)(ii) hereof

•“Voluntary Liens” - as such term is defined in Section 6(2) hereof.

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PURCHASE AND SALE AGREEMENT

PURCHASE AND SALE AGREEMENT (this “Agreement”) dated as of the      day of        , 2004, by and among FRC WEST PROPERTY, L.L.C., an Arizona limited liability company (“FRC”), AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., a New York corporation (“TRS”), and IDS PROPERTY CASUALTY INSURANCE COMPANY, a Wisconsin corporation (“IDS”), (each individually and collectively, the “Seller”), each having an office at c/o American Express Company, 200 Vesey Street, New York, New York 10285, and INLAND REAL ESTATE ACQUISITIONS, INC., a corporation of the State of Illinois (with its designees, the “Purchaser”), having an office at c/o The Inland Real Estate Group, Inc., 2901 Butterfield Road, Oak Brook, Illinois 60523.

W I T N E S S E T H

WHEREAS, (i) TRS is the owner of the parcels of land described on Schedule 1-A (the “AESC - P Property”), Schedule 1-C (the “Data Center Property”), Schedule 1-F (the “AESC - SLC Property”), Schedule 1-G (the “AESC - G Property”) and Schedule 1-H (the “AESC - F Property”) attached hereto and the buildings located thereon (such parcels of land and such buildings being hereinafter referred to collectively together as the “TRS Properties”), (ii) FRC is the owner of the parcels of land described on Schedule 1-B attached hereto and the buildings located thereon (the “FRC-W Property”), and (iii) IDS is the owner of the parcels of land described on Schedule 1-D attached hereto and the buildings located thereon (the “AEPC Property”), (each of the TRS Properties, the FRC-W Property, and the AEPC Property referred to individually as a “Property” and collectively as the “Properties”); and

WHEREAS, Seller and Purchaser now desire to enter into an agreement whereby, subject to the terms and conditions contained herein, (i) Seller shall sell the Properties to Purchaser and Purchaser shall purchase the Properties from Seller, and (ii) Seller, or an affiliate of Seller, shall lease back the Properties from Purchaser.

NOW, THEREFORE, in consideration of ten ($10.00) dollars and the mutual covenants and agreements hereinafter set forth, and intending to be legally bound hereby, it is hereby agreed as follows:

1.SALE OF PROPERTIES.

Seller agrees to sell and convey to Purchaser, and Purchaser agrees to purchase from Seller, at the price and upon the terms and conditions set forth in this Agreement, the Properties.

2.PURCHASE PRICE AND DEPOSIT.

(1)The purchase price to be paid by Purchaser to Seller for the Properties (the “Purchase Price”) is THREE HUNDRED FORTY-EIGHT MILLION AND NO/100 ($348,000,000.00) Dollars payable at the Closing by bank wire transfer of immediately available funds to Seller’s account or to the account or accounts of such other party or parties as may be designated by Seller on or at least two (2) business days prior to the Closing Date.

Subject to the Canada Contract (as hereinafter defined), this Agreement is intended to be a single unitary agreement, and Seller is required to sell the

Properties to Purchaser pursuant to the terms and provisions of this Agreement, and Purchaser is required to purchase the Properties from Seller pursuant to the terms and provisions of this Agreement and subject to the conditions contained herein. The parties agree that the Purchase Price is hereby allocated among the Properties as follows:

Purchaser’s Designees	Properties	Purchase Price Allocation		Deposit Allocation
Inland Western Phoenix 31ST Avenue, L.L.C.	AESC - P Property	$	54,000,000.00	$	2,769,230.77
Inland Western Phoenix 19th Avenue, L.L.C.	FRC-W Property	$	14,000,000.00	$	717,948.85
Inland Western Minneapolis 3rd Avenue, L.L.C.	Data Center Property	$	95,000,000.00	$	4,871,794.85
Inland Western Taylorsville 2700 West, L.L.C.	AESC - SLC Property	$	48,000,000.00	$	2,461,538.44
Inland Western Greensboro Airport Center, L.L.C.	AESC - G Property	$	56,000,000.00	$	2,871,794.85
Inland Western Plantation Express, L.L.C.	AESC - F Property	$	63,000,000.00	$	3,230,769.21
Inland Western DePere, L.L.C.	AEPC Property	$	18,000,000.00	$	923,076.90
		$	348,000,000.00	$	17,846,154.87

(2)Simultaneously with the execution of this Agreement by Purchaser, Purchaser is delivering to Chicago Title Insurance Company, as escrow agent (the “Escrow Agent”) Purchaser’s tax identification number and (i) an unendorsed bank check issued by a bank which is a member of the New York Clearinghouse Association, payable directly to the order of “Chicago Title Insurance Company, as Escrow Agent” or (ii) a wire transfer of immediately available federal funds to the Escrow Agent, in the amount of SEVENTEEN MILLION EIGHT HUNDRED FORTY- SIX THOUSAND, ONE HUNDRED FIFTY-FOUR AND 87/100 ($17,846,154.87) Dollars (the “Deposit”); provided no Deposit shall be required with respect to the AESC-SLC Property;

(3)Upon receipt by Escrow Agent of the Deposit, Escrow Agent shall cause the same to be deposited into an interest bearing account selected by Escrow Agent (it being agreed that Escrow Agent shall be required to obtain a rate of interest at least equal to that currently being earned by United States Government Treasury Bills available on an overnight basis, but shall not be obligated to obtain any higher rate) in accordance with the terms of that certain Escrow Agreement of even date herewith between Seller, Purchaser and Escrow Agent, in substantially the form as attached hereto as Exhibit “A”. If the Closing shall occur, the

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interest on the Deposit, if any, shall be paid to Seller and, if the Closing shall not occur and this Agreement shall be terminated, then the interest earned on the Deposit shall be paid to the party entitled to receive the Deposit as provided in this Agreement, The party receiving such interest shall pay any income taxes thereon.

(4)Except and to the extent (i) as set forth in Sections 6, 8(5), 10(3) and 17(1), (ii) Seller defaults hereunder or (iii) Seller fails to satisfy any condition precedent to Purchaser’s obligation to close which is not waived by Purchaser, the Deposit shall be nonrefundable. At the Closing, the Deposit shall be paid to Seller, and Purchaser shall deliver the balance of the Purchase Price (i.e., the Purchase Price less the Deposit) to Escrow Agent for delivery to Seller in accordance with appropriate closing escrow instructions to be provided by Seller to Escrow Agent at or prior to Closing. In the event Seller fails, for reasons beyond Seller’s reasonable control, to close on not more than two (2) of the Properties, Purchaser shall be entitled to a pro-rated credit of the Deposit against the Purchase Price based upon the allocation of the Purchase Price by Property set forth in Section 2 hereof (the “Deposit Allocation”). In the event Seller fails for reasons beyond Seller’s reasonable control to close on three (3) or more of the Properties, either party shall have the right, by notice delivered to the other party, to terminate this Agreement and in the event of such termination, Purchaser shall be entitled to the return of the Deposit. Simultaneously with execution of this Agreement, affiliates of Seller and Purchaser are also entering into a Purchase and Sale Agreement (the “Canada Contract”) with respect to 101 McNabb Street, Markham, Ontario, Canada (the “Canada Property”). In the event that Seller fails, for reasons beyond Seller’s reasonable control, to close on the Canada Property under the Canada Contract, then the references in the third and fourth sentences of this Section 2(4) to “not more than two (2) of the Properties”, and “on three (3) or more of die Properties”, respectively, shall be deemed changed to “not more than one (1) of the Properties” and “on two (2) or more of the Properties.”

(5)If there shall be any real property tax or assessment appeals with respect to the period prior to Closing allocable to the Property, Seller may, at its option and at its sole cost and expense, continue the prosecution of such appeals and take related action which Seller reasonably deems appropriate in connection therewith. Purchaser shall have the right, at its sole cost and expense, to be present at any hearings in connection with such proceedings with respect to the 2004 calendar year real property taxes. Purchaser shall cooperate with Seller in connection with such proceedings and appeals and collection of any refund, credit or rebate of real property taxes paid relating to the time period prior to the Closing, but shall not be obligated to incur any expense as a result thereof. With respect to the period prior to Closing, Seller owns and retains all right, title and interest in and to such real property tax and tax assessment appeals and all rebates, credits or refunds, and all amounts payable in connection therewith or resulting from any statutory or legislative change shall be paid directly to Seller by the applicable authorities. With respect to the period prior to Closing, if such refund, rebate or credit or any part thereof is received by Purchaser or otherwise credited to Purchaser or to the tax roll for the Property, Purchaser shall promptly pay such amount to Seller unless Purchaser or the lessor under the Lease is obligated to pay such amount to the tenant under the Lease. Purchaser agrees that it shall make available to Seller

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copies of all correspondence and other documentation relating to the reassessment of real property taxes relating to Property, which comes into the possession or control of the Purchaser subsequent to the Closing and relates to real property taxes for the period prior to the Closing.

The provisions of this Section 2(5) shall survive the Closing.

(6)Purchaser shall forthwith restore any damage to the Property resulting from any audits, inspections or tests performed for or on behalf of Purchaser at the Property. Seller reserves, without limiting any of its other rights at law, equity or under this Agreement, the right to offset against the Deposit, the cost of repair and restoration of Property necessary as a result of damage or destruction caused by Purchaser’s “due diligence” which has not been repaired or restored by Purchaser within a reasonable period of time after Purchaser has been notified of such damage.

3.APPORTIONMENTS.

Insofar as Seller or an affiliate of Seller and Purchaser will be entering into a Lease at the Closing with respect to each Property, there shall not be any apportionments or adjustments between Seller or Purchaser with respect to income and expenses for any Property. The provisions of this Section 3 shall survive the Closing.

4.CLOSING DATE. The delivery of the Deeds and the consummation of the transactions contemplated by this Agreement (the “Closing”) shall take place at a location reasonably agreed upon by Seller and Purchaser, at 10 a.m. local time on or about December 16, 2004 (the “Closing Date”). Time shall be of the essence with respect to the obligations of Purchaser to close the sale contemplated by this Agreement on the Closing Date and execute and deliver a Lease for each Property that Seller is able to convey in accordance with this Agreement on the Closing Date. The parties agree that with respect to ancillary closing documents (i.e., all documents to be delivered at Closing pursuant to this Agreement except Leases, SNDA’s, estoppels, Memoranda of Leases, Deeds and any other closing documents that the parties hereto agree to record) required to be delivered on the Closing Date, executed facsimile copies of ancillary closing documents shall be acceptable; provided that originals of such ancillary documents shall be delivered within two (2) business days after the Closing Date.

Purchaser acknowledges that Seller intends to effectuate (i) a legal subdivision of the AESC-SLC Property and (ii) a legal re-subdivision of the AEPC Property (the AESC-SLC Property and the AEPC Property, together, the “Subdivision Properties”). Seller intends to retain ownership of (i) that portion of the AESC-SLC Property designated as the Excess Land on Schedule 1-F attached hereto and (ii) a re-subdivided portion of Lot 1 of the AEPC Property (such portions of the Subdivided Properties being referred to herein as “Excess Land”). Purchaser further acknowledges that despite Seller’s diligent efforts in pursuing such legal subdivision and re-subdivision, such subdivision and re-subdivision will not be completed as of the Closing Date. Purchaser shall cooperate with Seller in good faith to effectuate such subdivision and re-subdivision including, without limitation, by signing such documents as may be required to be signed by the owner of the Excess Land and by appointing Seller as Purchaser’s agent for purposes of appearing

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before any municipal agency or planning commission solely in connection with effecting the subdivision or re-subdivision of the Excess Land from the balance of the applicable Subdivision Property and without any other changes to such Subdivision Property, except those required in order to effectuate the subdivision or re-subdivision, as applicable, and conditions thereto, and provided that Purchaser has the reasonable prior right of approval with respect to such changes. Purchaser and Seller agree that because the Subdivision Properties will not be legally subdivided or re-subdivided (as applicable) as desired by Seller by the Closing Date, Seller shall proceed to closing on such unsubdivided or unre-subdivided Subdivision Propert(ies), together with the related Excess Land, in accordance with the terms of this Agreement, and Seller shall have an option, at such times as the previously uncompleted subdivisions or re-subdivision are legally completed, to purchase the then-subdivided or re-subdivided Excess Land for a purchase price equal to One and No/100 ($1.00) Dollar for each such parcel of Excess Land. Purchaser and Seller agree to cooperate in good faith to effectuate any purchase of Excess Land by Seller in a timely and orderly manner and Purchaser agrees to execute and deliver to Seller such documents as may be reasonably required by Seller and its attorneys, including, without limitation, a special warranty deed and such certificates and affidavits as may be required by Seller’s title insurance company in order to convey title to the Excess Land to Seller, free of all liens, encumbrances and other matters not reasonably acceptable to Seller. Seller agrees that if Excess Land is conveyed to Seller, Seller shall, at the time of such conveyance, arrange for updated title commitments (including (i) all endorsements included in Purchaser’s title insurance policy delivered at the original closing of the Subdivision Property and the related Excess Land and (ii) only those exceptions to title as were included in Purchaser’s title insurance policy delivered at the original closing of the Subdivision Property and the related Excess Land and any other exceptions to title as may be reasonably approved by or consented to by Purchaser) and updated ALTA certified surveys showing no survey defects to be delivered to Purchaser with respect to the applicable Subdivision Property. Upon the legal completion of a subdivision or re-subdivision hereunder and the conveyance of title to the Excess Land to Seller, if the fair value (determined by having the original appraisal for the applicable Subdivision Property (exclusive of the Excess Land) used in connection with determining the Purchase Price Allocation for such Subdivision Property updated to the date of the legal completion of the subdivision, the “Fair Value”), of the Subdivision Property (exclusive of the Excess Land), exceeds the Purchase Price Allocation (i.e., $18,000,000.00 for the AEPC Property and $48,000,000.00 for the AESC-SLC Property) for such Subdivision Property, then (X) Purchaser shall pay to Seller, in cash, the difference between (i) the Fair Value of the applicable Subdivision Property (exclusive of the Excess Land) as of the date of the legal completion of the subdivision or re-subdivision (as applicable) and (ii) the Purchase Price Allocation for such Subdivision Property and (Y) the Base Rent (as defined in the Lease) to be paid by Seller to Purchaser under the Lease for the applicable Subdivision Property shall be increased proportionately. In the event that the Fair Value of the Subdivision Property (exclusive of the Excess Land) is less than the Purchase Price Allocation for such Subdivision Property, then there shall be no adjustment in the purchase price hereunder or the Base Rent under the Lease for the applicable Subdivision Property.

In the event that a subdivision or re-subdivision is not legally completed by the date that is 180 days after the Closing Date (“the Subdivision Outside Date”) or if Seller does not elect to purchase the Excess Land pursuant to its option as set forth above, then, at the earlier of such date that (i) Seller gives Purchaser written notice that Seller has elected

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not to purchase the Excess Land or (ii) the Subdivision Outside Date has occurred (such date, the “Re-valuation Date”), (I) Purchaser shall pay to Seller an amount equal to the difference between (x) the Fair Value of the Subdivision Property and the Excess Land as of the Re-valuation Date and (y) the Purchase Price Allocation for the Subdivision Property and (II) the Base Rent to be paid by Seller to Purchaser under the Lease for the applicable Subdivision Property shall be increased proportionately.

If Seller elects to proceed to subdivide or re-subdivide (as applicable) the Subdivision Properties, Purchaser and Seller shall cooperate in good faith and at no cost to Purchaser, to cause the subdivision and re-subdivision and transfers contemplated by this paragraph to occur in a timely and orderly manner. Purchaser shall take all action reasonably requested by Seller in order to effect such subdivision and re-subdivision.

5.PERMITTED ENCUMBRANCES. Subject to Purchaser’s review in accordance with Section 6(1) below, Seller shall convey and Purchaser shall accept title to the Properties subject to those matters set forth on Schedule “2” annexed hereto and made a part hereof (collectively the “Permitted Encumbrances”); provided, however, that upon the request of either party hereto, Schedule 2 may be revised after the execution of this Agreement so long as any subsequent revisions to the Permitted Encumbrances schedule (i) are to include items of the same type and category as those items set forth on Schedule 2 attached to this Agreement as of the date of the execution of this Agreement, (ii) are reasonably acceptable to both parties, (iii) do not create any encroachments or violate any restrictions of record or covenants of record for the applicable Property(ies) other than encroachments with respect to which Title Company has agreed to insure over or restrictions of record or covenants of record that do not interfere with the use or enjoyment of the Properties and for which the Title Company has agreed to issue a “Comprehensive 1 Endorsement” or a “Restrictions Endorsement”, in either event confirming “no violations” and (iv) do not occur after the Closing Date.

6.TITLE.

(1)(i)Prior to the date of this Agreement, Purchaser has received (x) title commitments and the related underlying documents (together, “Title Commitments”) for each of the Properties from the Title Company and (y) surveys as more particularly described on Schedule 2 as items 1(a)- (h) (the “Surveys”, together with the Title Commitments, the “Title Items”). Purchaser has provided Seller with notices for each of the Properties of its comments and objections to the Title Items (each such notice, a “Title Objection Letter” and collectively, the “Title Objection Letters”), Purchaser and Seller have, and shall continue, in good faith, to address Purchaser’s comments and attempt to eliminate Purchaser’s objections as contained in the Title Objection Letters. Not later than one (1) business day after Purchaser determines that the Title Items for a Property are reasonably acceptable, Purchaser shall give notice to Seller stating same and the Deposit Allocation for such Property shall become non-refundable to Purchaser, unless Seller defaults hereunder or Seller fails to satisfy any condition precedent to Purchaser’s obligation to close which is not waived by Purchaser, in which case the applicable Deposit Allocation shall be refunded to Purchaser, in accordance with the terms of this Agreement.

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(ii)In the event that, prior to the Closing, (x) Purchaser and Seller have not, to the reasonable satisfaction of Purchaser, addressed Purchaser’s comments and/or eliminated Purchaser’s objections to the Title Items as contained in the Title Objection Letters or (y) Purchaser receives updated Title Commitments or Surveys which indicate the existence of any liens, encumbrances or other defects or exceptions in or to title to the Properties other than Permitted Encumbrances and those identified on the initial Title Items, (collectively, the “Unacceptable Encumbrances”), subject to which Purchaser is unwilling to accept title, then provided Purchaser gives Seller notice of the same within one (1) business day after receipt of such updated Title Items, Seller shall undertake to eliminate such Unacceptable Encumbrances. Purchaser hereby waives any right Purchaser may have to advance as objections to title or as grounds for Purchaser’s refusal to close this transaction any Unacceptable Encumbrance with respect to which Purchaser has not notified Seller prior to the Closing (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unacceptable Encumbrance as an objection to title or as a ground for Purchaser’s refusal to close this transaction). Seller, in its sole discretion, may adjourn the Closing, as to any one of more Properties, one or more times for up to sixty (60) days in the aggregate in order to attempt, in good faith, to eliminate Unacceptable Encumbrances and to complete the subdivision of the AESC-SLC Property. Purchaser shall cooperate with Seller and shall also use its reasonable good faith efforts to eliminate Unacceptable Encumbrances. Seller shall cooperate with Purchaser so that Purchaser may obtain title insurance from Chicago Title Insurance Company (the “Title Company”); provided, however, in no event shall Seller be required to spend any money or satisfy any conditions for Chicago Title Insurance Company that Seller would not have been required to satisfy for LandAmerica and in no event shall extensions of time be granted in this Section 6(1) for new searches or commitments that duplicate what is made available to Purchaser by LandAmerica. Purchaser and Seller shall each pay $195,533.49 in respect of all title searches, reports, premiums and closing fees in connection with title insurance policies issued by Chicago Title Insurance Company for the Properties and Chicago Title Insurance Company’s agreement to act as Escrow Agent.

(2)Notwithstanding anything to the contrary set forth in this Section 6 or elsewhere in this Agreement, Seller shall not be obligated to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Title Item objected to by Purchaser or Unacceptable Encumbrances not waived by Purchaser or to arrange for title insurance insuring against enforcement of such Title Items or Unacceptable Encumbrances against, or collection of the same out of, the Properties; except that Seller shall (A) either (i) satisfy or (ii) cause a reputable title company to insure over (it being agreed that Purchaser shall be required to accept such “cure” from any reputable title company agreeing to insure over such matter) (x) mortgages voluntarily imposed by Seller, (y) judgments against Seller or (z) other liens voluntarily imposed by Seller (excluding mechanic’s liens) (collectively, “Voluntary Liens”) secured by or affecting the Properties which can be satisfied by payment of liquidated amounts and (B) with respect to (x) judgments as to which Seller is disputing or contesting, and (y) liens not voluntarily imposed by Seller (collectively, “Involuntary

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Liens”) affecting the Properties which can be satisfied by payment of liquidated amounts, Seller shall be obligated to spend, with respect to the applicable affected Property, an amount not to exceed the lesser of (i) two (2%) percent of the Purchase Price allocated for such Property or (ii) $500,000.00 per affected Property, to satisfy or cause a reputable title company to insure over (it being agreed that Purchaser shall be required to accept such “cure” from any reputable title company agreeing to insure over such matter) such Involuntary Lien. Without limiting the generality of the preceding provisions of this Section 6(2), for the purposes of this Agreement (including, without limitation Sections 6(1) and 17(1)), Seller’s failure or refusal to bring any action or proceeding, to make any payments or to otherwise incur any expense (except for Seller’s obligation to satisfy or cause a reputable title insurance company to insure over such Voluntary Liens and Involuntary Liens as aforesaid) in order to eliminate Unacceptable Encumbrances not waived by Purchaser or to arrange for such title insurance shall not be a default by Seller hereunder (willful or otherwise) and Purchaser shall not be entitled to any damages in connection therewith. Further, if Purchaser elects not to close the transaction solely due to Seller’s failure to cure or cause a reputable title company to insure over any Voluntary Liens or Involuntary Liens as aforesaid, such failure shall not be a default by Seller hereunder, however, Seller shall reimburse Purchaser for its actual, reasonable third party costs incurred in connection with this Agreement, not to exceed $100,000. With respect to any Involuntary Lien, Seller shall not be permitted to elect to reimburse Purchaser for its actual, reasonable third party costs incurred in connection with this Agreement in lieu of Seller’s obligation to attempt to cure an Involuntary Lien as aforesaid; provided, however, if Seller, in its reasonable opinion reasonably exercised, believes that the expenditure of the lesser of (i) two (2%) percent of the Purchase Price allocated for such Property or (ii) $500,000 per affected Property, will not “cure” such Involuntary Lien, then Seller shall not be obligated to expend such sums, and Seller shall remain liable to reimburse Purchaser for its actual reasonable third party costs, not to exceed $100,000. Notwithstanding anything contained in this Agreement to the contrary, in no event shall Seller be liable for any damages, cost and/or expenses, including, without limitation, damages, suffered by Purchaser or any of Purchaser’s affiliates resulting from, or in any way related to, the expiration of Purchaser’s “rate lock”, which the parties acknowledge expires on December 17, 2004. With respect to mechanic’s liens, Seller shall address mechanic’s liens as provided for in the Lease.

(3)If on the Closing Date there are any Liens or other encumbrances, subject to Section 6(2), which Seller must pay or discharge in order to convey to Purchaser such title as is herein provided to be conveyed, Seller may use any portion of the Purchase Price to satisfy the same, provided:

(i)Seller shall deliver to Purchaser or the Title Company, at the Closing, instruments in recordable form and sufficient to satisfy such Liens or other encumbrances of record together with the cost of recording or filing said instruments; or

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(ii)Seller, having made arrangements with the Title Company, shall deposit with said company sufficient monies acceptable to said company to insure the obtaining and the recording of such satisfactions; and

(iii)The existence of any such Liens or other encumbrances shall not be deemed objections to title if Seller shall comply with the foregoing requirements.

(4)If on the Closing Date there shall be conditional bills of sale, chattel mortgages or security interests filed against any of the Properties, the same shall not constitute objections to title provided Seller executes and delivers an affidavit and an indemnity (in form and substance and from an indemnitor reasonably acceptable to Purchaser) to the effect either (i) that the personal property (as defined in the Lease) covered by said conditional bills of sale, chattel mortgages, or security interests is no longer in or on the Properties, or (ii) if such personal property is still in or on any of the Properties, that it has either (x) been fully paid for, (y) is not the personal property of Seller or (z) would qualify as “Lessee’s Equipment or Personalty” under any of the Leases.

(5)Any franchise or corporate tax open, levied or imposed against Seller or other owners in the chain of title that may be a Lien on the Closing Date, shall not be an objection to title if the Title Company omits same from the title policy issued pursuant to the Title Commitment or excepts same but insures Purchaser against collection thereof out of the Properties.

(6)If a search of title discloses judgments, bankruptcies or other returns against other persons or entities having names the same as or similar to that of Seller, Seller will deliver to Purchaser and the Title Company an affidavit stating that such judgments, bankruptcies or other returns are not against Seller, whereupon, provided the Title Company omits such returns as exceptions to title or provides affirmative coverage with respect thereto, such returns shall not be deemed an objection to title.

7.PROPERTY NOT INCLUDED IN SALE.

Notwithstanding anything to the contrary contained herein, it is expressly agreed by the parties hereto that any alterations at, on or in any of the Properties that (i) are readily removable without unrepaired damage to the Property, (ii) do not reduce the value, economic life or utility of the Property if removed, (iii) are not integral to the structure or operation of the Property, and (iv) are not required for the lawful occupancy of the Property shall not be included in the Properties to be sold to Purchaser hereunder. In addition, Seller’s Equipment and Personalty as described on Exhibit “B”, attached hereto and made a part hereof, shall also not be included in the Properties to be sold to Purchaser hereunder. With respect to the FRC-W Property, FRC shall assign to TRS at Closing all of FRC’s right, title and interest in the property described above in this paragraph (including but not limited to Seller’s Equipment and Personalty described on Exhibit “B” attached hereto) as not being sold to Purchaser hereunder.

8.REPRESENTATIONS AND WARRANTIES.

(1)Purchaser expressly acknowledges that, except as expressly set forth in this Agreement or in any Lease, neither Seller, nor any person acting on behalf of Seller,

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nor any person or entity which prepared or provided for any of the materials reviewed by Purchaser in conducting its due diligence, nor any direct or indirect officer, director, partner, shareholder, employee, agent, representative, accountant, advisor, attorney, principal, affiliate, consultant, contractor, successor or assign of any of the foregoing parties (Seller, and all of the other parties described in the preceding portions of this sentence (other than (i) Purchaser and (ii) any parties who have issued writings which specifically state that Purchaser is entitled to rely upon the accuracy, truthfulness or completeness thereof or delivered a Third Party Report) shall be referred to herein collectively as the “Exculpated Parties”) has made any oral or written representations or warranties, whether expressed or implied, by operation of law or otherwise, with respect to the Properties (including, without limitation, the environmental condition of the Properties), the zoning and other laws, regulations and rules applicable thereto or the compliance by the Properties therewith, the revenues and expenses generated by or associated with the Properties, or otherwise relating to the Properties or the transactions contemplated herein. Without limiting the generality of the foregoing, Purchaser has not relied on any representations or warranties, and neither Seller nor any of Seller’s Affiliates, nor any of their agents or representatives has or is willing to make any representations or warranties, express or implied, other than as may be expressly set forth herein and in the Lease, as to (i) the status of title to the Properties, (ii) existing lease agreements, (iii) the current or future real estate tax liability, assessment or valuation of the Properties; (iv) the potential qualification of the Properties for any and all benefits conferred by any laws whether for subsidies, special real estate tax treatment, insurance, mortgages or any other benefits, whether similar or dissimilar to those enumerated; (v) the compliance of the Properties in their current or any future state with applicable laws or any violations thereof, including, without limitation, those relating to access for the handicapped, environmental or zoning matters, and the ability to obtain a change in the zoning or a variance in respect to the Properties’ non-compliance, if any, with zoning laws; (vi) the nature and extent of any right-of-way, lease, possession, lien, encumbrance, license, reservation, condition or otherwise; (vii) the availability of any financing for the purchase, alteration, rehabilitation or operation of the Properties from any source, including, without limitation, any government authority or any lender; (viii) the current or future use of the Properties, including, without limitation, the Properties’ use for commercial, manufacturing or general office purposes; (ix) the present and future condition and operating state of any personal property and the present or future structural and physical condition of the improvements on the Properties, their suitability for rehabilitation or renovation, or the need for expenditures for capital improvements, repairs or replacements thereto; (x) the viability or financial condition of any tenant; (xi) the status of the leasing market in which the Properties are located; or (xii) the actual or projected income or operating expenses of the Properties.

(2)Purchaser expressly acknowledges that it is acquiring the Properties based solely on its own independent investigation and inspection of the Properties and not in reliance on any information provided by Seller, or any of the other Exculpated Parties, except for the representations expressly set forth herein or in any Lease, Notwithstanding anything to the contrary herein, as used herein the term “Exculpated Parties” shall not include any parties or entities who have prepared any of the Third Party Reports, but in no event shall this sentence be deemed to exclude

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Seller nor any direct or indirect officer, director, partner, shareholder or employee of Seller as an Exculpated Party. “Third Party Reports” shall mean all Environmental Reports (as defined in any Lease), appraisals, certificates, reports, assessments, studies or other information delivered to Purchaser for its review with respect to the Properties. Purchaser acknowledges that Seller has afforded Purchaser the opportunity for full and complete investigations, examinations and inspections of the Properties and all Property Information. Purchaser further acknowledges and agrees that (i) the Property Information delivered or made available to Purchaser and Purchaser’s Representatives by Seller or Seller’s Affiliates, or any of their agents or representatives may have been prepared by third parties and may not be the work product of Seller and/or any of Seller’s Affiliates; (ii) neither Seller nor any of Seller’s Affiliates has made any independent investigation or verification of, or has any knowledge of, the accuracy or completeness of, the Property Information; (iii) the Property Information delivered or made available to Purchaser and Purchaser’s Representatives is furnished to each of them at the request, and for the convenience of, Purchaser; (iv) Seller expressly disclaims any representations or warranties with respect to the accuracy or completeness of the Property Information prepared by either Seller or any third-party vendors and Purchaser releases Seller and Seller’s Affiliates, and their agents and representatives, from any and all liability with respect thereto; and (v) any further distribution of the Property Information is subject to Section 24. Purchaser and Seller hereby agree that this paragraph does not constitute a waiver of any of Purchaser’s rights or Seller’s obligations that arise in connection with the offering memorandum covering the subject matter of and issued in connection with this Agreement.

(3)This Agreement, as written, contains all the terms of the agreement entered into between the parties as of the date hereof, and Purchaser acknowledges that neither Seller nor any of Seller’s Affiliates, nor any of their agents or representatives, nor any broker has made any representations or held out any inducements to Purchaser, and Seller hereby specifically disclaims any representation, oral or written, past, present or future, other than those specifically set forth in Sections 8 and 14 and in the Lease. Purchaser acknowledges and agrees that Seller’s liability with respect to Seller’s representations and warranties in this Agreement and the Leases shall be limited to Seller or Seller’s interest in the Properties, and Purchaser shall have no recourse against Seller’s Affiliates, or their respective directors, shareholders, employees, agents, representatives, whom shall have no personal liability. Purchaser further acknowledges and agrees that its obligations under this Agreement shall not be subject to any financing contingency or other contingencies or satisfaction of conditions except to the extent specifically set forth herein and Purchaser shall have no right to terminate this Agreement or receive a return of the Deposit (or the accrued interest thereon), except as expressly provided in the Agreement.

(4)Each Seller, individually and not jointly, represents and warrants to the respective Purchaser as follows:

1.Seller is validity existing and in good standing under the laws of its State of incorporation and the State in which it owns any property. Seller has either (i) the company or (ii) corporate power and authority

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to conduct its business in all material respects as now conducted, to own or hold its Property, to lease its Property and to enter into and perform its obligations under this Agreement and when executed and delivered will have either (i) the company or (ii) the corporate power and authority to enter into and perform its obligations under the documents described on Exhibit “C” attached hereto. To the extent applicable, Seller is duly qualified to do business and is in good standing as a foreign business entity in the jurisdiction where it owns property.

2.(A) This Agreement has been and, when executed and delivered by the Seller, each of the documents required to be executed and/or delivered pursuant to Section 11 hereof, including but not limited to those described on Exhibit “C”, will have been duly (a) authorized by all necessary (i) company or (ii) corporate action, and (b) executed and delivered to Purchaser. At Closing, performance of this Agreement and each of the documents required to be executed and/or delivered pursuant to Section 11 hereof, including but not limited to those described on Exhibit “C”, that have been executed and delivered by Seller to Purchaser will not, (x) require any approval of the members/stockholders of Seller or any approval or consent of any trustee or holder of any indebtedness or obligation of Seller, other than such consents and approvals as have been obtained, (y) contravene any applicable law binding on Seller or (z) except as set forth on Schedule 8(4)(2), materially contravene or result in any material breach of or constitute any material default under Seller’s organizational documents or any indenture, judgment, order, mortgage, loan agreement, contract, partnership or joint venture agreement, lease or other agreement or instrument to which Seller is a party or by which Seller is bound, or result in the creation of any Lien upon any Property.

(B) When executed and delivered by American Express Financial Corporation (“Guarantor”) at Closing, the Guaranty will have been duly (a) authorized by all necessary corporate action, and (b) executed and delivered to Purchaser. At Closing, performance of the Guaranty will not, (x) require any approval of the stockholders of Guarantor or any approval or consent of any trustee or holder of any indebtedness or obligation of Guarantor other than such consents and approvals as have been obtained, (y) contravene any applicable law binding on Guarantor or (z) except as set forth on Schedule 8(4)(2), materially contravene or result in any material breach of or constitute any material default under the organizational documents of Guarantor, or any indenture, judgment, order, mortgage, loan agreement, contract, partnership or joint venture agreement, lease or other agreement or instrument to which Guarantor is a party or by which Guarantor is bound, or result in the creation of any Lien upon the Property.

3.All action by any Governmental Authority (“Governmental Action”) required in connection with the execution, delivery and performance by Seller of the documents required to be executed and/or delivered

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pursuant to Section 11 hereof, including but not limited to those described on Exhibit “C”, has been or will have been obtained, given or made at or prior to Closing, including, without limitation, obtaining all approvals from any federal or state bank regulatory authorities. For purposes of this Agreement, “Governmental Authority” shall mean the United States, the states or provinces in which the Properties are located and any political subdivision thereof, and any and all agencies, departments, commissions, boards, bureaus, bodies, councils, offices, authorities, or instrumentality of any of them, of any nature whatsoever for any governmental unit (federal, state, county, municipal, city, foreign or otherwise) whether now or hereafter in existence.

4.To Seller’s knowledge, but without independent investigation or duty of inquiry, except as may be set forth in the reports listed on Schedule 8(4)(4) (copies of which Purchaser acknowledges receipt prior to the date hereof), Seller has not received any written notice of building code violations or violations of Environmental Laws that (a) have not been cured, or (b) are not de minimis in nature.

5.Seller has no actual knowledge (i) and has received no written notice of any special assessments affecting the Properties that would materially and adversely affect the value of the Properties; (ii) and has received no written notice of any condemnation proceedings affecting any of the Properties; (iii) of any of Seller’s employees having any contracts or agreements with Seller and relating to the Properties that will survive the expiration of the Lease or of any other material contracts that are binding on any of the Properties and that will survive the expiration of the Lease, other than those that are cancelable without penalty upon no more than thirty (30) days’ notice.

6.Except for that certain lease between TRS, as lessor, and American Express Bank Federal Savings Bank, as lessee, which commenced on February 1, 2004, as the same may have been amended, for a portion of the AESC-SLC Property and that certain Amended and Restated Lease Agreement No. [2] between TRS, as lessor, and American Express Centurion Bank, as lessee, made as of January 1, 2004, as the same may have been amended, for a portion of the AESC-SLC Property, which leases shall be subordinated to the Lease to TRS for the AESC-SLC Property, Seller represents to Purchaser that there are no recorded leases on any of the Properties or any other rights to occupy the Properties.

7.Except as expressly set forth in this Agreement, none of Seller’s representations, warranties or covenants shall survive Closing or the termination of this Agreement.

(5)If at or prior to the Closing, (A) Purchaser shall become aware (whether through its own efforts, by notice from Seller or otherwise) that any of the representations or warranties made herein by Seller are untrue, inaccurate or incorrect and shall give Seller notice thereof at or prior to the Closing, or (B) Seller shall notify

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Purchaser that a representation or warranty made herein by Seller is untrue, inaccurate or incorrect, then Seller may, in its sole discretion, elect by notice to Purchaser to adjourn the Closing one or more times for up to sixty (60) days in the aggregate in order to cure or correct such untrue, inaccurate or incorrect representation or warranty. If any such representation or warranty is materially untrue, inaccurate or incorrect, and is not cured or corrected by Seller on or before the Closing Date (or the final adjourned Closing Date as provided above, if Seller elects to adjourn the Closing), then Purchaser, as its sole remedy for any and all such materially untrue, inaccurate or incorrect material representations or warranties, shall elect either (x) to waive such misrepresentations or breaches of warranties and consummate the transactions contemplated hereby without any reduction of or credit against the Purchase Price, (y) if such misrepresentation is specific to a Property (as opposed to being applicable to all Properties), to delete such Property from this Agreement and receive a credit against the Purchase Price in an amount equal to the portion of the Purchase Price allocated to such Property (which includes the applicable Deposit Allocation) or (z) if such misrepresentation is not specific to a Property, to terminate this Agreement by notice given to Seller on the Closing Date, in which event, this Agreement shall be terminated, the Deposit (and all interest accrued thereon, if any) shall revert to Purchaser and neither party shall have any further rights, obligations or liabilities hereunder, except for the Termination Obligations. Purchaser acknowledges and agrees that (x) at or prior to the Closing, Purchaser’s rights and remedies in the event any of Seller’s representations or warranties made in this Agreement are untrue, inaccurate or incorrect shall be only as provided in this Section 8, and (y) if the Closing does not occur by virtue of such breach, Purchaser hereby expressly waives, relinquishes and releases all other rights or remedies available to it at law, in equity or otherwise (including, without limitation, the right to seek damages from Seller) as a result of any of Seller’s representations or warranties made in this Agreement being untrue, inaccurate or incorrect. If Purchaser elects to consummate the transactions contemplated hereby after receipt of notice of the breach or after its having otherwise become aware of such breach, then Purchaser shall be deemed to have waived such misrepresentation or breach of warranty and there shall be no reduction of or credit against the Purchase Price, and the Purchaser shall not use Seller’s breach as a basis for delaying or refusing to proceed to Closing.

(6)In the event the Closing occurs, notwithstanding anything contained in this Section 8 or elsewhere in this Agreement to the contrary, Purchaser hereby expressly waives, relinquishes and releases any right or remedy available to it at law, in equity or under this Agreement to make a claim against Seller for damages that Purchaser may incur, or to rescind this Agreement and the transactions contemplated hereby, as the result of any of Seller’s representations or warranties being untrue, inaccurate or incorrect if Purchaser knew that such representation or warranty was untrue, inaccurate or incorrect at the time of the Closing and Purchaser nevertheless closes title hereunder.

(7)The representations and warranties of Seller set forth in this Section 8 and elsewhere in this Agreement shall be true, accurate and correct in all material respects upon the execution of this Agreement and shall be deemed to be repeated on and as of the Closing Date. The representations and warranties (whether

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express or implied) of Seller set forth in this Section 8 and elsewhere in this Agreement shall remain operative and shall survive the Closing and the execution and delivery of the Deed for a period of two hundred seventy (270) days following the Closing Date, and no action or claim based thereon shall be commenced after such period, but any claim made within such 270-day period shall survive such period until finally determined and all amounts, if and as required, are paid. If Purchaser shall have timely commenced an action with respect to a breach of a representation or warranty made by Seller hereunder and a court of competent jurisdiction shall determine that (A) Seller was in breach of the applicable representation or warranty as of the date of this Agreement or as of the Closing Date, (B) Purchaser suffered damages by reason of such breach, and (C) Purchaser did not have knowledge of such breach on or prior to the date of the Closing, then, Purchaser shall be entitled to receive an amount equal to its damages; provided that in no event shall Purchaser be entitled to receive, in connection with any and all breaches of the representations and warranties of Seller hereunder, an amount in excess of $2,000,000.00 for its damages notwithstanding that the amount of any damages suffered by Purchaser exceeds $2,000,000.00.

(8)Purchaser represents and warrants to Seller as follows:

1.Purchaser is, and any entity or entities to whom Purchaser may assign this Agreement will be, validly existing and in good standing under the laws of its State of incorporation and the State in which it will own, following the Closing, the Properties. Purchaser has either (i) the company (ii) corporate and/or (iii) trust power and authority to conduct its business in all material respects as now conducted, to own or hold its assets, to own or hold the Properties, to lease the Properties and to enter into and perform its obligations under all documents to which it is or is to become a party. Purchaser is duly qualified to do business and is in good standing as a foreign corporation in any jurisdiction where the failure to also qualify would have a material adverse effect on its ability to perform its obligations under all documents to which it is a party.

2.Each of the documents to which Purchaser is a party has been duly authorized by all necessary (i) company, (ii) corporate or (iii) trust action, executed and delivered to Seller, and performance thereof by Purchaser will not, (1) require any approval of the members/stockholders of Purchaser or any approval or consent of any trustee or holder of any indebtedness or obligation of Purchaser, other than such consents and approvals as have been obtained, (2) contravene any applicable law binding on Purchaser or (3) contravene or result in any breach of or constitute any default under Purchaser’s organizational documents, or any indenture, judgment, order, mortgage, loan agreement, contract, partnership or joint venture agreement, lease or other agreement or instrument to which Purchaser is a party or by which Purchaser is bound, or result in the creation of any Lien upon any property of Purchaser.

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3.All Governmental Action required in connection with the execution, delivery and performance by Purchaser of all of the documents to which it is a party, has been or will have been obtained, given or made, including, without limitation, obtaining all approvals from any federal or state bank regulatory authorities.

4.If at or prior to the Closing, (A) Seller shall become aware (whether through its own efforts, by notice from Purchaser or otherwise) that any of the representations or warranties made herein by Purchaser are untrue, inaccurate or incorrect and shall give Purchaser notice thereof at or prior to the Closing, or (B) Purchaser shall notify Seller that a representation or warranty made herein by Purchaser is untrue, inaccurate or incorrect, then Purchaser may, in its sole discretion, elect by notice to Seller to adjourn the Closing one or more times for up to sixty (60) days in the aggregate in order to cure or correct such untrue, inaccurate or incorrect representation or warranty. If any such representation or warranty is materially untrue, inaccurate or incorrect, and is not cured or corrected by Purchaser on or before the Closing Date (whether or not the Closing is adjourned as provided above), then Seller, as its sole remedy for any and all such materially untrue, inaccurate or incorrect material representations or warranties, shall elect either (x) to waive such misrepresentations or breaches of warranties and consummate the transactions contemplated hereby without any adjustment of the Purchase Price, (y) if such misrepresentation is specific to a Property (as opposed to being applicable to all Properties), to delete such Property from this Agreement and to reduce the Purchase Price in an amount equal to the portion of the Purchase Price allocated to such Property or (z) if such misrepresentation is not specific to a Property, to terminate this Agreement by notice given to Purchaser on the Closing Date, in which event, this Agreement shall be terminated, the Deposit (and all interest accrued thereon, if any) shall be delivered to Seller and neither party shall have any further rights, obligations or liabilities hereunder, except for the Surviving Obligations. Seller acknowledges and agrees that (a) at or prior to the Closing, Seller’s rights and remedies in the event any of Purchaser’s representations or warranties made in this Agreement are untrue, inaccurate or incorrect shall be only as provided in this Section 8, and (b) if the Closing does not occur by virtue of such breach, Seller hereby expressly waives, relinquishes and releases all other rights or remedies available to it at law, in equity or otherwise (including, without limitation, the right to seek damages from Purchaser) as a result of any of Purchaser’s representations or warranties made in this Agreement being untrue, inaccurate or incorrect. If Seller elects to consummate the transactions contemplated hereby after receipt of notice of the breach then Seller shall be deemed to have waived such misrepresentation or breach of warranty and there shall be no adjustment in the Purchase Price, and Seller shall not use Purchaser’s breach as a basis for delaying or refusing to proceed to Closing.

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5.Purchaser (including for the purposes of this Section 8(8)(5), any entity that is directly or indirectly 15% or more owned by Purchaser or as to which Purchaser directly or indirectly has the right to vote 15% or more of the voting securities thereof) is not a Significant Competitor (as defined in the Lease) of Seller, and no entity that directly or indirectly has a 15% or greater interest in Purchaser is a Significant Competitor (as defined in the Lease) of Seller.

(9)The representations and warranties of Purchaser set forth in this Section 8 and elsewhere in this Agreement shall be true, accurate and correct in all material respects upon the execution of this Agreement, shall be deemed to be repeated on and as of the Closing Date. The representations and warranties (whether express or implied) of Purchaser set forth in this Section 8 and elsewhere in this Agreement shall remain operative and shall survive the Closing and the execution and delivery of the Deed for a period of one (1) year following the Closing Date, and no action or claim based thereon shall be commenced after such period.

(10)Seller represents to Purchaser, as of the date of this Agreement, that Seller has no right, after the Closing, to re-purchase the Property, or any portion thereof, from Purchaser except as expressly set forth in this Agreement. Purchaser represents to Seller, as of the date of this Agreement, that Purchaser has no right, after the Closing, to require Seller to re-purchase the Property.

9.CLOSING COSTS.

(1)At the Closing, Seller shall be liable for the payment of (i) the applicable state and/or any other jurisdiction transfer and recording taxes (the “Transfer Tax Payments”) imposed pursuant to the laws of the states where the Properties are located or any other Governmental Authority in respect of the transactions contemplated by this Agreement by wire transfer to the Title Company or delivery to the Title Company of good, unendorsed, certified or official bank checks, drawn on, or by a Clearing House Bank and payable to the order of the relevant Governmental Authority together with any return (the “Transfer Tax Return”) required thereby which shall be duly executed by Seller and Purchaser, (ii) recording charges to discharge any mortgages or financing statements, (iii) its share of the title insurance related costs as described in Section 6(1)(ii), (iv) one-half of any escrow fees, and (v) the cost of the appraisals, engineering reports and Phase 1 environmental reports ordered by Seller.

(2)At the Closing, Purchaser shall be responsible for (i) its share of the title insurance related costs as described in Section 6(1)(ii), (ii) recording charges in connection with the conveyance of the Properties to Purchaser (including, without limitation, recording fees), (iii) one-half of any escrow fees, and (iv) the cost of the appraisals, engineering reports and Phase 1 environmental reports ordered by Purchaser.

(3)Seller and Purchaser agree that each party shall pay its own costs, fees and expenses of counsel retained by each party in connection with the consummation of this transaction.

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(4)Purchaser shall be responsible for the payment of all costs and expenses relating to the debt to be secured by Purchaser to finance the purchase of the Properties, including, without limitation, mortgage recording taxes, debt placement fees, initial rating agency fees (but not on-going fees), surety bond fees and fees and expenses of counsel for the debt. The provisions of this Section 9 shall survive the Closing.

10.CONDITIONS PRECEDENT TO CLOSING.

(1)Purchaser’s obligation under this Agreement to purchase the Properties is subject to the fulfillment of each of the following conditions, subject, however, to the provisions of Section 10(3):

1.The representations and warranties of Seller contained herein shall be materially true, accurate and correct as of the Closing Date (subject to the provisions of Section 8(5));

2.Seller shall be ready, willing and able to deliver title to the Properties in accordance with the terms and conditions of this Agreement;

3.Seller shall have delivered all the documents and other items required pursuant to Section 11 hereof, and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by the Seller at or prior to the Closing;

4.Purchaser shall have received at Closing title policies for the Properties with all endorsements required by this Agreement, updated ALTA surveys, the Leases, estoppel certificates in form reasonably acceptable to Seller and subordination, non-disturbance and attornment agreements substantially in the form attached hereto as Exhibit “D” (“SNDA”), it being agreed and understood that no event shall Seller’s failure to deliver any estoppel certificates or SNDA be deemed a default by Seller nor shall any such failure or delay give Purchaser any right whatsoever to fail to close this transaction as described herein in the manner and at the time otherwise prescribed by this Agreement;

5.As of the Closing Date, there shall be no material reduction in the credit rating of the tenants under the Leases for the Properties (or with respect to the Lease for the AEPC Property, Guarantor) from the date this Agreement is executed. (For the purposes of this Section 10(1)5, “material reduction” means, for tenant TRS, an S&P rating of “A” or below and a Moody’s rating of “Al” or below, and for Guarantor, a Moody’s rating of “A2” or below);

6.All material consents and approvals by any Governmental Authority and parties to agreements to which Seller is a party or by which Seller’s assets are bound that are required with respect to the consummation of the transactions contemplated by this Agreement shall have been obtained and copies thereof or other evidence satisfactory thereof shall have been delivered to Purchaser at or prior to the Closing;

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7.No order or injunction of any court or administrative agency of competent jurisdiction nor any statute, rule, regulation or executive order promulgated by any Governmental Authority of competent jurisdiction shall be in effect as of the Closing which prohibits the transfer of the Properties or the consummation of any other transaction contemplated hereby; and

8.             On or prior to the Closing Date, (A) Seller shall not have applied for or consented to the appointment of a receiver, trustee or liquidator for itself or any of its assets unless the same shall have been discharged prior to the Closing Date, and no such receiver, liquidator or trustee shall have otherwise been appointed, unless same shall have been discharged prior to the Closing Date, (B) Seller shall not have admitted in writing an inability to pay its debts as they mature, (C) Seller shall not have made a general assignment for the benefit of creditors, (D) Seller shall not have been adjudicated as bankrupt or insolvent, or had a petition for reorganization granted with respect to Seller, (E) Seller shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of a petition filed against it in any proceedings under any such law, or had any petition filed against it in any proceeding under any of the foregoing laws unless the same shall have been dismissed, canceled or terminated prior to the Closing Date.

(2)Seller’s obligation under this Agreement to sell the Properties to Purchaser is subject to the fulfillment of each of the following conditions, subject, however to the provisions of Section 10(3):

1.The representations and warranties of Purchaser contained herein shall be materially true, accurate and correct as of the Closing Date;

2.Purchaser shall have delivered the funds required hereunder and all the documents to be executed by Purchaser set forth in Section 12 hereof and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by Purchaser at or prior to the Closing;

3.All consents and approvals by any Governmental Authority and parties to agreements to which Purchaser is a party or by which Purchaser’s assets are bound that are required with respect to the consummation of the transactions contemplated by this Agreement shall have been obtained and copies thereof shall have been delivered to Seller at or prior to the Closing;

4.No order or injunction of any court or administrative agency of competent jurisdiction nor any statute, rule, regulation or executive order promulgated by any Governmental Authority of competent jurisdiction shall be in effect as of the Closing which prohibits the

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transfer of the Properties or the consummation of any other transaction contemplated hereby; and

5.On or prior to the Closing Date, (A) Purchaser shall not have applied for or consented to the appointment of a receiver, trustee or liquidator for itself or any of its assets unless the same shall have been discharged prior to the Closing Date, and no such receiver, liquidator or trustee shall have otherwise been appointed, unless same shall have been discharged prior to the Closing Date, (B) Purchaser shall not have admitted in writing an inability to pay its debts as they mature, (C) Purchaser shall not have made a general assignment for the benefit of creditors, (D) Purchaser shall not have been adjudicated as bankrupt or insolvent, or had a petition for reorganization granted with respect to Purchaser, (E) Purchaser shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of a petition filed against it in any proceedings under any such law, or had any petition filed against it in any proceeding under any of the foregoing laws unless the same shall have been dismissed, canceled or terminated prior to the Closing Date.

(3)In the event that any condition contained in Section 10(1) or 10(2) is not satisfied, the party entitled to the satisfaction of such condition as a condition to its obligation to close title hereunder shall have as its sole remedy hereunder the right to elect to (i) waive such unsatisfied condition whereupon title shall close as provided in this Agreement, (ii) if such failure is by Seller and is specific to a Property, Purchaser may delete such Property from this Agreement and receive credit against the Purchase Price in an amount equal to the portion of the Purchase Price allocated to such Property (which includes the applicable Deposit Allocation) or, (iii) if such failures relate to more than one of the Properties if such failures were by Seller, Purchaser may terminate this Agreement, or (iv) if such failure is by Purchaser or Seller and is not specific to a Property, terminate this Agreement. Nothing contained in this Section 10(3) shall be construed so as to bestow any right of termination upon a party for the failure of a condition to be satisfied unless such party is expressly entitled to the satisfaction of such condition as provided in Section 10(1) or 10(2). The provisions of this Section 10(3) shall survive the Closing.

11.DOCUMENTS TO BE DELIVERED BY SELLER AT CLOSING. At or prior to the Closing, Seller shall execute, acknowledge and deliver or cause to be delivered to the Title Company for delivery to Purchaser, pursuant to escrow instructions from Seller and Purchaser, the following for each Property:

(1)A special warranty deed, limited warranty deed or bargain and sale deed, as applicable (collectively, the “Deed”) conveying title to each of the Properties in the forms shown in Exhibit “E” annexed hereto and made a part hereof;

(2)A lease for each Property, substantially in the form of the lease attached hereto as Exhibit “F” (a “Lease”);

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(3)Pro Forma fee title insurance polic(ies) with all endorsements required pursuant to this Agreement insuring the Properties for the Purchase Price;

(4)Current ALTA surveys certified to Purchaser and Purchaser’s lender, if any;

(5)Certificates of Occupancy for the Properties, to the extent required by the applicable municipality as a condition of a transfer of title;

(6)Tenants’ insurance certificates as required by the applicable Lease;

(7)A Bring Down Certificate from Seller confirming applicable representations and warranties in this Agreement at Closing, or if a particular representation or warranty cannot be re-made at Closing specifying such representation or warranty and disclosing the materially changed circumstances with respect to such representation or warranty;

(8)Such organizational documentation, if any, as the Title Company may reasonably require in order to issue an owner’s fee title insurance policy based on the Title Commitment;

(9)The Transfer Tax Payments together with the Transfer Tax Returns, if any;

(10)“FIRPTA” affidavit sworn to by each party constituting Seller in the form of Exhibit “G” annexed hereto and made a part hereof. Purchaser acknowledges and agrees that upon Seller’s delivery of such affidavit, Purchaser shall not withhold any portion of the Purchase Price pursuant to Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder;

(11)All other documents Seller is required to deliver pursuant to the provisions of this Agreement and of any applicable laws and/or regulations;

(12)Such SNDAs and estoppel certificates as may be agreed to by Seller in connection with Purchaser’s financing; and

(13)Closing Statements for Purchaser and Seller indicating deposits, credits and charges with respect to each Property, including an undertaking by each of Purchaser and Seller to re-adjust any item on or omitted from same.

All items to be delivered under this Section 11 shall be in form and substance acceptable to Purchaser and its counsel, acting reasonably and in good faith.

12.DOCUMENTS AND PAYMENTS TO BE DELIVERED BY PURCHASER AT CLOSING. At the Closing, Purchaser shall execute, acknowledge and deliver or cause to be delivered to the Title Company for delivery to Seller, pursuant to escrow instructions from Seller and Purchaser, the following for each Property:

(1)The cash portion of the Purchase Price payable at the Closing pursuant to Section 2(1), subject to adjustments as expressly provided in this Agreement;

(2)A Lease for each Property;

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(3)If Purchaser is a trust, certified copies of the trust agreement pursuant to which Purchaser was formed;

(4)Transfer Tax Returns, if any;

(5)Such organizational documentation, if any, as the Title Company may reasonably require in order to issue an owner’s fee title insurance policy based on the Title Commitment;

(6)A Bring Down Certificate from Purchaser confirming applicable representations and warranties in this Agreement at Closing, or if a particular representation or warranty cannot be re-made at Closing specifying such representation or warranty and disclosing the materially changed circumstances with respect to such representation or warranty;

(7)All other documents Purchaser is required to deliver pursuant to the provisions of this Agreement and of any applicable laws and/or regulations;

(8)A certification from an authorized officer of Inland Western Retail Real Estate Trust, Inc., that Purchaser (including for the purposes of this Section 12(7), any entity that is directly or indirectly 15% or more owned by Purchaser or as to which Purchaser directly or indirectly has the right to vote 15% or more of the voting securities thereof) is not a Significant Competitor (as defined in the Lease) of Seller, and no entity that directly or indirectly has a 15% or greater interest in Purchaser is a Significant Competitor (as defined in the Lease) of Seller.  Such evidence may include, but shall not be limited to, certificates of incorporation or formation, and operating agreements;

(9)An Assignment and Assumption Agreement between Purchaser and Purchaser’s Designees, in form and substance reasonably acceptable to Seller; and

(10)Closing Statements for Purchaser and Seller indicating deposits, credits and charges with respect to each Property, including an undertaking by each of Purchaser and Seller to re-adjust any item on or omitted from same.

All items to be delivered under this Section 12 shall be in form and substance acceptable to Seller and its counsel, acting reasonably and in good faith.

13.OPERATION OF THE PROPERTIES PRIOR TO THE CLOSING DATE. Between the date hereof and the Closing Date, Seller shall have the right and the obligation to continue to operate and maintain the Properties in the same general manner as operated and maintained prior to the date hereof.

14.AS-IS.

(1)PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTIES “AS IS, WHERE IS, WITH ALL FAULTS”, INCLUDING, WITHOUT LIMITATION, THOSE ARISING FROM, RELATED TO OR IN CONNECTION WITH HAZARDOUS SUBSTANCES AT, IN, ON, ABOVE, UNDER, ABOUT, OR MIGRATING TO OR FROM OR

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AFFECTING THE PROPERTIES, PURCHASER HAS HAD THE OPPORTUNITY TO INVESTIGATE THE PROPERTIES (INCLUDING, WITHOUT, LIMITATION THE ENVIRONMENTAL CONDITION OF EACH PROPERTY) AND HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTIES OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION, ENVIRONMENTAL CONDITIONS) MADE OR FURNISHED BY SELLER DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF THE SELLER CONTAINED HEREIN OR IN THE LEASES. Purchaser and Purchaser’s successors, assigns, operators, mortgagees, tenants, licensees and occupants of the Properties waive, release and discharge Seller and its parents, subsidiaries, affiliates, partners, officers, directors, employees, agents, representatives, shareholders, predecessors, successors and assigns from, without limitation, any and all obligation or liability, whether known or unknown, foreseen or unforeseen, threatened or actual, now existing or hereafter in existence, of Purchaser arising from relating to or in connection with the presence of Hazardous Substances at, in, on, above, under, about or migrating to or from the Properties. “Hazardous Substances” shall mean each and every element, compound, chemical mixture, contaminant, pollutant, material, waste, or other substance which is defined, determined or identified as hazardous or toxic under any Environmental Law or is otherwise regulated by any Governmental Authority. “Environmental Laws” shall mean any federal, state or local statute, regulation or ordinance or any judicial or administrative decree or decision, whether now existing or hereafter enacted, promulgated or issued, with respect to any Hazardous Substances, drinking water, ground water, wetlands, landfills, open dumps, storage tanks, underground storage tanks, solid waste, waste water, storm water runoff, waste emissions or wells.

The release contained in this Section 14(1) above shall run with the land, be binding upon Purchaser and Purchaser’s successors and assigns, and all future owners, operators, mortgagees, tenants, licensees and occupants of the Properties and shall inure to the benefit of Seller and its successors and assigns, and shall survive the Closing.

(2)Purchaser or anyone claiming by, through or under Purchaser, hereby fully and irrevocably releases Seller and Seller’s Affiliates, and their agents and representatives, from any and all claims that it may now have or hereafter acquire against Seller or Seller’s Affiliates, or their agents or representatives for any cost, loss, liability, damage, expense, action or cause of action, whether foreseen or unforeseen, arising from or related to any construction defects, errors or omissions on or in the Properties, the presence of Hazardous Substances, or any other conditions (whether patent, latent or otherwise) affecting the Properties, except for claims against Seller based upon any obligations and liabilities of Seller expressly provided in this Agreement or the Leases. Purchaser further acknowledges and agrees that this release shall be given full force and effect according to each of its expressed terms and provisions, including, but not limited to, those relating to unknown and suspected claims, damages and causes of action. As a material covenant and condition of this Agreement, Purchaser agrees that in

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the event of any such construction defects, errors or omissions, the presence of Hazardous Substances, or any other conditions affecting the Properties, Purchaser shall have no claims against Seller, except for claims against Seller based upon any obligations and liabilities of Seller expressly provided in this Agreement.

(3)Seller shall not be liable or bound in any manner by any oral or written “setups” or information pertaining to the Properties or the rents furnished by Seller, Seller’s Affiliates, their agents or representatives, any real estate broker, including, without limitation, CITIGROUP, Trammell Crow Company (“TCC”), or other person.

(4)Each of Purchaser and Seller hereto acknowledge that it has consulted with its tax advisors in connection with the transactions contemplated by this Agreement, and each party hereto acknowledges that it has not relied upon any advice or opinions given by the other party or its attorneys or agents, nor has any party hereto guaranteed any particular tax consequences in connection with the transactions contemplated by this Agreement.

(5)Purchaser agrees that it will not initiate any inspection of the Properties by any Governmental Authorities but shall be entitled to contact the appropriate Governmental Authorities to obtain zoning letters.

(6)The provisions of this Section 14 shall survive the termination of this Agreement and/or the Closing.

15.BROKER. Purchaser and Seller each represent and warrant to the other that it has not dealt or negotiated with, or engaged on its own behalf or for its benefit, any broker, finder, consultant, advisor, or professional in the capacity of a broker or finder in connection with this Agreement or the transactions contemplated hereby other than Citigroup Global Markets, Inc. (“CITIGROUP”) and TCC. Purchaser acknowledges and represents that it has also dealt with Stan Johnson Company in connection with the transactions contemplated hereby. Each party hereby agrees to indemnify, defend and hold the other harmless from and against any and all claims, demands, causes of action, losses, costs and expenses (including reasonable attorneys’ fees, court costs and disbursements) arising from its breach of the foregoing representations. Seller agrees that it shall pay CITIGROUP and TCC in accordance with separate agreements between Seller and CITIGROUP and Seller and TCC. Purchaser agrees that it shall pay Stan Johnson Company in accordance with a separate agreement between Purchaser and Stan Johnson Company. The obligations and representations and warranties contained in this Section 15 shall survive the termination of this Agreement and/or the Closing.

16.CASUALTY; CONDEMNATION.

(1)If a “material” part (as hereinafter defined) of any of the Properties is damaged or destroyed by fire or other casualty, Seller shall notify Purchaser of such fact and, except as hereinafter provided, Purchaser shall have the option to delete such Property from this Agreement upon notice to Seller given not later than ten (10) days after receipt of Seller’s notice. Notwithstanding the foregoing, if a “material” part of any of the Properties is damaged or destroyed and Purchaser elects to delete such Property from this Agreement as provided above, Purchaser’s election shall be ineffective if within ten (10) days after Seller’s receipt of

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Purchaser’s election notice, Seller shall elect by notice to Purchaser to repair such damage or destruction and shall thereafter complete such repair within ninety (90) days after the then scheduled Closing Date at the time of Purchaser’s election. If Seller makes such election to repair, Seller shall have the right to adjourn the Closing Date one or more times for up to ninety (90) days in the aggregate in order to complete such repairs and shall have the right to retain all insurance proceeds which Seller may be entitled to receive as a result of such damage or destruction. If (i) Purchaser does not elect to delete such Property from this Agreement, (ii) Purchaser elects to delete such Property from this Agreement but such election is ineffective because Seller elects to repair such damage and completes such repair within such 120-day period provided above, or (iii) there is damage to or destruction of an “immaterial” part (“immaterial” is herein deemed to be any damage or destruction which is not “material”, as such term is hereinafter defined) of any of the Properties, Purchaser shall close title as provided in this Agreement and, at the Closing, Seller shall, unless Seller has repaired such damage or destruction prior to the Closing, apply the proceeds of any insurance collected by Seller in accordance with the terms of the Lease. A “material” part of any of the Properties shall be deemed to have been damaged or destroyed if the cost of repair or replacement shall be $250,000 or more as reasonably as estimated by Seller or if Tenant can terminate its Lease or abate rent thereunder, or the Property cannot be legally occupied. This provision shall not survive Closing or the termination of this Agreement.

(2)If, prior to the Closing Date, all or any “significant” portion (as hereinafter defined) of any of the Properties is taken by eminent domain or condemnation (or is the subject of a pending taking which has not been consummated) (in each case, a “Taking”), Seller shall notify Purchaser of such Taking and Purchaser shall have the option to delete such Property from this Agreement upon notice to Seller given not later than ten (10) days after receipt of Seller’s notice. If Purchaser does not elect to delete such Property from this Agreement, or if a Taking involves an “insignificant” portion (“insignificant” is herein deemed to be any taking which is not “significant”, as such term is herein defined) of any of the Properties, at the Closing Seller shall assign and turn over, and Purchaser shall be entitled to receive and keep, all awards or other proceeds for such Taking. A “significant” portion of any of the Properties means a Taking of twenty percent (20%) or more of any Property or if Tenant can terminate its Lease or abate rent thereunder, or the Property cannot be legally occupied. This provision shall not survive Closing or the termination of this Agreement.

(3)Notwithstanding anything contained in Section 16(1) and Section 16(2) to the contrary, if a Property is not deleted from this Agreement as provided in Section 16(1) or Section 16(2) and the eminent domain or condemnation proceeds payable with respect to the affected Property as a result of any Taking exceeds the portion of the Purchase Price allocated to such Property in Section 2(1) of this Agreement, Seller’s obligation to pay over to Purchaser those proceeds paid to Seller prior to the Closing shall be limited to the allocated portion of the amount of the Purchase Price and Seller shall be entitled to retain the remainder of such proceeds. To the extent that payment of all or any portion of such proceeds does not occur prior to the Closing, the parties agree that Seller shall be entitled to that portion of the proceeds in excess of the allocated portion of the Purchase Price,

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which agreement shall survive the Closing. To the extent that no proceeds are due to Seller in connection with Section 16(1) or 16(2) above, this Section 16(3) shall not survive the Closing.

(4)If a Property is deleted from this Agreement pursuant to Section 16(1) or Section 16(2) above, the Purchase Price shall be reduced by an amount equal to the portion of the Purchase Price allocated to such Property as set forth in Section 2(1) hereof.

17.REMEDIES.

(1)A.If the Closing fails to occur with respect to not more than two (2) of the Properties and such failure to close is on account of (i) Seller not eliminating all Unacceptable Encumbrances not waived by Purchaser (which failure to eliminate is due to circumstances beyond Seller’s reasonable control and is not due to Seller’s willful bad faith hereunder; provided, however, in no event shall Seller be required to bring any action or proceeding or make any payments or otherwise incur any expenses in order to eliminate any Unacceptable Encumbrances other than as set forth in Section 6(2)), or, in lieu thereof, arranging for title insurance reasonably acceptable to Purchaser insuring against enforcement of such Unacceptable Encumbrances against, or collection of the same out of, such Properties, or (ii) Seller’s failure, for whatever reason (other than Seller’s willful, bad faith default beyond applicable grace and notice periods hereunder), to perform its obligations under this Agreement, then after five (5) business days written notice from Purchaser and any additional time as is necessary so as to afford Seller a reasonable opportunity to cure, Purchaser, as its sole remedy for such failure of Seller to perform, shall (x) delete such specific Property(ies) from this Agreement, (y) receive a credit against the Purchase Price in an amount equal to the portion of the Purchase Price allocated to such Property(ies), and (z) proceed to Closing on the non-deleted Properties. In addition, Seller shall reimburse Purchaser for its actual, reasonable third party costs incurred in connection with each deleted Property, not to exceed $100,000. In the event that Seller’s failure to perform under this Agreement with respect to not more than two (2) Properties is, according to a judgment of a court of competent jurisdiction, willful and in bad faith, Purchaser will also be entitled to reimbursement of its damages up to $2,000,000 per Property, not to exceed $4,000,000 in the aggregate for both deleted Properties. Notwithstanding any provision of this Agreement to the contrary, in no event may Purchaser terminate this Agreement for any event of default or non-performance for which the stated remedy for Purchaser is to delete specific Property(ies) from this Agreement and receive a credit against the Purchase Price in an amount equal to the portion of the Purchase Price allocated to such Property(ies) (which includes the applicable Deposit Allocation). In the event that Seller fails, for reasons beyond Seller’s reasonable control, to close on the Canada Property under the Canada Contract, then the reference in the first and third sentences of this Section 17(1)A to “not more than two (2) Properties” shall be deemed changed to “not more than one (I) Property” and the reference in the third sentence of this Section 17(1)A to “$4,000,000” shall be deemed changed to “$2,000,000”.

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B.If the Closing fails to occur with respect to three (3) or more of the Properties and such failure to close is on account to Seller not eliminating all Unacceptable Encumbrances (which failure to eliminate is due to circumstances beyond Seller’s reasonable control and is not due to Seller’s willful bad faith hereunder; provided, however, in no event shall Seller be required to bring any action or proceeding or make any payments or otherwise incur any expenses in order to eliminate any Unacceptable Encumbrances other than as set forth in Section 6(2)) not waived by Purchaser, or, in lieu thereof, arranging for title insurance reasonably acceptable to Purchaser insuring against enforcement of such Unacceptable Encumbrances against, or collection of the same out of, the Properties, then after five (5) business days written notice from Purchaser and any additional time as is necessary so as to afford Seller a reasonable opportunity to cure, Purchaser, as its sole remedy for such failure of Seller, may terminate this Agreement by notice to Seller. If Purchaser elects to terminate this Agreement pursuant to this Section 17(1)B, then upon notice to Seller, this Agreement shall be terminated and neither party shall have any further rights, obligations or liabilities hereunder, except for those rights, obligations and liabilities which expressly survive the termination of this Agreement in the event that no Closing occurs hereunder (the “Termination Obligations”), and except that Purchaser shall be entitled to a return of the Deposit. Except as set forth in this Section 17(1), Purchaser hereby expressly waives, relinquishes and releases any right or remedy available to it at law, in equity or otherwise by reason of Seller not eliminating all Unacceptable Encumbrances not waived by Purchaser, or, in lieu thereof, arranging for title insurance reasonably acceptable to Purchaser insuring against enforcement of such Unacceptable Encumbrances against, or collection of the same out of, the Properties. In the event Seller fails, for reasons beyond Seller’s reasonable control, to close on the Canada Property under the Canada Contract, then the reference in the first sentence of this Section 17(1)B to “three (3) or more of the Properties” shall be deemed changed to “two (2) or more of the Properties.”

(2)A.If the Closing fails to occur with respect of three (3) or more of the Properties and such failure to close is on account of Seller’s breach of its performance obligations under this Agreement and is in a case where such failure to close is not covered in Section 17(1)(B) above, then after five (5) business days written notice from Purchaser and any additional time as is necessary so as to afford Seller a reasonable opportunity to cure, Purchaser, as its sole remedy for such breach of Seller of its performance obligations hereunder, may elect to either: (i) terminate this Agreement by notice to Seller; or (ii) seek specific performance from Seller, provided that in no event shall Seller be obligated to spend more than the lesser of (A) two (2%) percent of the Allocated Purchase Prices of the affected Properties or (B) $500,000 per affected Property (including, but not limited to, attorneys’ fees) to perform hereunder; provided further, that where Purchaser has elected to terminate the Agreement and where (and only in such instances where) Seller’s failure is willful and in bad faith according to a judgment of a court of competent jurisdiction, Purchaser will be entitled to reimbursement of its damages up to $2,000,000 per Property not to exceed in the aggregate with respect to all Properties, Five Million ($5,000,000) Dollars; and provided further, that where Purchaser has elected to terminate this Agreement and where (and only in such instances where) Seller’s failure is not willful and in

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bad faith according to a judgment of a court of competent jurisdiction, Purchaser shall be entitled to reimbursement of its damages up to an amount not to exceed in the aggregate with respect to all Properties, Two Million ($2,000,000) Dollars. In the event Seller fails, for reasons beyond Seller’s reasonable control, to close on the Canada Property under the Canada Contract, then the reference in the first sentence of this Section 17(1)B to “three (3) or more of the Properties” shall be deemed changed to “two (2) or more of the Properties”.

B.As a condition precedent to Purchaser exercising any right it may have to bring an action for specific performance as the result of Seller’s failure to perform its obligations hereunder, Purchaser must commence such an action by filing a Complaint within one hundred eighty (180) days after the occurrence of such default. Purchaser agrees that its failure to timely commence such an action for specific performance within such one hundred eighty (180) day period shall be deemed a waiver by it of its right to commence such an action. If Purchaser elects to terminate this Agreement pursuant to this Section 17(2), then this Agreement shall be terminated and neither party shall have any further rights, obligations or liabilities hereunder, except for the Termination Obligations and except that Purchaser shall be entitled to a return of the Deposit. Notwithstanding anything contained herein to the contrary, Purchaser may pursue any rights or remedies it may have against Seller with respect to the Termination Obligations subject to the express damages limits set forth in Section 17 (2)A above.

(3)If the Closing fails to occur by reason of Purchaser’s failure to perform its obligations hereunder, then Seller as its sole remedy, may elect to either (i) terminate this Agreement by notice to Purchaser and receive the Deposit, or (ii) seek specific performance from Purchaser, and (1) where (and only in such instances where) Purchaser’s failure is willful and in bad faith according to a judgment of a court of competent jurisdiction, Seller shall be entitled to reimbursement of its damages up to an amount not to exceed in the aggregate with respect to all Properties, Five Million ($5,000,000) Dollars, or (2) where Purchaser’s failure is not willful and in bad faith according to a judgment of a court of competent jurisdiction, Seller shall be entitled to reimbursement of its damages up to an amount not to exceed in the aggregate with respect to all Properties, Two Million ($2,000,000) Dollars. If Seller elects to terminate this Agreement pursuant to this Section 17(3), then upon notice to Purchaser, this Agreement shall be terminated, and neither party shall have any further rights, obligations or liabilities hereunder, except for the Termination Obligations and except Seller shall receive the Deposit notwithstanding any damage limits or waiver to the contrary. Nothing contained herein shall limit or restrict Seller’s ability to pursue any rights or remedies it may have against Purchaser with respect to the Termination Obligations subject to the express damages limits set forth in this Section 17(3).

(4)TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL ASSERT AND EACH HEREBY WAIVES ANY CLAIM AGAINST THE OTHER ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.

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(5)The provisions of this Section 17 shall survive the termination of this Agreement.

18.INTENTIONALLY DELETED.

19.INTENTIONALLY DELETED.

20.INTENTIONALLY DELETED.

21.ASSIGNMENT. This Agreement may not be assigned by Purchaser without the express written consent of Seller, which consent Seller shall have right to withhold or grant in its sole and absolute discretion; provided, however, that Purchaser shall be entitled, upon giving prior written notice to Seller, to assign its rights under this Agreement to Purchaser’s Designees listed in Section 2(1) and/or to Inland Western Retail Real Estate Trust, Inc. (the “REIT”); provided that the Purchaser’s Designees and the REIT, and any entity owned or controlled by the Purchaser’s Designees or the REIT, as well as any entity that has a 15% or greater interest in any of the Purchaser’s Designees or the REIT, is not a Significant Competitor, as defined in the Lease. The entity to whom Purchaser assigns this Agreement as permitted by this Section 21 shall become a “Purchaser” under this Agreement, but such an assignment and assumption shall not relieve Inland Real Estate Acquisitions, Inc. of the obligations of the “Purchaser” under this Agreement.

22.INTENTIONALLY DELETED.

23.NOTICES.

(1)All notices, elections, consents, approvals, demands, objections, requests or other communications which Seller, Purchaser or Escrow Agent may be required or desire to provide pursuant to, under or by virtue of this Agreement must be in writing and sent by (i) a prepaid nationally recognized overnight courier service, and any such notice shall be deemed received one (1) business day after delivery to a nationally recognized courier service specifying overnight delivery, (ii) by confirmed facsimile immediately followed by overnight delivery, or (iii) U.S. certified or registered mail, return receipt requested, postage prepaid, addressed as follows:

If to Seller:

FRC West Property, L.L.C.

c/o American Express Company

200 Vesey Street

New York, New York 10285

Attention: Jeffrey S. Furman, Vice President Global Real Estate

Facsimile: 212/640-9685

American Express Travel Related Services Company, Inc.

c/o American Express Company

200 Vesey Street

New York, New York 10285

Attention: Jeffrey S. Furman, Vice President Global Real Estate

Facsimile: 212/640-9685

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IDS Property Casualty Insurance Company

c/o American Express Company

200 Vesey Street

New York, New York 10285

Attention: Jeffrey S. Furman, Vice President Global Real Estate

Facsimile: 212/640-9685

With copies to:

Sills Cummis Epstein & Gross

One Riverfront Plaza

Newark, New Jersey 07102

Attention:       Mark S. Levenson, Esq.

Facsimile:       973-643-6500

If to Purchaser:

Inland Real Estate Acquisitions, Inc.

2901 Butterfield Road

Oak Brook, Illinois 60523

Attention: G. Joseph Cosenza, President

Facsimile: 630-218-4935

With copies to:

Inland Real Estate Acquisitions, Inc.

2901 Butterfield Road

Oak Brook, Illinois 60523

Attention:       Gary Pechter, Esq.

Facsimile:       630-218-4900

If to Escrow Agent:

Chicago Title and Trust Company

171 North Clark Street

3^rd Floor, Div. II

Chicago, Illinois 60601-3294

Attention: Nancy Castro

Facsimile: 312-223-2108

(2)Seller, Purchaser or Escrow Agent may designate another addressee or change its address for notices and other communications hereunder by a notice given to the other parties in the manner provided in this Section 23(2). A notice or other communication sent in compliance with the provisions of this Section 23 shall be deemed received when actually received, as evidenced by the return receipt, or when delivery is first refused. From time to time any party may designate a new address for purposes of notice hereunder by giving two (2) days written notice thereof to each of the other parties hereto. All notices given hereunder shall be irrevocable unless expressly specified otherwise.

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24.PROPERTY INFORMATION AND CONFIDENTIALITY.

(1)Purchaser agrees that, prior to the Closing, all Property Information shall be kept strictly confidential and shall not, without the prior written consent of Seller, be disclosed by Purchaser or Purchaser’s Representatives, in any manner whatsoever, in whole or in part, and will not be used by Purchaser or Purchaser’s Representatives, directly or indirectly, for any purpose other than evaluating the Properties. Moreover, Purchaser agrees that, prior to the Closing, the Property Information will be transmitted only to Purchaser’s Representatives who need to know the Property Information for the purpose of evaluating the Properties, and who are informed by the Purchaser of the confidential nature of the Property Information. The provisions of this Section 24(1) shall in no event apply to Property Information which is a matter of public record and shall not prevent Purchaser from complying with any law, including, without limitation, governmental regulatory, disclosure, tax and reporting requirements, provided that prior to Purchaser disclosing any Property Information as set forth in this sentence, Purchaser shall notify, and consult with, Seller regarding such disclosure. Purchaser shall indemnify and hold Seller and Seller’s Affiliates harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, without limitation, attorneys’ fees and disbursements) suffered or incurred by Seller or any of Seller’s Affiliates and arising out of or in connection with a breach by Purchaser or Purchaser’s Representatives of the provisions of this Section 24(1).

(2)Purchaser and Seller, for the benefit of each other, hereby agree that between the date hereof and the Closing Date, they will not release or cause or permit to be released any press notices, publicity (oral or written), advertising or promotional materials relating to, or otherwise announce or disclose or cause or permit to be announced or disclosed, in any manner whatsoever, the terms, conditions or substance of this Agreement or the transactions contemplated herein, without first obtaining the written consent of the other party hereto. It is understood that the foregoing shall not preclude either party from discussing the substance or any relevant details of the transactions contemplated in this Agreement, subject to the terms of Section 24(1), with any of its attorneys, accountants, professional consultants, potential lenders or potential investors in a proposed Rule 144A offering, as the case may be, or prevent either party hereto from complying with any law, including, without limitation, governmental regulatory, disclosure, tax and reporting requirements or prevent either party from making any disclosure required to obtain any governmental consents or other third party consents that are required to be obtained prior to the Closing or that are necessary in order to pursue the subdivisions of the AESC-SLC Property and the AEPC Property, provided that prior to Purchaser releasing or otherwise disclosing any information as set forth in this sentence, Purchaser shall notify, and consult with, Seller regarding such release or disclosure. Purchaser shall indemnify and hold Seller harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, without limitation, attorneys’ fees and disbursements) suffered or incurred and arising out of or in connection with a breach by Purchaser of the provisions of this Section 24(2). Notwithstanding the foregoing, Seller may make disclosures (i) that it believes are desirable to make to its employees in explanation of this transaction and in answering questions that Seller’s employees may raise and (ii) that Seller believes are necessary to make under the Securities Exchange Act of 1934 (including the

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filing of this Agreement as an exhibit to any filing required or otherwise necessary under such act). Further, Seller shall be entitled to issue a press release pertaining to the transactions contemplated by this Agreement upon (x) the signing of this Agreement and (y) the closing of transactions contemplated hereby (or any one of them); provided that Seller shall give Purchaser an opportunity to review such press release(s) before same are issued.

(3)In the event this Agreement is terminated, Purchaser and Purchaser’s Representatives shall either (i) promptly deliver to Seller all originals and copies of the Property Information referred to in clause (i) of Section 24(4) in the possession of Purchaser and Purchaser’s Representatives or (ii) confirm in writing that such Property Information has been destroyed, at Purchaser’s expense. In the event Purchaser or Purchaser’s Representatives fail to comply with the preceding sentence within ten (10) business days after this Agreement is terminated, Purchaser shall pay Seller $10,000 for each day after the tenth business day that Seller has not received materially all Property Information and/or the confirmation of destruction, and Purchaser shall indemnify, defend and hold Seller harmless from and against all losses, damages and claims arising from Purchaser’s or Purchaser’s Representatives’ failure.

(4)As used in this Agreement, the term “Property Information” shall mean (i) all information and documents in any way relating to the Properties, the operation thereof, the sale thereof or the leasing thereof furnished to, or otherwise made available for review by, Purchaser or its directors, officers, employees, affiliates, partners, brokers, agents or other representatives, including, without limitation, attorneys, accountants, contractors, consultants, engineers and financial advisors (collectively, “Purchaser’s Representatives”), by Seller or any of Seller’s Affiliates, or their agents or representatives, including, without limitation, their contractors, engineers, attorneys, accountants, consultants, brokers or advisors, and (ii) all analyses, compilations, data, studies, reports or other information or documents prepared or obtained by Purchaser or Purchaser’s Representatives containing or based, in whole or in part, on the information or documents described in the preceding clause (i), or otherwise reflecting their review or investigation of the Properties.

(5)In addition to any other remedies available to Seller, Seller shall have the right to seek equitable relief, including, without limitation, injunctive relief or specific performance, against Purchaser or Purchaser’s Representatives in order to enforce the provisions of this Section 24.

(6)Notwithstanding anything contained herein to the contrary, Purchaser shall continue to abide by that certain letter agreement regarding confidentiality between American Express Company and Purchaser, dated as of August 9, 2004.

(7)The provisions of this Section 24 shall survive the termination of this Agreement and/or the Closing.

25.MISCELLANEOUS.

(1)This Agreement shall not be altered, amended, changed, waived, terminated or otherwise modified in any respect or particular, and no consent or approval

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required pursuant to this Agreement shall be effective, unless the same shall be in writing and signed by or on behalf of the party to be charged.

(2)This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and to their respective heirs, executors, administrators, successors and permitted assigns. This Agreement is an agreement solely for the benefit of Seller and Purchaser (and their permitted successors and/or assigns). No other person, party or entity shall have any rights hereunder nor shall any other person, party or entity be entitled to rely upon the terms, covenants and provisions contained herein. The provisions of this Section 25(2) shall survive the Closing.

(3)All prior statements, understandings, representations and agreements between the parties, oral or written, are superseded by and merged in this Agreement, which alone fully and completely expresses the agreement between them in connection with this transaction and which is entered into after full investigation, neither party relying upon any statement, understanding, representation or agreement made by the other not embodied in this Agreement or in the Lease. This Agreement shall be given a fair and reasonable construction in accordance with the intentions of the parties hereto, and without regard to or aid of canons requiring construction against Seller or the party drafting this Agreement.

(4)Except as otherwise expressly provided herein, Purchaser’s acceptance of the Deeds shall be deemed a discharge of all of the obligations of Seller hereunder and all of Seller’s representations, warranties, covenants and agreements herein shall merge in the documents and agreements executed at the Closing and shall not survive the Closing.

(5)Purchaser agrees that it does not have and will not have any claims or causes of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, American Express Company, American Express Financial Corporation, FRC, TRS, IDS and Ontario, Inc. or any officer, director, employee, trustee, shareholder, partner or principal of any such parent, subsidiary or other affiliate (collectively, “Seller’s Affiliates”), arising out of or in connection with this Agreement or the transactions contemplated hereby. Purchaser agrees to look solely to the Properties for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to enforce any personal obligation against any of Seller’s Affiliates with respect to any matters arising out of or in connection with this Agreement or the transactions contemplated hereby. Without limiting the generality of the foregoing provisions of this Section 25(5), Purchaser hereby unconditionally and irrevocably waives any and all claims and causes of action of any nature whatsoever it may now or hereafter have against Seller’s Affiliates, and hereby unconditionally and irrevocably releases and discharges Seller’s Affiliates from any and all liability whatsoever which may now or hereafter accrue in favor of Purchaser against Seller’s Affiliates, in connection with or arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 25(5) shall survive the termination of this Agreement and/or the Closing.

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(6)Seller and Purchaser agree that, wherever this Agreement provides that either Seller or Purchaser must send or give any notice, make an election or take some other action within a specific time period in order to exercise a right or remedy it may have hereunder, time shall be of the essence with respect to the taking of such action, and if either Seller or Purchaser fails to take such action within the applicable time period such failure shall be deemed to be an irrevocable waiver by that Seller or Purchaser of such right or remedy.

(7)No failure or delay of either party in the exercise of any right or remedy given to such party hereunder or the waiver by any party of any condition hereunder for its benefit (unless the time specified herein for exercise of such right or remedy has expired) shall constitute a waiver of any other or further right or remedy nor shall any single or partial exercise of any right or remedy preclude other or further exercises thereof or any other right or remedy. No waiver by either party of any breach hereunder or failure or refusal by the other party to comply with its obligations shall be deemed a waiver of any other or subsequent breach, failure or refusal to so comply.

(8)Neither this Agreement nor any memorandum thereof shall be recorded and any attempted recordation hereof shall be void and shall constitute a default.

(9)Delivery of this Agreement shall not be deemed an offer and neither Seller nor Purchaser shall have any rights or obligations hereunder unless and until both parties have signed and delivered an original of this Agreement. This Agreement may be executed in one or more counterparts, each of which so executed and delivered shall be deemed an original, but all of which taken together shall constitute but one and the same instrument. This Agreement may also be executed by facsimile immediately followed by overnight delivery.

(10)Each of the Exhibits and Schedules referred to herein and attached hereto is incorporated herein by this reference.

(11)The caption headings in this Agreement are for convenience only and are not intended to be a part of this Agreement and shall not be construed to modify, explain or alter any of the terms, covenants or conditions herein contained.

(12)This Agreement shall be interpreted and enforced in accordance with the laws of the state of New York without reference to principles of conflicts of laws.

(13)If any provision of this Agreement shall be unenforceable or invalid, the same shall not affect the remaining provisions of this Agreement and to this end the provisions of this Agreement are intended to be and shall be severable. Notwithstanding the foregoing sentence, if (i) any provision of this Agreement is finally determined by a court of competent jurisdiction to be unenforceable or invalid in whole or in part, (ii) the opportunity for all appeals of such determination have expired, and (iii) such unenforceability or invalidity alters the substance of this Agreement (taken as a whole) so as to deny either party, in a material way, the realization of the intended benefit of its bargain, such party may terminate this Agreement within thirty (30) days after the final determination by notice to the other. If such party so elects to terminate this Agreement, then this Agreement shall be terminated and neither party shall have any further rights,

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obligations or liabilities hereunder, except for the Surviving Obligations, and except that Purchaser shall be entitled to a return of the Deposit (together with all interest accrued thereon, if any) subject to Section 24(3).

(14)SELLER AND PURCHASER HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, UNCONDITIONALLY AND IRREVOCABLY WAIVE ANY RIGHT EACH MAY HAVE TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER ARISING IN TORT OR CONTRACT OR OTHERWISE) BROUGHT BY EITHER AGAINST THE OTHER ON ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR ANY OTHER DOCUMENT EXECUTED AND DELIVERED BY EITHER PARTY IN CONNECTION HEREWITH (INCLUDING ANY ACTION TO RESCIND OR CANCEL THIS AGREEMENT ON THE GROUNDS THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE).

(15)With respect to the AESC – F Property, it should be noted that Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county health department.

(16)Intentionally Omitted.

(17)Purchaser acknowledges that a default by the Seller under one or more of the Leases shall not give rise to any remedies under this Agreement, including, without limitation, any right to receive back all or any portion of the Purchase Price.

(18)To extent that under any Lease, Seller, as lessee (“Lessee”), incurs damages (including but not limited to fees and expenses of legal counsel) under the title representation contained in Section 20.1(1) of the Leases and Purchaser, as lessor, under the Lease (“Lessor”) would be entitled to pursue a claim with respect to such matter under the title policy received in connection with the Closing (without waiving any of its rights under such policy except for a reduction in the policy amount), Lessor shall pursue such claim under the title policy for the amount of the damages and shall remit to Lessee the amount of any such damages that has suffered, provided that (y) Lessee pays all of Lessor’s costs and expenses incurred in connection with Lessor’s pursuit of such claim and (z) Lessee first pursues such claim under any existing title policy as the former owner. To the extent that the Title Company that issues the title policies in connection with the Closing pays any such claim made by Lessor, Lessee shall indemnify the Lessor against any damages resulting from the reduction of the title coverage under the Lessor’s title policy upon the payment of such claim. The provisions of this Section 25(18) shall survive Closing.

(19)The following Sections shall survive the Closing and/or the termination of this Agreement as more particularly set forth in such Section: 2(5), 3, 8, 9, 10(3), 14,

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15, 16(3), 17, 24, 25(2), 25(5), 25(18) and 25(19) (collectively, the “Surviving Obligations”).

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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first above written.

SELLER
FRC WEST PROPERTY, L.L.C.
		By:  American Express Travel Related
		Services Company, Inc.
		By:		/s/ David L. Yowan
				Name:	David L. Yowan
				Title:	Treasurer
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.
By:	/s/ David L. Yowan
Name:			David L. Yowan
Title:			Treasurer
IDS PROPERTY CASUALTY INSURANCE COMPANY
By:	/s/ David L. Yowan
Name:			David L. Yowan
Title:			[ILLEGIBLE]

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PURCHASER
INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
By:	/s/ G. Joseph Cosenza
Name:		G. Joseph Cosenza
Title:		President

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EX-10.457

Exhibit 10.457

LOAN TERMS TABLE

Note Date: December 16, 2004	MERS No.: 8000101-0000000565-1
Borrower: INLAND WESTERN PHOENIX 31ST AVENUE, L.L.C., a Delaware limited liability company
Original Principal Amount: $31,860,000.00	Loan No.: 58621
Initial Note Rate: 4.2675%	Servicing No.: 3190683
Revised Note Rate: As defined in Article 2	Borrower’s TIN: 20-1907908
Monthly Payment Amount: As defined in Article 1(a)	Optional Prepayment Date: January 1, 2010
Lockout Period: From the date hereof through and including December 31, 2006
Maturity Date: January 1, 2015

PROMISSORY NOTE

FOR VALUE RECEIVED Borrower, having its principal place of business at 2901 Butterfield Road, Oak Brook, IL 60523, hereby unconditionally promises to pay to the order of BANK OF AMERICA, N.A., a national banking association, having an address at 214 North Tryon Street, Charlotte, North Carolina 28255 (“Lender”), the Original Principal Amount, in lawful money of the United States of America with interest thereon to be computed from the date of this Note at the Note Rate (as defined below), and to be paid in accordance with the terms set forth below. The Loan Terms Table set forth above is a part of this Note and all terms used in this Note which are defined in the Loan Terms Table shall have the meaning set forth therein. All capitalized terms not defined herein shall have the respective meanings set forth in that certain Loan Agreement dated the date hereof between Lender and Borrower (the ‘‘Loan Agreement”).

Article 1 - PAYMENT TERMS; MANNER OF PAYMENT

(a)           Borrower hereby agrees to pay sums due under this Note as follows: an initial payment is due on the Closing Date for interest from the Closing Date through and including the last day of the calendar month in which the Closing Date occurs; and thereafter, except as may be adjusted in accordance with the last sentence of Section l(b), consecutive monthly installments of interest only in an amount calculated in accordance with Article 2 below (such amount, the “Monthly Payment Amount”) shall be payable pursuant to the terms hereof on the first (1st) day of each month beginning on February 1, 2005 (each such date through and including the Maturity Date, a “Scheduled Payment Date”) until the entire indebtedness evidenced hereby is fully paid, except that any remaining indebtedness, if not sooner paid, shall be due and payable on the Maturity Date.  In addition to the foregoing, commencing on the Optional Prepayment Date and continuing on each Scheduled Payment Date thereafter, Borrower hereby agrees to pay all Excess Cash (as defined in the Loan Agreement) until the principal amount of this Note is paid in full, provided, however, the entire Debt, including all Accrued Interest (defined below), shall be due on the Maturity Date.

(b)           Each payment by Borrower hereunder shall be made to P.O. Box 65585, Charlotte, NC 28265-0585, or at such other place as Lender may designate from time to time in

writing. Whenever any payment hereunder shall be stated to be due on a day which is not a Business Day, such payment shall be made on the first Business Day preceding such scheduled due date. All payments made by Borrower hereunder or under the other Loan Documents shall be made irrespective of, and without any deduction for, any setoff, defense or counterclaims.

(c)           Provided no Event of Default has occurred, (i) each Monthly Payment Amount made as scheduled on this Note shall be applied first to the payment of interest computed at the Initial Note Rate, and the balance toward the reduction of the principal amount of this Note, and (ii) each payment of Excess Cash made as required on this Note shall be applied first to the reduction of the principal amount of this Note until paid in full, and the balance to Accrued Interest until paid in full. All voluntary and involuntary prepayments on this Note shall be applied, to the extent thereof, to accrued but unpaid interest on the amount prepaid, to the remaining Principal Amount, and any other sums due and unpaid to the Lender in connection with the Loan, in such manner and order as Lender may elect in its sole and absolute discretion, including, but not limited to, application to principal installments in inverse order of maturity. Following the occurrence of an Event of Default, any payment made on this Note shall be applied to accrued but unpaid interest, late charges, accrued fees, the unpaid principal amount of this Note, and any other sums due and unpaid to Lender in connection with the Loan, in such manner and order as Lender may elect in its sole and absolute discretion.

(d)           Remittances in payment of any part of the indebtedness other than in the required amount in immediately available U.S. funds shall not, regardless of any receipt or credit issued therefor, constitute payment until the required amount is actually received by the holder hereof in immediately available U.S. funds and shall be made and accepted subject to the condition that any check or draft may be handled for collection in accordance with the practices of the collecting bank or banks.

Article 2 - INTEREST

The Loan shall bear interest at a fixed rate per annum equal to the Note Rate. The “Note Rate” shall mean (a) from the date of this Note through but excluding the Optional Prepayment Date, the Initial Note Rate, and (b) from and after the Optional Prepayment Date through and including the date this Note is paid in full, the Revised Note Rate. The “Revised Note Rate” shall mean a rate per annum equal to the sum of (x) two percent (2.00%) and (y) the greater of (i) the Initial Note Rate and (ii) the sum of the Treasury Rate plus five percent (5.00%). The “Treasury Rate” shall mean the yield per annum calculated by the linear interpolation of yields, as reported in the Federal Reserve Statistical Release H.15 – Selected Interest Rates under the heading “US government securities” and the subheading “Treasury constant maturities” for the week ending prior to the Optional Prepayment Date, of U.S. Treasury constant maturities with maturity dates (one longer and one shorter) most nearly approximating the Maturity Date. In the event H.15 is no longer published, Lender in its reasonable discretion shall select a comparable publication to determine the Treasury Rate.  From and after the Optional Prepayment Date, interest in excess of the Initial Note Rate shall accrue and be added to the Debt and shall earn interest at the Revised Note Rate to the extent permitted by applicable law (“Accrued Interest”). Interest shall be computed on the basis of a three hundred sixty (360) day year consisting of twelve (12) months of thirty (30) days each. Except as otherwise set forth herein or in the other Loan Documents, interest shall be paid in arrears.

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Article 3 - DEFAULT AND ACCELERATlON

The Debt shall without notice become immediately due and payable at the option of Lender if any payment required in this Note is not paid prior to the tenth (10^th) day following the date when due or if not paid on the Maturity Date or on the happening of any other Event of Default.

Article 4 - PAYMENTS AFTER DEFAULT

Upon the occurrence and during the continuance of an Event of Default, interest on the outstanding principal balance of the Loan and, to the extent permitted by law, overdue interest and other amounts due in respect of the Loan shall accrue at a rate per annum equal to the lesser of (a) the maximum rate permitted by applicable law, or (b) four percent (4%) above the Note Rate (such rate, the “Default Rate”). Interest at the Default Rate shall be computed from the occurrence of the Event of Default until the earlier of (i) the actual receipt and collection of the Debt (or that portion thereof that is then due) and (ii) the cure of such Event of Default. To the extent permitted by applicable law, interest at the Default Rate shall be added to the Debt, shall itself accrue interest at the same rate as the Loan and shall be secured by the Security Instrument. This Article shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of the occurrence of any Event of Default; the acceptance of any payment from Borrower shall not be deemed to cure or constitute a waiver of any Event, of Default; and Lender retains its rights under this Note, the Loan Agreement and the other Loan Documents to accelerate and to continue to demand payment of the Debt upon the happening of and during the continuance any Event of Default, despite any payment by Borrower to Lender.

Article 5 - PREPAYMENT

Except as otherwise expressly permitted by this Article 5, no voluntary prepayments, whether in whole or in part, of the Loan or any other amount at any time due and owing under this Note can be made by Borrower or any other Person without the express written consent of Lender.

(a)Lockout Period.  Borrower shall have no right to make, and Lender shall have no obligation to accept, any voluntary prepayment, whether in whole or in part, of the Loan, or any other amount under this Note or the other Loan Documents, at any time during the Lockout Period. At any time following the expiration of the Lockout Period, the principal balance of this Note may be voluntarily prepaid in whole, but not in part, upon the satisfaction of the following conditions:

(i)no Default shall exist under any of the Loan Documents;

(ii)not less than sixty (60) (but not more than ninety (90)) days prior written notice shall be given to Lender specifying a date on which the prepayment shall occur such date being a Scheduled Payment Date (the “Prepayment Date”);

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(iii)          Borrower has paid to Lender all accrued and unpaid interest on the Loan through and including the Prepayment Date together with all other sums due under this Note and the other Loan Documents; and

(iv)          Borrower has paid to Lender a prepayment premium in an amount equal to Yield Maintenance (as defined and calculated in accordance with Section 5(b) below); provided, however, that in the event of a voluntary prepayment made by Borrower within sixty (60) days of the Optional Prepayment Date, there shall be no prepayment premium required to be paid by Borrower.

(b)           Involuntary Prepayment.  In the event of any involuntary prepayment of the Loan or any other amount under this Note, whether in whole or in part, in connection with or following Lender’s acceleration of this Note or otherwise, and whether the Security Instrument is satisfied or released by foreclosure (whether by power of sale or judicial proceeding), deed in lieu of foreclosure or by any other means, including, without limitation, repayment of the Loan by Borrower or any other Person pursuant to any statutory or common law right of redemption, Borrower shall pay any portion of the principal balance of the Loan prepaid (together with all interest accrued and unpaid thereon and, in the event the prepayment is made on a date other than a Scheduled Payment Date, a sum equal to the amount of interest which would have accrued under this Note on the amount of such prepayment if such prepayment had occurred on the next Scheduled Payment Date).

As used herein, “Yield Maintenance” means a prepayment premium in an amount equal to the greater of equal to the greater of (i) 1% of the portion of the Loan being prepaid, and (ii) the present value as of the Prepayment Calculation Date of a series of monthly payments over the remaining term of the Loan through and including the Optional Prepayment Date each equal to the amount of interest which would be due on the portion of the Loan being prepaid assuming a per annum interest rate equal to the excess of the Note Rate over the Reinvestment Yield, and discounted at the Reinvestment Yield. As used herein, “Reinvestment Yield” means the yield calculated by the linear interpolation of the yields, as reported in the Federal Reserve Statistical Release H.15-Selected Interest Rates under the heading “U.S. government securities” and the sub-heading “Treasury constant maturities” for the week ending prior to the Prepayment Calculation Date, of the U.S. Treasury constant maturities with maturity dates (one longer and one equal to or shorter) most nearly approximating the Optional Prepayment Date, and converted to a monthly compounded nominal yield. In the event Release H.15 is no longer published, Lender shall select a comparable publication to determine the Reinvestment Yield. The “Prepayment Calculation Date” shall mean, as applicable, the date on which (i) Lender applies any prepayment to the reduction of the outstanding principal amount of this Note, (ii) Lender accelerates the Loan, in the case of a prepayment resulting from acceleration, or (iii) Lender applies funds held under any Reserve Account, in the case of a prepayment resulting from such an application (other than in connection with acceleration of the Loan).

(c)           Insurance Proceeds and Awards; Excess Interest.  Notwithstanding any other provision herein to the contrary, and provided no Default exists, Borrower shall not be required to pay any prepayment premium in connection with any prepayment occurring solely as a result of (i) the application of Insurance Proceeds or Awards pursuant to the terms of the Loan

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Documents, or (ii) the application of any interest in excess of the maximum rate permitted by applicable law to the reduction of the Loan.

(d)           Open Prepayment Period.  Borrower may voluntarily prepay (without premium) this Note on a Scheduled Payment Date (i) in whole (but not in part) during the sixty (60) days prior to the Optional Prepayment Date, and (ii) in whole or in part from the Optional Prepayment Date through and including the date this Note is paid in full, in each case, upon giving Lender at least sixty (60) days (but not more than ninety (90) days) prior written notice.  Lender shall accept a prepayment pursuant to this Section 5(d) on a day other than a Scheduled Payment Date provided that, in addition to payment of the full outstanding principal balance of this Note, Borrower pays to Lender a sum equal to the amount of interest which would have accrued on this Note if such prepayment occurred on the next Scheduled Payment Date.

(e)           Limitation on Partial Prepayments. In no event shall Lender have any obligation to accept a partial prepayment.

Article 6 - - SECURITY

This Note is secured by the Security Instrument and the other Loan Documents. All of the terms, covenants and conditions contained in the Loan Agreement, the Security Instrument and the other Loan Documents are hereby made part of this Note to the same extent and with the same force as if they were fully set forth herein.

Article 7 - USURY SAVINGS

This Note is subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the principal balance of the Loan at a rate which could subject Lender to either civil or criminal liability as a result of being in excess of the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by this Note and as provided for herein or in the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan (such rate, the “Maximum Legal Rate”). If, by the terms of this Note or the other Loan Documents, Borrower is at any time required or obligated to pay interest on the principal balance due hereunder at a rate in excess of the Maximum Legal Rate, the Note Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced to the Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. All sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the sums due under the Loan, shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the Loan does not exceed the Maximum Legal Rate of interest from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.

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Article 8 - LATE PAYMENT CHARGE

If any principal or interest payment is not paid by Borrower before the tenth (10th) day after the date the same is due (or such greater period, if any, required by applicable law), Borrower shall pay to Lender upon demand an amount equal to the lesser of four percent (4%) of such unpaid sum or the maximum amount permitted by applicable law in order to defray the expense incurred by Lender in handling and processing such delinquent payment and to compensate Lender for the loss of the use of such delinquent payment, provided however, Borrower shall not be required to pay Lender a late charge in connection with the final payment under the loan. Any such amount shall be secured by the Security Instrument and the other Loan Documents to the extent permitted by applicable law.

Article 9 - NO ORAL CHANGE

This Note may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Borrower or Lender, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.

Article 10 - WAIVERS

BORROWER AND ALL OTHERS WHO MAY BECOME LIABLE FOR THE PAYMENT OF ALL OR ANY PART OF THE DEBT DO HEREBY SEVERALLY WAIVE PRESENTMENT AND DEMAND FOR PAYMENT, NOTICE OF DISHONOR, NOTICE OF INTENTION TO ACCELERATE, NOTICE OF ACCELERATION, PROTEST AND NOTICE OF PROTEST AND NON-PAYMENT AND ALL OTHER NOTICES OF ANY KIND EXCEPT AS PROVIDED IN THE LOAN AGREEMENT. NO RELEASE OF ANY SECURITY FOR THE DEBT OR EXTENSION OF TIME FOR PAYMENT OF THIS NOTE OR ANY INSTALLMENT HEREOF, AND NO ALTERATION, AMENDMENT OR WAIVER OF ANY PROVISION OF THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS MADE BY AGREEMENT BETWEEN LENDER OR ANY OTHER PERSON SHALL RELEASE, MODIFY, AMEND, WAIVE, EXTEND, CHANGE, DISCHARGE, TERMINATE OR AFFECT THE LIABILITY OF BORROWER, AND ANY OTHER PERSON WHO MAY BECOME LIABLE FOR THE PAYMENT OF ALL OR ANY PART OF THE DEBT, UNDER THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS. NO NOTICE TO OR DEMAND ON BORROWER SHALL BE DEEMED TO BE A WAIVER OF THE OBLIGATION OF BORROWER OR OF THE RIGHT OF LENDER TO TAKE FURTHER ACTION WITHOUT FURTHER NOTICE OR DEMAND AS PROVIDED FOR IN THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS. IF BORROWER IS A LIMITED LIABILITY COMPANY, THE AGREEMENTS HEREIN CONTAINED SHALL REMAIN IN FORCE AND BE APPLICABLE, NOTWITHSTANDING ANY CHANGES IN THE INDIVIDUALS COMPRISING THE LIMITED LIABILITY COMPANY, AND THE TERM “BORROWER,” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATE OR SUCCESSOR LIMITED LIABILITY COMPANY, BUT ANY PREDECESSOR LIMITED LIABILITY COMPANY AND ITS MEMBERS SHALL NOT THEREBY BE RELEASED FROM ANY LIABILITY. IF BORROWER IS A PARTNERSHIP, THE AGREEMENTS HEREIN CONTAINED SHALL REMAIN IN FORCE AND BE

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APPLICABLE, NOTWITHSTANDING ANY CHANGES IN THE INDIVIDUALS COMPRISING THE PARTNERSHIP, AND THE TERM “BORROWER,” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATE OR SUCCESSOR PARTNERSHIP, BUT ANY PREDECESSOR PARTNERSHIP AND THEIR PARTNERS SHALL NOT THEREBY BE RELEASED FROM ANY LIABILITY. IF BORROWER IS A CORPORATION, THE AGREEMENTS CONTAINED HEREIN SHALL REMAIN IN FULL FORCE AND BE APPLICABLE NOTWITHSTANDING ANY CHANGES IN THE SHAREHOLDERS COMPRISING, OR THE OFFICERS AND DIRECTORS RELATING TO, THE CORPORATION, AND THE TERM “BORROWER” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATIVE OR SUCCESSOR CORPORATION, BUT ANY PREDECESSOR CORPORATION SHALL NOT BE RELIEVED OF LIABILITY HEREUNDER. (NOTHING IN THE FOREGOING SENTENCE SHALL BE CONSTRUED AS A CONSENT TO, OR A WAIVER OF, ANY PROHIBITION OR RESTRICTION ON TRANSFERS OF INTERESTS IN SUCH BORROWING ENTITY WHICH MAY BE SET FORTH IN THE LOAN AGREEMENT, THE MORTGAGE OR ANY OTHER LOAN DOCUMENTS.) IF BORROWER CONSISTS OF MORE THAN ONE PERSON OR PARTY, THE OBLIGATIONS AND LIABILITIES OF EACH PERSON OR PARTY SHALL BE JOINT AND SEVERAL.

Article 11 - - TRIAL BY JURY

BORROWER AND LENDER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS NOTE, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF LENDER AND BORROWER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER AND LENDER.

Article 12 - - TRANSFER

Upon the transfer of this Note, Borrower hereby waiving notice of any such transfer, Lender may deliver all the collateral mortgaged, granted, pledged or assigned pursuant to the Loan Documents, or any part thereof, to the transferee who shall thereupon become vested with all the rights herein or under applicable law given to Lender with respect thereto, and Lender shall thereafter forever be relieved and fully discharged from any liability or responsibility in the matter arising from events thereafter occurring; but Lender shall retain all rights hereby given to it with respect to any liabilities and the collateral not so transferred.

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Article 13 - - EXCULPATION

The provisions of Article 15 of the Loan Agreement are hereby incorporated by reference into this Note to the same extent and with the same force as if fully set forth herein.

Article 14 - GOVERNING LAW

This Note shall in all respects be governed, construed, applied and enforced in accordance with the laws of the state in which the Property is located and any applicable federal laws of the United States of America.

Article 15 - - NOTICES

All notices or other written communications hereunder shall be delivered in accordance with Article 16 of the Loan Agreement.

Article 16 - TAXPAYER IDENTIFICATION NUMBER

This Note provides for the Borrower’s federal taxpayer identification number to be inserted in the Loan Terms Table on the first page of this Note. If such number is not available at the time of execution of this Note or is not inserted by the Borrower, the Borrower hereby authorizes and directs the Lender to fill in such number on the first page of this Note when the Borrower provides to Lender, advises the Lender of, or the Lender otherwise obtains, such number.

Article 17 - ATTORNEYS’ FEES

Any provisions in this Note or elsewhere in the Loan Documents providing for the payment of “attorneys’ fees,” “reasonable attorneys’ fees” or words of similar import, shall mean actual attorneys’ fees and paralegal fees incurred based upon the usual and customary fees or hourly rates of the attorneys and paralegals involved without giving effect to any statutory presumption that may then be in effect.

[NO FURTHER TEXT ON THIS PAGE]

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IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and year first above written.

INLAND WESTERN PHOENIX 31ST AVENUE, L.L.C., a Delaware limited liability company
By:	Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
	By:	/s/ Debra A. Palmer
	Name:		Debra A. Palmer
	Its:	Asst Secretary

EX-10.458

Exhibit 10.458

LOAN AGREEMENT

Dated as of December 16, 2004

Between

INLAND WESTERN PHOENIX 31^st AVENUE, L.L.C.,

as Borrower

and

BANK OF AMERICA, N.A.,

as Lender

TABLE OF CONTENTS

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SECTION 5.8. COOPERATE IN LEGAL PROCEEDINGS

SECTION 5.9. PERFORMANCE BY BORROWER

SECTION 5.10. AWARDS; INSURANCE PROCEEDS

SECTION 5.11. FINANCIAL REPORTING

SECTION 5.12. ESTOPPEL STATEMENT

SECTION 5.13. LEASING MATTERS

SECTION 5.14. PROPERTY MANAGEMENT

SECTION 5.15. LIENS

SECTION 5.16. DEBT CANCELLATION

SECTION 5.17. ZONING

SECTION 5.18. ERISA

SECTION 5.19. NO JOINT ASSESSMENT

SECTION 5.20. RECIPROCAL EASEMENT AGREEMENTS

ARTICLE 6 ENTITY COVENANTS

SECTION 6.1. SINGLE PURPOSE ENTITY/SEPARATENESS

SECTION 6.2. CHANGE OF NAME, IDENTITY OR STRUCTURE

SECTION 6.3. BUSINESS AND OPERATIONS

SECTION 6.4. INDEPENDENT DIRECTOR

ARTICLE 7 NO SALE OR ENCUMBRANCE

SECTION 7.1. TRANSFER DEFINITIONS

SECTION 7.2. NO SALE/ENCUMBRANCE

SECTION 7.3. PERMITTED TRANSFERS

SECTION 7.4. LENDER’S RIGHTS

SECTION 7.5. ASSUMPTION

SECTION 7.6. ASSUMPTION BY INLAND PERMITTED TRANSFEREE

ARTICLE 8 INSURANCE; CASUALTY; CONDEMNATION; RESTORATION

SECTION 8.1. INSURANCE

SECTION 8.2. CASUALTY

SECTION 8.3. CONDEMNATION

SECTION 8.4. RESTORATION

ARTICLE 9 REPLACEMENTS; RESERVE FUNDS

SECTION 9.1. REPLACEMENTS

SECTION 9.2. TAX AND INSURANCE RESERVE FUNDS

SECTION 9.3. RESERVE FUNDS GENERALLY

ARTICLE 10 CASH MANAGEMENT

SECTION 10.1. CASH MANAGEMENT ACCOUNT

SECTION 10.2. DEPOSITS AND WITHDRAWALS

SECTION 10.3. SECURITY INTEREST

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ARTICLE 11 EVENTS OF DEFAULT; REMEDIES

SECTION 11.1. EVENT OF DEFAULT

SECTION 11.2. REMEDIES

ARTICLE 12 ENVIRONMENTAL PROVISIONS

SECTION 12.1. ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES

SECTION 12.2. ENVIRONMENTAL COVENANTS

SECTION 12.3. LENDER’S RIGHTS

SECTION 12.4. OPERATIONS AND MAINTENANCE PROGRAMS

SECTION 12.5. ENVIRONMENTAL DEFINITIONS

ARTICLE 13 SECONDARY MARKET

SECTION 13.1. TRANSFER OF LOAN

SECTION 13.2. DELEGATION OF SERVICING

SECTION 13.3. DISSEMINATION OF INFORMATION

SECTION 13.4. COOPERATION

ARTICLE 14 INDEMNIFICATIONS

SECTION 14.1. GENERAL INDEMNIFICATION

SECTION 14.2. MORTGAGE AND INTANGIBLE TAX INDEMNIFICATION

SECTION 14.3. ERISA INDEMNIFICATION

SECTION 14.4. SURVIVAL

ARTICLE 15 EXCULPATION

SECTION 15.1. EXCULPATION

ARTICLE 16 NOTICES

SECTION 16.1. NOTICES

ARTICLE 17 FURTHER ASSURANCES

SECTION 17.1. REPLACEMENT DOCUMENTS

SECTION 17.2. RECORDING OF MORTGAGE, ETC.

SECTION 17.3. FURTHER ACTS, ETC.

SECTION 17.4. CHANGES IN TAX, DEBT, CREDIT AND DOCUMENTARY STAMP LAWS

SECTION 17.5. EXPENSES

ARTICLE 18 WAIVERS

SECTION 18.1. REMEDIES CUMULATIVE; WAIVERS

SECTION 18.2. MODIFICATION, WAIVER IN WRITING

SECTION 18.3. DELAY NOT A WAIVER

SECTION 18.4. TRIAL BY JURY

SECTION 18.5. WAIVER OF NOTICE

SECTION 18.6. REMEDIES OF BORROWER

SECTION 18.7. WAIVER OF MARSHALLING OF ASSETS

SECTION 18.8. WAIVER OF STATUTE OF LIMITATIONS

SECTION 18.9. WAIVER OF COUNTERCLAIM

ARTICLE 19 GOVERNING LAW

SECTION 19.1. CHOICE OF LAW

SECTION 19.2. SEVERABILITY

SECTION 19.3. PREFERENCES

ARTICLE 20 MISCELLANEOUS

SECTION 20.1. SURVIVAL

SECTION 20.2. LENDER’S DISCRETION

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SECTION 20.3. HEADINGS

SECTION 20.4. COST OF ENFORCEMENT

SECTION 20.5. SCHEDULES INCORPORATED

SECTION 20.6. OFFSETS, COUNTERCLAIMS AND DEFENSES

SECTION 20.7. NO JOINT VENTURE OR PARTNERSHIP; NO THIRD PARTY BENEFICIARIES

SECTION 20.8. PUBLICITY

SECTION 20.9. CONFLICT; CONSTRUCTION OF DOCUMENTS; RELIANCE

SECTION 20.10. ENTIRE AGREEMENT

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LOAN AGREEMENT

THIS LOAN AGREEMENT, dated as of December 16, 2004 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”), between BANK OF AMERICA, N.A., a national banking association, having an address at Bank of America Corporate Center, 214 North Tryon Street, Charlotte, North Carolina 28255 (together with its successors and/or assigns, “Lender”) and Inland Western Phoenix 31^st Avenue, L.L.C., a Delaware limited liability company having an address at c/o Inland Real Estate Investment Corporation, 2901 Butterfield Road, Oak Brook, Illinois 60523 (together with its successors and/or assigns, “Borrower”).

RECITALS:

Borrower desires to obtain the Loan (defined below) from Lender.

Lender is willing to make the Loan to Borrower, subject to and in accordance with the terms of this Agreement and the other Loan Documents (defined below).

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

ARTICLE 1
DEFINITIONS; PRINCIPLES OF CONSTRUCTION

Section 1.1.    Definitions

For all purposes of this Agreement, except as otherwise expressly required or unless the context clearly indicates a contrary intent:

“Account Collateral” shall mean (i) the Accounts, and all cash, checks, drafts, certificates and instruments, if any, from time to time deposited or held in the Accounts; (ii) any and all amounts in or credited to the Accounts invested in Permitted Investments; (iii) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise payable in respect of, or in exchange for, any or all of the foregoing; and (iv) to the extent not covered by clauses (i) - (iii) above, all “proceeds” (as defined under the UCC as in effect in the State in which the Accounts are located) of any or all of the foregoing.

“Accounts” shall mean the Cash Management Account, the Tax and Insurance Reserve Accounts, if any, and any other account or sub-account established by this Agreement, the Mortgage, or the other Loan Documents.

“Accredited Investor” shall have the meaning set forth in the regulations promulgated by the Securities and Exchange Commission.

“Act” shall have the meaning set forth in Section 6.1(c).

“Affiliate” shall mean, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person or is a director or officer of such Person or of an Affiliate of such Person.

“Affiliated Loans” shall mean a loan made by Lender to a parent, subsidiary or such other entity affiliated with Borrower or Borrower Principal.

“Affiliated Manager” shall have the meaning set forth in Section 7.1 hereof.

“ALTA” shall mean American Land Title Association, or any successor thereto.

“American Express” shall mean American Express Travel Related Services Company, Inc., a New York corporation.

“American Express Lease” shall mean that certain Lease Agreement dated as of December 16, 2004 between Borrower, as landlord, and American Express, as tenant, with respect to the Property.

“American Express Lease Default” shall mean (i) a default, after the expiration of any applicable notice or cure periods, under the American Express Lease or (ii) the cancellation, termination or surrender of the American Express Lease.

“Assignment of Management Agreement” shall mean that certain Assignment and Subordination of Management Agreement dated the date hereof among Lender, Borrower and Manager, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Award” shall mean any compensation paid by any Governmental Authority in connection with a Condemnation in respect of all or any part of the Property.

“Borrower Principal” shall mean Inland Western Retail Real Estate Trust, Inc., a Maryland corporation.

“Business Day” shall mean a day on which Lender is open for the conduct of substantially all of its banking business at its office in the city in which the Note is payable (excluding Saturdays and Sundays).

“Cash Management Account” shall have the meaning set forth in Section 10.1(a) hereof.

“Cash Management Period” shall mean the period commencing on the 45^th day prior to the Optional Prepayment Date.

“Casualty” shall have the meaning set forth in Section 8.2.

“Closing Date” shall mean the date of the funding of the Loan.

“Control” shall have the meaning set forth in Section 7.1 hereof.

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“Condemnation” shall mean a temporary or permanent taking by any Governmental Authority as the result, in lieu or in anticipation, of the exercise of the right of condemnation or eminent domain, of all or any part of the Property, or any interest therein or right accruing thereto, including any right of access thereto or any change of grade affecting the Property or any part thereof.

“Condemnation Proceeds” shall have the meaning set forth in Section 8.4(b)

“Creditors Rights Laws” shall mean with respect to any Person any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to its debts or debtors.

“Debt” shall mean the outstanding principal amount set forth in, and evidenced by, this Agreement and the Note together with all interest accrued and unpaid thereon and all other sums due to Lender in respect of the Loan under the Note, this Agreement, the Mortgage or any other Loan Document.

“Debt Service” shall mean, with respect to any particular period of time, scheduled principal and/or interest payments under the Note.

“Default” shall mean the occurrence of any event hereunder or under any other Loan Document which, but for the giving of notice or passage of time, or both, would be an Event of Default.

“Default Rate” shall mean, with respect to the Loan, a rate per annum equal to the lesser of (a) the maximum rate permitted by applicable law, or (b) four percent (4%) above the Note Rate.

“Eligible Account” shall mean a separate and identifiable account from all other funds held by the holding institution that is either (a) an account or accounts maintained with a federal or state chartered depository institution or trust company which complies with the definition of Eligible Institution or (b) a segregated trust account or accounts maintained with the corporate trust department of a federal or state chartered depository institution or trust company acting in its fiduciary capacity which, in the case of a federally chartered depository institution or trust company acting in its fiduciary capacity is subject to the regulations regarding adversary funds on deposit therein under 12 CFR §9.10(b), and in the case of a state chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R. §9.10(b), having in either case a combined capital surplus of at least $50,000,000 and subject to supervision or examination by federal and state authority. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.

“Eligible Institution” shall mean a depository institution or trust company insured by the Federal Deposit Insurance Corporation, the short term unsecured debt obligations or commercial paper of which are rated at least “A-1” by S&P, “P-1” by Moody’s and “F-l” by Fitch in the case of accounts in which funds are held for thirty (30) days or less (or, in the case of accounts in which funds are held for more than thirty (30) days, the long term unsecured debt obligations of which are rated at least “AA-” by Fitch and S&P (or “A-” by S&P, if such depository’s short

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term unsecured debt rating is at least “A-l” by S&P) and “Aa2” by Moody’s). Notwithstanding the foregoing, prior to a Securitization, Bank of America, N.A. shall be an Eligible Institution.

“Embargoed Person” shall mean any person identified by OFAC or any other Person with whom a Person resident in the United States of America may not conduct business or transactions by prohibition of federal law or Executive Order of the President of the United States of America.

“Environmental Indemnity” shall mean that certain Environmental Indemnity Agreement, dated as of the date hereof, executed by Borrower and Borrower Principal in connection with the Loan for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Environmental Law” shall have the meaning set forth in Section 12.5 hereof.

“Environmental Liens” shall have the meaning set forth in Section 12.5 hereof.

“Environmental Report” shall have the meaning set forth in Section 12.5 hereof.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time and any successor statutes thereto and applicable regulations issued pursuant thereto in temporary or final form.

“Event of Default” shall have the meaning set forth in Section 11.1 hereof.

“Exchange Act” shall mean the Securities and Exchange Act of 1934, as amended.

“Fitch” shall mean Fitch, Inc.

“GAAP” shall mean generally accepted accounting principles in the United States of America as of the date of the applicable financial report.

“Governmental Authority” shall mean any court, board, agency, department, commission, office or other authority of any nature whatsoever for any governmental unit (federal, state, county, municipal, city, town, special district or otherwise) whether now or hereafter in existence.

“Guarantor” shall mean any Person having a long-term unsecured debt rating above the Trigger Rating that may, from time to time, at the option of American Express, execute a guaranty in favor of landlord under the American Express Lease.

“Hazardous Materials” shall have the meaning set forth in Section 12.5 hereof.

“Improvements” shall have the meaning set forth in the granting clause of the Mortgage.

“Indemnified Parties” shall mean (a) Lender, (b) any prior owner or holder of the Loan or Participations in the Loan, (c) any servicer or prior servicer of the Loan, (d) any investor or any prior Investor in any Securities, (e) any trustees, custodians or other fiduciaries who hold or

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who have held a full or partial interest in the Loan for the benefit of any Investor or other third party, (f) any receiver or other fiduciary appointed in a foreclosure or other Creditors Rights Laws proceeding, (g) any officers, directors, shareholders, partners, members, employees, agents, servants, representatives, contractors, subcontractors, affiliates or subsidiaries of any and all of the foregoing, and (h) the heirs, legal representatives, successors and assigns of any and all of the foregoing (including, without limitation, any successors by merger, consolidation or acquisition of all or a substantial portion of the Indemnified Parties’ assets and business), in all cases whether during the term ofthe Loan or as part of or following a foreclosure of the Mortgage.

“Independent Director” shall have the meaning set forth in Section 6.4(a).

“Inland Permitted Transferee” shall mean a newly-formed special purpose entity that is wholly-owned (directly or indirectly) by Inland Retail Real Estate Trust, Inc., a Maryland corporation; Inland Real Estate Corporation, a Maryland corporation, Inland Real Estate Corporation, a Delaware corporation or Borrower Principal.

“Insurance Premiums” shall have the meaning set forth in Section 8.1 hereof.

“Insurance Proceeds” shall have the meaning set forth in Section 8.4(b) hereof.

“Internal Revenue Code” shall mean the Internal Revenue Code of 1986, as amended, as it may be further amended from time to time, and any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.

“Investor” shall have the meaning set forth in Section 13.3 hereof.

“Lease” shall have the meaning set forth in the Mortgage.

“Legal Requirements” shall mean all statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting the Property or any part thereof, or the construction, use, alteration or operation thereof, whether now or hereafter enacted and in force, and all permits, licenses, authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Borrower, at any time in force affecting the Property or any part thereof, including, without limitation, any which may (a) require repairs, modifications or alterations in or to the Property or any part thereof, or (b) in any way limit the use and enjoyment thereof.

“Lien” shall mean any mortgage, deed of trust, lien, pledge, hypothecation, assignment, security interest, or any other encumbrance, charge or transfer of, on or affecting Borrower, the Property, any portion thereof or any interest therein, including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialmen’s and other similar liens and encumbrances.

“LLC Agreement” shall have the meaning set forth in Section 6.1(c).

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“Loan” shall mean the loan made by Lender to Borrower pursuant to this Agreement.

“Loan Documents” shall mean, collectively, this Agreement, the Note, the Mortgage, the Environmental Indemnity, the Assignment of Management Agreement and any and all other documents, agreements and certificates executed and/or delivered in connection with the Loan, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Lockout Period” shall mean the period commencing on the date hereof and ending on the date of the second anniversary hereof.

“Losses” shall mean any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, fines, penalties, charges, fees, judgments, awards, amounts paid in settlement of whatever kind or nature (including but not limited to legal fees and other costs of defense).

“Management Agreement” shall mean the management agreement entered into by and between Borrower and Manager, pursuant to which Manager is to provide management and other services with respect to the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified in accordance with the terms of this Agreement.

“Manager” shall mean Inland Southwest Management LLC, a Delaware limited liability company or such other entity selected as the manager of the Property in accordance with the terms of this Agreement.

“Material Litigation” shall mean, with respect to any Person, any material conviction, indictment (that is not dismissed before trial), judgment, litigation or regulatory action. For purposes of this definition, a matter shall be deemed material if it is reasonably foreseeable that a prudent institutional commercial real estate mortgage lender would consider such matter as a material adverse factor in its underwriting of the Person in question.  With respect to non-criminal matters, isolated actions occurring more than five (5) years prior to the date of a proposed transfer shall not be deemed material provided that there is no indication of fraud, intentional misrepresentation or intent to defraud creditors with respect to such actions.

“Maturity Date” shall have the meaning set forth in the Note.

“Maximum Legal Rate” shall mean the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by the Note and as provided for herein or the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan.

“Member” shall have the meaning set forth in Section 6.1(c).

“Monthly Payment Amount” shall mean the monthly payment of interest due on each Scheduled Payment Date as set forth in the Note.

“Moody’s” shall mean Moody’s Investor Services, Inc.

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“Mortgage” shall mean that certain first priority mortgage/deed of trust/deed to secure debt and security agreement dated the date hereof, executed and delivered by Borrower as security for the Loan and encumbering the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Net Proceeds” shall have the meaning set forth in Section 8.4(b) hereof.

“Net Proceeds Deficiency” shall have the meaning set forth in Section 8.4(b)(vi) hereof.

“Note” shall mean that certain promissory note of even date herewith in the principal amount of $31,860,000, made by Borrower in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Note Rate” shall have the meaning set forth in the Note.

“OFAC” shall have the meaning set forth in Section 4.38 hereof.

“Operating Expenses” shall mean, with respect to any period of time, the total of all expenses actually paid or payable, computed in accordance with federal tax basis accounting, or in accordance with other methods acceptable to Lender in its sole discretion, of whatever kind relating to the operation, maintenance and management of the Property, including, without limitation, utilities, ordinary repairs and maintenance, Insurance Premiums, license fees, Taxes and Other Charges, advertising expenses, payroll and related taxes, computer processing charges, management fees equal to the greater of 4% of the Operating Income and the management fees actually payable under the Management Agreement for such period of time, operational equipment or other lease payments as approved by Lender, normalized capital expenditures but specifically excluding depreciation and amortisation, income taxes, Debt Service, any incentive fees due under the Management Agreement, any item of expense that in accordance with federal tax basis accounting should be capitalized, any item of expense that would otherwise be covered by the provisions hereof but which is paid by American Express under the American Express Lease and deposits into the Reserve Accounts.

“Optional Prepayment Date” shall have the meaning set forth in the Note.

“Other Charges” shall mean all ground rents, maintenance charges, impositions other than Taxes, and any other charges, including, without limitation, vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Property, now or hereafter levied or assessed or imposed against the Property or any part thereof.

“Participations” shall have the meaning set forth in Section 13.1 hereof.

“Patriot Act” shall have the meaning set forth in Section 4.38 hereof.

“Permitted Encumbrances” shall mean collectively, (a) the Lien and security interests created by the Loan Documents, (b) all Liens, encumbrances and other matters disclosed in the Title Insurance Policy, (c) Liens, if any, for Taxes imposed by any Governmental Authority not yet due or delinquent, and (d) such other title and survey exceptions as Lender has approved or may approve in writing in Lender’s sole discretion.

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“Permitted Investments” shall mean to the extent available from Lender or Lender’s servicer for deposits in the Reserve Accounts and the Lockbox Account, any one or more of the following obligations or securities acquired at a purchase price of not greater than par, including those issued by a servicer of the Loan, the trustee under any securitization or any of their respective Affiliates, payable on demand or having a maturity date not later than the Business Day immediately prior to the date on which the funds used to acquire such investment are required to be used under this Agreement and meeting one of the appropriate standards set forth below:

(a)obligations of, or obligations fully guaranteed as to payment of principal and interest by, the United States or any agency or instrumentality thereof provided such obligations are backed by the full faith and credit of the United States of America including, without limitation, obligations of: the U.S. Treasury (all direct or fully guaranteed obligations), the Farmers Home Administration (certificates of beneficial ownership), the General Services Administration (participation certificates), the U.S. Maritime Administration (guaranteed Title XI financing), the Small Business Administration (guaranteed participation certificates and guaranteed pool certificates), the U.S. Department of Housing and Urban Development (local authority bonds) and the Washington Metropolitan Area Transit Authority (guaranteed transit bonds); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) be rated “AAA” or the equivalent by each of the Rating Agencies, (iii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iv) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (v) such investments must not be subject to liquidation prior to their maturity;

(b)Federal Housing Administration debentures;

(c)obligations of the following United States government sponsored agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm Credit System (consolidated systemwide bonds and notes), the Federal Home Loan Banks (consolidated debt obligations), the Federal National Mortgage Association (debt obligations), the Financing Corp. (debt obligations), and the Resolution Funding Corp. (debt obligations); provided, however,that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(d)federal funds, unsecured certificates of deposit, time deposits, bankers’ acceptances and repurchase agreements with maturities of not more than 365 days of any bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned

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to the Securities); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(e)fully Federal Deposit Insurance Corporation-insured demand and time deposits in, or certificates of deposit of, or bankers’ acceptances with maturities of not more than 365 days and issued by, any bank or trust company, savings and loan association or savings bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest, rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(f)debt obligations with maturities of not more than 365 days and at all times rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest long-term unsecured rating category; provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(g)commercial paper (including both non-interest-bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one year after the date of issuance thereof) with maturities of not more than 365 days and that at all times is rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest short-term unsecured debt rating; provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

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(h)units of taxable money market funds, with maturities of not more than 365 days and which funds are regulated investment companies, seek to maintain a constant net asset value per share and invest solely in obligations backed by the full faith and credit of the United States, which funds have the highest rating available from each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) for money market funds; and

(i)any other security, obligation or investment which has been approved as a Permitted Investment in writing by (i) Lender and (ii) each Rating Agency, as evidenced by a written confirmation that the designation of such security, obligation or investment as a Permitted Investment will not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities by such Rating Agency;

provided, however,that no obligation or security shall be a Permitted Investment if (A) such obligation or security evidences a right to receive only interest payments, (B) the right to receive principal and interest payments on such obligation or security are derived from an underlying investment that provides a yield to maturity in excess of one hundred twenty percent (120%) of the yield to maturity at par of such underlying investment or (C) such obligation or security has a remaining term to maturity in excess of one (1) year.

“Person” shall mean any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.

“Personal Property” shall have the meaning set forth in the granting clause of the Mortgage.

“Policies” shall have the meaning set forth in Section 8.1 hereof.

“Prohibited Transfer” shall have the meaning set forth in Section 7.2 hereof.

“Property” shall mean the parcel of real property, the Improvements thereon and all Personal Property owned by Borrower and encumbered by the Mortgage, together with all rights pertaining to such property and Improvements, as more particularly described in the granting clause of the Mortgage and referred to therein as the “Property”.

“Property Condition Report” shall mean a report prepared by a company satisfactory to Lender regarding the physical condition of the Property, satisfactory in form and substance to Lender in its sole discretion.

“Qualified Manager” shall mean (a) Manager or (b) a reputable and experienced professional management organization (i) which manages, together with its affiliates, at least ten (10) first class office buildings totaling at least 3,500,000 square feet of gross leasable area, exclusive of the Property and (ii) approved by Lender, which approval shall not have been unreasonably withheld and for which Lender shall have received written confirmation from the

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Rating Agencies that the employment of such manager will not result in a downgrade, withdrawal or qualification of the initial, or if higher, then current ratings issued in connection with a Securitization, or if a Securitization has not occurred, any ratings to be assigned in connection with a Securitization.

“Ratine Agencies” shall mean each of S&P, Moody’s and Fitch, or any other nationally-recognized statistical rating agency which has been approved by Lender.

“REA” shall mean any construction, operation and reciprocal casement agreement or similar agreement (including any separate agreement or other agreement between Borrower and one or more other parties to an REA with respect to such REA) affecting the Property or portion thereof.

“Release” shall have the meaning set forth in Section 12.5 hereof.

“REMIC Trust” shall mean a “real estate mortgage investment conduit” (within the meaning of Section 860D, or applicable successor provisions, of the Code) that holds the Note.

“Rents” shall have the meaning set forth in the Mortgage.

“Replacements” shall have the meaning set forth in Section 9.2(a) hereof.

“Required Repairs” shall have the meaning set forth in Section 9.1 (a) hereof.

“Reserve Accounts” shall mean the Tax and Insurance Reserve Account.

“Reserve Funds” shall mean the Tax and Insurance Reserve Funds.

“Restoration” shall mean, following the occurrence of a Casualty or a Condemnation which is of a type necessitating the repair of the Property, the completion of the repair and restoration of the Property as nearly as possible to the condition the Property was in immediately prior to such Casualty or Condemnation, with such alterations as may be reasonably approved by Lender.

“Restoration Consultant” shall have the meaning set forth in Section 8.4(b)(iii) hereof.

“Restoration Retainage” shall have the meaning set forth in Section 8.4(b)(iv) hereof.

“Restricted Party” shall have the meaning set forth in Section 7.1 hereof.

“Sale or Pledge” shall have the meaning set forth in Section 7.1 hereof.

“Scheduled Payment Date” shall have the meaning set forth in the Note.

“Securities” shall have the meaning set forth in Section 13.1 hereof.

“Securities Act” shall mean the Securities Act of 1933, as amended.

“Securities Liabilities” shall have the meaning set forth in Section 13.5 hereof.

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“Securitization” shall have the meaning set forth in Section 13.1 hereof

“Special Member” shall have the meaning set forth in Section 6.1 (c).

“S&P” shall mean Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.

“State” shall mean the state in which the Property or any part thereof is located.

“Tax and Insurance Reserve Account” shall have the meaning set forth in Section 9.6 hereof.

“Tax and Insurance Reserve Funds” shall have the meaning set forth in Section 9.6 hereof.

“Taxes” shall mean all real estate and personal property taxes, assessments, water rates or sewer rents, now or hereafter levied or assessed or imposed against the Property or part thereof.

“Tenant” shall mean any Person leasing, subleasing or otherwise occupying any portion of the Property under a Lease or other occupancy agreement with Borrower, including, without limitation, American Express, as tenant under the American Express Lease.

“Tenant Direction Letter” shall have the meaning set forth in Section 10.2(a)(i) hereof.

“Title Insurance Policy” shall mean that certain ALTA mortgagee title insurance policy issued with respect to the Property and insuring the lien of the Mortgage.

“Transferee” shall have the meaning set forth in Section 7.5 hereof.

“Trigger Rating” shall mean the long-term unsecured debt rating of Guarantor (or American Express if there is no Guarantor) below BBB as issued by S&P or below Baa2 as issued by Moody’s.

“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in the State where the applicable Property is located.

Section 1.2.    Principles of Construction.

All references to sections and schedules are to sections and schedules in or to this Agreement unless otherwise specified. All uses of the word “including” shall mean “including, without limitation” unless the context shall indicate otherwise. Unless otherwise specified, the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified, all meanings attributed to defined terms herein shall be equally applicable to both the singular and plural forms of the terms so defined.

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ARTICLE 2
GENERAL TERMS

Section 2.1.    Loan Commitment: Disbursement to Borrower

(a)Subject to and upon the terms and conditions set forth herein, Lender hereby agrees to make and Borrower hereby agrees to accept the Loan on the Closing Date.

(b)Borrower may request and receive only one borrowing in respect of the Loan and any amount borrowed and repaid in respect of the Loan may not he reborrowed.

(c)The Loan shall be evidenced by the Note and secured by the Mortgage and the other Loan Documents.

(d)Borrower shall use the proceeds of the Loan to (i) pay the purchase price for acquiring the Property, (ii) pay certain costs and expenses incurred in connection with the closing of the Loan, as approved by Lender, (iv) fund any working capital requirements of the Property, and (v) distribute the balance, if any, to its members.

Section 2.2.    Loan Payments

(a)The Loan and interest shall be payable pursuant to the terms of the Note.

Section 2.3.    Prepayment

The Loan may not be prepaid, in whole or in part, except in strict accordance with the express terms and conditions of the Note.

ARTICLE 3
CONDITIONS PRECEDENT

The obligation of Lender to make the Loan hereunder is subject to the fulfillment by Borrower or waiver by Lender of all the conditions precedent to closing set forth in the application or term sheet for the Loan delivered by Borrower to Lender and any commitment rider to the application for the Loan issued by Lender.

ARTICLE 4
REPRESENTATIONS AND WARRANTIES

Borrower and, where specifically indicated, each Borrower Principal represents and warrants to Lender as of the Closing Date that:

Section 4.1.    Organization

Borrower and each Borrower Principal (when not an individual) (a) has been duly organized and is validly existing and in good standing with requisite power and authority to own its properties and to transact the businesses in which it is now engaged, (b) is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in

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connection with its properties, businesses and operations, (c) possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own its properties and to transact the businesses in which it is now engaged, and the sole business of Borrower is the ownership, management and operation of the Property, and (d) in the case of Borrower, has full power, authority and legal right to mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the Property pursuant to the terms of the Loan Documents, and in the case of Borrower and each Borrower Principal, has full power, authority and legal right to keep and observe all of the terms of the Loan Documents to which it is a party. Borrower and each Borrower Principal represent and warrant that the chart attached hereto as Exhibit A sets forth an accurate listing of the direct and indirect owners of the equity interests in Borrower, and each Borrower Principal (when not an individual).

Section 4.2.    Status of Borrower

Borrower’s exact legal name is correctly set forth on the first page of this Agreement, on the Mortgage and on any UCC-1 Financing Statements filed in connection with the Loan. Borrower is an organization of the type specified on the first page of this Agreement. Borrower is organized under the laws of the State of Delaware.  Borrower’s principal place of business and chief executive office, and the place where Borrower keeps its books and records, including recorded data of any kind or nature, regardless of the medium of recording, including software, writings, plans, specifications and schematics, has been for the preceding four months (or, if less, the entire period of the existence of Borrower) the address of Borrower set forth on the first page of this Agreement. Borrower’s organizational identification number, if any, assigned by the state of incorporation or organization is correctly set forth on the first page of the Note.

Section 4.3.    Validity of Documents

Borrower and Borrower Principal have taken all necessary action to authorize the execution, delivery and performance of this Agreement and the other Loan Documents to which they are parties. This Agreement and such other Loan Documents have been duly executed and delivered by or on behalf of Borrower and Borrower Principal and constitute the legal, valid and binding obligations of Borrower and Borrower Principal enforceable against Borrower and Borrower Principal in accordance with their respective terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

Section 4.4.    No Conflicts

The execution, delivery and performance of this Agreement and the other Loan Documents by Borrower and Borrower Principal will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance (other than pursuant to the Loan Documents) upon any of the property or assets of Borrower or Borrower Principal pursuant to the terms of any agreement or instrument to which Borrower or Borrower Principal is a party or by which any of Borrower’s or Borrower Principal’s property or assets is subject, nor will such action result in any violation of the provisions of any statute or any order, rule or regulation of any

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Governmental Authority having jurisdiction over Borrower or Borrower Principal or any of Borrower’s or Borrower Principal’s properties or assets, and any consent, approval, authorization, order, registration or qualification of or with any Governmental Authority required for the execution, delivery and performance by Borrower or Borrower Principal of this Agreement or any of the other Loan Documents has been obtained and is in full force and effect.

Section 4.5.    Litigation

There are no actions, suits or proceedings at law or in equity by or before any Governmental Authority or other agency now pending or, to Borrower’s or Borrower Principal’s knowledge, threatened against or affecting Borrower, Borrower Principal, Manager or the Property, which actions, suits or proceedings, if determined against Borrower, Borrower Principal, Manager or the Property, would materially adversely affect the condition (financial or otherwise) or business of Borrower or Borrower Principal or the condition or ownership of the Property.

Section 4.6.    Agreements

Borrower is not a party to any agreement or instrument or subject to any restriction which would materially and adversely affect Borrower or the Property, or Borrower’s business, properties or assets, operations or condition, financial or otherwise. Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party or by which Borrower or the Property is bound. Borrower has no material financial obligation under any agreement or instrument to which Borrower is a party or by which Borrower or the Property is otherwise bound, other than (a) obligations incurred in the ordinary course of the operation of the Property and (b) obligations under the Loan Documents.

Section 4.7.Solvency

Borrower and each Borrower Principal have (a) not entered into the transaction or executed the Note, this Agreement or any other Loan Documents with the actual intent to hinder, delay or defraud any creditor and (b) received reasonably equivalent value in exchange for their obligations under such Loan Documents. Giving effect to the Loan, the fair saleable value of the assets of Borrower and each Borrower Principal exceeds and will, immediately following the making of the Loan, exceed the total liabilities of Borrower and Borrower Principal, including, without limitation, subordinated, unliquidated, disputed and contingent liabilities. No petition in bankruptcy has been filed against Borrower, Borrower Principal, or Affiliated Manager in the last ten (10) years, and neither Borrower nor Borrower Principal, or Affiliated Manager in the last ten (10) years has made an assignment for the benefit of creditors or taken advantage of any Creditors Rights Laws. Neither Borrower nor Borrower Principal, or Affiliated Manager is contemplating either the filing of a petition by it under any Creditors Rights Laws or the liquidation of all or a major portion of Borrower’s assets or property, and Borrower has no knowledge of any Person contemplating the filing of any such petition against Borrower or Borrower Principal, or Affiliated Manager.

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Section 4.8.    Full and Accurate Disclosure

No statement of fact made by or on behalf of Borrower or Borrower Principal in this Agreement or in any of the other Loan Documents or in any other document or certificate delivered by or on behalf of Borrower or Borrower Principal contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained herein or therein not misleading. There is no material fact presently known to Borrower or Borrower Principal which has not been disclosed to Lender which adversely affects, nor as far as Borrower or Borrower Principal can reasonably foresee, might adversely affect, the Property or the business, operations or condition (financial or otherwise) of Borrower or Borrower Principal.

Section 4.9.No Plan Assets

Borrower is not an “employee benefit plan,” as defined in Section 3(3) of ERISA, subject to Title I of ERISA, and none of the assets of Borrower constitutes or will constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101. In addition, (a) Borrower is not a “governmental plan” within the meaning of Section 3(32) of ERISA and (b) transactions by or with Borrower are not subject to state statutes regulating investment of, and fiduciary obligations with respect to, governmental plans similar to the provisions of Section 406 of ERISA or Section 4975 of the Internal Revenue Code currently in effect, which prohibit or otherwise restrict the transactions contemplated by this Agreement.

Section 4.10.  Not a Foreign Person

Neither Borrower nor Borrower Principal is a “foreign Person” within the meaning of §1445(f)(3) of the Internal Revenue Code.

Section 4.11.  Enforceability

The Loan Documents are not subject to any right of rescission, set-off, counterclaim or defense by Borrower, including the defense of usury, nor would the operation of any of the terms of the Loan Documents, or the exercise of any right thereunder, render the Loan Documents unenforceable, and neither Borrower nor Borrower Principal has asserted any right of rescission, set-off, counterclaim or defense with respect thereto. No Default or Event of Default exists under or with respect to any Loan Document.

Section 4.12.  Business Purposes

The Loan is solely for the business purpose of Borrower, and is not for personal, family, household, or agricultural purposes.

Section 4.13.   Compliance

Except as expressly disclosed by Borrower to Lender in writing in connection with the closing of the Loan, to Borrower’s knowledge, Borrower and the Property, and the use and operation thereof, comply in all material respects with all Legal Requirements, including, without limitation, building and zoning ordinances and codes and the Americans with Disabilities Act. To Borrower’s knowledge, Borrower is not in default or violation of any order,

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writ, injunction, decree or demand of any Governmental Authority and Borrower has received no written notice of any such default or violation. There has not been committed by Borrower or, to Borrower’s knowledge, any other Person in occupancy of or involved with the operation or use of the Property any act or omission affording any Governmental Authority the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents.

Section 4.14.  Financial Information

All financial data, including, without limitation, the balance sheets, statements of cash flow, statements of income and operating expense and rent rolls, that have been delivered to Lender in respect of Borrower, Borrower Principal and/or the Property (a) are true, complete and correct in all material respects, (b) accurately represent the financial condition of Borrower, Borrower Principal or the Property, as applicable, as of the date of such reports, and (c) to the extent prepared or audited by an independent certified public accounting firm, have been prepared in accordance with tax basis accounting throughout the periods covered, except as disclosed therein. Borrower does not have any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that are known to Borrower and reasonably likely to have a material adverse effect on the Property or the current and/or intended operation thereof, except as referred to or reflected in said financial statements. Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of Borrower or Borrower Principal from that set forth in said financial statements.

Section 4.15.  Condemnation

No Condemnation or other proceeding has been commenced or, to Borrower’s best knowledge, is threatened or contemplated with respect to all or any portion of the Property or for the relocation of roadways providing access to the Property.

Section 4.16.  Utilities and Public Access; Parking

To the best of Borrower’s knowledge, the Property has adequate rights of access to public ways and is served by water, sewer, sanitary sewer and storm drain facilities adequate to service the Property for full utilization of the Property for its intended uses. All public utilities necessary to the full use and enjoyment of the Property as currently used and enjoyed are located either in the public right-of-way abutting the Property (which are connected so as to serve the Property without passing over other property) or in recorded easements serving the Property and such easements are set forth in and insured by the Title Insurance Policy. All roads necessary for the use of the Property for its current purposes have been completed and dedicated to public use and accepted by all Governmental Authorities. The Property has, or is served by, parking to the extent required to comply with all Legal Requirements.

Section 4.17.  Separate Lots

The Property is assessed for real estate tax purposes as one or more wholly independent tax lot or lots, separate from any adjoining land or improvements not constituting a part of such

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lot or lots, and no other land or improvements is assessed and taxed together with the Property or any portion thereof.

Section 4.18.  Assessments

To Borrower’s knowledge, there are no pending or proposed special or other assessments for public improvements or otherwise affecting the Property, nor are there any contemplated improvements to the Property that may result in such special or other assessments.

Section 4.19.  Insurance

Borrower has obtained and has delivered to Lender either (a) certified copies of all Policies or, to the extent such Policies are not available as of the Closing Date, certificates of insurance with respect to all such Policies reflecting the insurance coverages, amounts and other requirements set forth in this Agreement or (b) the certificate of American Express that American Express is a

self-insurer with respect to the occurrences referred to in Section 8.1 and that the rating of American Express by the Rating Agencies has not fallen below the Trigger Rating.

Section 4.20.  Use of Property

The Property is used exclusively for general office purposes and other appurtenant and related uses.

Section 4.21.  Certificate of Occupancy; Licenses

All certificates of occupancy and to Borrower’s knowledge all certifications, permits, licenses and approvals, including, without limitation, certificates of completion and any applicable liquor license required for the legal use, occupancy and operation of the Property for the purpose intended herein, have been obtained and are valid and in full force and effect. Borrower shall keep and maintain (or require American Express to maintain) all licenses necessary for the operation of the Property for the purpose intended herein. The use being made of the Property is in conformity with the final certificate of occupancy (or compliance, if applicable) and any other permits or licenses issued for the Property.

Section 4.22.Flood Zone

None of the Improvements on the Property are located in an area identified by the Federal Emergency Management Agency as an area having special flood hazards, or, if any portion of the Improvements is located within such area, Borrower will obtain or cause American Express to obtain the insurance prescribed in Section 8.1(a)(i) at any time during the term of the Loan when American Express ceases to be a self-insurer or when the rating of American Express by the Rating Agencies falls below the Trigger Rating.

Section 4.23.  Physical Condition

Except as set forth in the Property Condition Report, to Borrower’s knowledge, the Property, including, without limitation, all buildings, improvements, parking facilities,

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sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, are in good condition, order and repair in all material respects. Except as set forth in the Property Condition Report, to Borrower’s knowledge, there exist no structural or other material defects or damages in the Property, as a result of a Casualty or otherwise, and whether latent or otherwise. Borrower has not received notice from any insurance company or bonding company of any defects or inadequacies in the Property, or any part thereof, which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond.

Section 4.24.  Boundaries; Survey

(a)None of the Improvements which were included in determining the appraised value of the Property lie outside the boundaries and building restriction lines of the Property to any material extent, and (b) no improvements on adjoining properties encroach upon the Property and no easements or other encumbrances upon the Property encroach upon any of the Improvements so as to materially affect the value or marketability of the Property.

Section 4.25.  Leases

The entire Property has been leased to American Express pursuant to the American Express Lease.  (a) The American Express Lease is in full force and effect; (b) the premises demised under the American Express Lease have been completed and American Express has accepted possession of and is in occupancy of the demised premises; (c) American Express has commenced the payment of rent under the American Express Lease, there are no offsets, claims or defenses to the enforcement thereof and Borrower has no monetary obligations to American Express under the American Express Lease; (d) all Rents due and payable under the American Express Lease have been paid and no portion thereof has been paid for any period more than thirty (30) days in advance; (c) the rent payable under the American Express Lease is the amount of fixed rent set forth in the American Express Lease, and there is no claim or basis for a claim by American Express thereunder for an adjustment to the Rent; (f) Borrower is the sole owner of the entire landlord’s interest in the American Express Lease; (g) the American Express Lease is the valid, binding and enforceable obligation of Borrower and American Express thereunder and there are no agreements with American Express with respect to the American Express Lease other than as expressly set forth therein; (h) no Person has any possessory interest in, or right to occupy, the Property or any portion thereof except under the American Express Lease; (i) except for the right of first refusal set forth in Article 4 and the right to offer to purchase the Property under Article 12, the American Express Lease does not contain any option or offer to purchase or right of first refusal to purchase the Property or any part thereof; and (j) neither the American Express Lease nor the Rents have been assigned or pledged except to Lender, and no other Person has any interest therein.

Section 4.26.  Filing and Recording Taxes

All mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid by any Person under applicable Legal Requirements currently in effect in connection with

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the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents, including, without limitation, the Mortgage, have been paid or will be paid, and, under current Legal Requirements, the Mortgage is enforceable in accordance with its terms by Lender (or any subsequent holder thereof).

Section 4.27.Management Agreement

The Management Agreement is in full force and effect and there is no default thereunder by any party thereto and, to Borrower’s knowledge, no event has occurred that, with the passage of time and/or the giving of notice, would constitute a default thereunder. No management fees under the Management Agreement are accrued and unpaid.

Section 4.28.  Illegal Activity

No portion of the Property has been or will be purchased with proceeds of any illegal activity, and no part of the proceeds of the Loan will be used in connection with any illegal activity.

Section 4.29.  Construction Expenses

All costs and expenses of any and all labor, materials, supplies and equipment used in the construction, maintenance or repair of the Improvements have been paid in full. To Borrower’s knowledge after due inquiry, there are no claims for payment for work, labor or materials affecting the Property which are or may become a lien prior to, or of equal priority with, the Liens created by the Loan Documents.

Section 4.30.  Personal Property

Borrower has paid in full for, and is the owner of, all Personal Property (other than tenants’ property) used in connection with the operation of the Property, free and clear of any and all security interests, liens or encumbrances, except for Permitted Encumbrances and the Lien and security interest created by the Loan Documents.

Section 4.31.  Taxes

Borrower and Borrower Principal have filed all federal, state, county, municipal, and city income, personal property and other tax returns required to have been filed by them and have paid all taxes and related liabilities which have become due pursuant to such returns or pursuant to any assessments received by them. Neither Borrower nor Borrower Principal knows of any basis for any additional assessment in respect of any such taxes and related liabilities for prior years.

Section 4.32.  Permitted Encumbrances

None of the Permitted Encumbrances, individually or in the aggregate, materially interferes with the benefits of the security intended to be provided by the Loan Documents, materially and adversely affects the value of the Property, impairs the use or the operation of the Property or impairs Borrower’s ability to pay its obligations in a timely manner.

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Section 4.33.Federal Reserve Regulations

Borrower will use the proceeds of the Loan for the purposes set forth in Section 2.1(d) hereof and not for any illegal activity. No part of the proceeds of the Loan will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by Legal Requirements or prohibited by the terms and conditions of this Agreement or the other Loan Documents.

Section 4.34.  Investment Company Act

Borrower is not (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; (b) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (c) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

Section 4.35.Reciprocal Easement Agreements

(a)Neither Borrower nor any other party is currently in default (nor has any notice been given or received with respect to an alleged or current default) under any of the terms and conditions of the REA, and the REA remains unmodified and in full force and effect;

(b)All easements granted pursuant to the REA which were to have survived the site preparation and completion of construction (to the extent that the same has been completed), remain in full force and effect and have not been released, terminated, extinguished or discharged by agreement or otherwise;

(c)To the best of Borrower’s knowledge, all sums due and owing by Borrower to the other parties to the REA (or by the other parties to the REA to the Borrower) pursuant to the terms of the REA, including without limitation, all sums, charges, fees, assessments, costs, and expenses in connection with any taxes, site preparation and construction, non-shareholder contributions, and common area and other property management activities have been paid, are current, and no lien has attached on the Property (or threat thereof been made) for failure to pay any of the foregoing;

(d)The terms, conditions, covenants, uses and restrictions contained in the REA do not conflict in any manner with any terms, conditions, covenants, uses and restrictions contained in any Lease or in any agreement between Borrower and occupant of any peripheral parcel, including without limitation, conditions and restrictions with respect to kiosk placement, tenant restrictions (type, location or exclusivity), sale of certain goods or services, and/or other use restrictions; and

(e)The terms, conditions, covenants, uses and restrictions contained in the American Express Lease do not conflict in any manner with any terms, conditions, covenants, uses and restrictions contained in the REA, any other lease or in any agreement between Borrower and

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occupant of any peripheral parcel, including without limitation, conditions arid restrictions with respect to kiosk placement, tenant restrictions (type, location or exclusivity), sale of certain goods or services, and/or other use restrictions.

Section 4.36.No Change in Facts or Circumstances; Disclosure

All information submitted by Borrower or its agents to Lender and in all financial statements, reports, certificates and other documents submitted in connection with the Loan or in satisfaction of the terms thereof and all statements of fact made by Borrower in this Agreement or in any other Loan Document, are accurate, complete and correct in all material respects. There has been no material adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading in any material respect or that otherwise materially and adversely affects or might materially and adversely affect the Property or the business operations or the financial condition of Borrower. Borrower has disclosed to Lender all material facts and has not failed to disclose any material fact, that could cause any representation or warranty made herein to be materially misleading.

Section 4.37.Intellectual Property

All trademarks, trade names and service marks necessary to the business of Borrower as presently conducted or as Borrower contemplates conducting its business are in good standing and, to the extent of Borrower’s actual knowledge, uncontested. Borrower has not infringed, is not infringing, and has not received notice of infringement with respect to asserted trademarks, trade names and service marks of others. To Borrower’s knowledge, there is no infringement by others of trademarks, trade names and service marks of Borrower.

Section 4.38.  Compliance with Anti-Terrorism Laws

None of Borrower, Borrower Principal or any Person who Controls Borrower or Borrower Principal currently is identified by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) or otherwise qualifies as an Embargoed Person, and Borrower has implemented procedures to ensure that no Person who now or hereafter owns a material direct or indirect equity interest in Borrower is an Embargoed Person or is Controlled by an Embargoed Person. To Borrower’s knowledge neither Borrower nor Borrower Principal is in violation of any applicable law relating to anti-money laundering or anti-terrorism, including, without limitation, those related to transacting business with Embargoed Persons or the requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, U.S. Public Law 107-56, and the related regulations issued thereunder, including temporary regulations (collectively, as the same may be amended from time to time, the “Patriot Act”). To the best of Borrower’s knowledge, no tenant at the Property is currently identified by OFAC or otherwise qualifies as an Embargoed Person, or is owned or Controlled by an Embargoed Person.

Section 4.39.  Patriot Act

Neither Borrower nor Borrower Principal shall (a) be or become subject at any time to any law, regulation, or list of any government agency (including, without limitation, the list maintained by OFAC and accessible through the OFAC website) that prohibits or limits any

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lender from making any advance or extension of credit to Borrower or from otherwise conducting business with Borrower and Borrower Principal, or (b) fail to provide documentary and other evidence of Borrower’s identity as may be requested by any lender at any time to enable any lender to verify Borrower’s identity or to comply with any applicable law or regulation, including, without limitation, the Patriot Act. In addition, Borrower hereby agrees to provide to Lender any additional information that Lender deems necessary from time to time in order to ensure compliance with all applicable laws concerning money laundering and similar activities.

Section 4.40.  Survival

Borrower agrees that, unless expressly provided otherwise, all of the representations and warranties of Borrower set forth in this Article 4 and elsewhere in this Agreement and in the other Loan Documents shall survive for so long as any portion of the Debt remains owing to Lender, All representations, warranties, covenants and agreements made in this Agreement or in the other Loan Documents by Borrower shall be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.

ARTICLE 5

BORROWER COVENANTS

From the date hereof and until repayment of the Debt in full and performance in full of all obligations of Borrower under the Loan Documents or the earlier release of the Lien of the Mortgage (and all related obligations) in accordance with the terms of this Agreement and the other Loan Documents, Borrower hereby covenants and agrees with Lender that:

Section 5.1.    Existence; Compliance with Legal Requirements

(a)Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, rights, licenses, permits and franchises and comply with all Legal Requirements applicable to it and the Property. Borrower hereby covenants and agrees not to commit, permit or suffer to exist any act or omission affording any Governmental Authority the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents. Borrower shall at all times maintain, preserve and protect all franchises and trade names used in connection with the operation of the Property. So long as American Express is in compliance with the terms of the American Express Lease with respect to the matters described in this Section 5.1, Borrower shall be deemed in compliance with this Section 5.1.

(b)Borrower, at its own expense, may contest or permit American Express to contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the Legal Requirements affecting the Property, provided that (i) no Default or Event of Default has occurred and is continuing; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower or the Property is subject and shall not constitute a default thereunder; (iii) neither the Property, any part thereof or interest therein, any of the tenants or occupants thereof, nor Borrower shall be affected in any material adverse way as a result of such proceeding; (iv) non-compliance with the

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Legal Requirements shall not impose civil or criminal liability on Borrower or Lender; (v) unless the contest is initiated and conducted by American Express pursuant to the American Express Lease Borrower shall have furnished the security as may be required in the proceeding or by Lender to ensure compliance by Borrower with the Legal Requirements; and (vi) if the contest is initiated and conducted by Borrower, Borrower shall have furnished to Lender all other items reasonably requested by Lender. Borrower shall give written notice to Lender of any contest initiated and conducted by Borrower promptly after initiation thereof and shall inform Lender of any contest initiated and conducted by American Express of which Borrower is given notice by American Express.

Section 5.2.Maintenance and Use of Property

Borrower shall cause the Property to be maintained in a good and safe condition and repair. The Improvements and the Personal Property shall not be removed, demolished or except as may be expressly permitted under the American Express Lease without the consent of the landlord thereunder, materially altered (except for normal replacement of the Personal Property) without the prior written consent of Lender. So long as American Express is in compliance with the terms of the American Express Lease with respect to the matters described in this Section 5.2, Borrower shall be deemed in compliance with this Section 5.2. If under applicable zoning provisions the use of all or any portion of the Property is or shall become a nonconforming use, Borrower will not cause or permit the nonconforming use to be discontinued or the nonconforming Improvement to be abandoned without the express written consent of Lender.

Section 5.3.Waste

Borrower shall not commit or suffer any waste of the Property or make any change in the use of the Property which will in any way materially increase the risk of fire or other hazard arising out of the operation of the Property, or take any action that might invalidate or give cause for cancellation of any Policy, or do or permit to be done thereon anything that may in any way impair the value of the Property or the security for the Loan. Borrower will not, without the prior written consent of Lender, permit any drilling or exploration for or extraction, removal, or production of any minerals from the surface or the subsurface of the Property, regardless of the depth thereof or the method of mining or extraction thereof.

Section 5.4.Taxes and Other Charges

(a)Borrower shall pay or cause American Express to pay all Taxes and Other Charges now or hereafter levied or assessed or imposed against the Property or any part thereof as the same become due and payable. Borrower shall furnish or cause to be furnished to Lender such receipts for the payment of the Taxes and the Other Charges as are delivered to Borrower by American Express and, upon request by Lender, a certificate from Borrower and Borrower Principal that as of the date of such certificate there are no liens filed against the Property arising from the non-payment of Taxes or Other Charges. Borrower shall not suffer nor permit American Express to suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. So long as American Express is in

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compliance with the terms of the American Express Lease with respect to the matters described in this Section 5.4, Borrower shall be deemed in compliance with this Section 5.4.

(b)Borrower, at its own expense, may contest or permit American Express to contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) no Default or Event of Default has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable Legal Requirements; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish or cause American Express to Furnish (but only to the extent required to be furnished by American Express under the American Express Lease) such security as may be required in the proceeding, or deliver to Lender such reserve deposits as may be requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon (unless Borrower or American Express has paid all of the Taxes or Other Charges under protest). Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the judgment of Lender, the entitlement of such claimant is established or the Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, canceled or lost or there shall be any danger of the Lien of the Mortgage being primed by any related Lien.

Section 5.5.Litigation

Borrower shall give prompt written notice to Lender of any litigation or governmental proceedings pending or threatened in writing against Borrower which might materially adversely affect Borrower’s condition (financial or otherwise) or business or the Property.

Section 5.6.    Access to Property

Borrower shall permit agents, representatives and employees of Lender to inspect the Property or any part thereof at reasonable hours upon reasonable advance notice, subject to the rights of American Express under the American Express Lease.

Section 5.7.Notice of Default

Borrower shall promptly advise Lender of any material adverse change in the condition (financial or otherwise) of Borrower, any Borrower Principal or the Property or of the occurrence of any Default or Event of Default of which Borrower has knowledge and of any American Express Lease Default of which Borrower has knowledge.

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Section 5.8.    Cooperate in Legal Proceedings

Borrower shall at Borrower’s expense cooperate fully with Lender with respect to any proceedings before any court, board or other Governmental Authority which may in any way affect the rights of Lender hereunder or any rights obtained by Lender under any of the other Loan Documents and, in connection therewith, permit Lender, at its election, to participate in any such proceedings.

Section 5.9.    Performance by Borrower

Borrower shall in a timely manner observe, perform and fulfill each and every covenant, term and provision to be observed and performed by Borrower under this Agreement and the other Loan Documents and any other agreement or instrument affecting or pertaining to the Property and any amendments, modifications or changes thereto.

Section 5.10.  Awards; Insurance Proceeds

Borrower shall cooperate with Lender in obtaining for Lender the benefits of any Awards or Insurance Proceeds lawfully or equitably payable to Borrower in connection with the Property, and Lender shall be reimbursed for any expenses incurred in connection therewith (including reasonable, actual attorneys’ fees and disbursements, and the payment by Borrower of the expense of an appraisal on behalf of Lender in case of a Casualty or Condemnation affecting the Property or any part thereof) out of such Awards or Insurance Proceeds. The actual payment of any Awards shall be governed by Section 8.4 hereof.

Section 5.11.  Financial Reporting

(a)Borrower and Borrower Principal shall keep adequate books and records of account in accordance with federal tax basis accounting, or in accordance with other methods acceptable to Lender in its sole discretion, consistently applied and shall furnish to Lender:

(i)prior to a Securitization, at the request of Lender, monthly, and following a Securitization, quarterly and annual certificates signed and dated by Borrower, certifying that the American Express Lease is in full force and effect, whether any defaults (or any matter that, with the passage of time or the giving of notice, could become a default) exist thereunder and any other information as is reasonably required by Lender, within twenty (20) days after the end of each calendar month, thirty (30) days after the end of each fiscal quarter or one hundred twenty (120) days after the close of each fiscal year of Borrower, as applicable;

(ii)prior to a Securitization, at the request of Lender, monthly, and following a Securitization, quarterly and annual operating statements of the Property, prepared and certified by Borrower in the form required by Lender, detailing the revenues received, the expenses incurred and the net operating income before and after debt service (principal and interest) and major capital improvements (including, without limitation, any capital improvements planned by American Express of which Borrower has notice) for the period of calculation and containing appropriate year-to-date information, within twenty (20) days after the end of each calendar month, thirty (30) days after the end of each

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fiscal quarter or one hundred (120) days after the close of each fiscal year of Borrower, as applicable;

(iii)annual balance sheets, profit and loss statements, statements of cash flows, and statements of change in financial position of Borrower and Borrower Principal in the form required by Lender prepared and certified by Borrower and Borrower Principal within one hundred twenty (120) days after the close of each fiscal year of Borrower and Borrower Principal, as the case may be (provided that with respect to Borrower, such statements may be delivered by the holder(s) of beneficial interests in Borrower in accordance with Section 6.1(a)(viii); and

(iv)all financial statements, operating statements, budgets, capital repair estimates or projections and certifications of any kind with respect to the foregoing delivered to Borrower by American Express under the American Express Lease.

(b)To the extent not inconsistent with the provisions of Section 5.11(a) hereof (e.g., GAAP accounting and audits shall not be required ), Borrower and Borrower Principal shall furnish Lender with such other additional financial or management information (including state and federal tax returns) as may, from time to time, be reasonably required by Lender in form and substance satisfactory to Lender (including, without limitation, any financial reports required to be delivered by any Tenant or any guarantor of any Lease pursuant to the terms of such Lease), and shall furnish to Lender and its agents convenient facilities for the examination and audit of any such books and records.

(c)Without limiting any other rights available to Lender under this Loan Agreement or any of the other Loan Documents, in the event Borrower shall fail to timely furnish Lender any financial document or statement in accordance with this Section 5.11, Borrower shall promptly pay to Lender a non-refundable charge in the amount of $500 for each such failure. The payment of such amount shall not be construed to relieve Borrower of any Event of Default hereunder arising from such failure.

(d)All items requiring the certification of Borrower shall, except where Borrower is an individual, require a certificate executed by the general partner, managing member or chief executive officer of Borrower, as applicable (and the same rules shall apply to any sole shareholder, general partner or managing member which is not an individual).

Section 5.12.    Estoppel Statement

(a)After request by Lender, Borrower shall within ten (10) Business Days furnish Lender with a statement, duly acknowledged and certified, setting forth (i) the amount of the original principal amount of the Note, (ii) the rate of interest on the Note, (iii) the unpaid principal amount of the Note, (iv) the date installments of interest and/or principal were last paid, (v) any offsets or defenses to the payment of the Debt, if any, and (vi) that the Note, this Agreement, the Mortgage and the other Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such modification.

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(b)Borrower shall use its best efforts to deliver to Lender, promptly upon request, a duly executed estoppel certificate from American Express on the form attached to the American Express Lease as an exhibit.

Section 5.13.    Leasing Matters.

(a)Borrower (i) shall observe and perform all the obligations imposed on the landlord under the American Express Lease and shall not do or permit to be done anything to impair the value of the American Express Lease as security for the Debt; (ii) shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the American Express Lease on the part of the tenant thereunder to be observed or performed; (iv) shall not collect any of the Rents more than one (1) month in advance; (v) shall not execute any other assignment of the landlord’s interest in the American Express Lease or the Rents; and (vi) shall not consent to any assignment of or subletting under the American Express Lease not in accordance with its terms without the prior written consent of Lender.

(b)Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a surrender of space under or shorten the term of the American Express Lease.

Section 5.14.    Property Management

(a)Borrower shall (i) promptly perform and observe all of the covenants required to be performed and observed by it under the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (ii) promptly notify Lender of any default under the Management Agreement of which it is aware; (iii) promptly deliver to Lender a copy of any notice of default or other material notice received by Borrower under the Management Agreement; (iv) promptly give notice to Lender of any notice or information that Borrower receives which indicates that Manager is terminating the Management Agreement or that Manager is otherwise discontinuing its management of the Property; and (v) promptly enforce the performance and observance of all of the covenants required to be performed and observed by Manager under the Management Agreement.

(b)If at any time, (i) Manager shall become insolvent or a debtor in a bankruptcy proceeding; (ii) an Event of Default has occurred and is continuing; or (iii) a default has occurred and is continuing after the expiration of any applicable cure periods under the Management Agreement, Borrower shall, at the request of Lender, terminate the Management Agreement upon thirty (30) days prior notice to Manager and replace Manager with a Qualified Manager, it being understood and agreed that the management fee for such replacement manager shall not exceed then prevailing market rates.

(c)In addition to the foregoing, in the event that Lender, in Lender’s reasonable discretion, at any time prior to the termination of the Assignment of Management Agreement, determines that the Property is not being managed in accordance with generally accepted management practices for projects similarly situated, Lender may deliver written notice thereof to Borrower and Manager, which notice shall specify with particularity the grounds for Lender’s

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determination. If Lender reasonably determines that the conditions specified in Lender’s notice are not remedied to Lender’s reasonable satisfaction by Borrower or Manager within thirty (30) days from the date of such notice or that Borrower or Manager has failed to diligently undertake correcting such conditions within such thirty (30) day period, Lender may direct Borrower to terminate the Management Agreement and to replace Manager with a Qualified Manager on terms and conditions satisfactory to Lender, it being understood and agreed that the management fee for such replacement manager shall not exceed then prevailing market rates.

(d)Borrower shall not, without the prior written consent of Lender (which consent shall not be unreasonably withheld, conditioned or delayed): (i) surrender, terminate or cancel the Management Agreement or otherwise replace Manager or enter into any other management agreement with respect to the Property; (ii) reduce or consent to the reduction of the term of the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Management Agreement; or (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the Management Agreement in any material respect. In the event that Borrower replaces Manager at any time during the term of Loan pursuant to this subsection, such Manager shall be a Qualified Manager.

(e)Notwithstanding the foregoing, Borrower shall be permitted to transfer the management of the Property to an Affiliate of Manager provided that the terms of the management contract between Borrower and such entity provides for fees no greater than, is on terms that are substantially similar to and is no less favorable to Borrower than the Management Agreement in effect as of the date hereof.

Section 5.15.Liens

Borrower shall not, without the prior written consent of Lender, create, incur, assume or suffer to exist any Lien on any portion of the Property or permit any such action to be taken, except Permitted Encumbrances.

Section 5.16.   Debt Cancellation

Borrower shall not cancel or otherwise forgive or release any claim or debt owed to Borrower by any Person, except for adequate consideration and in the ordinary course of Borrower’s business.

Section 5.17.   Zoning

Borrower shall not initiate or consent to any zoning reclassification of any portion of the Property or seek any variance under any existing zoning ordinance or use or permit the use of any portion of the Property in any manner that could result in such use becoming a non-conforming use under any zoning ordinance or any other applicable land use law, rule or regulation, without the prior written consent of Lender.

Section 5.18.   ERISA

(a)Borrower shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under the

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Note, this Agreement or the other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA.

(b)Borrower further covenants and agrees to deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan, as requested by Lender in its sole discretion, that (i) Borrower is not and does not maintain an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmental plan” within the meaning of Section 3(3) of ERISA; (ii) Borrower is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (iii) one or more of the following circumstances is true:

(A)Equity interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R. §2510.3-101(b)(2);

(B)Less than twenty-five percent (25%) of each outstanding class of equity interests in Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R. §2510.3-101(f)(2); or

(C)Borrower qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. §2510.3-101(c) or (c).

Section 5.19.   No Joint Assessment

Borrower shall not suffer, permit or initiate the joint assessment of the Property with (a) any other real property constituting a tax lot separate from the Property, or (b) any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the Lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to the Property.

Section 5.20.   Reciprocal Easement Agreements

Borrower shall not enter into, terminate or modify any REA without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Borrower shall enforce, comply with, and cause each of the parties to the REA to comply with all of the material economic terms and conditions contained in the REA, provided that Borrower may agree, without Lender’s consent, to modifications to any REA or to grant easements with respect to the Property which could not reasonably be expected to have a material adverse effect on the use, value or operation of the Property, on the ability of American Express to perform its obligations under the American Express Lease or on Borrower’s ability to perform its obligations under the Loan Documents.

ARTICLE 6
ENTITY COVENANTS

Section 6.1.    Single Purpose Entity/Separateness

Until the Debt has been paid in full, Borrower represents, warrants and covenants as follows:

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(a)Borrower has not and will not:

(i)engage in any business or activity other than the ownership, operation and maintenance of the Property, and activities incidental thereto;

(ii)acquire or own any assets other than (A) the Property, and (B) such incidental Personal Property as may be necessary for the operation of the Property;

(iii)except as expressly provided in Article 7 hereof, merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure;

(iv)fail to observe all organizational formalities, or fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the applicable Legal Requirements of the jurisdiction of its organization or formation, or amend, modify, terminate or fail to comply with the provisions of its organizational documents;

(v) own any subsidiary, or make any investment in, any Person;

(vi)commingle its assets with the assets of any other Person, or permit any Affiliate or constituent party independent access to its bank accounts;

(vii)incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) the Debt, (B) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past the date incurred and paid on or prior to such date, and/or (C) financing leases and purchase money indebtedness incurred in the ordinary course of business relating to Personal Property on commercially reasonable terms and conditions; provided however, the aggregate amount of the indebtedness described in (B) and (C) shall not exceed at any time three percent (3%) of the outstanding principal amount of the Note;

(viii)permit its records, books of account, bank accounts, financial statements and accounting records (including with respect to financial position, assets, liabilities, net worth and operating results) to be shown on the financial statements of any holder of a beneficial interest in Borrower unless such financial statements shall contain a footnote indicating that Borrower is a separate legal entity and the assets of Borrower are not available as collateral to creditors of such holder;

(ix)enter into any contract or agreement with any general partner, member, shareholder, principal, guarantor of the obligations of Borrower, or any Affiliate of the foregoing, except upon terms and conditions that are intrinsically fair, commercially reasonable and substantially similar to those that would be available on an arm’s-length basis with unaffiliated third parties;

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(x)maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;

(xi)assume or guarantee the debts of any other Person, hold itself out to be responsible for the debts of any other Person, or otherwise pledge its assets for the benefit of any other Person or hold out its credit as being available to satisfy the obligations of any other Person;

(xii)make any loans or advances to any Person;

(xiii)fail to file its own tax returns or files a consolidated federal income tax return with any Person (unless prohibited or required, as the case may be, by applicable Legal Requirements);

(xiv)fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name or fail to correct any known misunderstanding regarding its separate identity;

(xv)fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that Borrower’s failure to do so solely because of a shortfall in cash flow derived from the operation of the Property shall not, by itself, constitute a breach of this covenant);

(xvi)Without the unanimous written consent of all of its members, as applicable, and the written consent of 100% of the managers of Borrower, including, without limitation, the Independent Director, (a) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any Creditors Rights Laws, (b) seek or consent to the appointment of a receiver, liquidator or any similar official, (c) take any action that might cause such entity to become insolvent, or (d) make an assignment for the benefit of creditors;

(xvii)fail to allocate shared expenses (including, without limitation, shared office space and services performed by an employee of an Affiliate) among the Persons sharing such expenses and to use separate stationery, invoices and checks;

(xviii)fail to remain solvent or pay its own liabilities (including, without limitation, salaries of its own employees) only from its own funds (provided that Borrower’s failure to do so solely because of a shortfall in cash flow derived from the operation of the Property shall not, by itself, constitute a breach of this covenant);

(xix)acquire obligations or securities of its partners, members, shareholders or other affiliates, as applicable;

(xx)violate or cause to be violated the assumptions made with respect to Borrower, Manager (if applicable) and their respective direct and/or indirect owners in any opinion letter pertaining to substantive consolidation delivered to Lender in connection with the Loan; or

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(xxi)fail to maintain a sufficient number of employees in light of its contemplated business operations.

(b)The limited liability company agreement of Borrower (the “LLC Agreement”) shall, provide that (i) upon the occurrence of any event that causes the sole member of Borrower (“Member”) to cease to be the member of Borrower (other than (A) upon an assignment by Member of all of its limited liability company interest in Borrower and the admission of the transferee in accordance with the Loan Documents and the LLC Agreement, or (B) the resignation of Member and the admission of an additional member of Borrower in accordance with the terms of the Loan Documents and the LLC Agreement), any person acting as Independent Director of Borrower shall, without any action of any other Person and simultaneously with the Member ceasing to be the member of Borrower, automatically be admitted to Borrower (“Special Member”) and shall continue Borrower without dissolution and (ii) Special Member may not resign from Borrower or transfer its rights as Special Member unless (A) a successor Special Member has been admitted to Borrower as Special Member in accordance with requirements of Delaware law and (B) such successor Special Member has also accepted its appointment as an Independent Director. The LLC Agreement shall further provide that (i) Special Member shall automatically cease to be a member of Borrower upon the admission to Borrower of a substitute Member, (ii) Special Member shall be a member of Borrower that has no interest in the profits, losses and capital of Borrower and has no right to receive any distributions of Borrower assets, (iii) pursuant to Section 18-301 of the Delaware Limited Liability Company Act (the “Act”), Special Member shall not be required to make any capital contributions to Borrower and shall not receive a limited liability company interest in Borrower, (iv) Special Member, in its capacity as Special Member, may not bind Borrower and (v) except as required by any mandatory provision of the Act, Special Member, in its capacity as Special Member, shall have no right to vote on, approve or otherwise consent to any action by, or matter relating to, Borrower, including, without limitation, the merger, consolidation or conversion of Borrower; provided, however, such prohibition shall not limit the obligations of Special Member, in its capacity as Independent Director, to vote on such matters required by the Loan Documents or the LLC Agreement. In order to implement the admission to Borrower of Special Member, Special Member shall execute a counterpart to the LLC Agreement. Prior to its admission to Borrower as Special Member, Special Member shall not be a member of Borrower.

Upon the occurrence of any event that causes the Member to cease to be a member of Borrower, to the fullest extent permitted by law, the personal representative of Member shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of Member in Borrower, agree in writing (i) to continue Borrower and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of Member of Borrower in Borrower. Any action initiated by or brought against Member or Special Member under any Creditors Rights Laws shall not cause Member or Special Member to cease to be a member of Borrower and upon the occurrence of such an event, the business of Borrower shall continue without dissolution. The LLC Agreement shall provide that each of Member and Special Member waives any right it might have to agree in writing to dissolve Borrower upon the occurrence of any action initiated by or brought against Member or Special Member under any Creditors Rights Laws, or the occurrence of an event that causes Member or Special Member to cease to be a member of Borrower.

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Section 6.2.    Change of Name, Identity or Structure

Borrower shall not change or permit to be changed (a) Borrower’s name, (b) Borrower’s identity (including its trade name or names), (c) Borrower’s principal place of business set forth on the first page of this Agreement, (d) the corporate, partnership or other organizational structure of Borrower, or Borrower Principal, (c) Borrower’s state of organization, or (f) Borrower’s organizational identification number, without in each case notifying Lender of such change in writing at least thirty (30) days prior to the effective date of such change and, in the case of a change in Borrower’s structure, without first obtaining the prior written consent of Lender. In addition, Borrower shall not change or permit to be changed any organizational documents of Borrower if such change would adversely impact the covenants set forth in Section 6.1 and Section 6.4 hereof.  Borrower authorizes Lender to file any financing statement or financing statement amendment required by Lender to establish or maintain the validity, perfection and priority of the security interest granted herein.  At the request of Lender, Borrower shall execute a certificate in form satisfactory to Lender listing the trade names under which Borrower intends to operate the Property, and representing and warranting that Borrower does business under no other trade name with respect to the Property. If Borrower does not now have an organizational identification number and later obtains one, or if the organizational identification number assigned to Borrower subsequently changes, Borrower shall promptly notify Lender of such organizational identification number or change. Nothing in this Section 6.2 shall be deemed to restrict any express rights granted to Borrower under Article 7 hereof.

Section 6.3.    Business and Operations

Borrower will qualify to do business and will remain in good standing under the laws of the State as and to the extent the same are required for the ownership, maintenance, management and operation of the Property.

Section 6.4.    Independent Director

(a)The organizational documents of Borrower shall provide that at all times there shall be, and Borrower shall cause there to be, at least one duly appointed member of the board of managers (each an “Independent Director”) of Borrower reasonably satisfactory to Lender who is not at the time of such individual’s initial appointment, and shall not have been at any time during the preceding five (5) years, and shall not be at any time while serving as a manager of Borrower, either (i) a shareholder (or other equity owner) of, or an officer, director, partner, manager, member (other than as a Special Member in the case of single member Delaware limited liability companies), employee, attorney or counsel of, Borrower, Borrower Principal or any of their respective shareholders, partners, members, subsidiaries or affiliates; (ii) a customer or creditor of, or supplier to, Borrower or any of its respective shareholders, partners, members, subsidiaries or affiliates who derives any of its purchases or revenue from its activities with Borrower or any Affiliate of any of them; (iii) a Person who Controls or is under common Control with any such shareholder, officer, director, partner, manager, member, employee, supplier, creditor or customer; or (iv) a member of the immediate family of any such shareholder, officer, director, partner, manager, member, employee, supplier, creditor or customer.

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(b)The organizational documents of Borrower shall provide that the board of managers of Borrower shall not take any action which, under the terms of any certificate of incorporation, by-laws or any voting trust agreement with respect to any common stock, requires an unanimous vote of the board of managers of Borrower unless at the time of such action there shall be at least one member of the board who is an Independent Director. Borrower will not, without the unanimous written consent of its board of managers including the Independent Director, on behalf of Borrower, (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable Creditors Rights Laws; (ii) seek or consent to the appointment of a receiver, liquidator or any similar official; (iii) take any action that might cause such entity to become insolvent; or (iv) make an assignment for the benefit of creditors.

ARTICLE 7
NO SALE OR ENCUMBRANCE

Section 7.1.    Transfer Definitions

For purposes of this Article 7 an “Affiliated Manager” shall mean any managing agent in which Borrower, Borrower Principal, or any affiliate of such entities has, directly or indirectly, any legal, beneficial or economic interest; “Control” shall mean the power to direct the management and policies of a Restricted Party, directly or indirectly, whether through the ownership of voting securities or other beneficial interests, by contract or otherwise; “Restricted Party” shall mean Borrower, Borrower Principal, any Affiliated Manager, or any shareholder, partner, member or non-member manager, or any direct or indirect legal or beneficial owner of Borrower, Borrower Principal, any Affiliated Manager or any non-member manager; and a “Sale or Pledge” shall mean a voluntary or involuntary sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment, grant of any options with respect to, or any other transfer or disposition of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) of a legal or beneficial interest.

Section 7.2.No Sale/Encumbrance

(a)Borrower shall not cause or permit a Sale or Pledge of the Property or any part thereof or any legal or beneficial interest therein nor permit a Sale or Pledge of an interest in any Restricted Party (in each case, a “Prohibited Transfer”),other than pursuant to the American Express Lease, without the prior written consent of Lender.

(b)A Prohibited Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock in one or a series of transactions; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general or limited partner or any profits or proceeds relating to such partnership interests or the creation or issuance of new partnership

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interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of any member or any profits or proceeds relating to such membership interest; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the Manager (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.14.

Section 7.3.    Permitted Transfers

Notwithstanding the provisions of Section 7.2, the following transfers shall not be deemed to be a Prohibited Transfer: (a) a transfer by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party, so long as Borrower delivers notice to Lender as soon as practicable thereafter and that such Restricted Party is promptly reconstituted, if applicable, following the death of such member, partner or shareholder and there is no change in Control of such Restricted Party as a result of such transfer; (b) the Sale or Pledge, in one or a series of related transactions, of not more than forty-nine percent (49%) of the stock, limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such transfers shall result in a change in Control in the Restricted Party or change in control of the Property, and as a condition to each such transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed transfer. Notwithstanding the foregoing, any one or more of the transfers that results in any Person owning in excess of forty-nine percent (49%) of the ownership interest in a Restricted Party shall comply with the requirements of Section 7.4.

Section 7.4.    Lender’s Rights

Lender reserves the right to condition the consent, to a Prohibited Transfer requested hereunder upon (a) a modification of the terms hereof and an assumption of the Note and the other Loan Documents as so modified by the proposed Prohibited Transfer, (b) receipt of payment of a transfer fee equal to one percent (1%) of the outstanding principal balance of the Loan and all of Lender’s expenses incurred in connection with such Prohibited Transfer, (c) receipt of written confirmation from the Rating Agencies that the Prohibited Transfer will not result in a downgrade, withdrawal or qualification of the initial, or if higher, then current ratings issued in connection with a Securitization, or if a Securitization has not occurred, any ratings to be assigned in connection with a Securitization, (d) the proposed transferee’s continued compliance with the covenants set forth in this Agreement (including, without limitation, the covenants in Article 6) and the other Loan Documents, (c) a new manager for the Property and a new management agreement satisfactory to Lender, and (f) the satisfaction of such other conditions and/or legal opinions as Lender shall determine in its sole discretion to be in the interest of Lender. All expenses incurred by Lender shall be payable by Borrower whether or not Lender consents to the Prohibited Transfer. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Prohibited Transfer made without Lender’s consent. This provision shall apply to each and every Prohibited Transfer, whether or not Lender has consented to any previous Prohibited Transfer. In the event an opinion letter pertaining to

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substantive consolidation was delivered to Lender and the Rating Agencies in connection with the closing of the Loan, and if any Sale or Pledge permitted under this Article 7 results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the ownership interests in a Restricted Party, Borrower shall, prior to such transfer, and in addition to any other requirement for Lender consent contained herein, deliver a revised substantive non-consolidation opinion letter to Lender reflecting such Prohibited Transfer, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies.

Section 7.5.Assumption

Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to a transfer of the Property in its entirety to, and the related assumption of the Loan by, any Person (a “Transferee”) provided that each of the following terms and conditions are satisfied:

(a)no Default or Event of Default hay occurred;

(b)Borrower shall have (i) delivered written notice to Lender of the terms of such prospective transfer not less than forty-five (45) days before the date on which such transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in the amount of $10,000. Lender shall have the right to approve or disapprove the proposed transfer based on its then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld.  In determining whether to give or withhold its approval of the proposed transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Property, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate;

(c)Borrower shall have paid to Lender, concurrently with the closing of such transfer, (i) a non-refundable assumption fee in an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note, and (ii) all out-of-pocket costs and expenses, including reasonable attorneys’ fees, inclined by Lender in connection with the transfer;

(d)(i) Transferee shall have assumed and agreed to pay the Debt as and when due subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such transfer, Transferee and its constituent partners, members or shareholders as Lender may require, shall have executed, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender shall have

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assumed the obligations of Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the transfer of the Property pursuant to this Section 7.5;

(c)Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable law, and shall execute any additional documents reasonably requested by Lender;

(f)Borrower shall have delivered to Lender, without any cost or expense to Lender, such endorsements to Lender’s Title Insurance Policy insuring that fee simple or leasehold title to the Property, as applicable, is vested in Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;

(g)Transferee shall have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all appropriate papers evidencing Transferee’s organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof.

(h)Transferee shall assume the obligations of Borrower under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement;

(i)Transferee shall furnish an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (g) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (E) with respect to such other matters as Lender may reasonably request;

(j)if required by Lender, Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a qualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;

(k)Borrower’s obligations under the contract of sale pursuant to which the transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.5; and

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(l)Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies.

A consent by Lender with respect to a transfer of the Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Sale or Pledge of the Property. Upon the transfer of the Property pursuant to this Section 7.5, Borrower and Borrower Principal shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.

Section 7.6.    Assumption by Inland Permitted Transferee

Notwithstanding the foregoing provisions of this Article 7, Borrower shall be permitted to transfer the Property in its entirety to, provided the Loan is simultaneously assumed by, an Inland Permitted Transferee, and provided further that each of the following terms and conditions is satisfied:

(a)no Default or Event of Default has occurred;

(b)Borrower shall have delivered written notice to Lender of the terms of such prospective transfer not less than forty-five (45) days before the date on which such transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transferee as Lender shall reasonably require;

(c)Borrower shall have paid to Lender all out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection with the transfer;

(d)such Inland Permitted Transferee assumes and agrees to pay the Debt as and when due subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such transfer, such Inland Permitted Transferee and its constituent partners, members or shareholders as Lender may require, shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;

(e)Borrower and such Inland Permitted Transferee, without, any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable law, and shall execute any additional documents reasonably requested by Lender;

(f)Borrower shall have delivered to Lender, without any cost or expense to Lender, endorsements to Lender’s Title Insurance Policy insuring that fee simple title to the Property is vested in such Inland Permitted Transferee (subject to Permitted Encumbrances), hazard

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insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;

(g)such Inland Permitted Transferee shall have furnished to Lender, if such Inland Permitted Transferee is a corporation, partnership, limited liability company or other entity, all appropriate papers evidencing Transferee’s organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof, provided, however, that, (i) if such Inland Permitted Transferee is a limited partnership or a limited liability company (with more than one member), Lender may require that the general partner or managing member of such Inland Permitted Transferee also comply with the covenants set forth in Article 6, as modified to state that such general partner or managing member holds an interest in the Inland Permitted Transferee rather than an interest in the Property or (ii) if such Inland Permitted Transferee is a single member limited liability company, the state of organization of such entity must be Delaware and the organizational documents must provide for a springing member upon the bankruptcy or dissolution of the sole member;

(h)such Inland Permitted Transferee shall assume the obligations of Borrower under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement;

(i)Transferee shall furnish an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (g) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents; are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (E) with respect to such other matters as Lender may reasonably request, including, without limitation, customary single member limited liability company opinions in the event that such Inland Permitted Transferee is a Delaware limited liability company; and

(j)in the event a substantive non-consolidation opinion was required in connection with the closing of the Loan, Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies.

A consent by Lender with respect to a transfer of the Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.6 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Sale or Pledge of the Property.

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ARTICLE 8
INSURANCE; CASUALTY; CONDEMNATION; RESTORATION

Section 8.1.    Insurance

(a)Subject to the provisions of paragraph (g) of this Section 8.1, Borrower shall obtain and maintain, or cause American Express to maintain, insurance for Borrower and the Property providing at least the following coverages:

(i)comprehensive “special causes of loss” form of insurance (or its equivalent) on the Improvements and the Personal Property (A) in an amount equal to not less than one hundred percent (100%) of the “Full Replacement Cost,” which for purposes of this Agreement shall mean actual replacement value (exclusive of costs of excavations, foundations, underground utilities and footings) with a waiver of depreciation; (B) written on a replacement cost basis and containing either an agreed amount endorsement with respect to the Improvements and Personal Properly or a waiver of all co-insurance provisions; (C) providing for no deductible in excess of $10,000 for all such insurance coverage; (D) at all times insuring against at least those hazards that are commonly insured against under a “special causes of loss” form of policy, as the same shall exist on the date hereof, and together with any increase in the scope of coverage provided under such form after the date hereof; and (E) if any of the Improvements or the use of the Property shall at any time constitute legal non-conforming structures or uses, providing coverage for contingent liability from Operation of Building Laws, Demolition Costs and increased Cost of Construction Endorsements and containing an “Ordinance or Law Coverage” or “Enforcement” endorsement. In addition, Borrower shall obtain: (y) if any portion of the Improvements is currently or at any time in the future located in a “special flood hazard area” designated by the Federal Emergency Management Agency, flood hazard insurance in an amount equal to the maximum amount of such insurance available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended; and (z) earthquake insurance in amounts and in form and substance reasonably satisfactory to Lender in the event the Property is located in an area with a high degree of seismic risk, provided that the insurance pursuant to clauses (y) and (z) hereof shall be on terms consistent with the special causes of loss form required under this subsection (i);

(ii)commercial general liability insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about the Property, with such insurance (A) to be on the so-called “occurrence” form with a general aggregate limit of not less than $2,000,000 and a per occurrence limit of not less than $1,000,000; (B) to continue at not less than the aforesaid limit until required to be changed by Lender in writing by reason of changed economic conditions making such protection inadequate; and (C) to cover at least the following hazards; (1) premises and operations; (2) products and completed operations; (3) independent contractors; (4) blanket contractual liability; and (5) contractual liability covering the indemnities contained in Article 12 and Article 14 hereof to the extent the same is available;

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(iii)if the rating of American Express issued by the Rating Agencies falls below the Trigger Rating, loss of rents insurance or business income insurance, as applicable, (A) with loss payable to Lender; (B) covering all risks required to be covered by the insurance provided for in subsection (i) above; and (C) which provides that after the physical loss to the Improvements and Personal Property occurs, the loss of rents or income, as applicable, will be insured until such rents or income, as applicable, either returns to the same level that existed prior to the loss or the expiration of twelve (12) months, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period; and (D) which contains an extended period of indemnity endorsement which provides that after the physical loss to the Improvements and Personal Property has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss, or the expiration of twelve (12) months from the date that the Property is repaired or replaced and operations are resumed, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period. The amount of such loss of rents or business income insurance, as applicable, shall be determined prior to the date hereof and at least once each year thereafter based on Borrower’s reasonable estimate of the gross income from the Property for the succeeding period of coverage required above. All proceeds payable to Lender pursuant to this subsection shall be held by Lender and shall be applied to the obligations secured by the Loan Documents from time to time due and payable hereunder and under the Note; provided, however, that nothing herein contained shall be deemed to relieve Borrower of its obligations to pay the obligations secured by the Loan Documents on the respective dates of payment provided for in the Note, this Agreement and the other Loan Documents except to the extent such amounts are actually paid out of the proceeds of such loss of rents or business income insurance, as applicable;

(iv)at all times during which structural construction, repairs or alterations are being made with respect to the Improvements, and only if the Property coverage form does not otherwise apply, (A) owner’s contingent or protective liability insurance covering claims not covered by or under the terms or provisions of the above mentioned commercial general liability insurance policy; and (B) the insurance provided for in subsection (i) above written in a so-called Builder’s Risk Completed Value form (1) on a non-reporting basis, (2) against “special causes of loss” insured against pursuant to subsection (i) above, (3) including permission to occupy the Property, and (4) with an agreed amount endorsement waiving co-insurance provisions;

(v)workers’ compensation, subject to the statutory limits of the State, and employer’s liability insurance in respect of any work or operations on or about the Property, or in connection with the Property or its operation (if applicable);

(vi)comprehensive boiler and machinery insurance, if applicable, in amounts as shall be reasonably required by Lender on terms consistent with the commercial property insurance policy required under subsection (i) above;

(vii)excess liability insurance in an amount not less than $75,000,000 per occurrence on terms consistent with the commercial general liability insurance required under subsection (ii) above; and

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(viii)upon sixty (60) days’ written notice, such other reasonable insurance and in such reasonable amounts as Lender from time to time may reasonably request against such other insurable hazards which at the time are commonly insured against for property similar to the Property located in or around the region in which the Property is located.

With respect to the policies required to be maintained pursuant to clauses (i) through (viii) above, Borrower shall use commercially reasonable efforts, consistent with those of prudent owners of institutional quality commercial real estate, to maintain insurance against Losses resulting from acts of terrorism.

(b)All insurance provided for in Section 8.1(a) shall be obtained under valid and enforceable policies (collectively, the “Policies” or in the singular, the “Policy”), and shall be subject to the approval of Lender as to insurance companies, amounts, deductibles, loss payees and insureds.  The Policies shall be issued by financially sound and responsible insurance companies authorized to do business in the State and having a claims paying ability rating of “A-” or better by S&P (or such other ratings approved by Lender) and/or a general policy rating of “A” or better and a financial class of VIII or better by A.M. Best Company, Inc. The Policies described in Section 8.1(a) shall designate Lender and its successors and assigns as additional insureds, mortgagees and/or loss payee as deemed appropriate by Lender. To the extent such Policies are not available as of the Closing Date, Borrower shall deliver to Lender prior to the Closing Date an Acord 28 or similar certificate of insurance evidencing the coverages and amounts required hereunder and, upon request of Lender as soon as available after the Closing Date, certified copies of all Policies. Not less than ten (10) days prior to the expiration dates of any insurance coverage in place with respect to the Property, Borrower shall deliver to Lender an Acord 28 or similar certificate, accompanied by evidence satisfactory to Lender of payment of the premiums due in connection therewith (the “Insurance Premiums”),and, as soon as available thereafter, certified copies of all renewal Policies.

(c)Any blanket insurance Policy shall specifically allocate to the Property the amount of coverage from time to time required hereunder and shall otherwise provide the same protection as would a separate Policy insuring only the Property in compliance with the provisions of Section 8.1(a).

(d)All Policies provided for or contemplated by Section 8.1(a), except for the Policy referenced in Section 8.1(a)(v), shall name Borrower as the insured and Lender as the additional insured, as its interests may appear, and in the case of property damage, boiler and machinery, flood and earthquake insurance, shall contain a so-called New York standard non-contributing mortgagee clause in favor of Lender providing that the loss thereunder shall be payable to Lender.

(e)All Policies provided for in Section 8.1(a) shall contain clauses or endorsements to the effect that:

(i)no act or negligence of Borrower, or anyone acting for Borrower, or of any Tenant or other occupant, or failure to comply with the provisions of any Policy, which might otherwise result in a forfeiture of the insurance or any part thereof, shall in

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any way affect the validity or enforceability of the insurance insofar as Lender is concerned;

(ii)the Policies shall not be materially changed (other than to increase the coverage provided thereby) or canceled by the insurer without at least thirty (30) days’ (ten (10) days’ in the case of non-payment of premium) prior written notice to Lender and any other party named therein as an additional insured;

(iii)the issuers thereof shall give written notice to Lender if the Policies have not been renewed thirty (30) days prior to its expiration; and

(iv)Lender shall not be liable for any Insurance Premiums thereon or subject to any assessments thereunder.

(f)If at any time Lender is not in receipt of written evidence that all insurance required hereunder is in full force and effect, Lender shall have the right, without notice to Borrower, to take such action as Lender deems necessary to protect its interest in the Property, including, without limitation, obtaining such insurance coverage as Lender in its sole discretion deems appropriate. All premiums incurred by Lender in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by Borrower to Lender upon demand and, until paid, shall be secured by the Mortgage and shall bear interest at the Default Rate.

(g)Notwithstanding any other provision hereof to the contrary, Lender acknowledges that so long as no American Express Lease Default has occurred, Borrower shall not be required to obtain the insurance coverages set forth in paragraphs (a)(i) through (viii) if (x) Guarantor (or American Express if there is no Guarantor) is a self-insurer and maintains a rating issued by the Rating Agencies of not less than the Trigger Rating or (y) American Express maintains insurance with coverages and carriers in compliance with the terms of the American Express Lease.

Section 8.2.    Casualty

If the Property shall be damaged or destroyed, in whole or in part, by fire or other casualty (a “Casualty”), Borrower shall give prompt notice of such damage to Lender and shall promptly commence and diligently prosecute the Restoration of the Property in accordance with Section 8.4, whether or not Lender makes any Net Proceeds available pursuant to Section 8.4. Borrower shall pay all costs of such Restoration whether or not such costs are covered by insurance. Lender may, but shall not be obligated to make proof of loss if not made promptly by Borrower. Borrower shall adjust all claims for Insurance Proceeds in consultation with, and approval of, Lender; provided, however, if an Event of Default has occurred and is continuing, Lender shall have the exclusive right to participate in the adjustment of all claims for Insurance Proceeds.

Section 8.3.    Condemnation

Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the Condemnation of the Property of which Borrower has knowledge and shall deliver to Lender copies of any and all papers served in connection with such proceedings.

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Lender may participate in any such proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Debt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the provisions of Section 8.4, whether or not Lender makes any Net Proceeds available pursuant to Section 8.4. If the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt. So long as no American Express Lease Default has occurred, the payment and allocation of any Awards shall be governed by the American Express Lease.

Section 8.4.    Restoration

The following provisions shall apply in connection with the Restoration of the Property:

(a)If the Net Proceeds shall be less than $50,000 and the costs of completing the Restoration shall be less than $50,000, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 8.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.

(b)If the Net Proceeds are equal to or greater than $50,000 or the costs of completing the Restoration are equal to or greater than $50,000, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 8.4. The term “Net Proceeds” for purposes of this Section 8.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 8.1(a)(i), (iv), (vi) and (viii) as a result of a Casualty, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting the same (“Insurance Proceeds”),or (ii) the net amount of the Award as a result of a Condemnation, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting the same (“Condemnation Proceeds”),whichever the case may be.

(i) The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:

(A) no Event of Default shall have occurred and be continuing;

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(B)(1) in the event the Net Proceeds are Insurance Proceeds, less than thirty percent (30%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of a Casualty, or (2) in the event the Net Proceeds arc Condemnation Proceeds, less than ten percent (10%) of the land constituting the Property is taken, such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land;

(C)The American Express Lease shall remain in full force and effect during and after completion of the Restoration without abatement of Rent;

(D)Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than sixty (60) days after such Casualty or Condemnation, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion;

(E)Lender shall be satisfied that any operating deficits, including all scheduled payments under the Note, which will be incurred with respect to the Property as a result of the occurrence of any such Casualty or Condemnation, whichever the case may be, will be covered out of the insurance coverage referred to in Section 8.1(a)(iii) above;

(F)Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, (2) the earliest date required for such completion under the terms of any Leases or material agreements affecting the Property, (3) such time as may be required under applicable zoning law, ordinance, rule or regulation, or (4) the expiration of the insurance coverage referred to in Section 8.1(a)(iii);

(G)the Property and the use thereof after the Restoration will be in compliance with and permitted under all Legal Requirements;

(H)the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements;

(I)such Casualty or Condemnation, as applicable, does not result in the loss of access to the Property or the Improvements;

(J)Borrower shall deliver, or cause to be delivered, to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, which budget shall be acceptable to Lender; and

(K)the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s reasonable judgment to cover the cost of the Restoration.

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(ii)The Net Proceeds shall be held by Lender until disbursements commence, and, until disbursed in accordance with the provisions of this Section 8.4, shall constitute additional security for the Debt and other obligations under the Loan Documents. The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all the conditions precedent to such advance, including those set forth in Section 8.4(b)(i), have been satisfied, (B) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the related Restoration item have been paid for in full, and (C) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy. Notwithstanding the foregoing, Business Interruption Proceeds required to be maintained by Borrower pursuant to section 8.1(a)(iii) shall be controlled by Lender at all times, shall not be subject to the provisions of this Section 8.4 and shall be used solely for the payment of the obligations under the Loan Documents and Operating Expenses.

(iii)All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Restoration Consultant”).Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration.  The identity of the contractors, subcontractors and materialmen engaged in the Restoration, as well as the contracts in excess of $50,000 under which they have been engaged, shall be subject to prior review and acceptance by Lender and the Restoration Consultant. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration, including, without limitation, reasonable counsel fees and disbursements and the Restoration Consultant’s fees, shall be paid by Borrower.

(iv)         In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Restoration Consultant, minus the Restoration Retainage. The term “Restoration Retainage” shall mean an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Restoration Consultant, until the Restoration has been completed. The Restoration Retainage shall be reduced to five percent (5%) of the costs incurred upon receipt by Lender of satisfactory evidence that fifty percent (50%) of the Restoration has been completed. The Restoration Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Section 8.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Restoration Retainage shall not be released until the Restoration Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 8.4(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate Governmental Authorities, and Lender receives evidence satisfactory to

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Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Restoration Retainage; provided, however, that Lender will release the portion of the Restoration Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Restoration Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company issuing the Title Insurance Policy, and Lender receives an endorsement to the Title Insurance Policy insuring the continued priority of the lien of the Mortgage and evidence of payment of any premium payable for such endorsement. If required by Lender, the release of any such portion of the Restoration Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.

(v)Lender shall not be obligated to make disbursements of the Net Proceeds more frequently than once every calendar month.

(vi)If at any time the Net Proceeds or the undisbursed balance thereof shall not, in the reasonable opinion of Lender in consultation with the Restoration Consultant, be sufficient to pay in full the balance of the costs which are estimated by the Restoration Consultant to be incurred in connection with the completion of the Restoration, Borrower shall deposit the deficiency (the “Net Proceeds Deficiency”) with Lender before any further disbursement of the Net Proceeds shall be made. The Net Proceeds Deficiency deposited with Lender shall be held by Lender and shall be disbursed for costs actually incurred in connection with the Restoration on the same conditions applicable to the disbursement of the Net Proceeds, and until so disbursed pursuant to this Section 8.4(b) shall constitute additional security for the Debt and other obligations under the Loan Documents.

(vii)The excess, if any, of the Net Proceeds and the remaining balance, if any, of the Net Proceeds Deficiency deposited with Lender after the Restoration Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 8.4(b), and the receipt by Lender of evidence satisfactory to Lender that all costs incurred in connection with the Restoration have been paid in full, shall be remitted by Lender to Borrower, provided no Event of Default shall have occurred and shall be continuing under the Note, this Agreement or any of the other Loan Documents.

(c)All Net Proceeds not required (i) to be made available for the Restoration or (ii) to be returned to Borrower as excess Net Proceeds pursuant to Section 8.4(b)(vii) may (x) be retained and applied by Lender toward the payment of the Debt whether or not then due and payable in such order, priority and proportions as Lender in its sole discretion shall deem proper, or, (y) at the sole discretion of Lender, the same may be paid, either in whole or in part, to Borrower for such purposes and upon such conditions as Lender shall designate.

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(d)In the event of foreclosure of the Mortgage, or other transfer of title to the Property in extinguishment in whole or in part of the Debt, all right, title and interest of Borrower in and to the Policies then in force concerning the Property and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure, Lender or other transferee in the event of such other transfer of title.

(e)Notwithstanding the foregoing, so long as no American Express Lease Default has occurred, the Net Proceeds shall be used for restoration of the Property in accordance with the provisions of the American Express Lease.

ARTICLE 9

REPLACEMENTS; RESERVE FUNDS

Section 9.1.    Replacements

On an ongoing basis throughout the term of the Loan, Borrower shall make capital repairs, replacements and improvements necessary to keep the Property in good order and repair and in a good marketable condition or prevent deterioration of the Property.  So long as no American Express Lease Default shall have occurred, the compliance by American Express with its obligations For maintenance of the Property as set forth in the American Express Lease shall be deemed compliance by Borrower with the provisions of this Section 9.1.

Section 9.2.    Tax and Insurance Reserve Funds

If required by Lender following a default by American Express under the American Express Lease Borrower shall establish an Eligible Account with Lender or Lender’s agent sufficient to discharge Borrower’s obligations for the payment of Taxes and Insurance Premiums pursuant to Section 5.4 and Section 8.1 hereof (the “Tax and Insurance Reserve Account”)Borrower shall deposit into the Tax and Insurance Reserve Account on each Scheduled Payment Date (a) one-twelfth of the Taxes that Lender estimates will be payable during the next ensuing twelve (12) months or such higher amount necessary to accumulate with Lender sufficient funds to pay all such Taxes at least thirty (30) days prior to the earlier of (i) the date that the same will become delinquent and (ii) the date that additional charges or interest will accrue due to the non-payment thereof, and (b) except to the extent Lender has waived the insurance escrow because the insurance required hereunder is maintained under a blanket insurance Policy acceptable to Lender in accordance with Section 8.1(c), one-twelfth of the Insurance Premiums that Lender estimates will be payable during the next ensuing twelve (12) months for the renewal of the coverage afforded by the Policies upon the expiration thereof or such higher amount necessary to accumulate with Lender sufficient funds to pay all such Insurance Premiums at least thirty (30) days prior to the expiration of the Policies (said amounts in (a) and (b) above hereinafter called the “Tax and Insurance Reserve Funds”).Lender will apply the Tax and Insurance Reserve Funds to payments of Taxes and Insurance Premiums required to be made by Borrower pursuant to Section 5.4 and Section 8.1 hereof. In making any disbursement from the Tax and Insurance Reserve Account, Lender may do so according to any bill, statement or estimate procured from the appropriate public office or tax lien service (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums), without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim

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thereof. If the amount of the Tax and Insurance Reserve Funds shall exceed the amounts due for Taxes and Insurance Premiums pursuant to Section 5.4 and Section 8.1 hereof, Lender shall, in its sole discretion, return any excess to Borrower or credit such excess against future payments to be made to the Tax and Insurance Reserve Account. In allocating any such excess, Lender may deal with the person shown on Lender’s records as being the owner of the Property. Any amount remaining in the Tax and Insurance Reserve Account after the Debt has been paid in full shall be returned to Borrower or the person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto.  If at any time Lender reasonably determines that the Tax and Insurance Reserve Funds are not or will not be sufficient to pay Taxes and Insurance Premiums by the dates set forth in (a) and (b) above, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.

Section 9.3.    Reserve Funds Generally

(a)No earnings or interest on the Reserve Accounts shall be payable to Borrower. Neither Lender nor any loan servicer that at any time holds or maintains the Reserve Accounts shall have any obligation to keep or maintain such Reserve Accounts or any funds deposited therein in interest-bearing accounts. If Lender or any such loan servicer elects in its sole and absolute discretion to keep or maintain any Reserve Accounts or any funds deposited therein in an interest-bearing account (i) the account shall be an Eligible Account, (ii) such funds shall not be invested except in Permitted Investments, and (iii) all interest earned or accrued thereon shall be for the account of and be retained by Lender or such loan servicer.

(b)Borrower grants to Lender a first-priority perfected security interest in, and assigns and pledges to Lender, each of the Reserve Accounts and any and all funds hereafter deposited therein as additional security for payment of the Debt. Until expended or applied in accordance herewith, the Reserve Accounts and the Reserve Funds shall constitute additional security for the Debt. The provisions of this Section 9.9 are intended to give Lender or any subsequent holder of the Loan “control” of the Reserve Accounts within the meaning of the UCC.

(c)The Reserve Accounts and any and all Reserve Funds deposited therein shall be subject to the exclusive dominion and control of Lender, which shall hold the Reserve Accounts and any or all Reserve Funds now or hereafter deposited therein subject to the terms and conditions of this Agreement.  Borrower shall have no right of withdrawal from the Reserve Accounts or any other right or power with respect to the Reserve Accounts or any or all of the Reserve Funds hereinafter deposited therein, except as expressly provided in this Agreement.

(d)Lender shall furnish or cause to be furnished to Borrower, without charge, an annual accounting of each Reserve Account in the normal format of Lender or its loan servicer, showing credits and debits to such Reserve Account and the purpose for which each debit to such Reserve Account was made.

(e)As long as no Event of Default has occurred, Lender shall make disbursements from the Reserve Accounts in accordance with this Agreement.  All such disbursements shall be

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deemed to have been expressly pre-authorized by Borrower, and shall not be deemed to constitute the exercise by Lender of any remedies against Borrower unless an Event of Default has occurred and is continuing and Lender has expressly stated in writing its intent to proceed to exercise its remedies as a secured party, pledgee or lienholder with respect to the Reserve Accounts.

(f)The Reserve Funds shall not constitute escrow or trust funds and may be commingled with other monies held by Lender. Notwithstanding anything else herein to the contrary, Lender may commingle in one or more Eligible Accounts any and all funds controlled by Lender, including, without limitation, funds pledged in favor of Lender by other borrowers, whether for the same purposes as the Reserve Accounts or otherwise. Without limiting any other provisions of this Agreement or any other Loan Document, the Reserve Accounts may be established and held in such name or names as Lender or its loan servicer, as agent for Lender, shall deem appropriate, including, without limitation, in the name of Lender or such loan servicer as agent for Lender. In the case of any Reserve Account which is held in a commingled account, Lender or its loan servicer, as applicable, shall maintain records sufficient to enable it to determine at all times which portion of such account is related to the Loan. The Reserve Accounts are solely for the protection of Lender and Lender shall have no responsibility beyond the allowance of due credit for the sums actually received by Lender or beyond the reimbursement or payment of the costs and expenses for which such accounts were established in accordance with their terms. Upon assignment of the Loan by Lender, any Reserve Funds shall be turned over to the assignee and any responsibility of Lender as assignor shall terminate. The requirements of this Agreement concerning Reserve Accounts in no way supersede, limit or waive any other rights or obligations of the parties under any of the Loan Documents or under applicable law.

(g)Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in the Reserve Accounts or the Reserve Funds deposited therein or permit any Lien to attach thereto, except for the security interest granted in this Section 9.9, or any levy to be made thereon, or any UCC Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.

(h)Borrower will maintain the security interest created by this Section 9.9 as a first priority perfected security interest and will defend the right, title and interest of Lender in and to the Reserve Accounts and the Reserve Funds against the claims and demands of all Persons whomsoever. At any time and from time to time, upon the written request of Lender, and at the sole expense of Borrower, Borrower will promptly and duly execute and deliver such further instruments and documents and will take such further actions as Lender reasonably may request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted.

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ARTICLE 10
CASH MANAGEMENT

Section 10.1.  Cash Management Account

(a)Borrower acknowledges and confirms that Borrower has established, and Borrower covenants that it shall maintain an Eligible Account into which Borrower shall, and shall cause Manager to, deposit or cause to be deposited all Rents and other revenue from the Property during the Cash Management Period or upon the occurrence of an Event of Default prior to the commencement of the Cash Management Period pursuant to the terms of Section 10.2 hereof (such account, the sub-accounts thereof, all funds at any time on deposit therein and any proceeds, replacements or substitutions of such account or funds therein, are referred to herein as the “Cash Management Account”).

(b)The Cash Management Account shall be in the name of Borrower for the benefit of Lender, provided that Borrower shall be the owner of all funds on deposit in such accounts for federal and applicable state and local tax purposes (except to the extent Lender retains any interest earned on the Cash Management Account for its own account following the occurrence and during the continuance of an Event of Default).  Sums on deposit in the Cash Management Account shall not be invested except in such Permitted Investments as determined and directed by Lender and all income earned thereon shall be the income of Borrower and be applied to and become part of the Cash Management Account, to be disbursed in accordance with this Article 10.  Lender shall have no liability for any loss resulting from the investment of funds in Permitted Investments in accordance with the terms and conditions of this Agreement.

(c)The Cash Management Account shall be subject to the exclusive dominion and control of Lender during the Cash Management Period or the continuance of an Event of Default and, except as otherwise expressly provided herein, neither Borrower, Manager nor any other party claiming on behalf of, or through, Borrower or Manager, shall have any right of withdrawal therefrom or any other right or power with respect thereto.

(d)Borrower agrees to pay the customary fees and expenses incurred in connection with maintaining the Cash Management Account.

(e)Lender shall be responsible for the performance only of such duties with respect to the Cash Management Account as are specifically set forth herein, and no duty shall be implied from any provision hereof. Lender shall not be under any obligation or duty to perform any act which would involve it in expense or liability or to institute or defend any suit in respect hereof, or to advance any of its own monies. Borrower shall indemnify and hold Lender and its directors, employees, officers and agents harmless from and against any loss, cost or damage (including, without limitation, reasonable attorneys’ fees and disbursements) incurred by such parties in connection with the Cash Management Account other than such as result from the gross negligence or willful misconduct of Lender or intentional nonperformance by Lender of its obligations under this Agreement.

Section 10.2.  Deposits and Withdrawals

(a)Borrower represents, warrants and covenants that:

(i)Concurrently with the execution of this Agreement Borrower has executed and delivered to Lender an instruction letter in the form of Exhibit B attached hereto addressed to American Express (the “Tenant Direction Letter”). Upon the occurrence of

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an Event of Default or upon commencement of the Cash Management Period, Lender or Lender’s agent shall have the right to deliver the Tenant Direction Letter to American Express and all payments of Rent and other items payable under the American Express Lease shall thereafter be sent directly to the Cash Management Account;

(ii)On the occurrence of an Event of Default or the commencement of the Cash Management Period Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the Cash Management Account. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;

(iii)All Rents or other income from the Property received after the commencement of the Cash Management Period or the occurrence of an Event of Default shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of the Tenant Direction Letter, be deposited in the Cash Management Account within one (1) Business Day of receipt;

(iv)Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, during the Cash Management Period or the continuance of an Event of Default neither Borrower nor Manager shall terminate, amend, revoke or modify the Tenant Direction Letter in any manner whatsoever or direct or cause American Express to pay any amount in any manner other than as provided in the Tenant Direction Letter; and

(v)So long as any portion of the Debt remains outstanding, during the Cash Management Period or during the continuance of an Event of Default neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Cash Management Account into which revenues from the ownership and operation of the Property are deposited.

(b)Intentionally Omitted.

(c)If an Event of Default shall have occurred and be continuing or during a Cash Management Period, on each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month immediately following the month during which the Cash Management Period commences, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:

(i)following a default by American Express under the American Express Lease, funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve

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Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.2;

(ii)funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;

(iii)funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;

(iv)funds sufficient to pay Operating Expenses (to the extent actually incurred) for the following month shall be allocated to the Operating Expense Reserve Account to be held and disbursed to pay Operating Expenses;

(v)funds in an amount equal to the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be withdrawn and paid to Lender to be applied to the principal amount of the Loan until the principal amount of the Loan is paid in full.

(d)Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer.  If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).

(e)If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Cash Management Account and transfers between any Reserve Account as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion.  Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.

Section 10.3   Security Interest

(a)To secure the full and punctual payment of the Debt and performance of all obligations of Borrower now or hereafter existing under this Agreement and the other Loan Documents, Borrower hereby grants to Lender a first-priority perfected security interest in each of the Accounts and the Account Collateral. Furthermore, Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any of the foregoing or permit any Lien to attach thereto or any levy to be made thereon or any UCC Financing Statements to be filed with respect thereto. Borrower will maintain the security

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interest created by this Section 10.3(a) as a first priority perfected security interest and will defend the right, title and interest of Lender in and to each of the Accounts and the Account Collateral against the claims and demands of all Persons whomsoever.

(b)Borrower authorizes Lender to file any financing statement or statements required by Lender to establish or maintain the validity, perfection and priority of the security interest granted herein in connection with the Cash Management Account.  Borrower agrees that at any time and from time to time, at the expense of Borrower, Borrower will promptly and duly execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable, or that Lender may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereby (including, without limitation, any security interest in and to any Permitted Investments) or to enable Lender to exercise and enforce its rights and remedies hereunder.

(c)Upon the occurrence of an Event of Default, Lender may exercise any or all of its rights and remedies as a secured party, pledgee and lienholder with respect to the Accounts and the Account Collateral. Without limitation of the foregoing, upon any Event of Default, Lender may use the Accounts and the Account Collateral for any of the following purposes: (A) repayment of the Debt, including, but not limited to, principal prepayments and the prepayment premium applicable to such full or partial prepayment (as applicable); (B) reimbursement of Lender for all losses, fees, costs and expenses (including, without limitation, reasonable legal fees) suffered or incurred by Lender as a result of such Event of Default; (C) payment of any amount expended in exercising any or all rights and remedies available to Lender at law or in equity or under this Agreement or under any of the other Loan Documents; (D) payment of any item as required or permitted under this Agreement; or (E) any other purpose permitted by applicable law; provided, however, that any such application of funds shall not cure or be deemed to cure any Event of Default.  Without limiting any other provisions hereof, each of the remedial actions described in the immediately preceding sentence shall be deemed to be a commercially reasonable exercise of Lender’s rights and remedies as a secured party with respect to the Accounts and the Account Collateral and shall not in any event be deemed to constitute a setoff or a foreclosure of a statutory banker’s lien.  Nothing in this Agreement shall obligate Lender to apply all or any portion of the Accounts and the Account Collateral to effect a cure of any Event of Default, or to pay the Debt, or in any specific order of priority. The exercise of any or all of Lender’s rights and remedies under this Agreement or under any of the other Loan Documents shall not in any way prejudice or affect Lender’s right to initiate and complete a foreclosure under the Mortgage.

ARTICLE 11

EVENTS OF DEFAULT; REMEDIES

Section 11.1.  Event of Default

The occurrence of any one or more of the following events shall constitute an “Event of Default”:

(a)if any portion of the Debt is not paid on or prior to the tenth day following the date the same is due or if the entire Debt is not paid on or before the Maturity Date;

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(b)except as otherwise expressly provided in the Loan Documents, if any of the Taxes or Other Charges are not paid when the same are due and payable, unless there is sufficient money in the Tax and Insurance Reserve Account for payment of amounts then due and payable and Lender’s access to such money has not been constrained or restricted in any manner;

(c)should American Express cease to be a self-insurer or if the rating of American express issued by the Rating Agencies falls below the Trigger Rating, if (i) the Policies are not kept in full force and effect, or (ii) the Accord 28 (or similar) certificate is not delivered to Lender in accordance with Section 8.1;

(d)if Borrower breaches any covenant with respect to itself contained in Article 6 or any covenant contained in Article 7 hereof;

(e)if any representation or warranty of, or with respect to Borrower or Borrower Principal, or any member, general partner, principal or beneficial owner of any of the foregoing, made herein, in any other Loan Document, or in any certificate, report, financial statement or other instrument or document furnished to Lender at the time of the closing of the Loan or during the term of the Loan shall have been false or misleading in any material respect when made:

(f)if (i) Borrower, or any managing member or general partner of Borrower, Borrower Principal, or American Express shall commence any case, proceeding or other action (A) under any Creditors Rights Laws, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii) there shall be commenced against Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of any order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (iv) Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due;

(g)if Borrower shall be in default beyond applicable notice and grace periods under any other mortgage, deed of trust, deed to secure debt or other security agreement covering any part of the Property, whether it be superior or junior in lien to the Mortgage;

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(h)if the Property becomes subject to any mechanic’s, materialman’s or other Lien other than a Lien for any Taxes or Other Charges not then due and payable and the Lien shall remain undischarged of record (by payment, bonding or otherwise) for a period of thirty (30) days;

(i)if any federal income tax lien is filed against Borrower, any member or general partner of Borrower, Borrower Principal, or the Property and same is not discharged of record (or bonded or insured to Lender’s satisfaction) within thirty (30) days after same is filed;

(j)if an uninsured judgment is filed against the Borrower in excess of $20,000 which is not vacated or discharged (or bonded or insured to Lender’s satisfaction) within 30 days;

(k)if any default occurs under any guaranty or indemnity executed in connection herewith and such default continues after the expiration of applicable grace periods, if any;

(l)if Borrower shall permit any event within its control to occur that would cause any REA to terminate without notice or action by any party thereto or would entitle any party to terminate any REA and the term thereof by giving notice to Borrower; or any REA shall be surrendered, terminated or canceled for any reason or under any circumstance whatsoever except as provided for in such REA; or any term of any REA shall be modified or supplemented unless permitted by the American Express Lease; or Borrower shall fail, within ten (10) Business Days after demand by Lender, to exercise its option to renew or extend the term of any REA or shall fail or neglect to pursue diligently all actions necessary to exercise such renewal rights pursuant to such REA except as provided for in such REA; or

(m)if an American Express Lease Default shall occur under the American Express Lease; or

(n)if Borrower shall continue to be in default under any other term, covenant or condition of this Agreement or any of the Loan Documents for more than ten (10) days after notice from Lender in the case of any default which can be cured by the payment of a sum of money or for thirty (30) days after notice from Lender in the case of any other default, provided that if such default cannot reasonably be cured within such thirty (30) day period and Borrower shall have commenced to cure such default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for so long as it shall require Borrower in the exercise of due diligence to cure such default, it being agreed that no such extension shall be for a period in excess of one hundred twenty (120) days.

Section 11.2.  Remedies

(a)Upon the occurrence of an Event of Default (other than an Event of Default described in Section 11.1(f) above) and at any time thereafter Lender may, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in the Property, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents against Borrower and the Property.

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including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in Section 11.1(f) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.

(b)Upon the occurrence of an Event of Default, all or any one or more of the rights, powers, privileges and other remedies available to Lender against Borrower under this Agreement or any of the other Loan Documents executed and delivered by, or applicable to, Borrower or at law or in equity may be exercised by Lender at any time and from time to time, whether or not all or any of the Debt shall be declared due and payable, and whether or not Lender shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Loan Documents with respect to the Property. Any such actions taken by Lender shall be cumulative and concurrent and may be pursued independently, singularly, successively, together or otherwise, at such time and in such order as Lender may determine in its sole discretion, to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of Lender permitted by law, equity or contract or as set forth herein or in the other Loan Documents.

ARTICLE 12

ENVIRONMENTAL PROVISIONS

Section 12.1.  Environmental Representations and Warranties

Borrower represents and warrants, except as disclosed in an Environmental Report of the Property and information that Borrower knows that: (a) there are no Hazardous Materials or underground storage tanks in, on, or under the Property, except those that are both (i) in compliance with Environmental Laws and with permits issued pursuant thereto (if such permits are required), if any, and (ii) either (A) in the case of Hazardous Materials, in amounts not in excess of that necessary to operate the Property for the purposes set forth herein or (B) fully disclosed to and approved by Lender in writing pursuant to an Environmental Report; (b) there are no past, present or threatened Releases of Hazardous Materials in violation of any Environmental Law or which would require remediation by a Governmental Authority in, on, under or from the Property except as described in the Environmental Report; (c) there is no threat of any Release of Hazardous Materials migrating to the Property except as described in the Environmental Report; (d) there is no past or present non-compliance with Environmental Laws, or with permits issued pursuant thereto, in connection with the Property except as described in the Environmental Report; (c) Borrower does not know of, and has not received, any written or oral notice or other communication from any Person relating to Hazardous Materials in, on, under or from the Property; (f) the Property is free of Mold; and (g) Borrower has truthfully and fully provided to Lender, in writing, any and all information relating to environmental conditions in, on, under or from the Property known to Borrower or contained in Borrower’s files and records, including but not limited to any reports relating to Hazardous Materials in, on, under or migrating to or from the Property and/or to the environmental condition of or the presence of Mold at the Property.

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Section 12.2.  Environmental Covenants

Borrower covenants and agrees that so long as Borrower owns, manages and is in possession of the operation of the Property: (a) all uses and operations on or of the Property, whether by Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto; (b) there shall be no Releases of Hazardous Materials in, on, under or from the Property; (c) there shall be no Hazardous Materials in, on, or under the Property, except those that are both (i) in compliance with all Environmental Laws and with permits issued pursuant thereto, if and to the extent required, and (ii) (A) in amounts not in excess of that necessary to operate the Property for the purposes set forth herein or (B) fully disclosed to and approved by Lender in writing or (C) with respect to Mold, not in a condition, location, or of a type which may pose a risk to human health or safety or the environment or which may result in damage to or would adversely affect or impair the value or marketability of the Property; (d) Borrower shall keep the Property free and clear of all Environmental Liens; (e) Borrower shall, at its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to Section 12.4 below, including but not limited to providing all relevant information and making knowledgeable persons available for interviews; (f) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender, upon Lender’s reasonable belief that the Property is not in full compliance with all Environmental Laws, and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (g) Borrower shall keep the Property free of Mold; and (h) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender to (i) reasonably effectuate remediation of any Hazardous Materials in, on, under or from the Property; and (ii) comply with any Environmental Law; (i) Borrower shall not allow any tenant or other user of the Property to violate any Environmental Law; and (j) Borrower shall immediately notify Lender in writing after it has become aware of (A) any presence or Release or threatened Release of Hazardous Materials in, on, under, from or migrating towards the Property; (B) any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien against the Property; (D) any required or proposed remediation of environmental conditions relating to the Property; and (E) any written or oral notice or other communication of which Borrower becomes aware from any source whatsoever (including but not limited to a Governmental Authority) relating in any way to Hazardous Materials. Any failure of Borrower to perform its obligations pursuant to this Section 12.2 shall constitute bad faith waste with respect to the Property.

Section 12.3.  Lender’s Rights

Lender and any other Person designated by Lender, including but not limited to any representative of a Governmental Authority, and any environmental consultant, and any receiver appointed by any court of competent jurisdiction, shall have the right, but not the obligation, to enter upon the Property at all reasonable times to assess any and all aspects of the environmental condition of the Property and its use, including but not limited to conducting any environmental assessment or audit (the scope of which shall be determined in Lender’s sole discretion) and taking samples of soil, groundwater or other water, air, or building materials, and conducting

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other invasive testing. Borrower shall cooperate with and provide access to Lender and any such person or entity designated by Lender.

Section 12.4.  Operations and Maintenance Programs

If recommended by the Environmental Report or any other environmental assessment or audit of the Property, Borrower shall establish and comply with an operations and maintenance program with respect to the Property, in form and substance reasonably acceptable to Lender, prepared by an environmental consultant reasonably acceptable to Lender, which program shall address any asbestos-containing material or lead based paint that may now or in the future be detected at or on the Property. Without limiting the generality of the preceding sentence, Lender may require (a) periodic notices or reports to Lender in form, substance and at such intervals as Lender may specify, (b) an amendment to such operations and maintenance program to address changing circumstances, laws or other matters, (c) at Borrower’s sole expense, supplemental examination of the Property by consultants specified by Lender, (d) access to the Property by Lender, its agents or servicer, to review and assess the environmental condition of the Property and Borrower’s compliance with any operations and maintenance program, and (e) variation of the operations and maintenance program in response to the reports provided by any such consultants.

Section 12.5.  Environmental Definitions

“Environmental Law” means any present and future federal, state and local laws, statutes, ordinances, rules, regulations, standards, policies and other government directives or requirements, as well as common law, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act and the Resource Conservation and Recovery Act, that apply to Borrower or the Property and relate to Hazardous Materials or protection of human health or the environment. “Environmental Liens” means all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of Borrower or any other Person.  “Environmental Report” means the written reports resulting from the environmental site assessments of the Property delivered to Lender in connection with the Loan. “Hazardous Materials” shall mean petroleum and petroleum products and compounds containing them, including gasoline, diesel fuel and oil; explosives, flammable materials; radioactive materials; polychlorinated biphenyls and compounds containing them; lead and lead-based paint; asbestos or asbestos-containing materials in any form that is or could become friable; underground or above-ground storage tanks, whether empty or containing any substance; any substance the presence of which on the Property is prohibited by any federal, state or local authority; any substance that, requires special handling; and any other material or substance now or in the future defined as a “hazardous substance,” “hazardous material”, “hazardous waste”, “toxic substance”, “toxic pollutant”, “contaminant”, or “pollutant” within the meaning of any Environmental Law. “Mold” shall mean any mold, fungi, bacterial or microbial matter present at or in the Property, including, without limitation, building materials which is in a condition, location or a type which may pose a risk to human health or safety or the environment, may result in damage to or would adversely affect or impair the value or marketability of the Property. “Release” of any Hazardous Materials includes but is not limited to any release, deposit, discharge, emission, leaking, spilling, seeping, migrating, injecting,

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pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Materials.

ARTICLE 13

SECONDARY MARKET

Section 13.1.  Transfer of Loan

Lender may, at any time, sell, transfer or assign the Loan Documents, or grant participations therein (“Participations”)or syndicate the Loan (“Syndication”)or issue mortgage pass-through certificates or other securities evidencing a beneficial interest in a rated or unrated public offering or private placement (“Securities”)(a Syndication or the issuance of Participations and/or Securities, a “Securitization”).

Section 13.2.  Delegation of Servicing

At the option of Lender, the Loan may be serviced by a servicer/trustee selected by Lender and Lender may delegate all or any portion of its responsibilities under this Agreement and the other Loan Documents to such servicer/trustee pursuant to a servicing agreement between Lender and such servicer/trustee.

Section 13.3.  Dissemination of Information

Lender may forward to each purchaser, transferee, assignee, or servicer of, and each participant, or investor in, the Loan, or any Participations and/or Securities or any of their respective successors (collectively, the “Investor”)or any Rating Agency rating the Loan, or any Participations and/or Securities, each prospective Investor, and any organization maintaining databases on the underwriting and performance of commercial mortgage loans, all documents and information which Lender now has or may hereafter acquire relating to the Debt and to Borrower, any managing member or general partner thereof, Borrower Principal, and the Property, including financial statements, whether furnished by Borrower or otherwise, as Lender determines necessary or desirable. Borrower irrevocably waives any and all rights it may have under applicable Legal Requirements to prohibit such disclosure, including but not limited to any right of privacy.

Section 13.4.Cooperation

Borrower and Borrower Principal agree to cooperate with Lender in connection with any sale or transfer of the Loan or any Participation and/or Securities created pursuant to this Article 13, including, without limitation, (a) the delivery of an estoppel certificate required in accordance with Section 5.12(a) and such other documents as may be reasonably requested by Lender, (b) the execution of such amendments to the Loan Documents as may be requested by the holder of the Note or the Rating Agencies or otherwise to effect the Securitization including, without limitation, bifurcation of the Loan into two or more components and/or separate notes; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, except in connection with a bifurcation of the Loan which may result in varying fixed interest rates and amortization schedules, but which shall

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have the same initial weighted average coupon of the original Note, or (ii) in the reasonable judgment of Borrower, modify or amend any other material economic term of the Loan, or (iii) in the reasonable judgment of Borrower, materially increase Borrower’s obligations and liabilities under the Loan Documents, and (c) make changes to the organizational documents of Borrower and its principals and/or use its best efforts to cause changes to the legal opinions delivered by Borrower in connection with the Loan, provided, that such changes shall not result in a material adverse economic effect to Borrower. Borrower shall also furnish and Borrower and Borrower Principal consent to Lender furnishing to such Investors or such prospective Investors or such Rating Agency any and all information concerning the Property, the American Express Lease, the financial condition of Borrower or Borrower Principal as may be requested by Lender, any Investor, any prospective Investor or any Rating Agency in connection with any sale or transfer of the Loan or any Participations or Securities.  Neither Borrower nor Borrower Principal shall be responsible for any costs incurred by Lender in connection with a Securitization.

ARTICLE 14

INDEMNIFICATIONS

Section 14.1.  General Indemnification

Borrower shall indemnify, defend and hold harmless the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising out of or in any way relating to any one or more of the following: (a) any accident, injury to or death of persons or loss of or damage to property occurring in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (b) any use, nonuse or condition in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (c) performance of any labor or services or the furnishing of any materials or other property in respect of the Property or any part thereof; (d) any failure of the Property to be in compliance with any applicable Legal Requirements; (e) any and all claims and demands whatsoever which may be asserted against Lender by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants, or agreements contained in any Lease; (f) the holding or investing of the Reserve Accounts, or (g) the payment of any commission, charge or brokerage fee to anyone which may be payable in connection with the funding of the Loan (collectively, the “Indemnified Liabilities”); provided, however, that Borrower shall not have any obligation to Lender hereunder to the extent that such Indemnified Liabilities arise from the gross negligence, illegal acts, fraud or willful misconduct of Lender.  To the extent that the undertaking to indemnify, defend and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, Borrower shall pay the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Lender.

Section 14.2.  Mortgage and Intangible Tax Indemnification

Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising out of or in any

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way relating to any tax on the making and/or recording of the Mortgage, the Note or any of the other Loan Documents, but excluding any income, franchise or other similar taxes.

Section 14.3.  ERISA Indemnification

Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses (including, without limitation, reasonable attorneys’ fees and costs incurred in the investigation, defense, and settlement of Losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Lender’s sole discretion) that Lender may incur, directly or indirectly, as a result of a default under Section 4.9 or Section 5.18 of this Agreement.

Section 14.4.  Survival

The obligations and liabilities of Borrower and Borrower Principal under this Article 14 shall fully survive indefinitely notwithstanding any termination, satisfaction, assignment, entry of a judgment of foreclosure, exercise of any power of sale, or delivery of a deed in lieu of foreclosure of the Mortgage.

ARTICLE 15

EXCULPATION

Section 15.1.  Exculpation

(a)Except as otherwise provided herein or in the other Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to perform and observe the obligations contained herein or in the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or Borrower Principal, except that Lender may bring a foreclosure action, action for specific performance or other appropriate action or proceeding to enable Lender to enforce and realize upon this Agreement, the Note, the Mortgage and the other Loan Documents, and the interest in the Property, the Rents (following an Event of Default) and any other collateral given to Lender created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower or Borrower Principal, as applicable, only to the extent of Borrower’s or Borrower Principal’s interest in the Property, in the Rents and in any other collateral given to Lender. Lender, by accepting this Agreement, the Note, the Mortgage and the other Loan Documents, agrees that it shall not, except as otherwise provided in this Section 15.1, sue for, seek or demand any deficiency judgment against Borrower or Borrower Principal in any such action or proceeding, under or by reason of or under or in connection with this Agreement, the Note, the Mortgage or the other Loan Documents.  The provisions of this Section 15.1 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note, the Mortgage or the other Loan Documents; (ii) impair the right of Lender to name Borrower or Borrower Principal as a party defendant in any action or suit, for judicial foreclosure and sale under this Agreement and the Mortgage; (iii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Section 12.6

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and Article 14 of this Agreement), environmental indemnity, guaranty, master lease or similar instrument made in connection with this Agreement, the Note, the Mortgage and the other Loan Documents; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of the assignment of leases provisions contained in the Mortgage; or (vi) impair the right of Lender to obtain a deficiency judgment or other judgment on the Note against Borrower or Borrower Principal if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided however, Lender shall only enforce such judgment to the extent of the Insurance Proceeds and/or Awards.

(b)Notwithstanding the provisions of this Section 15.1 to the contrary, Borrower and Borrower Principal shall be personally liable to Lender on a joint and several basis for Losses due to:

(i)fraud or intentional misrepresentation by Borrower, Borrower Principal or any other Affiliate of Borrower or Borrower Principal in connection with the execution and the delivery of this Agreement, the Note, the Mortgage, any of the other Loan Documents, or any certificate, report, financial statement or other instrument or document furnished to Lender at the time of the closing of the Loan or during the term of the Loan;

(ii)Borrower’s misapplication or misappropriation of Rents received by Borrower after the occurrence of an Event of Default;

(iii)Borrower’s misapplication or misappropriation of tenant security deposits or Rents collected in advance;

(iv)the misapplication or the misappropriation of Insurance Proceeds or Awards;

(v)Borrower’s failure to pay Taxes, Other Charges (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms hereof and there exists no impediment to Lender’s utilization thereof), charges for labor or materials or other charges that can create liens on the Property beyond any applicable notice and cure periods specified herein;

(vi)Borrower’s failure to return or to reimburse Lender for all Personal Property taken from the Property by or on behalf of Borrower and not replaced with Personal Property of the same utility and of the same or greater value;

(vii)any act of actual waste or arson by Borrower, any principal, Affiliate, member or general partner thereof or by Borrower Principal, any principal, Affiliate, member or general partner thereof; or

(viii)Borrower’s failure following any Event of Default to deliver to Lender upon demand all Rents and books and records relating to the Property.

(c)Notwithstanding the foregoing, the agreement of Lender not to pursue recourse liability as set forth in subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower and Borrower

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Principal on a joint and several basis in the event (i) of a breach by Borrower or Borrower Principal of any of the covenants set forth in Article 6 hereof, to the extent that such breach is (A) material and (B) is not cured within fifteen (15) days of the earlier to occur of notice from Lender or Borrower’s knowledge of such breach, (ii) of a breach of any of the covenants set forth in Article 7 hereof, (iii) the Property or any part thereof shall become an asset in a voluntary bankruptcy or insolvency proceeding of Borrower, (iv) Borrower, Borrower Principal or any Affiliate, officer, director, or representative which controls, directly or indirectly, Borrower or Borrower Principal files, or joins in the filing of, an involuntary petition against Borrower under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (v) Borrower files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; or (vi) any Affiliate, officer, director, or representative which controls Borrower consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of the Property.

(d)Nothing herein shall be deemed to be a waiver of any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provision of the U.S. Bankruptcy Code to file a claim for the full amount of the indebtedness secured by the Mortgage or to require mat all collateral shall continue to secure all of the indebtedness owing to Lender in accordance with this Agreement, the Note, the Mortgage or the other Loan Documents.

ARTICLE 16

NOTICES

Section 16.1.  Notices

All notices, consents, approvals and requests required or permitted hereunder or under any other Loan Document shall be given in writing and shall be effective for all purposes if hand delivered or sent by (a) certified or registered United States mail, postage prepaid, return receipt requested, (b) expedited prepaid overnight delivery service, either commercial or United States Postal Service, with proof of attempted delivery, or by (c) telecopier (with answer back acknowledged provided an additional notice is given pursuant to subsection (b) above), addressed as follows (or at such other address and Person as shall be designated from time to time by any party hereto, as the case may be, in a written notice to the other parties hereto in the manner provided for in this Section):

If to Lender: Bank of America, N.A.
Capital Markets Servicing Group
900 West Trade Street, Suite 650
NC1-026-06-01
Charlotte, North Carolina 28255
Attn: Servicing Manager
Telephone No: (866) 531-0957

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If to Borrower:	Inland Western Phoenix 31st Avenue, L.L.C. c/o Inland Real Estate Investment Corporation 2901 Butterfield Road Oak Brook, Illinois 60523 Attention: Roberta Matlin, Vice President Facsimile No.: 630-218-4965
With a copy to:	The Inland Real Estate Group, Inc. 2901 Butterfield Road Oak Brook, Illinois 60523 Attention: General Counsel Facsimile No.: 630-218-4900
If to Borrower Principal:	Inland Western Retail Real Estate Trust, Inc. 2901 Butterfield Road Oak Brook, Illinois 60523 Roberta Matlin, Vice President Facsimile No.: 630-218-4965
With a copy to:	The Inland Real Estate Group, Inc. 2901 Butterfield Road Oak Brook, Illinois 60523 Attention: General Counsel Facsimile No.: 630-218-4900

A notice shall be deemed to have been given: in the case of hand delivery, at the time of delivery; in the case of registered or certified mail, when delivered or the first attempted delivery on a Business Day; or in the case of expedited prepaid delivery and telecopy, upon the first attempted delivery on a Business Day.

ARTICLE 17

FURTHER ASSURANCES

Section 17.1.  Replacement Documents

Upon receipt of an affidavit of an officer of Lender as to the loss, theft, destruction or mutilation of the Note or any other Loan Document which is not of public record and, in the case of such mutilation upon surrender and cancellation of such Note or other Loan Document, Borrower will issue in lieu thereof a replacement Note or other Loan Document, dated the date of such lost, stolen, destroyed or mutilated Note or other Loan Document in the same principal amount thereof and otherwise of like tenor.

Section 17.2.  Recording of Mortgage, etc.

Borrower forthwith upon the execution and delivery of the Mortgage and thereafter, from time to time, will cause the Mortgage and any of the other Loan Documents creating a lien or security interest or evidencing the lien hereof upon the Property and each instrument of further

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assurance to be filed, registered or recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect and perfect the lien or security interest hereof upon, and the interest of Lender in, the Property. Borrower will pay all taxes, filing, registration or recording fees, and all expenses incident to the preparation, execution, acknowledgment and/or recording of the Note, the Mortgage, the other Loan Documents, any note, deed of trust or mortgage supplemental hereto, any security instrument with respect to the Property and any instrument of further assurance, and any modification or amendment of the foregoing documents, and all federal, state, county and municipal taxes, duties, imposts, assessments and charges arising out of or in connection with the execution and delivery of the Mortgage, any deed of trust or mortgage supplemental hereto, any security instrument with respect to the Property or any instrument of further assurance, and any modification or amendment of the foregoing documents, except where prohibited by law so to do.

Section 17.3.  Further Acts, Etc.

Borrower will, at the cost of Borrower (except with respect to costs incurred by Lender, for which Lender shall be responsible), do, execute, acknowledge and deliver all and. every further acts, deeds, conveyances, deeds of trust, mortgages, assignments, security agreements, control agreements, notices of assignments, transfers and assurances as Lender shall, from time to time, reasonably require, for the better assuring, conveying, assigning, transferring, and confirming unto Lender the property and rights hereby mortgaged, deeded, granted, bargained, sold, conveyed, confirmed, pledged, assigned, warranted and transferred or intended now or hereafter so to be, or which Borrower may be or may hereafter become bound to convey or assign to Lender, or for carrying out the intention or facilitating the performance of the terms of this Agreement or for filing, registering or recording the Mortgage, or for complying with all Legal Requirements. Borrower, on demand, will execute and deliver, and in the event it shall fail to so execute and deliver, hereby authorizes Lender to execute in the name of Borrower or without the signature of Borrower to the extent Lender may lawfully do so, one or more financing statements and financing statement amendments to evidence more effectively, perfect and maintain the priority of the security interest of Lender in the Property. Borrower grants to Lender an irrevocable power of attorney coupled with an interest for the purpose of exercising and perfecting any and all rights and remedies available to Lender at law and in equity, including without limitation, such rights and remedies available to Lender pursuant to this Section 17.3.

Section 17.4.  Changes in Tax, Debt, Credit and Documentary Stamp Laws

(a)If any law is enacted or adopted or amended after the date of this Agreement which deducts the Debt from the value of the Property for the purpose of taxation or which imposes a tax, either directly or indirectly, on the Debt or Lender’s interest in the Property, Borrower will pay the tax, with interest and penalties thereon, if any. If Lender is advised by counsel chosen by it that the payment of tax by Borrower would be unlawful or taxable to Lender or unenforceable or provide the basis for a defense of usury then Lender shall have the option by written notice of not less than one hundred eighty (80) days to declare the Debt immediately due and payable.

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(b)Borrower will not claim or demand or be entitled to any credit or credits on account of the Debt for any part of the Taxes or Other Charges assessed against the Property, or any part thereof, and no deduction shall otherwise be made or claimed from the assessed value of the Property, or any part thereof, for real estate tax purposes by reason of the Mortgage or the Debt.  If such claim, credit or deduction shall be required by law, Lender shall have the option, by written notice of not less than one hundred eighty (80) days, to declare the Debt immediately due and payable.

If at any time the United States of America, any State thereof or any subdivision of any such State shall require revenue or other stamps to be affixed to the Note, the Mortgage, or any of the other Loan Documents or impose any other tax or charge on the same, Borrower will pay for the same, with interest and penalties thereon, if any.

Section 17.5.Expenses

Borrower covenants and agrees to pay or, if Borrower fails to pay, to reimburse, Lender upon receipt of written notice from Lender for all reasonable costs and expenses (including reasonable, actual attorneys’ fees and disbursements and the allocated costs of internal legal services and all actual disbursements of internal counsel) reasonably incurred by Lender in accordance with this Agreement in connection with (a) the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby and thereby and all the costs of furnishing all opinions by counsel for Borrower (including without limitation any opinions requested by Lender as to any legal matters arising under this Agreement or the other Loan Documents with respect to the Property); (b) Borrower’s ongoing performance of and compliance with Borrower’s respective agreements and covenants contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date, including, without limitation, confirming compliance with environmental and insurance requirements; (c) following a request by Borrower, Lender’s ongoing performance and compliance with all agreements and conditions contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date; (d) the negotiation, preparation, execution, delivery and administration of any consents, amendments, waivers or other modifications to this Agreement and the other Loan Documents and any other documents or matters requested by Lender; (e) securing Borrower’s compliance with any requests made pursuant to the provisions of this Agreement; (f) the filing and recording fees and expenses, title insurance and reasonable fees and expenses of counsel for providing to Lender all required legal opinions, and other similar expenses incurred in creating and perfecting the Lien in favor of Lender pursuant to this Agreement and the other Loan Documents; (g) enforcing or preserving any rights, in response to third party claims or the prosecuting or defending of any action or proceeding or other litigation, in each case against, under or affecting Borrower, this Agreement, the other Loan Documents, the Property, or any other security given for the Loan; and (h) enforcing any obligations of or collecting any payments due from Borrower under this Agreement, the other Loan Documents or with respect to the Property or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or of any insolvency or bankruptcy proceedings; provided, however, that Borrower shall not be liable for the payment of any such costs and expenses to the extent the same arise by reason of the gross negligence, illegal acts, fraud or willful misconduct of Lender.

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ARTICLE 18

WAIVERS

Section 18.1.  Remedies Cumulative; Waivers

The rights, powers and remedies of Lender under this Agreement shall be cumulative and not exclusive of any other right, power or remedy which Lender may have against Borrower or Borrower Principal pursuant to this Agreement or the other Loan Documents, or existing at law or in equity or otherwise. Lender’s rights, powers and remedies may be pursued singularly, concurrently or otherwise, at such time and in such order as Lender may determine in Lender’s sole discretion. No delay or omission to exercise any remedy, right or power accruing upon an Event of Default shall impair any such remedy, right or power or shall be construed as a waiver thereof, but any such remedy, right or power may be exercised from time to time and as often as may be deemed expedient. A waiver of one Default or Event of Default with respect to Borrower shall not be construed to be a waiver of any subsequent Default or Event of Default by Borrower or to impair any remedy, right or power consequent thereon.

Section 18.2.  Modification, Waiver in Writing

No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement, or of the Note, or of any other Loan Document, nor consent to any departure by Borrower therefrom, shall in any event be effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given. Except as otherwise expressly provided herein, no notice to, or demand on Borrower, shall entitle Borrower to any other or future notice or demand in the same, similar or other circumstances.

Section 18.3.  Delay Not a Waiver

Neither any failure nor any delay on the part of Lender in insisting upon strict performance of any term., condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under the Note or under any other Loan Document, or any other instrument given as security therefor, shall operate as or constitute a waiver thereof, nor shall a single or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege. In particular, and not by way of limitation, by accepting payment after the due date of any amount payable under this Agreement, the Note or any other Loan Document, Lender shall not be deemed to have waived any right either to require prompt payment when due of all other amounts due under this Agreement, the Note or the other Loan Documents, or to declare a default for failure to effect prompt payment of any such other amount.

Section 18.4.  Trial by Jury

BORROWER, BORROWER PRINCIPAL AND LENDER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH

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REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER, BORROWER PRINCIPAL AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF LENDER, BORROWER PRINCIPAL AND BORROWER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER, BORROWER PRINCIPAL AND LENDER.

Section 18.5.  Waiver of Notice

Borrower shall not be entitled to any notices of any nature whatsoever from Lender except with respect to matters for which this Agreement or the other Loan Documents specifically and expressly provide for the giving of notice by Lender to Borrower and except with respect to matters for which Borrower is not, pursuant to applicable Legal Requirements, permitted to waive the giving of notice. Borrower hereby expressly waives the right to receive any notice from Lender with respect to any matter for which this Agreement or the other Loan Documents do not specifically and expressly provide for the giving of notice by Lender to Borrower.

Section 18.6.  Remedies of Borrower

In the event that a claim or adjudication is made that Lender or its agents have acted unreasonably or unreasonably delayed acting in any case where by law or under this Agreement or the other Loan Documents, Lender or such agent, as the case may be, has an obligation to act reasonably or promptly, Borrower agrees that neither Lender nor its agents shall be liable for any monetary damages, and Borrower’s sole remedies shall be limited to commencing an action seeking injunctive relief or declaratory judgment. The parties hereto agree that any action or proceeding to determine whether Lender has acted reasonably shall be determined by an action seeking declaratory judgment. Lender agrees that, in such event, it shall cooperate in expediting any action seeking injunctive relief or declaratory judgment.

Section 18.7.  Waiver of Marshalling of Assets

To the fullest extent permitted by law, Borrower, for itself and its successors and assigns, waives all rights to a marshalling of the assets of Borrower, Borrower’s partners and others with interests in Borrower, and of the Property, and agrees not to assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce or affect the right of Lender under the Loan Documents to a sale of the Property for the collection of the Debt without any prior or different resort for collection or of the right of Lender to the payment of the Debt out of the net proceeds of the Property in preference to every other claimant whatsoever.

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Section 18.8.  Waiver of Statute of Limitations

Borrower hereby expressly waives and releases, to the fullest extent permitted by law, the pleading of any statute of limitations as a defense to payment of the Debt or performance of its Other Obligations.

Section 18.9.  Waiver of Counterclaim

Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Lender or its agents.

ARTICLE 19

GOVERNING LAW

Section 19.1.  Choice of Law

This Agreement shall be deemed to be a contract entered into pursuant to the laws of the State and shall in all respects be governed, construed, applied and enforced in accordance with the laws of the State and applicable laws of the United States of America, provided, however, that with respect to the security interest in each of the Reserve Accounts, and the Cash Management Account, the laws of the state where each such account is located shall apply.

Section 19.2.  Severability

Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Section 19.3.  Preferences

Lender shall have the continuing and exclusive right to apply or reverse and reapply any and all payments by Borrower to any portion of the obligations of Borrower hereunder. To the extent Borrower makes a payment or payments to Lender, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any Creditors Rights Laws, state or federal law, common law or equitable cause, then, to the extent of such payment or proceeds received, the obligations hereunder or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by Lender.

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ARTICLE 20

MISCELLANEOUS

Section 20.1.  Survival

This Agreement and all covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the making by Lender of the Loan and the execution and delivery to Lender of the Note, and shall continue in full force and effect so long as all or any of the Debt is outstanding and unpaid unless a longer period is expressly set forth herein or in the other Loan Documents. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the legal representatives, successors and assigns of such party. All covenants, promises and agreements in this Agreement, by or on behalf of Borrower, shall inure to the benefit of the legal representatives, successors and assigns of Lender.

Section 20.2.  Lender’s Discretion

Whenever pursuant to this Agreement, Lender exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Lender, the decision of Lender to approve or disapprove or to decide whether arrangements or terms are satisfactory or not satisfactory shall (except as is otherwise specifically herein provided) be in the sole discretion of Lender and shall be final and conclusive.

Section 20.3.  Headings

The Article and/or Section headings and the Table of Contents in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

Section 20.4.  Cost of Enforcement

In the event (a) that the Mortgage is foreclosed in whole or in part, (b) of the bankruptcy, insolvency, rehabilitation or other similar proceeding in respect of Borrower or any of its constituent Persons or an assignment by Borrower or any of its constituent Persons for the benefit of its creditors, or (c) Lender exercises any of its other remedies under this Agreement or any of the other Loan Documents, Borrower shall be chargeable with and agrees to pay all costs of collection and defense, including attorneys’ fees and costs, incurred by Lender or Borrower in connection therewith and in connection with any appellate proceeding or post-judgment action involved therein, together with all required service or use taxes.

Section 20.5.  Schedules Incorporated

The Schedules annexed hereto arc hereby incorporated herein as a part of this Agreement with the same effect as if set forth in the body hereof.

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Section 20.6.  Offsets. Counterclaims and Defenses

Any assignee of Lender’s interest in and to this Agreement, the Note and the other Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses which arc unrelated to such documents which Borrower may otherwise have against any assignor of such documents, and no such unrelated counterclaim or defense shall be interposed or asserted by Borrower in any action or proceeding brought by any such assignee upon such documents and any such right to interpose or assert any such unrelated offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by Borrower.

Section 20.7.  No Joint Venture or Partnership; No Third Party Beneficiaries

(a)Borrower and Lender intend that the relationships created hereunder and under the other Loan Documents be solely that of borrower and lender.  Nothing herein or therein is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower and Lender nor to grant Lender any interest in the Property other than that of mortgagee, beneficiary or lender.

(b)This Agreement and the other Loan Documents are solely for the benefit of Lender and Borrower and nothing contained in this Agreement or the other Loan Documents shall be deemed to confer upon anyone other than Lender and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or therein. All conditions to the obligations of Lender to make the Loan hereunder are imposed solely and exclusively for the benefit of Lender and no other Person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lender will refuse to make the Loan in the absence of strict compliance with any or all thereof and no other Person shall under any circumstances be deemed to be a beneficiary of such conditions, any or all of which may be freely waived in whole or in part by Lender if, in Lender’s sole discretion, Lender deems it advisable or desirable to do so.

(c)The general partners, members, principals and (if Borrower is a trust) beneficial owners of Borrower are experienced in the ownership and operation of properties similar to the Property, and Borrower and Lender are relying solely upon such expertise and business plan in connection with the ownership and operation of the Property. Borrower is not relying on Lender’s expertise, business acumen or advice in connection with the Property.

(d)Notwithstanding anything to the contrary contained herein, Lender is not undertaking the performance of (i) any obligations under the Leases; or (ii) any obligations with respect to such agreements, contracts, certificates, instruments, franchises, permits, trademarks, licenses and other documents.

(e)By accepting or approving anything required to be observed, performed or fulfilled or to be given to Lender pursuant to this Agreement, the Mortgage, the Note or the other Loan Documents, including, without limitation, any officer’s certificate, balance sheet, statement of profit and loss or other financial statement, survey, appraisal, or insurance policy, Lender shall not be deemed to have warranted, consented to, or affirmed the sufficiency, the legality or

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effectiveness of same, and such acceptance or approval thereof shall not constitute any warranty or affirmation with respect thereto by Lender.

(f)Borrower recognizes and acknowledges that in accepting this Agreement, the Note, the Mortgage and the other Loan Documents, Lender is expressly and primarily relying on the truth and accuracy of the representations and warranties set forth in Article 4 of this Agreement without any obligation to investigate the Property and notwithstanding any investigation of the Property by Lender; that such reliance existed on the part of Lender prior to the date hereof, that the warranties and representations are a material inducement to Lender in making the Loan; and that Lender would not be willing to make the Loan and accept this Agreement, the Note, the Mortgage and the other Loan Documents in the absence of the warranties and representations as set forth in Article 4 of this Agreement.

Section 20.8.  Publicity

All news releases, publicity or advertising by Borrower or its Affiliates through any media intended to reach the general public which refers to the Loan, Lender, Banc of America Securities LLC, or any of their Affiliates shall be subject to the prior written approval of Lender, not to be unreasonably withheld. Lender shall be permitted to make any news, releases, publicity or advertising by Lender or its Affiliates through any media intended to reach the general public which refers to the Loan, the Property, Borrower, Borrower Principal and their respective Affiliates without the approval of Borrower or any such Persons. Borrower also agrees that Lender may share any information pertaining to the Loan with Bank of America Corporation, including its bank subsidiaries, Banc of America Securities LLC and any other Affiliates of the foregoing, in connection with the sale or transfer of the Loan or any Participations and/or Securities created.

Section 20.9.  Conflict; Construction of Documents; Reliance

In the event of any conflict between the provisions of this Agreement and any of the other Loan Documents, the provisions of this Agreement shall control. The parties hereto acknowledge that they were represented by competent counsel in connection with the negotiation, drafting and execution of the Loan Documents and that such Loan Documents shall not be subject to the principle of construing their meaning against the party which drafted same. Borrower acknowledges that, with respect to the Loan, Borrower shall rely solely on its own judgment and advisors in entering into the Loan without relying in any manner on any statements, representations or recommendations of Lender or any parent, subsidiary or Affiliate of Lender. Lender shall not be subject to any limitation whatsoever in the exercise of any rights or remedies available to it under any of the Loan Documents or any other agreements or instruments which govern the Loan by virtue of the ownership by it or any parent, subsidiary or Affiliate of Lender of any equity interest any of them may acquire in Borrower, and Borrower hereby irrevocably waives the right to raise any defense or take any action on the basis of the foregoing with respect to Lender’s exercise of any such rights or remedies. Borrower acknowledges that Lender engages in the business of real estate financings and other real estate transactions and investments which may be viewed as adverse to or competitive with the business of Borrower or its Affiliates.

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Section 20.10.  Entire Agreement

This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and all prior agreements among or between such parties, whether oral or written between Borrower and Lender are superseded by the terms of this Agreement and the other Loan Documents.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written.

BORROWER:
INLAND WESTERN PHOENIX 31ST AVENUE, L.L.C., a Delaware limited liability company
By:	Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
	By:		/s/ Debra A Palmer
	Name:				Debra A Palmer
	Its:	Asst Sec.
BORROWER PRINCIPAL:
Acknowledged and agreed to with respect to its obligations set forth in Article 4, Section 12.6, Article 13, Article 15 and Article 18 hereof:
INLAND WESTERN RETAIL REAL ESTATE TRUST INC., a Maryland corporation, its
By:	/s/ Debra A Palmer
	Name:				Debra A Palmer
	Title:			Asst Sec.

[ADDITIONAL SIGNATURE PAGE TO FOLLOW]

LENDER:
BANK OF AMERICA, N.A., a national banking association
By:	/s/ Lisa K. McGee
	Name:		Lisa K. McGee
	Title:	Vice President

EXHIBIT A

Borrower Equity Ownership Structure

EXHIBIT B

Tenant Direction Letter

EX-10.459

Exhibit 10.459

LOAN TERMS TABLE
Note Date: December 16, 2004	MERS No.: 8000101-0000000566-9
Borrower: INLAND WESTERN PHOENIX 19TH AVENUE, L.L.C., a Delaware limited liability company
Original Principal Amount: $8,260,000.00	Loan No.: 58622
Initial Note Rate: 4.2675%	Servicing No.: 3190691
Revised Note Rate: As defined in Article 2	Borrower’s TIN: 20-1907942
Monthly Payment Amount: As defined in Article 1(a)	Optional Prepayment Date: January 1, 2010
Lockout Period: From the date hereof through and including December 31, 2006 Maturity Date: January 1, 2015

PROMISSORY NOTE

FOR VALUE RECEIVED Borrower, having its principal place of business at 2901 Butterfield Road, Oak Brook, IL 60523, hereby unconditionally promises to pay to the order of BANK OF AMERICA, N.A., a national banking association, having an address at 214 North Tryon Street, Charlotte, North Carolina 28255 (“Lender”), the Original Principal Amount, in lawful money of the United States of America with interest thereon to be computed from the date of this Note at the Note Rate (as defined below), and to be paid in accordance with the terms set forth below. The Loan Terms Table set forth above is a part of this Note and all terms used in this Note which are defined in the Loan Terms Table shall have the meaning set forth therein. All capitalized terms not defined herein shall have the respective meanings set forth in that certain Loan Agreement dated the date hereof between Lender and Borrower (the “Loan Agreement”).

Article 1 - PAYMENT TERMS; MANNER OF PAYMENT

(a)Borrower hereby agrees to pay sums due under this Note as follows: an initial payment is due on the Closing Date for interest from the Closing Date through and including the last day of the calendar month in which the Closing Date occurs; and thereafter, except as may be adjusted in accordance with the last sentence of Section 1(b), consecutive monthly installments of interest only in an amount calculated in accordance with Article 2 below (such amount, the “Monthly Payment Amount”) shall be payable pursuant to the terms hereof on the first (1st) day of each month beginning on February 1, 2005 (each such date through and including the Maturity Date, a “Scheduled Payment Date”) until the entire indebtedness evidenced hereby is fully paid, except that any remaining indebtedness, if not sooner paid, shall be due and payable on the Maturity Date. In addition to the foregoing, commencing on the Optional Prepayment Date and continuing on each Scheduled Payment Date thereafter, Borrower hereby agrees to pay all Excess Cash (as defined in the Loan Agreement) until the principal amount of this Note is paid in full, provided, however, the entire Debt, including all Accrued Interest (defined below), shall be due on the Maturity Date.

(b)Each payment by Borrower hereunder shall be made to P.O. Box 65585, Charlotte, NC 28265-0585, or at such other place as Lender may designate from time to time in

writing. Whenever any payment hereunder shall be stated to be due on a day which is not a Business Day, such payment shall be made on the first Business Day preceding such scheduled due date. All payments made by Borrower hereunder or under the other Loan Documents shall be made irrespective of, and without any deduction for, any setoff, defense or counterclaims.

(c)Provided no Event of Default has occurred, (i) each Monthly Payment Amount made as scheduled on this Note shall be applied first to the payment of interest computed at the Initial Note Rate, and the balance toward the reduction of the principal amount of this Note, and (ii) each payment of Excess Cash made as required on this Note shall be applied first to the reduction of the principal amount of this Note until paid in full, and the balance to Accrued Interest until paid in full. All voluntary and involuntary prepayments on this Note shall be applied, to the extent thereof, to accrued but unpaid interest on the amount prepaid, to the remaining Principal Amount, and any other sums due and unpaid to the Lender in connection with the Loan, in such manner and order as Lender may elect in its sole and absolute discretion, including, but not limited to, application to principal installments in inverse order of maturity. Following the occurrence of an Event of Default, any payment made on this Note shall be applied to accrued but unpaid interest, late charges, accrued fees, the unpaid principal amount of this Note, and any other sums due and unpaid to Lender in connection with the Loan, in such manner and order as Lender may elect in its sole and absolute discretion.

(d)Remittances in payment of any part of the indebtedness other than in the required amount in immediately available U.S. funds shall not, regardless of any receipt or credit issued therefor, constitute payment until the required amount is actually received by the holder hereof in immediately available U.S. funds and shall be made and accepted subject to the condition that any check or draft may be handled for collection in accordance with the practices of the collecting bank or banks.

Article 2 - INTEREST

The Loan shall bear interest at a fixed rate per annum equal to the Note Rate. The “Note Rate” shall mean (a) from the date of this Note through but excluding the Optional Prepayment Date, the Initial Note Rate, and (b) from and after the Optional Prepayment Date through and including the date this Note is paid in full, the Revised Note Rate. The “Revised Note Rate” shall mean a rate per annum equal to the sum of (x) two percent (2.00%) and (y) the greater of (i) the Initial Note Rate and (ii) the sum of the Treasury Rate plus five percent (5.00%). The “Treasury Rate” shall mean the yield per annum calculated by the linear interpolation of yields, as reported in the Federal Reserve Statistical Release H.I5 – Selected Interest Rates under the heading “US government securities” and the subheading “Treasury constant maturities” for the week ending prior to the Optional Prepayment Date, of U.S. Treasury constant maturities with maturity dates (one longer and one shorter) most nearly approximating the Maturity Date. In the event H.15 is no longer published, Lender in its reasonable discretion shall select a comparable publication to determine the Treasury Rate. From and after the Optional Prepayment Date, interest in excess of the Initial Note Rate shall accrue and be added to the Debt and shall earn interest at the Revised Note Rate to the extent permitted by applicable law (“Accrued Interest”). Interest shall be computed on the basis of a three hundred sixty (360) day year consisting of twelve (12) months of thirty (30) days each. Except as otherwise set forth herein, or in the other Loan Documents, interest shall be paid in arrears.

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Article 3 - DEFAULT AND ACCELERATION

The Debt shall without notice become immediately due and payable at the option of Lender if any payment required in this Note is not paid prior to the tenth (10^th) day following the date when due or if not paid on the Maturity Date or on the happening of any other Event of Default.

Article 4 - PAYMENTS AFTER DEFAULT

Upon the occurrence and during the continuance of an Event of Default, interest on the outstanding principal balance of the Loan and, to the extent permitted by law, overdue interest and other amounts due in respect of the Loan shall accrue at a rate per annum equal to the lesser of (a) the maximum rate permitted by applicable law, or (b) four percent (4%)above the Note Rate (such rate, the “Default Rate”).Interest at the Default Rate shall be computed from the occurrence of the Event of Default until the earlier of (i) the actual receipt and collection of the Debt (or that portion thereof that is then due) and (ii) the cure of such Event of Default. To the extent permitted by applicable law, interest at the Default Rate shall be added to the Debt, shall itself accrue interest at the same rate as the Loan and shall be secured by the Security instrument. This Article shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of the occurrence of any Event of Default; the acceptance of any payment from Borrower shall not be deemed to cure or constitute a waiver of any Event of Default; and Lender retains its rights under this Note, the Loan Agreement and the other Loan Documents to accelerate and to continue to demand payment of the Debt upon the happening of and during the continuance any Event of Default, despite any payment by Borrower to Lender.

Article 5 - PREPAYMENT

Except as otherwise expressly permitted by this Article 5, no voluntary prepayments, whether in whole or in part, of the Loan or any other amount at any time due and owing under this Note can be made by Borrower or any other Person without the express written consent of Lender.

(a)Lockout Period. Borrower shall have no right to make, and Lender shall have no obligation to accept, any voluntary prepayment, whether in whole or in part, of the Loan, or any other amount under this Note or the other Loan Documents, at any time during the Lockout Period. At any time following the expiration of the Lockout Period, the principal balance of this Note may be voluntarily prepaid in whole, but not in part, upon the satisfaction of the following conditions:

(i)no Default shall exist under any of the Loan Documents;

(ii)not less than sixty (60) (but not more than ninety (90)) days prior written notice shall be given to Lender specifying a date on which the prepayment shall occur such date being a Scheduled Payment Date (the “Prepayment Date”);

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(iii)Borrower has paid to Lender all accrued and unpaid interest on the Loan through and including the Prepayment Date together with all other sums due under this Note and the other Loan Documents; and

(iv)Borrower has paid to Lender a prepayment premium in an amount equal to Yield Maintenance (as defined and calculated in accordance with Section 5(b) below); provided, however, that in the event of a voluntary prepayment made by Borrower within sixty (60) days of the Optional Prepayment Date, there shall be no prepayment premium required to be paid by Borrower.

(b)Involuntary Prepayment. In the event of any involuntary prepayment of the Loan or any other amount under this Note, whether in whole or in part, in connection with or following Lender’s acceleration of this Note or otherwise, and whether the Security Instrument is satisfied or released by foreclosure (whether by power of sale or judicial proceeding), deed in lieu of foreclosure or by any other means, including, without limitation, repayment of the Loan by Borrower or any other Person pursuant to any statutory or common law right of redemption, Borrower shall pay any portion of the principal balance of the Loan prepaid (together with all interest accrued and unpaid thereon and, in the event the prepayment is made on a date other than a Scheduled Payment Date, a sum equal to the amount of interest which would have accrued under this Note on the amount of such prepayment if such prepayment had occurred on the next Scheduled Payment Date).

As used herein, “Yield Maintenance” means a prepayment premium in an amount equal to the greater of equal to the greater of (i) 1% of the portion of the Loan being prepaid, and (ii) the present value as of the Prepayment Calculation Date of a series of monthly payments over the remaining term of the Loan through and including the Optional Prepayment Date each equal to the amount of interest which would be due on the portion of the Loan being prepaid assuming a per annum interest rate equal to the excess of the Note Rate over the Reinvestment Yield, and discounted at the Reinvestment Yield. As used herein, “Reinvestment Yield” means the yield calculated by the linear interpolation of the yields, as reported in the Federal Reserve Statistical Release H.I5-Selecled Interest Rates under the heading “U.S. government securities” and the sub-heading “Treasury constant maturities” for the week ending prior to the Prepayment Calculation Date, of the U.S. Treasury constant maturities with maturity dates (one longer and one equal, to or shorter) most nearly approximating the Optional Prepayment Date, and converted to a monthly compounded nominal yield. In the event Release H.15 is no longer published, Lender shall select a comparable publication to determine the Reinvestment Yield. The “Prepayment Calculation Date” shall mean, as applicable, the date on which (i) Lender applies any prepayment to the reduction of the outstanding principal amount of this Note, (ii) Lender accelerates the Loan, in the case of a prepayment resulting from acceleration, or (iii) Lender applies funds held under any Reserve Account, in the case of a prepayment resulting from such an application (other than in connection with acceleration of the Loan).

(c)Insurance Proceeds and Awards; Excess Interest. Notwithstanding any other provision herein to the contrary, and provided no Default exists, Borrower shall not be required to pay any prepayment premium in connection with any prepayment occurring solely as a result of (i) the application of Insurance Proceeds or Awards pursuant to the terms of the Loan

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Documents, or (ii) the application of any interest in excess of the maximum rate permitted by applicable law to the reduction of the Loan.

(d)Open Prepayment Period.  Borrower may voluntarily prepay (without premium) this Note on a Scheduled Payment Date (i) in whole (but not in part) during the sixty (60) days prior to the Optional Prepayment Date, and (ii) in whole or in part from the Optional Prepayment Date through and including the date this Note is paid in full, in each case, upon giving Lender at least sixty (60) days (but not more than ninety (90) days) prior written notice. Lender shall accept a prepayment pursuant to this Section 5(d) on a day other than a Scheduled Payment Date provided that, in addition to payment of the full outstanding principal balance of this Note, Borrower pays to Lender a sum equal to the amount of interest which would have accrued on this Note if such prepayment occurred on the next Scheduled Payment Date.

(e)Limitation on Partial Prepayments.  In no event shall Lender have any obligation to accept a partial prepayment.

Article 6 - SECURITY

This Note is secured by the Security Instrument and the other Loan Documents.  All of the terms, covenants and conditions contained in the Loan Agreement, the Security Instrument and the other Loan Documents are hereby made part of this Note to the same extent and with the same force as if they were fully set forth herein.

Article 7 - USURY SAVINGS

This Note is subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the principal balance of the Loan at a rate which could subject Lender to either civil or criminal liability as a result of being in excess of the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by this Note and as provided for herein or in the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan (such rate, the “Maximum Legal Rate”). If, by the terms of this Note or the other Loan Documents, Borrower is at any time required or obligated to pay interest on the principal balance due hereunder at a rate in excess of the Maximum Legal Rate, the Note Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced to the Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. All sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the sums due under the Loan, shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the Loan does not exceed the Maximum Legal Rate of interest from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.

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Article 8 - - LATE PAYMENT CHARGE

If any principal or interest payment is not paid by Borrower before the tenth (10th) day after the date the same is due (or such greater period, if any, required by applicable law), Borrower shall pay to Lender upon demand an amount equal to the lesser of four percent (4%) of such unpaid sum or the maximum amount permitted by applicable law in order to defray the expense incurred by Lender in handling and processing such delinquent payment and to compensate Lender for the loss of the use of such delinquent payment, provided however, Borrower shall not be required to pay Lender a late charge in connection with the final payment under the loan. Any such amount shall be secured by the Security Instrument and the other Loan Documents to the extent permitted by applicable law.

Article 9 - NO ORAL CHANGE

This Note may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Borrower or Lender, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.

Article 10 - WAIVERS

BORROWER AND ALL OTHERS WHO MAY BECOME LIABLE FOR THE PAYMENT OF ALL OR ANY PART OF THE DEBT DO HEREBY SEVERALLY WAIVE PRESENTMENT AND DEMAND FOR PAYMENT, NOTICE OF DISHONOR, NOTICE OF INTENTION TO ACCELERATE, NOTICE OF ACCELERATION, PROTEST AND NOTICE OF PROTEST AND NON-PAYMENT AND ALL OTHER NOTICES OF ANY KIND EXCEPT AS PROVIDED IN THE LOAN AGREEMENT. NO RELEASE OF ANY SECURITY FOR THE DEBT OR EXTENSION OF TIME FOR PAYMENT OF THIS NOTE OR ANY INSTALLMENT HEREOF, AND NO ALTERATION, AMENDMENT OR WAIVER OF ANY PROVISION OF THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS MADE BY AGREEMENT BETWEEN LENDER OR ANY OTHER PERSON SHALL RELEASE, MODIFY, AMEND, WAIVE, EXTEND, CHANGE, DISCHARGE, TERMINATE OR AFFECT THE LIABILITY OF BORROWER, AND ANY OTHER PERSON WHO MAY BECOME LIABLE FOR THE PAYMENT OF ALL OR ANY PART OK THE DEBT, UNDER THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS. NO NOTICE TO OR DEMAND ON BORROWER SHALL BE DEEMED TO BE A WAIVER OF THE OBLIGATION OF BORROWER OR OF THE RIGHT OF LENDER TO TAKE FURTHER ACTION WITHOUT FURTHER NOTICE OR DEMAND AS PROVIDED FOR IN THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS. IF BORROWER IS A LIMITED LIABILITY COMPANY, THE AGREEMENTS HEREIN CONTAINED SHALL REMAIN IN FORCE AND BE APPLICABLE, NOTWITHSTANDING ANY CHANGES IN THE INDIVIDUALS COMPRISING THE LIMITED LIABILITY COMPANY, AND THE TERM “BORROWER,” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATE OR SUCCESSOR LIMITED LIABILITY COMPANY, BUT ANY PREDECESSOR LIMITED LIABILITY COMPANY AND ITS MEMBERS SHALL NOT THEREBY BE RELEASED FROM ANY LIABILITY. IF BORROWER IS A PARTNERSHIP, THE AGREEMENTS HEREIN CONTAINED SHALL REMAIN IN FORCE AND BE

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APPLICABLE, NOTWITHSTANDING ANY CHANGES IN THE INDIVIDUALS COMPRISING THE PARTNERSHIP, AND THE TERM “BORROWER,” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATE OR SUCCESSOR PARTNERSHIP, BUT ANY PREDECESSOR PARTNERSHIP AND THEIR PARTNERS SHALL NOT THEREBY BE RELEASED FROM ANY LIABILITY.  IF BORROWER IS A CORPORATION, THE AGREEMENTS CONTAINED HEREIN SHALL REMAIN IN FULL FORCE AND BE APPLICABLE NOTWITHSTANDING ANY CHANGES IN THE SHAREHOLDERS COMPRISING, OR THE OFFICERS AND DIRECTORS RELATING TO, THE CORPORATION, AND THE TERM “BORROWER” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATIVE OR SUCCESSOR CORPORATION, BUT ANY PREDECESSOR CORPORATION SHALL NOT BE RELIEVED OF LIABILITY HEREUNDER. (NOTHING IN THE FOREGOING SENTENCE SHALL BE CONSTRUED AS A CONSENT TO, OR A WAIVER OF, ANY PROHIBITION OR RESTRICTION ON TRANSFERS OF INTERESTS IN SUCH BORROWING ENTITY WHICH MAY BE SET FORTH IN THE LOAN AGREEMENT, THE MORTGAGE OR ANY OTHER LOAN DOCUMENTS.) IF BORROWER CONSISTS OF MORE THAN ONE PERSON OR PARTY, THE OBLIGATIONS AND LIABILITIES OF EACH PERSON OR PARTY SHALL BE JOINT AND SEVERAL.

Article 11 - TRIAL BY JURY

BORROWER AND LENDER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS NOTE, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF LENDER AND BORROWER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER AND LENDER.

Article 12 - - TRANSFER

Upon the transfer of this Note, Borrower hereby waiving notice of any such transfer, Lender may deliver all the collateral mortgaged, granted, pledged or assigned pursuant to the Loan Documents, or any part thereof, to the transferee who shall thereupon become vested with all the rights herein or under applicable law given to Lender with respect thereto, and Lender shall thereafter forever be relieved and fully discharged from any liability or responsibility in the matter arising from events thereafter occurring; but Lender shall retain all rights hereby given to it with respect to any liabilities and the collateral not so transferred.

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Article 13 - - EXCULPATION

The provisions of Article 15 of the Loan Agreement are hereby incorporated by reference into this Note to the same extent and with the same force as if fully set forth herein.

Article 14 - GOVERNING LAW

This Note shall in all respects be governed, construed, applied and enforced in accordance with the laws of the state in which the Property is located and any applicable federal laws of the United States of America.

Article 15 - NOTICES

All notices or other written communications hereunder shall be delivered in accordance with Article 16 of the Loan Agreement.

Article 16 - TAXPAYER IDENTIFICATION NUMBER

This Note provides for the Borrower’s federal taxpayer identification number to be inserted in the Loan Terms Table on the first page of this Note. If such number is not available at the time of execution of this Note or is not inserted by the Borrower, the Borrower hereby authorizes and directs the Lender to fill in such number on the first page of this Note when the Borrower provides to Lender, advises the Lender of, or the Lender otherwise obtains, such number.

Article 17 - ATTORNEYS’ FEES

Any provisions in this Note or elsewhere in the Loan Documents providing for the payment of “attorneys’ fees,” “reasonable attorneys’ fees” or words of similar import, shall mean actual attorneys’ fees and paralegal fees incurred based upon the usual and customary fees or hourly rates of the attorneys and paralegals involved without giving effect to any statutory presumption that may then be in effect.

[NO FURTHER TEXT ON THIS PAGE]

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IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and year first above written.

INLAND WESTERN PHOENIX 19TH AVENUE, L.L.C., a Delaware limited liability company
By:	Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
	By:		/s/ Debra A. Palmer
	Name:			Debra A. Palmer
	Its:	Asst Secretary

EX-10.460

Exhibit 10.460

LOAN AGREEMENT

Dated as of December 16, 2004

Between

INLAND WESTERN PHOENIX 19^TH AVENUE, L.L.C.,

as Borrower

and

BANK OF AMERICA, N.A.,

as Lender

TABLE OF CONTENTS

ARTICLE 1 DEFINITIONS; PRINCIPLES OF CONSTRUCTION
	SECTION 1.1.	DEFINITIONS
	SECTION 1.2.	PRINCIPLES OF CONSTRUCTION
ARTICLE 2 GENERAL TERMS
	SECTION 2.1.	LOAN COMMITMENT; DISBURSEMENT TO BORROWER
	SECTION 2.2.	LOAN PAYMENTS
	SECTION 2.3.	PREPAYMENT
ARTICLE 3 CONDITIONS PRECEDENT
ARTICLE 4 REPRESENTATIONS AND WARRANTIES
	SECTION 4.1.	ORGANIZATION
	SECTION 4.2.	STATUS OF BORROWER
	SECTION 4.3.	VALIDITY OF DOCUMENTS
	SECTION 4.4.	NO CONFLICTS
	SECTION 4.5.	LITIGATION
	SECTION 4.6.	AGREEMENTS
	SECTION 4.7.	SOLVENCY
	SECTION 4.8.	FULL AND ACCURATE DISCLOSURE
	SECTION 4.9.	NO PLAN ASSETS
	SECTION 4.10.	NOT A FOREIGN PERSON
	SECTION 4.11.	ENFORCEABILITY
	SECTION 4.12.	BUSINESS PURPOSES
	SECTION 4.13.	COMPLIANCE
	SECTION 4.14.	FINANCIAL INFORMATION
	SECTION 4.15.	CONDEMNATION
	SECTION 4.16.	UTILITIES AND PUBLIC ACCESS; PARKING
	SECTION 4.17.	SEPARATE LOTS
	SECTION 4.18.	ASSESSMENTS
	SECTION 4.19.	INSURANCE
	SECTION 4.20.	USE OF PROPERTY
	SECTION 4.21.	CERTIFICATE OF OCCUPANCY; LICENSES
	SECTION 4.22.	FLOOD ZONE
	SECTION 4.23.	PHYSICAL CONDITION
	SECTION 4.24.	BOUNDARIES; SURVEY
	SECTION 4.25.	LEASES
	SECTION 4.26.	FILING AND RECORDING TAXES
	SECTION 4.27.	MANAGEMENT AGREEMENT
	SECTION 4.28.	ILLEGAL ACTIVITY
	SECTION 4.29.	CONSTRUCTION EXPENSES
	SECTION 4.30.	PERSONAL PROPERTY
	SECTION 4.31.	TAXES
	SECTION 4.32.	PERMITTED ENCUMBRANCES
	SECTION 4.33.	FEDERAL RESERVE REGULATIONS
	SECTION 4.34.	INVESTMENT COMPANY ACT
	SECTION 4.35.	RECIPROCAL EASEMENT AGREEMENTS
	SECTION 4.36.	NO CHANGE IN FACTS OR CIRCUMSTANCES; DISCLOSURE

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	SECTION 4.37.	INTELLECTUAL PROPERTY
	SECTION 4.38.	COMPLIANCE WITH ANTI-TERRORISM LAWS
	SECTION 4.39.	PATRIOT ACT
	SECTION 4.40.	SURVIVAL
ARTICLE 5 BORROWER COVENANTS
	SECTION 5.1.	EXISTENCE; COMPLIANCE WITH LEGAL REQUIREMENTS
	SECTION 5.2.	MAINTENANCE AND USE OF PROPERTY
	SECTION 5.3.	WASTE
	SECTION 5.4.	TAXES AND OTHER CHARGES
	SECTION 5.5.	LITIGATION
	SECTION 5.6.	ACCESS TO PROPERTY
	SECTION 5.7.	NOTICE OF DEFAULT
	SECTION 5.8.	COOPERATE IN LEGAL PROCEEDINGS
	SECTION 5.9.	PERFORMANCE BY BORROWER
	SECTION 5.10.	AWARDS; INSURANCE PROCEEDS
	SECTION 5.11.	FINANCIAL REPORTING
	SECTION 5.12.	ESTOPPEL STATEMENT
	SECTION 5.13.	LEASING MATTERS
	SECTION 5.14.	PROPERTY MANAGEMENT
	SECTION 5.15.	LIENS
	SECTION 5.16.	DEBT CANCELLATION
	SECTION 5.17.	ZONING
	SECTION 5.18.	ERISA
	SECTION 5.19.	NO JOINT ASSESSMENT
	SECTION 5.20.	RECIPROCAL EASEMENT AGREEMENTS
ARTICLE 6 ENTITY COVENANTS
	SECTION 6.1.	SINGLE PURPOSE ENTITY/SEPARATENESS
	SECTION 6.2.	CHANGE OF NAME, IDENTITY OR STRUCTURE
	SECTION 6.3.	BUSINESS AND OPERATIONS
	SECTION 6.4.	INTENTIONALLY OMITTED
ARTICLE 7 NO SALE OR ENCUMBRANCE
	SECTION 7.1.	TRANSFER DEFINITIONS
	SECTION 7.2.	NO SALE/ENCUMBRANCE
	SECTION 7.3.	PERMITTED TRANSFERS
	SECTION 7.4.	LENDER’S RIGHTS
	SECTION 7.5.	ASSUMPTION
	SECTION 7.6.	ASSUMPTION BY INLAND PERMITTED TRANSFEREE
ARTICLE 8 INSURANCE; CASUALTY; CONDEMNATION; RESTORATION
	SECTION 8.1.	INSURANCE
	SECTION 8.2.	CASUALTY
	SECTION 8.3.	CONDEMNATION
	SECTION 8.4.	RESTORATION
ARTICLE 9 REPLACEMENTS; RESERVE FUNDS
	SECTION 9.1.	REPLACEMENTS
	SECTION 9.2.	TAX AND INSURANCE RESERVE FUNDS
	SECTION 9.3.	RESERVE FUNDS GENERALLY
ARTICLE 10 CASH MANAGEMENT
	SECTION 10.1.	CASH MANAGEMENT ACCOUNT
	SECTION 10.2.	DEPOSITS AND WITHDRAWALS
	SECTION 10.3.	SECURITY INTEREST

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ARTICLE 11 EVENTS OF DEFAULT; REMEDIES
	SECTION 11.l.	EVENT OF DEFAULT
	SECTION 11.2.	REMEDIES
ARTICLE 12 ENVIRONMENTAL PROVISIONS
	SECTION 12.1.	ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES
	SECTION 12.2.	ENVIRONMENTAL COVENANTS
	SECTION 12.3.	LENDER’S RIGHTS
	SECTION 12.4.	OPERATIONS AND MAINTENANCE PROGRAMS
	SECTION 12.5.	ENVIRONMENTAL DEFINITIONS
ARTICLE 13 SECONDARY MARKET
	SECTION 13.1.	TRANSFER OF LOAN
	SECTION 13.2.	DELEGATION OR SERVICING
	SECTION 13.3.	DISSEMINATION OF INFORMATION
	SECTION 13.4.	COOPERATION
ARTICLE 14 INDEMNIFICATIONS
	SECTION 14.1.	GENERAL INDEMNIFICATION
	SECTION 14.2.	MORTGAGE AND INTANGIBLE TAX INDEMNIFICATION
	SECTION 14.3.	ERISA INDEMNIFICATION
	SECTION 14.4.	SURVIVAL
ARTICLE 15 EXCULPATION
	SECTION 15.1.	EXCULPATION
ARTICLE 16 NOTICES
	SECTION 16.1.	NOTICES
ARTICLE 17 FURTHER ASSURANCES
	SECTION 17.1.	REPLACEMENT DOCUMENTS
	SECTION 17.2.	RECORDING OF MORTGAGE, ETC
	SECTION 17.3.	FURTHER ACTS, ETC
	SECTION 17.4.	CHANGES IN TAX, DEBT, CREDIT AND DOCUMENTARY STAMP LAWS
	SECTION 17.5.	EXPENSES
ARTICLE 18 WAIVERS
	SECTION 18.1.	REMEDIES CUMULATIVE; WAIVERS
	SECTION 18.2.	MODIFICATION, WAIVER IN WRITING
	SECTION 18.3.	DELAY NOT A WAIVER
	SECTION 18.4.	TRIAL BY JURY
	SECTION 18.5.	WAIVES OF NOTICE
	SECTION 18.6.	REMEDIES OF BORROWER
	SECTION 18.7.	WAIVER OF MARSHALLING OF ASSETS
	SECTION 18.8.	WAIVER OF STATUTE OF LIMITATIONS
	SECTION 18.9.	WAIVER OF COUNTERCLAIM
ARTICLE 19 GOVERNING LAW
	SECTION 19.1.	CHOICE OF LAW
	SECTION 19.2.	SEVERABILITY
	SECTION 19.3.	PREFERENCES
ARTICLE 20 MISCELLANEOUS
	SECTION 20.l.	SURVIVAL
	SECTION 20.2.	LENDER’S DISCRETION

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SECTION 20.3.	HEADINGS
SECTION 20.4.	COST OF ENFORCEMENT
SECTION 20.5.	SCHEDULES INCORPORATED
SECTION 20.6.	OFFSETS, COUNTERCLAIMS AND DEFENSES
SECTION 20.7.	NO JOINT VENTURE OR PARTNERSHIP; NO THIRD PARTY BENEFICIARIES
SECTION 20.8.	PUBLICITY
SECTION 20.9.	CONFLICT; CONSTRUCTION OF DOCUMENTS; RELIANCE
SECTION 20.10.	ENTIRE AGREEMENT

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LOAN AGREEMENT

THIS LOAN AGREEMENT, dated as of December 16, 2004 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”),between BANK OF AMERICA, N.A., a national banking association, having an address at Bank of America Corporate Center, 214 North Tryon Street, Charlotte, North Carolina 28255 (together with its successors and/or assigns, “Lender”)and Inland Western Phoenix 19^th Avenue, L.L.C., a Delaware limited liability company having an address at c/o Inland Real Estate Investment Corporation, 2901 Butterfield Road, Oak Brook, Illinois 60523 (together with its successors and/or assigns, “Borrower”).

RECITALS:

Borrower desires to obtain the Loan (defined below) from Lender.

Lender is willing to make the Loan to Borrower, subject to and in accordance with the terms of this Agreement and the other Loan Documents (defined below).

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

ARTICLE 1
DEFINITIONS; PRINCIPLES OF CONSTRUCTION

Section 1.1.Definitions

For all purposes of this Agreement, except as otherwise expressly required or unless the context clearly indicates a contrary intent:

“Account Collateral” shall mean (i) the Accounts, and all cash, checks, drafts, certificates and instruments, if any, from time to time deposited or held in the Accounts; (ii) any and all amounts in or credited to the Accounts invested in Permitted Investments; (iii) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise payable in respect of, or in exchange for, any or all of the foregoing; and (iv) to the extent, not covered by clauses (i) - (iii) above, all “proceeds” (as defined under the UCC as in effect in the State in which the Accounts are located) of any or all of the foregoing.

“Accounts” shall mean the Cash Management Account, the Tax and Insurance Reserve Accounts, if any, and any other account or sub-account established by this Agreement, the Mortgage, or the other Loan Documents.

“Accredited Investor” shall have the meaning set forth in the regulations promulgated by the Securities and Exchange Commission.

“Act” shall have the meaning set forth in Section 6.1(c).

“Affiliate” shall mean, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person or is a director or officer of such Person or of an Affiliate of such Person.

“Affiliated Loans” shall mean a loan made by Lender to a parent, subsidiary or such other entity affiliated with Borrower or Borrower Principal.

“Affiliated Manager” shall have the meaning set forth in Section 7.1 hereof.

“ALTA” shall mean American Land Title Association, or any successor thereto.

“American Express” shall mean American Express Travel Related Services Company, Inc., a New York corporation.

“American Express Lease” shall mean that certain Lease Agreement dated as of December 16, 2004 between Borrower, as landlord, and American Express, as tenant, with respect to the Property.

“American Express Lease Default” shall mean (i) a default, after the expiration of any applicable notice or cure periods, under the American Express Lease or (ii) the cancellation, termination or surrender of the American Express Lease.

“Assignment of Management Agreement” shall mean that certain Assignment and Subordination of Management Agreement dated the date hereof among Lender, Borrower and Manager, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Award” shall mean any compensation paid by any Governmental Authority in connection with a Condemnation in respect of all or any part of the Property.

“Borrower Principal” shall mean Inland Western Retail Real Estate Trust, Inc., a Maryland corporation.

“Business Day” shall mean a day on which Lender is open for the conduct of substantially all of its banking business at its office in the city in which the Note is payable (excluding Saturdays and Sundays).

“Cash Management Account” shall have the meaning set forth in Section 10.1(a) hereof.

“Cash Management Period” shall mean the period commencing on the 45^th day prior to the Optional Prepayment Date.

“Casualty” shall have the meaning set forth in Section 8.2.

“Closing Date” shall mean the date of the funding of the Loan.

“Control” shall have the meaning set forth in Section 7.1 hereof.

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“Condemnation” shall mean a temporary or permanent taking by any Governmental Authority as the result, in lieu or in anticipation, of the exercise of the right of condemnation or eminent domain, of all or any part of the Property, or any interest therein or right accruing thereto, including any right of access thereto or any change of grade affecting the Property or any part thereof.

“Condemnation Proceeds” shall have the meaning set forth in Section 8.4(b)

“Creditors Rights Laws” shall mean with respect to any Person any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to its debts or debtors.

“Debt” shall mean the outstanding principal amount set forth in, and evidenced by, this Agreement and the Note together with all interest accrued and unpaid thereon and all other sums due to Lender in respect of the Loan under the Note, this Agreement, the Mortgage or any other Loan Document.

“Debt Service” shall mean, with respect to any particular period of time, scheduled principal and/or interest payments under the Note.

“Default” shall mean the occurrence of any event hereunder or under any other Loan Document which, but for the giving of notice or passage of time, or both, would be an Event of Default.

“Default Rate” shall mean, with respect to the Loan, a rate per annum equal to the lesser of (a) the maximum rate permitted by applicable law, or (b) four percent (4%) above the Note Rate.

“Eligible Account” shall mean a separate and identifiable account from all other funds held by the holding institution that is either (a) an account or accounts maintained with a federal or state chartered depository institution or trust company which complies with the definition of Eligible Institution or (b) a segregated trust account or accounts maintained with the corporate trust department of a federal or state chartered depository institution or trust company acting in its fiduciary capacity which, in the case of a federally chartered depository institution or trust company acting in its fiduciary capacity is subject to the regulations regarding adversary funds on deposit therein under 12 CFR (§9.10(b), and in the case of a state chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R. §9.10(b), having in either case a combined capital surplus of at least $50,000,000 and subject to supervision or examination by federal and state authority. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.

“Eligible Institution” shall mean a depository institution or trust company insured by the Federal Deposit Insurance Corporation, the short term unsecured debt obligations or commercial paper of which are rated at least “A-1” by S&P, “P-l” by Moody’s and “F-1” by Fitch in the case of accounts in which funds are held for thirty (30) days or less (or, in the case of accounts in which funds are held for more than thirty (30) days, the long term unsecured debt obligations of which are rated at least “AA-” by Fitch and S&P (or “A-” by S&P, if such depository’s short

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term unsecured debt rating is at least “A-l” by S&P) and “Aa2” by Moody’s). Notwithstanding the foregoing, prior to a Securitization, Bank of America, N.A. shall be an Eligible Institution.

“Embargoed Person” shall mean any person identified by OFAC or any other Person with whom a Person resident in the United States of America may not conduct business or transactions by prohibition of federal law or Executive Order of the President of the United States of America.

“Environmental Indemnity” shall mean that certain Environmental Indemnity Agreement, dated as of the date hereof, executed by Borrower and Borrower Principal in connection with the Loan for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Environmental Law” shall have the meaning set forth in Section 12.5 hereof.

“Environmental Liens” shall have the meaning set forth in Section 12.5 hereof.

“Environmental Report” shall have the meaning set forth in Section 12.5 hereof.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time and any successor statutes thereto and applicable regulations issued pursuant thereto in temporary or final form.

“Event of Default” shall have the meaning set forth in Section 11.1 hereof.

“Exchange Act” shall mean the Securities and Exchange Act of 1934, as amended.

“Fitch” shall mean Fitch, Inc.

“GAAP” shall mean generally accepted accounting principles in the United States of America as of the date of the applicable financial report.

“Governmental Authority” shall mean any court, board, agency, department, commission, office or other authority of any nature whatsoever for any governmental unit (federal, state, county, municipal, city, town, special district or otherwise) whether now or hereafter in existence.

“Guarantor” shall mean any Person having a long-term unsecured debt rating above the Trigger Rating that may, from time to time, at the option of American Express, execute a guaranty in favor of landlord under the American Express Lease.

“Hazardous Materials” shall have the meaning set forth in Section 12.5 hereof.

“Improvements” shall have the meaning set forth in the granting clause of the Mortgage.

“Indemnified Parties” shall mean (a) Lender, (b) any prior owner or holder of the Loan or Participations in the Loan, (c) any servicer or prior servicer of the Loan, (d) any Investor or any prior Investor in any Securities, (e) any trustees, custodians or other fiduciaries who hold or

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who have held a full or partial interest in the Loan for the benefit of any Investor or other third party, (f) any receiver or other fiduciary appointed in a foreclosure or other Creditors Rights Laws proceeding, (g) any officers, directors, shareholders, partners, members, employees, agents, servants, representatives, contractors, subcontractors, affiliates or subsidiaries of any and all of the foregoing, and (h) the heirs, legal representatives, successors and assigns of any and all of the foregoing (including, without limitation, any successors by merger, consolidation or acquisition of all or a substantial portion of the Indemnified Parties’ assets and business), in all cases whether during the term of the Loan or as part of or following a foreclosure of the Mortgage.

“Inland Permitted Transferee” shall mean a newly-formed special purpose entity that is wholly-owned (directly or indirectly) by Inland Retail Real Estate Trust, Inc., a Maryland corporation; Inland Real Estate Corporation, a Maryland corporation, Inland Real Estate Corporation, a Delaware corporation or Borrower Principal.

“Insurance Premiums” shall have the meaning set forth in Section 8.1 hereof.

“Insurance Proceeds” shall have the meaning set forth in Section 8.4(b) hereof.

“Internal Revenue Code” shall mean the Internal Revenue Code of 1986, as amended, as it may be further amended from time to time, and any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.

“Investor” shall have the meaning set forth in Section 13.3 hereof.

“Lease” shall have the meaning set forth in the Mortgage.

“Legal Requirements” shall mean all statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting the Property or any part thereof, or the construction, use, alteration or operation thereof, whether now or hereafter enacted and in force, and all permits, licenses, authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Borrower, at any time in force affecting the Property or any part thereof, including, without limitation, any which may (a) require repairs, modifications or alterations in or to the Property or any part thereof, or (b) in any way limit the use and enjoyment thereof.

“Lien” shall mean any mortgage, deed of trust, lien, pledge, hypothecation, assignment, security interest, or any other encumbrance, charge or transfer of, on or affecting Borrower, the Property, any portion thereof or any interest therein, including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialmen’s and other similar liens and encumbrances.

“LLC Agreement” shall have the meaning set forth in Section 6.1(c).

“Loan” shall mean the loan made by Lender to Borrower pursuant to this Agreement.

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“Loan Documents” shall mean, collectively, this Agreement, the Note, the Mortgage, the Environmental Indemnity, the Assignment of Management Agreement and any and all other documents, agreements and certificates executed and/or delivered in connection with the Loan, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Lockout Period” shall mean the period commencing on the date hereof and ending on the date of the second anniversary hereof.

“Losses” shall mean any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, fines, penalties, charges, fees, judgments, awards, amounts paid in settlement of whatever kind or nature (including but not limited to legal fees and other costs of defense).

“Management Agreement” shall mean the management agreement entered into by and between Borrower and Manager, pursuant to which Manager is to provide management and other services with respect to the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified in accordance with the terms of this Agreement.

“Manager” shall mean Inland Southwest Management LLC, a Delaware limited liability company or such other entity selected as the manager of the Property in accordance with the terms of this Agreement.

“Material Litigation” shall mean, with respect to any Person, any material conviction, indictment (that is not dismissed before trial), judgment, litigation or regulatory action. For purposes of this definition, a matter shall be deemed material if it is reasonably foreseeable that a prudent institutional commercial real estate mortgage lender would consider such matter as a material adverse factor in its underwriting of the Person in question. With respect to non-criminal matters, isolated actions occurring more than five (5) years prior to the date of a proposed transfer shall not be deemed material provided that there is no indication of fraud, intentional misrepresentation or intent to defraud creditors with respect to such actions.

“Maturity Date” shall have the meaning set forth in the Note.

“Maximum Legal Rate” shall mean the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by the Note and as provided for herein or the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan.

“Member” shall have the meaning set forth in Section 6.l(c).

“Monthly Payment Amount” shall mean the monthly payment of interest due on each Scheduled Payment Date as set forth in the Note.

“Moody’s” shall mean Moody’s Investor Services, Inc.

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“Mortgage” shall mean that certain first priority mortgage/deed of trust/deed to secure debt and security agreement dated the date hereof, executed and delivered by Borrower as security for the Loan and encumbering the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Net Proceeds” shall have the meaning set forth in Section 8.4(b) hereof.

“Net Proceeds Deficiency” shall have the meaning set forth in Section 8.4(b)(vi) hereof.

“Note” shall mean that certain promissory note of even date herewith in the principal amount of $8,260,000, made by Borrower in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Note Rate” shall have the meaning set forth in the Note.

“OFAC” shall have the meaning set forth in Section 4.38 hereof.

“Operating Expenses” shall mean, with respect to any period of time, the total of all expenses actually paid or payable, computed in accordance with federal tax basis accounting, or in accordance with other methods acceptable to Lender in its sole discretion, of whatever kind relating to the operation, maintenance and management of the Property, including, without, limitation, utilities, ordinary repairs and maintenance, Insurance Premiums, license fees, Taxes and Other Charges, advertising expenses, payroll and related taxes, computer processing charges, management fees equal to the greater of 4% of the Operating Income and the management fees actually payable under the Management Agreement for such period of time, operational equipment or other lease payments as approved by Lender, normalized capital expenditures but specifically excluding depreciation and amortization, income taxes, Debt Service, any incentive fees due under the Management Agreement, any item of expense that in accordance with federal tax basis accounting should be capitalized, any item of expense that would otherwise be covered by the provisions hereof but which is paid by American Express under the American Express Lease and deposits into the Reserve Accounts.

“Optional Prepayment Date” shall have the meaning set forth in the Note.

“Other Charges” shall mean all ground rents, maintenance charges, impositions other than Taxes, and any other charges, including, without limitation, vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Property, now or hereafter levied or assessed or imposed against the Property or any part thereof.

“Participations” shall have the meaning set forth in Section 13.1 hereof.

“Patriot Act” shall have the meaning set forth in Section 4.38 hereof.

“Permitted Encumbrances” shall mean collectively, (a) the Lien and security interests created by the Loan Documents, (b) all Liens, encumbrances and other matters disclosed in the Title Insurance Policy, (c) Liens, if any, for Taxes imposed by any Governmental Authority not yet due or delinquent, and (d) such other title and survey exceptions as Lender has approved or may approve in writing in Lender’s sole discretion.

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“Permitted Investments” shall mean to the extent available from Lender or Lender’s servicer for deposits in the Reserve Accounts and the Lockbox Account, any one or more of the following obligations or securities acquired at a purchase price of not greater than par, including those issued by a servicer of the Loan, the trustee under any securitization or any of their respective Affiliates, payable on demand or having a maturity date not later than the Business Day immediately prior to the date on which the funds used to acquire such investment are required to be used under this Agreement and meeting one of the appropriate standards set forth below:

(a)obligations of, or obligations fully guaranteed as to payment of principal and interest by, the United States or any agency or instrumentality thereof provided such obligations are backed by the full faith and credit of the United States of America including, without limitation, obligations of: the U.S. Treasury (all direct or fully guaranteed obligations), the Farmers Home Administration (certificates of beneficial ownership), the General Services Administration (participation certificates), the U.S. Maritime Administration (guaranteed Title XI financing), the Small Business Administration (guaranteed participation certificates and guaranteed pool certificates), the U.S. Department of Housing and Urban Development (local authority bonds) and the Washington Metropolitan Area Transit Authority (guaranteed transit bonds); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) be rated “AAA” or the equivalent by each of the Rating Agencies, (iii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iv) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (v) such investments must not be subject to liquidation prior to their maturity;

(b)Federal Housing Administration debentures;

(c)obligations of the following United States government sponsored agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm Credit System (consolidated systemwide bonds and notes), the Federal Home Loan Banks (consolidated debt obligations), the Federal National Mortgage Association (debt obligations), the Financing Corp. (debt obligations), and the Resolution Funding Corp. (debt obligations); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(d)federal funds, unsecured certificates of deposit, time deposits, bankers’ acceptances and repurchase agreements with maturities of not more than 365 days of any bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least, one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned

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to the Securities); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(e)fully Federal Deposit Insurance Corporation-insured demand and time deposits in, or certificates of deposit of, or bankers’ acceptances with maturities of not more than 365 days and issued by, any bank or trust company, savings and loan association or savings bank, the short term obligations of which at all times are rated in the highest short term rating category by each
Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(f)debt obligations with maturities of not more than 365 days and at all times rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest long-term unsecured rating category; provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must, be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(g)commercial paper (including both non-interest-bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one year after the date of issuance thereof) with maturities of not more than 365 days and that at all times is rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest short-term unsecured debt rating; provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must, not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

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(h)units of taxable money market funds, with maturities of not more than 365 days and which funds are regulated investment companies, seek to maintain a constant net asset value per share and invest solely in obligations backed by the full faith and credit of the United States, which funds have the highest rating available from each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) for money market funds; and

(i)any other security, obligation or investment which has been approved as a Permitted Investment in writing by (i) Lender and (ii) each Rating Agency, as evidenced by a written confirmation that the designation of such security, obligation or investment as a Permitted Investment will not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities by such Rating Agency;

provided, however, that no obligation or security shall be a Permitted Investment if (A) such obligation or security evidences a right to receive only interest payments, (B) the right to receive principal and interest payments on such obligation or security are derived from an underlying investment that provides a yield to maturity in excess of one hundred twenty percent (120%) of the yield to maturity at par of such underlying investment or (C) such obligation or security has a remaining term to maturity in excess of one (1) year.

“Person” shall mean any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.

“Personal Property” shall have the meaning set forth in the granting clause of the Mortgage.

“Policies” shall have the meaning set forth in Section 8.1 hereof.

“Prohibited Transfer” shall have the meaning set forth in Section 7.2 hereof.

“Property” shall mean the parcel of real property, the Improvements thereon and all Personal Property owned by Borrower and encumbered by the Mortgage, together with all rights pertaining to such property and Improvements, as more particularly described in the granting clause of the Mortgage and referred to therein as the “Property”.

“Property Condition Report” shall mean a report prepared by a company satisfactory to Lender regarding the physical condition of the Property, satisfactory in form and substance to Lender in its sole discretion.

“Qualified Manager” shall mean (a) Manager or (b) a reputable and experienced professional management organization (i) which manages, together with its affiliates, at least ten (10) first class office buildings totaling at least 3,500,000 square feet of gross leasable area, exclusive of the Property and (ii) approved by Lender, which approval shall not have been unreasonably withheld and for which Lender shall have received written confirmation from the

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Rating Agencies that the employment of such manager will not result in a downgrade, withdrawal or qualification of the initial, or if higher, then current ratings issued in connection with a Securitization, or if a Securitization has not occurred, any ratings to be assigned in connection with a Securitization.

“Rating Agencies” shall mean each of S&P, Moody’s and Fitch, or any other nationally-recognized statistical rating agency which has been approved by Lender.

“REA” shall mean any construction, operation and reciprocal easement agreement or similar agreement (including any separate agreement or other agreement between Borrower and one or more other parties to an REA with respect to such REA) affecting the Property or portion thereof.

“Release” shall have the meaning set forth in Section 12.5 hereof.

“REMIC Trust” shall mean a “real estate mortgage investment conduit” (within the meaning of Section 860D, or applicable successor provisions, of the Code) that holds the Note.

“Rents” shall have the meaning set forth in the Mortgage.

“Replacements” shall have the meaning set forth in Section 9.2(a) hereof.

“Required Repairs” shall have the meaning set forth in Section 9. l(a) hereof.

“Reserve Accounts” shall mean the Tax and insurance Reserve Account.

“Reserve Funds” shall mean the Tax and Insurance Reserve Funds.

“Restoration” shall mean, following the occurrence of a Casualty or aCondemnation which is of a type necessitating the repair of the Property, the completion of the repair and restoration of the Property as nearly as possible to the condition the Property was in immediately prior to such Casualty or Condemnation, with such alterations as may be reasonably approved by Lender.

“Restoration Consultant” shall have the meaning set forth in Section 8.4(b)(iii) hereof.

“Restoration Retainage” shall have the meaning set forth in Section 8.4(b)(iv) hereof.

“Restricted Party” shall have the meaning set forth in Section 7.1 hereof.

“Sale or Pledge” shall have the meaning set forth in Section 7.1 hereof.

“Scheduled Payment Date” shall have the meaning set forth in the Note.

“Securities” shall have the meaning set forth in Section 13.1 hereof.

“Securities Act” shall mean the Securities Act of 1933, as amended.

“Securities Liabilities” shall have the meaning set forth in Section 13.5 hereof.

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“Securitization” shall have the meaning set forth in Section 13.1 hereof.

“Special Member” shall have the meaning set forth in Section 6. l(c).

“S&P” shall mean Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.

“State” shall mean the state in which the Property or any part thereof is located.

“Tax and Insurance Reserve Account” shall have the meaning set forth in Section 9.6 hereof.

“Tax and Insurance Reserve Funds” shall have the meaning set forth in Section 9.6 hereof.

“Taxes” shall mean all real estate and personal property taxes, assessments, water rates or sewer rents, now or hereafter levied or assessed or imposed against the Property or part thereof.

“Tenant” shall mean any Person leasing, subleasing or otherwise occupying any portion of the Property under a Lease or other occupancy agreement with Borrower, including, without limitation, American Express, as tenant under the American Express Lease.

“Tenant Direction Letter” shall have the meaning set forth in Section 10.2(a)(i) hereof.

“Title Insurance Policy” shall mean that certain ALTA mortgagee title insurance policy issued with respect to the Property and insuring the lien of the Mortgage.

“Transferee” shall have the meaning set forth in Section 7.5hereof.

“Trigger Rating” shall mean the long-term unsecured debt rating of Guarantor (or American Express if there is no Guarantor) below BBB as issued by S&P or below Baa2 as issued by Moody’s.

“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in the State where the applicable Property is located.

Section 1.2.     Principles of Construction.

All references to sections and schedules are to sections and schedules in or to this Agreement unless otherwise specified. All uses of the word “including” shall mean “including, without limitation” unless the context shall indicate otherwise. Unless otherwise specified, the words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified, all meanings attributed to defined terms herein shall be equally applicable to both the singular and plural forms of the terms so defined.

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ARTICLE 2
GENERAL TERMS

Section 2.1.     Loan Commitment; Disbursement to Borrower

(a)Subject to and upon the terms and conditions set forth herein, Lender hereby agrees to make and Borrower hereby agrees to accept the Loan on the Closing Date.

(b)Borrower may request and receive only one borrowing in respect of the Loan and any amount borrowed and repaid in respect of the Loan may not be reborrowed.

(c)The Loan shall be evidenced by the Note and secured by the Mortgage and the other Loan Documents.

(d)Borrower shall use the proceeds of the Loan to (i) pay the purchase price for acquiring the Property, (ii) pay certain costs and expenses incurred in connection with the closing of the Loan, as approved by Lender, (iv) fund any working capital requirements of the Property, and (v) distribute the balance, if any, to its members,

Section 2.2.     Loan Payments

(a)The Loan and interest shall be payable pursuant to the terms of the Note.

Section 2.3.     Prepayment

The Loan may not be prepaid, in whole or in part, except in strict accordance with the express terms and conditions of the Note.

ARTICLE 3
CONDITIONS PRECEDENT

The obligation of Lender to make the Loan hereunder is subject to the fulfillment by Borrower or waiver by Lender of all the conditions precedent to closing set forth in the application or term sheet for the Loan delivered by Borrower to Lender and any commitment rider to the application for the Loan issued by Lender.

ARTICLE 4
REPRESENTATIONS AND WARRANTIES

Borrower and, where specifically indicated, each Borrower Principal represents and warrants to Lender as of the Closing Date that:

Section 4.1.     Organization

Borrower and each Borrower Principal (when not an individual) (a) has been duly organized and is validly existing and in good standing with requisite power and authority to own its properties and to transact the businesses in which it is now engaged, (b) is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in

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connection with its properties, businesses and operations, (c) possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own its properties and to transact the businesses in which it is now engaged, and the sole business of Borrower is the ownership, management and operation of the Property, and (d) in the case of Borrower, has full power, authority and legal right to mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the Property pursuant to the terms of the Loan Documents, and in the case of Borrower and each Borrower Principal, has full power, authority and legal right to keep and observe all of the terms of the Loan Documents to which it is a party. Borrower and each Borrower Principal represent and warrant that the chart attached hereto as Exhibit A sets forth an accurate listing of the direct and indirect owners of the equity interests in Borrower, and each Borrower Principal (when not an individual).

Section 4.2.     Status of Borrower

Borrower’s exact legal name is correctly set forth on the first page of this Agreement, on the Mortgage and on any UCC-1 Financing Statements filed in connection with the Loan. Borrower is an organization of the type specified on the first page of this Agreement. Borrower is organized under the laws of the State of Delaware. Borrower’s principal place of business and chief executive office, and the place where Borrower keeps its books and records, including recorded data of any kind or nature, regardless of the medium of recording, including software, writings, plans, specifications and schematics, has been for the preceding four months (or, if less, the entire period of the existence of Borrower) the address of Borrower set forth on the first page of this Agreement. Borrower’s organizational identification number, if any, assigned by the state of incorporation or organization is correctly set forth on the first page of the Note.

Section 4.3.     Validity of Documents

Borrower and Borrower Principal have taken all necessary action to authorize the execution, delivery and performance of this Agreement and the other Loan Documents to which they are parties. This Agreement and such other Loan Documents have been duly executed and delivered by or on behalf of Borrower and Borrower Principal and constitute the legal, valid and binding obligations of Borrower and Borrower Principal enforceable against Borrower and Borrower Principal in accordance with their respective terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

Section 4.4.     No Conflicts

The execution, delivery and performance of this Agreement and the other Loan Documents by Borrower and Borrower Principal will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance (other than pursuant to the Loan Documents) upon any of the property or assets of Borrower or Borrower Principal pursuant to the terms of any agreement or instrument to which Borrower or Borrower Principal is a party or by which any of Borrower’s or Borrower Principal’s property or assets is subject, nor will such action result in any violation of the provisions of any statute or any order, rule or regulation of any

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Governmental Authority having jurisdiction over Borrower or Borrower Principal or any of Borrower’s or Borrower Principal’s properties or assets, and any consent, approval, authorization, order, registration or qualification of or with any Governmental Authority required for the execution, delivery and performance by Borrower or Borrower Principal of this Agreement or any of the other Loan Documents has been obtained and is in full force and effect.

Section 4.5.     Litigation

There are no actions, suits or proceedings at law or in equity by or before any Governmental Authority or other agency now pending or, to Borrower’s or Borrower Principal’s knowledge, threatened against or affecting Borrower, Borrower Principal, Manager or the Property, which actions, suits or proceedings, if determined against Borrower, Borrower Principal, Manager or the Property, would materially adversely affect the condition (financial or otherwise) or business of Borrower or Borrower Principal or the condition or ownership of the Property.

Section 4.6.     Agreements

Borrower is not a party to any agreement or instrument or subject to any restriction which would materially and adversely affect Borrower or the Property, or Borrower’s business, properties or assets, operations or condition, financial or otherwise. Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party or by which Borrower or the Property is bound. Borrower has no material financial obligation under any agreement or instrument to which Borrower is a party or by which Borrower or the Property is otherwise bound, other than (a) obligations incurred in the ordinary course of the operation of the Property and (b) obligations under the Loan Documents.

Section 4.7.     Solvency

Borrower and each Borrower Principal have (a) not entered into the transaction or executed the Note, this Agreement or any other Loan Documents with the actual intent to hinder, delay or defraud any creditor and (b) received reasonably equivalent value in exchange for their obligations under such Loan Documents. Giving effect to the Loan, the fair saleable value of the assets of Borrower and each Borrower Principal exceeds and will, immediately following the making of the Loan, exceed the total liabilities of Borrower and Borrower Principal, including, without limitation, subordinated, unliquidated, disputed and contingent liabilities. No petition in bankruptcy has been filed against Borrower, Borrower Principal, or Affiliated Manager in the last ten (10) years, and neither Borrower nor Borrower Principal, or Affiliated Manager in the last ten (10) years has made an assignment for the benefit of creditors or taken advantage of any Creditors Rights Laws. Neither Borrower nor Borrower Principal, or Affiliated Manager is contemplating either the filing of a petition by it under any Creditors Rights Laws or the liquidation of all or a major portion of Borrower’s assets or property, and Borrower has no knowledge of any Person contemplating the filing of any such petition against Borrower or Borrower Principal, or Affiliated Manager.

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Section 4.8.     Full and Accurate Disclosure

No statement or fact made by or on behalf of Borrower or Borrower Principal in this Agreement or in any of the other Loan Documents or in any other document or certificate delivered by or on behalf of Borrower or Borrower Principal contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained herein or therein not misleading.  There is no material fact presently known to Borrower or Borrower Principal which has not been disclosed to Lender which adversely affects, nor as far as Borrower or Borrower Principal can reasonably foresee, might adversely affect, the Property or the business, operations or condition (financial or otherwise) of Borrower or Borrower Principal.

Section 4.9.     No Plan Assets

Borrower is not an "employee benefit plan," as defined in Section 3(3) of ERISA, subject to Title 1 of ERISA, and none of the assets of Borrower constitutes or will constitute "plan assets" of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101.  In addition, (a) Borrower is not a "governmental plan" within the meaning of Section 3(32) of ERISA and (b) transactions by or with Borrower are not subject to state statutes regulating investment of, and fiduciary obligations with respect to, governmental plans similar to the provisions of Section 406 of ERISA or Section 4975 of the Internal Revenue Code currently in effect, which prohibit or otherwise restrict the transactions contemplated by this Agreement.

Section 4.10.     Not a Foreign Person

Neither borrower nor Borrower Principal is a "foreign Person" within the meaning of §1445(1)(3) of the Internal Revenue Code.

Section 4.11.     Enforceability

The Loan Documents are not subject to any right of rescission, set-off, counterclaim or defense by Borrower, including the defense of usury, nor would the operation of any of the terms of the Loan Documents, or the exercise of any right thereunder, render the Loan Documents unenforceable, and neither Borrower nor Borrower Principal has asserted any right of rescission, set-off, counterclaim or defense with respect thereto.  No Default or Event of Default exists under or with respect to any Loan Document.

Section 4.12.     Business Purposes

The Loan is solely for the business purpose of Borrower, and is not for personal, family, household, or agricultural purposes.

Section 4.13.     Compliance

Except as expressly disclosed by Borrower to Lender in writing in connection with the closing of the Loan, to Borrower's knowledge, Borrower and the Property, and the use and operation thereof, comply in all material respects with all Legal Requirements, including, without limitation, building and zoning ordinances and codes and the Americans with Disabilities Act.  To Borrower's knowledge, Borrower is not in default or violation of any order,

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writ, injunction, decree or demand of any Governmental Authority and Borrower has received no written notice of any such default or violation. There has not been committed by Borrower or, to Borrower’s knowledge, any other Person in occupancy of or involved with the operation or use of the Property any act or omission affording any Governmental Authority the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents.

Section 4.14.     Financial Information

All financial data, including, without limitation, the balance sheets, statements of cash flow, statements of income and operating expense and rent rolls, that have been delivered to Lender in respect of Borrower, Borrower Principal and/or the Property (a) are true, complete and correct in all material respects, (b) accurately represent the financial condition of Borrower, Borrower Principal or the Property, as applicable, as of the date of such reports, and (c) to the extent prepared or audited by an independent certified public accounting firm, have been prepared in accordance with tax basis accounting throughout the periods covered, except as disclosed therein. Borrower does not have any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that are known to Borrower and reasonably likely to have a material adverse effect on the Property or the current and/or intended operation thereof, except as referred to or reflected in said financial statements. Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of Borrower or Borrower Principal from that set forth in said financial statements.

Section 4.15.     Condemnation

No Condemnation or other proceeding has been commenced or, to Borrower’s best knowledge, is threatened or contemplated with respect to all or any portion of the Property or for the relocation of roadways providing access to the Property.

Section 4.16.     Utilities and Public Access; Parking

To the best of Borrower’s knowledge, the Property has adequate rights of access to public ways and is served by water, sewer, sanitary sewer and storm drain facilities adequate to service the Property for full utilization of the Property for its intended uses. All public utilities necessary to the full use and enjoyment of the Property as currently used and enjoyed are located either in the public right-of-way abutting the Property (which are connected so as to serve the Property without passing over other property) or in recorded easements serving the Property and such casements are set forth in and insured by the Title Insurance Policy. All roads necessary for the use of the Property for its current purposes have been completed and dedicated to public use and accepted by all Governmental Authorities. The Property has, or is served by, parking to the extent required to comply with all Legal Requirements.

Section 4.17.     Separate Lots

The Property is assessed for real estate tax purposes as one or more wholly independent tax lot or lots, separate from any adjoining land or improvements not constituting a part of such

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lot or lots, and no other land or improvements is assessed and taxed together with the Property or any portion thereof.

Section 4.18.     Assessments

To Borrower’s knowledge, there are no pending or proposed special or other assessments for public improvements or otherwise affecting the Property, nor are there any contemplated improvements to the Property that may result in such special or other assessments.

Section 4.19.     Insurance

Borrower has obtained and has delivered to Lender either (a) certified copies of all Policies or, to the extent such Policies are not available as of the Closing Date, certificates of insurance with respect to all such Policies reflecting the insurance coverages, amounts and other requirements set forth in this Agreement or (b) the certificate of American Express that American Express is a self-insurer with respect to the occurrences referred to in Section 8.1 and that the rating of American Express by the Rating Agencies has not fallen below the Trigger Rating.

Section 4.20.     Use of Property

The Properly is used exclusively for general office purposes and other appurtenant and related uses.

Section 4.21.     Certificate of Occupancy; Licenses

All certificates of occupancy and to Borrower’s knowledge all certifications, permits, licenses and approvals, including, without limitation, certificates of completion and any applicable liquor license required for the legal use, occupancy and operation of the Property for the purpose intended herein, have been obtained and are valid and in full force and effect. Borrower shall keep and maintain (or require American Express to maintain) all licenses necessary for the operation of the Property for the purpose intended herein. The use being made of the Property is in conformity with the final certificate of occupancy (or compliance, if applicable) and any other permits or licenses issued for the Property.

Section 4.22.     Flood Zone

None of the Improvements on the Property are located in an area identified by the Federal Emergency Management Agency as an area having special flood hazards, or, if any portion of the Improvements is located within such area, Borrower will obtain or cause American Express to obtain the insurance prescribed in Section 8.l(a)(i) at any time during the term of the Loan when American Express ceases to be a self-insurer or when the rating of American Express by the Rating Agencies falls below the Trigger Rating.

Section 4.23.     Physical Condition

Except as set forth in the Property Condition Report, to Borrower’s knowledge, the Property, including, without limitation, all buildings, improvements, parking facilities,

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sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, are in good condition, order and repair in all material respects. Except as set forth in the Property Condition Report, to Borrower’s knowledge, there exist no structural or other material defects or damages in the Property, as a result of a Casualty or otherwise, and whether latent or otherwise. Borrower has not received notice from any insurance company or bonding company of any defects or inadequacies in the Property, or any part thereof, which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond.

Section 4.24.     Boundaries; Survey

(a)None of the Improvements which were included in determining the appraised value of the Property lie outside the boundaries and building restriction lines of the Property to any material extent, and (b) no improvements on adjoining properties encroach upon the Property and no casements or other encumbrances upon the Property encroach upon any of the Improvements so as to materially affect the value or marketability of the Property.

Section 4.25.     Leases

The entire Property has been leased to American Express pursuant to the American Express Lease.  (a) The American Express Lease is in full force and effect; (b) the premises demised under the American Express Lease have been completed and American Express has accepted possession of and is in occupancy of the demised premises; (c) American Express has commenced the payment of rent under the American Express Lease, there are no offsets, claims or defenses to the enforcement thereof and Borrower has no monetary obligations to American Express under the American Express Lease; (d) all Rents due and payable under the American Express Lease have been paid and no portion thereof has been paid for any period more than thirty (30) days in advance; (c) the rent payable under the American Express Lease is the amount of fixed rent set forth in the American Express Lease, and there is no claim or basis for a claim by American Express thereunder for an adjustment to the Rent; (f) Borrower is the sole owner of the entire landlord’s interest in the American Express Lease; (g) the American Express Lease is the valid, binding and enforceable obligation of Borrower and American Express thereunder and there are no agreements with American Express with respect to the American Express Lease other than as expressly set forth therein; (h) no Person has any possessory interest in, or right to occupy, the Property or any portion thereof except under the American Express Lease; (i) except for the right of first refusal set forth in Article 4 and the right to offer to purchase the Property under Article 12, the American Express Lease does not contain any option or offer to purchase or right of first refusal to purchase the Property or any part, thereof; and (j) neither the American Express Lease nor the Rents have been assigned or pledged except to Lender, and no other Person has any interest therein.

Section 4.26.     Filing and Recording Taxes

All mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid by any Person under applicable Legal Requirements currently in effect in connection with

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the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents, including, without limitation, the Mortgage, have been paid or will be paid, and, under current Legal Requirements, the Mortgage is enforceable in accordance with its terms by Lender (or any subsequent holder thereof).

Section 4.27.     Management Agreement

The Management Agreement is in full force and effect and there is no default thereunder by any party thereto and, to Borrower’s knowledge, no event has occurred that, with the passage of time and/or the giving of notice, would constitute a default thereunder. No management fees under the Management Agreement are accrued and unpaid.

Section 4.28.     Illegal Activity

No portion of the Property has been or will be purchased with proceeds of any illegal activity, and no part of the proceeds of the Loan will be used in connection with any illegal activity.

Section 4.29.     Construction Expenses

All costs and expenses of any and all labor, materials, supplies and equipment used in the construction, maintenance or repair of the Improvements have been paid in full. To Borrower’s knowledge after due inquiry, there are no claims for payment for work, labor or materials affecting the Property which are or may become a lien prior to, or of equal priority with, the Liens created by the Loan Documents.

Section 4.30.     Personal Property

Borrower has paid in full for, and is the owner of, all Personal Property (other than tenants’ property) used in connection with the operation of the Property, free and clear of any and all security interests, liens or encumbrances, except for Permitted Encumbrances and the Lien and security interest created by the Loan Documents.

Section 4.31.     Taxes

Borrower and Borrower Principal have filed all federal, state, county, municipal, and city income, personal property and other tax returns required to have been filed by them and have paid all taxes and related liabilities which have become due pursuant to such returns or pursuant to any assessments received by them. Neither Borrower nor Borrower Principal knows of any basis for any additional assessment in respect of any such taxes and related liabilities for prior years.

Section 4.32.     Permitted Encumbrances

None of the Permitted Encumbrances, individually or in the aggregate, materially interferes with the benefits of the security intended to be provided by the Loan Documents, materially and adversely affects the value of the Property, impairs the use or the operation of the Property or impairs Borrower’s ability to pay its obligations in a timely manner.

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Section 4.33.     Federal Reserve Regulations

Borrower will use the proceeds of the Loan for the purposes set forth in Section 2.1(d) hereof and not for any illegal activity. No part of the proceeds of the Loan will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by Legal Requirements or prohibited by the terms and conditions of this Agreement or the other Loan Documents.

Section 4.34.     Investment Company Act

Borrower is not (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; (b) a “holding company” or a “subsidiary company” of a ‘‘holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (c) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

Section 4.35.     Reciprocal Easement Agreements

(a)Neither Borrower nor any other party is currently in default (nor has any notice been given or received with respect to an alleged or current default) under any of the terms and conditions of the REA, and the REA remains unmodified and in full force and effect;

(b)All easements granted pursuant to the REA which were to have survived the site preparation and completion of construction (to the extent that the same has been completed), remain in full force and effect and have not been released, terminated, extinguished or discharged by agreement or otherwise;

(c)To the best of Borrower’s knowledge, all sums due and owing by Borrower to the other parties to the REA (or by the other parties to the REA to the Borrower) pursuant to the terms of the REA, including without limitation, all sums, charges, fees, assessments, costs, and expenses in connection with any taxes, site preparation and construction, non-shareholder contributions, and common area and other property management activities have been paid, are current, and no lien has attached on the Property (or threat thereof been made) for failure to pay any of the foregoing;

(d)The terms, conditions, covenants, uses and restrictions contained in the REA do not conflict in any manner with any terms, conditions, covenants, uses and restrictions contained in any Lease or in any agreement between Borrower and occupant of any peripheral parcel, including without limitation, conditions and restrictions with respect to kiosk placement, tenant restrictions (type, location or exclusivity), sale of certain goods or services, and/or other use restrictions; and

(e)The terms, conditions, covenants, uses and restrictions contained in the American Express Lease do not conflict in any manner with any terms, conditions, covenants, uses and restrictions contained in the REA, any other lease or in any agreement, between Borrower and

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occupant of any peripheral parcel, including without limitation, conditions and restrictions with respect to kiosk placement, tenant restrictions (type, location or exclusivity), sale of certain goods or services, and/or other use restrictions.

Section 4.36.     No Change in Facts or Circumstances; Disclosure

All information submitted by Borrower or its agents to Lender and in all financial statements, reports, certificates and other documents submitted in connection with the Loan or in satisfaction of the terms thereof and all statements of fact made by Borrower in this Agreement or in any other Loan Document, are accurate, complete and correct in all material respects. There has been no material adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading in any material respect or that otherwise materially and adversely affects or might materially and adversely affect the Property or the business operations or the financial condition of Borrower.  Borrower has disclosed to Lender all material facts and has not failed to disclose any material fact that could cause any representation or warranty made herein to be materially misleading.

Section 4.37.     Intellectual Property

All trademarks, trade names and service marks necessary to the business of Borrower as presently conducted or as Borrower contemplates conducting its business are in good standing and, to the extent of Borrower’s actual knowledge, uncontested. Borrower has not infringed, is not infringing, and has not received notice of infringement with respect to asserted trademarks, trade names and service marks of others. To Borrower’s knowledge, there is no infringement by others of trademarks, trade names and service marks of Borrower.

Section 4.38.     Compliance with Anti-Terrorism Laws

None of Borrower, Borrower Principal or any Person who Controls Borrower or Borrower Principal currently is identified by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) or otherwise qualifies as an Embargoed Person, and Borrower has implemented procedures to ensure that no Person who now or hereafter owns a material direct or indirect equity interest in Borrower is an Embargoed Person or is Controlled by an Embargoed Person. To Borrower’s knowledge neither Borrower nor Borrower Principal is in violation of any applicable law relating to anti-money laundering or anti-terrorism, including, without limitation, those related to transacting business with Embargoed Persons or the requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, U.S. Public Law 107-56, and the related regulations issued thereunder, including temporary regulations (collectively, as the same may be amended from time to time, the “Patriot Act”). To the best of Borrower’s knowledge, no tenant at the Property is currently identified by OFAC or otherwise qualifies as an Embargoed Person, or is owned or Controlled by an Embargoed Person.

Section 4.39.     Patriot Act

Neither Borrower nor Borrower Principal shall (a) be or become subject at any time to any law, regulation, or list of any government agency (including, without limitation, the list maintained by OFAC and accessible through the OFAC website) that prohibits or limits any

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lender from making any advance or extension of credit to Borrower or from otherwise conducting business with Borrower and Borrower Principal, or (b) fail to provide documentary and other evidence of Borrower’s identity as may be requested by any lender at any time to enable any lender to verify Borrower’s identity or to comply with any applicable law or regulation, including, without limitation, the Patriot Act. In addition, Borrower hereby agrees to provide to Lender any additional information that Lender deems necessary from time to time in order to ensure compliance with all applicable laws concerning money laundering and similar activities.

Section 4.40.     Survival

Borrower agrees that, unless expressly provided otherwise, all of the representations and warranties of Borrower set forth in this Article 4 and elsewhere in this Agreement and in the other Loan Documents shall survive for so long as any portion of the Debt remains owing to Lender. All representations, warranties, covenants and agreements made in this Agreement or in the other Loan Documents by Borrower shall be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.

ARTICLE 5
BORROWER COVENANTS

From the date hereof and until repayment of the Debt in full and performance in full of all obligations of Borrower under the Loan Documents or the earlier release of the Lien of the Mortgage (and all related obligations) in accordance with the terms of this Agreement and the other Loan Documents, Borrower hereby covenants and agrees with Lender that:

Section 5.1.     Existence; Compliance with Legal Requirements

(a)Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, rights, licenses, permits and franchises and comply with all Legal Requirements applicable to it and the Property. Borrower hereby covenants and agrees not to commit, permit or suffer to exist any act or omission affording any Governmental Authority the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents. Borrower shall at all times maintain, preserve and protect all franchises and trade names used in connection with the operation of the Property. So long as American Express is in compliance with the terms of the American Express Lease with respect to the matters described in this Section 5.1, Borrower shall be deemed in compliance with this Section 5.1.

(b)Borrower, at its own expense, may contest or permit American Express to contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the Legal Requirements affecting the Property, provided that (i) no Default or Event of Default has occurred and is continuing; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower or the Property is subject and shall not constitute a default thereunder; (iii) neither the Property, any part thereof or interest therein, any of the tenants or occupants thereof, nor Borrower shall be affected in any material adverse way as a result of such proceeding; (iv) non-compliance with the

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Legal Requirements shall not impose civil or criminal liability on Borrower or Lender; (v) unless the contest is initiated and conducted by American Express pursuant to the American Express Lease Borrower shall have furnished the security as may be required in the proceeding or by Lender to ensure compliance by Borrower with the Legal Requirements; and (vi) if the contest is initiated and conducted by Borrower, Borrower shall have furnished to Lender all other items reasonably requested by Lender. Borrower shall give written notice to Lender of any contest initiated and conducted by Borrower promptly after initiation thereof and shall inform Lender of any contest initiated and conducted by American Express of which Borrower is given notice by American Express.

Section 5.2.     Maintenance and Use of Property

Borrower shall cause the Property to be maintained in a good and safe condition and repair. The Improvements and the Personal Property shall not be removed, demolished or except as may be expressly permitted under the American Express Lease without the consent of the landlord thereunder, materially altered (except for normal replacement of the Personal Property) without the prior written consent of Lender.  So long as American Express is in compliance with the terms of the American Express Lease with respect to the matters described in this Section 5.2, Borrower shall be deemed in compliance with this Section 5.2. If under applicable zoning provisions the use of all or any portion of the Property is or shall become a nonconforming use, Borrower will not cause or permit the nonconforming use to be discontinued or the nonconforming Improvement to be abandoned without the express written consent of Lender.

Section 5.3.     Waste

Borrower shall not commit or suffer any waste of the Property or make any change in the use of the Property which will in any way materially increase the risk of fire or other hazard arising out of the operation of the Property, or take any action that might invalidate or give cause for cancellation of any Policy, or do or permit to be done thereon anything that may in any way impair the value of the Property or the security for the Loan.  Borrower will not, without the prior written consent of Lender, permit any drilling or exploration for or extraction, removal, or production of any minerals from the surface or the subsurface of the Property, regardless of the depth thereof or the method of mining or extraction thereof.

Section 5.4.     Taxes and Other Charges

(a)           Borrower shall pay or cause American Express to pay all Taxes and Other Charges now or hereafter levied or assessed or imposed against the Property or any part thereof as the same become due and payable. Borrower shall furnish or cause to be furnished to Lender such receipts for the payment of the Taxes and the Other Charges as are delivered to Borrower by American Express and, upon request by Lender, a certificate from Borrower and Borrower Principal that as of the date of such certificate there are no liens filed against the Property arising from the non-payment of Taxes or Other Charges. Borrower shall not suffer nor permit American Express to suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property, So long as American Express is in

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compliance with the terms of the American Express Lease with respect to the matters described in this Section 5.4, Borrower shall be deemed in compliance with this Section 5.4.

(b)Borrower, at its own expense, may contest or permit American Express to contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) no Default or Event of Default has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable Legal Requirements; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish or cause American Express to furnish (but only to the extent required to be furnished by American Express under the American Express Lease) such security as may be required in the proceeding, or deliver to Lender such reserve deposits as may be requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon (unless Borrower or American Express has paid all of the Taxes or Other Charges under protest). Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the judgment of Lender, the entitlement of such claimant is established or the Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, canceled or lost or there shall be any danger of the Lien of the Mortgage being primed by any related Lien.

Section 5.5.     Litigation

Borrower shall give prompt written notice to Lender of any litigation or governmental proceedings pending or threatened in writing against Borrower which might materially adversely affect Borrower’s condition (financial or otherwise) or business or the Property.

Section 5.6.     Access to Property

Borrower shall permit agents, representatives and employees of Lender to inspect the Property or any part thereof at reasonable hours upon reasonable advance notice, subject to the rights of American Express under the American Express Lease.

Section 5.7.     Notice of Default

Borrower shall promptly advise Lender of any material adverse change in the condition (financial or otherwise) of Borrower, any Borrower Principal or the Property or of the occurrence of any Default or Event of Default of which Borrower has knowledge and of any American Express Lease Default of which Borrower has knowledge.

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Section 5.8.     Cooperate in Legal Proceedings

Borrower shall at Borrower’s expense cooperate fully with Lender with respect to any proceedings before any court, board or other Governmental Authority which may in any way affect the rights of Lender hereunder or any rights obtained by Lender under any of the other Loan Documents and, in connection therewith, permit Lender, at its election, to participate in any such proceedings.

Section 5.9.     Performance by Borrower

Borrower shall in a timely manner observe, perform and fulfill each and every covenant, term and provision to be observed and performed by Borrower under this Agreement and the other Loan Documents and any other agreement or instrument affecting or pertaining to the Property and any amendments, modifications or changes thereto.

Section 5.10.     Awards; Insurance Proceeds

Borrower shall cooperate with Lender in obtaining for Lender the benefits of any Awards or Insurance Proceeds lawfully or equitably payable to Borrower in connection with the Property, and Lender shall be reimbursed for any expenses incurred in connection therewith (including reasonable, actual attorneys’ fees and disbursements, and the payment by Borrower of the expense of an appraisal on behalf of Lender in case of a Casualty or Condemnation affecting the Property or any part thereof) out of such Awards or Insurance Proceeds. The actual, payment of any Awards shall be governed by Section 8.4 hereof.

Section 5.11.     Financial Reporting

(a)Borrower and Borrower Principal shall keep adequate books and records of account in accordance with federal tax basis accounting, or in accordance with other methods acceptable to Lender in its sole discretion, consistently applied and shall furnish to Lender:

(i)prior to a Securitization, at the request of Lender, monthly, and following a Securitization, quarterly and annual certificates signed and dated by Borrower, certifying that the American Express Lease is in full force and effect, whether any defaults (or any matter that, with the passage of time or the giving of notice, could become a default) exist thereunder and any other information as is reasonably required by Lender, within twenty (20) days after the end of each calendar month, thirty (30) days after the end of each fiscal quarter or one hundred twenty (120) days after the close of each fiscal year of Borrower, as applicable;

(ii)prior to a Securitization, at the request of Lender, monthly, and following a Securitization, quarterly and annual operating statements of the Property, prepared and certified by Borrower in the form required by Lender, detailing the revenues received, the expenses incurred and the net operating income before and after debt service (principal and interest) and major capital improvements (including, without limitation, any capital improvements planned by American Express of which Borrower has notice) for the period of calculation and containing appropriate year-to-date in formation, within twenty (20) days after the end of each calendar month, thirty (30) days after the end of each

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fiscal quarter or one hundred (120) days after the close of each fiscal year of Borrower, as applicable;

(iii)annual balance sheets, profit and loss statements., statements of cash flows, and statements of change in financial position of Borrower and Borrower Principal in the form required by Lender prepared and certified by Borrower and Borrower Principal within one hundred twenty (120) days after the close of each fiscal year of Borrower and Borrower Principal, as the case may be (provided that with respect to Borrower, such statements may be delivered by the holder(s) of beneficial interests in Borrower in accordance with Section 6.1(a)(viii); and

(iv)all financial statements, operating statements, budgets, capital repair estimates or projections and certifications of any kind with respect to the foregoing delivered to Borrower by American Express under the American Express Lease.

(b)To the extent not inconsistent with the provisions of Section 5.1 l(a) hereof (e.g., GAAP accounting and audits shall not be required), Borrower and Borrower Principal shall furnish Lender with such other additional financial or management information (including state and federal tax returns) as may, from time to time, be reasonably required by Lender in form and substance satisfactory to Lender (including, without limitation, any financial reports required to be delivered by any Tenant or any guarantor of any Lease pursuant to the terms of such Lease), and shall furnish to Lender and its agents convenient facilities for the examination and audit of any such books and records.

(c)Without limiting any other rights available to Lender under this Loan Agreement or any of the other Loan Documents, in the event Borrower shall fail to timely furnish Lender any financial document or statement in accordance with this Section 5.11, Borrower shall promptly pay to Lender a non-refundable charge in the amount of $500 for each such failure. The payment of such amount shall not be construed to relieve Borrower of any Event of Default hereunder arising from such failure.

(d)All items requiring the certification of Borrower shall, except where Borrower is an individual, require a certificate executed by the general partner, managing member or chief executive officer of Borrower, as applicable (and the same rules shall apply to any sole shareholder, general partner or managing member which is not an individual).

Section 5.12.     Estoppel Statement

(a)After request by Lender, Borrower shall within ten (10) Business Days furnish Lender with a statement, duly acknowledged and certified, setting forth (i) the amount of the original principal amount of the Note, (ii) the rate of interest on the Note, (iii) the unpaid principal amount of the Note, (iv) the date installments of interest and/or principal were last paid, (v) any offsets or defenses to the payment of the Debt, if any, and (vi) that the Note, this Agreement, the Mortgage and the other Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such modification.

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(b)Borrower shall use its best efforts to deliver to Lender, promptly upon request, a duly executed estoppel certificate from American Express on the form attached to the American Express Lease as an exhibit.

Section 5.13.     Leasing Matters.

(a)Borrower (i) shall observe and perform all the obligations imposed on the landlord under the American Express Lease and shall not do or permit to be done anything to impair the value of the American Express Lease as security for the Debt; (ii) shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the American Express Lease on the part of the tenant thereunder to be observed or performed; (iv) shall not collect any of the Rents more than one (1) month in advance; (v) shall not execute any other assignment of the landlord’s interest in the American Express Lease or the Rents; and (vi) shall not consent to any assignment of or subletting under the American Express Lease not in accordance with its terms without the prior written consent of Lender.

(b)Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a surrender of space under or shorten the term of the American Express Lease.

Section 5.14.     Property Management

(a)Borrower shall (i) promptly perform and observe all of the covenants required to be performed and observed by it under the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (ii) promptly notify Lender of any default under the Management Agreement of which it is aware; (iii) promptly deliver to Lender a copy of any notice of default or other material notice received by Borrower under the Management Agreement; (iv) promptly give notice to Lender of any notice or information that Borrower receives which indicates that Manager is terminating the Management Agreement or that Manager is otherwise discontinuing its management of the Property; and (v) promptly enforce the performance and observance of all of the covenants required to be performed and observed by Manager under the Management Agreement.

(b)If at any time, (i) Manager shall become insolvent or a debtor in a bankruptcy proceeding: (ii) an Event of Default has occurred and is continuing; or (iii) a default has occurred and is continuing after the expiration of any applicable cure periods under the Management Agreement, Borrower shall, at the request of Lender, terminate the Management Agreement upon thirty (30) days prior notice to Manager and replace Manager with a Qualified Manager, it being understood and agreed that the management fee for such replacement manager shall not exceed then prevailing market rates.

(c)In addition to the foregoing, in the event that Lender, in Lender’s reasonable discretion, at any time prior to the termination of the Assignment of Management Agreement, determines that the Property is not being managed in accordance with generally accepted management practices for projects similarly situated, Lender may deliver written notice thereof to Borrower and Manager, which notice shall specify with particularity the grounds for Lender’s

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determination. If Lender reasonably determines that the conditions specified in Lender’s notice are not remedied to Lender’s reasonable satisfaction by Borrower or Manager within thirty (30) days from the date of such notice or that Borrower or Manager has failed to diligently undertake correcting such conditions within such thirty (30) day period, Lender may direct Borrower to terminate the Management Agreement and to replace Manager with a Qualified Manager on terms and conditions satisfactory to Lender, it being understood and agreed that the management fee for such replacement manager shall not exceed then prevailing market rates.

(d)Borrower shall not, without the prior written consent of Lender (which consent shall not be unreasonably withheld, conditioned or delayed): (i) surrender, terminate or cancel the Management Agreement or otherwise replace Manager or enter into any other management agreement with respect to the Property; (ii) reduce or consent to the reduction of the term of the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Management Agreement; or (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the Management Agreement in any material respect. In the event that Borrower replaces Manager at any time during the term of Loan pursuant to this subsection, such Manager shall be a Qualified Manager.

(e)Notwithstanding the foregoing, Borrower shall be permitted to transfer the management of the Property to an Affiliate of Manager provided that the terms of the management contract between Borrower and such entity provides for fees no greater than, is on terms that are substantially similar to and is no less favorable to Borrower than the Management Agreement in effect as of the date hereof.

Section 5.15.     Liens

Borrower shall not, without the prior written consent of Lender, create, incur, assume or suffer to exist any Lien on any portion of the Property or permit any such action to be taken, except Permitted Encumbrances.

Section 5.16.     Debt Cancellation

Borrower shall not cancel or otherwise forgive or release any claim or debt owed to Borrower by any Person, except for adequate consideration and in the ordinary course of Borrower’s business.

Section 5.17.     Zoning

Borrower shall not initiate or consent to any zoning reclassification of any portion of the Property or seek any variance under any existing zoning ordinance or use or permit the use of any portion of the Property in any manner that could result in such use becoming a non-conforming use under any zoning ordinance or any other applicable land use law, rule or regulation, without the prior written consent of Lender.

Section 5.18.     ERISA

(a)Borrower shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under the

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Note, this Agreement or the other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA.

(b)Borrower further covenants and agrees to deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan, as requested by Lender in its sole discretion, that (i) Borrower is not and does not maintain an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmental plan” within the meaning of Section 3(3) of ERISA; (ii) Borrower is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (iii) one or more of the following circumstances is true:

(A)Equity interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R. §2510.3-101(b)(2);

(B)Less than twenty-five percent (25%) of each outstanding class of equity interests in Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R. §2510.3-101(f)(2); or

(C)Borrower qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R- §2510.3-101 (c) or (e).

Section 5.19.     No Joint Assessment

Borrower shall not suffer, permit or initiate the joint assessment of the Property with (a) any other real property constituting a tax lot separate from the Property, or (b) any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the Lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to the Property.

Section 5.20.     Reciprocal Easement Agreements

Borrower shall not enter into, terminate or modify any REA without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Borrower shall enforce, comply with, and cause each of the parties to the REA to comply with all of the material economic terms and conditions contained in the REA, provided that Borrower may agree, without Lender’s consent, to modifications to any REA or to grant easements with respect to the Property which could not reasonably be expected to have a material adverse effect on the use, value or operation of the Property, on the ability of American Express to perform its obligations under the American Express Lease or on Borrower’s ability to perform its obligations under the Loan Documents.

ARTICLE 6
ENTITY COVENANTS

Section 6.1.     Single Purpose Entity/Separateness

Until the Debt has been paid in full, Borrower represents, warrants and covenants as follows:

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(a)Borrower has not and will not:

(i)engage in any business or activity other than the ownership, operation and maintenance of the Property, and activities incidental thereto;

(ii)acquire or own any assets other than (A) the Property, and (B) such incidental Personal Property as may be necessary for the operation of the Property;

(iii)except as expressly provided in Article 7 hereof, merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure;

(iv)fail to observe all organizational formalities, or fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the applicable Legal Requirements of the jurisdiction of its organization or formation, or amend, modify, terminate or fail to comply with the provisions of its organizational documents;

(v)own any subsidiary, or make any investment in, any Person;

(vi)commingle its assets with the assets of any other Person, or permit any Affiliate or constituent party independent access to its bank accounts;

(vii)incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) the Debt, (B) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past the date incurred and paid on or prior to such date, and/or (C) financing leases and purchase money indebtedness incurred in the ordinary course of business relating to Personal Property on commercially reasonable terms and conditions; provided however, the aggregate amount of the indebtedness described in (B) and (C) shall not exceed at any time three percent (3%) of the outstanding principal amount of the Note;

(viii)permit its records, books of account, bank accounts, financial statements and accounting records (including with respect to financial position, assets, liabilities, net worth and operating results) to be shown on the financial statements of any holder of a beneficial interest in Borrower unless such financial statements shall contain a footnote indicating that Borrower is a separate legal entity and the assets of Borrower are not available as collateral to creditors of such holder;

(ix)enter into any contract or agreement with any general partner, member, shareholder, principal, guarantor of the obligations of Borrower, or any Affiliate of the foregoing, except upon terms and conditions that are intrinsically fair, commercially reasonable and substantially similar to those that would be available on an arm’s-length basis with unaffiliated third parties;

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(x)maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;

(xi)assume or guarantee the debts of any other Person, hold itself out to be responsible for the debts of any other Person, or otherwise pledge its assets for the benefit of any other Person or hold out its credit as being available to satisfy the obligations of any other Person;

(xii)make any loans or advances to any Person;

(xiii)fail to file its own tax returns or files a consolidated federal income tax return with any Person (unless prohibited or required, as the case may be, by applicable Legal Requirements);

(xiv)fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name or fail to correct any known misunderstanding regarding its separate identity;

(xv)fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that Borrower’s failure to do so solely because of a shortfall in cash flow derived from the operation of the Property shall not, by itself, constitute a breach of this covenant);

(xvi)Without the unanimous written consent of all of its members, as applicable, and the written consent of 100% of the managers of Borrower (a) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any Creditors Rights Laws, (b) seek or consent to the appointment of a receiver, liquidator or any similar official, (c) take any action that might cause such entity to become insolvent, or (d) make an assignment for the benefit of creditors;

(xvii)fail to allocate shared expenses (including, without limitation, shared office space and services performed by an employee of an Affiliate) among the Persons sharing such expenses and to use separate stationery, invoices and checks;

(xviii)fail to remain solvent or pay its own liabilities (including, without limitation, salaries of its own employees) only from its own funds (provided that Borrower’s failure to do so solely because of a shortfall in cash flow derived from the operation of the Property shall not, by itself, constitute a breach of this covenant);

(xix)acquire obligations or securities of its partners, members, shareholders or other affiliates, as applicable;

(xx)violate or cause to be violated the assumptions made with respect to Borrower, Manager (if applicable) and their respective direct and/or indirect owners in any opinion letter pertaining to substantive consolidation delivered to Lender in connection with the Loan; or

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(xxi)fail to maintain a sufficient number of employees in light of its contemplated business operations.

(b)The limited liability company agreement of Borrower (the “LLC Agreement”)shall provide that (i) upon the occurrence of any event that causes the sole member of Borrower (“Member”)to cease to be the member of Borrower (other than (A) upon an assignment by Member of all of its limited liability company interest in Borrower and the admission of the transferee in accordance with the Loan Documents and the LLC Agreement, or (B) the resignation of Member and the admission of an additional member of Borrower in accordance with the terms of the Loan Documents and the LLC Agreement), any such Person acting as additional member of Borrower in accordance with the terms of the Loan Documents and the LLC Agreement shall, without any action of any other Person and simultaneously with the Member ceasing to be the member of Borrower, automatically be admitted to Borrower (“Special Member”)and shall continue Borrower without dissolution and (ii) Special Member may not resign from Borrower or transfer its rights as Special Member unless a successor Special Member has been admitted to Borrower as Special Member in accordance with requirements of Delaware law. The LLC Agreement shall further provide that (i) Special Member shall automatically cease to be a member of Borrower upon the admission to Borrower of a substitute Member, (ii) Special Member shall be a member of Borrower that has no interest in the profits, losses and capital of Borrower and has no right to receive any distributions of Borrower assets, (iii) pursuant to Section 18-301 of the Delaware Limited Liability Company Act (the “Act”), Special Member shall not be required to make any capital contributions to Borrower and shall not receive a limited liability company interest in Borrower, (iv) Special Member, in its capacity as Special Member, may not bind Borrower and (v) except as required by any mandatory provision of the Act, Special Member, in its capacity as Special Member, shall have no right to vote on, approve or otherwise consent to any action by, or matter relating to, Borrower, including, without limitation, the merger, consolidation or conversion of Borrower; provided, however, such prohibition shall not limit the obligations of Special Member to vote on such matters required by the Loan Documents or the LLC Agreement.  In order to implement the admission to Borrower of Special Member, Special Member shall execute a counterpart to the LLC Agreement. Prior to its admission to Borrower as Special Member, Special Member shall not be a member of Borrower.

Upon the occurrence of any event that causes the Member to cease to be a member of Borrower, to the fullest extent permitted by law, the personal representative of Member shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of Member in Borrower, agree in writing (i) to continue Borrower and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of Member of Borrower in Borrower. Any action initiated by or brought against Member or Special Member under any Creditors Rights Laws shall not cause Member or Special Member to cease to be a member of Borrower and upon the occurrence of such an event, the business of Borrower shall continue without dissolution. The LLC Agreement shall provide that each of Member and Special Member waives any right it might have to agree in writing to dissolve Borrower upon the occurrence of any action initiated by or brought against Member or Special Member under any Creditors Rights Laws, or the occurrence of an event that causes Member or Special Member to cease to be a member of Borrower.

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Section 6.2.     Change of Name, Identity or Structure

Borrower shall not change or permit to be changed (a) Borrower’s name, (b) Borrower’s identity (including its trade name or names), (c) Borrower’s principal place of business set forth on the first page of this Agreement, (d) the corporate, partnership or other organizational structure of Borrower, or Borrower Principal, (e) Borrower’s state of organization, or (f) Borrower’s organizational identification number, without in each case notifying Lender of such change in writing at least thirty (30) days prior to the effective date of such change and, in the case of achange in Borrower’s structure, without first obtaining the prior written consent of Lender.  In addition, Borrower shall not change or permit to be changed any organizational documents of Borrower if such change would adversely impact the covenants set forth in Section 6.1 and Section 6.4 hereof. Borrower authorizes Lender to file any financing statement or financing statement amendment required by Lender to establish or maintain the validity, perfection and priority of the security interest granted herein. At the request of Lender, Borrower shall execute a certificate in form satisfactory to Lender listing the trade names under which Borrower intends to operate the Property, and representing and warranting that Borrower does business under no other trade name with respect to the Property. If Borrower does not now have an organizational identification number and later obtains one, or if the organizational identification number assigned to Borrower subsequently changes, Borrower shall promptly notify Lender of such organizational identification number or change. Nothing in this Section 6.2 shall be deemed to restrict, any express rights granted to Borrower under Article 7 hereof.

Section 6.3.     Business and Operations

Borrower will qualify to do business and will remain in good standing under the laws of the State as and to the extent the same are required for the ownership, maintenance, management and operation of the Property.

Section 6.4.     Intentionally Omitted

ARTICLE 7
NO SALE OR ENCUMBRANCE

Section 7.1.     Transfer Definitions

For purposes of this Article 7 an “Affiliated Manager” shall mean any managing agent in which Borrower, Borrower Principal, or any affiliate of such entities has, directly or indirectly, any legal, beneficial or economic interest; “Control” shall mean the power to direct the management and policies of a Restricted Party, directly or indirectly, whether through the ownership of voting securities or other beneficial interests, by contract or otherwise; “Restricted Party” shall mean Borrower, Borrower Principal, any Affiliated Manager, or any shareholder, partner, member or non-member manager, or any direct or indirect legal or beneficial owner of Borrower, Borrower Principal, any Affiliated Manager or any non-member manager; and a “Sale or Pledge” shall mean a voluntary or involuntary sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment, grant of any options with respect to, or any other transfer or disposition of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) of a legal or beneficial interest.

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Section 7.2.     No Sale/Encumbrance

(a)Borrower shall not cause or permit a Sale or Pledge of the Property or any part thereof or any legal or beneficial interest therein nor permit a Sale or Pledge of an interest in any Restricted Party (in each case, a “Prohibited Transfer”),other than pursuant to the American Express Lease, without the prior written consent of Lender.

(b)A Prohibited Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock in one or a series of transactions; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general or limited partner or any profits or proceeds relating to such partnership interests or the creation or issuance of new partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of any member or any profits or proceeds relating to such membership interest; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the Manager (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.14.

Section 7.3.     Permitted Transfers

Notwithstanding the provisions of Section 7.2, the following transfers shall not be deemed to be a Prohibited Transfer: (a) a transfer by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party, so long as Borrower delivers notice to Lender as soon as practicable thereafter and that such Restricted Party is promptly reconstituted, if applicable, following the death of such member, partner or shareholder and there is no change in Control of such Restricted Party as aresult of such transfer; (b) the Sale or Pledge, in one or a series of related transactions, of not more than forty-nine percent (49%) of the stock, limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such transfers, shall result in a change in Control in the Restricted Party or change in control of the Property, and as a condition to each such transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed transfer. Notwithstanding the foregoing, any one or more of the transfers that results in any Person owning in excess of forty-nine percent (49%) of the ownership interest in a Restricted Party shall comply with the requirements of Section 7.4.

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Section 7.4.     Lender’s Rights

Lender reserves the right to condition the consent to a Prohibited Transfer requested hereunder upon (a) a modification of the terms hereof and an assumption of the Note and the other Loan Documents as so modified by the proposed Prohibited Transfer, (b) receipt of payment of a transfer fee equal to one percent (1%) of the outstanding principal balance of the Loan and all of Lender’s expenses incurred in connection with such Prohibited Transfer, (c) receipt of written confirmation from the Rating Agencies that the Prohibited Transfer will not result in a downgrade, withdrawal or qualification of the initial, or if higher, then current ratings issued in connection with a Securitization, or if a Securitization has not occurred, any ratings to be assigned in connection with a Securitization, (d) the proposed transferee’s continued compliance with the covenants set forth in this Agreement (including, without limitation, the covenants in Article 6) and the other Loan Documents, (e) a new manager for the Property and a new management agreement satisfactory to Lender, and (f) the satisfaction of such other conditions and/or legal opinions as Lender shall determine in its sole discretion to be in the interest of Lender.  All expenses incurred by Lender shall be payable by Borrower whether or not Lender consents to the Prohibited Transfer. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Prohibited Transfer made without Lender’s consent. This provision shall apply to each and every Prohibited Transfer, whether or not Lender has consented to any previous Prohibited Transfer. In the event an opinion letter pertaining to substantive consolidation was delivered to Lender and the Rating Agencies in connection with the closing of the Loan, and if any Sale or Pledge permitted under this Article 7 results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the ownership interests in a Restricted Party, Borrower shall, prior to such transfer, and in addition to any other requirement for Lender consent contained herein, deliver a revised substantive non-consolidation opinion letter to Lender reflecting such Prohibited Transfer, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies.

Section 7.5.     Assumption

Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to a transfer of the Property in its entirety to, and the related assumption of the Loan by, any Person (a “Transferee”) provided that each of the following terms and conditions are satisfied:

(a)no Default or Event of Default has occurred;

(b)Borrower shall have (i) delivered written notice to Lender of the terms of such prospective transfer not less than forty-five (45) days before the date on which such transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in the amount of $10,000. Lender shall have the right to approve or disapprove the proposed transfer based on its then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Property, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and

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Transferee’s and its principals’ relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate;

(c)Borrower shall have paid to Lender, concurrently with the closing of such transfer, (i) a non-refundable assumption fee in an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note, and (ii) all out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection with the transfer;

(d)(i) Transferee shall have assumed and agreed to pay the Debt as and when due subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such transfer, Transferee and its constituent partners, members or shareholders as Lender may require, shall have executed, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender shall have assumed the obligations of Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the transfer of the Property pursuant to this Section 7.5;

(e)Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable law, and shall execute any additional documents reasonably requested by Lender;

(f)Borrower shall have delivered to Lender, without any cost or expense to Lender, such endorsements to Lender’s Title Insurance Policy insuring that fee simple or leasehold title to the Property, as applicable, is vested in Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;

(g)Transferee shall have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all appropriate papers evidencing Transferee’s organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;

(h)Transferee shall assume the obligations of Borrower under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management, agreement;

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(i)Transferee shall furnish an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (g) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (E) with respect to such other matters as Lender may reasonably request;

(j)if required by Lender, Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a qualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;

(k)Borrower’s obligations under the contract of sale pursuant to which the transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.5; and

(l)Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies.

A consent by Lender with respect to a transfer of the Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Sale or Pledge of the Property.  Upon the transfer of the Property pursuant to this Section 7.5, Borrower and Borrower Principal shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.

Section 7.6.     Assumption by Inland Permitted Transferee

Notwithstanding the foregoing provisions of this Article 7, Borrower shall be permitted to transfer the Property in its entirety to, provided the Loan is simultaneously assumed by, an Inland Permitted Transferee, and provided further that each of the following terms and conditions is satisfied:

(a)no Default or Event of Default has occurred;

(b)Borrower shall have delivered written notice to Lender of the terms of such prospective transfer not less than forty-five (45) days before the date on which such transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transferee as Lender shall reasonably require;

(c)Borrower shall have paid to Lender all out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection with the transfer;

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(d)such Inland Permitted Transferee assumes and agrees to pay the Debt as and when due subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such transfer, such Inland Permitted Transferee and its constituent partners, members or shareholders as Lender may require, shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;

(e)Borrower and such Inland Permitted Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable law, and shall execute any additional documents reasonably requested by Lender;

(f)Borrower shall have delivered to Lender, without any cost or expense to Lender, endorsements to Lender’s Title Insurance Policy insuring that fee simple title to the Property is vested in such Inland Permitted Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;

(g)such Inland Permitted Transferee shall have furnished to Lender, if such Inland Permitted Transferee is a corporation, partnership, limited liability company or other entity, all appropriate papers evidencing Transferee’s organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof, provided, however, that, (i) if such Inland Permitted Transferee is a limited partnership or a limited liability company (with more than one member), Lender may require that the general partner or managing member of such Inland Permitted Transferee also comply with the covenants set Forth in Article 6, as modified to state that such general partner or managing member holds an interest in the Inland Permitted Transferee rather than an interest in the Property or (ii) if such Inland Permitted Transferee is a single member limited liability company, the state of organization of such entity must be Delaware and the organizational documents must provide for a springing member upon the bankruptcy or dissolution of the sole member;

(h)such Inland Permitted Transferee shall assume the obligations of Borrower under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement;

(i)Transferee shall furnish an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (g) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member

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or general partner of Transferee, have been duly organized, and are in existence and good standing, and (E) with respect to such other matters as Lender may reasonably request, including, without limitation, customary single member limited liability company opinions in the event that such Inland Permitted Transferee is a Delaware limited liability company; and

(j)in the event a substantive non-consolidation opinion was required in connection with the closing of the Loan, Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies.

A consent by Lender with respect to a transfer of the Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.6 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Sale or Pledge of the Property.

ARTICLE 8
INSURANCE; CASUALTY; CONDEMNATION; RESTORATION

Section 8.1.     Insurance

(a)Subject to the provisions of paragraph (g) of this Section 8.1, Borrower shall obtain and maintain, or cause American Express to maintain, insurance for Borrower and the Property providing at least the following coverages:

(i)comprehensive “special causes of loss” form of insurance (or its equivalent) on the Improvements and the Personal Property (A) in an amount equal to not less than one hundred percent (100%) of the “Full Replacement Cost,” which for purposes of this Agreement shall mean actual replacement value (exclusive of costs of excavations, foundations, underground utilities and footings) with a waiver of depreciation; (B) written on a replacement cost basis and containing either an agreed amount endorsement with respect to the Improvements and Personal Property or a waiver of all co-insurance provisions; (C) providing for no deductible in excess of $10,000 for all such insurance coverage; (D) at all times insuring against at least those hazards that are commonly insured against under a “special causes of loss” form of policy, as the same shall exist on the date hereof, and together with any increase in the scope of coverage provided under such form after the date hereof; and (E) if any of the Improvements or the use of the Property shall at any time constitute legal non-conforming structures or uses, providing coverage for contingent liability from Operation of Building Laws, Demolition Costs and Increased Cost of Construction Endorsements and containing an “Ordinance or Law Coverage” or “Enforcement” endorsement. In addition, Borrower shall obtain: (y) if any portion of the improvements is currently or at any time in the future located in a “special flood hazard area” designated by the Federal Emergency Management Agency, flood hazard insurance in an amount equal to the maximum amount of such insurance available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended; and (z) earthquake insurance in amounts and in form and substance reasonably satisfactory to Lender in the event the Property is located in an area with a high degree of seismic risk, provided that the insurance pursuant to

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clauses (y) and (z) hereof shall be on terms consistent with the special causes of loss form required under this subsection (i);

(ii)commercial general liability insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about the Property, with such insurance (A) to be on the so-called “occurrence” form with a general aggregate limit of not less than $2,000,000 and a per occurrence limit of not less than $1,000,000; (B) to continue at not less than the aforesaid limit until required to be changed by Lender in writing by reason of changed economic conditions making such protection inadequate; and (C) to cover at least the following hazards: (1) premises and operations; (2) products and completed operations; (3) independent contractors; (4) blanket contractual liability; and (5) contractual liability covering the indemnities contained in Article 12 and Article 14 hereof to the extent the same is available;

(iii)if the rating of American Express issued by the Rating Agencies falls below the Trigger Rating, loss of rents insurance or business income insurance, as applicable, (A) with loss payable to Lender; (B) covering all risks required to be covered by the insurance provided for in subsection (i) above; and (C) which provides that after the physical loss to the Improvements and Personal Property occurs, the loss of rents or income, as applicable, will be insured until such rents or income, as applicable, either returns to the same level that existed prior to the loss or the expiration of twelve (12) months, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period; and (D) which contains an extended period of indemnity endorsement which provides that after the physical loss to the Improvements and Personal Property has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss, or the expiration of twelve (12) months from the date that the Property is repaired or replaced and operations are resumed, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period. The amount of such loss of rents or business income insurance, as applicable, shall be determined prior to the date hereof and at least once each year thereafter based on Borrower’s reasonable estimate of the gross income from the Property for the succeeding period of coverage required above. All proceeds payable to Lender pursuant to this subsection shall be held by Lender and shall be applied to the obligations secured by the Loan Documents from time to time due and payable hereunder and under the Note; provided, however, that nothing herein contained shall be deemed to relieve Borrower of its obligations to pay the obligations secured by the Loan Documents on the respective dates of payment provided for in the Note, this Agreement and the other Loan Documents except to the extent such amounts are actually paid out of the proceeds of such loss of rents or business income insurance, as applicable;

(iv)at all times during which structural construction, repairs or alterations are being made with respect to the Improvements, and only if the Property coverage form does not otherwise apply, (A) owner’s contingent or protective liability insurance covering claims not covered by or under the terms or provisions of the above mentioned commercial general liability insurance policy; and (B) the insurance provided for in subsection (i) above written in a so-called Builder’s Risk Completed Value form (1) on a non-reporting basis, (2) against “special causes of loss” insured against pursuant to

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subsection (i) above, (3) including permission to occupy the Property, and (4) with an agreed amount endorsement waiving co-insurance provisions;

(v)workers’ compensation, subject to the statutory limits of the State, and employer’s liability insurance in respect of any work or operations on or about the Property, or in connection with the Property or its operation (if applicable);

(vi)comprehensive boiler and machinery insurance, if applicable, in amounts as shall be reasonably required by Lender on terms consistent with the commercial property insurance policy required under subsection (i) above;

(vii)excess liability insurance in an amount not less than $75,000,000 per occurrence on terms consistent with the commercial general liability insurance required under subsection (ii) above; and

(viii)upon sixty (60) days’ written notice, such other reasonable insurance and in such reasonable amounts as Lender from time to time may reasonably request against such other insurable hazards which at the time are commonly insured against for property similar to the Property located in or around the region in which the Property is located.

With respect to the policies required to be maintained pursuant to clauses (i) through (viii) above, Borrower shall use commercially reasonable efforts, consistent with those of prudent owners of institutional quality commercial real estate, to maintain insurance against Losses resulting from acts of terrorism.

(b)All insurance provided for in Section 8.1(a) shall be obtained under valid and enforceable policies (collectively, the “Policies” or in the singular, the “Policy”), and shall be subject to the approval of Lender as to insurance companies, amounts, deductibles, loss payees and insureds. The Policies shall be issued by financially sound and responsible insurance companies authorized to do business in the State and having a claims paying ability rating of “A-” or better by S&P (or such other ratings approved by Lender) and/or a general policy rating of “A” or better and a financial class of VIII or better by A.M. Best Company, Inc. The Policies described in Section 8.1(a) shall designate Lender and its successors and assigns as additional insureds, mortgagees and/or loss payee as deemed appropriate by Lender. To the extent such Policies are not available as of the Closing Date, Borrower shall deliver to Lender prior to the Closing Date an Acord 28 or similar certificate of insurance evidencing the coverages and amounts required hereunder and, upon request of Lender as soon as available after the Closing Date, certified copies of all Policies.  Not less than ten (10) days prior to the expiration dates of any insurance coverage in place with respect to the Property, Borrower shall deliver to Lender an Acord 28 or similar certificate, accompanied by evidence satisfactory to Lender of payment of the premiums due in connection therewith (the “Insurance Premiums”), and, as soon as available thereafter, certified copies of all renewal Policies.

(c)Any blanket insurance Policy shall specifically allocate to the Property the amount of coverage from time to time required hereunder and shall otherwise provide the same protection as would a separate Policy insuring only the Property in compliance with the provisions of Section 8.1(a).

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(d)All Policies provided for or contemplated by Section 8.1(a), except for the Policy referenced in Section 8.1(a)(v), shall name Borrower as the insured and Lender as the additional insured, as its interests may appear, and in the case of property damage, boiler and machinery, flood and earthquake insurance, shall contain a so-called New York standard non-contributing mortgagee clause in favor of Lender providing that the loss thereunder shall be payable to Lender.

(e)All Policies provided for in Section 8.1(a) shall contain clauses or endorsements to the effect that:

(i)no act or negligence of Borrower, or anyone acting for Borrower, or of any Tenant or other occupant, or failure to comply with the provisions of any Policy, which might otherwise result in a forfeiture of the insurance or any part thereof, shall in any way affect the validity or enforceability of the insurance insofar as Lender is concerned;

(ii)the Policies shall not be materially changed (other than to increase the coverage provided thereby) or canceled by the insurer without at least thirty (30) days’ (ten (10) days’ in the case of non-payment of premium) prior written notice to Lender and any other party named therein as an additional insured;

(iii)the issuers thereof shall give written notice to Lender if the Policies have not been renewed thirty (30) days prior to its expiration; and

(iv)Lender shall not be liable for any Insurance Premiums thereon or subject to any assessments thereunder.

(f)if at any time Lender is not in receipt of written evidence that all insurance required hereunder is in full force and effect, Lender shall have the right, without notice to Borrower, to take such action as Lender deems necessary to protect its interest in the Property, including, without limitation, obtaining such insurance coverage as Lender in its sole discretion deems appropriate. All premiums incurred by Lender in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by Borrower to Lender upon demand and, until paid, shall be secured by the Mortgage and shall bear interest at the Default Rate.

(g)Notwithstanding any other provision hereof to the contrary, Lender acknowledges that so long as no American Express Lease Default has occurred, Borrower shall not be required to obtain the insurance coverages set forth in paragraphs (a)(i) through (viii) if (x) Guarantor (or American Express if there is no Guarantor) is a self-insurer and maintains a rating issued by the Rating Agencies of not less than the Trigger Rating or (y) American Express maintains insurance with coverages and carriers in compliance with the terms of the American Express Lease.

Section 8.2.     Casualty

If the Property shall be damaged or destroyed, in whole or in part, by fire or other casualty (a “Casualty”),Borrower shall give prompt notice of such damage to Lender and shall promptly commence and diligently prosecute the Restoration of the Property in accordance with

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Section 8.4, whether or not Lender makes any Net Proceeds available pursuant to Section 8.4. Borrower shall pay all costs of such Restoration whether or not such costs are covered by insurance. Lender may, but shall not be obligated to make proof of loss if not made promptly by Borrower.  Borrower shall adjust all claims for Insurance Proceeds in consultation with, and approval of, Lender; provided, however, if an Event of Default has occurred and is continuing, Lender shall have the exclusive right to participate in the adjustment of all claims for Insurance Proceeds.

Section 8.3.     Condemnation

Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the Condemnation of the Property of which Borrower has knowledge and shall deliver to Lender copies of any and all papers served in connection with such proceedings. Lender may participate in any such proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Debt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the provisions of Section 8.4, whether or not Lender makes any Net Proceeds available pursuant to Section 8.4. If the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt. So long as no American Express Lease Default has occurred, the payment and allocation of any Awards shall be governed by the American Express Lease.

Section 8.4.     Restoration

The following provisions shall apply in connection with the Restoration of the Property:

(a)If the Net Proceeds shall be less than $50,000 and the costs of completing the Restoration shall be less than $50,000, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 8.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.

(b)If the Net Proceeds are equal to or greater than $50,000 or the costs of completing the Restoration are equal to or greater than $50,000, Lender shall make the Net Proceeds

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available for the Restoration in accordance with the provisions of this Section 8.4. The term “Net Proceeds” for purposes of this Section 8.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 8.1(a)(i), (iv), (vi) and (viii) as a result of a Casualty, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting the same (“Insurance Proceeds”),or (ii) the net amount of the Award as a result of a Condemnation, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting the same (“Condemnation Proceeds”), whichever the case may be.

(i)The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:

(A)no Event of Default shall have occurred and be continuing;

(B)(1) in the event the Net Proceeds are Insurance Proceeds, less than thirty percent (30%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of a Casualty, or (2) in the event the Net Proceeds are Condemnation Proceeds, less than ten percent (10%) of the land constituting the Property is taken, such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land;

(C)The American Express Lease shall remain in full force and effect during and after completion of the Restoration without abatement of Rent;

(D)Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than sixty (60) days after such Casualty or Condemnation, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion;

(E)Lender shall be satisfied that any operating deficits, including all scheduled payments under the Note, which will be incurred with respect to the Property as a result of the occurrence of any such Casualty or Condemnation, whichever the case may be, will be covered out of the insurance coverage referred to in

Section 8.1(a)(iii) above;

(F)Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, (2) the earliest date required for such completion under the terms of any Leases or material agreements affecting the Property, (3) such time as may be required under applicable zoning law, ordinance, rule or regulation, or (4) the expiration of the insurance coverage referred to in Section 8.1(a)(iii);

(G)the Property and the use thereof after the Restoration will be in compliance with and permitted under all Legal Requirements;

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(H)the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements;

(I)such Casualty or Condemnation, as applicable, does not result in the loss of access to the Property or the Improvements;

(J)Borrower shall deliver, or cause to be delivered, to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, which budget shall be acceptable to Lender; and

(K)the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s reasonable judgment to cover the cost of the Restoration.

(ii)The Net Proceeds shall be held by Lender until disbursements commence, and, until disbursed in accordance with the provisions of this Section 8.4, shall constitute additional security for the Debt and other obligations under the Loan Documents. The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all the conditions precedent to such advance, including those set forth in Section 8.4(b)(i), have been satisfied, (B) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the related Restoration item have been paid for in full, and (C) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy.  Notwithstanding the foregoing, Business Interruption Proceeds required to be maintained by Borrower pursuant to section 8.1(a)(iii) shall be controlled by Lender at all times, shall not be subject to the provisions of this Section 8.4 and shall be used solely for the payment of the obligations under the Loan Documents and Operating Expenses.

(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Restoration Consultant”). Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration, as well as the contracts in excess of $50,000 under which they have been engaged, shall be subject to prior review and acceptance by Lender and the Restoration Consultant. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration, including, without limitation, reasonable counsel fees and disbursements and the Restoration Consultant’s fees, shall be paid by Borrower.

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(iv)In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Restoration Consultant, minus the Restoration Retainage. The term “Restoration Retainage” shall mean an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Restoration Consultant, until the Restoration has been completed. The Restoration Retainage shall be reduced to five percent (5%) of the costs incurred upon receipt by Lender of satisfactory evidence that fifty percent (50%) of the Restoration has been completed. The Restoration Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Section 8.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Restoration Retainage shall not be released until the Restoration Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 8.4(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate Governmental Authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Restoration Retainage; provided, however, that Lender will release the portion of the Restoration Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Restoration Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company issuing the Title Insurance Policy, and Lender receives an endorsement to the Title Insurance Policy insuring the continued priority of the lien of the Mortgage and evidence of payment of any premium payable for such endorsement. If required by Lender, the release of any such portion of the Restoration Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.

(v)Lender shall not be obligated to make disbursements of the Net Proceeds more frequently than once every calendar month.

(vi)If at any time the Net Proceeds or the undisbursed balance thereof shall not, in the reasonable opinion of Lender in consultation with the Restoration Consultant, be sufficient to pay in full the balance of the costs which are estimated by the Restoration Consultant to be incurred in connection with the completion of the Restoration.  Borrower shall deposit the deficiency (the “Net Proceeds Deficiency”) with Lender before any further disbursement, of the Net Proceeds shall be made. The Net Proceeds Deficiency deposited with Lender shall be held by Lender and shall be disbursed for costs actually incurred in connection with the Restoration on the same conditions applicable to the disbursement of the Net Proceeds, and until so disbursed pursuant to this Section 8.4(b) shall constitute additional security for the Debt and other obligations under the Loan Documents.

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(vii)The excess, if any, of the Net Proceeds and the remaining balance, if any, of the Net Proceeds Deficiency deposited with Lender after the Restoration Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 8.4(b), and the receipt by Lender of evidence satisfactory to Lender that all costs incurred in connection with the Restoration have been paid in full, shall be remitted by Lender to Borrower, provided no Event of Default shall have occurred and shall be continuing under the Note, this Agreement or any of the other Loan Documents.

(c)All Net Proceeds not required (i) to be made available for the Restoration or (ii) to be returned to Borrower as excess Net Proceeds pursuant to Section 8.4(b)(vii) may (x) be retained and applied by Lender toward the payment of the Debt whether or not then due and payable in such order, priority and proportions as Lender in its sole discretion shall deem proper, or, (y) at the sole discretion of Lender, the same may be paid, either in whole or in part, to Borrower for such purposes and upon such conditions as Lender shall designate.

(d)In the event of foreclosure of the Mortgage, or other transfer of title to the Property in extinguishment in whole or in part of the Debt, all right, title and interest of Borrower in and to the Policies then in force concerning the Property and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure, Lender or other transferee in the event of such other transfer of title.

(e)Notwithstanding the foregoing, so long as no American Express Lease Default has occurred, the Net Proceeds shall be used for restoration of the Property in accordance with the provisions of the American Express Lease.

ARTICLE 9
REPLACEMENTS; RESERVE FUNDS

Section 9.1.     Replacements

On an ongoing basis throughout the term of the Loan, Borrower shall make capital repairs, replacements and improvements necessary to keep the Property in good order and repair and in a good marketable condition or prevent deterioration of the Property. So long as no American Express Lease Default shall have occurred, the compliance by American Express with its obligations for maintenance of the Property as set forth in the American Express Lease shall be deemed compliance by Borrower with the provisions of this Section 9.1.

Section 9.2.     Tax and Insurance Reserve Funds

If required by Lender following a default by American Express under the American Express Lease Borrower shall establish an Eligible Account with Lender or Lender’s agent sufficient to discharge Borrower’s obligations for the payment of Taxes and Insurance Premiums pursuant to Section 5.4 and Section 8.1 hereof (the “Tax and Insurance Reserve Account”) Borrower shall deposit, into the Tax and Insurance Reserve Account on each Scheduled Payment Date (a) one-twelfth of the Taxes that Lender estimates will be payable during the next ensuing twelve (12) months or such higher amount necessary to accumulate with Lender sufficient funds to pay all such Taxes at least thirty (30) days prior to the earlier of (i) the date that the same will

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become delinquent and (ii) the date that additional charges or interest will accrue due to the non-payment thereof, and (b) except to the extent Lender has waived the insurance escrow because the insurance required hereunder is maintained under a blanket insurance Policy acceptable to Lender in accordance with Section 8.1(c), one-twelfth of the Insurance Premiums that Lender estimates will be payable during the next ensuing twelve (12) months for the renewal of the coverage afforded by the Policies upon the expiration thereof or such higher amount necessary to accumulate with Lender sufficient funds to pay all such Insurance Premiums at least thirty (30) days prior to the expiration of the Policies (said amounts in (a) and (b) above hereinafter called the “Tax and Insurance Reserve Funds”). Lender will apply the Tax and Insurance Reserve Funds to payments of Taxes and Insurance Premiums required to be made by Borrower pursuant to Section 5.4 and Section 8.1 hereof. In making any disbursement from the Tax and Insurance Reserve Account, Lender may do so according to any bill, statement or estimate procured from the appropriate public office or tax lien service (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums), without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof. If the amount of the Tax and Insurance Reserve Funds shall exceed the amounts due for Taxes and Insurance Premiums pursuant to Section 5.4 and Section 8.1 hereof, Lender shall, in its sole discretion, return any excess to Borrower or credit such excess against future payments to be made to the Tax and Insurance Reserve Account. In allocating any such excess, Lender may deal with the person shown on Lender’s records as being the owner of the Property. Any amount remaining in the Tax and Insurance Reserve Account after the Debt has been paid in full shall be returned to Borrower or the person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto. If at any time Lender reasonably determines that the Tax and Insurance Reserve Funds are not or will not be sufficient to pay Taxes and Insurance Premiums by the dates set forth in (a) and (b) above, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.

Section 9.3.     Reserve Funds Generally

(a)No earnings or interest on the Reserve Accounts shall be payable to Borrower. Neither Lender nor any loan servicer that at any time holds or maintains the Reserve Accounts shall have any obligation to keep or maintain such Reserve Accounts or any funds deposited therein in interest-bearing accounts. If Lender or any such loan servicer elects in its sole and absolute discretion to keep or maintain any Reserve Accounts or any funds deposited therein in an interest-bearing account (i) the account shall be an Eligible Account, (ii) such funds shall not be invested except in Permitted Investments, and (iii) all interest earned or accrued thereon shall be for the account of and be retained by Lender or such loan servicer.

(b)Borrower grants to Lender a first-priority perfected security interest in, and assigns and pledges to Lender, each of the Reserve Accounts and any and all funds hereafter deposited therein as additional security for payment of the Debt. Until expended or applied in accordance herewith, the Reserve Accounts and the Reserve Funds shall constitute additional security for the Debt. The provisions of this Section 9.9 are intended to give Lender or any subsequent holder of the Loan “control” of the Reserve Accounts within the meaning of the UCC.

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(c)The Reserve Accounts and any and all Reserve Funds deposited therein shall be subject to the exclusive dominion and control of Lender, which shall hold the Reserve Accounts and any or all Reserve Funds now or hereafter deposited therein subject to the terms and conditions of this Agreement. Borrower shall have no right of withdrawal from the Reserve Accounts or any other right or power with respect to the Reserve Accounts or any or all of the Reserve Funds hereinafter deposited therein, except as expressly provided in this Agreement.

(d)Lender shall furnish or cause to be furnished to Borrower, without charge, an annual accounting of each Reserve Account in the normal format of Lender or its loan servicer, showing credits and debits to such Reserve Account and the purpose for which each debit to such Reserve Account was made.

(e)As long as no Event of Default has occurred, Lender shall make disbursements from the Reserve Accounts in accordance with this Agreement.  All such disbursements shall be deemed to have been expressly pre-authorized by Borrower, and shall not be deemed to constitute the exercise by Lender of any remedies against Borrower unless an Event of Default has occurred and is continuing and Lender has expressly stated in writing its intent to proceed to exercise its remedies as a secured party, pledgee or lienholder with respect to the Reserve Accounts.

(f)The Reserve Funds shall not constitute escrow or trust funds and may be commingled with other monies held by Lender. Notwithstanding anything else herein to the contrary, Lender may commingle in one or more Eligible Accounts any and all funds controlled by Lender, including, without limitation, funds pledged in favor of Lender by other borrowers, whether for the same purposes as the Reserve Accounts or otherwise. Without limiting any other provisions of this Agreement or any other Loan Document, the Reserve Accounts may be established and held in such name or names as Lender or its loan servicer, as agent for Lender, shall deem appropriate, including, without limitation, in the name of Lender or such loan servicer as agent for Lender. In the case of any Reserve Account which is held in a commingled account, Lender or its loan servicer, as applicable, shall maintain records sufficient to enable it to determine at all times which portion of such account is related to the Loan. The Reserve Accounts are solely for the protection of Lender and Lender shall have no responsibility beyond the allowance of due credit, for the sums actually received by Lender or beyond the reimbursement or payment of the costs and expenses for which such accounts were established in accordance with their terms. Upon assignment of the Loan by Lender, any Reserve Funds shall be turned over to the assignee and any responsibility of Lender as assignor shall terminate. The requirements of this Agreement concerning Reserve Accounts in no way supersede, limit or waive any other rights or obligations of the parties under any of the Loan Documents or under applicable law.

(g)Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in the Reserve Accounts or the Reserve Funds deposited therein or permit any Lien to attach thereto, except for the security interest granted in this Section 9.9, or any levy to be made thereon, or any UCC Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.

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(h)Borrower will maintain the security interest created by this Section 9.9 as a first priority perfected security interest and will defend the right, title and interest of Lender in and to the Reserve Accounts and the Reserve Funds against the claims and demands of all Persons whomsoever. At any time and from time to time, upon the written request of Lender, and at the sole expense of Borrower, Borrower will promptly and duly execute and deliver such further instruments and documents and will take such further actions as Lender reasonably may request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted.

ARTICLE 10
CASH MANAGEMENT

Section 10.1.     Cash Management Account

(a)Borrower acknowledges and confirms that Borrower has established, and Borrower covenants that it shall maintain an Eligible Account into which Borrower shall, and shall cause Manager to, deposit or cause to be deposited all Rents and other revenue from the Property during the Cash Management Period or upon the occurrence of an Event of Default prior to the commencement of the Cash Management Period pursuant to the terms of Section 10.2 hereof (such account, the sub-accounts thereof, all funds at any time on deposit therein and any proceeds, replacements or substitutions of such account or funds therein, are referred to herein as the “Cash Management Account”).

(b)The Cash Management Account shall be in the name of Borrower for the benefit of Lender, provided that Borrower shall be the owner of all funds on deposit in such accounts for federal and applicable state and local tax purposes (except to the extent Lender retains any interest earned on the Cash Management Account for its own account following the occurrence and during the continuance of an Event of Default). Sums on deposit in the Cash Management Account shall not be invested except in such Permitted Investments as determined and directed by Lender and all income earned thereon shall be the income of Borrower and be applied to and become part of the Cash Management Account, to be disbursed in accordance with this Article 10. Lender shall have no liability for any loss resulting from the investment of funds in Permitted Investments in accordance with the terms and conditions of this Agreement.

(c)The Cash Management Account shall be subject to the exclusive dominion and control of Lender during the Cash Management Period or the continuance of an Event of Default and, except as otherwise expressly provided herein, neither Borrower, Manager nor any other party claiming on behalf of, or through, Borrower or Manager, shall have any right of withdrawal therefrom or any other right or power with respect thereto.

(d)Borrower agrees to pay the customary fees and expenses incurred in connection with maintaining the Cash Management Account.

(e)Lender shall be responsible for the performance only of such duties with respect to the Cash Management Account as are specifically set forth herein, and no duty shall be implied from any provision hereof. Lender shall not be under any obligation or duty to perform any act which would involve it in expense or liability or to institute or defend any suit in respect

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hereof, or to advance any of its own monies. Borrower shall indemnify and hold Lender and its directors, employees, officers and agents harmless from and against any loss, cost or damage (including, without limitation, reasonable attorneys’ fees and disbursements) incurred by such parties in connection with the Cash Management Account other than such as result from the gross negligence or willful misconduct of Lender or intentional nonperformance by Lender of its obligations under this Agreement.

Section 10.2.     Deposits and Withdrawals

(a)Borrower represents, warrants and covenants that:

(i)Concurrently with the execution of this Agreement Borrower has executed and delivered to Lender an instruction letter in the form of Exhibit B attached hereto addressed to American Express (the “Tenant Direction Letter”). Upon the occurrence of an Event of Default or upon commencement of the Cash Management Period, Lender or Lender’s agent shall have the right to deliver the Tenant Direction Letter to American Express and all payments of Rent and other items payable under the American Express Lease shall thereafter be sent directly to the Cash Management Account;

(ii)On the occurrence of an Event of Default or the commencement of the Cash Management Period Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the Cash Management Account. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;

(iii)All Rents or other income from the Property received after the commencement of the Cash Management Period or the occurrence of an Event of Default shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of the Tenant Direction Letter, be deposited in the Cash Management Account within one (1) Business Day of receipt;

(iv)Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, during the Cash Management Period or the continuance of an Event of Default neither Borrower nor Manager shall terminate, amend, revoke or modify the Tenant Direction Letter in any manner whatsoever or direct or cause American Express to pay any amount in any manner other than as provided in the Tenant Direction Letter; and

(v)So long as any portion of the Debt remains outstanding, during the Cash Management Period or during the continuance of an Event of Default neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Cash Management Account into which revenues from the ownership and operation of the Property are deposited.

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(b)Intentionally Omitted.

(c)If an Event of Default shall have occurred and be continuing or during a Cash Management Period, on each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month immediately following the month during which the Cash Management Period commences, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:

(i)following a default by American Express under the American Express Lease, funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.2;

(ii)funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;

(iii)funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;

(iv)funds sufficient to pay Operating Expenses (to the extent actually incurred) for the following month shall be allocated to the Operating Expense Reserve Account to be held and disbursed to pay Operating Expenses;

(v)funds in an amount equal to the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be withdrawn and paid to Lender to be applied to the principal amount of the Loan until the principal amount of the Loan is paid in full.

(d)Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).

(e)If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Cash Management Account and transfers between any Reserve Account as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and

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apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.

Section 10.3.     Security Interest

(a)To secure the full and punctual payment of the Debt and performance of all obligations of Borrower now or hereafter existing under this Agreement and the other Loan Documents, Borrower hereby grants to Lender a first-priority perfected security interest in each of the Accounts and the Account Collateral. Furthermore, Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any of the foregoing or permit any Lien to attach thereto or any levy to be made thereon or any UCC Financing Statements to be filed with respect thereto. Borrower will maintain the security interest created by this Section 10.3(a) as a first priority perfected security interest and will defend the right, title and interest of Lender in and to each of the Accounts and the Account Collateral against the claims and demands of all Persons whomsoever.

(b)Borrower authorizes Lender to file any financing statement or statements required by Lender to establish or maintain the validity, perfection and priority of the security interest granted herein in connection with the Cash Management Account. Borrower agrees that at any time and from time to time, at the expense of Borrower, Borrower will promptly and duly execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable, or that Lender may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereby (including, without limitation, any security interest in and to any Permitted Investments) or to enable Lender to exercise and enforce its rights and remedies hereundcr.

(c)Upon the occurrence of an Event of Default, Lender may exercise any or all of its rights and remedies as a secured party, pledgee and lienholder with respect to the Accounts and the Account Collateral. Without limitation of the foregoing, upon any Event of Default, Lender may use the Accounts and the Account Collateral for any of the following purposes: (A) repayment of the Debt, including, but not limited to, principal prepayments and the prepayment premium applicable to such full or partial prepayment (as applicable); (B) reimbursement of Lender for all losses, fees, costs and expenses (including, without limitation, reasonable legal fees) suffered or incurred by Lender as a result of such Event of Default; (C) payment of any amount expended in exercising any or all rights and remedies available to Lender at law or in equity or under this Agreement or under any of the other Loan Documents; (D) payment of any item as required or permitted under this Agreement; or (E) any other purpose permitted by applicable law; provided, however, that any such application of funds shall not cure or be deemed to cure any Event of Default, Without limiting any other provisions hereof, each of the remedial actions described in the immediately preceding sentence shall be deemed to be a commercially reasonable exercise of Lender’s rights and remedies as a secured party with respect to the Accounts and the Account Collateral and shall not in any event be deemed to constitute a setoff or a foreclosure of a statutory banker’s lien. Nothing in this Agreement shall obligate Lender to apply all or any portion of the Accounts and the Account Collateral to effect a cure of any Event of Default, or to pay the Debt, or in any specific order of priority. The exercise of any or all of Lender’s rights and remedies under this Agreement or under any of the other Loan

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Documents shall not in any way prejudice or affect Lender’s right to initiate and complete a foreclosure under the Mortgage.

ARTICLE 11
EVENTS OF DEFAULT; REMEDIES

Section 11.1.     Event of Default

The occurrence of any one or more of the following events shall constitute an “Event of Default”:

(a)if any portion of the Debt is not paid on or prior to the tenth day following the date the same is due or if the entire Debt is not paid on or before the Maturity Date;

(b)except as otherwise expressly provided in the Loan Documents, if any of the Taxes or Other Charges are not paid when the same are due and payable, unless there is sufficient money in the Tax and Insurance Reserve Account for payment of amounts then due and payable and Lender’s access to such money has not been constrained or restricted in any manner;

(c)should American Express cease to be a self-insurer or if the rating of American express issued by the Rating Agencies falls below the Trigger Rating, if (i) the Policies are not kept in full force and effect, or (ii) the Accord 28 (or similar) certificate is not delivered to Lender in accordance with Section 8.1;

(d)if Borrower breaches any covenant with respect to itself contained in Article 6 or any covenant contained in Article 7 hereof;

(e)if any representation or warranty of, or with respect to, Borrower or Borrower Principal, or any member, general partner, principal or beneficial owner of any of the foregoing, made herein, in any other Loan Document, or in any certificate, report, financial statement or other instrument or document furnished to Lender at the time of the closing of the Loan or during the term of the Loan shall have been false or misleading in any material respect when made;

(f)if (i) Borrower, or any managing member or general partner of Borrower, Borrower Principal, or American Express shall commence any case, proceeding or other action (A) under any Creditors Rights Laws, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii) there shall be commenced against Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express any case, proceeding or other action seeking issuance of a warrant of

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attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of any order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (iv) Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due;

(g)if Borrower shall be in default beyond applicable notice and grace periods under any other mortgage, deed of trust, deed to secure debt or other security agreement covering any part of the Property, whether it be superior or junior in lien to the Mortgage;

(h)if the Property becomes subject to any mechanic’s, materialman’s or other Lien other than a Lien for any Taxes or Other Charges not then due and payable and the Lien shall remain undischarged of record (by payment, bonding or otherwise) for a period of thirty (30) days;

(i)if any federal income tax lien is filed against Borrower, any member or general partner of Borrower, Borrower Principal, or the Property and same is not discharged of record (or bonded or insured to Lender’s satisfaction) within thirty (30) days after same is filed;

(j)if an uninsured judgment is filed against the Borrower in excess of $20,000 which is not vacated or discharged (or bonded or insured to Lender’s satisfaction) within 30 days;

(k)if any default occurs under any guaranty or indemnity executed in connection herewith and such default continues after the expiration of applicable grace periods, if any;

(l)if Borrower shall permit any event within its control to occur that would cause any REA to terminate without notice or action by any party thereto or would entitle any party to terminate any REA and the term thereof by giving notice to Borrower; or any REA shall be surrendered, terminated or canceled for any reason or under any circumstance whatsoever except as provided for in such REA; or any term of any REA shall be modified or supplemented unless permitted by the American Express Lease; or Borrower shall fail, within ten (10) Business Days after demand by Lender, to exercise its option to renew or extend the term of any REA or shall fail or neglect to pursue diligently all actions necessary to exercise such renewal rights pursuant to such REA except as provided for in such REA; or

(m)if an American Express Lease Default shall occur under the American Express Lease; or

(n)if Borrower shall continue to be in default under any other term, covenant or condition of this Agreement or any of the Loan Documents for more than ten (10) days after notice from Lender in the case of any default which can be cured by the payment of a sum of money or for thirty (30) days after notice from Lender in the case of any other default, provided that if such default cannot reasonably be cured within such thirty (30) day period and Borrower shall have commenced to cure such default within such thirty (30) day period and thereafter

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diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for so long as it shall require Borrower in the exercise of due diligence to cure such default, it being agreed that no such extension shall be for a period in excess of one hundred twenty (120) days.

Section 11.2.     Remedies

(a)Upon the occurrence of an Event of Default (other than an Event of Default described in Section 11.1(f) above) and at any time thereafter Lender may, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in the Property, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents against Borrower and the Property, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in Section 11.1(f) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.

(b)Upon the occurrence of an Event of Default, all or any one or more of the rights, powers, privileges and other remedies available to Lender against Borrower under this Agreement or any of the other Loan Documents executed and delivered by, or applicable to, Borrower or at law or in equity may be exercised by Lender at any time and from time to time, whether or not all or any of the Debt shall be declared due and payable, and whether or not Lender shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Loan Documents with respect to the Property. Any such actions taken by Lender shall be cumulative and concurrent and may be pursued independently, singularly, successively, together or otherwise, at such time and in such order as Lender may determine in its sole discretion, to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of Lender permitted by law, equity or contract or as set forth herein or in the other Loan Documents.

ARTICLE 12
ENVIRONMENTAL PROVISIONS

Section 12.1.     Environmental Representations and, Warranties

Borrower represents and warrants, except as disclosed in an Environmental Report of the Property and information that Borrower knows that: (a) there are no Hazardous Materials or underground storage tanks in, on, or under the Property, except those that are both (i) in compliance with Environmental Laws and with permits issued pursuant thereto (if such permits are required), if any, and (ii) either (A) in the case of Hazardous Materials, in amounts not in excess of that necessary to operate the Property for the purposes set forth herein or (B) fully disclosed to and approved by Lender in writing pursuant to an Environmental Report; (b) there are no past, present or threatened Releases of Hazardous Materials m violation of any

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Environmental Law or which would require remediation by a Governmental Authority in, on, under or from the Property except as described in the Environmental Report; (c) there is no threat of any Release of Hazardous Materials migrating to the Property except as described in the Environmental Report; (d) there is no past or present non-compliance with Environmental Laws, or with permits issued pursuant thereto, in connection with the Property except as described in the Environmental Report; (e) Borrower does not know of, and has not received, any written or oral notice or other communication from any Person relating to Hazardous Materials in, on, under or from the Property; (f) the Property is free of Mold; and (g) Borrower has truthfully and fully provided to Lender, in writing, any and all information relating to environmental conditions in, on, under or from the Property known to Borrower or contained in Borrower’s files and records, including but not limited to any reports relating to Hazardous Materials in, on, under or migrating to or from the Property and/or to the environmental condition of or the presence of Mold at the Property.

Section 12.2.     Environmental Covenants

Borrower covenants and agrees that so long as Borrower owns, manages and is in possession of the operation of the Property: (a) all uses and operations on or of the Property, whether by Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto; (b) there shall be no Releases of Hazardous Materials in, on, under or from the Property; (c) there shall be no Hazardous Materials in, on, or under the Property, except those that are both (i) in compliance with all Environmental Laws and with permits issued pursuant thereto, if and to the extent required, and (ii) (A) in amounts not in excess of that necessary to operate the Property for the purposes set forth herein or (B) fully disclosed to and approved by Lender in writing or (C) with respect to Mold, not in a condition, location, or of a type which may pose a risk to human health or safely or the environment or which may result in damage to or would adversely affect or impair the value or marketability of the Property; (d) Borrower shall keep the Property free and clear of all Environmental Liens; (e) Borrower shall, at its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to Section 12.4 below, including but not limited to providing all relevant information and making knowledgeable persons available for interviews; (f) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender, upon Lender’s reasonable belief that the Property is not in full compliance with all Environmental Laws, and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (g) Borrower shall keep the Property free of Mold; and (h) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender to (i) reasonably effectuate remediation of any Hazardous Materials in, on, under or from the Property; and (ii) comply with any Environmental Law; (i) Borrower shall not allow any tenant or other user of the Property to violate any Environmental Law; and (j) Borrower shall immediately notify Lender in writing after it has become aware of (A) any presence or Release or threatened Release of Hazardous Materials in, on, under, from or migrating towards the Property; (B) any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien against the Property; (D) any required or proposed remediation of environmental conditions relating to the Property; and (E) any written or oral notice or other communication of which Borrower becomes aware from any source whatsoever (including but

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not limited to a Governmental Authority) relating in any way to Hazardous Materials. Any failure of Borrower to perform its obligations pursuant to this Section 12.2 shall constitute bad faith waste with respect to the Property.

Section 12.3.     Lender’s Rights

Lender and any other Person designated by Lender, including but not limited to any representative of a Governmental Authority, and any environmental consultant, and any receiver appointed by any court of competent jurisdiction, shall have the right, but not the obligation, to enter upon the Property at all reasonable times to assess any and all aspects of the environmental condition of the Property and its use, including but not limited to conducting any environmental assessment or audit (the scope of which shall be determined in Lender’s sole discretion) and taking samples of soil, groundwater or other water, air, or building materials, and conducting other invasive testing. Borrower shall cooperate with and provide access to Lender and any such person or entity designated by Lender.

Section 12.4.     Operations and Maintenance Programs

If recommended by the Environmental Report or any other environmental assessment or audit of the Property, Borrower shall establish and comply with an operations and maintenance program with respect to the Property, in form and substance reasonably acceptable to Lender, prepared by an environmental consultant reasonably acceptable to Lender, which program shall address any asbestos-containing material or lead based paint that may now or in the future be detected at or on the Property. Without limiting the generality of the preceding sentence, Lender may require (a) periodic notices or reports to Lender in form, substance and at such intervals as Lender may specify, (b) an amendment to such operations and maintenance program to address changing circumstances, laws or other matters, (c) at Borrower’s sole expense, supplemental examination of the Property by consultants specified by Lender, (d) access to the Property by Lender, its agents or servicer, to review and assess the environmental condition of the Property and Borrower’s compliance with any operations and maintenance program, and (e) variation of the operations and maintenance program in response to the reports provided by any such consultants.

Section 12.5.     Environmental Definitions

“Environmental Law” means any present and future federal, state and local laws, statutes, ordinances, rules, regulations, standards, policies and other government directives or requirements, as well as common law, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act and the Resource Conservation and Recovery Act, that apply to Borrower or the Property and relate to Hazardous Materials or protection of human health or the environment. “Environmental Liens” means all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of Borrower or any other Person. “Environmental Report” means the written reports resulting from the environmental site assessments of the Property delivered to Lender in connection with the Loan. “Hazardous Materials” shall mean petroleum and petroleum products and compounds containing them, including gasoline, diesel fuel and oil; explosives, flammable materials; radioactive materials; polychlorinated biphenyls and compounds

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containing them; lead and lead-based paint; asbestos or asbestos-containing materials in any form that is or could become friable; underground or above-ground storage tanks, whether empty or containing any substance; any substance the presence of which on the Property is prohibited by any federal, state or local authority; any substance that requires special handling; and any other material or substance now or in the future defined as a “hazardous substance,” “hazardous material”, “hazardous waste”, “toxic substance”, “toxic pollutant”, “contaminant”, or “pollutant” within the meaning of any Environmental Law. “Mold” shall mean any mold, fungi, bacterial or microbial matter present at or in the Property, including, without limitation, building materials which is in a condition, location or a type which may pose a risk to human health or safety or the environment, may result in damage to or would adversely affect or impair the value or marketability of the Property, “Release” of any Hazardous Materials includes but is not limited to any release, deposit, discharge, emission, leaking, spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Materials.

ARTICLE 13
SECONDARY MARKET

Section 13.1.     Transfer of Loan

Lender may, at any time, sell, transfer or assign the Loan Documents, or grant participations therein (“Participations”)or syndicate the Loan (“Syndication”)or issue mortgage pass-through certificates or other securities evidencing a beneficial interest in a rated or unrated public offering or private placement (“Securities”) (a Syndication or the issuance of Participations and/or Securities, a “Securitization”).

Section 13.2.     Delegation of Servicing

At the option of Lender, the Loan may be serviced by aservicer/trustee selected by Lender and Lender may delegate all or any portion of its responsibilities under this Agreement and the other Loan Documents to such servicer/trustee pursuant to a servicing agreement between Lender and such servicer/trustee.

Section 13.3.     Dissemination of Information

Lender may forward to each purchaser, transferee, assignee, or servicer of, and each participant, or investor in, the Loan, or any Participations and/or Securities or any of their respective successors (collectively, the “Investor”)or any Rating Agency rating the Loan, or any Participations and/or Securities, each prospective Investor, and any organization maintaining databases on the underwriting and performance of commercial mortgage loans, all documents and information which Lender now has or may hereafter acquire relating to the Debt and to Borrower, any managing member or general partner thereof, Borrower Principal, and the Property, including financial statements, whether furnished by Borrower or otherwise, as Lender determines necessary or desirable. Borrower irrevocably waives any and all rights it may have under applicable Legal Requirements to prohibit such disclosure, including but not limited to any right of privacy.

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Section 13.4.     Cooperation

Borrower and Borrower Principal agree to cooperate with Lender in connection with any sale or transfer of the Loan or any Participation and/or Securities created pursuant to this Article 13, including, without limitation, (a) the delivery of an estoppel certificate required in accordance with Section 5.12(a) and such other documents as may be reasonably requested by Lender, (b) the execution of such amendments to the Loan Documents as may be requested by the holder of the Note or the Rating Agencies or otherwise to effect the Securitization including, without limitation, bifurcation of the Loan into two or more components and/or separate notes; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, except in connection with a bifurcation of the Loan which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average coupon of the original Note, or (ii) in the reasonable judgment of Borrower, modify or amend any other material economic term of the Loan, or (iii) in the reasonable judgment of Borrower, materially increase Borrower’s obligations and liabilities under the Loan Documents, and (c) make changes to the organizational documents of Borrower and its principals and/or use its best efforts to cause changes to the legal opinions delivered by Borrower in connection with the Loan, provided, that such changes shall not result in a material adverse economic effect to Borrower. Borrower shall also furnish and Borrower and Borrower Principal consent to Lender furnishing to such Investors or such prospective Investors or such Rating Agency any and all information concerning the Property, the American Express Lease, the financial condition of Borrower or Borrower Principal as may be requested by Lender, any Investor, any prospective Investor or any Rating Agency in connection with any sale or transfer of the Loan or any Participations or Securities. Neither Borrower nor Borrower Principal shall be responsible for any costs incurred by Lender in connection with a Securitization.

ARTICLE 14
INDEMNIFICATIONS

Section 14.1.     General Indemnification

Borrower shall indemnify, defend and hold harmless the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising out of or in any way relating to any one or more of the following: (a) any accident, injury to or death of persons or loss of or damage to property occurring in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (b) any use, nonuse or condition in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (c) performance of any labor or services or the furnishing of any materials or other property in respect of the Property or any part thereof; (d) any failure of the Property to be in compliance with any applicable Legal Requirements; (c) any and all claims and demands whatsoever which may be asserted against Lender by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants, or agreements contained in any Lease; (f) the holding or investing of the Reserve Accounts, or (g) the payment of any commission, charge or brokerage fee to anyone which may be payable in connection with the funding of the Loan (collectively, the “Indemnified Liabilities”); provided, however, that Borrower shall not have any obligation to Lender hereunder to the extent that such indemnified Liabilities arise from the gross negligence, illegal

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acts, fraud or willful misconduct of Lender. To the extent that the undertaking to indemnify, defend and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, Borrower shall pay the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Lender.

Section 14.2.     Mortgage and Intangible Tax Indemnification

Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising out of or in any way relating to any tax on the making and/or recording of the Mortgage, the Note or any of the other Loan Documents, but excluding any income, franchise or other similar taxes.

Section 14.3.     ERISA Indemnification

Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses (including, without limitation, reasonable attorneys’ fees and costs incurred in the investigation, defense, and settlement of Losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Lender’s sole discretion) that Lender may incur, directly or indirectly, as a result of a default under Section 4.9 or Section 5.18 of this Agreement.

Section 14.4.     Survival

The obligations and liabilities of Borrower and Borrower Principal under this Article 14 shall fully survive indefinitely notwithstanding any termination, satisfaction, assignment, entry of a judgment of foreclosure, exercise of any power of sale, or delivery of a deed in lieu of foreclosure of the Mortgage.

ARTICLE 15
EXCULPATION

Section 15.1.     Exculpation

(a)Except as otherwise provided herein or in the other Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to perform and observe the obligations contained herein or in the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or Borrower Principal, except that Lender may bring a foreclosure action, action for specific performance or other appropriate action or proceeding to enable Lender to enforce and realize upon this Agreement, the Note, the Mortgage and the other Loan Documents, and the interest in the Property, the Rents (following an Event of Default) and any other collateral given to Lender created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower or Borrower Principal, as applicable, only to the extent of Borrower’s or Borrower Principal’s interest in the Property, in the Rents and in any other collateral given to Lender.

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Lender, by accepting this Agreement, the Note, the Mortgage and the other Loan Documents, agrees that it shall not, except as otherwise provided in this Section 15.1, sue for, seek or demand any deficiency judgment against Borrower or Borrower Principal in any such action or proceeding, under or by reason of or under or in connection with this Agreement, the Note, the Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note, the Mortgage or the other Loan Documents; (ii) impair the right of Lender to name Borrower or Borrower Principal as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Mortgage; (iii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Section 12.6 and Article 14 of this Agreement), environmental indemnity, guaranty, master lease or similar instrument made in connection with this Agreement, the Note, the Mortgage and the other Loan Documents; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of the assignment leases provisions contained in the Mortgage; or (vi) impair the right of Lender to obtain a deficiency judgment or other judgment on the Note against Borrower or Borrower Principal if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided however, Lender shall only enforce such judgment to the extent of the Insurance Proceeds and/or Awards.

(b)Notwithstanding the provisions of this Section 15.1 to the contrary, Borrower and Borrower Principal shall be personally liable to Lender on a joint and several basis for Losses due to:

(i)fraud or intentional misrepresentation by Borrower, Borrower Principal or any other Affiliate of Borrower or Borrower Principal in connection with the execution and the delivery of this Agreement, the Note, the Mortgage, any of the other Loan Documents, or any certificate, report, financial statement or other instrument or document furnished to Lender at the time of the closing of the Loan or during the term of the Loan;

(ii)Borrower’s misapplication or misappropriation of Rents received by Borrower after the occurrence of an Event of Default;

(iii)Borrower’s misapplication or misappropriation of tenant security deposits or Rents collected in advance;

(iv)the misapplication or the misappropriation of Insurance Proceeds or Awards;

(v)Borrower’s failure to pay Taxes, Other Charges (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms hereof and there exists no impediment to Lender’s utilization thereof), charges for labor or materials or other charges that can create liens on the Property beyond any applicable notice and cure periods specified herein;

(vi)Borrower’s failure to return or to reimburse Lender for all Personal Property taken from the Property by or on behalf of Borrower and not replaced with Personal Property of the same utility and of the same or greater value;

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(vii)any act of actual waste or arson by Borrower, any principal, Affiliate, member or general partner thereof or by Borrower Principal, any principal, Affiliate, member or general partner thereof; or

(viii)Borrower’s failure following any Event of Default to deliver to Lender upon demand all Rents and books and records relating to the Property.

(c)Notwithstanding the Foregoing, the agreement of Lender not to pursue recourse liability as set forth in subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower and Borrower Principal on a joint and several basis in the event (i) of a breach by Borrower or Borrower Principal of any of the covenants set forth in Article 6 hereof, to the extent that such breach is (A) material and (B) is not cured within fifteen (15) days of the earlier to occur of notice from Lender or Borrower’s knowledge of such breach, (ii) of a breach of any of the covenants set forth in Article 7 hereof, (iii) the Property or any part thereof shall become an asset in a voluntary bankruptcy or insolvency proceeding of Borrower, (iv) Borrower, Borrower Principal or any Affiliate, officer, director, or representative which controls, directly or indirectly, Borrower or Borrower Principal files, or joins in the filing of, an involuntary petition against Borrower under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (v) Borrower files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; or (vi) any Affiliate, officer, director, or representative which controls Borrower consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of the Property.

(d)Nothing herein shall be deemed to be a waiver of any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provision of the U.S. Bankruptcy Code to file a claim for the full amount of the indebtedness secured by the Mortgage or to require that all collateral shall continue to secure all of the indebtedness owing to Lender in accordance with this Agreement, the Note, the Mortgage or the other Loan Documents.

ARTICLE 16
NOTICES

Section 16.1.     Notices

All notices, consents, approvals and requests required or permitted hereunder or under any other Loan Document shall be given in writing and shall be effective for all purposes if hand delivered or sent by (a) certified or registered United States mail, postage prepaid, return receipt requested, (b) expedited prepaid overnight delivery service, either commercial or United States Postal Service, with proof of attempted delivery, or by (c) telecopier (with answer back acknowledged provided an additional notice is given pursuant to subsection (b) above), addressed as follows (or at such other address and Person as shall be designated from time to time by any party hereto, as the case may be, in a written notice to the other parties hereto in the manner provided for in this Section):

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If to Lender:	Bank of America, N.A.
	Capital Markets Servicing Group
	900 West Trade Street, Suite 650
	NC1-026-06-01
	Charlotte, North Carolina 28255
	Attn: Servicing Manager
	Telephone No: (866) 531-0957
If to Borrower:	Inland Western Phoenix 19th Avenue, L.L.C.
	c/o Inland Real Estate Investment Corporation
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Attention: Roberta Matlin, Vice President
	Facsimile No.: 630-218-4965
With a copy to:	The Inland Real Estate Group, Inc. 2901 Butterfield Road Oak Brook, Illinois 60523 Attention: General Counsel Facsimile No.: 630-218-4900
If to Borrower Principal:	Inland Western Retail Real Estate Trust, Inc. 2901 Butterfield Road Oak Brook, Illinois 60523 Roberta Matlin, Vice President
	Facsimile No.: 630-218-4965
With a copy to:	The Inland Real Estate Group, Inc.
	2901 Butterfield Road Oak Brook, Illinois 60523 Attention: General Counsel Facsimile No.: 630-218-4900

A notice shall be deemed to have been given: in the case of hand delivery, at the time of delivery; in the case of registered or certified mail, when delivered or the first attempted delivery on a Business Day; or in the case of expedited prepaid delivery and telecopy, upon the first attempted delivery on a Business Day.

ARTICLE 17
FURTHER ASSURANCES

Section 17.1.     Replacement Documents

Upon receipt of an affidavit of an officer of Lender as to the loss, theft, destruction or mutilation of the Note or any other Loan Document which is not of public record and, in the case of such mutilation upon surrender and cancellation of such Note or other Loan Document,

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Borrower will issue in lieu thereof a replacement Note or other Loan Document, dated the date of such lost, stolen, destroyed or mutilated Note or other Loan Document in the same principal amount thereof and otherwise of like tenor.

Section 17.2.     Recording of Mortgage, etc.

Borrower forthwith upon the execution and delivery of the Mortgage and thereafter, From time to time, will cause the Mortgage and any of the other Loan Documents creating a lien or security interest or evidencing the lien hereof upon the Property and each instrument of further assurance to be filed, registered or recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect and perfect the lien or security interest hereof upon, and the interest of Lender in, the Property. Borrower will pay all taxes, filing, registration or recording fees, and all expenses incident to the preparation, execution, acknowledgment and/or recording of the Note, the Mortgage, the other Loan Documents, any note, deed of trust or mortgage supplemental hereto, any security instrument with respect to the Property and any instrument of further assurance, and any modification or amendment of the foregoing documents, and all federal, state, county and municipal taxes, duties, imposts, assessments and charges arising out of or in connection with the execution and delivery of the Mortgage, any deed of trust or mortgage supplemental hereto, any security instrument with respect to the Property or any instrument of further assurance, and any modification or amendment of the foregoing documents, except where prohibited by law so to do.

Section 17.3.     Further Acts, Etc.

Borrower will, at the cost of Borrower (except with respect to costs incurred by Lender, for which Lender shall be responsible), do, execute, acknowledge and deliver all and every further acts, deeds, conveyances, deeds of trust, mortgages, assignments, security agreements, control agreements, notices of assignments, transfers and assurances as Lender shall, from time to time, reasonably require, for the better assuring, conveying, assigning, transferring, and confirming unto Lender the property and rights hereby mortgaged, deeded, granted, bargained, sold, conveyed, confirmed, pledged, assigned, warranted and transferred or intended now or hereafter so to be, or which Borrower may be or may hereafter become bound to convey or assign to Lender, or for carrying out the intention or facilitating the performance of the terms of this Agreement or for filing, registering or recording the Mortgage, or for complying with all Legal Requirements. Borrower, on demand, will execute and deliver, and in the event it shall fail to so execute and deliver, hereby authorizes Lender to execute in the name of Borrower or without the signature of Borrower to the extent Lender may lawfully do so, one or more financing statements and financing statement amendments to evidence more effectively, perfect and maintain the priority of the security interest of Lender in the Property. Borrower grants to Lender an irrevocable power of attorney coupled with an interest for the purpose of exercising and perfecting any and all rights and remedies available to Lender at law and in equity, including without limitation, such rights and remedies available to Lender pursuant to this Section 17.3.

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Section 17.4.     Changes in Tax, Debt, Credit and Documentary Stamp Laws

(a)If any law is enacted or adopted or amended after the date of this Agreement which deducts the Debt from the value of the Property for the purpose of taxation or which imposes a tax, either directly or indirectly, on the Debt or Lender’s interest in the Property, Borrower will pay the tax, with interest and penalties thereon, if any. If Lender is advised by counsel chosen by it that the payment of tax by Borrower would be unlawful or taxable to Lender or unenforceable or provide the basis for a defense of usury then Lender shall have the option by written notice of not less than one hundred eighty (80) days to declare the Debt immediately due and payable.

(b)Borrower will not claim or demand or be entitled to any credit or credits on account of the Debt for any part of the Taxes or Other Charges assessed against the Property, or any part thereof, and no deduction shall otherwise be made or claimed from the assessed value of the Property, or any part thereof, for real estate tax purposes by reason of the Mortgage or the Debt. If such claim, credit or deduction shall be required by law, Lender shall have the option, by written notice of not less than one hundred eighty (80) days, to declare the Debt immediately due and payable.

If at any time the United States of America, any State thereof or any subdivision of any such State shall require revenue or other stamps to be affixed to the Note, the Mortgage, or any of the other Loan Documents or impose any other tax or charge on the same, Borrower will pay for the same, with interest and penalties thereon, if any.

Section 17.5.     Expenses

Borrower covenants and agrees to pay or, if Borrower fails to pay, to reimburse, Lender upon receipt of written notice from Lender for all reasonable costs and expenses (including reasonable, actual attorneys’ fees and disbursements and the allocated costs of internal legal services and all actual disbursements of internal counsel) reasonably incurred by Lender in accordance with this Agreement in connection with (a) the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby and thereby and all the costs of furnishing all opinions by counsel for Borrower (including without limitation any opinions requested by Lender as to any legal matters arising under this Agreement or the other Loan Documents with respect to the Property); (b) Borrower’s ongoing performance of and compliance with Borrower’s respective agreements and covenants contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date, including, without limitation, confirming compliance with environmental and insurance requirements; (c) following a request by Borrower, Lender’s ongoing performance and compliance with all agreements and conditions contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date; (d) the negotiation, preparation, execution, delivery and administration of any consents, amendments, waivers or other modifications to this Agreement and the other Loan Documents and any other documents or matters requested by Lender; (e) securing Borrower’s compliance with any requests made pursuant to the provisions of this Agreement; (f) the filing and recording fees and expenses, title insurance and reasonable fees and expenses of counsel for providing to Lender all required legal opinions, and other similar expenses incurred in creating and perfecting the Lien in favor of Lender pursuant to this Agreement and the other Loan Documents; (g) enforcing or preserving any rights, in response to

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third party claims or the prosecuting or defending of any action or proceeding or other litigation, in each case against, under or affecting Borrower, this Agreement, the other Loan Documents, the Property, or any other security given for the Loan; and (h) enforcing any obligations of or collecting any payments due from Borrower under this Agreement, the other Loan Documents or with respect to the Property or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or of any insolvency or bankruptcy proceedings; provided, however, that Borrower shall not be liable for the payment of any such costs and expenses to the extent the same arise by reason of the gross negligence, illegal acts, fraud or willful misconduct of Lender.

ARTICLE 18
WAIVERS

Section 18.1.     Remedies Cumulative; Waivers

The rights, powers and remedies of Lender under this Agreement shall be cumulative and not exclusive of any other right, power or remedy which Lender may have against Borrower or Borrower Principal pursuant to this Agreement or the other Loan Documents, or existing at law or in equity or otherwise. Lender’s rights, powers and remedies may be pursued singularly, concurrently or otherwise, at such time and in such order as Lender may determine in Lender’s sole discretion. No delay or omission to exercise any remedy, right or power accruing upon an Event of Default shall impair any such remedy, right or power or shall be construed as a waiver thereof, but any such remedy, right or power may be exercised from time to time and as often as may be deemed expedient. A waiver of one Default or Event of Default with respect to Borrower shall not be construed to be a waiver of any subsequent Default or Event of Default by Borrower or to impair any remedy, right or power consequent thereon.

Section 18.2.     Modification, Waiver in Writing

No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement, or of the Note, or of any other Loan Document, nor consent to any departure by Borrower therefrom, shall in any event be effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given. Except as otherwise expressly provided herein, no notice to, or demand on Borrower, shall entitle Borrower to any other or future notice or demand in the same, similar or other circumstances.

Section 18.3.     Delay Not a Waiver

Neither any failure nor any delay on the part of Lender in insisting upon strict performance of any term, condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under the Note or under any other Loan Document, or any other instrument given as security therefore, shall operate as or constitute a waiver thereof, nor shall a single or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege. In particular, and not by way of limitation, by accepting payment after the due date of any amount payable under this Agreement, the Note or any other

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Loan Document, Lender shall not be deemed to have waived any right either to require prompt payment when due of all other amounts due under this Agreement, the Note or the other Loan Documents, or to declare a default for failure to effect prompt payment of any such other amount.

Section 18.4.     Trial by Jury

BORROWER, BORROWER PRINCIPAL AND LENDER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER, BORROWER PRINCIPAL AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF LENDER, BORROWER PRINCIPAL AND BORROWER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER, BORROWER PRINCIPAL AND LENDER.

Section 18.5.     Waiver of Notice

Borrower shall not be entitled to any notices of any nature whatsoever from Lender except with respect to matters for which this Agreement or the other Loan Documents specifically and expressly provide for the giving of notice by Lender to Borrower and except with respect, to matters for which Borrower is not, pursuant to applicable Legal Requirements, permitted to waive the giving of notice. Borrower hereby expressly waives the right to receive any notice from Lender with respect to any matter for which this Agreement or the other Loan Documents do not specifically and expressly provide for the giving of notice by Lender to Borrower.

Section 18.6.     Remedies of Borrower

In the event that a claim or adjudication is made that Lender or its agents have acted unreasonably or unreasonably delayed acting in any case where by law or under this Agreement or the other Loan Documents, Lender or such agent, as the case may be, has an obligation to act reasonably or promptly, Borrower agrees that neither Lender nor its agents shall be liable for any monetary damages, and Borrower’s sole remedies shall be limited to commencing an action seeking injunctive relief or declaratory judgment. The parties hereto agree that any action or proceeding to determine whether Lender has acted reasonably shall be determined by an action seeking declaratory judgment. Lender agrees that, in such event, it shall cooperate in expediting any action seeking injunctive relief or declaratory judgment.

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Section 18.7.     Waiver of Marshalling of Assets

To the fullest extent permitted by law, Borrower, for itself and its successors and assigns, waives all rights to a marshalling of the assets of Borrower, Borrower’s partners and others with interests in Borrower, and of the Property, and agrees not to assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce or affect the right of Lender under the Loan Documents to a sale of the Property for the collection of the Debt without any prior or different resort for collection or of the right of Lender to the payment of the Debt out of the net proceeds of the Property in preference to every other claimant whatsoever.

Section 18.8.     Waiver of Statute of Limitations

Borrower hereby expressly waives and releases, to the fullest extent permitted by law, the pleading of any statute of limitations as a defense to payment of the Debt or performance of its Other Obligations.

Section 18.9.     Waiver of Counterclaim

Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Lender or its agents.

ARTICLE 19
GOVERNING LAW

Section 19.1.     Choice of Law

This Agreement shall be deemed to be a contract entered into pursuant to the laws of the State and shall in all respects be governed, construed, applied and enforced in accordance with the laws of the State and applicable laws of the United States of America, provided, however, that with respect to the security interest in each of the Reserve Accounts, and the Cash Management Account, the laws of the state where each such account is located shall apply.

Section 19.2.     Severability

Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Section 19.3.     Preferences

Lender shall have the continuing and exclusive right to apply or reverse and reapply any and all payments by Borrower to any portion of the obligations of Borrower hereunder. To the extent Borrower makes a payment or payments to Lender, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any Creditors Rights Laws, state or federal law, common law or equitable cause, then, to the extent of such payment or

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proceeds received, the obligations hereunder or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by Lender.

ARTICLE 20
MISCELLANEOUS

Section 20.1.     Survival

This Agreement and all covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the making by Lender of the Loan and the execution and delivery to Lender, of the Note, and shall continue in full force and effect so long as all or any of the Debt is outstanding and unpaid unless a longer period is expressly set forth herein or in the other Loan Documents. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the legal representatives, successors and assigns of such party. All covenants, promises and agreements in this Agreement, by or on behalf of Borrower, shall inure to the benefit of the legal representatives, successors and assigns of Lender.

Section 20.2.     Lender’s Discretion

Whenever pursuant to this Agreement, Lender exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Lender, the decision of Lender to approve or disapprove or to decide whether arrangements or terms are satisfactory or not satisfactory shall (except as is otherwise specifically herein provided) be in the sole discretion of Lender and shall be final and conclusive.

Section 20.3.     Headings

The Article and/or Section headings and the Table of Contents in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

Section 20.4.     Cost of Enforcement

In the event (a) that the Mortgage is foreclosed in whole or in part, (b) of the bankruptcy, insolvency, rehabilitation or other similar proceeding in respect of Borrower or any of its constituent Persons or an assignment by Borrower or any of its constituent Persons for the benefit of its creditors, or (c) Lender exercises any of its other remedies under this Agreement or any of the other Loan Documents, Borrower shall be chargeable with and agrees to pay all costs of collection and defense, including attorneys’ fees and costs, incurred by Lender or Borrower in connection therewith and in connection with any appellate proceeding or post-judgment action involved therein, together with all required service or use taxes.

Section 20.5.     Schedules Incorporated

The Schedules annexed hereto are hereby incorporated herein as a part of this Agreement with the same effect as if set forth in the body hereof.

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Section 20.6.     Offsets, Counterclaims and Defenses

Any assignee of Lender’s interest in and to this Agreement, the Note and the other Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses which are unrelated to such documents which Borrower may otherwise have against any assignor of such documents, and no such unrelated counterclaim or defense shall be interposed or asserted by Borrower in any action or proceeding brought by any such assignee upon such documents and any such right to interpose or assert any such unrelated offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by Borrower.

Section 20.7.     No Joint Venture or Partnership; No Third Party Beneficiaries

(a)Borrower and Lender intend that the relationships created hereunder and under the other Loan Documents be solely that of borrower and lender. Nothing herein or therein is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower and Lender nor to grant Lender any interest in the Property other than that of mortgagee, beneficiary or lender.

(b)This Agreement and the other Loan Documents are solely for the benefit of Lender and Borrower and nothing contained in this Agreement or the other Loan Documents shall be deemed to confer upon anyone other than Lender and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or therein.  All conditions to the obligations of Lender to make the Loan hereunder are imposed solely and exclusively for the benefit of Lender and no other Person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lender will refuse to make the Loan in the absence of strict compliance with any or all thereof and no other Person shall under any circumstances be deemed to be a beneficiary of such conditions, any or all of which may be freely waived in whole or in part by Lender if, in Lender’s sole discretion, Lender deems it advisable or desirable to do so.

(c)The general partners, members, principals and (if Borrower is a trust) beneficial owners of Borrower are experienced in the ownership and operation of properties similar to the Property, and Borrower and Lender are relying solely upon such expertise and business plan in connection with the ownership and operation of the Property. Borrower is not relying on Lender’s expertise, business acumen or advice in connection with the Property.

(d)Notwithstanding anything to the contrary contained herein, Lender is not undertaking the performance of (i) any obligations under the Leases; or (ii) any obligations with respect to such agreements, contracts, certificates, instruments, franchises, permits, trademarks, licenses and other documents.

(e)By accepting or approving anything required to be observed, performed or fulfilled or to be given to Lender pursuant to this Agreement, the Mortgage, the Note or the other Loan Documents, including, without limitation, any officer’s certificate, balance sheet, statement of profit and loss or other financial statement, survey, appraisal, or insurance policy, Lender shall not be deemed to have warranted, consented to, or affirmed the sufficiency, the legality or

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effectiveness of same, and such acceptance or approval thereof shall not constitute any warranty or affirmation with respect thereto by Lender.

(f)Borrower recognizes and acknowledges that in accepting this Agreement, the Note, the Mortgage and the other Loan Documents, Lender is expressly and primarily relying on the truth and accuracy of the representations and warranties set forth in Article 4 of this Agreement without any obligation to investigate the Property and notwithstanding any investigation of the Property by Lender; that such reliance existed on the part of Lender prior to the date hereof, that the warranties and representations are a material inducement to Lender in making the Loan; and that Lender would not be willing to make the Loan and accept this Agreement, the Note, the Mortgage and the other Loan Documents in the absence of the warranties and representations as set forth in Article 4 of this Agreement.

Section 20.8.     Publicity

All news releases, publicity or advertising by Borrower or its Affiliates through any media intended to reach the general public which refers to the Loan, Lender, Banc of America Securities LLC, or any of their Affiliates shall be subject to the prior written approval of Lender, not to be unreasonably withheld. Lender shall be permitted to make any news, releases, publicity or advertising by Lender or its Affiliates through any media intended to reach the general public which refers to the Loan, the Property, Borrower, Borrower Principal and their respective Affiliates without the approval of Borrower or any such Persons. Borrower also agrees that Lender may share any information pertaining to the Loan with Bank of America Corporation, including its bank subsidiaries. Banc of America Securities LLC and any other Affiliates of the foregoing, in connection with the sale or transfer of the Loan or any Participations and/or Securities created.

Section 20.9.     Conflict; Construction of Documents; Reliance

In the event of any conflict between the provisions of this Agreement and any of the other Loan Documents, the provisions of this Agreement shall control. The parties hereto acknowledge that they were represented by competent counsel in connection with the negotiation, drafting and execution of the Loan Documents and that such Loan Documents shall not be subject to the principle of construing their meaning against the party which drafted same. Borrower acknowledges that, with respect to the Loan, Borrower shall rely solely on its own judgment and advisors in entering into the Loan without relying in any manner on any statements, representations or recommendations of Lender or any parent, subsidiary or Affiliate of Lender.  Lender shall not be subject to any limitation whatsoever in the exercise of any rights or remedies available to it under any of the Loan Documents or any other agreements or instruments which govern the Loan by virtue of the ownership by it or any parent, subsidiary or Affiliate of Lender of any equity interest any of them may acquire in Borrower, and Borrower hereby irrevocably waives the right to raise any defense or take any action on the basis of the foregoing with respect to Lender’s exercise of any such rights or remedies. Borrower acknowledges that Lender engages in the business of real estate financings and other real estate transactions and investments which may be viewed as adverse to or competitive with the business of Borrower or its Affiliates.

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Section 20.10.     Entire Agreement

This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and all prior agreements among or between such parties, whether oral or written between Borrower and Lender are superseded by the terms of this Agreement and the other Loan Documents.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written.

BORROWER:
INLAND WESTERN PHOENIX 19TH AVENUE, L.L.C., a Delaware limited liability company
By:		Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
		By:		/s/ Debra A. Palmer
		Name:				Debra A. Palmer
		Its:		Asst Sec.
BORROWER PRINCIPAL:
Acknowledged and agreed to with respect to its obligations set forth in Article 4, Section 12.6, Article 13, Article 15 and Article 18 hereof:
INLAND WESTERN RETAIL REAL ESTATE TRUST INC., a Maryland corporation, its
By:	/s/ Debra A. Palmer
	Name:				Debra A. Palmer
	Its:		Asst. Sec.

[ADDITIONAL SIGNATURE PAGE TO FOLLOW]

LENDER:
BANK OF AMERICA, N.A., a national banking association
By:	/s/ Lisa K. McGee
	Name:		Lisa K. McGee
	Title:	Vice President

EXHIBIT A

Borrower Equity Ownership Structure

EXHIBIT B

Tenant Direction Letter

EX-10.461

Exhibit 10.461

LOAN TERMS TABLE

Note Date:  December 16, 2004	MERS No.:  8000101-0000000567-7
Borrower:  INLAND WESTERN MINNEAPOLIS 3RD AVENUE, L.L.C., a Delaware limited liability company
Original Principal Amount:  $56,050,000.00	Loan No.:  58623
Initial Note Rate:  4.2675%	Servicing No.:  3190709
Revised Note Rate:  As defined in Article 2	Borrower’s TIN:  20-1908022
Monthly Payment Amount:  As defined in Article 1(a)	Optional Prepayment Date:  January 1, 2010

Lockout Period: From the date hereof through and including December 31, 2006

Maturity Date: January 1, 2015

PROMISSORY NOTE

FOR VALUE RECEIVED Borrower, having its principal place of business at 2901 Butterfield Road, Oak Brook, IL 60523, hereby unconditionally promises to pay to the order of BANK OF AMERICA, N.A., a national banking association, having an address at 214 North Tryon Street, Charlotte, North Carolina 28255 (“Lender”),the Original Principal Amount, in lawful money of the United States of America with interest thereon to be computed from the date of this Note at the Note Rate (as defined below), and to be paid in accordance with the terms set forth below. The Loan Terms Table set forth above is a part of this Note and all terms used in this Note which are defined in the Loan Terms Table shall have the meaning set forth therein. All capitalized terms not defined herein shall have the respective meanings set forth in that certain Loan Agreement dated the date hereof between Lender and Borrower (the “Loan Agreement”).

Article 1   PAYMENT TERMS; MANNER OF PAYMENT

(a)            Borrower hereby agrees to pay sums due under this Note as follows: an initial payment is due on the Closing Date for interest from the Closing Date through and including the last day of the calendar month in which the Closing Date occurs; and thereafter, except as may be adjusted in accordance with the last sentence of Section l(b), consecutive monthly installments of interest only in an amount calculated in accordance with Article 2 below (such amount, the “Monthly Payment Amount”) shall be payable pursuant to the terms hereof on the first (1st) day of each month beginning on February 1, 2005 (each such date through and including the Maturity Date, a “Scheduled Payment Date”) until the entire indebtedness evidenced hereby is fully paid, except that any remaining indebtedness, if not sooner paid, shall be due and payable on the Maturity Date. In addition to the foregoing, commencing on the Optional Prepayment Date and continuing on each Scheduled Payment Date thereafter, Borrower hereby agrees to pay all Excess Cash (as defined in the Loan Agreement) until the principal amount of this Note is paid in full, provided, however, the entire Debt, including all Accrued Interest (defined below), shall be due on the Maturity Date.

(b)           Each payment by Borrower hereunder shall be made to P.O. Box 65585, Charlotte, NC 28265-0585, or at such other place as Lender may designate from time to time in

writing. Whenever any payment hereunder shall be stated to be due on a day which is not a Business Day, such payment shall be made on the first Business Day preceding such scheduled due date. All payments made by Borrower hereunder or under the other Loan Documents shall be made irrespective of, and without any deduction for, any setoff, defense or counterclaims.

(c)            Provided no Event of Default has occurred, (i) each Monthly Payment Amount made as scheduled on this Note shall be applied first to the payment of interest computed at the Initial Note Rate, and the balance toward the reduction of the principal amount of this Note, and (ii) each payment of Excess Cash made as required on this Note shall be applied first to the reduction of the principal amount of this Note until paid in full, and the balance to Accrued Interest until paid in full. All voluntary and involuntary prepayments on this Note shall be applied, to the extent thereof, to accrued but unpaid interest on the amount prepaid, to the remaining Principal Amount, and any other sums due and unpaid to the Lender in connection with the Loan, in such manner and order as Lender may elect in its sole and absolute discretion, including, but not limited to, application to principal installments in inverse order of maturity. Following the occurrence of an Event of Default, any payment made on this Note shall be applied to accrued but unpaid interest, late charges, accrued fees, the unpaid principal amount of this Note, and any other sums due and unpaid to Lender in connection with the Loan, in such manner and order as Lender may elect in its sole and absolute discretion.

(d)           Remittances in payment of any part of the indebtedness other than in the required amount in immediately available U.S. funds shall not, regardless of any receipt or credit issued therefor, constitute payment until the required amount is actually received by the holder hereof in immediately available U.S. funds and shall be made and accepted subject to the condition that any check or draft may be handled for collection in accordance with the practices of the collecting bank or banks.

Article 2 - INTEREST

The Loan shall bear interest at a fixed rate per annum equal to the Note Rate. The “Note Rate” shall mean (a) from the date of this Note through but excluding the Optional Prepayment Date, the Initial Note Rate, and (b) from and after the Optional Prepayment Date through and including the date this Note is paid in full, the Revised Note Rate. The “Revised Note Rate” shall mean a rate per annum equal to the sum of (x) two percent (2.00%) and (y) the greater of (i) the Initial Note Rate and (ii) the sum of the Treasury Rate plus five percent (5.00%). The “Treasury Rate” shall mean the yield per annum calculated by the linear interpolation of yields, as reported in the Federal Reserve Statistical Release H.15 – Selected Interest Rates under the heading “US government securities” and the subheading “Treasury constant maturities” for the week ending prior to the Optional Prepayment Date, of U.S. Treasury constant maturities with maturity dates (one longer and one shorter) most nearly approximating the Maturity Date. In the event H.15 is no longer published, Lender in its reasonable discretion shall select a comparable publication to determine the Treasury Rate. From and after the Optional Prepayment Date, interest in excess of the Initial Note Rate shall accrue and be added to the Debt and shall earn interest at the Revised Note Rate to the extent permitted by applicable law (“Accrued Interest”). Interest shall be computed on the basis of a three hundred sixty (360) day year consisting of twelve (12) months of thirty (30) days each. Except as otherwise set forth herein or in the other Loan Documents, interest shall be paid in arrears.

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Article 3 - DEFAULT AND ACCELERATION

The Debt shall without notice become immediately due and payable at the option of Lender if any payment required in this Note is not paid prior to the tenth (10^th) day following the date when due or if not paid on the Maturity Date or on the happening of any other Event of Default.

Article 4 - PAYMENTS AFTER DEFAULT

Upon the occurrence and during the continuance of an Event of Default, interest on the outstanding principal balance of the Loan and, to the extent permitted by law, overdue interest and other amounts due in respect of the Loan shall accrue at a rate per annum equal to the lesser of (a) the maximum rate permitted by applicable law, or (b) four percent (4%) above the Note Rate (such rate, the “Default Rate”). Interest at the Default Rate shall be computed from the occurrence of the Event of Default until the earlier of (i) the actual receipt and collection of the Debt (or that portion thereof that is then due) and (ii) the cure of such Event of Default. To the extent permitted by applicable law, interest at the Default Rate shall be added to the Debt, shall itself accrue interest at the same rate as the Loan and shall be secured by the Security Instrument. This Article shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of the occurrence of any Event of Default; the acceptance of any payment from Borrower shall not be deemed to cure or constitute a waiver of any Event of Default; and Lender retains its rights under this Note, the Loan Agreement and the other Loan Documents to accelerate and to continue to demand payment of the Debt upon the happening of and during the continuance any Event of Default, despite any payment by Borrower to Lender.

Article 5 - PREPAYMENT

Except as otherwise expressly permitted by this Article 5, no voluntary prepayments, whether in whole or in part, of the Loan or any other amount at any time due and owing under this Note can be made by Borrower or any other Person without the express written consent of Lender.

(a)            Lockout Period. Borrower shall have no right to make, and Lender shall have no obligation to accept, any voluntary prepayment, whether in whole or in part, of the Loan, or any other amount under this Note or the other Loan Documents, at any time during the Lockout Period. At any time following the expiration of the Lockout Period, the principal balance of this Note may be voluntarily prepaid in whole, but not in part, upon the satisfaction of the following conditions:

(i)            no Default shall exist under any of the Loan Documents;

(ii)           not less than sixty (60) (but not more than ninety (90)) days prior written notice shall be given to Lender specifying a date on which the prepayment shall occur such date being a Scheduled Payment Date (the “Prepayment Date”);

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(iii)          Borrower has paid to Lender all accrued and unpaid interest on the Loan through and including the Prepayment Date together with all other sums due under this Note and the other Loan Documents; and

(iv)          Borrower has paid to Lender a prepayment premium in an amount equal to Yield Maintenance (as defined and calculated in accordance with Section 5(b) below); provided, however, that in the event of a voluntary prepayment made by Borrower within sixty (60) days of the Optional Prepayment Date, there shall be no prepayment premium required to be paid by Borrower.

(b)            Involuntary Prepayment. In the event of any involuntary prepayment of the Loan or any other amount under this Note, whether in whole or in part, in connection with or following Lender’s acceleration of this Note or otherwise, and whether the Security Instrument is satisfied or released by foreclosure (whether by power of sale or judicial proceeding), deed in lieu of foreclosure or by any other means, including, without limitation, repayment of the Loan by Borrower or any other Person pursuant to any statutory or common law right of redemption, Borrower shall pay any portion of the principal balance of the Loan prepaid (together with all interest accrued and unpaid thereon and, in the event the prepayment is made on a date other than a Scheduled Payment Date, a sum equal to the amount of interest which would have accrued under this Note on the amount of such prepayment if such prepayment had occurred on the next Scheduled Payment Date).

As used herein, “Yield Maintenance” means a prepayment premium in an amount equal to the greater of equal to the greater of (i) 1% of the portion of the Loan being prepaid, and (ii) the present value as of the Prepayment Calculation Date of a series of monthly payments over the remaining term of the Loan through and including the Optional Prepayment Date each equal to the amount of interest which would be due on the portion of the Loan being prepaid assuming a per annum interest rate equal to the excess of the Note Rate over the Reinvestment Yield, and discounted at the Reinvestment Yield. As used herein, “Reinvestment Yield” means the yield calculated by the linear interpolation of the yields, as reported in the Federal Reserve Statistical Release H.15-Selected Interest Rates under the heading “U.S. government securities” and the sub-heading “Treasury constant maturities” for the week ending prior to the Prepayment Calculation Date, of the U.S. Treasury constant maturities with maturity dates (one longer and one equal to or shorter) most nearly approximating the Optional Prepayment Date, and converted to a monthly compounded nominal yield. In the event Release H.15 is no longer published, Lender shall select a comparable publication to determine the Reinvestment Yield. The “Prepayment Calculation Date” shall mean, as applicable, the date on which (i) Lender applies any prepayment to the reduction of the outstanding principal amount of this Note, (ii) Lender accelerates the Loan, in the case of a prepayment resulting from acceleration, or (iii) Lender applies funds held under any Reserve Account, in the case of a prepayment resulting from such an application (other than in connection with acceleration of the Loan).

(c)            Insurance Proceeds and Awards; Excess Interest. Notwithstanding any other provision herein to the contrary, and provided no Default exists, Borrower shall not be required to pay any prepayment premium in connection with any prepayment occurring solely as a result of (i) the application of Insurance Proceeds or Awards pursuant to the terms of the Loan

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Documents, or (ii) the application of any interest in excess of the maximum rate permitted by applicable law to the reduction of the Loan.

(d)            Open Prepayment Period. Borrower may voluntarily prepay (without premium) this Note on a Scheduled Payment Date (i) in whole (but not in part) during the sixty (60) days prior to the Optional Prepayment Date, and (ii) in whole or in part from the Optional Prepayment Date through and including the date this Note is paid in full, in each case, upon giving Lender at least sixty (60) days (but not more than ninety (90) days) prior written notice. Lender shall accept a prepayment pursuant to this Section 5(d) on a day other than a Scheduled Payment Date provided that, in addition to payment of the full outstanding principal balance of this Note, Borrower pays to Lender a sum equal to the amount of interest which would have accrued on this Note if such prepayment occurred on the next Scheduled Payment Date.

(e)            Limitation on Partial Prepayments. In no event shall Lender have any obligation to accept a partial prepayment.

Article 6 - SECURITY

This Note is secured by the Security Instrument and the other Loan Documents. All of the terms, covenants and conditions contained in the Loan Agreement, the Security Instrument and the other Loan Documents are hereby made part of this Note to the same extent and with the same force as if they were fully set forth herein.

Article 7 - USURY SAVINGS

This Note is subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the principal balance of the Loan at a rate which could subject Lender to either civil or criminal liability as a result of being in excess of the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by this Note and as provided for herein or in the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan (such rate, the “Maximum Legal Rate”). If, by the terms of this Note or the other Loan Documents, Borrower is at any time required or obligated to pay interest on the principal balance due hereunder at a rate in excess of the Maximum Legal Rate, the Note Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced to the Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. All sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the sums due under the Loan, shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the Loan does not exceed the Maximum Legal Rate of interest from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.

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Article 8 - LATE PAYMENT CHARGE

If any principal or interest payment is not paid by Borrower before the tenth (10th) day after the date the same is due (or such greater period, if any, required by applicable law), Borrower shall pay to Lender upon demand an amount equal to the lesser of four percent (4%) of such unpaid sum or the maximum amount permitted by applicable law in order to defray the expense incurred by Lender in handling and processing such delinquent payment and to compensate Lender for the loss of the use of such delinquent payment, provided however, Borrower shall not be required to pay Lender a late charge in connection with the final payment under the loan. Any such amount shall be secured by the Security Instrument and the other Loan Documents to the extent permitted by applicable law.

Article 9 - NO ORAL CHANGE

This Note may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Borrower or Lender, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.

Article 10 - WAIVERS

BORROWER AND ALL OTHERS WHO MAY BECOME LIABLE FOR THE PAYMENT OF ALL OR ANY PART OF THE DEBT DO HEREBY SEVERALLY WAIVE PRESENTMENT AND DEMAND FOR PAYMENT, NOTICE OF DISHONOR, NOTICE OF INTENTION TO ACCELERATE, NOTICE OF ACCELERATION, PROTEST AND NOTICE OF PROTEST AND NON-PAYMENT AND ALL OTHER NOTICES OF ANY KIND EXCEPT AS PROVIDED IN THE LOAN AGREEMENT. NO RELEASE OF ANY SECURITY FOR THE DEBT OR EXTENSION OF TIME FOR PAYMENT OF THIS NOTE OR ANY INSTALLMENT HEREOF, AND NO ALTERATION, AMENDMENT OR WAIVER OF ANY PROVISION OF THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS MADE BY AGREEMENT BETWEEN LENDER OR ANY OTHER PERSON SHALL RELEASE, MODIFY, AMEND, WAIVE, EXTEND, CHANGE, DISCHARGE, TERMINATE OR AFFECT THE LIABILITY OF BORROWER, AND ANY OTHER PERSON WHO MAY BECOME LIABLE FOR THE PAYMENT OF ALL OR ANY PART OF THE DEBT, UNDER THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS. NO NOTICE TO OR DEMAND ON BORROWER SHALL BE DEEMED TO BE A WAIVER OF THE OBLIGATION OF BORROWER OR OF THE RIGHT OF LENDER TO TAKE FURTHER ACTION WITHOUT FURTHER NOTICE OR DEMAND AS PROVIDED FOR IN THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS. IF BORROWER IS A LIMITED LIABILITY COMPANY, THE AGREEMENTS HEREIN CONTAINED SHALL REMAIN IN FORCE AND BE APPLICABLE, NOTWITHSTANDING ANY CHANGES IN THE INDIVIDUALS COMPRISING THE LIMITED LIABILITY COMPANY, AND THE TERM “BORROWER,” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATE OR SUCCESSOR LIMITED LIABILITY COMPANY, BUT ANY PREDECESSOR LIMITED LIABILITY COMPANY AND ITS MEMBERS SHALL NOT THEREBY BE RELEASED FROM ANY LIABILITY. IF BORROWER IS A PARTNERSHIP, THE AGREEMENTS HEREIN CONTAINED SHALL REMAIN IN FORCE AND BE

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APPLICABLE, NOTWITHSTANDING ANY CHANGES IN THE INDIVIDUALS COMPRISING THE PARTNERSHIP, AND THE TERM “BORROWER,” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATE OR SUCCESSOR PARTNERSHIP, BUT ANY PREDECESSOR PARTNERSHIP AND THEIR PARTNERS SHALL NOT THEREBY BE RELEASED FROM ANY LIABILITY. IF BORROWER IS A CORPORATION, THE AGREEMENTS CONTAINED HEREIN SHALL REMAIN IN FULL FORCE AND BE APPLICABLE NOTWITHSTANDING ANY CHANGES IN THE SHAREHOLDERS COMPRISING, OR THE OFFICERS AND DIRECTORS RELATING TO, THE CORPORATION, AND THE TERM “BORROWER” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATIVE OR SUCCESSOR CORPORATION, BUT ANY PREDECESSOR CORPORATION SHALL NOT BE RELIEVED OF LIABILITY HEREUNDER. (NOTHING IN THE FOREGOING SENTENCE SHALL BE CONSTRUED AS A CONSENT TO, OR A WAIVER OF, ANY PROHIBITION OR RESTRICTION ON TRANSFERS OF INTERESTS IN SUCH BORROWING ENTITY WHICH MAY BE SET FORTH IN THE LOAN AGREEMENT, THE MORTGAGE OR ANY OTHER LOAN DOCUMENTS.) IF BORROWER CONSISTS OF MORE THAN ONE PERSON OR PARTY, THE OBLIGATIONS AND LIABILITIES OF EACH PERSON OR PARTY SHALL BE JOINT AND SEVERAL.

Article 11 - TRIAL BY JURY

BORROWER AND LENDER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS NOTE, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF LENDER AND BORROWER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER AND LENDER.

Article 12 - TRANSFER

Upon the transfer of this Note, Borrower hereby waiving notice of any such transfer, Lender may deliver all the collateral mortgaged, granted, pledged or assigned pursuant to the Loan Documents, or any part thereof, to the transferee who shall thereupon become vested with all the rights herein or under applicable law given to Lender with respect thereto, and Lender shall thereafter forever be relieved and fully discharged from any liability or responsibility in the matter arising from events thereafter occurring; but Lender shall retain all rights hereby given to it with respect to any liabilities and the collateral not so transferred.

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Article 13 - EXCULPATION

The provisions of Article 15 of the Loan Agreement are hereby incorporated by reference into this Note to the same extent and with the same force as if fully set forth herein.

Article 14 - GOVERNING LAW

This Note shall in all respects be governed, construed, applied and enforced in accordance with the laws of the state in which the Property is located and any applicable federal laws of the United States of America.

Article 15 - NOTICES

All notices or other written communications hereunder shall be delivered in accordance with Article 16 of the Loan Agreement.

Article 16 - TAXPAYER IDENTIFICATION NUMBER

This Note provides for the Borrower’s federal taxpayer identification number to be inserted in the Loan Terms Table on the first page of this Note. If such number is not available at the time of execution of this Note or is not inserted by the Borrower, the Borrower hereby authorizes and directs the Lender to fill in such number on the first page of this Note when the Borrower provides to Lender, advises the Lender of, or the Lender otherwise obtains, such number.

Article 17 - ATTORNEYS’ FEES

Any provisions in this Note or elsewhere in the Loan Documents providing for the payment of “attorneys’ fees,” “reasonable attorneys’ fees” or words of similar import, shall mean actual attorneys’ fees and paralegal fees incurred based upon the usual and customary fees or hourly rates of the attorneys and paralegals involved without giving effect to any statutory presumption that may then be in effect.

[NO FURTHER TEXT ON THIS PAGE]

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IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and year first above written.

INLAND WESTERN MINNEAPOLIS 3RD
AVENUE, L.L.C., a Delaware limited liability
company
By:	Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
	By:	/s/ Debra A. Palmer
	Name:		Debra A. Palmer
	Its:	Asst. Sec.

EX-10.462

Exhibit 10.462

LOAN AGREEMENT

Dated as of December 16, 2004

Between

INLAND WESTERN MINNEAPOLIS 3^RD AVENUE, L.L.C.,

as Borrower

and

BANK OF AMERICA, N.A.,

as Lender

TABLE OF CONTENTS

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SECTION 5.8. COOPERATE IN LEGAL PROCEEDINGS

SECTION 5.9. PERFORMANCE BY BORROWER

SECTION 5.10. AWARDS; INSURANCE PROCEEDS

SECTION 5.11. FINANCIAL REPORTING

SECTION 5.12. ESTOPPEL STATEMENT

SECTION 5.13. LEASING MATTERS

SECTION 5.14. PROPERTY MANAGEMENT

SECTION 5.15. LIENS

SECTION 5.16. DEBT CANCELLATION

SECTION 5.17. ZONING

SECTION 5.18. ERISA

SECTION 5.19. NO JOINT ASSESSMENT

SECTION 5.20. RECIPROCAL EASEMENT AGREEMENTS

ARTICLE 6 ENTITY COVENANTS

SECTION 6.1. SINGLE PURPOSE ENTITY/SEPARATENESS

SECTION 6.2. CHANGE OF NAME, IDENTITY OR STRUCTURE

SECTION 6.3. BUSINESS AND OPERATIONS

SECTION 6.4. INDEPENDENT DIRECTOR

ARTICLE 7 NO SALE OR ENCUMBRANCE

SECTION 7.1. TRANSFER DEFINITIONS

SECTION 7.2. NO SALE/ENCUMBRANCE

SECTION 7.3. PERMITTED TRANSFERS

SECTION 7.4. LENDER’S RIGHTS

SECTION 7.5. ASSUMPTION

SECTION 7.6. ASSUMPTION BY INLAND PERMITTED TRANSFEREE

ARTICLE 8 INSURANCE; CASUALTY; CONDEMNATION; RESTORATION

SECTION 8.1. INSURANCE

SECTION 8.2. CASUALTY

SECTION 8.3. CONDEMNATION

SECTION 8.4. RESTORATION

ARTICLE 9 REPLACEMENTS; RESERVE FUNDS

SECTION 9.1. REPLACEMENTS

SECTION 9.2. TAX AND INSURANCE RESERVE FUNDS

SECTION 9.3. RESERVE FUNDS GENERALLY

ARTICLE 10 CASH MANAGEMENT

SECTION 10.1. CASH MANAGEMENT ACCOUNT

SECTION 10.2. DEPOSITS AND WITHDRAWALS

SECTION 10.3. SECURITY INTEREST

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ARTICLE 11 EVENTS OF DEFAULT; REMEDIES

SECTION 11.1. EVENT OF DEFAULT

SECTION 11.2. REMEDIES

ARTICLE 12 ENVIRONMENTAL PROVISIONS

SECTION 12.1. ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES

SECTION 12.2. ENVIRONMENTAL COVENANTS

SECTION 12.3. LENDER’S RIGHTS

SECTION 12.4. OPERATIONS AND MAINTENANCE PROGRAMS

SECTION 12.5. ENVIRONMENTAL DEFINITIONS

ARTICLE 13 SECONDARY MARKET

SECTION 13.1. TRANSFER OF LOAN

SECTION 13.2. DELEGATION OF SERVICING

SECTION 13.3. DISSEMINATION OF INFORMATION

SECTION 13.4. COOPERATION

ARTICLE 14 INDEMNIFICATIONS

SECTION 14.1. GENERAL INDEMNIFICATION

SECTION 14.2. MORTGAGE AND INTANGIBLE TAX INDEMNIFICATION

SECTION 14.3. ERISA INDEMNIFICATION

SECTION 14.4. SURVIVAL

ARTICLE 15 EXCULPATION

SECTION 15.1. EXCULPATION

ARTICLE 16 NOTICES

SECTION 16.1. NOTICES

ARTICLE 17 FURTHER ASSURANCES

SECTION 17.1. REPLACEMENT DOCUMENTS

SECTION 17.2. RECORDING OF MORTGAGE, ETC.

SECTION 17.3. FURTHER ACTS, ETC.

SECTION 17.4. CHANGES IN TAX, DEBT, CREDIT AND DOCUMENTARY STAMP LAWS

SECTION 17.5. EXPENSES

ARTICLE 18 WAIVERS

SECTION 18.1. REMEDIES CUMULATIVE; WAIVERS

SECTION 18.2. MODIFICATION, WAIVER IN WRITING

SECTION 18.3. DELAY NOT A WAIVER

SECTION 18.4. TRIAL BY JURY

SECTION 18.5. WAIVER OF NOTICE

SECTION 18.6. REMEDIES OF BORROWER

SECTION 18.7. WAIVER OK MARSHALLING OF ASSETS

SECTION 18.8. WAIVER OF STATUTE OF LIMITATIONS

SECTION 18.9. WAIVER OF COUNTERCLAIM

ARTICLE 19 GOVERNING LAW

SECTION 19.1. CHOICE OF LAW

SECTION 19.2. SEVERABILITY

SECTION 19.3. PREFERENCES

ARTICLE 20 MISCELLANEOUS

SECTION 20.1. SURVIVAL

SECTION 20.2. LENDER’S DISCRETION

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SECTION 20.3. HEADINGS

SECTION 20.4. COST OF ENFORCEMENT

SECTION 20.5. SCHEDULES INCORPORATED

SECTION 20.6. OFFSETS, COUNTERCLAIMS AND DEFENSES

SECTION 20.7. NO JOINT VENTURE OR PARTNERSHIP; NO THIRD PARTY BENEFICIARIES

SECTION 20.8. PUBLICITY

SECTION 20.9. CONFLICT; CONSTRUCTION OF DOCUMENTS; RELIANCE

SECTION 20.10. ENTIRE AGREEMENT

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LOAN AGREEMENT

THIS LOAN AGREEMENT, dated as of December 16, 2004 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”),between BANK OF AMERICA, N.A., a national banking association, having an address at Bank of America Corporate Center, 214 North Tryon Street, Charlotte, North Carolina 28255 (together with its successors and/or assigns, “Lender”)and INLAND WESTERN MINNEAPOLIS 3^RD AVENUE, L.L.C., a Delaware limited liability company having an address at c/o Inland Real Estate Investment Corporation, 2901 Butterfield Road, Oak Brook, Illinois 60523 (together with its successors and/or assigns, “Borrower”).

RECITALS:

Borrower desires to obtain the Loan (defined below) from Lender.

Lender is willing to make the Loan to Borrower, subject to and in accordance with the terms of this Agreement and the other Loan Documents (defined below).

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

ARTICLE 1
DEFINITIONS; PRINCIPLES OF CONSTRUCTION

Section 1.1.           Definitions

For all purposes of this Agreement, except as otherwise expressly required or unless the context clearly indicates a contrary intent:

“Account Collateral” shall mean (i) the Accounts, and all cash, checks, drafts, certificates and instruments, if any, from time to time deposited or held in the Accounts; (ii) any and all amounts in or credited to the Accounts invested in Permitted Investments; (iii) all interest, dividends, cash, instruments and other property from time to time received, receivable orotherwise payable in respect of, or in exchange for, any or all of the foregoing; and (iv) to the extent not covered by clauses (i) - (iii) above, all “proceeds” (as defined under the UCC as in effect in the State in which the Accounts are located) of any or all of the foregoing.

“Accounts” shall mean the Cash Management Account, the Tax and Insurance Reserve Accounts, if any, and any other account or sub-account established by this Agreement, the Mortgage, or the other Loan Documents.

“Accredited Investor” shall have the meaning set forth in the regulations promulgated by the Securities and Exchange Commission.

“Act” shall have the meaning set forth in Section 6.1(c).

“Affiliate” shall mean, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person or is a director or officer of such Person or of an Affiliate of such Person.

“Affiliated Loans” shall mean a loan made by Lender to a parent, subsidiary or such other entity affiliated with Borrower or Borrower Principal.

“Affiliated Manager” shall have the meaning set forth in Section 7.1 hereof.

“ALTA” shall mean American Land Title Association, or any successor thereto.

“American Express” shall mean American Express Travel Related Services Company, Inc., a New York corporation.

“American Express Lease” shall mean that certain Lease Agreement dated as of December 16, 2004 between Borrower, as landlord, and American Express, as tenant, with respect to the Property.

“American Express Lease Default” shall mean (i) a default, after the expiration of any applicable notice or cure periods, under the American Express Lease or (ii) the cancellation, termination or surrender of the American Express Lease.

“Assignment of Management Agreement” shall mean that certain Assignment and Subordination of Management Agreement dated the date hereof among Lender, Borrower and Manager, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Award” shall mean any compensation paid by any Governmental Authority in connection with a Condemnation in respect of all or any part of the Property.

“Borrower Principal” shall mean Inland Western Retail Real Estate Trust, Inc., a Maryland corporation.

“Business Day” shall mean a day on which Lender is open for the conduct of substantially all of its banking business at its office in the city in which the Note is payable (excluding Saturdays and Sundays).

“Cash Management Account” shall have the meaning set forth in Section 10.1(a) hereof.

“Cash Management Period” shall mean the period commencing on the 45^th day prior to the Optional Prepayment Date.

“Casualty” shall have the meaning set forth in Section 8.2.

“Closing Date” shall mean the date of the funding of the Loan.

“Control” shall have the meaning set forth in Section 7.1 hereof.

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“Condemnation” shall mean a temporary or permanent taking by any Governmental Authority as the result, in lieu or in anticipation, of the exercise of the right of condemnation or eminent domain, of all or any part of the Property, or any interest therein or right accruing thereto, including any right of access thereto or any change of grade affecting the Property or any part thereof.

“Condemnation Proceeds” shall have the meaning set forth in Section 8.4(b)

“Creditors Rights Laws” shall mean with respect to any Person any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to its debts or debtors.

“Debt” shall mean the outstanding principal amount set forth in, and evidenced by, this Agreement and the Note together with all interest accrued and unpaid thereon and all other sums due to Lender in respect of the Loan under the Note, this Agreement, the Mortgage or any other Loan Document.

“Debt Service” shall mean, with respect to any particular period of time, scheduled principal and/or interest payments under the Note.

“Default” shall mean the occurrence of any event hereunder or under any other Loan Document which, but for the giving of notice or passage of time, or both, would be an Event of Default.

“Default Rate” shall mean, with respect to the Loan, a rate per annum equal to the lesser of (a) the maximum rate permitted by applicable law, or (b) four percent (4%) above the Note Rate.

“Eligible Account” shall mean a separate and identifiable account from all other funds held by the holding institution that is either (a) an account or accounts maintained with a federal or state chartered depository institution or trust company which complies with the definition of Eligible Institution or (b) a segregated trust account or accounts maintained with the corporate trust department of a federal or state chartered depository institution or trust company acting in its fiduciary capacity which, in the case of a federally chartered depository institution or trust company acting in its fiduciary capacity is subject to the regulations regarding adversary funds on deposit therein under 12 CFR §9.10(b), and in the case of a state chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R. §9.10(b), having in either case a combined capital surplus of at least $50,000,000 and subject to supervision or examination by federal and state authority. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.

“Eligible Institution” shall mean a depository institution or trust company insured by the Federal Deposit Insurance Corporation, the short term unsecured debt obligations or commercial paper of which are rated at least “A-l” by S&P, “P-l” by Moody’s and “F-1” by Fitch in the case of accounts in which funds are held for thirty (30) days or less (or, in the case of accounts in which funds are held for more than thirty (30) days, the long term unsecured debt obligations of which are rated at least “AA-” by Fitch and S&P (or “A-” by S&P, if such depository’s short

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term unsecured debt rating is at least “A-l” by S&P) and “Aa2” by Moody’s). Notwithstanding the foregoing, prior to a Securitization, Bank of America, N.A. shall be an Eligible Institution.

“Embargoed Person” shall mean any person identified by OFAC or any other Person with whom a Person resident in the United States of America may not conduct business or transactions by prohibition of federal law or Executive Order of the President of the United States of America.

“Environmental Indemnity” shall mean that certain Environmental Indemnity Agreement, dated as of the date hereof, executed by Borrower and Borrower Principal in connection with the Loan for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Environmental Law” shall have the meaning set forth in Section 12.5 hereof.

“Environmental Liens” shall have the meaning set forth in Section 12.5 hereof.

“Environmental Report” shall have the meaning set forth in Section 12.5 hereof.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time and any successor statutes thereto and applicable regulations issued pursuant thereto in temporary or final form.

“Event of Default” shall have the meaning set forth in Section 11.1 hereof.

“Exchange Act” shall mean the Securities and Exchange Act of 1934, as amended.

“Fitch” shall mean Fitch, Inc.

“GAAP” shall mean generally accepted accounting principles in the United States of America as of the date of the applicable financial report.

“Governmental Authority” shall mean any court, board, agency, department, commission, office or other authority of any nature whatsoever for any governmental unit (federal, state, county, municipal, city, town, special district or otherwise) whether now or hereafter in existence.

“Guarantor” shall mean any Person having a long-term unsecured debt rating above the Trigger Rating that may, from time to time, at the option of American Express, execute a guaranty in favor of landlord under the American Express Lease.

“Hazardous Materials” shall have the meaning set forth in Section 12.5 hereof.

“Improvements” shall have the meaning set forth in the granting clause of the Mortgage.

“Indemnified Parties” shall mean (a) Lender, (b) any prior owner or holder of the Loan or Participations in the Loan, (c) any servicer or prior servicer of the Loan, (d) any Investor or any prior Investor in any Securities, (e) any trustees, custodians or other fiduciaries who hold or

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who have held a full or partial interest in the Loan for the benefit of any Investor or other third party, (f) any receiver or other fiduciary appointed in a foreclosure or other Creditors Rights Laws proceeding, (g) any officers, directors, shareholders, partners, members, employees, agents, servants, representatives, contractors, subcontractors, affiliates or subsidiaries of any and all of the foregoing, and (h) the heirs, legal representatives, successors and assigns of any and all of the foregoing (including, without limitation, any successors by merger, consolidation or acquisition of all or a substantial portion of the Indemnified Parties’ assets and business), in all cases whether during the term of the Loan or as part of or following a foreclosure of the Mortgage.

“Independent Director” shall have the meaning set forth in Section 6.4(a).

“Inland Permitted Transferee” shall mean a newly-formed special purpose entity that is wholly-owned (directly or indirectly) by Inland Retail Real Estate Trust, Inc., a Maryland corporation; Inland Real Estate Corporation, a Maryland corporation, Inland Real Estate Corporation, a Delaware corporation or Borrower Principal.

“Insurance Premiums” shall have the meaning set forth in Section 8.1 hereof.

“Insurance Proceeds” shall have the meaning set forth in Section 8.4(b) hereof.

“Internal Revenue Code” shall mean the Internal Revenue Code of 1986, as amended, as it may be further amended from time to time, and any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.

“Investor” shall have the meaning set forth in Section 13.3 hereof.

“Lease” shall have the meaning set forth in the Mortgage.

“Legal Requirements” shall mean all statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting the Property or any part thereof, or the construction, use, alteration or operation thereof, whether now or hereafter enacted and in force, and all permits, licenses, authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Borrower, at any time in force affecting the Property or any part thereof, including, without limitation, any which may (a) require repairs, modifications or alterations in or to the Property or any part thereof, or (b) in any way limit the use and enjoyment thereof.

“Lien” shall mean any mortgage, deed of trust, lien, pledge, hypothecation, assignment, security interest, or any other encumbrance, charge or transfer of, on or affecting Borrower, the Property, any portion thereof or any interest therein, including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialmen’s and other similar liens and encumbrances.

“LLC Agreement” shall have the meaning set forth in Section 6.1(c).

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“Loan” shall mean the loan made by Lender to Borrower pursuant to this Agreement.

“Loan Documents” shall mean, collectively, this Agreement, the Note, the Mortgage, the Environmental Indemnity, the Assignment of Management Agreement and any and all other documents, agreements and certificates executed and/or delivered in connection with the Loan, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Lockout Period” shall mean the period commencing on the date hereof and ending on the date of the second anniversary hereof.

“Losses” shall mean any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, fines, penalties, charges, fees, judgments, awards, amounts paid in settlement of whatever kind or nature (including but not limited to legal fees and other costs of defense).

“Management Agreement” shall mean the management agreement entered into by and between Borrower and Manager, pursuant to which Manager is to provide management and other services with respect to the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified in accordance with the terms of this Agreement.

“Manager” shall mean Inland US Management LLC, a Delaware limited liability company or such other entity selected as the manager of the Property in accordance with the terms of this Agreement.

“Material Litigation” shall mean, with respect to any Person, any material conviction, indictment (that is not dismissed before trial), judgment, litigation or regulatory action. For purposes of this definition, a matter shall be deemed material if it is reasonably foreseeable that a prudent institutional commercial real estate mortgage lender would consider such matter as a material adverse factor in its underwriting of the Person in question. With respect to non-criminal matters, isolated actions occurring more than five (5) years prior to the date of a proposed transfer shall not be deemed material provided that there is no indication of fraud, intentional misrepresentation or intent to defraud creditors with respect to such actions.

“Maturity Date” shall have the meaning set forth in the Note.

“Maximum Legal Rate” shall mean the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by the Note and as provided for herein or the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan.

“Member” shall have the meaning set forth in Section 6.1(c).

“Monthly Payment Amount” shall mean the monthly payment of interest due on each Scheduled Payment Date as set forth in the Note.

“Moody’s” shall mean Moody’s Investor Services, Inc.

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“Mortgage” shall mean that certain first priority mortgage/deed of trust/deed to secure debt and security agreement dated the date hereof, executed and delivered by Borrower as security for the Loan and encumbering the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Net Proceeds” shall have the meaning set forth in Section 8.4(b) hereof.

“Net Proceeds Deficiency” shall have the meaning set forth in Section 8.4(b)(vi) hereof.

“Note” shall mean that certain promissory note of even date herewith in the principal amount of $56,050,000, made by Borrower in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Note Rate” shall have the meaning set forth in the Note.

“OFAC” shall have the meaning set forth in Section 4.38 hereof.

“Operating Expenses” shall mean, with respect to any period of time, the total of all expenses actually paid or payable, computed in accordance with federal tax basis accounting, or in accordance with other methods acceptable to Lender in its sole discretion, of whatever kind relating to the operation, maintenance and management of the Property, including, without limitation, utilities, ordinary repairs and maintenance, Insurance Premiums, license fees, Taxes and Other Charges, advertising expenses, payroll and related taxes, computer processing charges, management fees equal to the greater of 4% of the Operating Income and the management fees actually payable under the Management Agreement for such period of time, operational equipment or other lease payments as approved by Lender, normalized capital expenditures but specifically excluding depreciation and amortization, income taxes, Debt Service, any incentive fees due under the Management Agreement, any item of expense that in accordance with federal tax basis accounting should be capitalized, any item of expense that would otherwise be covered by the provisions hereof but which is paid by American Express under the American Express Lease and deposits into the Reserve Accounts.

“Optional Prepayment Date” shall have the meaning set forth in the Note.

“Other Charges” shall mean all ground rents, maintenance charges, impositions other than Taxes, and any other charges, including, without limitation, vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Property, now or hereafter levied or assessed or imposed against the Property or any part thereof.

“Participations” shall have the meaning set forth in Section 1.3.1 hereof.

“Patriot Act” shall have the meaning set forth in Section 4.38 hereof.

“Permitted Encumbrances” shall mean collectively, (a) the Lien and security interests created by the Loan Documents, (b) all Liens, encumbrances and other matters disclosed in the Title Insurance Policy, (c) Liens, if any, for Taxes imposed by any Governmental Authority not yet due or delinquent, and (d) such other title and survey exceptions as Lender has approved or may approve in writing in Lender’s sole discretion.

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“Permitted Investments” shall mean to the extent available from Lender or Lender’s servicer for deposits in the Reserve Accounts and the Lockbox Account, any one or more of the following obligations or securities acquired at a purchase price of not greater than par, including those issued by a servicer of the Loan, the trustee under any securitization or any of their respective Affiliates, payable on demand or having a maturity date not later than the Business Day immediately prior to the date on which the funds used to acquire such investment, are required to be used under this Agreement and meeting one of the appropriate standards set forth below:

(a)           obligations of, or obligations fully guaranteed as to payment of principal and interest by, the United States or any agency or instrumentality thereof provided such obligations are backed by the full faith and credit of the United States of America including, without limitation, obligations of: the U.S. Treasury (all direct or fully guaranteed obligations), the Farmers Home Administration (certificates of beneficial ownership), the General Services Administration (participation certificates), the U.S. Maritime Administration (guaranteed Title XI financing), the Small Business Administration (guaranteed participation certificates and guaranteed pool certificates), the U.S. Department of Housing and Urban Development (local authority bonds) and the Washington Metropolitan Area Transit Authority (guaranteed transit bonds); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) be rated “AAA” or the equivalent by each of the Rating Agencies, (iii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iv) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (v) such investments must not be subject to liquidation prior to their maturity;

(b)           Federal Housing Administration debentures;

(c)           obligations of the following United States government sponsored agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm Credit System (consolidated systemwide bonds and notes), the Federal Home Loan Banks (consolidated debt obligations), the Federal National Mortgage Association (debt obligations), the Financing Corp. (debt obligations), and the Resolution Funding Corp. (debt obligations); provided, however,that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(d)           federal funds, unsecured certificates of deposit, time deposits, bankers’ acceptances and repurchase agreements with maturities of not more than 365 days of any bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned

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to the Securities); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(e)           fully Federal Deposit Insurance Corporation-insured demand and time deposits in, or certificates of deposit of, or bankers’ acceptances with maturities of not more than 365 days and issued by, any bank or trust company, savings and loan association or savings bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(f)            debt obligations with maturities of not more than 365 days and at all times rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest long-term unsecured rating category; provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(g)           commercial paper (including both non-interest-bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one year after the date of issuance thereof) with maturities of not more than 365 days and that at all times is rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest short-term unsecured debt rating; provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

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(h)           units of taxable money market funds, with maturities of not more than 365 days and which funds are regulated investment companies, seek to maintain a constant net asset value per share and invest solely in obligations backed by the full faith and credit of the United States, which funds have the highest rating available from each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) for money market funds; and

(i)            any other security, obligation or investment which has been approved as a Permitted Investment in writing by (i) Lender and (ii) each Rating Agency, as evidenced by a written confirmation that the designation of such security, obligation or investment as a Permitted Investment will not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities by such Rating Agency;

provided, however, that no obligation or security shall be a Permitted Investment if (A) such obligation or security evidences a right to receive only interest payments, (B) the right to receive principal and interest payments on such obligation or security are derived from an underlying investment that provides a yield to maturity in excess of one hundred twenty percent (120%) of the yield to maturity at par of such underlying investment or (C) such obligation or security has a remaining term to maturity in excess of one (1) year.

“Person” shall mean any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.

“Personal Property” shall have the meaning set forth in the granting clause of the Mortgage.

“Policies” shall have the meaning set forth in Section 8.1 hereof.

“Prohibited Transfer” shall have the meaning set forth in Section 7.2 hereof.

“Property” shall mean the parcel of real property, the Improvements thereon and all Personal Property owned by Borrower and encumbered by the Mortgage, together with all rights pertaining to such property and Improvements, as more particularly described in the granting clause of the Mortgage and referred to therein as the “Property”.

“Property Condition Report” shall mean a report prepared by a company satisfactory to Lender regarding the physical condition of the Property, satisfactory in form and substance to Lender in its sole discretion.

Qualified Manager” shall mean (a) Manager or (b) a reputable and experienced professional management organization (i) which manages, together with its affiliates, at least ten (10) first class office buildings totaling at least 3,500,000 square feet of gross leasable area, exclusive of the Property and (ii) approved by Lender, which approval shall not have been unreasonably withheld and for which Lender shall have received written confirmation from the

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Rating Agencies that the employment of such manager will not result in a downgrade, withdrawal or qualification of the initial, or if higher, then current ratings issued in connection with a Securitization, or if a Securitization has not occurred, any ratings to be assigned in connection with a Securitization.

“Rating Agencies” shall mean each of S&P, Moody’s and Fitch, or any other nationally-recognized statistical rating agency which has been approved by Lender.

“REA” shall mean any construction, operation and reciprocal easement agreement or similar agreement (including any separate agreement or other agreement between Borrower and one or more other parties to an REA with respect to such REA) affecting the Property or portion thereof.

“Release” shall have the meaning set forth in Section 12.5 hereof.

“REMIC Trust” shall mean a “real estate mortgage investment conduit” (within the meaning of Section 860D, or applicable successor provisions, of the Code) that holds the Note.

“Rents” shall have the meaning set forth in the Mortgage.

“Replacements” shall have the meaning set forth in Section 9.2(a) hereof.

“Required Repairs” shall have the meaning set forth in Section 9.1 (a) hereof.

“Reserve Accounts” shall mean the Tax and Insurance Reserve Account.

“Reserve Funds” shall mean the Tax and Insurance Reserve Funds.

“Restoration” shall mean, following the occurrence of a Casualty or a Condemnation which is of a type necessitating the repair of the Property, the completion of the repair and restoration of the Property as nearly as possible to the condition the Property was in immediately prior to such Casualty or Condemnation, with such alterations as may be reasonably approved by Lender.

“Restoration Consultant” shall have the meaning set forth in Section 8.4(b)(iii) hereof.

“Restoration Retainage” shall have the meaning set forth in Section 8.4(b)(iv) hereof.

“Restricted Party” shall have the meaning set forth in Section 7.1 hereof.

“Sale or Pledge” shall have the meaning set forth in Section 7.1 hereof.

“Scheduled Payment Date” shall have the meaning set forth in the Note.

“Securities” shall have the meaning set forth in Section 13.1 hereof.

“Securities Act” shall mean the Securities Act of 1933, as amended.

“Securities Liabilities” shall have the meaning set forth in Section 13.5 hereof.

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“Securitization” shall have the meaning set forth in Section 13.1 hereof.

“Special Member” shall have the meaning set forth in Section 6.1(c).

“S&P” shall mean Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.

“State” shall mean the state in which the Property or any part thereof is located.

“Tax and Insurance Reserve Account” shall have the meaning set forth in Section 9.6 hereof.

“Tax and Insurance Reserve Funds” shall have the meaning set forth in Section 9.6 hereof.

“Taxes” shall mean all real estate and personal properly taxes, assessments, water rates or sewer rents, now or hereafter levied or assessed or imposed against the Properly or part thereof.

“Tenant” shall mean any Person leasing, subleasing or otherwise occupying any portion of the Property under a Lease or other occupancy agreement with Borrower, including, without limitation, American Express, as tenant under the American Express Lease.

“Tenant Direction Letter” shall have the meaning set forth in Section 10.2(a)(i) hereof.

“Title Insurance Policy” shall mean that certain ALTA mortgagee title insurance policy issued with respect to the Property and insuring the lien of the Mortgage.

“Transferee” shall have the meaning set forth in Section 7.5 hereof.

“Trigger Rating” shall mean the long-term unsecured debt rating of Guarantor (or American Express if there is no Guarantor) below BBB as issued by S&P or below Baa2 as issued by Moody’s.

“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in the State where the applicable Property is located.

Section 1.2.Principles of Construction.

All references to sections and schedules are to sections and schedules in or to this Agreement unless otherwise specified. All uses of the word “including” shall mean “including, without limitation” unless the context shall indicate otherwise. Unless otherwise specified, the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified, all meanings attributed to defined terms herein shall be equally applicable to both the singular and plural forms of the terms so defined.

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ARTICLE 2
GENERAL TERMS

Section 2.1.           Loan Commitment; Disbursement to Borrower

(a)           Subject to and upon the terms and conditions set forth herein, Lender hereby agrees to make and Borrower hereby agrees to accept the Loan on the Closing Date.

(b)           Borrower may request and receive only one borrowing in respect of the Loan and any amount borrowed and repaid in respect of the Loan may not be reborrowed.

(c)           The Loan shall be evidenced by the Note and secured by the Mortgage and the other Loan Documents.

(d)           Borrower shall use the proceeds of the Loan to (i) pay the purchase price for acquiring the Property, (ii) pay certain costs and expenses incurred in connection with the closing of the Loan, as approved by Lender, (iv) fund any working capital requirements of the Property, and (v) distribute the balance, if any, to its members.

Section 2.2.Loan Payments

(a)           The Loan and interest shall be payable pursuant to the terms of the Note.

Section 2.3.Prepayment

The Loan may not be prepaid, in whole or in part, except in strict accordance with the express terms and conditions of the Note.

ARTICLE 3
CONDITIONS PRECEDENT

The obligation of Lender to make the Loan hereunder is subject to the fulfillment by Borrower or waiver by Lender of all the conditions precedent to closing set forth in the application or term sheet for the Loan delivered by Borrower to Lender and any commitment rider to the application for the Loan issued by Lender.

ARTICLE 4
REPRESENTATIONS AND WARRANTIES

Borrower and, where specifically indicated, each Borrower Principal represents and warrants to Lender as of the Closing Date that:

Section 4.1.           Organization

Borrower and each Borrower Principal (when not an individual) (a) has been duly organized and is validly existing and in good standing with requisite power and authority to own its properties and to transact the businesses in which it is now engaged, (b) is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in

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connection with its properties, businesses and operations, (c) possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own its properties and to transact the businesses in which it is now engaged, and the sole business of Borrower is the ownership, management and operation of the Property, and (d) in the case of Borrower, has full power, authority and legal right to mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the Property pursuant to the terms of the Loan Documents, and in the case of Borrower and each Borrower Principal, has full power, authority and legal right to keep and observe all of the terms of the Loan Documents to which it is a party. Borrower and each Borrower Principal represent and warrant that the chart attached hereto as Exhibit A sets forth an accurate listing of the direct and indirect owners of the equity interests in Borrower, and each Borrower Principal (when not an individual).

Section 4.2.Status of Borrower

Borrower’s exact legal name is correctly set forth on the first page of this Agreement, on the Mortgage and on any UCC-1 Financing Statements filed in connection with the Loan. Borrower is an organization of the type specified on the first page of this Agreement. Borrower is organized under the laws of the State of Delaware. Borrower’s principal place of business and chief executive office, and the place where Borrower keeps its books and records, including recorded data of any kind or nature, regardless of the medium of recording, including software, writings, plans, specifications and schematics, has been for the preceding four months (or, if less, the entire period of the existence of Borrower) the address of Borrower set forth on the first page of this Agreement. Borrower’s organizational identification number, if any, assigned by the state of incorporation or organization is correctly set forth on the first page of the Note.

Section 4.3.           Validity of Documents

Borrower and Borrower Principal have taken all necessary action to authorize the execution, delivery and performance of this Agreement and the other Loan Documents to which they are parties. This Agreement and such other Loan Documents have been duly executed and delivered by or on behalf of Borrower and Borrower Principal and constitute the legal, valid and binding obligations of Borrower and Borrower Principal enforceable against Borrower and Borrower Principal in accordance with their respective terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

Section 4.4.No Conflicts

The execution, delivery and performance of this Agreement and the other Loan Documents by Borrower and Borrower Principal will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance (other than pursuant to the Loan Documents) upon any of the property or assets of Borrower or Borrower Principal pursuant to the terms of any agreement or instrument to which Borrower or Borrower Principal is a party or by which any of Borrower’s or Borrower Principal’s property or assets is subject, nor will such action result in any violation of the provisions of any statute or any order, rule or regulation of any

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Governmental Authority having jurisdiction over Borrower or Borrower Principal or any of Borrower’s or Borrower Principal’s properties or assets, and any consent, approval, authorization, order, registration or qualification of or with any Governmental Authority required for the execution, delivery and performance by Borrower or Borrower Principal of this Agreement or any of the other Loan Documents has been obtained and is in full force and effect.

Section 4.5.           Litigation

There are no actions, suits or proceedings at law or in equity by or before any Governmental Authority or other agency now pending or, to Borrower’s or Borrower Principal’s knowledge, threatened against or affecting Borrower, Borrower Principal, Manager or the Property, which actions, suits or proceedings, if determined against Borrower, Borrower Principal, Manager or the Property, would materially adversely affect the condition (financial or otherwise) or business of Borrower or Borrower Principal or the condition or ownership of the Property.

Section 4.6.           Agreements

Borrower is not a party to any agreement or instrument or subject to any restriction which would materially and adversely affect Borrower or the Property, or Borrower’s business, properties or assets, operations or condition, financial or otherwise. Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party or by which Borrower or the Property is bound. Borrower has no material financial obligation under any agreement or instrument to which Borrower is a party or by which Borrower or the Property is otherwise bound, other than (a) obligations incurred in the ordinary course of the operation of the Property and (b) obligations under the Loan Documents.

Section 4.7.Solvency

Borrower and each Borrower Principal have (a) not entered into the transaction or executed the Note, this Agreement or any other Loan Documents with the actual intent to hinder, delay or defraud any creditor and (b) received reasonably equivalent value in exchange for their obligations under such Loan Documents. Giving effect to the Loan, the fair saleable value of the assets of Borrower and each Borrower Principal exceeds and will, immediately following the making of the Loan, exceed the total liabilities of Borrower and Borrower Principal, including, without limitation, subordinated, unliquidated, disputed and contingent liabilities. No petition in bankruptcy has been filed against Borrower, Borrower Principal, or Affiliated Manager in the last ten (10) years, and neither Borrower nor Borrower Principal, or Affiliated Manager in the last ten (10) years has made an assignment for the benefit of creditors or (taken advantage of any Creditors Rights Laws. Neither Borrower nor Borrower Principal, or Affiliated Manager is contemplating either the filing of a petition by it under any Creditors Rights Laws or the liquidation of all or a major portion of Borrower’s assets or property, and Borrower has no knowledge of any Person contemplating the filing of any such petition against Borrower or Borrower Principal, or Affiliated Manager.

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Section 4.8.           Full and Accurate Disclosure

No statement of fact made by or on behalf of Borrower or Borrower Principal in this Agreement or in any of the other Loan Documents or in any other document or certificate delivered by or on behalf of Borrower or Borrower Principal contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained herein or therein not misleading. There is no material fact presently known to Borrower or Borrower Principal which has not been disclosed to Lender which adversely affects, nor as far as Borrower or Borrower Principal can reasonably foresee, might adversely affect, the Property or the business, operations or condition (financial or otherwise) of Borrower or Borrower Principal.

Section 4.9.           No Plan Assets

Borrower is not an “employee benefit plan,” as defined in Section 3(3) of ERISA, subject to Title I of ERISA, and none of the assets of Borrower constitutes or will constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101. In addition, (a) Borrower is not a “governmental plan” within the meaning of Section 3(32) of ERISA and (b) transactions by or with Borrower are not subject to state statutes regulating investment of, and fiduciary obligations with respect to, governmental plans similar to the provisions of Section 406 of ERISA or Section 4975 of the Internal Revenue Code currently in effect, which prohibit or otherwise restrict the transactions contemplated by this Agreement.

Section 4.10.        Not a Foreign Person

Neither Borrower nor Borrower Principal is a “foreign Person” within the meaning of §1445(f)(3) of the Internal Revenue Code.

Section 4.11.        Enforceability

The Loan Documents are not subject to any right of rescission, set-off, counterclaim or defense by Borrower, including the defense of usury, nor would the operation of any of the terms of the Loan Documents, or the exercise of any right thereunder, render the Loan Documents unenforceable, and neither Borrower nor Borrower Principal has asserted any right of rescission, set-off, counterclaim or defense with respect thereto. No Default or Event of Default exists under or with respect to any Loan Document.

Section 4.12.        Business Purposes

The Loan is solely for the business purpose of Borrower, and is not for personal, family, household, or agricultural purposes.

Section 4.13.        Compliance

Except as expressly disclosed by Borrower to Lender in writing in connection with the closing of the Loan, to Borrower’s knowledge, Borrower and the Property, and the use and operation thereof, comply in all material respects with all Legal Requirements, including, without limitation, building and zoning ordinances and codes and the Americans with Disabilities Act. To Borrower’s knowledge, Borrower is not in default or violation of any order,

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writ, injunction, decree or demand of any Governmental Authority and Borrower has received no written notice of any such default or violation. There has not been committed by Borrower or, to Borrower’s knowledge, any other Person in occupancy of or involved with the operation or use of the Property any act or omission affording any Governmental Authority the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents.

Section 4.14.        Financial Information

All financial data, including, without limitation, the balance sheets, statements of cash flow, statements of income and operating expense and rent rolls, that have been delivered to Lender in respect of Borrower, Borrower Principal and/or the Property (a) are true, complete and correct in all material respects, (b) accurately represent the financial condition of Borrower, Borrower Principal or the Property, as applicable, as of the date of such reports, and (c) to the extent prepared or audited by an independent certified public accounting firm, have been prepared in accordance with tax basis accounting throughout the periods covered, except as disclosed therein. Borrower does not have any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that are known to Borrower and reasonably likely to have a material adverse effect on the Property or the current and/or intended operation thereof, except as referred to or reflected in said financial statements. Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of Borrower or Borrower Principal from that set forth in said financial statements.

Section 4.15.        Condemnation

No Condemnation or other proceeding has been commenced or, to Borrower’s best knowledge, is threatened or contemplated with respect to all or any portion of the Property or for the relocation of roadways providing access to the Property.

Section 4.16.        Utilities and Public Access; Parking

To the best of Borrower’s knowledge, the Property has adequate rights of access to public ways and is served by water, sewer, sanitary sewer and storm drain facilities adequate to service the Property for full utilization of the Property for its intended uses. All public utilities necessary to the full use and enjoyment of the Property as currently used and enjoyed are located either in the public right-of-way abutting the Property (which are connected so as to serve the Property without passing over other property) or in recorded easements serving the Property and such easements are set forth in and insured by the Title Insurance Policy. All roads necessary for the use of the Property for its current purposes have been completed and dedicated to public use and accepted by all Governmental Authorities. The Property has, or is served by, parking to the extent required to comply with all Legal Requirements.

Section 4.17.        Separate Lots

The Property is assessed for real estate tax purposes as one or more wholly independent tax lot or lots, separate from any adjoining land or improvements not constituting a part of such

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lot or lots, and no other land or improvements is assessed and taxed together with the Property or any portion thereof.

Section 4.18.        Assessments

To Borrower’s knowledge, there are no pending or proposed special or other assessments for public improvements or otherwise affecting the Property, nor are there any contemplated improvements to the Property that may result in such special or other assessments.

Section 4.19.        Insurance

Borrower has obtained and has delivered to Lender either (a) certified copies of all Policies or, to the extent such Policies are not available as of the Closing Date, certificates of insurance with respect to all such Policies reflecting the insurance coverages, amounts and other requirements set forth in this Agreement or (b) the certificate of American Express that American Express is a self-insurer with respect to the occurrences referred to in Section 8.1 and that the rating of American Express by the Rating Agencies has not fallen below the Trigger Rating.

Section 4.20.        Use of Property

The Property is used exclusively for general office purposes and other appurtenant and related uses.

Section 4.21.        Certificate of Occupancy; Licenses

All certificates of occupancy and to Borrower’s knowledge all certifications, permits, licenses and approvals, including, without limitation, certificates of completion and any applicable liquor license required for the legal use, occupancy and operation of the Property for the purpose intended herein, have been obtained and are valid and in full force and effect. Borrower shall keep and maintain (or require American Express to maintain) all licenses necessary for the operation of the Property for the purpose intended herein. The use being made of the Property is in conformity with the final certificate of occupancy (or compliance, if applicable) and any other permits or licenses issued for the Property.

Section 4.22.Flood Zone

None of the Improvements on the Property are located in an area identified by the Federal Emergency Management Agency as an area having special flood hazards, or, if any portion of the Improvements is located within such area, Borrower will obtain or cause American Express to obtain the insurance prescribed in Section 8.1(a)(i) at any time during the term of the Loan when American Express ceases to be a self-insurer or when the rating of American Express by the Rating Agencies falls below the Trigger Rating.

Section 4.23.        Physical Condition

Except as set forth in the Property Condition Report, to Borrower’s knowledge, the Property, including, without limitation, all buildings, improvements, parking facilities,

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sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, are in good condition, order and repair in all material respects. Except as set forth in the Property Condition Report, to Borrower’s knowledge, there exist no structural or other material defects or damages in the Property, as a result of a Casualty or otherwise, and whether latent or otherwise. Borrower has not received notice from any insurance company or bonding company of any defects or inadequacies in the Property, or any part thereof, which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond.

Section 4.24.        Boundaries; Survey

(a)           None of the Improvements which were included in determining the appraised value of the Property lie outside the boundaries and building restriction lines of the Property to any material extent, and (b) no improvements on adjoining properties encroach upon the Property and no easements or other encumbrances upon the Properly encroach upon any of the Improvements so as to materially affect the value or marketability of the Property.

Section 4.25.        Leases

The entire Property has been leased to American Express pursuant to the American Express Lease. (a) The American Express Lease is in full force and effect; (b) the premises demised under the American Express Lease have been completed and American Express has accepted possession of and is in occupancy of the demised premises; (c) American Express has commenced the payment of rent under the American Express Lease, there are no offsets, claims or defenses to the enforcement thereof and Borrower has no monetary obligations to American Express under the American Express Lease; (d) all Rents due and payable under the American Express Lease have been paid and no portion thereof has been paid for any period more than thirty (30) days in advance; (e) the rent payable under the American Express Lease is the amount of fixed rent set forth in the American Express Lease, and there is no claim or basis for a claim by American Express thereunder for an adjustment to the Rent; (f) Borrower is the sole owner of the entire landlord’s interest in the American Express Lease; (g) the American Express Lease is the valid, binding and enforceable obligation of Borrower and American Express thereunder and there are no agreements with American Express with respect to the American Express Lease other than as expressly set forth therein; (h) no Person has any possessory interest in, or right to occupy, the Property or any portion thereof except under the American Express Lease; (i) except for the right of first refusal set forth in Article 4 and the right to offer to purchase the Property under Article 12, the American Express Lease docs not contain any option or offer to purchase or right of first refusal to purchase the Property or any part thereof; and (j) neither the American Express Lease nor the Rents have been assigned or pledged except to Lender, and no other Person has any interest therein.

Section 4.26.        Filing and Recording Taxes

All mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid by any Person under applicable Legal Requirements currently in effect in connection with

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the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents, including, without limitation, the Mortgage, have been paid or will be paid, and, under current Legal Requirements, the Mortgage is enforceable in accordance with its terms by Lender (or any subsequent holder thereof).

Section 4.27.Management Agreement

The Management Agreement is in full force and effect and there is no default thereunder by any party thereto and, to Borrower’s knowledge, no event has occurred that, with the passage of time and/or the giving of notice, would constitute a default thereunder. No management fees under the Management Agreement are accrued and unpaid.

Section 4.28.        Illegal Activity

No portion of the Property has been or will be purchased with proceeds of any illegal activity, and no part of the proceeds of the Loan will be used in connection with any illegal activity.

Section 4.29.        Construction Expenses

All costs and expenses of any and all labor, materials, supplies and equipment used in the construction, maintenance or repair of the Improvements have been paid in full. To Borrower’s knowledge after due inquiry, there are no claims for payment for work, labor or materials affecting the Property which are or may become a lien prior to, or of equal priority with, the Liens created by the Loan Documents.

Section 4.30.        Personal Property

Borrower has paid in full for, and is the owner of, all Personal Property (other than tenants’ property) used in connection with the operation of the Property, free and clear of any and all security interests, liens or encumbrances, except for Permitted Encumbrances and the Lien and security interest created by the Loan Documents.

Section 4.31.        Taxes

Borrower and Borrower Principal have filed all federal, state, county, municipal, and city income, personal property and other tax returns required to have been filed by them and have paid all taxes and related liabilities which have become due pursuant to such returns or pursuant to any assessments received by them. Neither Borrower nor Borrower Principal knows of any basis for any additional assessment in respect of any such taxes and related liabilities for prior years.

Section 4.32.        Permitted Encumbrances

None of the Permitted Encumbrances, individually or in the aggregate, materially interferes with the benefits of the security intended to be provided by the Loan Documents, materially and adversely affects the value of the Property, impairs the use or the operation of the Property or impairs Borrower’s ability to pay its obligations in a timely manner.

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Section 4.33.        Federal Reserve Regulations

Borrower will use the proceeds of the Loan for the purposes set forth in Section 2.1(d) hereof and not for any illegal activity. No part of the proceeds of the Loan will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by Legal Requirements or prohibited by the terms and conditions of this Agreement or the other Loan Documents.

Section 4.34.        Investment Company Act

Borrower is not (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; (b) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (c) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

Section 4.35.        Reciprocal Easement Agreements

(a)           Neither Borrower nor any other party is currently in default (nor has any notice been given or received with respect to an alleged or current default) under any of the terms and conditions of the REA, and the REA remains unmodified and in full force and effect;

(b)           All easements granted pursuant to the REA which were to have survived the site preparation and completion of construction (to the extent that the same has been completed), remain in full force and effect and have not been released, terminated, extinguished or discharged by agreement or otherwise;

(c)           To the best of Borrower’s knowledge, all sums due and owing by Borrower to the other parties to the REA (or by the other parties to the REA to the Borrower) pursuant to the terms of the REA, including without limitation, all sums, charges, fees, assessments, costs, and expenses in connection with any taxes, site preparation and construction, non-shareholder contributions, and common area and other property management activities have been paid, are current, and no lien has attached on the Property (or threat thereof been made) for failure to pay any of the foregoing;

(d)           The terms, conditions, covenants, uses and restrictions contained in the REA do not conflict in any manner with any terms, conditions, covenants, uses and restrictions contained in any Lease or in any agreement between Borrower and occupant of any peripheral parcel, including without limitation, conditions and restrictions with respect to kiosk placement, tenant restrictions (type, location or exclusivity), sale of certain goods or services, and/or other use restrictions; and

(e)           The terms, conditions, covenants, uses and restrictions contained in the American Express Lease do not conflict in any manner with any terms, conditions, covenants, uses and restrictions contained in the REA, any other lease or in any agreement between Borrower and

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occupant of any peripheral parcel, including without limitation, conditions and restrictions with respect to kiosk placement, tenant restrictions (type, location or exclusivity), sale of certain goods or services, and/or other use restrictions.

Section 4.36.No Change in Facts or Circumstances; Disclosure

All information submitted by Borrower or its agents to Lender and in all financial statements, reports, certificates and other documents submitted in connection with the Loan or in satisfaction of the terms thereof and all statements of fact made by Borrower in this Agreement or in any other Loan Document, are accurate, complete and correct in all material respects. There has been no material adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading in any material respect or that otherwise materially and adversely affects or might materially and adversely affect the Property or the business operations or the financial condition of Borrower. Borrower has disclosed to Lender all material facts and has not failed to disclose any material fact that could cause any representation or warranty made herein to be materially misleading.

Section 4.37.Intellectual Property

All trademarks, trade names and service marks necessary to the business of Borrower as presently conducted or as Borrower contemplates conducting its business are in good standing and, to the extent of Borrower’s actual knowledge, uncontested. Borrower has not infringed, is not infringing, and has not received notice of infringement with respect to asserted trademarks, trade names and service marks of others. To Borrower’s knowledge, there is no infringement by others of trademarks, trade names and service marks of Borrower.

Section 4.38.        Compliance with Anti-Terrorism Laws

None of Borrower, Borrower Principal or any Person who Controls Borrower or Borrower Principal currently is identified by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) or otherwise qualifies as an Embargoed Person, and Borrower has implemented procedures to ensure that no Person who now or hereafter owns a material direct or indirect equity interest in Borrower is an Embargoed Person or is Controlled by an Embargoed Person. To Borrower’s knowledge neither Borrower nor Borrower Principal is in violation of any applicable law relating to anti-money laundering or anti-terrorism, including, without limitation, those related to transacting business with Embargoed Persons or the requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, U.S. Public Law 107-56, and the related regulations issued thereunder, including temporary regulations (collectively, as the same may be amended from time to time, the “Patriot Act”). To the best of Borrower’s knowledge, no tenant at the Property is currently identified by OFAC or otherwise qualifies as an Embargoed Person, or is owned or Controlled by an Embargoed Person.

Section 4.39.        Patriot Act

Neither Borrower nor Borrower Principal shall (a) be or become subject at any time to any law, regulation, or list of any government agency (including, without limitation, the list maintained by OFAC and accessible through the OFAC website) that prohibits or limits any

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lender from making any advance or extension of credit to Borrower or from otherwise conducting business with Borrower and Borrower Principal, or (b) fail to provide documentary and other evidence of Borrower’s identity as may be requested by any lender at any time to enable any lender to verify Borrower’s identity or to comply with any applicable law or regulation, including, without limitation, the Patriot Act. In addition, Borrower hereby agrees to provide to Lender any additional information that Lender deems necessary from time to time in order to ensure compliance with all applicable laws concerning money laundering and similar activities.

Section 4.40.        Survival

Borrower agrees that, unless expressly provided otherwise, all of the representations and warranties of Borrower set forth in this Article 4 and elsewhere in this Agreement and in the other Loan Documents shall survive for so long as any portion of the Debt remains owing to Lender. All representations, warranties, covenants and agreements made in this Agreement or in the other Loan Documents by Borrower shall be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.

ARTICLE 5
BORROWER COVENANTS

From the date hereof and until repayment of the Debt in full and performance in full of all obligations of Borrower under the Loan Documents or the earlier release of the Lien of the Mortgage (and all related obligations) in accordance with the terms of this Agreement and the other Loan Documents, Borrower hereby covenants and agrees with Lender that:

Section 5.1.           Existence; Compliance with Legal Requirements

(a)           Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, rights, licenses, permits and franchises and comply with all Legal Requirements applicable to it and the Property. Borrower hereby covenants and agrees not to commit, permit or suffer to exist any act or omission affording any Governmental Authority the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents. Borrower shall at all times maintain, preserve and protect all franchises and trade names used in connection with the operation of the Property. So long as American Express is in compliance with the terms of the American Express Lease with respect to the matters described in this Section 5.1, Borrower shall be deemed in compliance with this Section 5.1.

(b)           Borrower, at its own expense, may contest or permit American Express to contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the Legal Requirements affecting the Property, provided that (i) no Default or Event of Default has occurred and is continuing; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower or the Property is subject and shall not constitute a default thereunder; (iii) neither the Property, any part thereof or interest therein, any of the tenants or occupants thereof, nor Borrower shall be affected in any material adverse way as a result of such proceeding; (iv) non-compliance with the

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Legal Requirements shall not impose civil or criminal liability on Borrower or Lender; (v) unless the contest is initiated and conducted by American Express pursuant to the American Express Lease Borrower shall have furnished the security as may be required in the proceeding or by Lender to ensure compliance by Borrower with the Legal Requirements; and (vi) if the contest is initiated and conducted by Borrower, Borrower shall have furnished to Lender all other items reasonably requested by Lender. Borrower shall give written notice to Lender of any contest initiated and conducted by Borrower promptly after initiation thereof and shall inform Lender of any contest initiated and conducted by American Express of which Borrower is given notice by American Express.

Section 5.2.           Maintenance and Use of Property

Borrower shall cause the Property to be maintained in a good and safe condition and repair. The Improvements and the Personal Property shall not be removed, demolished or except as may be expressly permitted under the American Express Lease without the consent of the landlord thereunder, materially altered (except for normal replacement of the Personal Property) without the prior written consent of Lender. So long as American Express is in compliance with the terms of the American Express Lease with respect to the matters described in this Section 5.2, Borrower shall be deemed in compliance with this Section 5.2. If under applicable zoning provisions the use of all or any portion of the Property is or shall become a nonconforming use, Borrower will not cause or permit the nonconforming use to be discontinued or the nonconforming Improvement to be abandoned without the express written consent of Lender.

Section 5.3.           Waste

Borrower shall not commit or suffer any waste of the Property or make any change in the use of the Property which will in any way materially increase the risk of fire or other hazard arising out of the operation of the Property, or take any action that might invalidate or give cause for cancellation of any Policy, or do or permit to be done thereon anything that may in any way impair the value of the Property or the security for the Loan. Borrower will not, without, the prior written consent of Lender, permit any drilling or exploration for or extraction, removal, or production of any minerals from the surface or the subsurface of the Property, regardless of the depth thereof or the method of mining or extraction thereof.

Section 5.4.           Taxes and Other Charges

(a)           Borrower shall pay or cause American Express to pay all Taxes and Other Charges now or hereafter levied or assessed or imposed against the Property or any part thereof as the same become due and payable. Borrower shall furnish or cause to be furnished to Lender such receipts for the payment of the Taxes and the Other Charges as are delivered to Borrower by American Express and, upon request by Lender, a certificate from Borrower and Borrower Principal that as of the date of such certificate there are no liens filed against the Property arising from the non-payment of Taxes or Other Charges. Borrower shall not suffer nor permit American Express to suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. So long as American Express is in

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compliance with the terms of the American Express Lease with respect to the matters described in this Section 5.4, Borrower shall be deemed in compliance with this Section 5.4.

(b)           Borrower, at its own expense, may contest or permit American Express to contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) no Default or Event of Default has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable Legal Requirements; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount, of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish or cause American Express to furnish (but only to the extent required to be furnished by American Express under the American Express Lease) such security as may be required in the proceeding, or deliver to Lender such reserve deposits as may be requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon (unless Borrower or American Express has paid all of the Taxes or Other Charges under protest). Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the judgment of Lender, the entitlement of such claimant is established or the Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, canceled or lost or there shall be any danger of the Lien of the Mortgage being primed by any related Lien.

Section 5.5.Litigation

Borrower shall give prompt written notice to Lender of any litigation or governmental proceedings pending or threatened in writing against Borrower which might materially adversely affect Borrower’s condition (financial or otherwise) or business or the Property.

Section 5.6.Access to Property

Borrower shall permit agents, representatives and employees of Lender to inspect the Property or any part thereof at reasonable hours upon reasonable advance notice, subject to the rights of American Express under the American Express Lease.

Section 5.7.Notice of Default

Borrower shall promptly advise Lender of any material adverse change in the condition (financial or otherwise) of Borrower, any Borrower Principal or the Property or of the occurrence of any Default or Event of Default of which Borrower has knowledge and of any American Express Lease Default of which Borrower has knowledge.

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Section 5.8.Cooperate in Legal Proceedings

Borrower shall at Borrower’s expense cooperate fully with Lender with respect to any proceedings before any court, board or other Governmental Authority which may in any way affect the rights of Lender hereunder or any rights obtained by Lender under any of the other Loan Documents and, in connection therewith, permit Lender, at its election, to participate in any such proceedings.

Section 5.9.Performance by Borrower

Borrower shall in a timely manner observe, perform and fulfill each and every covenant, term and provision to be observed and performed by Borrower under this Agreement and the other Loan Documents and any other agreement or instrument affecting or pertaining to the Property and any amendments, modifications or changes thereto.

Section 5.10.Awards; Insurance Proceeds

Borrower shall cooperate with Lender in obtaining for Lender the benefits of any Awards or Insurance Proceeds lawfully or equitably payable to Borrower in connection with the Property, and Lender shall be reimbursed for any expenses incurred in connection therewith (including reasonable, actual attorneys’ fees and disbursements, and the payment by Borrower of the expense of an appraisal on behalf of Lender in case of a Casualty or Condemnation affecting the Property or any part thereof) out of such Awards or Insurance Proceeds. The actual payment of any Awards shall be governed by Section 8.4 hereof.

Section 5.11.Financial Reporting

(a)Borrower and Borrower Principal shall keep adequate books and records of account in accordance with federal tax basis accounting, or in accordance with other methods acceptable to Lender in its sole discretion, consistently applied and shall furnish to Lender:

(i)prior to a Securitization, at the request of Lender, monthly, and following a Securitization, quarterly and annual certificates signed and dated by Borrower, certifying that the American Express Lease is in full force and effect, whether any defaults (or any matter that, with the passage of time or the giving of notice, could become a default) exist thereunder and any other information as is reasonably required by Lender, within twenty (20) days after the end of each calendar month, thirty (30) days after the end of each fiscal quarter or one hundred twenty (120) days after the close of each fiscal year of Borrower, as applicable;

(ii)prior to a Securitization, at the request of Lender, monthly, and following a Securitization, quarterly and annual operating statements of the Property, prepared and certified by Borrower in the form required by Lender, detailing the revenues received, the expenses incurred and the net operating income before and after debt service (principal and interest) and major capital improvements (including, without limitation, any capital improvements planned by American Express of which Borrower has notice) for the period of calculation and containing appropriate year-to-date information, within twenty (20) days after the end of each calendar month, thirty (30) days after the end of each

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fiscal quarter or one hundred (120) days after the close of each fiscal year of Borrower, as applicable;

(iii)annual balance sheets, profit and loss statements, statements of cash flows, and statements of change in financial position of Borrower and Borrower Principal in the form required by Lender prepared and certified by Borrower and Borrower Principal within one hundred twenty (120) days after the close of each fiscal year of Borrower and Borrower Principal, as the case may be (provided that with respect to Borrower, such statements may be delivered by the holder(s) of beneficial interests in Borrower in accordance with Section 6.1 (a)(viii); and

(iv)all financial statements, operating statements, budgets, capital repair estimates or projections and certifications of any kind with respect to the foregoing delivered to Borrower by American Express under the American Express Lease.

(b)To the extent not inconsistent with the provisions of Section 5.11(a) hereof (e.g., GAAP accounting and audits shall not be required), Borrower and Borrower Principal shall furnish Lender with such other additional financial or management information (including state and federal tax returns) as may, from time to time, be reasonably required by Lender in form and substance satisfactory to Lender (including, without limitation, any financial reports required to be delivered by any Tenant or any guarantor of any Lease pursuant to the terms of such Lease), and shall furnish to Lender and its agents convenient facilities for the examination and audit of any such books and records

(c)Without limiting any other rights available to Lender under this Loan Agreement or any of the other Loan Documents, in the event Borrower shall fail to timely furnish Lender any financial document or statement in accordance with this Section 5.11, Borrower shall promptly pay to Lender a non-refundable charge in the amount of $500 for each such failure. The payment of such amount shall not be construed to relieve Borrower of any Event of Default hereunder arising from such failure.

(d)All items requiring the certification of Borrower shall, except where Borrower is an individual, require a certificate executed by the general partner, managing member or chief executive officer of Borrower, as applicable (and the same rules shall apply to any sole shareholder, general partner or managing member which is not an individual).

Section 5.12.Estoppel Statement

(a)After request by Lender, Borrower shall within ten (10) Business Days furnish Lender with a statement, duly acknowledged and certified, setting forth (i) the amount of the original principal amount of the Note, (ii) the rate of interest on the Note, (iii) the unpaid principal amount of the Note, (iv) the date installments of interest and/or principal were last paid, (v) any offsets or defenses to the payment of the Debt, if any, and (vi) that the Note, this Agreement, the Mortgage and the other Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such modification.

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(b)Borrower shall use its best efforts to deliver to Lender, promptly upon request, a duly executed estoppel certificate from American Express on the form attached to the American Express Lease as an exhibit.

Section 5.13.Leasing Matters.

(a)Borrower (i) shall observe and perform all the obligations imposed on the landlord under the American Express Lease and shall not do or permit to be done anything to impair the value of the American Express Lease as security for the Debt; (ii) shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the American Express Lease on the part of the tenant thereunder to be observed or performed; (iv) shall not collect any of the Rents more than one (1) month in advance; (v) shall not execute any other assignment of the landlord’s interest in the American Express Lease or the Rents; and (vi) shall not consent to any assignment of or subletting under the American Express Lease not in accordance with its terms without the prior written consent of Lender.

(b)Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a surrender of space under or shorten the term of the American Express Lease.

Section 5.14.Property Management

(a)Borrower shall (i) promptly perform and observe all of the covenants required to be performed and observed by it under the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (ii) promptly notify Lender of any default under the Management Agreement of which it is aware; (iii) promptly deliver to Lender a copy of any notice of default or other material notice received by Borrower under the Management Agreement; (iv) promptly give notice to Lender of any notice or information that Borrower receives which indicates that Manager is terminating the Management Agreement or that Manager is otherwise discontinuing its management of the Property; and (v) promptly enforce the performance and observance of all of the covenants required to be performed and observed by Manager under the Management Agreement.

(b)If at any time, (i) Manager shall become insolvent or a debtor in a bankruptcy proceeding; (ii) an Event of Default has occurred and is continuing; or (iii) a default has occurred and is continuing after the expiration of any applicable cure periods under the Management Agreement, Borrower shall, at the request of Lender, terminate the Management Agreement upon thirty (30) days prior notice to Manager and replace Manager with a Qualified Manager, it being understood and agreed that the management fee for such replacement manager shall not exceed then prevailing market rates.

(c)In addition to the foregoing, in the event that Lender, in Lender’s reasonable discretion, at any time prior to the termination of the Assignment of Management Agreement, determines that the Property is not being managed in accordance with generally accepted management practices for projects similarly situated, Lender may deliver written notice thereof to Borrower and Manager, which notice shall specify with particularity the grounds for Lender’s

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determination. If Lender reasonably determines that the conditions specified in Lender’s notice are not remedied to Lender’s reasonable satisfaction by Borrower or Manager within thirty (30) days from the date of such notice or that Borrower or Manager has failed to diligently undertake correcting such conditions within such thirty (30) day period, Lender may direct Borrower to terminate the Management Agreement and to replace Manager with a Qualified Manager on terms and conditions satisfactory to Lender, it being understood and agreed that the management fee for such replacement manager shall not exceed then prevailing market rates.

(d)Borrower shall not, without the prior written consent of Lender (which consent shall not be unreasonably withheld, conditioned or delayed): (i) surrender, terminate or cancel the Management Agreement or otherwise replace Manager or enter into any other management agreement with respect to the Property; (ii) reduce or consent to the reduction of the term of the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Management Agreement; or (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the Management Agreement in any material respect. In the event that Borrower replaces Manager at any time during the term of Loan pursuant to this subsection, such Manager shall be a Qualified Manager.

(e)Notwithstanding the foregoing, Borrower shall be permitted to transfer the management of the Property to an Affiliate of Manager provided that the terms of the management contract between Borrower and such entity provides for fees no greater than, is on terms that are substantially similar to and is no less favorable to Borrower than the Management Agreement in effect as of the date hereof.

Section 5.15.Liens

Borrower shall not, without the prior written consent of Lender, create, incur, assume or suffer to exist any Lien on any portion of the Property or permit any such action to be taken, except Permitted Encumbrances.

Section 5.16.Debt Cancellation

Borrower shall not cancel or otherwise forgive or release any claim or debt owed to Borrower by any Person, except for adequate consideration and in the ordinary course of Borrower’s business.

Section 5.17.Zoning

Borrower shall not initiate or consent to any zoning reclassification of any portion of the Property or seek any variance under any existing zoning ordinance or use or permit the use of any portion of the Property in any manner that could result in such use becoming a non-conforming use under any zoning ordinance or any other applicable land use law, rule or regulation, without the prior written consent of Lender.

Section 5.18.ERISA

(a)Borrower shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under the

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Note, this Agreement or the other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA.

(b)Borrower further covenants and agrees to deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan, as requested by Lender in its sole discretion, that (i) Borrower is not and does not maintain an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmental plan” within the meaning of Section 3(3) of ERISA; (ii) Borrower is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (iii) one or more of the following circumstances is true:

(A)Equity interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R. §2510.3-101(b)(2);

(B)Less than twenty-five percent (25%) of each outstanding class of equity interests in Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R. §2510.3-101(f)(2); or

(C)Borrower qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. §2510.3-101(c) or (e).

Section 5.19.No Joint Assessment

Borrower shall not suffer, permit or initiate the joint assessment of the Property with (a) any other real property constituting a tax lot separate from the Property, or (b) any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the Lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to the Property.

Section 5.20.Reciprocal Easement Agreements

Borrower shall not enter into, terminate or modify any REA without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Borrower shall enforce, comply with, and cause each of the parties to the REA to comply with all of the material economic terms and conditions contained in the REA, provided that Borrower may agree, without Lender’s consent, to modifications to any REA or to grant easements with respect to the Property which could not reasonably be expected to have a material adverse effect on the use, value or operation of the Property, on the ability of American Express to perform its obligations under the American Express Lease or on Borrower’s ability to perform its obligations under the Loan Documents.

ARTICLE 6

ENTITY COVENANTS

Section 6.1.Single Purpose Entity/Separateness

Until the Debt has been paid in full, Borrower represents, warrants and covenants as follows:

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(a)Borrower has not and will not:

(i)engage in any business or activity other than the ownership, operation and maintenance of the Property, and activities incidental thereto;

(ii)acquire or own any assets other than (A) the Property, and (B) such incidental Personal Property as may be necessary for the operation of the Property;

(iii)except as expressly provided in Article 7 hereof, merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure;

(iv)fail to observe all organizational formalities, or fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the applicable Legal Requirements of the jurisdiction of its organization or formation, or amend, modify, terminate or fail to comply with the provisions of its organizational documents;

(v)own any subsidiary, or make any investment in, any Person;

(vi)commingle its assets with the assets of any other Person, or permit any Affiliate or constituent party independent access to its bank accounts;

(vii)incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) the Debt, (B) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past the date incurred and paid on or prior to such date, and/or (C) financing leases and purchase money indebtedness incurred in the ordinary course of business relating to Personal Property on commercially reasonable terms and conditions; provided however, the aggregate amount of the indebtedness described in (B) and (C) shall not exceed at any time three percent (3%) of the outstanding principal amount of the Note;

(viii)permit its records, books of account, bank accounts, financial statements and accounting records (including with respect to financial position, assets, liabilities, net worth and operating results) to be shown on the financial statements of any holder of a beneficial interest in Borrower unless such financial statements shall contain a footnote indicating that Borrower is a separate legal entity and the assets of Borrower are not available as collateral to creditors of such holder;

(ix)enter into any contract or agreement with any general partner, member, shareholder, principal, guarantor of the obligations of Borrower, or any Affiliate of the foregoing, except upon terms and conditions that are intrinsically fair, commercially reasonable and substantially similar to those that would be available on an arm’s-length basis with unaffiliated third parties;

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(x)maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;

(xi)assume or guarantee the debts of any other Person, hold itself out to be responsible for the debts of any other Person, or otherwise pledge its assets for the benefit of any other Person or hold out its credit as being available to satisfy the obligations of any other Person;

(xii)make any loans or advances to any Person;

(xiii)fail to file its own tax returns or files a consolidated federal income tax return with any Person (unless prohibited or required, as the case may be, by applicable Legal Requirements);

(xiv)fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name or fail to correct any known misunderstanding regarding its separate identity;

(xv)fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that Borrower’s failure to do so solely because of a shortfall in cash flow derived from the operation of the Property shall not, by itself, constitute a breach of this covenant);

(xvi)Without the unanimous written consent of all of its members, as applicable, and the written consent of 100% of the managers of Borrower, including, without limitation, the Independent Director, (a) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any Creditors Rights Laws, (b) seek or consent to the appointment of a receiver, liquidator or any similar official, (c) take any action that might cause such entity to become insolvent, or (d) make an assignment for the benefit of creditors;

(xvii)fail to allocate shared expenses (including, without limitation, shared office space and services performed by an employee of an Affiliate) among the Persons sharing such expenses and to use separate stationery, invoices and checks;

(xviii)fail to remain solvent or pay its own liabilities (including, without limitation, salaries of its own employees) only from its own funds (provided that Borrower’s failure to do so solely because of a shortfall in cash flow derived from the operation of the Property shall not, by itself, constitute a breach of this covenant);

(xix)acquire obligations or securities of its partners, members, shareholders or other affiliates, as applicable;

(xx)violate or cause to be violated the assumptions made with respect to Borrower, Manager (if applicable) and their respective direct and/or indirect owners in any opinion letter pertaining to substantive consolidation delivered to Lender in connection with the Loan; or

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(xxi)fail to maintain a sufficient number of employees in light of its contemplated business operations.

(b)The limited liability company agreement of Borrower (the “LLC Agreement”) shall provide that (i) upon the occurrence of any event that causes the sole member of Borrower (“Member”) to cease to be the member of Borrower (other than (A) upon an assignment by Member of all of its limited liability company interest in Borrower and the admission of the transferee in accordance with the Loan Documents and the LLC Agreement, or (B) the resignation of Member and the admission of an additional member of Borrower in accordance with the terms of the Loan Documents and the LLC Agreement), any person acting as Independent Director of Borrower shall, without any action of any other Person and simultaneously with the Member ceasing to be the member of Borrower, automatically be admitted to Borrower (“Special Member”) and shall continue Borrower without dissolution and (ii) Special Member may not resign from Borrower or transfer its rights as Special Member unless (A) a successor Special Member has been admitted to Borrower as Special Member in accordance with requirements of Delaware law and (B) such successor Special Member has also accepted its appointment as an Independent Director. The LLC Agreement shall further provide that (i) Special Member shall automatically cease to be a member of Borrower upon the admission to Borrower of a substitute Member, (ii) Special Member shall be a member of Borrower that has no interest in the profits, losses and capital of Borrower and has no right to receive any distributions of Borrower assets, (iii) pursuant to Section 18-301 of the Delaware Limited Liability Company Act (the “Act”), Special Member shall not be required to make any capital contributions to Borrower and shall not receive a limited liability company interest in Borrower, (iv) Special Member, in its capacity as Special Member, may not bind Borrower and (v) except as required by any mandatory provision of the Act, Special Member, in its capacity as Special Member, shall have no right to vote on, approve or otherwise consent to any action by, or matter relating to, Borrower, including, without limitation, the merger, consolidation or conversion of Borrower; provided, however, such prohibition shall not limit the obligations of Special Member, in its capacity as Independent Director, to vote on such matters required by the Loan Documents or the LLC Agreement. In order to implement the admission to Borrower of Special Member, Special Member shall execute a counterpart to the LLC Agreement. Prior to its admission to Borrower as Special Member, Special Member shall not be a member of Borrower.

Upon the occurrence of any event that causes the Member to cease to be a member of Borrower, to the fullest extent permitted by law, the personal representative of Member shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of Member in Borrower, agree in writing (i) to continue Borrower and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of Member of Borrower in Borrower. Any action initiated by or brought against Member or Special Member under any Creditors Rights Laws shall not cause Member or Special Member to cease to be a member of Borrower and upon the occurrence of such an event, the business of Borrower shall continue without dissolution. The LLC Agreement shall provide that each of Member and Special Member waives any right it might have to agree in writing to dissolve Borrower upon the occurrence of any action initiated by or brought against Member or Special Member under any Creditors Rights Laws, or the occurrence of an event that causes Member or Special Member to cease to be a member of Borrower.

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Section 6.2.Change of Name, Identity or Structure

Borrower shall not change or permit to be changed (a) Borrower’s name, (b) Borrower’s identity (including its trade name or names), (c) Borrower’s principal place of business set forth on the first page of this Agreement, (d) the corporate, partnership or other organizational structure of Borrower, or Borrower Principal, (e) Borrower’s state of organization, or (f) Borrower’s organizational identification number, without in each case notifying Lender of such change in writing at least thirty (30) days prior to the effective date of such change and, in the case of a change in Borrower’s structure, without first obtaining the prior written consent of Lender. In addition, Borrower shall not change or permit to be changed any organizational documents of Borrower if such change would adversely impact the covenants set forth in Section 6.1 and Section 6.4 hereof. Borrower authorizes Lender to file any financing statement or financing statement amendment required by Lender to establish or maintain the validity, perfection and priority of the security interest granted herein. At the request of Lender, Borrower shall execute a certificate in form satisfactory to Lender listing the trade names under which Borrower intends to operate the Property, and representing and warranting that Borrower does business under no other trade name with respect to the Property. If Borrower does not now have an organizational identification number and later obtains one, or if the organizational identification number assigned to Borrower subsequently changes, Borrower shall promptly notify Lender of such organizational identification number or change. Nothing in this Section 6.2 shall be deemed to restrict any express rights granted to Borrower under Article 7 hereof.

Section 6.3.Business and Operations

Borrower will qualify to do business and will remain in good standing under the laws of the State as and to the extent the same are required for the ownership, maintenance, management and operation of the Property.

Section 6.4.Independent Director

(a)The organizational documents of Borrower shall provide that at all times there shall be, and Borrower shall cause there to be, at least one duly appointed member of the board of managers (each an ‘‘Independent Director”) of Borrower reasonably satisfactory to Lender who is not at the time of such individual’s initial appointment, and shall not have been at any time during the preceding five (5) years, and shall not be at any time while serving as a manager of Borrower, either (i) a shareholder (or other equity owner) of, or an officer, director, partner, manager, member (other than as a Special Member in the case of single member Delaware limited liability companies), employee, attorney or counsel of, Borrower, Borrower Principal or any of their respective shareholders, partners, members, subsidiaries or affiliates; (ii) a customer or creditor of, or supplier to, Borrower or any of its respective shareholders, partners, members, subsidiaries or affiliates who derives any of its purchases or revenue from its activities with Borrower or any Affiliate of any of them; (iii) a Person who Controls or is under common Control with any such shareholder, officer, director, partner, manager, member, employee, supplier, creditor or customer; or (iv) a member of the immediate family of any such shareholder, officer, director, partner, manager, member, employee, supplier, creditor or customer.

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(b)The organizational documents of Borrower shall provide that the board of managers of Borrower shall not take any action which, under the terms of any certificate of incorporation, by-laws or any voting trust agreement with respect to any common stock, requires an unanimous vote of the board of managers of Borrower unless at the time of such action there shall be at least one member of the board who is an Independent Director. Borrower will not, without the unanimous written consent of its board of managers including the Independent Director, on behalf of Borrower, (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable Creditors Rights Laws; (ii) seek or consent to the appointment of a receiver, liquidator or any similar official; (iii) take any action that might cause such entity to become insolvent; or (iv) make an assignment for the benefit of creditors.

ARTICLE 7

NO SALE OR ENCUMBRANCE

Section 7.1.Transfer Definitions

For purposes of this Article 7 an “Affiliated Manager” shall mean any managing agent in which Borrower, Borrower Principal, or any affiliate of such entities has, directly or indirectly, any legal, beneficial or economic interest; “Control” shall mean the power to direct the management and policies of a Restricted Party, directly or indirectly, whether through the ownership of voting securities or other beneficial interests, by contract or otherwise; “Restricted Party” shall mean Borrower, Borrower Principal, any Affiliated Manager, or any shareholder, partner, member or non-member manager, or any direct or indirect legal or beneficial owner of Borrower, Borrower Principal, any Affiliated Manager or any non-member manager; and a “Sale or Pledge” shall mean a voluntary or involuntary sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment, grant of any options with respect to, or any other transfer or disposition of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) of a legal or beneficial interest.

Section 7.2.No Sale/Encumbrance

(a)Borrower shall not cause or permit a Sale or Pledge of the Property or any part thereof or any legal or beneficial interest therein nor permit a Sale or Pledge of an interest in any Restricted Party (in each case, a “Prohibited Transfer”), other than pursuant to the American Express Lease, without the prior written consent of Lender.

(b)A Prohibited Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock in one or a series of transactions; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general or limited partner or any profits or proceeds relating to such partnership interests or the creation or issuance of new partnership

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interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of any member or any profits or proceeds relating to such membership interest; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the Manager (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.14.

Section 7.3.Permitted Transfers

Notwithstanding the provisions of Section 7.2, the following transfers shall not be deemed to be a Prohibited Transfer: (a) a transfer by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party, so long as Borrower delivers notice to Lender as soon as practicable thereafter and that such Restricted Party is promptly reconstituted, if applicable, following the death of such member, partner or shareholder and there is no change in Control of such Restricted Party as a result of such transfer; (b) the Sale or Pledge, in one or a series of related transactions, of not more than forty-nine percent (49%) of the stock, limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such transfers shall result in a change in Control in the Restricted Party or change in control of the Property, and as a condition to each such transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed transfer. Notwithstanding the foregoing, any one or more of the transfers that results in any Person owning in excess of forty-nine percent (49%) of the ownership interest in a Restricted Party shall comply with the requirements of Section 7.4.

Section 7.4.Lender’s Rights

Lender reserves the right to condition the consent to a Prohibited Transfer requested hereunder upon (a) a modification of the terms hereof and an assumption of the Note and the other Loan Documents as so modified by the proposed Prohibited Transfer, (b) receipt of payment of a transfer fee equal to one percent (1%) of the outstanding principal balance of the Loan and all of Lender’s expenses incurred in connection with such Prohibited Transfer, (c) receipt of written confirmation from the Rating Agencies that the Prohibited Transfer will not result in a downgrade, withdrawal or qualification of the initial, or if higher, then current ratings issued in connection with a Securitization, or if a Securitization has not occurred, any ratings to be assigned in connection with a Securitization, (d) the proposed transferee’s continued compliance with the covenants set forth in this Agreement (including, without limitation, the covenants in Article 6) and the other Loan Documents, (e) a new manager for the Property and a new management agreement satisfactory to Lender, and (f) the satisfaction of such other conditions and/or legal opinions as Lender shall determine in its sole discretion to be in the interest of Lender. All expenses incurred by Lender shall be payable by Borrower whether or not Lender consents to the Prohibited Transfer. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Prohibited Transfer made without Lender’s consent. This provision shall apply to each and every Prohibited Transfer, whether or not Lender has consented to any previous Prohibited Transfer. In the event an opinion letter pertaining to

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substantive consolidation was delivered to Lender and the Rating Agencies in connection with the closing of the Loan, and if any Sale or Pledge permitted under this Article 7 results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the ownership interests in a Restricted Party, Borrower shall, prior to such transfer, and in addition to any other requirement for Lender consent contained herein, deliver a revised substantive non-consolidation opinion letter to Lender reflecting such Prohibited Transfer, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies.

Section 7.5.Assumption

Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to a transfer of the Property in its entirety to, and the related assumption of the Loan by, any Person (a “Transferee”) provided that each of the following terms and conditions are satisfied:

(a)no Default or Event of Default has occurred;

(b)Borrower shall have (i) delivered written notice to Lender of the terms of such prospective transfer not less than forty-five (45) days before the date on which such transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in the amount of $10,000. Lender shall have the right to approve or disapprove the proposed transfer based on its then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Property, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate;

(c)Borrower shall have paid to Lender, concurrently with the closing of such transfer, (i) a non-refundable assumption fee in an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note, and (ii) all out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection with the transfer;

(d)(i) Transferee shall have assumed and agreed to pay the Debt as and when due subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such transfer, Transferee and its constituent partners, members or shareholders as Lender may require, shall have executed, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender shall have

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assumed the obligations of Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the transfer of the Property pursuant to this Section 7.5;

(e)Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable law, and shall execute any additional documents reasonably requested by Lender;

(f)Borrower shall have delivered to Lender, without any cost or expense to Lender, such endorsements to Lender’s Title Insurance Policy insuring that fee simple or leasehold title to the Property, as applicable, is vested in Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;

(g)Transferee shall have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all appropriate papers evidencing Transferee’s organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;

(h)Transferee shall assume the obligations of Borrower under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement;

(i)Transferee shall furnish an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (g) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (E) with respect to such other matters as Lender may reasonably request;

(j)if required by Lender, Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a qualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;

(k)Borrower’s obligations under the contract of sale pursuant to which the transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.5; and

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(1)Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies.

A consent by Lender with respect to a transfer of the Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Sale or Pledge of the Property. Upon the transfer of the Property pursuant to this Section 7.5, Borrower and Borrower Principal shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.

Section 7.6.Assumption by Inland Permitted Transferee

Notwithstanding the foregoing provisions of this Article 7, Borrower shall be permitted to transfer the Property in its entirety to, provided the Loan is simultaneously assumed by, an Inland Permitted Transferee, and provided further that each of the following terms and conditions is satisfied:

(a)no Default or Event of Default has occurred;

(b)Borrower shall have delivered written notice to Lender of the terms of such prospective transfer not less than forty-five (45) days before the date on which such transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transferee as Lender shall reasonably require;

(c)Borrower shall have paid to Lender all out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection with the transfer;

(d)such Inland Permitted Transferee assumes and agrees to pay the Debt as and when due subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such transfer, such Inland Permitted Transferee and its constituent partners, members or shareholders as Lender may require, shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;

(e)Borrower and such Inland Permitted Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable law, and shall execute any additional documents reasonably requested by Lender;

(f)Borrower shall have delivered to Lender, without any cost or expense to Lender, endorsements to Lender’s Title Insurance Policy insuring that fee simple title to the Property is vested in such Inland Permitted Transferee (subject to Permitted Encumbrances), hazard

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insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;

(g)such Inland Permitted Transferee shall have furnished to Lender, if such Inland Permitted Transferee is a corporation, partnership, limited liability company or other entity, all appropriate papers evidencing Transferee’s organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof, provided, however, that, (i) if such Inland Permitted Transferee is a limited partnership or a limited liability company (with more than one member), Lender may require that the general partner or managing member of such Inland Permitted Transferee also comply with the covenants set forth in Article 6, as modified to state that such general partner or managing member holds an interest in the Inland Permitted Transferee rather than an interest in the Property or (ii) if such Inland Permitted Transferee is a single member limited liability company, the state of organization of such entity must be Delaware and the organizational documents must provide for a springing member upon the bankruptcy or dissolution of the sole member;

(h)such Inland Permitted Transferee shall assume the obligations of Borrower under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement;

(i)Transferee shall furnish an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (g) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (E) with respect to such other matters as Lender may reasonably request, including, without limitation, customary single member limited liability company opinions in the event that such Inland Permitted Transferee is a Delaware limited liability company; and

(j)in the event a substantive non-consolidation opinion was required in connection with the closing of the Loan, Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies.

A consent by Lender with respect to a transfer of the Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.6 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Sale or Pledge of the Property.

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ARTICLE 8

INSURANCE; CASUALTY; CONDEMNATION; RESTORATION

Section 8.1.Insurance

(a)Subject to the provisions of paragraph (g) of this Section 8.1, Borrower shall obtain and maintain, or cause American Express to maintain, insurance for Borrower and the Property providing at least the following coverages:

(i)comprehensive “special causes of loss” form of insurance (or its equivalent) on the Improvements and the Personal Property (A) in an amount equal to not less than one hundred percent (100%) of the “Full Replacement Cost,” which for purposes of this Agreement shall mean actual replacement value (exclusive of costs of excavations, foundations, underground utilities and footings) with a waiver of depreciation; (B) written on a replacement cost basis and containing either an agreed amount endorsement with respect to the Improvements and Personal Property or a waiver of all co-insurance provisions; (C) providing for no deductible in excess of $10,000 for all such insurance coverage; (D) at all times insuring against at least those hazards that are commonly insured against under a “special causes of loss” form of policy, as the same shall exist on the date hereof, and together with any increase in the scope of coverage provided under such form after the date hereof; and (E) if any of the Improvements or the use of the Property shall at any time constitute legal non-conforming structures or uses, providing coverage for contingent liability from Operation of Building Laws, Demolition Costs and Increased Cost of Construction Endorsements and containing an “Ordinance or Law Coverage” or “Enforcement” endorsement. In addition, Borrower shall obtain: (y) if any portion of the Improvements is currently or at any time in the future located in a “special flood hazard area” designated by the Federal Emergency Management Agency, flood hazard insurance in an amount equal to the maximum amount of such insurance available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended; and (z) earthquake insurance in amounts and in form and substance reasonably satisfactory to Lender in the event the Property is located in an area with a high degree of seismic risk, provided that the insurance pursuant to clauses (y) and (z) hereof shall be on terms consistent with the special causes of loss form required under this subsection (i);

(ii)commercial general liability insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about the Property, with such insurance (A) to be on the so-called “occurrence” form with a general aggregate limit of not less than $2,000,000 and a per occurrence limit of not less than $1,000,000; (B) to continue at not less than the aforesaid limit until required to be changed by Lender in writing by reason of changed economic conditions making such protection inadequate; and (C) to cover at least the following hazards: (1) premises and operations; (2) products and completed operations; (3) independent contractors; (4) blanket contractual liability; and (5) contractual liability covering the indemnities contained in Article 12 and Article 14 hereof to the extent the same is available;

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(iii)if the rating of American Express issued by the Rating Agencies falls below the Trigger Rating, loss of rents insurance or business income insurance, as applicable, (A) with loss payable to Lender; (B) covering all risks required to be covered by the insurance provided for in subsection (i) above; and (C) which provides that after the physical loss to the Improvements and Personal Property occurs, the loss of rents or income, as applicable, will be insured until such rents or income, as applicable, either returns to the same level that existed prior to the loss or the expiration of twelve (12) months, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period; and (D) which contains an extended period of indemnity endorsement which provides that after the physical loss to the Improvements and Personal Property has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss, or the expiration of twelve (12) months from the date that the Property is repaired or replaced and operations are resumed, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period. The amount of such loss of rents or business income insurance, as applicable, shall be determined prior to the date hereof and at least once each year thereafter based on Borrower’s reasonable estimate of the gross income from the Property for the succeeding period of coverage required above. All proceeds payable to Lender pursuant to this subsection shall be held by Lender and shall be applied to the obligations secured by the Loan Documents from time to time due and payable hereunder and under the Note; provided, however, that nothing herein contained shall be deemed to relieve Borrower of its obligations to pay the obligations secured by the Loan Documents on the respective dates of payment provided for in the Note, this Agreement and the other Loan Documents except to the extent such amounts are actually paid out of the proceeds of such loss of rents or business income insurance, as applicable;

(iv)at all times during which structural construction, repairs or alterations are being made with respect to the Improvements, and only if the Property coverage form does not otherwise apply, (A) owner’s contingent or protective liability insurance covering claims not covered by or under the terms or provisions of the above mentioned commercial general liability insurance policy; and (B) the insurance provided for in subsection (i) above written in a so-called Builder’s Risk Completed Value form (1) on a non-reporting basis, (2) against “special causes of loss” insured against pursuant to subsection (i) above, (3) including permission to occupy the Property, and (4) with an agreed amount endorsement waiving co-insurance provisions;

(v)workers’ compensation, subject to the statutory limits of the State, and employer’s liability insurance in respect of any work or operations on or about the Property, or in connection with the Property or its operation (if applicable);

(vi)comprehensive boiler and machinery insurance, if applicable, in amounts as shall be reasonably required by Lender on terms consistent with the commercial property insurance policy required under subsection (i) above;

(vii)excess liability insurance in an amount not less than $75,000,000 per occurrence on terms consistent with the commercial general liability insurance required under subsection (ii) above; and

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(viii)upon sixty (60) days’ written notice, such other reasonable insurance and in such reasonable amounts as Lender from time to time may reasonably request against such other insurable hazards which at the time are commonly insured against for property similar to the Property located in or around the region in which the Property is located.

With respect to the policies required to be maintained pursuant to clauses (i) through (viii) above, Borrower shall use commercially reasonable efforts, consistent with those of prudent owners of institutional quality commercial real estate, to maintain insurance against Losses resulting from acts of terrorism.

(b)All insurance provided for in Section 8.1(a) shall be obtained under valid and enforceable policies (collectively, the “Policies” or in the singular, the “Policy”), and shall be subject to the approval of Lender as to insurance companies, amounts, deductibles, loss payees and insureds. The Policies shall be issued by financially sound and responsible insurance companies authorized to do business in the State and having a claims paying ability rating of “A-” or better by S&P (or such other ratings approved by Lender) and/or a general policy rating of “A” or better and a financial class of VIII or better by A.M. Best Company, Inc. The Policies described in Section 8.1(a) shall designate Lender and its successors and assigns as additional insureds, mortgagees and/or loss payee as deemed appropriate by Lender. To the extent such Policies are not available as of the Closing Date, Borrower shall deliver to Lender prior to the Closing Date an Acord 28 or similar certificate of insurance evidencing the coverages and amounts required hereunder and, upon request of Lender as soon as available after the Closing Date, certified copies of all Policies. Not less than ten (10) days prior to the expiration dates of any insurance coverage in place with respect to the Property, Borrower shall deliver to Lender an Acord 28 or similar certificate, accompanied by evidence satisfactory to Lender of payment of the premiums due in connection therewith (the “Insurance Premiums”), and, as soon as available thereafter, certified copies of all renewal Policies.

(c)Any blanket insurance Policy shall specifically allocate to the Property the amount of coverage from time to time required hereunder and shall otherwise provide the same protection as would a separate Policy insuring only the Property in compliance with the provisions of Section 8.1(a).

(d)All Policies provided for or contemplated by Section 8.1(a), except for the Policy referenced in Section 8.1(a)(v), shall name Borrower as the insured and Lender as the additional insured, as its interests may appear, and in the case of property damage, boiler and machinery, flood and earthquake insurance, shall contain a so-called New York standard non-contributing mortgagee clause in favor of Lender providing that the loss thereunder shall be payable to Lender.

(e)All Policies provided for in Section 8.1(a) shall contain clauses or endorsements to the effect that:

(i)no act or negligence of Borrower, or anyone acting for Borrower, or of any Tenant or other occupant, or failure to comply with the provisions of any Policy, which might otherwise result in a forfeiture of the insurance or any part thereof, shall in

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any way affect the validity or enforceability of the insurance insofar as Lender is concerned;

(ii)the Policies shall not be materially changed (other than to increase the coverage provided thereby) or canceled by the insurer without at least thirty (30) days’ (ten (10) days’ in the case of non-payment of premium) prior written notice to Lender and any other party named therein as an additional insured;

(iii)the issuers thereof shall give written notice to Lender if the Policies have not been renewed thirty (30) days prior to its expiration; and

(iv)Lender shall not be liable for any Insurance Premiums thereon or subject to any assessments thereunder.

(f)If at any time Lender is not in receipt of written evidence that all insurance required hereunder is in full force and effect, Lender shall have the right, without notice to Borrower, to take such action as Lender deems necessary to protect its interest in the Property, including, without limitation, obtaining such insurance coverage as Lender in its sole discretion deems appropriate. All premiums incurred by Lender in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by Borrower to Lender upon demand and, until paid, shall be secured by the Mortgage and shall bear interest at the Default Rate.

(g)Notwithstanding any other provision hereof to the contrary, Lender acknowledges that so long as no American Express Lease Default has occurred, Borrower shall not be required to obtain the insurance coverages set forth in paragraphs (a)(i) through (viii) if (x) Guarantor (or American Express if there is no Guarantor) is a self-insurer and maintains a rating issued by the Rating Agencies of not less than the Trigger Rating or (y) American Express maintains insurance with coverages and carriers in compliance with the terms of the American Express Lease.

Section 8.2.Casualty

If the Property shall be damaged or destroyed, in whole or in part, by fire or other casualty (a “Casualty”), Borrower shall give prompt notice of such damage to Lender and shall promptly commence and diligently prosecute the Restoration of the Property in accordance with Section 8.4, whether or not Lender makes any Net Proceeds available pursuant to Section 8.4. Borrower shall pay all costs of such Restoration whether or not such costs are covered by insurance. Lender may, but shall not be obligated to make proof of loss if not made promptly by Borrower. Borrower shall adjust all claims for Insurance Proceeds in consultation with, and approval of, Lender; provided, however, if an Event of Default has occurred and is continuing, Lender shall have the exclusive right to participate in the adjustment of all claims for Insurance Proceeds.

Section 8.3.Condemnation

Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the Condemnation of the Property of which Borrower has knowledge and shall deliver to Lender copies of any and all papers served in connection with such proceedings.

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Lender may participate in any such proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Debt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the provisions of Section 8.4, whether or not Lender makes any Net Proceeds available pursuant to Section 8.4. If the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt. So long as no American Express Lease Default has occurred, the payment and allocation of any Awards shall be governed by the American Express Lease.

Section 8.4.Restoration

The following provisions shall apply in connection with the Restoration of the Property:

(a)If the Net Proceeds shall be less than $50,000 and the costs of completing the Restoration shall be less than $50,000, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 8.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.

(b)If the Net Proceeds are equal to or greater than $50,000 or the costs of completing the Restoration are equal to or greater than $50,000, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 8.4. The term “Net Proceeds” for purposes of this Section 8.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 8.1(a)(i), (iv), (vi) and (viii) as a result of a Casualty, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting the same (“Insurance Proceeds”),or (ii) the net amount of the Award as a result of a Condemnation, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting the same (“Condemnation Proceeds”), whichever the case may be.

(i)The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:

(A)no Event of Default shall have occurred and be continuing;

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(B)(1) in the event the Net Proceeds are Insurance Proceeds, less than thirty percent (30%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of a Casualty, or (2) in the event the Net Proceeds are Condemnation Proceeds, less than ten percent (10%) of the land constituting the Property is taken, such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land;

(C)The American Express Lease shall remain in full force and effect during and after completion of the Restoration without abatement of Rent;

(D)Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than sixty (60) days after such Casualty or Condemnation, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion;

(E)Lender shall be satisfied that any operating deficits, including all scheduled payments under the Note, which will be incurred with respect to the Property as a result of the occurrence of any such Casualty or Condemnation, whichever the case may be, will be covered out of the insurance coverage referred to in Section 8.1(a)(iii) above;

(F)Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, (2) the earliest date required for such completion under the terms of any Leases or material agreements affecting the Property, (3) such time as may be required under applicable zoning law, ordinance, rule or regulation, or (4) the expiration of the insurance coverage referred to in Section 8.1(a)(iii);

(G)the Property and the use thereof after the Restoration will be in compliance with and permitted under all Legal Requirements;

(H)the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements;

(I)such Casualty or Condemnation, as applicable, does not result in the loss of access to the Property or the Improvements;

(J)Borrower shall deliver, or cause to be delivered, to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, which budget shall be acceptable to Lender; and

(K)the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s reasonable judgment to cover the cost of the Restoration.

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(ii)The Net Proceeds shall be held by Lender until disbursements commence, and, until disbursed in accordance with the provisions of this Section 8.4, shall constitute additional security for the Debt and other obligations under the Loan Documents. The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all the conditions precedent to such advance, including those set forth in Section 8.4(b)(i), have been satisfied, (B) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the related Restoration item have been paid for in full, and (C) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy. Notwithstanding the foregoing, Business Interruption Proceeds required to be maintained by Borrower pursuant to section 8.1(a)(iii) shall be controlled by Lender at all times, shall not be subject to the provisions of this Section 8.4 and shall be used solely for the payment of the obligations under the Loan Documents and Operating Expenses.

(iii)All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Restoration Consultant”). Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration, as well as the contracts in excess of $50,000 under which they have been engaged, shall be subject to prior review and acceptance by Lender and the Restoration Consultant. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration, including, without limitation, reasonable counsel fees and disbursements and the Restoration Consultant’s fees, shall be paid by Borrower.

(iv)In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Restoration Consultant, minus the Restoration Retainage. The term “Restoration Retainage” shall mean an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Restoration Consultant, until the Restoration has been completed. The Restoration Retainage shall be reduced to five percent (5%) of the costs incurred upon receipt by Lender of satisfactory evidence that fifty percent (50%) of the Restoration has been completed. The Restoration Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Section 8.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Restoration Retainage shall not be released until the Restoration Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 8.4(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate Governmental Authorities, and Lender receives evidence satisfactory to

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Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Restoration Retainage; provided, however, that Lender will release the portion of the Restoration Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Restoration Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company issuing the Title Insurance Policy, and Lender receives an endorsement to the Title Insurance Policy insuring the continued priority of the lien of the Mortgage and evidence of payment of any premium payable for such endorsement. If required by Lender, the release of any such portion of the Restoration Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.

(v)Lender shall not be obligated to make disbursements of the Net Proceeds more frequently than once every calendar month.

(vi)If at any time the Net Proceeds or the undisbursed balance thereof shall not, in the reasonable opinion of Lender in consultation with the Restoration Consultant, be sufficient to pay in full the balance of the costs which are estimated by the Restoration Consultant to be incurred in connection with the completion of the Restoration, Borrower shall deposit the deficiency (the “Net Proceeds Deficiency”) with Lender before any further disbursement of the Net Proceeds shall be made. The Net Proceeds Deficiency deposited with Lender shall be held by Lender and shall be disbursed for costs actually incurred in connection with the Restoration on the same conditions applicable to the disbursement of the Net Proceeds, and until so disbursed pursuant to this Section 8.4(b) shall constitute additional security for the Debt and other obligations under the Loan Documents.

(vii)The excess, if any, of the Net Proceeds and the remaining balance, if any, of the Net Proceeds Deficiency deposited with Lender after the Restoration Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 8.4(b), and the receipt by Lender of evidence satisfactory to Lender that all costs incurred in connection with the Restoration have been paid in full, shall be remitted by Lender to Borrower, provided no Event of Default shall have occurred and shall be continuing under the Note, this Agreement or any of the other Loan Documents.

(c)All Net Proceeds not required (i) to be made available for the Restoration or (ii) to be returned to Borrower as excess Net Proceeds pursuant to Section 8.4(b)(vii) may (x) be retained and applied by Lender toward the payment of the Debt whether or not then due and payable in such order, priority and proportions as Lender in its sole discretion shall deem proper, or, (y) at the sole discretion of Lender, the same may be paid, either in whole or in part, to Borrower for such purposes and upon such conditions as Lender shall designate.

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(d)In the event of foreclosure of the Mortgage, or other transfer of title to the Property in extinguishment in whole or in part of the Debt, all right, title and interest of Borrower in and to the Policies then in force concerning the Property and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure, Lender or other transferee in the event of such other transfer of title.

(e)Notwithstanding the foregoing, so long as no American Express Lease Default has occurred, the Net Proceeds shall be used for restoration of the Property in accordance with the provisions of the American Express Lease.

ARTICLE 9

REPLACEMENTS; RESERVE FUNDS

Section 9.1.Replacements

On an ongoing basis throughout the term of the Loan, Borrower shall make capital repairs, replacements and improvements necessary to keep the Property in good order and repair and in a good marketable condition or prevent deterioration of the Property. So long as no American Express Lease Default shall have occurred, the compliance by American Express with its obligations for maintenance of the Property as set forth in the American Express Lease shall be deemed compliance by Borrower with the provisions of this Section 9.1.

Section 9.2.Tax and Insurance Reserve Funds

If required by Lender following a default by American Express under the American Express Lease Borrower shall establish an Eligible Account with Lender or Lender’s agent sufficient to discharge Borrower’s obligations for the payment of Taxes and Insurance Premiums pursuant to Section 5.4 and Section 8.1 hereof (the “Tax and Insurance Reserve Account”) Borrower shall deposit into the Tax and Insurance Reserve Account on each Scheduled Payment Date (a) one-twelfth of the Taxes that Lender estimates will be payable during the next ensuing twelve (12) months or such higher amount necessary to accumulate with Lender sufficient funds to pay all such Taxes at least thirty (30) days prior to the earlier of (i) the date that the same will become delinquent and (ii) the date that additional charges or interest will accrue due to the non-payment thereof, and (b) except to the extent Lender has waived the insurance escrow because the insurance required hereunder is maintained under a blanket insurance Policy acceptable to Lender in accordance with Section 8.1(c), one-twelfth of the Insurance Premiums that Lender estimates will be payable during the next ensuing twelve (12) months for the renewal of the coverage afforded by the Policies upon the expiration thereof or such higher amount necessary to accumulate with Lender sufficient funds to pay all such Insurance Premiums at least thirty (30) days prior to the expiration of the Policies (said amounts in (a) and (b) above hereinafter called the “Tax and Insurance Reserve Funds”). Lender will apply the Tax and Insurance Reserve Funds to payments of Taxes and Insurance Premiums required to be made by Borrower pursuant to Section 5.4 and Section 8.1 hereof. In making any disbursement from the Tax and Insurance Reserve Account, Lender may do so according to any bill, statement or estimate procured from the appropriate public office or tax lien service (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums), without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim

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thereof. If the amount of the Tax and Insurance Reserve Funds shall exceed the amounts due for Taxes and Insurance Premiums pursuant to Section 5.4 and Section 8.1 hereof, Lender shall, in its sole discretion, return any excess to Borrower or credit such excess against future payments to be made to the Tax and Insurance Reserve Account. In allocating any such excess, Lender may deal with the person shown on Lender’s records as being the owner of the Property. Any amount remaining in the Tax and Insurance Reserve Account after the Debt has been paid in full shall be returned to Borrower or the person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto. If at any time Lender reasonably determines that the Tax and Insurance Reserve Funds are not or will not be sufficient to pay Taxes and Insurance Premiums by the dates set forth in (a) and (b) above, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.

Section 9.3.Reserve Funds Generally

(a)No earnings or interest on the Reserve Accounts shall be payable to Borrower. Neither Lender nor any loan servicer that at any time holds or maintains the Reserve Accounts shall have any obligation to keep or maintain such Reserve Accounts or any funds deposited therein in interest-bearing accounts. If Lender or any such loan servicer elects in its sole and absolute discretion to keep or maintain any Reserve Accounts or any funds deposited therein in an interest-bearing account (i) the account shall be an Eligible Account, (ii) such funds shall not be invested except in Permitted Investments, and (iii) all interest earned or accrued thereon shall be for the account of and be retained by Lender or such loan servicer.

(b)Borrower grants to Lender a first-priority perfected security interest in, and assigns and pledges to Lender, each of the Reserve Accounts and any and all funds hereafter deposited therein as additional security for payment of the Debt. Until expended or applied in accordance herewith, the Reserve Accounts and the Reserve Funds shall constitute additional security for the Debt. The provisions of this Section 9.9 are intended to give Lender or any subsequent holder of the Loan “control” of the Reserve Accounts within the meaning of the UCC.

(c)The Reserve Accounts and any and all Reserve Funds deposited therein shall be subject to the exclusive dominion and control of Lender, which shall hold the Reserve Accounts and any or all Reserve Funds now or hereafter deposited therein subject to the terms and conditions of this Agreement. Borrower shall have no right of withdrawal from the Reserve Accounts or any other right or power with respect to the Reserve Accounts or any or all of the Reserve Funds hereinafter deposited therein, except as expressly provided in this Agreement.

(d)Lender shall furnish or cause to be furnished to Borrower, without charge, an annual accounting of each Reserve Account in the normal format of Lender or its loan servicer, showing credits and debits to such Reserve Account and the purpose for which each debit to such Reserve Account was made.

(e)As long as no Event of Default has occurred, Lender shall make disbursements from the Reserve Accounts in accordance with this Agreement. All such disbursements shall be

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deemed to have been expressly pre-authorized by Borrower, and shall not be deemed to constitute the exercise by Lender of any remedies against Borrower unless an Event of Default has occurred and is continuing and Lender has expressly stated in writing its intent to proceed to exercise its remedies as a secured party, pledgee or lienholder with respect to the Reserve Accounts.

(f)The Reserve Funds shall not constitute escrow or trust funds and may be commingled with other monies held by Lender. Notwithstanding anything else herein to the contrary, Lender may commingle in one or more Eligible Accounts any and all funds controlled by Lender, including, without limitation, funds pledged in favor of Lender by other borrowers, whether for the same purposes as the Reserve Accounts or otherwise. Without limiting any other provisions of this Agreement or any other Loan Document, the Reserve Accounts may be established and held in such name or names as Lender or its loan servicer, as agent for Lender, shall deem appropriate, including, without limitation, in the name of Lender or such loan servicer as agent for Lender. In the case of any Reserve Account which is held in a commingled account, Lender or its loan servicer, as applicable, shall maintain records sufficient to enable it to determine at all times which portion of such account is related to the Loan. The Reserve Accounts are solely for the protection of Lender and Lender shall have no responsibility beyond the allowance of due credit for the sums actually received by Lender or beyond the reimbursement or payment of the costs and expenses for which such accounts were established in accordance with their terms. Upon assignment of the Loan by Lender, any Reserve Funds shall be turned over to the assignee and any responsibility of Lender as assignor shall terminate. The requirements of this Agreement concerning Reserve Accounts in no way supersede, limit or waive any other rights or obligations of the parties under any of the Loan Documents or under applicable law.

(g)Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in the Reserve Accounts or the Reserve Funds deposited therein or permit any Lien to attach thereto, except for the security interest granted in this Section 9.9, or any levy to be made thereon, or any UCC Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.

(h)Borrower will maintain the security interest created by this Section 9.9 as a first priority perfected security interest and will defend the right, title and interest of Lender in and to the Reserve Accounts and the Reserve Funds against the claims and demands of all Persons whomsoever. At any time and from time to time, upon the written request of Lender, and at the sole expense of Borrower, Borrower will promptly and duly execute and deliver such further instruments and documents and will take such further actions as Lender reasonably may request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted.

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ARTICLE 10

CASH MANAGEMENT

Section 10.1.Cash Management Account

(a)Borrower acknowledges and confirms that Borrower has established, and Borrower covenants that it shall maintain an Eligible Account into which Borrower shall, and shall cause Manager to, deposit or cause to be deposited all Rents and other revenue from the Property during the Cash Management Period or upon the occurrence of an Event of Default prior to the commencement of the Cash Management Period pursuant to the terms of Section 10.2 hereof (such account, the sub-accounts thereof, all funds at any time on deposit therein and any proceeds, replacements or substitutions of such account or funds therein, are referred to herein as the “Cash Management Account”).

(b)The Cash Management Account shall be in the name of Borrower for the benefit of Lender, provided that Borrower shall be the owner of all funds on deposit in such accounts for federal and applicable state and local tax purposes (except to the extent Lender retains any interest earned on the Cash Management Account for its own account following the occurrence and during the continuance of an Event of Default). Sums on deposit in the Cash Management Account shall not be invested except in such Permitted Investments as determined and directed by Lender and all income earned thereon shall be the income of Borrower and be applied to and become part of the Cash Management Account, to be disbursed in accordance with this Article 10. Lender shall have no liability for any loss resulting from the investment of funds in Permitted Investments in accordance with the terms and conditions of this Agreement.

(c)The Cash Management Account shall be subject to the exclusive dominion and control of Lender during the Cash Management Period or the continuance of an Event of Default and, except as otherwise expressly provided herein, neither Borrower, Manager nor any other party claiming on behalf of, or through, Borrower or Manager, shall have any right of withdrawal therefrom or any other right or power with respect thereto.

(d)Borrower agrees to pay the customary fees and expenses incurred in connection with maintaining the Cash Management Account.

(e)Lender shall be responsible for the performance only of such duties with respect to the Cash Management Account as are specifically set forth herein, and no duty shall be implied from any provision hereof. Lender shall not be under any obligation or duty to perform any act which would involve it in expense or liability or to institute or defend any suit in respect hereof, or to advance any of its own monies. Borrower shall indemnify and hold Lender and its directors, employees, officers and agents harmless from and against any loss, cost or damage (including, without limitation, reasonable attorneys’ fees and disbursements) incurred by such parties in connection with the Cash Management Account other than such as result from the gross negligence or willful misconduct of Lender or intentional nonperformance by Lender of its obligations under this Agreement.

Section 10.2.Deposits and Withdrawals

(a)Borrower represents, warrants and covenants that:

(i)Concurrently with the execution of this Agreement Borrower has executed and delivered to Lender an instruction letter in the form of Exhibit B attached hereto addressed to American Express (the “Tenant Direction Letter”). Upon the occurrence of

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an Event of Default or upon commencement of the Cash Management Period, Lender or Lender’s agent shall have the right to deliver the Tenant Direction Letter to American Express and all payments of Rent and other items payable under the American Express Lease shall thereafter be sent directly to the Cash Management Account;

(ii)On the occurrence of an Event of Default or the commencement of the Cash Management Period Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the Cash Management Account. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;

(iii)All Rents or other income from the Property received after the commencement of the Cash Management Period or the occurrence of an Event of Default shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of the Tenant Direction Letter, be deposited in the Cash Management Account within one (1) Business Day of receipt;

(iv)Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, during the Cash Management Period or the continuance of an Event of Default neither Borrower nor Manager shall terminate, amend, revoke or modify the Tenant Direction Letter in any manner whatsoever or direct or cause American Express to pay any amount in any manner other than as provided in the Tenant Direction Letter; and

(v)So long as any portion of the Debt remains outstanding, during the Cash Management Period or during the continuance of an Event of Default neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Cash Management Account into which revenues from the ownership and operation of the Property are deposited.

(b)Intentionally Omitted.

(c)If an Event of Default shall have occurred and be continuing or during a Cash Management Period, on each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month immediately following the month during which the Cash Management Period commences, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:

(i)following a default by American Express under the American Express Lease, funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve

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Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.2;

(ii)funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;

(iii)funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;

(iv)funds sufficient to pay Operating Expenses (to the extent actually incurred) for the following month shall be allocated to the Operating Expense Reserve Account to be held and disbursed to pay Operating Expenses;

(v)funds in an amount equal to the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be withdrawn and paid to Lender to be applied to the principal amount of the Loan until the principal amount of the Loan is paid in full.

(d)Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).

(e)If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Cash Management Account and transfers between any Reserve Account as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.

Section 10.3.Security Interest

(a)To secure the full and punctual payment of the Debt and performance of all obligations of Borrower now or hereafter existing under this Agreement and the other Loan Documents, Borrower hereby grants to Lender a first-priority perfected security interest in each of the Accounts and the Account Collateral. Furthermore, Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any of the foregoing or permit any Lien to attach thereto or any levy to be made thereon or any UCC Financing Statements to be filed with respect thereto. Borrower will maintain the security

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interest created by this Section 10.3(a) as a first priority perfected security interest and will defend the right, title and interest of Lender in and to each of the Accounts and the Account Collateral against the claims and demands of all Persons whomsoever.

(b)Borrower authorizes Lender to file any financing statement or statements required by Lender to establish or maintain the validity, perfection and priority of the security interest granted herein in connection with the Cash Management Account. Borrower agrees that at any time and from time to time, at the expense of Borrower, Borrower will promptly and duly execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable, or that Lender may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereby (including, without limitation, any security interest in and to any Permitted Investments) or to enable Lender to exercise and enforce its rights and remedies hereunder.

(c)Upon the occurrence of an Event of Default, Lender may exercise any or all of its rights and remedies as a secured party, pledgee and lienholder with respect to the Accounts and the Account Collateral. Without limitation of the foregoing, upon any Event of Default, Lender may use the Accounts and the Account Collateral for any of the following purposes: (A) repayment of the Debt, including, but not limited to, principal prepayments and the prepayment premium applicable to such full or partial prepayment (as applicable); (B) reimbursement of Lender for all losses, fees, costs and expenses (including, without limitation, reasonable legal fees) suffered or incurred by Lender as a result of such Event of Default; (C) payment of any amount expended in exercising any or all rights and remedies available to Lender at law or in equity or under this Agreement or under any of the other Loan Documents; (D) payment of any item as required or permitted under this Agreement; or (E) any other purpose permitted by applicable law; provided, however, that any such application of funds shall not cure or be deemed to cure any Event of Default. Without limiting any other provisions hereof, each of the remedial actions described in the immediately preceding sentence shall be deemed to be a commercially reasonable exercise of Lender’s rights and remedies as a secured party with respect to the Accounts and the Account Collateral and shall not in any event be deemed to constitute a setoff or a foreclosure of a statutory banker’s lien. Nothing in this Agreement shall obligate Lender to apply all or any portion of the Accounts and the Account Collateral to effect a cure of any Event of Default, or to pay the Debt, or in any specific order of priority. The exercise of any or all of Lender’s rights and remedies under this Agreement or under any of the other Loan Documents shall not in any way prejudice or affect Lender’s right to initiate and complete a foreclosure under the Mortgage.

ARTICLE 11

EVENTS OF DEFAULT; REMEDIES

Section 11.1.Event of Default

The occurrence of any one or more of the following events shall constitute an “Event of Default”:

(a)if any portion of the Debt is not paid on or prior to the tenth day following the date the same is due or if the entire Debt is not paid on or before the Maturity Date;

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(b)except as otherwise expressly provided in the Loan Documents, if any of the Taxes or Other Charges are not paid when the same are due and payable, unless there is sufficient money in the Tax and Insurance Reserve Account for payment of amounts then due and payable and Lender’s access to such money has not been constrained or restricted in any manner;

(c)should American Express cease to be a self-insurer or if the rating of American express issued by the Rating Agencies falls below the Trigger Rating, if (i) the Policies are not kept in full force and effect, or (ii) the Accord 28 (or similar) certificate is not delivered to Lender in accordance with Section 8.1;

(d)if Borrower breaches any covenant with respect to itself contained in Article 6 or any covenant contained in Article 7 hereof;

(e)if any representation or warranty of, or with respect to, Borrower or Borrower Principal, or any member, general partner, principal or beneficial owner of any of the foregoing, made herein, in any other Loan Document, or in any certificate, report, financial statement or other instrument or document furnished to Lender at the time of the closing of the Loan or during the term of the Loan shall have been false or misleading in any material respect when made;

(f)if (i) Borrower, or any managing member or general partner of Borrower, Borrower Principal, or American Express shall commence any case, proceeding or other action (A) under any Creditors Rights Laws, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii) there shall be commenced against Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of any order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (iv) Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due;

(g)if Borrower shall be in default beyond applicable notice and grace periods under any other mortgage, deed of trust, deed to secure debt or other security agreement covering any part of the Property, whether it be superior or junior in lien to the Mortgage;

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(h)if the Property becomes subject to any mechanic’s, materialman’s or other Lien other than a Lien for any Taxes or Other Charges not then due and payable and the Lien shall remain undischarged of record (by payment, bonding or otherwise) for a period of thirty (30) days;

(i)if any federal income tax lien is filed against Borrower, any member or general partner of Borrower, Borrower Principal, or the Property and same is not discharged of record (or bonded or insured to Lender’s satisfaction) within thirty (30) days after same is filed;

(j)if an uninsured judgment is filed against the Borrower in excess of $20,000 which is not vacated or discharged (or bonded or insured to Lender’s satisfaction) within 30 days;

(k)if any default occurs under any guaranty or indemnity executed in connection herewith and such default continues after the expiration of applicable grace periods, if any;

(1)if Borrower shall permit any event within its control to occur that would cause any REA to terminate without notice or action by any party thereto or would entitle any party to terminate any REA and the term thereof by giving notice to Borrower; or any REA shall be surrendered, terminated or canceled for any reason or under any circumstance whatsoever except as provided for in such REA; or any term of any REA shall be modified or supplemented unless permitted by the American Express Lease; or Borrower shall fail, within ten (10) Business Days after demand by Lender, to exercise its option to renew or extend the term of any REA or shall fail or neglect to pursue diligently all actions necessary to exercise such renewal rights pursuant to such REA except as provided for in such REA; or

(m)if an American Express Lease Default shall occur under the American Express Lease; or

(n)if Borrower shall continue to be in default under any other term, covenant or condition of this Agreement or any of the Loan Documents for more than ten (10) days after notice from Lender in the case of any default which can be cured by the payment of a sum of money or for thirty (30) days after notice from Lender in the case of any other default, provided that if such default cannot reasonably be cured within such thirty (30) day period and Borrower shall have commenced to cure such default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for so long as it shall require Borrower in the exercise of due diligence to cure such default, it being agreed that no such extension shall be for a period in excess of one hundred twenty (120) days.

Section 11.2.Remedies

(a)Upon the occurrence of an Event of Default (other than anEvent of Default described in Section 11.1(f) above) and at any time thereafter Lender may, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in the Property, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents against Borrower and the Property,

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including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in Section 11.1(f) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.

(b)Upon the occurrence of an Event of Default, all or any one or more of the rights, powers, privileges and other remedies available to Lender against Borrower under this Agreement or any of the other Loan Documents executed and delivered by, or applicable to, Borrower or at law or in equity may be exercised by Lender at any time and from time to time, whether or not all or any of the Debt shall be declared due and payable, and whether or not Lender shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Loan Documents with respect to the Property. Any such actions taken by Lender shall be cumulative and concurrent and may be pursued independently, singularly, successively, together or otherwise, at such time and in such order as Lender may determine in its sole discretion, to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of Lender permitted by law, equity or contract or as set forth herein or in the other Loan Documents.

ARTICLE 12

ENVIRONMENTAL PROVISIONS

Section 12.1.Environmental Representations and Warranties

Borrower represents and warrants, except as disclosed in an Environmental Report of the Property and information that Borrower knows that: (a) there are no Hazardous Materials or underground storage tanks in, on, or under the Property, except those that are both (i) in compliance with Environmental Laws and with permits issued pursuant thereto (if such permits are required), if any, and (ii) either (A) in the case of Hazardous Materials, in amounts not in excess of that necessary to operate the Property for the purposes set forth herein or (B) fully disclosed to and approved by Lender in writing pursuant to an Environmental Report; (b) there are no past, present or threatened Releases of Hazardous Materials in violation of any Environmental Law or which would require remediation by a Governmental Authority in, on, under or from the Property except as described in the Environmental Report; (c) there is no threat of any Release of Hazardous Materials migrating to the Property except as described in the Environmental Report; (d) there is no past or present non-compliance with Environmental Laws, or with permits issued pursuant thereto, in connection with the Property except as described in the Environmental Report; (e) Borrower does not know of, and has not received, any written or oral notice or other communication from any Person relating to Hazardous Materials in, on, under or from the Property; (f) the Property is free of Mold; and (g) Borrower has truthfully and fully provided to Lender, in writing, any and all information relating to environmental conditions in, on, under or from the Property known to Borrower or contained in Borrower’s files and records, including but not limited to any reports relating to Hazardous Materials in, on, under or migrating to or from the Property and/or to the environmental condition of or the presence of Mold at the Property.

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Section 12.2.Environmental Covenants

Borrower covenants and agrees that so long as Borrower owns, manages and is in possession of the operation of the Property: (a) all uses and operations on or of the Property, whether by Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto; (b) there shall be no Releases of Hazardous Materials in, on, under or from the Property; (c) there shall be no Hazardous Materials in, on, or under the Property, except those that are both (i) in compliance with all Environmental Laws and with permits issued pursuant thereto, if and to the extent required, and (ii) (A) in amounts not in excess of that necessary to operate the Property for the purposes set forth herein or (B) fully disclosed to and approved by Lender in writing or (C) with respect to Mold, not in a condition, location, or of a type which may pose a risk to human health or safety or the environment or which may result in damage to or would adversely affect or impair the value or marketability of the Property; (d) Borrower shall keep the Property free and clear of all Environmental Liens; (e) Borrower shall, at its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to Section 12.4 below, including but not limited to providing all relevant information and making knowledgeable persons available for interviews; (f) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender, upon Lender’s reasonable belief that the Property is not in full compliance with all Environmental Laws, and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (g) Borrower shall keep the Property free of Mold; and (h) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender to (i) reasonably effectuate remediation of any Hazardous Materials in, on, under or from the Property; and (ii) comply with any Environmental Law; (i) Borrower shall not allow any tenant or other user of the Property to violate any Environmental Law; and (j) Borrower shall immediately notify Lender in writing after it has become aware of (A) any presence or Release or threatened Release of Hazardous Materials in, on, under, from or migrating towards the Property; (B) any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien against the Property; (D) any required or proposed remediation of environmental conditions relating to the Property; and (E) any written or oral notice or other communication of which Borrower becomes aware from any source whatsoever (including but not limited to a Governmental Authority) relating in any way to Hazardous Materials. Any failure of Borrower to perform its obligations pursuant to this Section 12.2 shall constitute bad faith waste with respect to the Property.

Section 12.3.Lender’s Rights

Lender and any other Person designated by Lender, including but not limited to any representative of a Governmental Authority, and any environmental consultant, and any receiver appointed by any court of competent jurisdiction, shall have the right, but not the obligation, to enter upon the Property at all reasonable times to assess any and all aspects of the environmental condition of the Property and its use, including but not limited to conducting any environmental assessment or audit (the scope of which shall be determined in Lender’s sole discretion) and taking samples of soil, groundwater or other water, air, or building materials, and conducting

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other invasive testing. Borrower shall cooperate with and provide access to Lender and any such person or entity designated by Lender.

Section 12.4.Operations and Maintenance Programs

If recommended by the Environmental Report or any other environmental assessment or audit of the Property, Borrower shall establish and comply with an operations and maintenance program with respect to the Property, in form and substance reasonably acceptable to Lender, prepared by an environmental consultant reasonably acceptable to Lender, which program shall address any asbestos-containing material or lead based paint that may now or in the future be detected at or on the Property. Without limiting the generality of the preceding sentence, Lender may require (a) periodic notices or reports to Lender in form, substance and at such intervals as Lender may specify, (b) an amendment to such operations and maintenance program to address changing circumstances, laws or other matters, (c) at Borrower’s sole expense, supplemental examination of the Property by consultants specified by Lender, (d) access to the Property by Lender, its agents or servicer, to review and assess the environmental condition of the Property and Borrower’s compliance with any operations and maintenance program, and (e) variation of the operations and maintenance program in response to the reports provided by any such consultants.

Section 12.5.Environmental Definitions

“Environmental Law” means any present and future federal, state and local laws, statutes, ordinances, rules, regulations, standards, policies and other government directives or requirements, as well as common law, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act and the Resource Conservation and Recovery Act, that apply to Borrower or the Property and relate to Hazardous Materials or protection of human health or the environment. “Environmental Liens” means all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of Borrower or any other Person. “Environmental Report” means the written reports resulting from the environmental site assessments of the Property delivered to Lender in connection with the Loan. “Hazardous Materials” shall mean petroleum and petroleum products and compounds containing them, including gasoline, diesel fuel and oil; explosives, flammable materials; radioactive materials; polychlorinated biphenyls and compounds containing them; lead and lead-based paint; asbestos or asbestos-containing materials in any form that is or could become friable; underground or above-ground storage tanks, whether empty or containing any substance; any substance the presence of which on the Property is prohibited by any federal, state or local authority; any substance that requires special handling; and any other material or substance now or in the future defined as a “hazardous substance,” “hazardous material”, “hazardous waste”, “toxic substance”, “toxic pollutant”, “contaminant”, or “pollutant” within the meaning of any Environmental Law. “Mold” shall mean any mold, fungi, bacterial or microbial matter present at or in the Property, including, without limitation, building materials which is in a condition, location or a type which may pose a risk to human health or safety or the environment, may result in damage to or would adversely affect or impair the value or marketability of the Property. “Release” of any Hazardous Materials includes but is not limited to any release, deposit, discharge, emission, leaking, spilling, seeping, migrating, injecting,

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pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Materials.

ARTICLE 13

SECONDARY MARKET

Section 13.1.Transfer of Loan

Lender may, at any time, sell, transfer or assign the Loan Documents, or grant participations therein (“Participations”) or syndicate the Loan (“Syndication”) or issue mortgage pass-through certificates or other securities evidencing a beneficial interest in a rated or unrated public offering or private placement (“Securities”) (a Syndication or the issuance of Participations and/or Securities, a “Securitization”).

Section 13.2.Delegation of Servicing

At the option of Lender, the Loan may be serviced by a servicer/trustee selected by Lender and Lender may delegate all or any portion of its responsibilities under this Agreement and the other Loan Documents to such servicer/trustee pursuant to a servicing agreement between Lender and such servicer/trustee.

Section 13.3.Dissemination of Information

Lender may forward to each purchaser, transferee, assignee, or servicer of, and each participant, or investor in, the Loan, or any Participations and/or Securities or any of their respective successors (collectively, the “Investor”) or any Rating Agency rating the Loan, or any Participations and/or Securities, each prospective Investor, and any organization maintaining databases on the underwriting and performance of commercial mortgage loans, all documents and information which Lender now has or may hereafter acquire relating to the Debt and to Borrower, any managing member or general partner thereof, Borrower Principal, and the Property, including financial statements, whether furnished by Borrower or otherwise, as Lender determines necessary or desirable. Borrower irrevocably waives any and all rights it may have under applicable Legal Requirements to prohibit such disclosure, including but not limited to any right of privacy.

Section 13.4.Cooperation

Borrower and Borrower Principal agree to cooperate with Lender in connection with any sale or transfer of the Loan or any Participation and/or Securities created pursuant to this Article 13, including, without limitation, (a) the delivery of an estoppel certificate required in accordance with Section 5.12(a) and such other documents as may be reasonably requested by Lender, (b) the execution of such amendments to the Loan Documents as may be requested by the holder of the Note or the Rating Agencies or otherwise to effect the Securitization including, without limitation, bifurcation of the Loan into two or more components and/or separate notes; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, except in connection with a bifurcation of the Loan which may result in varying fixed interest rates and amortization schedules, but which shall

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have the same initial weighted average coupon of the original Note, or (ii) in the reasonable judgment of Borrower, modify or amend any other material economic term of the Loan, or (iii) in the reasonable judgment of Borrower, materially increase Borrower’s obligations and liabilities under the Loan Documents, and (c)make changes to the organizational documents of Borrower and its principals and/or use its best efforts to cause changes to the legal opinions delivered by Borrower in connection with the Loan, provided, that such changes shall not result in a material adverse economic effect to Borrower. Borrower shall also furnish and Borrower and Borrower Principal consent to Lender furnishing to such Investors or such prospective Investors or such Rating Agency any and all information concerning the Property, the American Express Lease, the financial condition of Borrower or Borrower Principal as may be requested by Lender, any Investor, any prospective Investor or any Rating Agency in connection with any sale or transfer of the Loan or any Participations or Securities. Neither Borrower nor Borrower Principal shall be responsible for any costs incurred by Lender in connection with a Securitization.

ARTICLE 14

INDEMNIFICATIONS

Section 14.1.General Indemnification

Borrower shall indemnify, defend and hold harmless the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising out of or in any way relating to any one or more of the following: (a) any accident, injury to or death of persons or loss of or damage to property occurring in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (b) any use, nonuse or condition in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (c) performance of any labor or services or the furnishing of any materials or other property in respect of the Property or any part thereof; (d) any failure of the Property to be in compliance with any applicable Legal Requirements; (e) any and all claims and demands whatsoever which may be asserted against Lender by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants, or agreements contained in any Lease; (f) the holding or investing of the Reserve Accounts, or (g) the payment of any commission, charge or brokerage fee to anyone which may be payable in connection with the funding of the Loan (collectively, the “Indemnified Liabilities”);provided, however, that Borrower shall not have any obligation to Lender hereunder to the extent that such Indemnified Liabilities arise from the gross negligence, illegal acts, fraud or willful misconduct of Lender. To the extent that the undertaking to indemnify, defend and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, Borrower shall pay the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Lender.

Section 14.2.Mortgage and Intangible Tax indemnification

Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising out of or in any

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way relating to any tax on the making and/or recording of the Mortgage, the Note or any of the other Loan Documents, but excluding any income, franchise or other similar taxes.

Section 14.3.ERISA Indemnification

Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses (including, without limitation, reasonable attorneys’ fees and costs incurred in the investigation, defense, and settlement of Losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Lender’s sole discretion) that Lender may incur, directly or indirectly, as a result of a default under Section 4.9 or Section 5.18 of this Agreement.

Section 14.4.Survival

The obligations and liabilities of Borrower and Borrower Principal under this Article 14 shall fully survive indefinitely notwithstanding any termination, satisfaction, assignment, entry of a judgment of foreclosure, exercise of any power of sale, or delivery of a deed in lieu of foreclosure of the Mortgage.

ARTICLE 15

EXCULPATION

Section 15.1.Exculpation

(a)Except as otherwise provided herein or in the other Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to perform and observe the obligations contained herein or in the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or Borrower Principal, except that Lender may bring a foreclosure action, action for specific performance or other appropriate action or proceeding to enable Lender to enforce and realize upon this Agreement, the Note, the Mortgage and the other Loan Documents, and the interest in the Property, the Rents (following an Event of Default) and any other collateral given to Lender created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower or Borrower Principal, as applicable, only to the extent of Borrower’s or Borrower Principal’s interest in the Property, in the Rents and in any other collateral given to Lender. Lender, by accepting this Agreement, the Note, the Mortgage and the other Loan Documents, agrees that it shall not, except as otherwise provided in this Section 15.1, sue for, seek or demand any deficiency judgment against Borrower or Borrower Principal in any such action or proceeding, under or by reason of or under or in connection with this Agreement, the Note, the Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note, the Mortgage or the other Loan Documents; (ii) impair the right of Lender to name Borrower or Borrower Principal as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Mortgage; (iii) affect, the validity or enforceability of any indemnity (including, without limitation, those contained in Section 12.6

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and Article 14 of this Agreement), environmental indemnity, guaranty, master lease or similar instrument made in connection with this Agreement, the Note, the Mortgage and the other Loan Documents; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of the assignment of leases provisions contained in the Mortgage; or (vi) impair the right of Lender to obtain a deficiency judgment or other judgment on the Note against Borrower or Borrower Principal if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided however, Lender shall only enforce such judgment to the extent of the Insurance Proceeds and/or Awards.

(b)Notwithstanding the provisions of this Section 15.1 to the contrary, Borrower and Borrower Principal shall be personally liable to Lender on a joint and several basis for Losses due to:

(i)fraud or intentional misrepresentation by Borrower, Borrower Principal or any other Affiliate of Borrower or Borrower Principal in connection with the execution and the delivery of this Agreement, the Note, the Mortgage, any of the other Loan Documents, or any certificate, report, financial statement or other instrument or document furnished to Lender at the time of the closing of the Loan or during the term of the Loan;

(ii)Borrower’s misapplication or misappropriation of Rents received by Borrower after the occurrence of an Event of Default;

(iii)Borrower’s misapplication or misappropriation of tenant security deposits or Rents collected in advance;

(iv)the misapplication or the misappropriation of Insurance Proceeds or Awards;

(v)Borrower’s failure to pay Taxes, Other Charges (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms hereof and there exists no impediment to Lender’s utilization thereof), charges for labor or materials or other charges that can create liens on the Property beyond any applicable notice and cure periods specified herein;

(vi)Borrower’s failure to return or to reimburse Lender for all Personal Property taken from the Property by or on behalf of Borrower and not replaced with Personal Property of the same utility and of the same or greater value;

(vii)any act of actual waste or arson by Borrower, any principal, Affiliate, member or general partner thereof or by Borrower Principal, any principal, Affiliate, member or general partner thereof; or

(viii)Borrower’s failure following any Event of Default to deliver to Lender upon demand all Rents and books and records relating to the Property.

(c)Notwithstanding the foregoing, the agreement of Lender not to pursue recourse liability as set forth in subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower and Borrower

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Principal on a joint and several basis in the event (i) of a breach by Borrower or Borrower Principal of any of the covenants set forth in Article 6 hereof, to the extent that such breach is (A) material and (B) is not cured within fifteen (15) days of the earlier to occur of notice from Lender or Borrower’s knowledge of such breach, (ii) of a breach of any of the covenants set forth in Article 7 hereof, (iii) the Property or any part thereof shall become an asset in a voluntary bankruptcy or insolvency proceeding of Borrower, (iv) Borrower, Borrower Principal or any Affiliate, officer, director, or representative which controls, directly or indirectly, Borrower or Borrower Principal files, or joins in the filing of, an involuntary petition against Borrower under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (v) Borrower files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; or (vi) any Affiliate, officer, director, or representative which controls Borrower consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of the Property.

(d)Nothing herein shall be deemed to be a waiver of any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provision of the U.S. Bankruptcy Code to file a claim for the full amount of the indebtedness secured by the Mortgage or to require that all collateral shall continue to secure all of the indebtedness owing to Lender in accordance with this Agreement, the Note, the Mortgage or the other Loan Documents.

ARTICLE 16

NOTICES

Section 16.1.Notices

All notices, consents, approvals and requests required or permitted hereunder or under any other Loan Document shall be given in writing and shall be effective for all purposes if hand delivered or sent by (a) certified or registered United States mail, postage prepaid, return receipt requested, (b) expedited prepaid overnight delivery service, either commercial or United States Postal Service, with proof of attempted delivery, or by (c) telecopier (with answer back acknowledged provided an additional notice is given pursuant to subsection (b) above), addressed as follows (or at such other address and Person as shall be designated from time to time by any party hereto, as the case may be, in a written notice to the other parties hereto in the manner provided for in this Section):

If to Lender:	Bank of America, N.A.
	Capital Markets Servicing Group
	900 West Trade Street, Suite 650
	NC1-026-06-01
	Charlotte, North Carolina 28255
	Attn: Servicing Manager
	Telephone No: (866) 531-0957

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If to Borrower:	Inland Western Minneapolis 3rd Avenue, L.L.C.
	c/o Inland Real Estate Investment Corporation
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Attention: Roberta Matlin, Vice President
	Facsimile No.: 630-218-4965
With a copy to:	The Inland Real Estate Group, Inc.
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Attention: General Counsel
	Facsimile No.: 630-218-4900
If to Borrower Principal:	Inland Western Retail Real Estate Trust, Inc.
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Roberta Matlin, Vice President
	Facsimile No.: 630-218-4965
With a copy to:	The Inland Real Estate Group, Inc.
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Attention: General Counsel
	Facsimile No.: 630-218-4900

A notice shall be deemed to have been given: in the case of hand delivery, at the time of delivery; in the case of registered or certified mail, when delivered or the first attempted delivery on a Business Day; or in the case of expedited prepaid delivery and telecopy, upon the first attempted delivery on a Business Day.

ARTICLE 17

FURTHER ASSURANCES

Section 17.1.Replacement Documents

Upon receipt of an affidavit of an officer of Lender as to the loss, theft, destruction or mutilation of the Note or any other Loan Document which is not of public record and, in the case of such mutilation upon surrender and cancellation of such Note or other Loan Document, Borrower will issue in lieu thereof a replacement Note or other Loan Document, dated the date of such lost, stolen, destroyed or mutilated Note or other Loan Document in the same principal amount thereof and otherwise of like tenor.

Section 17.2.Recording of Mortgage, etc.

Borrower forthwith upon the execution and delivery of the Mortgage and thereafter, from time to time, will cause the Mortgage and any of the other Loan Documents creating a lien or security interest or evidencing the lien hereof upon the Property and each instrument of further

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assurance to be filed, registered or recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect and perfect the lien or security interest hereof upon, and the interest of Lender in, the Property. Borrower will pay all taxes, filing, registration or recording fees, and all expenses incident to the preparation, execution, acknowledgment and/or recording of the Note, the Mortgage, the other Loan Documents, any note, deed of trust or mortgage supplemental hereto, any security instrument with respect to the Property and any instrument of further assurance, and any modification or amendment of the foregoing documents, and all federal, state, county and municipal taxes, duties, imposts, assessments and charges arising out of or in connection with the execution and delivery of the Mortgage, any deed of trust or mortgage supplemental hereto, any security instrument with respect to the Property or any instrument of further assurance, and any modification or amendment of the foregoing documents, except where prohibited by law so to do.

Section 17.3.Further Acts, Etc.

Borrower will, at the cost of Borrower (except with respect to costs incurred by Lender, for which Lender shall be responsible), do, execute, acknowledge and deliver all and every further acts, deeds, conveyances, deeds of trust, mortgages, assignments, security agreements, control agreements, notices of assignments, transfers and assurances as Lender shall, from time to time, reasonably require, for the better assuring, conveying, assigning, transferring, and confirming unto Lender the property and rights hereby mortgaged, deeded, granted, bargained, sold, conveyed, confirmed, pledged, assigned, warranted and transferred or intended now or hereafter so to be, or which Borrower may be or may hereafter become bound to convey or assign to Lender, or for carrying out the intention or facilitating the performance of the terms of this Agreement or for filing, registering or recording the Mortgage, or for complying with all Legal Requirements. Borrower, on demand, will execute and deliver, and in the event it shall fail to so execute and deliver, hereby authorizes Lender to execute in the name of Borrower or without the signature of Borrower to the extent Lender may lawfully do so, one or more financing statements and financing statement amendments to evidence more effectively, perfect and maintain the priority of the security interest of Lender in the Property. Borrower grants to Lender an irrevocable power of attorney coupled with an interest for the purpose of exercising and perfecting any and all rights and remedies available to Lender at law and in equity, including without limitation, such rights and remedies available to Lender pursuant to this Section 17.3.

Section 17.4.Changes in Tax, Debt, Credit and Documentary Stamp Laws

(a)If any law is enacted or adopted or amended after the date of this Agreement which deducts the Debt from the value of the Property for the purpose of taxation or which imposes a tax, either directly or indirectly, on the Debt or Lender’s interest in the Property, Borrower will pay the tax, with interest and penalties thereon, if any. If Lender is advised by counsel chosen by it that the payment of tax by Borrower would be unlawful or taxable to Lender or unenforceable or provide the basis for a defense of usury then Lender shall have the option by written notice of not less than one hundred eighty (80) days to declare the Debt immediately due and payable.

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(b)Borrower will not claim or demand or be entitled to any credit or credits on account of the Debt for any part of the Taxes or Other Charges assessed against the Property, or any part thereof, and no deduction shall otherwise be made or claimed from the assessed value of the Property, or any part thereof, for real estate tax purposes by reason of the Mortgage or the Debt. If such claim, credit or deduction shall be required by law, Lender shall have the option, by written notice of not less than one hundred eighty (80) days, to declare the Debt immediately due and payable.

If at any time the United States of America, any State thereof or any subdivision of any such State shall require revenue or other stamps to be affixed to the Note, the Mortgage, orany of the other Loan Documents or impose any other tax or charge on the same, Borrower will pay for the same, with interest and penalties thereon, if any.

Section 17.5.Expenses

Borrower covenants and agrees to pay or, if Borrower fails to pay, to reimburse, Lender upon receipt of written notice from Lender for all reasonable costs and expenses (including reasonable, actual attorneys’ fees and disbursements and the allocated costs of internal legal services and all actual disbursements of internal counsel) reasonably incurred by Lender in accordance with this Agreement in connection with (a) the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby and thereby and all the costs of furnishing all opinions by counsel for Borrower (including without limitation any opinions requested by Lender as to any legal matters arising under this Agreement or the other Loan Documents with respect to the Property); (b) Borrower’s ongoing performance of and compliance with Borrower’s respective agreements and covenants contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date, including, without limitation, confirming compliance with environmental and insurance requirements; (c) following a request by Borrower, Lender’s ongoing performance and compliance with all agreements and conditions contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date; (d) the negotiation, preparation, execution, delivery and administration of any consents, amendments, waivers or other modifications to this Agreement and the other Loan Documents and any other documents or matters requested by Lender; (e) securing Borrower’s compliance with any requests made pursuant to the provisions of this Agreement; (f) the filing and recording fees and expenses, title insurance and reasonable fees and expenses of counsel for providing to Lender all required legal opinions, and other similar expenses incurred in creating and perfecting the Lien in favor of Lender pursuant to this Agreement and the other Loan Documents; (g) enforcing or preserving any rights, in response to third party claims or the prosecuting or defending of any action or proceeding or other litigation, in each case against, under or affecting Borrower, this Agreement, the other Loan Documents, the Property, or any other security given for the Loan; and (h) enforcing any obligations of or collecting any payments due from Borrower under this Agreement, the other Loan Documents or with respect to the Property or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or of any insolvency or bankruptcy proceedings; provided, however, that Borrower shall not be liable for the payment of any such costs and expenses to the extent the same arise by reason of the gross negligence, illegal acts, fraud or willful misconduct of Lender.

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ARTICLE 18

WAIVERS

Section 18.1.Remedies Cumulative; Waivers

The rights, powers and remedies of Lender under this Agreement shall be cumulative and not exclusive of any other right, power or remedy which Lender may have against Borrower or Borrower Principal pursuant to this Agreement or the other Loan Documents, or existing at law or in equity or otherwise. Lender’s rights, powers and remedies may be pursued singularly, concurrently or otherwise, at such time and in such order as Lender may determine in Lender’s sole discretion. No delay or omission to exercise any remedy, right or power accruing upon an Event of Default shall impair any such remedy, right or power or shall be construed as a waiver thereof, but any such remedy, right or power may be exercised from time to time and as often as may be deemed expedient. A waiver of one Default or Event of Default with respect to Borrower shall not be construed to be a waiver of any subsequent Default or Event of Default by Borrower or to impair any remedy, right or power consequent thereon.

Section 18.2.Modification, Waiver in Writing

No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement, or of the Note, or of any other Loan Document, nor consent to any departure by Borrower therefrom, shall in any event be effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given. Except as otherwise expressly provided herein, no notice to, or demand on Borrower, shall entitle Borrower to any other or future notice or demand in the same, similar or other circumstances.

Section 18.3.Delay Not a Waiver

Neither any failure nor any delay on the part of Lender in insisting upon strict performance of any term, condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under the Note or under any other Loan Document, or any other instrument given as security therefor, shall operate as or constitute a waiver thereof, nor shall a single or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege. In particular, and not by way of limitation, by accepting payment after the due date of any amount payable under this Agreement, the Note or any other Loan Document, Lender shall not be deemed to have waived any right either to require prompt payment when due of all other amounts due under this Agreement, the Note or the other Loan Documents, or to declare a default for failure to effect prompt payment of any such other amount.

Section 18.4.Trial by Jury

BORROWER, BORROWER PRINCIPAL AND LENDER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH

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REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER, BORROWER PRINCIPAL AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF LENDER, BORROWER PRINCIPAL AND BORROWER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER, BORROWER PRINCIPAL AND LENDER.

Section 18.5.Waiver of Notice

Borrower shall not be entitled to any notices of any nature whatsoever from Lender except with respect to matters for which this Agreement or the other Loan Documents specifically and expressly provide for the giving of notice by Lender to Borrower and except with respect to matters for which Borrower is not, pursuant to applicable Legal Requirements, permitted to waive the giving of notice. Borrower hereby expressly waives the right to receive any notice from Lender with respect to any matter for which this Agreement or the other Loan Documents do not specifically and expressly provide for the giving of notice by Lender to Borrower.

Section 18.6.Remedies of Borrower

In the event that a claim or adjudication is made that Lender or its agents have acted unreasonably or unreasonably delayed acting in any case where by law or under this Agreement or the other Loan Documents, Lender or such agent, as the case may be, has an obligation to act reasonably or promptly, Borrower agrees that neither Lender nor its agents shall be liable for any monetary damages, and Borrower’s sole remedies shall be limited to commencing an action seeking injunctive relief or declaratory judgment. The parties hereto agree that any action or proceeding to determine whether Lender has acted reasonably shall be determined by an action seeking declaratory judgment. Lender agrees that, in such event, it shall cooperate in expediting any action seeking injunctive relief or declaratory judgment.

Section 18.7.Waiver of Marshalling of Assets

To the fullest extent permitted by law, Borrower, for itself and its successors and assigns, waives all rights to a marshalling of the assets of Borrower, Borrower’s partners and others with interests in Borrower, and of the Property, and agrees not to assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce or affect the right of Lender under the Loan Documents to a sale of the Property for the collection of the Debt without any prior or different resort for collection or of the right of Lender to the payment of the Debt out of the net proceeds of the Property in preference to every other claimant whatsoever.

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Section 18.8.Waiver of Statute of Limitations

Borrower hereby expressly waives and releases, to the fullest extent permitted by law, the pleading of any statute of limitations as a defense to payment of the Debt or performance of its Other Obligations.

Section 18.9.Waiver of Counterclaim

Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Lender or its agents.

ARTICLE 19

GOVERNING LAW

Section 19.1.Choice of Law

This Agreement shall be deemed to be a contract entered into pursuant to the laws of the State and shall in all respects be governed, construed, applied and enforced in accordance with the laws of the State and applicable laws of the United States of America, provided, however, that with respect to the security interest in each of the Reserve Accounts, and the Cash Management Account, the laws of the state where each such account is located shall apply.

Section 19.2.Severability

Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Section 19.3.Preferences

Lender shall have the continuing and exclusive right to apply or reverse and reapply any and all payments by Borrower to any portion of the obligations of Borrower hereunder. To the extent Borrower makes a payment or payments to Lender, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any Creditors Rights Laws, state or federal law, common law or equitable cause, then, to the extent of such payment or proceeds received, the obligations hereunder or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by Lender.

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ARTICLE 20
MISCELLANEOUS

Section 20.1.Survival

This Agreement and all covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the making by Lender of the Loan and the execution and delivery to Lender of the Note, and shall continue in full force and effect so long as all or any of the Debt is outstanding and unpaid unless a longer period is expressly set forth herein or in the other Loan Documents. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the legal representatives, successors and assigns of such party. All covenants, promises and agreements in this Agreement, by or on behalf of Borrower, shall inure to the benefit of the legal representatives, successors and assigns of Lender.

Section 20.2.Lender’s Discretion

Whenever pursuant to this Agreement, Lender exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Lender, the decision of Lender to approve or disapprove or to decide whether arrangements or terms are satisfactory or not satisfactory shall (except as is otherwise specifically herein provided) be in the sole discretion of Lender and shall be final and conclusive.

Section 20.3.Headings

The Article and/or Section headings and the Table of Contents in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

Section 20.4.Cost of Enforcement

In the event (a) that the Mortgage is foreclosed in whole or in part, (b) of the bankruptcy, insolvency, rehabilitation or other similar proceeding in respect of Borrower or any of its constituent Persons or an assignment by Borrower or any of its constituent Persons for the benefit of its creditors, or (c) Lender exercises any of its other remedies under this Agreement or any of the other Loan Documents, Borrower shall be chargeable with and agrees to pay all costs of collection and defense, including attorneys’ fees and costs, incurred by Lender or Borrower in connection therewith and in connection with any appellate proceeding or post-judgment action involved therein, together with all required service or use taxes.

Section 20.5.Schedules Incorporated

The Schedules annexed hereto are hereby incorporated herein as a part of this Agreement with the same effect as if set forth in the body hereof.

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Section 20.6.Offsets, Counterclaims and Defenses

Any assignee of Lender’s interest in and to this Agreement, the Note and the other Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses which are unrelated to such documents which Borrower may otherwise have against any assignor of such documents, and no such unrelated counterclaim or defense shall be interposed or asserted by Borrower in any action or proceeding brought by any such assignee upon such documents and any such right to interpose or assert any such unrelated offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by Borrower.

Section 20.7.No Joint Venture or Partnership; No Third Party Beneficiaries

(a)Borrower and Lender intend that the relationships created hereunder and under the other Loan Documents be solely that of borrower and lender. Nothing herein or therein is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower and Lender nor to grant Lender any interest in the Property other than that of mortgagee, beneficiary or lender.

(b)This Agreement and the other Loan Documents are solely for the benefit of Lender and Borrower and nothing contained in this Agreement or the other Loan Documents shall be deemed to confer upon anyone other than Lender and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or therein. All conditions to the obligations of Lender to make the Loan hereunder are imposed solely and exclusively for the benefit of Lender and no other Person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lender will refuse to make the Loan in the absence of strict compliance with any or all thereof and no other Person shall under any circumstances be deemed to be a beneficiary of such conditions, any or all of which may be freely waived in whole or in part by Lender if, in Lender’s sole discretion, Lender deems it advisable or desirable to do so.

(c)The general partners, members, principals and (if Borrower is a trust) beneficial owners of Borrower are experienced in the ownership and operation of properties similar to the Property, and Borrower and Lender are relying solely upon such expertise and business plan in connection with the ownership and operation of the Property. Borrower is not relying on Lender’s expertise, business acumen or advice in connection with the Property.

(d)Notwithstanding anything to the contrary contained herein, Lender is not undertaking the performance of (i) any obligations under the Leases; or (ii) any obligations with respect to such agreements, contracts, certificates, instruments, franchises, permits, trademarks, licenses and other documents.

(e)By accepting or approving anything required to be observed, performed or fulfilled or to be given to Lender pursuant to this Agreement, the Mortgage, the Note or the other Loan Documents, including, without limitation, any officer’s certificate, balance sheet, statement of profit and loss or other financial statement, survey, appraisal, or insurance policy, Lender shall not be deemed to have warranted, consented to, or affirmed the sufficiency, the legality or

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effectiveness of same, and such acceptance or approval thereof shall not constitute any warranty or affirmation with respect thereto by Lender.

(f)Borrower recognizes and acknowledges that in accepting this Agreement, the Note, the Mortgage and the other Loan Documents, Lender is expressly and primarily relying on the truth and accuracy of the representations and warranties set forth in Article 4 of this Agreement without any obligation to investigate the Property and notwithstanding any investigation of the Property by Lender; that such reliance existed on the part of Lender prior to the date hereof, that the warranties and representations are a material inducement to Lender in making the Loan; and that Lender would not be willing to make the Loan and accept this Agreement, the Note, the Mortgage and the other Loan Documents in the absence of the warranties and representations as set forth in Article 4 of this Agreement.

Section 20.8.Publicity

All news releases, publicity or advertising by Borrower or its Affiliates through any media intended to reach the general public which refers to the Loan, Lender, Banc of America Securities LLC, or any of their Affiliates shall be subject to the prior written approval of Lender, not to be unreasonably withheld. Lender shall be permitted to make any news, releases, publicity or advertising by Lender or its Affiliates through any media intended to reach the general public which refers to the Loan, the Property, Borrower, Borrower Principal and their respective Affiliates without the approval of Borrower or any such Persons. Borrower also agrees that Lender may share any information pertaining to the Loan with Bank of America Corporation, including its bank subsidiaries, Banc of America Securities LLC and any other Affiliates of the foregoing, in connection with the sale or transfer of the Loan or any Participations and/or Securities created.

Section 20.9.Conflict; Construction of Documents; Reliance

In the event of any conflict between the provisions of this Agreement and any of the other Loan Documents, the provisions of this Agreement shall control. The parties hereto acknowledge that they were represented by competent counsel in connection with the negotiation, drafting and execution of the Loan Documents and that such Loan Documents shall not be subject to the principle of construing their meaning against the party which drafted same. Borrower acknowledges that, with respect to the Loan, Borrower shall rely solely on its own judgment and advisors in entering into the Loan without relying in any manner on any statements, representations or recommendations of Lender or any parent, subsidiary or Affiliate of Lender. Lender shall not be subject to any limitation whatsoever in the exercise of any rights or remedies available to it under any of the Loan Documents or any other agreements or instruments which govern the Loan by virtue of the ownership by it or any parent, subsidiary or Affiliate of Lender of any equity interest any of them may acquire in Borrower, and Borrower hereby irrevocably waives the right to raise any defense or take any action on the basis of the foregoing with respect to Lender’s exercise of any such rights or remedies. Borrower acknowledges that Lender engages in the business of real estate financings and other real estate transactions and investments which may be viewed as adverse to or competitive with the business of Borrower or its Affiliates.

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Section 20.10.Entire Agreement

This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and all prior agreements among or between such parties, whether oral or written between Borrower and Lender are superseded by the terms of this Agreement and the other Loan Documents.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written.

BORROWER:
INLAND WESTERN MINNEAPOLIS 3RD AVENUE, L.L.C., a Delaware limited liability company
By:		Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
		By	/s/ Debra A. Palmer
		Name:		Debra A. Palmer
		Its:	Asst. Sec.
BORROWER PRINCIPAL:
Acknowledged and agreed to with respect to its obligations set forth in Article 4, Section 12.6, Article 13, Article 15 and Article 18 hereof:
INLAND WESTERN RETAIL REAL ESTATE TRUST INC., a Maryland corporation, its
By:	/s/ Debra A. Palmer
	Name:			Debra A. Palmer
	Title:		Asst. Sec.

[ADDITIONAL SIGNATURE PAGE TO FOLLOW]

LENDER:
BANK OF AMERICA, N.A., a national banking association
By:	/s/ Lisa K. McGee
	Name:	Lisa K. McGee
	Title:	Vice President

EXHIBIT A

Borrower Equity Ownership Structure

EXHIBIT B

Tenant Direction Letter

EX-10.463

Exhibit 10.463

LOAN TERMS TABLE

Note Date: December 16, 2004	MERS No.: 8000101-0000000568-5
Borrower: INLAND WESTERN DEPERE, L.L.C., a Delaware limited liability company
Original Principal Amount: $11,623,000.00	Loan No.: 58624
Initial Note Rate: 4.2975%	Servicing No.: 3190717
Revised Note Rate: As defined in Article 2	Borrower’s TIN: 20-1908204
Monthly Payment Amount: As defined in Article 1 (a)	Optional Prepayment Date: January 1, 2010
Lockout Period: From the date hereof through and including December 31, 2006
Maturity Date: January 1, 2015

PROMISSORY NOTE

FOR VALUE RECEIVED Borrower, having its principal place of business at 2901 Butterfield Road, Oak Brook, IL 60523, hereby unconditionally promises to pay to the order of BANK OF AMERICA, N.A., a national banking association, having an address at 214 North Tryon Street, Charlotte, North Carolina 28255 (“Lender”), the Original Principal Amount, in lawful money of the United States of America with interest thereon to be computed from the date of this Note at the Note Rate (as defined below), and to be paid in accordance with the terms set forth below. The Loan Terms Table set forth above is a part of this Note and all terms used in this Note which are defined in the Loan Terms Table shall have the meaning set forth therein. All capitalized terms not defined herein shall have the respective meanings set forth in that certain Loan Agreement dated the date hereof between Lender and Borrower (the “Loan Agreement”).

Article 1 – PAYMENT TERMS; MANNER OF PAYMENT

(a)Borrower hereby agrees to pay sums due under this Note as follows: an initial payment is due on the Closing Date for interest from the Closing Date through and including the last day of the calendar month in which the Closing Date occurs; and thereafter, except as may be adjusted in accordance with the last sentence of Section l(b), consecutive monthly installments of interest only in an amount calculated in accordance with Article 2 below (such amount, the “Monthly Payment Amount”) shall be payable pursuant to the terms hereof on the first (1st) day of each month beginning on February 1, 2005 (each such date through and including the Maturity Date, a “Scheduled Payment Date”)until the entire indebtedness evidenced hereby is fully paid, except that any remaining indebtedness, if not sooner paid, shall be due and payable on the Maturity Date. In addition to the foregoing, commencing on the Optional Prepayment Date and continuing on each Scheduled Payment Date thereafter, Borrower hereby agrees to pay all Excess Cash (as defined in the Loan Agreement) until the principal amount of this Note is paid in full, provided, however, the entire Debt, including all Accrued Interest (defined below), shall be due on the Maturity Date.

(b)Each payment by Borrower hereunder shall be made to P.O. Box 65585, Charlotte, NC 28265-0585, or at such other place as Lender may designate from time to time in writing.  Whenever any payment hereunder shall be stated to be due on a day which is not a

Business Day, such payment shall be made on the first Business Day preceding such scheduled due date. All payments made by Borrower hereunder or under the other Loan Documents shall be made irrespective of, and without any deduction for, any setoff, defense or counterclaims.

(c)Provided no Event of Default has occurred, (i) each Monthly Payment Amount made as scheduled on this Note shall be applied first to the payment of interest computed at the Initial Note Rate, and the balance toward the reduction of the principal amount of this Note, and (ii) each payment of Excess Cash made as required on this Note shall be applied first to the reduction of the principal amount of this Note until paid in full, and the balance to Accrued Interest until paid in full. All voluntary and involuntary prepayments on this Note shall be applied, to the extent thereof, to accrued but unpaid interest on the amount prepaid, to the remaining Principal Amount, and any other sums due and unpaid to the Lender in connection with the Loan, in such manner and order as Lender may elect in its sole and absolute discretion, including, but not limited to, application to principal installments in inverse order of maturity. Following the occurrence of an Event of Default, any payment made on this Note shall be applied to accrued but unpaid interest, late charges, accrued fees, the unpaid principal amount of this Note, and any other sums due and unpaid to Lender in connection with the Loan, in such manner and order as Lender may elect in its sole and absolute discretion.

(d)Remittances in payment of any part of the indebtedness other than in the required amount in immediately available U.S. funds shall not, regardless of any receipt or credit issued therefor, constitute payment until the required amount is actually received by the holder hereof in immediately available U.S. funds and shall be made and accepted subject, to the condition that any check or draft may be handled for collection in accordance with the practices of the collecting bank or banks.

Article 2 - INTEREST

The Loan shall bear interest at a fixed rate per annum equal to the Note Rate. The “Note Rate” shall mean (a) from the date of this Note through but excluding the Optional Prepayment Date, the Initial Note Rate, and (b) from and after the Optional Prepayment Date through and including the date this Note is paid in full, the Revised Note Rate. The “Revised Note Rate” shall mean a rate per annum equal to the sum of (x) two percent (2.00%) and (y) the greater of (i) the Initial Note Rate and (ii) the sum of the Treasury Rate plus five percent (5.00%). The “Treasury Rate” shall mean the yield per annum calculated by the linear interpolation of yields, as reported in the Federal Reserve Statistical Release H.15 – Selected Interest Rates under the heading “US government securities” and the subheading “Treasury constant maturities” for the week ending prior to the Optional Prepayment Date, of U.S. Treasury constant maturities with maturity dates (one longer and one shorter) most nearly approximating the Maturity Date. In the event H.15 is no longer published, Lender in its reasonable discretion shall select a comparable publication to determine the Treasury Rate. From and after the Optional Prepayment Date, interest in excess of the Initial Note Rate shall accrue and be added to the Debt and shall earn interest at the Revised Note Rate to the extent permitted by applicable law (“Accrued Interest”). Interest shall be computed on the basis of a three hundred sixty (360) day year consisting of twelve (12) months of thirty (30) days each. Except as otherwise set forth herein or in the other Loan Documents, interest shall be paid in arrears.

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Article 3 - DEFAULT AND ACCELERATION

The Debt shall without notice become immediately due and payable at the option of Lender if any payment required in this Note is not paid prior to the tenth (10^th) day following the date when due or if not paid on the Maturity Date or on the happening of any other Event of Default.

Article 4 - PAYMENTS AFTER DEFAULT

Upon the occurrence and during the continuance of an Event of Default, interest on the outstanding principal balance of the Loan and, to the extent permitted by law, overdue interest and other amounts due in respect of the Loan shall accrue at a rate per annum equal to the lesser of (a) the maximum rate permitted by applicable law, or (b) four percent (4%) above the Note Rate (such rate, the “Default Rate”). Interest at the Default Rate shall be computed from the occurrence of the Event of Default until the earlier of (i) the actual receipt and collection of the Debt (or that portion thereof that is then due) and (ii) the cure of such Event of Default. To the extent permitted by applicable law, interest at the Default Rate shall be added to the Debt, shall itself accrue interest at the same rate as the Loan and shall be secured by the Security Instrument. This Article shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of the occurrence of any Event of Default; the acceptance of any payment from Borrower shall not be deemed to cure or constitute a waiver of any Event of Default; and Lender retains its rights under this Note, the Loan Agreement and the other Loan Documents to accelerate and to continue to demand payment of the Debt upon the happening of and during the continuance any Event of Default, despite any payment by Borrower to Lender.

Article 5 - PREPAYMENT

Except as otherwise expressly permitted by this Article 5, no voluntary prepayments, whether in whole or in part, of the Loan or any other amount at any time due and owing under this Note can be made by Borrower or any other Person without the express written consent of Lender.

(a)Lockout Period. Borrower shall have no right to make, and Lender shall have no obligation to accept, any voluntary prepayment, whether in whole or in part, of the Loan, or any other amount under this Note or the other Loan Documents, at any time during the Lockout Period. At any time following the expiration of the Lockout Period, the principal balance of this Note may be voluntarily prepaid in whole, but not in part, upon the satisfaction of the following conditions:

(i)no Default shall exist under any of the Loan Documents;

(ii)not less than sixty (60) (but not more than ninety (90)) days prior written notice shall be given to Lender specifying a date on which the prepayment shall occur such date being a Scheduled Payment Date (the “Prepayment Date”);

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(iii)Borrower has paid to Lender all accrued and unpaid interest on the Loan through and including the Prepayment Date together with all other sums due under this Note and the other Loan Documents; and

(iv)Borrower has paid to Lender a prepayment premium in an amount equal to Yield Maintenance (as defined and calculated in accordance with Section 5(b) below); provided, however, that in the event of a voluntary prepayment made by Borrower within sixty (60) days of the Optional Prepayment Date, there shall be no prepayment premium required to be paid by Borrower.

(b)Involuntary Prepayment. In the event of any involuntary prepayment of the Loan or any other amount under this Note, whether in whole or in part, in connection with or following Lender’s acceleration of this Note or otherwise, and whether the Security Instrument is satisfied or released by foreclosure (whether by power of sale or judicial proceeding), deed in lieu of foreclosure or by any other means, including, without limitation, repayment of the Loan by Borrower or any other Person pursuant to any statutory or common law right of redemption, Borrower shall pay any portion of the principal balance of the Loan prepaid (together with all interest accrued and unpaid thereon and, in the event the prepayment is made on a date other than a Scheduled Payment Date, a sum equal to the amount of interest which would have accrued under this Note on the amount of such prepayment if such prepayment had occurred on the next Scheduled Payment Date).

As used herein, “Yield Maintenance” means a prepayment premium in an amount equal to the greater of equal to the greater of (i) 1% of the portion of the Loan being prepaid, and (ii) the present value as of the Prepayment Calculation Date of a series of monthly payments over the remaining term of the Loan through and including the Optional Prepayment Date each equal to the amount of interest which would be due on the portion of the Loan being prepaid assuming a per annum interest rate equal to the excess of the Note Rate over the Reinvestment Yield, and discounted at the Reinvestment Yield. As used herein, “Reinvestment Yield” means the yield calculated by the linear interpolation of the yields, as reported in the Federal Reserve Statistical Release H.15-Selected Interest Rates under the heading “U.S. government securities” and the sub-heading “Treasury constant maturities” for the week ending prior to the Prepayment Calculation Date, of the U.S. Treasury constant maturities with maturity dates (one longer and one equal to or shorter) moat nearly approximating the Optional Prepayment Date, and converted to a monthly compounded nominal yield. In the event Release H.15 is no longer published, Lender shall select a comparable publication to determine the Reinvestment Yield. The ‘‘Prepayment Calculation Date” shall mean, as applicable, the date on which (i) Lender applies any prepayment to the reduction of the outstanding principal amount of this Note, (ii) Lender accelerates the Loan, in the case of a prepayment resulting from acceleration, or (iii) Lender applies funds held under any Reserve Account, in the case of a prepayment resulting from such an application (other than in connection with acceleration of the Loan).

(c)Insurance Proceeds and Awards; Excess Interest.    Notwithstanding any other provision herein to the contrary, and provided no Default exists, Borrower shall not be required to pay any prepayment premium in connection with any prepayment occurring solely as a result of (i) the application of Insurance Proceeds or Awards pursuant to the terms of the Loan

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Documents, or (ii) the application of any interest in excess of the maximum rate permitted by applicable law to the reduction of the Loan.

(d)Open Prepayment Period.  Borrower may voluntarily prepay (without premium) this Note on a Scheduled Payment Date (i) in whole (but not in part) during the sixty (60) days prior to the Optional Prepayment Date, and (ii) in whole or in part from the Optional Prepayment Date through and including the date this Note is paid in full, in each case, upon giving Lender at least sixty (60) days (but not more than ninety (90) days) prior written notice.  Lender shall accept a prepayment pursuant to this Section 5(d) on a day other than a Scheduled Payment Date provided that, in addition to payment of the full outstanding principal balance of this Note, Borrower pays to Lender a sum equal to the amount of interest which would have accrued on this Note if such prepayment occurred on the next Scheduled Payment Date.

(e)Limitation on Partial Prepayments. In no event shall Lender have any obligation to accept a partial prepayment.

Article 6 - SECURITY

This Note is secured by the Security Instrument and the other Loan Documents. All of the terms, covenants and conditions contained in the Loan Agreement, the Security Instrument and the other Loan Documents are hereby made part of this Note to the same extent and with the same force as if they were fully set forth herein.

Article 7 - USURY SAVINGS

This Note is subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the principal balance of the Loan at a rate which could subject Lender to either civil or criminal liability as a result of being in excess of the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by this Note and as provided for herein or in the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan (such rate, the “Maximum Legal Rate”). If, by the terms of this Note or the other Loan Documents, Borrower is at any time required or obligated to pay interest on the principal balance due hereunder at a rate in excess of the Maximum Legal Rate, the Note Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced to the Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. All sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the sums due under the Loan, shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the Loan does not exceed the Maximum Legal Rate of interest from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.

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Article 8 - LATE PAYMENT CHARGE

If any principal or interest payment is not paid by Borrower before the tenth (10th) day after the date the same is due (or such greater period, if any, required by applicable law), Borrower shall pay to Lender upon demand an amount equal to the lesser of four percent (4%) of such unpaid sum or the maximum amount permitted by applicable law in order to defray the expense incurred by Lender in handling and processing such delinquent payment and to compensate Lender for the loss of the use of such delinquent payment, provided however, Borrower shall not be required to pay Lender a late charge in connection with the final payment under the loan. Any such amount shall be secured by the Security Instrument and the other Loan Documents to the extent permitted by applicable law.

Article 9 - NO ORAL CHANGE

This Note may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Borrower or Lender, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.

Article 10 - WAIVERS

BORROWER AND ALL OTHERS WHO MAY BECOME LIABLE FOR THE PAYMENT OF ALL OR ANY PART OF THE DEBT DO HEREBY SEVERALLY WAIVE PRESENTMENT AND DEMAND FOR PAYMENT, NOTICE OF DISHONOR, NOTICE OF INTENTION TO ACCELERATE, NOTICE OF ACCELERATION, PROTEST AND NOTICE OF PROTEST AND NON-PAYMENT AND ALL OTHER NOTICES OF ANY KIND EXCEPT AS PROVIDED IN THE LOAN AGREEMENT. NO RELEASE OF ANY SECURITY FOR THE DEBT OR EXTENSION OF TIME FOR PAYMENT OF THIS NOTE OR ANY INSTALLMENT HEREOF, AND NO ALTERATION, AMENDMENT OR WAIVER OF ANY PROVISION OF THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS MADE BY AGREEMENT BETWEEN LENDER OR ANY OTHER PERSON SHALL RELEASE, MODIFY, AMEND, WAIVE, EXTEND, CHANGE, DISCHARGE, TERMINATE OR AFFECT THE LIABILITY OF BORROWER, AND ANY OTHER PERSON WHO MAY BECOME LIABLE FOR THE PAYMENT OF ALL OR ANY PART OF THE DEBT, UNDER THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS. NO NOTICE TO OR DEMAND ON BORROWER SHALL BE DEEMED TO BE A WAIVER OF THE OBLIGATION OF BORROWER OR OF THE RIGHT OF LENDER TO TAKE FURTHER ACTION WITHOUT FURTHER NOTICE OR DEMAND AS PROVIDED FOR IN THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS. IF BORROWER IS A LIMITED LIABILITY COMPANY, THE AGREEMENTS HEREIN CONTAINED SHALL REMAIN IN FORCE AND BE APPLICABLE, NOTWITHSTANDING ANY CHANGES IN THE INDIVIDUALS COMPRISING THE LIMITED LIABILITY COMPANY, AND THE TERM “BORROWER,” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATE OR SUCCESSOR LIMITED LIABILITY COMPANY, BUT ANY PREDECESSOR LIMITED LIABILITY COMPANY AND ITS MEMBERS SHALL NOT THEREBY BE RELEASED FROM ANY LIABILITY. IF BORROWER IS A PARTNERSHIP, THE AGREEMENTS HEREIN CONTAINED SHALL REMAIN IN FORCE AND BE

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APPLICABLE, NOTWITHSTANDING ANY CHANGES IN THE INDIVIDUALS COMPRISING THE PARTNERSHIP, AND THE TERM “BORROWER,” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATE OR SUCCESSOR PARTNERSHIP, BUT ANY PREDECESSOR PARTNERSHIP AND THEIR PARTNERS SHALL NOT THEREBY BE RELEASED FROM ANY LIABILITY. IF BORROWER IS A CORPORATION, THE AGREEMENTS CONTAINED HEREIN SHALL REMAIN IN FULL FORCE AND BE APPLICABLE NOTWITHSTANDING ANY CHANGES IN THE SHAREHOLDERS COMPRISING, OR THE OFFICERS AND DIRECTORS RELATING TO, THE CORPORATION, AND THE TERM “BORROWER” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATIVE OR SUCCESSOR CORPORATION, BUT ANY PREDECESSOR CORPORATION SHALL NOT BE RELIEVED OF LIABILITY HEREUNDER. (NOTHING IN THE FOREGOING SENTENCE SHALL BE CONSTRUED AS A CONSENT TO, OR A WAIVER OF, ANY PROHIBITION OR RESTRICTION ON TRANSFERS OF INTERESTS IN SUCH BORROWING ENTITY WHICH MAY BE SET FORTH IN THE LOAN AGREEMENT, THE MORTGAGE OR ANY OTHER LOAN DOCUMENTS.) IF BORROWER CONSISTS OF MORE THAN ONE PERSON OR PARTY, THE OBLIGATIONS AND LIABILITIES OF EACH PERSON OR PARTY SHALL BE JOINT AND SEVERAL.

Article 11 - TRIAL BY JURY

BORROWER AND LENDER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS NOTE, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF LENDER AND BORROWER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER AND LENDER.

Article 12 - TRANSFER

Upon the transfer of this Note, Borrower hereby waiving notice of any such transfer, Lender may deliver all the collateral mortgaged, granted, pledged or assigned pursuant to the Loan Documents, or any part thereof, to the transferee who shall thereupon become vested with all the rights herein or under applicable law given to Lender with respect thereto, and Lender shall thereafter forever be relieved and fully discharged from any liability or responsibility in the matter arising from events thereafter occurring; but Lender shall retain all rights hereby given to it with respect to any liabilities and the collateral not so transferred.

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Article 13 - EXCULPATION

The provisions of Article 15 of the Loan Agreement are hereby incorporated by reference into this Note to the same extent and with the same force as if fully set forth herein.

Article 14 - GOVERNING LAW

This Note shall in all respects be governed, construed, applied and enforced in accordance with the laws of the state in which the Property is located and any applicable federal laws of the United States of America.

Article 15 - NOTICES

All notices or other written communications hereunder shall be delivered in accordance with Article 16 of the Loan Agreement.

Article 16 - TAXPAYER IDENTIFICATION NUMBER

This Note provides for the Borrower’s federal taxpayer identification number to be inserted in the Loan Terms Table on the first page of this Note. If such number is not available at the time of execution of this Note or is not inserted by the Borrower, the Borrower hereby authorizes and directs the Lender to fill in such number on the first page of this Note when the Borrower provides to Lender, advises the Lender of, or the Lender otherwise obtains, such number.

Article 17 - ATTORNEYS’ FEES

Any provisions in this Note or elsewhere in the Loan Documents providing for the payment of “attorneys’ fees,” “reasonable attorneys’ fees” or words of similar import, shall mean actual attorneys’ fees and paralegal fees incurred based upon the usual and customary fees or hourly rates of the attorneys and paralegals involved without giving effect to any statutory presumption that may then be in effect.

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IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and year first above written.

INLAND WESTERN DEPERE L.L.C., a Delaware limited liability company
By:	Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
	By:	/s/ Debra A. Palmer
	Name:		Debra A. Palmer
	Its:	Asst. Secretary

EX-10.464

Exhibit 10.464

LOAN AGREEMENT

Dated as of December 16, 2004

Between

INLAND WESTERN DE PERE, L.L.C.,

as Borrower

and

BANK OF AMERICA, N.A.,

as Lender

TABLE OF CONTENTS

i

ii

SECTION 17.2. RECORDING OF MORTGAGE, ETC.

SECTION 17.3. FURTHER ACTS, ETC.

iii

SECTION 20.6. OFFSETS, COUNTERCLAIMS AND DEFENSES

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LOAN AGREEMENT

THIS LOAN AGREEMENT, dated as of December 16, 2004 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”),between BANK OF AMERICA, N.A., a national banking association, having an address at Bank of America Corporate Center, 214 North Tryon Street, Charlotte, North Carolina 28255 (together with its successors and/or assigns, “Lender”) and INLAND WESTERN DE PERE, L.L.C., a Delaware limited liability company having an address at c/o Inland Real Estate Investment Corporation, 2901 Butterfield Road, Oak Brook, Illinois 60523 (together with its successors and/or assigns, “Borrower”).

RECITALS:

Borrower desires to obtain the Loan (defined below) from Lender.

Lender is willing to make the Loan to Borrower, subject to and in accordance with the terms of this Agreement and the other Loan Documents (defined below).

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

ARTICLE 1
DEFINITIONS; PRINCIPLES OF CONSTRUCTION

Section 1.1.  Definitions

For all purposes of this Agreement, except as otherwise expressly required or unless the context clearly indicates a contrary intent:

“Account Collateral” shall mean (i) the Accounts, and all cash, checks, drafts, certificates and instruments, if any, from time to time deposited or held in the Accounts; (ii) any and all amounts in or credited to the Accounts invested in Permitted Investments; (iii) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise payable in respect of, or in exchange for, any or all of the foregoing; and (iv) to the extent not covered by clauses (i) - (iii) above, all “proceeds” (as defined under the UCC as in effect in the State in which the Accounts are located) of any or all of the foregoing.

“Accounts” shall mean the Cash Management Account, the Tax and Insurance Reserve Accounts, if any, and any other account or sub-account established by this Agreement, the Mortgage, or the other Loan Documents.

“Accredited Investor” shall have the meaning set forth in the regulations promulgated by the Securities and Exchange Commission.

“Act” shall have the meaning set forth in Section 6.1(c).

“Affiliate” shall mean, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person or is a director or officer of such Person or of an Affiliate of such Person.

“Affiliated Loans” shall mean a loan made by Lender to a parent, subsidiary or such other entity affiliated with Borrower or Borrower Principal.

“Affiliated Manager” shall have the meaning set forth in Section 7.1 hereof.

“ALTA” shall mean American Land Title Association, or any successor thereto.

“American Express” shall mean IDS Property Casualty Insurance Company, a Wisconsin corporation.

“American Express Lease” shall mean that certain Lease Agreement dated as of December 16, 2004 between Borrower, as landlord, and American Express, as tenant, with respect to the Property.

“American Express Lease Default” shall mean (i) a default, after the expiration of any applicable notice or cure periods, under the American Express Lease or (ii) the cancellation, termination or surrender of the American Express Lease.

“Assignment of Management Agreement” shall mean that certain Assignment and Subordination of Management Agreement dated the date hereof among Lender, Borrower and Manager, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Award” shall mean any compensation paid by any Governmental Authority in connection with a Condemnation in respect of all or any part of the Property.

“Borrower Principal” shall mean Inland Western Retail Real Estate Trust, Inc., a Maryland corporation.

“Business Day” shall mean a day on which Lender is open for the conduct of substantially all of its banking business at its office in the city in which the Note is payable (excluding Saturdays and Sundays).

“Cash Management Account” shall have the meaning set forth in Section 10.1(a) hereof.

“Cash Management Period” shall mean the period commencing on the 45^th day prior to the Optional Prepayment Date.

“Casualty” shall have the meaning set forth in Section 8.2.

“Closing Date” shall mean the date of the funding of the Loan.

“Control” shall have the meaning set forth in Section 7.1 hereof.

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“Condemnation” shall mean a temporary or permanent taking by any Governmental Authority as the result, in lieu or in anticipation, of the exercise of the right of condemnation or eminent domain, of all or any part of the Property, or any interest therein or right accruing thereto, including any right of access thereto or any change of grade affecting the Property or any part thereof.

“Condemnation Proceeds” shall have the meaning set forth in Section 8.4(b)

“Creditors Rights Laws” shall mean with respect to any Person any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to its debts or debtors.

“Debt” shall mean the outstanding principal amount set forth in, and evidenced by, this Agreement and the Note together with all interest accrued and unpaid thereon and all other sums due to Lender in respect of the Loan under the Note, this Agreement, the Mortgage or any other Loan Document.

“Debt Service” shall mean, with respect to any particular period of time, scheduled principal and/or interest payments under the Note.

“Default” shall mean the occurrence of any event hereunder or under any other Loan Document which, but for the giving of notice or passage of time, or both, would be an Event of Default.

“Default Rate” shall mean, with respect to the Loan, a rate per annum equal to the lesser of (a) the maximum rate permitted by applicable law, or (b) four percent (4%) above the Note Rate.

“Eligible Account” shall mean a separate and identifiable account from all other funds held by the holding institution that is either (a) an account or accounts maintained with a federal or state chartered depository institution or trust company which complies with the definition of Eligible Institution or (b) a segregated trust account or accounts maintained with the corporate trust department of a federal or state chartered depository institution or trust company acting in its fiduciary capacity which, in the case of a federally chartered depository institution or trust company acting in its fiduciary capacity is subject to the regulations regarding adversary funds on deposit therein under 12 CFR §9.10(b), and in the case of a state chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R. §9.10(b), having in either case a combined capital surplus of at least $50,000,000 and subject to supervision or examination by federal and state authority. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.

“Eligible Institution” shall mean a depository institution or trust company insured by the Federal Deposit Insurance Corporation, the short term unsecured debt obligations or commercial paper of which are rated at least “A-1” by S&P, “P-l” by Moody’s and “F-l” by Fitch in the case of accounts in which funds are held for thirty (30) days or less (or, in the case of accounts in which funds are held for more than thirty (30) days, the long term unsecured debt obligations of which are rated at least “AA-” by Fitch and S&P (or “A-” by S&P, if such depository’s short

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term unsecured debt rating is at least “A-1” by S&P) and “Aa2” by Moody’s). Notwithstanding the foregoing, prior to a Securitization, Bank of America, N.A. shall be an Eligible Institution.

“Embargoed Person” shall mean any person identified by OFAC or any other Person with whom a Person resident in the United States of America may not conduct business or transactions by prohibition of federal law or Executive Order of the President of the United States of America.

“Environmental Indemnity” shall mean that certain Environmental Indemnity Agreement, dated as of the date hereof, executed by Borrower and Borrower Principal in connection with the Loan for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Environmental Law” shall have the meaning set forth in Section 12.5 hereof.

“Environmental Liens” shall have the meaning set forth in Section 12.5 hereof.

“Environmental Report” shall have the meaning set forth in Section 12.5 hereof.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time and any successor statutes thereto and applicable regulations issued pursuant thereto in temporary or final form.

“Event of Default” shall have the meaning set forth in Section 11.1 hereof.

“Exchange Act” shall mean the Securities and Exchange Act of 1934, as amended.

“Fitch” shall mean Fitch, Inc.

“GAAP” shall mean generally accepted accounting principles in the United States of America as of the date of the applicable financial report.

“Governmental Authority” shall mean any court, board, agency, department, commission, office or other authority of any nature whatsoever for any governmental unit (federal, state, county, municipal, city, town, special district or otherwise) whether now or hereafter in existence.

“Guarantor” shall mean any Person, having a long-term unsecured debt rating above the Trigger Rating that may, from time to time, at the option of American Express, execute a guaranty in favor of landlord under the American Express Lease.

“Hazardous Materials” shall have the meaning set forth in Section 12.5 hereof.

“Improvements” shall have the meaning set forth in the granting clause of the Mortgage.

“Indemnified Parties” shall mean (a) Lender, (b) any prior owner or holder of the Loan or Participations in the Loan, (c) any servicer or prior servicer of the Loan, (d) any Investor or any prior Investor in any Securities, (e) any trustees, custodians or other fiduciaries who hold or

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who have held a full or partial interest in the Loan for the benefit of any Investor or other third party, (f) any receiver or other fiduciary appointed in a foreclosure or other Creditors Rights Laws proceeding, (g) any officers, directors, shareholders, partners, members, employees, agents, servants, representatives, contractors, subcontractors, affiliates or subsidiaries of any and all of the foregoing, and (h) the heirs, legal representatives, successors and assigns of any and all of the foregoing (including, without limitation, any successors by merger, consolidation or acquisition of all or a substantial portion of the Indemnified Parties’ assets and business), in all cases whether during the term of the Loan or as part of or following a foreclosure of the Mortgage.

“Inland Permitted Transferee” shall mean a newly-formed special purpose entity that is wholly-owned (directly or indirectly) by Inland Retail Real Estate Trust, Inc., a Maryland corporation; Inland Real Estate Corporation, a Maryland corporation, Inland Real Estate Corporation, a Delaware corporation or Borrower Principal.

“Insurance Premiums” shall have the meaning set forth in Section 8.1 hereof.

“Insurance Proceeds” shall have the meaning set forth in Section 8.4(b) hereof.

“Internal Revenue Code” shall mean the Internal Revenue Code of 1986, as amended, as it may be further amended from time to time, and any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.

“Investor” shall have the meaning set forth in Section 13.3 hereof.

“Lease” shall have the meaning set forth in the Mortgage.

“Legal Requirements” shall mean all statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting the Property or any part thereof, or the construction, use, alteration or operation thereof, whether now or hereafter enacted and in force, and all permits, licenses, authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Borrower, at any time in force affecting the Property or any part thereof, including, without limitation, any which may (a) require repairs, modifications or alterations in or to the Property or any part thereof, or (b) in any way limit the use and enjoyment thereof.

“Lien” shall mean any mortgage, deed of trust, lien, pledge, hypothecation, assignment, security interest, or any other encumbrance, charge or transfer of, on or affecting Borrower, the Property, any portion thereof or any interest therein, including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialmen’s and other similar liens and encumbrances.

“LLC Agreement” shall have the meaning set forth in Section 6. l(c).

“Loan” shall mean the loan made by Lender to Borrower pursuant to this Agreement.

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“Loan Documents” shall mean, collectively, this Agreement, the Note, the Mortgage, the Environmental Indemnity, the Assignment of Management Agreement and any and all other documents, agreements and certificates executed and/or delivered in connection with the Loan, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Lockout Period” shall mean the period commencing on the date hereof and ending on the date of the second anniversary hereof.

“Losses” shall mean any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, fines, penalties, charges, fees, judgments, awards, amounts paid in settlement of whatever kind or nature (including but not limited to legal fees and other costs of defense).

“Management Agreement” shall mean the management agreement entered into by and between Borrower and Manager, pursuant to which Manager is to provide management and other services with respect to the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified in accordance with the terms of this Agreement.

“Manager” shall mean Inland US Management LLC, a Delaware limited liability company or such other entity selected as the manager of the Property in accordance with the terms of this Agreement.

“Material Litigation” shall mean, with respect to any Person, any material conviction, indictment (that is not dismissed before trial), judgment, litigation or regulatory action. For purposes of this definition, a matter shall be deemed material if it is reasonably foreseeable that a prudent institutional commercial real estate mortgage lender would consider such matter as a material adverse factor in its underwriting of the Person in question. With respect to non-criminal matters, isolated actions occurring more than five (5) years prior to the date of a proposed transfer shall not be deemed material provided that there is no indication of fraud, intentional misrepresentation or intent to defraud creditors with respect to such actions.

“Maturity Date” shall have the meaning set forth in the Note.

“Maximum Legal Rate” shall mean the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by the Note and as provided for herein or the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan.

“Member” shall have the meaning set forth in Section 6.1(c).

“Monthly Payment Amount” shall mean the monthly payment of interest due on each Scheduled Payment Date as set forth in the Note.

“Moody’s” shall mean Moody’s Investor Services, Inc.

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“Mortgage” shall mean that certain first priority mortgage/deed of trust/deed to secure debt and security agreement dated the date hereof, executed and delivered by Borrower as security for the Loan and encumbering the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Net Proceeds” shall have the meaning set forth in Section 8.4(b) hereof.

“Net Proceeds Deficiency” shall have the meaning set forth in Section 8.4(b)(vi) hereof.

“Note” shall mean that certain promissory note of even date herewith in the principal amount of $11,623,000, made by Borrower in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Note Rate” shall have the meaning set forth in the Note.

“OFAC” shall have the meaning set forth in Section 4.38 hereof.

“Operating Expenses” shall mean, with respect to any period of time, the total of all expenses actually paid or payable, computed in accordance with federal tax basis accounting, or in accordance with other methods acceptable to Lender in its sole discretion, of whatever kind relating to the operation, maintenance and management of the Property, including, without limitation, utilities, ordinary repairs and maintenance, Insurance Premiums, license fees, Taxes and Other Charges, advertising expenses, payroll and related taxes, computer processing charges, management fees equal to the greater of 4% of the Operating Income and the management fees actually payable under the Management Agreement for such period of time, operational equipment or other lease payments as approved by Lender, normalized capital expenditures but specifically excluding depreciation and amortization, income taxes, Debt Service, any incentive fees due under the Management Agreement, any item of expense that in accordance with federal tax basis accounting should be capitalized, any item of expense that would otherwise be covered by the provisions hereof but which is paid by American Express under the American Express Lease and deposits into the Reserve Accounts.

“Optional Prepayment Date” shall have the meaning set forth in the Note.

“Other Charges” shall mean all ground rents, maintenance charges, impositions other than Taxes, and any other charges, including, without limitation, vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Property, now or hereafter levied or assessed or imposed against the Property or any part thereof.

“Participations” shall have the meaning set forth in Section 13.1 hereof.

“Patriot Act” shall have the meaning set forth in Section 4.38 hereof.

“Permitted Encumbrances” shall mean collectively, (a) the Lien and security interests created by the Loan Documents, (b) all Liens, encumbrances and other matters disclosed in the Title Insurance Policy, (c) Liens, if any, for Taxes imposed by any Governmental Authority not yet due or delinquent, and (d) such other title and survey exceptions as Lender has approved or may approve in writing in Lender’s sole discretion.

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“Permitted Investments” shall mean to the extent available from Lender or Lender’s servicer for deposits in the Reserve Accounts and the Lockbox Account, any one or more of the following obligations or securities acquired at a purchase price of not greater than par, including those issued by a servicer of the Loan, the trustee under any securitization or any of their respective Affiliates, payable on demand or having a maturity date not later than the Business Day immediately prior to the date on which the funds used to acquire such investment are required to be used under this Agreement and meeting one of the appropriate standards set forth below:

(a)obligations of, or obligations fully guaranteed as to payment of principal and interest by, the United States or any agency or instrumentality thereof provided such obligations are backed by the full faith and credit of the United States of America including, without limitation, obligations of: the U.S. Treasury (all direct or fully guaranteed obligations), the Farmers Home Administration (certificates of beneficial ownership), the General Services Administration (participation certificates), the U.S. Maritime Administration (guaranteed Title XI financing), the Small Business Administration (guaranteed participation certificates and guaranteed pool certificates), the U.S. Department of Housing and Urban Development (local authority bonds) and the Washington Metropolitan Area Transit Authority (guaranteed transit bonds); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) be rated “AAA” or the equivalent by each of the Rating Agencies, (iii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iv) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (v) such investments must not be subject to liquidation prior to their maturity;

(b)Federal Housing Administration debentures;

(c)obligations of the following United States government sponsored agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm Credit System (consolidated systemwide bonds and notes), the Federal Home Loan Banks (consolidated debt obligations), the Federal National Mortgage Association (debt obligations), the Financing Corp. (debt obligations), and the Resolution Funding Corp. (debt obligations); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot, vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(d)federal funds, unsecured certificates of deposit, time deposits, bankers’ acceptances and repurchase agreements with maturities of not more than 365 days of any bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned

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to the Securities); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(e)fully Federal Deposit Insurance Corporation-insured demand and time deposits in, or certificates of deposit of, or bankers’ acceptances with maturities of not more than 365 days and issued by, any bank or trust company, savings and loan association or savings bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(f)debt obligations with maturities of not more than 365 days and at all times rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest long-term unsecured rating category; provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(g)commercial paper (including both non-interest-bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one year after the date of issuance thereof) with maturities of not more than 365 days and that at all times is rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest short-term unsecured debt rating; provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

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(h)units of taxable money market funds, with maturities of not more than 365 days and which funds are regulated investment companies, seek to maintain a constant net asset value per share and invest solely in obligations backed by the full faith and credit of the United States, which funds have the highest rating available from each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) for money market funds; and

(i)any other security, obligation or investment which has been approved as a Permitted Investment in writing by (i) Lender and (ii) each Rating Agency, as evidenced by a written confirmation that the designation of such security, obligation or investment as a Permitted Investment will not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities by such Rating Agency;

provided, however, that no obligation or security shall be a Permitted Investment if (A) such obligation or security evidences a right to receive only interest payments, (B) the right to receive principal and interest payments on such obligation or security are derived from an underlying investment that provides a yield to maturity in excess of one hundred twenty percent (120%) of the yield to maturity at par of such underlying investment or (C) such obligation or security has a remaining term to maturity in excess of one (1) year.

“Person” shall mean any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.

“Personal Property” shall have the meaning set forth in the granting clause of the Mortgage.

“Policies” shall have the meaning set forth in Section 8.1 hereof.

“Prohibited Transfer” shall have the meaning set forth in Section 7.2 hereof.

“Property” shall mean the parcel of real property, the Improvements thereon and all Personal Property owned by Borrower and encumbered by the Mortgage, together with all rights pertaining to such property and Improvements, as more particularly described in the granting clause of the Mortgage and referred to therein as the “Property”.

“Property Condition Report” shall mean a report prepared by a company satisfactory to Lender regarding the physical condition of the Property, satisfactory in form and substance to Lender in its sole discretion.

“Qualified Manager” shall mean (a) Manager or (b) a reputable and experienced professional management organization (i) which manages, together with its affiliates, at least ten (10) first class office buildings totaling at least 3,500,000 square feet of gross leasable area, exclusive of the Property and (ii) approved by Lender, which approval shall not have been unreasonably withheld and for which Lender shall have received written confirmation from the

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Rating Agencies that the employment of such manager will not result in a downgrade, withdrawal or qualification of the initial, or if higher, then current ratings issued in connection with a Securitization, or if a Securitization has not occurred, any ratings to be assigned in connection with a Securitization.

“Rating Agencies” shall mean each of S&P, Moody’s and Fitch, or any other nationally-recognized statistical rating agency which has been approved by Lender.

“REA” shall mean any construction, operation and reciprocal easement agreement or similar agreement (including any separate agreement or other agreement between Borrower and one or more other parties to an REA with respect to such REA) affecting the Property or portion thereof.

“Release” shall have the meaning set forth in Section 12.5 hereof.

“REMIC Trust” shall mean a “real estate mortgage investment conduit” (within the meaning of Section 860D, or applicable successor provisions, of the Code) that holds the Note.

“Rents” shall have the meaning set forth in the Mortgage.

“Replacements” shall have the meaning set forth in Section 9.2(a) hereof.

“Required Repairs” shall have the meaning set forth in Section 9.1(a) hereof.

“Reserve Accounts” shall mean the Tax and Insurance Reserve Account.

“Reserve Funds” shall mean the Tax and Insurance Reserve Funds.

“Restoration” shall mean, following the occurrence of a Casualty or a Condemnation which is of a type necessitating the repair of the Property, the completion of the repair and restoration of the Property as nearly as possible to the condition the Property was in immediately prior to such Casualty or Condemnation, with such alterations as may be reasonably approved by Lender.

“Restoration Consultant” shall have the meaning set forth in Section 8.4(b)(iii) hereof.

“Restoration Retainage” shall have the meaning set forth in Section 8.4(b)(iv) hereof.

“Restricted Party” shall have the meaning set forth in Section 7.1 hereof.

“Sale or Pledge” shall have the meaning set forth in Section 7.1 hereof.

“Scheduled Payment Date” shall have the meaning set forth in the Note.

“Securities” shall have the meaning set forth in Section 13.1 hereof.

“Securities Act” shall mean the Securities Act of 1933, as amended.

“Securities Liabilities” shall have the meaning set forth in Section 13.5 hereof.

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“Securitization” shall have the meaning set forth in Section 13.1 hereof.

“Special Member” shall have the meaning set forth in Section 6.1(c).

“S&P” shall mean Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.

“State” shall mean the state in which the Property or any part thereof is located.

“Tax and Insurance Reserve Account” shall have the meaning set forth in Section 9.6 hereof.

“Tax and Insurance Reserve Funds” shall have the meaning set forth in Section 9.6 hereof.

“Taxes” shall mean all real estate and personal property taxes, assessments, water rates or sewer rents, now or hereafter levied or assessed or imposed against the Property or part thereof.

“Tenant” shall mean any Person leasing, subleasing or otherwise occupying any portion of the Property under a Lease or other occupancy agreement with Borrower, including, without limitation, American Express, as tenant under the American Express Lease.

“Tenant Direction Letter” shall have the meaning set forth in Section 10.2(a)(i) hereof.

“Title Insurance Policy” shall mean that certain ALTA mortgagee title insurance policy issued with respect to the Property and insuring the lien of the Mortgage.

“Transferee” shall have the meaning set forth in Section 7.5 hereof.

“Trigger Rating” shall mean the long-term unsecured debt rating of Guarantor (or American Express if there is no Guarantor) below BBB as issued by S&P or below Baa2 as issued by Moody’s.

“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in the State where the applicable Property is located.

Section 1.2.  Principles of Construction.

All references to sections and schedules are to sections and schedules in or to this Agreement unless otherwise specified. All uses of the word “including” shall mean “including, without limitation” unless the context shall indicate otherwise. Unless otherwise specified, the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified, all meanings attributed to defined terms herein shall be equally applicable to both the singular and plural forms of the terms so defined.

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ARTICLE 2
GENERAL TERMS

Section 2.1.  Loan Commitment; Disbursement to Borrower

(a)Subject to and upon the terms and conditions set forth herein, Lender hereby agrees to make and Borrower hereby agrees to accept the Loan on the Closing Date.

(b)Borrower may request and receive only one borrowing in respect of the Loan and any amount borrowed and repaid in respect of the Loan may not be reborrowed.

(c)The Loan shall be evidenced by the Note and secured by the Mortgage and the other Loan Documents.

(d)Borrower shall use the proceeds of the Loan to (i) pay the purchase price for acquiring the Property, (ii) pay certain costs and expenses incurred in connection with the closing of the Loan, as approved by Lender, (iv) fund any working capital requirements of the Property, and (v) distribute the balance, if any, to its members.

Section 2.2.  Loan Payments

(a)           The Loan and interest shall be payable pursuant to the terms of the Note.

Section 2.3.Prepayment

The Loan may not be prepaid, in whole or in part, except in strict accordance with the express terms and conditions of the Note.

ARTICLE 3
CONDITIONS PRECEDENT

The obligation of Lender to make the Loan hereunder is subject to the fulfillment by Borrower or waiver by Lender of all the conditions precedent to closing set forth in the application or term sheet for the Loan delivered by Borrower to Lender and any commitment rider to the application for the Loan issued by Lender.

ARTICLE 4
REPRESENTATIONS AND WARRANTIES

Borrower and, where specifically indicated, each Borrower Principal represents and warrants to Lender as of the Closing Date that:

Section 4.1.  Organization

Borrower and each Borrower Principal (when not an individual) (a) has been duly organized and is validly existing and in good standing with requisite power and authority to own its properties and to transact the businesses in which it is now engaged, (b) is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in

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connection with its properties, businesses and operations, (c) possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own its properties and to transact the businesses in which it is now engaged, and the sole business of Borrower is the ownership, management and operation of the Property, and (d) in the case of Borrower, has full power, authority and legal right to mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the Property pursuant to the terms of the Loan Documents, and in the case of Borrower and each Borrower Principal, has full power, authority and legal right to keep and observe all of the terms of the Loan Documents to which it is a party. Borrower and each Borrower Principal represent and warrant that the chart attached hereto as Exhibit A sets forth an accurate listing of the direct and indirect owners of the equity interests in Borrower, and each Borrower Principal (when not an individual).

Section 4.2.  Status of Borrower

Borrower’s exact legal name is correctly set forth on the first page of this Agreement, on the Mortgage and on any UCC-l Financing Statements filed in connection with the Loan. Borrower is an organization of the type specified on the first page of this Agreement. Borrower is organized under the laws of the State of Delaware. Borrower’s principal place of business and chief executive office, and the place where Borrower keeps its books and records, including recorded data of any kind or nature, regardless of the medium of recording, including software, writings, plans, specifications and schematics, has been for the preceding four months (or, if less, the entire period of the existence of Borrower) the address of Borrower set forth on the first page of this Agreement. Borrower’s organizational identification number, if any, assigned by the state of incorporation or organization is correctly set forth on the first page of the Note.

Section 4.3.  Validity of Documents

Borrower and Borrower Principal have taken all necessary action to authorize the execution, delivery and performance of this Agreement and the other Loan Documents to which they are parties. This Agreement and such other Loan Documents have been duly executed and delivered by or on behalf of Borrower and Borrower Principal and constitute the legal, valid and binding obligations of Borrower and Borrower Principal enforceable against Borrower and Borrower Principal in accordance with their respective terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

Section 4.4.  No Conflicts

The execution, delivery and performance of this Agreement and the other Loan Documents by Borrower and Borrower Principal will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance (other than pursuant to the Loan Documents) upon any of the property or assets of Borrower or Borrower Principal pursuant to the terms of any agreement or instrument to which Borrower or Borrower Principal is a party or by which any of Borrower’s or Borrower Principal’s property or assets is subject, nor will such action result, in any violation of the provisions of any statute or any order, rule or regulation of any

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Governmental Authority having jurisdiction over Borrower or Borrower Principal or any of Borrower’s or Borrower Principal’s properties or assets, and any consent, approval, authorization, order, registration or qualification of or with any Governmental Authority required for the execution, delivery and performance by Borrower or Borrower Principal of this Agreement or any of the other Loan Documents has been obtained and is in full force and effect.

Section 4.5.  Litigation

There are no actions, suits or proceedings at law or in equity by or before any Governmental Authority or other agency now pending or, to Borrower’s or Borrower Principal’s knowledge, threatened against or affecting Borrower, Borrower Principal, Manager or the Property, which actions, suits or proceedings, if determined against Borrower, Borrower Principal, Manager or the Property, would materially adversely affect the condition (financial or otherwise) or business of Borrower or Borrower Principal or the condition or ownership of the Property.

Section 4.6.  Agreements

Borrower is not a party to any agreement or instrument or subject to any restriction which would materially and adversely affect Borrower or the Property, or Borrower’s business, properties or assets, operations or condition, financial or otherwise. Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party or by which Borrower or the Property is bound. Borrower has no material financial obligation under any agreement or instrument to which Borrower is a party or by which Borrower or the Property is otherwise bound, other than (a) obligations incurred in the ordinary course of the operation of the Property and (b) obligations under the Loan Documents.

Section 4.7.Solvency

Borrower and each Borrower Principal have (a) not entered into the transaction or executed the Note, this Agreement or any other Loan Documents with the actual intent to hinder, delay or defraud any creditor and (b) received reasonably equivalent value in exchange for their obligations under such Loan Documents. Giving effect to the Loan, the fair saleable value of the assets of Borrower and each Borrower Principal exceeds and will, immediately following the making of the Loan, exceed the total liabilities of Borrower and Borrower Principal, including, without limitation, subordinated, unliquidated, disputed and contingent liabilities. No petition in bankruptcy has been filed against Borrower, Borrower Principal, or Affiliated Manager in the last ten (10) years, and neither Borrower nor Borrower Principal, or Affiliated Manager in the last ten (10) years has made an assignment for the benefit of creditors or taken advantage of any Creditors Rights Laws. Neither Borrower nor Borrower Principal, or Affiliated Manager is contemplating either the filing of a petition by it under any Creditors Rights Laws or the liquidation of all or a major portion of Borrower’s assets or property, and Borrower has no knowledge of any Person contemplating the filing of any such petition against Borrower or Borrower Principal, or Affiliated Manager.

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Section 4.8.  Full and Accurate Disclosure

No statement of fact made by or on behalf of Borrower or Borrower Principal in this Agreement or in any of the other Loan Documents or in any other document or certificate delivered by or on behalf of Borrower or Borrower Principal contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained herein or therein not misleading. There is no material fact presently known to Borrower or Borrower Principal which has not been disclosed to Lender which adversely affects, nor as far as Borrower or Borrower Principal can reasonably foresee, might adversely affect, the Property or the business, operations or condition (financial or otherwise) of Borrower or Borrower Principal.

Section 4.9.  No Plan Assets

Borrower is not an “employee benefit plan,” as defined in Section 3(3) of ERISA, subject to Title I of ERISA, and none of the assets of Borrower constitutes or will constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101. In addition, (a) Borrower is not a “governmental plan” within the meaning of Section 3(32) of ERISA and (b) transactions by or with Borrower are not subject to state statutes regulating investment of, and fiduciary obligations with respect to, governmental plans similar to the provisions of Section 406 of ERISA or Section 4975 of the Internal Revenue Code currently in effect, which prohibit or otherwise restrict the transactions contemplated by this Agreement.

Section 4.10.  Not a Foreign Person

Neither Borrower nor Borrower Principal is a “foreign Person” within the meaning of §1445(f)(3) of the Internal Revenue Code.

Section 4.11.  Enforceability

The Loan Documents are not subject to any right of rescission, set-off, counterclaim or defense by Borrower, including the defense of usury, nor would the operation of any of the terms of the Loan Documents, or the exercise of any right thereunder, render the Loan Documents unenforceable, and neither Borrower nor Borrower Principal has asserted any right of rescission, set-off, counterclaim or defense with respect thereto. No Default or Event of Default exists under or with respect to any Loan Document.

Section 4.12.  Business Purposes

The Loan is solely for the business purpose of Borrower, and is not for personal, family, household, or agricultural purposes.

Section 4.13.  Compliance

Except as expressly disclosed by Borrower to Lender in writing in connection with the closing of the Loan, to Borrower’s knowledge, Borrower and the Property, and the use and operation thereof, comply in all material respects with all Legal Requirements, including, without limitation, building and zoning ordinances and codes and the Americans with Disabilities Act. To Borrower’s knowledge, Borrower is not in default or violation of any order,

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writ, injunction, decree or demand of any Governmental Authority and Borrower has received no written notice of any such default or violation. There has not been committed by Borrower or, to Borrower’s knowledge, any other Person in occupancy of or involved with the operation or use of the Property any act or omission affording any Governmental Authority the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents.

Section 4.14.  Financial Information

All financial data, including, without limitation, the balance sheets, statements of cash flow, statements of income and operating expense and rent rolls, that have been delivered to Lender in respect of Borrower, Borrower Principal and/or the Property (a) are true, complete and correct in all material respects, (b) accurately represent the financial condition of Borrower, Borrower Principal or the Property, as applicable, as of the date of such reports, and (c) to the extent prepared or audited by an independent certified public accounting firm, have been prepared in accordance with tax basis accounting throughout the periods covered, except as disclosed therein. Borrower does not have any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that are known to Borrower and reasonably likely to have a material adverse effect on the Property or the current and/or intended operation thereof, except as referred to or reflected in said financial statements. Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of Borrower or Borrower Principal from that set forth in said financial statements.

Section 4.15.  Condemnation

No Condemnation or other proceeding has been commenced or, to Borrower’s best knowledge, is threatened or contemplated with respect to all or any portion of the Property or for the relocation of roadways providing access to the Property.

Section 4.16.  Utilities and Public Access; Parking

To the best of Borrower’s knowledge, the Property has adequate rights of access to public ways and is served by water, sewer, sanitary sewer and storm drain facilities adequate to service the Property for full utilization of the Property for its intended uses. All public utilities necessary to the full use and enjoyment of the Property as currently used and enjoyed are located either in the public right-of-way abutting the Property (which are connected so as to serve the Property without passing over other property) or in recorded easements serving the Property and such easements are set forth in and insured by the Title Insurance Policy. All roads necessary for the use of the Property for its current purposes have been completed and dedicated to public use and accepted by all Governmental Authorities. The Property has, or is served by, parking to the extent required to comply with all Legal Requirements.

Section 4.17.  Separate Lots

The Property is assessed for real estate tax purposes as one or more wholly independent tax lot or lots, separate from any adjoining land or improvements not constituting a part of such

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lot or lots, and no other land or improvements is assessed and taxed together with the Property or any portion thereof.

Section 4.18.  Assessments

To Borrower’s knowledge, there are no pending or proposed special or other assessments for public improvements or otherwise affecting the Property, nor are there any contemplated improvements to the Property that may result in such special or other assessments.

Section 4.19.  Insurance

Borrower has obtained and has delivered to Lender either (a) certified copies of all Policies or, to the extent such Policies are not available as of the Closing Date, certificates of insurance with respect to all such Policies reflecting the insurance coverages, amounts and other requirements set forth in this Agreement or (b) the certificate of American Express that American Express is a self-insurer with respect to the occurrences referred to in Section 8.1 and that the rating of American Express by the Rating Agencies has not fallen below the Trigger Rating.

Section 4.20.  Use of Property

The Property is used exclusively for general office purposes and other appurtenant and related uses.

Section 4.21.  Certificate of Occupancy; Licenses

All certificates of occupancy and to Borrower’s knowledge all certifications, permits, licenses and approvals, including, without limitation, certificates of completion and any applicable liquor license required for the legal use, occupancy and operation of the Property for the purpose intended herein, have been obtained and are valid and in full force and effect. Borrower shall keep and maintain (or require American Express to maintain) all licenses necessary for the operation of the Property for the purpose intended herein. The use being made of the Property is in conformity with the final certificate of occupancy (or compliance, if applicable) and any other permits or licenses issued for the Property.

Section 4.22.  Flood Zone

None of the Improvements on the Property are located in an area identified by the Federal Emergency Management Agency as an area having special flood hazards, or, if any portion of the Improvements is located within such area, Borrower will obtain or cause American Express to obtain the insurance prescribed in Section 8.1(a)(i) at any time during the term of the Loan when American Express ceases to be a self-insurer or when the rating of American Express by the Rating Agencies falls below the Trigger Rating.

Section 4.23.  Physical Condition

Except as set forth in the Property Condition Report, to Borrower’s knowledge, the Property, including, without limitation, all buildings, improvements, parking facilities,

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sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, are in good condition, order and repair in all material respects. Except as set forth in the Property Condition Report, to Borrower’s knowledge, there exist no structural or other material defects or damages in the Property, as a result of a Casualty or otherwise, and whether latent or otherwise. Borrower has not received notice from any insurance company or bonding company of any defects or inadequacies in the Property, or any part thereof, which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond.

Section 4.24.  Boundaries; Survey

(a)None of the Improvements which were included in determining the appraised value of the Property lie outside the boundaries and building restriction lines of the Property to any material extent, and (b) no improvements on adjoining properties encroach upon the Property and no easements or other encumbrances upon the Property encroach upon any of the Improvements so as to materially affect the value or marketability of the Property.

Section 4.25.  Leases

The entire Property has been leased to American Express pursuant to the American Express Lease. (a) The American Express Lease is in full force and effect; (b) the premises demised under the American Express Lease have been completed and American Express has accepted possession of and is in occupancy of the demised premises; (c) American Express has commenced the payment of rent under the American Express Lease, there are no offsets, claims or defenses to the enforcement thereof and Borrower has no monetary obligations to American Express under the American Express Lease; (d) all Rents due and payable under the American Express Lease have been paid and no portion thereof has been paid for any period more than thirty (30) days in advance; (e) the rent payable under the American Express Lease is the amount of fixed rent set forth in the American Express Lease, and there is no claim or basis for a claim by American Express thereunder for an adjustment to the Rent; (f) Borrower is the sole owner of the entire landlord’s interest in the American Express Lease; (g) the American Express Lease is the valid, binding and enforceable obligation of Borrower and American Express thereunder and there are no agreements with American Express with respect to the American Express Lease other than as expressly set forth therein; (h) no Person has any possessory interest in, or right to occupy, the Property or any portion thereof except under the American Express Lease; (i) except for the right of first refusal set forth in Article 4 and the right to offer to purchase the Property under Article 12, the American Express Lease does not contain any option or offer to purchase or right of first refusal to purchase the Property or any part thereof; and (j) neither the American Express Lease not the Rents have been assigned or pledged except to Lender, and no other Person has any interest therein.

Section 4.26.  Filing and Recording Taxes

All mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid by any Person under applicable Legal Requirements currently in effect in connection with

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the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents, including, without limitation, the Mortgage, have been paid or will be paid, and, under current Legal Requirements, the Mortgage is enforceable in accordance with its terms by Lender (or any subsequent holder thereof).

Section 4.27.Management Agreement

The Management Agreement is in full force and effect and there is no default thereunder by any party thereto and, to Borrower’s knowledge, no event has occurred that, with the passage of time and/or the giving of notice, would constitute a default thereunder. No management fees under the Management Agreement are accrued and unpaid.

Section 4.28.  Illegal Activity

No portion of the Property has been or will be purchased with proceeds of any illegal activity, and no part of the proceeds of the Loan will be used in connection with any illegal activity.

Section 4.29.  Construction Expenses

All costs and expenses of any and all labor, materials, supplies and equipment used in the construction, maintenance or repair of the Improvements have been paid in full. To Borrower’s knowledge after due inquiry, there are no claims for payment for work, labor or materials affecting the Property which are or may become a lien prior to, or of equal priority with, the Liens created by the Loan Documents.

Section 4.30.  Personal Property

Borrower has paid in full for, and is the owner of, all Personal Property (other than tenants’ property) used in connection with the operation of the Property, free and clear of any and all security interests, liens or encumbrances, except for Permitted Encumbrances and the Lien and security interest created by the Loan Documents.

Section 4.31.  Taxes

Borrower and Borrower Principal have filed all federal, state, county, municipal, and city income, personal property and other tax returns required to have been filed by them and have paid all taxes and related liabilities which have become due pursuant to such returns or pursuant to any assessments received by them. Neither Borrower nor Borrower Principal knows of any basis for any additional assessment in respect of any such taxes and related liabilities for prior years.

Section 4.32.  Permitted Encumbrances

None of the Permitted Encumbrances, individually or in the aggregate, materially interferes with the benefits of the security intended to be provided by the Loan Documents, materially and adversely affects the value of the Property, impairs the use or the operation of the Property or impairs Borrower’s ability to pay its obligations in a timely manner.

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Section 4.33.  Federal Reserve Regulations

Borrower will use the proceeds of the Loan for the purposes set forth in Section 2.1(d) hereof and not for any illegal activity. No part of the proceeds of the Loan will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by Legal Requirements or prohibited by the terms and conditions of this Agreement orthe other Loan Documents.

Section 4.34.  Investment Company Act

Borrower is not (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; (b) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (c) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

Section 4.35.  Reciprocal Easement Agreements

(a)Neither Borrower nor any other party is currently in default (nor has any notice been given or received with respect to an alleged or current default) under any of the terms and conditions of the REA, and the REA remains unmodified and in full force and effect;

(b)All easements granted pursuant to the REA which were to have survived the site preparation and completion of construction (to the extent that the same has been completed), remain in full force and effect and have not been released, terminated, extinguished or discharged by agreement or otherwise;

(c)To the best of Borrower’s knowledge, all sums due and owing by Borrower to the other parties to the REA (or by the other parties to the REA to the Borrower) pursuant to the terms of the REA, including without limitation, all sums, charges, fees, assessments, costs, and expenses in connection with any taxes, site preparation and construction, non-shareholder contributions, and common area and other property management activities have been paid, are current, and no lien has attached on the Property (or threat thereof been made) for failure to pay any of the foregoing;

(d)The terms, conditions, covenants, uses and restrictions contained in the REA do not conflict in any manner with any terms, conditions, covenants, uses and restrictions contained in any Lease or in any agreement between Borrower and occupant of any peripheral parcel, including without limitation, conditions and restrictions with respect to kiosk placement, tenant restrictions (type, location or exclusivity), sale of certain goods or services, and/or other use restrictions; and

(e)The terms, conditions, covenants, uses and restrictions contained in the American Express Lease do not conflict in any manner with any terms, conditions, covenants, uses and restrictions contained in the REA, any other lease or in any agreement between Borrower and

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occupant of any peripheral parcel, including without limitation, conditions and restrictions with respect to kiosk placement, tenant restrictions (type, location or exclusivity), sale of certain goods or services, and/or other use restrictions.

Section 4.36.  No Change in Facts or Circumstances; Disclosure

All information submitted by Borrower or its agents to Lender and in all financial statements, reports, certificates and other documents submitted in connection with the Loan or in satisfaction of the terms thereof and all statements of fact made by Borrower in this Agreement or in any other Loan Document, are accurate, complete and correct in all material respects. There has been no material adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading in any material respect or that otherwise materially and adversely affects or might materially and adversely affect the Property or the business operations or the financial condition of Borrower. Borrower has disclosed to Lender all material facts and has not failed to disclose any material fact that could cause any representation or warranty made herein to be materially misleading.

Section 4.37.  Intellectual Property

All trademarks, trade names and service marks necessary to the business of Borrower as presently conducted or as Borrower contemplates conducting its business are in good standing and, to the extent of Borrower’s actual knowledge, uncontested. Borrower has not infringed, is not infringing, and has not received notice of infringement with respect to asserted trademarks, trade names and service marks of others. To Borrower’s knowledge, there is no infringement by others of trademarks, trade names and service marks of Borrower.

Section 4.38.  Compliance with Anti-Terrorism Laws

None of Borrower, Borrower Principal or any Person who Controls Borrower or Borrower Principal currently is identified by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) or otherwise qualifies as an Embargoed Person, and Borrower has implemented procedures to ensure that no Person who now or hereafter owns a material direct or indirect equity interest in Borrower is an Embargoed Person or is Controlled by an Embargoed Person. To Borrower’s knowledge neither Borrower nor Borrower Principal is in violation of any applicable law relating to anti-money laundering or anti-terrorism, including, without limitation, those related to transacting business with Embargoed Persons or the requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, U.S. Public Law 107-56, and the related regulations issued thereunder, including temporary regulations (collectively, as the same may be amended from time to time, the “Patriot Act”). To the best of Borrower’s knowledge, no tenant at the Property is currently identified by OFAC or otherwise qualifies as an Embargoed Person, or is owned or Controlled by an Embargoed Person.

Section 4.39.  Patriot Act

Neither Borrower nor Borrower Principal shall (a) be or become subject at any time to any law, regulation, or list of any government agency (including, without limitation, the list maintained by OFAC and accessible through the OFAC website) that prohibits or limits any

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lender from making any advance or extension of credit to Borrower or from otherwise conducting business with Borrower and Borrower Principal, or (b) fail to provide documentary and other evidence of Borrower’s identity as may be requested by any lender at any time to enable any lender to verify Borrower’s identity or to comply with any applicable law or regulation, including, without limitation, the Patriot Act. In addition, Borrower hereby agrees to provide to Lender any additional information that Lender deems necessary from time to time in order to ensure compliance with all applicable laws concerning money laundering and similar activities.

Section 4.40.  Survival

Borrower agrees that, unless expressly provided otherwise, all of the representations and warranties of Borrower set forth in this Article 4 and elsewhere in this Agreement and in the other Loan Documents shall survive for so long as any portion of the Debt remains owing to Lender. All representations, warranties, covenants and agreements made in this Agreement or in the other Loan Documents by Borrower shall be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.

ARTICLE 5

BORROWER COVENANTS

From the date hereof and until repayment of the Debt in full and performance in full of all obligations of Borrower under the Loan Documents or the earlier release of the Lien of the Mortgage (and all related obligations) in accordance with the terms of this Agreement and the other Loan Documents, Borrower hereby covenants and agrees with Lender that:

Section 5.1.  Existence; Compliance with Legal Requirements

(a)Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, rights, licenses, permits and franchises and comply with all Legal Requirements applicable to it and the Property.  Borrower hereby covenants and agrees not to commit, permit or suffer to exist any act or omission affording any Governmental Authority the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents. Borrower shall at all times maintain, preserve and protect all franchises and trade names used in connection with the operation of the Property.  So long as American Express is in compliance with the terms of the American Express Lease with respect to the matters described in this Section 5.1, Borrower shall be deemed in compliance with this Section 5.1.

(b)Borrower, at its own expense, may contest or permit American Express to contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the Legal Requirements affecting the Property, provided that (i) no Default or Event of Default has occurred and is continuing; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower or the Property is subject and shall not constitute a default thereunder; (iii) neither the Property, any part thereof or interest therein, any of the tenants or occupants thereof, nor Borrower shall be affected in any material adverse way as a result of such proceeding; (iv) non-compliance with the

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Legal Requirements shall not impose civil or criminal liability on Borrower or Lender; (v) unless the contest is initiated and conducted by American Express pursuant to the American Express Lease Borrower shall have furnished the security as may be required in the proceeding or by Lender to ensure compliance by Borrower with the Legal Requirements; and (vi) if the contest is initiated and conducted by Borrower, Borrower shall have furnished to Lender all other items reasonably requested by Lender. Borrower shall give written notice to Lender of any contest initiated and conducted by Borrower promptly after initiation thereof and shall inform Lender of any contest initiated and conducted by American Express of which Borrower is given notice by American Express.

Section 5.2.  Maintenance and Use of Property

Borrower shall cause the Property to be maintained in a good and safe condition and repair. The Improvements and the Personal Property shall not be removed, demolished or except as may be expressly permitted under the American Express Lease without the consent of the landlord thereunder, materially altered (except for normal replacement of the Personal Property) without the prior written consent of Lender. So long as American Express is in compliance with the terms of the American Express Lease with respect to the matters described in this Section 5.2, Borrower shall be deemed in compliance with this Section 5.2. If under applicable zoning provisions the use of all or any portion of the Property is or shall become a nonconforming use, Borrower will not cause or permit the nonconforming use to be discontinued or the nonconforming Improvement to be abandoned without the express written consent of Lender.

Section 5.3.  Waste

Borrower shall not commit or suffer any waste of the Property or make any change in the use of the Property which will in any way materially increase the risk of fire or other hazard arising out of the operation of the Property, or take any action that might invalidate or give cause for cancellation of any Policy, or do or permit to be done thereon anything that may in any way impair the value of the Property or the security for the Loan. Borrower will not, without the prior written consent of Lender, permit any drilling or exploration for or extraction, removal, or production of any minerals from the surface or the subsurface of the Property, regardless of the depth thereof or the method of mining or extraction thereof.

Section 5.4.  Taxes and Other Charges

(a)Borrower shall pay or cause American Express to pay all Taxes and Other Charges now or hereafter levied or assessed or imposed against the Property or any part thereof as the same become due and payable. Borrower shall furnish or cause to be furnished to Lender such receipts for the payment of the Taxes and the Other Charges as are delivered to Borrower by American Express and, upon request by Lender, a certificate from Borrower and Borrower Principal that as of the date of such certificate there are no liens filed against the Property arising from the non-payment of Taxes or Other Charges. Borrower shall not suffer nor permit American Express to suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. So long as American Express is in

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compliance with the terms of the American Express Lease with respect to the matters described in this Section 5.4, Borrower shall be deemed in compliance with this Section 5.4.

(b)Borrower, at its own expense, may contest or permit American Express to contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) no Default or Event of Default has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable Legal Requirements; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish or cause American Express to furnish (but only to the extent required to be furnished by American Express under the American Express Lease) such security as may be required in the proceeding, or deliver to Lender such reserve deposits as may be requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon (unless Borrower or American Express has paid all of the Taxes or Other Charges under protest). Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the judgment of Lender, the entitlement of such claimant is established or the Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, canceled or lost or there shall be any danger of the Lien of the Mortgage being primed by any related Lien.

Section 5.5.  Litigation

Borrower shall give prompt written notice to Lender of any litigation or governmental proceedings pending or threatened in writing against Borrower which might materially adversely affect Borrower’s condition (financial or otherwise) or business or the Property.

Section 5.6.  Access to Property

Borrower shall permit agents, representatives and employees of Lender to inspect the Property or any part thereof at reasonable hours upon reasonable advance notice, subject to the rights of American Express under the American Express Lease.

Section 5.7.  Notice of Default

Borrower shall promptly advise Lender of any material adverse change in the condition (financial or otherwise) of Borrower, any Borrower Principal or the Properly or of the occurrence of any Default or Event of Default of which Borrower has knowledge and of any American Express Lease Default of which Borrower has knowledge.

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Section 5.8.  Cooperate inLegal Proceedings

Borrower shall at Borrower’s expense cooperate fully with Lender with respect to any proceedings before any court, board or other Governmental Authority which may in any way affect the rights of Lender hereunder or any rights obtained by Lender under any of the other Loan Documents and, in connection therewith, permit Lender, at its election, to participate in any such proceedings.

Section 5.9.  Performance by Borrower

Borrower shall in a timely manner observe, perform and fulfill each and every covenant, term and provision to be observed and performed by Borrower under this Agreement and the other Loan Documents and any other agreement or instrument affecting or pertaining to the Property and any amendments, modifications or changes thereto.

Section 5.10.  Awards; Insurance Proceeds

Borrower shall cooperate with Lender in obtaining for Lender the benefits of any Awards or Insurance Proceeds lawfully or equitably payable to Borrower in connection with the Property, and Lender shall be reimbursed for any expenses incurred in connection therewith (including reasonable, actual attorneys’ fees and disbursements, and the payment by Borrower of the expense of an appraisal on behalf of Lender in case of a Casualty or Condemnation affecting the Property or any part thereof) out of such Awards or Insurance Proceeds. The actual payment of any Awards shall be governed by Section 8.4 hereof.

Section 5.11.  Financial Reporting

(a)Borrower and Borrower Principal shall keep adequate books and records of account in accordance with federal tax basis accounting, or in accordance with other methods acceptable to Lender in its sole discretion, consistently applied and shall furnish to Lender:

(i)prior to a Securitization, at the request of Lender, monthly, and following a Securitization, quarterly and annual certificates signed and dated by Borrower, certifying that the American Express Lease is in full force and effect, whether any defaults (or any matter that, with the passage of time or the giving of notice, could become a default) exist thereunder and any other information as is reasonably required by Lender, within twenty (20) days after the end of each calendar month, thirty (30) days after the end of each fiscal quarter or one hundred twenty (120) days after the close of each fiscal year of Borrower, as applicable;

(ii)prior to a Securitization, at the request of Lender, monthly, and following a Securitization, quarterly and annual operating statements of the Property, prepared and certified by Borrower in the form required by Lender, detailing the revenues received, the expenses incurred and the net operating income before and after debt service (principal and interest) and major capital improvements (including, without limitation, any capital improvements planned by American Express of which Borrower has notice) for the period of calculation and containing appropriate year-to-date information, within twenty (20) days after the end of each calendar month, thirty (30) days after the end of each

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fiscal quarter or one hundred (120) days after the close of each fiscal year of Borrower, as applicable;

(iii)annual balance sheets, profit and loss statements, statements of cash flows, and statements of change in financial position of Borrower and Borrower Principal in the form required by Lender prepared and certified by Borrower and Borrower Principal within one hundred twenty (120) days after the close of each fiscal year of Borrower and Borrower Principal, as the case may be (provided that with respect to Borrower, such statements may be delivered by the holder(s) of beneficial interests in Borrower in accordance with Section 6.1(a)(viii); and

(iv)all financial statements, operating statements, budgets, capital repair estimates or projections and certifications of any kind with respect to the foregoing delivered to Borrower by American Express under the American Express Lease.

(b)To the extent not inconsistent with the provisions of Section 5.11(a) hereof (e.g., GAAP accounting and audits shall not be required ), Borrower and Borrower Principal shall furnish Lender with such other additional financial or management information (including state and federal tax returns) as may, from time to time, be reasonably required by Lender in form and substance satisfactory to Lender (including, without limitation, any financial reports required to be delivered by any Tenant or any guarantor of any Lease pursuant to the terms of such Lease), and shall furnish to Lender and its agents convenient facilities for the examination and audit of any such books and records

(c)Without limiting any other rights available to Lender under this Loan Agreement or any of the other Loan Documents, in the event Borrower shall fail to timely furnish Lender any financial document or statement in accordance with this Section 5.11, Borrower shall promptly pay to Lender a non-refundable charge in the amount of $500 for each such failure. The payment of such amount shall not be construed to relieve Borrower of any Event of Default hereunder arising from such failure.

(d)All items requiring the certification of Borrower shall, except where Borrower is an individual, require a certificate executed by the general partner, managing member or chief executive officer of Borrower, as applicable (and the same rules shall apply to any sole shareholder, general partner or managing member which is not an individual).

Section 5.12.  Estoppel Statement

(a)After request by Lender, Borrower shall within ten (10) Business Days furnish Lender with a statement, duly acknowledged and certified, setting forth (i) the amount of the original principal amount of the Note, (ii) the rate of interest on the Note, (iii) the unpaid principal amount of the Note, (iv) the date installments of interest and/or principal were last paid, (v) any offsets or defenses to the payment of the Debt, if any, and (vi) that the Note, this Agreement, the Mortgage and the other Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such modification.

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(b)Borrower shall use its best efforts to deliver to Lender, promptly upon request, a duly executed estoppel certificate from American Express on the form attached to the American Express Lease as an exhibit.

Section 5.13.  Leasing Matters.

(a)Borrower (i) shall observe and perform all the obligations imposed on the landlord under the American Express Lease and shall not do or permit to be done anything to impair the value of the American Express Lease as security for the Debt; (ii) shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the American Express Lease on the part of the tenant thereunder to be observed or performed; (iv) shall not collect any of the Rents more than one (1) month in advance; (v) shall not execute any other assignment of the landlord’s interest in the American Express Lease or the Rents; and (vi) shall not consent to any assignment of or subletting under the American Express Lease not in accordance with its terms without the prior written consent of Lender.

(b)Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a surrender of space under or shorten the term of the American Express Lease.

Section 5.14.  Property Management

(a)Borrower shall (i) promptly perform and observe all of the covenants required to be performed and observed by it under the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (ii) promptly notify Lender of any default under the Management Agreement of which it is aware; (iii) promptly deliver to Lender a copy of any notice of default or other material notice received by Borrower under the Management Agreement; (iv) promptly give notice to Lender of any notice or information that Borrower receives which indicates that Manager is terminating the Management Agreement or that Manager is otherwise discontinuing its management of the Property; and (v) promptly enforce the performance and observance of all of the covenants required to be performed and observed by Manager under the Management Agreement.

(b)If at any time, (i) Manager shall become insolvent or a debtor in a bankruptcy proceeding; (ii) an Event of Default has occurred and is continuing; or (iii) a default has occurred and is continuing after the expiration of any applicable cure periods under the Management Agreement, Borrower shall, at the request of Lender, terminate the Management Agreement upon thirty (30) days prior notice to Manager and replace Manager with a Qualified Manager, it being understood and agreed that the management fee for such replacement manager shall not exceed then prevailing market rates.

(c)In addition to the foregoing, in the event that Lender, in Lender’s reasonable discretion, at any time prior to the termination of the Assignment of Management Agreement, determines that the Property is not being managed in accordance with generally accepted management practices for projects similarly situated, Lender may deliver written notice thereof to Borrower and Manager, which notice shall specify with particularity the grounds for Lender’s

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determination. If Lender reasonably determines that the conditions specified in Lender’s notice are not remedied to Lender’s reasonable satisfaction by Borrower or Manager within thirty (30) days from the date of such notice or that Borrower or Manager has failed to diligently undertake correcting such conditions within such thirty (30) day period, Lender may direct Borrower to terminate the Management Agreement and to replace Manager with a Qualified Manager on terms and conditions satisfactory to Lender, it being understood and agreed that the management fee for such replacement manager shall not exceed then prevailing market rates.

(d)Borrower shall not, without the prior written consent of Lender (which consent shall not be unreasonably withheld, conditioned or delayed): (i) surrender, terminate or cancel the Management Agreement or otherwise replace Manager or enter into any other management agreement with respect to the Property; (ii) reduce or consent to the reduction of the term of the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Management Agreement; or (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the Management Agreement in any material respect. In the event that Borrower replaces Manager at any time during the term of Loan pursuant to this subsection, such Manager shall be a Qualified Manager.

(c)Notwithstanding the foregoing, Borrower shall be permitted to transfer the management of the Property to an Affiliate of Manager provided that the terms of the management contract between Borrower and such entity provides for fees no greater than, is on terms that are substantially similar to and is no less favorable to Borrower than the Management Agreement in effect as of the date hereof.

Section 5.15.  Liens

Borrower shall not, without the prior written consent of Lender, create, incur, assume or suffer to exist any Lien on any portion of the Property or permit any such action to be taken, except Permitted Encumbrances.

Section 5.16.  Debt Cancellation

Borrower shall not cancel or otherwise forgive or release any claim or debt owed to Borrower by any Person, except for adequate consideration and in the ordinary course of Borrower’s business.

Section 5.17.  Zoning

Borrower shall not initiate or consent to any zoning reclassification of any portion of the Property or seek any variance under any existing zoning ordinance or use or permit the use of any portion of the Property in any manner that could result in such use becoming a non-conforming use under any zoning ordinance or any other applicable land use law, rule or regulation, without the prior written consent of Lender.

Section 5.18.  ERISA

(a)Borrower shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under the

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Note, this Agreement or the other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA.

(b)Borrower further covenants and agrees to deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan, as requested by Lender in its sole discretion, that (i) Borrower is not and does not maintain an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title 1 of ERISA, or a “governmental plan” within the meaning of Section 3(3) of ERISA; (ii) Borrower is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (iii) one or more of the following circumstances is true:

(A)Equity interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R. §2510.3-101(b)(2);

(B)Less than twenty-five percent (25%) of each outstanding class of equity interests in Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R. §2510.3-101(f)(2);or

(C)Borrower qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. §2510.3-10l(c) or (e).

Section 5.19.No Joint Assessment

Borrower shall not suffer, permit or initiate the joint assessment of the Property with (a) any other real property constituting a tax lot separate from the Property, or (b) any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the Lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to the Property.

Section 5.20.  Reciprocal Easement Agreements

Borrower shall not enter into, terminate or modify any REA without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Borrower shall enforce, comply with, and cause each of the parties to the REA to comply with all of the material economic terms and conditions contained in the REA, provided that Borrower may agree, without Lender’s consent, to modifications to any REA or to grant easements with respect to the Property which could not reasonably be expected to have a material adverse effect on the use, value or operation of the Property, on the ability of American Express to perform its obligations under the American Express Lease or on Borrower’s ability to perform its obligations under the Loan Documents.

ARTICLE 6
ENTITY COVENANTS

Section 6.1.  Single Purpose Entity/Separateness

Until the Debt has been paid in full, Borrower represents, warrants and covenants as follows:

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(a)Borrower has not and will not:

(i)engage in any business or activity other than the ownership, operation and maintenance of the Property, and activities incidental thereto;

(ii)acquire or own any assets other than (A) the Property, and (B) such incidental Personal Property as may be necessary for the operation of the Property;

(iii)except as expressly provided in Article 7 hereof, merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure;

(iv)fail to observe all organizational formalities, or fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the applicable Legal Requirements of the jurisdiction of its organization or formation, or amend, modify, terminate or fail to comply with the provisions of its organizational documents;

(v)own any subsidiary, or make any investment in, any Person;

(vi)commingle its assets with the assets of any other Person, or permit any Affiliate or constituent party independent access to its bank accounts;

(vii)incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) the Debt, (B) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past the date incurred and paid on or prior to such date, and/or (C) financing leases and purchase money indebtedness incurred in the ordinary course of business relating to Personal Property on commercially reasonable terms and conditions; provided however, the aggregate amount of the indebtedness described in (B) and (C) shall not exceed at any time three percent (3%) of the outstanding principal amount of the Note;

(viii)permit its records, books of account, bank accounts, financial statements and accounting records (including with respect to financial position, assets, liabilities, net worth and operating results) to be shown on the financial statements of any holder of a beneficial interest in Borrower unless such financial statements shall contain a footnote indicating that Borrower is a separate legal entity and the assets of Borrower are not available as collateral to creditors of such holder;

(ix)enter into any contract or agreement with any general partner, member, shareholder, principal, guarantor of the obligations of Borrower, or any Affiliate of the foregoing, except upon terms and conditions that are intrinsically fair, commercially reasonable and substantially similar to those that would be available on an arm’s-length basis with unaffiliated third parties;

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(x)maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;

(xi)assume or guarantee the debts of any other Person, hold itself out to be responsible for the debts of any other Person, or otherwise pledge its assets for the benefit of any other Person or hold out its credit as being available to satisfy the obligations of any other Person;

(xii)make any loans or advances to any Person;

(xiii)fail to file its own tax returns or files a consolidated federal income tax return with any Person (unless prohibited or required, as the case may be, by applicable Legal Requirements);

(xiv)fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name or fail to correct any known misunderstanding regarding its separate identity;

(xv)fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that Borrower’s failure to do so solely because of a shortfall in cash flow derived from the operation of the Property shall not, by itself, constitute a breach of this covenant);

(xvi)Without the unanimous written consent of all of its members, as applicable, and the written consent of 100% of the managers of Borrower (a) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any Creditors Rights Laws, (b) seek or consent to the appointment of a receiver, liquidator or any similar official, (c) take any action that might cause such entity to become insolvent, or (d) make an assignment for the benefit of creditors;

(xvii)fail to allocate shared expenses (including, without limitation, shared office space and services performed by an employee of an Affiliate) among the Persons sharing such expenses and to use separate stationery, invoices and checks;

(xviii)fail to remain solvent or pay its own liabilities (including, without limitation, salaries of its own employees) only from its own funds (provided that Borrower’s failure to do so solely because of a shortfall in cash flow derived from the operation of the Property shall not, by itself, constitute a breach of this covenant);

(xix)acquire obligations or securities of its partners, members, shareholders or other affiliates, as applicable;

(xx) violate or cause to be violated the assumptions made with respect to Borrower, Manager (if applicable) and their respective direct and/or indirect owners in any opinion letter pertaining to substantive consolidation delivered to Lender in connection with the Loan; or

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(xxi)fail to maintain a sufficient number of employees in light of its contemplated business operations.

(b)The limited liability company agreement of Borrower (the “LLC Agreement”) shall provide that (i) upon the occurrence of any event that causes the sole member of Borrower (“Member”) to cease to be the member of Borrower (other than (A) upon an assignment by Member of all of its limited liability company interest in Borrower and the admission of the transferee in accordance with the Loan Documents and the LLC Agreement, or (B) the resignation of Member and the admission of an additional member of Borrower in accordance with the terms of the Loan Documents and the LLC Agreement), any such Person acting as additional member of Borrower in accordance with the terms of the Loan Documents and the LLC Agreement of Borrower shall, without any action of any other Person and simultaneously with the Member ceasing to be the member of Borrower, automatically be admitted to Borrower (“Special Member”) and shall continue Borrower without dissolution and (ii) Special Member may not resign from Borrower or transfer its rights as Special Member unless a successor Special Member has been admitted to Borrower as Special Member in accordance with requirements of Delaware law. The LLC Agreement shall further provide that (i) Special Member shall automatically cease to be a member of Borrower upon the admission to Borrower of a substitute Member, (ii) Special Member shall be a member of Borrower that has no interest in the profits, losses and capital of Borrower and has no right to receive any distributions of Borrower assets, (iii) pursuant to Section 18-301 of the Delaware Limited Liability Company Act (the “Act”), Special Member shall not be required to make any capital contributions to Borrower and shall not receive a limited liability company interest in Borrower, (iv) Special Member, in its capacity as Special Member, may not bind Borrower and (v) except as required by any mandatory provision of the Act, Special Member, in its capacity as Special Member, shall have no right to vote on, approve or otherwise consent to any action by, or matter relating to, Borrower, including, without limitation, the merger, consolidation or conversion of Borrower; provided, however, such prohibition shall not limit the obligations of Special Member to vote on such matters required by the Loan Documents or the LLC Agreement.  In order to implement the admission to Borrower of Special Member, Special Member shall execute a counterpart to the LLC Agreement. Prior to its admission to Borrower as Special Member, Special Member shall not be a member of Borrower.

Upon the occurrence of any event that causes the Member to cease to be a member of Borrower, to the fullest extent permitted by law, the personal representative of Member shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of Member in Borrower, agree in writing (i) to continue Borrower and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of Member of Borrower in Borrower. Any action initiated by or brought against Member or Special Member under any Creditors Rights Laws shall not cause Member or Special Member to cease to be a member of Borrower and upon the occurrence of such an event, the business of Borrower shall continue without dissolution. The LLC Agreement shall provide that each of Member and Special Member waives any right it might have to agree in writing to dissolve Borrower upon the occurrence of any action initiated by or brought against Member or Special Member under any Creditors Rights Laws, or the occurrence of an event that causes Member or Special Member to cease to be a member of Borrower.

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Section 6.2.  Change of Name, Identity or Structure

Borrower shall not change or permit to be changed (a) Borrower’s name, (b) Borrower’s identity (including its trade name or names), (c) Borrower’s principal place of business set forth on the first page of this Agreement, (d) the corporate, partnership or other organizational structure of Borrower, or Borrower Principal, (e) Borrower’s state of organization, or (f) Borrower’s organizational identification number, without in each case notifying Lender of such change in writing at least thirty (30) days prior to the effective date of such change and, in the case of a change in Borrower’s structure, without first obtaining the prior written consent of Lender.  In addition, Borrower shall not change or permit to be changed any organizational documents of Borrower if such change would adversely impact the covenants set forth in Section 6.1 and Section 6.4 hereof.  Borrower authorizes Lender to file any financing statement or financing statement amendment required by Lender to establish or maintain the validity, perfection and priority of the security interest granted herein.  At the request of Lender, Borrower shall execute a certificate in form satisfactory to Lender listing the trade names under which Borrower intends to operate the Property, and representing and warranting that Borrower does business under no other trade name with respect to the Property. If Borrower does not now have an organizational identification number and later obtains one, or if the organizational identification number assigned to Borrower subsequently changes, Borrower shall promptly notify Lender of such organizational identification number or change.  Nothing in this Section 6.2 shall be deemed to restrict any express rights granted to Borrower under Article 7 hereof.

Section 6.3.  Business and Operations

Borrower will qualify to do business and will remain in good standing under the laws of the State as and to the extent the same are required for the ownership, maintenance, management and operation of the Property.

Section 6.4.  Intentionally Omitted.

ARTICLE 7
NO SALE OR ENCUMBRANCE

Section 7.1.  Transfer Definitions

For purposes of this Article 7 an “Affiliated Manager” shall mean any managing agent in which Borrower, Borrower Principal, or any affiliate of such entities has, directly or indirectly, any legal, beneficial or economic interest; “Control” shall mean the power to direct the management and policies of a Restricted Party, directly or indirectly, whether through the ownership of voting securities or other beneficial interests, by contract or otherwise; “Restricted Party” shall mean Borrower, Borrower Principal, any Affiliated Manager, or any shareholder, partner, member or non-member manager, or any direct or indirect legal or beneficial owner of Borrower, Borrower Principal, any Affiliated Manager or any non-member manager; and a “Sale or Pledge” shall mean a voluntary or involuntary sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment, grant of any options with respect to, or any other transfer or disposition of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) of a legal or beneficial interest.

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Section 7.2.No Sale/Encumbrance

(a)Borrower shall not cause or permit a Sale or Pledge of the Property or any part thereof or any legal or beneficial interest therein nor permit a Sale or Pledge of an interest in any Restricted Party (in each case, a “Prohibited Transfer”), other than pursuant to the American Express Lease, without the prior written consent of Lender.

(b)A Prohibited Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock in one or a series of transactions; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general or limited partner or any profits or proceeds relating to such partnership interests or the creation or issuance of new partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of any member or any profits or proceeds relating to such membership interest; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the Manager (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.14.

Section 7.3.Permitted Transfers

Notwithstanding the provisions of Section 7.2, the following transfers shall not be deemed to be a Prohibited Transfer: (a) a transfer by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party, so long as Borrower delivers notice to Lender as soon as practicable thereafter and that such Restricted Party is promptly reconstituted, if applicable, following the death of such member, partner or shareholder and there is no change in Control of such Restricted Party as a result of such transfer; (b) the Sale or Pledge, in one or a series of related transactions, of not more than forty-nine percent (49%) of the stock, limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such transfers shall result in a change in Control in the Restricted Party or change in control of the Property, and as a condition to each such transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed transfer. Notwithstanding the foregoing, any one or more of the transfers that results in any Person owning in excess of forty-nine percent (49%) of the ownership interest in a Restricted Party shall comply with the requirements of Section 7.4.

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Section 7.4.  Lender’s Rights

Lender reserves the right to condition the consent to a Prohibited Transfer requested hereunder upon (a) a modification of the terms hereof and an assumption of the Note and the other Loan Documents as so modified by the proposed Prohibited Transfer, (b) receipt of payment of a transfer fee equal to one percent (1%) of the outstanding principal balance of the Loan and all of Lender’s expenses incurred in connection with such Prohibited Transfer, (c) receipt of written confirmation from the Rating Agencies that the Prohibited Transfer will not result in a downgrade, withdrawal or qualification of the initial, or if higher, then current ratings issued in connection with a Securitization, or if a Securitization has not occurred, any ratings to be assigned in connection with a Securitization, (d) the proposed transferee’s continued compliance with the covenants set forth in this Agreement (including, without limitation, the covenants in Article 6) and the other Loan Documents, (e) a new manager for the Property and a new management agreement satisfactory to Lender, and (f) the satisfaction of such other conditions and/or legal opinions as Lender shall determine in its sole discretion to be in the interest of Lender. All expenses incurred by Lender shall be payable by Borrower whether or not Lender consents to the Prohibited Transfer. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Prohibited Transfer made without Lender’s consent. This provision shall apply to each and every Prohibited Transfer, whether or not Lender has consented to any previous Prohibited Transfer. In the event an opinion letter pertaining to substantive consolidation was delivered to Lender and the Rating Agencies in connection with the closing of the Loan, and if any Sale or Pledge permitted under this Article 7 results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the ownership interests in a Restricted Party, Borrower shall, prior to such transfer, and in addition to any other requirement for Lender consent contained herein, deliver a revised substantive non-consolidation opinion letter to Lender reflecting such Prohibited Transfer, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies.

Section 7.5.  Assumption

Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to a transfer of the Property in its entirety to, and the related assumption of the Loan by, any Person (a “Transferee”) provided that each of the following terms and conditions are satisfied:

(a)no Default or Event of Default has occurred;

(b)Borrower shall have (i) delivered written notice to Lender of the terms of such prospective transfer not less than forty-five (45) days before the date on which such transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in the amount of $10,000.  Lender shall have the right to approve or disapprove the proposed transfer based on its then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Property, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and

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Transferee’s and its principals’ relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate;

(c)Borrower shall have paid to Lender, concurrently with the closing of such transfer, (i) a non-refundable assumption fee in an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note, and (ii) all out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection with the transfer;

(d)(i) Transferee shall have assumed and agreed to pay the Debt as and when due subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such transfer, Transferee and its constituent partners, members or shareholders as Lender may require, shall have executed, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender shall have assumed the obligations of Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the transfer of the Property pursuant to this Section 7.5;

(e)Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable law, and shall execute any additional documents reasonably requested by Lender;

(f)Borrower shall have delivered to Lender, without any cost or expense to Lender, such endorsements to Lender’s Title Insurance Policy insuring that fee simple or leasehold title to the Property, as applicable, is vested in Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;

(g)Transferee shall have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all appropriate papers evidencing Transferee’s organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee.  Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;

(h)Transferee shall assume the obligations of Borrower under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement;

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(i)Transferee shall furnish an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (g) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (E) with respect to such other matters as Lender may reasonably request;

(j)if required by Lender, Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a qualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;

(k)Borrower’s obligations under the contract of sale pursuant to which the transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.5; and

(1)Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies.

A consent by Lender with respect to a transfer of the Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Sale or Pledge of the Property. Upon the transfer of the Property pursuant to this Section 7.5, Borrower and Borrower Principal shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.

Section 7.6.  Assumption by Inland Permitted Transferee

Notwithstanding the foregoing provisions of this Article 7, Borrower shall be permitted to transfer the Property in its entirety to, provided the Loan is simultaneously assumed by, an Inland Permitted Transferee, and provided further that each of the following terms and conditions is satisfied:

(a)no Default or Event of Default has occurred;

(b)Borrower shall have delivered written notice to Lender of the terms of such prospective transfer not less than forty-five (45) days before the date on which such transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transferee as Lender shall reasonably require;

(c)Borrower shall have paid to Lender all out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection with the transfer;

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(d)such Inland Permitted Transferee assumes and agrees to pay the Debt as and when due subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such transfer, such Inland Permitted Transferee and its constituent partners, members or shareholders as Lender may require, shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;

(c)Borrower and such Inland Permitted Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable law, and shall execute any additional documents reasonably requested by Lender;

(f)Borrower shall have delivered to Lender, without any cost or expense to Lender, endorsements to Lender’s Title Insurance Policy insuring that fee simple title to the Property is vested in such Inland Permitted Transferee  (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;

(g)such Inland Permitted Transferee shall have furnished to Lender, if such Inland Permitted Transferee is a corporation, partnership, limited liability company or other entity, all appropriate papers evidencing Transferee’s organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee.  Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof, provided, however, that, (i) if such Inland Permitted Transferee is a limited partnership or a limited liability company (with more than one member), Lender may require that the general partner or managing member of such Inland Permitted Transferee also comply with the covenants set forth in Article 6, as modified to state that such general partner or managing member holds an interest in the Inland Permitted Transferee rather than an interest in the Property or (ii) if such Inland Permitted Transferee is a single member limited liability company, the state of organization of such entity must he Delaware and the organizational documents must provide for a springing member upon the bankruptcy or dissolution of the sole member;

(h)such Inland Permitted Transferee shall assume the obligations of Borrower under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement;

(i)Transferee shall furnish an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (g) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member

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or general partner of Transferee, have been duly organized, and are in existence and good standing, and (E) with respect to such other matters as Lender may reasonably request, including, without limitation, customary single member limited liability company opinions in the event that such Inland Permitted Transferee is a Delaware limited liability company; and

(j)in the event a substantive non-consolidation opinion was required in connection with the closing of the Loan, Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies.

A consent by Lender with respect to a transfer of the Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.6 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Sale or Pledge of the Property.

ARTICLE 8
INSURANCE; CASUALTY; CONDEMNATION; RESTORATION

Section 8.1.  Insurance

(a)Subject to the provisions of paragraph (g) of this Section 8.1, Borrower shall obtain and maintain, or cause American Express to maintain, insurance for Borrower and the Property providing at least the following coverages:

(i)comprehensive “special causes of loss” form of insurance (or its equivalent) on the Improvements and the Personal Property (A) in an amount equal to not less than one hundred percent (100%) of the “Full Replacement Cost,” which for purposes of this Agreement shall mean actual replacement value (exclusive of costs of excavations, foundations, underground utilities and footings) with a waiver of depreciation; (B) written on a replacement cost basis and containing either an agreed amount endorsement with respect to the Improvements and Personal Property or a waiver of all co-insurance provisions; (C) providing for no deductible in excess of $10,000 for all such insurance coverage; (D) at all times insuring against at least those hazards that are commonly insured against under a “special causes of loss” form of policy, as the same shall exist on the date hereof, and together with any increase in the scope of coverage provided under such form after the date hereof; and (E) if any of the Improvements or the use of the Property shall at any time constitute legal non-conforming structures or uses, providing coverage for contingent liability from Operation of Building Laws, Demolition Costs and Increased Cost of Construction Endorsements and containing an “Ordinance or Law Coverage” or “Enforcement” endorsement. In addition, Borrower shall obtain: (y) if any portion of the Improvements is currently or at any time in the future located in a “special flood hazard area” designated by the Federal Emergency Management Agency, flood hazard insurance in an amount equal to the maximum amount of such insurance available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended; and (Z) earthquake insurance in amounts and in form and substance reasonably satisfactory to Lender in the event the Property is located in an area with a high degree of seismic risk, provided that the insurance pursuant to

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clauses (y) and (z) hereof shall be on terms consistent with the special causes of loss form required under this subsection (i);

(ii)commercial general liability insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about the Property, with such insurance (A) to be on the so-called “occurrence” form with a general aggregate limit of not less than $2,000,000 and a per occurrence limit of not less than $1,000,000; (B) to continue at not less than the aforesaid limit until required to be changed by Lender in writing by reason of changed economic conditions making such protection inadequate; and (C) to cover at least the following hazards: (1) premises and operations; (2) products and completed operations; (3) independent contractors; (4) blanket contractual liability; and (5) contractual liability covering the indemnities contained in Article 12 and Article 14 hereof to the extent the same is available;

(iii)if the rating of American Express issued by the Rating Agencies falls below the Trigger Rating, loss of rents insurance or business income insurance, as applicable, (A) with loss payable to Lender; (B) covering all risks required to be covered by the insurance provided for in subsection (i) above; and (C) which provides that after the physical loss to the Improvements and Personal Property occurs, the loss of rents or income, as applicable, will be insured until such rents or income, as applicable, cither returns to the same level that existed prior to the loss or the expiration of twelve (12) months, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period; and (D) which contains an extended period of indemnity endorsement which provides that after the physical loss to the Improvements and Personal Property has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss, or the expiration of twelve (12) months from the date that the Property is repaired or replaced and operations are resumed, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period. The amount of such loss of rents or business income insurance, as applicable, shall be determined prior to the date hereof and at least once each year thereafter based on Borrower’s reasonable estimate of the gross income from the Property for the succeeding period of coverage required above. All proceeds payable to Lender pursuant to this subsection shall be held by Lender and shall be applied to the obligations secured by the Loan Documents from time to time due and payable hereunder and under the Note; provided, however, that nothing herein contained shall be deemed to relieve Borrower of its obligations to pay the obligations secured by the Loan Documents on the respective dates of payment provided for in the Note, this Agreement and the other Loan Documents except to the extent such amounts are actually paid out of the proceeds of such loss of rents or business income insurance, as applicable;

(iv)at all times during which structural construction, repairs or alterations are being made with respect to the Improvements, and only if the Property coverage form does not otherwise apply, (A) owner’s contingent or protective liability insurance covering claims not covered by or under the terms or provisions of the above mentioned commercial general liability insurance policy; and (B) the insurance provided for in subsection (i) above written in a so-called Builder’s Risk Completed Value form (1) on a non-reporting basis, (2) against “special causes of loss” insured against pursuant to

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subsection (i) above, (3) including permission to occupy the Property, and (4) with an agreed amount endorsement waiving co-insurance provisions;

(v)workers’ compensation, subject to the statutory limits of the State, and employer’s liability insurance in respect of any work or operations on or about the Property, or in connection with the Property or its operation (if applicable);

(vi)comprehensive boiler and machinery insurance, if applicable, in amounts as shall be reasonably required by Lender on terms consistent with the commercial property insurance policy required under subsection (i) above;

(vii)excess liability insurance in an amount not less than $75,000,000 per occurrence on terms consistent with the commercial general liability insurance required under subsection (ii) above; and

(viii)upon sixty (60) days’ written notice, such other reasonable insurance and in such reasonable amounts as Lender from time to time may reasonably request against such other insurable hazards which at the time are commonly insured against for property similar to the Property located in or around the region in which the Property is located.

With respect to the policies required to be maintained pursuant to clauses (i) through (viii) above, Borrower shall use commercially reasonable efforts, consistent with those of prudent owners of institutional quality commercial real estate, to maintain insurance against Losses resulting from acts of terrorism.

(b)All insurance provided for in Section 8.1(a) shall be obtained under valid and enforceable policies (collectively, the “Policies” or in the singular, the “Policy”), and shall be subject to the approval of Lender as to insurance companies, amounts, deductibles, loss payees and insureds.  The Policies shall be issued by financially sound and responsible insurance companies authorized to do business in the State and having a claims paying ability rating of “A-” or better by S&P (or such other ratings approved by Lender) and/or a general policy rating of “A” or better and a financial class of VIII or better by A.M. Best Company, Inc.  The Policies described in Section 8.1(a) shall designate Lender and its successors and assigns as additional insureds, mortgagees and/or loss payee as deemed appropriate by Lender. To the extent such Policies are not available as of the Closing Date, Borrower shall deliver to Lender prior to the Closing Date an Acord 28 or similar certificate of insurance evidencing the coverages and amounts required hereunder and, upon request of Lender as soon as available after the Closing Date, certified copies of all Policies.  Not less than ten (10) days prior to the expiration dates of any insurance coverage in place with respect to the Property, Borrower shall deliver to Lender an Acord 28 or similar certificate, accompanied by evidence satisfactory to Lender of payment of the premiums due in connection therewith (the “Insurance Premiums”), and, as soon as available thereafter, certified copies of all renewal Policies.

(c)Any blanket insurance Policy shall specifically allocate to the Property the amount of coverage from time to time required hereunder and shall otherwise provide the same protection as would a separate Policy insuring only the Property in compliance with the provisions of Section 8.1 (a).

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(d)All Policies provided for or contemplated by Section 8.1(a), except for the Policy referenced in Section 8.l(a)(v), shall name Borrower as the insured and Lender as the additional insured, as its interests may appear, and in the case of property damage, boiler and machinery, flood and earthquake insurance, shall contain a so-called New York standard non-contributing mortgagee clause in favor of Lender providing that the loss thereunder shall be payable to Lender.

(e)All Policies provided for in Section 8.1(a) shall contain clauses or endorsements to the effect that:

(i)no act or negligence of Borrower, or anyone acting for Borrower, or of any Tenant or other occupant, or failure to comply with the provisions of any Policy, which might otherwise result in a forfeiture of the insurance or any part thereof, shall in any way affect the validity or enforceability of the insurance insofar as Lender is concerned;

(ii)the Policies shall not be materially changed (other than to increase the coverage provided thereby) or canceled by the insurer without at least thirty (30) days’ (ten (10) days’ in the case of non-payment of premium) prior written notice to Lender and any other party named therein as an additional insured;

(iii)the issuers thereof shall give written notice to Lender if the Policies have not been renewed thirty (30) days prior to its expiration; and

(iv)Lender shall not be liable for any Insurance Premiums thereon or subject to any assessments thereunder.

(f)If at any time Lender is not in receipt of written evidence that all insurance required hereunder is in full force and effect, Lender shall have the right, without notice to Borrower, to take such action as Lender deems necessary to protect its interest in the Property, including, without limitation, obtaining such insurance coverage as Lender in its sole discretion deems appropriate.  All premiums incurred by Lender in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by Borrower to Lender upon demand and, until paid, shall be secured by the Mortgage and shall bear interest at the Default Rate.

(g)Notwithstanding any other provision hereof to the contrary, Lender acknowledges that so long as no American Express Lease Default has occurred, Borrower shall not be required to obtain the insurance coverages set forth in paragraphs (a)(i) through (viii) if (x) Guarantor (or American Express if there is no Guarantor) is a self-insurer and maintains a rating issued by the Rating Agencies of not less than the Trigger Rating or (y) American Express maintains insurance with coverages and carriers in compliance with the terms of the American Express Lease.

Section 8.2.  Casualty

If the Property shall be damaged or destroyed, in whole or in part, by fire or other casualty (a “Casualty”), Borrower shall give prompt notice of such damage to Lender and shall promptly commence and diligently prosecute the Restoration of the Property in accordance with

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Section 8.4, whether or not Lender makes any Net Proceeds available pursuant to Section 8.4. Borrower shall pay all costs of such Restoration whether or not such costs are covered by insurance. Lender may, but shall not be obligated to make proof of loss if not made promptly by Borrower. Borrower shall adjust all claims for Insurance Proceeds in consultation with, and approval of, Lender; provided, however, if an Event of Default has occurred and is continuing, Lender shall have the exclusive right to participate in the adjustment of all claims for Insurance Proceeds.

Section 8.3.  Condemnation

Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the Condemnation of the Property of which Borrower has knowledge and shall deliver to Lender copies of any and all papers served in connection with such proceedings.  Lender may participate in any such proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Debt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the provisions of Section 8.4, whether or not Lender makes any Net Proceeds available pursuant to Section 8.4. If the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.  So long as no American Express Lease Default has occurred, the payment and allocation of any Awards shall be governed by the American Express Lease.

Section 8.4.  Restoration

The following provisions shall apply in connection with the Restoration of the Property:

(a)If the Net Proceeds shall be less than $50,000 and the costs of completing the Restoration shall be less than $50,000, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 8.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.

(b)If the Net Proceeds are equal to or greater than $50,000 or the costs of completing the Restoration are equal to or greater than $50,000, Lender shall make the Net Proceeds

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available for the Restoration in accordance with the provisions of this Section 8.4. The term “Net Proceeds” for purposes of this Section 8.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 8.1(a)(i), (iv), (vi) and (viii) as a result of a Casualty, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting the same (“Insurance Proceeds”), or (ii) the net amount of the Award as a result of a Condemnation, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting the same (“Condemnation Proceeds”),whichever the case may be.

(i)The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:

(A)no Event of Default shall have occurred and be continuing;

(B)(1) in the event the Net Proceeds are Insurance Proceeds, less than thirty percent (30%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of a Casualty, or (2) in the event the Net Proceeds are Condemnation Proceeds, less than ten percent (10%) of the land constituting the Property is taken, such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land;

(C)The American Express Lease shall remain in full force and effect during and after completion of the Restoration without abatement of Rent;

(D)Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than sixty (60) days after such Casualty or Condemnation, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion;

(E)Lender shall be satisfied that any operating deficits, including all scheduled payments under the Note, which will be incurred with respect to the Property as a result of the occurrence of any such Casualty or Condemnation, whichever the case may be, will be covered out of the insurance coverage referred to in Section 8.1(a)(iii) above;

(F)Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, (2) the earliest date required for such completion under the terms of any Leases or material agreements affecting the Property, (3) such time as may be required under applicable zoning law, ordinance, rule or regulation, or (4) the expiration of the insurance coverage referred to in Section 8.1(a)(iii);

(G)the Property and the use thereof after the Restoration will be in compliance with and permitted under all Legal Requirements;

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(H)the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements;

(I)such Casualty or Condemnation, as applicable, does not result in the loss of access to the Property or the Improvements;

(J)Borrower shall deliver, or cause to be delivered, to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, which budget shall be acceptable to Lender; and

(K)the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s reasonable judgment to cover the cost of the Restoration.

(ii)The Net Proceeds shall be held by Lender until disbursements commence, and, until disbursed in accordance with the provisions of this Section 8.4, shall constitute additional security for the Debt and other obligations under the Loan Documents. The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all the conditions precedent to such advance, including those set forth in Section 8.4(b)(i), have been satisfied, (B) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the related Restoration item have been paid for in full, and (C) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy. Notwithstanding the foregoing, Business Interruption Proceeds required to be maintained by Borrower pursuant to section 8.1(a)(iii) shall be controlled by Lender at all times, shall not be subject to the provisions of this Section 8.4 and shall be used solely for the payment of the obligations under the Loan Documents and Operating Expenses.

(iii)All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Restoration Consultant”). Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration, as well as the contracts in excess of $50,000 under which they have been engaged, shall be subject to prior review and acceptance by Lender and the Restoration Consultant. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration, including, without limitation, reasonable counsel fees and disbursements and the Restoration Consultant’s fees, shall be paid by Borrower.

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(iv)In no event shall Lender he obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Restoration Consultant, minus the Restoration Retainage. The term “Restoration Retainage” shall mean an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Restoration Consultant, until the Restoration has been completed. The Restoration Retainage shall be reduced to five percent (5%) of the costs incurred upon receipt by Lender of satisfactory evidence that fifty percent (50%) of the Restoration has been completed. The Restoration Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Section 8.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Restoration Retainage shall not be released until the Restoration Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 8.4(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate Governmental Authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Restoration Retainage; provided, however, that Lender will release the portion of the Restoration Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Restoration Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company issuing the Title Insurance Policy, and Lender receives an endorsement to the Title Insurance Policy insuring the continued priority of the lien of the Mortgage and evidence of payment of any premium payable for such endorsement. If required by Lender, the release of any such portion of the Restoration Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.

(v)Lender shall not he obligated to make disbursements of the Net Proceeds more frequently than once every calendar month.

(vi)If at any time the Net Proceeds or the undisbursed balance thereof shall not, in the reasonable opinion of Lender in consultation with the Restoration Consultant, be sufficient to pay in full the balance of the costs which are estimated by the Restoration Consultant to be incurred in connection with the completion of the Restoration, Borrower shall deposit the deficiency (the “Net Proceeds Deficiency”) with Lender before any further disbursement of the Net Proceeds shall be made. The Net Proceeds Deficiency deposited with Lender shall be held by Lender and shall be disbursed for costs actually incurred in connection with the Restoration on the same conditions applicable to the disbursement of the Net Proceeds, and until so disbursed pursuant to this Section 8.4(b) shall constitute additional security for the Debt and other obligations under the Loan Documents.

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(vii)The excess, if any, of the Net Proceeds and the remaining balance, if any, of the Net Proceeds Deficiency deposited with Lender after the Restoration Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 8.4(b), and the receipt by Lender of evidence satisfactory to Lender that all costs incurred in connection with the Restoration have been paid in full, shall be remitted by Lender to Borrower, provided no Event of Default shall have occurred and shall be continuing under the Note, this Agreement or any of the other Loan Documents.

(c)All Net Proceeds not required (i) to be made available for the Restoration or (ii) to be returned to Borrower as excess Net Proceeds pursuant to Section 8.4(b)(vii) may (x) be retained and applied by Lender toward the payment of the Debt whether or not then due and payable in such order, priority and proportions as Lender in its sole discretion shall deem proper, or, (y) at the sole discretion of Lender, the same may be paid, either in whole or in part, to Borrower for such purposes and upon such conditions as Lender shall designate.

(d)In the event of foreclosure of the Mortgage, or other transfer of title to the Property in extinguishment in whole or in part of the Debt, all right, title and interest of Borrower in and to the Policies then in force concerning the Property and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure, Lender or other transferee in the event of such other transfer of title.

(e)Notwithstanding the foregoing, so long as no American Express Lease Default has occurred, the Net Proceeds shall be used for restoration of the Property in accordance with the provisions of the American Express Lease.

ARTICLE 9
REPLACEMENTS; RESERVE FUNDS

Section 9.1.  Replacements

On an ongoing basis throughout the term of the Loan, Borrower shall make capital repairs, replacements and improvements necessary to keep the Property in good order and repair and in a good marketable condition or prevent deterioration of the Property. So long as no American Express Lease Default shall have occurred, the compliance by American Express with its obligations for maintenance of the Property as set forth in the American Express Lease shall be deemed compliance by Borrower with the provisions of this Section 9.1.

Section 9.2.  Tax and Insurance Reserve Funds

If required by Lender following a default by American Express under the American Express Lease Borrower shall establish an Eligible Account with Lender or Lender’s agent sufficient to discharge Borrower’s obligations for the payment of Taxes and Insurance Premiums pursuant to Section 5.4 and Section 8.1 hereof (the “Tax and Insurance Reserve Account”) Borrower shall deposit into the Tax and Insurance Reserve Account on each Scheduled Payment Date (a) one-twelfth of the Taxes that Lender estimates will be payable during the next ensuing twelve (12) months or such higher amount necessary to accumulate with Lender sufficient funds to pay all such Taxes at least thirty (30) days prior to the earlier of (i) the date that the same will

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become delinquent and (ii) the date that additional charges or interest will accrue due to the non-payment thereof, and (b) except to the extent Lender has waived the insurance escrow because the insurance required hereunder is maintained under a blanket insurance Policy acceptable to Lender in accordance with Section 8.l(c), one-twelfth of the Insurance Premiums that Lender estimates will be payable during the next ensuing twelve (12) months for the renewal of the coverage afforded by the Policies upon the expiration thereof or such higher amount necessary to accumulate with Lender sufficient funds to pay all such Insurance Premiums at least thirty (30) days prior to the expiration of the Policies (said amounts in (a) and (b) above hereinafter called the “Tax and Insurance Reserve Funds”), Lender will apply the Tax and Insurance Reserve Funds to payments of Taxes and Insurance Premiums required to be made by Borrower pursuant to Section 5.4 and Section 8.1 hereof. In making any disbursement from the Tax and Insurance Reserve Account, Lender may do so according to any bill, statement or estimate procured from the appropriate public office or tax lien service (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums), without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof. If the amount of the Tax and Insurance Reserve Funds shall exceed the amounts due for Taxes and Insurance Premiums pursuant to Section 5.4 and Section 8.1 hereof, Lender shall, in its sole discretion, return any excess to Borrower or credit such excess against future payments to be made to the Tax and Insurance Reserve Account. In allocating any such excess, Lender may deal with the person shown on Lender’s records as being the owner of the Property. Any amount remaining in the Tax and Insurance Reserve Account after the Debt has been paid in full shall be returned to Borrower or the person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto.  If at any time Lender reasonably determines that the Tax and Insurance Reserve Funds are not or will not be sufficient to pay Taxes and Insurance Premiums by the dates set forth in (a) and (b) above, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.

Section 9.3.  Reserve Funds Generally

(a)No earnings or interest on the Reserve Accounts shall be payable to Borrower. Neither Lender nor any loan servicer that at any time holds or maintains the Reserve Accounts shall have any obligation to keep or maintain such Reserve Accounts or any funds deposited therein in interest-bearing accounts.  If Lender or any such loan servicer elects in its sole and absolute discretion to keep or maintain any Reserve Accounts or any funds deposited therein in an interest-bearing account (i) the account shall be an Eligible Account, (ii) such funds shall not be invested except in Permitted Investments, and (iii) all interest earned or accrued thereon shall be for the account of and be retained by Lender or such loan servicer.

(b)Borrower grants to Lender a first-priority perfected security interest in, and assigns and pledges to Lender, each of the Reserve Accounts and any and all funds hereafter deposited therein as additional security for payment of the Debt.  Until expended or applied in accordance herewith, the Reserve Accounts and the Reserve Funds shall constitute additional security for the Debt.  The provisions of this Section 9.9 are intended to give Lender or any subsequent holder of the Loan “control” of the Reserve Accounts within the meaning of the UCC.

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(c)The Reserve Accounts and any and all Reserve Funds deposited therein shall be subject to the exclusive dominion and control of Lender, which shall hold the Reserve Accounts and any or all Reserve Funds now or hereafter deposited therein subject to the terms and conditions of this Agreement.  Borrower shall have no right of withdrawal from the Reserve Accounts or any other right or power with respect to the Reserve Accounts or any or all of the Reserve Funds hereinafter deposited therein, except as expressly provided in this Agreement.

(d)Lender shall furnish or cause to be furnished to Borrower, without charge, an annual accounting of each Reserve Account in the normal formal of Lender or its loan servicer, showing credits and debits to such Reserve Account and the purpose for which each debit to such Reserve Account was made.

(e)As long as no Event of Default has occurred, Lender shall make disbursements from the Reserve Accounts in accordance with this Agreement. All such disbursements shall be deemed to have been expressly pre-authorized by Borrower, and shall not be deemed to constitute the exercise by Lender of any remedies against Borrower unless an Event of Default has occurred and is continuing and Lender has expressly stated in writing its intent to proceed to exercise its remedies as a secured party, pledgee or lienholder with respect to the Reserve Accounts.

(f)The Reserve Funds shall not constitute escrow or trust funds and may be commingled with other monies held by Lender. Notwithstanding anything else herein to the contrary, Lender may commingle in one or more Eligible Accounts any and all funds controlled by Lender, including, without limitation, funds pledged in favor of Lender by other borrowers, whether for the same purposes as the Reserve Accounts or otherwise. Without limiting any other provisions of this Agreement or any other Loan Document, the Reserve Accounts may be established and held in such name or names as Lender or its loan servicer, as agent for Lender, shall deem appropriate, including, without limitation, in the name of Lender or such loan servicer as agent for Lender. In the case of any Reserve Account which is held in a commingled account, Lender or its loan servicer, as applicable, shall maintain records sufficient to enable it to determine at all times which portion of such account is related to the Loan. The Reserve Accounts are solely for the protection of Lender and Lender shall have no responsibility beyond the allowance of due credit for the sums actually received by Lender or beyond the reimbursement or payment of the costs and expenses for which such accounts were established in accordance with their terms. Upon assignment of the Loan by Lender, any Reserve Funds shall be turned over to the assignee and any responsibility of Lender as assignor shall terminate. The requirements of this Agreement concerning Reserve Accounts in no way supersede, limit or waive any other rights or obligations of the parties under any of the Loan Documents or under applicable law.

(g)Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in the Reserve Accounts or the Reserve Funds deposited therein or permit any Lien to attach thereto, except for the security interest granted in this Section 9.9, or any levy to be made thereon, or any UCC Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.

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(h) Borrower will maintain the security interest created by this Section 9.9 as a first priority perfected security interest and will defend the right, title and interest of Lender in and to the Reserve Accounts and the Reserve Funds against the claims and demands of all Persons whomsoever. At any time and from time to time, upon the written request of Lender, and at the sole expense of Borrower, Borrower will promptly and duly execute and deliver such further instruments and documents and will take such further actions as Lender reasonably may request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted.

ARTICLE 10

CASH MANAGEMENT

Section 10.1.  Cash Management Account

(a)Borrower acknowledges and confirms that Borrower has established, and Borrower covenants that it shall maintain an Eligible Account into which Borrower shall, and shall cause Manager to, deposit or cause to be deposited all Rents and other revenue from the Property during the Cash Management Period or upon the occurrence of an Event of Default prior to the commencement of the Cash Management Period pursuant to the terms of Section 10.2 hereof (such account, the sub-accounts thereof, all funds at any time on deposit therein and any proceeds, replacements or substitutions of such account or funds therein, are referred to herein as the “Cash Management Account”).

(b)The Cash Management Account shall be in the name of Borrower for the benefit of Lender, provided that Borrower shall be the owner of all funds on deposit in such accounts for federal and applicable state and local tax purposes (except to the extent Lender retains any interest earned on the Cash Management Account for its own account following the occurrence and during the continuance of an Event of Default), Sums on deposit in the Cash Management Account shall not he invested except in such Permitted Investments as determined and directed by Lender and all income earned thereon shall be the income of Borrower and be applied to and become part of the Cash Management Account, to be disbursed in accordance with this Article 10.  Lender shall have no liability for any loss resulting from the investment of funds in Permitted Investments in accordance with the terms and conditions of this Agreement.

(c)The Cash Management Account shall be subject to the exclusive dominion and control of Lender during the Cash Management Period or the continuance of an Event of Default and, except as otherwise expressly provided herein, neither Borrower, Manager nor any other party claiming on behalf of, or through, Borrower or Manager, shall have any right of withdrawal therefrom or any other right or power with respect thereto.

(d)Borrower agrees to pay the customary fees and expenses incurred in connection with maintaining the Cash Management Account.

(e)Lender shall be responsible for the performance only of such duties with respect to the Cash Management Account as are specifically set forth herein, and no duty shall be implied from any provision hereof.  Lender shall not be under any obligation or duty to perform any act which would involve it in expense or liability or to institute or defend any suit in respect

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hereof, or to advance any of its own monies. Borrower shall indemnify and hold Lender and its directors, employees, officers and agents harmless from and against any loss, cost or damage (including, without limitation, reasonable attorneys’ fees and disbursements) incurred by such parties in connection with the Cash Management Account other than such as result from the gross negligence or willful misconduct of Lender or intentional nonperformance by Lender of its obligations under this Agreement.

Section 10.2.  Deposits and Withdrawals

(a)Borrower represents, warrants and covenants that:

(i)Concurrently with the execution of this Agreement Borrower has executed and delivered to Lender an instruction letter in the form of Exhibit B attached hereto addressed to American Express (the “Tenant Direction Letter”).  Upon the occurrence of an Event of Default or upon commencement of the Cash Management Period, Lender or Lender’s agent shall have the right to deliver the Tenant Direction Letter to American Express and all payments of Rent and other items payable under the American Express Lease shall thereafter be sent directly to the Cash Management Account;

(ii)Onthe occurrence of an Event of Default or the commencement of the Cash Management Period Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the Cash Management Account. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;

(iii)All Rents or other income from the Property received after the commencement of the Cash Management Period or the occurrence of an Event of Default shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of the Tenant Direction Letter, be deposited in the Cash Management Account within one (1) Business Day of receipt;

(iv)Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, during the Cash Management Period or the continuance of an Event of Default neither Borrower nor Manager shall terminate, amend, revoke or modify the Tenant Direction Letter in any manner whatsoever or direct or cause American Express to pay any amount in any manner other than as provided in the Tenant Direction Letter; and

(v)So long as any portion of the Debt remains outstanding, during the Cash Management Period or during the continuance of an Event of Default neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Cash Management Account into which revenues from the ownership and operation of the Property are deposited.

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(b)Intentionally Omitted.

(c)If an Event of Default shall have occurred and be continuing or during a Cash Management Period, on each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month immediately following the month during which the Cash Management Period commences, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:

(i)following a default by American Express under the American Express Lease, funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.2;

(ii)funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;

(iii)funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;

(iv)funds sufficient to pay Operating Expenses (to the extent actually incurred) for the following month shall be allocated to the Operating Expense Reserve Account to be held and disbursed to pay Operating Expenses;

(v)funds in an amount equal to the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be withdrawn and paid to Lender to be applied to the principal amount of the Loan until the principal amount of the Loan is paid in full.

(d)Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer.  If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).

(e)If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Cash Management Account and transfers between any Reserve Account as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion.  Lender’s right to withdraw and

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apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.

Section 10.3.  Security Interest

(a)To secure the full and punctual payment of the Debt and performance of all obligations of Borrower now or hereafter existing under this Agreement and the other Loan Documents, Borrower hereby grants to Lender a first-priority perfected security interest in each of the Accounts and the Account Collateral.  Furthermore, Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any of the foregoing or permit any Lien to attach thereto or any levy to be made thereon or any UCC Financing Statements to be filed with respect thereto.  Borrower will maintain the security interest created by this Section 10.3(a) as a first priority perfected security interest and will defend the right, title and interest of Lender in and to each of the Accounts and the Account Collateral against the claims and demands of all Persons whomsoever.

(b)Borrower authorizes Lender to file any financing statement or statements required by Lender to establish or maintain the validity, perfection and priority of the security interest granted herein in connection with the Cash Management Account.  Borrower agrees that at any time and from time to time, at the expense of Borrower, Borrower will promptly and duly execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable, or that Lender may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereby (including, without limitation, any security interest in and to any Permitted Investments) or to enable Lender to exercise and enforce its rights and remedies hereunder.

(c)Upon the occurrence of an Event of Default, Lender may exercise any or all of its rights and remedies as a secured party, pledgee and lienholder with respect to the Accounts and the Account Collateral.  Without limitation of the foregoing, upon any Event of Default, Lender may use the Accounts and the Account Collateral for any of the following purposes: (A) repayment of the Debt, including, but not limited to, principal prepayments and the prepayment premium applicable to such full or partial prepayment (as applicable); (B) reimbursement of Lender for all losses, fees, costs and expenses (including, without limitation, reasonable legal fees) suffered or incurred by Lender as a result of such Event of Default; (C) payment of any amount expended in exercising any or all rights and remedies available to Lender at law or in equity or under this Agreement or under any of the other Loan Documents; (D) payment of any item as required or permitted under this Agreement; or (E) any other purpose permitted by applicable law; provided, however, that any such application of funds shall not cure or be deemed to cure any Event of Default.  Without limiting any other provisions hereof, each of the remedial actions described in the immediately preceding sentence shall be deemed to be a commercially reasonable exercise of Lender’s rights and remedies as a secured party with respect to the Accounts and the Account Collateral and shall not in any event be deemed to constitute a setoff or a foreclosure of a statutory banker’s lien.  Nothing in this Agreement shall obligate Lender to apply all or any portion of the Accounts and the Account Collateral to effect a cure of any Event of Default, or to pay the Debt, or in any specific order of priority. The exercise of any or all of Lender’s rights and remedies under this Agreement or under any of the other Loan

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Documents shall not in any way prejudice or affect Lender’s right to initiate and complete a foreclosure under the Mortgage.

ARTICLE 11
EVENTS OF DEFAULT; REMEDIES

Section 11.1.  Event of Default

The occurrence of any one or more of the following events shall constitute an “Event of Default”:

(a)if any portion of the Debt is not paid on or prior to the tenth day following the date the same is due or if the entire Debt is not paid on or before the Maturity Date;

(b)except as otherwise expressly provided in the Loan Documents, if any of the Taxes or Other Charges are not paid when the same are due and payable, unless there is sufficient money in the Tax and Insurance Reserve Account for payment of amounts then due and payable and Lender’s access to such money has not been constrained or restricted in any manner;

(c)should American Express cease to be a self-insurer or if the rating of American express issued by the Rating Agencies falls below the Trigger Rating, if (i) the Policies are not kept in full force and effect, or (ii) the Accord  28 (or similar) certificate is not delivered to Lender in accordance with Section 8.1;

(d)if Borrower breaches any covenant with respect to itself contained in Article 6 or any covenant contained in Article 7 hereof;

(e)if any representation or warranty of, or with respect to, Borrower or Borrower Principal, or any member, general partner, principal or beneficial owner of any of the foregoing, made herein, in any other Loan Document, or in any certificate, report, financial statement or other instrument or document furnished to Lender at the time of the closing of the Loan or during the term of the Loan shall have been false or misleading in any material respect when made;

(f)if (i) Borrower, or any managing member or general partner of Borrower, Borrower Principal, or American Express shall commence any case, proceeding or other action (A) under any Creditors Rights Laws, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii) there shall be commenced against Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express any case, proceeding or other action seeking issuance of a warrant of

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attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of any order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (iv) Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due;

(g)if Borrower shall be in default beyond applicable notice and grace periods under any other mortgage, deed of trust, deed to secure debt or other security agreement covering any part of the Property, whether it be superior or junior in lien to the Mortgage;

(h)if the Property becomes subject to any mechanic’s, materialman’s or other Lien other than a Lien for any Taxes or Other Charges not then due and payable and the Lien shall remain undischarged of record (by payment, bonding or otherwise) for a period of thirty (30) days;

(i)if any federal income tax lien is filed against Borrower, any member or general partner of Borrower, Borrower Principal, or the Property and same is not discharged of record (or bonded or insured to Lender’s satisfaction) within thirty (30) days after same is filed;

(j)if an uninsured judgment is filed against the Borrower in excess of $20,000 which is not vacated or discharged (or bonded or insured to Lender’s satisfaction) within 30 days;

(k)if any default occurs under any guaranty or indemnity executed in connection herewith and such default continues after the expiration of applicable grace periods, if any;

(l)if Borrower shall permit any event within its control to occur that would cause any REA to terminate without notice or action by any party thereto or would entitle any party to terminate any REA and the term thereof by giving notice to Borrower; or any REA shall be surrendered, terminated or canceled for any reason or under any circumstance whatsoever except as provided for in such REA; or any term of any REA shall be modified or supplemented unless permitted by the American Express Lease; or Borrower shall fail, within ten (10) Business Days after demand by Lender, to exercise its option to renew or extend the term of any REA or shall fail or neglect to pursue diligently all actions necessary to exercise such renewal rights pursuant to such REA except as provided for in such REA; or

(m)if an American Express Lease Default shall occur under the American Express Lease; or

(n)if Borrower shall continue to be in default under any other term, covenant or condition of this Agreement or any of the Loan Documents for more than ten (10) days after notice from Lender in the case of any default which can be cured by the payment of a sum of money or for thirty (30) days after notice from Lender in the case of any other default, provided that if such default cannot reasonably be cured within such thirty (30) day period and Borrower shall have commenced to cure such default within such thirty (30) day period and thereafter

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diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for so long as it shall require Borrower in the exercise of due diligence to cure such default, it being agreed that no such extension shall be for a period in excess of one hundred twenty (120) days.

Section 11.2.  Remedies

(a)Upon the occurrence of an Event of Default (other than an Event of Default described in Section 11.l(f) above) and at any time thereafter Lender may, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in the Property, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents against Borrower and the Property, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in Section 11.l(f) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.

(b)Upon the occurrence of an Event of Default, all or any one or more of the rights, powers, privileges and other remedies available to Lender against Borrower under this Agreement or any of the other Loan Documents executed and delivered by, or applicable to, Borrower or at law or in equity may be exercised by Lender at any time and from time to time, whether or not all or any of the Debt shall be declared due and payable, and whether or not Lender shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Loan Documents with respect to the Property. Any such actions taken by Lender shall be cumulative and concurrent and may be pursued independently, singularly, successively, together or otherwise, at such time and in such order as Lender may determine in its sole discretion, to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of Lender permitted by law, equity or contract or as set forth herein or in the other Loan Documents.

ARTICLE 12
ENVIRONMENTAL PROVISIONS

Section 12.1.  Environmental Representations and Warranties

Borrower represents and warrants, except as disclosed in an Environmental Report of the Property and information that Borrower knows that: (a) there are no Hazardous Materials or underground storage tanks in, on, or under the Property, except those that are both (i) in compliance with Environmental Laws and with permits issued pursuant thereto (if such permits are required), if any, and (ii) either (A) in the case of Hazardous Materials, in amounts not in excess of that necessary to operate the Property for the purposes set forth herein or (B) fully disclosed to and approved by Lender in writing pursuant to an Environmental Report; (b) there are no past, present or threatened Releases of Hazardous Materials in violation of any

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Environmental Law or which would require remediation by a Governmental Authority in, on, under or from the Property except as described in the Environmental Report; (c) there is no threat of any Release of Hazardous Materials migrating to the Property except as described in the Environmental Report; (d) there is no past or present non-compliance with Environmental Laws, or with permits issued pursuant thereto, in connection with the Property except as described in the Environmental Report; (e) Borrower does not know of, and has not received, any written or oral notice or other communication from any Person relating to Hazardous Materials in, on, under or from the Property; (f) the Property is free of Mold; and (g) Borrower has truthfully and fully provided to Lender, in writing, any and all information relating to environmental conditions in, on, under or from the Property known to Borrower or contained in Borrower’s files and records, including but not limited to any reports relating to Hazardous Materials in, on, under or migrating to or from the Property and/or to the environmental condition of or the presence of Mold at the Property.

Section 12.2.  Environmental Covenants

Borrower covenants and agrees that so long as Borrower owns, manages and is in possession of the operation of the Property:   (a) all uses and operations on or of the Property, whether by Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto; (b) there shall be no Releases of Hazardous Materials in, on, under or from the Property; (c) there shall be no Hazardous Materials in, on, or under the Property, except those that are both (i) in compliance with all Environmental Laws and with permits issued pursuant thereto, if and to the extent required, and (ii) (A) in amounts not in excess of that necessary to operate the Property for the purposes set forth herein or (B) fully disclosed to and approved by Lender in writing or (C) with respect to Mold, not in a condition, location, or of a type which may pose a risk to human health or safety or the environment or which may result in damage to or would adversely affect or impair the value or marketability of the Property; (d) Borrower shall keep the Property free and clear of all Environmental Liens; (e) Borrower shall, at its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to Section 12.4 below, including but not limited to providing all relevant information and making knowledgeable persons available for interviews; (f) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender, upon Lender’s reasonable belief that the Property is not in full compliance with all Environmental Laws, and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (g) Borrower shall keep the Property free of Mold; and (h) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender to (i) reasonably effectuate remediation of any Hazardous Materials in, on, under or from the Property; and (ii) comply with any Environmental Law; (i) Borrower shall not allow any tenant or other user of the Property to violate any Environmental Law; and (j) Borrower shall immediately notify Lender in writing after it has become aware of (A) any presence or Release or threatened Release of Hazardous Materials in, on, under, from or migrating towards the Property; (B) any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien against the Property; (D) any required or proposed remediation of environmental conditions relating to the Property; and (E) any written or oral notice or other communication of which Borrower becomes aware from any source whatsoever (including but

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not limited to a Governmental Authority) relating in any way to Hazardous Materials. Any failure of Borrower to perform its obligations pursuant to this Section 12.2 shall constitute bad faith waste with respect to the Property.

Section 12.3.  Lender’s Rights

Lender and any other Person designated by Lender, including but not limited to any representative of a Governmental Authority, and any environmental consultant, and any receiver appointed by any court of competent jurisdiction, shall have the right, but not the obligation, to enter upon the Property at all reasonable times to assess any and all aspects of the environmental condition of the Property and its use, including but not limited to conducting any environmental assessment or audit (the scope of which shall be determined in Lender’s sole discretion) and taking samples of soil, groundwater or other water, air, or building materials, and conducting other invasive testing. Borrower shall cooperate with and provide access to Lender and any such person or entity designated by Lender.

Section 12.4.  Operations and Maintenance Programs

If recommended by the Environmental Report or any other environmental assessment or audit of the Property, Borrower shall establish and comply with an operations and maintenance program with respect to the Property, in form and substance reasonably acceptable to Lender, prepared by an environmental consultant reasonably acceptable to Lender, which program shall address any asbestos-containing material or lead based paint that may now or in the future be detected at or on the Property. Without limiting the generality of the preceding sentence, Lender may require (a) periodic notices or reports to Lender in form, substance and at such intervals as Lender may specify, (b) an amendment to such operations and maintenance program to address changing circumstances, laws or other matters, (c) at Borrower’s sole expense, supplemental examination of the Property by consultants specified by Lender, (d) access to the Property by Lender, its agents or servicer, to review and assess the environmental condition of the Property and Borrower’s compliance with any operations and maintenance program, and (e) variation of the operations and maintenance program in response to the reports provided by any such consultants.

Section 12.5.  Environmental Definitions

“Environmental Law” means any present and future federal, state and local laws, statutes, ordinances, rules, regulations, standards, policies and other government directives or requirements, as well as common law, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act and the Resource Conservation and Recovery Act, that apply to Borrower or the Property and relate to Hazardous Materials or protection of human health or the environment. “Environmental Liens” means all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of Borrower or any other Person. “Environmental Report” means the written reports resulting from the environmental site assessments of the Property delivered to Lender in connection with the Loan. “Hazardous Materials” shall mean petroleum and petroleum products and compounds containing them, including gasoline, diesel fuel and oil; explosives, flammable materials; radioactive materials; polychlorinated biphenyls and compounds

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containing them; lead and lead-based paint; asbestos or asbestos-containing materials in any form that is or could become friable; underground or above-ground storage tanks, whether empty or containing any substance; any substance the presence of which on the Property is prohibited by any federal, state or local authority; any substance that requires special handling; and any other material or substance now or in the future defined as a “hazardous substance,” “hazardous material”, “hazardous waste”, “toxic substance”, “toxic pollutant”, “contaminant”, or “pollutant” within the meaning of any Environmental Law. “Mold” shall mean any mold, fungi, bacterial or microbial matter present at or in the Property, including, without limitation, building materials which is in a condition, location or a type which may pose a risk to human health or safety or the environment, may result in damage to or would adversely affect or impair the value or marketability of the Property. “Release” of any Hazardous Materials includes but is not limited to any release, deposit, discharge, emission, leaking, spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Materials.

ARTICLE 13
SECONDARY MARKET

Section 13.1.  Transfer of Loan

Lender may, at any time, sell, transfer or assign the Loan Documents, or grant participations therein (“Participations”) or syndicate the Loan (“Syndication”) or issue mortgage pass-through certificates or other securities evidencing a beneficial interest in a rated or unrated public offering or private placement (“Securities”)(a Syndication or the issuance of Participations and/or Securities, a “Securitization”).

Section 13.2.  Delegation of Servicing

At the option of Lender, the Loan may be serviced by a servicer/trustee selected by Lender and Lender may delegate all or any portion of its responsibilities under this Agreement and the other Loan Documents to such servicer/trustee pursuant to a servicing agreement between Lender and such servicer/trustee.

Section 13.3.  Dissemination of Information

Lender may forward to each purchaser, transferee, assignee, or servicer of, and each participant, or investor in, the Loan, or any Participations and/or Securities or any of their respective successors (collectively, the “Investor”) or any Rating Agency rating the Loan, or any Participations and/or Securities, each prospective Investor, and any organization maintaining databases on the underwriting and performance of commercial mortgage loans, all documents and information which Lender now has or may hereafter acquire relating to the Debt and to Borrower, any managing member or general partner thereof, Borrower Principal, and the Property, including financial statements, whether furnished by Borrower or otherwise, as Lender determines necessary or desirable. Borrower irrevocably waives any and all rights it may have under applicable Legal Requirements to prohibit such disclosure, including but not limited to any right of privacy.

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Section 13.4.  Cooperation

Borrower and Borrower Principal agree to cooperate with Lender in connection with any sale or transfer of the Loan or any Participation and/or Securities created pursuant to this Article 13, including, without limitation, (a) the delivery of an estoppel certificate required in accordance with Section 5.12(a) and such other documents as may be reasonably requested by Lender, (b) the execution of such amendments to the Loan Documents as may be requested by the holder of the Note or the Rating Agencies or otherwise to effect the Securitization including, without limitation, bifurcation of the Loan into two or more components and/or separate notes; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, except in connection with a bifurcation of the Loan which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average coupon of the original Note, or (ii) in the reasonable judgment of Borrower, modify or amend any other material economic term of the Loan, or (iii) in the reasonable judgment of Borrower, materially increase Borrower’s obligations and liabilities under the Loan Documents, and (c) make changes to the organizational documents of Borrower and its principals and/or use its best efforts to cause changes to the legal opinions delivered by Borrower in connection with the Loan, provided, that such changes shall not result in a material adverse economic effect to Borrower. Borrower shall also furnish and Borrower and Borrower Principal consent to Lender furnishing to such Investors or such prospective Investors or such Rating Agency any and all information concerning the Property, the American Express Lease, the financial condition of Borrower or Borrower Principal as may be requested by Lender, any Investor, any prospective Investor or any Rating Agency in connection with any sale or transfer of the Loan or any Participations or Securities. Neither Borrower nor Borrower Principal shall be responsible for any costs incurred by Lender in connection with a Securitization.

ARTICLE 14
INDEMNIFICATIONS

Section 14.1.  General Indemnification

Borrower shall indemnify, defend and hold harmless the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising out of or in any way relating to any one or more of the following: (a) any accident, injury to or death of persons or loss of or damage to property occurring in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (b) any use, nonuse or condition in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (c) performance of any labor or services or the furnishing of any materials or other property in respect of the Property or any part thereof; (d) any failure of the Property to be in compliance with any applicable Legal Requirements; (e) any and all claims and demands whatsoever which may be asserted against Lender by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants, or agreements contained in any Lease; (f) the holding or investing of the Reserve Accounts, or (g) the payment of any commission, charge or brokerage fee to anyone which may be payable in connection with the funding of the Loan (collectively, the “Indemnified Liabilities”); provided, however, that Borrower shall not have any obligation to Lender hereunder to the extent that such Indemnified Liabilities arise from the gross negligence, illegal

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acts, fraud or willful misconduct of Lender.  To the extent that the undertaking to indemnify, defend and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, Borrower shall pay the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Lender.

Section 14.2.  Mortgage and Intangible Tax Indemnification

Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any indemnified Parties and directly or indirectly arising out of or in any way relating to any tax on the making and/or recording of the Mortgage, the Note or any of the other Loan Documents, but excluding any income, franchise or other similar taxes.

Section 14.3.  ERISA Indemnification

Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses (including, without limitation, reasonable attorneys’ fees and costs incurred in the investigation, defense, and settlement of Losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Lender’s sole discretion) that Lender may incur, directly or indirectly, as a result of a default under Section 4.9 or Section 5.18 of this Agreement.

Section 14.4.  Survival

The obligations and liabilities of Borrower and Borrower Principal under this Article 14 shall fully survive indefinitely notwithstanding any termination, satisfaction, assignment, entry of a judgment of foreclosure, exercise of any power of sale, or delivery of a deed in lieu of foreclosure of the Mortgage.

ARTICLE 15
EXCULPATION

Section 15.1.  Exculpation

(a)Except as otherwise provided herein or in the other Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to perform and observe the obligations contained herein or in the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or Borrower Principal, except that Lender may bring a foreclosure action, action for specific performance or other appropriate action or proceeding to enable Lender to enforce and realize upon this Agreement, the Note, the Mortgage and the other Loan Documents, and the interest in the Property, the Rents (following an Event of Default) and any other collateral given to Lender created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower or Borrower Principal, as applicable, only to the extent of Borrower’s or Borrower Principal’s interest in the Property, in the Rents and in any other collateral given to Lender.

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Lender, by accepting this Agreement, the Note, the Mortgage and the other Loan Documents, agrees that it shall not, except as otherwise provided in this Section 15.1, sue for, seek or demand any deficiency judgment against Borrower or Borrower Principal in any such action or proceeding, under or by reason of or under or in connection with this Agreement, the Note, the Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note, the Mortgage or the other Loan Documents; (ii) impair the right of Lender to name Borrower or Borrower Principal as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Mortgage; (iii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Section 12.6 and Article 14 of this Agreement), environmental indemnity, guaranty, master lease or similar instrument made in connection with this Agreement, the Note, the Mortgage and the other Loan Documents; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of the assignment of leases provisions contained in the Mortgage; or (vi) impair the right of Lender to obtain a deficiency judgment or other judgment on the Note against Borrower or Borrower Principal if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided however, Lender shall only enforce such judgment to the extent of the Insurance Proceeds and/or Awards.

(b)Notwithstanding the provisions of this Section 15.1 to the contrary, Borrower and Borrower Principal shall be personally liable to Lender on a joint and several basis for Losses due to:

(i)fraud or intentional misrepresentation by Borrower, Borrower Principal or any other Affiliate of Borrower or Borrower Principal in connection with the execution and the delivery of this Agreement, the Note, the Mortgage, any of the other Loan Documents, or any certificate, report, financial statement or other instrument or document furnished to Lender at the time of the closing of the Loan or during the term of the Loan;

(ii)Borrower’s misapplication or misappropriation of Rents received by Borrower after the occurrence of an Event of Default;

(iii)Borrower’s misapplication or misappropriation of tenant security deposits or Rents collected in advance;

(iv)the misapplication or the misappropriation of Insurance Proceeds or Awards;

(v)Borrower’s failure to pay Taxes, Other Charges (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms hereof and there exists no impediment to Lender’s utilization thereof), charges for labor or materials or other charges that can create liens on the Property beyond any applicable notice and cure periods specified herein;

(vi)Borrower’s failure to return or to reimburse Lender for all Personal Property taken from the Property by or on behalf of Borrower and not replaced with Personal Property of the same utility and of the same or greater value;

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(vii)any act of actual waste or arson by Borrower, any principal, Affiliate, member or general partner thereof or by Borrower Principal, any principal, Affiliate, member or general partner thereof; or

(viii)Borrower’s failure following any Event of Default to deliver to Lender upon demand all Rents and books and records relating to the Property.

(c)Notwithstanding the foregoing, the agreement of Lender not to pursue recourse liability as set forth in subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower and Borrower Principal on a joint and several basis in the event (i) of a breach by Borrower or Borrower Principal of any of the covenants set forth in Article 6 hereof, to the extent that such breach is (A) material and (B) is not cured within fifteen (15) days of the earlier to occur of notice from Lender or Borrower’s knowledge of such breach, (ii) of a breach of any of the covenants set forth in Article 7 hereof, (iii) the Property or any part thereof shall become an asset in a voluntary bankruptcy or insolvency proceeding of Borrower, (iv) Borrower, Borrower Principal or any Affiliate, officer, director, or representative which controls, directly or indirectly, Borrower or Borrower Principal files, or joins in the filing of, an involuntary petition against Borrower under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (v) Borrower files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person;  or (vi)  any Affiliate, officer, director, or representative which controls Borrower consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of the Property.

(d)Nothing herein shall be deemed to be a waiver of any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provision of the U.S. Bankruptcy Code to file a claim for the full amount of the indebtedness secured by the Mortgage or to require that all collateral shall continue to secure all of the indebtedness owing to Lender in accordance with this Agreement, the Note, the Mortgage or the other Loan Documents.

ARTICLE 16
NOTICES

Section 16.1.  Notices

All notices, consents, approvals and requests required or permitted hereunder or under any other Loan Document shall be given in writing and shall be effective for all purposes if hand delivered or sent by (a) certified or registered United States mail, postage prepaid, return receipt requested, (b) expedited prepaid overnight delivery service, either commercial or United States Postal Service, with proof of attempted delivery, or by (c) telecopier (with answer back acknowledged provided an additional notice is given pursuant to subsection (b) above), addressed as follows (or at such other address and Person as shall be designated from time to time by any party hereto, as the case may be, in a written notice to the other parties hereto in the manner provided for in this Section):

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If to Lender:	Bank of America, N.A.
	Capital Markets Servicing Group
	900 West Trade Street, Suite 650
	NC1-026-06-01
	Charlotte, North Carolina 28255
	Attn: Servicing Manager
	Telephone No: (866) 531-0957
If to Borrower:	Inland Western De Pere, L.L.C.
	c/o Inland Real Estate Investment Corporation
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Attention: Roberta Matlin, Vice President
	Facsimile No.: 630-218-4965
With a copy to:	The Inland Real Estate Group, Inc.
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Attention: General Counsel
	Facsimile No.: 630-218-4900
If to Borrower Principal:	Inland Western Retail Real Estate Trust., Inc.
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Roberta Matlin, Vice President
	Facsimile No.: 630-218-4965
With a copy to:	The Inland Real Estate Group, Inc.
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Attention: General Counsel
	Facsimile No.: 630-218-4900

A notice shall be deemed to have been given: in the case of hand delivery, at the time of delivery; in the case of registered or certified mail, when delivered or the first attempted delivery on a Business Day; or in the case of expedited prepaid delivery and telecopy, upon the first attempted delivery on a Business Day.

ARTICLE 17
FURTHER ASSURANCES

Section 17.1.  Replacement Documents

Upon receipt of an affidavit of an officer of Lender as to the loss, theft, destruction or mutilation of the Note or any other Loan Document which is not of public record and, in the case of such mutilation upon surrender and cancellation of such Note or other Loan Document,

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Borrower will issue in lieu thereof a replacement Note or other Loan Document, dated the date of such lost, stolen, destroyed or mutilated Note or other Loan Document in the same principal amount thereof and otherwise of like tenor.

Section 17.2.  Recording of Mortgage, etc.

Borrower forthwith upon the execution and delivery of the Mortgage and thereafter, from time to time, will cause the Mortgage and any of the other Loan Documents creating a lien or security interest or evidencing the lien hereof upon the Property and each instrument of further assurance to be filed, registered or recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect and perfect the lien or security interest hereof upon, and the interest of Lender in, the Property. Borrower will pay all taxes, filing, registration or recording fees, and all expenses incident to the preparation, execution, acknowledgment and/or recording of the Note, the Mortgage, the other Loan Documents, any note, deed of trust or mortgage supplemental hereto, any security instrument with respect to the Property and any instrument of further assurance, and any modification or amendment of the foregoing documents, and all federal, state, county and municipal taxes, duties, imposts, assessments and charges arising out of or in connection with the execution and delivery of the Mortgage, any deed of trust or mortgage supplemental hereto, any security instrument with respect to the Property or any instrument of further assurance, and any modification or amendment of the foregoing documents, except where prohibited by law so to do.

Section 17.3.  Further Acts, Etc.

Borrower will, at the cost of Borrower (except with respect to costs incurred by Lender, for which Lender shall be responsible), do, execute, acknowledge and deliver all and every further acts, deeds, conveyances, deeds of trust, mortgages, assignments, security agreements, control agreements, notices of assignments, transfers and assurances as Lender shall, from time to time, reasonably require, for the better assuring, conveying, assigning, transferring, and confirming unto Lender the property and rights hereby mortgaged, deeded, granted, bargained, sold, conveyed, confirmed, pledged, assigned, warranted and transferred or intended now or hereafter so to be, or which Borrower may be or may hereafter become bound to convey or assign to Lender, or for carrying out the intention or facilitating the performance of the terms of this Agreement or for filing, registering or recording the Mortgage, or for complying with all Legal Requirements. Borrower, on demand, will execute and deliver, and in the event it shall fail to so execute and deliver, hereby authorizes Lender to execute in the name of Borrower or without the signature of Borrower to the extent Lender may lawfully do so, one or more financing statements and financing statement amendments to evidence more effectively, perfect and maintain the priority of the security interest of Lender in the Property. Borrower grants to Lender an irrevocable power of attorney coupled with an interest for the purpose of exercising and perfecting any and all rights and remedies available to Lender at law and in equity, including without limitation, such rights and remedies available to Lender pursuant to this Section 17.3.

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Section 17.4.  Changes in Tax, Debt, Credit and Documentary Stamp Laws

(a)If any law is enacted or adopted or amended after the date of this Agreement which deducts the Debt from the value of the Property for the purpose of taxation or which imposes a tax, either directly or indirectly, on the Debt or Lender’s interest in the Property, Borrower will pay the tax, with interest and penalties thereon, if any.  If Lender is advised by counsel chosen by it that the payment of tax by Borrower would be unlawful or taxable to Lender or unenforceable or provide the basis for a defense of usury then Lender shall have the option by written notice of not less than one hundred eighty (80) days to declare the Debt immediately due and payable.

(b)Borrower will not claim or demand or be entitled to any credit or credits on account of the Debt for any part of the Taxes or Other Charges assessed against the Property, or any part thereof, and no deduction shall otherwise be made or claimed from the assessed value of the Property, or any part thereof, for real estate tax purposes by reason of the Mortgage or the Debt.  If such claim, credit or deduction shall be required by law, Lender shall have the option, by written notice of not less than one hundred eighty (80) days, to declare the Debt immediately due and payable.

If at any time the United States of America, any State thereof or any subdivision of any such State shall require revenue or other stamps to be affixed to the Note, the Mortgage, or any of the other Loan Documents or impose any other tax or charge on the same, Borrower will pay for the same, with interest and penalties thereon, if any.

Section 17.5.  Expenses

Borrower covenants and agrees to pay or, if Borrower fails to pay, to reimburse, Lender upon receipt of written notice from Lender for all reasonable costs and expenses (including reasonable, actual attorneys’ fees and disbursements and the allocated costs of internal legal services and all actual disbursements of internal counsel) reasonably incurred by Lender in accordance with this Agreement in connection with (a) the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby and thereby and all the costs of furnishing all opinions by counsel for Borrower (including without limitation any opinions requested by Lender as to any legal matters arising under this Agreement or the other Loan Documents with respect to the Property); (b) Borrower’s ongoing performance of and compliance with Borrower’s respective agreements and covenants contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date, including, without limitation, confirming compliance with environmental and insurance requirements; (c) following a request by Borrower, Lender’s ongoing performance and compliance with all agreements and conditions contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date; (d) the negotiation, preparation, execution, delivery and administration of any consents, amendments, waivers or other modifications to this Agreement and the other Loan Documents and any other documents or matters requested by Lender; (e) securing Borrower’s compliance with any requests made pursuant to the provisions of this Agreement; (f) the filing and recording fees and expenses, title insurance and reasonable fees and expenses of counsel for providing to Lender all required legal opinions, and other similar expenses incurred in creating and perfecting the Lien in favor of Lender pursuant to this Agreement and the other Loan Documents; (g) enforcing or preserving any rights, in response to

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third party claims or the prosecuting or defending of any action or proceeding or other litigation, in each case against, under or affecting Borrower, this Agreement, the other Loan Documents, the Property, or any other security given for the Loan; and (h) enforcing any obligations of or collecting any payments due from Borrower under this Agreement, the other Loan Documents or with respect to the Property or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or of any insolvency or bankruptcy proceedings; provided, however, that Borrower shall not be liable for the payment of any such costs and expenses to the extent the same arise by reason of the gross negligence, illegal acts, fraud or willful misconduct of Lender.

ARTICLE 18
WAIVERS

Section 18.1.  Remedies Cumulative; Waivers

The rights, powers and remedies of Lender under this Agreement shall be cumulative and not exclusive of any other right, power or remedy which Lender may have against Borrower or Borrower Principal pursuant to this Agreement or the other Loan Documents, or existing at law or in equity or otherwise. Lender’s rights, powers and remedies may be pursued singularly, concurrently or otherwise, at such time and in such order as Lender may determine in Lender’s sole discretion. No delay or omission to exercise any remedy, right or power accruing upon an Event of Default shall impair any such remedy, right or power or shall be construed as a waiver thereof, but any such remedy, right or power may be exercised from time to time and as often as may be deemed expedient. A waiver of one Default or Event of Default with respect to Borrower shall not be construed to be a waiver of any subsequent Default or Event of Default by Borrower or to impair any remedy, right or power consequent thereon.

Section 18.2.  Modification, Waiver in Writing

No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement, or of the Note, or of any other Loan Document, nor consent to any departure by Borrower therefrom, shall in any event be effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given. Except as otherwise expressly provided herein, no notice to, or demand on Borrower, shall entitle Borrower to any other or future notice or demand in the same, similar or other circumstances.

Section 18.3.  Delay Not a Waiver

Neither any failure nor any delay on the part of Lender in insisting upon strict performance of any term, condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under the Note or under any other Loan Document, or any other instrument given as security therefor, shall operate as or constitute a waiver thereof, nor shall a single or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege. In particular, and not by way of limitation, by accepting payment after the due date of any amount payable under this Agreement, the Note or any other

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Loan Document, Lender shall not be deemed to have waived any right either to require prompt payment when due of all other amounts due under this Agreement, the Note or the other Loan Documents, or to declare a default for failure to effect prompt payment of any such other amount.

Section 18.4.  Trial by Jury

BORROWER, BORROWER PRINCIPAL AND LENDER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER, BORROWER PRINCIPAL AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF LENDER, BORROWER PRINCIPAL AND BORROWER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER, BORROWER PRINCIPAL AND LENDER.

Section 18.5.  Waiver of Notice

Borrower shall not be entitled to any notices of any nature whatsoever from Lender except with respect to matters for which this Agreement or the other Loan Documents specifically and expressly provide for the giving of notice by Lender to Borrower and except with respect to matters for which Borrower is not, pursuant to applicable Legal Requirements, permitted to waive the giving of notice. Borrower hereby expressly waives the right to receive any notice from Lender with respect to any matter for which this Agreement or the other Loan Documents do not specifically and expressly provide for the giving of notice by Lender to Borrower.

Section 18.6.  Remedies of Borrower

In the event that a claim or adjudication is made that Lender or its agents have acted unreasonably or unreasonably delayed acting in any case where by law or under this Agreement or the other Loan Documents, Lender or such agent, as the case may be, has an obligation to act reasonably or promptly, Borrower agrees that neither Lender nor its agents shall be liable for any monetary damages, and Borrower’s sole remedies shall be limited to commencing an action seeking injunctive relief or declaratory judgment. The parties hereto agree that any action or proceeding to determine whether Lender has acted reasonably shall be determined by an action seeking declaratory judgment. Lender agrees that, in such event, it shall cooperate in expediting any action seeking injunctive relief or declaratory judgment.

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Section 18.7.  Waiver of Marshalling of Assets

To the fullest extent permitted by law, Borrower, for itself and its successors and assigns, waives all rights to a marshalling of the assets of Borrower, Borrower’s partners and others with interests in Borrower, and of the Property, and agrees not to assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce or affect the right of Lender under the Loan Documents to a sale of the Property for the collection of the Debt without any prior or different resort for collection or of the right of Lender to the payment of the Debt out of the net proceeds of the Property in preference to every other claimant whatsoever.

Section 18.8.  Waiver of Statute of Limitations

Borrower hereby expressly waives and releases, to the fullest extent permitted by law, the pleading of any statute of limitations as a defense to payment of the Debt or performance of its Other Obligations.

Section 18.9.  Waiver of Counterclaim

Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Lender or its agents.

ARTICLE 19
GOVERNING LAW

Section 19.1.  Choice of Law

This Agreement shall be deemed to be a contract entered into pursuant to the laws of the State and shall in all respects be governed, construed, applied and enforced in accordance with the laws of the State and applicable laws of the United States of America, provided, however, that with respect to the security interest in each of the Reserve Accounts, and the Cash Management Account, the laws of the state where each such account is located shall apply.

Section 19.2.  Severability

Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Section 19.3.  Preferences

Lender shall have the continuing and exclusive right to apply or reverse and reapply any and all payments by Borrower to any portion of the obligations of Borrower hereunder. To the extent Borrower makes a payment or payments to Lender, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any Creditors Rights Laws, state or federal law, common law or equitable cause, then, to the extent of such payment or

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proceeds received, the obligations hereunder or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by Lender.

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ARTICLE 20
MISCELLANEOUS

Section 20.1.  Survival

This Agreement and all covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the making by Lender of the Loan and the execution and delivery to Lender of the Note, and shall continue in full force and effect so long as all or any of the Debt is outstanding and unpaid unless a longer period is expressly set forth herein or in the other Loan Documents. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the legal representatives, successors and assigns of such party. All covenants, promises and agreements in this Agreement, by or on behalf of Borrower, shall inure to the benefit of the legal representatives, successors and assigns of Lender.

Section 20.2.  Lender’s Discretion

Whenever pursuant to this Agreement, Lender exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Lender, the decision of Lender to approve or disapprove or to decide whether arrangements or terms are satisfactory or not satisfactory shall (except as is otherwise specifically herein provided) be in the sole discretion of Lender and shall be final and conclusive.

Section 20.3.  Headings

The Article and/or Section headings and the Table of Contents in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

Section 20.4.  Cost of Enforcement

In the event (a) that the Mortgage is foreclosed in whole or in part, (b) of the bankruptcy, insolvency, rehabilitation or other similar proceeding in respect of Borrower or any of its constituent Persons or an assignment by Borrower or any of its constituent Persons for the benefit of its creditors, or (c) Lender exercises any of its other remedies under this Agreement or any of the other Loan Documents, Borrower shall be chargeable with and agrees to pay all costs of collection and defense, including attorneys’ fees and costs, incurred by Lender or Borrower in connection therewith and in connection with any appellate proceeding or post-judgment action involved therein, together with all required service or use taxes.

Section 20.5.  Schedules Incorporated

The Schedules annexed hereto are hereby incorporated herein as a part of this Agreement with the same effect as if set forth in the body hereof.

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Section 20.6.  Offsets, Counterclaims and Defenses

Any assignee of Lender’s interest in and to this Agreement, the Note and the other Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses which are unrelated to such documents which Borrower may otherwise have against any assignor of such documents, and no such unrelated counterclaim or defense shall be interposed or asserted by Borrower in any action or proceeding brought by any such assignee upon such documents and any such right to interpose or assert any such unrelated offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by Borrower.

Section 20.7.  No Joint Venture or Partnership; No Third Party Beneficiaries

(a)Borrower and Lender intend that the relationships created hereunder and under the other Loan Documents be solely that of borrower and lender.  Nothing herein or therein is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower and Lender nor to grant Lender any interest in the Property other than that of mortgagee, beneficiary or lender.

(b)This Agreement and the other Loan Documents are solely for the benefit of Lender and Borrower and nothing contained in this Agreement or the other Loan Documents shall be deemed to confer upon anyone other than Lender and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or therein. All conditions to the obligations of Lender to make the Loan hereunder are imposed solely and exclusively for the benefit of Lender and no other Person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lender will refuse to make the Loan in the absence of strict compliance with any or all thereof and no other Person shall under any circumstances be deemed to be a beneficiary of such conditions, any or all of which may be freely waived in whole or in part by Lender if, in Lender’s sole discretion, Lender deems it advisable or desirable to do so.

(c)The general partners, members, principals and (if Borrower is a trust) beneficial owners of Borrower are experienced in the ownership and operation of properties similar to the Property, and Borrower and Lender are relying solely upon such expertise and business plan in connection with the ownership and operation of the Property.  Borrower is not relying on Lender’s expertise, business acumen or advice in connection with the Property.

(d)Notwithstanding anything to the contrary contained herein, Lender is not undertaking the performance of (i) any obligations under the Leases; or (ii) any obligations with respect to such agreements, contracts, certificates, instruments, franchises, permits, trademarks, licenses and other documents.

(e)By accepting or approving anything required to be observed, performed or fulfilled or to be given to Lender pursuant to this Agreement, the Mortgage, the Note or the other Loan Documents, including, without limitation, any officer’s certificate, balance sheet, statement of profit and loss or other financial statement, survey, appraisal, or insurance policy, Lender shall not be deemed to have warranted, consented to, or affirmed the sufficiency, the legality or

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effectiveness of same, and such acceptance or approval thereof shall not constitute any warranty or affirmation with respect thereto by Lender.

(f)Borrower recognizes and acknowledges that in accepting this Agreement, the Note, the Mortgage and the other Loan Documents, Lender is expressly and primarily relying on the truth and accuracy of the representations and warranties set forth in Article 4 of this Agreement without any obligation to investigate the Property and notwithstanding any investigation of the Property by Lender; that such reliance existed on the part of Lender prior to the date hereof, that the warranties and representations are a material inducement to Lender in making the Loan; and that Lender would not be willing to make the Loan and accept this Agreement, the Note, the Mortgage and the other Loan Documents in the absence of the warranties and representations as set forth in Article 4 of this Agreement.

Section 20.8.  Publicity

All news releases, publicity or advertising by Borrower or its Affiliates through any media intended to reach the general public which refers to the Loan, Lender, Banc of America Securities LLC, or any of their Affiliates shall be subject to the prior written approval of Lender, not to be unreasonably withheld. Lender shall be permitted to make any news, releases, publicity or advertising by Lender or its Affiliates through any media intended to reach the general public which refers to the Loan, the Property, Borrower, Borrower Principal and their respective Affiliates without the approval of Borrower or any such Persons. Borrower also agrees that Lender may share any information pertaining to the Loan with Bank of America Corporation, including its bank subsidiaries, Banc of America Securities LLC and any other Affiliates of the foregoing, in connection with the sale or transfer of the Loan or any Participations and/or Securities created.

Section 20.9.  Conflict; Construction of Documents; Reliance

In the event of any conflict between the provisions of this Agreement and any of the other Loan Documents, the provisions of this Agreement shall control. The parties hereto acknowledge that they were represented by competent counsel in connection with the negotiation, drafting and execution of the Loan Documents and that such Loan Documents shall not be subject to the principle of construing their meaning against the party which drafted same. Borrower acknowledges that, with respect to the Loan, Borrower shall rely solely on its own judgment and advisors in entering into the Loan without relying in any manner on any statements, representations or recommendations of Lender or any parent, subsidiary or Affiliate of Lender. Lender shall not be subject to any limitation whatsoever in the exercise of any rights or remedies available to it under any of the Loan Documents or any other agreements or instruments which govern the Loan by virtue of the ownership by it or any parent, subsidiary or Affiliate of Lender of any equity interest any of them may acquire in Borrower, and Borrower hereby irrevocably waives the right to raise any defense or take any action on the basis of the foregoing with respect to Lender’s exercise of any such rights or remedies. Borrower acknowledges that Lender engages in the business of real estate financings and other real estate transactions and investments which may be viewed as adverse to or competitive with the business of Borrower or its Affiliates.

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Section 20.10.  Entire Agreement

This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and all prior agreements among or between such parties, whether oral or written between Borrower and Lender are superseded by the terms of this Agreement and the other Loan Documents.

ARTICLE 21
OUT PARCEL RELEASE

Section 21.1.  Out Parcel Release. Provided no Event of Default exists and is continuing, Borrower shall be entitled to a release from the lien of the Mortgage of a portion of the Property (the “Out Parcel”) more particularly described on Exhibit C hereof upon the following terms and conditions:

(a)Borrower shall deliver evidence reasonably satisfactory to Lender that (i) the Property remaining encumbered by the lien of the Mortgage shall comply with all Legal Requirements (including, without limitation, all zoning and building codes), (ii) the Property remaining encumbered by the lien of the Security Instrument shall constitute a separate lot for tax and assessment purposes by no later than the earliest date permitted under applicable Legal Requirements, (iii) the Out Parcel, at the time of release, remains an unimproved parcel of land (exclusive of parking areas contained thereon), (iv) such release shall not adversely affect ingress or egress to or from the Property, (v) the documents with respect to such release shall not impose any obligations or otherwise burden the Property in any way, (vi) Borrower has obtained or caused to be obtained all necessary approvals, consents or permits with respect to such release and (vii) the Out Parcel has been transferred to an entity other than Borrower.

(b)Borrower shall (i) deliver to Lender (A) a current title survey for the Out Parcel certified to the title company and Lender, their successors and assigns, in form and content satisfactory to Lender and prepared by a professional and properly licensed land survey or satisfactory to Lender in accordance with the 1999 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys and reflecting the same metes and bounds legal description contained in the Title Insurance Policy referred to in subsection (B) of this paragraph (b) and certified in form and substance satisfactory to Lender, (B) a revised, updated Title Insurance Policy (or an endorsement to the existing Title Insurance Policy) reasonably acceptable to Lender in all respects reflecting the release of the Out Parcel and containing such endorsements as Lender shall reasonably require (including, without limitation, a “date-down” or similar endorsement), and (C) such amendments or modifications to the Loan Documents as Lender may reasonably require to reflect the release of the Out Parcel (including, without limitation, an amendment to the Mortgage substituting a revised legal description reflecting the release of the Out Parcel), and (ii) pay all of Lender’s reasonable costs and expenses in connection with a release of the Out Parcel, including, without limitation, reasonable counsel fees and disbursements and all recording fees and title charges.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written.

BORROWER:
INLAND WESTERN DEPERE L.L.C., a Delaware limited liability company
By:		Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
		By:			/s/ Debra A. Palmer
		Name:					Debra A. Palmer
		Its:		Asst. Secretary
BORROWER PRINCIPAL:
Acknowledged and agreed to with respect to its obligations set forth in Article 4, Section 12.6, Article 13, Article 15 and Article 18 hereof:
INLAND WESTERN RETAIL REAL ESTATE TRUST INC., Maryland corporation, its
By:	/s/ Debra A. Palmer
	Name:					Debra A. Palmer
	Title:		Asst. Secretary

[ADDITIONAL SIGNATURE PAGE TO FOLLOW]

LENDER:
BANK OF AMERICA, N.A., a national banking association
By:	/s/ Lisa K. McGee
	Name:		Lisa K. McGee
	Title:	Vice President

EXHIBIT A

Borrower Equity Ownership Structure

EXHIBIT B

Tenant Direction Letter

EXHIBIT C

Description of Out Parcel

EX-10.465

Exhibit 10.465

LOAN TERMS TABLE

Note Date: December 16, 2004	MERS No.: 8000101-0000000571-9
Borrower: INLAND WESTERN GREENSBORO AIRPORT CENTER, L.L.C., a Delaware limited liability company
Original Principal Amount: $33,040,000.00	Loan No.: 58627
Initial Note Rate: 4.2675%	Servicing No.: 3190741
Revised Note Rate: As defined in Article 2	Borrower’s TIN: 20-1908086
Monthly Payment Amount: As defined in Article l(a)	Optional Prepayment Date: January 1, 2010
Lockout Period:  From the date hereof through and including December 31, 2006
Maturity Date:  January 1, 2015

PROMISSORY NOTE

FOR VALUE RECEIVED Borrower, having its principal place of business at 2901 Butterfield Road, Oak Brook, IL 60523, hereby unconditionally promises to pay to the order of BANK OF AMERICA, N.A., a national banking association, having an address at 214 North Tryon Street, Charlotte, North Carolina 28255 (“Lender”), the Original Principal Amount, in lawful money of the United States of America with interest thereon to be computed from the date of this Note at the Note Rate (as defined below), and to be paid in accordance with the terms set forth below.  The Loan Terms Table set forth above is a part of this Note and all terms used in this Note which are defined in the Loan Terms Table shall have the meaning set forth therein.  All capitalized terms not defined herein shall have the respective meanings set forth in that certain Loan Agreement dated the date hereof between Lender and Borrower (the “Loan Agreement”).

Article 1 – PAYMENT TERMS; MANNER OF PAYMENT

(a)Borrower hereby agrees to pay sums due under this Note as follows: an initial payment is due on the Closing Date for interest from the Closing Date through and including the last day of the calendar month in which the Closing Date occurs; and thereafter, except as may be adjusted in accordance with the last sentence of Section 1(b), consecutive monthly installments of interest only in an amount calculated in accordance with Article 2 below (such amount, the “Monthly Payment Amount”) shall be payable pursuant to the terms hereof on the first (1st) day of each month beginning on February 1, 2005 (each such date through and including the Maturity Date, a “Scheduled Payment Date”) until the entire indebtedness evidenced hereby is fully paid, except that any remaining indebtedness, if not sooner paid, shall be due and payable on the Maturity Date.  In addition to the foregoing, commencing on the Optional Prepayment Date and continuing on each Scheduled Payment Date thereafter, Borrower hereby agrees to pay all Excess Cash (as defined in the Loan Agreement) until the principal amount of this Note is paid in full, provided, however, the entire Debt, including all Accrued Interest (defined below), shall be due on the Maturity Date.

(b)Each payment by Borrower hereunder shall be made to P.O.  Box 65585, Charlotte, NC 28265-0585, or at such other place as Lender may designate from time to time in

writing.  Whenever any payment hereunder shall be stated to be due on a day which is not a Business Day, such payment shall be made on the first Business Day preceding such scheduled due date.  All payments made by Borrower hereunder or under the other Loan Documents shall be made irrespective of, and without any deduction for, any setoff, defense or counterclaims.

(c)Provided no Event of Default has occurred, (i) each Monthly Payment Amount made as scheduled on this Note shall be applied first to the payment of interest computed at the Initial Note Rate, and the balance toward the reduction of the principal amount of this Note, and (ii) each payment of Excess Cash made as required on this Note shall be applied first to the reduction of the principal amount of this Note until paid in full, and the balance to Accrued Interest until paid in full.  All voluntary and involuntary prepayments on this Note shall be applied, to the extent thereof, to accrued but unpaid interest on the amount prepaid, to the remaining Principal Amount, and any other sums due and unpaid to the Lender in connection with the Loan, in such manner and order as Lender may elect in its sole and absolute discretion, including, but not limited to, application to principal installments in inverse order of maturity.  Following the occurrence of an Event of Default, any payment made on this Note shall be applied to accrued but unpaid interest, late charges, accrued fees, the unpaid principal amount of this Note, and any other sums due and unpaid to Lender in connection with the Loan, in such manner and order as Lender may elect in its sole and absolute discretion.

(d)Remittances in payment of any part of the indebtedness other than in the required amount in immediately available U.S. funds shall not, regardless of any receipt or credit issued therefor, constitute payment until the required amount is actually received by the holder hereof in immediately available U.S. funds and shall be made and accepted subject to the condition that any check or draft may be handled for collection in accordance with the practices of the collecting bank or banks.

Article 2 - INTEREST

The Loan shall bear interest at a fixed rate per annum equal to the Note Rate.  The “Note Rate” shall mean (a) from the date of this Note through but excluding the Optional Prepayment Date, the Initial Note Rate, and (b) from and after the Optional Prepayment Date through and including the date this Note is paid in full, the Revised Note Rate.  The “Revised Note Rate” shall mean a rate per annum equal to the sum of (x) two percent (2.00%) and (y) the greater of (i) the Initial Note Rate and (ii) the sum of the Treasury Rate plus five percent (5.00%).  The “Treasury Rate” shall mean the yield per annum calculated by the linear interpolation of yields, as reported in the Federal Reserve Statistical Release H.15 – Selected Interest Rates under the heading “US government securities” and the subheading “Treasury constant maturities” for the week ending prior to the Optional Prepayment Date, of U.S.  Treasury constant maturities with maturity dates (one longer and one shorter) most nearly approximating the Maturity Date.  In the event H.15 is no longer published, Lender in its reasonable discretion shall select a comparable publication to determine the Treasury Rate.  From and after the Optional Prepayment Date, interest in excess of the Initial Note Rate shall accrue and be added to the Debt and shall earn interest at the Revised Note Rate to the extent permitted by applicable law (“Accrued Interest”).  Interest shall be computed on the basis of a three hundred sixty (360) day year consisting of twelve (12) months of thirty (30) days each.  Except as otherwise set forth herein or in the other Loan Documents, interest shall be paid in arrears.

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Article 3 - DEFAULT AND ACCELERATION

The Debt shall without notice become immediately due and payable at the option of Lender if any payment required in this Note is not paid prior to the tenth (10^th) day following the date when due or if not paid on the Maturity Date or on the happening of any other Event of Default.

Article 4 - PAYMENTS AFTER DEFAULT

Upon the occurrence and during the continuance of an Event of Default, interest on the outstanding principal balance of the Loan and, to the extent permitted by law, overdue interest and other amounts due in respect of the Loan shall accrue at a rate per annum equal to the lesser of (a) the maximum rate permitted by applicable law, or (b) four percent (4%) above the Note Rate (such rate, the “Default Rate”).  Interest at the Default Rate shall be computed from the occurrence of the Event of Default until the earlier of (i) the actual receipt and collection of the Debt (or that portion thereof that is then due) and (ii) the cure of such Event of Default.  To the extent permitted by applicable law, interest at the Default Rate shall be added to the Debt, shall itself accrue interest at the same rate as the Loan and shall be secured by the Security Instrument.  This Article shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of the occurrence of any Event of Default; the acceptance of any payment from Borrower shall not be deemed to cure or constitute a waiver of any Event of Default; and Lender retains its rights under this Note, the Loan Agreement and the other Loan Documents to accelerate and to continue to demand payment of the Debt upon the happening of and during the continuance any Event of Default, despite any payment by Borrower to Lender.

Article 5 - PREPAYMENT

Except as otherwise expressly permitted by this Article 5, no voluntary prepayments, whether in whole or in part, of the Loan or any other amount at any time due and owing under this Note can be made by Borrower or any other Person without the express written consent of Lender.

(a)Lockout Period.  Borrower shall have no right to make, and Lender shall have no obligation to accept, any voluntary prepayment, whether in whole or in part, of the Loan, or any other amount under this Note or the other Loan Documents, at any time during the Lockout Period.  At any time following the expiration of the Lockout Period, the principal balance of this Note may be voluntarily prepaid in whole, but not in part, upon the satisfaction of the following conditions:

(i)no Default shall exist under any of the Loan Documents;

(ii)not less than sixty (60) (but not more than ninety (90)) days prior written notice shall be given to Lender specifying a date on which the prepayment shall occur such date being a Scheduled Payment Date (the “Prepayment Date”);

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(iii)Borrower has paid to Lender all accrued and unpaid interest on the Loan through and including the Prepayment Date together with all other sums due under this Note and the other Loan Documents; and

(iv)Borrower has paid to Lender a prepayment premium in an amount equal to Yield Maintenance (as defined and calculated in accordance with Section 5(b) below); provided, however, that in the event of a voluntary prepayment made by Borrower within sixty (60) days of the Optional Prepayment Date, there shall be no prepayment premium required to be paid by Borrower.

(b)Involuntary Prepayment.  In the event of any involuntary prepayment of the Loan or any other amount under this Note, whether in whole or in part, in connection with or following Lender’s acceleration of this Note or otherwise, and whether the Security Instrument is satisfied or released by foreclosure (whether by power of sale or judicial proceeding), deed in lieu of foreclosure or by any other means, including, without limitation, repayment of the Loan by Borrower or any other Person pursuant to any statutory or common law right of redemption, Borrower shall pay any portion of the principal balance of the Loan prepaid (together with all interest accrued and unpaid thereon and, in the event the prepayment is made on a date other than a Scheduled Payment Date, a sum equal to the amount of interest which would have accrued under this Note on the amount of such prepayment if such prepayment had occurred on the next Scheduled Payment Date).

As used herein, “Yield Maintenance” means a prepayment premium in an amount equal to the greater of equal to the greater of (i) 1% of the portion of the Loan being prepaid, and (ii) the present value as of the Prepayment Calculation Date of a series of monthly payments over the remaining term of the Loan through and including the Optional Prepayment Date each equal to the amount of interest which would be due on the portion of the Loan being prepaid assuming a per annum interest rate equal to the excess of the Note Rate over the Reinvestment Yield, and discounted at the Reinvestment Yield.  As used herein, “Reinvestment Yield” means the yield calculated by the linear interpolation of the yields, as reported in the Federal Reserve Statistical Release H.15-Selected Interest Rates under the heading “U.S. government securities” and the sub-heading “Treasury constant maturities” for the week ending prior to the Prepayment Calculation Date, of the U.S.  Treasury constant maturities with maturity dates (one longer and one equal to or shorter) most nearly approximating the Optional Prepayment Date, and converted to a monthly compounded nominal yield.  In the event Release H.15 is no longer published, Lender shall select a comparable publication to determine the Reinvestment Yield.  The “Prepayment Calculation Date” shall mean, as applicable, the date on which (i) Lender applies any prepayment to the reduction of the outstanding principal amount of this Note, (ii) Lender accelerates the Loan, in the case of a prepayment resulting from acceleration, or (iii) Lender applies funds held under any Reserve Account, in the case of a prepayment resulting from such an application (other than in connection with acceleration of the Loan).

(c)Insurance Proceeds and Awards; Excess Interest.  Notwithstanding any other provision herein to the contrary, and provided no Default exists, Borrower shall not be required to pay any prepayment premium in connection with any prepayment occurring solely as a result of (i) the application of Insurance Proceeds or Awards pursuant to the terms of the Loan

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Documents, or (ii) the application of any interest in excess of the maximum rate permitted by applicable law to the reduction of the Loan.

(d)Open Prepayment Period.  Borrower may voluntarily prepay (without premium) this Note on a Scheduled Payment Date (i) in whole (but not in part) during the sixty (60) days prior to the Optional Prepayment Date, and (ii) in whole or in part from the Optional Prepayment Date through and including the date this Note is paid in full, in each case, upon giving Lender at least sixty (60) days (but not more than ninety (90) days) prior written notice.  Lender shall accept a prepayment pursuant to this Section 5(d) on a day other than a Scheduled Payment Date provided that, in addition to payment of the full outstanding principal balance of this Note, Borrower pays to Lender a sum equal to the amount of interest which would have accrued or this Note if such prepayment occurred on the next Scheduled Payment Date.

(e)Limitation on Partial Prepayments.  In no event shall Lender have any obligation to accept a partial prepayment.

Article 6 - SECURITY

This Note is secured by the Security Instrument and the other Loan Documents.  All of the terms, covenants and conditions contained in the Loan Agreement, the Security Instrument and the other Loan Documents are hereby made part of this Note to the same extent and with the same force as if they were fully set forth herein.

Article 7 - USURY SAVINGS

This Note is subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the principal balance of the Loan at a rate which could subject Lender to either civil or criminal liability as a result of being in excess of the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by this Note and as provided for herein or in the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan (such rate, the “Maximum Legal Rate”).  If, by the terms of this Note or the other Loan Documents, Borrower is at any time required or obligated to pay interest on the principal balance due hereunder at a rate in excess of the Maximum Legal Rate, the Note Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced to the Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder.  All sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the sums due under the Loan, shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the Loan does not exceed the Maximum Legal Rate of interest from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.

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Article 8 - LATE PAYMENT CHARGE

If any principal or interest payment is not paid by Borrower before the tenth (10th) day after the date the same is due (or such greater period, if any, required by applicable law), Borrower shall pay to Lender upon demand an amount equal to the lesser of four percent (4%) of such unpaid sum or the maximum amount permitted by applicable law in order to defray the expense incurred by Lender in handling and processing such delinquent payment and to compensate Lender for the loss of the use of such delinquent payment, provided however, Borrower shall not be required to pay Lender a late charge in connection with the final payment under the loan.  Any such amount shall be secured by the Security Instrument and the other Loan Documents to the extent permitted by applicable law.

Article 9 - NO ORAL CHANGE

This Note may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Borrower or Lender, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.

Article 10 - WAIVERS

BORROWER AND ALL OTHERS WHO MAY BECOME LIABLE FOR THE PAYMENT OF ALL OR ANY PART OF THE DEBT DO HEREBY SEVERALLY WAIVE PRESENTMENT AND DEMAND FOR PAYMENT, NOTICE OF DISHONOR, NOTICE OF INTENTION TO ACCELERATE, NOTICE OF ACCELERATION, PROTEST AND NOTICE OF PROTEST AND NON-PAYMENT AND ALL OTHER NOTICES OF ANY KIND EXCEPT AS PROVIDED IN THE LOAN AGREEMENT.  NO RELEASE OF ANY SECURITY FOR THE DEBT OR EXTENSION OF TIME FOR PAYMENT OF THIS NOTE OR ANY INSTALLMENT HEREOF, AND NO ALTERATION, AMENDMENT OR WAIVER OF ANY PROVISION OF THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS MADE BY AGREEMENT BETWEEN LENDER OR ANY OTHER PERSON SHALL RELEASE, MODIFY, AMEND, WAIVE, EXTEND, CHANGE, DISCHARGE, TERMINATE OR AFFECT THE LIABILITY OF BORROWER, AND ANY OTHER PERSON WHO MAY BECOME LIABLE FOR THE PAYMENT OF ALL OR ANY PART OF THE DEBT, UNDER THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS.  NO NOTICE TO OR DEMAND ON BORROWER SHALL BE DEEMED TO BE A WAIVER OF THE OBLIGATION OF BORROWER OR OF THE RIGHT OF LENDER TO TAKE FURTHER ACTION WITHOUT FURTHER NOTICE OR DEMAND AS PROVIDED FOR IN THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS.  IF BORROWER IS A LIMITED LIABILITY COMPANY, THE AGREEMENTS HEREIN CONTAINED SHALL REMAIN IN FORCE AND BE APPLICABLE, NOTWITHSTANDING ANY CHANGES IN THE INDIVIDUALS COMPRISING THE LIMITED LIABILITY COMPANY, AND THE TERM “BORROWER,” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATE OR SUCCESSOR LIMITED LIABILITY COMPANY, BUT ANY PREDECESSOR LIMITED LIABILITY COMPANY AND ITS MEMBERS SHALL NOT THEREBY BE RELEASED FROM ANY LIABILITY.  IF BORROWER IS A PARTNERSHIP, THE AGREEMENTS HEREIN CONTAINED SHALL REMAIN IN FORCE AND BE

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APPLICABLE, NOTWITHSTANDING ANY CHANGES IN THE INDIVIDUALS COMPRISING THE PARTNERSHIP, AND THE TERM “BORROWER,” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATE OR SUCCESSOR PARTNERSHIP, BUT ANY PREDECESSOR PARTNERSHIP AND THEIR PARTNERS SHALL NOT THEREBY BE RELEASED FROM ANY LIABILITY.  IF BORROWER IS A CORPORATION, THE AGREEMENTS CONTAINED HEREIN SHALL REMAIN IN FULL FORCE AND BE APPLICABLE NOTWITHSTANDING ANY CHANGES IN THE SHAREHOLDERS COMPRISING, OR THE OFFICERS AND DIRECTORS RELATING TO, THE CORPORATION, AND THE TERM “BORROWER” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATIVE OR SUCCESSOR CORPORATION, BUT ANY PREDECESSOR CORPORATION SHALL NOT BE RELIEVED OF LIABILITY HEREUNDER. (NOTHING IN THE FOREGOING SENTENCE SHALL BE CONSTRUED AS A CONSENT TO, OR A WAIVER OF, ANY PROHIBITION OR RESTRICTION ON TRANSFERS OF INTERESTS IN SUCH BORROWING ENTITY WHICH MAY BE SET FORTH IN THE LOAN AGREEMENT, THE MORTGAGE OR ANY OTHER LOAN DOCUMENTS.) IF BORROWER CONSISTS OF MORE THAN ONE PERSON OR PARTY, THE OBLIGATIONS AND LIABILITIES OF EACH PERSON OR PARTY SHALL BE JOINT AND SEVERAL.

Article 11 - TRIAL BY JURY

BORROWER AND LENDER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANYSUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS NOTE, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH.  THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE.  EACH OF LENDER AND BORROWER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER AND LENDER.

Article 12 - TRANSFER

Upon the transfer of this Note, Borrower hereby waiving notice of any such transfer.  Lender may deliver all the collateral mortgaged, granted, pledged or assigned pursuant to the Loan Documents, or any part thereof, to the transferee who shall thereupon become vested with all the rights herein or under applicable law given to Lender with respect thereto, and Lender shall thereafter forever be relieved and fully discharged from any liability or responsibility in the matter arising from events thereafter occurring; but Lender shall retain all rights hereby given to it with respect to any liabilities and the collateral not so transferred.

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Article 13 - EXCULPATION

The provisions of Article 15 of the Loan Agreement are hereby incorporated by reference into this Note to the same extent and with the same force as if fully set forth herein.

Article 14 - GOVERNING LAW

This Note shall in all respects be governed, construed, applied and enforced in accordance with the laws of the state in which the Property is located and any applicable federal laws of the United States of America.

Article 15 - NOTICES

All notices or other written communications hereunder shall be delivered in accordance with Article 16 of the Loan Agreement.

Article 16 - TAXPAYER IDENTIFICATION NUMBER

This Note provides for the Borrower’s federal taxpayer identification number to be inserted in the Loan Terms Table on the first page of this Note.  If such number is not available at the time of execution of this Note or is not inserted by the Borrower, the Borrower hereby authorizes and directs the Lender to fill in such number on the first page of this Note when the Borrower provides to Lender, advises the Lender of, or the Lender otherwise obtains, such number.

Article 17 - ATTORNEYS’ FEES

Any provisions in this Note or elsewhere in the Loan Documents providing for the payment of “attorneys’ fees,” “reasonable attorneys’ fees” or words of similar import, shall mean actual attorneys’ fees and paralegal fees incurred based upon the usual and customary fees or hourly rates of the attorneys and paralegals involved without giving effect to any statutory presumption that may then be in effect.

[NO FURTHER TEXT ON THIS PAGE]

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IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and year first above written.

INLAND WESTERN GREENSBORO AIRPORT CENTER, L.L.C., a Delaware limited liability company
By:	Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
	By:	/s/ Roberta s. Matlin
	Name:	Roberta s. Matlin
	Its:	Vice President

EX-10.466

Exhibit 10.466

LOAN AGREEMENT

Dated as of December 16, 2004

Between

INLAND WESTERN GREENSBORO AIRPORT CENTER, L.L.C,

as Borrower

and

BANK OF AMERICA, N.A.,

as Lender

TABLE OF CONTENTS

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SECTION 5.8. COOPERATE IN LEGAL PROCEEDINGS

SECTION 5.9. PERFORMANCE BY BORROWER

SECTION 5.10. AWARDS; INSURANCE PROCEEDS

SECTION 5.11. FINANCIAL REPORTING

SECTION 5.12. ESTOPPEL STATEMENT

SECTION 5.13. LEASING MATTERS

SECTION 5.14. PROPERTY MANAGEMENT

SECTION 5.15. LIENS

SECTION 5.16. DEBT CANCELLATION

SECTION 5.17. ZONING

SECTION 5.18. ERISA

SECTION 5.19. NO JOINT ASSESSMENT

SECTION 5.20. RECIPROCAL EASEMENT AGREEMENTS

ARTICLE 6 ENTITY COVENANTS

SECTION 6.1. SINGLE PURPOSE ENTITY/SEPARATENESS

SECTION 6.2. CHANGE OF NAME, IDENTITY OR STRUCTURE

SECTION 6.3. BUSINESS AND OPERATIONS

SECTION 6.4. INDEPENDENT DIRECTOR

ARTICLE 7 NO SALE OR ENCUMBRANCE

SECTION 7.1. TRANSFER DEFINITIONS

SECTION 7.2. NO SALE/ENCUMBRANCE

SECTION 7.3. PERMITTED TRANSFERS

SECTION 7.4. LENDER’S RIGHTS

SECTION 7.5. ASSUMPTION

SECTION 7.6. ASSUMPTION BY INLAND PERMITTED TRANSFEREE

ARTICLE 8 INSURANCE; CASUALTY; CONDEMNATION; RESTORATION

SECTION 8.1. INSURANCE

SECTION 8.2. CASUALTY

SECTION 8.3. CONDEMNATION

SECTION 8.4. RESTORATION

ARTICLE 9 REPLACEMENTS; RESERVE FUNDS

SECTION 9.1. REPLACEMENTS

SECTION 9.2. TAX AND INSURANCE RESERVE FUNDS

SECTION 9.3. RESERVE FUNDS GENERALLY

ARTICLE 10 CASH MANAGEMENT

SECTION 10.1. CASH MANAGEMENT ACCOUNT

SECTION 10.2. DEPOSITS AND WITHDRAWALS

SECTION 10.3. SECURITY INTEREST

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ARTICLE 11 EVENTS OF DEFAULT; REMEDIES

SECTION 11.1. EVENT OF DEFAULT

SECTION 11.2. REMEDIES

ARTICLE 12 ENVIRONMENTAL PROVISIONS

SECTION 12.1. ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES

SECTION 12.2. ENVIRONMENTAL COVENANTS

SECTION 12.3. LENDER’S RIGHTS

SECTION 12.4. OPERATIONS AND MAINTENANCE PROGRAMS

SECTION 12.5. ENVIRONMENTAL DEFINITIONS

ARTICLE 13 SECONDARY MARKET

SECTION 13.1. TRANSFER OF LOAN

SECTION 13.2. DELEGATION OF SERVICING

SECTION 13.3. DISSEMINATION OF INFORMATION

SECTION 13.4. COOPERATION

ARTICLE 14 INDEMNIFICATIONS

SECTION 14.1. GENERAL INDEMNIFICATION

SECTION 14.2. MORTGAGE AND INTANGIBLE TAX INDEMNIFICATION

SECTION 14.3. ERISA INDEMNIFICATION

SECTION 14.4. SURVIVAL

ARTICLE 15 EXCULPATION

SECTION 15.1. EXCULPATION

ARTICLE 16 NOTICES

SECTION 16.1. NOTICES

ARTICLE 17 FURTHER ASSURANCES

SECTION 17.1. REPLACEMENT DOCUMENTS

SECTION 17.2. RECORDING OF MORTGAGE, ETC

SECTION 17.3. FURTHER ACTS, ETC

SECTION 17.4. CHANGES IN TAX, DEBT, CREDIT AND DOCUMENTARY STAMP LAWS

SECTION 17.5. EXPENSES

ARTICLE 18 WAIVERS

SECTION 18.1. REMEDIES CUMULATIVE; WAIVERS

SECTION 18.2. MODIFICATION, WAIVER IN WRITING

SECTION 18.3. DELAY NOT A WAIVER

SECTION 18.4. TRIAL BY JURY

SECTION 18.5. WAIVER OF NOTICE

SECTION 18.6. REMEDIES OF BORROWER

SECTION 18.7. WAIVER OF MARSHALLING OF ASSETS

SECTION 18.8. WAIVER OF STATUTE OF LIMITATIONS

SECTION 18.9. WAIVER OF COUNTERCLAIM

ARTICLE 19 GOVERNING LAW

SECTION 19.1. CHOICE OF LAW

SECTION 19.2. SEVERABILITY

SECTION 19.3. PREFERENCES

ARTICLE 20 MISCELLANEOUS

SECTION 20.1. SURVIVAL

SECTION 20.2. LENDER’S DISCRETION

iii

SECTION 20.3. HEADINGS

SECTION 20.4. COST OF ENFORCEMENT

SECTION 20.5. SCHEDULES INCORPORATED

SECTION 20.6. OFFSETS, COUNTERCLAIMS AND DEFENSES

SECTION 20.7. NO JOINT VENTURE OR PARTNERSHIP; NO THIRD PARTY BENEFICIARIES

SECTION 20.8. PUBLICITY

SECTION 20.9. CONFLICT; CONSTRUCTION OR DOCUMENTS; RELIANCE

SECTION 20.10. ENTIRE AGREEMENT

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LOAN AGREEMENT

THIS LOAN AGREEMENT, dated as of December 16, 2004 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”),between BANK OF AMERICA, N.A., a national banking association, having an address at Bank of America Corporate Center, 214 North Tryon Street, Charlotte, North Carolina 28255 (together with its successors and/or assigns, “Lender”) and INLAND WESTERN GREENSBORO AIRPORT CENTER, L.L.C., a Delaware limited liability company having an address at c/o Inland Real Estate Investment Corporation, 2901 Butterfield Road, Oak Brook, Illinois 60523 (together with its successors and/or assigns, “Borrower”).

RECITALS:

Borrower desires to obtain the Loan (defined below) from Lender.

Lender is willing to make the Loan, to Borrower, subject to and in accordance with the terms of this Agreement and the other Loan Documents (defined below).

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

ARTICLE 1
DEFINITIONS; PRINCIPLES OF CONSTRUCTION

Section 1.1.Definitions

For all purposes of this Agreement, except as otherwise expressly required or unless the context clearly indicates a contrary intent:

“Account Collateral” shall mean (i) the Accounts, and all cash, checks, drafts, certificates and instruments, if any, from time to time deposited or held in the Accounts; (ii) any and all amounts in or credited to the Accounts invested in Permitted Investments, (iii) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise payable in respect of, or in exchange for, any or all of the foregoing; and (iv) to the extent not covered by clauses (i) - (iii) above, all “proceeds” (as defined under the UCC as in effect in the State in which the Accounts are located) of any or all of the foregoing.

“Accounts” shall mean the Cash Management Account, the Tax and Insurance Reserve Accounts, if any, and any other account or sub-account established by this Agreement, the Mortgage, or the other Loan Documents.

“Accredited Investor” shall have the meaning set forth in the regulations promulgated by the Securities and Exchange Commission.

“Act” shall have the meaning set forth in Section 6.1 (c).

“Affiliate” shall mean, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person or is a director or officer of such Person or of an Affiliate of such Person.

“Affiliated Loans” shall mean a loan made by Lender to a parent, subsidiary or such other entity affiliated with Borrower or Borrower Principal.

“Affiliated Manager” shall have the meaning set forth in Section 7.1 hereof.

“ALTA” shall mean American Land Title Association, or any successor thereto.

“American Express” shall mean American Express Travel Related Services Company, Inc., a New York corporation.

“American Express Lease” shall mean that certain Lease Agreement dated as of December 16, 2004 between Borrower, as landlord, and American Express, as tenant, with respect to the Property.

“American Express Lease Default”shall mean (i) a default, after the expiration of any applicable notice or cure periods, under the American Express Lease or (ii) the cancellation, termination or surrender of the American Express Lease.

“Assignment of Management Agreement” shall mean that certain Assignment and Subordination of Management Agreement dated the date hereof among Lender, Borrower and Manager, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Award” shall mean any compensation paid by any Governmental Authority in connection with a Condemnation in respect of all or any part of the Property.

“Borrower Principal” shall mean Inland Western Retail Real Estate Trust, Inc., a Maryland corporation.

“Business Day” shall mean a day on which Lender is open for the conduct of substantially all of its banking business at its office in the city in which the Note is payable (excluding Saturdays and Sundays).

“Cash Management Account” shall have the meaning set forth in Section 10.1(a) hereof.

“Cash Management Period” shall mean the period commencing on the 45^th day prior to the Optional Prepayment Date.

“Casualty” shall have the meaning set forth in Section 8.2.

“Closing Date” shall mean the date of the funding of the Loan.

“Control” shall have the meaning set forth in Section 7.1 hereof.

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“Condemnation” shall mean a temporary or permanent taking by any Governmental Authority as the result, in lieu or in anticipation, of the exercise of the right of condemnation or eminent domain, of all or any part of the Property, or any interest therein or right accruing thereto, including any right of access thereto or any change of grade affecting the Property or any part thereof.

“Condemnation Proceeds” shall have the meaning set forth in Section 8.4(b)

“Creditors Rights Laws” shall mean with respect to any Person any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to its debts or debtors.

“Debt” shall mean the outstanding principal amount set forth in, and evidenced by, this Agreement and the Note together with all interest accrued and unpaid thereon and all other sums due to Lender in respect of the Loan under the Note, this Agreement, the Mortgage or any other Loan Document.

“Debt Service” shall mean, with respect to any particular period of time, scheduled principal and/or interest payments under the Note.

“Default” shall mean the occurrence of any event hereunder or under any other Loan Document which, but for the giving of notice or passage of time, or both, would be an Event of Default.

“Default Rate” shall mean, with respect to the Loan, a rate per annum equal to the lesser of (a) the maximum rate permitted by applicable law, or (b) four percent (4%) above the Note Rate.

“Eligible Account” shall mean a separate and identifiable account from all other funds held by the holding institution that is either (a) an account or accounts maintained with a federal or state chartered depository institution or trust company which complies with the definition of Eligible Institution or (b) a segregated trust account or accounts maintained with the corporate trust department of a federal or state chartered depository institution or trust company acting in its fiduciary capacity which, in the case of a federally chartered depository institution or trust company acting in its fiduciary capacity is subject to the regulations regarding adversary Funds on deposit therein under 12 CFR §9.10(b), and in the case of a state chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R. §9.10(b), having in either case a combined capital surplus of at least $50,000,000 and subject to supervision or examination by federal and state authority. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.

“Eligible Institution” shall mean a depository institution or trust company insured by the Federal Deposit insurance Corporation, the short term unsecured debt obligations or commercial paper of which are rated at least “A-1” by S&P, “P-l” by Moody’s and “F-1” by Fitch in the case of accounts in which funds are held for thirty (30) days or less (or, in the case of accounts in which funds are held for more than thirty (30) days, the long term unsecured debt obligations of which are rated at least “AA-” by Fitch and S&P (or “A-” by S&P, if such depository’s short

3

term unsecured debt rating is at least “A-1” by S&P) and “Aa2” by Moody’s). Notwithstanding the foregoing, prior to a Securitization, Bank of America, N.A. shall be an Eligible Institution.

“Embargoed Person” shall mean any person identified by OFAC or any other Person with whom a Person resident in the United States of America may not conduct business or transactions by prohibition of federal law or Executive Order of the President of the United States of America.

“Environmental Indemnity” shall mean that certain Environmental Indemnity Agreement, dated as of the date hereof, executed by Borrower and Borrower Principal in connection with the Loan for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Environmental Law” shall have the meaning set forth in Section 12.5 hereof.

“Environmental Liens” shall have the meaning set forth in Section 12.5 hereof.

“Environmental Report” shall have the meaning set forth in Section 12.5 hereof.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time and any successor statutes thereto and applicable regulations issued pursuant thereto in temporary or final form.

“Event of Default” shall have the meaning set forth in Section 11.1 hereof.

“Exchange Act” shall mean the Securities and Exchange Act of 1934, as amended.

“Fitch” shall mean Fitch, Inc.

“GAAP” shall mean generally accepted accounting principles in the United States of America as of the date of the applicable financial report.

“Governmental Authority” shall mean any court, board, agency, department, commission, office or other authority of any nature whatsoever for any governmental unit (federal, state, county, municipal, city, town, special district or otherwise) whether now or hereafter in existence.

“Guarantor” shall mean any Person having a long-term unsecured debt rating above the Trigger Rating that may, from time to time, at the option of American Express, execute a guaranty in favor of landlord under the American Express Lease.

“Hazardous Materials” shall have the meaning set forth in Section 12.5 hereof.

“Improvements” shall have the meaning set forth in the granting clause of the Mortgage.

“Indemnified Parties” shall mean (a) Lender, (b) any prior owner or holder of the Loan or Participations in the Loan, (c) any servicer or prior servicer of the Loan, (d) any Investor or any prior Investor in any Securities, (e) any trustees, custodians or other fiduciaries who hold or

4

who have held a full or partial interest in the Loan for the benefit of any Investor or other third party, (f) any receiver or other fiduciary appointed in a foreclosure or other Creditors Rights Laws proceeding, (g) any officers, directors, shareholders, partners, members, employees, agents, servants, representatives, contractors, subcontractors, affiliates or subsidiaries of any and all of the foregoing, and (h) the heirs, legal representatives, successors and assigns of any and all of the foregoing (including, without limitation, any successors by merger, consolidation or acquisition of all or a substantial portion of the Indemnified Parties’ assets and business), in all cases whether during the term of the Loan or as part of or following a foreclosure of the Mortgage.

“Independent Director” shall have the meaning set forth in Section 6.4(a).

“Inland Permitted Transferee” shall mean a newly-formed special purpose entity that is wholly-owned (directly or indirectly) by Inland Retail Real Estate Trust, Inc., a Maryland corporation; Inland Real Estate Corporation, a Maryland corporation, Inland Real Estate Corporation, a Delaware corporation or Borrower Principal.

“Insurance Premiums” shall have the meaning set forth in Section 8.1 hereof.

“Insurance Proceeds” shall have the meaning set forth in Section 8.4(b) hereof.

“Internal Revenue Code” shall mean the Internal Revenue Code of 1986, as amended, as it may be further amended from time to time, and any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.

“Investor” shall have the meaning set forth in Section 13.3 hereof.

“Lease” shall have the meaning set forth in the Mortgage.

“Legal Requirements” shall mean all statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting the Property or any part thereof, or the construction, use, alteration or operation thereof, whether now or hereafter enacted and in force, and all permits, licenses, authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Borrower, at any time in force affecting the Property or any part thereof, including, without limitation, any which may (a) require repairs, modifications or alterations in or to the Property or any part thereof, or (b) in any way limit the use and enjoyment thereof.

“Lien” shall mean any mortgage, deed of trust, lien, pledge, hypothecation, assignment, security interest, or any other encumbrance, charge or transfer of, on or affecting Borrower, the Property, any portion thereof or any interest therein, including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialmen’s and other similar liens and encumbrances.

“LLC Agreement” shall have the meaning set forth in Section 6.l (c).

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“Loan” shall mean the loan made by Lender to Borrower pursuant to this Agreement.

“Loan Documents” shall mean, collectively, this Agreement, the Note, the Mortgage, the Environmental Indemnity, the Assignment of Management Agreement and any and all other documents, agreements and certificates executed and/or delivered in connection with the Loan, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Lockout Period” shall mean the period commencing on the date hereof and ending on the date of the second anniversary hereof.

“Losses” shall mean any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, fines, penalties, charges, fees, judgments, awards, amounts paid in settlement of whatever kind or nature (including but not limited to legal fees and other costs of defense).

“Management Agreement” shall mean the management agreement entered into by and between Borrower and Manager, pursuant to which Manager is to provide management and other services with respect to the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified in accordance with the terms of this Agreement.

“Manager” shall mean Inland US Management LLC, a Delaware limited liability company or such other entity selected as the manager of the Property in accordance with the terms of this Agreement.

“Material Litigation” shall mean, with respect to any Person, any material conviction, indictment (that is not dismissed before trial), judgment, litigation or regulatory action. For purposes of this definition, a matter shall be deemed material if it is reasonably foreseeable that a prudent institutional commercial real estate mortgage lender would consider such matter as a material adverse factor in its underwriting of the Person in question. With respect to non-criminal matters, isolated actions occurring more than five (5) years prior to the date of a proposed transfer shall not be deemed material provided that there is no indication of fraud, intentional misrepresentation or intent to defraud creditors with respect to such actions.

“Maturity Date” shall have the meaning set forth in the Note.

“Maximum Legal Rate” shall mean the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by the Note and as provided for herein or the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan.

“Member” shall have the meaning set forth in Section 6.1(c).

“Monthly Payment Amount” shall mean the monthly payment of interest due on each Scheduled Payment Date as set forth in the Note.

“Moody’s” shall mean Moody’s Investor Services, Inc.

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“Mortgage” shall mean that certain first priority mortgage/deed of trust/deed to secure debt and security agreement dated the date hereof, executed and delivered by Borrower as security for the Loan and encumbering the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Net Proceeds” shall have the meaning set forth in Section 8.4(b) hereof.

“Net Proceeds Deficiency” shall have the meaning set forth in Section 8.4(b)(vi) hereof.

“Note” shall mean that certain promissory note of even date herewith in the principal amount of $33,040,000, made by Borrower in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Note Rate” shall have the meaning set forth in the Note.

“OFAC” shall have the meaning set forth in Section 4.38 hereof.

“Operating Expenses” shall mean, with respect to any period of time, the total of all expenses actually paid or payable, computed in accordance with federal tax basis accounting, or in accordance with other methods acceptable to Lender in its sole discretion, of whatever kind relating to the operation, maintenance and management of the Property, including, without limitation, utilities, ordinary repairs and maintenance, Insurance Premiums, license fees, Taxes and Other Charges, advertising expenses, payroll and related taxes, computer processing charges, management fees equal to the greater of 4% of the Operating Income and the management fees actually payable under the Management Agreement for such period of time, operational equipment or other lease payments as approved by Lender, normalized capital expenditures but specifically excluding depreciation and amortization, income taxes, Debt Service, any incentive fees due under the Management Agreement, any item of expense that in accordance with federal tax basis accounting should be capitalized, any item of expense that would otherwise be covered by the provisions hereof but which is paid by American Express under the American Express Lease and deposits into the Reserve Accounts.

“Optional Prepayment Date” shall have the meaning set forth in the Note.

“Other Charges” shall mean all ground rents, maintenance charges, impositions other than Taxes, and any other charges, including, without limitation, vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Property, now or hereafter levied or assessed or imposed against the Property or any part thereof.

“Participations” shall have the meaning set forth in Section 13.1 hereof.

“Patriot Act” shall have the meaning set forth in Section 4.38 hereof.

“Permitted Encumbrances’’ shall mean collectively, (a) the Lien and security interests created by the Loan Documents, (b) all Liens, encumbrances and other matters disclosed in the Title insurance Policy, (c) Liens, if any, for Taxes imposed by any Governmental Authority not yet due or delinquent, and (d) such other title and survey exceptions as Lender has approved or may approve in writing in Lender’s sole discretion.

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“Permitted Investments” shall mean to the extent available from Lender or Lender’s servicer for deposits in the Reserve Accounts and the Lockbox Account, any one or more of the following obligations or securities acquired at a purchase price of not greater than par, including those issued by a servicer of the Loan, the trustee under any securitization or any of their respective Affiliates, payable on demand or having a maturity date not later than the Business Day immediately prior to the date on which the funds used to acquire such investment are required to be used under this Agreement and meeting one of the appropriate standards set forth below:

(a)obligations of, or obligations fully guaranteed as to payment of principal and interest by, the United States or any agency or instrumentality thereof provided such obligations are backed by the full faith and credit of the United States of America including, without limitation, obligations of: the U.S. Treasury (all direct or fully guaranteed obligations), the Farmers Home Administration (certificates of beneficial ownership), the General Services Administration (participation certificates), the U.S. Maritime Administration (guaranteed Title XI financing), the Small Business Administration (guaranteed participation certificates and guaranteed pool certificates), the U.S. Department of Housing and Urban Development (local authority bonds) and the Washington Metropolitan Area Transit Authority (guaranteed transit bonds); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) be rated “AAA” or the equivalent by each of the Rating Agencies, (iii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iv) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (v) such investments must not be subject to liquidation prior to their maturity;

(b)Federal Housing Administration debentures;

(c)obligations of the following United States government sponsored agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm Credit System (consolidated systemwide bonds and notes), the Federal Home Loan Banks (consolidated debt obligations), the Federal National Mortgage Association (debt obligations), the Financing Corp.  (debt obligations), and the Resolution Funding Corp. (debt obligations); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(d)federal funds, unsecured certificates of deposit, time deposits, bankers’ acceptances and repurchase agreements with maturities of not more than 365 days of any bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned

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to the Securities); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(e)fully Federal Deposit Insurance Corporation-insured demand and time deposits in, or certificates of deposit of, or bankers’ acceptances with maturities of not more than 365 days and issued by, any bank or trust company, savings and loan association or savings bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(f)debt obligations with maturities of not more than 365 days and at all times rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest long-term unsecured rating category; provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(g)commercial paper (including both non-interest-bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one year after the date of issuance thereof) with maturities of not more than 365 days and that at all times is rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest short-term unsecured debt rating; provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

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(h)units of taxable money market funds, with maturities of not more than 365 days and which funds are regulated investment companies, seek to maintain a constant net asset value per share and invest solely in obligations backed by the full faith and credit of the United States, which funds have the highest rating available from each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) for money market funds; and

(i)any other security, obligation or investment which has been approved as a Permitted Investment in writing by (i) Lender and (ii) each Rating Agency, as evidenced by a written confirmation that the designation of such security, obligation or investment as a Permitted Investment will not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities by such Rating Agency;

provided, however, that no obligation or security shall be a Permitted Investment if (A) such obligation or security evidences a right to receive only interest payments, (B) the right to receive principal and interest payments on such obligation or security are derived from an underlying investment that provides a yield to maturity in excess of one hundred twenty percent (120%) of the yield to maturity at par of such underlying investment or (C) such obligation or security has a remaining term to maturity in excess of one (1) year.

“Person” shall mean any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.

“Personal Property” shall have the meaning set forth in the granting clause of the Mortgage.

“Policies” shall have the meaning set forth in Section 8.1 hereof.

“Prohibited Transfer” shall have the meaning set forth in Section 7.2 hereof.

“Property” shall mean the parcel of real property, the Improvements thereon and all Personal Property owned by Borrower and encumbered by the Mortgage, together with all rights pertaining to such property and Improvements, as more particularly described in the granting clause of the Mortgage and referred to therein as the “Property”.

“Property Condition Report” shall mean a report prepared by a company satisfactory to Lender regarding the physical condition of the Property, satisfactory in form and substance to Lender in its sole discretion.

“Qualified Manager” shall mean (a) Manager or (b) a reputable and experienced professional management organization (i) which manages, together with its affiliates, at least ten (10) first class office buildings totaling at least 3,500,000 square feet of gross leasable area, exclusive of the Property and (ii) approved by Lender, which approval shall not have been unreasonably withheld and for which Lender shall have received written confirmation from the

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Rating Agencies that the employment of such manager will not result in a downgrade, withdrawal or qualification of the initial, or if higher, then current ratings issued in connection with a Securitization, or if a Securitization has not occurred, any ratings to be assigned in connection with a Securitization.

“Rating Agencies” shall mean each of S&P, Moody’s and Fitch, or any other nationally-recognized statistical rating agency which has been approved by Lender.

“REA” shall mean any construction, operation and reciprocal easement agreement or similar agreement (including any separate agreement or other agreement between Borrower and one or more other parties to an REA with respect to such REA) affecting the Property or portion thereof.

“Release” shall have the meaning set forth in Section 12.5 hereof.

“REMIC Trust” shall mean a “real estate mortgage investment conduit” (within the meaning of Section 860D, or applicable successor provisions, of the Code) that holds the Note.

“Rents” shall have the meaning set forth in the Mortgage.

“Replacements” shall have the meaning set forth in Section 9.2(a) hereof.

“Required Repairs” shall have the meaning set forth in Section 9.l(a) hereof.

“Reserve Accounts” shall mean the Tax and Insurance Reserve Account.

“Reserve Funds” shall mean the Tax and Insurance Reserve Funds.

“Restoration” shall mean, following the occurrence of a Casualty or a Condemnation which is of a type necessitating the repair of the Property, the completion of the repair and restoration of the Property as nearly as possible to the condition the Property was in immediately prior to such Casualty or Condemnation, with such alterations as may be reasonably approved by Lender.

“Restoration Consultant” shall have the meaning set forth in Section 8.4(b)(iii) hereof.

“Restoration Retainage” shall have the meaning set forth in Section 8.4(b)(iv) hereof.

“Restricted Party” shall have the meaning set forth in Section 7.1 hereof.

“Sale or Pledge” shall have the meaning set forth in Section 7.1 hereof.

“Scheduled Payment Date” shall have the meaning set forth in the Note.

“Securities” shall have the meaning set forth in Section 13.1 hereof.

“Securities Act” shall mean the Securities Act of 1933, as amended.

“Securities Liabilities” shall have the meaning set forth in Section 13.5 hereof.

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“Securitization” shall have the meaning set forth in Section 13.1 hereof.

“Special Member” shall have the meaning set forth in Section 6.1(c).

“S&P” shall mean Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.

“State” shall mean the state in which the Property or any part thereof is located.

“Tax and Insurance Reserve Account” shall have the meaning set forth in Section 9.6 hereof.

“Tax and Insurance Reserve Funds” shall have the meaning set forth in Section 9.6 hereof.

“Taxes” shall mean all real estate and personal property taxes, assessments, water rates or sewer rents, now or hereafter levied or assessed or imposed against the Property or part thereof.

“Tenant” shall mean any Person leasing, subleasing or otherwise occupying any portion of the Property under a Lease or other occupancy agreement with Borrower, including, without limitation, American Express, as tenant under the American Express Lease.

“Tenant Direction Letter” shall have the meaning set forth in Section 10.2(a)(i) hereof.

“Title Insurance Policy” shall mean that certain ALTA mortgagee title insurance policy issued with respect to the Property and insuring the lien of the Mortgage.

“Transferee” shall have the meaning set forth in Section 7.5hereof.

“Trigger Rating” shall mean the long-term unsecured debt rating of Guarantor (or American Express if there is no Guarantor) below BBB as issued by S&P or below Baa2 as issued by Moody’s.

“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in the State where the applicable Property is located.

Section 1.2.Principles of Construction.

All references to sections and schedules are to sections and schedules in or to this Agreement unless otherwise specified. All uses of the word “including” shall mean “including, without limitation” unless the context shall indicate otherwise. Unless otherwise specified, the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified, all meanings attributed to defined terms herein shall be equally applicable to both the singular and plural forms of the terms so defined.

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ARTICLE 2
GENERAL TERMS

Section 2.1.Loan Commitment; Disbursement to Borrower

(a)Subject to and upon the terms and conditions set forth herein, Lender hereby agrees to make and Borrower hereby agrees to accept the Loan on the Closing Date.

(b)Borrower may request and receive only one borrowing in respect of the Loan and any amount borrowed and repaid in respect of the Loan may not be reborrowed.

(c)The Loan shall be evidenced by the Note and secured by the Mortgage and the other Loan Documents.

(d)Borrower shall use the proceeds of the Loan to (i) pay the purchase price for acquiring the Property, (ii) pay certain costs and expenses incurred in connection with the closing of the Loan, as approved by Lender, (iv) fund any working capital requirements of the Property, and (v) distribute the balance, if any, to its members.

Section 2.2.Loan Payments

(a)The Loan and interest shall be payable pursuant to the terms of the Note.

Section 2.3.Prepayment

The Loan may not be prepaid, in whole or in part, except in strict accordance with the express terms and conditions of the Note.

ARTICLE 3

CONDITIONS PRECEDENT

The obligation of Lender to make the Loan hereunder is subject to the fulfillment by Borrower or waiver by Lender of all the conditions precedent to closing set forth in the application or term sheet for the Loan delivered by Borrower to Lender and any commitment rider to the application for the Loan issued by Lender.

ARTICLE 4
REPRESENTATIONS AND WARRANTIES

Borrower and, where specifically indicated, each Borrower Principal represents and warrants to Lender as of the Closing Date that:

Section 4.1.Organization

Borrower and each Borrower Principal (when not an individual) (a) has been duly organized and is validly existing and in good standing with requisite power and authority to own its properties and to transact the businesses in which it is now engaged, (b) is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in

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connection with its properties, businesses and operations, (c) possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own its properties and to transact the businesses in which it is now engaged, and the sole business of Borrower is the ownership, management and operation of the Property, and (d) in the case of Borrower, has full power, authority and legal right to mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the Property pursuant to the terms of the Loan Documents, and in the case of Borrower and each Borrower Principal, has full power, authority and legal right to keep and observe all of the terms of the Loan Documents to which it is a party. Borrower and each Borrower Principal represent and warrant that the chart attached hereto as Exhibit A sets forth an accurate listing of the direct and indirect owners of the equity interests in Borrower, and each Borrower Principal (when not an individual).

Section 4.2.Status of Borrower

Borrower’s exact legal name is correctly set forth on the first page of this Agreement, on the Mortgage and on any UCC-1 Financing Statements filed in connection with the Loan. Borrower is an organization of the type specified on the first page of this Agreement. Borrower is organized under the laws of the State of Delaware. Borrower’s principal place of business and chief executive office, and the place where Borrower keeps its books and records, including recorded data of any kind or nature, regardless of the medium of recording, including software, writings, plans, specifications and schematics, has been for the preceding four months (or, if less, the entire period of the existence of Borrower) the address of Borrower set forth on the first page of this Agreement. Borrower’s organizational identification number, if any, assigned by the state of incorporation or organization is correctly set forth on the first page of the Note.

Section 4.3.Validity of Documents

Borrower and Borrower Principal have taken all necessary action to authorize the execution, delivery and performance of this Agreement and the other Loan Documents to which they are parties. This Agreement and such other Loan Documents have been duly executed and delivered by or on behalf of Borrower and Borrower Principal and constitute the legal, valid and binding obligations of Borrower and Borrower Principal enforceable against Borrower and Borrower Principal in accordance with their respective terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

Section 4.4.No Conflicts

The execution, delivery and performance of this Agreement and the other Loan Documents by Borrower and Borrower Principal will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance (other than pursuant to the Loan Documents) upon any of the property or assets of Borrower or Borrower Principal pursuant to the terms of any agreement or instrument to which Borrower or Borrower Principal is a party or by which any of Borrower’s or Borrower Principal’s property or assets is subject, nor will such action result in any violation of the provisions of any statute or any order, rule or regulation of any

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Governmental Authority having jurisdiction over Borrower or Borrower Principal or any of Borrower’s or Borrower Principal’s properties or assets, and any consent, approval, authorization, order, registration or qualification of or with any Governmental Authority required for the execution, delivery and performance by Borrower or Borrower Principal of this Agreement or any of the other Loan Documents has been obtained and is in full force and effect.

Section 4.5.Litigation

There are no actions, suits or proceedings at law or in equity by or before any Governmental Authority or other agency now pending or, to Borrower’s or Borrower Principal’s knowledge, threatened against or affecting Borrower, Borrower Principal, Manager or the Property, which actions, suits or proceedings, if determined against Borrower, Borrower Principal, Manager or the Property, would materially adversely affect the condition (financial or otherwise) or business of Borrower or Borrower Principal or the condition or ownership of the Property.

Section 4.6.Agreements

Borrower is not a party to any agreement or instrument or subject to any restriction which would materially and adversely affect Borrower or the Property, or Borrower’s business, properties or assets, operations or condition, financial or otherwise. Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party or by which Borrower or the Property is bound. Borrower has no material financial obligation under any agreement or instrument to which Borrower is a party or by which Borrower or the Property is otherwise bound, other than (a) obligations incurred in the ordinary course of the operation of the Property and (b) obligations under the Loan Documents.

Section 4.7.Solvency

Borrower and each Borrower Principal have (a) not entered into the transaction or executed the Note, this Agreement or any other Loan Documents with the actual intent to hinder, delay or defraud any creditor and (b) received reasonably equivalent value in exchange for their obligations under such Loan Documents. Giving effect to the Loan, the fair saleable value of the assets of Borrower and each Borrower Principal exceeds and will, immediately following the making of the Loan, exceed the total liabilities of Borrower and Borrower Principal, including, without limitation, subordinated, unliquidated, disputed and contingent liabilities. No petition in bankruptcy has been filed against Borrower, Borrower Principal, or Affiliated Manager in the last ten (10) years, and neither Borrower nor Borrower Principal, or Affiliated Manager in the last ten (10) years has made an assignment for the benefit of creditors or taken advantage of any Creditors Rights Laws. Neither Borrower nor Borrower Principal, or Affiliated Manager is contemplating either the filing of a petition by it under any Creditors Rights Laws or the liquidation of all or a major portion of Borrower’s assets or property, and Borrower has no knowledge of any Person contemplating the filing of any such petition against Borrower or Borrower Principal, or Affiliated Manager.

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Section 4.8.Full and Accurate Disclosure

No statement of fact made by or on behalf of Borrower or Borrower Principal in this Agreement or in any of the other Loan Documents or in any other document or certificate delivered by or on behalf of Borrower or Borrower Principal contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained herein or therein not misleading. There is no material fact presently known to Borrower or Borrower Principal which has not been disclosed to Lender which adversely affects, nor as far as Borrower or Borrower Principal can reasonably foresee, might adversely affect, the Property or the business, operations or condition (financial or otherwise) of Borrower or Borrower Principal.

Section 4.9.No Plan Assets

Borrower is not an “employee benefit plan,” as defined in Section 3(3) of ERISA, subject to Title I of ERISA, and none of the assets of Borrower constitutes or will constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101. In addition, (a) Borrower is not a “governmental plan” within the meaning of Section 3(32) of ERISA and (b) transactions by or with Borrower are not subject to state statutes regulating investment of, and fiduciary obligations with respect to, governmental plans similar to the provisions of Section 406 of ERISA or Section 4975 of the Internal Revenue Code currently in effect, which prohibit or otherwise restrict the transactions contemplated by this Agreement.

Section 4.10.Not a Foreign Person

Neither Borrower nor Borrower Principal is a “foreign Person” within the meaning of §1445(f)(3) of the Internal Revenue Code.

Section 4.11.Enforceability

The Loan Documents are not subject to any right of rescission, set-off, counterclaim or defense by Borrower, including the defense of usury, nor would the operation of any of the terms of the Loan Documents, or the exercise of any right thereunder, render the Loan Documents unenforceable, and neither Borrower nor Borrower Principal has asserted any right of rescission, set-off, counterclaim or defense with respect thereto. No Default or Event of Default exists under or with respect to any Loan Document.

Section 4.12.Business Purposes

The Loan is solely for the business purpose of Borrower, and is not for personal, family, household, or agricultural purposes.

Section 4.13.Compliance

Except as expressly disclosed by Borrower to Lender in writing in connection with the closing of the Loan, to Borrower’s knowledge, Borrower and the Property, and the use and operation thereof, comply in all material respects with all Legal Requirements, including, without limitation, building and zoning ordinances and codes and the Americans with Disabilities Act. To Borrower’s knowledge, Borrower is not in default or violation of any order,

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writ, injunction, decree or demand of any Governmental Authority and Borrower has received no written notice of any such default or violation. There has not been committed by Borrower or, to Borrower’s knowledge, any other Person in occupancy of or involved with the operation or use of the Property any act or omission affording any Governmental Authority the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents.

Section 4.14.Financial Information

All financial data, including, without limitation, the balance sheets, statements of cash flow, statements of income and operating expense and rent rolls, that have been delivered to Lender in respect of Borrower, Borrower Principal and/or the Property (a) are true, complete and correct in all material respects, (b) accurately represent the financial condition of Borrower, Borrower Principal or the Property, as applicable, as of the date of such reports, and (c) to the extent prepared or audited by an independent certified public accounting firm, have been prepared in accordance with tax basis accounting throughout the periods covered, except as disclosed therein. Borrower does not have any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that are known to Borrower and reasonably likely to have a material adverse effect on the Property or the current and/or intended operation thereof, except as referred to or reflected in said financial statements. Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of Borrower or Borrower Principal from that set forth in said financial statements.

Section 4.15.Condemnation

No Condemnation or other proceeding has been commenced or, to Borrower’s best knowledge, is threatened or contemplated with respect to all or any portion of the Property or for the relocation of roadways providing access to the Property.

Section 4.16.Utilities and Public Access; Parking

To the best of Borrower’s knowledge, the Property has adequate rights of access to public ways and is served by water, sewer, sanitary sewer and storm drain facilities adequate to service the Property for full utilization of the Property for its intended uses. All public utilities necessary to the full use and enjoyment of the Property as currently used and enjoyed are located either in the public right-of-way abutting the Property (which are connected so as to serve the Property without passing over other property) or in recorded easements serving the Property and such easements are set forth in and insured by the Title Insurance Policy. All roads necessary for the use of the Property for its current purposes have been completed and dedicated to public use and accepted by all Governmental Authorities. The Property has, or is served by, parking to the extent required to comply with all Legal Requirements.

Section 4.17.Separate Lots

The Property is assessed for real estate tax purposes as one or more wholly independent tax lot or lots, separate from any adjoining land or improvements not constituting a part of such

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lot or lots, and no other land or improvements is assessed and taxed together with the Property or any portion thereof.

Section 4.18.Assessments

To Borrower’s knowledge, there are no pending or proposed special or other assessments for public improvements or otherwise affecting the Property, nor are there any contemplated improvements to the Property that may result in such special or other assessments.

Section 4.19.Insurance

Borrower has obtained and has delivered to Lender either (a) certified copies of all Policies or, to the extent such Policies are not available as of the Closing Date, certificates of insurance with respect to all such Policies reflecting the insurance coverages, amounts and other requirements set forth in this Agreement or (b) the certificate of American Express that American Express is a self-insurer with respect to the occurrences referred to in Section 8.1 and that the rating of American Express by the Rating Agencies has not fallen below the Trigger Rating.

Section 4.20.Use of Property

The Property is used exclusively for general office purposes and other appurtenant and related uses.

Section 4.21.Certificate of Occupancy; Licenses

All certificates of occupancy and to Borrower’s knowledge all certifications, permits, licenses and approvals, including, without limitation, certificates of completion and any applicable liquor license required for the legal use, occupancy and operation of the Property for the purpose intended herein, have been obtained and are valid and in full force and effect. Borrower shall keep and maintain (or require American Express to maintain) all licenses necessary for the operation of the Property for the purpose intended herein. The use being made of the Property is in conformity with the final certificate of occupancy (or compliance, if applicable) and any other permits or licenses issued for the Property.

Section 4.22.Flood Zone

None of the Improvements on the Property are located in an area identified by the Federal Emergency Management Agency as an area having special flood hazards, or, if any portion of the Improvements is located within such area, Borrower will obtain or cause American Express to obtain the insurance prescribed in Section 8.1(a)(i) at any time during the term of the Loan when American Express ceases to be a self-insurer or when the rating of American Express by the Rating Agencies falls below the Trigger Rating.

Section 4.23.Physical Condition

Except as set forth in the Property Condition Report, to Borrower’s knowledge, the Property, including, without limitation, all buildings, improvements, parking facilities,

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sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, are in good condition, order and repair in all material respects. Except as set forth in the Property Condition Report, to Borrower’s knowledge, there exist no structural or other material defects or damages in the Property, as a result of a Casualty or otherwise, and whether latent or otherwise. Borrower has not received notice from any insurance company or bonding company of any defects or inadequacies in the Property, or any part thereof, which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond.

Section 4.24.Boundaries; Survey

(a)None of the Improvements which were included in determining the appraised value of the Property lie outside the boundaries and building restriction lines of the Property to any material extent, and (b) no improvements on adjoining properties encroach upon the Property and no easements or other encumbrances upon the Property encroach upon any of the Improvements so as to materially affect the value or marketability of the Property.

Section 4.25.Leases

The entire Property has been leased to American Express pursuant to the American Express Lease. (a) The American Express Lease is in full force and effect; (b) the premises demised under the American Express Lease have been completed and American Express has accepted possession of and is in occupancy of the demised premises; (c) American Express has commenced the payment of rent under the American Express Lease, there are no offsets, claims or defenses to the enforcement thereof and Borrower has no monetary obligations to American Express under the American Express Lease; (d) all Rents due and payable under the American Express Lease have been paid and no portion thereof has been paid for any period more than thirty (30) days in advance; (e) the rent payable under the American Express Lease is the amount of fixed rent set forth in the American Express Lease, and there is no claim or basis for a claim by American Express thereunder for an adjustment to the Rent; (f) Borrower is the sole owner of the entire landlord’s interest in the American Express Lease; (g) the American Express Lease is the valid, binding and enforceable obligation of Borrower and American Express thereunder and there are no agreements with American Express with respect to the American Express Lease other than as expressly set forth therein; (h) no Person has any possessory interest in, or right to occupy, the Property or any portion thereof except under the American Express Lease; (i) except for the right of first refusal set forth in Article 4 and the right to offer to purchase the Property under Article 12, the American Express Lease does not contain any option or offer to purchase or right of first refusal to purchase the Property or any part thereof; and (j) neither the American Express Lease nor the Rents have been assigned or pledged except to Lender, and no other Person has any interest therein.

Section 4.26.Filing and Recording Taxes

All mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid by any Person under applicable Legal Requirements currently in effect in connection with

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the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents, including, without limitation, the Mortgage, have been paid or will be paid, and, under current Legal Requirements, the Mortgage is enforceable in accordance with its terms by Lender (or any subsequent holder thereof).

Section 4.27.Management Agreement

The Management Agreement is in full force and effect and there is no default thereunder by any party thereto and, to Borrower’s knowledge, no event has occurred that, with the passage of time and/or the giving of notice, would constitute a default thereunder. No management fees under the Management Agreement are accrued and unpaid.

Section 4.28.Illegal Activity

No portion of the Property has been or will be purchased with proceeds of any illegal activity, and no part of the proceeds of the Loan will be used in connection with any illegal activity.

Section 4.29.Construction Expenses

All costs and expenses of any and all labor, materials, supplies and equipment used in the construction, maintenance or repair of the Improvements have been paid in full. To Borrower’s knowledge after due inquiry, there are no claims for payment for work, labor or materials affecting the Property which are or may become a lien prior to, or of equal priority with, the Liens created by the Loan Documents.

Section 4.30.Personal Property

Borrower has paid in full for, and is the owner of, all Personal Property (other than tenants’ property) used in connection with the operation of the Property, free and clear of any and all security interests, liens or encumbrances, except for Permitted Encumbrances and the Lien and security interest created by the Loan Documents.

Section 4.31.Taxes

Borrower and Borrower Principal have filed all federal, state, county, municipal, and city income, personal property and other tax returns required to have been filed by them and have paid all taxes and related liabilities which have become due pursuant to such returns or pursuant to any assessments received by them. Neither Borrower nor Borrower Principal knows of any basis for any additional assessment in respect of any such taxes and related liabilities for prior years.

Section 4.32.Permitted Encumbrances

None of the Permitted Encumbrances, individually or in the aggregate, materially interferes with the benefits of the security intended to be provided by the Loan Documents, materially and adversely affects the value of the Property, impairs the use or the operation of the Property or impairs Borrower’s ability to pay its obligations in a timely manner.

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Section 4.33.Federal Reserve Regulations

Borrower will use the proceeds of the Loan for the purposes set forth in Section 2.1(d) hereof and not for any illegal activity. No part of the proceeds of the Loan will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by Legal Requirements or prohibited by the terms and conditions of this Agreement or the other Loan Documents.

Section 4.34.Investment Company Act

Borrower is not (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; (b) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (c) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

Section 4.35.Reciprocal Easement Agreements

(a)Neither Borrower nor any other party is currently in default (nor has any notice been given or received with respect to an alleged or current default) under any of the terms and conditions of the REA, and the REA remains unmodified and in full force and effect;

(b)All easements granted pursuant to the REA which were to have survived the site preparation and completion of construction (to the extent that the same has been completed), remain in full force and effect and have not been released, terminated, extinguished or discharged by agreement or otherwise;

(c)To the best of Borrower’s knowledge, all sums due and owing by Borrower to the other parties to the REA (or by the other parties to the REA to the Borrower) pursuant to the terms of the REA, including without limitation, all sums, charges, fees, assessments, costs, and expenses in connection with any taxes, site preparation and construction, non-shareholder contributions, and common area and other property management activities have been paid, are current, and no lien has attached on the Property (or threat thereof been made) for failure to pay any of the foregoing;

(d)The terms, conditions, covenants, uses and restrictions contained in the REA do not conflict in any manner with any terms, conditions, covenants, uses and restrictions contained in any Lease or in any agreement between Borrower and occupant of any peripheral parcel, including without limitation, conditions and restrictions with respect to kiosk placement, tenant restrictions (type, location or exclusivity), sale of certain goods or services, and/or other use restrictions; and

(e)The terms, conditions, covenants, uses and restrictions contained in the American Express Lease do not conflict in any manner with any terms, conditions, covenants, uses and restrictions contained in the REA, any other lease or in any agreement between Borrower and

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occupant of any peripheral parcel, including without limitation, conditions and restrictions with respect to kiosk placement, tenant restrictions (type, location or exclusivity), sale of certain goods or services, and/or other use restrictions.

Section 4.36.No Change in Facts or Circumstances; Disclosure

All information submitted by Borrower or its agents to Lender and in all financial statements, reports, certificates and other documents submitted in connection with the Loan or in satisfaction of the terms thereof and all statements of fact made by Borrower in this Agreement or in any other Loan Document, are accurate, complete and correct in all material respects. There has been no material adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading in any material respect or that otherwise materially and adversely affects or might materially and adversely affect the Property or the business operations or the financial condition of Borrower. Borrower has disclosed to Lender all material facts and has not failed to disclose any material fact that could cause any representation or warranty made herein to be materially misleading.

Section 4.37.Intellectual Property

All trademarks, trade names and service marks necessary to the business of Borrower as presently conducted or as Borrower contemplates conducting its business are in good standing and, to the extent of Borrower’s actual knowledge, uncontested. Borrower has not infringed, is not infringing, and has not received notice of infringement with respect to asserted trademarks, trade names and service marks of others. To Borrower’s knowledge, there is no infringement by others of trademarks, trade names and service marks of Borrower.

Section 4.38.Compliance with Anti-Terrorism Laws

None of Borrower, Borrower Principal or any Person who Controls Borrower or Borrower Principal currently is identified by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) or otherwise qualifies as an Embargoed Person, and Borrower has implemented procedures to ensure that no Person who now or hereafter owns a material direct or indirect equity interest in Borrower is an Embargoed Person or is Controlled by an Embargoed Person. To Borrower’s knowledge neither Borrower nor Borrower Principal is in violation of any applicable law relating to anti-money laundering or anti-terrorism, including, without limitation, those related to transacting business with Embargoed Persons or the requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, U.S. Public Law 107-56, and the related regulations issued thereunder, including temporary regulations (collectively, as the same may be amended from time to time, the “Patriot Act”). To the best of Borrower’s knowledge, no tenant at the Property is currently identified by OFAC or otherwise qualifies as an Embargoed Person, or is owned or Controlled by an Embargoed Person.

Section 4.39.Patriot Act

Neither Borrower nor Borrower Principal shall (a) be or become subject at any time to any law, regulation, or list of any government agency (including, without limitation, the list maintained by OFAC and accessible through the OFAC website) that prohibits or limits any

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lender from making any advance or extension of credit to Borrower or from otherwise conducting business with Borrower and Borrower Principal, or (b) fail to provide documentary and other evidence of Borrower’s identity as may be requested by any lender at any time to enable any lender to verify Borrower’s identity or to comply with any applicable law or regulation, including, without limitation, the Patriot Act. In addition, Borrower hereby agrees to provide to Lender any additional information that Lender deems necessary from time to time in order to ensure compliance with all applicable laws concerning money laundering and similar activities.

Section 4.40.Survival

Borrower agrees that, unless expressly provided otherwise, all of the representations and warranties of Borrower set forth in this Article 4 and elsewhere in this Agreement and in the other Loan Documents shall survive for so long as any portion of the Debt remains owing to Lender. All representations, warranties, covenants and agreements made in this Agreement or in the other Loan Documents by Borrower shall be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.

ART1CLE 5

BORROWER COVENANTS

From the date hereof and until repayment of the Debt in full and performance in full of all obligations of Borrower under the Loan Documents or the earlier release of the Lien of the Mortgage (and all related obligations) in accordance with the terms of this Agreement and the other Loan Documents, Borrower hereby covenants and agrees with Lender that:

Section 5.1.Existence; Compliance with Legal Requirements

(a)Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, rights, licenses, permits and franchises and comply with all Legal Requirements applicable to it and the Property. Borrower hereby covenants and agrees not to commit, permit or suffer to exist any act or omission affording any Governmental Authority the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents. Borrower shall at all times maintain, preserve and protect all franchises and trade names used in connection with the operation of the Property. So long as American Express is in compliance with the terms of the American Express Lease with respect to the matters described in this Section 5.1, Borrower shall be deemed in compliance with this Section 5.1.

(b)Borrower, at its own expense, may contest or permit American Express to contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the Legal Requirements affecting the Property, provided that (i) no Default or Event of Default has occurred and is continuing; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower or the Property is subject and shall not constitute a default thereunder; (iii) neither the Property, any part thereof or interest therein, any of the tenants or occupants thereof, nor Borrower shall be affected in any material adverse way as a result of such proceeding; (iv) non-compliance with the

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Legal Requirements shall not impose civil or criminal liability on Borrower or Lender; (v) unless the contest is initiated and conducted by American Express pursuant to the American Express Lease Borrower shall have furnished the security as may be required in the proceeding or by Lender to ensure compliance by Borrower with the Legal Requirements; and (vi) if the contest is initiated and conducted by Borrower, Borrower shall have furnished to Lender all other items reasonably requested by Lender. Borrower shall give written notice to Lender of any contest initiated and conducted by Borrower promptly after initiation thereof and shall inform Lender of any contest initiated and conducted by American Express of which Borrower is given notice by American Express.

Section 5.2.Maintenance and Use of Property

Borrower shall cause the Property to be maintained in a good and safe condition and repair. The Improvements and the Personal Property shall not be removed, demolished or except as may be expressly permitted under the American Express Lease without the consent of the landlord thereunder, materially altered (except for normal replacement of the Personal Property) without the prior written consent of Lender. So long as American Express is in compliance with the terms of the American Express Lease with respect to the matters described in this Section 5.2, Borrower shall be deemed in compliance with this Section 5.2. If under applicable zoning provisions the use of all or any portion of the Property is or shall become a nonconforming use, Borrower will not cause or permit the nonconforming use to be discontinued or the nonconforming Improvement to be abandoned without the express written consent of Lender.

Section 5.3.Waste

Borrower shall not commit or suffer any waste of the Property or make any change in the use of the Property which will in any way materially increase the risk of fire or other hazard arising out of the operation of the Property, or take any action that might invalidate or give cause for cancellation of any Policy, or do or permit to be done thereon anything that may in any way impair the value of the Property or the security for the Loan. Borrower will not, without the prior written consent of Lender, permit any drilling or exploration for or extraction, removal, or production of any minerals from the surface or the subsurface of the Property, regardless of the depth thereof or the method of mining or extraction thereof.

Section 5.4.Taxes and Other Charges

(a)Borrower shall pay or cause American Express to pay all Taxes and Other Charges now or hereafter levied or assessed or imposed against the Property or any part thereof as the same become due and payable. Borrower shall furnish or cause to be furnished to Lender such receipts for the payment of the Taxes and the Other Charges as are delivered to Borrower by American Express and, upon request by Lender, a certificate from Borrower and Borrower Principal that as of the date of such certificate there are no liens filed against the Property arising from the non-payment of Taxes or Other Charges. Borrower shall not suffer nor permit American Express to suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. So long as American Express is in

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compliance with the terms of the American Express Lease with respect to the matters described in this Section 5.4, Borrower shall be deemed in compliance with this Section 5.4.

(b)Borrower, at its own expense, may contest or permit American Express to contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) no Default or Event of Default has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable Legal Requirements; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish or cause American Express to furnish (but only to the extent required to be furnished by American Express under the American Express Lease) such security as may be required in the proceeding, or deliver to Lender such reserve deposits as may be requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon (unless Borrower or American Express has paid all of the Taxes or Other Charges under protest). Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the judgment of Lender, the entitlement of such claimant is established or the Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, canceled or lost or there shall be any danger of the Lien of the Mortgage being primed by any related Lien.

Section 5.5.Litigation

Borrower shall give prompt written notice to Lender of any litigation or governmental proceedings pending or threatened in writing against Borrower which might materially adversely affect Borrower’s condition (financial or otherwise) or business or the Property.

Section 5.6.Access to Property

Borrower shall permit agents, representatives and employees of Lender to inspect the Property or any part thereof at reasonable hours upon reasonable advance notice, subject to the rights of American Express under the American Express Lease.

Section 5.7.Notice of Default

Borrower shall promptly advise Lender of any material adverse change in the condition (financial or otherwise) of Borrower, any Borrower Principal or the Property or of the occurrence of any Default or Event of Default of which Borrower has knowledge and of any American Express Lease Default of which Borrower has knowledge.

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Section 5.8.Cooperate in Legal Proceedings

Borrower shall at Borrower’s expense cooperate fully with Lender with respect to any proceedings before any court, board or other Governmental Authority which may in any way affect the rights of Lender hereunder or any rights obtained by Lender under any of the other Loan Documents and, in connection therewith, permit Lender, at its election, to participate in any such proceedings.

Section 5.9.Performance by Borrower

Borrower shall in a timely manner observe, perform and fulfill each and every covenant, term and provision to be observed and performed by Borrower under this Agreement and the other Loan Documents and any other agreement or instrument affecting or pertaining to the Property and any amendments, modifications or changes thereto.

Section 5.10.Awards; Insurance Proceeds

Borrower shall cooperate with Lender in obtaining for Lender the benefits of any Awards or Insurance Proceeds lawfully or equitably payable to Borrower in connection with the Property, and Lender shall be reimbursed for any expenses incurred in connection therewith (including reasonable, actual attorneys’ fees and disbursements, and the payment by Borrower of the expense of an appraisal on behalf of Lender in case of a Casualty or Condemnation affecting the Property or any part thereof) out of such Awards or Insurance Proceeds. The actual payment of any Awards shall be governed by Section 8.4 hereof.

Section 5.11.Financial Reporting

(a)Borrower and Borrower Principal shall keep adequate books and records of account in accordance with federal tax basis accounting, or in accordance with other methods acceptable to Lender in its sole discretion, consistently applied and shall furnish to Lender:

(i)prior to a Securitization, at the request of Lender, monthly, and following a Securitization, quarterly and annual certificates signed and dated by Borrower, certifying that the American Express Lease is in full force and effect, whether any defaults (or any matter that, with the passage of time or the giving of notice, could become a default) exist thereunder and any other information as is reasonably required by Lender, within twenty (20) days after the end of each calendar month, thirty (30) days after the end of each fiscal quarter or one hundred twenty (120) days after the close of each fiscal year of Borrower, as applicable;

(ii)prior to a Securitization, at the request of Lender, monthly, and following a Securitization, quarterly and annual operating statements of the Property, prepared and certified by Borrower in the form required by Lender, detailing the revenues received, the expenses incurred and the net operating income before and after debt service (principal and interest) and major capital improvements (including, without limitation, any capital improvements planned by American Express of which Borrower has notice) for the period of calculation and containing appropriate year-to-date information, within twenty (20) days after the end of each calendar month, thirty (30) days after the end of each

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fiscal quarter or one hundred (120) days after the close of each fiscal year of Borrower, as applicable;

(iii)annual balance sheets, profit and loss statements, statements of cash flows, and statements of change in financial position of Borrower and Borrower Principal in the form required by Lender prepared and certified by Borrower and Borrower Principal within one hundred twenty (120) days after the close of each fiscal year of Borrower and Borrower Principal, as the case may be (provided that with respect to Borrower, such statements may be delivered by the holder(s) of beneficial interests in Borrower in accordance with Section 6.1(a)(viii); and

(iv)all financial statements, operating statements, budgets, capital repair estimates or projections and certifications of any kind with respect to the foregoing delivered to Borrower by American Express under the American Express Lease.

(b)To the extent not inconsistent with the provisions of Section 5.11(a) hereof (e.g., GAAP accounting and audits shall not be required ), Borrower and Borrower Principal shall furnish Lender with such other additional financial or management information (including state and federal tax returns) as may, from time to time, be reasonably required by Lender in form and substance satisfactory to Lender (including, without limitation, any financial reports required to be delivered by any Tenant or any guarantor of any Lease pursuant to the terms of such Lease), and shall furnish to Lender and its agents convenient facilities for the examination and audit of any such books and records

(c)Without limiting any other rights available to Lender under this Loan Agreement or any of the other Loan Documents, in the event Borrower shall fail to timely furnish Lender any financial document or statement in accordance with this Section 5.11, Borrower shall promptly pay to Lender a non-refundable charge in the amount of $500 for each such failure. The payment of such amount shall not be construed to relieve Borrower of any Event of Default hereunder arising from such failure.

(d)All items requiring the certification of Borrower shall, except where Borrower is an individual, require a certificate executed by the general partner, managing member or chief executive officer of Borrower, as applicable (and the same rules shall apply to any sole shareholder, general partner or managing member which is not an individual).

Section 5.12.Estoppel Statement

(a)After request by Lender, Borrower shall within ten (10) Business Days furnish Lender with a statement, duly acknowledged and certified, setting forth (i) the amount of the original principal amount of the Note, (ii) the rate of interest on the Note, (iii) the unpaid principal amount of the Note, (iv) the date installments of interest and/or principal were last paid, (v) any offsets or defenses to the payment of the Debt, if any, and (vi) that the Note, this Agreement, the Mortgage and the other Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such modification.

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(b)Borrower shall use its best efforts to deliver to Lender, promptly upon request, a duly executed estoppel certificate from American Express on the form attached to the American Express Lease as an exhibit.

Section 5.13.Leasing Matters.

(a)Borrower (i) shall observe and perform all the obligations imposed on the landlord under the American Express Lease and shall not do or permit to be done anything to impair the value of the American Express Lease as security for the Debt; (ii) shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the American Express Lease on the part of the tenant thereunder to be observed or performed; (iv) shall not collect any of the Rents more than one (1) month in advance; (v) shall not execute any other assignment of the landlord’s interest in the American Express Lease or the Rents; and (vi) shall not consent to any assignment of or subletting under the American Express Lease not in accordance with its terms without the prior written consent of Lender.

(b)Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a surrender of space under or shorten the term of the American Express Lease.

Section 5.14.Property Management

(a)Borrower shall (i) promptly perform and observe all of the covenants required to be performed and observed by it under the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (ii) promptly notify Lender of any default under the Management Agreement of which it is aware; (iii) promptly deliver to Lender a copy of any notice of default or other material notice received by Borrower under the Management Agreement; (iv) promptly give notice to Lender of any notice or information that Borrower receives which indicates that Manager is terminating the Management Agreement or that Manager is otherwise discontinuing its management of the Property; and (v) promptly enforce the performance and observance of all of the covenants required to be performed and observed by Manager under the Management Agreement.

(b)If at any time, (i) Manager shall become insolvent or a debtor in a bankruptcy proceeding; (ii) an Event of Default has occurred and is continuing; or (iii) a default has occurred and is continuing after the expiration of any applicable cure periods under the Management Agreement, Borrower shall, at the request of Lender, terminate the Management Agreement upon thirty (30) days prior notice to Manager and replace Manager with a Qualified Manager, it being understood and agreed that the management fee for such replacement manager shall not exceed then prevailing market rates.

(c)In addition to the foregoing, in the event that Lender, in Lender’s reasonable discretion, at any time prior to the termination of the Assignment of Management Agreement, determines that the Property is not being managed in accordance with generally accepted management practices for projects similarly situated, Lender may deliver written notice thereof to Borrower and Manager, which notice shall specify with particularity the grounds for Lender’s

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determination. If Lender reasonably determines that the conditions specified in Lender’s notice are not remedied to Lender’s reasonable satisfaction by Borrower or Manager within thirty (30) days from the date of such notice or that Borrower or Manager has failed to diligently undertake correcting such conditions within such thirty (30) day period, Lender may direct Borrower to terminate the Management Agreement and to replace Manager with a Qualified Manager on terms and conditions satisfactory to Lender, it being understood and agreed that the management fee for such replacement manager shall not exceed then prevailing market rates.

(d)Borrower shall not, without the prior written consent of Lender (which consent shall not be unreasonably withheld, conditioned or delayed): (i) surrender, terminate or cancel the Management Agreement or otherwise replace Manager or enter into any other management agreement with respect to the Property; (ii) reduce or consent to the reduction of the term of the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Management Agreement; or (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the Management Agreement in any material respect. In the event that Borrower replaces Manager at any time during the term of Loan pursuant to this subsection, such Manager shall be a Qualified Manager.

(c)Notwithstanding the foregoing, Borrower shall be permitted to transfer the management of the Property to an Affiliate of Manager provided that the terms of the management contract between Borrower and such entity provides for fees no greater than, is on terms that are substantially similar to and is no less favorable to Borrower than the Management Agreement in effect as of the date hereof.

Section 5.15.Liens

Borrower shall not, without the prior written consent of Lender, create, incur, assume or suffer to exist any Lien on any portion of the Property or permit any such action to be taken, except Permitted Encumbrances.

Section 5.16.Debt Cancellation

Borrower shall not cancel or otherwise forgive or release any claim or debt owed to Borrower by any Person, except for adequate consideration and in the ordinary course of Borrower’s business.

Section 5.17.Zoing

Borrower shall not initiate or consent to any zoning reclassification of any portion of the Property or seek any variance under any existing zoning ordinance or use or permit the use of any portion of the Property in any manner that could result in such use becoming a non-conforming use under any zoning ordinance or any other applicable land use law, rule or regulation, without the prior written consent of Lender.

Section 5.18.ERISA

(a)Borrower shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under the

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Note, this Agreement or the other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA.

(b)Borrower further covenants and agrees to deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan, as requested by Lender in its sole discretion, that (i) Borrower is not and does not maintain an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmental plan” within the meaning of Section 3(3) of ERISA; (ii) Borrower is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (iii) one or more of the following circumstances is true:

(A)Equity interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R. §2510.3-101(b)(2);

(B)Less than twenty-five percent (25%) of each outstanding class of equity interests in Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R. §2510.3-101(f)(2); or

(C)Borrower qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. §25l0.3-101(c) or (e).

Section 5.19.No Joint Assessment

Borrower shall not suffer, permit or initiate the joint assessment of the Property with (a) any other real property constituting a tax lot separate from the Property, or (b) any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the Lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to the Property.

Section 5.20.Reciprocal Easement Agreements

Borrower shall not enter into, terminate or modify any REA without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Borrower shall enforce, comply with, and cause each of the parties to the REA to comply with all of the material economic terms and conditions contained in the REA, provided that Borrower may agree, without Lender’s consent, to modifications to any REA or to grant casements with respect to the Property which could not reasonably be expected to have a material adverse effect on the use, value or operation of the Property, on the ability of American Express to perform its obligations under the American Express Lease or on Borrower’s ability to perform its obligations under the Loan Documents.

ARTICLE 6

ENTITY COVENANTS

Section 6.1.Single Purpose Entity/Separateness

Until the Debt has been paid in full, Borrower represents, warrants and covenants as follows:

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(a)Borrower has not and will not:

(i)engage in any business or activity other than the ownership, operation and maintenance of the Property, and activities incidental thereto;

(ii)acquire or own any assets other than (A) the Property, and (B) such incidental Personal Property as may be necessary for the operation of the Property;

(iii)except as expressly provided in Article 7 hereof, merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure;

(iv)fail to observe all organizational formalities, or fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the applicable Legal Requirements of the jurisdiction of its organization or formation, or amend, modify, terminate or fail to comply with the provisions of its organizational documents;

(v)own any subsidiary, or make any investment in, any Person;

(vi)commingle its assets with the assets of any other Person, or permit any Affiliate or constituent party independent access to its bank accounts;

(vii)incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) the Debt, (B) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past the date incurred and paid on or prior to such date, and/or (C) financing leases and purchase money indebtedness incurred in the ordinary course of business relating to Personal Property on commercially reasonable terms and conditions; provided however, the aggregate amount of the indebtedness described in (B) and (C) shall not exceed at any time three percent (3%) of the outstanding principal amount of the Note;

(viii)permit its records, books of account, bank accounts, financial statements and accounting records (including with respect to financial position, assets, liabilities, net worth and operating results) to be shown on the financial statements of any holder of a beneficial interest in Borrower unless such financial statements shall contain a footnote indicating that Borrower is a separate legal entity and the assets of Borrower are not available as collateral to creditors of such holder;

(ix)enter into any contract or agreement with any general partner, member, shareholder, principal, guarantor of the obligations of Borrower, or any Affiliate of the foregoing, except upon terms and conditions that are intrinsically fair, commercially reasonable and substantially similar to those that would be available on an arm’s-length basis with unaffiliated third parties;

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(x)maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;

(xi)assume or guarantee the debts of any other Person, hold itself out to be responsible for the debts of any other Person, or otherwise pledge its assets for the benefit of any other Person or hold out its credit as being available to satisfy the obligations of any other Person;

(xii)make any loans or advances to any Person;

(xiii)fail to file its own tax returns or files a consolidated federal income tax return with any Person (unless prohibited or required, as the case may be, by applicable Legal Requirements);

(xiv)fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name or fail to correct any known misunderstanding regarding its separate identity;

(xv)fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that Borrower’s failure to do so solely because of a shortfall in cash flow derived from the operation of the Property shall not, by itself, constitute a breach of this covenant);

(xvi)Without the unanimous written consent of all of its members, as applicable, and the written consent of 100% of the managers of Borrower, including, without limitation, the Independent Director, (a) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any Creditors Rights Laws, (b) seek or consent to the appointment of a receiver, liquidator or any similar official, (c) take any action that might cause such entity to become insolvent, or (d) make an assignment for the benefit of creditors;

(xvii)fail to allocate shared expenses (including, without limitation, shared office space and services performed by an employee of an Affiliate) among the Persons sharing such expenses and to use separate stationery, invoices and checks;

(xviii)fail to remain solvent or pay its own liabilities (including, without limitation, salaries of its own employees) only from its own funds (provided that Borrower’s failure to do so solely because of a shortfall in cash flow derived from the operation of the Property shall not, by itself, constitute a breach of this covenant);

(xix)acquire obligations or securities of its partners, members, shareholders or other affiliates, as applicable;

(xx)violate or cause to be violated the assumptions made with respect to Borrower, Manager (if applicable) and their respective direct and/or indirect owners in any opinion letter pertaining to substantive consolidation delivered to Lender in connection with the Loan; or

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(xxi)fail to maintain a sufficient number of employees in light of its contemplated business operations.

(b)The limited liability company agreement of Borrower (the “LLC Agreement”) shall provide that (i) upon the occurrence of any event that causes the sole member of Borrower (“Member”) to cease to be the member of Borrower (other than (A) upon an assignment, by Member of all of its limited liability company interest in Borrower and the admission of the transferee in accordance with the Loan Documents and the LLC Agreement, or (B) the resignation of Member and the admission of an additional member of Borrower in accordance with the terms of the Loan Documents and the LLC Agreement), any person acting as Independent Director of Borrower shall, without any action of any other Person and simultaneously with the Member ceasing to be the member of Borrower, automatically be admitted to Borrower (“Special Member”) and shall continue Borrower without dissolution and (ii) Special Member may not resign from Borrower or transfer its rights as Special Member unless (A) a successor Special Member has been admitted to Borrower as Special Member in accordance with requirements of Delaware law and (B) such successor Special Member has also accepted its appointment as an Independent Director. The LLC Agreement shall further provide that (i) Special Member shall automatically cease to be a member of Borrower upon the admission to Borrower of a substitute Member, (ii) Special Member shall be a member of Borrower that has no interest in the profits, losses and capital of Borrower and has no right to receive any distributions of Borrower assets, (iii) pursuant to Section 18-301 of the Delaware Limited Liability Company Act (the “Act”), Special Member shall not be required to make any capital contributions to Borrower and shall not receive a limited liability company interest in Borrower, (iv) Special Member, in its capacity as Special Member, may not bind Borrower and (v) except as required by any mandatory provision of the Act, Special Member, in its capacity as Special Member, shall have no right to vote on, approve or otherwise consent to any action by, or matter relating to, Borrower, including, without limitation, the merger, consolidation or conversion of Borrower; provided, however, such prohibition shall not limit the obligations of Special Member, in its capacity as Independent Director, to vote on such matters required by the Loan Documents or the LLC Agreement. In order to implement the admission to Borrower of Special Member, Special Member shall execute a counterpart to the LLC Agreement. Prior to its admission to Borrower as Special Member, Special Member shall not be a member of Borrower.

Upon the occurrence of any event that causes the Member to cease to be a member of Borrower, to the fullest extent permitted by law, the personal representative of Member shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of Member in Borrower, agree in writing (i) to continue Borrower and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of Member of Borrower in Borrower. Any action initiated by or brought against Member or Special Member under any Creditors Rights Laws shall not cause Member or Special Member to cease to be a member of Borrower and upon the occurrence of such an event, the business of Borrower shall continue without dissolution. The LLC Agreement shall provide that each of Member and Special Member waives any right it might have to agree in writing to dissolve Borrower upon the occurrence of any action initiated by or brought against Member or Special Member under any Creditors Rights Laws, or the occurrence of an event that causes Member or Special Member to cease to be a member of Borrower.

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Section 6.2.Change of Name, Identity or Structure

Borrower shall not change or permit to be changed (a) Borrower’s name, (b) Borrower’s identity (including its trade name or names), (c) Borrower’s principal place of business set forth on the first page of this Agreement, (d) the corporate, partnership or other organizational structure of Borrower, or Borrower Principal, (e) Borrower’s state of organization, or (f) Borrower’s organizational identification number, without in each case notifying Lender of such change in writing at least thirty (30) days prior to the effective date of such change and, in the case of a change in Borrower’s structure, without first obtaining the prior written consent of Lender. In addition, Borrower shall not change or permit to be changed any organizational documents of Borrower if such change would adversely impact the covenants set forth in Section 6.1 and Section 6.4 hereof. Borrower authorizes Lender to file any financing statement or financing statement amendment required by Lender to establish or maintain the validity, perfection and priority of the security interest granted herein. At the request of Lender, Borrower shall execute a certificate in form satisfactory to Lender listing the trade names under which Borrower intends to operate the Property, and representing and warranting that Borrower does business under no other trade name with respect to the Property. If Borrower does not now have an organizational identification number and later obtains one, or if the organizational identification number assigned to Borrower subsequently changes, Borrower shall promptly notify Lender of such organizational identification number or change. Nothing in this Section 6.2 shall be deemed to restrict any express rights granted to Borrower under Article 7 hereof.

Section 6.3.Business and Operations

Borrower will qualify to do business and will remain in good standing under the laws of the State as and to the extent the same are required for the ownership, maintenance, management and operation of the Property.

Section 6.4.Independent Director

(a)The organizational documents of Borrower shall provide that at all times there shall be, and Borrower shall cause there to be, at least one duly appointed member of the board of managers (each an “Independent Director”) of Borrower reasonably satisfactory to Lender who is not at the time of such individual’s initial appointment, and shall not have been at any time during the preceding five (5) years, and shall not be at any time while serving as a manager of Borrower, either (i) a shareholder (or other equity owner) of, or an officer, director, partner, manager, member (other than as a Special Member in the case of single member Delaware limited liability companies), employee, attorney or counsel of, Borrower, Borrower Principal or any of their respective shareholders, partners, members, subsidiaries or affiliates; (ii) a customer or creditor of, or supplier to, Borrower or any of its respective shareholders, partners, members, subsidiaries or affiliates who derives any of its purchases or revenue from its activities with Borrower or any Affiliate of any of them; (iii) a Person who Controls or is under common Control with any such shareholder, officer, director, partner, manager, member, employee, supplier, creditor or customer; or (iv) a member of the immediate family of any such shareholder, officer, director, partner, manager, member, employee, supplier, creditor or customer.

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(b)The organizational documents of Borrower shall provide that the board of managers of Borrower shall not take any action which, under the terms of any certificate of incorporation, by-laws or any voting trust agreement with respect to any common stock, requires an unanimous vote of the board of managers of Borrower unless at the time of such action there shall be at least one member of the board who is an Independent Director. Borrower will not, without the unanimous written consent of its board of managers including the Independent Director, on behalf of Borrower, (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable Creditors Rights Laws; (ii) seek or consent to the appointment of a receiver, liquidator or any similar official; (iii) take any action that might cause such entity to become insolvent; or (iv) make an assignment for the benefit of creditors.

ARTICLE 7
NO SALE OR ENCUMBRANCE

Section 7.1.Transfer Definitions

For purposes of this Article 7 an “Affiliated Manager” shall mean any managing agent in which Borrower, Borrower Principal, or any affiliate of such entities has, directly or indirectly, any legal, beneficial or economic interest; “Control” shall mean the power to direct the management and policies of a Restricted Party, directly or indirectly, whether through the ownership of voting securities or other beneficial interests, by contract or otherwise; “Restricted Party” shall mean Borrower, Borrower Principal, any Affiliated Manager, or any shareholder, partner, member or non-member manager, or any direct or indirect legal or beneficial owner of Borrower, Borrower Principal, any Affiliated Manager or any non-member manager; and a “Sale or Pledge” shall mean a voluntary or involuntary sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment, grant of any options with respect to, or any other transfer or disposition of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) of a legal or beneficial interest.

Section 7.2.No Sale/Encumbrance

(a)Borrower shall not cause or permit a Sale or Pledge of the Property or any part thereof or any legal or beneficial interest therein nor permit a Sale or Pledge of an interest in any Restricted Party (in each case, a “Prohibited Transfer”), other than pursuant to the American Express Lease, without the prior written consent of Lender.

(b)A Prohibited Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock in one or a series of transactions, (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general or limited partner or any profits or proceeds relating to such partnership interests or the creation or issuance of new partnership

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interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of any member or any profits or proceeds relating to such membership interest; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the Manager (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.14.

Section 7.3.Permitted Transfers

Notwithstanding the provisions of Section 7.2, the following transfers shall not be deemed to be a Prohibited Transfer: (a) a transfer by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party, so long as Borrower delivers notice to Lender as soon as practicable thereafter and that such Restricted Party is promptly reconstituted, if applicable, following the death of such member, partner or shareholder and there is no change in Control of such Restricted Party as a result of such transfer; (b) the Sale or Pledge, in one or a series of related transactions, of not more than forty-nine percent (49%) of the stock, limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such transfers shall result in a change in Control in the Restricted Party or change in control of the Property, and as a condition to each such transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed transfer. Notwithstanding the foregoing, any one or more of the transfers that results in any Person owning in excess of forty-nine percent (49%) of the ownership interest in a Restricted Party shall comply with the requirements of Section 7.4.

Section 7.4.Lender’s Rights

Lender reserves the right to condition the consent to a Prohibited Transfer requested hereunder upon (a) a modification of the terms hereof and an assumption of the Note and the other Loan Documents as so modified by the proposed Prohibited Transfer, (b) receipt of payment of a transfer fee equal to one percent (1%) of the outstanding principal balance of the Loan and all of Lender’s expenses incurred in connection with such Prohibited Transfer, (c) receipt of written confirmation from the Rating Agencies that the Prohibited Transfer will not result in a downgrade, withdrawal or qualification of the initial, or if higher, then current ratings issued in connection with a Securitization, or if a Securitization has not occurred, any ratings to be assigned in connection with a Securitization, (d) the proposed transferee’s continued compliance with the covenants set forth in this Agreement (including, without limitation, the covenants in Article 6) and the other Loan Documents, (e) a new manager for the Property and a new management agreement satisfactory to Lender, and (f) the satisfaction of such other conditions and/or legal opinions as Lender shall determine in its sole discretion to be in the interest of Lender. All expenses incurred by Lender shall be payable by Borrower whether or not Lender consents to the Prohibited Transfer. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Prohibited Transfer made without Lender’s consent. This provision shall apply to each and every Prohibited Transfer, whether or not Lender has consented to any previous Prohibited Transfer. In the event an opinion letter pertaining to

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substantive consolidation was delivered to Lender and the Rating Agencies in connection with the closing of the Loan, and if any Sale or Pledge permitted under this Article 7 results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the ownership interests in a Restricted Party, Borrower shall, prior to such transfer, and in addition to any other requirement for Lender consent contained herein, deliver a revised substantive non-consolidation opinion letter to Lender reflecting such Prohibited Transfer, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies.

Section 7.5.Assumption

Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to a transfer of the Property in its entirety to, and the related assumption of the Loan by, any Person (a “Transferee”) provided that each of the following terms and conditions are satisfied:

(a)no Default or Event of Default has occurred;

(b)Borrower shall have (i) delivered written notice to Lender of the terms of such prospective transfer not less than forty-five (45) days before the date on which such transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in the amount of $10,000. Lender shall have the right to approve or disapprove the proposed transfer based on its then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Property, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate;

(c)Borrower shall have paid to Lender, concurrently with the closing of such transfer, (i) a non-refundable assumption fee in an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note, and (ii) all out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection with the transfer;

(d)(i) Transferee shall have assumed and agreed to pay the Debt as and when due subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such transfer, Transferee and its constituent partners, members or shareholders as Lender may require, shall have executed, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender shall have

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assumed the obligations of Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the transfer of the Property pursuant to this Section 7.5;

(e)Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable law, and shall execute any additional documents reasonably requested by Lender;

(f)Borrower shall have delivered to Lender, without any cost or expense to Lender, such endorsements to Lender’s Title Insurance Policy insuring that fee simple or leasehold title to the Property, as applicable, is vested in Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;

(g)Transferee shall have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all appropriate papers evidencing Transferee’s organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;

(h)Transferee shall assume the obligations of Borrower under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement;

(i)Transferee shall furnish an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (g) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (E) with respect to such other matters as Lender may reasonably request;

(j)if required by Lender, Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a qualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;

(k)Borrower’s obligations under the contract of sale pursuant to which the transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.5; and

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(l)Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies.

A consent by Lender with respect to a transfer of the Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Sale or Pledge of the Property. Upon the transfer of the Property pursuant to this Section 7.5, Borrower and Borrower Principal shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.

Section 7.6.Assumption by Inland Permitted Transferee

Notwithstanding the foregoing provisions of this Article 7, Borrower shall be permitted to transfer the Property in its entirety to, provided the Loan is simultaneously assumed by, an Inland Permitted Transferee, and provided further that each of the following terms and conditions is satisfied:

(a)no Default or Event of Default has occurred;

(b)Borrower shall have delivered written notice to Lender of the terms of such prospective transfer not less than forty-five (45) days before the date on which such transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transferee as Lender shall reasonably require;

(c)Borrower shall have paid to Lender all out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection with the transfer;

(d)such Inland Permitted Transferee assumes and agrees to pay the Debt as and when due subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such transfer, such Inland Permitted Transferee and its constituent partners, members or shareholders as Lender may require, shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;

(e)Borrower and such Inland Permitted Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable law, and shall execute any additional documents reasonably requested by Lender;

(f)Borrower shall have delivered to Lender, without any cost or expense to Lender, endorsements to Lender’s Title Insurance Policy insuring that fee simple title to the Property is vested in such Inland Permitted Transferee (subject to Permitted Encumbrances), hazard

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insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;

(g)such Inland Permitted Transferee shall have furnished to Lender, if such Inland Permitted Transferee is a corporation, partnership, limited liability company or other entity, all appropriate papers evidencing Transferee’s organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof, provided, however, that, (i) if such Inland Permitted Transferee is a limited partnership or a limited liability company (with more than one member), Lender may require that the general partner or managing member of such Inland Permitted Transferee also comply with the covenants set forth in Article 6, as modified to state that such general partner or managing member holds an interest in the Inland Permitted Transferee rather than an interest in the Property or (ii) if such Inland Permitted Transferee is a single member limited liability company, the state of organization of such entity must be Delaware and the organizational documents must provide for a springing member upon the bankruptcy or dissolution of the sole member;

(h)such Inland Permitted Transferee shall assume the obligations of Borrower under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement;

(i)Transferee shall furnish an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (g) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (E) with respect to such other matters as Lender may reasonably request, including, without limitation, customary single member limited liability company opinions in the event that such Inland Permitted Transferee is a Delaware limited liability company; and

(j)in the event a substantive non-consolidation opinion was required in connection with the closing of the Loan, Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies.

A consent by Lender with respect to a transfer of the Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.6 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Sale or Pledge of the Property.

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ARTICLE 8

INSURANCE; CASUALTY; CONDEMNATION; RESTORATION

Section 8.1.Insurance

(a)Subject to the provisions of paragraph (g) of this Section 8.1, Borrower shall obtain and maintain, or cause American Express to maintain, insurance for Borrower and the Property providing at least the following coverages:

(i)comprehensive “special causes of loss” form of insurance (or its equivalent) on the Improvements and the Personal Property (A) in an amount equal to not less than one hundred percent (100%) of the “Full Replacement Cost,” which for purposes of this Agreement shall mean actual replacement value (exclusive of costs of excavations, foundations, underground utilities and footings) with a waiver of depreciation; (B) written on a replacement cost basis and containing either an agreed amount endorsement with respect to the Improvements and Personal Property or a waiver of all co-insurance provisions; (C) providing for no deductible in excess of $10,000 for all such insurance coverage; (D) at all times insuring against at least those hazards that are commonly insured against under a “special causes of loss” form of policy, as the same shall exist on the date hereof, and together with any increase in the scope of coverage provided under such form after the date hereof; and (E) if any of the Improvements or the use of the Property shall at any time constitute legal non-conforming structures or uses, providing coverage for contingent liability from Operation of Building Laws, Demolition Costs and Increased Cost of Construction Endorsements and containing an “Ordinance or Law Coverage” or “Enforcement” endorsement. In addition, Borrower shall obtain: (y) if any portion of the Improvements is currently or at any time in the future located in a “special flood hazard area” designated by the Federal Emergency Management Agency, flood hazard insurance in an amount equal to the maximum amount of such insurance available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended; and (z) earthquake insurance in amounts and in form and substance reasonably satisfactory to Lender in the event the Property is located in an area with a high degree of seismic risk, provided that the insurance pursuant to clauses (y) and (z) hereof shall be on terms consistent with the special causes of loss form required under this subsection (i);

(ii)commercial general liability insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about the Property, with such insurance (A) to be on the so-called “occurrence” form with a general aggregate limit of not less than $2,000,000 and a per occurrence limit of not less than $1,000,000; (B) to continue at not less than the aforesaid limit until required to be changed by Lender in writing by reason of changed economic conditions making such protection inadequate; and (C) to cover at least the following hazards: (1) premises and operations; (2) products and completed operations; (3) independent contractors; (4) blanket contractual liability; and (5) contractual liability covering the indemnities contained in Article 12 and Article 14 hereof to the extent the same is available;

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(iii)if the rating of American Express issued by the Rating Agencies falls below the Trigger Rating, loss of rents insurance or business income insurance, as applicable, (A) with loss payable to Lender; (B) covering all risks required to be covered by the insurance provided for in subsection (i) above; and (C) which provides that after the physical loss to the Improvements and Personal Property occurs, the loss of rents or income, as applicable, will be insured until such rents or income, as applicable, either returns to the same level that existed prior to the loss or the expiration of twelve (12) months, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period; and (D) which contains an extended period of indemnity endorsement which provides that after the physical loss to the Improvements and Personal Property has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss, or the expiration of twelve (12) months from the date that the Property is repaired or replaced and operations are resumed, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period. The amount of such loss of rents or business income insurance, as applicable, shall be determined prior to the date hereof and at least once each year thereafter based on Borrower’s reasonable estimate of the gross income from the Property for the succeeding period of coverage required above. All proceeds payable to Lender pursuant to this subsection shall be held by Lender and shall be applied to the obligations secured by the Loan Documents from time to time due and payable hereunder and under the Note; provided, however, that nothing herein contained shall be deemed to relieve Borrower of its obligations to pay the obligations secured by the Loan Documents on the respective dates of payment provided for in the Note, this Agreement and the other Loan Documents except to the extent such amounts are actually paid out of the proceeds of such loss of rents or business income insurance, as applicable;

(iv)at all times during which structural construction, repairs or alterations are being made with respect to the Improvements, and only if the Property coverage form does not otherwise apply, (A) owner’s contingent or protective liability insurance covering claims not covered by or under the terms or provisions of the above mentioned commercial general liability insurance policy; and (B) the insurance provided for in subsection (i) above written in a so-called Builder’s Risk Completed Value form (1) on a non-reporting basis, (2) against “special causes of loss” insured against pursuant to subsection (i) above, (3) including permission to occupy the Property, and (4) with an agreed amount endorsement waiving co-insurance provisions;

(v)workers’ compensation, subject to the statutory limits of the State, and employer’s liability insurance in respect of any work or operations on or about the Property, or in connection with the Property or its operation (if applicable);

(vi)comprehensive boiler and machinery insurance, if applicable, in amounts as shall be reasonably required by Lender on terms consistent with the commercial property insurance policy required under subsection (i) above;

(vii)excess liability insurance in an amount not less than $75,000,000 per occurrence on terms consistent with the commercial general liability insurance required under subsection (ii) above; and

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(viii)upon sixty (60) days’ written notice, such other reasonable insurance and in such reasonable amounts as Lender from time to time may reasonably request against such other insurable hazards which at the time are commonly insured against for property similar to the Property located in or around the region in which the Property is located.

With respect to the policies required to be maintained pursuant to clauses (i) through (viii) above, Borrower shall use commercially reasonable efforts, consistent with those of prudent owners of institutional quality commercial real estate, to maintain insurance against Losses resulting from acts of terrorism.

(b)All insurance provided for in Section 8.1 (a) shall be obtained under valid and enforceable policies (collectively, the “Policies” or in the singular, the “Policy”), and shall be subject to the approval of Lender as to insurance companies, amounts, deductibles, loss payees and insureds. The Policies shall be issued by financially sound and responsible insurance companies authorized to do business in the State and having a claims paying ability rating of “A-” or better by S&P (or such other ratings approved by Lender) and/or a general policy rating of “A” or better and a financial class of VIII or better by A.M. Best Company, Inc. The Policies described in Section 8.1 (a) shall designate Lender and its successors and assigns as additional insureds, mortgagees and/or loss payee as deemed appropriate by Lender. To the extent such Policies are not available as of the Closing Date, Borrower shall deliver to Lender prior to the Closing Date an Acord 28 or similar certificate of insurance evidencing the coverages and amounts required hereunder and, upon request of Lender as soon as available after the Closing Date, certified copies of all Policies. Not less than ten (10) days prior to the expiration dates of any insurance coverage in place with respect to the Property, Borrower shall deliver to Lender an Acord 28 or similar certificate, accompanied by evidence satisfactory to Lender of payment of the premiums due in connection therewith (the “Insurance Premiums”), and, as soon as available thereafter, certified copies of all renewal Policies.

(c)Any blanket insurance Policy shall specifically allocate to the Property the amount of coverage from time to time required hereunder and shall otherwise provide the same protection as would a separate Policy insuring only the Property in compliance with the provisions of Section 8.1(a).

(d)All Policies provided for or contemplated by Section 8.1 (a), except for the Policy referenced in Section 8.1(a)(v), shall name Borrower as the insured and Lender as the additional insured, as its interests may appear, and in the case of property damage, boiler and machinery, flood and earthquake insurance, shall contain a so-called New York standard non-contributing mortgagee clause in favor of Lender providing that the loss thereunder shall be payable to Lender.

(e)All Policies provided for in Section 8.1(a) shall contain clauses or endorsements to the effect that:

(i)no act or negligence of Borrower, or anyone acting for Borrower, or of any Tenant or other occupant, or failure to comply with the provisions of any Policy, which might otherwise result in a forfeiture of the insurance or any part thereof, shall in

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any way affect the validity or enforceability of the insurance insofar as Lender is concerned;

(ii)the Policies shall not be materially changed (other than to increase the coverage provided thereby) or canceled by the insurer without at least thirty (30) days’ (ten (10) days’ in the case of non-payment of premium) prior written notice to Lender and any other party named therein as an additional insured;

(iii)the issuers thereof shall give written notice to Lender if the Policies have not been renewed thirty (30) days prior to its expiration; and

(iv)Lender shall not be liable for any Insurance Premiums thereon or subject to any assessments thereunder.

(f)If at any time Lender is not in receipt of written evidence that all insurance required hereunder is in full force and effect, Lender shall have the right, without notice to Borrower, to take such action as Lender deems necessary to protect its interest in the Property, including, without limitation, obtaining such insurance coverage as Lender in its sole discretion deems appropriate. All premiums incurred by Lender in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by Borrower to Lender upon demand and, until paid, shall be secured by the Mortgage and shall bear interest at the Default Rate.

(g)Notwithstanding any other provision hereof to the contrary, Lender acknowledges that so long as no American Express Lease Default has occurred, Borrower shall not be required to obtain the insurance coverages set forth in paragraphs (a)(i) through (viii) if (x) Guarantor (or American Express if there is no Guarantor) is a self-insurer and maintains a rating issued by the Rating Agencies of not less than the Trigger Rating or (y) American Express maintains insurance with coverages and carriers in compliance with the terms of the American Express Lease.

Section 8.2.Casualty

If the Property shall be damaged or destroyed, in whole or in part, by fire or other casualty (a “Casualty”), Borrower shall give prompt notice of such damage to Lender and shall promptly commence and diligently prosecute the Restoration of the Property in accordance with Section 8.4, whether or not Lender makes any Net Proceeds available pursuant to Section 8.4. Borrower shall pay all costs of such Restoration whether or not such costs are covered by insurance. Lender may, but shall not be obligated to make proof of loss if not made promptly by Borrower. Borrower shall adjust all claims for Insurance Proceeds in consultation with, and approval of, Lender; provided, however, if an Event of Default has occurred and is continuing, Lender shall have the exclusive right to participate in the adjustment of all claims for Insurance Proceeds.

Section 8.3.Condemnation

Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the Condemnation of the Property of which Borrower has knowledge and shall deliver to Lender copies of any and all papers served in connection with such proceedings.

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Lender may participate in any such proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Debt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the provisions of Section 8.4, whether or not Lender makes any Net Proceeds available pursuant to Section 8.4. If the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt. So long as no American Express Lease Default has occurred, the payment and allocation of any Awards shall be governed by the American Express Lease.

Section 8.4.Restoration

The following provisions shall apply in connection with the Restoration of the Property:

(a)If the Net Proceeds shall be less than $50,000 and the costs of completing the Restoration shall be less than $50,000, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 8.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.

(b)If the Net Proceeds are equal to or greater than $50,000 or the costs of completing the Restoration are equal to or greater than $50,000, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 8.4. The term “Net Proceeds” for purposes of this Section 8.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 8.1(a)(i), (iv), (vi) and (viii) as a result of a Casualty, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting the same (“Insurance Proceeds”), or (ii) the net amount of the Award as a result of a Condemnation, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting the same (“Condemnation Proceeds”), whichever the case may be.

(i)The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:

(A)no Event of Default shall have occurred and be continuing;

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(B)(1) in the event the Net Proceeds are Insurance Proceeds, less than thirty percent (30%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of a Casualty, or (2) in the event the Net Proceeds are Condemnation Proceeds, less than ten percent (10%) of the land constituting the Property is taken, such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land;

(C)The American Express Lease shall remain in full force and effect during and after completion of the Restoration without abatement of Rent;

(D)Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than sixty (60) days after such Casualty or Condemnation, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion;

(E)Lender shall be satisfied that any operating deficits, including all scheduled payments under the Note, which will be incurred with respect to the Property as a result of the occurrence of any such Casualty or Condemnation, whichever the case may be, will be covered out of the insurance coverage referred to in Section 8.1(a)(iii) above;

(F)Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, (2) the earliest date required for such completion under the terms of any Leases or material agreements affecting the Property, (3) such time as may be required under applicable zoning law, ordinance, rule or regulation, or (4) the expiration of the insurance coverage referred to in Section 8. l(a)(iii);

(G)the Property and the use thereof after the Restoration will be in compliance with and permitted under all Legal Requirements;

(H)the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements;

(I)such Casualty or Condemnation, as applicable, does not result in the loss of access to the Property or the Improvements;

(J)Borrower shall deliver, or cause to be delivered, to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, which budget shall be acceptable to Lender; and

(K)the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s reasonable judgment to cover the cost of the Restoration.

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(ii)The Net Proceeds shall be held by Lender until disbursements commence, and, until disbursed in accordance with the provisions of this Section 8.4, shall constitute additional security for the Debt and other obligations under the Loan Documents. The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all the conditions precedent to such advance, including those set forth in Section 8.4(b)(i), have been satisfied, (B) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the related Restoration item have been paid for in full, and (C) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy. Notwithstanding the foregoing, Business Interruption Proceeds required to be maintained by Borrower pursuant to section 8.1(a)(iii) shall be controlled by Lender at all times, shall not be subject to the provisions of this Section 8.4 and shall be used solely for the payment of the obligations under the Loan Documents and Operating Expenses.

(iii)All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Restoration Consultant”). Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration, as well as the contracts in excess of $50,000 under which they have been engaged, shall be subject to prior review and acceptance by Lender and the Restoration Consultant. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration, including, without limitation, reasonable counsel fees and disbursements and the Restoration Consultant’s fees, shall be paid by Borrower.

(iv)In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Restoration Consultant, minus the Restoration Retainage. The term “Restoration Retainage” shall mean an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Restoration Consultant, until the Restoration has been completed. The Restoration Retainage shall be reduced to five percent (5%) of the costs incurred upon receipt by Lender of satisfactory evidence that fifty percent (50%) of the Restoration has been completed. The Restoration Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Section 8.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Restoration Retainage shall not be released until the Restoration Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 8.4(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate Governmental Authorities, and Lender receives evidence satisfactory to

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Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Restoration Retainage; provided, however, that Lender will release the portion of the Restoration Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Restoration Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company issuing the Title Insurance Policy, and Lender receives an endorsement to the Title Insurance Policy insuring the continued priority of the lien of the Mortgage and evidence of payment of any premium payable for such endorsement. If required by Lender, the release of any such portion of the Restoration Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.

(v)Lender shall not be obligated to make disbursements of the Net Proceeds more frequently than once every calendar month.

(vi)If at any time the Net Proceeds or the undisbursed balance thereof shall not, in the reasonable opinion of Lender in consultation with the Restoration Consultant, be sufficient to pay in full the balance of the costs which are estimated by the Restoration Consultant to be incurred in connection with the completion of the Restoration, Borrower shall deposit the deficiency (the “Net Proceeds Deficiency”) with Lender before any further disbursement of the Net Proceeds shall be made. The Net Proceeds Deficiency deposited with Lender shall be held by Lender and shall be disbursed for costs actually incurred in connection with the Restoration on the same conditions applicable to the disbursement of the Net Proceeds, and until so disbursed pursuant to this Section 8.4(b) shall constitute additional security for the Debt and other obligations under the Loan Documents.

(vii)The excess, if any, of the Net Proceeds and the remaining balance, if any, of the Net Proceeds Deficiency deposited with Lender after the Restoration Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 8.4(b), and the receipt by Lender of evidence satisfactory to Lender that all costs incurred in connection with the Restoration have been paid in full, shall be remitted by Lender to Borrower, provided no Event of Default shall have occurred and shall be continuing under the Note, this Agreement or any of the other Loan Documents.

(c)All Net Proceeds not required (i) to be made available for the Restoration or (ii) to be returned to Borrower as excess Net Proceeds pursuant to Section 8.4(b)(vii) may (x) be retained and applied by Lender toward the payment of the Debt whether or not then due and payable in such order, priority and proportions as Lender in its sole discretion shall deem proper, or, (y) at the sole discretion of Lender, the same may be paid, either in whole or in part, to Borrower for such purposes and upon such conditions as Lender shall designate.

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(d)In the event of foreclosure of the Mortgage, or other transfer of title the Property in extinguishment in whole or in part of the Debt, all right, title and interest of Borrower in and to the Policies then in force concerning the Property and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure, Lender or other transferee in the event of such other transfer of title.

(e)Notwithstanding the foregoing, so long as no American Express Lease Default has occurred, the Net Proceeds shall be used for restoration of the Property in accordance with the provisions of the American Express Lease.

ARTICLE 9
REPLACEMENTS; RESERVE FUNDS

Section 9.1.Replacements

On an ongoing basis throughout the term of the Loan, Borrower shall make capital repairs, replacements and improvements necessary to keep the Property in good order and repair and in a good marketable condition or prevent deterioration of the Property. So long as no American Express Lease Default shall have occurred, the compliance by American Express with its obligations for maintenance of the Property as set forth in the American Express Lease shall be deemed compliance by Borrower with the provisions of this Section 9.1.

Section 9.2.Tax and Insurance Reserve Funds

If required by Lender following a default by American Express under the American Express Lease Borrower shall establish an Eligible Account with Lender or Lender’s agent sufficient to discharge Borrower’s obligations for the payment of Taxes and Insurance Premiums pursuant to Section 5.4 and Section 8.1 hereof (the “Tax and Insurance Reserve Account”) Borrower shall deposit into the Tax and Insurance Reserve Account on each Scheduled Payment Date (a) one-twelfth of the Taxes that Lender estimates will be payable during the next ensuing twelve (12) months or such higher amount necessary to accumulate with Lender sufficient funds to pay all such Taxes at least thirty (30) days prior to the earlier of (i) the date that the same will become delinquent and (ii) the date that additional charges or interest will accrue due to the non-payment thereof, and (b) except to the extent Lender has waived the insurance escrow because the insurance required hereunder is maintained under a blanket insurance Policy acceptable to Lender in accordance with Section 8.l(c), one-twelfth of the Insurance Premiums that Lender estimates will be payable during the next ensuing twelve (12) months for the renewal of the coverage afforded by the Policies upon the expiration thereof or such higher amount necessary to accumulate with Lender sufficient funds to pay all such Insurance Premiums at least thirty (30) days prior to the expiration of the Policies (said amounts in (a) and (b) above hereinafter called the “Tax and Insurance Reserve Funds”). Lender will apply the Tax and Insurance Reserve Funds to payments of Taxes and Insurance Premiums required to be made by Borrower pursuant to Section 5.4 and Section 8.1 hereof. In making any disbursement from the Tax and Insurance Reserve Account, Lender may do so according to any bill, statement or estimate procured from the appropriate public office or tax lien service (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums), without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim

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thereof. If the amount of the Tax and Insurance Reserve Funds shall exceed the amounts due for Taxes and Insurance Premiums pursuant to Section 5.4 and Section 8.1 hereof, Lender shall, in its sole discretion, return any excess to Borrower or credit such excess against future payments to be made to the Tax and Insurance Reserve Account. In allocating any such excess, Lender may deal with the person shown on Lender’s records as being the owner of the Property. Any amount remaining in the Tax and Insurance Reserve Account after the Debt has been paid in full shall be returned to Borrower or the person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto. If at any time Lender reasonably determines that the Tax and Insurance Reserve Funds are not or will not be sufficient to pay Taxes and Insurance Premiums by the dates set forth in (a) and (b) above, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.

Section 9.3.Reserve Funds Generally

(a)No earnings or interest on the Reserve Accounts shall be payable to Borrower. Neither Lender nor any loan servicer that at any time holds or maintains the Reserve Accounts shall have any obligation to keep or maintain such Reserve Accounts or any funds deposited therein in interest-bearing accounts. If Lender or any such loan servicer elects in its sole and absolute discretion to keep or maintain any Reserve Accounts or any funds deposited therein in an interest-bearing account (i) the account shall be an Eligible Account, (ii) such funds shall not be invested except in Permitted Investments, and (iii) all interest earned or accrued thereon shall be for the account of and be retained by Lender or such loan servicer.

(b)Borrower grants to Lender a first-priority perfected security interest in, and assigns and pledges to Lender, each of the Reserve Accounts and any and all funds hereafter deposited therein as additional security for payment of the Debt. Until expended or applied in accordance herewith, the Reserve Accounts and the Reserve Funds shall constitute additional security for the Debt. The provisions of this Section 9.9 are intended to give Lender or any subsequent holder of the Loan “control” of the Reserve Accounts within the meaning of the UCC.

(c)The Reserve Accounts and any and all Reserve Funds deposited therein shall be subject to the exclusive dominion and control of Lender, which shall hold the Reserve Accounts and any or all Reserve Funds now or hereafter deposited therein subject to the terms and conditions of this Agreement. Borrower shall have no right of withdrawal from the Reserve Accounts or any other right or power with respect to the Reserve Accounts or any or all of the Reserve Funds hereinafter deposited therein, except as expressly provided in this Agreement.

(d)Lender shall furnish or cause to be furnished to Borrower, without charge, an annual accounting of each Reserve Account in the normal format of Lender or its loan servicer, showing credits and debits to such Reserve Account and the purpose for which each debit to such Reserve Account was made.

(e)As long as no Event of Default has occurred, Lender shall make disbursements from the Reserve Accounts in accordance with this Agreement. All such disbursements shall be

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deemed to have been expressly pre-authorized by Borrower, and shall not be deemed to constitute the exercise by Lender of any remedies against Borrower unless an Event of Default has occurred and is continuing and Lender has expressly stated in writing its intent to proceed to exercise its remedies as a secured party, pledgee or lienholder with respect to the Reserve Accounts.

(f)The Reserve Funds shall not constitute escrow or trust funds and may be commingled with other monies held by Lender. Notwithstanding anything else herein to the contrary, Lender may commingle in one or more Eligible Accounts any and all funds controlled by Lender, including, without limitation, funds pledged in favor of Lender by other borrowers, whether for the same purposes as the Reserve Accounts or otherwise. Without limiting any other provisions of this Agreement or any other Loan Document, the Reserve Accounts may be established and held in such name or names as Lender or its loan servicer, as agent for Lender, shall deem appropriate, including, without limitation, in the name of Lender or such loan servicer as agent for Lender. In the case of any Reserve Account which is held in a commingled account, Lender or its loan servicer, as applicable, shall maintain records sufficient to enable it to determine at all times which portion of such account is related to the Loan. The Reserve Accounts are solely for the protection of Lender and Lender shall have no responsibility beyond the allowance of due credit for the sums actually received by Lender or beyond the reimbursement or payment of the costs and expenses for which such accounts were established in accordance with their terms. Upon assignment of the Loan by Lender, any Reserve Funds shall be turned over to the assignee and any responsibility of Lender as assignor shall terminate. The requirements of this Agreement concerning Reserve Accounts in no way supersede, limit or waive any other rights or obligations of the parties under any of the Loan Documents or under applicable law.

(g)Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in the Reserve Accounts or the Reserve Funds deposited therein or permit any Lien to attach thereto, except for the security interest granted in this Section 9.9, or any levy to be made thereon, or any UCC Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.

(h)Borrower will maintain the security interest created by this Section 9.9 as a first priority perfected security interest and will defend the right, title and interest of Lender in and to the Reserve Accounts and the Reserve Funds against the claims and demands of all Persons whomsoever. At any time and from time to time, upon the written request of Lender, and at the sole expense of Borrower, Borrower will promptly and duly execute and deliver such further instruments and documents and will take such further actions as Lender reasonably may request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted.

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ARTICLE 10
CASH MANAGEMENT

Section 10.1.Cash Management Account

(a)Borrower acknowledges and confirms that Borrower has established, and Borrower covenants that it shall maintain an Eligible Account into which Borrower shall, and shall cause Manager to, deposit or cause to be deposited all Rents and other revenue from the Property during the Cash Management Period or upon the occurrence of an Event of Default prior to the commencement of the Cash Management Period pursuant to the terms of Section 10.2 hereof (such account, the sub-accounts thereof, all funds at any time on deposit therein and any proceeds, replacements or substitutions of such account or funds therein, are referred to herein as the “Cash Management Account”).

(b)The Cash Management Account shall be in the name of Borrower for the benefit of Lender, provided that Borrower shall be the owner of all funds on deposit in such accounts for federal and applicable state and local tax purposes (except to the extent Lender retains any interest earned on the Cash Management Account for its own account following the occurrence and during the continuance of an Event of Default). Sums on deposit in the Cash Management Account shall not be invested except in such Permitted Investments as determined and directed by Lender and all income earned thereon shall be the income of Borrower and be applied to and become part of the Cash Management Account, to be disbursed in accordance with this Article 10. Lender shall have no liability for any loss resulting from the investment of funds in Permitted Investments in accordance with the terms and conditions of this Agreement.

(c)The Cash Management Account shall be subject to the exclusive dominion and control of Lender during the Cash Management Period or the continuance of an Event of Default and, except as otherwise expressly provided herein, neither Borrower, Manager nor any other party claiming on behalf of, or through, Borrower or Manager, shall have any right of withdrawal therefrom or any other right or power with respect thereto.

(d)Borrower agrees to pay the customary fees and expenses incurred in connection with maintaining the Cash Management Account.

(e)Lender shall be responsible for the performance only of such duties with respect to the Cash Management Account as are specifically set forth herein, and no duty shall be implied from any provision hereof. Lender shall not be under any obligation or duty to perform any act which would involve it in expense or liability or to institute or defend any suit in respect hereof, or to advance any of its own monies. Borrower shall indemnify and hold Lender and its directors, employees, officers and agents harmless from and against any loss, cost or damage (including, without limitation, reasonable attorneys’ fees and disbursements) incurred by such parties in connection with the Cash Management Account other than such as result from the gross negligence or willful misconduct of Lender or intentional nonperformance by Lender of its obligations under this Agreement.

Section 10.2.Deposits and Withdrawals

(a)Borrower represents, warrants and covenants that:

(i)Concurrently with the execution of this Agreement Borrower has executed and delivered to Lender an instruction letter in the form of Exhibit B attached hereto addressed to American Express (the “Tenant Direction Letter”). Upon the occurrence of

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an Event of Default or upon commencement of the Cash Management Period, Lender or Lender’s agent shall have the right to deliver the Tenant Direction Letter to American Express and all payments of Rent and other items payable under the American Express Lease shall thereafter be sent directly to the Cash Management Account;

(ii)On the occurrence of an Event of Default or the commencement of the Cash Management Period Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the Cash Management Account. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;

(iii)All Rents or other income from the Property received after the commencement of the Cash Management Period or the occurrence of an Event of Default shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of the Tenant Direction Letter, be deposited in the Cash Management Account within one (1) Business Day of receipt;

(iv)Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, during the Cash Management Period or the continuance of an Event of Default neither Borrower nor Manager shall terminate, amend, revoke or modify the Tenant Direction Letter in any manner whatsoever or direct or cause American Express to pay any amount in any manner other than as provided in the Tenant Direction Letter; and

(v)So long as any portion of the Debt remains outstanding, during the Cash Management Period or during the continuance of an Event of Default neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Cash Management Account into which revenues from the ownership and operation of the Property are deposited.

(b)Intentionally Omitted.

(c)If an Event of Default, shall have occurred and be continuing or during a Cash Management Period, on each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month immediately following the month during which the Cash Management Period commences, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:

(i)following a default by American Express under the American Express Lease, funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve

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Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.2;

(ii)funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;

(iii)funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;

(iv)funds sufficient to pay Operating Expenses (to the extent actually incurred) for the following month shall be allocated to the Operating Expense Reserve Account to be held and disbursed to pay Operating Expenses;

(v)funds in an amount equal to the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be withdrawn and paid to Lender to be applied to the principal amount of the Loan until the principal amount of the Loan is paid in lull.

(d)Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).

(e)If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Cash Management Account and transfers between any Reserve Account as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.

Section 10.3.        Security Interest

(a)To secure the full and punctual payment of the Debt and performance of all obligations of Borrower now or hereafter existing under this Agreement and the other Loan Documents, Borrower hereby grants to Lender a first-priority perfected security interest in each of the Accounts and the Account Collateral. Furthermore, Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any of the foregoing or permit any Lien to attach thereto or any levy to be made thereon or any UCC Financing Statements to be filed with respect thereto. Borrower will maintain the security

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interest created by this Section 10.3(a) as a first priority perfected security interest and will defend the right, title and interest of Lender in and to each of the Accounts and the Account Collateral against the claims and demands of all Persons whomsoever.

(b)Borrower authorizes Lender to file any financing statement or statements required by Lender to establish or maintain the validity, perfection and priority of the security interest granted herein in connection with the Cash Management Account. Borrower agrees that at any time and from time to time, at the expense of Borrower, Borrower will promptly and duly execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable, or that Lender may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereby (including, without limitation, any security interest in and to any Permitted Investments) or to enable Lender to exercise and enforce its rights and remedies hereunder.

(c)Upon the occurrence of an Event of Default, Lender may exercise any or all of its rights and remedies as a secured party, pledgee and lienholder with respect to the Accounts and the Account Collateral. Without limitation of the foregoing, upon any Event of Default, Lender may use the Accounts and the Account Collateral for any of the following purposes: (A) repayment of the Debt, including, but not limited to, principal prepayments and the prepayment premium applicable to such full or partial prepayment (as applicable); (B) reimbursement of Lender for all losses, fees, costs and expenses (including, without limitation, reasonable legal fees) suffered or incurred by Lender as a result of such Event of Default; (C) payment of any amount expended in exercising any or all rights and remedies available to Lender at law or in equity or under this Agreement or under any of the other Loan Documents; (D) payment of any item as required or permitted under this Agreement; or (E) any other purpose permitted by applicable law; provided, however, that any such application of funds shall not cure or be deemed to cure any Event of Default. Without limiting any other provisions hereof, each of the remedial actions described in the immediately preceding sentence shall be deemed to be a commercially reasonable exercise of Lender’s rights and remedies as a secured party with respect to the Accounts and the Account Collateral and shall not in any event be deemed to constitute a setoff or a foreclosure of a statutory banker’s lien. Nothing in this Agreement shall obligate Lender to apply all or any portion of the Accounts and the Account Collateral to effect a cure of any Event of Default, or to pay the Debt, or in any specific order of priority. The exercise of any or all of Lender’s rights and remedies under this Agreement or under any of the other Loan Documents shall not in any way prejudice or affect Lender’s right to initiate and complete a foreclosure under the Mortgage.

ARTICLE 11

EVENTS OF DEFAULT; REMEDIES

Section 11.1.        Event of Default

The occurrence of any one or more of the following events shall constitute an “Event of Default”:

(a)if any portion of the Debt is not paid on or prior to the tenth day following the date the same is due or if the entire Debt is not paid on or before the Maturity Date;

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(b)except as otherwise expressly provided in the Loan Documents, if any of the Taxes or Other Charges are not paid when the same are due and payable, unless there is sufficient money in the Tax and Insurance Reserve Account for payment of amounts then due and payable and Lender’s access to such money has not been constrained or restricted in any manner;

(c)should American Express cease to be a self-insurer or if the rating of American express issued by the Rating Agencies falls below the Trigger Rating, if (i) the Policies are not kept in full force and effect, or (ii) the Accord 28 (or similar) certificate is not delivered to Lender in accordance with Section 8.1;

(d)if Borrower breaches any covenant with respect to itself contained in Article 6 or any covenant contained in Article 7 hereof;

(e)if any representation or warranty of, or with respect to, Borrower or Borrower Principal, or any member, general partner, principal or beneficial owner of any of the foregoing, made herein, in any other Loan Document, or in any certificate, report, financial statement or other instrument or document furnished to Lender at the time of the closing of the Loan or during the term of the Loan shall have been false or misleading in any material respect when made;

(f)if (i) Borrower, or any managing member or general partner of Borrower, Borrower Principal, or American Express shall commence any case, proceeding or other action (A) under any Creditors Rights Laws, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii) there shall be commenced against Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of any order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (iv) Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due;

(g)if Borrower shall be in default beyond applicable notice and grace periods under any other mortgage, deed of trust, deed to secure debt or other security agreement covering any part of the Property, whether it be superior or junior in lien to the Mortgage;

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(h)if the Property becomes subject to any mechanic’s, materialman’s or other Lien other than a Lien for any Taxes or Other Charges not then due and payable and the Lien shall remain undischarged of record (by payment, bonding or otherwise) for a period of thirty (30) days;

(i)if any federal income tax lien is filed against Borrower, any member or general partner of Borrower, Borrower Principal, or the Property and same is not discharged of record (or bonded or insured to Lender’s satisfaction) within thirty (30) days after same is filed;

(j)if an uninsured judgment is filed against the Borrower in excess of $20,000 which is not vacated or discharged (or bonded or insured to Lender’s satisfaction) within 30 days;

(k)if any default occurs under any guaranty or indemnity executed in connection herewith and such default continues after the expiration of applicable grace periods, if any;

(l)if Borrower shall permit any event within its control to occur that would cause any REA to terminate without notice or action by any party thereto or would entitle any party to terminate any REA and the term thereof by giving notice to Borrower; or any REA shall be surrendered, terminated or canceled for any reason or under any circumstance whatsoever except as provided for in such REA; or any term of any REA shall be modified or supplemented unless permitted by the American Express Lease; or Borrower shall fail, within ten (10) Business Days after demand by Lender, to exercise its option to renew or extend the term (of any REA or shall fail or neglect to pursue diligently all actions necessary to exercise such renewal rights pursuant to such REA except as provided for in such REA; or

(m)if an American Express Lease Default shall occur under the American Express Lease; or

(n)if Borrower shall continue to be in default under any other term, covenant or condition of this Agreement or any of the Loan Documents for more than ten (10) days after notice from Lender in the case of any default which can be cured by the payment of a sum of money or for thirty (30) days after notice from Lender in the case of any other default, provided that if such default cannot reasonably be cured within such thirty (30) day period and Borrower shall have commenced to cure such default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for so long as it shall require Borrower in the exercise of due diligence to cure such default, it being agreed that no such extension shall be for a period in excess of one hundred twenty (120) days.

Section 11.2.        Remedies

(a)Upon the occurrence of an Event of Default (other than an Event of Default described in Section 11.1(1) above) and at any time thereafter Lender may, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, take such action, without, notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in the Property, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents against Borrower and the Property,

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including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in Section 11.1(f) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.

(b)Upon the occurrence of an Event of Default, all or any one or more of the rights, powers, privileges and other remedies available to Lender against Borrower under this Agreement or any of the other Loan Documents executed and delivered by, or applicable to, Borrower or at law or in equity may be exercised by Lender at any time and from time to time, whether or not all or any of the Debt shall be declared due and payable, and whether or not Lender shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Loan Documents with respect to the Property. Any such actions taken by Lender shall be cumulative and concurrent and may be pursued independently, singularly, successively, together or otherwise, at such time and in such order as Lender may determine in its sole discretion, to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of Lender permitted by law, equity or contract or as set forth herein or in the other Loan Documents.

ARTICLE 12

ENVIRONMENTAL PROVISIONS

Section 12.1.        Environmental Representations and Warranties

Borrower represents and warrants, except as disclosed in an Environmental Report of the Property and information that Borrower knows that: (a) there are no Hazardous Materials or underground storage tanks in, on, or under the Property, except those that are both (i) in compliance with Environmental Laws and with permits issued pursuant thereto (if such permits are required), if any, and (ii) either (A) in the case of Hazardous Materials, in amounts not in excess of that necessary to operate the Property for the purposes set forth herein or (B) fully disclosed to and approved by Lender in writing pursuant to an Environmental Report; (b) there are no past, present or threatened Releases of Hazardous Materials in violation of any Environmental Law or which would require remediation by a Governmental Authority in, on, under or from the Property except as described in the Environmental Report; (c) there is no threat of any Release of Hazardous Materials migrating to the Property except as described in the Environmental Report; (d) there is no past or present non-compliance with Environmental Laws, or with permits issued pursuant thereto, in connection with the Property except as described in the Environmental Report; (e) Borrower does not know of, and has not received, any written or oral notice or other communication from any Person relating to Hazardous Materials in, on, under or from the Property; (f) the Property is free of Mold; and (g) Borrower has truthfully and fully provided to Lender, in writing, any and all information relating to environmental conditions in, on, under or from the Property known to Borrower or contained in Borrower’s files and records, including but not limited to any reports relating to Hazardous Materials in, on, under or migrating to or from the Property and/or to the environmental condition of or the presence of Mold at the Property.

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Section 12.2.        Environmental Covenants

Borrower covenants and agrees that so long as Borrower owns, manages and is in possession of the operation of the Property: (a) all uses and operations on or of the Property, whether by Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto; (b) there shall be no Releases of Hazardous Materials in, on, under or from the Property; (c) there shall be no Hazardous Materials in, on, or under the Property, except those that are both (i) in compliance with all Environmental Laws and with permits issued pursuant thereto, if and to the extent required, and (ii) (A) in amounts not in excess of that necessary to operate the Property for the purposes set forth herein or (B) fully disclosed to and approved by Lender in writing or (C) with respect to Mold, not in a condition, location, or of a type which may pose a risk to human health or safety or the environment or which may result in damage to or would adversely affect or impair the value or marketability of the Property; (d) Borrower shall keep the Property free and clear of all Environmental Liens; (c) Borrower shall, at its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to Section 12,4 below, including but not limited to providing all relevant information and making knowledgeable persona available for interviews; (f) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender, upon Lender’s reasonable belief that the Properly is not in full compliance with all Environmental Laws, and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (g) Borrower shall keep the Property free of Mold; and (h) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender to (i) reasonably effectuate remediation of any Hazardous Materials in, on, under or from the Property; and (ii) comply with any Environmental Law; (i) Borrower shall not allow any tenant or other user of the Property to violate any Environmental Law; and (j) Borrower shall immediately notify Lender in writing after it has become aware of (A) any presence or Release or threatened Release of Hazardous Materials in, on, under, from or migrating towards the Property; (B) any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien against the Property; (D) any required or proposed remediation of environmental conditions relating to the Property; and (E) any written or oral notice or other communication of which Borrower becomes aware from any source whatsoever (including but not limited to a Governmental Authority) relating in any way to Hazardous Materials. Any failure of Borrower to perform its obligations pursuant to this Section 12.2 shall constitute bad faith waste with respect to the Property.

Section 12.3.        Lender’s Rights

Lender and any other Person designated by Lender, including but not limited to any representative of a Governmental Authority, and any environmental consultant, and any receiver appointed by any court of competent jurisdiction, shall have the right, but not the obligation, to enter upon the Property at all reasonable times to assess any and all aspects of the environmental condition of the Property and its use, including but not limited to conducting any environmental assessment or audit (the scope of which shall be determined in Lender’s sole discretion) and taking samples of soil, groundwater or other water, air, or building materials, and conducting

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other invasive testing. Borrower shall cooperate with and provide access to Lender and any such person or entity designated by Lender.

Section 12.4.        Operations and Maintenance Programs

If recommended by the Environmental Report or any other environmental assessment or audit of the Property, Borrower shall establish and comply with an operations and maintenance program with respect to the Property, in form and substance reasonably acceptable to Lender, prepared by an environmental consultant reasonably acceptable to Lender, which program shall address any asbestos-containing material or lead based paint that may now or in the future be detected at or on the Property. Without limiting the generality of the preceding sentence, Lender may require (a) periodic notices or reports to Lender in form, substance and at such intervals as Lender may specify, (b) an amendment to such operations and maintenance program to address changing circumstances, laws or other matters, (c) at Borrower’s sole expense, supplemental examination of the Property by consultants specified by Lender, (d) access to the Property by Lender, its agents or servicer, to review and assess the environmental condition of the Property and Borrower’s compliance with any operations and maintenance program, and (e) variation of the operations and maintenance program in response to the reports provided by any such consultants.

Section 12.5.        Environmental Definitions

“Environmental Law” means any present and future federal, state and local laws, statutes, ordinances, rules, regulations, standards, policies and other government directives or requirements, as well as common law, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act and the Resource Conservation and Recovery Act, that apply to Borrower or the Property and relate to Hazardous Materials or protection of human health or the environment. “Environmental Liens” means all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of Borrower or any other Person. “Environmental Report” means the written reports resulting from the environmental site assessments of the Property delivered to Lender in connection with the Loan. “Hazardous Materials” shall mean petroleum and petroleum products and compounds containing them, including gasoline, diesel fuel and oil; explosives, flammable materials; radioactive materials; polychlorinated biphenyls and compounds containing them; lead and lead-based paint; asbestos or asbestos-containing materials in any form that is or could become friable; underground or above-ground storage tanks, whether empty or containing any substance; any substance the presence of which on the Property is prohibited by any federal, state or local authority; any substance that requires special handling; and any other material or substance now or in the future defined as a “hazardous substance,” “hazardous material”, “hazardous waste”, “toxic substance”, “toxic pollutant”, “contaminant”, or “pollutant” within the meaning of any Environmental Law. “Mold” shall mean any mold, fungi, bacterial or microbial matter present at or in the Property, including, without limitation, building materials which is in a condition, location or a type which may pose a risk to human health or safety or the environment, may result in damage to or would adversely affect or impair the value or marketability of the Property. “Release” of any Hazardous Materials includes but is not limited to any release, deposit, discharge, emission, leaking, spilling, seeping, migrating, injecting,

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pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Materials.

ARTICLE 13
SECONDARY MARKET

Section 13.1.        Transfer of Loan

Lender may, at any time, sell, transfer or assign the Loan Documents, or grant participations therein (“Participations”) or syndicate the Loan (“Syndication”) or issue mortgage pass-through certificates or other securities evidencing a beneficial interest in a rated or unrated public offering or private placement (“Securities”) (a Syndication or the issuance of Participations and/or Securities, a “Securitization”).

Section 13.2.        Delegation of Servicing

At the option of Lender, the Loan may be serviced by a servicer/trustee selected by Lender and Lender may delegate all or any portion of its responsibilities under this Agreement and the other Loan Documents to such servicer/trustee pursuant to a servicing agreement between Lender and such servicer/trustee.

Section 13.3.        Dissemination of Information

Lender may forward to each purchaser, transferee, assignee, or servicer of, and each participant, or investor in, the Loan, or any Participations and/or Securities or any of their respective successors (collectively, the “Investor”) or any Rating Agency rating the Loan, or any Participations and/or Securities, each prospective Investor, and any organization maintaining databases on the underwriting and performance of commercial mortgage loans, all documents and information which Lender now has or may hereafter acquire relating to the Debt and to Borrower, any managing member or general partner thereof, Borrower Principal, and the Property, including financial statements, whether furnished by Borrower or otherwise, as Lender determines necessary or desirable. Borrower irrevocably waives any and all rights it may have under applicable Legal Requirements to prohibit such disclosure, including but not limited to any right of privacy.

Section 13.4.        Cooperation

Borrower and Borrower Principal agree to cooperate with Lender in connection with any sale or transfer of the Loan or any Participation and/or Securities created pursuant to this Article 13, including, without limitation, (a) the delivery of an estoppel certificate required in accordance with Section 5.12(a) and such other documents as may be reasonably requested by Lender, (b) the execution of such amendments to the Loan Documents as may be requested by the holder of the Note or the Rating Agencies or otherwise to effect the Securitization including, without limitation, bifurcation of the Loan into two or more components and/or separate notes; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, except in connection with a bifurcation of the Loan which may result in varying fixed interest rates and amortization schedules, but which shall

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have the same initial weighted average coupon of the original Note, or (ii) in the reasonable judgment of Borrower, modify or amend any other material economic term of the Loan, or (iii) in the reasonable judgment of Borrower, materially increase Borrower’s obligations and liabilities under the Loan Documents, and (c) make changes to the organizational documents of Borrower and its principals and/or use its best efforts to cause changes to the legal opinions delivered by Borrower in connection with the Loan, provided, that such changes shall not result in a material adverse economic effect to Borrower. Borrower shall also furnish and Borrower and Borrower Principal consent to Lender furnishing to such Investors or such prospective Investors or such Rating Agency any and all information concerning the Property, the American Express Lease, the financial condition of Borrower or Borrower Principal as may be requested by Lender, any Investor, any prospective Investor or any Rating Agency in connection with any sale or transfer of the Loan or any Participations or Securities. Neither Borrower nor Borrower Principal shall be responsible for any costs incurred by Lender in connection with a Securitization.

ARTICLE 14
INDEMNIFICATIONS

Section 14.1.        General Indemnification

Borrower shall indemnify, defend and hold harmless the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising out of or in any way relating to any one or more of the following: (a) any accident, injury to or death of persons or loss of or damage to property occurring in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (b) any use, nonuse or condition in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (c) performance of any labor or services or the furnishing of any materials or other property in respect of the Property or any part thereof; (d) any failure of the Property to be in compliance with any applicable Legal Requirements; (e) any and all claims and demands whatsoever which may be asserted against Lender by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants, or agreements contained in any Lease; (f) the holding or investing of the Reserve Accounts, or (g) the payment of any commission, charge or brokerage fee to anyone which may be payable in connection with the funding of the Loan (collectively, the “Indemnified Liabilities”); provided, however, that Borrower shall not have any obligation to Lender hereunder to the extent that such Indemnified Liabilities arise from the gross negligence, illegal acts, fraud or willful misconduct of Lender. To the extent that the undertaking to indemnify, defend and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, Borrower shall pay the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Lender.

Section 14.2.        Mortgage and Intangible Tax Indemnification

Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising out of or in any

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way relating to any tax on the making and/or recording of the Mortgage, the Note or any of the other Loan Documents, but excluding any income, franchise or other similar taxes.

Section 14.3.        ERISA Indemnification

Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses (including, without limitation, reasonable attorneys’ fees and costs incurred in the investigation, defense, and settlement of Losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Lender’s sole discretion) that Lender may incur, directly or indirectly, as a result of a default under Section 4.9 or Section 5.18 of this Agreement.

Section 14.4.        Survival

The obligations and liabilities of Borrower and Borrower Principal under this Article 14 shall fully survive indefinitely notwithstanding any termination, satisfaction, assignment, entry of a judgment of foreclosure, exercise of any power of sale, or delivery of a deed in lieu of foreclosure of the Mortgage.

ARTICLE 15
EXCULPATION

Section 15.1.        Exculpation

(a)Except as otherwise provided herein or in the other Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to perform and observe the obligations contained herein or in the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or Borrower Principal, except that Lender may bring a foreclosure action, action for specific performance or other appropriate action or proceeding to enable Lender to enforce and realize upon this Agreement, the Note, the Mortgage and the other Loan Documents, and the interest in the Property, the Rents (following an Event of Default) and any other collateral given to Lender created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower or Borrower Principal, as applicable, only to the extent of Borrower’s or Borrower Principal’s interest in the Property, in the Rents and in any other collateral given to Lender. Lender, by accepting this Agreement, the Note, the Mortgage and the other Loan Documents, agrees that it shall not, except as otherwise provided in this Section 15.1, sue for, seek or demand any deficiency judgment against Borrower or Borrower Principal in any such action or proceeding, under or by reason of or under or in connection with this Agreement, the Note, the Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note, the Mortgage or the other Loan Documents; (ii) impair the right of Lender to name Borrower or Borrower Principal as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Mortgage; (iii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Section 12.6

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and Article 14 of this Agreement), environmental indemnity, guaranty, master lease or similar instrument made in connection with this Agreement, the Note, the Mortgage and the other Loan Documents; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of the assignment of leases provisions contained in the Mortgage; or (vi) impair the right of Lender to obtain a deficiency judgment or other judgment on the Note against Borrower or Borrower Principal if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided however, Lender shall only enforce such judgment to the extent of the Insurance Proceeds and/or Awards.

(b)Notwithstanding the provisions of this Section 15.1 to the contrary, Borrower and Borrower Principal shall be personally liable to Lender on a joint and several basis for Losses due to:

(i)fraud or intentional misrepresentation by Borrower, Borrower Principal or any other Affiliate of Borrower or Borrower Principal in connection with the execution and the delivery of this Agreement, the Note, the Mortgage, any of the other Loan Documents, or any certificate, report, financial statement or other instrument or document furnished to Lender at the time of the closing of the Loan or during the term of the Loan;

(ii)Borrower’s misapplication or misappropriation of Rents received by Borrower after the occurrence of an Event of Default;

(iii)Borrower’s misapplication or misappropriation of tenant security deposits or Rents collected in advance;

(iv)the misapplication or the misappropriation of Insurance Proceeds or Awards;

(v)Borrower’s failure to pay Taxes, Other Charges (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms hereof and there exists no impediment to Lender’s utilization thereof), charges for labor or materials or other charges that can create liens on the Property beyond any applicable notice and cure periods specified herein;

(vi)Borrower’s failure to return or to reimburse Lender for all Personal Property taken from the Property by or on behalf of Borrower and not replaced with Personal Property of the same utility and of the same or greater value;

(vii)any act of actual waste or arson by Borrower, any principal, Affiliate, member or general partner thereof or by Borrower Principal, any principal, Affiliate, member or general partner thereof; or

(viii)Borrower’s failure following any Event of Default to deliver to Lender upon demand all Rents and books and records relating to the Property.

(c)Notwithstanding the foregoing, the agreement of Lender not to pursue recourse liability as set forth in subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower and Borrower

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Principal on a joint and several basis in the event (i) of a breach by Borrower or Borrower Principal of any of the covenants set forth in Article 6 hereof, to the extent that such breach is (A) material and (B) is not cured within fifteen (15) days of the earlier to occur of notice from Lender or Borrower’s knowledge of such breach, (ii) of a breach of any of the covenants set forth in Article 7 hereof, (iii) the Property or any part thereof shall become an asset in a voluntary bankruptcy or insolvency proceeding of Borrower, (iv) Borrower, Borrower Principal or any Affiliate, officer, director, or representative which controls, directly or indirectly, Borrower or Borrower Principal files, or joins in the filing of, an involuntary petition against Borrower under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (v) Borrower files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; or (vi) any Affiliate, officer, director, or representative which controls Borrower consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of the Property.

(d)Nothing herein shall be deemed to be a waiver of any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provision of the U.S. Bankruptcy Code to file a claim for the full amount of the indebtedness secured by the Mortgage or to require that all collateral shall continue to secure all of the indebtedness owing to Lender in accordance with this Agreement, the Note, the Mortgage or the other Loan Documents.

ARTICLE 16
NOTICES

Section 16.1.        Notices

All notices, consents, approvals and requests required or permitted hereunder or under any other Loan Document shall be given in writing and shall be effective for all purposes if hand delivered or sent by (a) certified or registered United States mail, postage prepaid, return receipt requested, (b) expedited prepaid overnight delivery service, either commercial or United States Postal Service, with proof of attempted delivery, or by (c) telecopier (with answer back acknowledged provided an additional notice is given pursuant to subsection (b) above), addressed as follows (or at such other address and Person as shall be designated from time to time by any party hereto, as the case may be, in a written notice to the other parties hereto in the manner provided for in this Section):

If to Lender:	Bank of America, N.A.
	Capital Markets Servicing Group
	900 West Trade Street, Suite 650
	NCI-026-06-01
	Charlotte, North Carolina 28255
	Attn: Servicing Manager
	Telephone No: (866) 531-0957

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If to Borrower:	Inland Western Greensboro Airport Center, L.L.C.
	c/o Inland Real Estate Investment Corporation
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Attention: Roberta Matlin, Vice President
	Facsimile No.: 630-218-4965
With a copy to:	The Inland Real Estate Group, Inc.
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Attention: General Counsel
	Facsimile No.: 630-218-4900
If to Borrower Principal:	Inland Western Retail Real Estate Trust, Inc.
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Roberta Matlin, Vice President
	Facsimile No.: 630-218-4965
With a copy to:	The Inland Real Estate Group, Inc.
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Attention: General Counsel
	Facsimile No.: 630-218-4900

A notice shall be deemed to have been given: in the case of hand delivery, at the time of delivery; in the case of registered or certified mail, when delivered or the first attempted delivery on a Business Day; or in the case of expedited prepaid delivery and telecopy, upon the first attempted delivery on a Business Day.

ARTICLE 17
FURTHER ASSURANCES

Section 17.1.        Replacement Documents

Upon receipt of an affidavit of an officer of Lender as to the loss, theft, destruction or mutilation of the Note or any other Loan Document which is not of public record and, in the case of such mutilation upon surrender and cancellation of such Note or other Loan Document, Borrower will issue in lieu thereof a replacement Note or other Loan Document, dated the date of such lost, stolen, destroyed or mutilated Note or other Loan Document in the same principal amount thereof and otherwise of like tenor.

Section 17.2.        Recording of Mortgage, etc.

Borrower forthwith upon the execution and delivery of the Mortgage and thereafter, from time to time, will cause the Mortgage and any of the other Loan Documents creating a lien or security interest or evidencing the lien hereof upon the Property and each instrument of further

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assurance to be filed, registered or recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect and perfect the lien or security interest hereof upon, and the interest of Lender in, the Property. Borrower will pay all taxes, filing, registration or recording fees, and all expenses incident to the preparation, execution, acknowledgment and/or recording of the Note, the Mortgage, the other Loan Documents, any note, deed of trust or mortgage supplemental hereto, any security instrument with respect to the Property and any instrument of further assurance, and any modification or amendment of the foregoing documents, and all federal, state, county and municipal taxes, duties, imposts, assessments and charges arising out of or in connection with the execution and delivery of the Mortgage, any deed of trust or mortgage supplemental hereto, any security instrument with respect to the Property or any instrument of further assurance, and any modification or amendment of the foregoing documents, except where prohibited by law so to do.

Section 17.3.        Further Acts, Etc.

Borrower will, at the cost of Borrower (except with respect to costs incurred by Lender, for which Lender shall be responsible), do, execute, acknowledge and deliver all and every further acts, deeds, conveyances, deeds of trust, mortgages, assignments, security agreements, control agreements, notices of assignments, transfers and assurances as Lender shall, from time to time, reasonably require, for the better assuring, conveying, assigning, transferring, and confirming unto Lender the property and rights hereby mortgaged, deeded, granted, bargained, sold, conveyed, confirmed, pledged, assigned, warranted and transferred or intended now or hereafter so to be, or which Borrower may be or may hereafter become bound to convey or assign to Lender, or for carrying out the intention or facilitating the performance of the terms of this Agreement or for filing, registering or recording the Mortgage, or for complying with all Legal Requirements. Borrower, on demand, will execute and deliver, and in the event it shall fail to so execute and deliver, hereby authorizes Lender to execute in the name of Borrower or without the signature of Borrower to the extent Lender may lawfully do so, one or more financing statements and financing statement amendments to evidence more effectively, perfect and maintain the priority of the security interest of Lender in the Property. Borrower grants to Lender an irrevocable power of attorney coupled with an interest for the purpose of exercising and perfecting any and all rights and remedies available to Lender at law and in equity, including without limitation, such rights and remedies available to Lender pursuant to this Section 17.3.

Section 17.4.        Changes in Tax, Debt, Credit and Documentary Stamp Laws

(a)If any law is enacted or adopted or amended after the date of this Agreement which deducts the Debt from the value of the Property for the purpose of taxation or which imposes a tax, either directly or indirectly, on the Debt or Lender’s interest in the Property, Borrower will pay the tax, with interest and penalties thereon, if any. If Lender is advised by counsel chosen by it that the payment of tax by Borrower would be unlawful or taxable to Lender or unenforceable or provide the basis for a defense of usury then Lender shall have the option by written notice of not less than one hundred eighty (80) days to declare the Debt immediately due and payable.

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(b)Borrower will not claim or demand or be entitled to any credit or credits on account of the Debt for any part of the Taxes or Other Charges assessed against the Property, or any part thereof, and no deduction shall otherwise be made or claimed from the assessed value of the Property, or any part thereof, for real estate tax purposes by reason of the Mortgage or the Debt. If such claim, credit or deduction shall be required by law, Lender shall have the option, by written notice of not less than one hundred eighty (80) days, to declare the Debt immediately due and payable.

If at any time the United States of America, any State thereof or any subdivision of any such State shall require revenue or other stamps to be affixed to the Note, the Mortgage, or any of the other Loan Documents or impose any other tax or charge on the same, Borrower will pay for the same, with interest and penalties thereon, if any.

Section 17.5.        Expenses

Borrower covenants and agrees to pay or, if Borrower fails to pay, to reimburse, Lender upon receipt of written notice from Lender for all reasonable costs and expenses (including reasonable, actual attorneys’ fees and disbursements and the allocated costs of internal legal services and all actual disbursements of internal counsel) reasonably incurred by Lender in accordance with this Agreement in connection with (a) the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents and the consummation ofthe transactions contemplated hereby and thereby and all the costs of furnishing all opinions by counsel for Borrower (including without limitation any opinions requested by Lender as to any legal matters arising under this Agreement or the other Loan Documents with respect to the Property); (b) Borrower’s ongoing performance of and compliance with Borrower’s respective agreements and covenants contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date, including, without limitation, confirming compliance with environmental and insurance requirements; (c) following a request by Borrower, Lender’s ongoing performance and compliance with all agreements and conditions contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date; (d) the negotiation, preparation, execution, delivery and administration of any consents, amendments, waivers or other modifications to this Agreement and the other Loan Documents and any other documents or matters requested by Lender; (e) securing Borrower’s compliance with any requests made pursuant to the provisions of this Agreement; (f) the filing and recording fees and expenses, title insurance and reasonable fees and expenses of counsel for providing to Lender all required legal opinions, and other similar expenses incurred in creating and perfecting the Lien in favor of Lender pursuant to this Agreement and the other Loan Documents; (g) enforcing or preserving any rights, in response to third party claims or the prosecuting or defending of any action or proceeding or other litigation, in each case against, under or affecting Borrower, this Agreement, the other Loan Documents, the Property, or any other security given for the Loan; and (h) enforcing any obligations of or collecting any payments due from Borrower under this Agreement, the other Loan Documents or with respect to the Property or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or of any insolvency or bankruptcy proceedings; provided, however, that Borrower shall not be liable for the payment of any such costs and expenses to the extent the same arise by reason of the gross negligence, illegal acts, fraud or willful misconduct of Lender.

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ARTICLE 18
WAIVERS

Section 18.1.        Remedies Cumulative; Waivers

The rights, powers and remedies of Lender under this Agreement shall be cumulative and not exclusive of any other right, power or remedy which Lender may have against Borrower or Borrower Principal pursuant to this Agreement or the other Loan Documents, or existing at law or in equity or otherwise. Lender’s rights, powers and remedies may be pursued singularly, concurrently or otherwise, at such time and in such order as Lender may determine in Lender’s sole discretion. No delay or omission to exercise any remedy, right or power accruing upon an Event of Default shall impair any such remedy, right or power or shall be construed as a waiver thereof, but any such remedy, right or power may be exercised from time to time and as often as may be deemed expedient. A waiver of one Default or Event of Default with respect to Borrower shall not be construed to be a waiver of any subsequent Default or Event of Default by Borrower or to impair any remedy, right or power consequent thereon.

Section 18.2.        Modification, Waiver in Writing

No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement, or of the Note, or of any other Loan Document, nor consent to any departure by Borrower therefrom, shall in any event be effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given. Except as otherwise expressly provided herein, no notice to, or demand on Borrower, shall entitle Borrower to any other or future notice or demand in the same, similar or other circumstances.

Section 18.3.        Delay Not a Waiver

Neither any failure nor any delay on the part of Lender in insisting upon strict performance of any term, condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under the Note or under any other Loan Document, or any other instrument given as security therefor, shall operate as or constitute a waiver thereof, nor shall a single or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege. In particular, and not by way of limitation, by accepting payment after the due date of any amount payable under this Agreement, the Note or any other Loan Document, Lender shall not be deemed to have waived any right either to require prompt payment when due of all other amounts due under this Agreement, the Note or the other Loan Documents, or to declare a default for failure to effect prompt payment of any such other amount.

Section 18.4.        Trial by Jury

BORROWER, BORROWER PRINCIPAL AND LENDER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH

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REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER, BORROWER PRINCIPAL AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF LENDER, BORROWER PRINCIPAL AND BORROWER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER, BORROWER PRINCIPAL AND LENDER.

Section 18.5.        Waiver of Notice

Borrower shall not be entitled to any notices of any nature whatsoever from Lender except with respect to matters for which this Agreement or the other Loan Documents specifically and expressly provide for the giving of notice by Lender to Borrower and except with respect to matters for which Borrower is not, pursuant to applicable Legal Requirements, permitted to waive the giving of notice. Borrower hereby expressly waives the right to receive any notice from Lender with respect to any matter for which this Agreement or the other Loan Documents do not specifically and expressly provide for the giving of notice by Lender to Borrower.

Section 18.6.        Remedies of Borrower

In the event that a claim or adjudication is made that Lender or its agents have acted unreasonably or unreasonably delayed acting in any case where by law or under this Agreement or the other Loan Documents, Lender or such agent, as the case may be, has an obligation to act reasonably or promptly, Borrower agrees that neither Lender nor its agents shall be liable for any monetary damages, and Borrower’s sole remedies shall be limited to commencing an action seeking injunctive relief or declaratory judgment. The parties hereto agree that any action or proceeding to determine whether Lender has acted reasonably shall be determined by an action seeking declaratory judgment. Lender agrees that, in such event, it shall cooperate in expediting any action seeking injunctive relief or declaratory judgment.

Section 18.7.        Waiver of Marshalling of Assets

To the fullest extent permitted by law, Borrower, for itself and its successors and assigns, waives all rights to a marshalling of the assets of Borrower, Borrower’s partners and others with interests in Borrower, and of the Property, and agrees not to assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce or affect the right of Lender under the Loan Documents to a sale of the Property for the collection of the Debt without any prior or different resort for collection or of the right of Lender to the payment of the Debt out of the net proceeds of the Property in preference to every other claimant whatsoever.

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Section 18.8.        Waiver of Statute of Limitations

Borrower hereby expressly waives and releases, to the fullest extent permitted by law, the pleading of any statute of limitations as a defense to payment of the Debt or performance of its Other Obligations.

Section 18.9.        Waiver of Counterclaim

Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Lender or its agents.

ARTICLE 19
GOVERNING LAW

Section 19.1.        Choice of Law

This Agreement shall be deemed to be a contract entered into pursuant to the laws of the State and shall in all respects be governed, construed, applied and enforced in accordance with the laws of the State and applicable laws of the United States of America, provided, however, that with respect to the security interest in each of the Reserve Accounts, and the Cash Management Account, the laws of the state where each such account is located shall apply.

Section 19.2.        Severability

Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Section 19.3.        Preferences

Lender shall have the continuing and exclusive right to apply or reverse and reapply any and all payments by Borrower to any portion of the obligations of Borrower hereunder. To the extent Borrower makes a payment or payments to Lender, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any Creditors Rights Laws, state or federal law, common law or equitable cause, then, to the extent of such payment or proceeds received, the obligations hereunder or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by Lender.

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ARTICLE 20

MISCELLANEOUS

Section 20.1.        Survival

This Agreement and all covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the making by Lender of the Loan and the execution and delivery to Lender of the Note, and shall continue in full force and effect so long as all or any of the Debt is outstanding and unpaid unless a longer period is expressly set forth herein or in the other Loan Documents. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the legal representatives, successors and assigns of such party. All covenants, promises and agreements in this Agreement, by or on behalf of Borrower, shall inure to the benefit of the legal representatives, successors and assigns of Lender.

Section 20.2.        Lender’s Discretion

Whenever pursuant to this Agreement, Lender exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Lender, the decision of Lender to approve or disapprove or to decide whether arrangements or terms are satisfactory or not satisfactory shall (except as is otherwise specifically herein provided) be in the sole discretion of Lender and shall be final and conclusive.

Section 20.3.        Headings

The Article and/or Section headings and the Table of Contents in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

Section 20.4.        Cost of Enforcement

In the event (a) that the Mortgage is foreclosed in whole or in part, (b) of the bankruptcy, insolvency, rehabilitation or other similar proceeding in respect of Borrower or any of its constituent Persons or an assignment by Borrower or any of its constituent Persons for the benefit of its creditors, or (c) Lender exercises any of its other remedies under this Agreement or any of the other Loan Documents, Borrower shall be chargeable with and agrees to pay all costs of collection and defense, including attorneys’ fees and costs, incurred by Lender or Borrower in connection therewith and in connection with any appellate proceeding or post-judgment action involved therein, together with all required service or use taxes.

Section 20.5.        Schedules Incorporated

The Schedules annexed hereto are hereby incorporated herein as a part of this Agreement with the same effect as if set forth in the body hereof.

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Section 20.6.        Offsets, Counterclaims and Defenses

Any assignee of Lender’s interest in and to this Agreement, the Note and the other Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses which are unrelated to such documents which Borrower may otherwise have against any assignor of such documents, and no such unrelated counterclaim or defense shall be interposed or asserted by Borrower in any action or proceeding brought by any such assignee upon such documents and any such right to interpose or assert any such unrelated offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by Borrower.

Section 20.7.        No Joint Venture or Partnership; No Third Party Beneficiaries

(a)Borrower and Lender intend that the relationships created hereunder and under the other Loan Documents be solely that of borrower and lender. Nothing herein or therein is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower and Lender nor to grant Lender any interest in the Property other than that of mortgagee, beneficiary or lender.

(b)This Agreement and the other Loan Documents are solely for the benefit of Lender and Borrower and nothing contained in this Agreement or the other Loan Documents shall be deemed to confer upon anyone other than Lender and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or therein. All conditions to the obligations of Lender to make the Loan hereunder are imposed solely and exclusively for the benefit of Lender and no other Person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lender will refuse to make the Loan in the absence of strict compliance with any or all thereof and no other Person shall under any circumstances be deemed to be a beneficiary of such conditions, any or all of which may be freely waived in whole or in part by Lender if, in Lender’s sole discretion, Lender deems it advisable or desirable to do so.

(c)The general partners, members, principals and (if Borrower is a trust) beneficial owners of Borrower are experienced in the ownership and operation of properties similar to the Property, and Borrower and Lender are relying solely upon such expertise and business plan in connection with the ownership and operation of the Property. Borrower is not relying on Lender’s expertise, business acumen or advice in connection with the Property.

(d)Notwithstanding anything to the contrary contained herein, Lender is not undertaking the performance of (i) any obligations under the Leases; or (ii) any obligations with respect to such agreements, contracts, certificates, instruments, franchises, permits, trademarks, licenses and other documents.

(e)By accepting or approving anything required to be observed, performed or fulfilled or to be given to Lender pursuant to this Agreement, the Mortgage, the Note or the other Loan Documents, including, without limitation, any officer’s certificate, balance sheet, statement of profit and loss or other financial statement, survey, appraisal, or insurance policy, Lender shall not be deemed to have warranted, consented to, or affirmed the sufficiency, the legality or

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effectiveness of same, and such acceptance or approval thereof shall not constitute any warranty or affirmation with respect thereto by Lender.

(f)Borrower recognizes and acknowledges that in accepting this Agreement, the Note, the Mortgage and the other Loan Documents, Lender is expressly and primarily relying on the truth and accuracy of the representations and warranties set forth in Article 4 of this Agreement without any obligation to investigate the Property and notwithstanding any investigation of the Property by Lender; that such reliance existed on the part of Lender prior to the date hereof, that the warranties and representations are a material inducement to Lender in making the Loan; and that Lender would not be willing to make the Loan and accept this Agreement, the Note, the Mortgage and the other Loan Documents in the absence of the warranties and representations as set forth in Article 4 of this Agreement.

Section 20.8.        Publicity

All news releases, publicity or advertising by Borrower or its Affiliates through any media intended to reach the general public which refers to the Loan, Lender, Banc of America Securities LLC, or any of their Affiliates shall be subject to the prior written approval of Lender, not to be unreasonably withheld. Lender shall be permitted to make any news, releases, publicity or advertising by Lender or its Affiliates through any media intended to reach the general public which refers to the Loan, the Property, Borrower, Borrower Principal and their respective Affiliates without the approval of Borrower or any such Persons. Borrower also agrees that Lender may share any information pertaining to the Loan with Bank of America Corporation, including its bank subsidiaries, Banc of America Securities LLC and any other Affiliates of the foregoing, in connection with the sale or transfer of the Loan or any Participations and/or Securities created.

Section 20.9.        Conflict; Construction of Documents; Reliance

In the event of any conflict between the provisions of this Agreement and any of the other Loan Documents, the provisions of this Agreement shall control. The parties hereto acknowledge that they were represented by competent counsel in connection with the negotiation, drafting and execution of the Loan Documents and that such Loan Documents shall not be subject to the principle of construing their meaning against the party which drafted same. Borrower acknowledges that, with respect to the Loan, Borrower shall rely solely on its own judgment and advisors in entering into the Loan without relying in any manner on any statements, representations or recommendations of Lender or any parent, subsidiary or Affiliate of Lender. Lender shall not be subject to any limitation whatsoever in the exercise of any rights or remedies available to it under any of the Loan Documents or any other agreements or instruments which govern the Loan by virtue of the ownership by it or any parent, subsidiary or Affiliate of Lender of any equity interest any of them may acquire in Borrower, and Borrower hereby irrevocably waives the right to raise any defense or take any action on the basis of the foregoing with respect to Lender’s exercise of any such rights or remedies. Borrower acknowledges that Lender engages in the business of real estate financings and other real estate transactions and investments which may be viewed as adverse to or competitive with the business of Borrower or its Affiliates.

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Section 20.10.      Entire Agreement

This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and all prior agreements among or between such parties, whether oral or written between Borrower and Lender are superseded by the terms of this Agreement and the other Loan Documents.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written.

BORROWER:
INLAND WESTERN GREENSBORO AIRPORT CENTER, L.L.C., a Delaware limited liability company
By:		Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
		By:	/s/ Roberta S. Matlin
		Name:			Roberta S. Matlin
		Its:			Vice President
BORROWER PRINCIPAL:
Acknowledged and agreed to with respect to its obligations set forth in Article 4, Section 12.6, Article 13, Article 15 and Article 18 hereof:
INLAND WESTERN RETAIL REAL ESTATE TRUST INC., a Maryland corporation, its
By:	/s/ Roberta S. Matlin
	Name:			Roberta S. Matlin
	Title:			Vice President

[ADDITIONAL SIGNATURE PAGE TO FOLLOW]

LENDER:
BANK OF AMERICA, N.A., a national banking association
By:	/s/ Lisa K. McGee
	Name:	Lisa K. McGee
	Title:	Vice President

EXHIBIT A

Borrower Equity Ownership Structure

EXHIBIT B

Tenant Direction Letter

EX-10.467

Exhibit 10.467

Florida documentary stamp tax in the amount of $130,095.00 has been affixed to the recorded instrument securing this promissory note pursuant to Section 201.08, Florida Statutes

LOAN TERMS TABLE

Note Date: December 16, 2004	MERS No.:  8000101-0000000572-7
Borrower: INLAND WESTERN PLANTATION EXPRESS, L.L.C., a Delaware limited liability company
Original Principal Amount: $37,170,000.00	Loan No.: 58628
Initial Note Rate: 4.2675%	Servicing No.: 3190758
Revised Note Rate: As defined in Article 2	Borrower’s TIN: 20-1907986
Monthly Payment Amount: As defined in Article l(a)	Optional Prepayment Date: January 1, 2010
Lockout Period: From the date hereof through and including December 31, 2006
Maturity Date: January 1, 2015

PROMISSORY NOTE

FOR VALUE RECEIVED Borrower, having its principal place of business at 2901 Butterfield Road, Oak Brook, IL 60523, hereby unconditionally promises to pay to the order of BANK OF AMERICA, N.A., a national banking association, having an address at 214 North Tryon Street, Charlotte, North Carolina 28255 (“Lender”), the Original Principal Amount, in lawful money of the United States of America with interest thereon to be computed from the date of this Note at the Note Rate (as defined below), and to be paid in accordance with the terms set forth below. The Loan Terms Table set forth above is a part of this Note and all terms used in this Note which are defined in the Loan Terms Table shall have the meaning set forth therein. All capitalized terms not defined herein shall have the respective meanings set forth in that certain Loan Agreement dated the date hereof between Lender and Borrower (the “Loan Agreement”).

Article 1 – PAYMENT TERMS; MANNER OF PAYMENT

(a)Borrower hereby agrees to pay sums due under this Note as follows: an initial payment is due on the Closing Date for interest from the Closing Date through and including the last day of the calendar month in which the Closing Date occurs; and thereafter, except as may be adjusted in accordance with the last sentence of Section l(b), consecutive monthly installments of interest only in an amount calculated in accordance with Article 2 below (such amount, the “Monthly Payment Amount”) shall be payable pursuant to the terms hereof on the first (1st) day of each month beginning on February 1, 2005 (each such date through and including the Maturity Date, a “Scheduled Payment Date”) until the entire indebtedness evidenced hereby is fully paid, except that any remaining indebtedness, if not sooner paid, shall be due and payable on the Maturity Date. In addition to the foregoing, commencing on the Optional Prepayment Date and continuing on each Scheduled Payment Date thereafter, Borrower hereby agrees to pay all Excess Cash (as defined in the Loan Agreement) until the principal amount of this Note is paid in full, provided, however, the entire Debt, including all Accrued Interest (defined below), shall be due on the Maturity Date.

(b)Each payment by Borrower hereunder shall be made to P.O. Box 65585, Charlotte, NC 28265-0585, or at such other place as Lender may designate from time to time in writing. Whenever any payment hereunder shall be stated to be due on a day which is not a Business Day, such payment shall be made on the first Business Day preceding such scheduled due date. All payments made by Borrower hereunder or under the other Loan Documents shall be made irrespective of, and without any deduction for, any setoff, defense or counterclaims.

(c)Provided no Event of Default has occurred, (i) each Monthly Payment Amount made as scheduled on this Note shall be applied first to the payment of interest computed at the Initial Note Rate, and the balance toward the reduction of the principal amount of this Note, and (ii) each payment of Excess Cash made as required on this Note shall be applied first to the reduction of the principal amount of this Note until paid in full, and the balance to Accrued Interest until paid in full. All voluntary and involuntary prepayments on this Note shall be applied, to the extent thereof, to accrued but unpaid interest on the amount prepaid, to the remaining Principal Amount, and any other sums due and unpaid to the Lender in connection with the Loan, in such manner and order as Lender may elect in its sole and absolute discretion, including, but not limited to, application to principal installments in inverse order of maturity. Following the occurrence of an Event of Default, any payment made on this Note shall be applied to accrued but unpaid interest, late charges, accrued fees, the unpaid principal amount of this Note, and any other sums due and unpaid to Lender in connection with the Loan, in such manner and order as Lender may elect in its sole and absolute discretion.

(d)Remittances in payment of any part of the indebtedness other than in the required amount in immediately available U.S. funds shall not, regardless of any receipt or credit issued therefor, constitute payment until the required amount is actually received by the holder hereof in immediately available U.S. funds and shall be made and accepted subject to the condition that any check or draft may be handled for collection in accordance with the practices of the collecting bank or banks.

Article 2 - INTEREST

The Loan shall bear interest at a fixed rate per annum equal to the Note Rate. The “Note Rate” shall mean (a) from the date of this Note through but excluding the Optional Prepayment Date, the Initial Note Rate, and (b) from and after the Optional Prepayment Date through and including the date this Note is paid in full, the Revised Note Rate. The “Revised Note Rate” shall mean a rate per annum equal to the sum of (x) two percent (2.00%)and (y) the greater of (i) the Initial Note Rate and (ii) the sum of the Treasury Rate plus five percent (5.00%). The “Treasury Rate” shall mean the yield per annum calculated by the linear interpolation of yields, as reported in the Federal Reserve Statistical Release H.I5 – Selected Interest Rates under the heading “US government securities” and the subheading “Treasury constant maturities” for the week ending prior to the Optional Prepayment Date, of U.S. Treasury constant maturities with maturity dates (one longer and one shorter) most nearly approximating the Maturity Date. In the event H.15 is no longer published, Lender in its reasonable discretion shall select a comparable publication to determine the Treasury Rate. From and after the Optional Prepayment Date, interest in excess of the Initial Note Rate shall accrue and be added to the Debt and shall earn interest at the Revised Note Rate to the extent permitted by applicable law (“Accrued Interest”). Interest shall be computed on the basis of a three hundred sixty (360) day year consisting of

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twelve (12) months of thirty (30) days each. Except as otherwise set forth herein or in the other Loan Documents, interest shall be paid in arrears.

Article 3 - DEFAULT AND ACCELERATION

The Debt shall without notice become immediately due and payable at the option of Lender if any payment required in this Note is not paid prior to the tenth (10^th) day following the date when due or if not paid on the Maturity Date or on the happening of any other Event of Default.

Article 4 - PAYMENTS AFTER DEFAULT

Upon the occurrence and during the continuance of an Event of Default, interest on the outstanding principal balance of the Loan and, to the extent permitted by law, overdue interest and other amounts due in respect of the Loan shall accrue at a rate per annum equal to the lesser of (a) the maximum rate permitted by applicable law, or (b) four percent (4%) above the Note Rate (such rate, the “Default Rate”). Interest at the Default Rate shall be computed from the occurrence of the Event of Default until the earlier of (i) the actual receipt and collection of the Debt (or that portion thereof that is then due) and (ii) the cure of such Event of Default. To the extent permitted by applicable law, interest at the Default Rate shall be added to the Debt, shall itself accrue interest at the same rate as the Loan and shall be secured by the Security Instrument. This Article shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of the occurrence of any Event of Default; the acceptance of any payment from Borrower shall not be deemed to cure or constitute a waiver of any Event of Default; and Lender retains its rights under this Note, the Loan Agreement and the other Loan Documents to accelerate and to continue to demand payment of the Debt upon the happening of and during the continuance any Event of Default, despite any payment by Borrower to Lender.

Article 5 - PREPAYMENT

Except as otherwise expressly permitted by this Article 5, no voluntary prepayments, whether in whole or in part, of the Loan or any other amount at any time due and owing under this Note can be made by Borrower or any other Person without the express written consent of Lender.

(a)Lockout Period. Borrower shall have no right to make, and Lender shall have no obligation to accept, any voluntary prepayment, whether in whole or in part, of the Loan, or any other amount under this Note or the other Loan Documents, at any time during the Lockout Period. At any time following the expiration of the Lockout Period, the principal balance of this Note may be voluntarily prepaid in whole, but not in part, upon the satisfaction of the following conditions:

(i)no Default shall exist under any of the Loan Documents;

(ii)not less than sixty (60) (but not more than ninety (90)) days prior written, notice shall be given to Lender specifying a date on which the prepayment shall occur such date being a Scheduled Payment Date (the “Prepayment Date”);

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(iii)Borrower has paid to Lender all accrued and unpaid interest on the Loan through and including the Prepayment Date together with all other sums due under this Note and the other Loan Documents; and

(iv)Borrower has paid to Lender a prepayment premium in an amount equal to Yield Maintenance (as defined and calculated in accordance with Section 5(b) below); provided, however, that in the event of a voluntary prepayment made by Borrower within sixty (60) days of the Optional Prepayment Date, there shall be no prepayment premium required to be paid by Borrower.

(b)Involuntary Prepayment. In the event of any involuntary prepayment of the Loan or any other amount under this Note, whether in whole or in part, in connection with or following Lender’s acceleration of this Note or otherwise, and whether the Security Instrument is satisfied or released by foreclosure (whether by power of sale or judicial proceeding), deed in lieu of foreclosure or by any other means, including, without limitation, repayment of the Loan by Borrower or any other Person pursuant to any statutory or common law right of redemption, Borrower shall pay any portion of the principal balance of the Loan prepaid (together with all interest accrued and unpaid thereon and, in the event the prepayment is made on a date other than a Scheduled Payment Date, a sum equal to the amount of interest which would have accrued under this Note on the amount of such prepayment if such prepayment had occurred on the next Scheduled Payment Date).

As used herein, “Yield Maintenance” means a prepayment premium in an amount equal to the greater of equal to the greater of (i) 1% of the portion of the Loan being prepaid, and (ii) the present value as of the Prepayment Calculation Date of a series of monthly payments over the remaining term of the Loan through and including the Optional Prepayment Date each equal to the amount of interest which would be due on the portion of the Loan being prepaid assuming a per annum interest rate equal to the excess of the Note Rate over the Reinvestment Yield, and discounted at the Reinvestment Yield. As used herein, “Reinvestment Yield” means the yield calculated by the linear interpolation of the yields, as reported in the Federal Reserve Statistical Release H.15-Selected Interest Rates under the heading “U.S. government securities” and the sub-heading “Treasury constant maturities” for the week ending prior to the Prepayment Calculation Date, of the U.S. Treasury constant maturities with maturity dates (one longer and one equal to or shorter) most nearly approximating the Optional Prepayment Date, and converted to a monthly compounded nominal yield. In the event Release H.I5 is no longer published, Lender shall select a comparable publication to determine the Reinvestment Yield. The “Prepayment Calculation Date” shall mean, as applicable, the date on which (i) Lender applies any prepayment to the reduction of the outstanding principal amount of this Note, (ii) Lender accelerates the Loan, in the case of a prepayment resulting from acceleration, or (iii) Lender applies funds held under any Reserve Account, in the case of a prepayment resulting from such an application (other than in connection with acceleration of the Loan).

(c)Insurance Proceeds and Awards; Excess interest. Notwithstanding any other provision herein to the contrary, and provided no Default exists, Borrower shall not be required to pay any prepayment premium in connection with any prepayment occurring solely as a result of (i) the application of Insurance Proceeds or Awards pursuant to the terms of the Loan

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Documents, or (ii) the application of any interest in excess of the maximum rate permitted by applicable law to the reduction of the Loan.

(d)Open Prepayment Period. Borrower may voluntarily prepay (without premium) this Note on a Scheduled Payment Date (i) in whole (but not in part) during the sixty (60) days prior to the Optional Prepayment Date, and (ii) in whole or in part from the Optional Prepayment Date through and including the date this Note is paid in full, in each case, upon giving Lender at least sixty (60) days (but not more than ninety (90) days) prior written notice. Lender shall accept a prepayment pursuant to this Section 5(d) on a day other than a Scheduled Payment Date provided that, in addition to payment of the full outstanding principal balance of this Note, Borrower pays to Lender a sum equal to the amount of interest which would have accrued on this Note if such prepayment occurred on the next Scheduled Payment Date.

(e)Limitation on Partial Prepayments. In no event shall Lender have any obligation to accept a partial prepayment.

Article 6 - SECURITY

This Note is secured by the Security Instrument and the other Loan Documents. All of the terms, covenants and conditions contained in the Loan Agreement, the Security Instrument and the other Loan Documents are hereby made part of this Note to the same extent and with the same force as if they were fully set forth herein.

Article 7 - USURY SAVINGS

This Note is subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the principal balance of the Loan at a rate which could subject Lender to either civil or criminal liability as a result of being in excess of the maximum non-serious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by this Note and as provided for herein or in the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan (such rate, the “Maximum Legal Rate”), If, by the terms of this Note or the other Loan Documents, Borrower is at any time required or obligated to pay interest on the principal balance due hereunder at a rate in excess of the Maximum Legal Rate, the Note Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced to the Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. All sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the sums due under the Loan, shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the Loan does not exceed the Maximum Legal Rate of interest from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.

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Article 8 - LATE PAYMENT CHARGE

If any principal or interest payment is not paid by Borrower before the tenth (10th) day after the date the same is due (or such greater period, if any, required by applicable law), Borrower shall pay to Lender upon demand an amount equal to the lesser of four percent (4%) of such unpaid sum or the maximum amount permitted by applicable law in order to defray the expense incurred by Lender in handling and processing such delinquent payment and to compensate Lender for the loss of the use of such delinquent payment, provided however, Borrower shall not be required to pay Lender a late charge in connection with the final payment under the loan. Any such amount shall be secured by the Security Instrument and the other Loan Documents to the extent permitted by applicable law.

Article 9 - NO ORAL CHANGE

This Note may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Borrower or Lender, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.

Article 10 - WAIVERS

BORROWER AND ALL OTHERS WHO MAY BECOME LIABLE FOR THE PAYMENT OF ALL OR ANY PART OF THE DEBT DO HEREBY SEVERALLY WAIVE PRESENTMENT AND DEMAND FOR PAYMENT, NOTICE OF DISHONOR, NOTICE OF INTENTION TO ACCELERATE, NOTICE OF ACCELERATION, PROTEST AND NOTICE OF PROTEST AND NON-PAYMENT AND ALL OTHER NOTICES OF ANY KIND EXCEPT AS PROVIDED IN THE LOAN AGREEMENT. NO RELEASE OF ANY SECURITY FOR THE DEBT OR EXTENSION OF TIME FOR PAYMENT OF THIS NOTE OR ANY INSTALLMENT HEREOF, AND NO ALTERATION, AMENDMENT OR WAIVER OF ANY PROVISION OF THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS MADE BY AGREEMENT BETWEEN LENDER OR ANY OTHER PERSON SHALL RELEASE, MODIFY, AMEND, WAIVE, EXTEND, CHANGE, DISCHARGE, TERMINATE OR AFFECT THE LIABILITY OF BORROWER, AND ANY OTHER PERSON WHO MAY BECOME LIABLE FOR THE PAYMENT OF ALL OR ANY PART OF THE DEBT, UNDER THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS. NO NOTICE TO OR DEMAND ON BORROWER SHALL BE DEEMED TO BE A WAIVER OF THE OBLIGATION OF BORROWER OR OF THE RIGHT OF LENDER TO TAKE FURTHER ACTION WITHOUT FURTHER NOTICE OR DEMAND AS PROVIDED FOR IN THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS. IF BORROWER IS A LIMITED LIABILITY COMPANY, THE AGREEMENTS HEREIN CONTAINED SHALL REMAIN IN FORCE AND BE APPLICABLE, NOTWITHSTANDING ANY CHANGES IN THE INDIVIDUALS COMPRISING THE LIMITED LIABILITY COMPANY, AND THE TERM “BORROWER,” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATE OR SUCCESSOR LIMITED LIABILITY COMPANY, BUT ANY PREDECESSOR LIMITED LIABILITY COMPANY AND ITS MEMBERS SHALL NOT THEREBY BE RELEASED FROM ANY LIABILITY. IF BORROWER IS A PARTNERSHIP, THE AGREEMENTS HEREIN CONTAINED SHALL REMAIN IN FORCE AND BE

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APPLICABLE, NOTWITHSTANDING ANY CHANGES IN THE INDIVIDUALS COMPRISING THE PARTNERSHIP, AND THE TERM “BORROWER,” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATE OR SUCCESSOR PARTNERSHIP, BUT ANY PREDECESSOR PARTNERSHIP AND THEIR PARTNERS SHALL NOT THEREBY BE RELEASED FROM ANY LIABILITY. IF BORROWER IS A CORPORATION, THE AGREEMENTS CONTAINED HEREIN SHALL REMAIN IN FULL FORCE AND BE APPLICABLE NOTWITHSTANDING ANY CHANGES IN THE SHAREHOLDERS COMPRISING, OR THE OFFICERS AND DIRECTORS RELATING TO, THE CORPORATION, AND THE TERM “BORROWER” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATIVE OR SUCCESSOR CORPORATION, BUT ANY PREDECESSOR CORPORATION SHALL NOT BE RELIEVED OF LIABILITY HEREUNDER. (NOTHING IN THE FOREGOING SENTENCE SHALL BE CONSTRUED AS A CONSENT TO, OR A WAIVER OF, ANY PROHIBITION OR RESTRICTION ON TRANSFERS OF INTERESTS IN SUCH BORROWING ENTITY WHICH MAY BE SET FORTH IN THE LOAN AGREEMENT, THE MORTGAGE OR ANY OTHER LOAN DOCUMENTS.) IF BORROWER CONSISTS OF MORE THAN ONE PERSON OR PARTY, THE OBLIGATIONS AND LIABILITIES OF EACH PERSON OR PARTY SHALL BE JOINT AND SEVERAL.

Article 11 - TRIAL BY JURY

BORROWER AND LENDER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS NOTE, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF LENDER AND BORROWER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER AND LENDER.

Article 12 - TRANSFER

Upon the transfer of this Note, Borrower hereby waiving notice of any such transfer, Lender may deliver all the collateral mortgaged, granted, pledged or assigned pursuant to the Loan Documents, or any part thereof, to the transferee who shall thereupon become vested with all the rights herein or under applicable law given to Lender with respect thereto, and Lender shall thereafter forever be relieved and fully discharged from any liability or responsibility in the matter arising from events thereafter occurring; but Lender shall retain all rights hereby given to it with respect to any liabilities and the collateral not so transferred.

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Article 13 - EXCULPATION

The provisions of Article 15 of the Loan Agreement are hereby incorporated by reference into this Note to the same extent and with the same force as if fully set forth herein.

Article 14 - GOVERNING LAW

This Note shall in all respects be governed, construed, applied and enforced in accordance with the laws of the state in which the Property is located and any applicable federal laws of the United States of America.

Article 15 - NOTICES

All notices or other written communications hereunder shall be delivered in accordance with Article 16 of the Loan Agreement.

Article 16 - TAXPAYER IDENTIFICATION NUMBER

This Note provides for the Borrower’s federal taxpayer identification number to be inserted in the Loan Terms Table on the first page of this Note. If such number is not available at the time of execution of this Note or is not inserted by the Borrower, the Borrower hereby authorizes and directs the Lender to fill in such number on the first page of this Note when the Borrower provides to Lender, advises the Lender of, or the Lender otherwise obtains, such number.

Article 17 - ATTORNEYS’ FEES

Any provisions in this Note or elsewhere in the Loan Documents providing for the payment of “attorneys’ fees,” “reasonable attorneys’ fees” or words of similar import, shall mean actual attorneys’ fees and paralegal fees incurred based upon the usual and customary fees or hourly rates of the attorneys and paralegals involved without giving effect to any statutory presumption that may then be in effect.

[NO FURTHER TEXT ON THIS PAGE]

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IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and year first above written.

INLAND WESTERN PLANTATION EXPRESS, L.L.C., a Delaware limited liability company
By:		Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
	By:		/s/ Debra A. Palmer
	Name:			Debra A. Palmer
	Its:			Asst. Sec.

EX-10.468

Exhibit 10.468

LOAN AGREEMENT

Dated as of December 16, 2004

Between

INLAND WESTERN PLANTATION EXPRESS, L.L.C.,

as Borrower

and

BANK OF AMERICA, N.A.,
as Lender

TABLE OF CONTENTS

ARTICLE 1 DEFINITIONS; PRINCIPLES OF CONSTRUCTION
	SECTION 1.1. DEFINITIONS
	SECTION 1.2. PRINCIPLES OF CONSTRUCTION
ARTICLE 2GENERAL TERMS
	SECTION 2.1. LOAN COMMITMENT; DISBURSEMENT TO BORROWER
	SECTION 2.2. LOAN PAYMENTS
	SECTION 2.3. PREPAYMENT
ARTICLE 3 CONDITIONS PRECEDENT
ARTICLE 4 REPRESENTATIONS AND WARRANTIES
	SECTION 4.1. ORGANIZATION
	SECTION 4.2. STATUS OF BORROWER
	SECTION 4.3. VALIDITY OF DOCUMENTS
	SECTION 4.4. NO CONFLICTS
	SECTION 4.5. LITIGATION
	SECTION 4.6. AGREEMENTS
	SECTION 4.7. SOLVENCY
	SECTION 4.8. FULL AND ACCURATE DISCLOSURE
	SECTION 4.9. NO PLAN ASSETS
	SECTION 4.10. NOT A FOREIGN PERSON
	SECTION 4.11. ENFORCEABILITY
	SECTION 4.12. BUSINESS PURPOSES
	SECTION 4.13. COMPLIANCE
	SECTION 4.14. FINANCIAL INFORMATION
	SECTION 4.15. CONDEMNATION
	SECTION 4.16. UTILITIES AND PUBLIC ACCESS; PARKING
	SECTION 4.17. SEPARATE LOTS
	SECTION 4.18. ASSESSMENTS
	SECTION 4.19. INSURANCE
	SECTION 4.20. USE OF PROPERTY
	SECTION 4.21. CERTIFICATE OF OCCUPANCY; LICENSES
	SECTION 4.22. FLOOD ZONE
	SECTION 4.23. PHYSICAL CONDITION
	SECTION 4.24. BOUNDARIES; SURVEY
	SECTION 4.25. LEASES
	SECTION 4.26. FILING AND RECORDING TAXES
	SECTION 4.27. MANAGEMENT AGREEMENT
	SECTION 4.28. ILLEGAL ACTIVITY
	SECTION 4.29. CONSTRUCTION EXPENSES
	SECTION 4.30. PERSONAL PROPERTY
	SECTION 4.31. TAXES
	SECTION 4.32. PERMITTED ENCUMBRANCES
	SECTION 4.33. FEDERAL RESERVE REGULATIONS
	SECTION 4.34. INVESTMENT COMPANY ACT
	SECTION 4.35. RECIPROCAL EASEMENT AGREEMENTS
	SECTION 4.36. NO CHANGE IN FACTS OR CIRCUMSTANCES; DISCLOSURE

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	SECTION 4.37. INTELLECTUAL PROPERTY
	SECTION 4.38. COMPLIANCE WITH ANTI-TERRORISM LAWS
	SECTION 4.39. PATRIOT ACT
	SECTION 4.40. SURVIVAL
ARTICLE 5 BORROWER COVENANTS
	SECTION 5.1. EXISTENCE; COMPLIANCE WITH LEGAL REQUIREMENTS
	SECTION 5.2. MAINTENANCE AND USE OF PROPERTY
	SECTION 5.3. WASTE
	SECTION 5.4. TAXES AND OTHER CHARGES
	SECTION 5.5. LITIGATION
	SECTION 5.6. ACCESS TO PROPERTY
	SECTION 5.7. NOTICE OF DEFAULT
	SECTION 5.8. COOPERATE IN LEGAL PROCEEDINGS
	SECTION 5.9. PERFORMANCE BY BORROWER
	SECTION 5.10. AWARDS; INSURANCE PROCEEDS
	SECTION 5.11. FINANCIAL REPORTING
	SECTION 5.12. ESTOPPEL STATEMENT
	SECTION 5.13. LEASING MATTERS
	SECTION 5.14. PROPERTY MANAGEMENT
	SECTION 5.15. LIENS
	SECTION 5.16. DEBT CANCELLATION
	SECTION 5.17. ZONING
	SECTION 5.18. ERISA
	SECTION 5.19. NO JOINT ASSESSMENT
	SECTION 5.20. RECIPROCAL EASEMENT AGREEMENTS
ARTICLE 6 ENTITY COVENANTS
	SECTION 6.1. SINGLE PURPOSE ENTITY/SEPARATENESS
	SECTION 6.2. CHANGE OF NAME, IDENTITY OR STRUCTURE
	SECTION 6.3. BUSINESS AND OPERATIONS
	SECTION 6.4. INDEPENDENT DIRECTOR
ARTICLE 7 NO SALE OR ENCUMBRANCE
	SECTION 7.1. TRANSFER DEFINITIONS
	SECTION 7.2. NO SALE/ENCUMBRANCE
	SECTION 7.3. PERMITTED TRANSFERS
	SECTION 7.4. LENDER’S RIGHTS
	SECTION 7.5. ASSUMPTION
	SECTION 7.6. ASSUMPTION BY INLAND PERMITTED TRANSFEREE
ARTICLE 8 INSURANCE; CASUALTY; CONDEMNATION; RESTORATION
	SECTION 8.1. INSURANCE
	SECTION 8.2. CASUALTY
	SECTION 8.3. CONDEMNATION
	SECTION 8.4. RESTORATION
ARTICLE 9 REPLACEMENTS; RESERVE FUNDS
	SECTION 9.1. REPLACEMENTS
	SECTION 9.2. TAX AND INSURANCE RESERVE FUNDS
	SECTION 9.3. RESERVE FUNDS GENERALLY
ARTICLE 10 CASH MANAGEMENT
	SECTION 10.1. CASH MANAGEMENT ACCOUNT
	SECTION 10.2. DEPOSITS AND WITHDRAWALS
	SECTION 10.3. SECURITY INTEREST

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ARTICLE 11 EVENTS OF DEFAULT; REMEDIES
	SECTION 11.1. EVENT OF DEFAULT
	SECTION 11.2. REMEDIES
ARTICLE 12 ENVIRONMENTAL PROVISIONS
	SECTION 12.1. ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES
	SECTION 12.2. ENVIRONMENTAL COVENANTS
	SECTION 12.3. LENDER’S RIGHTS
	SECTION 12.4. OPERATIONS AND MAINTENANCE PROGRAMS
	SECTION 12.5. ENVIRONMENTAL DEFINITIONS
ARTICLE 13 SECONDARY MARKET
	SECTION 13.1. TRANSFER OF LOAN
	SECTION 13.2. DELEGATION OF SERVICING
	SECTION 13.3. DISSEMINATION OF INFORMATION
	SECTION 13.4. COOPERATION
ARTICLE 14 INDEMNIFICATIONS
	SECTION 14.1. GENERAL INDEMNIFICATION
	SECTION 14.2. MORTGAGE AND INTANGIBLE TAX INDEMNIFICATION
	SECTION 14.3. ERISA INDEMNIFICATION
	SECTION 14.4. SURVIVAL
ARTICLE 15 EXCULPATION
	SECTION 15.1. EXCULPATION
ARTICLE 16 NOTICES
	SECTION 16.1. NOTICES
ARTICLE 17 FURTHER ASSURANCES
	SECTION 17.1. REPLACEMENT DOCUMENTS
	SECTION 17.2. RECORDING OF MORTGAGE, ETC.
	SECTION 17.3. FURTHER ACTS, ETC.
	SECTION 17.4. CHANGES IN TAX, DEBT, CREDIT AND DOCUMENTARY STAMP LAWS
	SECTION 17.5. EXPENSES
ARTICLE 18 WAIVERS
	SECTION 18.1. REMEDIES CUMULATIVE; WAIVERS
	SECTION 18.2. MODIFICATION, WAIVER IN WRITING
	SECTION 18.3. DELAY NOT A WAIVER
	SECTION 18.4. TRIAL BY JURY
	SECTION 18.5. WAIVER OF NOTICE
	SECTION 18.6. REMEDIES OF BORROWER
	SECTION 18.7. WAIVER OF MARSHALLING OF ASSETS
	SECTION 18.8. WAIVER OF STATUTE OF LIMITATIONS
	SECTION 18.9. WAIVER OF COUNTERCLAIM
ARTICLE 19 GOVERNING LAW
	SECTION 19.1. CHOICE OF LAW
	SECTION 19.2. SEVERABILITY
	SECTION 19.3. PREFERENCES
ARTICLE 20 MISCELLANEOUS
	SECTION 20.1. SURVIVAL
	SECTION 20.2. LENDER’S DISCRETION

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“Affiliate” shall mean, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person or is a director or officer of such Person or of an Affiliate of such Person.

“Affiliated Loans” shall mean a loan made by Lender to a parent, subsidiary or such other entity affiliated with Borrower or Borrower Principal.

“Affiliated Manager” shall have the meaning set forth in Section 7.1 hereof.

“ALTA” shall mean American Land Title Association, or any successor thereto.

“American Express” shall mean American Express Travel Related Services Company, Inc., a New York corporation.

“American Express Lease” shall mean that certain Lease Agreement dated as of December 16, 2004 between Borrower, as landlord, and American Express, as tenant, with respect to the Property.

“American Express Lease Default” shall mean (i) a default, after the expiration of any applicable notice or cure periods, under the American Express Lease or (ii) the cancellation, termination or surrender of the American Express Lease.

“Assignment of Management Agreement” shall mean that certain Assignment and Subordination of Management Agreement dated the date hereof among Lender, Borrower and Manager, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Award” shall mean any compensation paid by any Governmental Authority in connection with a Condemnation in respect of all or any part of the Property.

“Borrower Principal” shall mean Inland Western Retail Real Estate Trust, Inc., a Maryland corporation.

“Business Day” shall mean a day on which Lender is open for the conduct of substantially all of its banking business at its office in the city in which the Note is payable (excluding Saturdays and Sundays).

“Cash Management Account” shall have the meaning set forth in Section 10.1 (a) hereof.

“Cash Management Period” shall mean the period commencing on the 45^lh day prior to the Optional Prepayment Date.

“Casualty” shall have the meaning set forth in Section 8.2.

“Closing Date” shall mean the date of the funding of the Loan.

“Control” shall have the meaning set forth in Section 7.1 hereof.

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“Condemnation” shall mean a temporary or permanent taking by any Governmental Authority as the result, in lieu or in anticipation, of the exercise of the right of condemnation or eminent domain, of all or any part of the Property, or any interest therein or right accruing thereto, including any right of access thereto or any change of grade affecting the Property or any part thereof.

“Condemnation Proceeds” shall have the meaning set forth in Section 8.4(b)

“Creditors Rights Laws” shall mean with respect to any Person any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to its debts or debtors.

“Debt” shall mean the outstanding principal amount set forth in, and evidenced by, this Agreement and the Note together with all interest accrued and unpaid thereon and all other sums due to Lender in respect of the Loan under the Note, this Agreement, the Mortgage or any other Loan Document.

“Debt Service” shall mean, with respect to any particular period of time, scheduled principal and/or interest payments under the Note.

“Default” shall mean the occurrence of any event hereunder or under any other Loan Document which, but for the giving of notice or passage of time, or both, would be an Event of Default.

“Default Rate” shall mean, with respect to the Loan, a rate per annum equal to the lesser of (a) the maximum rate permitted by applicable law, or (b) four percent (4%) above the Note Rate.

“Eligible Account” shall mean a separate and identifiable account from all other funds held by the holding institution that is either (a) an account or accounts maintained with a federal or state chartered depository institution or trust company which complies with the definition of Eligible Institution or (b) a segregated trust account or accounts maintained with the corporate trust department of a federal or state chartered depository institution or trust company acting in its fiduciary capacity which, in the case of a federally chartered depository institution or trust company acting in its fiduciary capacity is subject to the regulations regarding adversary funds on deposit therein under 12 CFR §9.10(b), and in the case of a state chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R. §9.10(b), having in either case a combined capital surplus of at least $50,000,000 and subject to supervision or examination by federal and state authority. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.

“Eligible Institution” shall mean a depository institution or trust company insured by the Federal Deposit Insurance Corporation, the short term unsecured debt obligations or commercial paper of which arc rated at least “A-l” by S&P, “P-l” by Moody’s and “F-1” by Fitch in the case of accounts in which funds arc held for thirty (30) days or less (or, in the case of accounts in which funds are held for more than thirty (30) days, the long term unsecured debt obligations of which are rated at least “AA-” by Fitch and S&P (or “A-” by S&P, if such depository’s short

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term unsecured debt rating is at least “A-1” by S&P) and “Aa2” by Moody’s). Notwithstanding the foregoing, prior to a Securitization, Bank of America, N.A. shall be an Eligible Institution.

“Embargoed Person” shall mean any person identified by OFAC or any other Person with whom a Person resident in the United States of America may not conduct business or transactions by prohibition of federal law or Executive Order of the President of the United States of America.

“Environmental Indemnity” shall mean that certain Environmental Indemnity Agreement, dated as of the date hereof, executed by Borrower and Borrower Principal in connection with the Loan for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Environmental Law” shall have the meaning set forth in Section 12.5 hereof.

“Environmental Liens” shall have the meaning set forth in Section 12.5 hereof.

“Environmental Report” shall have the meaning set forth in Section 12.5 hereof.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time and any successor statutes thereto and applicable regulations issued pursuant thereto in temporary or final form.

“Event of Default” shall have the meaning set forth in Section 11.1 hereof.

“Exchange Act” shall mean the Securities and Exchange Act of 1934, as amended.

“Fitch” shall mean Fitch, Inc.

“GAAP” shall mean generally accepted accounting principles in the United States of America as of the date of the applicable financial report.

“Governmental Authority” shall mean any court, board, agency, department, commission, office or other authority of any nature whatsoever for any governmental unit (federal, state, county, municipal, city, town, special district or otherwise) whether now or hereafter in existence.

“Guarantor” shall mean any Person having a long-term unsecured debt rating above the Trigger Rating that may, from time to time, at the option of American Express, execute a guaranty in favor of landlord under the American Express Lease.

“Hazardous Materials” shall have the meaning set forth in Section 12.5 hereof.

“Improvements” shall have the meaning set forth in the granting clause of the Mortgage.

“Indemnified Parties” shall mean (a) Lender, (b) any prior owner or holder of the Loan or Participations in the Loan, (c) any servicer or prior servicer of the Loan, (d) any Investor or any prior Investor in any Securities, (e) any trustees, custodians or other fiduciaries who hold or

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who have held a full or partial interest in the Loan for the benefit of any Investor or other third party, (f) any receiver or other fiduciary appointed in a foreclosure or other Creditors Rights Laws proceeding, (g) any officers, directors, shareholders, partners, members, employees, agents, servants, representatives, contractors, subcontractors, affiliates or subsidiaries of any and all of the foregoing, and (h) the heirs, legal representatives, successors and assigns of any and all of the foregoing (including, without limitation, any successors by merger, consolidation or acquisition of all or a substantial portion of the Indemnified Parties’ assets and business), in all cases whether during the term of the Loan or as part of or following a foreclosure of the Mortgage.

“Independent Director” shall have the meaning set forth in Section 6.4(a).

“Inland Permitted Transferee” shall mean a newly-formed special purpose entity that is wholly-owned (directly or indirectly) by Inland Retail Real Estate Trust, Inc., a Maryland corporation; Inland Real Estate Corporation, a Maryland corporation, Inland Real Estate Corporation, a Delaware corporation or Borrower Principal.

“Insurance Premiums” shall have the meaning set forth in Section 8.1 hereof.

“Insurance Proceeds” shall have the meaning set forth in Section 8.4(b) hereof.

“Internal Revenue Code” shall mean the Internal Revenue Code of 1986, as amended, as it may be further amended from time to time, and any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.

“Investor” shall have the meaning set forth in Section 13.3 hereof.

“Lease” shall have the meaning set forth in the Mortgage.

“Legal Requirements” shall mean all statutes,  laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting the Property or any part thereof, or the construction, use, alteration or operation thereof, whether now or hereafter enacted and in force, and all permits, licenses, authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Borrower, at any time in force affecting the Property or any part thereof, including, without limitation, any which may (a) require repairs, modifications or alterations in or to the Property or any part thereof, or (b) in any way limit the use and enjoyment thereof.

“Lien” shall mean any mortgage, deed of trust, lien, pledge, hypothecation, assignment, security interest, or any other encumbrance, charge or transfer of, on or affecting Borrower, the Property, any portion thereof or any interest therein, including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialmen’s and other similar liens and encumbrances.

“LLC Agreement” shall have the meaning set forth in Section 6.1(c).

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“Loan” shall mean the loan made by Lender to Borrower pursuant to this Agreement.

“Loan Documents” shall mean, collectively, this Agreement, the Note, the Mortgage, the Environmental Indemnity, the Assignment of Management Agreement and any and all other documents, agreements and certificates executed and/or delivered in connection with the Loan, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Lockout Period” shall mean the period commencing on the date hereof and ending on the date of the second anniversary hereof.

“Losses” shall mean any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, fines, penalties, charges, fees, judgments, awards, amounts paid in settlement of whatever kind or nature (including but not limited to legal fees and other costs of defense).

“Management Agreement” shall mean the management agreement entered into by and between Borrower and Manager, pursuant to which Manager is to provide management and other services with respect to the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified in accordance with the terms of this Agreement.

“Manager” shall mean Inland US Management LLC, a Delaware limited liability company or such other entity selected as the manager of the Property in accordance with the terms of this Agreement.

“Material Litigation” shall mean, with respect to any Person, any material conviction, indictment (that is not dismissed before trial), judgment, litigation or regulatory action. For purposes of this definition, a matter shall be deemed material if it is reasonably foreseeable that a prudent institutional commercial real estate mortgage lender would consider such matter as a material adverse factor in its underwriting of the Person in question. With respect to non-criminal matters, isolated actions occurring more than five (5) years prior to the date of a proposed transfer shall not be deemed material provided that there is no indication of fraud, intentional misrepresentation or intent to defraud creditors with respect to such actions.

“Maturity Date” shall have the meaning set forth in the Note.

“Maximum Legal Rate”  shall mean the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by the Note and as provided for herein or the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan.

“Member” shall have the meaning set forth in Section 6.1(c).

“Monthly Payment Amount” shall mean the monthly payment of interest due on each Scheduled Payment Date as set forth in the Note.

“Moody’s” shall mean Moody’s Investor Services, Inc.

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“Mortgage” shall mean that certain first priority mortgage/deed of trust/deed to secure debt and security agreement dated the date hereof, executed and delivered by Borrower as security for the Loan and encumbering the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Net Proceeds” shall have the meaning set forth in Section 8.4(b) hereof.

“Net Proceeds Deficiency” shall have the meaning set forth in Section 8.4(b)(vi) hereof.

“Note” shall mean that certain promissory note of even date herewith in the principal amount of $37,170,000, made by Borrower in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Note Rate” shall have the meaning set forth in the Note.

“OFAC” shall have the meaning set forth in Section 4.38 hereof.

“Operating Expenses” shall mean, with respect to any period of time, the total of all expenses actually paid or payable, computed in accordance with federal tax basis accounting, or in accordance with other methods acceptable to Lender in its sole discretion, of whatever kind relating to the operation, maintenance and management of the Property, including, without limitation, utilities, ordinary repairs and maintenance, Insurance Premiums, license fees, Taxes and Other Charges, advertising expenses, payroll and related taxes, computer processing charges, management fees equal to the greater of 4% of the Operating Income and the management fees actually payable under the Management Agreement for such period of time, operational equipment or other lease payments as approved by Lender, normalized capital expenditures but specifically excluding depreciation and amortization, income taxes, Debt Service, any incentive fees due under the Management Agreement, any item of expense that in accordance with federal tax basis accounting should be capitalized, any item of expense that would otherwise be covered by the provisions hereof but which is paid by American Express under the American Express Lease and deposits into the Reserve Accounts.

“Optional Prepayment Date” shall have the meaning set forth in the Note.

“Other Charges” shall mean all ground rents, maintenance charges, impositions other than Taxes, and any other charges, including, without limitation, vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Property, now or hereafter levied or assessed or imposed against the Property or any part thereof.

“Participations” shall have the meaning set forth in Section 13.1 hereof.

“Patriot Act” shall have the meaning set forth in Section 4.38 hereof.

“Permitted Encumbrances” shall mean collectively, (a) the Lien and security interests created by the Loan Documents, (b) all Liens, encumbrances and other matters disclosed in the Title Insurance Policy, (c) Liens, if any, for Taxes imposed by any Governmental Authority not yet due or delinquent, and (d) such other title and survey exceptions as Lender has approved or may approve in writing in Lender’s sole discretion.

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“Permitted Investments” shall mean to the extent available from Lender or Lender’s servicer for deposits in the Reserve Accounts and the Lockbox Account, any one or more of the following obligations or securities acquired at a purchase price of not greater than par, including those issued by a servicer of the Loan, the trustee under any securitization or any of their respective Affiliates, payable on demand or having a maturity date not later than the Business Day immediately prior to the date on which the funds used to acquire such investment are required to be used under this Agreement and meeting one of the appropriate standards set forth below:

(a)           obligations of, or obligations fully guaranteed as to payment of principal and interest by, the United States or any agency or instrumentality thereof provided such obligations are backed by the full faith and credit of the United States of America including, without limitation, obligations of: the U.S. Treasury (all direct or fully guaranteed obligations), the Farmers Home Administration (certificates of beneficial ownership), the General Services Administration (participation certificates), the U.S. Maritime Administration (guaranteed Title XI financing), the Small Business Administration (guaranteed participation certificates and guaranteed pool certificates), the U.S. Department of Housing and Urban Development (local authority bonds) and the Washington Metropolitan Area Transit Authority (guaranteed transit bonds); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) be rated “AAA” or the equivalent by each of the Rating Agencies, (iii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iv) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (v) such investments must not be subject to liquidation prior to their maturity;

(b)           Federal Housing Administration debentures;

(c)           obligations of the following United States government sponsored agencies; Federal Home Loan Mortgage Corp. (debt obligations), the Farm Credit System (consolidated systemwide bonds and notes), the Federal Home Loan Banks (consolidated debt obligations), the Federal National Mortgage Association (debt obligations), the Financing Corp, (debt obligations), and the Resolution Funding Corp. (debt obligations); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(d)           federal funds, unsecured certificates of deposit, time deposits, bankers’ acceptances and repurchase agreements with maturities of not more than 365 days of any bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned

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to the Securities); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated byS&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(e)           fully Federal Deposit Insurance Corporation-insured demand and time deposits in, or certificates of deposit of, or bankers’ acceptances with maturities of not more than 365 days and issued by, any bank or trust company, savings and loan association or savings bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(f)            debt obligations with maturities of not more than 365 days and at all times rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest long-term unsecured rating category; provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(g)           commercial paper (including both non-interest-bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one year after the date of issuance thereof) with maturities of not more than 365 days and that at all times is rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest short-term unsecured debt rating; provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

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(h)           units of taxable money market funds, with maturities of not more than 365 days and, which funds are regulated investment companies, seek to maintain a constant net asset value per share and invest solely in obligations backed by the full faith and credit of the United States, which funds have the highest rating available from each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) for money market funds; and

(i)            any other security, obligation or investment which has been approved as a Permitted Investment in writing by (i) Lender and (ii) each Rating Agency, as evidenced by a written confirmation that the designation of such security, obligation or investment as a Permitted Investment will not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities by such Rating Agency;

provided, however, that no obligation or security shall be a Permitted Investment if (A) such obligation or security evidences a right to receive only interest payments, (B) the right to receive principal and interest payments on such obligation or security are derived from an underlying investment that provides a yield to maturity in excess of one hundred twenty percent (120%) of the yield to maturity at par of such underlying investment or (C) such obligation or security has a remaining term to maturity in excess of one (1) year.

“Person” shall mean any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.

“Personal Property” shall have the meaning set forth in the granting clause of the Mortgage.

“Policies” shall have the meaning set forth in Section 8.1 hereof.

“Prohibited Transfer” shall have the meaning set forth in Section 7.2 hereof.

“Property” shall mean the parcel of real property, the Improvements thereon and all Personal Property owned by Borrower and encumbered by the Mortgage, together with all rights pertaining to such property and Improvements, as more particularly described in the granting clause of the Mortgage and referred to therein as the “Property”.

“Property Condition Report” shall mean a report prepared by a company satisfactory to Lender regarding the physical condition of the Property, satisfactory in form and substance to Lender in its sole discretion.

“Qualified Manager” shall mean (a) Manager or (b) a reputable and experienced professional management organization (i) which manages, together with its affiliates, at least ten (10) first class office buildings totaling at least 3,500,000 square feet of gross leasable area, exclusive of the Property and (ii) approved by Lender, which approval shall not have been unreasonably withheld and for which Lender shall have received written confirmation from the

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Rating Agencies that the employment of such manager will not result in a downgrade, withdrawal or qualification of the initial, or if higher, then current ratings issued in connection with a Securitization, or if a Securitization has not occurred, any ratings to be assigned in connection with a Securitization.

“Rating Agencies” shall mean each of S&P, Moody’s and Fitch, or any other nationally-recognized statistical rating agency which has been approved by Lender.

“REA” shall mean any construction, operation and reciprocal easement agreement or similar agreement (including any separate agreement or other agreement between Borrower and one or more other parties to an REA with respect to such REA) affecting the Property or portion thereof.

“Release” shall have the meaning set forth in Section 12.5 hereof.

“REMIC Trust” shall mean a “real estate mortgage investment conduit” (within the meaning of Section 860D, or applicable successor provisions, of the Code) that holds the Note.

“Rents” shall have the meaning set forth in the Mortgage.

“Replacements” shall have the meaning set forth in Section 9.2(a) hereof.

“Required Repairs” shall have the meaning set forth in Section 9.1(a) hereof.

“Reserve Accounts” shall mean the Tax and Insurance Reserve Account.

“Reserve Funds” shall mean the Tax and Insurance Reserve Funds.

“Restoration” shall mean, following the occurrence of a Casualty or a Condemnation which is of a type necessitating the repair of the Property, the completion of the repair and restoration of the Property as nearly as possible to the condition the Property was in immediately prior to such Casualty or Condemnation, with such alterations as may be reasonably approved by Lender.

“Restoration Consultant” shall have the meaning set forth in Section 8.4(b)(iii) hereof.

“Restoration Retainage” shall have the meaning set forth in Section 8.4(b)(iv) hereof.

“Restricted Party” shall have the meaning set forth in Section 7.1 hereof.

“Sale or Pledge” shall have the meaning set forth in Section 7.1 hereof.

“Scheduled Payment Date” shall have the meaning set forth in the Note.

“Securities” shall have the meaning set forth in Section 13.1 hereof.

“Securities Act” shall mean the Securities Act of 1933, as amended.

“Securities Liabilities” shall have the meaning set forth in Section 13.5 hereof.

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“Securitization” shall have the meaning set forth in Section 13.1 hereof.

“Special Member” shall have the meaning set forth in Section 6.1(c).

“S&P” shall mean Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.

“State” shall mean the state in which the Property or any part thereof is located.

“Tax and Insurance Reserve Account” shall have the meaning set forth in Section 9.6 hereof.

“Tax and Insurance Reserve Funds” shall have the meaning set forth in Section 9.6 hereof.

“Taxes” shall mean all real estate and personal property taxes, assessments, water rates or sewer rents, now or hereafter levied or assessed or imposed against the Property or part thereof.

“Tenant” shall mean any Person leasing, subleasing or otherwise occupying any portion of the Property under a Lease or other occupancy agreement with Borrower, including, without limitation, American Express, as tenant under the American Express Lease.

“Tenant Direction Letter” shall have the meaning set forth in Section 10.2(a)(i) hereof.

“Title Insurance Policy” shall mean that certain ALTA mortgagee title insurance policy issued with respect to the Property and insuring the lien of the Mortgage.

“Transferee” shall have the meaning set forth in Section 7.5 hereof.

“Trigger Rating” shall mean the long-term unsecured debt rating of Guarantor (or American Express if there is no Guarantor) below BBB as issued by S&P or below Baa2 as issued by Moody’s.

“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in the State where the applicable Property is located.

Section 1.2.      Principles of Construction.

All references to sections and schedules are to sections and schedules in or to this Agreement unless otherwise specified. All uses of the word “including” shall mean “including, without limitation” unless the context shall indicate otherwise. Unless otherwise specified, the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified, all meanings attributed to defined terms herein shall be equally applicable to both the singular and plural forms of the terms so defined.

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ARTICLE 2
GENERAL TERMS

Section 2.1.      Loan Commitment; Disbursement to Borrower

(a)           Subject to and upon the terms and conditions set forth herein, Lender hereby agrees to make and Borrower hereby agrees to accept the Loan on the Closing Date.

(b)           Borrower may request and receive only one borrowing in respect of the Loan and any amount borrowed and repaid in respect of the Loan may not be reborrowed.

(c)           The Loan shall be evidenced by the Note and secured by the Mortgage and the other Loan Documents.

(d)           Borrower shall use the proceeds of the Loan to (i) pay the purchase price for acquiring the Property, (ii) pay certain costs and expenses incurred in connection with the closing of the Loan, as approved by Lender, (iv) fund any working capital requirements of the Property, and (v) distribute the balance, if any, to its members.

Section 2.2.      Loan Payments

(a)           The Loan and interest shall be payable pursuant to the terms of the Note.

Section 2.3.      Prepayment

The Loan may not be prepaid, in whole or in part, except in strict accordance with the express terms and conditions of the Note.

ARTICLE 3
CONDITIONS PRECEDENT

The obligation of Lender to make the Loan hereunder is subject to the fulfillment by Borrower or waiver by Lender of all the conditions precedent to closing set forth in the application or term sheet for the Loan delivered by Borrower to Lender and any commitment rider to the application for the Loan issued by Lender.

ARTICLE 4
REPRESENTATIONS AND WARRANTIES

Borrower and, where specifically indicated, each Borrower Principal represents and warrants to Lender as of the Closing Date that:

Section 4.1.      Organization

Borrower and each Borrower Principal (when not an individual) (a) has been duly organized and is validly existing and in good standing with requisite power and authority to own its properties and to transact the businesses in which it is now engaged, (b) is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in

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connection with its properties, businesses and operations, (c) possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own its properties and to transact the businesses in which it is now engaged, and the sole business of Borrower is the ownership, management and operation of the Property, and (d) in the case of Borrower, has full power, authority and legal right to mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the Property pursuant to the terms of the Loan Documents, and in the case of Borrower and each Borrower Principal, has full power, authority and legal right to keep and observe all of the terms of the Loan Documents to which it is a party. Borrower and each Borrower Principal represent and warrant that the chart attached hereto as Exhibit A sets forth an accurate listing of the direct and indirect owners of the equity interests in Borrower, and each Borrower Principal (when not an individual).

Section 4.2.      Status of Borrower

Borrower’s exact legal name is correctly set forth on the first page of this Agreement, on the Mortgage and on any UCC-1 Financing Statements filed in connection with the Loan. Borrower is an organization of the type specified on the first page of this Agreement. Borrower is organized under the laws of the State of Delaware. Borrower’s principal place of business and chief executive office, and the place where Borrower keeps its books and records, including recorded data of any kind or nature, regardless of the medium of recording, including software, writings, plans, specifications and schematics, has been for the preceding four months (or, if less, the entire period of the existence of Borrower) the address of Borrower set forth on the first page of this Agreement. Borrower’s organizational identification number, if any, assigned by the state of incorporation or organization is correctly set forth on the first page of the Note.

Section 4.3.      Validity of Documents

Borrower and Borrower Principal have taken all necessary action to authorize the execution, delivery and performance of this Agreement and the other Loan Documents to which they are parties. This Agreement and such other Loan Documents have been duly executed and delivered by or on behalf of Borrower and Borrower Principal and constitute the legal, valid and binding obligations of Borrower and Borrower Principal enforceable against Borrower and Borrower Principal in accordance with their respective terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

Section 4.4.      No Conflicts

The execution, delivery and performance of this Agreement and the other Loan Documents by Borrower and Borrower Principal will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance (other than pursuant to the Loan Documents) upon any of the property or assets of Borrower or Borrower Principal pursuant to the terms of any agreement or instrument to which Borrower or Borrower Principal is a party or by which any of Borrower’s or Borrower Principal’s property or assets is subject, nor will such action result in any violation of the provisions of any statute or any order, rule or regulation of any

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Governmental Authority having jurisdiction over Borrower or Borrower Principal or any of Borrower’s or Borrower Principal’s properties or assets, and any consent, approval, authorization, order, registration or qualification of or with any Governmental Authority required for the execution, delivery and performance by Borrower or Borrower Principal of this Agreement or any of the other Loan Documents has been obtained and is in full force and effect.

Section 4.5.      Litigation

There are no actions, suits or proceedings at law or in equity by or before any Governmental Authority or other agency now pending or, to Borrower’s or Borrower Principal’s knowledge, threatened against or affecting Borrower, Borrower Principal, Manager or the Property, which actions, suits or proceedings, if determined against Borrower, Borrower Principal, Manager or the Property, would materially adversely affect the condition (financial or otherwise) or business of Borrower or Borrower Principal or the condition or ownership of the Property.

Section 4.6.      Agreements

Borrower is not a party to any agreement or instrument or subject to any restriction which would materially and adversely affect Borrower or the Property, or Borrower’s business, properties or assets, operations or condition, financial or otherwise. Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party or by which Borrower or the Property is bound. Borrower has no material financial obligation under any agreement or instrument to which Borrower is a party or by which Borrower or the Property is otherwise bound, other than (a) obligations incurred in the ordinary course of the operation of the Property and (b) obligations under the Loan Documents.

Section 4.7.      Solvency

Borrower and each Borrower Principal have (a) not entered into the transaction or executed the Note, this Agreement or any other Loan Documents with the actual intent to hinder, delay or defraud any creditor and (b) received reasonably equivalent value in exchange for their obligations under such Loan Documents. Giving effect to the Loan, the fair saleable value of the assets of Borrower and each Borrower Principal exceeds and will, immediately following the making of the Loan, exceed the total liabilities of Borrower and Borrower Principal, including, without limitation, subordinated, unliquidated, disputed and contingent liabilities. No petition in bankruptcy has been filed against Borrower, Borrower Principal, or Affiliated Manager in the last ten (10) years, and neither Borrower nor Borrower Principal, or Affiliated Manager in the last ten (10) years has made an assignment for the benefit of creditors or taken advantage of any Creditors Rights Laws. Neither Borrower nor Borrower Principal, or Affiliated Manager is contemplating either the filing of a petition by it under any Creditors Rights Laws or the liquidation of all or a major portion of Borrower’s assets or property, and Borrower has no knowledge of any Person contemplating the filing of any such petition against Borrower or Borrower Principal, or Affiliated Manager.

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Section 4.8.      Full and Accurate Disclosure

No statement of fact made by or on behalf of Borrower or Borrower Principal in this Agreement or in any of the other Loan Documents or in any other document or certificate delivered by or on behalf of Borrower or Borrower Principal contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained herein or therein not misleading. There is no material fact, presently known to Borrower or Borrower Principal which has not been disclosed to Lender which adversely affects, nor as far as Borrower or Borrower Principal can reasonably foresee, might adversely affect, the Property or the business, operations or condition (financial or otherwise) of Borrower or Borrower Principal.

Section 4.9.      No Plan Assets

Borrower is not an “employee benefit plan,” as defined in Section 3(3) of ERISA, subject to Title I of ERISA, and none of the assets of Borrower constitutes or will constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101. In addition, (a) Borrower is not a “governmental plan” within the meaning of Section 3(32) of ERISA and (b) transactions by or with Borrower are not subject to state statutes regulating investment of, and fiduciary obligations with respect to, governmental plans similar to the provisions of Section 406 of ERISA or Section 4975 of the Internal Revenue Code currently in effect, which prohibit or otherwise restrict the transactions contemplated by this Agreement.

Section 4.10.    Not a Foreign Person

Neither Borrower nor Borrower Principal is a “foreign Person” within the meaning of §1445(f)(3) of the Internal Revenue Code.

Section 4.11.    Enforceability

The Loan Documents are not subject to any right of rescission, set-off, counterclaim or defense by Borrower, including the defense of usury, nor would the operation of any of the terms of the Loan Documents, or the exercise of any right thereunder, render the Loan Documents unenforceable, and neither Borrower nor Borrower Principal has asserted any right of rescission, set-off, counterclaim or defense with respect thereto. No Default or Event of Default exists under or with respect to any Loan Document.

Section 4.12.    Business Purposes

The Loan is solely for the business purpose of Borrower, and is not for personal, family, household, or agricultural purposes.

Section 4.13.    Compliance

Except as expressly disclosed by Borrower to Lender in writing in connection with the closing of the Loan, to Borrower’s knowledge, Borrower and the Property, and the use and operation thereof, comply in all material respects with all Legal Requirements, including, without limitation, building and zoning ordinances and codes and the Americans with Disabilities Act. To Borrower’s knowledge, Borrower is not in default or violation of any order,

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writ, injunction, decree or demand of any Governmental Authority and Borrower has received no written notice of any such default or violation. There has not been committed by Borrower or, to Borrower’s knowledge, any other Person in occupancy of or involved with the operation or use of the Property any act or omission affording any Governmental Authority the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents.

Section 4.14.    Financial Information

All financial data, including, without limitation, the balance sheets, statements of cash flow, statements of income and operating expense and rent rolls, that have been delivered to Lender in respect of Borrower, Borrower Principal and/or the Property (a) are true, complete and correct in all material respects, (b) accurately represent the financial condition of Borrower, Borrower Principal or the Property, as applicable, as of the date of such reports, and (c) to the extent prepared or audited by an independent certified public accounting firm, have been prepared in accordance with tax basis accounting throughout the periods covered, except as disclosed therein. Borrower does not have any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that are known to Borrower and reasonably likely to have a material adverse effect on the Property or the current and/or intended operation thereof, except as referred to or reflected in said financial statements. Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of Borrower or Borrower Principal from that set forth in said financial statements.

Section 4.15.    Condemnation

No Condemnation or other proceeding has been commenced or, to Borrower’s best knowledge, is threatened or contemplated with respect to all or any portion of the Property or for the relocation of roadways providing access to the Property.

Section 4.16.    Utilities and Public Access; Parking

To the best of Borrower’s knowledge, the Property has adequate rights of access to public ways and is served by water, sewer, sanitary sewer and storm drain facilities adequate to service the Property for full utilization of the Property for its intended uses. All public utilities necessary to the full use and enjoyment of the Property as currently used and enjoyed are located either in the public right-of-way abutting the Property (which are connected so as to serve the Property without passing over other property) or in recorded easements serving the Property and such easements are set forth in and insured by the Title Insurance Policy. All roads necessary for the use of the Property for its current purposes have been completed and dedicated to public use and accepted by all Governmental Authorities. The Property has, or is served by, parking to the extent required to comply with all Legal Requirements.

Section 4.17.    Separate Lots

The Property is assessed for real estate tax purposes as one or more wholly independent tax lot or lots, separate from any adjoining land or improvements not constituting a part of such

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lot or lots, and no other land or improvements is assessed and taxed together with the Property or any portion thereof.

Section 4.18.    Assessments

To Borrower’s knowledge, there are no pending or proposed special or other assessments for public improvements or otherwise affecting the Property, nor are there any contemplated improvements to the Property that may result in such special or other assessments.

Section 4.19.    Insurance

Borrower has obtained and has delivered to Lender either (a) certified copies of all Policies or, to the extent such Policies are not available as of the Closing Date, certificates of insurance with respect to all such Policies reflecting the insurance coverages, amounts and other requirements set forth in this Agreement or (b) the certificate of American Express that American Express is a self-insurer with respect to the occurrences referred to in Section 8.1 and that the rating of American Express by the Rating Agencies has not fallen below the Trigger Rating.

Section 4.20.    Use of Property

The Property is used exclusively for general office purposes and other appurtenant and related uses.

Section 4.21.    Certificate of Occupancy; Licenses

All certificates of occupancy and to Borrower’s knowledge all certifications, permits, licenses and approvals, including, without limitation, certificates of completion and any applicable liquor license required for the legal use, occupancy and operation of the Property for the purpose intended herein, have been obtained and are valid and in full force and effect. Borrower shall keep and maintain (or require American Express to maintain) all licenses necessary for the operation of the Property for the purpose intended herein. The use being made of the Property is in conformity with the final certificate of occupancy (or compliance, if applicable) and any other permits or licenses issued for the Property.

Section 4.22.    Flood Zone

None of the Improvements on the Property are located in an area identified by the Federal Emergency Management Agency as an area having special flood hazards, or, if any portion of the Improvements is located within such area, Borrower will obtain or cause American Express to obtain the insurance prescribed in Section 8.1(a)(i) at any time during the term of the Loan when American Express ceases to be a self-insurer or when the rating of American Express by the Rating Agencies falls below the Trigger Rating.

Section 4.23.    Physical Condition

Except as set forth in the Property Condition Report, to Borrower’s knowledge, the Property, including, without limitation, all buildings, improvements, parking facilities,

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sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, are in good condition, order and repair in all material respects. Except as set forth in the Property Condition Report, to Borrower’s knowledge, there exist no structural or other material defects or damages in the Property, as a result of a Casualty or otherwise, and whether latent or otherwise. Borrower has not received notice from any insurance company or bonding company of any defects or inadequacies in the Property, or any part thereof, which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond.

Section 4.24.    Boundaries; Survey

(a)           None of the Improvements which were included in determining the appraised value of the Property lie outside the boundaries and building restriction lines of the Property to any material extent, and (b) no improvements on adjoining properties encroach upon the Property and no easements or other encumbrances upon the Property encroach upon any of the Improvements so as to materially affect the value or marketability of the Property.

Section 4.25.    Leases

The entire Property has been leased to American Express pursuant to the American Express Lease. (a) The American Express Lease is in full force and effect; (b) the premises demised under the American Express Lease have been completed and American Express has accepted possession of and is in occupancy of the demised premises; (c) American Express has commenced the payment of rent under the American Express Lease, there are no offsets, claims or defenses to the enforcement thereof and Borrower has no monetary obligations to American Express under the American Express Lease; (d) all Rents due and payable under the American Express Lease have been paid and no portion thereof has been paid for any period more than thirty (30) days in advance; (e) the rent payable under the American Express Lease is the amount of fixed rent set forth in the American Express Lease, and there is no claim or basis for a claim by American Express thereunder for an adjustment to the Rent; (f) Borrower is the sole owner of the entire landlord’s interest in the American Express Lease; (g) the American Express Lease is the valid, binding and enforceable obligation of Borrower and American Express thereunder and there are no agreements with American Express with respect to the American Express Lease other than as expressly set forth therein; (h) no Person has any possessory interest in, or right to occupy, the Property or any portion thereof except under the American Express Lease; (i) except for the right of first refusal set forth in Article 4 and the right to offer to purchase the Property under Article 12, the American Express Lease does not contain any option or offer to purchase or right of first refusal to purchase the Property or any part thereof; and (j) neither the American Express Lease nor the Rents have been assigned or pledged except to Lender, and no other Person has any interest therein.

Section 4.26.    Filing and Recording Taxes

All mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid by any Person under applicable Legal Requirements currently in effect in connection with

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the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents, including, without limitation, the Mortgage, have been paid or will be paid, and, under current Legal Requirements, the Mortgage is enforceable in accordance with its terms by Lender (or any subsequent holder thereof).

Section 4.27.    Management Agreement

The Management Agreement is in full force and effect and there is no default thereunder by any party thereto and, to Borrower’s knowledge, no event has occurred that, with the passage of time and/or the giving of notice, would constitute a default thereunder. No management fees under the Management Agreement are accrual and unpaid.

Section 4.28.    Illegal Activity

No portion of the Property has been or will be purchased with proceeds of any illegal activity, and no part of the proceeds of the Loan will be used in connection with any illegal activity.

Section 4.29.    Construction Expenses

All costs and expenses of any and all labor, materials, supplies and equipment used in the construction, maintenance or repair of the Improvements have been paid in full. To Borrower’s knowledge after due inquiry, there are no claims for payment for work, labor or materials affecting the Property which are or may become a lien prior to, or of equal priority with, the Liens created by the Loan Documents.

Section 4.30.    Personal Property

Borrower has paid in full for, and is the owner of, all Personal Property (other than tenants’ property) used in connection with the operation of the Property, free and clear of any and all security interests, liens or encumbrances, except for Permitted Encumbrances and the Lien and security interest created by the Loan Documents.

Section 4.31.    Taxes

Borrower and Borrower Principal have filed all federal, state, county, municipal, and city income, personal property and other tax returns required to have been filed by them and have paid all taxes and related liabilities which have become due pursuant to such returns or pursuant to any assessments received by them. Neither Borrower nor Borrower Principal knows of any basis for any additional assessment in respect of any such taxes and related liabilities for prior years.

Section 4.32.    Permitted Encumbrances

None of the Permitted Encumbrances, individually or in the aggregate, materially interferes with the benefits of the security intended to be provided by the Loan Documents, materially and adversely affects the value of the Property, impairs the use or the operation of the Property or impairs Borrower’s ability to pay its obligations in a timely manner.

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Section 4.33.    Federal Reserve Regulations

Borrower will use the proceeds of the Loan for the purposes set forth in Section 2.1(d) hereof and not for any illegal activity. No part of the proceeds of the Loan will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by Legal Requirements or prohibited by the terms and conditions of this Agreement or the other Loan Documents.

Section 4.34.    Investment Company Act

Borrower is not (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; (b) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (c) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

Section 4.35.    Reciprocal Easement Agreements

(a)           Neither Borrower nor any other party is currently in default (nor has any notice been given or received with respect to an alleged or current default) under any of the terms and conditions of the REA, and the REA remains unmodified and in full force and effect;

(b)           All easements granted pursuant to the REA which were to have survived the site preparation and completion of construction (to the extent that the same has been completed), remain in full force and effect and have not been released, terminated, extinguished or discharged by agreement or otherwise;

(c)           To the best of Borrower’s knowledge, all sums due and owing by Borrower to the other parties to the REA (or by the other parties to the REA to the Borrower) pursuant to the terms of the REA, including without limitation, all sums, charges, fees, assessments, costs, and expenses in connection with any taxes, site preparation and construction, non-shareholder contributions, and common area and other property management activities have been paid, are current, and no lien has attached on the Property (or threat thereof been made) for failure to pay any of the foregoing;

(d)           The terms, conditions, covenants, uses and restrictions contained in the REA do not conflict in any manner with any terms, conditions, covenants, uses and restrictions contained in any Lease or in any agreement between Borrower and occupant of any peripheral parcel, including without limitation, conditions and restrictions with respect to kiosk placement, tenant restrictions (type, location or exclusivity), sale of certain goods or services, and/or other use restrictions; and

(e)           The terms, conditions, covenants, uses and restrictions contained in the American Express Lease do not conflict in any manner with any terms, conditions, covenants, uses and restrictions contained in the REA, any other lease or in any agreement between Borrower and

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occupant of any peripheral parcel, including without limitation, conditions and restrictions with respect to kiosk placement, tenant restrictions (type, location or exclusivity), sale of certain goods or services, and/or other use restrictions.

Section 4.36.    No Change in Facts or Circumstances; Disclosure

All information submitted by Borrower or its agents to Lender and in all financial statements, reports, certificates and other documents submitted in connection with the Loan or in satisfaction of the terms thereof and all statements of fact made by Borrower in this Agreement or in any other Loan Document, are accurate, complete and correct in all material respects. There has been no material adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading in any material respect or that otherwise materially and adversely affects or might materially and adversely affect the Property or the business operations or the financial condition of Borrower. Borrower has disclosed to Lender all material facts and has not failed to disclose any material fact that could cause any representation or warranty made herein to be materially misleading.

Section 4.37.    Intellectual Property

All trademarks, trade names and service marks necessary to the business of Borrower as presently conducted or as Borrower contemplates conducting its business are in good standing and, to the extent of Borrower’s actual knowledge, uncontested. Borrower has not infringed, is not infringing, and has not received notice of infringement with respect to asserted trademarks, trade names and service marks of others. To Borrower’s knowledge, there is no infringement by others of trademarks, trade names and service marks of Borrower.

Section 4.38.    Compliance with Anti-Terrorism Laws

None of Borrower, Borrower Principal or any Person who Controls Borrower or Borrower Principal currently is identified by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) or otherwise qualifies as an Embargoed Person, and Borrower has implemented procedures to ensure that no Person who now or hereafter owns a material direct or indirect equity interest in Borrower is an Embargoed Person or is Controlled by an Embargoed Person. To Borrower’s knowledge neither Borrower nor Borrower Principal is in violation of any applicable law relating to anti-money laundering or anti-terrorism, including, without limitation, those related to transacting business with Embargoed Persons or the requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, U.S. Public Law 107-56, and the related regulations issued thereunder, including temporary regulations (collectively, as the same may be amended from time to time, the “Patriot Act”). To the best of Borrower’s knowledge, no tenant at the Property is currently identified by OFAC or otherwise qualifies as an Embargoed Person, or is owned or Controlled by an Embargoed Person.

Section 4.39.    Patriot Act

Neither Borrower nor Borrower Principal shall (a) be or become subject at any time to any law, regulation, or list of any government agency (including, without limitation, the list maintained by OFAC and accessible through the OFAC website) that prohibits or limits any

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lender from making any advance or extension of credit to Borrower or from otherwise conducting business with Borrower and Borrower Principal, or (b) fail to provide documentary and other evidence of Borrower’s identity as may be requested by any lender at any time to enable any lender to verify Borrower’s identity or to comply with any applicable law or regulation, including, without limitation, the Patriot Act. In addition, Borrower hereby agrees to provide to Lender any additional information that Lender deems necessary from time to time in order to ensure compliance with all applicable laws concerning money laundering and similar activities.

Section 4.40.    Survival

Borrower agrees that, unless expressly provided otherwise, all of the representations and warranties of Borrower set forth in this Article 4 and elsewhere in this Agreement and in the other Loan Documents shall survive for so long as any portion of the Debt remains owing to Lender. All representations, warranties, covenants and agreements made in this Agreement or in the other Loan Documents by Borrower shall be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.

ARTICLE 5
BORROWER COVENANTS

From the date hereof and until repayment of the Debt in full and performance in full of all obligations of Borrower under the Loan Documents or the earlier release of the Lien of the Mortgage (and all related obligations) in accordance with the terms of this Agreement and the other Loan Documents, Borrower hereby covenants and agrees with Lender that:

Section 5.1.      Existence; Compliance with Legal Requirements

(a)           Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, rights, licenses, permits and franchises and comply with all Legal Requirements applicable to it and the Property. Borrower hereby covenants and agrees not to commit, permit or suffer to exist any act or omission affording any Governmental Authority the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents. Borrower shall at all times maintain, preserve and protect all franchises and trade names used in connection with the operation of the Property. So long as American Express is in compliance with the terms of the American Express Lease with respect to the matters described in this Section 5.1, Borrower shall be deemed in compliance with this Section 5.1.

(b)           Borrower, at its own expense, may contest or permit American Express to contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the Legal Requirements affecting the Property, provided that (i) no Default or Event of Default has occurred and is continuing; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower or the Property is subject and shall not constitute a default thereunder; (iii) neither the Property, any part thereof or interest therein, any of the tenants or occupants thereof, nor Borrower shall be affected in any material adverse way as a result of such proceeding; (iv) non-compliance with the

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Legal Requirements shall not impose civil or criminal liability on Borrower or Lender; (v) unless the contest is initiated and conducted by American Express pursuant to the American Express Lease Borrower shall have furnished the security as may be required in the proceeding or by Lender to ensure compliance by Borrower with the Legal Requirements; and (vi) if the contest is initiated and conducted by Borrower, Borrower shall have furnished to Lender all other items reasonably requested by Lender. Borrower shall give written notice to Lender of any contest initiated and conducted by Borrower promptly after initiation thereof and shall inform Lender of any contest initiated and conducted by American Express of which Borrower is given notice by American Express.

Section 5.2.      Maintenance and Use of Property

Borrower shall cause the Property to be maintained in a good and safe condition and repair. The Improvements and the Personal Property shall not be removed, demolished or except as may be expressly permitted under the American Express Lease without the consent of the landlord thereunder, materially altered (except for normal replacement of the Personal Property) without the prior written consent of Lender. So long as American Express is in compliance with the terms of the American Express Lease with respect to the matters described in this Section 5.2, Borrower shall be deemed in compliance with this Section 5.2. If under applicable zoning provisions the use of all or any portion of the Property is or shall become a nonconforming use, Borrower will not cause or permit the nonconforming use to be discontinued or the nonconforming Improvement to be abandoned without the express written consent of Lender.

Section 5.3.      Waste

Borrower shall not commit or suffer any waste of the Property or make any change in the use of the Property which will in any way materially increase the risk of fire or other hazard arising out of the operation of the Property, or take any action that might invalidate or give cause for cancellation of any Policy, or do or permit to be done thereon anything that may in any way impair the value of the Property or the security for the Loan. Borrower will not, without the prior written consent of Lender, permit any drilling or exploration for or extraction, removal, or production of any minerals from the surface or the subsurface of the Property, regardless of the depth thereof or the method of mining or extraction thereof.

Section 5.4.      Taxes and Other Charges

(a)           Borrower shall pay or cause American Express to pay all Taxes and Other Charges now or hereafter levied or assessed or imposed against the Property or any part thereof as the same become due and payable. Borrower shall furnish or cause to be furnished to Lender such receipts for the payment of the Taxes and the Other Charges as are delivered to Borrower by American Express and, upon request by Lender, a certificate from Borrower and Borrower Principal that as of the date of such certificate there are no liens filed against the Property arising from the non-payment of Taxes or Other Charges. Borrower shall not suffer nor permit American Express to suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. So long as American Express is in

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compliance with the terms of the American Express Lease with respect to the matters described in this Section 5.4, Borrower shall be deemed in compliance with this Section 5.4.

(b)           Borrower, at its own expense, may contest or permit American Express to contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) no Default or Event of Default has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable Legal Requirements; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish or cause American Express to furnish (but only to the extent required to be furnished by American Express under the American Express Lease) such security as may be required in the proceeding, or deliver to Lender such reserve deposits as may be requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon (unless Borrower or American Express has paid all of the Taxes or Other Charges under protest). Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the judgment of Lender, the entitlement of such claimant is established or the Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, canceled or lost or there shall be any danger of the Lien of the Mortgage being primed by any related Lien.

Section 5.5.      Litigation

Borrower shall give prompt written notice to Lender of any litigation or governmental proceedings pending or threatened in writing against Borrower which might materially adversely affect Borrower’s condition (financial or otherwise) or business or the Property.

Section 5.6.      Access to Property

Borrower shall permit agents, representatives and employees of Lender to inspect the Property or any part thereof at reasonable hours upon reasonable advance notice, subject to the rights of American Express under the American Express Lease.

Section 5.7.Notice of Default

Borrower shall promptly advise Lender of any material adverse change in the condition (financial or otherwise) of Borrower, any Borrower Principal or the Property or of the occurrence of any Default or Event of Default of which Borrower has knowledge and of any American Express Lease Default of which Borrower has knowledge.

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Section 5.8.      Cooperate in Legal Proceedings

Borrower shall at Borrower’s expense cooperate fully with Lender with respect to any proceedings before any court, board or other Governmental Authority which may in any way affect the rights of Lender hereunder or any rights obtained by Lender under any of the other Loan Documents and, in connection therewith, permit Lender, at its election, to participate in any such proceedings.

Section 5.9.      Performance by Borrower

Borrower shall in a timely manner observe, perform and fulfill each and every covenant, term and provision to be observed and performed by Borrower under this Agreement and the other Loan Documents and any other agreement or instrument affecting or pertaining to the Property and any amendments, modifications or changes thereto.

Section 5.10.    Awards; Insurance Proceeds

Borrower shall cooperate with Lender in obtaining for Lender the benefits of any Awards or Insurance Proceeds lawfully or equitably payable to Borrower in connection with the Property, and Lender shall be reimbursed for any expenses incurred in connection therewith (including reasonable, actual attorneys’ fees and disbursements, and the payment by Borrower of the expense of an appraisal on behalf of Lender in case of a Casualty or Condemnation affecting the Property or any part thereof) out of such Awards or Insurance Proceeds. The actual payment of any Awards shall be governed by Section 8.4 hereof.

Section 5.11.    Financial Reporting

(a)           Borrower and Borrower Principal shall keep adequate books and records of account in accordance with federal tax basis accounting, or in accordance with other methods acceptable to Lender in its sole discretion, consistently applied and shall furnish to Lender:

(i)            prior to a Securitization, at the request of Lender, monthly, and following a Securitization, quarterly and annual certificates signed and dated by Borrower, certifying that the American Express Lease is in full force and effect, whether any defaults (or any matter that, with the passage of time or the giving of notice, could become a default) exist thereunder and any other information as is reasonably required by Lender, within twenty (20) days after the end of each calendar month, thirty (30) days after the end of each fiscal quarter or one hundred twenty (120) days after the close of each fiscal year of Borrower, as applicable;

(ii)           prior to a Securitization, at the request of Lender, monthly, and following a Securitization, quarterly and annual operating statements of the Property, prepared and certified by Borrower in the form required by Lender, detailing the revenues received, the expenses incurred and the net operating income before and after debt service (principal and interest) and major capital improvements (including, without limitation, any capital improvements planned by American Express of which Borrower has notice) for the period of calculation and containing appropriate year-to-date information, within twenty (20) days after the end of each calendar month, thirty (30) days after the end of each

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fiscal quarter or one hundred (120) days after the close of each fiscal year of Borrower, as applicable;

(iii)          annual balance sheets, profit and loss statements, statements of cash flows, and statements of change in financial position of Borrower and Borrower Principal in the form required by Lender prepared and certified by Borrower and Borrower Principal within one hundred twenty (120) days after the close of each fiscal year of Borrower and Borrower Principal, as the case may be (provided that with respect to Borrower, such statements may be delivered by the holder(s) of beneficial interests in Borrower in accordance with Section 6.1(a)(viii); and

(iv)          all financial statements, operating statements, budgets, capital repair estimates or projections and certifications of any kind with respect to the foregoing delivered to Borrower by American Express under the American Express Lease.

(b)           To the extent not inconsistent with the provisions of Section 5.11(a) hereof (e.g., GAAP accounting and audits shall not be required ), Borrower and Borrower Principal shall furnish Lender with such other additional financial or management information (including state and federal tax returns) as may, from time to time, be reasonably required by Lender in form and substance satisfactory to Lender (including, without limitation, any financial reports required to be delivered by any Tenant or any guarantor of any Lease pursuant to the terms of such Lease), and shall furnish to Lender and its agents convenient facilities for the examination and audit of any such books and records

(c)           Without limiting any other rights available to Lender under this Loan Agreement or any of the other Loan Documents, in the event Borrower shall fail to timely furnish Lender any financial document or statement in accordance with this Section 5.11, Borrower shall promptly pay to Lender a non-refundable charge in the amount of $500 for each such failure. The payment of such amount shall not be construed to relieve Borrower of any Event of Default hereunder arising from such failure.

(d)           All items requiring the certification of Borrower shall, except where Borrower is an individual, require a certificate executed by the general partner, managing member or chief executive officer of Borrower, as applicable (and the same rules shall apply to any sole shareholder, general partner or managing member which is not an individual).

Section 5.12.    Estoppel Statement

(a)           After request by Lender, Borrower shall within ten (10) Business Days furnish Lender with a statement, duly acknowledged and certified, setting forth (i) the amount of the original principal amount of the Note, (ii) the rate of interest on the Note, (iii) the unpaid principal amount of the Note, (iv) the date installments of interest and/or principal were last paid, (v) any offsets or defenses to the payment of the Debt, if any, and (vi) that the Note, this Agreement, the Mortgage and the other Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such modification.

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(b)Borrower shall use its best efforts to deliver to Lender, promptly upon request, a duly executed estoppel certificate from American Express on the form attached to the American Express Lease as an exhibit.

Section 5.13.Leasing Matters.

(a)Borrower (i) shall observe and perform all the obligations imposed on the landlord under the American Express Lease and shall not do or permit to be done anything to impair the value of the American Express Lease as security for the Debt; (ii) shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the American Express Lease on the part of the tenant thereunder to be observed or performed; (iv) shall not collect any of the Rents more than one (1) month in advance; (v) shall not execute any other assignment of the landlord’s interest in the American Express Lease or the Rents; and (vi) shall not consent to any assignment of or subletting under the American Express Lease not in accordance with its terms without the prior written consent of Lender.

(b)Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a surrender of space under or shorten the term of the American Express Lease.

Section 5.14.Property Management

(a)Borrower shall (i) promptly perform and observe all of the covenants required to be performed and observed by it under the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (ii) promptly notify Lender of any default under the Management Agreement of which it is aware; (iii) promptly deliver to Lender a copy of any notice of default or other material notice received by Borrower under the Management Agreement; (iv) promptly give notice to Lender of any notice or information that Borrower receives which indicates that Manager is terminating the Management Agreement or that Manager is otherwise discontinuing its management of the Property; and (v) promptly enforce the performance and observance of all of the covenants required to be performed and observed by Manager under the Management Agreement.

(b)If at any time, (i) Manager shall become insolvent or a debtor in a bankruptcy proceeding; (ii) an Event of Default has occurred and is continuing; or (iii) a default has occurred and is continuing after the expiration of any applicable cure periods under the Management Agreement, Borrower shall, at the request of Lender, terminate the Management Agreement upon thirty (30) days prior notice to Manager and replace Manager with a Qualified Manager, it being understood and agreed that the management fee for such replacement manager shall not exceed then prevailing market rates.

(c)In addition to the foregoing, in the event that Lender, in Lender’s reasonable discretion, at any time prior to the termination of the Assignment of Management Agreement, determines that the Property is not being managed in accordance with generally accepted management practices for projects similarly situated, Lender may deliver written notice thereof to Borrower and Manager, which notice shall specify with particularity the grounds for Lender’s

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determination. If Lender reasonably determines that the conditions specified in Lender’s notice are not remedied to Lender’s reasonable satisfaction by Borrower or Manager within thirty (30) days from the date of such notice or that Borrower or Manager has failed to diligently undertake correcting such conditions within such thirty (30) day period, Lender may direct Borrower to terminate the Management Agreement and to replace Manager with a Qualified Manager on terms and conditions satisfactory to Lender, it being understood and agreed that the management fee for such replacement manager shall not exceed then prevailing market rates.

(d)Borrower shall not, without the prior written consent of Lender (which consent shall not be unreasonably withheld, conditioned or delayed): (i) surrender, terminate or cancel the Management Agreement or otherwise replace Manager or enter into any other management agreement with respect to the Property; (ii) reduce or consent to the reduction of the term of the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Management Agreement; or (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the Management Agreement in any material respect. In the event that Borrower replaces Manager at any time during the term of Loan pursuant to this subsection, such Manager shall be a Qualified Manager.

(e)Notwithstanding the foregoing, Borrower shall be permitted to transfer the management of the Property to an Affiliate of Manager provided that the terms of the management contract between Borrower and such entity provides for fees no greater than, is on terms that are substantially similar to and is no less favorable to Borrower than the Management Agreement in effect as of the date hereof.

Section 5.15.Liens

Borrower shall not, without the prior written consent of Lender, create, incur, assume or suffer to exist any Lien on any portion of the Property or permit any such action to be taken, except Permitted Encumbrances.

Section 5.16.Debt Cancellation

Borrower shall not cancel or otherwise forgive or release any claim or debt owed to Borrower by any Person, except for adequate consideration and in the ordinary course of Borrower’s business.

Section 5.17.Zoning

Borrower shall not initiate or consent to any zoning reclassification of any portion of the Property or seek any variance under any existing zoning ordinance or use or permit the use of any portion of the Property in any manner that could result in such use becoming a non-conforming use under any zoning ordinance or any other applicable land use law, rule or regulation, without the prior written consent of Lender.

Section 5.18.ER1SA

(a)Borrower shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under the

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Note, this Agreement or the other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA.

(b)Borrower further covenants and agrees to deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan, as requested by Lender in its sole discretion, that (i) Borrower is not and does not maintain an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmental plan” within the meaning of Section 3(3) of ERISA; (ii) Borrower is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (iii) one or more of the following circumstances is true:

(A)Equity interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R. §2510.3-101(b)(2);

(B)Less than twenty-five percent (25%) of each outstanding class of equity interests in Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R. §2510.3-101(f)(2); or

(C)Borrower qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. §2510.3-l01(c) or (e).

Section 5.19.No Joint Assessment

Borrower shall not suffer, permit or initiate the joint assessment of the Property with (a) any other real property constituting a tax lot separate from the Property, or (b) any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the Lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to the Property.

Section 5.20.Reciprocal Easement Agreements

Borrower shall not enter into, terminate or modify any REA without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Borrower shall enforce, comply with, and cause each of the parties to the REA to comply with all of the material economic terms and conditions contained in the REA, provided that Borrower may agree, without Lender’s consent, to modifications to any REA or to grant easements with respect to the Property which could not reasonably be expected to have a material adverse effect on the use, value or operation of the Property, on the ability of American Express to perform its obligations under the American Express Lease or on Borrower’s ability to perform its obligations under the Loan Documents.

ARTICLE 6
ENTITY COVENANTS

Section 6.1.Single Purpose Entity/Separateness

Until the Debt has been paid in Full, Borrower represents, warrants and covenants as follows:

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(a)Borrower has not and will not:

(i)engage in any business or activity other than the ownership, operation and maintenance of the Property, and activities incidental thereto;

(ii)acquire or own any assets other than (A) the Property, and (B) such incidental Personal Property as may be necessary for the operation of the Property;

(iii)except as expressly provided in Article 7 hereof, merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure;

(iv)fail to observe all organizational formalities, or fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the applicable Legal Requirements of the jurisdiction of its organization or formation, or amend, modify, terminate or fail to comply with the provisions of its organizational documents;

(v)own any subsidiary, or make any investment in, any Person;

(vi)commingle its assets with the assets of any other Person, or permit any Affiliate or constituent party independent access to its bank accounts;

(vii)incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than, (A) the Debt, (B) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past the date incurred and paid on or prior to such date, and/or (C) financing leases and purchase money indebtedness incurred in the ordinary course of business relating to Personal Property on commercially reasonable terms and conditions; provided however, the aggregate amount of the indebtedness described in (B) and (C) shall not exceed at any time three percent (3%) of the outstanding principal amount of the Note;

(viii)permit its records, books of account, bank accounts, financial statements and accounting records (including with respect to financial position, assets, liabilities, net worth and operating results) to be shown on the financial statements of any holder of a beneficial interest in Borrower unless such financial statements shall contain a footnote indicating that Borrower is a separate legal entity and the assets of Borrower are not available as collateral to creditors of such holder;

(ix)enter into any contract or agreement with any general partner, member, shareholder, principal, guarantor of the obligations of Borrower, or any Affiliate of the foregoing, except upon terms and conditions that are intrinsically fair, commercially reasonable and substantially similar to those that would be available on an arm’s-length basis with unaffiliated third parties;

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(x)maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;

(xi)assume or guarantee the debts of any other Person, hold itself out to be responsible for the debts of any other Person, or otherwise pledge its assets for the benefit of any other Person or hold out its credit as being available to satisfy the obligations of any other Person;

(xii)make any loans or advances to any Person;

(xiii)fail to file its own tax returns or files a consolidated federal income tax return with any Person (unless prohibited or required, as the case may be, by applicable Legal Requirements);

(xiv)fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name or fail to correct any known misunderstanding regarding its separate identity;

(xv)fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that Borrower’s failure to do so solely because of a shortfall in cash flow derived from the operation of the Property shall not, by itself, constitute a breach of this covenant);

(xvi)Without the unanimous written consent of all of its members, as applicable, and the written consent of 100% of the managers of Borrower, including, without limitation, the Independent Director, (a) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any Creditors Rights Laws, (b) seek or consent to the appointment of a receiver, liquidator or any similar official, (c) take any action that might cause such entity to become insolvent, or (d) make an assignment for the benefit of creditors;

(xvii)fail, to allocate shared expenses (including, without limitation, shared office space and services performed by an employee of an Affiliate) among the Persons sharing such expenses and to use separate stationery, invoices and checks;

(xviii)fail to remain solvent or pay its own liabilities (including, without limitation, salaries of its own employees) only from its own funds (provided that Borrower’s failure to do so solely because of a shortfall in cash flow derived from the operation of the Property shall not, by itself, constitute a breach of this covenant);

(xix)acquire obligations or securities of its partners, members, shareholders or other affiliates, as applicable;

(xx)violate or cause to be violated the assumptions made with respect to Borrower, Manager (if applicable) and their respective direct and/or indirect owners in any opinion letter pertaining to substantive consolidation delivered to Lender in connection with the Loan; or

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(xxi)fail to maintain a sufficient number of employees in light of its contemplated business operations.

(b)The limited liability company agreement of Borrower (the “LLC Agreement”) shall provide that (i) upon the occurrence of any event that causes the sole member of Borrower (“Member”) to cease to be the member of Borrower (other than (A) upon an assignment by Member of all of its limited liability company interest in Borrower and the admission of the transferee in accordance with the Loan Documents and the LLC Agreement, or (B) the resignation of Member and the admission of an additional member of Borrower in accordance with the terms of the Loan Documents and the LLC Agreement), any person acting as Independent Director of Borrower shall, without any action of any other Person and simultaneously with the Member ceasing to be the member of Borrower, automatically be admitted to Borrower (“Special Member”) and shall continue Borrower without dissolution and (ii) Special Member may not resign from Borrower or transfer its rights as Special Member unless (A) a successor Special Member has been admitted to Borrower as Special Member in accordance with requirements of Delaware law and (B) such successor Special Member has also accepted its appointment as an Independent Director. The LLC Agreement shall further provide that (i) Special Member shall automatically cease to be a member of Borrower upon the admission to Borrower of a substitute Member, (ii) Special Member shall be a member of Borrower that has no interest in the profits, losses and capital of Borrower and has no right to receive any distributions of Borrower assets, (iii) pursuant to Section 18-301 of the Delaware Limited Liability Company Act (the “Act”), Special Member shall not be required to make any capital contributions to Borrower and shall not receive a limited liability company interest in Borrower, (iv) Special Member, in its capacity as Special Member, may not bind Borrower and (v) except as required by any mandatory provision of the Act, Special Member, in its capacity as Special Member, shall have no right to vote on, approve or otherwise consent to any action by, or matter relating to, Borrower, including, without limitation, the merger, consolidation or conversion of Borrower; provided, however, such prohibition shall not limit the obligations of Special Member, in its capacity as Independent Director, to vote on such matters required by the Loan Documents or the LLC Agreement. In order to implement the admission to Borrower of Special Member, Special Member shall execute a counterpart to the LLC Agreement. Prior to its admission to Borrower as Special Member, Special Member shall not be a member of Borrower.

Upon the occurrence of any event that causes the Member to cease to be a member of Borrower, to the fullest extent permitted by law, the personal representative of Member shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of Member in Borrower, agree in writing (i) to continue Borrower and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of Member of Borrower in Borrower. Any action initiated by or brought against Member or Special Member under any Creditors Rights Laws shall not cause Member or Special Member to cease to be a member of Borrower and upon the occurrence of such an event, the business of Borrower shall continue without dissolution. The LLC Agreement shall provide that each of Member and Special Member waives any right it might have to agree in writing to dissolve Borrower upon the occurrence of any action initiated by or brought against Member or Special Member under any Creditors Rights Laws, or the occurrence of an event that causes Member or Special Member to cease to be a member of Borrower.

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Section 6.2.Change of Name, Identity or Structure

Borrower shall not change or permit to be changed (a) Borrower’s name, (b) Borrower’s identity (including its trade name or names), (c) Borrower’s principal place of business set forth on the first page of this Agreement, (d) the corporate, partnership or other organizational structure of Borrower, or Borrower Principal, (e) Borrower’s state of organization, or (f) Borrower’s organizational identification number, without in each case notifying Lender of such change in writing at least thirty (30) days prior to the effective date of such change and, in the case of a change in Borrower’s structure, without first obtaining the prior written consent of Lender. In addition, Borrower shall not change or permit to be changed any organizational documents of Borrower if such change would adversely impact the covenants set forth in Section 6.1 and Section 6.4 hereof. Borrower authorizes Lender to file any financing statement or financing statement amendment required by Lender to establish or maintain the validity, perfection and priority of the security interest granted herein. At the request of Lender, Borrower shall execute a certificate in form satisfactory to Lender listing the trade names under which Borrower intends to operate the Property, and representing and warranting that Borrower does business under no other trade name with respect to the Property. If Borrower does not now have an organizational identification number and later obtains one, or if the organizational identification number assigned to Borrower subsequently changes, Borrower shall promptly notify Lender of such organizational identification number or change. Nothing in this Section 6.2 shall be deemed to restrict any express rights granted to Borrower under Article 7 hereof.

Section 6.3.Business and Operations

Borrower will qualify to do business and will remain in good standing under the laws of the State as and to the extent the same are required for the ownership, maintenance, management and operation of the Property.

Section 6.4.Independent Director

(a)The organizational documents of Borrower shall provide that at all times there shall be, and Borrower shall cause there to be, at least one duly appointed member of the board of managers (each an “Independent Director”) of Borrower reasonably satisfactory to Lender who is not at the time of such individual’s initial appointment, and shall not have been at any time during the preceding five (5) years, and shall not be at any time while serving as a manager of Borrower, either (i) a shareholder (or other equity owner) of, or an officer, director, partner, manager, member (other than as a Special Member in the case of single member Delaware limited liability companies), employee, attorney or counsel of, Borrower, Borrower Principal or any of their respective shareholders, partners, members, subsidiaries or affiliates; (ii) a customer or creditor of, or supplier to, Borrower or any of its respective shareholders, partners, members, subsidiaries or affiliates who derives any of its purchases or revenue from its activities with Borrower or any Affiliate of any of them; (iii) a Person who Controls or is under common Control with any such shareholder, officer, director, partner, manager, member, employee, supplier, creditor or customer; or (iv) a member of the immediate family of any such shareholder, officer, director, partner, manager, member, employee, supplier, creditor or customer.

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(b)The organizational documents of Borrower shall provide that the board of managers of Borrower shall not take any action which, under the terms of any certificate of incorporation, by-laws or any voting trust agreement with respect to any common stock, requires an unanimous vote of the board of managers of Borrower unless at the time of such action there shall be at least one member of the board who is an Independent Director. Borrower will not, without the unanimous written consent of its board of managers including the Independent Director, on behalf of Borrower, (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable Creditors Rights Laws; (ii) seek or consent to the appointment of a receiver, liquidator or any similar official; (iii) take any action that might cause such entity to become insolvent; or (iv) make an assignment for the benefit of creditors.

ARTICLE 7
NO SALE OR ENCUMBRANCE

Section 7.1.Transfer Definitions

For purposes of this Article 7 an “Affiliated Manager” shall mean any managing agent in which Borrower, Borrower Principal, or any affiliate of such entities has, directly or indirectly, any legal, beneficial or economic interest; “Control” shall mean the power to direct the management and policies of a Restricted Party, directly or indirectly, whether through the ownership of voting securities or other beneficial interests, by contract or otherwise; “Restricted Party” shall mean Borrower, Borrower Principal, any Affiliated Manager, or any shareholder, partner, member or non-member manager, or any direct or indirect legal or beneficial owner of Borrower, Borrower Principal, any Affiliated Manager or any non-member manager; and a “Sale or Pledge” shall mean a voluntary or involuntary sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment, grant of any options with respect to, or any other transfer or disposition of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) of a legal or beneficial interest.

Section 7.2.No Sale/Encumbrance

(a)Borrower shall not cause or permit a Sale or Pledge of the Property or any part thereof or any legal or beneficial interest therein nor permit a Sale or Pledge of an interest in any Restricted Party (in each case, a “Prohibited Transfer”), other than pursuant to the American Express Lease, without the prior written consent of Lender.

(b)A Prohibited Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock in one or a series of transactions; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general or limited partner or any profits or proceeds relating to such partnership interests or the creation or issuance of new partnership

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interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of any member or any profits or proceeds relating to such membership interest; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the Manager (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.14.

Section 7.3.Permitted Transfers

Notwithstanding the provisions of Section 7.2, the following transfers shall not be deemed to be a Prohibited Transfer: (a) a transfer by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party, so long as Borrower delivers notice to Lender as soon as practicable thereafter and that such Restricted Party is promptly reconstituted, if applicable, following the death of such member, partner or shareholder and there is no change in Control of such Restricted Party as a result of such transfer; (b) the Sale or Pledge, in one or a series of related transactions, of not more than forty-nine percent (49%) of the stock, limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; provided, however, no such transfers shall result in a change in Control in the Restricted Party or change in control of the Property, and as a condition to each such transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed transfer. Notwithstanding the foregoing, any one or more of the transfers that results in any Person owning in excess of forty-nine percent (49%) of the ownership interest in a Restricted Party shall comply with the requirements of Section 7.4.

Section 7.4.Lender’s Rights

Lender reserves the right to condition the consent to a Prohibited Transfer requested hereunder upon (a) a modification of the terms hereof and an assumption of the Note and the other Loan Documents as so modified by the proposed Prohibited Transfer, (b) receipt of payment of a transfer fee equal to one percent (1%) of the outstanding principal balance of the Loan and all of Lender’s expenses incurred in connection with such Prohibited Transfer, (c) receipt of written confirmation from the Rating Agencies that the Prohibited Transfer will not result in a downgrade, withdrawal or qualification of the initial, or if higher, then current ratings issued in connection with a Securitization, or if a Securitization has not occurred, any ratings to be assigned in connection with a Securitization, (d) the proposed transferee’s continued compliance with the covenants set forth in this Agreement (including, without limitation, the covenants in Article 6) and the other Loan Documents, (e) a new manager for the Property and a new management agreement satisfactory to Lender, and (f) the satisfaction of such other conditions and/or legal opinions as Lender shall determine in its sole discretion to be in the interest of Lender. All expenses incurred by Lender shall be payable by Borrower whether or not Lender consents to the Prohibited Transfer. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Prohibited Transfer made without Lender’s consent. This provision shall apply to each and every Prohibited Transfer, whether or not Lender has consented to any previous Prohibited Transfer. In the event an opinion letter pertaining to

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substantive consolidation was delivered to Lender and the Rating Agencies in connection with the closing of the Loan, and if any Sale or Pledge permitted under this Article 7 results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the ownership interests in a Restricted Party, Borrower shall, prior to such transfer, and in addition to any other requirement for Lender consent contained herein, deliver a revised substantive non-consolidation opinion letter to Lender reflecting such Prohibited Transfer, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies.

Section 7.5.Assumption

Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to a transfer of the Property in its entirety to, and the related assumption of the Loan by, any Person (a “Transferee”) provided that each of the following terms and conditions are satisfied:

(a)no Default or Event of Default has occurred;

(b)Borrower shall have (i) delivered written notice to Lender of the terms of such prospective transfer not less than forty-five (45) days before the date on which such transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in the amount of $10,000. Lender shall have the right to approve or disapprove the proposed transfer based on its then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Property, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate;

(c)Borrower shall have paid to Lender, concurrently with the closing of such transfer, (i) a non-refundable assumption fee in an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note, and (ii) all out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection with the transfer;

(d)(i) Transferee shall have assumed and agreed to pay the Debt as and when due subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such transfer, Transferee and its constituent partners, members or shareholders as Lender may require, shall have executed, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender shall have

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assumed the obligations of Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the transfer of the Property pursuant to this Section 7.5;

(e)Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable law, and shall execute any additional documents reasonably requested by Lender;

(f)Borrower shall have delivered to Lender, without any cost or expense to Lender, such endorsements to Lender’s Title Insurance Policy insuring that fee simple or leasehold title to the Property, as applicable, is vested in Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;

(g)Transferee shall have furnished to Lender, if Transferee is a corporation, partnership, limited liability company or other entity, all appropriate papers evidencing Transferee’s organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;

(h)Transferee shall assume the obligations of Borrower under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement;

(i)Transferee shall furnish an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (g) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (E) with respect to such other matters as Lender may reasonably request;

(j)if required by Lender, Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a qualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;

(k)Borrower’s obligations under the contract of sale pursuant to which the transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.5; and

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(l)Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies.

A consent by Lender with respect to a transfer of the Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Sale or Pledge of the Property. Upon the transfer of the Property pursuant to this Section 7.5, Borrower and Borrower Principal shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.

Section 7.6.Assumption by Inland Permitted Transferee

Notwithstanding the foregoing provisions of this Article 7, Borrower shall be permitted to transfer the Property in its entirety to, provided the Loan is simultaneously assumed by, an Inland Permitted Transferee, and provided further that each of the following terms and conditions is satisfied:

(a)no Default or Event of Default has occurred;

(b)Borrower shall have delivered written notice to Lender of the terms of such prospective transfer not less than forty-five (45) days before the date on which such transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transferee as Lender shall reasonably require;

(c)Borrower shall have paid to Lender all out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection with the transfer;

(d)such Inland Permitted Transferee assumes and agrees to pay the Debt as and when due subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such transfer, such Inland Permitted Transferee and its constituent partners, members or shareholders as Lender may require, shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;

(e)Borrower and such Inland Permitted Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable law, and shall execute any additional documents reasonably requested by Lender;

(f)Borrower shall have delivered to Lender, without any cost or expense to Lender, endorsements to Lender’s Title Insurance Policy insuring that fee simple title to the Property is vested in such Inland Permitted Transferee (subject to Permitted Encumbrances), hazard

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insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;

(g)such Inland Permitted Transferee shall have furnished to Lender, if such Inland Permitted Transferee is a corporation, partnership, limited liability company or other entity, all appropriate papers evidencing Transferee’s organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which papers shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee. Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof, provided, however, that, (i) if such Inland Permitted Transferee is a limited partnership or a limited liability company (with more than one member), Lender may require that the general partner or managing member of such Inland Permitted Transferee also comply with the covenants set forth in Article 6, as modified to state that such general partner or managing member holds an interest in the Inland Permitted Transferee rather than an interest in the Property or (ii) if such Inland Permitted Transferee is a single member limited liability company, the state of organization of such entity must be Delaware and the organizational documents must provide for a springing member upon the bankruptcy or dissolution of the sole member;

(h)such Inland Permitted Transferee shall assume the obligations of Borrower under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement;

(i)Transferee shall furnish an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (g) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (E) with respect to such other matters as Lender may reasonably request, including, without limitation, customary single member limited liability company opinions in the event that such Inland Permitted Transferee is a Delaware limited liability company; and

(j)in the event a substantive non-consolidation opinion was required in connection with the closing of the Loan, Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies.

A consent by Lender with respect to a transfer of the Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.6 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Sale or Pledge of the Property.

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ARTICLE 8
INSURANCE; CASUALTY; CONDEMNATION; RESTORATION

Section 8.1Insurance

(a)Subject to the provisions of paragraph (g) of this Section 8.1, Borrower shall obtain and maintain, or cause American Express to maintain, insurance for Borrower and the Property providing at least the following coverages:

(i)comprehensive “special causes of loss” form of insurance (or its equivalent) on the Improvements and the Personal Property (A) in an amount equal to not less than one hundred percent (100%) of the “Full Replacement Cost,” which for purposes of this Agreement shall mean actual replacement value (exclusive of costs of excavations, foundations, underground utilities and footings) with a waiver of depreciation; (B) written on a replacement cost basis and containing either an agreed amount endorsement with respect to the Improvements and Personal Property or a waiver of all co-insurance provisions; (C) providing for no deductible in excess of $10,000 for all such insurance coverage; (D) at all times insuring against at least those hazards that are commonly insured against under a “special causes of loss” form of policy, as the same shall exist on the date hereof, and together with any increase in the scope of coverage provided under such form after the date hereof; and (E) if any of the Improvements or the use of the Property shall at any time constitute legal non-conforming structures or uses, providing coverage for contingent liability from Operation of Building Laws, Demolition Costs and Increased Cost of Construction Endorsements and containing an “Ordinance or Law Coverage” or “Enforcement” endorsement. In addition, Borrower shall obtain: (y) if any portion of the Improvements is currently or at any time in the future located in a “special flood hazard area” designated by the Federal Emergency Management Agency, flood hazard insurance in an amount equal to the maximum amount of such insurance available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended; and (z) earthquake insurance in amounts and in form and substance reasonably satisfactory to Lender in the event the Property is located in an area with a high degree of seismic risk, provided that the insurance pursuant to clauses (y) and (z) hereof shall be on terms consistent with the special causes of loss form required under this subsection (i);

(ii)commercial general liability insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about the Property, with such insurance (A) to be on the so-called “occurrence” form with a general aggregate limit of not less than $2,000,000 and a per occurrence limit of not less than $1,000,000; (B) to continue at not less than the aforesaid limit until required to be changed by Lender in writing by reason of changed economic conditions making such protection inadequate; and (C) to cover at least the following hazards: (1) premises and operations; (2) products and completed operations; (3) independent contractors; (4) blanket contractual liability; and (5) contractual liability covering the indemnities contained in Article 12 and Article 14 hereof to the extent the same is available;

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(iii)if the rating of American Express issued by the Rating Agencies falls below the Trigger Rating, loss of rents insurance or business income insurance, as applicable, (A) with loss payable to Lender; (B) covering all risks required to be covered by the insurance provided for in subsection (i) above; and (C) which provides that after the physical loss to the Improvements and Personal Property occurs, the loss of rents or income, as applicable, will be insured until such rents or income, as applicable, either returns to the same level that existed prior to the loss or the expiration of twelve (12) months, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period; and (D) which contains an extended period of indemnity endorsement which provides that after the physical loss to the Improvements and Personal Property has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss, or the expiration of twelve (12) months from the date that the Property is repaired or replaced and operations are resumed, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period. The amount of such loss of rents or business income insurance, as applicable, shall be determined prior to the date hereof and at least once each year thereafter based on Borrower’s reasonable estimate of the gross income from the Property for the succeeding period of coverage required above. All proceeds payable to Lender pursuant to this subsection shall be held by Lender and shall be applied to the obligations secured by the Loan Documents from time to time due and payable hereunder and under the Note; provided, however, that nothing herein contained shall be deemed to relieve Borrower of its obligations to pay the obligations secured by the Loan Documents on the respective dates of payment provided for in the Note, this Agreement and the other Loan Documents except to the extent such amounts are actually paid out of the proceeds of such loss of rents or business income insurance, an applicable;

(iv)at all times during which structural construction, repairs or alterations are being made with respect to the Improvements, and only if the Property coverage form does not otherwise apply, (A) owner’s contingent or protective liability insurance covering claims not covered by or under the terms or provisions of the above mentioned commercial general liability insurance policy; and (B) the insurance provided for in subsection (i) above written in a so-called Builder’s Risk Completed Value form (1) on a non-reporting basis, (2) against “special causes of loss” insured against pursuant to subsection (i) above, (3) including permission to occupy the Property, and (4) with an agreed amount endorsement waiving co-insurance provisions;

(v)workers’ compensation, subject to the statutory limits of the State, and employer’s liability insurance in respect of any work or operations on or about the Property, or in connection with the Property or its operation (if applicable);

(vi)comprehensive boiler and machinery insurance, if applicable, in amounts as shall be reasonably required by Lender on terms consistent with the commercial property insurance policy required under subsection (i) above;

(vii)excess liability insurance in an amount not less than $75,000,000 per occurrence on terms consistent with the commercial general liability insurance required under subsection (ii) above; and

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(viii)upon sixty (60) days’ written notice, such other reasonable insurance and in such reasonable amounts as Lender from time to time may reasonably request against such other insurable hazards which at the time are commonly insured against for property similar to the Property located in or around the region in which the Property is located.

With respect to the policies required to be maintained pursuant to clauses (i) through (viii) above, Borrower shall use commercially reasonable efforts, consistent with those of prudent owners of institutional quality commercial real estate, to maintain insurance against Losses resulting from acts of terrorism.

(b)All insurance provided for in Section 8.1(a) shall be obtained under valid and enforceable policies (collectively, the “Policies” or in the singular, the “Policy”),and shall be subject to the approval of Lender as to insurance companies, amounts, deductibles, loss payees and insureds. The Policies shall be issued by financially sound and responsible insurance companies authorized to do business in the State and having a claims paying ability rating of “A-” or better by S&P (or such other ratings approved by Lender) and/or a general policy rating of “A” or better and a financial class of VIII or better by A.M. Best Company, Inc. The Policies described in Section 8.1(a) shall designate Lender and its successors and assigns as additional insureds, mortgagees and/or loss payee as deemed appropriate by Lender. To the extent such Policies are not available as of the Closing Date, Borrower shall deliver to Lender prior to the Closing Date an Acord 28 or similar certificate of insurance evidencing the coverages and amounts required hereunder and, upon request of Lender as soon as available after the Closing Date, certified copies of all Policies. Not less than ten (10) days prior to the expiration dates of any insurance coverage in place with respect to the Property, Borrower shall deliver to Lender an Acord 28 or similar certificate, accompanied by evidence satisfactory to Lender of payment of the premiums due in connection therewith (the “Insurance Premiums”), and, as soon as available thereafter, certified copies of all renewal Policies.

(c)Any blanket insurance Policy shall specifically allocate to the Property the amount of coverage from time to time required hereunder and shall otherwise provide the same protection as would a separate Policy insuring only the Property in compliance with the provisions of Section 8.1(a).

(d)All Policies provided for or contemplated by Section 8.1(a), except for the Policy referenced in Section 8.1(a)(v), shall name Borrower as the insured and Lender as the additional insured, as its interests may appear, and in the case of property damage, boiler and machinery, flood and earthquake insurance, shall contain a so-called New York standard non-contributing mortgagee clause in favor of Lender providing that the loss thereunder shall be payable to Lender.

(e)All Policies provided for in Section 8.1(a) shall contain clauses or endorsements to the effect that:

(i)no act or negligence of Borrower, or anyone acting for Borrower, or of any Tenant or other occupant, or failure to comply with the provisions of any Policy, which might otherwise result in a forfeiture of the insurance or any part thereof, shall in

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any way affect the validity or enforceability of the insurance insofar as Lender is concerned;

(ii)the Policies shall not be materially changed (other than to increase the coverage provided thereby) or canceled by the insurer without at least thirty (30) days’ (ten (10) days’ in the case of non-payment of premium) prior written notice to Lender and any other party named therein as an additional insured;

(iii)the issuers thereof shall give written notice to Lender if the Policies have not been renewed thirty (30) days prior to its expiration; and

(iv)Lender shall not be liable for any Insurance Premiums thereon or subject to any assessments thereunder.

(f)If at any time Lender is not in receipt of written evidence that all insurance required hereunder is in full force and effect, Lender shall have the right, without notice to Borrower, to take such action as Lender deems necessary to protect its interest in the Property, including, without limitation, obtaining such insurance coverage as Lender in its sole discretion deems appropriate. All premiums incurred by Lender in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by Borrower to Lender upon demand and, until paid, shall be secured by the Mortgage and shall bear interest at the Default Rate.

(g)Notwithstanding any other provision hereof to the contrary, Lender acknowledges that so long as no American Express Lease Default has occurred, Borrower shall not be required to obtain the insurance coverages set forth in paragraphs (a)(i) through (viii) if (x) Guarantor (or American Express if there is no Guarantor) is a self-insurer and maintains a rating issued by the Rating Agencies of not less than the Trigger Rating or (y) American Express maintains insurance with coverages and carriers in compliance with the terms of the American Express Lease.

Section 8.2.Casualty

If the Property shall be damaged or destroyed, in whole or in part, by fire or other casualty (a “Casualty”), Borrower shall give prompt notice of such damage to Lender and shall promptly commence and diligently prosecute the Restoration of the Property in accordance with Section 8.4, whether or not Lender makes any Net Proceeds available pursuant to Section 8.4. Borrower shall pay all costs of such Restoration whether or not such costs are covered by insurance. Lender may, but shall not be obligated to make proof of loss if not made promptly by Borrower. Borrower shall adjust all claims for Insurance Proceeds in consultation with, and approval of, Lender; provided, however, if an Event of Default has occurred and is continuing, Lender shall have the exclusive right to participate in the adjustment of all claims for Insurance Proceeds.

Section 8.3.Condemnation

Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the Condemnation of the Property of which Borrower has knowledge and shall deliver to Lender copies of any and all papers served in connection with such proceedings.

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Lender may participate in any such proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Debt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by a condemning authority, Borrower shall promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the provisions of Section 8.4, whether or not Lender makes any Net Proceeds available pursuant to Section 8.4. If the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt. So long as no American Express Lease Default has occurred, the payment and allocation of any Awards shall be governed by the American Express Lease.

Section 8.4.Restoration

The following provisions shall apply in connection with the Restoration of the Property:

(a)If the Net Proceeds shall be less than $50,000 and the costs of completing the Restoration, shall be less than $50,000, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 8.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.

(b)If the Net Proceeds are equal to or greater than $50,000 or the costs of completing the Restoration are equal to or greater than $50,000, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 8.4. The term “Net Proceeds” for purposes of this Section 8.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 8.1(a)(i), (iv), (vi) and (viii) as a result of a Casualty, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting the same (“Insurance Proceeds”), or (ii) the net amount of the Award as a result of a Condemnation, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting the same (“Condemnation Proceeds”), whichever the case may be.

(i)The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:

(A)no Event of Default shall have occurred and be continuing;

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(B)(1) in the event the Net Proceeds are Insurance Proceeds, less than thirty percent (30%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of a Casualty, or (2) in the event the Net Proceeds are Condemnation Proceeds, less than ten percent (10%) of the land constituting the Property is taken, such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land;

(C)The American Express Lease shall remain in full force and effect during and after completion of the Restoration without abatement of Rent;

(D)Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than sixty (60) days after such Casualty or Condemnation, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion;

(E)Lender shall be satisfied that any operating deficits, including all scheduled payments under the Note, which will be incurred with respect to the Property as a result of the occurrence of any such Casualty or Condemnation, whichever the case may be, will be covered out of the insurance coverage referred to in Section 8.1(a)(iii) above;

(F)Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, (2) the earliest date required for such completion under the terms of any Leases or material agreements affecting the Property, (3) such time as may be required under applicable zoning law, ordinance, rule or regulation, or (4) the expiration of the insurance coverage referred to in Section 8.1(a)(iii);

(G)the Property and the use thereof after the Restoration will be in compliance with and permitted under all Legal Requirements;

(H)the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements;

(I)such Casualty or Condemnation, as applicable, does not result in the loss of access to the Property or the Improvements;

(J)Borrower shall deliver, or cause to be delivered, to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, which budget shall be acceptable to Lender; and

(K)the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s reasonable judgment to cover the cost of the Restoration.

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(ii)The Net Proceeds shall be held by Lender until disbursements commence, and, until disbursed in accordance with the provisions of this Section 8.4, shall constitute additional security for the Debt and other obligations under the Loan Documents. The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all the conditions precedent to such advance, including those set forth in Section 8.4(b)(i), have been satisfied, (B) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the related Restoration item have been paid for in full, and (C) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy. Notwithstanding the foregoing, Business Interruption Proceeds required to be maintained by Borrower pursuant to section 8.1(a)(iii) shall be controlled by Lender at all times, shall not be subject to the provisions of this Section 8.4 and shall be used solely for the payment of the obligations under the Loan Documents and Operating Expenses.

(iii)All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Restoration Consultant”). Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration, as well as the contracts in excess of $50,000 under which they have been engaged, shall be subject to prior review and acceptance by Lender and the Restoration Consultant. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration, including, without limitation, reasonable counsel fees and disbursements and the Restoration Consultant’s fees, shall be paid by Borrower.

(iv)In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Restoration Consultant, minus the Restoration Retainage. The term “Restoration Retainage” shall mean an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Restoration Consultant, until the Restoration has been completed. The Restoration Retainage shall be reduced to five percent (5%) of the costs incurred upon receipt by Lender of satisfactory evidence that fifty percent (50%) of the Restoration has been completed. The Restoration Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Section 8.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Restoration Retainage shall not be released until the Restoration Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 8.4(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate Governmental Authorities, and Lender receives evidence satisfactory to

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Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Restoration Retainage; provided, however, that Lender will release the portion of the Restoration Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Restoration Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company issuing the Title Insurance Policy, and Lender receives an endorsement to the Title Insurance Policy insuring the continued priority of the lien of the Mortgage and evidence of payment of any premium payable for such endorsement. If required by Lender, the release of any such portion of the Restoration Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.

(v)Lender shall not be obligated to make disbursements of the Net Proceeds more frequently than once every calendar month.

(vi)If at any time the Net Proceeds or the undisbursed balance thereof shall not, in the reasonable opinion of Lender in consultation with the Restoration Consultant, be sufficient to pay in full the balance of the costs which are estimated by the Restoration Consultant to be incurred in connection with the completion of the Restoration, Borrower shall deposit the deficiency (the “Net Proceeds Deficiency”) with Lender before any further disbursement of the Net Proceeds shall be made. The Net Proceeds Deficiency deposited with Lender shall be held by Lender and shall be disbursed for costs actually incurred in connection with the Restoration on the same conditions applicable to the disbursement of the Net Proceeds, and until so disbursed pursuant to this Section 8.4(b) shall constitute additional security for the Debt and other obligations under the Loan Documents.

(vii)The excess, if any, of the Net Proceeds and the remaining balance, if any, of the Net Proceeds Deficiency deposited with Lender after the Restoration Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 8.4(b), and the receipt by Lender of evidence satisfactory to Lender that all costs incurred in connection with the Restoration have been paid in full, shall be remitted by Lender to Borrower, provided no Event of Default shall have occurred and shall be continuing under the Note, this Agreement or any of the other Loan Documents.

(c)All Net Proceeds not required (i) to be made available for the Restoration or (ii) to be returned to Borrower as excess Net Proceeds pursuant to Section 8.4(b)(vii) may (x) be retained and applied by Lender toward the payment of the Debt whether or not then due and payable in such order, priority and proportions as Lender in its sole discretion shall deem proper, or, (y) at the sole discretion of Lender, the same may be paid, either in whole or in part, to Borrower for such purposes and upon such conditions as Lender shall designate.

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(d)In the event of foreclosure of the Mortgage, or other transfer of title to the Property in extinguishment in whole or in part of the Debt, all right, title and interest of Borrower in and to the Policies then in force concerning the Property and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure, Lender or other transferee in the event of such other transfer of title.

(e)Notwithstanding the foregoing, so long as no American Express Lease Default has occurred, the Net Proceeds shall be used for restoration of the Property in accordance with the provisions of the American Express Lease.

ARTICLE 9
REPLACEMENTS; RESERVE FUNDS

Section 9.1. Replacements

On an ongoing basis throughout the term of the Loan, Borrower shall make capital repairs, replacements and improvements necessary to keep the Property in good order and repair and in a good marketable condition or prevent deterioration of the Property. So long as no American Express Lease Default shall have occurred, the compliance by American Express with its obligations for maintenance of the Property as set forth in the American Express Lease shall be deemed compliance by Borrower with the provisions of this Section 9.1.

Section 9.2.Tax and Insurance Reserve Funds

If required by Lender following a default by American Express under the American Express Lease Borrower shall establish an Eligible Account with Lender or Lender’s agent sufficient to discharge Borrower’s obligations for the payment of Taxes and Insurance Premiums pursuant to Section 5.4 and Section 8.1 hereof (the “Tax and Insurance Reserve Account”) Borrower shall deposit into the Tax and Insurance Reserve Account on each Scheduled Payment Date (a) one-twelfth of the Taxes that Lender estimates will be payable during the next ensuing twelve (12) months or such higher amount necessary to accumulate with Lender sufficient funds to pay all such Taxes at least thirty (30) days prior to the earlier of (i) the date that the same will become delinquent and (ii) the date that additional charges or interest will accrue due to the non-payment thereof, and (b) except to the extent Lender has waived the insurance escrow because the insurance required hereunder is maintained under a blanket insurance Policy acceptable to Lender in accordance with Section 8.1(c), one-twelfth of the Insurance Premiums that Lender estimates will be payable during the next ensuing twelve (12) months for the renewal of the coverage afforded by the Policies upon the expiration thereof or such higher amount necessary to accumulate with Lender sufficient funds to pay all such Insurance Premiums at least thirty (30) days prior to the expiration of the Policies (said amounts in (a) and (b) above hereinafter called the “Tax and Insurance Reserve Funds”). Lender will apply the Tax and Insurance Reserve Funds to payments of Taxes and Insurance Premiums required to be made by Borrower pursuant to Section 5.4 and Section 8.1 hereof. In making any disbursement from the Tax and Insurance Reserve Account, Lender may do so according to any bill, statement or estimate procured from the appropriate public office or tax lien service (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums), without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim

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thereof. If the amount of the Tax and Insurance Reserve Funds shall exceed the amounts due for Taxes and Insurance Premiums pursuant to Section 5.4 and Section 8.1 hereof, Lender shall, in its sole discretion, return any excess to Borrower or credit such excess against future payments to be made to the Tax and Insurance Reserve Account. In allocating any such excess, Lender may deal with the person shown on Lender’s records as being the owner of the Property. Any amount remaining in the Tax and Insurance Reserve Account after the Debt has been paid in full shall be returned to Borrower or the person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto. If at any time Lender reasonably determines that the Tax and Insurance Reserve Funds are not or will not be sufficient to pay Taxes and Insurance Premiums by the dates set forth in (a) and (b) above, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.

Section 9.3.Reserve Funds Generally

(a)No earnings or interest on the Reserve Accounts shall be payable to Borrower. Neither Lender nor any loan servicer that at any time holds or maintains the Reserve Accounts shall have any obligation to keep or maintain such Reserve Accounts or any funds deposited therein in interest-bearing accounts. If Lender or any such loan servicer elects in its sole and absolute discretion to keep or maintain any Reserve Accounts or any funds deposited therein in an interest-bearing account (i) the account shall be an Eligible Account, (ii) such funds shall not be invested except in Permitted Investments, and (iii) all interest earned or accrued thereon shall be for the account of and be retained by Lender or such loan servicer.

(b)Borrower grants to Lender a first-priority perfected security interest in, and assigns and pledges to Lender, each of the Reserve Accounts and any and all funds hereafter deposited therein as additional security for payment of the Debt. Until expended or applied in accordance herewith, the Reserve Accounts and the Reserve Funds shall constitute additional security for the Debt. The provisions of this Section 9.9 are intended to give Lender or any subsequent holder of the Loan “control” of the Reserve Accounts within the meaning of the UCC.

(c)The Reserve Accounts and any and all Reserve Funds deposited therein shall be subject to the exclusive dominion and control of Lender, which shall hold the Reserve Accounts and any or all Reserve Funds now or hereafter deposited therein subject to the terms and conditions of this Agreement. Borrower shall have no right of withdrawal from the Reserve Accounts or any other right or power with respect to the Reserve Accounts or any or all of the Reserve Funds hereinafter deposited therein, except as expressly provided in this Agreement.

(d)Lender shall furnish or cause to be furnished to Borrower, without charge, an annual accounting of each Reserve Account in the normal format of Lender or its loan servicer, showing credits and debits to such Reserve Account and the purpose for which each debit to such Reserve Account was made.

(e)As long as no Event of Default has occurred, Lender shall make disbursements from the Reserve Accounts in accordance with this Agreement. All such disbursements shall be

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deemed to have been expressly pre-authorized by Borrower, and shall not be deemed to constitute the exercise by Lender of any remedies against Borrower unless an Event of Default has occurred and is continuing and Lender has expressly stated in writing its intent to proceed to exercise its remedies as a secured party, pledgee or lienholder with respect to the Reserve Accounts.

(f)The Reserve Funds shall not constitute escrow or trust funds and may be commingled with other monies held by Lender. Notwithstanding anything else herein to the contrary, Lender may commingle in one or more Eligible Accounts any and all funds controlled by Lender, including, without limitation, funds pledged in favor of Lender by other borrowers, whether for the same purposes as the Reserve Accounts or otherwise. Without limiting any other provisions of this Agreement or any other Loan Document, the Reserve Accounts may be established and held in such name or names as Lender or its loan servicer, as agent for Lender, shall deem appropriate, including, without limitation, in the name of Lender or such loan servicer as agent for Lender. In the case of any Reserve Account which is held in a commingled account, Lender or its loan servicer, as applicable, shall maintain records sufficient to enable it to determine at all times which portion of such account is related to the Loan. The Reserve Accounts are solely for the protection of Lender and Lender shall have no responsibility beyond the allowance of due credit for the sums actually received by Lender or beyond the reimbursement or payment of the costs and expenses for which such accounts were established in accordance with their terms. Upon assignment of the Loan by Lender, any Reserve Funds shall be turned over to the assignee and any responsibility of Lender as assignor shall terminate. The requirements of this Agreement concerning Reserve Accounts in no way supersede, limit or waive any other rights or obligations of the parties under any of the Loan Documents or under applicable law.

(g)Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in the Reserve Accounts or the Reserve Funds deposited therein or permit any Lien to attach thereto, except for the security interest granted in this Section 9.9, or any levy to be made thereon, or any UCC Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.

(h)Borrower will maintain the security interest created by this Section 9.9 as a first priority perfected security interest and will defend the right, title and interest of Lender in and to the Reserve Accounts and the Reserve Funds against the claims and demands of all Persons whomsoever. At any time and from time to time, upon the written request of Lender, and at the sole expense of Borrower, Borrower will promptly and duly execute and deliver such further instruments and documents and will take such further actions as Lender reasonably may request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted.

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ARTICLE 10
CASH MANAGEMENT

Section 10.1.Cash Management Account

(a)Borrower acknowledges and confirms that Borrower has established, and Borrower covenants that it shall maintain an Eligible Account into which Borrower shall, and shall cause Manager to, deposit or cause to be deposited all Rents and other revenue from the Property during the Cash Management Period or upon the occurrence of an Event of Default prior to the commencement of the Cash Management Period pursuant to the terms of Section 10.2 hereof (such account, the sub-accounts thereof, all funds at any time on deposit therein and any proceeds, replacements or substitutions of such account or funds therein, are referred to herein as the “Cash Management Account”).

(b)The Cash Management Account shall be in the name of Borrower for the benefit of Lender, provided that Borrower shall be the owner of all funds on deposit in such accounts for federal and applicable state and local tax purposes (except to the extent Lender retains any interest earned on the Cash Management Account for its own account following the occurrence and during the continuance of an Event of Default). Sums on deposit in the Cash Management Account shall not be invested except in such Permitted Investments as determined and directed by Lender and all income earned thereon shall be the income of Borrower and be applied to and become part of the Cash Management Account, to be disbursed in accordance with this Article 10. Lender shall have no liability for any loss resulting from the investment of funds in Permitted Investments in accordance with the terms and conditions of this Agreement.

(c)The Cash Management Account shall be subject to the exclusive dominion and control of Lender during the Cash Management Period or the continuance of an Event of Default and, except as otherwise expressly provided herein, neither Borrower, Manager nor any other party claiming on behalf of, or through, Borrower or Manager, shall have any right of withdrawal therefrom or any other right or power with respect thereto.

(d)Borrower agrees to pay the customary fees and expenses incurred in connection with maintaining the Cash Management Account.

(e)Lender shall be responsible for the performance only of such duties with respect to the Cash Management Account as are specifically set forth herein, and no duty shall be implied from any provision hereof. Lender shall not be under any obligation or duty to perform any act which would involve it in expense or liability or to institute or defend any suit in respect hereof, or to advance any of its own monies. Borrower shall indemnify and hold Lender and its directors, employees, officers and agents harmless from and against any loss, cost or damage (including, without limitation, reasonable attorneys’ fees and disbursements) incurred by such parties in connection with the Cash Management Account other than such as result from the gross negligence or willful misconduct of Lender or intentional nonperformance by Lender of its obligations under this Agreement.

Section 10.2.Deposits and Withdrawals

(a)Borrower represents, warrants and covenants that:

(i)Concurrently with the execution of this Agreement Borrower has executed and delivered to Lender an instruction letter in the form of Exhibit B attached hereto addressed to American Express (the “Tenant Direction Letter”). Upon the occurrence of

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an Event of Default or upon commencement of the Cash Management Period, Lender or Lender’s agent shall have the right to deliver the Tenant Direction Letter to American Express and all payments of Rent and other items payable under the American Express Lease shall thereafter be sent directly to the Cash Management Account;

(ii)           On the occurrence of an Event of Default or the commencement of the Cash Management Period Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the Cash Management Account. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;

(iii)          All Rents or other income from the Property received after the commencement of the Cash Management Period or the occurrence of an Event of Default shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of the Tenant Direction Letter, be deposited in the Cash Management Account within one (1) Business Day of receipt;

(iv)          Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, during the Cash Management Period or the continuance of an Event of Default neither Borrower nor Manager shall terminate, amend, revoke or modify the Tenant Direction Letter in any manner whatsoever or direct or cause American Express to pay any amount in any manner other than as provided in the Tenant Direction Letter; and

(v)           So long as any portion of the Debt remains outstanding, during the Cash Management Period or during the continuance of an Event of Default neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Cash Management Account into which revenues from the ownership and operation of the Property are deposited.

(b)           Intentionally Omitted.

(c)           If an Event of Default shall have occurred and be continuing or during a Cash Management Period, on each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month immediately following the month during which the Cash Management Period commences, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:

(i)            following a default by American Express under the American Express Lease, funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve

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Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.2;

(ii)           funds sufficient to pay the Monthly Payment Amount shall he withdrawn and paid to Lender;

(iii)          funds sufficient to pay any interest accruing at the Default Rate., late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;

(iv)          funds sufficient to pay Operating Expenses (to the extent actually incurred) for the following month shall be allocated to the Operating Expense Reserve Account to be held and disbursed to pay Operating Expenses;

(v)           funds in an amount equal to the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be withdrawn and paid to Lender to be applied to the principal amount of the Loan until the principal amount of the Loan is paid in full.

(d)           Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer.  If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).

(e)           If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Cash Management Account and transfers between any Reserve Account as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion.  Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.

Section 10.3.    Security Interest

(a)           To secure the full and punctual payment of the Debt and performance of all obligations of Borrower now or hereafter existing under this Agreement and the other Loan Documents, Borrower hereby grants to Lender a first-priority perfected security interest in each of the Accounts and the Account Collateral. Furthermore, Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any of the foregoing or permit any Lien to attach thereto or any levy to be made thereon or any UCC Financing Statements to be filed with respect thereto. Borrower will maintain the security

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interest created by this Section 10.3(a) as a first priority perfected security interest and will defend the right, title and interest of Lender in and to each of the Accounts and the Account Collateral against the claims and demands of all Persons whomsoever.

(b)           Borrower authorizes Lender to file any financing statement or statements required by Lender to establish or maintain the validity, perfection and priority of the security interest granted herein in connection with the Cash Management Account. Borrower agrees that at any time and from time to time, at the expense of Borrower, Borrower will promptly and duly execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable, or that Lender may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereby (including, without limitation, any security interest in and to any Permitted Investments) or to enable Lender to exercise and enforce its rights and remedies hereunder.

(c)           Upon the occurrence of an Event of Default, Lender may exercise any or all of its rights and remedies as a secured party, pledgee and lienholder with respect to the Accounts and the Account Collateral. Without limitation of the foregoing, upon any Event of Default, Lender may use the Accounts and the Account Collateral for any of the following purposes: (A) repayment of the Debt, including, but not limited to, principal prepayments and the prepayment premium applicable to such full or partial prepayment (as applicable); (B) reimbursement of Lender for all losses, fees, costs and expenses (including, without limitation, reasonable legal fees) suffered or incurred by Lender as a result of such Event of Default; (C) payment of any amount expended in exercising any or all rights and remedies available to Lender at law or in equity or under this Agreement or under any of the other Loan Documents; (D) payment of any item as required or permitted under this Agreement; or (E) any other purpose permitted by applicable law; provided, however, that any such application of funds shall not cure or be deemed to cure any Event of Default. Without limiting any other provisions hereof, each of the remedial actions described in the immediately preceding sentence shall be deemed to be a commercially reasonable exercise of Lender’s rights and remedies as a secured party with respect to the Accounts and the Account Collateral and shall not in any event be deemed to constitute a setoff or a foreclosure of a statutory banker’s lien. Nothing in this Agreement shall obligate Lender to apply all or any portion of the Accounts and the Account Collateral to effect a cure of any Event of Default, or to pay the Debt, or in any specific order of priority. The exercise of any or all of Lender’s rights and remedies under this Agreement or under any of the other Loan Documents shall not in any way prejudice or affect Lender’s right to initiate and complete a foreclosure under the Mortgage.

ARTICLE 11
EVENTS OF DEFAULT; REMEDIES

Section 11.1.    Event of Default

The occurrence of any one or more of the following events shall constitute an “Event of Default”:

(a)           if any portion of the Debt is not paid on or prior to the tenth day following the date the same is due or if the entire Debt is not paid on or before the Maturity Date;

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(b)           except as otherwise expressly provided in the Loan Documents, if any of the Taxes or Other Charges are not paid when the same are due and payable, unless there is sufficient money in the Tax and Insurance Reserve Account for payment of amounts then due and payable and Lender’s access to such money has not been constrained or restricted in any manner;

(c)           should American Express cease to be a self-insurer or if the rating of American express issued by the Rating Agencies falls below the Trigger Rating, if (i) the Policies are not kept in full force and effect, or (ii) the Accord 28 (or similar) certificate is not delivered to Lender in accordance with Section 8.1;

(d)           if Borrower breaches any covenant with respect to itself contained in Article 6 or any covenant contained in Article 7 hereof;

(e)           if any representation or warranty of, or with respect to, Borrower or Borrower Principal, or any member, general partner, principal or beneficial owner of any of the foregoing, made herein, in any other Loan Document, or in any certificate, report, financial statement or other instrument or document furnished to Lender at the time of the closing of the Loan or during the term of the Loan shall have been false or misleading in any material respect when made;

(f)            if (i) Borrower, or any managing member or general partner of Borrower, Borrower Principal, or American Express shall commence any case, proceeding or other action (A) under any Creditors Rights Laws, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii) there shall be commenced against Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of any order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (iv) Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due;

(g)           if Borrower shall be in default beyond applicable notice and grace periods under any other mortgage, deed of trust, deed to secure debt or other security agreement covering any part of the Property, whether it be superior or junior in lien to the Mortgage;

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(h)           if the Property becomes subject to any mechanic’s, materialman’s or other Lien other than a Lien for any Taxes or Other Charges not then due and payable and the Lien shall remain undischarged of record (by payment, bonding or otherwise) for a period of thirty (30) days;

(i)            if any federal income tax lien is filed against Borrower, any member or general partner of Borrower, Borrower Principal, or the Property and same is not discharged of record (or bonded or insured to Lender’s satisfaction) within thirty (30) days after same is filed;

(j)            if an uninsured judgment is filed against the Borrower in excess of $20,000 which is not vacated or discharged (or bonded or insured to Lender’s satisfaction) within 30 days;

(k)           if any default occurs under any guaranty or indemnity executed in connection herewith and such default continues after the expiration of applicable grace periods, if any;

(l)            if Borrower shall permit any event within its control to occur that would cause any REA to terminate without notice or action by any party thereto or would entitle any party to terminate any REA and the term thereof by giving notice to Borrower; or any REA shall be surrendered, terminated or canceled for any reason or under any circumstance whatsoever except as provided for in such REA; or any term of any REA shall be modified or supplemented unless permitted by the American Express Lease; or Borrower shall fail, within ten (10) Business Days after demand by Lender, to exercise its option to renew or extend the term of any REA or shall fail or neglect to pursue diligently all actions necessary to exercise such renewal rights pursuant to such REA except as provided for in such REA; or

(m)          if an American Express Lease Default shall occur under the American Express Lease; or

(n)           if Borrower shall continue to be in default under any other term, covenant or condition of this Agreement or any of the Loan Documents for more than ten (10) days after notice from Lender in the case of any default which can be cured by the payment of a sum of money or for thirty (30) days after notice from Lender in the case of any other default, provided that if such default cannot reasonably be cured within such thirty (30) day period and Borrower shall have commenced to cure such default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for so long as it shall require Borrower in the exercise of due diligence to cure such default, it being agreed that no such extension shall be for a period in excess of one hundred twenty (120) days.

Section 11.2.    Remedies

(a)           Upon, the occurrence of an Event of Default (other than an Event of Default described in Section 11.l(f) above) and at any time thereafter Lender may, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in the Property, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents against Borrower and the Property,

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including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in Section 11.l(f) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.

(b)           Upon the occurrence of an Event of Default, all or any one or more of the rights, powers, privileges and other remedies available to Lender against Borrower under this Agreement or any of the other Loan Documents executed and delivered by, or applicable to, Borrower or at law or in equity may be exercised by Lender at any time and from time to time, whether or not all or any of the Debt shall be declared due and payable, and whether or not Lender shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Loan Documents with respect to the Property. Any such actions taken by Lender shall be cumulative and concurrent and may be pursued independently, singularly, successively, together or otherwise, at such time and in such order as Lender may determine in its sole discretion, to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of Lender permitted by law, equity or contract or as set forth herein or in the other Loan Documents.

ARTICLE 12
ENVIRONMENTAL PROVISIONS

Section 12.1.    Environmental Representations and Warranties

Borrower represents and warrants, except as disclosed in an Environmental Report of the Property and information that Borrower knows that: (a) there are no Hazardous Materials or underground storage tanks in, on, or under the Property, except those that are both (i) in compliance with Environmental Laws and with permits issued pursuant thereto (if such permits are required), if any, and (ii) either (A) in the case of Hazardous Materials, in amounts not in excess of that necessary to operate the Property for the purposes set forth herein or (B) fully disclosed to and approved by Lender in writing pursuant to an Environmental Report; (b) there are no past, present or threatened Releases of Hazardous Materials in violation of any Environmental Law or which would require remediation by a Governmental Authority in, on, under or from the Property except as described in the Environmental Report; (c) there is no threat of any Release of Hazardous Materials migrating to the Property except as described in the Environmental Report; (d) there is no past or present non-compliance with Environmental Laws, or with permits issued pursuant thereto, in connection with the Property except as described in the Environmental Report; (e) Borrower does not know of, and has not received, any written or oral notice or other communication from any Person relating to Hazardous Materials in, on, under or from the Property; (f) the Property is free of Mold; and (g) Borrower has truthfully and fully provided to Lender, in writing, any and all information relating to environmental conditions in, on, under or from the Property known to Borrower or contained in Borrower’s files and records, including but not limited to any reports relating to Hazardous Materials in, on, under or migrating to or from the Property and/or to the environmental condition of or the presence of Mold at the Property.

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Section 12.2.    Environmental Covenants

Borrower covenants and agrees that so long as Borrower owns, manages and is in possession of the operation of the Property:   (a) all uses and operations on or of the Property, whether by Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto; (b) there shall be no Releases of Hazardous Materials in, on, under or from the Property; (c) there shall be no Hazardous Materials in, on, or under the Property, except those that are both, (i) in compliance with all Environmental Laws and with permits issued pursuant thereto, if and to the extent required, and (ii) (A) in amounts not in excess of that necessary to operate the Property for the purposes set forth herein or (B) fully disclosed to and approved by Lender in writing or (C) with respect to Mold, not in a condition, location, or of a type which may pose a risk to human health or safety or the environment or which may result in damage to or would adversely affect or impair the value or marketability of the Property; (d) Borrower shall keep the Property free and clear of all Environmental Liens; (e) Borrower shall, at its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to Section 12.4 below, including but not limited to providing all relevant information and making knowledgeable persons available for interviews; (f) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender, upon Lender’s reasonable belief that the Property is not in full compliance with all Environmental Laws, and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (g) Borrower shall keep the Property free of Mold; and (h) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender to (i) reasonably effectuate remediation of any Hazardous Materials in, on, under or from the Property; and (ii) comply with any Environmental Law; (i) Borrower shall not allow any tenant or other user of the Property to violate any Environmental Law; and (j) Borrower shall immediately notify Lender in writing after it has become aware of (A) any presence or Release or threatened Release of Hazardous Materials in, on, under, from or migrating towards the Property; (B) any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien against the Property;  (D)  any required or proposed remediation of environmental conditions relating to the Property; and (E) any written or oral notice or other communication of which Borrower becomes aware from any source whatsoever (including but not limited to a Governmental Authority) relating in any way to Hazardous Materials.   Any failure of Borrower to perform its obligations pursuant to this Section 12.2 shall constitute bad faith waste with respect to the Property.

Section 12.3.    Lender’s Rights

Lender and any other Person designated by Lender, including but not limited to any representative of a Governmental Authority, and any environmental consultant, and any receiver appointed by any court of competent jurisdiction, shall have the right, but not the obligation, to enter upon the Property at all reasonable times to assess any and all aspects of the environmental condition of the Property and its use, including but not limited to conducting any environmental assessment or audit (the scope of which shall be determined in Lender’s sole discretion) and taking samples of soil, groundwater or other water, air, or building materials, and conducting

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other invasive testing. Borrower shall cooperate with and provide access to Lender and any such person or entity designated by Lender.

Section 12.4.    Operations and Maintenance Programs

If recommended by the Environmental Report or any other environmental assessment or audit of the Property, Borrower shall establish and comply with an operations and maintenance program with respect to the Property, in form and substance reasonably acceptable to Lender, prepared by an environmental consultant reasonably acceptable to Lender, which program shall address any asbestos-containing material or lead based paint that may now or in the future be detected at or on the Property. Without limiting the generality of the preceding sentence, Lender may require (a) periodic notices or reports to Lender in form, substance and at such intervals as Lender may specify, (b) an amendment to such operations and maintenance program to address changing circumstances, laws or other matters, (c) at Borrower’s sole expense, supplemental examination of the Property by consultants specified by Lender, (d) access to the Property by Lender, its agents or servicer, to review and assess the environmental condition of the Property and Borrower’s compliance with any operations and maintenance program, and (e) variation of the operations and maintenance program in response to the reports provided by any such consultants.

Section 12.5.  Environmental Definitions

“Environmental Law” means any present and future federal, stale and local laws, statutes, ordinances, rules, regulations, standards, policies and other government directives or requirements, as well as common law, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act and the Resource Conservation and Recovery Act, that apply to Borrower or the Property and relate to Hazardous Materials or protection of human health or the environment. “Environmental Liens” means all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of Borrower or any other Person. “Environmental Report”  means the written reports resulting from the environmental site assessments of the Property delivered to Lender in connection with the Loan. “Hazardous Materials” shall mean petroleum and petroleum products and compounds containing them, including gasoline, diesel fuel and oil; explosives, flammable materials; radioactive materials; polychlorinated biphenyls and compounds containing them; lead and lead-based paint; asbestos or asbestos-containing materials in any form that is or could become friable; underground or above-ground storage tanks, whether empty or containing any substance; any substance the presence of which on the Property is prohibited by any federal, state or local authority; any substance that requires special handling; and any other material or substance now or in the future defined as a “hazardous substance,” “hazardous material”, “hazardous waste”, “toxic substance”, “toxic pollutant”, “contaminant”, or “pollutant” within the meaning of any Environmental Law. “Mold” shall mean any mold, fungi, bacteria) or microbial matter present at or in the Property. including, without limitation, building materials which is in a condition, location or a type which may pose a risk to human health or safety or the environment, may result in damage to or would adversely affect or impair the value or marketability of the Property, “Release” of any Hazardous Materials includes but is not limited to any release, deposit, discharge, emission, leaking, spilling, seeping, migrating, injecting,

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pumping, pouring, emptying, escaping, dumping, disposing orother movement of Hazardous Materials.

ARTICLE 13
SECONDARY MARKET

Section 13.1.    Transfer of Loan

Lender may, at any time, sell, transfer or assign the Loan Documents, or grant participations therein (“Participations”)or syndicate the Loan (“Syndication”)or issue mortgage pass-through certificates or other securities evidencing a beneficial interest in a rated or unrated public offering or private placement (“Securities”)(a Syndication or the issuance of Participations and/or Securities, a “Securitization”).

Section 13.2.    Delegation of Servicing

At the option of Lender, the Loan may be serviced by a servicer/trustee selected by Lender and Lender may delegate all or any portion of its responsibilities under this Agreement and the other Loan Documents to such servicer/trustee pursuant to a servicing agreement between Lender and such servicer/trustee.

Section 13.3.    Dissemination of Information

Lender may forward to each purchaser, transferee, assignee, or servicer of, and each participant, or investor in, the Loan, or any Participations and/or Securities or any of their respective successors (collectively, the “Investor”)or any Rating Agency rating the Loan, or any Participations and/or Securities, each prospective Investor, and any organization maintaining databases on the underwriting and performance of commercial mortgage loans, all documents and information which Lender now has or may hereafter acquire relating to the Debt and to Borrower, any managing member or general partner thereof, Borrower Principal, and the Property, including financial statements, whether furnished by Borrower or otherwise, as Lender determines necessary or desirable. Borrower irrevocably waives any and all rights it may have under applicable Legal Requirements to prohibit such disclosure, including but not limited to any right of privacy.

Section 13.4.    Cooperation

Borrower and Borrower Principal agree to cooperate with Lender in connection with any sale or transfer of the Loan or any Participation and/or Securities created pursuant to this Article 13, including, without limitation, (a) the delivery of an estoppel certificate required in accordance with Section 5.12(a) and such other documents as may be reasonably requested by Lender, (b) the execution of such amendments to the Loan Documents as may be requested by the holder of the Note or the Rating Agencies or otherwise to effect the Securitization including, without limitation, bifurcation of the Loan into two or more components and/or separate notes; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, except in connection with a bifurcation of the Loan which may result in varying fixed interest rates and amortization schedules, but which shall

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have the same initial weighted average coupon of the original Note, or (ii) in the reasonable judgment of Borrower, modify or amend any other material economic term of the Loan, or (iii) in the reasonable judgment of Borrower, materially increase Borrower’s obligations and liabilities under the Loan Documents, and (c) make changes to the organizational documents of Borrower and its principals and/or use its best efforts to cause changes to the legal opinions delivered by Borrower in connection with the Loan, provided, that such changes shall not result in a material adverse economic effect to Borrower. Borrower shall also furnish and Borrower and Borrower Principal consent to Lender furnishing to such Investors or such prospective investors or such Rating Agency any and all information concerning the Property, the American Express Lease, the financial condition of Borrower or Borrower Principal as may be requested by Lender, any Investor, any prospective Investor or any Rating Agency in connection with any sale or transfer of the Loan or any Participations or Securities. Neither Borrower nor Borrower Principal shall be responsible for any costs incurred by Lender in connection with a Securitization.

ARTICLE 14
INDEMNIFICATIONS

Section 14.1.    General Indemnification

Borrower shall indemnify, defend and hold harmless the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising out of or in any way relating to any one or more of the following: (a) any accident, injury to or death of persons or loss of or damage to property occurring in, on or about the Property or any part, thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (b) any use, nonuse or condition in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (c) performance of any labor or services or the furnishing of any materials or other property in respect of the Property or any part thereof; (d) any failure of the Property to be in compliance with any applicable Legal Requirements; (e) any and all claims and demands whatsoever which may be asserted against Lender by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants, or agreements contained in any Lease; (f) the holding or investing of the Reserve Accounts, or (g) the payment of any commission, charge or brokerage fee to anyone which may be payable in connection with the funding of the Loan (collectively, the “Indemnified Liabilities”), provided, however, that Borrower shall not have any obligation to Lender hereunder to the extent that such Indemnified Liabilities arise from the gross negligence, illegal acts, fraud or willful misconduct of Lender.   To the extent that the undertaking to indemnify, defend and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, Borrower shall pay the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Lender.

Section 14.2.    Mortgage and Intangible Tax Indemnification

Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising out of or in any

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way relating to any tax on the making and/or recording of the Mortgage, the Note or any of the other Loan Documents, but excluding any income, franchise or other similar taxes.

Section 14.3.    ERISA Indemnification

Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses (including, without limitation, reasonable attorneys’ fees and costs incurred in the investigation, defense, and settlement of Losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Lender’s sole discretion) that Lender may incur, directly or indirectly, as a result of a default under Section 4.9 or Section 5.18 of this Agreement.

Section 14.4.    Survival

The obligations and liabilities of Borrower and Borrower Principal under this Article 14 shall fully survive indefinitely notwithstanding any termination, satisfaction, assignment, entry of a judgment of foreclosure, exercise of any power of sale, or delivery of a deed in lieu of foreclosure of the Mortgage.

ARTICLE 15
EXCULPATION

Section 15.1.    Exculpation

(a)           Except as otherwise provided herein or in the other Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to perform and observe the obligations contained herein or in the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or Borrower Principal, except that Lender may bring a foreclosure action, action for specific performance or other appropriate action or proceeding to enable Lender to enforce and realize upon this Agreement, the Note, the Mortgage and the other Loan Documents, and the interest in the Property, the Rents (following an Event of Default) and any other collateral given to Lender created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower or Borrower Principal, as applicable, only to the extent of Borrower’s or Borrower Principal’s interest in the Property, in the Rents and in any other collateral given to Lender. Lender, by accepting this Agreement, the Note, the Mortgage and the other Loan Documents, agrees that it shall not, except as otherwise provided in this Section 15.1, sue for, seek or demand any deficiency judgment against Borrower or Borrower Principal in any such action or proceeding, under or by reason of or under or in connection with this Agreement, the Note, the Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note, the Mortgage or the other Loan Documents; (ii) impair the right of Lender to name Borrower or Borrower Principal as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Mortgage; (iii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Section 12.6

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and Article 14 of this Agreement), environmental indemnity, guaranty, master lease or similar instrument made in connection with this Agreement, the Note, the Mortgage and the other Loan Documents; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of the assignment of leases provisions contained in the Mortgage, or (vi) impair the right of Lender to obtain a deficiency judgment or other judgment on the Note against Borrower or Borrower Principal if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided however, Lender shall only enforce such judgment to the extent of the Insurance Proceeds and/or Awards.

(b)           Notwithstanding the provisions of this Section 15.1 to the contrary, Borrower and Borrower Principal shall be personally liable to Lender on a joint and several basis for Losses due to:

(i)            fraud or intentional misrepresentation by Borrower, Borrower Principal or any other Affiliate of Borrower or Borrower Principal in connection with the execution and the delivery of this Agreement, the Note, the Mortgage, any of the other Loan Documents, or any certificate, report, financial statement or other instrument or document furnished to Lender at the time of the closing of the Loan or during the term of the Loan;

(ii)           Borrower’s misapplication or misappropriation of Rents received by Borrower after the occurrence of an Event of Default;

(iii)          Borrower’s misapplication or misappropriation of tenant security deposits or Rents collected in advance;

(iv)          the misapplication or the misappropriation of Insurance Proceeds or Awards;

(v)           Borrower’s failure to pay Taxes, Other Charges (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms hereof and there exists no impediment to Lender’s utilization thereof), charges for labor or materials or other charges that can create liens on the Property beyond any applicable notice and cure periods specified herein;

(vi)          Borrower’s failure to return or to reimburse Lender for all Personal Property taken from the Property by or on behalf of Borrower and not replaced with Personal Property of the same utility and of the same or greater value;

(vii)         any act of actual waste or arson by Borrower, any principal, Affiliate, member or general partner thereof or by Borrower Principal, any principal, Affiliate, member or general partner thereof; or

(viii)        Borrower’s failure following any Event of Default to deliver to Lender upon demand all Rents and books and records relating to the Property.

(c)           Notwithstanding the foregoing, the agreement of Lender not to pursue recourse liability as set forth in subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower and Borrower

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Principal on a joint and several basis in the event (i) of a breach by Borrower or Borrower Principal of any of the covenants set forth in Article 6 hereof, to the extent that such breach, is (A) material and (B) is not cured within fifteen (15) days of the earlier to occur of notice from Lender or Borrower’s knowledge of such breach, (ii) of a breach of any of the covenants set forth in Article 7 hereof, (iii) the Property or any part thereof shall become an asset in a voluntary bankruptcy or insolvency proceeding of Borrower, (iv) Borrower, Borrower Principal or any Affiliate, officer, director, or representative which controls, directly or indirectly, Borrower or Borrower Principal files, or joins in the filing of, an involuntary petition against Borrower under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (v) Borrower files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; or (vi) any Affiliate, officer, director, or representative which controls Borrower consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of the Property.

(d)           Nothing herein shall be deemed to be a waiver of any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provision of the U.S. Bankruptcy Code to file a claim for the full amount of the indebtedness secured by the Mortgage or to require that all collateral shall continue to secure all of the indebtedness owing to Lender in accordance with this Agreement, the Note, the Mortgage or the other Loan Documents.

ARTICLE 16
NOTICES

Section 16.1.    Notices

All notices, consents, approvals and requests required or permitted hereunder or under any other Loan Document shall be given in writing and shall be effective for all purposes if hand delivered or sent by (a) certified or registered United States mail, postage prepaid, return receipt requested, (b) expedited prepaid overnight, delivery service, either commercial or United States Postal Service, with proof of attempted delivery, or by (c) telecopier (with answer back acknowledged provided an additional notice is given pursuant to subsection (b) above), addressed as follows (or at such other address and Person as shall be designated from time to time by any party hereto, as the case may be, in a written notice to the other parties hereto in the manner provided for in this Section):

If to Lender:	Bank of America, N.A.
	Capital Markets Servicing Group
	900 West Trade Street, Suite 650
	NC1-026-06-01
	Charlotte, North Carolina 28255
	Attn: Servicing Manager
	Telephone No: (866) 531-0957

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If to Borrower:	Inland Western Plantation Express, L.L.C.
	c/o Inland Real Estate Investment Corporation
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Attention: Roberta Matlin, Vice President
	Facsimile No.: 630-218-4965
With a copy to:	The Inland Real Estate Group, Inc.
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Attention: General Counsel
	Facsimile No.: 630-218-4900
If to Borrower
Principal:	Inland Western Retail Real Estate Trust, Inc.
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Roberta Matlin, Vice President
	Facsimile No.: 630-218-4965
With a copy to:	The Inland Real Estate Group, Inc.
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Attention: General Counsel
	Facsimile No.: 630-218-4900

A notice shall be deemed to have been given: in the case of hand delivery, at the time of delivery; in the case of registered or certified mail, when delivered or the first attempted delivery on a Business Day; or in the case of expedited prepaid delivery and telecopy, upon the first attempted delivery on a Business Day.

ARTICLE 17
FURTHER ASSURANCES

Section 17.1.    Replacement Documents

Upon receipt of an affidavit of an officer of Lender as to the loss, theft, destruction or mutilation of the Note or any other Loan Document which is not of public record and, in the case of such mutilation upon surrender and cancellation of such Note or other Loan Document, Borrower will issue in lieu thereof a replacement Note or other Loan Document, dated the date of such lost, stolen, destroyed or mutilated Note or other Loan Document in the same principal amount thereof and otherwise of like tenor.

Section 17.2.    Recording of Mortgage, etc.

Borrower forthwith upon the execution and delivery of the Mortgage and thereafter, from time to time, will cause the Mortgage and any of the other Loan Documents creating a lien or security interest or evidencing the lien hereof upon the Property and each instrument of further

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assurance to be filed, registered or recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect and perfect the lien or security interest hereof upon, and the interest of Lender in, the Property. Borrower will pay all taxes, filing, registration or recording fees, and all expenses incident to the preparation, execution, acknowledgment and/or recording of the Note, the Mortgage, the other Loan Documents, any note, deed of trust or mortgage supplemental hereto, any security instrument with respect to the Property and any instrument of further assurance, and any modification or amendment of the foregoing documents, and all federal, state, county and municipal taxes, duties, imposts, assessments and charges arising out of or in connection with the execution and delivery of the Mortgage, any deed of trust or mortgage supplemental hereto, any security instrument with respect to the Property or any instrument of further assurance, and any modification or amendment of the foregoing documents, except where prohibited by law so to do.

Section 17.3.    Further Acts, Etc.

Borrower will, at the cost of Borrower (except with respect to costs incurred by Lender, for which Lender shall be responsible), do, execute, acknowledge and deliver all and every further acts, deeds, conveyances, deeds of trust, mortgages, assignments, security agreements, control agreements, notices of assignments, transfers and assurances as Lender shall, from time to time, reasonably require, for the better assuring, conveying, assigning, transferring, and confirming unto Lender the property and rights hereby mortgaged, deeded, granted, bargained, sold, conveyed, confirmed, pledged, assigned, warranted and transferred or intended now or hereafter so to be, or which Borrower may be or may hereafter become bound to convey or assign to Lender, or for carrying out the intention or facilitating the performance of the terms of this Agreement or for filing, registering or recording the Mortgage, or for complying with all Legal Requirements. Borrower, on demand, will execute and deliver, and in the event it shall fail to so execute and deliver, hereby authorizes Lender to execute in the name of Borrower or without the signature of Borrower to the extent Lender may lawfully do so, one or more financing statements and financing statement amendments to evidence more effectively, perfect and maintain the priority of the security interest of Lender in the Property. Borrower grants to Lender an irrevocable power of attorney coupled with an interest for the purpose of exercising and perfecting any and all rights and remedies available to Lender at law and in equity, including without limitation, such rights and remedies available to Lender pursuant to this Section 17.3.

Section 17.4.    Changes in Tax, Debt, Credit and Documentary Stamp Laws

(a)           If any law is enacted or adopted or amended after the date of this Agreement which deducts the Debt from the value of the Property for the purpose of taxation or which imposes a tax, either directly or indirectly, on the Debt or Lender’s interest in the Property, Borrower will pay the tax, with interest and penalties thereon, if any. If Lender is advised by counsel chosen by it that the payment of tax by Borrower would be unlawful or taxable to Lender or unenforceable or provide the basis for a defense of usury then Lender shall have the option by written notice of not less than one hundred eighty (80) days to declare the Debt immediately due and payable.

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(b)           Borrower will not claim or demand or be entitled to any credit or credits on account of the Debt for any part of the Taxes or Other Charges assessed against the Property, or any part thereof, and no deduction shall otherwise be made or claimed from the assessed value of the Property, or any part thereof, for real estate tax purposes by reason of the Mortgage or the Debt. If such claim, credit or deduction shall be required by law, Lender shall have the option, by written notice of not less than one hundred eighty (80) days, to declare the Debt immediately due and payable.

If at any time the United States of America, any State thereof or any subdivision of any such State shall require revenue or other stamps to be affixed to the Note, the Mortgage, or any of the other Loan Documents or impose any other tax or charge on the same, Borrower will pay for the same, with interest and penalties thereon, if any.

Section 17.5.    Expenses

Borrower covenants and agrees to pay or, if Borrower fails to pay, to reimburse, Lender upon receipt of written notice from Lender for all reasonable costs and expenses (including reasonable, actual attorneys’ fees and disbursements and the allocated costs of internal legal services and all actual disbursements of internal counsel) reasonably incurred by Lender in accordance with this Agreement in connection with (a) the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby and thereby and all the costs of furnishing all opinions by counsel for Borrower (including without limitation any opinions requested by Lender as to any legal matters arising under this Agreement or the other Loan Documents with respect to the Property); (b) Borrower’s ongoing performance of and compliance with Borrower’s respective agreements and covenants contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date, including, without limitation, confirming compliance with environmental and insurance requirements; (c) following a request by Borrower, Lender’s ongoing performance and compliance with all agreements and conditions contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date; (d) the negotiation, preparation, execution, delivery and administration of any consents, amendments, waivers or other modifications to this Agreement and the other Loan Documents and any other documents or matters requested by Lender; (e) securing Borrower’s compliance with any requests made pursuant to the provisions of this Agreement; (f) the filing and recording fees and expenses, title insurance and reasonable fees and expenses of counsel for providing to Lender all required legal opinions, and other similar expenses incurred in creating and perfecting the Lien in favor of Lender pursuant to this Agreement and the other Loan Documents; (g) enforcing or preserving any rights, in response to third party claims or the prosecuting or defending of any action or proceeding or other litigation, in each case against, under or affecting Borrower, this Agreement, the other Loan Documents, the Property, or any other security given for the Loan; and (h) enforcing any obligations of or collecting any payments due from Borrower under this Agreement, the other Loan Documents or with respect to the Property or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or of any insolvency or bankruptcy proceedings; provided, however, that Borrower shall not be liable for the payment of any such costs and expenses to the extent the same arise by reason of the gross negligence, illegal acts, fraud or willful misconduct of Lender.

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ARTICLE 18
WAIVERS

Section 18.1.    Remedies Cumulative; Waivers

The rights, powers and remedies of Lender under this Agreement shall be cumulative and not exclusive of any other right, power or remedy which Lender may have against Borrower or Borrower Principal pursuant to this Agreement or the other Loan Documents, or existing at law or in equity or otherwise. Lender’s rights, powers and remedies may be pursued singularly, concurrently or otherwise, at such time and in such order as Lender may determine in Lender’s sole discretion. No delay or omission to exercise any remedy, right or power accruing upon an Event of Default shall impair any such remedy, right or power or shall be construed as a waiver thereof, but any such remedy, right or power may be exercised from time to time and as often as may be deemed expedient. A waiver of one Default or Event of Default with respect to Borrower shall not be construed to be a waiver of any subsequent Default or Event of Default by Borrower or to impair any remedy, right or power consequent thereon.

Section 18.2.    Modification, Waiver in Writing

No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement, or of the Note, or of any other Loan Document, nor consent to any departure by Borrower therefrom, shall in any event be effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given. Except as otherwise expressly provided herein, no notice to, or demand on Borrower, shall entitle Borrower to any other or future notice or demand in the same, similar or other circumstances.

Section 18.3.    Delay Not a Waiver

Neither any failure nor any delay on the part of Lender in insisting upon strict performance of any term, condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under the Note or under any other Loan Document, or any other instrument given as security therefor, shall operate as or constitute a waiver thereof, nor shall a single or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege. In particular, and not by way of limitation, by accepting payment after the due date of any amount payable under this Agreement, the Note or any other Loan Document, Lender shall not be deemed to have waived any right either to require prompt payment when due of all other amounts due under this Agreement, the Note or the other Loan Documents, or to declare a default for failure to effect prompt payment of any such other amount.

Section 18.4.    Trial by Jury

BORROWER, BORROWER PRINCIPAL AND LENDER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH

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REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER, BORROWER PRINCIPAL AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF LENDER, BORROWER PRINCIPAL AND BORROWER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER, BORROWER PRINCIPAL AND LENDER.

Section 18.5.    Waiver of Notice

Borrower shall not be entitled to any notices of any nature whatsoever from Lender except with respect to matters for which this Agreement or the other Loan Documents specifically and expressly provide for the giving of notice by Lender to Borrower and except with respect to matters for which Borrower is not, pursuant to applicable Legal Requirements, permitted to waive the giving of notice. Borrower hereby expressly waives the right to receive any notice from Lender with respect to any matter for which this Agreement or the other Loan Documents do not specifically and expressly provide for the giving of notice by Lender to Borrower.

Section 18.6.    Remedies of Borrower

In the event that a claim or adjudication is made that Lender or its agents have acted unreasonably or unreasonably delayed acting in any case where by law or under this Agreement or the other Loan Documents, Lender or such agent, as the case may be, has an obligation to act reasonably or promptly, Borrower agrees that neither Lender nor its agents shall be liable for any monetary damages, and Borrower’s sole remedies shall be limited to commencing an action seeking injunctive relief or declaratory judgment. The parties hereto agree that any action or proceeding to determine whether Lender has acted reasonably shall be determined by an action seeking declaratory judgment. Lender agrees that, in such event, it shall cooperate in expediting any action seeking injunctive relief or declaratory judgment.

Section 18.7.    Waiver of Marshalling of Assets

To the fullest extent permitted by law, Borrower, for itself and its successors and assigns, waives all rights to a marshalling of the assets of Borrower, Borrower’s partners and others with interests in Borrower, and of the Property, and agrees not to assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce or affect the right of Lender under the Loan Documents to a sale of the Property for the collection of the Debt without any prior or different resort for collection or of the right of Lender to the payment of the Debt out of the net proceeds of the Property in preference to every other claimant whatsoever.

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Section 18.8.    Waiver of Statute of Limitations

Borrower hereby expressly waives and releases, to the fullest extent permitted by law, the pleading of any statute of limitations as a defense to payment of the Debt or performance of its Other Obligations.

Section 18.9.    Waiver of Counterclaim

Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Lender or its agents.

ARTICLE 19
GOVERNING LAW

Section 19.1.    Choice of Law

This Agreement shall be deemed to be a contract entered into pursuant to the laws of the State and shall in all respects be governed, construed, applied and enforced in accordance with the laws of the State and applicable laws of the United States of America, provided, however, that with respect to the security interest in each of the Reserve Accounts, and the Cash Management Account, the laws of the state where each such account is located shall apply.

Section 19.2.    Severability

Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Section 19.3.    Preferences

Lender shall have the continuing and exclusive right to apply or reverse and reapply any and all payments by Borrower to any portion of the obligations of Borrower hereunder. To the extent Borrower makes a payment or payments to Lender, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any Creditors Rights Laws, state or federal law, common law or equitable cause, then, to the extent of such payment or proceeds received, the obligations hereunder or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by Lender.

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ARTICLE 20
MISCELLANEOUS

Section 20.1.    Survival

This Agreement and all covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the making by Lender of the Loan and the execution and delivery to Lender of the Note, and shall continue in full force and effect so long as all or any of the Debt is outstanding and unpaid unless a longer period is expressly set forth herein or in the other Loan Documents. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the legal representatives, successors and assigns of such party. All covenants, promises and agreements in this Agreement, by or on behalf of Borrower, shall inure to the benefit of the legal representatives, successors and assigns of Lender.

Section 20.2.    Lender’s Discretion

Whenever pursuant to this Agreement, Lender exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Lender, the decision of Lender to approve or disapprove or to decide whether arrangements or terms are satisfactory or not satisfactory shall (except as is otherwise specifically herein provided) be in the sole discretion of Lender and shall be final and conclusive.

Section 20.3.    Headings

The Article and/or Section headings and the Table of Contents in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

Section 20.4.    Cost of Enforcement

In the event (a) that the Mortgage is foreclosed in whole or in part, (b) of the bankruptcy, insolvency, rehabilitation or other similar proceeding in respect of Borrower or any of its constituent Persons or an assignment by Borrower or any of its constituent Persons for the benefit of its creditors, or (c) Lender exercises any of its other remedies under this Agreement or any of the other Loan Documents, Borrower shall be chargeable with and agrees to pay all costs of collection and defense, including attorneys’ fees and costs, incurred by Lender or Borrower in connection therewith and in connection with any appellate proceeding or post-judgment action involved therein, together with all required service or use taxes.

Section 20.5.    Schedules Incorporated

The Schedules annexed hereto are hereby incorporated herein as a part of this Agreement with the same effect as if set forth in the body hereof.

Section 20.6.    Offsets, Counterclaims and Defenses

Any assignee of Lender’s interest in and to this Agreement, the Note and the other Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses which are unrelated to such documents which Borrower may otherwise have against any assignor of such documents, and no such unrelated counterclaim or defense shall be interposed or asserted by Borrower in any action or proceeding brought by any such assignee upon such documents and

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any such right to interpose or assert any such unrelated offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by Borrower.

Section 20.7.    No Joint Venture or Partnership; No Third Party Beneficiaries

(a)           Borrower and Lender intend that the relationships created hereunder and under the other Loan Documents be solely that of borrower and lender.  Nothing herein or therein is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower and Lender nor to grant Lender any interest in the Property other than that of mortgagee, beneficiary or lender.

(b)           This Agreement and the other Loan Documents arc solely for the benefit of Lender and Borrower and nothing contained in this Agreement or the other Loan Documents shall be deemed to confer upon anyone other than Lender and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or therein. All conditions to the obligations of Lender to make the Loan hereunder are imposed solely and exclusively for the benefit of Lender and no other Person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lender will refuse to make the Loan in the absence of strict compliance with any or all thereof and no other Person shall under any circumstances be deemed to be a beneficiary of such conditions, any or all of which may be freely waived in whole or in part by Lender if, in Lender’s sole discretion, Lender deems it advisable or desirable to do so.

(c)           The general partners, members, principals and (if Borrower is a trust) beneficial owners of Borrower are experienced in the ownership and operation of properties similar to the Property, and Borrower and Lender are relying solely upon such expertise and business plan in connection with the ownership and operation of the Property.  Borrower is not relying on Lender’s expertise, business acumen or advice in connection with the Property.

(d)           Notwithstanding anything to the contrary contained herein, Lender is not undertaking the performance of (i) any obligations under the Leases; or (ii) any obligations with respect to such agreements, contracts, certificates, instruments, franchises, permits, trademarks, licenses and other documents.

(e)           By accepting or approving anything required to be observed, performed or fulfilled or to be given to Lender pursuant to this Agreement, the Mortgage, the Note or the other Loan Documents, including, without limitation, any officer’s certificate, balance sheet, statement of profit and loss or other financial statement, survey, appraisal, or insurance policy, Lender shall not be deemed to have warranted, consented to, or affirmed the sufficiency, the legality or effectiveness of same, and such acceptance or approval thereof shall not constitute any warranty or affirmation with respect thereto by Lender.

(f)            Borrower recognizes and acknowledges that in accepting this Agreement, the Note, the Mortgage and the other Loan Documents, Lender is expressly and primarily relying on the truth and accuracy of the representations and warranties set forth in Article 4 of this Agreement without any obligation to investigate the Property and notwithstanding any investigation of the Property by Lender; that such reliance existed on the part of Lender prior to

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the date hereof, that the warranties and representations are a material inducement to Lender in making the Loan; and that Lender would not be willing to make the Loan and accept this Agreement, the Note, the Mortgage and the other Loan Documents in the absence of the warranties and representations as set forth in Article 4 of this Agreement.

Section 20.8.    Publicity

All news releases, publicity or advertising by Borrower or its Affiliates through any media intended to reach the general public which refers to the Loan, Lender, Banc of America Securities LLC, or any of their Affiliates shall be subject to the prior written approval of Lender, not to be unreasonably withheld. Lender shall be permitted to make any news, releases, publicity or advertising by Lender or its Affiliates through any media intended to reach the general public which refers to the Loan, the Property, Borrower, Borrower Principal and their respective Affiliates without the approval of Borrower or any such Persons. Borrower also agrees that Lender may share any information pertaining to the Loan with Banc of America Corporation, including its bank subsidiaries, Bane of America Securities LLC and any other Affiliates of the foregoing, in connection with the sale or transfer of the Loan or any Participations and/or Securities created.

Section 20.9.    Conflict; Construction of Documents; Reliance

In the event of any conflict between the provisions of this Agreement and any of the other Loan Documents, the provisions of this Agreement shall control. The parties hereto acknowledge that they were represented by competent counsel in connection with the negotiation, drafting and execution of the Loan Documents and that such Loan Documents shall not be subject to the principle of construing their meaning against the party which drafted same. Borrower acknowledges that, with respect to the Loan, Borrower shall rely solely on its own judgment and advisors in entering into the Loan without relying in any manner on any statements, representations or recommendations of Lender or any parent, subsidiary or Affiliate of Lender. Lender shall not be subject to any limitation whatsoever in the exercise of any rights or remedies available to it under any of the Loan Documents or any other agreements or instruments which govern the Loan by virtue of the ownership by it or any parent, subsidiary or Affiliate of Lender of any equity interest any of them may acquire in Borrower, and Borrower hereby irrevocably waives the right to raise any defense or take any action on the basis of the foregoing with respect to Lender’s exercise of any such rights or remedies. Borrower acknowledges that Lender engages in the business of real estate financings and other real estate transactions and investments which may be viewed as adverse to or competitive with the business of Borrower or its Affiliates.

Section 20.10. Entire Agreement

This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and all prior agreements among or between such parties, whether oral or written between Borrower and Lender arc superseded by the terms of this Agreement and the other Loan Documents.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written.

BORROWER:
INLAND WESTERN PLANTATION EXPRESS, L.L.C., a Delaware limited liability company
By:	Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
	By:		/s/ Debra A. Palmer
	Name:				Debra A. Palmer
	Its:	Asst. Sec.
BORROWER PRINCIPAL:
Acknowledged and agreed to with respect to its obligations set forth in Article 4, Section 12.6, Article 13, Article 15 and Article 18 hereof:
INLAND WESTERN RETAIL REAL ESTATE TRUST INC., a Maryland corporation, its
By:	/s/ Debra A. Palmer
	Name:				Debra A. Palmer
	Title:			Asst. Sec.

[ADDITIONAL SIGNATURE PAGE TO FOLLOW]

LENDER:
BANK OF AMERICA, N.A., a national banking association
By:	/s/ Lisa K. McGee
	Name:		Lisa K. McGee
	Title:	Vice President

EXHIBIT A

Borrower Equity Ownership Structure

EXHIBIT B

Tenant Direction Letter

EX-10.469

Exhibit 10.469

ASSIGNMENT AND ASSUMPTION
OF PURCHASE AND SALE AGREEMENT

This ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT (this “Assignment”) is made and entered into this 22^nd day of December, 2004 by Inland Real Estate Acquisitions, Inc., an Illinois Corporation, (“Assignor”), and Town Square Ventures, L.P., an Illinois limited partnership, (“Assignee”).

RECITALS

A.Southlake Venture East, L.P., Southlake Venture West, L.P., SL Venture West II, L.P., Southlake Central Venture, and SL Central Venture II, L.P. (“Sellers”) and Assignor have previously entered into that certain Amended and Restated Purchase Agreement dated as of November 5, 2004 (the “Purchase Agreement”), relating to the sale of a certain retail property commonly known as Southlake Town Square located in Southlake, Texas.

B.Assignor desires to assign its interest in and to the Purchase Agreement to Assignee upon the terms and conditions contained herein.

NOW, THEREFORE, in consideration of the receipt of ten and 00/100 Dollars ($10.00) and other good and valuable consideration in hand paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged by Assignor, the parties hereby agree as follows:

1.Recitals.  The foregoing recitals are, by this reference, incorporated into the body of this Assignment as if the same had been set forth in the body hereof in their entirety.

2.Assignment and Assumption.  Assignor hereby assigns, conveys, transfers, and sets over to Assignee all of Assignor’s right, title, and interest in and to the Purchase Agreement.   Assignee hereby accepts the foregoing Assignment and assumes, and agrees to perform, all duties, obligations, liabilities, indemnities, covenants, and agreements of Assignor set forth in the Purchase Agreement.

3.Counterparts.  This document may be executed in any number of counterparts, each of which may be executed by any one or more of the parties hereto, but all of which must constitute one instrument and shall be binding and effective when all parties hereto have executed at least one counterpart.

4.Successors.  This Assignment shall be binding upon and for the benefit of the parties hereto and their respective Successors and Assigns.

IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to be executed as of the day and year first written above.

ASSIGNOR:

INLAND REAL ESTATE ACQUISITIONS, INC.,
An Illinois Corporation

By:	/s/ G. Joseph Cosenza
Name:			G. Joseph Cosenza
Title:		President
ASSIGNEE:
TOWN SQUARE VENTURES, L.P., an Illinois limited partnership
By:					Western Town Square Ventures GP, L.L.C., a Delaware limited liability company, its general partner
				By:		Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
					By:		/s/ Valerie Medina
					Name:		Valerie Medina
					Title:		Asst. Secretary

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EX-10.470

Exhibit 10.470

AMENDED AND RESTATED PURCHASE AGREEMENT

Dated as of November 5, 2004

Between

Southlake Venture East, L.P., a Texas limited partnership,
Southlake Venture West, L.P., a Texas limited partnership,
SL Venture West II, L.P., a Texas limited partnership,
Southlake Central Venture, a Texas general partnership, and
SL Central Venture II, L.P., a Texas limited partnership,
collectively, as Sellers

and

Inland Real Estate Acquisitions, Inc.
an Illinois corporation,

as Purchaser

With Respect to

Southlake Town Square

AMENDED AND RESTATED PURCHASE AGREEMENT

This Amended and Restated Purchase Agreement (“Agreement”) is made and entered into this 5th day of November, 2004 (the “Effective Date”), by and between INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation or its designee or designees (“Purchaser”), and SOUTHLAKE VENTURE WEST, L.P., a Texas limited partnership (“SLVW”), SOUTHLAKE VENTURE EAST, L.P., a Texas limited partnership (“SLVE”), SL VENTURE WEST II, L.P., a Texas limited partnership (“SLVWII”), SOUTHLAKE CENTRAL VENTURE, a Texas general partnership (“SLCV”), and SL CENTRAL VENTURE, a Texas general partnership (“SLCVII”).

Introductory Provisions:

The following provisions form the basis for and are a part of this Agreement:

A.SLVE owns certain property described on Exhibit B-l (the “SLVE Property”).

B.SLVW owns certain property described on Exhibit B-2 (the “SLVW Property”).

C.SLVWII owns certain property described on Exhibit B-3 (the “SLVWII Property”).

D.SLCV owns certain property described on Exhibit B-4 (the “SLCV Property”).

E.SLCVII owns certain property described on Exhibit B-5 (the “SLCVII Property”).

F.SLVE desires to sell to Purchaser and Purchaser desires to purchase from SLVE the SLVE Property on the terms and subject to the conditions and other provisions set forth in this Agreement.

G.SLVW desires to sell to Purchaser and Purchaser desires to purchase from SLVW the SLVW Property on the terms and subject to the conditions and other provisions set forth in this Agreement.

H.SLVWII desires to sell to Purchaser and Purchaser desires to purchase from SLVWII the SLVWII Property on the terms and subject to the conditions and other provisions set forth in this Agreement.

I.SLCV desires to sell to Purchaser and Purchaser desires to purchase from SLCV the SLCV Property on the terms and subject to the conditions and other provisions set forth in this Agreement.

J.SLCVII desires to sell to Purchaser and Purchaser desires to purchase from SLCVII the SLCVII Property on the terms and subject to the conditions and other provisions set forth in this Agreement.

K.Purchaser and Sellers have heretofore entered into that certain Purchase Agreement (the “Original Purchase Agreement”) dated as of November 5, 2004 for the purchase

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and sale of the Properties and such parties desire to amend and restate the Original Purchase Agreement in its entirety on the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

ARTICLE I
DEFINITIONS

The capitalized terms used herein will have the following meanings.

“Accrued Expenses” shall have the meaning set forth in Section 2.6hereof.

“Affiliate” shall mean any Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the Person.

“Agreement” shall mean this Amended and Restated Purchase Agreement, together with the exhibits attached hereto and the Disclosure Schedule.

“Approved Title Matters” shall have the meaning set forth in Section 6.2(a) hereof.

“Building 3C” shall mean that certain real property described on Exhibit B-2(a) attached hereto.

“C&S Lease Extension Amendment” shall have the meaning set forth in Section 2.13 hereof.

“Closing” shall mean the closing of the transactions contemplated by this Agreement as provided in Section 2.5 hereof.

“Closing Date” shall mean December 22, 2004.

“Code” shall mean the Internal Revenue Code of 1986, as amended.

“Contract” shall mean any written agreement, license, sublicense, promissory note, evidence of indebtedness, guaranty (directly or indirectly) of indebtedness, guarantees and warranties, all construction, architectural, maintenance, operating and service contracts, all equipment leases, or other contract or commitment.

“Deed” shall mean a special warranty deed in form and substance attached hereto as Exhibit A.

“Disclosure Schedule” shall mean the disclosure schedule dated the date hereof furnished by Sellers to Purchaser and containing all lists, descriptions, exceptions, and other information and materials as are required to be included therein pursuant to this Agreement.

“Due Diligence Termination Notice” shall have the meaning set forth in Section 2.4 (c) hereof.

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“Earnest Money” shall have the meaning set forth in Section 2.3 hereof.

“Environmental Laws” shall mean without limitation (a) the Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments of 1984, as now or hereafter amended (“RCRA”) (42 U.S.C, § 6901 et seq.), the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, as now or hereafter amended (“CERCLA”) (42 U.S.C. § 9601 et seq.), the Clean Water Act, as now or hereafter amended (“CWA”) (33 U.S.C. § 1251 et seq.), the Toxic Substances Control Act, as now or hereafter amended (“TSCA”) (15 U.S.C. § 2601 et seq.), the Clean Air Act, as now or hereafter amended (“CAA”) (42 U.S.C. § 7401 et seq.), all regulations promulgated under any of the foregoing, any local, state or foreign law, statute, regulation or ordinance analogous to any of the foregoing, and any other federal, state, local, or foreign law (including any common law), statute, regulation, or ordinance regulating, prohibiting, or otherwise restricting the placement, discharge, release, threatened release, generation, treatment, or disposal upon or into any environmental media of any Hazardous Materials.

“Escrow Agreement” shall have the meaning set forth in Section 2.11 hereof.

“Escrow Funds” shall have the meaning set forth in Section 2.11 hereof.

“Escrow Termination Date” shall have the meaning set forth in Section 2.11 hereof.

“Excluded Rights” shall mean any and all of interests of Sellers to (a) Brownstones at Town Square, L.P. or any property owned by such limited partnership, (b) the TIF Reimbursements (defined below), (c) the TXU/Oncor Reimbursements (defined below), (d) Lot 2, Block 9, Richard Eads Survey Abst. No. 481, located on the west side of North Carroll Avenue as depicted on that certain Plat Revision showing Blocks 1R, 2R1, 3R1, 4R and 5R, Phase I, Southlake Town Square, Southlake, Tarrant County, Texas, being a revision of Blocks 1, 4 and 5, Phase I according to the plat recorded in Cabinet A, Slide 4892, P.R., T.Co., Tx, and Block 3R, Phase I according to the plat recorded in Cabinet A, Slide 6311 and 6312 P.R., T.Co., Tx, August 15, 2001, (c) that certain Landscape and Surface Maintenance Agreement between SLVE and Diamond Shamrock Refining and Marketing Company, filed in the real property records of Tarrant County, Texas on March 28, 2003, and (f) all rights in and to Building 3C.

“Expiring Leases” shall have the meaning set forth in Section 2.11 (a) hereof.

“Governmental Authority” shall mean any and all applicable courts, boards, agencies, commissions, offices, or authorities of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city, departmental or otherwise) whether now or hereafter in existence.

“Hazardous Materials” shall mean any substance, product matter, material, waste, solid, liquid, gas, or pollutant, the generation, storage, disposal, handling, recycling, release (or threatened release), treatment, discharge, or emission of which is regulated, prohibited, or limited under any Environmental Law and shall also include, without limitation, (a) gasoline, diesel fuel, fuel oil, motor oil, waste oil, and any other petroleum hydrocarbons, including any additives or other by-products associated therewith, (b) asbestos and asbestos-containing materials in any

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form, (c) polychlorinated biphenyls, (d) any substance the presence of which on any Property (i) requires reporting or remediation under any Environmental Law; (ii) causes or threatens to cause a nuisance on any Property or poses or threatens to pose a hazard to the health or safety of persons on any Property; or (iii) which, if it emanated or migrated from any Property, could constitute a trespass, nuisance or health or safety hazard to persons on adjacent property, (e) radon, (f) urea formaldehyde foam insulation, and (g) underground storage tanks, whether empty, filled or partially filled with any substance.

“Inspection Period” shall have the meaning set forth in Section 2.4(c) hereof.

“IRS” shall mean the United States Internal Revenue Service.

“Law” shall mean all laws, statutes, ordinances, rules, decrees and regulations of the United States of America or any state, commonwealth, city, county, municipality or department thereof, including without limitation the Americans with Disabilities Act.

“Leases” shall mean all leases, subleases, licenses or other agreements for the use or occupancy of all or any part of any Real Property.

“Lien” shall mean any mortgage, pledge, assessment, security interest, Lease, lien, adverse claim, levy, charge, or other encumbrance of any kind, or any conditional sale contract, title retention contract, or other contract to give or to refrain from giving any of the foregoing other than Permitted Exceptions.

“Management Agreement” shall have the meaning set forth in Section 2.13 hereof.

“Manager” shall have the meaning set forth in Section 2.13 hereof.

“Master Lease Escrow” shall have the meaning set forth in Section 2.11 (a) hereof.

“Material Adverse Effect” shall mean any effect that is materially adverse to the validity or enforceability of this Agreement, the ability of either or all of the Sellers or Purchaser, as the case may be, to perform its obligations under this Agreement or the condition of the Properties individually or taken as a whole, or with respect to the condition, operation or value of the Properties (individually or taken as a whole) or the Leases and the cash flow emanating therefrom.

“Monetary Liens” shall have the meaning set forth in Section 6.2(b) hereof.

“Mortgage Liens” shall mean the liens created under the deeds of trust and mortgages more particularly described in the Title Information and securing certain indebtedness as more particularly identified thereon.

“NNN Charges” shall have the meaning set forth in Section 2.6 hereof.

“Parking License Assignment” shall have the meaning set forth in Section 2.5(b)(ix) hereof.

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“Permits” shall mean all permits, consents, licenses, certificates, approvals, registrations, and authorizations which are required by any Law for operation of either Property.

“Permitted Exceptions” shall mean the Permitted Liens, together with (i) all of the Approved Title Matters, and (ii) any Purchaser’s Title Objection other than Monetary Liens or those items Sellers agreed to eliminate or modify pursuant hereto that Purchaser has elected to waive its objection with respect thereto.

“Permitted Liens” shall mean with respect to each Property any lien for real property Taxes, assessments, and other governmental charges that are not due and payable.

“Person” shall mean any natural person, corporation, general partnership, limited partnership, proprietorship, trust, union, association, court, tribunal, agency, government department, commission, self-regulatory organization, arbitrator, board, bureau, instrumentality, or other entity, enterprise, authority, or business organization.

“Property” shall mean either the SLVE Property, the SLVW Property, the SLVWII Property, the SLCV Property or the SLCVII Property.

“Property Information” shall have the meaning set forth in Section 2.4(a) hereof.

“Properties” shall mean all of the SLVE Property, the SLVW Property, the SLVWII Property, the SLCV Property and the SLCVII Property.

“Purchase Price” shall have the meaning set forth in Section 2.2 hereof.

“Purchaser” shall have the meaning ascribed to it in the opening paragraph.

“Purchaser Title Objections” shall have the meaning set forth in Section 6.2(a) hereof.

“Release” shall mean releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, ejecting, escaping, leaching, disposing, seeping, infiltrating, draining, or dumping of any Hazardous Material. This term shall be interpreted to include both the present and past tense, as appropriate.

“Sellers” shall mean, collectively, SLVE, SLVW, SLVWII, SLCV and SLCVII.

“Sellers’ Knowledge” shall mean the current actual knowledge of Brian R. Stebbins, Frank L. Bliss and Patricia S. Pickard without any duty of inquiry or investigation.

“Sellers’ Notice” shall have the meaning set forth in Section 6.2(b) hereof.

“Settlement Statement” shall have the meaning set forth in Section 2.5(c)(x) hereof.

“SLVE” shall have the meaning ascribed to it in the Introductory Provisions.

“SLVE Property” shall mean the SLVE Real Property and the SLVE Personal Property.

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“SLVE Real Property” shall mean (a) that certain real property legally described on Exhibit B-l attached hereto, consisting of approximately 2.5250 acres of land, and approximately 11,400 square feet of net rentable square feet, and located at 1580 East Southlake Blvd, Southlake, Texas and commonly known as Block 23, together with all of the following, if any: rights, privileges, hereditaments, appurtenances, and easements related thereto, including all rights, rights-of-way, roadways, roadbeds, reversions, strips, gores, and any interests in any alleys, streets, or roads abutting or adjacent thereto, together with all rights of SLVE in and to any other land or out parcels contiguous to or adjoining such real property, (b) all improvements located upon the SLVE Real Property, but expressly excluding any improvements owned by any tenant or other third party, (d) all right, title and interest of SLVE, if any, in and to all shrubs, trees, plants and other landscaping located upon the SLVE Real Property, (e) all right, title and interest of SLVE, if any, in and to all easements, rights of way, and other rights appurtenant to the SLVE Real Property.

“SLVE Personal Property” shall mean all fixtures, equipment, machinery, furniture, carpet, drapes and other personal property, if any, owned by SLVE, located on and used in connection with the SLVE Real Property, but specifically excluding any items of personal property owned or leased by SLVE’s property manager or tenants at the SLVE Real Property and further excluding any items of personal property owned by third parties and leased to SLVE. All intangible property, if any, owned by SLVE and pertaining to the SLVE Real Property including, without limitation, transferable utility contracts, transferable telephone exchange numbers, plans and specifications, engineering plans and studies, floor plans, landscape plans, logos, designs, trade names, trademarks, servicemarks, copyrights and other intellectual property, and specifically the non-exclusive use of the names “Southlake Town Square” and “Town Square” and any other name or names by which the Property is commonly known (the “Town Square Trademarks”), provided that the grant of the right to use the Town Square Trademarks shall be limited to purposes associated with the Property.

“SLVW” shall have the meaning ascribed to it in the Introductory Provisions.

“SLVW Property” shall mean the SLVW Real Property and the SLVW Personal Property.

“SLVW Personal Property” shall mean all fixtures, equipment, machinery, furniture, carpet, drapes and other personal property, if any, owned by SLVW, located on and used in connection with the SLVW Real Property, but specifically excluding any items of personal property owned or leased by SLVW’s property manager or tenants at the SLVW Real Property and further excluding any items of personal property owned by third parties and leased to SLVW. All intangible property, if any, owned by SLVW and pertaining to the SLVW Real Property including, without limitation, transferable utility contracts, transferable telephone exchange numbers, plans and specifications, engineering plans and studies, floor plans, landscape plans, logos, designs, trade names, trademarks, servicemarks, copyrights and other intellectual property, and specifically the non-exclusive use of the Town Square Trademarks, provided that the grant of the right to use the Town Square Trademarks shall be limited to purposes associated with the Property.

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“SLVW Real Property” shall mean (a) that certain real property legally described on Exhibit B-2 attached hereto, consisting of approximately 15.9897 acres of land, and approximately 62,657 square feet of net rentable square feet, and located at 140 State Street, 1235 Main Street, 1230 Main Street, 1240 Main Street, 300 Grand Avenue, 1200 Prospect Street, Southlake, Texas and commonly known as Parking Lot, Building 1C, Building 2B, Parking Lot, Parking Lot and Block 10, together with all of the following, if any: rights, privileges, hereditaments, appurtenances, and easements related thereto, including all rights, rights-of-way, roadways, roadbeds, reversions, strips, gores, and any interests in any alleys, streets, or roads abutting or adjacent thereto, together with all rights of SLVW in and to any other land or out parcels contiguous to or adjoining such real property, (b) all improvements located upon the SLVW Real Property, but expressly excluding any improvements owned by any tenant or other third party, (c) all right, title and interest of SLVW, if any, in and to all shrubs, trees, plants and other landscaping located upon the SLVW Real Property, (d) all right, title and interest of SLVW, if any, in and to all easements, rights of way, and other rights appurtenant to the SLVW Real Property. The term “SLVW Real Property” as used hereunder does not, however, include Building 3C.

“SLVWII” shall have the meaning ascribed to it in the Introductory Provisions.

“SLVWII Property” shall mean the SLVWII Real Property and the SLVWII Personal Property.

“SLVWII Personal Property” shall mean all fixtures, equipment, machinery, furniture, carpet, drapes and other personal property, if any, owned by SLVWII, located on and used in connection with the SLVWII Real Property, but specifically excluding any items of personal property owned or leased by SLVWII’s property manager or tenants at the SLVWII Real Property and further excluding any items of personal property owned by third parties and leased to SLVWII. All intangible property, if any, owned by SLVWII and pertaining to the SLVWII Real Property including, without limitation, transferable utility contracts, transferable telephone exchange numbers, plans and specifications, engineering plans and studies, floor plans, landscape plans, logos, designs, trade names, trademarks, servicemarks, copyrights and other intellectual property, and specifically the non-exclusive use of the Town Square Trademarks, provided that the grant of the right to use the Town Square Trademarks shall be limited to purposes associated with the Property.

“SLVWII Real Property” shall mean (a) that certain real property legally described on Exhibit B-3 attached hereto, consisting of approximately 2.0498 acres of land, and approximately 141,499 square feet of net rentable square feet, and located at 180 State Street, 112 State Street, 1256 Main Street and 1200 Main Street, Southlake, Texas and commonly known as Building 1B, Building 1A, Building 2C and Building 2A, together with all of the following, if any: rights, privileges, hereditaments, appurtenances, and easements related thereto, including all rights, rights-of-way, roadways, roadbeds, reversions, strips, gores, and any interests in any alleys, streets, or roads abutting or adjacent thereto, together with all rights of Sellers in and to any other land or out parcels contiguous to or adjoining such real property, (b) all improvements located upon the SLVWII Real Property, but expressly excluding any improvements owned by any tenant or other third party, (c) all right, title and interest of SLVWII, if any, in and to all shrubs, trees, plants and other landscaping located upon the

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SLVWII Real Property, (d) all right, title and interest of SLVWII, if any, in and to all easements, rights of way, and other rights appurtenant to the SLVWII Real Property.

“SLCV” shall have the meaning ascribed to it in the Introductory Provisions.

“SLCV Property” shall mean the SLCV Real Property and the SLCV Personal Property.

“SLCV Personal Property” shall mean all fixtures, equipment, machinery, furniture, carpet, drapes and other personal property, if any, owned by SLCV, located on and used in connection with the SLCV Real Property, but specifically excluding any items of personal property owned or leased by SLCV’s property manager or tenants at the SLCV Real Property and further excluding any items of personal property owned by third parties and leased to SLCV. All intangible property, if any, owned by SLCV and pertaining to the SLCV Real Property including, without limitation, transferable utility contracts, transferable telephone exchange numbers, plans and specifications, engineering plans and studies, floor plans, landscape plans, logos, designs, trade names, trademarks, servicemarks, copyrights and other intellectual property, and specifically the non-exclusive use of the Town Square Trademarks, provided that the grant of the right to use the Town Square Trademarks shall be limited to purposes associated with the Property.

“SLCV Real Property” shall mean (a) that certain real property legally described on Exhibit B-4 attached hereto, consisting of approximately 8.9198 acres of land, and approximately 70,212 square feet of net rentable square feet, and located at 1450 Main Street, 1440 Main Street, 1430 E. Southlake Blvd., 141 Grand Avenue, 1431 Main Street, Southlake, Texas and commonly known as Building 4B, Parking Lot, Building 5G, Parking Lot and Building 5C, together with all of the following, if any: rights, privileges, hereditaments, appurtenances, and easements related thereto, including all rights, rights-of-way, roadways, roadbeds, reversions, strips, gores, and any interests in any alleys, streets, or roads abutting or adjacent thereto, together with all rights of Sellers in and to any other land or out parcels contiguous to or adjoining such real property, (b) all improvements located upon the SLCV Real Property, but expressly excluding any improvements owned by any tenant or other third party, (c) all right, title and interest of SLCV, if any, in and to all shrubs, trees, plants and other landscaping located upon the SLCV Real Property, (d) all right, title and interest of SLCV, if any, in and to all easements, rights of way, and other rights appurtenant to the SLCV Real Property.

“SLCVII Property” shall mean the SLCVII Real Property and the SLCVII Personal Property.

“SLCVII Personal Property” shall mean all fixtures, equipment, machinery, furniture, carpet, drapes and other personal property, if any, owned by SLCVII, located on and used in connection with the SLCVII Real Property, but specifically excluding any items of personal property owned or leased by SLCVII’s property manager or tenants at the SLCVII Real Property and further excluding any items of personal property owned by third parties and leased to SLCVII. All intangible property, if any, owned by SLCVII and pertaining to the SLCVII Real Property including, without limitation, transferable utility contracts, transferable telephone exchange numbers, plans and specifications, engineering plans and studies, floor plans,

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landscape plans, logos, designs, trade names, trademarks, servicemarks, copyrights and other intellectual property, and specifically the non-exclusive use of the Town Square Trademarks, provided that the grant of the right to use the Town Square Trademarks shall be limited to purposes associated with the Property.

“SLCVII Real Property” shall mean (a) that certain real property legally described on Exhibit B-5 attached hereto, consisting of approximately 1.4598 acres of land, and approximately 118,526 square feet of net rentable square feet, and located at 1422 Main Street, 181 Grand Avenue and 115 Grand Avenue, Southlake, Texas and commonly known as Building 4C, Building 5B and Building 5A, together with all of the following, if any: rights, privileges, hereditaments, appurtenances, and easements related thereto, including all rights, rights-of-way, roadways, roadbeds, reversions, strips, gores, and any interests in any alleys, streets, or roads abutting or adjacent thereto, together with all rights of Sellers in and to any other land or out parcels contiguous to or adjoining such real property, (b) all improvements located upon the SLCVII Real Property, but expressly excluding any improvements owned by any tenant or other third party, (c) all right, title and interest of SLCVII, if any, in and to all shrubs, trees, plants and other landscaping located upon the SLCVII Real Property, (d) all right, title and interest of SLCVII, if any, in and to all easements, rights of way, and other rights appurtenant to the SLCVII Real Property.

“SLCVII” shall have the meaning ascribed to it in the Introductory Provisions.

“Survey” shall have the meaning set forth in Section 6.l(b) hereof.

“Survival Period” shall have the meaning set forth in Section 3.1(v) hereof.

“Taxes” shall mean all taxes, charges, fees, levies, guaranty fund assessments or other similar assessments or liabilities, including without limitation income, gross receipts, ad valorem, premium, excise, real property, personal property, windfall profit, sales, use, transfer, licensing, withholding, employment, payroll, and franchise taxes imposed by the United States of America or any state, local, or foreign government, or any subdivision, agency, or other similar Person of the United States or any such government; and such term shall include any interest, fines, penalties, assessments, or additions to tax resulting from, attributable to, or incurred in connection with any such tax or any contest or dispute thereof.

“Tax Returns” shall mean any report, return, or other information required by Law to be filed by the Sellers.

“TIF Reimbursements” shall mean Tax Increment Finance Payments obligated to be made by the City of Southlake Ordinance No. 682 “Reinvestment Zone No. One, City of Southlake to Sellers to reimburse Sellers for certain Public Improvements constructed on or near Block 23.

“Title Approval Period” shall have the meaning set forth in Section 6.2(a) hereof.

“Title Commitment” shall have the meaning set forth in Section 6.1(a) hereof.

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“Title Information” shall mean those matters set forth in Section 3.1(1) of the Disclosure Schedule.

“TXU/Oncor Reimbursements” shall mean that certain reimbursement or incentive payment owing from TXU and/or Oncor to one or more of the Sellers for improvements constructed by one or more of the Sellers on one or more of the Properties.

“Vacancy Escrow” shall have the meaning ascribed to it in Section 2.11(b).

Unless the context of this Agreement otherwise requires, (a) words of any gender are deemed to include each other gender; (b) words using the singular or plural number also include the plural or singular number, respectively; (c) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement; (d) the terms “ARTICLE” or “Section” refer to the specified ARTICLE or Section of this Agreement; (e) the term “party” means, on the one hand, Purchaser and, on the other hand, Sellers; (f) the phrase “in the ordinary course of business and consistent with past practice” refers to the business, operations, affairs, and practice of Sellers which operations and practice are consistent with the prudent operations and practices of Persons engaged in the ownership and operation of real properties similar to the Properties; and (g) all references to “dollars” or “$” refer to currency of the United States of America.

ARTICLE II
SALE OF INTERESTS; PURCHASE PRICE; EARNEST MONEY;
DUE DILIGENCE AND CLOSING

2.1Purchase and Sale of Properties. Subject to the terms and conditions, and in reliance upon the representations and warranties, set forth in this Agreement, Sellers agree to sell their respective Properties less the Excluded Rights to Purchaser and Purchaser agrees to purchase all of the Properties less the Excluded Rights from the respective Sellers at the Closing.

2.2Purchase Price. The purchase price for the Properties is One Hundred Twenty-Four Million Six Hundred Forty-Seven Thousand Eight Hundred Forty-Six and No/100 Dollars ($124,647,846.00) (the “Purchase Price”), a portion of which shall be payable in immediately available cash to Sellers by Purchaser at the Closing in accordance with the allocation set forth on Exhibit C attached hereto, and a portion of which shall be payable to Seller in accordance with the provisions of Section 2.12 of this Agreement.

2.3Refundable Earnest Money.

(a)Deposit and Investment. Purchaser shall deposit with Chicago Title Insurance Company (“Escrow Agent”), 171 N. Clark Street, Chicago, Illinois, Attention: Nancy Castro, the sum of Two Million and No/100 Dollars ($1,800,000.00) to be held by Escrow Agent in government insured interest-bearing accounts at a national bank in Dallas County, Texas (together with all interest thereon, the “Earnest Money”) simultaneously with the execution of this Agreement. Such account shall have no penalty for early withdrawal. The Escrow Agent shall be authorized, at Purchaser’s option, to invest the Earnest Money in such manner as Purchaser may direct; provided,

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however, that the Escrow Agent shall invest the Earnest Money only in such manner as will allow the Escrow Agent to disburse the Earnest Money upon seven (7) days notice.

(b)Form; Failure to Deposit. The Earnest Money shall be in the form of a certified or cashier’s check or the wire transfer to Escrow Agent of immediately available U.S. federal funds. If Purchaser fails to timely deposit any portion of the Earnest Money within the time periods required, Sellers may terminate this Agreement by written notice to Purchaser, and thereafter the parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof.

(c)Disposition; Break-Up Fee.

(i)Provided that Purchaser receives the items listed on Exhibit D attached hereto and made a part hereof, in accordance with the time frames set forth herein, Purchaser shall have until 5:00 p.m., Dallas, Texas time on Friday, November 5, 2004 to review and approve those items. Following such date, unless Purchaser has elected on or before such date to terminate this Agreement by delivering a Due Diligence Termination Notice in the manner set forth in Section 2.4(c) below, Five Hundred Thousand and No/100 Dollars ($500,000.00) of the Earnest Money shall become nonrefundable and shall be payable to Sellers as a “Break-Up Fee” if Purchaser thereafter terminates this Agreement during the Inspection Period solely as a result of the items listed on Exhibit D or any finding or evaluation contained therein. Notwithstanding the foregoing, if Purchaser terminates this Agreement on or before the expiration of the Inspection Period for any reason other than as a result of the items listed on Exhibit D or the findings or evaluations contained therein, all of the Earnest Money, including but not limited to the Break-Up Fee, shall be returned to Purchaser without further direction from Sellers.

(ii)Unless Purchaser delivers a Due Diligence Termination Notice as provided in Section 2.4(c) below, upon the expiration of the Inspection Period, all of the Earnest Money shall be non-refundable, unless the conditions to Purchaser’s obligation to close set forth in Article IV of this Agreement are not satisfied, or Sellers (or any of them) defaults with respect to any provision of this Agreement, in which case the Earnest Money shall be returned to Purchaser on the tenth business day following receipt of written notice from Purchaser to Escrow Agent and Sellers of termination of this Agreement pursuant to Article IV hereof, unless Sellers notify Escrow Agent that Sellers dispute the right of Purchaser to receive the Earnest Money prior to such tenth business day following receipt of Purchaser’s written notice. In such event, Escrow Agent may interplead the Earnest Money into a court of competent jurisdiction in the county in which the Earnest Money has been deposited. All attorneys’ fees and costs and Escrow Agent’s costs and expenses incurred in connection with such interpleader shall be assessed against the party that is not awarded the Earnest Money, or if the Earnest Money is distributed in part to both parties, then in the inverse proportion of such distribution. If Purchaser delivers a Due Diligence

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Termination Notice pursuant to Section 2.4(c), then any portion of Earnest Money that has not been deemed non-refundable hereunder shall be immediately returned to Purchaser by Escrow Agent and any installment of Earnest Money that has been deemed non-refundable hereunder shall be delivered to Sellers. If the conditions to Purchaser’s obligation to close in Article IV are satisfied, the Earnest Money shall be at Purchaser’s option applied as a credit to the Purchase Price at the Closing or, if Purchaser elects to deposit the full Purchase Price with Escrow Agent, returned to Purchaser. If Purchaser fails to consummate the transactions contemplated by this Agreement, the Earnest Money shall be immediately delivered to Sellers, upon written notice from Sellers to Escrow Agent.

2.4Due Diligence.

(a)Due Diligence Material. Sellers shall deliver to Purchaser the information listed on Exhibit D-l attached hereto and made a part hereof (the “Property Information”) within five business days following the Effective Date.

(b)Physical Due Diligence. Commencing on the Effective Date and continuing until the expiration of the Inspection Period (defined below), Purchaser shall have reasonable access to the Properties at all reasonable times during normal business hours, upon appropriate notice to tenants as permitted or required under the Leases, for the purpose of conducting reasonably necessary tests, including surveys and architectural, engineering, geotechnical and environmental inspections and tests, provided that (a) Purchaser must give Sellers one full business days’ prior telephone or written notice of any such inspection or test, and with respect to any intrusive inspection or test (i.e., core sampling) must obtain Sellers’ prior written consent (which consent may be given, withheld or conditioned in Sellers’ sole discretion), and (b) prior to performing any inspection or test, Purchaser must deliver a certificate of insurance to Sellers evidencing that Purchaser and its contractors, agents and representatives have in place reasonable amounts of commercial general liability insurance and workers compensation insurance for its activities on the Properties in terms and amounts reasonably satisfactory to Sellers covering any accident arising in connection with the presence of Purchaser, its contractors, agents and representatives on the Property, which insurance shall name Sellers as additional insureds thereunder. Purchaser or Purchaser’s representatives may meet with any tenant if and only if accompanied by a representative of Sellers; provided, further, that Purchaser shall not discuss the transaction contemplated by this Agreement with such tenants and Purchaser must contact Sellers at least one full business day in advance by telephone to inform Sellers of Purchaser’s intended meeting. Purchaser or Purchaser’s representatives may meet with any governmental authority for the sole purpose of gathering information in connection with the transaction contemplated by this Agreement; provided, however, Purchaser must contact Sellers at least one full business days in advance by telephone to inform Sellers of Purchaser’s intended meeting and to allow Seller the opportunity to attend such meeting if Seller desires. Purchaser or its counsel is permitted to make written requests to the municipal authorities for the purpose of verifying the compliance of the Properties with applicable zoning requirements and ordinances, compliance with building codes and compliance with parking requirements,

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and to respond, make verbal comments or inquiries related thereto, including but not limited to inquiries to determine the appropriate officials to direct written inquiries to.

(c)Due Diligence/Termination Right. Purchaser shall have until 5:00 p.m., Dallas, Texas time on Friday, November 19, 2004 (the “Inspection Period”) in which to (a) examine, inspect, and investigate the Property Information and the Property and, in Purchaser’s sole and absolute judgment and discretion, determine whether the Property is acceptable to Purchaser, (b) obtain all necessary internal approvals, and (c) satisfy all other contingencies of Purchaser. If, for any reason whatsoever, or no reason at all, Purchaser, in its sole and absolute discretion, is not satisfied with any of the foregoing at any time on or before the expiration of the Inspection Period (hereinafter defined), then Purchaser may elect at its option, to terminate this Agreement by delivering notice of termination to Sellers (the “Due Diligence Termination Notice”) prior to the expiration of the Inspection Period, in which event the Earnest Money shall be distributed pursuant to and subject to Section 2.3(c), and thereafter neither Sellers nor Purchaser shall have any further obligations or rights under this Agreement except those that specifically survive a termination as provided in this Agreement.

(d)No Representation or Warranty by Sellers. Purchaser acknowledges that, except as expressly set forth in this Agreement, Sellers have not made and do not make any warranty or representation regarding the truth, accuracy or completeness of the Property Information or the source(s) thereof. Purchaser further acknowledges that some if not all of the Property Information were prepared by third parties other than Sellers. Sellers expressly disclaim any and all liability for representations or warranties, express or implied, statements of fact and other matters contained in such information, or for omissions from the Property Information, or in any other written or oral communications transmitted or made available to Purchaser. Purchaser shall rely solely upon the express representations and warranties set forth herein and its own investigation with respect to the Property, including, without limitation, the Properties’ physical, environmental or economic condition, compliance or lack of compliance with any ordinance, order, permit or regulation or any other attribute or matter relating thereto. Sellers have not undertaken any independent investigation as to the truth, accuracy or completeness of the Property Information and are providing the Property Information solely as an accommodation to Purchaser.

(c)Purchaser’s Agreement to Indemnify. Purchaser hereby agrees to indemnify, defend and hold Sellers harmless from and against any and all liens, claims, causes of action, damages, liabilities and expenses (including reasonable attorneys’ fees) arising out of (i) Purchaser’s inspections or tests permitted under this Agreement or (ii) Purchaser’s failure to comply with the provisions of Section 2.4(b); provided, however, the indemnity shall not extend to protect the Sellers from any pre-existing liabilities for matters merely discovered by Purchaser (i.e., latent environmental contamination) so long as Purchaser’s actions do not aggravate any preexisting liability of the Sellers and then only to the extent of such aggravation. Purchaser’s obligations under this Section 2.4(e) shall survive the termination of this Agreement and shall survive the Closing for a period of one year.

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2.5Closing.

(a)The Closing will take place at the offices of Escrow Agent at 10:00 a.m., local time on the Closing Date.

(b)At the Closing, Purchaser will deliver to Escrow Agent:

(i)the Purchase Price minus $6,398,316.00, representing the Earnout portion of the Purchase Price, plus or minus prorations with Escrow Agent in cash by wire transfer of immediately available funds;

(ii)an Escrow Agreement (defined below);

(iii)Settlement Statement (defined below);

(iv)the Management Agreement (defined below);

(v)the C&S Lease Extension Amendment;

(vi)all other documents reasonably determined by Purchaser, Sellers and Title Company to be necessary to transfer the Property to Purchaser or as otherwise required to be delivered by Purchaser under the terms of this Agreement;

(vii)an Assignment and Assumption of Leases (the “Assignment and Assumption of Leases”) assigning all of Sellers’ interests in the Leases in the form attached hereto as Exhibit K;

(viii)a Bill of Sale (the “Bill of Sale, Assignment and Assumption of Contracts”) with respect to the SLVE Personal Property, the SLVW Personal Property, the SLVWII Personal Property, the SLCV Personal Property, the SLCVII Personal Property and of Service Contracts and Warranties assigning the Contracts, including but not limited to all warranties, to Purchaser in the form attached hereto as Exhibit L; and

(ix)an Assignment and Assumption of License Agreement with respect to Sellers’ interest in that certain Irrevocable License and Parking, Management and Use Agreement dated August 26, 2003 with the City of Southlake, Texas in recordable form reasonably acceptable to Purchaser and Sellers (the “Parking License Assignment”);

(c)At the Closing, each of the Sellers will deliver to Escrow Agent:

(i)a Deed for each Property owned by the respective Sellers duly executed by such Seller;

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(ii)an Escrow Agreement;

(iii)Certificates of Sellers certifying that all of the representations and warranties of Sellers are true and correct in all material respects as of the Closing Date;

(iv)a Certified Rent Roll;

(v)The Audit Letter attached hereto as Exhibit H;

(vi)A TLTA Owner’s Policy of Title Insurance issued by Title Company naming Purchaser as insured, in the amount of the Purchase Price, Insuring that Purchaser owns good and indefeasible fee simple title to the Real Property providing for full extended coverage and containing the Special Title Endorsements (the “Title Policy”), subject only to the Permitted Encumbrances;

(vii)A duly executed affidavit of Sellers certifying that Sellers are not a “foreign person,” as defined in Section 1445 of the Internal Revenue Code of 1986, as amended, and in any applicable state laws for the state in which the Property is located;

(viii)Such conveyancing or transfer tax forms or returns, if any, as are required to be delivered or signed by Sellers by applicable state and local law in connection herewith, including any certifications required in connection therewith;

(ix)The original of all Leases and Contracts in Sellers’ possession;

(x)Four (4) copies of a closing settlement statement between Sellers and Purchaser, duly executed by Sellers, setting forth the prorations and adjustments to the Purchase Price in accordance with this Agreement; it being agreed that such settlement shall be mutually approved by Sellers and Purchaser at least 48 hours prior to Closing (the “Settlement Statement”);

(xi)REA Estoppel letters in form and substance reasonably satisfactory to Purchaser with respect to any reciprocal easement and operating agreement;

(xii)All other documents reasonably determined by Purchaser, Sellers and Title Company to be necessary to transfer the Properties to Purchaser or as otherwise required to be delivered by Purchaser under the terms of this Agreement;

(xiii)Copies of notices terminating and canceling any and all Contracts not assumed by Purchaser at Closing, including in particular any

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management contracts and/or brokerage listing and leasing agreements;

(xiv)All records and filed (or certified copies thereof) relating to the operation and maintenance of the Properties;

(xv)To the extent in Sellers’ possession or control, plans and specifications, engineering plans and studies, and other similar documents relating to the Properties.

(xvi)All keys to the Properties in Sellers’ possession, subject to any rights of Sellers’ occupancy that survive the Closing;

(xvii)The Management Agreement;

(xviii)The C&S Lease Extension Amendment;

(xix)The Assignment and Assumption of Leases;

(xx)The Bill of Sale, Assignment and Assumption of Contracts; and

(xxi)The Parking License Assignment.

2.6Adjustments as of the Closing Date. Accrued Rental income and all other accrued income relating to the Properties, real and personal property ad valorem taxes, insurance premiums (if and to the extent that policies are continued for periods subsequent to the Closing Date), utility charges, common area maintenance charges and operating charges pursuant to any reciprocal easement agreements or similar agreements, and other operating expenses of each Property, shall be prorated to the Closing Date, based upon actual days involved. Sellers shall be responsible for all real and personal property taxes payable by any Seller for any period prior to and including the Closing Date. Sellers and Purchaser acknowledge that tenants have made estimated payments for such tenants’ proportionate share of taxes, insurance, common area maintenance and other charges (“NNN Charges”) that are reimbursable to the landlord under such tenant leases. Purchaser and Manager (as defined in Section 2.13 hereof) shall make a final reconciliation of 2004 NNN Charges on or before April 30, 2005. Sellers shall be entitled to any amounts collected from tenants in 2005 and attributable to periods on or before the Closing Date, and shall be liable for any amounts due to tenants and attributable to periods on or before the Closing Date. Purchaser shall be entitled to any amounts collected from tenants in 2005 and attributable to periods after the Closing Date, and shall be liable for any amounts due to tenants and attributable to periods after the Closing Date. All accrued charges pursuant to Contracts and utility charges (whether or not service is continued by Purchaser) for periods prior to and including the Closing Date shall be determined as of the Closing Date and paid by Sellers (“Accrued Expenses”). Any of such Accrued Expenses for periods prior to and including the Closing Date which have not been paid and are not reflected on the closing statement prepared by Sellers and Purchaser as of the Closing Date shall be paid by the Sellers prior to delinquency (subject to Sellers’ right to contest same). SLVE shall also receive any and all income or payments related to (a) TIF Reimbursements, and (b) TXU/Oncor Reimbursements. Purchaser shall make a good-faith attempt to collect delinquent rents the same for Sellers’ benefit after the

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Closing and after first applying any such rental payments so received to rents and late charges and the costs of collection thereof in each case accruing after the Closing Date, the remainder of such collections, if any, shall be remitted to Sellers promptly upon receipt by Purchaser or Sellers after Closing (up to the amount of such delinquent rents); provided, however, that nothing contained herein shall be construed to require Purchaser to institute any suit or collection procedure to collect such delinquent rents. Purchaser need not attempt to collect rents that are more than ninety days delinquent and the foregoing obligation of Purchaser to remit any amounts in respect thereof to Sellers shall also terminate ninety days after the Closing Date, except as to recovery of 2004 NNN Charges, which shall terminate on December 31, 2005. To the extent that the actual amount of all such charges, expenses and income referred to in this section are unavailable on the Closing Date, the foregoing prorations shall be based on estimates using the most recently available statement for each such item to be prorated (provided that, if the actual amount of real and personal property ad valorem taxes and special assessments for the present tax year are not available, the proration shall be based upon the taxes for the previous tax year) and, if after the Closing Date the actual amount of any such closing proration that was based on an estimate is determined to be more or less than the amount adjusted for at Closing, the parties shall promptly (but no later than the date which is the first anniversary of the Closing Date) adjust such proration.

2.7Security Deposits. All security deposits and any prepayment of rental or other sums attributable to any period beyond the Closing Date, collected (and, except to the extent previously returned to tenants whether presently held) by the Sellers under the terms of any Leases shall be retained by the Sellers at Closing.

2.8Title and Survey Costs. Sellers shall pay and incur the costs for the Survey and the premium for the Owner’s Policy (exclusive of endorsements), all transfer taxes, and their own attorneys’ fees. Purchaser shall pay the premium for all endorsements to the Title Policy, including the Survey Endorsement, and its own attorneys’ fees, provided that Sellers shall pay the premium for any endorsements which Sellers elect, in Sellers’ sole discretion, to provide in order to satisfy any of Purchaser’s Title Objections pursuant to Section 6.2(b).

2.9Mortgage Liens. At Closing, Sellers shall cause the Mortgage Liens to be released at or prior to Closing, with Sellers having the right to apply the Purchase Price or a portion thereof for such purpose.

2.10“Free Rent” Credit. At Closing, Purchaser shall receive a credit to the Purchase Price in the amount equal to all unreimbursed costs due to tenants of the Properties for tenant improvements or abated rent in lieu of reimbursement for tenant improvement costs as well as all leasing commissions due brokers under the Leases all of which Sellers represent and warrant are identified in Exhibit E hereto to the extent due or existing as of the Closing Date.

2.11Escrow. At Closing, Escrow Agent shall withhold a portion of the Purchase Price in the amount of $1,303,121.00 (together with any interest thereon, the “Escrow Funds”) to be held in escrow pursuant to an escrow agreement in form reasonably acceptable to Sellers, Purchaser and Escrow Agent (the “Escrow Agreement”), and to be disbursed to Sellers or Purchaser pursuant to the Escrow Agreement as provided below.

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(a)Master Lease Escrow. $1,051,926.00 (“Master Lease Escrow”) of the Escrow Funds shall be escrowed on account of leases expiring on or before October 31, 2005, in the amounts and for the locations set forth on Exhibit F-l hereto (the “Expiring Leases”). Sellers, through the Manager (defined below), shall have the continuing right until October 31, 2006 to renew Expiring Leases or to replace each tenant to the Expiring Leases for a new lease term of not less than one (1) year, and to receive from the Master Lease Escrow an amount equal to the value assigned to each such Expiring Lease location. Tenant improvement costs, leasing commissions and, on a monthly basis, up to but not in excess of the first twelve (12) months of base rent and expense reimbursements following termination of lease which is not renewed, and other costs incurred by Sellers and/or the Manager in renewing or reletting each such Expiring Lease location shall be the sole cost and expense of Sellers. Following the termination of any Expiring Lease or the renewal of any Expiring Lease upon financial terms less advantageous than the Expiring Lease, Purchaser shall be entitled to withdraw on a monthly basis (for a period of time not to exceed twelve (12) months with respect to each such Expiring Lease) from the Master Lease Escrow an amount equal to (x) the amount of the base rent and expense reimbursements with respect to any Expiring Lease not renewed and (y) the amount (if any) by which the base rent and expense reimbursements for any Expiring Lease exceed the same for any renewal thereof. Sellers shall provide Purchaser with originals of any amendments of Leases or new Leases negotiated by Sellers, which shall be executed by Purchaser provided that such amendments or new Leases are on the minimum terms set forth on Exhibit F-l.

Sellers shall be entitled to receive the balance of the Master Lease Escrow applicable to any Expiring Lease upon the occurrence of a leasing event (the “Leasing Event”) with respect to such Expiring Lease (net of funds drawn to pay lease costs as described above) remaining in the Master Lease Escrow on a lease by lease basis. For the purposes hereof, a Leasing Event shall have occurred when (1) the existing tenant shall have renewed its lease or otherwise extended its total occupancy on the minimum terms and conditions set forth herein and in Exhibit F-l; (2) if the existing tenant has vacated, then Sellers shall have entered into a binding lease with a replacement tenant on the minimum terms and conditions set forth herein and in Exhibit F-l, which tenant shall have (3) taken occupancy of the total premises and accepted the premises as delivered by Sellers (and Sellers shall have completed any punchlist items remaining to be completed); (4) tenant is in occupancy and open for business; (5) tenant has made the first payment of rent due under the lease; and (6) a Certificate of Occupancy shall have been issued.

(b)Vacancy Escrow. $251,195.00 (“Vacancy Escrow”) of the Escrow Funds shall be escrowed on account of vacant space, in the amounts and for the locations set forth on Exhibit F-2 hereto (the “Vacant Space”). Sellers, through the Manager (defined below), shall have the continuing right until October 31, 2006 to lease each Vacant Space on the minimum terms set forth on Exhibit F-2, and to receive from the Vacancy Escrow an amount equal to the value assigned to each lease of such Vacant Space location pursuant to the formula set forth below. Tenant improvement costs, leasing commissions and other costs incurred by Sellers and/or the Manager in renewing or reletting each such Vacant Space location shall be the sole cost and expense of Sellers. Upon the execution of a lease with respect to any Vacant Space, Sellers shall have the right to draw on funds

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deposited in the Vacancy Escrow for tenant improvements and commissions in connection with the lease-up of such space in amounts not to exceed $15.00 per square foot for tenant improvements and $3.00 per square foot for leasing commissions with respect to Vacant Space never leased before, and not to exceed $5.00 per square foot for tenant improvements and $3.00 per square foot for space previously leased; provided further, that with regards to vacant space that is never leased, the balance of funds remaining for tenant improvements and commissions shall remain with Purchaser. The foregoing amounts represent the limits on the amounts by which Sellers may draw on funds deposited in the Vacancy Escrow but Sellers shall have the right (but Sellers shall not have an obligation) to expend amounts in excess of such amounts. Sellers shall provide Purchaser with originals of any new Leases negotiated by Sellers, which shall be executed by Purchaser provided that such Leases are on the minimum terms set forth on Exhibit F-2 and on a lease form previously approved by Purchaser.

If at 5:00 p.m., Dallas, Texas time on April 30, 2006 (the “Escrow Termination Date”), any amount of the Escrow Funds remain (subject to offset for amounts, if any, for which Sellers have previously qualified, as evidenced by a written notice accompanied by such additional items as may be necessary under the Escrow Agreement to verify Sellers’ right to draw from the Escrow Funds), then such remainder shall be released to Purchaser on the first business day after the Escrow Termination Date without further instruction or authorization necessary (and the remaining amount, if any, due to Sellers under the Escrow Agreement shall be disbursed to Sellers promptly upon Escrow Agent’s review and confirmation of Sellers’ notice claiming such funds). Upon full disbursement of the Escrow Funds, the Escrow Agreement shall terminate and shall be of no further force or effect. Notwithstanding anything in this Agreement or the Escrow Agreement to the contrary, in no event will Sellers’ obligations under the Escrow Agreement exceed the amount of the Escrow Funds.

2.12Earnout. Within thirty (30) days after Purchaser’s receipt of written notice from Sellers that a Leasing Event has occurred with respect to any portion of the Vacant Space, Purchaser shall pay the applicable Seller (in immediately available funds) an amount (the “Earnout Payment”) equal to the quotient obtained by dividing the product of (x) annual base rent sent forth in such lease (less the amount, if any, by which the pass-through amount paid by the tenant is less than 100% of such tenant’s proportionate share) multiplied by the total square footage of leasing space demised by such lease, by (y) the base rent divider of 6.8875; provided however, that in no event (i) shall the aggregate amount of the Earnout Payments made exceed $6,398,316.00 and (ii) shall Purchaser be obligated to make any Earnout Payment after November 30, 2006 regardless of the aggregate amounts of Earnout Payments paid to Seller on or before such date. The provisions of this Section 2.12 shall survive the Closing.

Purchaser and Sellers hereby acknowledge and agree that certain of the space within Building 3C (i) constitutes space for which a Leasing Event could occur as provided on Exhibit F-1, (ii) is subject to one or more Expiring Leases as provided on Exhibit F-1, and (iii) constitutes Vacant Space hereunder as provided on Exhibit F-2. SLVW may, in its sole discretion and from time to time, designate an Affiliate of SLVW to which any payments or distributions under Sections 2.11 and 2.12 hereof (including, without limitation, any Earnout Payment) may be made.

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2.13Management Agreement; C&S Lease Extension Amendment. Contemporaneously with Closing, (a) Purchaser shall enter into a new sub-management agreement for the on-site property management of the Properties with Cooper & Stebbins, L.P. (the “Manager”) in form reasonably acceptable to Purchaser and Manager (the “Management Agreement”), on the following terms and conditions: (1) the term shall expire not earlier than October 31, 2007, (2) Manager will provide customary on-site management functions and staff, (3) Purchaser shall reimburse Manager for all expenses incurred in providing such management functions, provided such expenses are incurred in accordance with a budget approved by Purchaser, (4) Purchaser will provide all accounting services to the Purchaser and will collect all management fee income on behalf of the Purchaser, and (5) Manager’s duties shall be progressively transitioned over to Purchaser beginning on October 31, 2006, and (b) Purchaser shall cause the SLVWII Partnership to enter into an amendment to the existing lease agreement with Manager in form reasonably acceptable to Purchaser and Manager (the “C&S Lease Extension Amendment”), on the following terms and conditions: (i) the lease term shall expire contemporaneously with the Management Agreement, and (ii) Manager, as tenant thereunder, shall have the right to terminate such lease upon 30 days prior written notice in the event that the Management Agreement terminates for any reason prior to the expiration date thereof. The terms of this Section 2.13 shall survive the Closing. Notwithstanding the foregoing, Manager shall be required to agree to subordinate the sub-management agreement to the loan documents of any lender and agree that such lender may terminate the sub-management agreement in the event of a default under such lender’s loan.

ARTICLE III
REPRESENTATIONS AND WARRANTIES

3.1Representations and Warranties of Sellers. Sellers, individually and collectively as set forth below, represent and warrant to Purchaser as of the date of this Agreement and as of the Closing Date that;

(a)Authority of Sellers. Each of the Sellers represents and warrants that the execution and delivery of this Agreement by such Sellers and each other agreement, instrument, certificate and document to be executed by such Sellers hereunder and the performance by such Sellers of its obligations under this Agreement have been duly and validly authorized by all necessary action on the part of such Sellers. Each of the Sellers represents and warrants that this Agreement constitutes a legal, valid, and binding obligation of such Sellers and is enforceable against such Sellers in accordance with its terms, except to the extent that (i) enforcement may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium, or similar Laws now or hereafter in effect relating to or limiting creditors’ rights generally and (ii) the remedy of specific performance and injunctive and other forms of equitable relief are subject to certain equitable defenses and to the discretion of the court or other similar person or entity before which any proceeding therefor may be brought.

(b)No Conflicts or Violations. Each of the Sellers hereby represents and warrants that the execution and delivery of this Agreement by each of the Sellers does not, and the performance by each of the Sellers of such Sellers’ obligations under this Agreement and the consummation of the transactions contemplated hereby will not: (i) violate any term or provision of any Law or any writ, judgment, decree, or injunction

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applicable to such Sellers, except such violations that do not have a Material Adverse Effect on the Properties; (ii) conflict with or result in a violation or breach of any of the provisions of the governing documents of such Sellers, except such conflicts, violations, or breaches that do not have a Material Adverse Effect on the Properties; or (iii) conflict with or result in a violation or breach of any Contract to which such Sellers is a party, except such conflicts, violations, or breaches that do not have a Material Adverse Effect on such Sellers.

(c)Not a Foreign Person. Each of the Sellers represents and warrants that it is not a “foreign person” but is a “United States person” as such terms are defined in the Foreign Investment in Real Property Tax Act of 1980 and §§1445 and 7701 of the Code; that is to say, each such Sellers represents that it is a citizen or a resident of the United States, a domestic partnership, a domestic corporation, or an estate or trust which is not a foreign estate or foreign trust within the meaning of § 7701(a)(31) of the Code.

(d)No Condemnation. SLVE, SLVW, SLVWII, SLCV and SLCVII represent and warrant, respectively, that to Sellers’ Knowledge, there is no pending condemnation proceeding affecting the SLVE Property, SLVW Property, SLVWII Property, SLCV Property or the SLCVII Property, respectively, or any portion thereof. Neither SLVE, SLVW, SLVWII, SLCV nor SLCVII has received any written notice of any such proceeding with respect to the SLVE Property, SLVW Property, SLVWII Property, SLCV Property or SLCVII Property, respectively, and neither SLVE, SLVW, SLVWII, SLCV nor SLCV have received any written notice or has any knowledge that any such proceeding is contemplated with respect to the SLVE Property, SLVW Property, SLVWII Property, SLCV Property or the SLCVII Property, respectively.

(e)No Litigation. SLVE, SLVW, SLVWII, SLCV and SLCVII represent and warrant that except as shown on Section 3.1 (e) to the Disclosure Schedule, there is no action, suit, proceeding, arbitration, unsatisfied order or judgment, governmental investigation or claim pending or threatened (and to Sellers’ Knowledge there are no claims, situations or facts or circumstances which could be reasonably believed to give rise to any of the foregoing) against or affecting the SLVE Property, SLVW Property, SLVWII Property, SLCV Property and the SLCVII Property, respectively, or any portion thereof.

(f)No Other Contracts. SLVE, SLVW, SLVWII, SLCV and SLCVII, respectively, represent and warrant that except for the Permitted Exceptions and as shown on Section 3.1(f) of the Disclosure Schedule, there are no Contracts relating to the SLVE Property, SLVW Property, SLVWII Property, SLCV Property or SLCVII Property, respectively, or any portion thereof.

(g)Brokers. SLVE, SLVW, SLVWII, SLCV and SLCVII, respectively, represent and warrant that all negotiations relative to this Agreement and the transactions contemplated hereby have been carried out by Sellers directly with Purchaser, without the intervention of any Person on behalf of Sellers in such manner as to give rise to any valid claim by any Person against Purchaser for a finder’s fee, brokerage commission, or similar payment, except for Holiday Fenoglio Fowler, L.P.

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(h)Consents. SLVE, SLVW, SLVWII, SLCV and SLCVII, respectively, represent and warrant that no consent, license, approval, order, permit or authorization of any Governmental Agency is required to be obtained or made and no consent of any other third party, is required to be obtained by Sellers in connection with the execution, delivery and performance of this Agreement and any of the transactions contemplated hereby.

(i)The SLVE Real Property consists of approximately 2.5250 acres of land, and approximately 11,400 square feet of net rentable square feet, and located at 1580 East Southlake Blvd, Southlake, Texas and commonly known as Block 23 and SLVE has good and indefeasible title to the SLVE Real Property, subject to all easements, restrictions, reservations and covenants now of record and further subject to all matters that a current, accurate survey would show, together with the Permitted Encumbrances;

(j)The SLVW Real Property consists of approximately 15.9897 acres of land, and approximately 62,657 square feet of net rentable square feet, and located at 140 State Street, 1235 Main Street, 1230 Main Street, 1240 Main Street, 300 Grand Avenue, 1200 Prospect Street, Southlake, Texas and commonly known as Parking Lot, Building 1C, Building 2B, Parking Lot, Parking Lot and Block 10 and SLVW has good and indefeasible title to the SLVW Real Property, subject to all easements, restrictions, reservations and covenants now of record and further subject to all matters that a current, accurate survey would show, together with the Permitted Encumbrances;

(k)The SLVWII Real Property consists of approximately 2.0498 acres of land, and approximately 141,499 square feet of net rentable square feet, and located at 180 State Street, 112 State Street, 1256 Main Street and 1200 Main Street, Southlake, Texas and commonly known as Building 1B, Building 1A, Building 2C and Building 2A and SLVWII has good and indefeasible title to the SLVWII Real Property, subject to all easements, restrictions, reservations and covenants now of record and further subject to all matters that a current, accurate survey would show, together with the Permitted Encumbrances;

(l)The SLCV Real Property consists of approximately 8.9198 acres of land, and approximately 70,212 square feet of net rentable square feet, and located at 1450 Main Street, 1440 Main Street, 1430 E. Southlake Blvd., 141 Grand Avenue, 1431 Main Street, Southlake, Texas and commonly known as Building 4B, Parking Lot, Building 5G, Parking Lot and Building 5C and SLCV has good and indefeasible title to the SLCV Real Property, subject to all easements, restrictions, reservations and covenants now of record and further subject to all matters that a current, accurate survey would show, together with the Permitted Encumbrances;

(m)The SLCVII Real Property consists of approximately 1.4598 acres of land, and approximately 118,526 square feet of net rentable square feet, and located at 1422 Main Street, 181 Grand Avenue and 115 Grand Avenue, Southlake, Texas and commonly known as Building 4C, Building 5B and Building 5A and SLCVII has good and indefeasible title to the SLCVII Real Property, subject to all easements, restrictions,

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reservations and covenants now of record and further subject to all matters that a current, accurate survey would show, together with the Permitted Encumbrances;

(n)Section 3.1(n) of the Disclosure Schedule sets forth all of the existing warranties applicable to the Properties.

(o)Sellers have not been served with process or other written notice of any litigation or proceeding pending or, to Sellers’ Knowledge, threatened against the Property, including but not limited to condemnation or eminent domain.

(p)All income and expense statements delivered to Purchaser with respect to the Property are true, correct and complete in all material respects.

(q)Sellers have not received written notice of violations at or by the Properties of zoning, building, subdivision, fire, air pollution, business occupancy or Environmental Requirements, rules or regulations relating to the Properties or of other governmental action affecting the Properties that have not been cured except as set forth in Section 3.1(q) of the Disclosure Schedule.

(r)Sellers have not received written notice from any federal, state, county or municipal authority as to the existence of any Hazardous Materials at the Properties.

(s)The rent roll attached hereto as part of the Disclosure Schedule contains a complete list of all leases affecting the Properties and the copies of such Leases provided to Purchaser are complete and correct in all material respects. Except as otherwise disclosed to Purchaser in the Property Information, in any tenant estoppel certificate, the rent roll attached to the Disclosure Schedule, the Leases are in full force and effect and to Seller’s Knowledge there is no monetary default (other than with respect to the payment of basic rent not more than 20 days past due) nor any material non-monetary default under any of the Leases.

(t)There are no other Contracts other than the Contracts affecting the Properties or the operation thereof as set forth in the Disclosure Schedule attached hereto, and the copies of such Contracts provided to Purchaser are complete and correct and to Seller’s knowledge, Seller is not in default thereunder.

(u)Sellers own all of the landlords’ interest in the Leases and the property owners’ interest in the Contracts and the personal property. Seller’s interest in the Contracts, Leases, and personal property is free and clear of all encumbrances, and has not been assigned to any other person, except for collateral assignments to lenders which will be released at Closing

(v)Sellers’ representations and warranties set forth in this Agreement shall survive the Closing for a period of one (1) year (the “Survival Period”). As a condition precedent to Purchaser’s obligation to close the purchase and sale transaction contemplated in this Agreement, Sellers’ representations and warranties contained herein must remain and be true and correct in all material respects as of the Closing Date. Purchaser shall have the right to bring an action against the Sellers on the breach of a

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representation or warranty hereunder, but only upon the condition that Purchaser first learns of the breach after Closing and gives written notice of such breach to the Sellers before the end of the Survival Period and files such action on or before the first day following the second anniversary of the Closing Date. Sellers shall have no liability after Closing for the breach of a representation or warranty hereunder of which Purchaser had knowledge as of Closing. Notwithstanding any other provision of this Agreement, any agreement contemplated by this Agreement, or any rights which Purchaser might otherwise have at law, equity, or by statute, whether based on contract or some other claim, as of the Closing Date. Purchaser agrees that any liability of Sellers to Purchaser will be limited to $5,400,000.00. The provisions of this Section shall survive the Closing.

3.2Purchaser’s Representations and Warranties. Purchaser hereby represents and warrants to Sellers as of the date hereof and as of the Closing Date as follows:

(a)Organization. Purchaser is a corporation duly organized, validly existing, and in good standing under the Laws of the State of Illinois and has the requisite corporate power and authority to enter into this Agreement and to perform its obligations under this Agreement.

(b)Authority. The execution and delivery of this Agreement by Purchaser and the performance by Purchaser of its obligations under this Agreement have been duly and validly authorized by all requisite corporate action on the part of Purchaser. This Agreement constitutes a legal, valid, and binding obligation of Purchaser and is enforceable against Purchaser in accordance with its terms, except to the extent that (i) enforcement may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium, or similar Laws now or hereafter in effect relating to or limiting creditors, rights generally and (ii) the remedy of specific performance and injunctive and other forms of equitable relief are subject to certain equitable defenses and to the discretion of the court or other similar person or entity before which any proceeding therefor may be brought.

(c)No Conflicts or Violations. The execution and delivery of this Agreement by Purchaser do not, and the performance by Purchaser of Purchaser’s obligations under this Agreement will not:

(i)violate any term or provision of any applicable Law or any writ, judgment, decree, or injunction applicable to Purchaser, except such violations that do not have a Material Adverse Effect;

(ii)conflict with or result in a violation or breach of any of the provisions of the articles or certificate of incorporation or bylaws of Purchaser, except such conflicts, violations, or breaches that do not have a Material Adverse Effect; or

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(iii)conflict with or result in a violation or breach of any Contract to which Purchaser is a party, except such conflicts, violations, or breaches that do not have a Material Adverse Effect.

(d)Litigation. There is no action, suit, or proceeding pending, or (to the knowledge of Purchaser) threatened, against Purchaser, at Law or in equity, in, before, or by any person or entity that, if adversely determined, would have a Material Adverse Effect.

(e)Purchase for Investment. The Properties will be acquired by Purchaser or its assignee for its own account for the purpose of investment and not for the purpose or with the intent of a distribution or other sale and disposition thereof. Purchaser shall not transfer or otherwise dispose of any of the Properties, or any interest therein, in such manner as to violate any provisions of the Securities Act of 1933, as amended, or of any securities Laws of any state or other jurisdiction regulating the disposition thereof. This Section 3.2(e) shall survive the Closing.

(f)Brokers. All negotiations relative to this Agreement and the transactions contemplated hereby have been carried out by Purchaser directly with Sellers and its Affiliates, without the intervention of any Person on behalf of Purchaser in such manner as to give rise to any valid claim by any Person against Sellers or its Affiliates for a finder’s fee, brokerage commission, or similar payment, except for Holliday Fenoglio Fowler, L.P., whose commission shall be paid by Sellers pursuant to a separate written agreement.

(g)No Third-Party Financing. Purchaser will not rely on third-party equity to be raised or any third-party financing. Sellers will not provide, and Purchaser will not require, any documentation in the form of subordination, non-disturbance and attornment agreements running to the benefit of any third-party lender.

3.3Disclaimer: Release; Indemnity.

(a)Disclaimers By Sellers. Except as expressly set forth in this Agreement, it is understood and agreed that Sellers and Sellers’ agents or employees have not at any time made and are not now making, and they specifically disclaim, any warranties, representations or guaranties of any kind or character, express or implied, with respect to the Properties, including, but not limited to, warranties, representations or guaranties as to (a) matters of title, (b) environmental matters relating to the Properties or any portions thereof, including, without limitation, the presence of Hazardous Materials in, on, under or in the vicinity of the Properties, (c) geological conditions, including, without limitation, subsidence, subsurface conditions, water table, underground water reservoirs, limitations regarding the withdrawal of water, and geologic faults and the resulting damage of past and/or future faulting, (d) whether, and to the extent to which the Properties or any portions thereof are affected by any stream (surface or underground), body of water, wetlands, flood prone area, flood plain, floodway or special flood hazard, (e) drainage, (f) soil conditions, including the existence of instability, past soil repairs, soil additions or conditions of soil fill, or susceptibility to landslides, or the sufficiency of

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any undershoring, (g) the presence of endangered species or any environmentally sensitive or protected areas, (h) zoning or building entitlements to which the Properties or any portions thereof may be subject, (i) the availability of any utilities to the Properties or any portions thereof including, without limitation, water, sewage, gas and electric, (j) usages of adjoining property, (k) access to the Properties or any portions thereof, (l) the value, compliance with the plans and specifications, size, location, age, use, design, quality, description, suitability, structural integrity, operation, title to, or physical or financial condition of the Properties or any portion thereof, or any income, expenses, charges, liens, encumbrances, rights or claims on or affecting or pertaining to the Properties or any parts thereof, (m) the condition or use of the Properties or compliance of the Properties with any or all past, present or future federal, state or local Laws, (n) the existence or non-existence of underground storage tanks, surface impoundments, or landfills, (o) any other matter affecting the stability and integrity of the Properties, (p) the potential for further development of the Properties, (q) the merchantability of the Properties or fitness of the Properties for any particular purpose, (r) the truth, accuracy or completeness of the Property Information, (s) tax consequences, or (t) any other matter or thing with respect to the Properties.

(b)Sale “As Is, Where Is”. Subject to the terms and provisions hereof and except as otherwise provided herein, Purchaser acknowledges and agrees that upon Closing, Purchaser shall accept the Properties conveyed “AS IS, WHERE IS, WITH ALL FAULTS,” except to the extent expressly provided otherwise in this Agreement and any document executed by Sellers and delivered to Purchaser at Closing. Except as expressly set forth in this Agreement, Purchaser has not relied and will not rely on, and Sellers have not made and is not liable for or bound by, any express or implied warranties, guarantees, statements, representations or information pertaining to the Properties or relating thereto (including specifically, without limitation, Property Information packages distributed with respect to the Properties) made or furnished by Sellers, or any property manager, real estate broker, agent or third party representing or purporting to represent Sellers, to whomever made or given, directly or indirectly, orally or in writing. Purchaser represents that it is a knowledgeable, experienced and sophisticated purchaser of real estate and that, except as expressly set forth in this Agreement, it is relying solely on its own expertise and that of Purchaser’s consultants and shall make an independent verification of the accuracy of any documents and information provided by Sellers. Purchaser will conduct such inspections and investigations of the Properties as Purchaser deems necessary, including, but not limited to, the physical and environmental conditions thereof, and shall rely upon same. By failing to terminate this Agreement prior to the expiration of the Inspection Period, Purchaser acknowledges that Sellers have afforded Purchaser a full opportunity to conduct such investigations of the Properties as Purchaser deemed necessary to satisfy itself as to the condition of the Properties and the existence or non-existence or curative action to be taken with respect to any Hazardous Materials on or discharged from the Properties, and will rely solely upon same and not upon any information provided by or on behalf of Sellers or their agents or employees with respect thereto, other than such representations, warranties and covenants of Sellers as are expressly set forth in this Agreement. Upon Closing, Purchaser shall assume the risk that adverse matters, including, but not limited to, adverse physical or construction defects or adverse

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environmental, health or safety conditions, may not have been revealed by Purchaser’s inspections and investigations. Purchaser hereby represents and warrants to Sellers that: (a) Purchaser is represented by legal counsel in connection with the transaction contemplated by this Agreement; and (b) Purchaser is purchasing the Properties for business, commercial, investment or other similar purpose and not for use as Purchaser’s residence. Purchaser waives any and all rights or remedies it may have or be entitled to, deriving from disparity in size or from any significant disparate bargaining position in relation to Sellers.

(c)Sellers Released from Liability. Purchaser acknowledges that it will have the opportunity to inspect the Properties during the Inspection Period, and during such period, observe the physical characteristics and existing conditions and the opportunity to conduct such investigation and study on and of the Properties and adjacent areas as Purchaser deems necessary, and except as otherwise provided herein Purchaser hereby FOREVER RELEASES AND DISCHARGES Sellers from all responsibility and liability, including without limitation, liabilities under any Environmental Laws, regarding the condition, valuation, salability or utility of the Properties, or their suitability for any purpose whatsoever (including, but not limited to, with respect to the presence in the soil, air, structures and surface and subsurface waters, of Hazardous Materials or other materials or substances that have been or may in the future be determined to be toxic, hazardous, undesirable or subject to regulation and that may need to be specially treated, handled and/or removed from the Property, current or future federal, state and local laws, regulations or guidelines, and any structural and geologic conditions, subsurface soil and water conditions and solid and hazardous waste and Hazardous Materials on, under, adjacent to or otherwise affecting the Properties). Purchaser further hereby WAIVES (and by Closing this transaction will be deemed to have WAIVED) any and all objections and complaints (including, but not limited to, federal, state and local statutory and common law based actions, and any private right of action under any federal, state or local laws, regulations or guidelines to which the Property is or may be subject, including, but not limited to, any Environmental Laws) concerning the physical characteristics and any existing conditions of the Properties. Purchaser further hereby assumes the risk of changes in applicable Laws relating to past, present and future environmental conditions on the Properties and the risk that adverse physical characteristics and conditions, including, without limitation, the presence of Hazardous Materials or other contaminants, may not have been revealed by its investigation.

(d)Survival. The terms and conditions of this Section 3.3 shall expressly survive the Closing and not merge with the provisions of any Closing documents. Purchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement and that Sellers would not have agreed to consummate this transaction for the Purchase Price without the disclaimers and other agreements set forth above.

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ARTICLE IV
CONDITIONS TO OBLIGATIONS OF PURCHASER

The obligations of Purchaser hereunder are subject to the fulfillment, at or before the Closing, of each of the following conditions (all or any of which may be waived in whole or in part by Purchaser):

4.1Representations and Warranties. The representations and warranties made by Sellers in this Agreement and the disclosures of Sellers in the Disclosure Schedule and all other schedules and exhibits attached hereto shall be true in all material respects as of the date hereof and shall be true in all material respects on and as of the Closing Date as though such representations, warranties and disclosures were made on and as of the Closing Date.

4.2Performance. Sellers shall have performed and complied in all material respects with all agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by Sellers at or before the Closing Date.

4.3No Injunction. There shall not be in effect on the Closing Date any writ, judgment, injunction, decree, or similar order of any court or Governmental Authority, or otherwise, restraining, enjoining, or otherwise preventing consummation of any of the transactions contemplated by this Agreement.

4.4No Proceeding or Litigation. There shall not be instituted, pending, or (to the Knowledge of Purchaser or Sellers) threatened, any action, suit, investigation, or other proceeding in, before, or by any court or Governmental Authority to restrain, enjoin, or otherwise prevent consummation of any of the transactions contemplated by this Agreement.

4.5Sellers’ Closing Deliveries. Sellers shall have delivered to Purchaser on or before the Closing all of the deliveries required under this Agreement.

4.6Tenant Estoppel Certificates. Sellers shall have delivered tenant estoppel certificates substantially in the form of Exhibit G hereto (or, if a tenant’s Lease specifies or contemplates another form of tenant estoppel certificate, then such other specified or contemplated form) executed by 75% of the retail tenants and 75% of the office tenants occupying improvements located on the Properties which estoppels must include estoppels from 75% of the tenants (the “Major Tenants”) listed on Exhibit G-l attached hereto, with the balance thereof delivered within sixty (60) days of Closing. Sellers shall not be obligated to expend any funds in connection with obtaining any such tenant estoppel certificates, and the failure of Sellers to obtain any such tenant estoppel certificates shall not be a breach or default hereunder. If Sellers are unable to deliver the tenant estoppel certificates referred to in this Section 4.6, then Purchaser’s sole remedies and recourses shall be limited to either (a) waiving the requirement for the tenant estoppel certificate(s) in question and proceeding to Closing without reduction of the Purchase Price or (b) terminating this Agreement by immediate notification to Sellers and receiving the immediate return of all of the Earnest Money including, but not limited to, any portion that may have been designated as the Breakup Fee.

4.7Title Policy. The title company shall be prepared to issue the Owner’s Policy.

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4.8Grand Avenue Agreement. SLTS Grand Avenue, L.P. and Purchaser shall have executed an agreement regarding the purchase of the parcels of land described on Exhibit I, and there shall be no default of either party thereunder.

4.9Ground Leases. Simultaneously with the Closing, Purchaser and SLTS Grand Avenue, L.P. shall have executed ground leases with respect to certain parcels of land described on Exhibit J upon terms mutually acceptable to Purchaser and SLTS Grand Avenue, L.P., in their sole and absolute discretion.

4.10Sellers’ Representations and Warranties. All of Sellers’ representations and warranties shall be true and accurate in all material respects as of the Closing Date.

In the event that any of the foregoing conditions precedent are not met or fulfilled on the Closing Date and so long as Purchaser is not in default hereunder, Purchaser may (a) terminate this Agreement and receive the immediate return of all of the Earnest Money including, but not limited to, any portion that may have been designated as the Breakup Fee, or (b) elect to close notwithstanding the non-satisfaction of such condition, in which event Purchaser shall be deemed to have waived any such condition. In the event Purchaser elects to close, notwithstanding the non-satisfaction of such condition, Purchaser shall be deemed to have waived said condition, and there shall be no liability on the part of Sellers therefor.

ARTICLE V
CONDITIONS TO OBLIGATIONS OF SELLERS

The obligations of Sellers hereunder are subject to the fulfillment, at or before the Closing, of each of the following conditions (all or any of which may be waived in whole or in part by Sellers):

5.1Representations and Warranties. The representations and warranties made by Purchaser in this Agreement shall be true in all material respects as of the date hereof and shall be true in all material respects on and as of the Closing Date as though such representations and warranties were made on and as of the Closing Date.

5.2Performance. Purchaser shall have performed and complied in all material respects with all agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by Purchaser at or before the Closing Date.

5.3No Injunction. There shall not be in effect on the Closing Date any writ, judgment, injunction, decree, or similar order of any court or Governmental Authority, or otherwise, restraining, enjoining, or otherwise preventing consummation of any of the transactions contemplated by this Agreement.

5.4No Proceeding or Litigation. There shall not be instituted, pending, or (to the Knowledge of Purchaser or Sellers) threatened, any action, suit, investigation, or other proceeding in, before, or by any court or Governmental Authority to restrain, enjoin, or otherwise prevent consummation of any of the transactions contemplated by this Agreement.

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5.5Purchaser’s Closing Deliveries. Purchaser shall have delivered to Sellers on or before Closing all of the deliveries required under this Agreement.

5.6Grand Avenue Agreement. SLTS Grand Avenue, L.P. and Purchaser shall have executed an agreement regarding the purchase of the parcels of land described on Exhibit I, and there shall be no default of either party thereunder.

5.7Ground Leases. Simultaneously with the Closing, Purchaser and SLTS Grand Avenue, L.P. shall have executed ground leases with respect to certain parcels of land described on Exhibit J upon terms mutually acceptable to Purchaser and SLTS Grand Avenue, L.P., in their sole and absolute discretion.

In the event that any of the foregoing conditions precedent are not met or fulfilled on the Closing Date and so long as Sellers are not in default hereunder, Sellers may (a) terminate this Agreement and receive the immediate delivery of all of the Earnest Money including, but not limited to, any portion that may have been designated as the Breakup Fee, or (b) elect to close notwithstanding the non-satisfaction of such condition, in which event Sellers shall be deemed to have waived any such condition. In the event Sellers elect to close, notwithstanding the non-satisfaction of such condition, Sellers shall be deemed to have waived said condition, and there shall be no liability on the part of Purchaser therefor.

ARTICLE VI
TITLE AND SURVEY

6.1Delivery of Title Commitment and Survey. Within five (5) days of the Effective Date, Sellers shall deliver to Purchaser the following items:

(a)Title Commitment. The Title Commitment (as hereinafter defined), together with legible copies of any and all title exception documents referenced therein. The “Title Commitment” shall mean a commitment or commitments for one or more TLTA Owner’s Title Insurance Policy (Form B) for the Real Property issued by the Chicago Title Insurance Company in the full amount of the Purchase Price, covering title to the Real Property on or after the date hereof, showing Purchaser as owner of the Real Property in fee simple, and providing for full extended coverage over all general title exceptions contained in such policies and containing the following special endorsements to the extent available (collectively, the “Special Title Endorsements”), owner’s comprehensive, access, survey (legal description equivalency), contiguity (if applicable), encroachment (if applicable), non-imputation, and deletion of the arbitration provision and creditors’ rights provision. The Owner’s Policy described herein together with the Special Endorsements is referred to herein as the Title Policy.

(b)Survey. An ALTA ACSM Title Survey of the Real Property prepared in accordance with the Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys jointly established by the American Land Title Association and the American Congress on Surveying and Mapping in 1999, that meets the accuracy requirements of an Urban Survey, as defined therein, and includes items 1, 3, 4, 6, 7 (a, b and c), 8-11 and 13-16 of Table A thereof (the “Survey”).

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6.2Title and Survey Objections.

(a)In the event (i) the Survey shows any easement, right-of-way, encroachment, conflict, protrusion or other matter affecting the Real Property that is unacceptable to Purchaser, or (ii) any exceptions appear in the Title Commitment that are unacceptable to Purchaser, Purchaser shall notify Sellers in writing of such facts (“Purchaser’s Title Objections”) not later than 5:00 p.m. Central Time upon the date which is the later of November 5, 2004 or five (5) business days after the date Purchaser has received delivery of both the Survey and Title Commitment (the “Title Approval Period”), but in no event later than the expiration of the Inspection Period.  Upon the expiration of the Title Approval Period, except for Purchaser’s Title Objections, Monetary Liens (as hereafter defined), and any other matters arising subsequent to the date of the Survey and Title Commitment, Purchaser shall be deemed to have accepted the Survey, the Title Commitment and all matters shown or addressed therein, including, without limitation, any easement, right of way, encroachment, conflict, discrepancy, overlapping of improvements, protrusion, lien, encumbrance, restriction, condition, covenant, exception or other matter with respect thereto (collectively, the “Approved Title Matters”).

(b)Notwithstanding anything to the contrary contained herein, except for any Monetary Liens and any matters created by Sellers after the date of the Title Commitment, Sellers shall have no obligation to take any steps or bring any action or proceeding or otherwise to incur any effort or expense whatsoever to eliminate or modify any of Purchaser’s Title Objections; provided, however, Sellers, at their sole option, may attempt to eliminate or modify all or a portion of Purchaser’s Title Objections to Purchaser’s reasonable satisfaction prior to the Closing Date. In the event Sellers are unable or unwilling to attempt to eliminate or modify all of Purchaser’s Title Objections to the reasonable satisfaction of Purchaser, Sellers shall provide written notice thereof to Purchaser within five (5) business days of its receipt of Purchaser’s Title Objections (“Sellers’ Notice”). Purchaser may thereafter elect to close notwithstanding Purchaser’s Title Objections (in which case Sellers shall have no liability to eliminate or modify, and Purchaser shall take the Property subject to the Purchaser’s Title Objections) or Purchaser may (as its sole and exclusive remedy) terminate this Agreement by delivering notice thereof in writing to Sellers, in which event neither party shall have any obligation hereunder other than the Surviving Obligations and Purchaser shall be entitled to return all of the Earnest Money, including any portion thereof that may have been designated as the Breakup Fee. Sellers shall cause all mortgages, deeds of trust and monetary liens (including liens for delinquent taxes, mechanics’ liens and judgment liens) affecting the Property and all indebtedness secured thereby (the “Monetary Liens”) to be satisfied, released and discharged of record on or prior to the Closing Date.

ARTICLE VII
MISCELLANEOUS

7.1Notices. Any notice or other communication given pursuant to this Agreement must be in writing and (a) delivered personally, (b) sent by telefacsimile or other similar facsimile transmission, (c) delivered by overnight express or (d) e-mail as follows:

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(a)	If to Purchaser:
	Inland Real Estate Acquisitions, Inc. 1700 Alma Road Plano, Texas 75075 Attn: Matthew Tice Telephone: (972) 442-6770 Facsimile: (972) 429-9017 E-Mail: tice@inlandgroup.com
	The Inland Real Estate Group, Inc 2901 Butterfield Road Oak Brook, Illinois 60523 Attn: Dennis K. Holland, Esq. Telephone: (630) 218-8000 Facsimile: (630) 218-4900 E-Mail: dholland@inlandgroup.com
(b)	If to Sellers:
	Southlake Venture East, L.P. Southlake Venture West, L.P. SL Venture West II, L.P. Southlake Central Venture SL Central Venture II, L.P.
	c/o Cooper & Stebbins, L.P.
	1256 Main Street, Suite 240
	Southlake, Texas 76092
	Attention: Frank S. Bliss
	Telephone: (817) 329-8400
	Facsimile: (817) 251-8717
	E-Mail: fbliss@southlaketownsquare.com
	with a copy to:
	Winstead Sechrest & Minick P.C. 5400 Renaissance Tower 1201 Elm Street Dallas, Texas 75270 Attention: John Nolan, Esq. Telephone: (214) 745-5217 Facsimile: (214) 745-5390 E-mail: jnolan@winstcad.com

All notices and other communications required or permitted under this Agreement that are addressed as provided in this Section 8.1 will (A) if delivered personally be deemed given when delivered or if by overnight express, be deemed given the day after deposited with an overnight

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carrier; (B) if delivered by telefacsimile or similar facsimile transmission, be deemed given when electronically confirmed; and (C) if sent by e-mail when sent. Any party from time to time may change its address for the purpose of notices to that party by giving a similar notice specifying a new address, but no such notice will be deemed to have been given until it is actually received by the party sought to be charged with the contents thereof.

7.2Entire Agreement. Except for documents executed by Sellers and Purchaser pursuant hereto, this Agreement supersedes all prior discussions and agreements between the parties with respect to the subject matter of this Agreement, and this Agreement contains the sole and entire agreement between the parties hereto with respect to the subject matter hereof.

7.3Expenses. Except as otherwise expressly provided in this Agreement, each of Sellers and Purchaser will pay its own costs and expenses in connection with this Agreement and the transactions contemplated hereby.

7.4Public Announcement. Neither party hereto shall make any public announcement or disclosure of any information related to this Agreement to outside brokers or third parties, before or after the Closing, without the prior written specific consent of the other party; however, either party may disclose the terms and conditions of this Agreement if required by Law or court order, and to its attorneys, accountants, employees and existing or prospective financial partners provided same are advised by such party of the confidential nature of such terms and conditions and agree to maintain the confidentiality thereof (in each case, prior to disclosure). The consent by either party to any disclosures shall not be deemed to be a waiver on the part of such party of any prohibition against any future disclosure. Notwithstanding the foregoing, Purchaser may make any and all SEC filings deemed appropriate by Purchaser.

7.5Further Assurance. Sellers and Purchaser agree that, from time to time after the Closing, upon the reasonable request of the other, they will cooperate and will cause their respective Affiliates to cooperate with each other to effect the orderly transition of the business, operations, and affairs of Sellers. Without limiting the generality of the foregoing, (a) Sellers will provide, and will cause its respective Affiliates to provide, representatives of Purchaser reasonable access to all books and records of Sellers and their Affiliates reasonably requested by Purchaser in the preparation of any post-Closing financial statements, reports, Tax Returns, or Tax filings of Sellers; (b) Purchaser will provide, representatives of Sellers reasonable access to all pre-Closing books and records of Sellers reasonably requested by Sellers in the preparation of any post-Closing financial statements, reports, Tax Returns, or Tax filings of Sellers; and (c) each party hereto will execute such documents and instruments as the other party hereto may reasonably request containing terms and conditions mutually satisfactory to each party hereto to further effectuate the terms hereof.

7.6Waiver. Any term or condition of this Agreement may be waived at any time by the party that is entitled to the benefit thereof. Such waiver must be in writing and must be executed by an executive officer of such party. A waiver on one occasion will not be deemed to be a waiver of the same or any other breach or nonfulfillment on a future occasion. All remedies, either under this Agreement, or by Law or otherwise afforded, will be cumulative and not alternative.

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7.7Amendment. This Agreement may be modified or amended only by a writing duly executed by or on behalf of Sellers and Purchaser.

7.8Counterparts. This Agreement may be executed simultaneously in any number of counterparts, each of which will be deemed an original, but all of which will constitute one and the same instrument.

7.9No Third Party Beneficiary. Except as otherwise set forth herein, the terms and provisions of this Agreement are intended solely for the benefit of Sellers, Purchaser, and their respective successors and permitted assigns, and it is not the intention of the parties to confer third-party beneficiary rights upon any other person or entity.

7.10Governing Law. This Agreement will be governed by and construed and enforced in accordance with the Laws of the State of Texas (without regard to the principles of conflicts of Law) applicable to a Contract executed and performable in such state.

7.11Binding Effect. This Agreement is binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.

7.12Limited Assignment. Neither this Agreement nor any right or obligation hereunder or part hereof may be assigned by any party hereto without the prior written consent of the other party hereto (and any attempt to do so will be void), except as otherwise specifically provided herein. Notwithstanding the foregoing, Purchaser shall have the right to assign this Agreement on or before the fifth day prior to the Closing Date to an Affiliate of Purchaser, any Affiliate of The Inland Real Estate Group, Inc., or any Affiliate of Inland Western Retail Real Estate Trust, Inc.; provided, however, that Purchaser shall remain liable for all obligations of Purchaser under this Agreement. Purchaser may assign this Agreement and its rights hereunder to any affiliate,

7.13Provisions. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under any present or future Law, and if the rights or obligations under this Agreement of Sellers and Purchaser will not be materially and adversely affected thereby, (a) such provision will be fully severable; (b) this Agreement will be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part hereof; (c) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid, or unenforceable provision or by its severance herefrom; and (d) in lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically as part of this Agreement a legal, valid, and enforceable provision as similar in terms to such illegal, invalid, or unenforceable provision as may then be legal, valid and enforceable under applicable Law.

7.14Confidentiality. Sellers and Purchaser have entered into the Confidentiality Agreement dated September 22, 2004, attached hereto and incorporated herein.

7.15Condemnation. If, prior to the Closing, action is initiated to take any of the Property by eminent domain proceedings or by deed in lieu thereof, Purchaser may either at or prior to Closing (a) terminate this Agreement and receive a full refund of all of the Earnest Money, including any amount designated as a Breakup Fee, or (b) consummate the Closing, in

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which latter event all of the Sellers’ assignable right, title and interest in and to the award of the condemning authority shall be assigned to Purchaser at the Closing and there shall be no reduction in the Purchase Price.

7.16Casually. Except as otherwise provided in this Agreement, Sellers assume all risks and liability for damage to or injury occurring to the Properties by fire, storm, accident, or any other casualty or cause until the Closing has been consummated. If the Properties, or any part thereof, suffers any damage in excess of $2,000,000.00 or in any amount that would allow any of the Major Tenants to abate rent or terminate their lease prior to the Closing from fire or other casualty which Sellers, at their sole option, does not elect to repair, Purchaser may either at or prior to Closing (a) terminate this Agreement and receive a full refund of the Earnest Money, or (b) consummate the Closing, in which latter event all of Sellers’ right, title and interest in and to the proceeds of any insurance covering such damage to the extent the amount of such insurance does not exceed the Purchase Price, shall be assigned to Purchaser at the Closing and Purchaser shall receive a credit for the deductible. If the Property, or any part thereof, suffers any damage equal to or less than $2,000,000.00 prior to the Closing, Purchaser agrees that it will consummate the Closing and accept the assignment of the proceeds of any insurance covering such damage plus an amount equal to Sellers’ deductible under its insurance policy and there shall be no reduction in the Purchase Price.

7.17Maintenance and Contracts. From the Effective Date of this Agreement until the Closing or earlier termination of this Agreement:

(a)Sellers shall operate and maintain the Properties in the ordinary course of business consistent with the manner in which it has heretofore been operated and maintained. Sellers shall maintain property and casualty insurance on the Properties in the same amounts and for the same coverage as it has heretofore maintained for the Property.

(b)Sellers will perform all the Sellers’ respective material obligations under the Contracts. Sellers will not, without the prior written consent of Purchaser (which consent will not be unreasonably withheld or delayed), modify, enter into, or renew any Contract.

7.18Leasing. From the Effective Date of this Agreement through the expiration of the Inspection Period, Sellers will not, without the prior written consent of Purchaser (which consent will not be unreasonably withheld or delayed), modify, enter into, or renew any Leases. Purchaser’s failure to respond in writing within four (4) business days of Sellers’ request for consent shall be deemed an approval of Sellers’ request, provided that at the time of any request for approval, if there remain less than four (4) business days prior to the expiration of the Inspection Period, the Inspection Period shall be extended to give Purchaser at least four (4) business days to respond. Subsequent to the expiration of the Inspection Period, Sellers shall not modify, enter into, or renew any leases except upon the express written consent of Purchaser which may be granted or withheld in Purchaser’s sole and absolute discretion.

7.191031 Exchange. Sellers intend that the transactions contemplated herein possibly qualify for an Internal Revenue Service Code Section 1031 exchange (“1031 Exchange”) and

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Purchaser will, at no cost to Purchaser, cooperate with and make commercially reasonable efforts to facilitate the use by Sellers of a “Qualified Intermediary” to hold the net proceeds from the transactions contemplated hereunder which are to be disbursed to Sellers at the Closing for the purpose of obtaining like-kind exchange treatment under a 1031 Exchange; provided, however, that (i) the Property shall be directly conveyed by the Sellers to Purchaser at Closing, (ii) such qualification will not unreasonably delay the time and date of the Closing and (iii) Purchaser will not bear any additional expenses, fees or costs in connection with such qualification. Purchaser is agreeing to so cooperate as an accommodation to Seller and Purchaser does not warrant, represent or guarantee any fact to Sellers related to such 1031 Exchange treatment or the process to be used by Sellers in their attempt to obtain such treatment.

[THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]

SIGNATURE PAGES FOLLOW

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IN WITNESS WHEREOF, this Agreement has been duly executed as of the dates set forth below, by the duly authorized representatives of Sellers and Purchaser.

SELLERS:
SOUTHLAKE VENTURE WEST L.P.,
a Texas limited partnership,
By:	RIALTO SOUTHLAKE WEST, L.P., a Texas limited partnership, General Partner
	By:	CS SOUTHLAKE, L.L.C., a Texas limited liability company, General Partner
		By:	/s/ Brian R. Stebbins
			Brian R. Stebbins,
			Managing Member
Date of Signature:
SOUTHLAKE VENTURE EAST L.P.,
a Texas limited partnership,
By:	RIALTO SOUTHLAKE EAST, L.P., a Texas limited partnership, General Partner
	By:	CS SOUTHLAKE, L.L.C., a Texas limited liability company, General Partner
		By:	/s/ Brian R. Stebbins
			Brian R. Stebbins,
			Managing Member
Date of Signature:

37

SL VENTURE WEST II, L.P., a Texas limited partnership
By:	SL VENTURE WEST, LLC, a Texas limited liability company, its General Partner
	By:	SOUTHLAKE VENTURE WEST, L.P., a Texas limited partnership, its Managing Member
		By:	RIALTO SOUTHLAKE WEST, L.P., a Texas limited partnership, its General Partner
			By:		CS SOUTHLAKE, LLC, a Texas limited liability company, its General Partner
			By:	/s/ Brian R. Stebbins
				Brian R. Stebbins
				Its Managing Member

38

SOUTHLAKE CENTRAL VENTURE,
a Texas joint venture,
By:	SOUTHLAKE VENTURE EAST L.P., a Texas limited partnership, Its Authorized Joint Venturer
	By:	RIALTO SOUTHLAKE EAST, L.P., a Texas limited partnership, Its Authorized General Partner
		By:	CS SOUTHLAKE, LLC, a Texas limited liability company Its Authorized General Partner
			By:	/s/ Brian R. Stebbins
					Brian R. Stebbins
					Managing Member
	By:	SOUTHLAKE VENTURE WEST, L.P., a Texas limited partnership, Its Authorized Joint Venturer
		By:	RIALTO SOUTHLAKE WEST L.P., a Texas limited partnership, Its Authorized General Partner
			By:			CS SOUTHLAKE, LLC, a Texas limited liability company, Its Authorized General Partner
						By:	/s/ Brian R. Stebbins
							Brian R. Stebbins
							Managing Member
Date of Signature:

39

SL CENTRAL VENTURE II, L.P.,
a Texas limited partnership
By:	SL CENTRAL VENTURE, LLC, a Texas limited liability company Its Authorized General Partner
	By:	SOUTHLAKE CENTRAL VENTURE, a Texas joint venture, Its Authorized Managing Member
		By.	SOUTHLAKE VENTURE EAST, L.P., a Texas limited partnership, Its Authorized Joint Venturer
			By:	RIALTO SOUTHLAKE EAST, L.P., a Texas limited partnership, Its Authorized General Partner
				By:	CS SOUTHLAKE, LLC, a Texas limited liability company Its Authorized General Partner
					By:	/s/ Brian R. Stebbins
						Brian R. Stebbins
						Its Authorized Managing Member
		By:	SOUTHLAKE VENTURE WEST, L.P., a Texas limited partnership, Its Authorized Joint Venturer
			By:	RIALTO SOUTHLAKE WEST, L.P., a Texas limited partnership, Its Authorized General Partner
				By:	CS SOUTHLAKE, LLC, a Texas limited liability company, Its Authorized General Partner
					By:	/s/ Brian R. Stebbins
						Brian R. Stebbins
						Its Authorized Managing Member

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PURCHASER:
INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
By:	/s/ G. Joseph Cosenza
	Name:		G. Joseph Cosenza
	Title:	President

Exhibit A – Form of Special Warranty Deed
Exhibit B-1 – Description, of the SLVE Property
Exhibit B-2 – Description of the SLVW Property
Exhibit B-2(a) – Description of Building 3C
Exhibit B-3 – Description of the SLVWII Property
Exhibit B-4 – Description of the SLCV Property
Exhibit B-5 – Description of the SLCVII Property
Exhibit C – Purchase Price Allocation

Exhibit D – Stages of Inspection Period

Exhibit E – Free Rent Credit

Exhibit F-l – Master Lease Escrow and Earn-Out
Exhibit F-2 – Vacancy Escrow and Earn-Out

Exhibit G – Form of Tenant Estoppel Certificate
Exhibit G-1 – Major Tenants
Exhibit H – Form of Audit Response Letter
Exhibit I – Description of Property subject to the Grand Avenue Contract
Exhibit J – Description of Property subject to the Ground Leases
Disclosure Schedule

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EX-10.471

Exhibit 10.471

ASSIGNMENT AND ASSUMPTION

OF AGREEMENT TO ADMIT PARTNERS

This ASSIGNMENT AND ASSUMPTION OF AGREEMENT TO ADMIT PARTNERS (this “Assignment”) is made and entered into this 22^nd day of December, 2004 by Inland Real Estate Acquisitions, Inc., an Illinois Corporation, (“Assignor”), and Western Town Square Ventures LP, L.L.C., a Delaware limited liability company and Western Town Square Ventures GP, L.L.C., a Delaware limited liability company, (“Assignees”).

RECITALS

A.C&S Southlake Capital Partners I, L.P., a Texas limited partnership (the “Partnership”), Cooper & Stebbins, L.P., a Texas limited partnership and CS Southlake, L.L.C., a Texas limited liability company (the “Existing Partners”), and Assignor have previously entered into that certain Agreement to Admit Partner dated as of November 5, 2004 (the “Agreement”), relating to the sale of a certain retail property commonly known as Southlake Town Square located in Southlake, Texas.

B.Assignor desires to assign its interest in and to the Agreement to Assignees upon the terms and conditions contained herein.

NOW, THEREFORE, in consideration of the receipt of ten and 00/100 Dollars ($10.00) and other good and valuable consideration in hand paid by Assignees to Assignor, the receipt and sufficiency of which are hereby acknowledged by Assignor, the parties hereby agree as follows:

1.Recitals.  The foregoing recitals are, by this reference, incorporated into the body of this Assignment as if the same had been set forth in the body hereof in their entirety.

2.Assignment and Assumption.  Assignor hereby assigns, conveys, transfers, and sets over to Assignees all of Assignor’s right, title, and interest in and to the Agreement. Assignees hereby accept the foregoing Assignment and assumes, and agrees to perform, all duties, obligations, liabilities, indemnities, covenants, and agreements of Assignor set forth in the Agreement.

3.Counterparts.  This document may be executed in any number of counterparts, each of which may be executed by any one or more of the parties hereto, but all of which must constitute one instrument and shall be binding and effective when all parties hereto have executed at least one counterpart.

4.Successors.  This Assignment shall be binding upon and for the benefit of the parties hereto and their respective Successors and Assigns.

IN WITNESS WHEREOF, Assignor and Assignees have caused this Assignment to be executed as of the day and year first written above.

ASSIGNOR:

INLAND REAL ESTATE ACQUISITIONS, INC.,

An Illinois Corporation

By:	/s/ Joseph Cosenza
Name:		Joseph Cosenza
Title:		President

ASSIGNEES:

Western Town Square Ventures GP, L.L.C., a Delaware

limited liability company, its general partner

By:	Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
	By:	/s/ Valerie Medina
	Name:	Valerie Medina
	Title:	Asst. Secretary

Western Town Square Ventures LP, L.L.C., a Delaware

limited liability company, its general partner

By:	Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
	By:	/s/ Valerie Medina
	Name:	Valerie Medina
	Title:	Asst. Secretary

2

EX-10.472

Exhibit 10.472

AGREEMENT TO ADMIT PARTNER

Dated as of November 5, 2004

Between

C&S Southlake Capital Partners I, L.P.,

a Texas limited partnership,

the Partnership

Cooper & Stebbins, L.P., a Texas limited partnership,
CS Southlake, LLC, a Texas limited liability company,
collectively, the Existing Partners

and

Inland Real Estate Acquisitions, Inc.
an Illinois corporation,
as Admitting Partner

With Respect to

a portion of
Southlake Town Square

AGREEMENT TO ADMIT PARTNER

This Agreement To Admit Partner (“Agreement”) is made and entered into as of this 5^th day of November, 2004 (the “Effective Date”), by and between INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation or its designee or designees (“Admitting Partner”, or “Inland”), and COOPER & STEBBINS, L.P., a Texas limited partnership (“C&S”), CS SOUTHLAKE, LLC, a Texas limited liability company (“CS LLC”) (C&S and CSLLC are collectively referred to herein as the “Existing Partners”), and C&S SOUTHLAKE CAPITAL PARTNERS I, L.P., a Texas limited partnership (“Capital I”).

Introductory Provisions:

The following provisions form the basis for and are a part of this Agreement:

A.Capital I will own certain real property described on Exhibit A (the “Property”) on the Closing Date.

B.C&S and CSLLC are, or will be immediately prior to Closing, the sole partners in Capital I.

C.Capital I and the Existing Partners desire to admit Inland as a partner of Capital I and Inland desires to become a partner in Capital I on the terms and subject to the conditions and other provisions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

ARTICLE I
DEFINITIONS

The capitalized terms used herein will have the following meanings.

“Accrued Expenses” shall have the meaning set forth in Section 2.7 hereof.

“Admitting Partner” shall have the meaning ascribed to it in the opening paragraph.

“Affiliate” shall mean any Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the Person.

“Agreement” shall mean this Agreement To Admit Partner, together with the exhibits attached hereto and the Disclosure Schedule.

“Amended and Restated Real Property Contract” shall have the meaning set forth in Section 2.6(b)(vi) hereof.

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“Amended and Restated Partnership Agreement” shall mean the amended and restated partnership agreement for Capital I substantially in the form attached herein as Exhibit B, which will be entered into at Closing as provided herein.

“Approved Title Matters” shall have the meaning set forth in Section 6.2(a) hereof.

“Beneficial Interests” shall mean one hundred percent (100%) of the general and limited partnership interests in Capital I.

“Capital I” shall have the meaning ascribed to it in the opening paragraph.

“Capital I Financial Statements” shall have the meaning set forth in Section 3.1(h) hereof.

“Capital I’s Knowledge” and “Existing Partners’ Knowledge” shall mean the current actual knowledge of Brian R. Stebbins, Frank L. Bliss, Dave Laddusaw and Patricia S. Pickard without any duty of inquiry or investigation.

“Capital I’s Notice” shall have the meaning set forth in Section 6.2(b) hereof.

“Capital I Property” shall mean the Capital I Real Property and the Capital I Personal Property.

“Capital I Personal Property” shall mean all fixtures, equipment, machinery, furniture, carpet, drapes and other personal property, if any, owned by Capital I, located on and used in connection with the Capital I Real Property, but specifically excluding any items of personal property owned or leased by Capital I’s property manager or tenants at the Capital I Real Property and further excluding any items of personal property owned by third parties and leased to Capital I.  All intangible property, if any, owned by Capital I and pertaining to the Capital I Real Property including, without limitation, transferable utility contracts, transferable telephone exchange numbers, plans and specifications, engineering plans and studies, floor plans, landscape plans, logos, designs, trade names, trademarks, servicemarks, copyrights and other intellectual property, and specifically the non-exclusive use of the names “Southlake Town Square” and “Town Square” and any other name or names by which the Property is commonly known (collectively, the “Town Square Trademarks”), provided that the grant of the right to use the Town Square Trademarks shall be limited to purposes associated with the Property.  The term “Capital I Personal Property” as used hereunder does not, however, include the Excluded Rights.

“Capital I Real Property” shall mean (a) that certain real property legally described on Exhibit A attached hereto, consisting of approximately 0.76 acres of land, and approximately 67,937 square feet of net rentable square feet, and located at 1400 Civic Place, Southlake, Texas and commonly known as “Building 3C” together with all of the following, if any: rights, privileges, hereditaments, appurtenances, and easements related thereto, including all rights, rights-of-way, roadways, roadbeds, reversions, strips, gores, and any interests in any alleys, streets, or roads abutting or adjacent thereto, together with all rights of Capital I in and to any other land or out parcels contiguous to or adjoining such real property, (b) all improvements located upon the Capital I Real Property, but expressly excluding any improvements owned by any tenant or other third party, (c) all right, title and interest of Capital I, if any, in and to all

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shrubs, trees, plants and other landscaping located upon the Capital I Real Property, and (d) all right, title and interest of Capital I, if any, in and to all casements, rights of way, and other rights appurtenant to the Capital I Real Property.  The term “Capital I Real Property” as used hereunder does not, however, include the Excluded Rights.

“Closing” shall mean the closing of the transaction contemplated by this Agreement as provided in Section 2.6 hereof.

“Closing Date” shall mean the same date as the “Closing Date” under the Real Estate Contract, subject to any extension of the Closing Date as provided for thereunder.

“Code” shall mean the Internal Revenue Code of 1986, as amended.

“Contract” shall mean any written agreement, license, sublicense, promissory note, evidence of indebtedness, guaranty (directly or indirectly) of indebtedness, guarantees and warranties, all construction, architectural, maintenance, operating and service contracts, all equipment leases, or other contract or commitment relating to the ownership, maintenance and/or operation of the Capital I Property.

“Contributed Capital” shall have the meaning set forth in Section 2.3 hereof.

“C&S” shall have the meaning ascribed to it in the opening paragraph.

“CSLLC” shall have the meaning ascribed to it in the opening paragraph.

“Disclosure Schedule” shall mean the disclosure schedule dated the date hereof furnished by Capital I to Inland and containing all lists, descriptions exceptions, and other information and materials as are required to be included therein pursuant to this Agreement.

“Due Diligence Termination Notice” shall have the meaning set forth in Section 2.5 (c) hereof.

“Earnest Money” shall have the meaning set forth in Section 2.4 (a) hereof.

“Environmental Laws” shall mean without limitation (a) the Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments of 1984, as now or hereafter amended (“RCRA”) (42 U.S.C. § 6901 et seq.), the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, as now or hereafter amended (“CERCLA”) (42 U.S.C. § 9601 et seq.), the Clean Water Act, as now or hereafter amended (“CWA”) (33 U.S.C. § 1251 et seq.), the Toxic Substances Control Act, as now or hereafter amended (“TSCA”) (15 U.S.C. § 2601 et seq.), the Clean Air Act, as now or hereafter amended (“CAA”) (42 U.S.C. § 7401 et seq.), all regulations promulgated under any of the foregoing, any local, state or foreign law, statute, regulation or ordinance analogous to any of the foregoing, and any other federal, slate, local, or foreign law (including any common law), statute, regulation, or ordinance regulating, prohibiting, or otherwise restricting the placement, discharge, release, threatened release, generation, treatment, or disposal upon or into any environmental media of any Hazardous Materials.

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“Excluded Rights” shall mean any and all of interests of Capital I in and to Brownstones at Town Square, L.P., or any property owned by such limited partnership.

“Existing Partners” shall mean, collectively, C&S and CSLLC.

“Governmental Authority” shall mean any and all applicable courts, boards, agencies, commissions, offices, or authorities of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city, departmental or otherwise) whether now or hereafter in existence.

“Hazardous Materials” shall mean any substance, product matter, material, waste, solid, liquid, gas, or pollutant, the generation, storage, disposal, handling, recycling, release (or threatened release), treatment, discharge, or emission of which is regulated, prohibited, or limited under any Environmental Law and shall also include, without limitation, (a) gasoline, diesel fuel, fuel oil, motor oil, waste oil, and any other petroleum hydrocarbons, including any additives or other by-products associated therewith, (b) asbestos and asbestos-containing materials in any form, (c) polychlorinated biphenyls, (d) any substance the presence of which on the Capital I Property (i) requires reporting or remediation under any Environmental Law; (ii) causes or threatens to cause a nuisance on the Capital I Property or poses or threatens to pose a hazard to the health or safety of persons on the Capital I Property; or (iii) which, if it emanated or migrated from the Capital I Property, could constitute a trespass, nuisance or health or safety hazard to persons on adjacent property, (e) radon, (f) urea formaldehyde foam insulation, and (g) underground storage tanks, whether empty, filled or partially filled with any substance.

“Inland” shall have the meaning ascribed to it in the opening paragraph.

“Inland Title Objections” shall have the meaning set forth in Section 6.2(a) hereof.

“Inspection Period” shall have the meaning set forth in Section 2.5(c) hereof.

“IRS” shall mean the United States Internal Revenue Service.

“Law” shall mean all laws, statutes, ordinances, rules, decrees and regulations of the United States of America or any state, commonwealth, city, county, municipality or department thereof, including without limitation the Americans with Disabilities Act.

“Leases” shall mean all leases, subleases, licenses or other agreements for the use or occupancy of all or any part of Capital I Real Property.

“Lien” shall mean any mortgage, pledge, assessment, security interest, Lease, lien, adverse claim, levy, charge, or other encumbrance of any kind, or any conditional sale contract, title retention contract, or other contract to give or to refrain from giving any of the foregoing other than Permitted Exceptions.

“Management Agreement” shall have the meaning set forth in Section 2.11 hereof.

“Manager” shall have the meaning set forth in Section 2.11 hereof.

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“Material Adverse Effect” shall mean any effect that is materially adverse to the validity or enforceability of this Agreement, the ability of either or both of Capital I or Inland, as the case may be, to perform its obligations under this Agreement or the business or condition of Capital I or the Capital I Property, or with respect to the condition, operation or value of the Capital I Property or the Leases and the cash flow emanating therefrom.

“Monetary Liens” shall have the meaning set forth in Section 6.2(b) hereof.

“NNN Charges” shall have the meaning set forth in Section 2.7 hereof.

“Parking License” shall have the meaning set forth in Section 2.6(c)(xx) hereof.

“Partnership” shall mean C&S Southlake Capital Partners I, L.P., which upon admitting Inland as a partner pursuant to the terms of this Agreement, shall amend and restate its partnership agreement pursuant to the Amended and Restated Partnership Agreement.

“Permits” shall mean all permits, consents, licenses, certificates, approvals, registrations, and authorizations which are required by any Law for operation of the Capital I Property.

“Permitted Exceptions” shall mean the Permitted Liens, together with (i) all of the Approved Title Matters, and (ii) each and all of Inland’s Title Objections other than Monetary Liens or those items Capital I has agreed to eliminate or modify pursuant hereto but that Inland has elected to waive its objection with respect thereto.

“Permitted Liens” shall mean with respect to the Capital I Property any lien for real property Taxes, assessments, and other governmental charges that are not due and payable.

“Person” shall mean any natural person, corporation, general partnership, limited partnership, proprietorship, trust, union, association, court, tribunal, agency, government department, commission, self-regulatory organization, arbitrator, board, bureau, instrumentality, or other entity, enterprise, authority, or business organization.

“Property Information” shall have the meaning set forth in Section 2.5(a) hereof.

“Real Property Contract” shall mean that certain Purchase Agreement dated as of November 5, 2004 made by and between Southlake Venture East, L.P., a Texas limited partnership, Southlake Venture West, L.P., a Texas limited partnership, SL Venture West II, L.P., a Texas limited partnership, Southlake Central Venture, a Texas general partnership, and SL Central Venture II, L.P., a Texas limited partnership (collectively as the sellers thereunder, each of which is an Affiliate of Capital I) and Inland (as the purchaser thereunder), with respect to the purchase and sale of Southlake Town Square.

“Release” shall mean releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, ejecting, escaping, leaching, disposing, seeping, infiltrating, draining, or dumping of any Hazardous Material.  This term shall be interpreted to include both the present and past tense, as appropriate.

“Settlement Statement” shall have the meaning set forth in Section 2.6(c)(xi) hereof.

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“Survey” shall have the meaning set forth in Section 6.I(b) hereof.

“Survival Period” shall have the meaning set forth in Section 3.1(k) hereof.

“Taxes” shall mean all taxes, charges, fees, levies, guaranty fund assessments or other similar assessments or liabilities, including without limitation income, gross receipts, ad valorem, premium, excise, real property, personal property, windfall profit, sales, use, transfer, licensing, withholding, employment, payroll, and franchise taxes imposed by the United States of America or any state, local, or foreign government, or any subdivision, agency, or other similar Person of the United States or any such government; and such term shall include any interest, fines, penalties, assessments, or additions to tax resulting from, attributable to, or incurred in connection with any such tax or any contest or dispute thereof.

“Tax Returns” shall mean any report, return, or other information required by Law to be filed by Capital I.

“Title Approval Period” shall have the meaning set forth in Section 6.2(a) hereof.

“Title Commitment” shall have the meaning set forth in Section 6.1(a) hereof.

“Title Information” shall mean those matters set forth in Section 3.1(I) of the Disclosure Schedule.

Unless the context of this Agreement otherwise requires, (a) words of any gender are deemed to include each other gender; (b) words using the singular or plural number also include the plural or singular number, respectively; (c) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement; (d) the terms “ARTICLE” or “Section” refer to the specified ARTICLE or Section of this Agreement; (e) the term “party” means, on the one hand, Inland and, on the other hand, Capital I; (f) the phrase “in the ordinary course of business and consistent with past practice” refers to the business, operations, affairs, and practice of Capital I which operations and practice are consistent with the prudent operations and practices of Persons engaged in the ownership and operation of real properties similar to the Properties; and (g) all references to “dollars” or “$” refer to currency of the United States of America.

ARTICLE II

ADMITTING OF PARTNER; PROPERTY VALUE; CAPITAL CONTRIBUTION;

EARNEST MONEY; DUE DILIGENCE AND CLOSING

2.1Admitting of Partner.  Subject to the terms and conditions, and in reliance upon the representations and warranties set forth in this Agreement, Capital I agrees to admit Inland to the Partnership (less the Excluded Rights) and Inland agrees to become a Partner in the Partnership (less the Excluded Rights) at the Closing.

2.2Capital I Property Value.  Inland and the Existing Partners hereby agree that the fair market value of the Capital I Property is Eighteen Million Two Hundred Sixty Nine Thousand Nine Hundred Sixty Four and No/100 Dollars ($18,269,964.00) (the “Property Value”).

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2.3Capital Contribution.  Subject to the terms and conditions, and in reliance upon the representations and warranties set forth in this Agreement, Inland agrees to contribute capital of $17,356,465 to Capital I as consideration for admission to the Partnership as a general partner and a limited partner (the “Contributed Capital”) on the terms and provisions provided for in the Amended and Restated Partnership Agreement.

2.4Refundable Earnest Money.

(a)Deposit and Investment.  Inland shall deposit with Chicago Title Insurance Company (“Escrow Agent”), 171 N. Clark Street, Chicago, Illinois, Attention: Nancy Castro, the sum of Two Hundred Thousand and No/100 Dollars ($200,000.00) to be held by Escrow Agent in government insured interest-bearing accounts at a national bank in Dallas County, Texas (together with all interest thereon, the “Earnest Money”) simultaneously with the execution of this Agreement.  Such account shall have no penalty for early withdrawal.  The Escrow Agent shall be authorized, at Inland’s option, to invest the Earnest Money in such manner as Inland may direct; provided, however, that the Escrow Agent shall invest the Earnest Money only in such manner as will allow the Escrow Agent to disburse the Earnest Money upon seven (7) days notice.  Inland may elect in its discretion to have $200,000 out of the “Earnest Money” held by Escrow Agent pursuant to the Real Property Contract designated as the Earnest Money hereunder by delivering written instructions to Escrow Agent (with a contemporaneous copy to Capital I) regarding same.

(b)Form; Failure to Deposit.  The Earnest Money shall be in the form of a certified or cashier’s check or the wire transfer to Escrow Agent of immediately available U.S. federal funds.  If Inland fails to timely deposit any portion of the Earnest Money within the time periods required, Capital I may terminate this Agreement by written notice to Inland, and thereafter the parties hereto shall have no further rights or obligations hereunder, except for rights and obligations which, by their terms, survive the termination hereof.

2.5Due Diligence.

(a)Due Diligence Materials.  To the extent not already delivered to Inland pursuant to the Real Property Contract, Capital I shall deliver to Inland the information listed on Exhibit C attached hereto and made a part hereof (the “Property Information”) within five business days following the Effective Date.

(b)Physical Due Diligence.  Commencing on the Effective Date and continuing until the expiration of the Inspection Period (defined below), Inland shall have reasonable access to the Capital I Property at all reasonable times during normal business hours, upon appropriate notice to tenants as permitted or required under the Leases, for the purpose of conducting reasonably necessary tests, including surveys and architectural, engineering, geotechnical and environmental inspections and tests, provided that (a) Inland must give Capital I one full business days’ prior telephone or written notice of any such inspection or test, and with respect to any intrusive inspection or test (i.e., core sampling) must

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obtain Capital I’s prior written consent (which consent may be given, withheld or conditioned in Capital I’s sole discretion), and (b) prior to performing any inspection or test, Inland must deliver a certificate of insurance to Capital I evidencing that Inland and its contractors, agents and representatives have in place reasonable amounts of commercial general liability insurance and workers compensation insurance for its activities on the Capital I Property in terms and amounts reasonably satisfactory to Capital I covering any accident arising in connection with the presence of Inland, its contractors, agents and representatives on the Capital I Property, which insurance shall name Capital I as additional insureds thereunder.  Inland or Inland’s representatives may meet with any tenant if and only if accompanied by a representative of Capital I; provided, further, that Inland shall not discuss the transaction contemplated by this Agreement with such tenants and Inland must contact Capital I at least one full business day in advance by telephone to inform Capital I of Inland’s intended meeting.  Inland or Inland’s representatives may meet with any governmental authority for the sole purpose of gathering information in connection with the transaction contemplated by this Agreement; provided, however, Inland must contact Capital I at least one full business days in advance by telephone to inform Capital I of Inland’s intended meeting and to allow Capital I the opportunity to attend such meeting if Capital I desires.  Inland or its counsel is permitted to make written requests to the municipal authorities for the purpose of verifying the compliance of the Capital I Property with applicable zoning requirements and ordinances, compliance with building codes and compliance with parking requirements, and to respond, make verbal comments or inquiries related thereto, including but not limited to inquiries to determine the appropriate officials to direct written inquiries to.

(c)Due Diligence/Termination Right.  Inland shall have until 5:00 p.m., Dallas, Texas time on Friday, November 19, 2004 (the “Inspection Period”) in which to (a) examine, inspect, and investigate the Property Information and the Capital I Property and, in Inland’s sole and absolute judgment and discretion, determine whether the Capital I Property is acceptable to Inland, (b) obtain all necessary internal approvals, and (c) satisfy all other contingencies of Inland.  If, for any reason whatsoever, or no reason at all, Inland, in its sole and absolute discretion, is not satisfied with any of the foregoing at any time on or before the expiration of the Inspection Period (hereinafter defined), then Inland may elect at its option, to terminate this Agreement by delivering notice of termination to Capital I (the “Due Diligence Termination Notice”) prior to the expiration of the Inspection Period, in which event the Earnest Money shall be distributed pursuant to and subject to Section 2.4(c) of the Real Property Contract (unless such termination of this Agreement is made in connection with the acquisition by Inland of fee title to the Capital I Property under the Real Property Contract), and thereafter neither Capital I nor Inland shall have any further obligations or rights under this Agreement except those that specifically survive a termination as provided in this Agreement.

(d)No Representation or Warranty by Capital I.  Inland acknowledges that, except as expressly set forth in this Agreement, Capital I has not made and does

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not make any warranty or representation regarding the truth, accuracy or completeness of the Property Information or the source(s) thereof.  Inland further acknowledges that some if not all of the Property Information was prepared by third parties other than Capital I.  Capital I expressly disclaims any and all liability for representations or warranties, express or implied, statements of fact and other matters contained in such information, or for omissions from the Property Information, or in any other written or oral communications transmitted or made available to Inland.  Inland shall rely solely upon the express representations and warranties set forth herein and its own investigation with respect to the Capital I Property, including, without limitation, the Capital I Property’s physical, environmental or economic condition, compliance or lack of compliance with any ordinance, order, permit or regulation or any other attribute or matter relating thereto.  Capital I has not undertaken any independent investigation as to the truth, accuracy or completeness of the Property Information and is providing the Property Information solely as an accommodation to Inland.

(e)Inland’s Agreement to Indemnify.  Inland hereby agrees to indemnify, defend and hold Capital I and the Existing Partners harmless from and against any and all liens, claims, causes of action, damages, liabilities and expenses (including reasonable attorneys’ fees) arising out of (i) Inland’s inspections or tests permitted under this Agreement or (ii) Inland’s failure to comply with the provisions of Section 2.5(b); provided, however, the indemnity shall not extend to protect the Partnerships or Capital I from any pre-existing liabilities for matters merely discovered by Inland (i.e., latent environmental contamination) so long as Inland’s actions do not aggravate any preexisting liability of Capital I and the Existing Partners and then only to the extent of such aggravation.  Inland’s obligations under this Section 2.5(e) shall survive the termination of this Agreement and shall survive the Closing for a period of one year.

2.6Closing.

(a)The Closing will take place at the offices of Escrow Agent at 10:00 a.m., local time on the Closing Date.

(b)At the Closing, Inland will:

(i)deposit the Contributed Capital plus or minus prorations with Escrow Agent in cash by wire transfer of immediately available funds;

(ii)deliver to Escrow Agent an Escrow Agreement (defined below);

(iii)deliver to Escrow Agent Settlement Statement (defined below);

(iv)deliver to Escrow Agent the Management Agreement (defined below);

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(v)deliver to Escrow Agent the Amended and Restated Partnership Agreement of the Partnership;

(vi)deliver to Escrow Agent either an amended and restated version of the Real Property Contract or an amendment to the Real Property Contract, in form and substance mutually acceptable to both Inland and Capital I in their sole discretion, removing the Capital I Property from the Real Property Contract (the “Amended and Restated Real Property Contract”);

(vii)deliver to Escrow Agent Inland’s duly executed counterpart the Declaration of Trust of The C&S Southlake Capital Protective Trust and the related Letter Agreement, both of which are dated on or about the date hereof; and

(viii)deliver to Escrow Agent all other documents reasonably determined by Inland, Capital I and Title Company to be necessary to be delivered by Inland under the terms of this Agreement.

(c)At the Closing, Capital I will:

(i)deliver to Escrow Agent (A) the Amended and Restated Partnership Agreement; (B) the Amended and Restated Real Property Contract; and (C) the Special Warranty Deed (in substantially the form attached hereto as Exhibit F), the Assignment and Assumption of Leases (in substantially the form attached hereto as Exhibit G) and the Bill of Sale, Assignment and Assumption of Contracts (in substantially the form attached hereto as Exhibit H) each from SOUTHLAKE VENTURE WEST, L.P., a Texas limited partnership, to a wholly owned subsidiary of Capital I (which entity will be the holder of title to the Capital I Property) as provided for in the Amended and Restated Partnership Agreement (the “Subsidiary of Capital I”; the legal name of the Subsidiary of Capital I is, as of the date hereof, anticipated to be “Town Square Ventures II, L.P.”);

(ii)deliver to Escrow Agent an Escrow Agreement;

(iii)deliver to Escrow Agent certificates of the Existing Partners certifying that all of the representations and warranties of the Existing Partners made hereunder are true and correct in all material respects as of the Closing Date;

(iv)deliver to Escrow Agent a Certified Rent Roll;

(v)deliver to Escrow Agent a copy of the Certificate of Limited Partnership for Capital I certified as of a date no earlier than five (5)

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business days prior to the Closing Date by the Secretary of State (or equivalent official) of its state of organization;

(vi)deliver to Escrow Agent the Audit Letter attached hereto as Exhibit D;

(vii)cause a TLTA Owner’s Policy of Title Insurance to be issued by Title Company naming the Subsidiary of Capital I as insured, in the amount of the Property Value, Insuring that the Subsidiary of Capital I owns good and indefeasible fee simple title to the Capital I Real Property providing for full extended coverage and containing the Special Title Endorsements (the “Title Policy”) subject only to the Permitted Encumbrances;

(viii)deliver to Escrow Agent a duly executed affidavit of the transferor of the Capital I Property to the Subsidiary of Capital I certifying that such transferor and any of its partners are not a “foreign person,” as defined in Section 1445 of the Internal Revenue Code of 1986, as amended, and in any applicable state laws for the state in which the Capital I Property is located;

(ix)deliver to Escrow Agent such conveyancing or transfer tax forms or returns, if any, as are required to be delivered or signed by Capital I by applicable state and local law in connection herewith, including any certifications required in connection therewith;

(x)deliver to Escrow Agent the original of all Leases and Contracts in Capital I’s possession;

(xi)deliver to Escrow Agent four (4) copies of a closing settlement statement between Capital I and Inland, duly executed by Capital I, setting forth the prorations and adjustments to the Contributed Capital in accordance with this Agreement; it being agreed that such settlement shall be mutually approved by Capital I and Inland at least 48 hours prior to Closing (the “Settlement Statement”);

(xii)deliver to Escrow Agent REA Estoppel letters in form and substance reasonably satisfactory to Inland with respect to any reciprocal easement and operating agreement;

(xiii)deliver to Escrow Agent all other documents reasonably determined by Inland, Capital I and Title Company to be necessary to be delivered by Capital I under the terms of this Agreement;

(xiv)deliver to Escrow Agent copies of notices terminating and canceling any and all Contracts not accepted by Inland at Closing, including in particular any management contracts and/or brokerage listing and leasing agreements;

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(xv)cause all records and files (or certified copies thereof) relating to the operation and maintenance of the Capital I Property to be delivered to the possession of Capital I;

(xvi)cause, to the extent in Capital I’s possession or control, plans and specifications, engineering plans and studies, and other similar documents relating to the Capital I Property to be delivered to the possession of Capital I.

(xvii)cause all keys to the Capital I Property in Capital I’s possession, subject to any rights of Capital I’s occupancy that survive the Closing, to be delivered to the possession of Capital I;

(xviii)deliver to Escrow Agent the Management Agreement;

(xix)cause the Excluded Rights to be transferred or conveyed out of ownership by Capital I in such manner as Capital I or the Existing Partners so elect;

(xx)deliver to Escrow Agent an Irrevocable Parking, Management and Use Agreement with the City of Southlake, Texas in substantially final form (but not executed) reasonably acceptable to Inland and acceptable to the City of Southlake, Texas in its sole discretion for the operation and management of those certain parking facilities to be constructed and located on or adjacent to the Capital I Real Property (the “Parking License”);

(xxi)deliver to Inland documentary evidence reasonably satisfactory to Inland that Capital I and the Existing Partners are authorized to execute and deliver all documents required to be delivered in connection herewith, including, but not limited to, the Amended and Restated Partnership Agreement;

(xxii)deliver to Inland, to the extent issued by the applicable state, Certificates of Good Standing with respect to Capital I and the Existing Partners dated no earlier than five (5) business days prior to the Closing Date;

(xxiii)deliver to Inland UCC lien, judgment and litigation searches with respect to Capital I dated no earlier than five (5) business days prior to the Closing Date showing no judgments, liens or litigation other than as set forth on the Disclosure Schedule; and

(xxiv)deliver to Escrow Agent the Existing Partner’s duly executed counterpart of the Declaration of Trust of The C&S Southlake Capital Protective Trust and the related Letter Agreement, both of which are dated on or about the date hereof.

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2.7Adjustments as of the Closing Date.  Accrued rental income and all other accrued income relating to the Capital I Property, real and personal property ad valorem taxes, insurance premiums (if and to the extent that policies are continued for periods subsequent to the Closing Date), utility charges, common area maintenance charges and operating charges pursuant to any reciprocal easement agreements or similar agreements, and other operating expenses of the Capital I Property, shall be prorated to the Closing Date, based upon actual days involved. Except as set forth in Section 2.8 hereof, the Existing Partners shall be entitled to receive all cash in the accounts of the Partnership on the Closing Date.  Existing Partners shall be responsible for all real and personal property taxes payable by Capital I for any period prior to and including the Closing Date.  Capital I and Inland acknowledge that tenants have made estimated payments for such tenants’ proportionate share of taxes, insurance, common area maintenance and other charges (“NNN Charges”) that are reimbursable to the landlord under such tenant leases.  Inland and Manager (as defined in Section 2.11 hereof) shall make a final reconciliation of 2004 NNN Charges on or before April 30, 2005.  The Existing Partners shall be entitled to any amounts collected from tenants in 2005 and attributable to periods on or before the Closing Date, and shall be liable for any amounts due to tenants and attributable to periods on or before the Closing Date.  Inland shall be entitled to any amounts collected from tenants in 2005 and attributable to periods after the Closing Date, and shall be liable for any amounts due to tenants and attributable to periods after the Closing Date.  All accrued charges pursuant to Contracts and utility charges (whether or not service is continued by Inland) for periods prior to and including the Closing Date shall be determined as of the Closing Date and paid by the Existing Partners (“Accrued Expenses”).  Any of such Accrued Expenses for periods prior to and including the Closing Date which have not been paid and are not reflected on the closing statement prepared by Capital I and Inland as of the Closing Date shall be paid by Capital I prior to delinquency (subject to Capital I’s right to contest same).  Inland shall make a good-faith attempt to collect delinquent rents for Capital I’s benefit after the Closing and after first applying any such rental payments so received to rents and late charges and the costs of collection thereof in each case accruing after the Closing Date, the remainder of such collections, if any, shall be remitted to Capital I promptly upon receipt by Inland or Capital I after Closing (up to the amount of such delinquent rents); provided, however, that nothing contained herein shall be construed to require Inland to institute any suit or collection procedure to collect such delinquent rents.  Inland need not attempt to collect rents that are more than ninety days delinquent and the foregoing obligation of Inland to remit any amounts in respect thereof to Capital I shall also terminate ninety days after the Closing Date, except as to recovery of 2004 NNN Charges, which shall terminate on December 31, 2005.  To the extent that the actual amount of all such charges, expenses and income referred to in this section are unavailable on the Closing Date, the foregoing prorations shall be based on estimates using the most recently available statement for each such item to be prorated (provided that, if the actual amount of real and personal property ad valorem taxes and special assessments for the present tax year are not available, the proration shall be based upon the taxes for the previous tax year) and, if after the Closing Date the actual amount of any such closing proration that was based on an estimate is determined to be more or less than the amount adjusted for at Closing, the parties shall promptly (but no later than the date which is the first anniversary of the Closing Date) adjust such proration.

2.8Security Deposits.  All security deposits and any prepayment of rental or other sums attributable to any period beyond the Closing Date, collected (and, except to the extent

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previously returned to tenants whether presently held) by Capital I under the terms of any Leases shall be retained by the Partnership at Closing and not delivered to the Existing Partners.

2.9Title and Survey Costs.  The Existing Partners shall pay and incur the costs for the Survey and the premium for the Owner’s Policy (exclusive of endorsements), all transfer taxes, and their own attorneys’ fees.  Inland shall pay the premium for all endorsements to the Title Policy and its own attorneys’ fees, provided that Capital I shall pay the premium for any endorsements which the Existing Partners elect, in their sole discretion, to provide in order to satisfy any of Inland’s Title Objections pursuant to Section 6.2(b) hereof.  At Inland’s election, and at Inland’s sole expense, if the Survey is acceptable to the title company for such purposes, the standard exception pertaining to “discrepancies, conflicts, or shortages in area or boundary lines, or any encroachments, or any overlapping of improvements,” may be deleted except for “shortages in area”.

2.10Mortgage Liens.  At Closing, the Existing Partners shall cause Capital I to cause the Mortgage Liens to be released at or prior to Closing, with Capital I having the right to apply the Contributed Capital or a portion thereof for such purpose.

2.11Management Agreement.  Contemporaneously with Closing, (a) Inland shall enter into a new sub-management agreement for the on-site property management of the Capital I Property with Cooper & Stebbins, L.P. (the “Manager”) in form reasonably acceptable to Inland and Manager (the “Management Agreement”), on the following terms and conditions: (1) the term shall expire not earlier than October 31, 2007, (2) Manager will provide customary on-site management functions and staff, (3) Inland shall reimburse Manager for all expenses incurred in providing such management functions, provided such expenses are incurred in accordance with a budget approved by the Partnership, (4) Inland will provide all accounting services to the Partnership and will collect all management fee income on behalf of the Inland, and (5) Manager’s duties shall be progressively transitioned over to Inland beginning on October 31, 2006.  The terms of this Section 2.13 shall survive the Closing.  Notwithstanding the foregoing, Manager shall be required to agree to subordinate the sub-management agreement to the loan documents of any lender and agree that such lender may terminate the sub-management agreement in the event of a default under such lender’s loan.

ARTICLE III

REPRESENTATIONS AND WARRANTIES

3.1Representations and Warranties from the Existing Partners.

3.1.1Representations and Warranties from the Existing Partners Regarding Capital I: The Existing Partners, individually and collectively as set forth below, represent and warrant to Inland as of the date of this Agreement and as of the Closing Date that:

(a)Organization of Capital I.  The Existing Partners represent and warrant that Capital I is duly organized and validly existing under the laws of the State of Texas and has the requisite organizational power and authority to carry out its business as presently conducted.  The Existing Partners represent and warrant that the principal place of business of Capital I is in Southlake, Texas.

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(b)Authority of Existing Partners and Capital I. Each of the Existing Partners represents and warrants that the execution and delivery of this Agreement by such Existing Partners and Capital I and each other agreement, instrument, certificate and document to be executed by such Existing Partners and Capital I hereunder and the performance by such Existing Partners and Capital I of its obligations under this Agreement have been duly and validly authorized by all necessary action on the part of such Existing Partners and Capital I.  Each of the Existing Partners and Capital I represents and warrants that this Agreement constitutes a legal, valid, and binding obligation of such Existing Partners and Capital I and is enforceable against such Existing Partners and Capital I in accordance with its terms, except to the extent that (j) enforcement may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium, or similar Laws now or hereafter in effect relating to or limiting creditors’ rights generally and (ii) the remedy of specific performance and injunctive and other forms of equitable relief are subject to certain equitable defenses and to the discretion of the court or other similar person or entity before which any proceeding therefore may be brought.

(c)Beneficial Interests.

(i)The Existing Partners represent and warrant that the combined Beneficial Interests of each of the Existing Partners will, immediately prior to the admission of Inland as a partner in Capital I as of the Closing Date, constitute 100% of the Beneficial Interests of Capital I and such Beneficial Interests are owned legally and beneficially by the Existing Partners.

(ii)The Existing Partners represent and warrant that the respective Beneficial Interests owned by the Existing Partners are free and clear of all Liens, and the Beneficial Interests owned by the Existing Partners are not the subject of any Contract (other than this Agreement) under which any such Lien might arise.  Each of the Existing Partners represents and warrants that there are no outstanding securities, rights, subscriptions, warrants, options, or Contracts (except for this Agreement) that give any Person the right to purchase or otherwise receive or be issued any interest in that the Existing Partners’ Beneficial Interests or any rights to participate in the equity or income of the Existing Partners (except for this Agreement).

(d)Partnership Agreement.  The Existing Partners represent and warrant that attached in Section 3.1 (d) of the Disclosure Schedule is an accurate copy of the Capital I partnership agreement, and no amendments or modifications have been made to the Capital I partnership agreement, except for those contemplated herein or attached as a part of the Disclosure Schedule.

(e)No Conflicts or Violations.  Each of the Existing Partners hereby represents and warrants that the execution and delivery of this Agreement by each of the Existing Partners and Capital I does not, and the performance by each of the Existing Partners and Capital I of such Existing Partners’ and Capital I’s obligations, respectively, under this Agreement and the consummation of the transactions contemplated hereby will

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not: (i) violate any term or provision of any Law or any writ, judgment, decree, or injunction applicable to such Existing Partners and Capital I, except such violations that do not have a Material Adverse Effect on such Existing Partners and Capital I; (ii) conflict with or result in a violation or breach of any of the provisions of the governing documents of such Existing Partners and Capital I, except such conflicts, violations, or breaches that do not have a Material Adverse Effect on such Existing Partners and Capital I; or (iii) conflict with or result in a violation or breach of any Contract to which such Existing Partners and Capital I are a party, except such conflicts, violations, or breaches that do not have a Material Adverse Effect on such Existing Partners and Capital I.

(f)Taxes.  The Existing Partners represent and warrant that, except as disclosed in Section 3.1(f) of the Disclosure Schedule, all Federal, state and other applicable Tax Returns required to be filed by or with respect to the Partnership have been filed and all Taxes that are due and payable by the Partnership have been paid.  Except as shown on Section 3.1(f) of the Disclosure Schedule, no deficiencies for Federal, state or other applicable Taxes have been claimed, assessed or, to the Existing Partners’ Knowledge, proposed against the Partnership by any Governmental Authority.  To the Existing Partners’ Knowledge, except as set forth in Section 3.1(f) of the Disclosure Schedule, there are no pending or threatened audits, investigations or claims for or relating to any liability in respect of Federal, state or other applicable Taxes, and there are no matters under discussion with any Governmental Authorities with respect to Federal, state or other applicable Taxes that could result in an assessment of Federal, state or other applicable Taxes against the Partnership.  Audits of Federal, state or other applicable Tax Returns by the relevant taxing authorities have been completed for each period shown on Section 3.1(f) of the Disclosure Schedule, and, except as shown on Section 3.1 (f) of the Disclosure Schedule, the Existing Partners have not been notified that any taxing authority intends to audit a Federal, state or other applicable Tax Return for any other period for the Partnership.  Complete copies of all Federal income tax schedules and reports relating to the operation of the Partnership and all reports received by the Partnership from the IRS relating to examinations thereof have been made available for Inland’s review.  From the date of its formation, the Partnership has qualified to be treated as a partnership for federal income tax purposes.  No taxing authority has taken a position inconsistent with such treatment. Neither the Existing Partners nor any other party has taken any action, or failed to take any action, that would cause the Partnership to be treated as an association taxable as a corporation for income tax purposes.

(g)Compliance With Law.  The Existing Partners represent and warrant that except as shown on Section 3.1(g) of the Disclosure Schedule, the Partnership is not in violation of any Law or any writ, judgment, decree, injunction, or similar order applicable to such Partnership, which violation has or may reasonably be expected to have a Material Adverse Effect.

(h)Financial Statements.  Section 3.1 (h) of the Disclosure Schedule sets forth the Partnership’s balance sheets and statements of income and partners’ capital accounts for the fiscal year ended December 31, 2003 for the Partnership which includes all assets

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and liabilities of the Partnership, as of the date thereof (the “Capital I Financial Statements”).  The Capital I Financial Statements (including the notes thereto) have been prepared in accordance with income tax based accounting and present fairly the financial condition of the Partnership for such periods (including all liabilities or obligations of any kind (whether accrued, absolute, fixed or contingent) of the Partnership for such period and no other material liabilities have been incurred for the period commencing January 1, 2004 and ending on the Closing Date other than as set forth on the Disclosure Schedule and there has been no change in the financial condition as reflected therein since the dates of such Capital I Financial Statements that would have a Material Adverse Effect.

(i)Intercompany Liabilities.  The Existing Partners represent and warrant that except as reflected in the Financial Statements, or except as shown on Section 3.1(i) of the Disclosure Schedule, there are no Liabilities between the Partnership or any Existing Partners or Affiliates of Existing Partners, and all such intercompany Liabilities will be satisfied in full on or prior to the Closing.  Neither the Existing Partners nor any Affiliates of the Existing Partners provide or causes to be provided to the Partnership any products, services, equipment, facilities, or similar items other than property and asset management services.

(j)Not a Foreign Person.  Each of the Existing Partners and Capital I represents and warrants that it is not a “foreign person” but is a “United States person” as such terms are defined in the Foreign Investment in Real Property Tax Act of 1980 and §§ 1445 and 7701 of the Code; that is to say, each such Existing Partners represents that it is a citizen or a resident of the United States, a domestic partnership, a domestic corporation, or an estate or trust which is not a foreign estate or foreign trust within the meaning of § 7701(a)(31) of the Code.

(k)No Condemnation.  The Existing Partners represent and warrant that to the Existing Partners’ Knowledge, there is no pending condemnation proceeding affecting the Capital I Property.

(l)No Litigation.  The Existing Partners represent and warrant that except as shown on Section 3.1(l) to the Disclosure Schedule there is no action, suit, proceeding, arbitration, unsatisfied order or judgment, governmental investigation or claim pending or threatened (and to the Existing Partners’ Knowledge there are no claims, situations or facts or circumstances which could be reasonably believed to give rise to any of the foregoing) against or affecting the Capital I Property, or relating to or arising out of the ownership, operation, use or occupancy of the Capital I Property, pending or being prosecuted before or by any Governmental Authority or otherwise of which Existing Partners have received notice nor, to Existing Partners’ Knowledge, is any such action, suit, proceeding, arbitration, unsatisfied order or judgment, governmental investigation or claim threatened or being asserted.

(m)No Other Contracts.  The Existing Partners represent and warrant that except for the Permitted Exceptions and as shown on Section 31(m) of the Disclosure Schedule, there are no Contracts relating to the Capital I Property.

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(n)No Bankruptcy or Insolvency Proceedings.  The Existing Partners represent and warrant that there are no attachments, executions, assignments for the benefit of creditors, receiverships, conservatorship or voluntary or involuntary proceedings in bankruptcy or pursuant to any other debtor relief laws filed by such Existing Partners or Capital I, or pending against such Existing Partners or Capital I.

(o)Brokers.  The Existing Partners represent and warrant that all negotiations relative to this Agreement and the transactions contemplated hereby have been carried out by Existing Partners directly with Inland, without the intervention of any Person on behalf of Existing Partners in such manner as to give rise to any valid claim by any Person against Inland for a finder’s fee, brokerage commission, or similar payment, except for Holiday Fenoglio Fowler, L.P.

(p)Consents.  The Existing Partners represent and warrant that no consent, license, approval, order, permit or authorization of any Governmental Agency is required to be obtained or made and no consent of any other third party, is required to be obtained by Existing Partners and Capital I in connection with the execution, delivery and performance of this Agreement and any of the transactions contemplated hereby.

(q)Survival.  The representations and warranties of the Existing Partners set forth in this Section 3.1.1, the indemnity obligations under Section 3.1.1(r) and the obligations of the Guarantor under Section 3.1.1(s), shall survive the Closing until, and shall terminate on, the date that is 90 days following the expiration of the applicable statute of limitations period for Inland and its Affiliates in connection with same.  As a condition precedent to Inland’s obligation to contribute capital to the Partnership as contemplated in this Agreement, the Existing Partners’ representations and warranties contained herein must remain and be true and correct in all material respects as of the Closing Date.

(r)Indemnification.  “Notwithstanding any provision in this Agreement to the contrary, the Existing Partners hereby covenant and agree to indemnify and hold harmless Inland and its Affiliates from and against any and all (i) expenses (including reasonable attorneys’ fees), losses, damages, liabilities, charges and claims of any kind or nature whatsoever (collectively “Indemnified Losses”) (e.g., income tax deficiencies, penalties, interest and additions to tax) of Inland and/or its Affiliates as a result of reporting the transactions contemplated by this Agreement with respect to the admission of Inland to the Partnership in the manner to be reflected in the calendar 2004 income tax returns of the Partnership (and, for the avoidance of doubt, this shall not include any Indemnified Losses from the operation of the Partnership by Inland after the Effective Date), (ii) Indemnified Losses of Inland and/or its Affiliates that may result from the breach by any of the Existing Partners of any of the representations and warranties under this Section 3.1.1 and (iii) Indemnified Losses of Inland and/or its Affiliates as a result of liabilities of the Partnership other than those solely and directly related to the Capital I Property.

(s)By its execution of a joinder to this Agreement, Peter C. Cooper, and individual (the “Guarantor”), hereby guaranties for the benefit of Inland and its

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Affiliates (i) the full, complete and timely payment of any indemnification obligation of the Existing Partners under the provisions of this 3.1.1 of this Agreement and (ii) the full and complete payment of any Indemnified Losses that may occur to Inland and/or its Affiliates arising out of a breach by the Existing Partners of their representations and warranties under this Agreement.  This guaranty is a direct and primary obligation of the Guarantor and is an unconditional guaranty of payment and performance and not a guaranty of collection.  The obligations of the Guarantor under this Section 3.1.1(s) are absolute and unconditional, and are not subject to any counterclaim, set-off, recoupment, deduction or defense based upon any claim that the Guarantor may have against the Existing Partners and shall remain in full force and effect without regard to, and shall not be released, discharged or terminated or in any other way affected by, any circumstance or condition.

3.1.2Representations and Warranties of the Existing Partners with Respect to the Capital I Property.  Each of the Existing Partners hereby represents and warrants to Inland as of the date of this Agreement and as of the Closing Date that:

(a)The Capital I Real Property consists of approximately 0.7600 acres of land, and approximately 71,305 square feet of net rentable square feet, and located at 1400 Civic Place, Southlake, Texas and commonly known as Building 3C, and Capital I will have good and indefeasible title to the Capital I Real Property, as of the date of closing, subject to all easements, restrictions, reservations and covenants now of record and further subject to all matters that a current, accurate survey would show, together with the Permitted Encumbrances;

(b)The Capital I Real Property and the Capital I Personal Property, will on the Closing Date, represent all of the assets of the Subsidiary of Capital I.

(c)Section 3.1.1(c) of the Disclosure Schedule sets forth all of the existing warranties applicable to the Capital I Property.

(d)Neither Capital I, nor the Existing Partners have been served with process or other written notice of any litigation or proceeding pending or, to Capital I’s Knowledge or the Existing Partners’ Knowledge, threatened against the Capital I Property, including but not limited to condemnation or eminent domain.

(e)All income and expense statements delivered to Inland with respect to the Capital I Property are true, correct and complete in all material respects.

(f)Neither Capital I nor the Existing Partners have received written notice of violations at or by the Capital I Property of zoning, building, subdivision, fire, air pollution, business occupancy or Environmental Requirements, rules or regulations relating to the Capital I Property or of other governmental action affecting the Capital I Property that have not been cured except as set forth in Section 3.1.1(f) of the Disclosure Schedule.

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(g)Neither Capital I nor the Existing Partners have received written notice from any federal, state, county or municipal authority as to the existence of any Hazardous Materials at the Capital I Property.

(h)The rent roll attached hereto as Section 3.1.1(h) of the Disclosure Schedule contains a complete list of all Leases affecting the Capital I Property and the copies of such Leases provided to Inland are complete and correct in all material respects.  Except as otherwise disclosed to Inland in the Property Information, in any tenant estoppel certificate, the rent roll attached to the Disclosure Schedule, the Leases are in full force and effect and to Capital I’s Knowledge there is no monetary default (other than with respect to the payment of basic rent not more than 20 days past due) nor any material non-monetary default under any of the Leases.

(i)There are no other Contracts other than the Contracts affecting the Capital I Property or the operation thereof as set forth in Section 3.1(n) of the Disclosure Schedule attached hereto, and the copies of such Contracts provided to Inland are complete and correct and to Capital I’s knowledge, Capital I is not in default thereunder.

(j)The Subsidiary of Capital I owns as of the Closing Date all of the landlords’ interest in the Leases and the property owners’ interest in the Contracts and the Capital I Personal Property.  The interest of the Subsidiary of Capital I in the Contracts, Leases, and the Capital I Personal Property is free and clear of all encumbrances, and has not been assigned to any other person, except for collateral assignments to lenders which will be released at Closing.

(k)The representations and warranties of the Existing Partners set forth in this Agreement shall survive the Closing for a period of one (1) year (the “Survival Period”).  As a condition precedent to Inland’s obligation to contribute capital to the Partnership as contemplated in this Agreement, the Existing Partners’ representations and warranties contained herein must remain and be true and correct in all material respects as of the Closing Date.  Inland shall have the right to bring an action against the Existing Partners on the breach of a representation or warranty hereunder, but only upon the condition that Inland first learns of the breach after Closing and gives written notice of such breach to the Existing Partners before the end of the Survival Period and files such action on or before the first day following the second anniversary of the Closing Date.  The Existing Partners shall have no liability after Closing for the breach of a representation or warranty under this Section 3.1.2 of which Inland had knowledge as of Closing.  Notwithstanding any other provision of this Agreement, any agreement contemplated by this Agreement, or any rights which Inland might otherwise have at law, equity, or by statute, whether based on contract or some other claim, as of the Closing Date, Inland agrees that any liability of the Existing Partners to Inland will be limited to $600,000. The provisions of this Section 3.1.2(k) shall survive the Closing.

3.2Inland’s Representations and Warranties.  Inland hereby represents and warrants to Capital I as of the date hereof and as of the Closing Date as follows:

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(a)Organization. Inland is a corporation duly organized, validly existing, and in good standing under the Laws of the State of Illinois and has the requisite corporate power and authority to enter into this Agreement and to perform its obligations under this Agreement.

(b)Authority.  The execution and delivery of this Agreement by Inland and the performance by Inland of its obligations under this Agreement have been duly and validly authorized by all requisite corporate action on the part of Inland. This Agreement constitutes a legal, valid, and binding obligation of Inland and is enforceable against Inland in accordance with its terms, except to the extent that (i) enforcement may be limited by or subject to any bankruptcy, insolvency, reorganization, moratorium, or similar Laws now or hereafter in effect relating to or limiting creditors, rights generally and (ii) the remedy of specific performance and injunctive and other forms of equitable relief are subject to certain equitable defenses and to the discretion of the court or other similar person or entity before which any proceeding therefor may be brought.

(c)No Conflicts or Violations. The execution and delivery of this Agreement by Inland do not, and the performance by Inland of Inland’s obligations under this Agreement will not:

(i)violate any term or provision of any applicable Law or any writ, judgment, decree, or injunction applicable to Inland, except such violations that do not have a Material Adverse Effect;

(ii)conflict with or result in a violation or breach of any of the provisions of the articles or certificate of incorporation or bylaws of Inland, except such conflicts, violations, or breaches that do not have a Material Adverse Effect; or

(iii)conflict with or result in a violation or breach of any Contract to which Inland is a party, except such conflicts, violations, or breaches that do not have a Material Adverse Effect.

(d)Litigation.  There is no action, suit, or proceeding pending, or (to the knowledge of Inland) threatened, against Inland, at Law or in equity, in, before, or by any person or entity that, if adversely determined, would have a Material Adverse Effect.

(e)Held for Investment.  The Partner interest will be held by Inland or its assignee for its own account for the purpose of investment and not for the purpose or with the intent of a distribution or other sale and disposition thereof.  Inland shall not transfer or otherwise dispose of any of its partnership interest, or any interest therein, in such manner as to violate any provisions of the Securities Act of 1933, as amended, or of any securities Laws of any state or other jurisdiction regulating the disposition thereof.  This Section 3.2(c) shall survive the Closing.

(f)Brokers.  All negotiations relative to this Agreement and the transactions contemplated hereby have been carried out by Inland directly with Capital I and its Affiliates, without the intervention of any Person on behalf of Inland in such manner as to

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give rise to any valid claim by any Person against Capital I or its Affiliates for a finder’s fee, brokerage commission, or similar payment, except for Holliday Fenoglio Fowler, L.P., whose commission shall be paid by Capital I pursuant to a separate written agreement.

(g)No Third-Party Financing.  Inland will not rely on third-party equity to be raised or any third-party financing.  Capital I will not provide, and Inland will not require, any documentation in the form of subordination, non-disturbance and attornment agreements running to the benefit of any third-party lender.

3.3Disclaimer; Release; Indemnity.

(a)Disclaimers By Capital I and the Existing Partners.  Except as expressly set forth in this Agreement, it is understood and agreed that Capital I, the Existing Partners and their respective agents or employees have not at any time made and are not now making, and they specifically disclaim, any warranties, representations or guaranties of any kind or character, express or implied, with respect to the Capital I Property, including, but not limited to, warranties, representations or guaranties as to (a) matters of title, (b) environmental matters relating to the Capital I Property or any portions thereof, including, without limitation, the presence of Hazardous Materials in, on, under or in the vicinity of the Capital I Property, (c) geological conditions, including, without limitation, subsidence, subsurface conditions, water table, underground water reservoirs, limitations regarding the withdrawal of water, and geologic faults and the resulting damage of past and/or future faulting, (d) whether, and to the extent to which the Capital I Property or any portions thereof are affected by any stream (surface or underground), body of water, wetlands, flood prone area, flood plain, floodway or special flood hazard, (e) drainage, (f) soil conditions, including the existence of instability, past soil repairs, soil additions or conditions of soil fill, or susceptibility to landslides, or the sufficiency of any undershoring, (g) the presence of endangered species or any environmentally sensitive or protected areas, (h) zoning or building entitlements to which the Capital I Property or any portions thereof may be subject, (i) the availability of any utilities to the Capital I Property or any portions thereof including, without limitation, water, sewage, gas and electric, (j) usages of adjoining property, (k) access to the Capital I Property or any portions thereof, (l) the value, compliance with the plans and specifications, size, location, age, use, design, quality, description, suitability, structural integrity, operation, title to, or physical or financial condition of the Capital I Property or any portion thereof, or any income, expenses, charges, liens, encumbrances, rights or claims on or affecting or pertaining to the Capital I Property or any parts thereof, (m) the condition or use of the Capital I Property or compliance of the Capital I Property with any or all past, present or future federal, state or local Laws, (n) the existence or non-existence of underground storage tanks, surface impoundments, or landfills, (o) any other matter affecting the stability and integrity of the Capital I Property, (p) the potential for further development of the Capital I Property, (q) the merchantability of the Capital I Property or fitness of the Capital I Property for any particular purpose, (r) the truth, accuracy or completeness of the Property Information, (s) tax consequences, or (t) any other matter or thing with respect to the Capital I Property.

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(b)“As Is, Where Is”.  Subject to the terms and provisions hereof and except as otherwise provided herein, Inland acknowledges and agrees that upon Closing, Inland shall accept the property held by the Partnership (including, without limitation, the Capital I Property owned by the Subsidiary of Capital I) “AS IS, WHERE IS, WITH ALL FAULTS,” except to the extent expressly provided otherwise in this Agreement and any document executed by Capital I and delivered to Inland at Closing.  Except as expressly set forth in this Agreement, Inland has not relied and will not rely on, and neither Capital I nor the Existing Partners have made and are not liable for or bound by, any express or implied warranties, guarantees, statements, representations or information pertaining to the Capital I Property or relating thereto (including specifically, without limitation, Property Information packages distributed with respect to the Capital I Property) made or furnished by Capital I, the Existing Partners, or any property manager, real estate broker, agent or third party representing or purporting to represent Capital I or the Existing Partners, to whomever made or given, directly or indirectly, orally or in writing.  Inland represents that it is a knowledgeable, experienced and sophisticated investor of real estate and that, except as expressly set forth in this Agreement, it is relying solely on its own expertise and that of Inland’s consultants and shall make an independent verification of the accuracy of any documents and information provided by Capital I and/or the Existing Partners.  Inland will conduct such inspections and investigations of the Capital I Property as Inland deems necessary, including, but not limited to, the physical and environmental conditions thereof, and shall rely upon same.  By failing to terminate this Agreement prior to the expiration of the Inspection Period, Inland acknowledges that Capital I and the Existing Partners have afforded Inland a full opportunity to conduct such investigations of the Capital I Property as Inland deemed necessary to satisfy itself as to the condition of the Capital I Property and the existence or non-existence or curative action to be taken with respect to any Hazardous Materials on or discharged from the Capital I Property, and will rely solely upon same and not upon any information provided by or on behalf of Capital I, the Existing Partners or their agents or employees with respect thereto, other than such representations, warranties and covenants of Capital I or the Existing Partners as are expressly set forth in this Agreement.  Upon Closing, Inland shall assume the risk that adverse matters, including, but not limited to, adverse physical or construction defects or adverse environmental, health or safety conditions, may not have been revealed by Inland’s inspections and investigations.  Inland hereby represents and warrants to Capital I and the Existing Partners that: (a) Inland is represented by legal counsel in connection with the transaction contemplated by this Agreement; and (b) Inland is investing in the Partnership for business, commercial, investment or other similar purpose and not for use as Inland’s residence.  Inland waives any and all rights or remedies it may have or be entitled to, deriving from disparity in size or from any significant disparate bargaining position in relation to Capital I or the Existing Partners.

(c)Capital I and Existing Partners Released from Liability.  Inland acknowledges that it will have the opportunity to inspect the Capital I Property during the Inspection Period, and during such period, observe the physical characteristics and existing conditions and the opportunity to conduct such investigation and study on and of the Capital I Property and adjacent areas as Inland deems necessary, and except as otherwise provided herein Inland hereby FOREVER RELEASES AND DISCHARGES

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Capital I and the Existing Partners from all responsibility and liability, including without limitation, liabilities under any Environmental Laws, regarding the condition, valuation, salability or utility of the Capital I Property, or their suitability for any purpose whatsoever (including, but not limited to, with respect to the presence in the soil, air, structures and surface and subsurface waters, of Hazardous Materials or other materials or substances that have been or may in the future be determined to be toxic, hazardous, undesirable or subject to regulation and that may need to be specially treated, handled and/or removed from the Capital I Property, current or future federal, state and local laws, regulations or guidelines, and any structural and geologic conditions, subsurface soil and water conditions and solid and hazardous waste and Hazardous Materials on, under, adjacent to or otherwise affecting the Capital I Property).  Inland further hereby WAIVES (and by Closing this transaction will be deemed to have WAIVED) any and all objections and complaints (including, but not limited to, federal, state and local statutory and common law based actions, and any private right of action under any federal, state or local laws, regulations or guidelines to which the Capital I Property is or may be subject, including, but not limited to, any Environmental Laws) concerning the physical characteristics and any existing conditions of the Capital I Property.  Inland further hereby assumes the risk of changes in applicable Laws relating to past, present and future environmental conditions on the Capital I Property and the risk that adverse physical characteristics and conditions, including, without limitation, the presence of Hazardous Materials or other contaminants, may not have been revealed by its investigation.

(d)Survival.  The terms and conditions of this Section 3.3 shall expressly survive the Closing and not merge with the provisions of any Closing documents.  Inland acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement and that Capital I and the Existing Partners would not have agreed to consummate this transaction for the Contributed Capital without the disclaimers and other agreements set forth above.

ARTICLE IV

CONDITIONS TO OBLIGATIONS OF INLAND

The obligations of Inland hereunder are subject to the fulfillment, at or before the Closing, of each of the following conditions (all or any of which may be waived in whole or in part by Inland):

4.1Representations and Warranties.  The representations and warranties made by Capital I and/or the Existing Partners in this Agreement and the disclosures of Capital I and/or the Existing Partners in the Disclosure Schedule and all other schedules and exhibits attached hereto shall be true in all material respects as of the date hereof and shall be true in all material respects on and as of the Closing Date as though such representations, warranties and disclosures were made on and as of the Closing Date.

4.2Performance.  Capital I and the Existing Partners shall have respectively performed and complied in all material respects with all agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by Capital I at or before the Closing Date.

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4.3No Injunction.  There shall not be in effect on the Closing Date any writ, judgment, injunction, decree, or similar order of any court or Governmental Authority, or otherwise, restraining, enjoining, or otherwise preventing consummation of any of the transactions contemplated by this Agreement.

4.4No Proceeding or Litigation.  There shall not be instituted, pending, or (to the Knowledge of Inland or Capital I) threatened, any action, suit, investigation, or other proceeding in, before, or by any court or Governmental Authority to restrain, enjoin, or otherwise prevent consummation of any of the transactions contemplated by this Agreement.

4.5Capital I’s Closing Deliveries.  Capital I (or the Existing Partners, as applicable) shall have delivered to Inland (or the Escrow Agent, as applicable) on or before the Closing all of the deliveries required under this Agreement.

4.6Tenant Estoppel Certificates.  Capital I shall have delivered tenant estoppel certificates substantially in the form of Exhibit E hereto (or, if a tenant’s Lease specifies or contemplates another form of tenant estoppel certificate, then such other specified or contemplated form) executed by 75% of the retail tenants and 75% of the office tenants occupying improvements located on the Capital I Property and the properties that are the subject matter of the Real Property Contract, which estoppels must include estoppels from 75% of the tenants (the “Major Tenants”) listed on Exhibit G-l attached to the Real Property Contract, with the balance thereof delivered within sixty (60) days of closing.  Capital I shall not be obligated to expend any funds in connection with obtaining any such tenant estoppel certificates, and the failure of Capital I to obtain any such tenant estoppel certificates shall not be a breach or default hereunder.  If the tenant estoppel certificates referred to in this Section 4.6 are not timely delivered, then Inland’s sole remedies and recourses shall be limited to either (a) waiving the requirement for the tenant estoppel certificate(s) in question and proceeding to Closing without reduction of the Contributed Capital or (b) terminating this Agreement by immediate notification to Capital I and receiving the immediate return of all of the Earnest Money including, but not limited to, any portion that may have been designated as the Breakup Fee under the Real Property Contract (as such term is defined thereunder).

4.7Title Policy.  The title company shall be prepared to issue the Owner’s Policy.

4.8Closing of the Real Property Contract.  The transactions contemplated under the Real Property Contract shall have closed contemporaneously with the closing of the transactions contemplated hereunder.

4.9Ground Leases.  Simultaneously with the Closing, Inland and SLTS Grand Avenue, L.P. shall have executed ground leases with respect to certain parcels of land described under the Real Property Agreement upon terms set forth in the Real Property Contract.

4.10Parking License.  Inland shall have approved the Parking License pursuant to the terms set forth in the Real Property Agreement.

In the event that any of the foregoing conditions precedent are not met or fulfilled on the Closing Date and so long as Inland is not in default hereunder, Inland may (a) terminate this Agreement and receive the immediate return of all of the Earnest Money including, but not

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limited to, any portion that may have been designated as the Breakup Fee, or (b) elect to close notwithstanding the non-satisfaction of such condition, in which event Inland shall be deemed to have waived any such condition.  In the event Inland elects to close, notwithstanding the non-satisfaction of such condition, Inland shall be deemed to have waived said condition, and there shall be no liability on the part of Capital I or the Existing Partners therefor.

ARTICLE V

CONDITIONS TO OBLIGATIONS OF CAPITAL I

The obligations of Capital I and the Existing Partners hereunder are subject to the fulfillment, at or before the Closing, of each of the following conditions (all or any of which may be waived in whole or in part by Capital I and the Existing Partners):

5.1Representations and Warranties.  The representations and warranties made by Inland in this Agreement shall be true in all material respects as of the date hereof and shall be true in all material respects on and as of the Closing Date as though such representations and warranties were made on and as of the Closing Date.

5.2Performance.  Inland shall have performed and complied in all material respects with all agreements, covenants, obligations, and conditions required by this Agreement to be so performed or complied with by Inland at or before the Closing Date.

5.3No Injunction.  There shall not be in effect on the Closing Date any writ, judgment, injunction, decree, or similar order of any court or Governmental Authority, or otherwise, restraining, enjoining, or otherwise preventing consummation of any of the transactions contemplated by this Agreement.

5.4No Proceeding or Litigation.  There shall not be instituted, pending, or (to the Knowledge of Inland or Capital I) threatened, any action, suit, investigation, or other proceeding in, before, or by any court or Governmental Authority to restrain, enjoin, or otherwise prevent consummation of any of the transactions contemplated by this Agreement.

5.5Closing of the Real Property Contract.  The transactions contemplated under the Real Property Contract shall have closed contemporaneously with the closing of the transactions contemplated hereunder.

5.6Inland’s Closing Deliveries.  Inland shall have delivered to Capital I (or to Escrow Agent, as applicable) on or before Closing all of the deliveries required under this Agreement.

In the event that any of the foregoing conditions precedent are not met or fulfilled on the Closing Date and so long as Capital I and the Existing Partners are not in default hereunder, Capital I may (a) terminate this Agreement and receive the immediate delivery of all of the Earnest Money including, but not limited to, any portion that may have been designated as the Breakup Fee, or (b) elect to close notwithstanding the non-satisfaction of such condition, in which event Capital I shall be deemed to have waived any such condition. In the event Capital I elects to close, notwithstanding the non-satisfaction of such condition, Capital I shall be deemed to have waived said condition, and there shall be no liability on the part of Inland therefor.

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ARTICLE VI

TITLE AND SURVEY

6.1Delivery of Title Commitment and Survey.  Within five (5) days of the Effective Date, Capital I shall deliver to Inland the following items, to the extent not already delivered to Inland pursuant to the Real Property Agreement:

(a)Title Commitment.  The Title Commitment (as hereinafter defined), together with legible copies of any and all title exception documents referenced therein.  The “Title Commitment” shall mean a commitment or commitments for one or more TLTA Owner’s Title Insurance Policy (Form B) for the Capital I Real Property issued by the Chicago Title Insurance Company in the full amount of the Property Value, covering title to the Capital I Real Property on or after the date hereof, showing the Partnership as owner of the Capital I Real Property in fee simple, and providing for full extended coverage over all general title exceptions contained in such policies and containing the following special endorsements to the extent available (collectively, the “Special Title Endorsements”), owner’s comprehensive, access, survey (legal description equivalency), contiguity (if applicable), encroachment (if applicable), non-imputation, and deletion of the arbitration provision and creditors’ rights provision.  The Owner’s Policy described herein together with the Special Endorsements is referred to herein as the Title Policy.

(b)Survey.  An ALTA ACSM Title Survey of the Capital I Real Property prepared in accordance with the Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys jointly established by the American Land Title Association and the American Congress on Surveying and Mapping in 1999, that meets the accuracy requirements of an Urban Survey, as defined therein, and includes items 1, 3, 4, 6, 7 (a, b and c), 8-11 and 13-16 of Table A thereof (the “Survey”).

6.2Title and Survey Objections.

(a)In the event (i) the Survey shows any easement, right-of-way, encroachment, conflict, protrusion or other matter affecting the Capital I Real Property that is unacceptable to Inland, or (ii) any exceptions appear in the Title Commitment that are unacceptable to Inland, Inland shall notify Capital I in writing of such facts (“Inland’s Title Objections”) not later than 5:00 p.m.  Central Time upon the date which is the later of October 29, 2004 or five (5) business days after the date Inland has received delivery of both the Survey and Title Commitment (the “Title Approval Period”) but in no event later than the expiration of the Inspection Period.  Upon the expiration of the Title Approval Period, except for Inland’s Title Objections, Monetary Liens (as hereafter defined), and any other matters arising subsequent to the date of the Survey and Title Commitment, Inland shall be deemed to have accepted the Survey, the Title Commitment and all matters shown or addressed therein, including, without limitation, any easement, right of way, encroachment, conflict, discrepancy, overlapping of improvements, protrusion, lien, encumbrance, restriction, condition, covenant, exception or other matter with respect thereto (collectively, the “Approved Title Matters”).

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(b)Notwithstanding anything to the contrary contained herein, except for any Monetary Liens and any matters created by Capital I after the date of the Title Commitment, Capital I shall have no obligation to take any steps or bring any action or proceeding or otherwise to incur any effort or expense whatsoever to eliminate or modify any of Inland’s Title Objections; provided, however, Capital I, at its sole option, may attempt to eliminate or modify all or a portion of Inland’s Title Objections to Inland’s reasonable satisfaction prior to the Closing Date.  In the event Capital I is unable or unwilling to attempt to eliminate or modify all of Inland’s Title Objections to the reasonable satisfaction of Inland, Capital I shall provide written notice thereof to Inland within five (5) business days of its receipt of Inland’s Title Objections (“Capital I’s Notice”). Inland may thereafter elect to close notwithstanding Inland’s Title Objections (in which case Capital I shall have no liability to eliminate or modify, and Inland shall take the Capital I Property subject to Inland’s Title Objections) or Inland may (as its sole and exclusive remedy) terminate this Agreement by delivering notice thereof in writing to Capital I, in which event neither party shall have any obligation hereunder other than the Surviving Obligations and Inland shall be entitled to return all of the Earnest Money, including any portion thereof that may have been designated as the Breakup Fee.  Capital I shall cause all mortgages, deeds of trust and monetary liens (including liens for delinquent taxes, mechanics’ liens and judgment liens) affecting the Capital I Property and all indebtedness secured thereby (the “Monetary Liens”) to be satisfied, released and discharged of record on or prior to the Closing Date.

ARTICLE VII

MISCELLANEOUS

7.1Notices.  Any notice or other communication given pursuant to this Agreement must be in writing and (a) delivered personally, (b) sent by telefacsimile or other similar facsimile transmission, (c) delivered by overnight express or (d) e-mail as follows:

(a)If to Purchaser:

Inland Real Estate Acquisitions, Inc.

1700 Alma Road

Plano, Texas 75075

Attn: Matthew Tice

Telephone: (972) 442-6770

Facsimile: (972) 429-9017

E-Mail: tice@inlandgroup.com

The Inland Real Estate Group, Inc

2901 Butterfield Road

Oak Brook, Illinois 60523

Attn: Dennis K. Holland, Esq.

Telephone: (630) 218-8000

Facsimile: (630) 218-4900

E-Mail: dholland@inlandgroup.com

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(b)If to Capital I:

Cooper & Stebbins, L.P.

1256 Main Street, Suite 240

Southlake, Texas 76092

Attention: Frank S. Bliss

Telephone: (817) 329-8400

Facsimile: (817)  251-8717

E-Mail: fbliss@southlaketownsquare.com

with a copy to:

Winstead Sechrest & Minick P.C.

5400 Renaissance Tower

1201 Elm Street

Dallas, Texas 75270

Attention: John Nolan, Esq.

Telephone: (214) 745-5251

Facsimile: (214) 745-5390

E-mail: jnolan@winstead.com

All notices and other communications required or permitted under this Agreement that are addressed as provided in this Section 7.1 will (A) if delivered personally be deemed given when delivered or if by overnight express, be deemed given the day after deposited with an overnight carrier; (B) if delivered by telefacsimile or similar facsimile transmission, be deemed given when electronically confirmed; and (C) if sent by e-mail when sent.  Any party from time to time may change its address for the purpose of notices to that party by giving a similar notice specifying a new address, but no such notice will be deemed to have been given until it is actually received by the party sought to be charged with the contents thereof.

7.2Entire Agreement.  Except for documents executed by Capital I and Inland pursuant hereto, this Agreement supersedes all prior discussions and agreements between the parties with respect to the subject matter of this Agreement, and this Agreement contains the sole and entire agreement between the parties hereto with respect to the subject matter hereof.

7.3Expenses.  Except as otherwise expressly provided in this Agreement, each of Capital I and Inland will pay its own costs and expenses in connection with this Agreement and the transactions contemplated hereby.

7.4Public Announcement.  Neither party hereto shall make any public announcement or disclosure of any information related to this Agreement to outside brokers or third parties, before or after the Closing, without the prior written specific consent of the other party; however, either party may disclose the terms and conditions of this Agreement if required by Law or court order, and to its attorneys, accountants, employees and existing or prospective financial partners provided same are advised by such party of the confidential nature of such terms and conditions and agree to maintain the confidentiality thereof (in each case, prior to disclosure).  The consent by either party to any disclosures shall not be deemed to be a waiver on the part of such party of

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any prohibition against any future disclosure.  Notwithstanding the foregoing, Inland may make any and all SEC filings deemed appropriate by Inland.

7.5Further Assurance.  Capital I and Inland agree that, from time to time after the Closing, upon the reasonable request of the other, they will cooperate and will cause their respective Affiliates to cooperate with each other to effect the orderly transition of the business, operations, and affairs of Capital I.  Without limiting the generality of the foregoing, (a) Capital I will provide, and will cause its respective Affiliates to provide, representatives of Inland reasonable access to all books and records of Capital I and their Affiliates reasonably requested by Inland in the preparation of any post-Closing financial statements, reports, Tax Returns, or Tax filings of Capital I; (b) Inland will provide, representatives of the Existing Partners reasonable access to all pre-Closing books and records of Capital I reasonably requested by Capital I in the preparation of any post-Closing financial statements, reports, Tax Returns, or Tax filings of Capital I; and (c) each party hereto will execute such documents and instruments as the other party hereto may reasonably request containing terms and conditions mutually satisfactory to each party hereto to further effectuate the terms hereof.

7.6Waiver.  Any term or condition of this Agreement may be waived at any time by the party that is entitled to the benefit thereof.  Such waiver must be in writing and must be executed by an executive officer of such party.  A waiver on one occasion will not be deemed to be a waiver of the same or any other breach or nonfulfillment on a future occasion.  All remedies, either under this Agreement, or by Law or otherwise afforded, will be cumulative and not alternative.

7.7Amendment.  This Agreement may be modified or amended only by a writing duly executed by or on behalf of Capital I and Inland.

7.8Counterparts.  This Agreement may be executed simultaneously in any number of counterparts, each of which will be deemed an original, but all of which will constitute one and the same instrument.

7.9No Third Party Beneficiary.  Except as otherwise set forth herein, the terms and provisions of this Agreement are intended solely for the benefit of Capital I, the Existing Partners, Inland, and their respective successors and permitted assigns, and it is not the intention of the parties to confer third-party beneficiary rights upon any other person or entity.

7.10Governing Law.  This Agreement will be governed by and construed and enforced in accordance with the Laws of the State of Texas (without regard to the principles of conflicts of Law) applicable to a Contract executed and performable in such state.

7.11Binding Effect.  This Agreement is binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.

7.12Limited Assignment.  Neither this Agreement nor any right or obligation hereunder or part hereof may be assigned by any party hereto without the prior written consent of the other party hereto (and any attempt to do so will be void), except as otherwise specifically provided herein.  Notwithstanding the foregoing, Inland shall have the right to assign this Agreement on or before the fifth day prior to the Closing Date to an Affiliate of Inland, any

30

Affiliate of The Inland Real Estate Group, Inc., or any Affiliate of Inland Western Retail Real Estate Trust, Inc.; provided, however, that Inland shall remain liable for all obligations of Inland under this Agreement.  Inland may assign this Agreement and its rights hereunder to any affiliate,

7.13Provisions.  If any provision of this Agreement is held to be illegal, invalid, or unenforceable under any present or future Law, and if the rights or obligations under this Agreement of Capital I, the Existing Partners and Inland will not be materially and adversely affected thereby, (a) such provision will be fully severable; (b) this Agreement will be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part hereof; (c) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid, or unenforceable provision or by its severance herefrom; and (d) in lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically as part of this Agreement a legal, valid, and enforceable provision as similar in terms to such illegal, invalid, or unenforceable provision as may then be legal, valid and enforceable under applicable Law.

7.14Confidentiality.  Affiliates of Capital I and Inland have entered into the Confidentiality Agreement dated September 22, 2004, attached hereto and incorporated herein, and such Confidentiality Agreements shall be binding upon the parties herein.

7.15Condemnation.  If, prior to the Closing, action is initiated to take any of the Capital I Property by eminent domain proceedings or by deed in lieu thereof, Inland may either at or prior to Closing (a) terminate this Agreement and receive a full refund of all of the Earnest Money, including any amount designated as a Breakup Fee, or (b) consummate the Closing, in which latter event all of Capital I’s assignable right, title and interest in and to the award of the condemning authority shall be assigned to Inland at the Closing and there shall be no reduction in the Contributed Capital.

7.16Casualty.  Except as otherwise provided in this Agreement, Capital I assume all risks and liability for damage to or injury occurring to the Capital I Property by fire, storm, accident, or any other casualty or cause until the Closing has been consummated.  If the Capital I Property, or any part thereof, suffers any damage in excess of $2,000,000.00 or in any amount that would allow any of the Major Tenants to abate rent or terminate their lease prior to the Closing from fire or other casualty which Capital I, at their sole option, does not elect to repair, Inland may either at or prior to Closing (a) terminate this Agreement and receive a full refund of the Earnest Money, or (b) consummate the Closing, in which latter event all of Capital I’s right, title and interest in and to the proceeds of any insurance covering such damage to the extent the amount of such insurance does not exceed the Contributed Capital, shall be assigned to Inland at the Closing and Inland shall receive a credit for the deductible.  If the Capital I Property, or any part thereof, suffers any damage equal to or less than $2,000,000.00 prior to the Closing, Inland agrees that it will consummate the Closing and accept the assignment of the proceeds of any insurance covering such damage plus an amount equal to Capital I’s deductible under its insurance policy and there shall be no reduction in the Contributed Capital.

7.17Maintenance and Contracts.  From the Effective Date of this Agreement until the Closing or earlier termination of this Agreement:

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(a)Capital I shall cause the Subsidiary of Capital I to operate and maintain the Capital I Property in the ordinary course of business consistent with the manner in which it has heretofore been operated and maintained.  Capital I shall maintain property and casualty insurance on the Capital I Property in the same amounts and for the same coverage as it has heretofore maintained for the Capital I Property.

(b)Capital I will cause the Subsidiary of Capital I to perform all of Capital I’s respective material obligations under the Contracts.  Capital I will not, without the prior written consent of Inland (which consent will not be unreasonably withheld or delayed), modify, enter into, or renew any Contract.

7.18Leasing.  From the Effective Date of this Agreement through the expiration of the Inspection Period, Capital I will cause the Subsidiary of Capital I to not, without the prior written consent of Inland (which consent will not be unreasonably withheld or delayed), modify, enter into, or renew any Leases.  Inland’s failure to respond in writing within four (4) business days of Capital I’s request for consent shall be deemed an approval of Capital I’s request, provided that at the time of any request for approval, if there remain less than four (4) business days prior to the expiration of the Inspection Period, the Inspection Period shall be extended to give Inland at least four (4) business days to respond.  Subsequent to the expiration of the Inspection Period, Capital I shall not modify, enter into, or renew any leases except upon the express written consent of Inland which may be granted or withheld in Inland’s sole and absolute discretion.

[THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]

SIGNATURE PAGES FOLLOW

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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered as of this 5^th day of November, 2004, by the duly authorized representatives of Capital I, the Existing Partners and Inland.

CAPITAL I:

C&S SOUTHLAKE CAPITAL PARTNERS I, L.P. a Texas limited partnership,
By:	CS SOUTHLAKE, L.L.C., a Texas limited liability company, General Partner
	By:	/s/ Brian R. Stebbins
		Brian R. Stebbins,
		Managing Member
Date of Signature:			As of 11.5.04

C&S

COOPER & STEBBINS, L.P., a Texas limited partnership,
By:	CS TOWN CENTRES, LLC,
a Texas limited liability company General Partner
By:	/s/ Brian R. Stebbins
	Brian R. Stebbins,
	Managing Member
Date of Signature:		As of 11.5.04

CSLLC:

CS SOUTHLAKE, LLC a Texas limited liability company
By:		/s/ Brian R. Stebbins
	Brian R. Stebbins,
	Managing Member
Date of Signature:			As of 11.5.04

1

INLAND:
INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
By:	/s/ G. Joseph Cosenza
	Name:	G. Joseph Cosenza
	Title:	President

Exhibit A – Description of the Capital I Real Property

Exhibit B – Form of Amended and Restated Partnership Agreement for Capital I

Exhibit C – List of Property Information

Exhibit D – Form of Audit Response Letter

Exhibit E – Form of Tenant Estoppel Certificate

Exhibit F – Form of Special Warranty Deed

Exhibit G – Form of Assignment and Assumption of Leases

Exhibit H – Form of Bill of Sale, Assignment and Assumption of Contracts

Disclosure Schedule

2

JOINDER OF SECTION 3.1.1 (s) GUARANTOR:

The following individual hereby joins in the execution of this Agreement to Admit Partner for the sole purpose of evidencing such individual’s agreement to be bound by the terms of Section 3.1.1(s) of this Agreement for the time period stated in Section 3.1 and for no other purpose.

/s/ Peter C. Cooper

Peter C. Cooper, an individual

Date of Signature:

3

EX-10.473

Exhibit 10.473

Henry Town Center Shopping Center

ASSIGNMENT

This Assignment is made as of the 23^rd day of December 2004 by INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation (“Assignor”) to and for the benefit of INLAND WESTERN McDONOUGH HENRY TOWN, L.L.C., a Delaware limited liability company (“Assignee”).

Assignor does hereby sell, assign, transfer, set over and convey unto Assignee all of its right, title and interest as Buyer under the terms of an Agreement of Purchase Sale of a Shopping Center, dated as of July 29, 2004, as amended and entered into by Henry Town Center, LLC, a Georgia limited liability company, as Seller, and Assignor, as Buyer (collectively, the “Agreement”) for the sale and purchase of Henry Town Center shopping center, located in McDonough, GA as legally described within the Agreement (the “Property”).

Assignor represents and warrants that it is the Buyer under the Agreement, and that it has not sold, assigned, transferred, or encumbered such interest in any way to any other person or entity. By acceptance hereof, Assignee accepts the foregoing assignment and agrees, from and after the date hereof, to (i) perform all of the obligations of Buyer under the Agreement, and (ii) indemnify, defend, protect and hold Assignor harmless from and against all claims and liabilities arising under the Agreement.

IN WITNESS WHEREOF, Assignor and Assignee have executed this instrument as of the date first written above.

ASSIGNOR:
INLAND REAL ESTATE ACQUISITIONS, INC.
an Illinois corporation
By:	/s/ Jason A. Lazarus
Name:		Jason A. Lazarus
As Its:			V.P.
ASSIGNEE:
INLAND WESTERN McDONOUGH HENRY TOWN, L.L.C., a Delaware limited liability company
By: Inland Western Retail Real Estate Trust, Inc.,
a Maryland corporation
By:				/s/ [ILLEGIBLE]
Name:				[ILLEGIBLE]
As Its:				[ILLEGIBLE]

EX-10.474

Exhibit 10.474

Henry Town Center

McDonough, Georgia

Eighth Amendment to Agreement

EIGHTH AMENDMENT TO AGREEMENT

THIS EIGHTH AMENDMENT TO AGREEMENT (the “Eighth Amendment”) is made and entered into as of the 1^st day of December, 2004, by and between Henry Town Center, LLC, a Georgia limited liability company, Alpha Seven, LLC, a Delaware limited liability company, Elliston Henry Town Center, LLC, a Delaware limited liability company, Owen Henry Town Center, LLC, a Delaware limited liability company, DSCongdonA, LLC, a Delaware limited liability company, JWCongdonA, LLC, a Delaware limited liability company, KCVanstoryA, LLC, a Delaware limited liability company. ALCongdonA, LLC, a Delaware limited liability company, SCTerryA, LLC, a Delaware limited liability company. JRCongdonA, Jr., LLC, a Delaware limited liability company, Spence Henry Town Center, LLC, a Delaware limited liability company, and Jay Henry Town Center, LLC, a Delaware limited liability company (collectively “Seller”) and INLAND REAL ESTATE ACQUISITIONS, INC. (“Buyer”).

W I T N E S S E T H:

WHEREAS, Seller and Buyer entered into that certain Agreement of Purchase and Sale of Shopping Center dated July 29, 2004, as amended (the “Agreement”), for the sale and purchase of the property commonly known as Henry Town Center located in McDonough, Georgia, as legally described by the Agreement (the “Property”).

WHEREAS, Buyer and Seller have mutually agreed to amend certain provisions of the Agreement.

NOW THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged. Buyer and Seller agree as follows:

1.If on or prior to December 23, 2004: (i) Lender’s rating agency does not approve the assumption of the Loan by Buyer in the manner described in Section 10(c) of the Agreement and/or (ii) Lender’s rating agency imposes new conditions upon Buyer in connection with approval of the Loan assumption; and/or (iii) final receipt and execution of loan assumption documents and satisfaction of all Closing conditions imposed by Lender to Buyer and Seller (collectively, the “Financing Approval Contingency”), then Buyer may terminate this Agreement provided that written notice thereof is received by Seller on or prior to 10:00 P.M., Chicago time December 23, 2004. Seller or its affiliates must be released from any ongoing liabilities under the Loan or any related guaranty agreements.

2.Section 2(a) of the Agreement (Closing) is hereby amended and restated as follows: “The closing of the transaction contemplated by this Agreement (the “Closing”) shall occur via mail at the Chicago, Illinois office of the Title Company (as hereinafter defined), on December 23, 2004.”

3.This Eighth Amendment may be executed in one or more counterparts, each of which shall constitute an original and all of which taken together shall constitute one Eighth Amendment.  Each person executing this Eighth Amendment represents that such person has full authority and legal power to do so and bind the party on whose behalf he or she has executed this Eighth Amendment.  Any counterpart to this Eighth Amendment may be executed by facsimile copy and shall be binding on the parties. Defined terms utilized in the Eighth Amendment shall have the meaning ascribed to them by the Agreement.

Except as modified herein by this Eighth Amendment, and as previously amended, the Agreement shall remain unmodified and in full force and effect.

PLEASE SEE FOLLOWING PAGE FOR SIGNATURES

2

Seller:
HENRY TOWN CENTER, LLC,
ALPHA SEVEN, LLC,
ELLISTON HENRY TOWN CENTER, LLC,
OWEN HENRY TOWN CENTER, LLC,
DSCONGDONA, LLC, JWCONGDONA, LLC,
KCVANSTORYA, LLC, ALCONGDONA, LLC,
SCTERRYA, LLC, JRCONGDONA, JR., LLC,
SPENCE HENRY TOWN CENTER, LLC,
JAY HENRY TOWN CENTER, LLC
By:	/s/ Steven D. Bell
Name: Steven D. Bell
Title: Authorized Signatory for all Co-Tenant Sellers
Purchaser:
INLAND REAL ESTATE ACQUISITIONS, INC., an Illinos corporation
By:	/s/ Jason A. Lazarus
Name:		Jason A. Lazarus
Title:		V.P.

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Henry Town Center

McDonough, Georgia

Seventh Amendment to Agreement

SEVENTH AMENDMENT TO AGREEMENT

THIS SEVENTH AMENDMENT TO AGREEMENT (the “Seventh Amendment”) is made and entered into as of the 29^th day of November, 2004, by and between Henry Town Center, LLC, a Georgia limited liability company, Alpha Seven, LLC, a Delaware limited liability company, Elliston Henry Town Center, LLC, aDelaware limited liability company, Owen Henry Town Center, LLC, a Delaware limited liability company, DSCongdonA, LLC, a Delaware limited liability company, JWCongdonA, LLC, a Delaware limited liability company, KCVanstoryA, LLC, a Delaware limited liability company, ALCongdonA, LLC, a Delaware limited liability company, SCTerryA, LLC, a Delaware limited liability company, JRCongdonA, Jr., LLC, a Delaware limited liability company, Spence Henry Town Center, LLC, a Delaware limited liability company, and Jay Henry Town Center, LLC, a Delaware limited liability company (collectively “Seller”) and INLAND REAL ESTATE ACQUISITIONS, INC. (“Buyer”).

W I T N E S S E T H:

WHEREAS, Seller and Buyer entered into that certain Agreement of Purchase and Sale of Shopping Center dated July 29, 2004, as amended (the “Agreement”), for the sale and purchase of the property commonly known as Henry Town Center located in McDonough, Georgia, as legally described by the Agreement (the “Property”).

WHEREAS, Buyer and Seller have mutually agreed to amend certain provisions of the Agreement.

NOW THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Buyer and Seller agree as follows:

1.If on or prior to December 1, 2004: (i) Lender does not approve the assumption of the Loan by Buyer in the manner described in Section 10(e) of the Agreement; and/or (ii) Buyer does not agree upon the terms of the Loan assumption in the manner described in Section 10(e) of the Agreement (collectively, the “Financing Approval Contingency”), then Buyer may terminate this Agreement provided that written notice thereof is received by Seller on or prior to 10:00 P.M., Chicago time December 1, 2004, Seller or its affiliates must be released from any ongoing liabilities under the Loan or any related guaranty agreements.

2.Section 2(a) of the Agreement (Closing) is hereby amended and restated as follows: “The closing of the transaction contemplated by this Agreement (the “Closing”) shall occur via mail at the Chicago,

Illinois office of the Title Company (as hereinafter defined), on December 23, 2004.”

3.This Seventh Amendment may be executed in one or more counterparts, each of which shall constitute an original and all of which taken together shall constitute one Seventh Amendment. Each person executing this Seventh Amendment represents that such person has full authority and legal power to do so and bind the party on whose behalf he or she has executed this Seventh Amendment. Any counterpart to this Seventh Amendment may be executed by facsimile copy and shall be binding on the parties. Defined terms utilized in the Seventh Amendment shall have the meaning ascribed to them by the Agreement.

Except as modified herein by this Seventh Amendment, and as previously amended, the Agreement shall remain unmodified and in full force and effect.

PLEASE SEE FOLLOWING PAGE FOR SIGNATURES

2

Seller:
HENRY TOWN CENTER, LLC,
ALPHA SEVEN, LLC,
ELLISTON HENRY TOWN CENTER, LLC,
OWEN HENRY TOWN CENTER, LLC,
DSCONGDONA, LLC, JWCONGDONA LLC,
KCVANSTORYA, LLC, ALCONGDONA, LLC,
SCTERRYA, LLC, JRCONGDONA, JR., LLC,
SPENCE HENRY TOWN CENTER, LLC,
JAY HENRY TOWN CENTER, LLC
By:	/s/ Steven D. Bell
Name: Steven D. Bell
Title: Authorized Signatory for all Co-Tenant Sellers
Purchaser:
INLAND REAL ESTATE ACQUSITIONS, INC., an Illinois corporation
By:		/s/ Jason A. Lazarus
Name:			Jason A. Lazarus
Title:			V.P.

3

Henry Town Center

McDonough, Georgia

Sixth Amendment to Agreement

SIXTH AMENDMENT TO AGREEMENT

THIS SIXTH AMENDMENT TO AGREEMENT (the “Sixth Amendment”) is made and entered into as of the 27^th day of September 2004, by and between Henry Town Center, LLC, a Georgia limited liability company, Alpha Seven, LLC, a Delaware limited liability company, Elliston Henry Town Center, LLC, a Delaware limited liability company, Owen Henry Town Center, LLC, a Delaware limited liability company, DSCongdonA, LLC, a Delaware limited liability company, JWCongdonA, LLC, a Delaware limited liability company, KCVanstoryA, LLC, a Delaware limited liability company, ALCongdonA, LLC, a Delaware limited liability company, SCTerryA, LLC, a Delaware limited liability company, JRCongdonA, Jr., LLC, a Delaware limited liability company, Spence Henry Town Center, LLC, a Delaware limited liability company, and Jay Henry Town Center, LLC, a Delaware limited liability company (collectively “Seller”) and INLAND REAL ESTATE ACQUISITIONS, INC. (“Buyer”).

W I T N E S S E T H:

WHEREAS, Seller and Buyer entered into that certain Agreement of Purchase and Sale of Shopping Center dated July 29, 2004, as amended (the “Agreement”), for the sale and purchase of the property commonly known as Henry Town Center Located in McDonough, Georgia, as legally described by the Agreement (the “Property”).

WHEREAS, Buyer and Seller have mutually agreed to amend certain provisions of the Agreement.

NOW THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Buyer and Seller agree as follows:

1.Section 10(e)(ii) of the Agreement is hereby amended by deleting the following described language therefrom “...(as determined by Buyer during the Due Diligence Period)...”

2.If on or prior to November 29, 2004: (i) Lender does not approve the assumption of the Loan by Buyer in the manner described in Section 10(e) of the Agreement: and/or (ii) Buyer does not agree upon the terms of the Loan assumption in the manner described in Section 10(e) of the Agreement (collectively, the “Financing Approval Contingency”), then Buyer may terminate this Agreement provided that written notice therof is received by Seller on or prior to 10:00 P.M., Chicago time November 29, 2004.  Seller or its affiliates must be released from any ongoing liabilities under the Loan or any related guaranty agreements.

3.Section 2(a) of the Agreement (Closing) is hereby amended and restated as follows: “The closing of the transaction contemplated by this Agreement (the “Closing”) shall occur via mail at the Chicago, Illinois office of the Title Company (as hereinafter defined), on December 21, 2004.”

4.The introductory paragraph of Agreement Section 3. Consideration. Is hereby amended and restated as follows: “The consideration to be paid to Seller by Buyer for the purchase of the Property (the “Purchase Price”) shall be the sum of Sixty-one Million Three Hundred Ninety-six Thousand Six Hundred Ninety-five and no/100 Dollars ($61,396,695.00). The Purchase Price shall be satisfied as follows:”

5.This Sixth Amendment may be executed in one or more counterparts, each of which shall constitute an original and all of which taken together shall constitute one Sixth Amendment. Each person executing this Sixth Amendment represents that such person has full authority and legal power to do so and bind the party on whose behalf he or she has executed this Sixth Amendment. Any counterpart to this Sixth Amendment may be executed by facsimile copy and shall be binding on the parties. Defined terms utilized in the Sixth Amendment shall have the meaning ascribed to them by the Agreement.

Except as modified herein by this Sixth Amendment, and as previously amended, the Agreement shall remain unmodified and in full force and effect.

PLEASE SEE FOLLOWING PAGE FOR SIGNATURES

2

Seller:
HENRY TOWN CENTER, LLC,
ALPHA SEVEN, LLC,
ELLISTON HENRY TOWN CENTER, LLC,
OWEN HENRY TOWN CENTER, LLC,
DSCONGDONA, LLC, JWCONGDONA LLC,
KCVANSTORYA, LLC, ALCONGDONA, LLC,
SCTERRYA, LLC, JRCONGDONA, JR., LLC,
SPENCE HENRY TOWN CENTER, LLC,
JAY HENRY TOWN CENTER, LLC
By:		/s/ Steven D. Bell
Name: Steven D. Bell
Title: Authorized Signatory for all Co-Tenant Sellers
Purchaser:
INLAND REAL ESTATE ACQUSITIONS, INC., an Illinois corporation
By:	/s/ Jason A. Lazarus, Authorized Agent
Name:			Jason A. Lazarus
Title:			Vice President

3

Henry Town Center

McDonough, Georgia

Fifth Amendment to Agreement

FIFTH AMENDMENT TO AGREEMENT

THIS FIFTH AMENDMENT TO AGREEMENT (the “Fifth Amendment”) is made and entered into as of the 27^th day of September 2004, by and between Henry Town Center, LLC, a Georgia limited liability company, Alpha Seven, LLC, a Delaware limited liability company, Elliston Henry Town Center, LLC, a Delaware limited liability company, Owen Henry Town Center, LLC, a Delaware limited liability company, DSCongdonA, LLC, a Delaware limited liability company, JWCongdonA, LLC, a Delaware limited liability company, KCVanstoryA, LLC, a Delaware limited liability company, ALCongdonA, LLC, a Delaware limited liability company, SCTerryA, LLC, a Delaware limited liability company, JRCongdonA, Jr., LLC, a Delaware limited liability company, Spence Henry Town Center, LLC, a Delaware limited liability company, and Jay Henry Town Center, LLC, a Delaware limited liability company (collectively “Seller”) and INLAND REAL ESTATE ACQUISITIONS, INC. (“Buyer”).

W I T N E S S E T H:

WHEREAS, Seller and Buyer entered into that certain Agreement of Purchase and Sale of Shopping Center dated July 29, 2004, as amended (the “Agreement”), for the sale and purchase of the property commonly known as Henry Town Center located in McDonough, Georgia, as legally described by the Agreement (the “Property”).

WHEREAS, Buyer and Seller have mutually agreed to amend certain provisions of the Agreement.

NOW THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Buyer and Seller agree as follows:

1.If Buyer is not satisfied for any reason, or for no reason, in any respect, in the judgment of Buyer, with the results of its inspections described immediately below, then Buyer may terminate this Agreement provided that written notice thereof is received by Seller on or prior to 10:00 P.M., Chicago time on or before September 29, 2004: (a) approval (in the manner described by Section 10(e) of the Agreement) by Buyer of Loan and assumption documents to be entered into by and among Buyer, Seller and Lender, and (b) reconciliation and approval by Buyer of Property operating income and expenses.

2.This Fifth Amendment may be executed in one or more counterparts, each of which shall constitute an original and all of which taken together shall constitute one Fifth Amendment. Each person executing this Fifth Amendment represents that such person has full authority

and legal power to do so and bind the party on whose behalf he or she has executed this Fifth Amendment. Any counterpart to this Fifth Amendment may be executed by facsimile copy and shall be binding on the parties. Defined terms utilized in the Fifth Amendment shall have the meaning ascribed to them by the Agreement.

Except as modified herein by this Fifth Amendment, and as previously amended, the Agreement shall remain unmodified and in full force and effect.

Seller:
HENRY TOWN CENTER, LLC,
ALPHA SEVEN, LLC,
ELLISTON HENRY TOWN CENTER, LLC,
OWEN HENRY TOWN CENTER, LLC,
DSCONGDONA, LLC, JWCONGDONA, LLC,
KCVANSTORYA, LLC, ALCONGDONA, LLC,
SCTERRYA, LLC, JRCONGDONA, JR., LLC,
SPENCE HENRY TOWN CENTER, LLC,
JAY HENRY TOWN CENTER, LLC
By:		/s/ Steven D. Bell
Name: Steven D. Bell
Title: Authorized Signatory for all Co-Tenant Sellers
Purchaser:
INLAND REAL ESTATE ACQUSITIONS, INC., an Illinois corporation
By:	/s/ Jason A. Lazarus, Authorized Agent
Name:			Jason A. Lazarus
Title:			Vice President

2

Henry Town Center

McDonough, Georgia

Fourth Amendment to Agreement

FOURTH AMENDMENT TO AGREEMENT

THIS FOURTH AMENDMENT TO AGREEMENT (the “Fourth Amendment”) is made and entered into as of the 24^th day of September 2004, by and between Henry Town Center, LLC, a Georgia limited liability company, Alpha Seven, LLC, a Delaware limited liability company, Elliston Henry Town Center, LLC, a Delaware limited liability company, Owen Henry Town Center, LLC, a Delaware limited liability company, DSCongdonA, LLC, a Delaware limited liability company, JWCongdonA, LLC, a Delaware limited liability company, KCVanstoryA, LLC, a Delaware limited liability company, ALCongdonA, LLC, a Delaware limited liability company, SCTerryA, LLC, a Delaware limited liability company, JRCongdonA, Jr., LLC, a Delaware limited liability company, Spence Henry Town Center, LLC, a Delaware limited liability company, and Jay Henry Town Center, LLC, a Delaware limited liability company (collectively “Seller”) and INLAND REAL ESTATE ACQUISITIONS, INC. (“Buyer”).

W I T N E S S E T H:

WHEREAS, Seller and Buyer entered into that certain Agreement of Purchase and Sale of Shopping Center dated July 29, 2004, as amended (the “Agreement”), for the sale and purchase of the property commonly known as Henry Town Center located in McDonough, Georgia, as legally described by the Agreement (the “Property”).

WHEREAS, Buyer and Seller have mutually agreed to amend certain provisions of the Agreement.

NOW THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Buyer and Seller agree as follows:

1.If Buyer is not satisfied for any reason, or for no reason, in any respect, in the judgment of Buyer, with the results of its inspections described immediately below, then Buyer may terminate this Agreement provided that written notice thereof is received by Seller on or prior to 10:00 P.M., Chicago time on or before September 27, 2004; (a) approval (in the manner described by Section 10(e) of the Agreement) by Buyer of Loan and assumption documents to be entered into by and among Buyer, Seller and Lender; and (b) reconciliation and approval by Buyer of Property operating income and expenses.

2.This Fourth Amendment may be executed in one or more counterparts, each of which shall constitute an original and all of which taken together shall constitute one Fourth Amendment. Each person executing this Fourth Amendment represents that such person has full

authority and legal power to do so and bind the party on whose behalf he or she has executed this Fourth Amendment. Any counterpart to this Fourth Amendment may be executed by facsimile copy and shall be binding on the parties. Defined terms utilized in the Fourth Amendment shall have the meaning ascribed to them by the Agreement.

Except as modified herein by this Fourth Amendment, and as previously amended, the Agreement shall remain unmodified and in full force and effect.

Seller:
HENRY TOWN CENTER, LLC,
ALPHA SEVEN, LLC,
ELLISTON HENRY TOWN CENTER, LLC,
OWEN HENRY TOWN CENTER, LLC,
DSCONGDONA, LLC, JWCONGDONA, LLC,
KCVANSTORYA, LLC, ALCONGDONA, LLC,
SCTERRYA, LLC, JRCONGDONA, JR., LLC,
SPENCE HENRY TOWN CENTER, LLC,
JAY HENRY TOWN CENTER, LLC
By:		/s/ Steven D. Bell
Name: Steven D. Bell
Title: Authorized Signatory for all Co-Tenant Sellers
Purchaser:
INLAND REAL ESTATE ACQUSITIONS, INC., an Illinois corporation
By:	/s/ Jason A. Lazarus, Authorized Agent
Name:			Jason A. Lazarus
Title:			Acqusitions Officer

2

Henry Town Center

McDonough, Georgia

Third Amendment to Agreement

THIRD AMENDMENT TO AGREEMENT

THIS THIRD AMENDMENT TO AGREEMENT (the “Third Amendment”) is made and entered into as of the 17^th day of September 2004, by and between Henry Town Center, LLC, a Georgia limited liability company, Alpha Seven, LLC, a Delaware limited liability company, Elliston Henry Town Center, LLC, a Delaware limited liability company, Owen Henry Town Center, LLC, a Delaware limited liability company, DSCongdonA, LLC, a Delaware limited liability company, JWCongdonA, LLC, a Delaware limited liability company, KCVanstoryA, LLC, a Delaware limited liability company, ALCongdonA, LLC, a Delaware limited liability company, SCTerryA, LLC, a Delaware limited liability company, JRCongdonA, Jr., LLC, a Delaware limited liability company, Spence Henry Town Center, LLC, a Delaware limited liability company, and Jay Henry Town Center, LLC, a Delaware limited liability company (collectively “Seller”) and INLAND REAL ESTATE ACQUISITIONS, INC. (“Buyer”).

W I T N E S S E T H:

WHEREAS, Seller and Buyer entered into that certain Agreement of Purchase and Sale of Shopping Center dated July 29, 2004, as amended (the “Agreement”), for the sale and purchase of the property commonly known as Henry Town Center located in McDonough, Georgia, as legally described by the Agreement (the “Property”).

WHEREAS, Buyer and Seller have mutually agreed to amend certain provisions of the Agreement.

NOW THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Buyer and Seller agree as follows:

1.If Buyer is not satisfied forany reason, or for no reason, in any respect, in the judgment of Buyer, with the results of its inspections described immediately below, then Buyer may terminate this Agreement provided that written notice thereof is received by Seller on or prior to 10:00 P.M., Chicago time on or before September 24, 2004: (a) approval (in the manner described by Section 10(e) of the Agreement) by Buyer of Loan and assumption documents to be entered into by and among Buyer, Seller and Lender; and (b) reconciliation and approval by Buyer of Property operating income and expenses.

2.This Third Amendment may be executed in one or more counterparts, each of which shall constitute an original and all of which taken together shall constitute one Third Amendment. Each person executing this Third Amendment represents that such person has full authority

and legal power to do so and bind the party on whose behalf he or she has executed this Third Amendment. Any counterpart to this Third Amendment may be executed by facsimile copy and shall be binding on the parties. Defined terms utilized in the Third Amendment shall have the meaning ascribed to them by the Agreement.

Except asmodified herein by this Third Amendment, and as previously amended, the Agreement shall remain unmodified and in full force and effect.

Seller:
HENRY TOWN CENTER, LLC,
ALPHA SEVEN, LLC,
ELLISTON HENRY TOWN CENTER, LLC,
OWEN HENRY TOWN CENTER, LLC,
DSCONGDONA, LLC, JWCONGDONA, LLC,
KCVANSTORYA, LLC, ALCONGDONA, LLC,
SCTERRYA, LLC, JRCONGDONA, JR., LLC,
SPENCE HENRY TOWN CENTER, LLC,
JAY HENRY TOWN CENTER, LLC
By:	/s/ Steven D. Bell
Name: Steven D. Bell
Title: Authorized Signatory for all Co-Tenant Sellers
Purchaser:
INLAND REAL ESTATE ACQUSITIONS, INC., an Illinois corporation
By:		/s/ [ILLEGIBLE]
Name:		[ILLEGIBLE]
Title:		[ILLEGIBLE]

2

Henry Town Center

McDonough, Georgia

Second Amendment to Agreement

SECOND AMENDMENT TO AGREEMENT

THIS SECOND AMENDMENT TO AGREEMENT (the “Second Amendment”) is made and entered into as of the 15^th day of September 2004, by and between Henry Town Center, LLC, a Georgia limited liability company, Alpha Seven, LLC, a Delaware limited liability company, Elliston Henry Town Center, LLC, a Delaware limited liability company, Owen Henry Town Center, LLC, a Delaware limited liability company, DSCongdonA, LLC, a Delaware limited liability company, JWCongdonA, LLC, a Delaware limited liability company, KCVanstoryA, LLC, a Delaware limited liability company, ALCongdonA, LLC, a Delaware limited liability company, SCTerryA, LLC, a Delaware limited liability company, JRCongdonA, Jr., LLC, a Delaware limited liability company, Spence Henry Town Center, LLC, a Delaware limited liability company, and Jay Henry Town Center, LLC, a Delaware limited liability company (collectively “Seller”) and INLAND REAL ESTATE ACQUISITIONS, INC. (“Buyer”).

W I T N E S S E T H:

WHEREAS, Seller and Buyer entered into that certain Agreement of Purchase and Sale of Shopping Center dated July 29, 2004, as amended (the “Agreement”), for the sole and purchase of the property commonly known as Henry Town Center located in McDonough, Georgia, as legally described by the Agreement (the “Property”).

WHEREAS, Buyer and Seller have mutually agreed to amend certain provisions of the Agreement.

NOW THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Buyer and Seller agree as follows:

1.If Buyer is not satisfied for any reason, or for no reason, in any respect, in the judgment of Buyer, with the results of its inspections described immediately below, then Buyer may terminate this Agreement provided that written notice thereof is received by Seller on or prior to 10:00 P.M., Chicago time on or before September 17, 2004: (a) approval (in the manner described by Section 10(e) of the Agreement) by Buyer of Loan and assumption documents to be entered into by and among Buyer, Seller and Lender; and (b) reconciliation and approval by Buyer of Property operating income and expenses.

2.This Second Amendment may be executed in one or more counterparts, each of which shall constitute an original and all of which taken together shall constitute one Second Amendment. Each person executing this Second Amendment represents that such person

has full authority and legal power to do so and bind the party on whose behalf he or she has executed thisSecond Amendment. Any counterpart to this Second Amendment may be executed by facsimile copy and shall be binding on the parties. Defined terms utilized in the Second Amendment shall have the meaning ascribed to them by the Agreement.

Except as modified herein by this Second Amendment, and aspreviously amended, the Agreement shall remain unmodified and in full force and effect.

Seller:
HENRY TOWN CENTER, LLC,
ALPHA SEVEN, LLC,
ELLISTON HENRY TOWN CENTER, LLC,
OWEN HENRY TOWN CENTER, LLC,
DSCONGDONA, LLC, JWCONGDONA, LLC,
KCVANSTORYA, LLC, ALCONGDONA, LLC,
SCTERRYA, LLC, JRCONGDONA, JR., LLC,
SPENCE HENRY TOWN CENTER, LLC,
JAY HENRY TOWN CENTER, LLC
By:		/s/ Steven D. Bell
Name: Steven D. Bell
Title: Authorized Signatory for all Co-Tenant Sellers
Purchaser:
INLAND REAL ESTATE ACQUSITIONS, INC., an Illinois corporation
By:	/s/ Jason A. Lazarus, Authorized Agent
Name:			Jason A. Lazarus
Title:			Acquisition Officer

2

Henry Town Center

McDonough, Georgia

Amendment to Agreement

AMENDMENT TO AGREEMENT

THIS AMENDMENT TO AGREEMENT (the “Amendment”) is made and entered into as of the 1st of September 2004, by and between Henry Town Center, LLC, a Georgia limited liability company, Alpha Seven, LLC, a Delaware limited liability company, Elliston Henry Town Center, LLC, a Delaware limited liability company, Owen Henry Town Center, LLC, a Delaware limited liability company, DSCongdonA, LLC, a Delaware limited liability company, JWCongdonA, LLC, a Delaware limited liability company, KCVanstoryA, LLC, a Delaware limited liability company, ALCongdonA, LLC, a Delaware limited liability company, SCTerryA, LLC, a Delaware limited liability company, JRCongdonA, Jr., LLC, a Delaware limited limited liability company, Spence Henry Town Center, LLC, a Delaware limited liability company, and Jay Henry Town Center, LLC, a Delaware limited liability company (collectively “Seller”) and INLAND REAL ESTATE ACQUISITIONS, INC. (“Buyer”).

W I T N E S S E T H:

WHEREAS, Seller and Buyer entered into that certain Agreement of Purchase and Sale of Shopping Center dated July 29, 2004, as amended (the “Agreement”) for the sale and purchase of the property commonly known as Henry Town Center located in McDonough, Georgia, as legally described by the Agreement (the “Property”).

WHEREAS, Buyer and Seller have mutually agreed to amend certain provisions of the Agreement.

NOW THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Buyer and Seller agree as follows:

1.Subject to the terms of Paragraph 2, hereof, “Buyer’s Rights to Terminate this Agreement,” as defined in Section 7 of the Agreement is hereby amended by deleting the date of “September 1, 2004” in the 5^th line of Section 7 (a) thereof, and inserting the date “September 8, 2004,” for the purpose of Buyer’s approval of the following: (a) receipt of a satisfactory zoning letter from the local municipality; and (b) review and approval of the Preliminary Commitment, exception documents, and the Survey, all in accordance with the terms of the Agreement.

2.If Buyer is not satisfied forany reason, or for no reason, in any respect in the judgment of Buyer, with the results of its inspections described immediately below, then Buyer may terminate this Agreement provided that written notice thereof is received by Seller on or prior to 10:00 P.M., Chicago time on or before September 15, 2004: (a) approval (in the manner described by Section 10(e) of the Agreement) by Buyer of Loan and assumption documents to be entered into by and among Buyer, Seller and Lender; and (b) reconciliation and approval by Buyer of Property operating income and expenses; and (c)

documentation of existing roof warranty information and assignment of roof Buyer; and (d) evidence of property insurance for Belk.

3.Section 2(a) of the Agreement ishereby amended and restated as follows: “The closing of the transaction contemplated by this Agreement (the “Closing”) shall occur via mail at the Chicago, Illinois office of the Title Company (as hereinafter defined), on December 21, 2004.”

4.The fourth (4^th) sentence of Section 18(m) of the Agreement is hereby deleted in its entirety.

5.ThisAmendment maybe executed in one or more counterparts, each of which shall constitute an original and all of which taken together shall constitute one Amendment. Each person executing this Amendment represents that such person has full authority and legal power to do so and bind the party on whose behalf he or she has executed this Amendment. Any counterpart to this Amendment may be executed by facsimile copy and shall be binding on the parties. Defined terms utilized in the Amendment shall have the meaning ascribed to them by the Agreement.

Except as modified herein by this Amendment, and as previously amended, the Agreement shall remain unmodified and in full force and effect.

Seller:
HENRY TOWN CENTER, LLC,
ALPHA SEVEN, LLC,
ELLISTON HENRY TOWN CENTER, LLC,
OWEN HENRY TOWN CENTER, LLC,
DSCONGDONA, LLC, JWCONGDONA, LLC,
KCVANSTORYA, LLC, ALCONGDONA, LLC,
SCTERRYA, LLC, JRCONGDONA, JR., LLC,
SPENCE HENRY TOWN CENTER, LLC,
JAY HENRY TOWN CENTER, LLC
By:	/s/ Steven D. Bell
Name: Steven D. Bell
Title: Authorized Signatory for all Co-Tenant Sellers

2

Except as modified herein by this Amendment, the Agreement shall remain unmodified and in full force and effect.

Seller:
HENRY TOWN CENTER, LLC, a Georgia limited liability company
By:
Name:
Title:
Purchaser:
INLAND REAL ESTATE ACQUSITIONS, INC., an Illinois corporation
By:	/s/ Jason A. Lazarus, Authorized Agent
Name:		Jason A. Lazarus
Title:		Acquisition Officer

2

Henry Town Center

McDonough, Georgia

Amendment to Agreement

AMENDMENT TO AGREEMENT

THIS AMENDMENT TO AGREEMENT (the “Amendment”) is made and entered into as of the 31^st day of August 2004, by and between HENRY TOWN CENTER, LLC, a Georgia limited liability company (“Seller”) and INLAND REAL ESTATE ACQUISITIONS, INC., (“Buyer”).

W I T N E S S E T H:

WHEREAS, Seller and Buyer entered into that certain Agreement of Purchase and Sale of Shopping Center dated July 29, 2004, the (“Agreement”), for the sale and purchase of property commonly known as Henry Town Center located in McDonough, Georgia, as legally described by the Agreement (the “Property”).

WHEREAS, Buyer and Seller have mutually agreed to amend certain provisions of the Agreement.

NOW THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which ishereby acknowledged, Buyer and Seller as follows:

1.The“Buyer’s Rights to Terminate this Agreement,” as defined in Section 7 of the Agreement is hereby amended by deleting the date of “August 31, 2004” in the 5^th line of Section 7(a) thereof, and inserting the date of “September 1, 2004,”

2.This Amendment may be executed in one or more counterparts, each of which shall constitute an original and all of which taken together shall constitute one Amendment. Each person executing this Amendment represents that such person has full authority and legal power to do so and bind the party on whose behalf he or she has executed this Amendment. Any counterpart to this Amendment may be executed by facsimile copy and shall be binding on the parties. Defined terms utilized in the Amendment shall have the meaning ascribed to them by the Agreement.

Except as modified herein by this Amendment, the Agreement shall remain unmodified and in Full force and effect.

Seller:		Purchaser:
HENRY TOWN CENTER LLC, a Georgia limited liability company		INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
By:	/s/ Edward M. Harrington
Name:		By:
Title:		Name:
		Title:

Henry Town Center

McDonough, Georgia

AGREEMENT OF PURCHASE AND SALE OF SHOPPING CENTER

(Henry Town Center, McDonough, Georgia)

This Agreement of Purchase and Sale of Real Property (the “Agreement”) is dated as of the 29th day of July, 2004 (the “Effective Date”) and is entered into by the following parties:

SELLER :              Described upon Schedule A, attached hereto and made a part hereof

BUYER :                Inland Real Estate Acquisitions, Inc. an Illinois corporation, or its nominee

1.             The Property.

The property to be purchased by Buyer shall consist of the following: (a) that certain real property legally described on Exhibit A attached hereto, consisting of approximately 62.52 acres of land, and 444,295 square feet of net rentable square feet, and located on the northwest corner of US Interstate Highway I-75 and Jonesboro Road, McDonough, Georgia and commonly known as Henry Town Center Shopping Center (the “Property”), (b) all of the right, title and interest of Seller in, to and under all Leases (as defined in subsection 5(a) below) of the Property, (c) all improvements located upon the Property, (d) all personal property, if any, owned by Seller and used in connection with the Property, (e) all shrubs, trees, plants and other landscaping located upon the Property, (f) all easements, rights of way, and other rights appurtenant to the Property, and (g) all of the right, title and interest of Seller in and to the name Henry Town Center Shopping Center.

Seller has financed the Property with a permanent loan in the original principal amount of $36,000,000.00, and a current principal balance of approximately $36,000,000.00 as of July 15, 2004 (the “Loan”) from Wachovia Bank (“Lender”), The Loan is evidenced by a Promissory Note dated January 8, 2003 (the “Note”) payable to the order of Lender. The Note is secured by (a) a Deed to Secure Debt (the “Mortgage”), (b) an Assignment of Leases and Rents (the “Assignment”), (c) a Environmental Indemnity (the “Indemnity”), (d) an Indemnity and Guaranty Agreement (the “Guaranty”) from Steven D. Bell & Co. (“SDB”), and (e) UCC Financing Statements (the “UCC-1’s”), all dated January 8, 2003 in favor of Lender. The Note, Mortgage, Assignment, Indemnity, Guaranty, and UCC- 1’s are collectively referenced herein as the “Loan Documents”.

2.             Closing; Escrow.

(a)  The closing of the transaction contemplated by this Agreement (the “Closing”) shall occur via mail at the Chicago, Illinois office of the Title Company (as hereinafter defined), on October 14, 2004 (subject to Seller’s right to delay Closing as hereinafter provided in Section 18(m), hereof).

(b)  The Closing shall occur in accordance with the general provisions of the usual form of deed and money escrow agreement then in use by the Title Company with such special provisions inserted in the escrow agreement as may be required to conform with this Agreement. Upon the creation of such escrow, anything herein to the contrary notwithstanding, payment of the Purchase Price (as hereinafter defined) and delivery of the deed shall be made through the escrow and the Earnest Money (as hereinafter defined) shall be deposited into the escrow. Counsel for the respective parties are hereby authorized to execute the escrow trust instructions, as well as amendments thereto. Each of Seller and Buyer agrees to comply with the requirements of the Title Company relative to closing the transaction contemplated by this Agreement as a so-called “NY Style” closing. The cost of the escrow, and all “NY Style” closing fees, shall be divided equally between Seller and Buyer.

1

3.             Consideration.

The consideration to be paid to Seller by Buyer for the purchase of the Property (the “Purchase Price”) shall be the sum of Sixty-two Million Three Hundred Sixty Thousand and no/100 Dollars ($62,360,000.00). The Purchase Price shall be satisfied as follows:

(a)  Buyer shall deposit with Chicago Title and Trust Company, 171 North Clark Street, Chicago, Illinois Attention: Nancy Castro, Assistant Vice President (the “Earnest Money Escrowee”), an earnest money check in the amount of One Million and no/100 Dollars ($1,000,000.00) (the “Earnest Money”) within 2-business days of the full execution of this Agreement, for the mutual benefit of the parties.  The disposition of the Earnest Money shall be governed by the terms of this Agreement from and after the date hereof. In the event the Earnest Money Escrowee receives Buyer’s written notice that Buyer has elected to terminate this Agreement in accordance with the terms of the Agreement, the Earnest Money and any interest earned thereon shall be returned to Buyer. The Earnest Money, at Buyer’s option, shall be held by the Earnest Money Escrowee in an interest bearing account (any interest shall be paid to Buyer). At Buyer’s option, the Earnest Money shall either, be applied to the Purchase Price and paid to Seller in cash at Closing; or the full amount of the Purchase Price (after adjustments and credits) shall be funded by Buyer and the Earnest Money shall be released to Buyer.

(b)  At Closing, a cash payment in the amount of the purchase Price plus or minus prorations, credits and adjustments as provided in Section 8 and elsewhere in this Agreement, and also upon assumption of the Loan Documents, and the obligations of Seller thereunder, by Buyer at Closing, the balance due under the Note (the outstanding principal balance under the Note as of the date of Closing, plus accrued and unpaid interest under the Note through the date of Closing pursuant to the proration of interest under Sections 8(e) and 10(e), below) shall be credited against the Purchase Price, by wire transfer or other immediately available United States funds.

4.             Inspection Rights.

From and after the date hereof through the expiration of the Due Diligence Period (as hereinafter defined), Buyer may cause one or more surveyors, engineers, architects, auditors, appraisers and/or other experts of its choice to inspect any documents related to the Property and to inspect, examine, survey, obtain engineering inspections on, obtain Phase I environmental reports for, appraise, audit and otherwise perform such non-invasive investigation activities which, inthe opinion of Buyer, are necessary to determine the condition of the Property and to determine the suitability of the Property for the uses and investment intended by Buyer; except that, notwithstanding the foregoing, in conducting such activities, Buyer shall not unreasonably interfere with the business of Seller or the business of Seller’s tenants. Buyer shall defend, indemnify and hold harmless Seller from and against any and all liability, loss, cost, expense and damage (including, without limitation, reasonable attorneys’ fees) suffered or incurred by Seller and caused by Buyer or its representatives or any of their respective employees or agents in connection with such activities, and, without limitation of the foregoing, Buyer shall repair any damage to the Property caused by any such activities. Buyer shall provide Seller with an insurance certificate prior to its entry onto the Property for the purposes described by this Section 4. Seller agrees to make its books and records relating to the Property available for inspection and audit by Buyer or its agents and Seller further agrees to make such representations as may be required by Buyer’s auditors in order for such auditors to issue a certified audit, at Buyer’s sole cost and expense, of the Property’s operations. Buyer may review and make copies of any of Seller’s files, books and records relating to the Property. Buyer agrees that all confidential information received from Seller and relating to the Property shall be held in confidence (except as disclosure may be required by law) whether or not this Agreement is terminated for any reason.

5.             Seller’s Required Pre-Closing Deliveries

Within five (5) days of the Effective Date Seller shall deliver to Buyer (or make available to Buyer at the

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Property) the following (which, along with the Preliminary Commitment referred to in subsection 6(a) hereof and the Survey (as hereinafter defined), are referred to herein as “Pre-Closing Deliveries”):

(a)  copy of the leases described upon the Rent Roll attached hereto as Exhibit E, and made a part hereof (respectively, the “Lease,” and collectively, the “Leases”) affecting the Property (and subleases and license agreements in Seller’s possession) together with all modifications and amendments thereof;

(b)  a certification from Seller (pursuant to the terms of the Rent Roll) setting forth the name of each tenant at the Property and the date of the Leases and any modifications or amendments thereto, the amount of rent payable by each tenant throughout the term of its respective Lease, any concessions granted to the tenants, the amount of security deposits, if any, (or a certification that Seller is not holding any security deposits), the expiration date of the Leases, and the existence of any options to renew or extend the term of the Leases or to purchase all or any part of the Property and such information with respect to any subtenant if Seller has knowledge thereof;

(c)  a certification by Seller that there are no employees at the Property;

(d)  a certification by Seller that, other than as disclosed to Buyer, there are no service agreements, maintenance contracts or other similar agreements affecting the Property;

(e)  copies of the most recent tax bill for the Property, together with copies of any notice of assessments received by Seller, or any other information relative to taxes assessed against the Property;

(f)  copies, if any, of any environmental reports, architectural drawings, plans and specs or any similar document in Seller’s possession relating to the Property, or in the alternative, a certification from Seller that no such reports, drawings, plans or specifications are in Seller’s possession;

(g)  a certification from Seller that there is no personal property located at the Property;

(h)  the most current survey of the Property and a copy of the most current title commitment or owner’s title insurance policy relative to the Property, if any, that are in Seller’s possession or control;

(i)  copies of any insurance policies or certificates insuring the Property, whether purchased by Seller or by the tenants under the Leases;

(j)  copies of certificates of occupancy for each tenant at the Property and copies of any building code violations received by Seller with respect to the Property during the last two years and evidence reasonably acceptable to Buyer that such violations have been corrected, or a certification from Seller that it has not received any notice of building code violations;

(k)  the materials described on Buyer’s Due Diligence Checklist, attached hereto as Exhibit F, and made a part hereof;

(l)  full and complete copies of the Loan Documents; and

(m)  as applicable (depending upon the number of years the Property has been operating), an operating statement for the Property for the two calendar years prior to the year of the Effective Date hereof, and monthly operating statements for the Property for each month of the year of the Effective Date. Such statements shall include reasonable detail of all items of income and expense, as well as all items of capital expenditures made during the relevant periods.

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6.             Title and Survey Matters.

(a)  Preliminary Title Report; Permitted Exceptions.

Buyer shall, at Seller’s expense (as hereinafter provided in Section 9, hereof), as soon as practicable after the Effective Date of this Agreement, furnish to Buyer and Seller a preliminary commitment for title insurance dated not sooner than the Effective Date and applicable to the Property (the “Preliminary Commitment”) issued by Chicago Title Insurance Company (the “Title Company”). Such Preliminary Commitment shall show title to the Property being vested in Seller, and subject only to “Permitted Exceptions.” The Title Company shall also provide to Buyer copies of all plats and other documents constituting title exceptions as disclosed in the Preliminary Commitment. In addition to the Permitted Exceptions, the Preliminary Commitment may show other exceptions to title; however, such other exceptions shall be removed by Seller at Seller’s sole cost and expense prior to Closing. As used in this Agreement, the term “Permitted Exceptions” shall mean and refer to:

(i) general real estate taxes not due and payable;

(ii) the Leases and any modifications or amendments of the Leases, and any subleases of which Seller has provided notice of the existence to same to Buyer;

(iii) the Loan Documents; and

(iv) any covenants, conditions, restrictions, easements or other rights affecting title to the Property, disclosed on the Preliminary Commitment and approved by Buyer within the last to occur of: (A) Buyer’s receipt of the Survey, Preliminary Commitment and copies of all documents of record, and (B) the expiration of the Due Diligence Period.

Notwithstanding the foregoing, as used in this Agreement, the “Permitted Exceptions” shall not include: (i) any claims against title as may be apparent from the Survey (“Survey Defects”); or (ii) any mortgage lien, mechanics’ lien or judgment lien against the Property. In the event any such survey defect or mortgage lien, mechanics’ lien or judgment lien appears on the Preliminary Commitment or the survey or otherwise arises with respect to the Property on or prior to the Closing, Seller shall, at its expense and on or prior to the Closing, cause such Survey Defect or mortgage lien, mechanics’ lien or judgment lien to be removed from the Survey and/or title insurance policy, as applicable, to be delivered to Buyer at the Closing, either by correcting the condition causing such Survey Defect or satisfying such lien out of the proceeds payable to Seller at the Closing or by causing the Title Company to insure over such Survey Defect, mortgage lien, mechanics’ lien or judgment lien, as applicable. If Seller is unable to cure a Survey Defect, Buyer shall have the right to either: (A) close the transaction notwithstanding the Survey Defect, or (B) terminate this Agreement and immediately receive a return of the Earnest Money.

(b)  Manner of Conveyance; Identity of Grantee.

At Closing, Seller shall deliver to Buyer a Special Warranty Deed with respect to the Property. On or prior to ten (10) days prior to the Closing date, Buyer shall, subject to subsection 18(h) below, notify Seller in writing of the identity of Buyer’s grantee for the Property.

(c)  Survey.

Seller shall, at Seller’s expense (as hereinafter provided) as soon as practicable after the Effective Date, obtain an update to Seller’s existing as-built survey of the Property, and containing a certification in the form attached hereto as Exhibit H, and made a part hereof, and containing such Table A Options as therein described (the “Survey”). In addition, the Survey shall indicate whether or not the Property or any part thereof is located within a

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flood plain area, and the surveyor shall prepare and deliver elevation certificates in favor of Buyer. The Survey shall be certified to the Title Company, Buyer, Buyer’s lender, and Buyer’s grantee, if applicable and if the name of which has been provided to Seller.

(d)  Title Insurance Policy.

As a condition precedent to Buyer’s obligation to close the transactions contemplated hereby, at Closing, Buyer shall be able to obtain, at the sole cost and expense of Seller (subject to the terms of Section 9, hereof), an owner’s title insurance policy for the Property in the most current ALTA form issued by the Title Company, in the amount of the Purchase Price and showing title to the Property in Buyer’s designated nominee (as identified pursuant to subsection 6(b) above), subject only to the Permitted Exceptions, and with extended coverage over all standard, or general exceptions (the “Title Policy”). The Title Policy shall also contain an affirmative endorsement insuring that there are no violations of restrictive covenants, if any, affecting the Property, and the endorsements described in Section 9(a)(i), hereof.

7.             Buyer’s Rights to Terminate this Agreement

(a)  If Buyer is not satisfied for any reason, or for no reason, in any respect, in the judgment of Buyer, with the results of its inspections described in Section 4, above, or with the content of the Pre-Closing deliveries described in Section 5, hereof or with the Preliminary Commitment or Survey delivered pursuant to Section 6, hereof, then Buyer may terminate this Agreement provided that written notice thereof is received by Seller on or prior to 10:00 P.M., Chicago time on or before August 31, 2004 (the “Due Diligence Period”).

(b)  Upon termination of this Agreement pursuant to this Section 7; (i) the Earnest Money (and all interest earned thereon, if any) shall immediately be returned to Buyer by the Earnest Money Escrowee, (ii) neither party shall have any further liability or obligation to the other except for the Post-Termination Obligations, as hereinafter defined in subsection 7(c), and (iii) Buyer, upon five-days prior written notice from Seller, shall return to Seller any documents received from Seller, and shall thereafter keep all confidential information received as a result of its inspection in confidence.  Nothing contained in Section 4, or this Section 7, regarding Buyer’s confidentiality obligations shall prohibit or restrict Buyer from disclosing any confidential information received by Buyer from Seller to lawyers, accountants, auditors or other professionals utilized by Buyer as part of its due diligence investigations, or any lender or due diligence officer or personnel of any broker-dealer for the sale of securities or as may be required by law.

(c)  As used in this Agreement, the “Post-Termination Obligations” shall mean and refer to the indemnity and repair provisions of Section 4, the indemnity provisions of Section 14 hereof, and Buyer’s confidentiality obligations described under Section 4 and subsection 7(b), hereof. Such Post-Termination Obligations shall survive any termination of this Agreement.

8.             Prorations and Adjustments

The following items shall be prorated and adjusted between Buyer and Seller at the Closing:

(a)  Security deposits described by the Leases shall be credited to Buyer at Closing. Real estate property taxes and assessments due and payable prior to the date of Closing shall be paid in full on or prior to the Closing date. Real estate property taxes and assessments accrued and assessed against the Property but not yet due and payable shall be accounted for and prorated as of the date of Closing on the basis of the most currently issued (at the time of Closing) real estate tax bills and the net credit to Buyer shall be paid in cash or as a credit against the Purchase Price; provided, however, real estate taxes attributable to tenants who either reimburse annually or pay the taxing authority directly shall not be prorated at Closing. The real estate taxes shall be reprorated within ninety (90)

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days of issuance of the actual tax bills. In addition, any deposits for real estate taxes and assessments made by any tenant(s) shall be credited to Buyer at Closing and shall be treated as a like-amount reduction in Buyer’s real estate tax proration. If any general or special assessment (as contrasted to ad valorem taxes) are payable in installments, Buyer shall receive a cash credit at Closing for the gross amount due

(b)  Rent, percentage rent and reimbursements for common area maintenance charges, insurance premiums and other lease charges (other than real estate taxes and assessments, which shall be accounted for and prorated as provided in subsection 8(a) above) shall be accounted for and prorated as follows: except as otherwise provided in this Agreement, Buyer shall be entitled to all rents, percentage rent, miscellaneous income and reimbursements for common area maintenance charges, insurance premiums and other lease charges (other than real estate taxes and assessments) accruing on the date of and after the Closing, and Seller shall be entitled to all such items, if any, accruing prior to the Closing.  At Closing, Seller shall credit Buyer in an amount equal to the scheduled rent and reimbursements through the end of the month in which Closing occurs and Seller shall retain such payments as received from the tenants. Seller and Buyer further agree that percentage rent for each tenant shall be prorated as of the Closing based upon the amount of percentage rent, if any, that was payable by such tenant in the most recently completed percentage rent year under its Lease as to which the final amount of percentage rent, if any, that is owing has been determined (but with such adjustments, if any, as Seller and Buyer mutually and reasonably agree are appropriate due to any change in the manner of calculation of percentage rent that is owing from such tenant with respect to any period as to which a proration is applicable). Seller shall not receive any credit at Closing with respect to any unpaid accrued rents, percentage rents and reimbursements for common area maintenance charges, insurance premiums and other lease charges owing from tenants of the Property as of the Closing date. Seller shall not retain any security deposits or prepaid rent to offset any unpaid accrued rent or other unpaid amounts. With respect to any such unpaid amounts, (x) Seller shall retain the right, at its expense, to sue the applicable tenant for collection of any such unpaid amounts and, to the extent the applicable lease permits, collection costs and interest (and, in such regard, Buyer agrees to cooperate reasonably with any efforts by Seller to collect the aforesaid unpaid amounts; provided, however, Seller shall not be entitled to sue for possession), and provided further that Seller shall reimburse Buyer for any cost or expense incurred by Buyer in connection with such cooperation, and (y) if Buyer collects any such unpaid amounts, Buyer shall promptly pay such amounts to Seller (and in such regard, if Buyer receives any amount from a tenant of the Property as to which such tenant specifically informs Buyer in writing to which lease obligation such payment is to be applied, Buyer shall so apply such payment; if such tenant does not so inform Buyer relative to how a particular payment is to be applied, Buyer shall be entitled to apply such payment first, on account of past due amounts owed to Buyer; second, on account of current amounts owed to Buyer; and third, on account of past due amounts owed to Seller).

(c)  Expense prorations - Except insofar as the same constitute expenses pro ratable under subsection 8(a) or 8(b) above, utility charges and deposits, fuels and all other items of expense customarily prorated on the transfer of properties similar to the Property shall be prorated on an accrual basis as of the Closing date on the basis of the most recent ascertainable bills or on other reliable information with respect to each item of expense.  In the alternative Seller will provide Buyer with a certification that no additional proratable items exist with respect to the Property.

(d)  For purposes of calculating prorations and adjustments, Buyer shall be deemed to be in title to the Property, and therefore entitled to income therefrom and responsible for the expenses thereof, for the entire day on which the Closing occurs provided that Seller receives the funds due to Seller at Closing at or prior to 2:00 p.m., Atlanta, Georgia time, on the Closing date, it being understood and agreed that, if the funds are received after such time on the Closing date, Seller shall be deemed in title to the Property as aforesaid for the entire day on which the Closing occurs.  In the event of any computational mistake or error, the parties shall make an appropriate adjustment(s) in cash between them to correct such mistake or error promptly after the discovery thereof. Otherwise, Buyer and Seller agree to adjust Closing adjustments between the parties within 120-days after the applicable calendar year-end period. Any amounts due shall be paid by the other party within 15-days after receipt of notice of the amount due together with supporting documentation.

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(e)  The principal balance due and owing under the Note as of the date of Closing, together with accrued and unpaid interest under the Note to the date of Closing, shall be credited to Buyer at Closing. At Closing, Seller shall be credited in an amount equal to the real estate tax escrow held by Lender.

(f)  The obligations of Buyer and Seller set forth in this Section 8 shall survive the Closing.

9.             Costs to Buyer and Seller; Financing Costs.

(a)  Seller shall pay the following:

(i)the costs of the Survey (to the maximum expense of $5,000.00);

(ii)the costs of: the title commitment, the copies of documents of record, the issuance of the Title policy together with all Buyer required endorsements (to the maximum expense of $50,000.00); and the cost of any title curative endorsements;

(iii)one-half of all escrow fees and one-half of all “NY Style” closing fees;

(iv)all State, County and local or municipal transfer taxes;

(v)the cost of recording releases of any mortgage or other liens, or of any other instruments, that do not constitute Permitted Exceptions;

(vi)the costs of Seller’s counsel; and

(vii)the costs of the Broker (as hereinafter defined).

(b)  Buyer shall pay costs of Buyer’s counsel, all recording or filing fees (other than recording fees for which Seller is responsible as provided in subsection 9(a)(v) above), one-half of all escrow fees, and one-half of all “NY Style” closing fees, all Loan assumption fees payable to Lender, the costs of the Survey in excess of $5,000.00, and all title charges (except charges related to title curative endorsements) in excess of $50,000,00.

10.           Conditions Precedent to Buyer’s Obligation.

Buyer’s obligation to perform under this Agreement is subject to and contingent upon the following described matters. In the event such conditions are not satisfied, Buyer may terminate this Agreement by written notice to Seller prior to Closing, and upon any such termination the Earnest Money shall immediately be returned to Buyer and this Agreement shall be null and void, except for the provisions hereof that expressly survive the termination of this Agreement.

(a)  Title Condition of the Property.

The Title Company’s issuing or committing to issue the Title Policy insuring that fee simple title to the Property is vested in Buyer as required in subsection 6(d) hereof.

(b)  Completeness, Truth and Accuracy.

The completeness, truth and accuracy in all material respects, of the Rent Roll, and any certifications, schedules, covenants and statements prepared and executed by Seller as part of the Pre-Closing Deliveries, the

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completeness in all material respects of the Leases delivered by Seller as part of the Pre-Closing Deliveries, the completeness, truth and accuracy in all material respects, as of Closing, of the representations of Seller contained in Section 11 hereof, and the performance by Seller, to the extent possible by the date of Closing, of the covenants contained in Section 11 hereof. It shall be a condition to Buyer’s obligation to close with respect to the Property that, at the Closing, Seller shall deliver to Buyer a Certificate that shall confirm the truth and accuracy in all material respects, as of Closing, of Seller’s representations contained in this Agreement, and the representations contained in such certificate, as well as any continuing obligations of Seller hereunder, shall survive the Closing for a period of twelve (12) months.

(c)  Other Conditions.

The other conditions to Buyer’s obligation to close as set forth in subsection 7(a), Section 15, Section 16, or elsewhere in this Agreement, including the performance by Seller of all its obligations hereunder in all material respects, being satisfied.

(d)  Estoppels.

The receipt by Buyer of the tenant and REA estoppel letters described in Section 16(a), hereof.

(e)  Loan Assumption.

(i) that Seller shall not be in default under the Loan as of the date of Closing, (ii) that the Lender allows assumption of the Loan by Buyer, on such terms as are reasonably acceptable to Buyer (as determined by Buyer during the Due Diligence Period), and (iii) that Buyer receives the estoppel certificate, in form and substance reasonably acceptable to Buyer, described in Section 12 (b)(ix), hereof. (Buyer shall determine its satisfaction of the availability and form of the estoppel during the Due Diligence Period.) In the event such conditions are not satisfied as of the date of Closing, Buyer may terminate this Agreement by written notice to Seller prior to Closing, and upon any such termination the Earnest Money shall immediately be returned to Buyer and this Agreement shall be null and void. Interest accrued but unpaid (and not yet due) under the Note as of Closing shall be prorated between Buyer and Seller as of the date of Closing and thereafter paid by Buyer when due. Any prepaid charges under the Note and Loan shall be pro rated to the date of Closing, with Seller receiving a credit for the portion relating to the period after the date of Closing and for the real estate tax escrow held by Lender in connection with the Loan. Buyer and Seller agree to cause affiliates that may have signed or may be required to sign guaranties or other Loan Documents, to execute and deliver the documents required to effect assumption of the Loan by Buyer. Notwithstanding any provision herein to the contrary, if, at any time, Lender rejects Buyer as the transferee of the Loan or if Lender fails to approve Buyer as transferee of the Loan on or before the date of Closing, or if Buyer and Lender are not able to reasonably agree upon the form of Loan assumption documents, either Buyer or Seller may elect to terminate this Agreement by delivery of written notice to the other, and upon such termination by Buyer or Seller, the Earnest Money and all interest, if any, earned thereon shall then immediately be returned to Buyer and this Agreement shall be null and void.

Buyer hereby agrees, from and after the date of Closing, that it shall fully perform the obligations of Seller under the Loan Documents, and shall indemnify, defend and hold harmless Seller from and against any and all claims, actions, liabilities, liens, obligations, losses and costs (including without limitation reasonable attorneys’ fees) arising and accruing in connection with the Loan and the Loan Documents from and after the date of Closing, these obligations to survive Closing under this Agreement and shall not be merged with delivery of the Deed. Seller agrees to indemnify, defend and hold harmless Buyer (or its nominee) from and against any and all claims, actions, liabilities, liens, obligations, losses and costs (including without limitation reasonable attorneys’ fees) arising and accruing in connection with the Loan and the Loan Documents prior to the date of Closing, these obligations to survive Closing under this Agreement and shall not be merged with delivery of the Deed. Buyer also agrees to

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cooperate with Seller’s efforts to obtain the release by Lender of any liability of Seller under the Loan Documents from and after the date of Closing.

11.  Representations and Covenants of Seller

Seller hereby makes the following representations and covenants to Buyer with regard to the Property, all of which representations and covenants shall be deemed remade as of Closing and shall survive the Closing for a period of twelve (12) months:

(a)  As of the date hereof, (i) Seller, to its knowledge, is not aware of and has received no written building code violation notices with respect to the Property (other than notices of violations which have been removed or corrected); and (ii) Seller, to its knowledge, is not aware of and has received no written notices of any action or governmental proceeding in eminent domain, or for a zoning change, which would affect the Property; and (iii) Seller to its knowledge, is not aware of any structural problems in the improvements constructed upon the Property.

(b)  As of the date hereof, there are no leases or rental agreements affecting the Property other than the Leases delivered by Seller to Buyer pursuant to subsection 5(a) above. The Leases do not grant any tenant a right to purchase all or any part of the Property.  Between the date hereof and the earlier of the Closing date or the termination of this Agreement, Seller shall not amend, modify or terminate the Leases, or enter into new leases, of space at the Property, other than in accordance with subsection16(b) below.  As of the date hereof, Seller is the holder of all of the landlord’s right, title and interest in, to and under the Leases. To the best of Seller’s knowledge, Seller has not received, nor is Seller aware of, any claim from any tenant under the Leases alleging any type of uncured default by the landlord under the Leases or demanding any work or payment from landlord.

(c)  Except as may be disclosed in the Pre-Closing Deliveries, there are no persons employed by Seller in connection with the operation of the Property, and except as may be disclosed in the Pre-Closing Deliveries, there are no maintenance, advertising, management, leasing, employment, or service contracts affecting the Property that will be in effect at Closing unless expressly assumed in writing by Buyer. Otherwise, Seller shall terminate any such employee and any such contracts (not expressly assumed by Buyer) at or prior to Closing.

(d)  That (i) Seller has the capacity and requisite authority to enter into and carry out this Agreement and the transactions contemplated hereby and will provide evidence thereof to Buyer at Closing; (ii) Seller owns fee simple title to the Property subject to all matters of record; and (iii) no third party has any right to purchase all or any part of Property.

(e)  Except as otherwise expressly provided herein, Seller shall not further encumber the Property or any of the improvements or personal property located thereon. Between the date of this Agreement and the earlier of the Closing date or the termination of this Agreement, Seller shall not voluntarily create any exception to title to the Property other than in accordance with subsection 16(b) below.

(f)  To the best of Seller’s knowledge, as of the date hereof, there is no suit, action or arbitration, or legal or other proceeding or governmental investigation, pending which materially and adversely affects the Property.

(g)  To the best of Seller’s knowledge, as of the date hereof, there exists at the Property no violation of any applicable federal, state or local law, statute, ordinance, rule or regulation regulating the use, generation, storage, handling or disposal of any hazardous wastes, toxic, hazardous or dangerous substances or similar substances or materials defined as hazardous, toxic or environmentally unsafe under any of the aforesaid laws, statutes, ordinances, rules or regulations.

(h)  No change in the manner of calculation of percentage rent will occur from the date of delivery of the

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Pre-Closing Deliveries under Section 5 hereof, through the date of Closing, except as expressly set forth in the Leases.

(i) Seller hereby agrees to indemnify, defend and hold harmless Buyer from and against any and all claims, losses, costs and expenses arising in regard to any unpaid sales lien owed to the State of Georgia Department of Revenue and based upon sales made during the period of time the Property was owned by Seller.

“Seller’s knowledge,” is hereby defined as the knowledge of Leilani Jones, manager of the Property, and Edward M. Harrington, President of SDB.

12.  Possession; Closing Documents.

(a)  Possession. Full possession of the Property (subject to the rights of the tenants under the Leases and any other Permitted Exceptions) shall be delivered to Buyer by Seller at Closing.

(b)  Seller’s Closing Documents. At Closing, Seller shall deliver, or cause to be delivered, to Buyer the following, each in form reasonably acceptable to Buyer:

(i) A Special Warranty Deed with regard to the Property.

(ii) An Assignment of Leases executed by Seller and in the form of Exhibit B attached hereto and relating to the Leases (which instrument shall also be executed by Seller’s managing agent, if any), and the original Leases.

(iii) As to any warranties for materials and workmanship (e.g. roof, HVAC, parking lot-including, by way of illustration and not limitation, the roof warranty for materials and workmanship for the Ingles demised premises), copies thereof and an assignment executed by Seller of all of its right, title and interest in, to and under the same, and also the original transfer of such warranties assented to by the material and/or service provider at no cost or expense to Buyer.

(iv) All as-built plans and specifications, if any, relative to the Property in the possession or control of Seller.

(v) All certificates of occupancy, building permits and similar governmental approvals affecting the Property.

(vi) A Closing and Proration Statement conforming to the proration and other relevant provisions of this Agreement.

(vii) Letters to the tenants of the Property in the form attached hereto as Exhibit I, and made a part hereof.

(viii) The tenant estoppel letters and REA estoppel letters required to be delivered pursuant to subsection 16(a) hereof.

(ix) An estoppel certificate from the Lender addressed to Buyer, stating: (a) that no default then exists under the terms of the Loan, and (b) the amount of principal and interest due and owing under the Loan at the time of Closing, and (c) the amount of the real estate tax deposit escrow then being held by Lender pursuant to the terms of the Loan.

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(x) An Audit Letter addressed to Buyer’s accountants in the form attached hereto as Exhibit G, and made a part hereof.

(xi) Such other documents and instruments as may reasonably be required by Buyer and the Title Company and which may be necessary to consummate this transaction and otherwise to effect the agreements of the parties hereto.

(c) Buyer’s Closing Documents.

At Closing, Buyer shall deliver, or cause to be delivered, to Seller, the following in form and substance reasonably acceptable to Seller:

(i) Cash on account of the Purchase Price (by wire transfer or other immediately available United States funds) as required by Section 3 above.

(ii) An Assignment and Assumption of the Leases executed by Buyer and in the form of Exhibit B attached hereto, and relating to the Leases in effect at Closing.

(iii) An assumption by Buyer of the warranties and contracts that are being assigned to Buyer.

(iv) A Closing and Proration Statement conforming to the proration and other relevant provisions of this Agreement.

(v) The Loan assumption documentation required by Lender and the Title Company.

(vi) Such other documents and instruments as reasonably may be required by Seller and the Title Company and which may be necessary to consummate this transaction and otherwise to effect the agreements of the parties hereto.

13.  Default.

(a)  Seller Default Discovered Prior to Closing. If, on or before the Closing date, (x) Buyer is or becomes aware that any of the representations and warranties made by Seller in this Agreement, or in any document or instrument executed by Seller and delivered to Buyer in connection with this Agreement or the Closing hereunder, including the representations made in Section 11 hereof, are not true and correct, or (y) Buyer is or becomes aware that there is any material inaccuracy in any, certifications, schedules, covenants or statements prepared and executed by Seller as part of the Pre-Closing Deliveries, or (z) Seller has failed to perform in any respect any of the covenants, agreements and indemnities contained herein or in any of the aforesaid other documents and instruments to be performed by him, her or it within the time for performance as specified herein (including Seller’s obligation to close) or therein, then, provided Buyer has notified Seller in writing of same and Seller has failed to cure such condition or circumstance or non-performance within 5 days of receipt of such notice, Buyer’s remedies on account of any such breach shall be to:

(i) terminate this Agreement by delivering written notice of Buyer’s election to terminate to Seller, in which event the Earnest Money (and all interest thereon) shall be returned immediately to Buyer and neither Seller nor Buyer shall have any further liability to the other except for the Post-Termination Obligations except that Seller will reimburse Buyer for all of its actual costs and expenses incurred in connection with its due diligence of the Property (not to exceed $100,000.00); or

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(ii) complete the purchase of the Property notwithstanding Seller’s default, in which event Seller shall reimburse Buyer for all of its damages incurred as a result of Seller’s breach hereunder (not to exceed $100,000.00); or

(iii) waive any claim for damages (except for reimbursement for costs and expenses as set forth in this clause) and file an action (the “Specific Performance Action”) for specific performance of this Agreement to compel Seller to close in accordance with the terms of this Agreement, and Buyer shall be entitled to reimbursement for all of its costs and expenses, including reasonable attorneys’ fees, incurred in connection with such Specific Performance Action, if it prevails.

(b)  Buyer Default. In the event that Buyer shall have failed to perform in any material respect any of the covenants, agreements and indemnities contained herein to be performed by Buyer within the time for performance as specified herein (including Buyer’s obligation to close), and provided Seller has notified Buyer in writing of the same and Buyer has failed to cure such condition or circumstance or non-performance within 5-days of receipt of such notice, Seller’s sole remedy on account thereof shall be to terminate this Agreement by delivering written notice of its election to so terminate to Buyer, in which event the Earnest Money (not including any interest thereon which shall be paid to Buyer) shall be paid to Seller as liquidated damages, it being understood that Seller’s actual damages in the event of such default are difficult to ascertain and that such proceeds represent the parties’ best current estimate of such damage and thereupon neither party shall have any further obligation to the other under this Agreement except for the Post-Termination Obligations.

14.  Brokerage.

Seller and Buyer acknowledge that Steven D. Bell & Company (the “Broker”) has participated as a broker or consultant to Seller in this transaction. Seller shall pay the Broker’s commission from the Closing Escrow pursuant to an agreement between Seller and Broker. In addition, at or prior to Closing, Seller shall pay any and all leasing fees and commissions due and payable in connection with any Lease. Buyer and Seller each represent and warrant to the other that they have dealt with no other brokers, finders or intermediaries of any kind in connection with this transaction. Seller does hereby indemnify and agree to hold Buyer harmless from and against any and all causes, claims, demands, losses, liabilities, fees, commissions, settlements, judgments, damages, expenses and fees (including, without limitation, reasonable attorneys’ fees and court costs) in connection with any claim for commissions, fees, compensation or other charges relating in any way to any Lease and this transaction, or the consummation thereof, which may be made by any person, firm or entity (including Broker) as the result of any of Seller’s acts or the acts of Seller’s representatives, or as a result of Seller’s breach of its representations to Buyer contained in this Section. Buyer does hereby indemnify and agree to hold Seller harmless from and against any and all causes, claims, demands, losses, liabilities, fees, commissions, settlements, judgments, damages, expenses and fees (including, without limitation, reasonable attorney’s fees and court costs) in connection with any claim for commissions, fees, compensation or other charges relating in any way to this transaction, or the consummation thereof, which may be made by any person, firm, or entity (excluding Broker) as the result of any of Buyer’s acts or the acts of Buyer’s representatives, or as a result of Buyer’s breach of its representations to Seller contained in this Section. The obligations of Buyer and Seller under this Section 14 shall survive any termination of or Closing under this Agreement.

15.  Buyer’s Condition Precedent as to Property Tenancies.

(a)  It is a condition to Buyer’s obligation to close that as of the date of Closing: (i) all Anchor and National Credit Tenant spaces (as hereinafter defined) and all Non-Anchor/Non-Credit spaces (as hereinafter defined) be leased to tenants under leases with all Tenant Conditions (as hereinafter defined) having been fulfilled, pursuant to the Rent Roll attached hereto as Exhibit E, and made a part hereof; provided, however an annual vacancy factor attributable to Non-Anchor/Non-Credit Tenants of $35,124 Base Rent and $6,459 CAM/Insurance/Real Estate

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Tax/Management Fee reimbursements (the “Reimbursements”) shall be acceptable (the “Maximum Threshold”), and (ii) all tenant improvement allowances and leasing commissions for any tenant lease shall have been fully paid and discharged (or credited to Buyer at Closing).

(b)  For purposes hereof, the “Non-Anchor/Non-Credit Tenants” shall be defined as: Dollar Exclusive, Fantastic Sams, Motherhood Maternity, Cellular Depot, Serenity Spa & Salon; The School Box, Oreck Home Care, Gecko Grill, Scrap Happy, Nails & Tan, Planet Beach, Mattress King, Orthodontic Centers, Hong Kong Cafe, Woody’s Bar B Que, Dessert Factory and Water Sports South and the Anchor and National Credit spaces shall include all other tenants on the Rent Roll.

(c)  For purposes hereof, the term “Tenant Conditions” for any Property space gross leaseable area shall be collectively defined as: (i) a signed lease with a tenant, and (ii) the tenant open for business to the public with a fully-stocked store, and (iii) the tenant paying Base Rent and Reimbursements pursuant to the Rent Roll, and (iv) all the leasing commissions and tenant improvement allowances having either been paid by Seller orcredited to Buyer, (v) no material default on the part of landlord or tenant; (v) a certificate of occupancy or its equivalent issued by the local governmental authorities for such tenant’s demised premises; and (vi) receipt by Buyer of an acceptable estoppel certificate (as defined in Section 16) from the tenant.

(d)  The condition contained in 15 (a) above shall be deemed to have been met if:

(i)            In the event that, on the date of Closing, the actual annual tenant vacancy at the Property exceeds the value of $35,124 Base Rent and $6,459 Reimbursements but is less than $465,194 Base Rent and $128,228 Reimbursements, then Seller agrees that it will “Master Lease” gross leaseable area to the extent necessary to reach the Maximum Threshold, for a period of two years. Seller shall place in escrow an amount equal to two years worth of Base Rent and Reimbursements for the vacant spaces (as determined at Closing pursuant to the pro forma rental rates described by the Rent Roll), but no greater than the amount necessary to reach the Maximum Threshold, plus leasing commissions calculated at $4 per square foot and tenant improvements calculated at $15 per square foot. Buyer may draw upon the escrow monthly following Closing (prorated for any partial month). In the event that any space is leased following Closing then, at the time the Tenant Conditions are fulfilled for such space, an amount equal to the unused Base Rent, Reimbursements and any unused leasing commission and tenant improvement cost for such space, shall be remitted to Seller. Seller’s obligations pursuant to the Master Lease shall not exceed the amount in escrow and shall terminate at the earlier of the time the Maximum Threshold is reached or two years following Closing; or

(ii)           In the event that, on the date of Closing, the actual annual tenant vacancy at the Property equals or exceeds the value of $465,194 Base Rent and $128,228 Reimbursements, then Buyer shall have the option of terminating this Agreement and receiving an immediate refund of its Earnest Money.

16.  Seller’s Obligations Regarding the Leases

(a)  It shall be conditions to Buyer’s obligation to close with respect to the Property that on or prior to ten (10) days before the date of Closing under this Agreement, Buyer shall have received: (i) an estoppel certificate from BJ’s Wholesale Club, Ross, Marshall’s, Staples, Michaels, Bed, Bath & beyond, PetsMart, Books A Million, Famous Footwear, Pier One Imports, Dress Barn, Hibbets, Belk, and Longhorn (collectively, the “Anchors”), inform and substance reasonably acceptable to Buyer, and (ii) from each tenant at the Property (other than Anchors) comprising no less than 85% of the remaining (not including Anchors) Property gross leasable area (the “85% Threshold”), an estoppel certificate, substantially in the form of Exhibit C, attached hereto and by this reference made a part hereof, with non-material changes thereto, or in another form reasonably acceptable to Buyer (the Anchors may deliver their typical forms of estoppel and receipt of guarantor estoppels shall not be a condition of closing except in the case of an anchor lease guarantor); and (iii) a Seller estoppel certificate for any non-Anchor

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tenant not delivering an estoppel once the 85% Threshold has been met, and (iv) a REA estoppel certificate substantially in the form of Exhibit D, attached hereto and made a part hereof, from Target and from each other party to any reciprocal easement agreement (REA) or like-agreement affecting the Property. Buyer shall also have the right to contact any tenant or REA party if such tenant or REA party does not deliver an estoppel certificate or if the estoppel certificate delivered by such tenant or REA party contains material changes to the required form. Seller shall use its best efforts to resolve material changes between the estoppel certificate furnished to each tenant and REA party and the estoppel certificate received from any tenant and REA party.

(b)  Between the date of this Agreement and the earlier of the Closing or the termination of this Agreement, Seller shall not be permitted to amend, modify or terminate any Lease affecting all or any portion of the Property, or to enter into new leases of space at the Property, without first obtaining Buyer’s prior written approval which approval shall not be unreasonably withheld or delayed and shall be deemed approved if no response from Buyer is received by Seller within 5-business days of Buyer’s receipt of same.

17.  Indemnity.

From and after the date of Closing, (a) Seller agrees to indemnify, protect, defend and hold Buyer, its directors, officers, employees, partners, lenders and agents harmless from and against all claims, actions, losses, damages, costs and expenses, including, but not limited to, reasonable attorney’s fees and court costs and liabilities (except those caused solely by the willful misconduct or negligent acts or omissions of Buyer or its directors, officers, employees, partners, lenders and agents), arising out of the ownership and operation of the Property prior to the Closing date, whether arising in contract, tort, or related to the actual or alleged injury to, or death of, any person or loss of or damage to property in or upon the Property; and (b) Buyer agrees to indemnify, protect, defend and hold Seller, its directors, officers, partners, employees, lenders and agents harmless from and against all claims, actions, losses, damages, costs and expenses, including, but not limited to, reasonable attorney’s fees and court costs and liabilities (except those caused solely by the willful misconduct or negligent acts or omissions of Seller or its directors, officers, partners, employees, lenders and agents), arising out of the ownership and operation of the Property by Buyer from and after the Closing date, whether arising in contract, tort, or related to the actual or alleged injury to, or death of, any person or loss of or damage to property in or upon the Property.

18.  Miscellaneous

(a)  All notices, consents and approvals required by this Agreement shall be either: (i) personally delivered; or (ii) sent via facsimile transmission; or (iii) sent by overnight courier for next-business day delivery via Federal Express, UPS, Purolator or another national reputable courier. Said notices, consents and approvals shall be deemed received on the date the same are actually received or delivery thereof is refused. Said notices, consents and approvals shall be sent to the parties hereto at the following addresses, unless otherwise notified in writing:

TO SELLER:	c/o Steven D. Bell & Co. 823 North Elm Street, Suite 200 Greensboro, NC 27401 Attn: Mr. Shoffner Allison Facsimile: 336-378-9705
Copy to:	Schell Bray Aycock Abel & Livingston P.L.L.C. 230 North Elm Street, Suite 1500 Greensboro, NC 27401 Attn: Ms. Barbara R. Christy Facsimile: 336-370-8830

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TO BUYER:	Inland Real Estate Acquisitions, Inc. 2901 Butterfield Road Oak Brook, Illinois 60523 Attn: Jason Lazarus Facsimile: 678-996-2140 and 630-218-4935
Copy to:	The Inland Real Estate Group, Inc. 2901 Butterfield Road Oak Brook, Illinois 60523 Attn: General Counsel Facsimile: 630-218-4900 and 630-571-2360

(b)  Waiver of Jury Trial.

Each of Seller and Buyer hereby expressly waives any right to trial by jury of any claim, demand, action or cause of action (i) arising under this Agreement or any other instrument executed or delivered in connection herewith or (ii) in any way connected with or related or incidental to its dealings with respect to this Agreement or any other instrument executed or delivered in connection herewith, or the transactions related hereto or thereto, in each case whether now existing or hereafter arising, and whether sounding in contract or tort or otherwise; and each of Seller and Buyer hereby agrees and consents that any such claim, demand, action or cause of action shall be decided by court trial without a jury.

(c)  Entire Agreement and Amendments.

This Agreement, together with any Exhibits referred to herein, constitute the entire understanding between the parties hereto and supersedes any and all prior arrangements or understandings between the parties. This Agreement can be amended only by a writing signed by Buyer and Seller.

(d)  Exhibits.

All exhibits attached hereto are hereby incorporated by reference and made a part hereof.

(e)  Insurance; Destruction of Improvements.

Between the date of this Agreement and the earlier of the Closing date or the termination of this Agreement, Seller agrees to maintain with respect to the Property its existing casualty insurance with replacement cost and agreed amount coverage.

If prior to Closing all or any part of the Property is destroyed or damaged or is taken by condemnation, eminent domain or other governmental acquisition provisions, then the following procedues shall apply:

(i)If the cost of repair or replacement or the value of the governmental taking is Five Hundred Thousand Dollars ($500,000.00) or less in the reasonable opinion of Buyer’s and Seller’s respective engineering consultants, and the Leases of the Property are not terminable on account thereof (assuming any necessary repairs, replacements or alterations required under the Leases are

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diligently pursued by the landlord thereunder) or, if any Leases is so terminable, the tenant under such Leases has waived its termination rights and no abatement of rent occurs as a result of the damage, destruction or condemnation, Buyer shall close and take the Property as diminished by such events with no reduction in the Purchase Price, and Seller shall assign the right to all casualty insurance and condemnation proceeds due with respect to such destruction, damage or taking to Buyer, as well as, to the extent the same are assignable, the proceeds and benefits under any rent loss or business interruption policies attributable to the period following the Closing and deductibles.

(ii)If the cost of repair or replacement or the value of the governmental taking is greater than Five Hundred Thousand Dollars ($500,000.00) in the reasonable opinion of Buyer’s and Seller’s respective engineering consultants, or the Leases are terminable on account thereof (assuming any necessary repairs, replacements or alterations required under the Leases are diligently pursued by the landlord thereunder) and the tenant under such Lease has not waived its termination rights, or if an abatement of rent occurs as a result of the damage, destruction or condemnation, then Buyer, at its sole option, may elect either to (x) terminate this Agreement by written notice to Seller and receive an immediate return of the Earnest Money (and all interest thereon) and neither party shall have any further liability to the other hereunder except for the Post-Termination Obligations; or (y) accept an assignment of Seller’s rights to all casualty insurance and condemnation proceeds with respect thereto with no reduction in the Purchase Price, it being understood and agreed that, in such event, Seller shall cooperate with Buyer in the adjustment and settlement of the insurance or condemnation claim. The proceeds and benefits under any rent loss or business interruption policies attributable to the period following the Closing and deductibles shall likewise, to the extent the same are assignable, be transferred and paid over to Buyer.

(iii)In the event of a dispute between Seller and Buyer with respect to the cost of repair, restoration or replacement with respect to the matters set forth in this subsection 18(e), an engineer designated by Seller and an engineer designated by Buyer shall select an independent engineer licensed to practice in the jurisdiction where such Property is located who shall resolve such dispute. All fees, costs and expenses of the engineer so selected shall be shared equally by Buyer and Seller.

(f)  Time of the Essence.

Time is of the essence in connection with all dates or periods of time referred to herein.

(g)  Choice of Law.

This Agreement is to be governed by, and construed in accordance with, the laws of the State of Georgia.

(h)  Successors and Assigns.

Except as otherwise provided herein, the provisions and covenants contained herein shall inure to and be binding upon the heirs, successors and assigns of the parties hereto. However, Buyer shall have no right to assign any of its rights, privileges, duties or obligations under this Agreement prior to Closing, without the prior written consent of Seller in its sole discretion. Notwithstanding the foregoing, Buyer shall be permitted, without Seller’s consent, to assign its rights, privileges, duties and obligations under this Agreement to an entity which is an affiliate of The Inland Real Estate Group, Inc. Promptly following, and as a condition to, any assignment by Buyer permitted under this subsection 18(h), Buyer shall deliver to Seller an assumption by the assignee of all of Buyer’s duties and obligations under this Agreement. In the event Seller assigns its rights and obligations under this Agreement, the liability of Seller shall in no way be affected and the liability of the Seller for the representations, warranties and

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covenants made by the Seller herein shall continue as though no such assignment had been made.

(i)  Section Headings.

The headings of the Sections of this Agreement are inserted solely for convenience of reference, and are not intended to govern, limit or aid in the construction of any term or provision hereof.

(j)  Waiver.

No claim of waiver, consent or acquiescence with respect to any provision of this Agreement shall be made against either party except on the basis of a written instrument executed by or on behalf of such party. The party for whose benefit a condition is herein inserted shall have the unilateral right to waive such condition.

(k)  Further Actions.

Each of Buyer and Seller agrees to execute such further documents, and take such further actions, as may reasonably be required to carry out the provisions of this Agreement, or any agreement or document relating hereto or entered into in connection herewith. In addition, each of Buyer and Seller agrees to use reasonable efforts (not including, without limitation, the prosecution of any litigation or other actions outside of the ordinary course of business) to cause any conditions to its obligation to close to be satisfied.

(l)  Neutral Construction.

Each of the parties hereto has been involved in the negotiation, review, and execution of this Agreement and each has had the opportunity to receive independent legal advice from attorneys of its choice with respect to the advisability of making and executing this Agreement. In the event of any dispute or controversy regarding this Agreement, the parties hereto shall be considered to be the joint authors of this Agreement and no provision of this Agreement shall be interpreted against a party hereto because of authorship.

(m)  Tax Free Exchange.  Each party hereby agrees to take reasonable actions at Closing as are reasonably necessary to help the other to effectuate a like-kind exchange of the Property pursuant to §1031 of Internal Revenue Code (the “Code”). Provided, however, that in no event shall the non-requesting party be required to sign any document, nor take title to any other real property, nor to incur any additional expenses or liability in order to effectuate the like-kind exchange. In addition, except as hereinafter provided, the Closing shall not be delayed by the requesting party. Upon notice to Buyer within 15-days prior to the date of Closing, Seller shall have the one-time right to delay the date of Closing for a period not to exceed 45-days the purpose of effectuating its §1031 like-kind exchange. Seller or Buyer, as the case may be, agrees to indemnify, defend and hold the other party harmless from and against any and all costs, expenses, claims and other liabilities of any kind arising with regard to the effectuation of a tax free exchange as described herein. Notwithstanding anything to the contrary provided herein, the non-requesting party makes no representations or warranties as to the tax treatment of the transaction contemplated hereby or the ability of the transaction contemplated to qualify for like-kind exchange treatment pursuant to § 1031 of the Code. In the event both parties desire to effectuate a like-kind exchange as described herein, each party shall pay any and all costs associated with their respective transactions.

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IN WITNESS WHEREOF, Buyer and Seller have executed this document as of the day and year first herein above written.

BUYER:	Inland Real Estate Acquisitions, Inc., an Illinois corporation,
	By:	/s/ Jason A. Lazarus
	Jason A. Lazarus
	Authorized Agent
ON BEHALF OF ALL SELLERS:	Steven D. Bell & Company,
	a North Carolina corporation, as agent
	By:	/s/ Edward M. Harrington
	Name:		Edward M. Harrington
	As Its:		President

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EX-10.475

Exhibit 10.475

Henry Towne Center

Loan No. 50-2753516

PROMISSORY NOTE

$36,000,000.00 January 8, 2003

FOR VALUE RECEIVED, the undersigned, HENRY TOWN CENTER, LLC, a Georgia limited liability company, ALPHA SEVEN, LLC, a Delaware limited liability company, ELLISTON HENRY TOWN CENTER, LLC, a Delaware limited liability company, OWEN HENRY TOWN CENTER, LLC, a Delaware limited liability company, DSCONGDONA, LLC, a Delaware limited liability company, JWCONGDONA, LLC, a Delaware limited liability company, KCVANSTORYA, LLC, a Delaware limited liability company, ALCONGDONA, LLC, a Delaware limited liability company, SCTERRYA, LLC, a Delaware limited liability company, JRCONGDON,JR.A, LLC, a Delaware limited liability company, SPENCE HENRY TOWN CENTER, LLC, a Delaware limited liability company, JAY HENRY TOWN CENTER, LLC, a Delaware limited liability company (together, jointly and severally, “Maker”), having an address at 823 North Elm Street, Suite 200, Greensboro, North Carolina 27401, promises to pay to the order of WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association (“Payee”), at the office of Payee at One Wachovia Center, 301 South College Street, TW-16, Charlotte, North Carolina 28288-0166, or at such other place as Payee may designate to Maker in writing from time to time, the principal sum of THIRTY-SIX MILLION AND NO/100 DOLLARS ($36,000,000.00), together with interest on so much thereof as is from time to time outstanding and unpaid, from the date of the advance of the principal evidenced hereby, at the rate of five and forty-two one hundredths percent (5.42%) per annum (the “Note Rate”), together with all other amounts due hereunder or under the other Loan Documents (as defined herein), in lawful money of the United States of America, which shall at the time of payment be legal tender in payment of all debts and dues, public and private.

ARTICLE I - TERMS AND CONDITIONS

1.1Computation of Interest. Interest shall be computed hereunder based on a 360-day year and based on the actual number of days elapsed for any period in which interest is being calculated. The first interest accrual period hereunder shall commence on and include the date that principal is advanced hereunder and shall end on and include the next tenth (10^th) day of a calendar month, unless principal is advanced on the tenth (10^th) day of a month, in which case the first interest accrual period shall consist of only such tenth (10^th) day. Each interest accrual period thereafter shall commence on the eleventh (11^th) day of each calendar month during the term of this Note and shall end on and include the tenth (10^th) day of the next occurring calendar month.

1.2Payment of Principal and Interest. Payments in federal funds immediately available at the place designated for payment received by Payee prior to 2:00 p.m. local time on a day on which Payee is open for business at said place of payment shall be credited prior to close of business, while other payments, at the option of Payee, may not be credited until immediately available to Payee in federal funds at the place designated for payment prior to 2:00 p.m. local time on a day on which Payee is open for business. Interest only shall be payable in consecutive monthly installments as set forth on Schedule A attached hereto, beginning on the eleventh (11^th) day of the first full calendar month following the date of this Note (the “First Payment Date”), and continuing on the eleventh (11^th) day of each and every calendar month thereafter through and including July 11, 2004. Thereafter, principal and interest shall be payable in consecutive monthly installments of $202,600.76 each, beginning on August 11, 2004 (each, a “Payment Date”), and continuing on the eleventh day of each and every calendar month thereafter through and-including December 11, 2012. On January 11, 2013 (the “Maturity Date”), the entire outstanding principal balance hereof, together with all accrued but unpaid interest thereon, shall be due and payable in full.

Maker hereby authorizes Payee to use its automated loan payment service pursuant to which on each Payment Date Maker shall have its monthly payments of principal and interest payments together with any other sums then due to Payee automatically drawn by Payee or its servicer in accordance with that certain Auto-Draft Request Form by and between Maker and Payee executed in connection with the Loan.

In the event that, on any Payment Date, there are insufficient funds in such account for sums due to Payee, then Payee shall be permitted to withdraw sums from such account on any day thereafter until such time as all payments due to Payee have been drawn from such account; provided, however, the foregoing shall in no event limit or otherwise modify Maker’s obligations to make payments of principal and interest and other sums due hereunder or under any other Loan Document.

1.3Application of Payments. So long as no Event of Default (as hereinafter defined) exists hereunder or under any other Loan Document, each such monthly installment shall be applied first, to any amounts hereafter advanced by Payee hereunder or under any other Loan Document, second, to any late fees and other amounts payable to Payee, third, to the payment of accrued interest and last to reduction of principal.

1.4Payment of “Short Interest”. If the advance of the principal amount evidenced by this Note is made on a date on or after the first (1^st) day of a calendar month and prior to the eleventh (11^th) day of a calendar month, Maker shall pay to Payee contemporaneously with the execution hereof interest at the Note Rate for a period from the date hereof through and including the tenth (10^th) of this calendar month. If the advance of the principal amount evidenced by this Note is made on a date after the eleventh (11^th) day of a calendar month and prior to or on the last day of a calendar month, Maker shall pay to Payee contemporaneously with the execution hereof interest at the Note Rate for a period from the date hereof through and including the tenth (10^th) of the immediately succeeding calendar month.

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1.5Prepayment; Defeasance.

(a)This Note may not be prepaid, in whole or in part (except as otherwise specifically provided herein), at any time. In the event that Maker wishes to have the Security Property (as hereinafter defined) released from the lien of the Security Instrument (as hereinafter defined), Maker’s sale option shall be a Defeasance (as hereinafter defined) upon satisfaction of the terms and conditions set forth in Section l.5(d) hereof. This Note may be prepaid in whole but not in part without premium or penalty on either of the three (3) Payment Dates occurring immediately prior to the Maturity Date provided (i) written notice of such prepayment is received by Payee not more than ninety (90) days and not less than thirty (30) days prior to the date of such prepayment, and (ii) such prepayment is accompanied by all interest accrued hereunder through and including the date of such prepayment and all other sums due hereunder or under the other Loan Documents. If, upon any such permitted prepayment on either of the three (3) Payment Dates occurring immediately prior to the Maturity Date, the aforesaid prior written notice has not been timely received by Payee, there shall be due a prepayment fee equal to, an amount equal to the lesser of (i) thirty (30) days’ interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid and (ii) interest computed at the Note Rate on the outstanding principal balance of this Note so prepaid that would have been payable for the period from, and including, the date of prepayment through the Maturity Date of this Note as though such prepayment had not occurred.

(b)If, prior to the third (3^rd) anniversary of the First Payment Date (the “Lockout Expiration Date”), the indebtedness evidenced by this Note shall have been declared due and payable by Payee pursuant to Article II hereof or the provisions of any other Loan Document due to a default by Maker, then, in addition to the indebtedness evidenced by this Note being immediately due and payable, there shall also then be immediately due and payable a sum equal to the interest which would have accrued on the principal balance of this Note at the Note Rate from the date of such acceleration to the Lock-out Expiration Date, together with a prepayment fee in an amount equal to the Yield Maintenance Premium (as hereinafter defined) based on the entire indebtedness on the date of such acceleration. If such acceleration is on or following the Lock-out Expiration Date, the Yield Maintenance Premium shall also then be immediately due and payable as though Maker were prepaying the entire indebtedness on the date of such acceleration. In addition to the amounts described in the two preceding sentences, in the event of any such acceleration or tender of payment of such indebtedness occurs or is made on or prior to the first (1st) anniversary of the date of this Note, there shall also then be immediately due and payable an additional prepayment fee of three percent (3%) of the principal balance of this Note. The term “Yield Maintenance Premium” shall mean an amount equal to the greater of (A) two percent (2.0%) of (the principal amount being prepaid, and (B) the present value of a series of payments each equal to the Payment Differential (as hereinafter defined) and payable on each Payment Date over the remaining original term of this Note and on the Maturity Date, discounted at the Reinvestment Yield (as hereinafter defined) for the number of months remaining as of the date of such

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prepayment to each such Payment Date and the Maturity Date. The term “Payment Differential” shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) twelve (12) and multiplied by (iii) the principal sum outstanding under this Note after application of the constant monthly payment due under this Note on the date of such prepayment, provided that the Payment Differential shall in no event be less than zero. The term “Reinvestment Yield” shall mean an amount equal to the lesser of (i) the yield on the U.S. Treasury issue (primary issue) with a maturity date closest to the Maturity Date, or (ii) the yield on the U.S. Treasury issue (primary issue) with a term equal to the remaining average life of the indebtedness evidenced by this Note, with each such yield being based on the bid price for such issue as published in the Wall Street Journal on the date that is fourteen (14) days prior to the date of such prepayment set forth in the notice of prepayment (or, if such bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly compounded nominal yield. In the event that any prepayment fee is due hereunder, Payee shall deliver to Maker a statement setting forth the amount and determination of the prepayment fee, and, provided that Payee shall have in good faith applied the formula described above, Maker shall not have the right to challenge the calculation or the method of calculation set forth in any such statement in the absence of manifest error, which calculation may be made by Payee on any day during the fifteen (15) day period preceding the date of such prepayment. Payee shall not be obligated or required to have actually reinvested the prepaid principal balance at the Reinvestment Yield or otherwise as a condition to receiving the prepayment fee.

(c)Partial prepayments of this Note shall not be permitted, except for partial prepayments resulting from Payee’s election to apply insurance or condemnation proceeds to reduce the outstanding principal balance of this Note as provided in the Security Instrument, in which event no prepayment fee or premium shall be due unless, at the time of either Payee’s receipt of such proceeds or the application of such proceeds to the outstanding principal balance of this Note, an Event of Default, or an event which, with notice or the passage of time, or both, would constitute an Event of Default, shall have occurred, which default or Event of Default is unrelated to the applicable casualty or condemnation, in which event the applicable prepayment fee or premium shall be due and payable based upon the amount of the prepayment. No notice of prepayment shall be required under the circumstances specified in the preceding sentence. No principal amount repaid may be reborrowed. Any such partial prepayments of principal shall be applied to the unpaid principal balance evidenced hereby but such application shall not reduce the amount of the fixed monthly installments required to be paid pursuant to Section 1.2 above. Except as otherwise expressly provided in Section 1.5(a) above, the prepayment fees provided above shall be due, to the extent permitted by applicable law, under any and all circumstances where all or any portion of this Note is paid prior to the Maturity Date, whether such prepayment is voluntary or involuntary, including, without limitation, if such prepayment results from Payee’s exercise of its rights upon Maker’s default and acceleration of the Maturity Date of this Note (irrespective of whether foreclosure proceedings have been commenced), and shall be in addition to any other sums due hereunder or under any of the other Loan Documents. No tender of a prepayment of this Note with respect to which a prepayment fee is due shall be effective unless such prepayment is accompanied by the applicable prepayment fee.

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(d)(i)On any Payment Date on or after the later to occur of (x) the Lockout Expiration Date, and (y) the day immediately following the date which is two (2) years after the “startup day,” within the meaning of Section 860G(a) (9) of the Internal Revenue Code of 1986, as amended from time to time or any successor statue (the “Code”), of a “real estate mortgage investment conduit,” within the meaning of Section 860D of the Code (a “REMIC Trust”), that holds this Note, and provided no Event of Default has occurred hereunder or under any of the other Loan Documents, at Maker’s option, Payee shall cause the release of the Security Property from the lien of the Security Instrument and the other Loan Documents (a “Defeasance”) upon the satisfaction of the following conditions:

(A)Maker shall give not more than ninety (90) days’ or less than sixty (60) days’ prior written notice to Payee specifying the date Maker intends for the Defeasance to be consummated (the “Release Date”), which date shall be a Payment Date.

(B)All accrued and unpaid interest and all other sums due under this Note and under the other Loan Documents up to and including the Release Date shall be paid in full on or prior to the Release Date.

(C)Maker shall deliver to Payee on or prior to the Release Date:

(1)a sum of money in immediately available funds (the “Defeasance Deposit”) equal to the outstanding principal balance of this Note plus an amount, if any, which together with the outstanding principal balance of this Note, shall be sufficient to enable Payee to purchase, through means and sources customarily employed and available to Payee, for the account of Maker, direct, non-callable obligations of the United States of America that provide for payments prior, but as close as possible, to all successive monthly Payment Dates occurring after the Release Date and to the Maturity Date, with each such payment being equal to or greater than the amount of the corresponding installment of principal and/or interest required to be paid under this Note (including, but not limited to, all amounts due on the Maturity Date) for the balance of the term hereof (the “Defeasance Collateral”), each of which shall be duly endorsed by the holder thereof as directed by Payee or accompanied by a written instrument of transfer in form and substance satisfactory to Payee in its sole discretion (including, without limitation, such instruments as may be required by the depository institution holding such securities or the issuer thereof, as the case may be, to effectuate book-entry transfers and pledges through the book-entry facilities of such institution) in order to perfect upon the delivery of the Defeasance Security Agreement (as hereinafter defined) the first priority security interest in the Defeasance Collateral in favor of Payee in conformity with all applicable state and federal laws governing granting of such security interests;

(2)a pledge and security agreement, in form and substance satisfactory to a prudent lender, creating a first priority security interest in favor of Payee in the Defeasance Collateral (the “Defeasance Security Agreement”), which shall

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provide, among other things, that any excess received by Payee from the Defeasance Collateral over the amounts payable by Maker hereunder shall be refunded to Maker promptly after each monthly Payment Date;

(3)a certificate of Maker certifying that all of the requirements set forth in this subsection 1.5(d)(i) have been satisfied;

(4)one or more opinions of counsel for Maker in form and substance and delivered by counsel which would be satisfactory to a prudent lender stating, among other things, that (i) Payee has a perfected first priority security interest in the Defeasance Collateral and that the Defeasance Security Agreement is enforceable against Maker in accordance with its terms, (ii) in the event of a bankruptcy proceeding or similar occurrence with respect to Maker, none of the Defeasance Collateral nor any proceeds thereof will be property of Maker’s estate under Section 541 of the U.S. Bankruptcy Code or any similar statute and the grant of security interest therein to Payee shall not constitute an avoidable preference under Section 547 of the U.S. Bankruptcy Code or applicable state law, (iii) the release of the lien of the Security Instrument and the pledge of Defeasance Collateral will not directly or indirectly result in or cause any REMIC Trust that then holds this Note to fail to maintain its status as a REMIC Trust and (iv) the defeasance will not cause any REMIC Trust to be an “investment company” under the Investment Company Act of 1940;

(5)evidence in writing from the applicable rating agencies to the effect that the collateral substitution will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance event for any securities issued in connection with the securitization which are then outstanding;

(6)a certificate in form and scope acceptable to Payee in its sole discretion from an acceptable accountant certifying that the Defeasance Collateral will generate amounts sufficient to make all payments of principal and interest due under this Note (including the scheduled outstanding principal balance of the Loan due on the Maturity Date);

(7)Maker and any guarantor or indemnitor of Maker’s obligations under the Loan Documents for which Maker has personal liability executes and delivers to Payee such documents and agreements as Payee shall reasonably require to evidence and effectuate the ratification of such personal liability and guaranty or indemnity, respectively;

(8)such other certificates, documents or instruments as Payee may reasonably require; and

(9)payment of all fees, costs, expenses and charges incurred by Payee in connection with the Defeasance of the Security Property and the purchase of the Defeasance Collateral, including, without limitation, all legal fees and costs

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and expenses incurred by Payee or its agents in connection with release of the Security Property, review of the proposed Defeasance Collateral and preparation of the Defeasance Security Agreement and related documentation, any revenue, documentary, stamp, intangible or other taxes, charges or fees due in connection with transfer of the Note, assumption of the Note, or substitution of collateral for the Security Property shall be paid on or before the Release Date. Without limiting Maker’s obligations with respect thereto, Payee shall be entitled to deduct all such fees, costs, expenses and charges from the Defeasance Deposit to the extent of any portion of the Defeasance Deposit which exceeds the amount necessary to purchase the Defeasance Collateral.

(D)In connection with the Defeasance Deposit, Maker hereby authorizes and directs Payee using the means and sources customarily employed and available to Payee to use the Defeasance Deposit to purchase for the account of Maker the Defeasance Collateral. Furthermore, the Defeasance Collateral shall be arranged such that payments received from such Defeasance Collateral shall be paid directly to Payee to be applied on account of the indebtedness of this Note. Any part of the Defeasance Deposit in excess of the amount necessary to purchase the Defeasance Collateral and to pay the other and related costs Maker is obligated to pay under this Section 1.5 shall be refunded to Maker.

(ii)Upon compliance with the requirements of subsection l.5(d)(i), the Security Property shall be released from the lien of the Security Instrument and the other Loan Documents, and the Defeasance Collateral shall constitute collateral which shall secure this Note and all other obligations under the Loan Documents. Payee will, at Maker’s expense, execute and deliver any agreements reasonably requested by Maker to release the lien of the Security Instrument from the Security Property.

(iii)Upon the release of the Security Property in accordance with this Section 1.5(d), Maker shall assign all its obligations and rights under this Note, together with the pledged Defeasance Collateral, to a newly created successor entity which complies, with the terms of Section 1.33 of the Security Instrument designated by Maker and approved by Payee in its sole discretion. Such successor entity shall execute an assumption agreement in form and substance satisfactory to Payee in its sole discretion pursuant to which it shall assume Maker’s obligations under this Note and the Defeasance Security Agreement. As conditions to such assignment and assumption, Maker shall (x) deliver to Payee an opinion of counsel in form and substance satisfactory to a prudent lender and delivered by counsel satisfactory to a prudent lender stating, among other things, that such assumption agreement is enforceable against Maker and such successor entity in accordance with its terms and that this Note and the Defeasance Security Agreement as so assumed, are enforceable against such successor entity in accordance with their respective terms, and (y) pay all costs and expenses (including, but not limited to, legal fees) incurred by Payee or its agents in connection with such assignment and assumption (including, without limitation, the review of the proposed transferee and the preparation of the assumption agreement and related documentation). Upon such assumption, Maker shall be relieved of its obligations hereunder, under the other Loan Documents other than as specified in Section 1.5(d)(i)(C)(7) above and under the Defeasance Security Agreement.

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1.6Security. The indebtedness evidenced by this Note and the obligations created hereby are secured by, among other things, that certain Deed to Secure Debt and Security Agreement (the “Security Instrument”) from Maker for the benefit of Payee, dated of even date herewith, covering property located in Henry County, Georgia. The Security Instrument, together with this Note and all other documents to or of which Payee is a party or beneficiary now or hereafter evidencing, securing, guarantying, modifying or otherwise relating to the indebtedness evidenced hereby, are herein referred to collectively as the “Loan Documents”. All of the terms and provisions of the Loan Documents are incorporated herein by reference. Some of the Loan Documents are to be filed for record on or about the date hereof in the appropriate public records.

ARTICLE II - DEFAULT

2.1Events of Default. It is hereby expressly agreed that should any default occur in the payment of principal or interest as stipulated above and such payment is not made on the date such payment is due, or should any other default not cured within any applicable grace or notice period occur under any other Loan Document, then an Event of Default (an “Event of Default”) shall exist hereunder, and in such event the indebtedness evidenced hereby, including all sums advanced or accrued hereunder or under any other Loan Document, and all unpaid interest accrued thereon, shall, at the option of Payee and without notice to Maker, at once become due and payable and may be collected forthwith, whether or not there has been a prior demand for payment and regardless of the stipulated date of maturity.

2.2Late Charges. In the event that any payment is not received by Payee on the date when due (subject to any applicable grace period), then, in addition to any default interest payments due hereunder. Maker shall also pay to Payee a late charge in an amount equal to five percent (5%) of the amount of such overdue payment.

2.3Default Interest Rate. So long as any Event of Default exists hereunder, regardless of whether or not there has been an acceleration of the indebtedness evidenced hereby, and at all times after maturity of the indebtedness evidenced hereby (whether by acceleration or otherwise), interest shall accrue on the outstanding principal balance of this Note, from the date due until the date credited, at a rate per annum equal to four percent (4%) in excess of the Note Rate, or, if such increased rate of interest may not be collected under applicable law, then at the maximum rate of interest, if any, which may be collected from Maker under applicable law (the “Default Interest Rate”), and such default interest shall be immediately due and payable.

2.4Maker’s Agreements. Maker acknowledges that it would be extremely difficult or impracticable to determine Payee’s actual damages resulting from any late payment or default, and such late charges and default interest are reasonable estimates of those damages and do not constitute a penalty. The remedies of Payee in this Note or in the Loan Documents, or at law or in equity, shall be cumulative and concurrent, and may be pursued singly, successively or together, in Payee’s discretion.

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2.5Maker to Pay Costs. In the event that this Note, or any part hereof, is collected by or through an attorney-at-law, Maker agrees to pay all costs of collection, including, but not limited to, reasonable attorneys’ fees.

2.6Exculpation. Notwithstanding anything in this Note or the Loan Documents to the contrary, but subject to the qualifications hereinbelow set forth, Payee agrees that:

(a)Maker shall be liable upon the indebtedness evidenced hereby and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of the security therefor, the same being all properties (whether real or personal), rights, estates and interests now or at any time hereafter securing the payment of this Note and/or the other obligations of Maker under the Loan Documents (collectively, the “Security Property”);

(b)if a default occurs in the timely and proper payment of all or any part of such indebtedness evidenced hereby or in the timely and proper performance of the other obligations of Maker under the Loan Documents, any judicial proceedings brought by Payee against Maker shall be limited to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and security interests now or at any time hereafter securing the payment of this Note and/or the other obligations of Maker under the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties or funds of Maker other than the Security Property, except with respect to the liability described below in this section; and

(c)in the event of a foreclosure of such liens, security titles, estates, assignments, rights or security interests securing the payment of this Note and/or the other obligations of Maker under the Loan Documents, no judgment for any deficiency upon the indebtedness evidenced hereby shall be sought or obtained by Payee against Maker, except with respect to the liability described below in this section; provided, however, that, notwithstanding the foregoing provisions of this section, Maker shall be fully and personally liable and subject to legal action (i) for proceeds paid under any insurance policies (or paid as a result of any other claim or cause of action against any person or entity) by reason of damage, loss or destruction to all or any portion of the Security Property, to the full extent of such proceeds not previously delivered to Payee, but which, under the terms of the Loan Documents, should have been delivered to Payee, (ii) for proceeds or awards resulting from the condemnation or other taking in lieu of condemnation of all or any portion of the Security Property, to the full extent of such proceeds or awards not previously delivered to Payee, but which, under the terms of the Loan Documents, should have been delivered to Payee, (iii) for all tenant security deposits or other refundable deposits paid to or held by Maker or any other person or entity in connection with leases of all or any portion of the Security Property which are not applied in accordance with the terms of the applicable lease or other agreement, (iv) for rent and other payments received from tenants under leases of all or any portion of the Security Property paid more than one (1) month in advance, (v) for rents, issues, profits and revenues of all or any portion of the Security Property received or applicable to a period after the

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occurrence of any Event of Default or any event which, with notice or the passage of time, or both, would constitute an Event of Default, hereunder or under the Loan Documents which are not either applied to the ordinary and necessary expenses of owning and operating the Security Property or paid to Payee, (vi) for waste committed on the Security Property, damage to the Security Property as a result of the intentional misconduct or gross negligence of Maker or any of its principals, officers, general partners or members, any guarantor, any indemnitor, or any agent or employee of any such person, or any removal of all or any portion of the Security Property in violation of the terms of the Loan Documents, to the full extent of the losses or damages incurred by Payee on account of such occurrence, (vii) for failure to pay any valid taxes, assessments, mechanic’s liens, materialmen’s liens or other liens which could create liens on any portion of the Security Property which would be superior to the lien or security title of the Security Instrument or the other Loan Documents, to the full extent of the amount claimed by any such lien claimant except, with respect to any such taxes or assessments, to the extent that funds have been deposited with Payee pursuant to the terms of the Security Instrument specifically for the applicable taxes or assessments and not applied by Payee to pay such taxes and assessments, (viii) for all obligations and indemnities of Maker under the Loan Documents relating to hazardous or toxic substances or radon or compliance with environmental laws and regulations to the full extent of any losses or damages (including, but not limited to, those resulting from diminution in value of any Security Property) incurred by Payee as a result of the existence of such hazardous or toxic substances or radon or failure to comply with environmental laws or regulations, (ix) for fraud, material misrepresentation or failure to disclose a material fact by Maker or any of its principals, officers, general partners or members, any guarantor, any indemnitor or any agent, employee or other person authorized or apparently authorized to make statements, representations or disclosures on behalf of Maker, any principal, officer, general partner or member of Maker, any guarantor or any indemnitor, to the full extent of any losses, damages and expenses of Payee on account thereof, (x) for replacing the manager of the Security Property without the Payee’s prior written consent to the full extent of any losses, damages and expenses of Payee on account thereof, and (xi) for any partition of the Security Property to the full extent of any losses, damages and expenses of Payee on account thereof. References herein to particular sections of the Loan Documents shall be deemed references to such sections as affected by other provisions of the Loan Documents relating thereto. Nothing contained in this section shall (1) be deemed to be a release or impairment of the indebtedness evidenced by this Note or the other obligations of Maker under the Loan Documents or the lien of the Loan Documents upon the Security Property, or (2) preclude Payee from foreclosing the Loan Documents in case of any default or from enforcing any of the other rights of Payee except as stated in this section, or (3) limit or impair in any way whatsoever (A) the Indemnity and Guaranty Agreement (the “Indemnity Agreement”) or (B) the Environmental Indemnity Agreement (the “Environmental Indemnity Agreement”), each of even date herewith executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair in any way whatsoever, any obligation of any party to the Indemnity Agreement or the Environmental Indemnity Agreement.

Notwithstanding anything to the contrary in this Note, the Security Instrument or any of the other Loan Documents, Payee shall not be deemed to have waived any right

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which Payee may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the indebtedness evidenced hereby or secured by the Security Instrument or any of the other Loan Documents or to require that all collateral shall continue to secure all of the indebtedness owing to Payee in accordance with this Note, the Security Instrument and the other Loan Documents.

ARTICLE III - GENERAL CONDITIONS

3.1No Waiver; Amendment. No failure to accelerate the indebtedness evidenced hereby by reason of default hereunder, acceptance of a partial or past due payment, or indulgences granted from time to time shall be construed (i) as a novation of this Note or as a reinstatement of the indebtedness evidenced hereby or as a waiver of such right of acceleration or of the right of Payee thereafter to insist upon strict compliance with the terms of this Note, or (ii) to prevent the exercise of such right of acceleration or any other right granted hereunder or by any applicable laws; and Maker hereby expressly waives the benefit of any statute or rule of law or equity now provided, or which may hereafter be provided, which would produce a result contrary to or in conflict with the foregoing. No extension of the time for the payment of this Note or any installment due hereunder made by agreement with any person now or hereafter liable for the payment of this Note shall operate to release, discharge, modify, change or affect the original liability of Maker under this Note, either in whole or in part, unless Payee agrees otherwise in writing. This Note may not be changed orally, but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification or discharge is sought.

3.2Waivers. Presentment for payment, demand, protest and notice of demand, protest and nonpayment and all other notices are hereby waived by Maker. Maker hereby further waives and renounces, to the fullest extent permitted by law, all rights to the benefits of any moratorium, reinstatement, marshaling, forbearance, valuation, stay, extension, redemption, appraisement, exemption and homestead now or hereafter provided by the Constitution and laws of the United States of America and of each state thereof, both as to itself and in and to all of its property, real and personal, against the enforcement and collection of the obligations evidenced by this Note or the other Loan Documents.

3.3Limit of Validity. The provisions of this Note and of all agreements between Maker and Payee, whether now existing or hereafter arising and whether written or oral, including, but not limited to, the Loan Documents, are hereby expressly limited so that in no contingency or event whatsoever, whether by reason of demand or acceleration of the maturity of this Note or otherwise, shall the amount contracted for, charged, taken, reserved, paid or agreed to be paid (“Interest”) to Payee for the use, forbearance or detention of the money loaned under this Note exceed the maximum amount permissible under applicable law. If, from any circumstance whatsoever, performance or fulfillment of any provision hereof or of any agreement between Maker and Payee shall, at the time performance or fulfillment of such provision shall be due, exceed the limit for Interest prescribed by law or otherwise transcend the limit of validity prescribed by applicable law, then, ipso facto, the obligation to be performed or fulfilled shall be reduced to such limit, and if, from any circumstance

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whatsoever, Payee shall ever receive anything of value deemed Interest by applicable law in excess of the maximum lawful amount, an amount equal to any excessive Interest shall be applied to the reduction of the principal balance owing under this Note in the inverse order of its maturity (whether or not then due) or, at the option of Payee, be paid over to Maker, and not to the payment of Interest. All Interest (including any amounts or payments judicially or otherwise under the law deemed to be Interest) contracted for, charged, taken, reserved, paid or agreed to be paid to Payee shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full term of this Note, including any extensions and renewals hereof until payment in full of the principal balance of this Note so that the Interest thereon for such full term will not exceed at any time the maximum amount permitted by applicable law. To the extent United States federal law permits a greater amount of interest than is permitted under the law of the State in which the Security Property is located, Payee will rely on United States federal law for the purpose of determining the maximum amount permitted by applicable law. Additionally, to the extent permitted by applicable law now or hereafter in effect, Payee may, at its option and from time to time, implement any other method of computing the maximum lawful rate under the law of the State in which the Security Property is located or under other applicable law by giving notice, if required, to Maker as provided by applicable law now or hereafter in effect. This Section 3.3 will control all agreements between Maker and Payee.

3.4Use of Funds. Maker hereby warrants, represents and covenants that no funds disbursed hereunder shall be used for personal, family or household purposes.

3.5Unconditional Payment. Maker is and shall be obligated to pay principal, interest and any and all other amounts which become payable hereunder or under the other Loan Documents absolutely and unconditionally and without any abatement, postponement, diminution or deduction and without any reduction for counterclaim or setoff. In the event that at any time any payment received by Payee hereunder shall be deemed by a court of competent jurisdiction to have been avoidable preference or fraudulent conveyance under any bankruptcy, insolvency or other debtor relief law, then the obligation to make such payment shall survive any cancellation or satisfaction of this Note or return thereof to Maker and shall not be discharged or satisfied with any prior payment thereof or cancellation of this Note, but shall remain a valid and binding obligation enforceable in accordance with the terms and provisions hereof, and such payment shall be immediately due and payable upon demand.

3.6Governing Law. THIS NOTE SHALL BE INTERPRETED, CONSTRUED AND ENFORCED ACCORDING TO THE LAWS OF THE STATE IN WHICH THE SECURITY PROPERTY IS LOCATED.

3.7Waiver of Jury Trial. MAKER, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, AND AFTER CONSULTING COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THE DEBT EVIDENCED BY THIS NOTE OR ANY CONDUCT, ACT OR OMISSION OF

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PAYEE OR MAKER, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH PAYEE OR MAKER, IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.

3.8Secondary Market. Payee may sell, transfer and deliver the Loan Documents to one or more investors in the secondary mortgage market. In connection with such sale, Payee may retain or assign responsibility for servicing the loan evidenced by this Note or may delegate some or all of such responsibility and/or obligations to a servicer, including, but not limited to, any subservicer or master servicer, on behalf of the investors. All references to Payee herein shall refer to and include, without limitation, any such servicer, to the extent applicable.

3.9Dissemination of Information. If Payee determines at any time to sell, transfer or assign this Note, the Security Instrument and the other Loan Documents, and any or all servicing rights with respect thereto, or to grant participations therein (the “Participations”) or issue mortgage pass-through certificates or other securities evidencing a beneficial interest in a rated or unrated public offering or private placement (the “Securities”), Payee may forward to each purchaser, transferee, assignee, servicer, participant, investor, or their respective successors in such Participations and/or Securities (collectively, the “Investor”) or any Rating Agency rating such Securities, each prospective Investor and each of the foregoing’s respective counsel, all documents and information which Payee now has or may hereafter acquire relating to the debt evidenced by this Note and to Maker, any guarantor, any indemnitor and the Mortgaged Property, which shall have been furnished by Maker, any guarantor or any indemnitor as Payee determines necessary or desirable.

ARTICLE IV - MISCELLANEOUS PROVISIONS

4.1The terms and provisions hereof shall be binding upon and inure to the benefit of Maker and Payee and their respective heirs, executors, legal representatives, successors, successors-in-title and assigns, whether by voluntary action of the parties or by operation of law. As used herein, the terms “Maker” and “Payee” shall be deemed to include their respective heirs, executors, legal representatives, successors, successors-in-title and assigns, whether by voluntary action of the parties or by operation of law. If Maker consists of more than one person or entity, each shall be jointly and severally liable to perform the obligations of Maker under this Note. All personal pronouns used herein, whether used in the masculine, feminine or neuter gender, shall include all other genders; the singular shall include the plural and vice versa. Titles of articles and sections are for convenience only and in no way define, limit, amplify or describe the scope or intent of any provisions hereof. Time is of the essence with respect to all provisions of this Note. This Note and the other Loan Documents contain the entire agreements between the parties hereto relating to the subject matter hereof and thereof and all prior agreements relative hereto and thereto which are not contained herein or therein are terminated.

4.2Maker’s Tax Identification Number is                       .

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[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

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IN WITNESS WHEREOF, Maker has executed this Note as of the date first written above.

MAKER:
HENRY TOWN CENTER, LLC
a Georgia limited liability company
By:	/s/ Steven D. Bell
	Steven D. Bell
	Managing Member

Alpha Seven, LLC
a Delaware limited liability company
By:	Edwards Mill Village Associates Limited Partnership, a North Carolina limited partnership
Its:	Sole Member
		By:	ALPHA THREE, a North Carolina general partnership
		Its:	General Partner
		By:	/s/ Robert F. Andrews, III
			Robert F. Andrews, III
			General Partner

Elliston Henry Town Center, LLC
a Delaware limited liability company
By:	Winston Three, LLC, a North Carolina Limited liability company, its sole member
	By:	/s/ W. Leon Elliston
		W. Leon Elliston
		Sole Member/Manager

[Signatures continue on following page]

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Owen Henry Town Center, LLC
a Delaware limited liability company
By:	/s/ Benjamin Ligon Owen
	Benjamin Ligon Owen
	Sole Member/Manager

18

DSCongdonA, LLC
a Delaware limited liability company
By:	/s/ Robert A. Cox, Jr.
	Robert A. Cox, Jr.
	Manager

19

JWCongdonA, LLC
a Delaware limited liability company
By:	/s/ Robert A. Cox, Jr.
	Robert A. Cox, Jr.
	Manager

20

KCVanstoryA, LLC
a Delaware limited liability company
By:	/s/ Robert A. Cox, Jr.
	Robert A. Cox, Jr.
	Manager

21

ALCongdonA, LLC
a Delaware limited liability company
By:	/s/ Robert A. Cox, Jr.
	Robert A. Cox, Jr.
	Manager

22

SCTerryA, LLC
a Delaware limited liability company
By:	/s/ Robert A. Cox, Jr.
	Robert A. Cox, Jr.
	Manager

23

JRCongdon, Jr.A, LLC
a Delaware limited liability company
By:	/s/ Robert A. Cox, Jr.
	Robert A. Cox, Jr.
	Manager

24

Spence Henry Town Center, LLC
a Delaware limited liability company
By:	/s/ David Spence
	David Spence
	Sole Member/Manager

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Jay Henry Town Center, LLC
a Delaware limited liability company
By:	Jay Family Limited Partnership, a North Carolina limited partnership, its sole member
	By:	/s/ Mack C. Jay III
		Name:	Mack C. Jay III
		Title:	Gen. Partner

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SCHEDULE A

Henry Town Center
502753516		Loan Amount:	36,000,000
	Actual / 360:	@ Maturity:	31,183,628
		Interest Rate:	5.4200%
		Term:	120
		Amount:	360
		Monthly P&I:	$202,600.76
		Funding:	8-Jan-2003
		WAL:	9.47

I/O	Pay No	Date	Actual Days	Principal	Interest	UPB
	0	11-Jan-2003			16,260.00	36,000,000.00
18	1	11-Feb-2003	31	0.00	168,020.00	36,000,000.00
17	2	11-Mar-2003	28	0.00	151,760.00	36,000,000.00
16	3	11-Apr-2003	31	0.00	168,020.00	36,000,000.00
15	4	11-May-2003	30	0.00	162,600.00	36,000,000.00
14	5	11-Jun-2003	31	0.00	168,020.00	36,000,000.00
13	6	11-Jul-2003	30	0.00	162,600.00	36,000,000.00
12	7	11-Aug-2003	31	0.00	168,020.00	36,000,000.00
11	8	11-Sep-2003	31	0.00	162,600.00	36,000,000.00
10	9	11-Oct-2003	30	0.00	168,020.00	36,000,000.00
9	10	11-Nov-2003	31	0.00	162,600.00	36,000,000.00
8	11	11-Dec-2003	30	0.00	168,020.00	36,000,000.00
7	12	11-Jan-2004	31	0.00	162,600.00	36,000,000.00
6	13	11-Feb-2004	31	0.00	168,020.00	36,000,000.00
5	14	11-Mar-2004	29	0.00	157,180.00	36,000,000.00
4	15	11-Apr-2004	31	0.00	168,020.00	36,000,000.00
3	16	11-May-2004	30	0.00	162,600.00	36,000,000.00
2	17	11-Jun-2004	31	0.00	168,020.00	36,000,000.00
1	18	11-Jul-2004	30	0.00	162,600.00	36,000,000.00
0	19	11-Aug-2004	31	34,580.76	168,020.00	35,965,419.24
0	20	11-Sep-2004	31	34,742.16	167,858.60	35,930,677.08
0	21	11-Oct-2004	30	40,313.87	162,286.89	35,890,363.21
0	22	11-Nov-2004	31	35,092.46	167,508.30	35,855,270.75
0	23	11-Dec-2004	30	40,654.45	161,946.31	35,814,616.30

0	24	11-Jan-2005	31	35,445.99	167,154.77	35,779,170.31
0	25	11-Feb-2005	31	35,611.42	166,989.34	35,743,558.89
0	26	11-Mar-2005	28	51,921.80	150,678.96	35,691,637.09
0	27	11-Apr-2005	31	36,019.96	166,580.80	35,655,617.13
0	28	11-May-2005	30	41,556.22	161,044.54	35,614,060.91
0	29	11-Jun-2005	31	36,382.02	166,218.74	35,577,678.89
0	30	11-Jul-2005	30	41,908.24	160,692.52	35,535,770.65
0	31	11-Aug-2005	31	36,747.42	165,853.34	35,499,023.23
0	32	11-Sep-2005	31	36,918.93	165,681.83	35,462,104.30
0	33	11-Oct-2005	30	42,430.26	160,170.50	35,419,674.04
0	34	11-Nov-2005	31	37,289.27	165,311.49	35,382,384.77
0	35	11-Dec-2005	30	42,790.32	159,810.44	35,339,594.45
0	36	11-Jan-2006	31	37,663.02	164,937.74	35,301,931.43
0	37	11-Feb-2006	31	37,838.80	164,761.96	35,264,092.63
0	38	11-Mar-2006	28	53,943.02	148,657.74	35,210,149.61
0	39	11-Apr-2006	31	38,267.17	164,333.59	35,171,882.44
0	40	11-May-2006	30	43,741.09	158,859.67	35,128,141.35
0	41	11-Jun-2006	31	38,649.92	163,950.84	35,089,491.43
0	42	11-Jul-2006	30	44,113.22	158,487.54	35,045,378.21
0	43	11-Aug-2006	31	39,036.19	163,564.57	35,006,342.02
0	44	11-Sep-2006	31	39,218.38	163,382.38	34,967,123.64
0	45	11-Oct-2006	30	44,665.92	157,934.84	34,922,457.72
0	46	11-Nov-2006	31	39,609.89	162,990.87	34,882,847.83
0	47	11-Dec-2006	30	45,046.56	157,554.20	34,837,801.27
0	48	11-Jan-2007	31	40,005.00	162,595.76	34,797,796.27
0	49	11-Feb-2007	31	40,191.70	162,409.05	34,757,604.56
0	50	11-Mar-2007	28	56,078.15	146,522.61	34,701,526.41
0	51	11-Apr-2007	31	40,641.02	161,959.74	34,660,885.39
0	52	11-May-2007	30	46,049.09	156,551.67	34,614,836.30
0	53	11-Jun-2007	31	41,045.63	161,555.13	34,573,790.67
0	54	11-Jul-2007	30	46,442.47	156,158.29	34,527,348.20
0	55	11-Aug-2007	31	41,453.95	161,146.81	34,485,894.25
0	56	11-Sep-2007	31	41,647.43	160,953.33	34,444,246.82
0	57	11-Oct-2007	30	47,027.58	155,573.18	34,397,219.24
0	58	11-Nov-2007	31	42,061.29	160,539.47	34,355,157.95

0	59	11-Dec-2007	30	47,429.96	155,170.80	34,307,727.99
0	60	11-Jan-2008	31	42,478.97	160,121.79	34,265,249.02
0	61	11-Feb-2008	31	42,677.23	159,923.53	34,222,571.79
0	62	11-Mar-2008	29	53,181.21	149,419.55	34,169,390.58
0	63	11-Apr-2008	31	43,124.62	159,476.14	34,126,265.96
0	64	11-May-2008	30	48,463.79	154,136.97	34,077,802.17
0	65	11-Jun-2008	31	43,552.08	159,048.68	34,034,250.09
0	66	11-Jul-2008	30	48,879.40	153,721.36	33,985,370.69
0	67	11-Aug-2008	31	43,983.48	158,617.28	33,941,387.21
0	68	11-Sep-2008	31	44,188.76	158,412.00	33,897,196.45
0	69	11-Oct-2008	30	49,498.41	153,102.35	33,847,700.04
0	70	11-Nov-2008	31	44,626.02	157,974.74	33,803,074.02
0	71	11-Dec-2008	30	49,923.54	152,677.22	33,753,150.48
0	72	11-Jan-2009	31	45,067.31	157,533.45	33,708,083.17
0	73	11-Feb-2009	31	45,277.65	157,323.11	33,662,805.52
0	74	11-Mar-2009	28	60,693.33	141,907.43	33,602,112.19
0	75	11-Apr-2009	31	45,772.24	156,828.52	33,556,339.95
0	76	11-May-2009	30	51,037.96	151,562.80	33,505,301.99
0	77	11-Jun-2009	31	46,224.07	156,376.69	33,459,077.92
0	78	11-Jul-2009	30	51,477.26	151,123.50	33,407,600.66
0	79	11-Aug-2009	31	46,680.06	155,920.70	33,360,920.60
0	80	11-Sep-2009	31	46,897.93	155,702.83	33,341,022.67
0	81	11-Oct-2009	30	52,132.42	150,468.34	33,261,890.25
0	82	11-Nov-2009	31	47,360.13	155,240.63	33,214,530.12
0	83	11-Dec-2009	30	52,581.80	150,018.96	33,161,948.32
0	84	11-Jan-2010	31	47,826.58	154,774.18	33,114,121.74
0	85	11-Feb-2010	31	48,049.80	154,550.96	33,066,071.94
0	86	11-Mar-2010	28	63,208.90	139,391.86	33,002,863.04
0	87	11-Apr-2010	31	48,569.06	154,031.70	32,954,293.98
0	88	11-May-2010	30	53,757.20	148,843.56	32,900,536.78
0	89	11-Jun-2010	31	49,046.64	153,554.12	32,851,490.14
0	90	11-Jul-2010	30	54,221.53	148,379.23	32,797,268.61
0	91	11-Aug-2010	31	49,528.62	153,072.14	32,747,739.99
0	92	11-Sep-2010	31	49,759.78	152,840.98	32,697,980.21
0	93	11-Oct-2010	30	54,914.88	147,685.88	32,643,065.33

0	94	11-Nov-2010	31	50,248.32	152,352.44	32,592,817.01
0	95	11-Dec-2010	30	55,389.87	147,210.89	32,537,427.14
0	96	11-Jan-2011	31	50,741.36	151,859.40	32,486,685.78
0	97	11-Feb-2011	31	50,978.18	151,622.58	32,435,707.60
0	98	11-Mar-2011	28	65,866.23	136.734.53	32,369,841.37
0	99	11-Apr-2011	31	51,523.52	151,077.24	32,318,317.85
0	100	11-May-2011	30	56,629.69	145,971.07	32,261,688.16
0	101	11-Jun-2011	31	52,028.29	150,572.47	32,209,659.87
0	102	11-Jul-2011	30	57,120.46	145,480.30	32,152,539.41
0	103	11-Aug-2011	31	52,537.71	150,063.05	32,100,001.70
0	104	11-Sep-2011	31	52,782.92	149,817.84	32,047,218.78
0	105	11-Oct-2011	30	57,854.16	144,746.60	31,989,364.62
0	106	11-Nov-2011	31	53,299.29	149,301.47	31,936,065.33
0	107	11-Dec-2011	30	58,356.20	144,244.56	31,877,709.13
0	108	11-Jan-2012	31	53,820.41	148,780.35	31,823,888.72
0	109	11-Feb-2012	31	54,071.60	148,529.16	31,769,817.12
0	110	11-Mar-2012	29	63,890.21	138,710.55	31,705,926.91
0	111	11-Apr-2012	31	54,622.15	147,978.61	31,651,304.76
0	112	11-May-2012	30	59,642.37	142,958.39	31,591,662.39
0	113	11-Jun-2012	31	55,155.45	147,445.31	31,536,506.94
0	114	11-Jul-2012	30	60,160.87	142,439.89	31,476,346.07
0	115	11-Aug-2012	31	55,693.66	146,907.10	31,420,652.41
0	116	11-Sep-2012	31	55,953.59	146,647.17	31,364,698.82
0	117	11-Oct-2012	30	60,936.87	141,663.89	31,303,761.95
0	118	11-Nov-2012	31	56,499.15	146,101.61	31,247,262.80
0	119	11-Dec-2012	30	61,467.29	141,133.47	31,185,795.51
0	120	11-Jan-2013	31	31,185,795.51	145,551.04	0.00
0	121	11-Feb-2013	31	0.00	0.00	0.00
0	122	11-Mar-2013	28	0.00	0.00	0.00
0	123	11-Apr-2013	31	0.00	0.00	0.00
0	124	11-May-2013	30	0.00	0.00	0.00
0	125	11-Jun-2013	31	0.00	0.00	0.00
0	126	11-Jul-2013	30	0.00	0.00	0.00
0	127	11-Aug-2013	31	0.00	0.00	0.00
0	128	11-Sep-2013	31	0.00	0.00	0.00

EX-10.476

Exhibit 10.476

DOC# 001253

FILED IN OFFICE

01/10/2003

08:25:46AM

BK:05595 PG:0142

JUDITH A. LEWIS

CLERK OF

SUPERIOR COURT

HENRY COUNTY, GA

Return to: PIEDMONT TITLE INSURANCE AGENCY, INC. Attention: Barbara H. Morgan 150 East Ponce de Leon Avenue, Suite 330 Decatur, GA 30030 (404) 377-6464 Henry Towne Center LOAN NO. 50-2753516

HENRY TOWN CENTER, LLC, ALPHA SEVEN, LLC, ELLISTON HENRY TOWN CENTER,

LLC, OWEN HENRY TOWN CENTER, LLC, DSCONGDONA, LLC, JWCONGDONA, LLC,

KCVANSTORYA, LLC, ALCONGDONA, LLC, SCTERRYA, LLC, JRCONGDON,JR.A, LLC,

SPENCE HENRY TOWN CENTER, LLC, JAY HENRY TOWN CENTER, LLC,

together, jointly and severally, as Grantor

to

WACHOVIA BANK, NATIONAL ASSOCIATION

as Grantee

DEED TO SECURE DEBT AND SECURITY AGREEMENT

Dated as of January 8, 2003

PREPARED BY AND UPON RECORDATION RETURN TO:

Return to: PIEDMONT TITLE INSURANCE AGENCY, INC. Attention: Isabel M. Garcia, Esq. 150 East Ponce de Leon Avenue, Suite 330 Decatur, GA 30030 (404) 377-6464
	GEORGIA INTANGIBLE TAX HENRY COUNTY SUPERIOR COURT JAN 09 2003 PAID $ 25,000.00
	/s/ [ILLEGIBLE]
	CLERK OF SUPERIOR COURT

TABLE OF CONTENTS

ARTICLE I	COVENANTS OF GRANTOR
1.1	Warranties of Grantor
1.2	Defense of Title
1.3	Performance of Obligations
1.4	Insurance
1.5	Payment of Taxes
1.6	Tax Impound Account
1.7	[Reserved]
1.8	Replacement Reserve
1.9	Casualty and Condemnation
1.10	Construction Liens
1.11	Rents and Profits
1.12	Leases
1.13	Alienation and Further Encumbrances
1.14	Payment of Utilities, Assessments, Charges, Etc.
1.15	Access Privileges and Inspections
1.16	Waste; Alteration ofImprovements
1.17	Zoning
1.18	Financial Statements and Books and Records
1.19	Further Documentation
1.20	Payment of Costs; Reimbursement to Grantee
1.21	Security Interest
1.22	Security Agreement
1.23	Easements and Rights-of-Way
1.24	Compliance with Laws
1.25	Additional Taxes
1.26	Secured Indebtedness
1.27	Grantor’s Waivers
1.28	SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL
1.29	Attorney-in-Fact Provisions
1.30	Management
1.31	Hazardous Waste and Other Substances
1.32	Indemnification; Subrogation
1.33	Covenants with Respect to Indebtedness, Operations, Fundamental Changes of Grantor
ARTICLE II	EVENTS OF DEFAULT
2.1	Events of Default
ARTICLE III	REMEDIES
3.1	Remedies Available
3.2	Application of Proceeds
3.3	Right and Authority of Receiver or Grantee in the Event of Default; Power of Attorney

3.4	Occupancy After Foreclosure
3.5	Notice to Account Debtors
3.6	Cumulative Remedies
3.7	Payment of Expenses
ARTICLE IV	MISCELLANEOUS TERMS AND CONDITIONS
4.1	Time of Essence
4.2	Release of Security Instrument
4.3	Certain Rights of Grantee
4.4	Waiver of Certain Defenses
4.5	Notices; Designation of Managing Agent
4.6	Successors and Assigns; Joint and Several Liability
4.7	Severability
4.8	Gender
4.9	Waiver; Discontinuance of Proceedings
4.10	Section Headings
4.11	GOVERNING LAW
4.12	Counting of Days
4.13	Relationship of the Parties
4.14	Application of the Proceeds of the Note
4.15	Unsecured Portion of Indebtedness
4.16	Cross Default
4.17	Interest After Sale
4.18	Inconsistency with Other Loan Documents
4.19	Construction of this Document
4.20	No Merger
4.21	Rights With Respect to Junior Encumbrances
4.22	Grantee May File Proofs of Claim
4.23	Fixture Filing
4.24	After-Acquired Property
4.25	No Representation
4.26	Counterparts
4.27	Personal Liability
4.28	Recording and Filing
4.29	Entire Agreement and Modifications
4.30	Maximum Interest
4.31	Interest Payable by Grantee
4.32	Dissemination of Information
4.33	Secondary Market
4.34	Certain Matters Relating to Property Located in the State of Georgia
4.35	WAIVER OF NOTICE AND HEARING
4.36	Attorneys’ Fee

ii

DEED TO SECURE DEBT AND SECURITY AGREEMENT

THIS DEED TO SECURE DEBT AND SECURITY AGREEMENT (this “Security Instrument”) is made as of January 8, 2003 by HENRY TOWN CENTER, LLC, a Georgia limited liability company, ALPHA SEVEN, LLC, a Delaware limited liability company, ELLISTON HENRY TOWN CENTER, LLC, a Delaware limited liability company, OWEN HENRY TOWN CENTER, LLC, a Delaware limited liability company, DSCONGDONA, LLC, a Delaware limited liability company, JWCONGDONA, LLC, a Delaware limited liability company, KCVANSTORYA, LLC, a Delaware limited liability company, ALCONGDONA, LLC, a Delaware limited liability company, SCTERRYA, LLC, a Delaware limited liability company, JRCONGDON,JR.A, LLC, a Delaware limited liability company, SPENCE HENRY TOWN CENTER, LLC, a Delaware limited liability company, JAY HENRY TOWN CENTER, LLC, a Delaware limited liability company, as Grantor (together, jointly and severally, “Grantor”), to WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as Grantee (“Grantee”), whose address is 201 South Tryon Street, Suite 130, PMB Box #4, Charlotte, North Carolina 28202.

W I T N E S S E T H:

THAT FOR AND IN CONSIDERATION OF THE SUM OF TEN AND NO/100 DOLLARS ($10), AND OTHER VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, GRANTOR HEREBY IRREVOCABLY GRANTS, BARGAINS, SELLS, CONVEYS, TRANSFERS, PLEDGES, SETS OVER AND ASSIGNS, with power of sale, all of Grantor’s estate, right, title and interest in, to and under any and all of the following described property, whether now owned or hereafter acquired by Grantor (collectively, the “Property”):

(A)All that certain real property situated in the County of Henry, State of Georgia, more particularly described on Exhibit A attached hereto and incorporated herein by this reference (the “Premises”), together with all of the easements, rights, privileges, franchises, tenements, hereditaments and appurtenances now or hereafter thereunto belonging or in any way appertaining thereto, and all of the estate, right, title, interest, claim and demand whatsoever of Grantor therein or thereto, either at law or in equity, in possession or in expectancy, now or hereafter acquired;

(B)All structures, buildings and improvements of every kind and description now or at any time hereafter located or placed on the Premises (the “Improvements”);

(C)All furniture, furnishings, fixtures, goods, equipment, inventory or personal property owned by Grantor and now or hereafter located on, attached to or used in and about the Improvements, including, but not limited to, all machines, engines, boilers, dynamos, elevators, stokers, tanks, cabinets, awnings, screens, shades, blinds, carpets, draperies, lawn mowers, and all appliances, plumbing, heating, air conditioning, lighting, ventilating, refrigerating, disposal and incinerating equipment, and all fixtures and appurtenances thereto, and such other goods and

chattels and personal property owned by Grantor as are now or hereafter used or furnished in operating the Improvements, or the activities conducted therein, and all building materials and equipment hereafter situated on or about the Premises or Improvements, and all warranties and guaranties relating thereto, and all additions thereto and substitutions and replacements therefor (exclusive of any of the foregoing owned or leased by tenants of space in the Improvements);

(D)All easements, rights-of-way, strips and gores of land, vaults, streets, ways, alleys, passages, sewer rights, and other emblements now or hereafter located on the Premises or under or above the same or any part or parcel thereof, and all estates, rights, titles, interests, tenements, hereditaments and appurtenances, reversions and remainders whatsoever, in any way belonging, relating or appertaining to the Property or any part thereof, or which hereafter shall in any way belong, relate or be appurtenant thereto, whether now owned or hereafter acquired by Grantor;

(E)All water, ditches, wells, reservoirs and drains and all water, ditch, well, reservoir and drainage rights which are appurtenant to, located on, under or above or used in connection with the Premises or the Improvements, or any part thereof, whether now existing or hereafter created or acquired;

(F)All minerals, crops, timber, trees, shrubs, flowers and landscaping features now or hereafter located on, under or above the Premises;

(G)All cash funds, deposit accounts and other rights and evidence of rights to cash, now or hereafter created or held by Grantee pursuant to this Security Instrument or any other of the Loan Documents (as hereinafter defined), including, without limitation, all funds now or hereafter on deposit in the Impound Account and the Replacement Reserve (each as hereinafter defined) and that certain Account and the Leasing Dollars therein, as set forth and defined in that certain Purchase Agreement dated as of September 10, 2002, as amended October 24, 2002, by and between Sembler Family Partnership #22, Ltd., as Seller, and Steven D. Bell & Company, as Buyer, as assigned to Grantor;

(H)All leases (including, without limitation, oil, gas and mineral leases), licenses, concessions and occupancy agreements of all or any part of the Premises or the Improvements (each, a “Lease” and collectively, “Leases”), whether written or oral, now or hereafter entered into and all rents, royalties, issues, profits, bonus money, revenue, income, rights and other benefits (collectively, the “Rents and Profits”) of the Premises or the Improvements, now or hereafter arising from the use or enjoyment of all or any portion thereof or from any present or future Lease or other agreement pertaining thereto or arising from any of the Leases or any of the General Intangibles (as hereinafter defined) and all cash or securities deposited to secure performance by the tenants, lessees or licensees (each, a “Tenant” and collectively, “Tenants”), as applicable, of their obligations under any such Leases, whether said cash or securities are to be held until the expiration of the terms of said Leases or applied to one or more of the installments of rent coming due prior to the expiration of said terms, subject, however, to the provisions contained in Section 1.11 hereinbelow;

(I)All contracts and agreements now or hereafter entered into covering any part of the Premises or the Improvements (collectively, the “Contracts”) and all revenue, income and other benefits thereof, including, without limitation, management agreements, joint ownership agreements, co-tenancy agreements, service contracts, maintenance contracts, equipment leases,

2

personal property leases and any contracts or documents relating to construction on any part of the Premises or the Improvements (including plans, drawings, surveys, tests, reports, bonds and governmental approvals) or to the management or operation of any part of the Premises or the Improvements;

(J)All present and future monetary deposits given to any public or private utility with respect to utility services furnished to any part of the Premises or the Improvements;

(K)All present and future funds, accounts, instruments, accounts receivable, documents, causes of action, claims, general intangibles (including, without limitation, trademarks, trade names, service marks and symbols now or hereafter used in connection with any part of the Premises or the Improvements, all names by which the Premises or the Improvements may be operated or known, all rights to carry on business under such names, and all rights, interest and privileges which Grantor has or may have as developer or declarant under any covenants, restrictions or declarations now or hereafter relating to the Premises or the Improvements) and all notes or chattel paper now or hereafter arising from or by virtue of any transactions related to the Premises or the Improvements (collectively, the “General Intangibles”);

(L)All water taps, sewer taps, certificates of occupancy, permits, licenses, franchises, certificates, consents, approvals and other rights and privileges now or hereafter obtained in connection with the Premises or the Improvements and all present and future warranties and guaranties relating to the Improvements or to any equipment, fixtures, furniture, furnishings, personal property or components of any of the foregoing now or hereafter located or installed on the Premises or the Improvements;

(M)All building materials, supplies and equipment now or hereafter placed on the Premises or in the Improvements and all architectural renderings, models, drawings, plans, specifications, studies and data now or hereafter relating to the Premises or the Improvements;

(N)All right, title and interest of Grantor in any insurance policies or binders now or hereafter relating to the Property, including any unearned premiums thereon;

(O)All proceeds, products, substitutions and accessions (including claims and demands therefor) of the conversion, voluntary or involuntary, of any of the foregoing into cash or liquidated claims, including, without limitation, proceeds of insurance and condemnation awards; and

(P)All other or greater rights and interests of every nature in the Premises or the Improvements and in the possession or use thereof and income therefrom, whether now owned or hereafter acquired by Grantor.

THIS CONVEYANCE is intended: (i) to operate and to be construed as a deed passing title to the Property to Grantee and is made under those provisions of the existing laws of the State of Georgia relating to deeds to secure debt, and not as a mortgage, and (ii) to constitute a security agreement pursuant to the Uniform Commercial Code of Georgia, and is given to secure the following:

3

FOR THE PURPOSE OF SECURING:

(1)The debt evidenced by that certain Promissory Note (such Promissory Note, together with any and all renewals, amendments, modifications, consolidations and extensions thereof, is hereinafter referred to as the “Note”) of even date with this Security Instrument, made by Grantor payable to the order of Grantee in the principal face amount of THIRTY-SIX MILLION AND NO/100 DOLLARS ($36,000,000.00), together with interest as therein provided, and HAVING A MATURITY DATE OF JANUARY 11, 2013;

(2)The full and prompt payment and performance of all of the provisions, agreements, covenants and obligations herein contained and contained in any other agreements, documents or instruments now or hereafter evidencing, securing or otherwise relating to the Debt (as hereinafter defined) including, but not limited to, the Environmental Indemnity Agreement (as hereinafter defined)(the Note, this Security Instrument, and such other agreements, documents and instruments, together with any and all renewals, amendments, extensions and modifications thereof, are hereinafter collectively referred to as the “Loan Documents”) and the payment of all other sums herein or therein covenanted to be paid;

(3)Any and all additional advances made by Grantee to protect or preserve the Property or the lien or security interest created hereby on the Property, or for taxes, assessments or insurance premiums as hereinafter provided or for performance of any of Grantor’s obligations hereunder or under the other Loan Documents or for any other purpose provided herein or in the other Loan Documents (whether or not the original Grantor remains the owner of the Property at the time of such advances); and

(4)Any and all other indebtedness now owing or which may hereafter be owing by Grantor to Grantee, including, without limitation, all prepayment fees, however and whenever incurred or evidenced, whether express or implied, direct or indirect, absolute or contingent, or due or to become due, and all renewals, modifications, consolidations, replacements and extensions thereof, it being contemplated by Grantor and Grantee that Grantor may hereafter become so indebted to Grantee.

(All of the sums referred to in Paragraphs (1) through (4) above are herein referred to as the “Debt”).

TO HAVE AND TO HOLD the Property unto Grantee, its successors and assigns forever, and Grantor does hereby bind itself, its successors and assigns, to WARRANT AND FOREVER DEFEND the title to the Property, subject to the Permitted Encumbrances (as hereinafter defined), to Grantee against every person whomsoever lawfully claiming or to claim the same or any part thereof;

PROVIDED, HOWEVER, that if the principal and interest and all other sums due or to become due under the Note or under the other Loan Documents, including, without limitation, any prepayment fees required pursuant to the terms of the Note, shall have been paid at the time and in the manner stipulated therein and the Debt shall have been paid and all other covenants contained in the Loan Documents shall have been performed, then, in such case, the liens, security interests, estates and rights granted by this Security Instrument shall be satisfied and the estate, right, title and

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interest of Grantee in the Property shall cease, and upon payment to Grantee of all costs and expenses incurred for the preparation of the release hereinafter referenced and all recording costs if allowed by law, Grantee shall promptly satisfy and release this Security Instrument of record and the lien hereof by proper instrument.

ARTICLE I

COVENANTS OF GRANTOR

For the purpose of further securing the Debt and for the protection of the security of this Security Instrument, for so long as the Debt or any part thereof remains unpaid, Grantor covenants and agrees as follows:

1.1Warranties of Grantor.

Grantor, for itself and its successors and assigns, does hereby represent, warrant and covenant to and with Grantee, its successors and assigns, that:

(a)Grantor has good, marketable and indefeasible fee simple title to the Property, subject only to those matters expressly set forth as exceptions to or subordinate matters in the title insurance policy insuring the lien of this Security Instrument delivered as of the date hereof which Grantee has agreed to accept, excepting therefrom all preprinted and/or standard exceptions (such items being the “Permitted Encumbrances”), and has full power and lawful authority to grant, bargain, sell, convey, assign, transfer, encumber and mortgage its interest in the Property in the manner and form hereby done or intended. Grantor will preserve its interest in and title to the Property and will forever warrant and defend the same to Grantee against any and all claims whatsoever and will forever warrant and defend the validity and priority of the lien and security interest created herein against the claims of all persons and parties whomsoever, subject to the Permitted Encumbrances. The foregoing warranty of title shall survive the foreclosure of this Security Instrument and shall inure to the benefit of and be enforceable by Grantee in the event Grantee acquires title to the Property pursuant to any foreclosure;

(b)No bankruptcy or insolvency proceedings are pending or contemplated by Grantor or, to the best knowledge of Grantor, against Grantor or by or against any endorser or cosigner of the Note or of any portion of the Debt, or any guarantor or indemnitor under any guaranty or indemnity agreement executed in connection with the Note or the loan evidenced thereby and secured hereby (an “Indemnitor”);

(c)All reports, certificates, affidavits, statements and other data furnished by or on behalf of Grantor to Grantee in connection with the loan evidenced by the Note are true and correct in all material respects and do not omit to state any fact or circumstance necessary to make the statements contained therein not misleading;

(d)The execution, delivery and performance of this Security Instrument, the Note and all of the other Loan Documents have been duly authorized by all necessary action to be, and

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are, binding and enforceable against Grantor in accordance with the respective terms thereof and do not contravene, result in a breach of or constitute a default (nor upon the giving of notice or the passage of time or both will same constitute a default) under the partnership agreement, articles of incorporation, operating agreement or other organizational documents of Grantor or any contract or agreement of any nature to which Grantor is a party or by which Grantor or any of its property may be bound and do not violate or contravene any law, order, decree, rule or regulation to which Grantor is subject;

(e)The Premises and the Improvements and the current intended use thereof by Grantor comply in all material respects with all applicable restrictive covenants, zoning ordinances, subdivision and building codes, flood disaster laws, health and environmental laws and regulations and all other ordinances, orders or requirements issued by any state, federal or municipal authorities having or claiming jurisdiction over the Property. The Premises and Improvements constitute one or more separate tax parcels for purposes of ad valorem taxation. The Premises and Improvements do not require any rights over, or restrictions against, other property in order to comply with any of the aforesaid governmental ordinances, orders or requirements;

(f)All utility services necessary and sufficient for the full use, occupancy, operation and disposition of the Premises and the Improvements for their intended purposes are available to the Property, including water, storm sewer, sanitary sewer, gas, electric, cable and telephone facilities, through public rights-of-way or perpetual private easements approved by Grantee;

(g)All streets, roads, highways, bridges and waterways necessary for access to and full use, occupancy, operation and disposition of the Premises and the Improvements have been completed, have been dedicated to and accepted by the appropriate municipal authority and are open and available to the Premises and the Improvements without further condition or cost to Grantor;

(h)All curb cuts, driveways and traffic signals shown on the survey delivered to Grantee prior to the execution and delivery of this Security Instrument are existing and have been fully approved by the appropriate governmental authority;

(i)There are no judicial, administrative, mediation or arbitration actions, suits or proceedings pending or threatened against or affecting Grantor (or, if Grantor is a partnership or a limited liability company, any of its general partners or members) or the Property which, if adversely determined, would materially impair either the Property or Grantor’s ability to perform the covenants or obligations required to be performed under the Loan Documents;

(j)The Property is free from delinquent water charges, sewer rents, taxes and assessments;

(k)As of the date of this Security Instrument, the Property is free from unrepaired damage caused by fire, flood, accident or other casualty;

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(l)As of the date of this Security Instrument, no part of the Premises or the Improvements has been taken in condemnation, eminent domain or like proceeding nor is any such proceeding pending or, to Grantor’s knowledge and belief, threatened or contemplated;

(m)Grantor possesses all franchises, patents, copyrights, trademarks, trade names, licenses and permits necessary for the conduct of its business substantially as now conducted;

(n)To the best of Grantor’s knowledge and except as may otherwise be disclosed in that certain Property Condition Report delivered to Grantee with respect to the Property, the Improvements are structurally sound, in good repair and free of defects in materials and workmanship and have been constructed and installed in substantial compliance with the plans and specifications relating thereto. All major building systems located within the Improvements, including, without limitation, the heating and air conditioning systems and the electrical and plumbing systems, are in good working order and condition;

(o)Grantor has delivered to Grantee true, correct and complete copies of all Contracts and all amendments thereto or modifications thereof;

(p)Each Contract constitutes the legal, valid and binding obligation of Grantor and, to the best of Grantor’s knowledge and belief, is enforceable against any other party thereto. To the best of Grantor’s knowledge, no default exists, or with the passing of time or the giving of notice or both would exist, under any Contract which would, in the aggregate, have a material adverse effect on Grantor or the Property;

(q)No Contract provides any party with the right to obtain a lien or encumbrance upon the Property superior to the lien of this Security Instrument;

(r)Grantor and the Property are free from any past due obligations for sales and payroll taxes;

(s)There are no security agreements or financing statements affecting all or any portion of the Property other than (i) as disclosed in writing by Grantor to Grantee prior to the date hereof and (ii) the security agreements and financing statements created in favor of Grantee;

(t)Grantor has delivered a true, correct and complete schedule (the “Rent Roll”) of all Leases affecting the Property as of the date hereof, which accurately and completely sets forth in all material respects for each such Lease, the following: the name of the Tenant, the Lease expiration date, extension and renewal provisions, the base rent payable, the security deposit held thereunder and any other material provisions of such Lease;

(u)Each Lease constitutes the legal, valid and binding obligation of Grantor and, to the best of Grantor’s knowledge and belief, is enforceable against the Tenant thereof. No default exists, or with the passing of time or the giving of notice or both would exist, under any Lease which would, in the aggregate, have a material adverse effect on Grantor or the Property;

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(v)No Tenant under any Lease has, as of the date hereof, paid rent more than thirty (30) days in advance, and the rents under such Leases have not been waived, released, or otherwise discharged or compromised;

(w)All work to be performed by Grantor under the Leases has been substantially performed, all contributions to be made by Grantor to the Tenants thereunder have been made and all other conditions precedent to each such Tenant’s obligations thereunder have been satisfied;

(x)Except as disclosed in writing by Grantor to Grantee, each Tenant under a Lease has entered into occupancy of the demised premises;

(y)Grantor has delivered to Grantee true, correct and complete copies of all Leases described in the Rent Roll;

(z)To the best of Grantor’s knowledge and belief, each Tenant is free from bankruptcy, reorganization or arrangement proceedings or a general assignment for the benefit of creditors;

(aa)No Lease provides any party with the right to obtain a lien or encumbrance upon the Property superior to the lien of this Security Instrument; and

(bb)Grantor is not a “foreign person” within the meaning of §1445(f)(3) of the Internal Revenue Code of 1986, as amended, and the related Treasury Department regulations, including temporary regulations.

1.2Defense of Title.

If, while this Security Instrument is in force, the title to the Property or the interest of Grantee therein shall be the subject, directly or indirectly, of any action at law or in equity, or be attached directly or indirectly, or endangered, clouded or adversely affected in any manner, Grantor, at Grantor’s expense, shall take all necessary and proper steps for the defense of said title or interest, including the employment of counsel approved by Grantee, the prosecution or defense of litigation, and the compromise or discharge of claims made against said title or interest. Notwithstanding the foregoing, in the event that Grantee determines that Grantor is not adequately performing its obligations under this Section, Grantee may, without limiting or waiving any other rights or remedies of Grantee hereunder, take such steps with respect thereto as Grantee shall deem necessary or proper and any and all costs and expenses incurred by Grantee in connection therewith, together with interest thereon at the Default Interest Rate (as defined in the Note) from the date incurred by Grantee until actually paid by Grantor, shall be immediately paid by Grantor on demand and shall be secured by this Security Instrument and by all of the other Loan Documents securing all or any part of the indebtedness evidenced by the Note.

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1.3Performance of Obligations.

Grantor shall pay when due the principal of and the interest on the Debt in accordance with the terms of the Note. Grantor shall also pay all charges, fees and other sums required to be paid by Grantor as provided in the Loan Documents, in accordance with the terms of the Loan Documents, and shall observe, perform and discharge all obligations, covenants and agreements to be observed, performed or discharged by Grantor set forth in the Loan Documents in accordance with their terms. Further, Grantor shall promptly and strictly perform and comply with all covenants, conditions, obligations and prohibitions required of Grantor in connection with any other document or instrument affecting title to the Property, or any part thereof, regardless of whether such document or instrument is superior or subordinate to this Security Instrument.

1.4Insurance.

Grantor shall, at Grantor’s expense, maintain in force and effect on the Property at all times while this Security Instrument continues in effect the following insurance:

(a)Insurance against loss or damage to the Property by fire, windstorm, tornado and hail and against loss and damage by such other, further and additional risks as may be now or hereafter embraced by an “all-risk” form of insurance policy. The amount of such insurance shall be not less than one hundred percent (100%) of the full replacement cost (insurable value) of the Improvements (as established by an MAI appraisal), without reduction for depreciation. The determination of the replacement cost amount shall be adjusted annually to comply with the requirements of the insurer issuing such coverage or, at Grantee’s election, by reference to such indices, appraisals or information as Grantee determines in its reasonable discretion in order to reflect increased value due to inflation. Absent such annual adjustment, each policy shall contain inflation guard coverage insuring that the policy limit will be increased over time to reflect the effect of inflation. Full replacement cost, as used herein, means, with respect to the Improvements, the cost of replacing the Improvements without regard to deduction for depreciation, exclusive of the cost of excavations, foundations and footings below the lowest basement floor. Grantor shall also maintain insurance against loss or damage to furniture, furnishings, fixtures, equipment and other items (whether personalty or fixtures) included in the Property and owned by Grantor from time to time to the extent applicable. Each policy shall contain a replacement cost endorsement and either an agreed amount endorsement (to avoid the operation of any co-insurance provisions) or a waiver of any co-insurance provisions, all subject to Grantee’s approval. The maximum deductible shall be $10,000.00.

(b)Commercial General Liability Insurance against claims for personal injury, bodily injury, death and property damage occurring on, in or about the Premises or the Improvements in amounts not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate plus umbrella coverage in an amount not less than $2,000,000.00. Grantee hereby retains the right to periodically review the amount of said liability insurance being maintained by Grantor and to require an increase in the amount of said liability insurance should Grantee deem an increase to be reasonably prudent under then existing circumstances.

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(c)Boiler and machinery insurance is required if steam boilers or other pressure-fired vessels are in operation at the Premises. Minimum liability coverage per accident must equal the greater of the replacement cost (insurable value) of the Improvements housing such boiler or pressure-fired machinery or $2,000,000.00. If one or more large HVAC units is in operation at the Premises, “Systems Breakdowns” coverage shall be required, as determined by Grantee. Minimum liability coverage per accident must equal the value of such unit(s).

(d)If the Improvements or any part thereof is situated in an area designated by the Federal Emergency Management Agency (“FEMA”) as a special flood hazard area (Zone A or Zone V), flood insurance in an amount equal to the lesser of: (a) the minimum amount required, under the terms of coverage, to compensate for any damage or loss on a replacement basis (or the unpaid balance of the Debt if replacement cost coverage is not available for the type of building insured), or (b) the maximum insurance available under the appropriate National Flood Insurance Administration program. The maximum deductible shall be $3,000.00 per building or a higher minimum amount as required by FEMA or other applicable law.

(e)During the period of any construction, renovation or alteration of the existing Improvements which exceeds the lesser of 10% of the principal amount of the Note or $500,000, at Grantee’s request, a completed value, “All Risk” Builder’s Risk form or “Course of Construction” insurance policy in non-reporting form, in an amount approved by Grantee, may be required. During the period of any construction of any addition to the existing Improvements, a completed value, “All Risk” Builder’s Risk form or “Course of Construction” insurance policy in non-reporting form, in an amount approved by Grantee, shall be required.

(f)When required by applicable law, ordinance or other regulation, Worker’s Compensation and Employer’s Liability Insurance covering all persons subject to the worker’s compensation laws of the state in which the Property is located.

(g)Business income (loss of rents) insurance in amounts sufficient to compensate Grantor for all Rents or income during a period of not less than eighteen (18) months. The amount of coverage shall be adjusted annually to reflect the Rents or income payable during the succeeding eighteen (18) month period.

(h)Such other insurance on the Property or on any replacements or substitutions thereof or additions thereto as may from time to time be required by Grantee against other insurable hazards or casualties which at the time are commonly insured against in the case of property similarly situated including, without limitation, Sinkhole, Mine Subsidence, Earthquake and Environmental insurance, due regard being given to the height and type of buildings, their construction, location, use and occupancy.

(i)To the extent required by Grantee and commercially reasonably available at commercially reasonable rates, terrorism insurance.

All such insurance shall (i) be with insurers fully licensed and authorized to do business in the state within which the Premises is located and who have and maintain a rating of at least A from Standard & Poors, or equivalent, (ii) contain the complete address of the Premises (or a complete

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legal description), (iii) be for terms of at least one year, with premium prepaid, and (iv) be subject to the approval of Grantee as to insurance companies, amounts, content, forms of policies, method by which premiums are paid and expiration dates, and (vi) include a standard, non-contributory, mortgagee clause naming EXACTLY:

Wachovia Bank, National Association

its Successors and Assigns ATIMA

Attn.: Structured Finance Servicing

P.O. Box 563956

Charlotte, NC 28256-3956

(a) as an additional insured under all liability insurance policies, (b) as the first mortgagee on all property insurance policies and (c) as the loss payee on all loss of rents or loss of business income insurance policies.

Grantor shall, as of the date hereof, deliver to Grantee evidence that said insurance policies have been prepaid as required above and certified copies of such insurance policies and original certificates of insurance signed by an authorized agent of the applicable insurance companies evidencing such insurance satisfactory to Grantee. Grantor shall renew all such insurance and deliver to Grantee certificates and policies evidencing such renewals at least thirty (30) days before any such insurance shall expire. Grantor further agrees that each such insurance policy: (i) shall provide for at least thirty (30) days’ prior written notice to Grantee prior to any policy reduction or cancellation for any reason other than non-payment of premium and at least ten (10) days’ prior written notice to Grantee prior to any cancellation due to non-payment of premium; (ii) shall contain an endorsement or agreement by the insurer that any loss shall be payable to Grantee in accordance with the terms of such policy notwithstanding any act or negligence of Grantor which might otherwise result in forfeiture of such insurance, (iii) shall waive all rights of subrogation against Grantee; (iv) in the event that the Premises or the Improvements constitutes a legal non-conforming use under applicable building, zoning or land use laws or ordinances, shall include an ordinance or law coverage endorsement which will contain Coverage A: “Loss Due to Operation of Law” (with a minimum liability limit equal to Replacement Cost With Agreed Value Endorsement), Coverage B: “Demolition Cost” and Coverage C: “Increased Cost of Construction” coverages; and (v) may be in the form of a blanket policy provided that, in the event that any such coverage is provided in the form of a blanket policy, Grantor hereby acknowledges and agrees that failure to pay any portion of the premium therefor which is not allocable to the Property or by any other action not relating to the Property which would otherwise permit the issuer thereof to cancel the coverage thereof, would require the Property to be insured by a separate, single-property policy. The blanket policy must properly identify and fully protect the Property as if a separate policy were issued for 100% of Replacement Cost at the time of loss and otherwise meet all of Grantee’s applicable insurance requirements set forth in this Section 1.4. The delivery to Grantee of the insurance policies or the certificates of insurance as provided above shall constitute an assignment of all proceeds payable under such insurance policies relating to the Property by Grantor to Grantee as further security for the Debt. In the event of foreclosure of this Security Instrument, or other transfer of title to the Property in extinguishment in whole or in part of the Debt, all right, title and interest of Grantor in and to all proceeds payable under such policies then in force concerning the Property shall thereupon vest in the purchaser at such foreclosure, or in Grantee or other transferee in the event of

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such other transfer of title. Approval of any insurance by Grantee shall not be a representation of the solvency of any insurer or the sufficiency of any amount of insurance. In the event Grantor fails to provide, maintain, keep in force or deliver and furnish to Grantee the policies of insurance required by this Security Instrument or evidence of their renewal as required herein, Grantee may, but shall not be obligated to, procure such insurance and Grantor shall pay all amounts advanced by Grantee therefor, together with interest thereon at the Default Interest Rate from and after the date advanced by Grantee until actually repaid by Grantor, promptly upon demand by Grantee. Any amounts so advanced by Grantee, together with interest thereon, shall be secured by this Security Instrument and by all of the other Loan Documents securing all or any part of the Debt. Grantee shall not be responsible for nor incur any liability for the insolvency of the insurer or other failure of the insurer to perform, even though Grantee has caused the insurance to be placed with the insurer after failure of Grantor to furnish such insurance. Grantor shall not obtain insurance for the Property in addition to that required by Grantee without the prior written consent of Grantee, which consent will not be unreasonably withheld provided that (i) Grantee is a named insured on such insurance, (ii) Grantee receives complete copies of all policies evidencing such insurance, and (iii) such insurance complies with all of the applicable requirements set forth herein.

1.5Payment of Taxes.

Grantor shall pay or cause to be paid, except to the extent provision is actually made therefor pursuant to Section 1.6 of this Security Instrument, all taxes and assessments which are or may become a lien on the Property or which are assessed against or imposed upon the Property. Grantor shall furnish Grantee with receipts (or if receipts are not immediately available, with copies of canceled checks evidencing payment with receipts to follow promptly after they become available) showing payment of such taxes and assessments at least fifteen (15) days prior to the applicable delinquency date therefor. Notwithstanding the foregoing, Grantor may, in good faith, by appropriate proceedings and upon notice to Grantee, contest the validity, applicability or amount of any asserted tax or assessment so long as (a) such contest is diligently pursued, (b) Grantee determines, in its subjective opinion, that such contest suspends the obligation to pay the tax and that nonpayment of such tax or assessment will not result in the sale, loss, forfeiture or diminution of the Property or any part thereof or any interest of Grantee therein, and (c) prior to the earlier of the commencement of such contest or the delinquency date of the asserted tax or assessment, Grantor deposits in the Impound Account (as hereinafter defined) an amount determined by Grantee to be adequate to cover the payment of such tax or assessment and a reasonable additional sum to cover possible interest, costs and penalties; provided, however, that Grantor shall promptly cause to be paid any amount adjudged by a court of competent jurisdiction to be due, with all interest, costs and penalties thereon, promptly after such judgment becomes final, and provided further that in any event each such contest shall be concluded and the taxes, assessments, interest, costs and penalties shall be paid prior to the date any writ or order is issued under which the Property may be sold, lost or forfeited.

1.6Tax Impound Account.

Grantor shall establish and maintain at all times while this Security Instrument continues in effect an impound account (the “Impound Account”) with Grantee for payment of real estate taxes and assessments on the Property and as additional security for the Debt. Simultaneously with the execution hereof, Grantor shall deposit in the Impound Account an amount determined

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by Grantee to be necessary to ensure that there will be on deposit with Grantee an amount which, when added to the monthly payments subsequently required to be deposited with Grantee hereunder on account of real estate taxes and assessments, will result in there being on deposit with Grantee in the Impound Account an amount sufficient to pay the next due installment of real estate taxes and assessments on the Property at least one (1) month prior to the earlier of (a) the due date thereof or (b) any such date by which Grantor or Grantee is required by law to pay same. Commencing on the first monthly payment date under the Note and continuing thereafter on each monthly payment date under the Note, Grantor shall pay to Grantee, concurrently with and in addition to the monthly payment due under the Note and until the Debt is fully paid and performed, deposits in an amount equal to one-twelfth (1/12) of the amount of the annual real estate taxes and assessments that will next become due and payable on the Property, each as estimated and determined by Grantee. So long as no Event of Default has occurred, and no event has occurred or failed to occur which with the passage of time, the giving of notice, or both would constitute an Event of Default (a “Default;) all sums in the Impound Account shall be held by Grantee in the Impound Account to pay said taxes and assessments before the same become delinquent. Grantor shall be responsible for ensuring the receipt by Grantee, at least thirty (30) days prior to the respective due date for payment thereof, of all bills, invoices and statements for all taxes and assessments to be paid from the Impound Account, and so long as no Event of Default has occurred, Grantee shall pay the governmental authority or other party entitled thereto directly to the extent funds are available for such purpose in the Impound Account. Commencing on the first payment date following an Event of Default, and continuing thereafter on each monthly payment date under the Note, in addition to the monthly deposit for taxes and assessments, Grantor shall deposit with Grantee an amount equal to one-twelfth (1/12) of the amount of the annual premiums that will next become due and payable on insurance policies which Grantor is required to maintain hereunder. In making any payment from the Impound Account, Grantee shall be entitled to rely on any bill, statement or estimate procured from the appropriate public office or insurance company or agent without any inquiry into the accuracy of such bill, statement or estimate and without any inquiry into the accuracy, validity, enforceability or contestability of any tax, assessment, valuation, sale, forfeiture, tax lien or title or claim thereof. No interest on funds contained in the Impound Account, if any, shall be paid by Grantee to Grantor.

1.7[Reserved].

1.8Replacement Reserve.

(a)Following an Event of Default, as additional security for the Debt, Grantor shall establish and maintain at all times thereafter while this Security Instrument continues in effect a repair reserve (the “Replacement Reserve”) with Grantee for payment of costs and expenses incurred by Grantor in connection with the performance of work to the roofs, chimneys, gutters, downspouts, paving, curbs, ramps, driveways, balconies, porches, patios, exterior walls, exterior doors and doorways, windows, elevators and mechanical and HVAC equipment (collectively, the “Repairs”). Commencing on the first monthly Payment Date under the Note following an Event of Default and continuing thereafter on each monthly Payment Date under the Note, Grantor shall pay to Grantee, concurrently with and in addition to the monthly payment due under the Note and until the Debt is fully paid and performed, a deposit to the Replacement Reserve in an

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amount determined by Grantee. All sums in the Replacement Reserve shall be held by Grantee in the Replacement Reserve to pay the costs and expenses of Repairs. Grantee shall, to the extent funds are available for such purpose in the Replacement Reserve, disburse to Grantor the amount paid or incurred by Grantor in performing such Repairs within ten (10) days following: (a) the receipt by Grantee of a written request from Grantor for disbursement from the Replacement Reserve and a certification by Grantor in a form approved in writing by Grantee that the applicable item of Repair has been completed; (b) the delivery to Grantee of invoices, receipts or other evidence satisfactory to Grantee, verifying the cost of performing the Repairs; (c) for disbursement requests in excess of $25,000.00, the delivery to Grantee of affidavits, lien waivers or other evidence reasonably satisfactory to Grantee showing that all materialmen, laborers, subcontractors and any other parties who might or could claim statutory or common law liens and are furnishing or have furnished material or labor to the Property have been paid all amounts due for labor and materials furnished to the Property; (d) for disbursement requests in excess of $25,000.00, delivery to Grantee of a certification from an inspecting architect or other third party acceptable to Grantee describing the completed Repairs and verifying the completion of the Repairs and the value of the completed Repairs, and (e) for disbursement requests in excess of $25,000.00, delivery to Grantee of a new certificate of occupancy for the portion of the Improvements covered by such Repairs, if said new certificate of occupancy is required by law, or a certification by Grantor that no new certificate of occupancy is required. Grantee shall not be required to make advances from the Replacement Reserve more frequently than once in any ninety (90) day period. In making any payment from the Replacement Reserve, Grantee shall be entitled to rely on such request from Grantor without any inquiry into the accuracy, validity or contestability of any such amount. Grantee may, at Grantor’s expense, make or cause to be made during the term of this Security Instrument an annual inspection of the Property to determine the need, as determined by Grantee in its reasonable judgment, for further Repairs of the Property. In the event that such inspection reveals that further Repairs of the Property are required, Grantee shall provide Grantor with a written description of the required Repairs and Grantor shall complete such Repairs to the reasonable satisfaction of Grantee within ninety (90) days after the receipt of such description from Grantee, or such later date as may be approved by Grantee in its sole discretion. Interest on the funds contained in the Replacement Reserve shall be credited to Grantor as provided in Section 4.31 hereof.

(b)As additional security for the payment and performance by Grantor of all duties, responsibilities and obligations under the Note and the other Loan Documents, Grantor hereby unconditionally and irrevocably assigns, conveys, pledges, mortgages, transfers, delivers, deposits, sets over and confirms unto Grantee, and hereby grants to Grantee a security interest in, (i) the Impound Account and the Replacement Reserve, if any, and any other reserve or escrow account established pursuant to the terms hereof or of any other Loan Document (collectively, the “Reserves”), (ii) the accounts into which the Reserves have been deposited, (iii) all insurance on said accounts, (iv) all accounts, contract rights and general intangibles or other rights and interests pertaining thereto, (v) all sums now or hereafter therein or represented thereby, (vi) all replacements, substitutions or proceeds thereof, (vii) all instruments and documents now or hereafter evidencing the Reserves or such accounts, (viii) all powers, options, rights, privileges and immunities pertaining to the Reserves (including the right to make withdrawals therefrom), and (ix) all proceeds of the foregoing. Grantor hereby authorizes and consents to the account into which the Reserves have been deposited being held in Grantee’s name or the name of any

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entity servicing the Note for Grantee and hereby acknowledges and agrees that Grantee, or at Grantee’s election, such servicing agent, shall have exclusive control over said account. Notice of the assignment and security interest granted to Grantee herein may be delivered by Grantee at any time to the financial institution wherein the Reserves have been established, and Grantee, or such servicing entity, shall have possession of all passbooks or other evidences of such accounts. Grantor hereby assumes all risk of loss with respect to amounts on deposit in the Reserves. Grantor hereby knowingly, voluntarily and intentionally stipulates, acknowledges and agrees that the advancement of the funds from the Reserves as set forth herein is at Grantor’s direction and is not the exercise by Grantee of any right of set-off or other remedy upon a Default or an Event of Default. Grantor hereby waives all right to withdraw funds from the Reserves except as provided for in this Security Instrument. If an Event of Default shall occur hereunder or under any other of the Loan Documents Grantee may, without notice or demand on Grantor, at its option: (A) withdraw any or all of the funds (including, without limitation, interest) then remaining in the Reserves and apply the same, after deducting all costs and expenses of safekeeping, collection and delivery (including, but not limited to, reasonable attorneys’ fees, costs and expenses) to the Debt or any other obligations of Grantor under the other Loan Documents in such manner as Grantee shall deem appropriate in its sole discretion, and the excess, if any, shall be paid to Grantor, (B) exercise any and all rights and remedies of a secured party under any applicable Uniform Commercial Code, or (C) exercise any other remedies available at law or in equity. No such use or application of the funds contained in the Reserves shall be deemed to cure any Default or Event of Default.

(c)The Reserves shall not, unless otherwise explicitly required by applicable law, be or be deemed to be escrow or trust funds, but, at Grantee’s option and in Grantee’s discretion, may either be held in a separate account or be commingled by Grantee with the general funds of Grantee. The Reserves are solely for the protection of Grantee and entail no responsibility on Grantee’s part beyond the payment of the respective items for which they are held following receipt of bills, invoices or statements therefor in accordance with the terms hereof and beyond the allowing of due credit for the sums actually received. Upon assignment of this Security Instrument by Grantee, any funds in the Reserves shall be turned over to the assignee and any responsibility of Grantee, as assignor, with respect thereto shall terminate. If the funds in the applicable Reserve shall exceed the amount of payments actually applied by Grantee for the purposes and items for which the applicable Reserve is held, such excess may be credited by Grantee on subsequent payments to be made hereunder or, at the option of Grantee, refunded to Grantor. If, however, the applicable Reserve shall not contain sufficient funds to pay the sums required by the dates on which such sums are required to be on deposit in such account, Grantor shall, within ten (10) days after receipt of written notice thereof, deposit with Grantee the full amount of any such deficiency. If Grantor shall fail to deposit with Grantee the full amount of such deficiency as provided above, Grantee shall have the option, but not the obligation, to make such deposit, and all amounts so deposited by Grantee, together with interest thereon at the Default Interest Rate from the date so deposited by Grantee until actually paid by Grantor, shall be immediately paid by Grantor on demand and shall be secured by this Security Instrument and by all of the other Loan Documents securing all or any part of the Debt. If there is an Event of Default under this Security Instrument, Grantee may, but shall not be obligated to, apply at any time the balance then remaining in any or all of the Reserves against the Debt in whatever order Grantee shall subjectively determine. No such application of any or all of the Reserves shall be

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deemed to cure any Event of Default. Upon full payment of the Debt in accordance with its terms or at such earlier time as Grantee may elect, the balance of any or all of the Reserves then in Grantee’s possession shall be paid over to Grantor and no other party shall have any right or claim thereto.

1.9Casualty and Condemnation.

Grantor shall give Grantee prompt written notice of the occurrence of any casualty affecting, or the institution of any proceedings for eminent domain or for the condemnation of, the Property or any portion thereof. All insurance proceeds on the Property, and all causes of action, claims, compensation, awards and recoveries for any damage, condemnation or taking of all or any part of the Property or for any damage or injury to it for any loss or diminution in value of the Property, are hereby assigned to and shall be paid to Grantee. Grantee may participate in any suits or proceedings relating to any such proceeds, causes of action, claims, compensation, awards or recoveries, and Grantee is hereby authorized, in its own name or in Grantor’s name, to adjust any loss covered by insurance or any condemnation claim or cause of action, and to settle or compromise any claim or cause of action in connection therewith, and Grantor shall from time to time deliver to Grantee any instruments required to permit such participation; provided, however, that, so long as no Default or Event of Default shall have occurred, Grantee shall not have the right to participate in the adjustment of any loss which is not in excess of the lesser of (i) five percent (5%) of the then outstanding principal balance of the Note and (ii) $250,000. Grantee shall apply any sums received by it under this Section first to the payment of all of its costs and expenses (including, but not limited to, reasonable legal fees and disbursements) incurred in obtaining those sums, and then, as follows:

(a)In the event that less than forty percent (40%) of the Improvements located on the Premises have been taken or destroyed, then if and so long as:

(1)no Default or Event of Default has occurred hereunder or under any of the other Loan Documents, and

(2)the Property can, in Grantee’s judgment, with diligent restoration or repair, be returned to a condition at least equal to the condition thereof that existed prior to the casualty or partial taking causing the loss or damage within the earlier to occur of (i) nine (9) months after the receipt of insurance proceeds or condemnation awards by either Grantor or Grantee, and (ii) sixty (60) days prior to the stated maturity date of the Note, and

(3)all necessary governmental approvals can be obtained to allow the rebuilding and reoccupancy of the Property as described in Section (a)(2) above, and

(4)there are sufficient sums available (through insurance proceeds or condemnation awards and contributions by Grantor, the full amount of which shall, at Grantee’s option, have been deposited with Grantee) for such restoration or repair (including, without limitation, for any costs and expenses of Grantee to be incurred in administering said restoration or repair) and for payment of principal and interest to become due and payable under the Note during such restoration or repair, and

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(5)the economic feasibility of the Improvements after such restoration or repair will be such that income from their operation is reasonably anticipated to be sufficient to pay operating expenses of the Property and debt service on the Debt in full with the same coverage ratio considered by Grantee in its determination to make the loan secured hereby, and

(6)in the event that the insurance proceeds or condemnation awards received as a result of such casualty or partial taking exceed the lesser of (i) five percent (5%) of the then outstanding principal balance of the Note and (ii) $250,000.00, Grantor shall have delivered to Grantee, at Grantor’s sole cost and expense, an appraisal report in form and substance satisfactory to Grantee appraising the value of the Property as proposed to be restored or repaired to be not less than the appraised value of the Property considered by Grantee in its determination to make the loan secured hereby, and

(7)Grantor so elects by written notice delivered to Grantee within five (5) days after settlement of the aforesaid insurance or condemnation claim, then, Grantee shall, solely for the purposes of such restoration or repair, advance so much of the remainder of such sums as may be required for such restoration or repair, and any funds deposited by Grantor therefor, to Grantor in the manner and upon such terms and conditions as would be required by a prudent interim construction lender, including, but not limited to, the prior approval by Grantee of plans and specifications, contractors and form of construction contracts and the furnishing to Grantee of permits, bonds, lien waivers, invoices, receipts and affidavits from contractors and subcontractors, in form and substance satisfactory to Grantee in its discretion, with any remainder being applied by Grantee for payment of the Debt in whatever order Grantee directs in its absolute discretion.

(b)In all other cases, namely, in the event that forty percent (40%) or more of the Improvements located on the Premises have been taken or destroyed or Grantor does not elect to restore or repair the Property pursuant to clause (a) above or otherwise fails to meet the requirements of clause (a) above, then, in any of such events, Grantee shall elect, in Grantee’s absolute discretion and without regard to the adequacy of Grantee’s security, to do either of the following: (1) accelerate the maturity date of the Note and declare any and all of the Debt to be immediately due and payable and apply the remainder of such sums received pursuant to this Section to the payment of the Debt in whatever order Grantee directs in its absolute discretion, with any remainder being paid to Grantor, or (2) notwithstanding that Grantor may have elected not to restore or repair the Property pursuant to the provisions of Section 1.9(a)(7) above, require Grantor to restore or repair the Property in the manner and upon such terms and conditions as would be required by a prudent interim construction lender, including, but not limited to, the deposit by Grantor with Grantee, within thirty (30) days after demand therefor, of any deficiency reasonably determined by Grantee to be necessary in order to assure the availability of sufficient funds to pay for such restoration or repair, including Grantee’s costs and expenses to be incurred in connection therewith, the prior approval by Grantee of plans and specifications, contractors and form of construction contracts and the furnishing to Grantee of permits, bonds, lien waivers, invoices, receipts and affidavits from contractors and subcontractors, in form and substance satisfactory to Grantee in its discretion, and apply the remainder of such sums toward such

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restoration and repair, with any balance thereafter remaining being applied by Grantee for payment of the Debt in whatever order Grantee directs in its absolute discretion.

Any reduction in the Debt resulting from Grantee’s application of any sums received by it hereunder shall take effect only when Grantee actually receives such sums and elects to apply such sums to the Debt and, in any event, the unpaid portion of the Debt shall remain in full force and effect and Grantor shall not be excused in the payment thereof. Partial payments received by Grantee, as described in the preceding sentence, shall be applied first to the final payment due under the Note and thereafter to installments due under the Note in the inverse order of their due date. If Grantor elects or Grantee directs Grantor to restore or repair the Property after the occurrence of a casualty or partial taking of the Property as provided above, Grantor shall promptly and diligently, at Grantor’s sole cost and expense and regardless of whether the insurance proceeds or condemnation award, as appropriate, shall be sufficient for the purpose, restore, repair, replace and rebuild the Property as nearly as possible to its value, condition and character immediately prior to such casualty or partial taking in accordance with the foregoing provisions and Grantor shall pay to Grantee all costs and expenses of Grantee incurred in administering said rebuilding, restoration or repair, provided that Grantee makes such proceeds or award available for such purpose. Grantor agrees to execute and deliver from time to time such further instruments as may be requested by Grantee to confirm the foregoing assignment to Grantee of any award, damage, insurance proceeds, payment or other compensation. Grantee is hereby irrevocably constituted and appointed the attorney-intact of Grantor (which power of attorney shall be irrevocable so long as any portion of the Debt is outstanding, shall be deemed coupled with an interest, shall survive the voluntary or involuntary dissolution of Grantor and shall not be affected by any disability or incapacity suffered by Grantor subsequent to the date hereof), with full power of substitution, subject to the terms of this Section, to settle for, collect and receive any such awards, damages, insurance proceeds, payments or other compensation from the parties or authorities making the same, to appear in and prosecute any proceedings therefor and to give receipts and acquittances therefor.

1.10Construction Liens.

Grantor shall pay when due all claims and demands of mechanics, materialmen, laborers and others for any work performed or materials delivered for the Premises or the Improvements; provided, however, that, Grantor shall have the right to contest in good faith any such claim or demand, so long as it does so diligently, by appropriate proceedings and without prejudice to Grantee and provided that neither the Property nor any interest therein would be in any danger of sale, loss or forfeiture as a result of such proceeding or contest. In the event Grantor shall contest any such claim or demand, Grantor shall promptly notify Grantee of such contest and thereafter shall, upon Grantee’s request, promptly provide a bond, cash deposit or other security satisfactory to Grantee to protect Grantee’s interest and security should the contest be unsuccessful. If Grantor shall fail to immediately discharge or provide security against any such claim or demand as aforesaid, Grantee may do so and any and all expenses incurred by Grantee, together with interest thereon at the Default Interest Rate from the date incurred by Grantee until actually paid by Grantor, shall be immediately paid by Grantor on demand and shall be secured by this Security Instrument and by all of the other Loan Documents securing all or any part of the Debt.

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1.11Rents and Profits.

As additional and collateral security for the payment of the Debt and cumulative of any and all rights and remedies herein provided for, Grantor hereby absolutely and presently assigns to Grantee all existing and future Rents and Profits. Grantor hereby grants to Grantee the sole, exclusive and immediate right, without taking possession of the Property, to demand, collect (by suit or otherwise), receive and give valid and sufficient receipts for any and all of said Rents and Profits, for which purpose Grantor does hereby irrevocably make, constitute and appoint Grantee its attorney-in-fact with full power to appoint substitutes or a trustee to accomplish such purpose (which power of attorney shall be irrevocable so long as any portion of the Debt is outstanding, shall be deemed to be coupled with an interest, shall survive the voluntary or involuntary dissolution of Grantor and shall not be affected by any disability or incapacity suffered by Grantor subsequent to the date hereof). Grantee shall be without liability for any loss which may arise from a failure or inability to collect Rents, proceeds or other payments. However, until the occurrence of an Event of Default under this Security Instrument or under any other of the Loan Documents, Grantor shall have a license to collect, receive, use and enjoy the Rents and Profits when due and prepayments thereof for not more than one (1) month prior to due date thereof. Upon the occurrence of an Event of Default, Grantor’s license shall automatically terminate without notice to Grantor and Grantee may thereafter, without taking possession of the Property, collect the Rents and Profits itself or by an agent or receiver. From and after the termination of such license, Grantor shall be the agent of Grantee in collection of the Rents and Profits, and all of the Rents and Profits so collected by Grantor shall be held in trust by Grantor for the sole and exclusive benefit of Grantee, and Grantor shall, within one (1) business day after receipt of any Rents and Profits, pay the same to Grantee to be applied by Grantee as hereinafter set forth. Neither the demand for or collection of Rents and Profits by Grantee shall constitute any assumption by Grantee of any obligations under any agreement relating thereto. Grantee is obligated to account only for such Rents and Profits as are actually collected or received by Grantee. Grantor irrevocably agrees and consents that the respective payors of the Rents and Profits shall, upon demand and notice from Grantee of an Event of Default, pay said Rents and Profits to Grantee without liability to determine the actual existence of any Event of Default claimed by Grantee. Grantor hereby waives any right, claim or demand which Grantor may now or hereafter have against any such payer by reason of such payment of Rents and Profits to Grantee, and any such payment shall discharge such payor’s obligation to make such payment to Grantor. All Rents collected or received by Grantee may be applied against all expenses of collection, including, without limitation, reasonable attorneys’ fees, against costs of operation and management of the Property and against the Debt, in whatever order or priority as to any of the items so mentioned as Grantee directs in its sole subjective discretion and without regard to the adequacy of its security. Neither the exercise by Grantee of any rights under this Section nor the application of any Rents to the Debt shall cure or be deemed a waiver of any Event of Default. The assignment of Rents and Profits hereinabove granted shall continue in full force and effect during any period of foreclosure or redemption with respect to the Property. Grantor has executed an Assignment of Leases and Rents dated of even date herewith (the “Assignment”) in favor of Grantee covering all of the right, title and interest of Grantor, as landlord, lessor or licensor, in and to any Leases. All rights and remedies granted to Grantee under the Assignment shall be in addition to and cumulative of all rights and remedies granted to Grantee hereunder.

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1.12Leases.

(a)Grantor covenants and agrees that it shall not enter into any Lease affecting 7,500 square feet or more of the Property or having a term of five (5) years or more without the prior written approval of Grantee, which approval shall not be unreasonably withheld. The request for approval of each such proposed new Lease shall be made to Grantee in writing and shall state that, pursuant to the terms of this Security Instrument, failure to approve or disapprove such proposed Lease within fifteen (15) business days is deemed approval and Grantor shall furnish to Grantee (and any loan servicer specified from time to time by Grantee): (i) such biographical and financial information about the proposed Tenant as Grantee may require in conjunction with its review, (ii) a copy of the proposed form of Lease, and (iii) a summary of the material terms of such proposed Lease (including, without limitation, rental terms and the term of the proposed lease and any options). It is acknowledged that Grantee intends to include among its criteria for approval of any such proposed Lease the following: (i) such Lease shall be with a bona-fide arm’s-length Tenant; (ii) such Lease shall not contain any rental or other concessions which are not then customary and reasonable for similar properties and Leases in the market area of the Premises; (iii) such Lease shall provide that the Tenant pays for its expenses; (iv) the rental shall be at least at the market rate then prevailing for similar properties and leases in the market areas of the Premises; and (v) such Lease shall contain subordination and attornment provisions in form and content acceptable to Grantee. Failure of Grantee to approve or disapprove any such proposed Lease within fifteen (15) business days after receipt of such written request and all the documents and information required to be furnished to Grantee with such request shall be deemed approval, provided that the written request for approval specifically mentioned the same.

(b)Prior to execution of any Leases of space in the Improvements after the date hereof, Grantor shall submit to Grantee, for Grantee’s prior approval, which approval shall not be unreasonably withheld, a copy of the form Lease Grantor plans to use in leasing space in the Improvements or at the Property. All such Leases of space in the Improvements or at the Property shall be on terms consistent with the terms for similar leases in the market area of the Premises, shall provide for free rent only if the same is consistent with prevailing market conditions and shall provide for market rents then prevailing in the market area of the Premises. Such Leases shall also provide for security deposits in reasonable amounts consistent with prevailing market conditions. Grantor shall also submit to Grantee for Grantee’s approval, which approval shall not be unreasonably withheld, prior to the execution thereof, any proposed Lease of the Improvements or any portion thereof that differs materially and adversely from the aforementioned form Lease. Grantor shall not execute any Lease for all or a substantial portion of the Property, except for an actual occupancy by the Tenant, lessee or licensee thereunder, and shall at all times promptly and faithfully perform, or cause to be performed, all of the covenants, conditions and agreements contained in all Leases with respect to the Property, now or hereafter existing, on the part of the landlord, lessor or licensor thereunder to be kept and performed. Grantor shall furnish to Grantee, within ten (10) days after a request by Grantee to do so, but in any event by January 1 of each year, a current Rent Roll, certified by Grantor as being true and correct, containing the names of all Tenants with respect to the Property, the terms of their respective Leases, the spaces occupied and the rentals or fees payable thereunder and the amount of each Tenant’s security deposit. Upon the request of Grantee, Grantor shall deliver to Grantee a copy of each such Lease. Grantor shall not do or suffer to be done any act, or omit to take any

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action, that might result in a default by the landlord, lessor or licensor under any such Lease or allow the Tenant thereunder to withhold payment of rent or cancel or terminate same and shall not further assign any such Lease or any such Rents and Profits. Grantor, at no cost or expense to Grantee, shall enforce, short of termination, the performance and observance of each and every condition and covenant of each of the parties under such Leases and Grantor shall not anticipate, discount, release, waive, compromise or otherwise discharge any rent payable under any of the Leases. Grantor shall not, without the prior written consent of Grantee, modify any of the Leases, terminate or accept the surrender of any Leases, waive or release any other party from the performance or observance of any obligation or condition under such Leases except, with respect only to Leases affecting less than 7,500 square feet and having a term of five (5) years or less, in the normal course of business in a manner which is consistent with sound and customary leasing and management practices for similar properties in the community in which the Property is located, Grantor shall not permit the prepayment of any rents under any of the Leases for more than one (1) month prior to the due date thereof.

(c)Each Lease executed after the date hereof affecting any of the Premises or the Improvements must provide, in a manner approved by Grantee, that the Tenant will recognize as its landlord, lessor or licensor, as applicable, and attorn to any person succeeding to the interest of Grantor upon any foreclosure of this Security Instrument or deed in lieu of foreclosure. Each such Lease shall also provide that, upon request of said successor-in-interest, the Tenant shall execute and deliver an instrument or instruments confirming its attornment as provided for in this Section; provided, however, that neither Grantee nor any successor-in-interest shall be bound by any payment of rent for more than one (1) month in advance, or any amendment or modification of said Lease made without the express written consent of Grantee or said successor-in-interest.

(d)Upon the occurrence of an Event of Default under this Security Instrument, whether before or after the whole principal sum secured hereby is declared to be immediately due or whether before or after the institution of legal proceedings to foreclose this Security Instrument, forthwith, upon demand of Grantee, Grantor shall surrender to Grantee, and Grantee shall be entitled to take actual possession of, the Property or any part thereof personally, or by its agent or attorneys. In such event, Grantee shall have, and Grantor hereby gives and grants to Grantee, the right, power and authority to make and enter into Leases with respect to the Property or portions thereof for such rents and for such periods of occupancy and upon conditions and provisions as Grantee may deem desirable in its sole discretion, and Grantor expressly acknowledges and agrees that the term of any such Lease may extend beyond the date of any foreclosure sale of the Property, it being the intention of Grantor that in such event Grantee shall be deemed to be and shall be the attorney-in-fact of Grantor for the purpose of making and entering into Leases of parts or portions of the Property for the rents and upon the terms, conditions and provisions deemed desirable to Grantee in its sole discretion and with like effect as if such Leases had been made by Grantor as the owner in fee simple of the Property free and clear of any conditions or limitations established by this Security Instrument. The power and authority hereby given and granted by Grantor to Grantee shall be deemed to be coupled with an interest, shall not be revocable by Grantor so long as any portion of the Debt is outstanding, shall survive the voluntary or involuntary dissolution of Grantor and shall not be affected by any disability or incapacity suffered by Grantor subsequent to the date hereof. In connection with any action taken by Grantee pursuant to this Section, Grantee shall not be liable for any loss

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sustained by Grantor resulting from any failure to let the Property, or any part thereof, or from any other act or omission of Grantee in managing the Property, nor shall Grantee be obligated to perform or discharge any obligation, duty or liability under any Lease covering the Property or any part thereof or under or by reason of this instrument or the exercise of rights or remedies hereunder. Grantor shall, and does hereby, indemnify Grantee for, and hold Grantee harmless from, any and all claims, actions, demands, liabilities, loss or damage which may or might be incurred by Grantee under any such Lease or under this Security Instrument or by the exercise of rights or remedies hereunder and from any and all claims and demands whatsoever which may be asserted against Grantee by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants or agreements contained in any such Lease other than those finally determined by a court of competent jurisdiction to have resulted solely from the gross negligence or willful misconduct of Grantee. Should Grantee incur any such liability, the amount thereof, including, without limitation, costs, expenses and reasonable attorneys’ fees, together with interest thereon at the Default Interest Rate from the date incurred by Grantee until actually paid by Grantor, shall be immediately due and payable to Grantee by Grantor on demand and shall be secured hereby and by all of the other Loan Documents securing all or any part of the Debt. Nothing in this Section shall impose on Grantee any duty, obligation or responsibility for the control, care, management or repair of the Property, or for the carrying out of any of the terms and conditions of any such Lease, nor shall it operate to make Grantee responsible or liable for any waste committed on the Property by the Tenants or by any other parties or for any dangerous or defective condition of the Property, or for any negligence in the management, upkeep, repair or control of the Property. Grantor hereby assents to, ratifies and confirms any and all actions of Grantee with respect to the Property taken under this Section.

1.13Alienation and Further Encumbrances.

(a)Grantor acknowledges that Grantee has relied upon the principals of Grantor and their experience in owning and operating the Property and properties similar to the Property in connection with the closing of the loan evidenced by the Note. Accordingly, except as specifically allowed hereinbelow in this Section and notwithstanding anything to the contrary contained in Section 4.6 hereof, in the event that the Property or any part thereof or interest therein shall be sold, conveyed, disposed of, alienated, hypothecated, leased (except to Tenants of space in the Improvements in accordance with the provisions of Section 1.12 hereof), assigned, pledged, mortgaged, further encumbered or otherwise transferred or Grantor shall be divested of its title to the Property or any interest therein, in any manner or way, whether voluntarily or involuntarily, without the prior written consent of Grantee being first obtained, which consent may be withheld in Grantee’s sole discretion, then the same shall constitute an Event of Default and Grantee shall have the right, at its option, to declare any or all of the Debt, irrespective of the maturity date specified in the Note, immediately due and payable and to otherwise exercise any of its other rights and remedies contained in Article III hereof. For the purposes of this Section: (i) in the event either Grantor or any of its general partners or members is a corporation or trust, the sale, conveyance, transfer, disposition, alienation, hypothecation or encumbering of more than 10% of the issued and outstanding capital stock of Grantor or any of its general partners or members or of the beneficial interest of such trust (or the issuance of new shares of capital stock in Grantor or any of its general partners or managing members so that immediately after such issuance (in one or a series of transactions) the total capital stock then

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issued and outstanding is more than 110% of the total immediately prior to such issuance) shall be deemed to be a transfer of an interest in the Property; and (ii) in the event Grantor or any general partner or managing member of Grantor is a limited or general partnership, a joint venture or a limited liability company, a change in the ownership interests in any general partner, any joint venturer or any managing member, either voluntarily, involuntarily or otherwise, or the sale, conveyance, transfer, disposition, alienation, hypothecation or encumbering of all or any portion of the interest of any such general partner, joint venturer or managing member in Grantor or such general partner or managing member (whether in the form of a beneficial or partnership interest or in the form of a power of direction, control or management, or otherwise), shall be deemed to be a transfer of an interest in the Property. Notwithstanding the foregoing, however, (i) limited partnership interests in Grantor or in any general partner or member of Grantor shall be freely transferable without the consent of Grantee, (ii) any involuntary transfer caused by the death of Grantor or any general partner, shareholder, joint venturer, member or beneficial owner of a trust shall not be an Event of Default under this Security Instrument so long as Grantor is reconstituted, if required, following such death and so long as those persons responsible for the management of the Property and Grantor remain unchanged as a result of such death or any replacement management is approved by Grantee, (iii) gifts for estate planning purposes of any individual’s interests in Grantor or in any of Grantor’s general partners, managing members or joint venturers to the spouse or any lineal descendant of such individual, or to a trust for the benefit of any one or more of such individual, spouse or lineal descendant, shall not be an Event of Default under this Security Instrument so long as Grantor is reconstituted, if required, following such gift and so long as those persons responsible for the management of the Property and Grantor remain unchanged following such gift or any replacement management is approved by Grantee and (iv) membership interests in each limited liability company tenant-in-common entity comprising Grantor or in any general partner or member of such entity shall be freely transferable without the consent of Grantee so long as the principal controlling and managing such entity as of the date hereof remains unchanged following such transfer.

(b)Notwithstanding the foregoing provisions of this Section, Grantee shall consent to a sale, conveyance or transfer of the Property in its entirety (hereinafter, “a Sale”) to any person or entity provided that, for each Sale, each of the following terms and conditions are satisfied;

(1)No Default and no Event of Default is then continuing hereunder or under any of the other Loan Documents;

(2)Grantor gives Grantee written notice of the terms of such prospective Sale not less than sixty (60) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Grantee all such information concerning the proposed transferee of the Property (hereinafter, “Buyer”) as Grantee would require in evaluating an initial extension of credit to a borrower and pays to Grantee a non-refundable application fee in the amount of $5,000. Grantee shall have the right to approve or disapprove the proposed Buyer, In determining whether to give or withhold its approval of the proposed Buyer, Grantee shall consider the Buyer’s experience and track record in owning and operating facilities similar to the Property, the Buyer’s financial strength, the Buyer’s general business standing and the Buyer’s relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Grantee’s

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agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Grantee determines to be commercially reasonable in Grantee’s sole discretion and, if given, may be given subject to such conditions as Grantee may deem appropriate;

(3)Grantor pays Grantee, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by Grantee in connection with the Sale, plus an amount equal to one half of one percent (0.5%) of the then outstanding principal balance of the Note for the first Sale and one percent (1.0%) of the then outstanding principal balance of the Note for each Sale after the First Sale;

(4)The Buyer assumes and agrees to pay the Debt subject to the provisions of Section 4.27 hereof and, prior to or concurrently with the closing of such Sale, the Buyer executes, without any cost or expense to Grantee, such documents and agreements as Grantee shall reasonably require to evidence and effectuate said assumption and delivers such legal opinions as Grantee may require;

(5)A party associated with the Buyer approved by Grantee in its sole discretion assumes the obligations of the current Indemnitor under its guaranty or indemnity agreement and such party associated with the Buyer executes, without any cost or expense to Grantee, a new guaranty or indemnity agreement in form and substance satisfactory to Grantee and delivers such legal opinions as Grantee may require;

(6)Grantor and the Buyer execute, without any cost or expense to Grantee, new financing statements or financing statement amendments and any additional documents reasonably requested by Grantee;

(7)Grantor delivers to Grantee, without any cost or expense to Grantee, such endorsements to Grantee’s title insurance policy, hazard insurance policy endorsements or certificates and other similar materials as Grantee may deem necessary at the time of the Sale, all in form and substance satisfactory to Grantee, including, without limitation, an endorsement or endorsements to Grantee’s title insurance policy insuring the lien of this Security Instrument, extending the effective date of such policy to the date of execution and delivery (or, if later, of recording) of the assumption agreement referenced above in subparagraph (4) of this Section, with no additional exceptions added to such policy, and insuring that fee simple title to the Property is vested in the Buyer;

(8)Grantor executes and delivers to Grantee, without any cost or expense to Grantee, a release of Grantee, its officers, directors, employees and agents, from all claims and liability relating to the transactions evidenced by the Loan Documents, through and including the date of the closing of the Sale, which agreement shall be in form and substance satisfactory to Grantee and shall be binding upon the Buyer;

(9)Subject to the provisions of Section 4.27 hereof, such Sale is not construed so as to relieve Grantor of any personal liability under the Note or any of the other Loan

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Documents for any acts or events occurring or obligations arising prior to or simultaneously with the closing of such Sale, whether or not same is discovered prior or subsequent to the closing of such Sale, and Grantor executes, without any cost or expense to Grantee, such documents and agreements as Grantee shall reasonably require to evidence and effectuate the ratification of said personal liability. Grantor shall be released from and relieved of any personal liability under the Note or any of the other Loan Documents for any acts or events occurring or obligations arising after the closing of such Sale which are not caused by or arising out of any acts or events occurring or obligations arising prior to or simultaneously with the closing of such Sale, and

(10)Such Sale is not construed so as to relieve any current Indemnitor of its obligations under any guaranty or indemnity agreement for any acts or events occurring or obligations arising prior to or simultaneously with the closing of such Sale, and each such current Indemnitor executes, without any cost or expense to Grantee, such documents and agreements as Grantee shall reasonably require to evidence and effectuate the ratification of each such guaranty and indemnity agreement. Each such current Indemnitor shall be released from and relieved of any of its obligations under any guaranty or indemnity agreement executed in connection with the loan secured hereby for any acts or events occurring or obligations arising after the closing of such Sale which are not caused by or arising out of any acts or events occurring or obligations arising prior to or simultaneously with the closing of such Sale.

(c)Notwithstanding the foregoing to the contrary, Grantor shall have the right to obtain subordinate financing on the Property secured by interests in the Grantor provided (i) the subordinate lender executes a subordination and standstill agreement acceptable to Grantee in its sole discretion, (ii) the Property with such subordinate financing (A) supports a minimum debt service coverage ratio of 1.15:1, as determined by Lender in its sole discretion and (B) does not have a loan-to-value ratio in excess of 85%, as determined by an independent MAI appraisal at Grantor’s expense, subject to review and approval by Grantee and (iii) Grantor or subsequent Buyer reimburses Grantee for all reasonable costs and expenses incurred by Grantee in connection with and directly related to such subordinate financing. In addition, a subsequent Buyer may obtain subordinate financing on the Property secured by interests in such Buyer provided the Property with such subordinated financing does not exceed a loan to acquisition price of 85%. Subordinate financing obtained by a subsequent Buyer may be secured by a subordinate lien on the Property if the conditions set forth in this Section 1.13(c)(i), (ii) (A) and (B) and (iii) are satisfied.

1.14Payment of Utilities. Assessments, Charges, Etc.

Grantor shall pay when due all utility charges which are incurred by Grantor or which may become a charge or lien against any portion of the Property for gas, electricity, water and sewer services furnished to the Premises and/or the Improvements and all other assessments or charges of a similar nature, or assessments payable pursuant to any restrictive covenants, whether public or private, affecting the Premises and/or the Improvements or any portion thereof, whether or not such assessments or charges are or may become liens thereon.

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1.15Access Privileges and Inspections.

Grantee and the agents, representatives and employees of Grantee shall, subject to the rights of Tenants, have full and free access to the Premises and the Improvements and any other location where books and records concerning the Property are kept at all reasonable times and, except in the event of an emergency, upon not less than 24 hours prior notice (which notice may be telephonic) for the purposes of inspecting the Property and of examining, copying and making extracts from the books and records of Grantor relating to the Property. Grantor shall lend assistance to all such agents, representatives and employees of Grantee.

1.16Waste; Alteration of Improvements.

Grantor shall not commit, suffer or permit any waste on the Property nor take any actions that might invalidate any insurance carried on the Property. Grantor shall maintain the Property in good condition and repair. No part of the Improvements may be removed, demolished or materially altered, without the prior written consent of Grantee. Without the prior written consent of Grantee, Grantor shall not commence construction of any improvements on the Premises other than improvements required for the maintenance or repair of the Property.

1.17Zoning.

Without the prior written consent of Grantee, Grantor shall not seek, make, suffer, consent to or acquiesce in any change in the zoning or conditions of use of the Premises or the Improvements. Grantor shall comply with and make all payments required under the provisions of any covenants, conditions or restrictions affecting the Premises or the Improvements. Grantor shall comply with all existing and future requirements of all governmental authorities having jurisdiction over the Property. Grantor shall keep all licenses, permits, franchises and other approvals necessary for the operation of the Property in full force and effect. Grantor shall operate the Property as a retail shopping center for so long as the Debt is outstanding. If, under applicable zoning provisions, the use of all or any part of the Premises or the Improvements is or becomes a nonconforming use, Grantor shall not cause or permit such use to be discontinued or abandoned without the prior written consent of Grantee. Further, without Grantee’s prior written consent, Grantor shall not file or subject any part of the Premises or the Improvements to any declaration of condominium or co-operative or convert any part of the Premises or the Improvements to a condominium, co-operative or other form of multiple ownership and governance.

1.18Financial Statements and Books and Records.

Grantor shall keep accurate books and records of account of the Property and its own financial affairs sufficient to permit the preparation of financial statements therefrom in accordance with generally accepted accounting principles. Grantee and its duly authorized representatives shall have the right to examine, copy and audit Grantor’s records and books of account at all reasonable times. So long as this Security Instrument continues in effect, Grantor shall provide to Grantee, in addition to any other financial statements required hereunder or under any of the other Loan Documents, the following financial statements and information, all

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of which must be certified to Grantee as being true and correct by Grantor or the person or entity to which they pertain, as applicable, and be prepared in accordance with generally accepted accounting principles consistently applied and be in form and substance acceptable to Grantee:

(a)copies of all tax returns filed by Grantor, within thirty (30) days after the date of filing;

(b)monthly operating statements for the Property, within fifteen (15) days after the end of each of the first (1st) twelve (12) calendar months following the date hereof; and

(c)quarterly operating statements for the Property, within thirty (30) days after the end of each March, June, September and December commencing with the first (1st) of such months to occur following the first (1st) anniversary of the date hereof;

(d)annual balance sheets for the Property and annual financial statements for Grantor, each principal or general partner in Grantor, and each Indemnitor, within ninety (90) days after the end of each calendar year;

(e)such other information with respect to the Property, Grantor, the principals or general partners in Grantor, and each Indemnitor, which may be reasonably requested from time to time by Grantee, within a reasonable time after the applicable request.

If any of the aforementioned materials are not furnished to Grantee within the applicable time periods or Grantee has a reasonable basis to be dissatisfied with the contents of any of the foregoing and has notified Grantor of its dissatisfaction, in addition to any other rights and remedies of Grantee contained herein, (i) Grantor shall pay to Grantee upon demand, at Grantee’s option and in its sole discretion, an amount equal to $10,000 for each of the aforementioned materials that is not delivered in accordance with general accepted accounting principles, provided Grantee has given Grantor at least 30 days prior notice of such failure, and (ii) Grantee shall have the right, but not the obligation, to obtain the same by means of an audit by an independent certified public accountant selected by Grantee, in which event Grantor agrees to pay, or to reimburse Grantee for, any expense of such audit and further agrees to provide all necessary information to said accountant and to otherwise cooperate in the making of such audit.

1.19Further Documentation.

Grantor shall, on the request of Grantee and at the expense of Grantor: (a) promptly correct any defect, error or omission which may be discovered in the contents of this Security Instrument or in the contents of any of the other Loan Documents; (b) promptly execute, acknowledge, deliver and record or file such further instruments (including, without limitation, further mortgages, deeds of trust, security deeds, security agreements, financing statements, continuation statements and assignments of rents or leases) and promptly do such further acts as may be necessary, desirable or proper to carry out more effectively the purposes of this Security Instrument and the other Loan Documents and to subject to the liens and security interests hereof and thereof any property intended by the terms hereof and thereof to be covered hereby and thereby, including specifically, but without limitation, any renewals, additions, substitutions,

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replacements or appurtenances to the Property; (c) promptly execute, acknowledge, deliver, procure and record or file any document or instrument (including specifically, without limitation, any financing statement) deemed advisable by Grantee to protect, continue or perfect the liens or the security interests hereunder against the rights or interests of third persons; and (d) promptly furnish to Grantee, upon Grantee’s request, a duly acknowledged written statement and estoppel certificate addressed to such party or parties as directed by Grantee and in form and substance supplied by Grantee, setting forth all amounts due under the Note, stating whether any Default or Event of Default has occurred hereunder, stating whether any offsets or defenses exist against the Debt and containing such other matters as Grantee may reasonably require.

1.20Payment of Costs; Reimbursement to Grantee.

Grantor shall pay all costs and expenses of every character reasonably incurred in connection with the closing of the loan evidenced by the Note and secured hereby or otherwise attributable or chargeable to Grantor as the owner of the Property, including, without limitation, appraisal fees, recording fees, documentary, stamp, mortgage or intangible taxes, brokerage fees and commissions, title policy premiums and title search fees, uniform commercial code/tax lien/litigation search fees, escrow fees and reasonable attorneys’ fees. If Grantor defaults in any such payment, which default is not cured within any applicable grace or cure period, Grantee may pay the same and Grantor shall reimburse Grantee on demand for all such costs and expenses incurred or paid by Grantee, together with such interest thereon at the Default Interest Rate from and after the date of Grantee’s making such payment until reimbursement thereof by Grantor. Any such sums disbursed by Grantee, together with such interest thereon, shall be additional indebtedness of Grantor secured by this Security Instrument and by all of the other Loan Documents securing all or any part of the Debt. Further, Grantor shall promptly notify Grantee in writing of any litigation or threatened litigation affecting the Property, or any other demand or claim which, if enforced, could impair or threaten to impair Grantee’s security hereunder. Without limiting or waiving any other rights and remedies of Grantee hereunder, if Grantor fails to perform any of its covenants or agreements contained in this Security Instrument or in any of the other Loan Documents and such failure is not cured within any applicable grace or cure period, or if any action or proceeding of any kind (including, but not limited to, any bankruptcy, insolvency, arrangement, reorganization or other debtor relief proceeding) is commenced which might affect Grantee’s interest in the Property or Grantee’s right to enforce its security, then Grantee may, at its option, with or without notice to Grantor, make any appearances, disburse any sums and take any actions as may be necessary or desirable to protect or enforce the security of this Security Instrument or to remedy the failure of Grantor to perform its covenants and agreements (without, however, waiving any default of Grantor). Grantor agrees to pay on demand all expenses of Grantee incurred with respect to the foregoing (including, but not limited to, reasonable fees and disbursements of counsel), together with interest thereon at the Default Interest Rate from and after the date on which Grantee incurs such expenses until reimbursement thereof by Grantor. Any such expenses so incurred by Grantee, together with interest thereon as provided above, shall be additional indebtedness of Grantor secured by this Security Instrument and by all of the other Loan Documents securing all or any part of the Debt. The necessity for any such actions and of the amounts to be paid shall be determined by Grantee in its discretion. Grantee is hereby empowered to enter and to authorize others to enter upon the Property or any part thereof for the purpose of performing or observing

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any such defaulted term, covenant or condition without thereby becoming liable to Grantor or any person in possession holding under Grantor. Grantor hereby acknowledges and agrees that the remedies set forth in this Section 1.20 shall be exercisable by Grantee, and any and all payments made or costs or expenses incurred by Grantee in connection therewith shall be secured hereby and shall be, without demand, immediately repaid by Grantor with interest thereon at the Default Interest Rate, notwithstanding the fact that such remedies were exercised and such payments made and costs incurred by Grantee after the filing by Grantor of a voluntary case or the filing against Grantor of an involuntary case pursuant to or within the meaning of the Bankruptcy Reform Act of 1978, as amended, Title 11 U.S.C., or after any similar action pursuant to any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable to Grantor, Grantee, any Indemnitor, the Debt or any of the Loan Documents. Grantor hereby indemnifies and holds Grantee harmless from and against all loss, cost and expenses with respect to any Event of Default hereof, any liens (i.e., judgments, mechanics’ and materialmen’s liens, or otherwise), charges and encumbrances filed against the Property, and from any claims and demands for damages or injury, including claims for property damage, personal injury or wrongful death, arising out of or in connection with any accident or fire or other casualty on the Premises or the Improvements or any nuisance made or suffered thereon, except those that are due to Grantee’s gross negligence or willful misconduct as finally determined by a court of competent jurisdiction, including, without limitation, in any case, reasonable attorneys’ fees, costs and expenses as aforesaid, whether at pretrial, trial or appellate level, and such indemnity shall survive payment in full of the Debt. This Section shall not be construed to require Grantee to incur any expenses, make any appearances or take any actions.

1.21Security Interest.

This Security Instrument is also intended to encumber and create a security interest in, and Grantor hereby grants to Grantee a security interest in, all sums on deposit with Grantee pursuant to the provisions of Section 1.6, Section 1.7, Section 1.8 and Section 1.34 hereof or any other Section hereof or of any other Loan Document and all fixtures, chattels, accounts, equipment, inventory, contract rights, general intangibles and other personal property included within the Property, all renewals, replacements of any of the aforementioned items, or articles in substitution therefor or in addition thereto or the proceeds thereof (said property is hereinafter referred to collectively as the “Collateral”), whether or not the same shall be attached to the Premises or the Improvements in any manner. It is hereby agreed that to the extent permitted by law, all of the foregoing property is to be deemed and held to be a part of and affixed to the Premises and the Improvements. The foregoing security interest shall also cover Grantor’s leasehold interest in any of the foregoing property which is leased by Grantor. Notwithstanding the foregoing, all of the foregoing property shall be owned by Grantor and no leasing or installment sales or other financing or title retention agreement in connection therewith shall be permitted without the prior written approval of Grantee. Grantor shall, from time to time upon the request of Grantee, supply Grantee with a current inventory of all of the property in which Grantee is granted a security interest hereunder, in such detail as Grantee may reasonably require. Grantor shall promptly replace all of the Collateral subject to the lien or security interest of this Security Instrument when worn or obsolete with Collateral comparable to the worn out or obsolete Collateral when new and will not, without the prior written consent of Grantee, remove

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from the Premises or the Improvements any of the Collateral subject to the lien or security interest of this Security Instrument except such as is replaced by an article of equal suitability and value as above provided, owned by Grantor free and clear of any lien or security interest except that created by this Security Instrument and the other Loan Documents. All of the Collateral shall be kept at the location of the Premises except as otherwise required by the terms of the Loan Documents. Grantor shall not use any of the Collateral in violation of any applicable statute, ordinance or insurance policy.

Grantor warrants that (i) Grantor’s (that is, “Debtor’s”) name, identity or organizational structure, and residence or principal place of business are as set forth in Exhibit B attached hereto; (ii) Grantor (that is, “Debtor”) has been using or operating under said name, identity or organizational structure without change from the date of its formation; and (iii) the location of the collateral is upon the Land. Grantor covenants and agrees that Grantor will furnish Grantee with notice of any change in the matters addressed by clauses (i) and (iii) of this paragraph within thirty (30) days of the effective date of any such change and Grantor will promptly execute any financing statements or other instruments deemed necessary by Grantee to prevent any filed financing statement from becoming misleading or losing its perfected status.

1.22Security Agreement.

This Security Instrument constitutes a security agreement between Grantor and Grantee with respect to the Collateral in which Grantee is granted a security interest hereunder, and, cumulative of all other rights and remedies of Grantee hereunder, Grantee shall have all of the rights and remedies of a secured party under any applicable Uniform Commercial Code. Grantor hereby agrees to execute and deliver on demand and hereby irrevocably constitutes and appoints Grantee the attorney-in-fact of Grantor to execute and deliver and, if appropriate, to file with the appropriate filing officer or office, such security agreements, financing statements, continuation statements or other instruments as Grantee may request or require in order to impose, perfect or continue the perfection of the lien or security interest created hereby. To the extent specifically provided herein, Grantee shall have the right of possession of all cash, securities, instruments, negotiable instruments, documents, certificates and any other evidences of cash or other property or evidences of rights to cash rather than property, which are now or hereafter a part of the Property, and Grantor shall promptly deliver the same to Grantee, endorsed to Grantee, without further notice from Grantee. Grantor agrees to furnish Grantee with notice of any change in the name, identity, organizational structure, residence, or principal place of business or mailing address of Grantor within ten (10) days of the effective date of any such change. Upon the occurrence of any Event of Default, Grantee shall have the rights and remedies as prescribed in this Security Instrument, or as prescribed by general law, or as prescribed by any applicable Uniform Commercial Code, all at Grantee’s election. Any disposition of the Collateral may be conducted by an employee or agent of Grantee. Any person, including both Grantor and Grantee, shall be eligible to purchase any part or all of the Collateral at any such disposition. Expenses of retaking, holding, preparing for sale, selling or the like (including, without limitation, Grantee’s reasonable attorneys’ fees and legal expenses), together with interest thereon at the Default Interest Rate from the date incurred by Grantee until actually paid by Grantor, shall be paid by Grantor on demand and shall be secured by this Security Instrument and by all of the other Loan Documents securing all or any part of the Debt. Grantee shall have

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the right to enter upon the Premises and the Improvements or any real property where any of the property which is the subject of the security interest granted herein is located to take possession of, assemble and collect the same or to render it unusable, or Grantor, upon demand of Grantee, shall assemble such property and make it available to Grantee at the Premises, or at a place which is mutually agreed upon or, if no such place is agreed upon, at a place reasonably designated by Grantee to be reasonably convenient to Grantee and Grantor. If notice is required by law, Grantee shall give Grantor at least ten (10) days’ prior written notice of the time and place of any public sale of such property, or adjournments thereof, or of the time of or after which any private sale or any other intended disposition thereof is to be made, and if such notice is sent to Grantor, as the same is provided for the mailing of notices herein, it is hereby deemed that such notice shall be and is reasonable notice to Grantor. No such notice is necessary for any such property which is perishable, threatens to decline speedily in value or is of a type customarily sold on a recognized market. Any sale made pursuant to the provisions of this Section shall be deemed to have been a public sale conducted in a commercially reasonable manner if held contemporaneously with a foreclosure sale as provided in Section 3.1(e) hereof upon giving the same notice with respect to the sale of the Property hereunder as is required under said Section 3.l(e). Furthermore, to the extent permitted by law, in conjunction with, in addition to or in substitution for the rights and remedies available to Grantee pursuant to any applicable Uniform Commercial Code:

(a)In the event of a foreclosure sale, the Property may, at the option of Grantee, be sold as a whole; and

(b)It shall not be necessary that Grantee take possession of the aforementioned Collateral, or any part thereof, prior to the time that any sale pursuant to the provisions of this Section is conducted and it shall not be necessary that said Collateral, or any part thereof, be present at the location of such sale; and

(c)Grantee may appoint or delegate any one or more persons as agent to perform any act or acts necessary or incident to any sale held by Grantee, including the sending of notices and the conduct of the sale, but in the name and on behalf of Grantee.

The names and addresses of Grantor (as Debtor under any applicable Uniform Commercial Code) are set forth on Exhibit B attached hereto.

The name and address of Grantee (as Secured Party under any applicable Uniform Commercial Code) are:

Wachovia Bank, National Association

201 South Tryon Street, Suite 130,

PMB Box #4

Loan Number 50-2753516

Charlotte, North Carolina 28202

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1.23Easements and Rights-of-Way.

Grantor shall not grant any easement or right-of-way with respect to all or any portion of the Premises or the Improvements without the prior written consent of Grantee. The purchaser at any foreclosure sale hereunder may, at its discretion, disaffirm any easement or right-of-way granted in violation of any of the provisions of this Security Instrument and may take immediate possession of the Property free from, and despite the terms of, such grant of easement or right-of-way. If Grantee consents to the grant of an easement or right-of-way, Grantee agrees to grant such consent without charge to Grantor other than expenses, including, without limitation, reasonable attorneys’ fees, incurred by Grantee in the review of Grantor’s request and in the preparation of documents effecting the subordination.

1.24Compliance with Laws.

Grantor shall at all times comply with all statutes, ordinances, regulations and other governmental or quasi-governmental requirements and private covenants now or hereafter relating to the ownership, construction, use or operation of the Property, including, but not limited to, those concerning employment and compensation of persons engaged in operation and maintenance of the Property and any environmental or ecological requirements, even if such compliance shall require structural changes to the Property; provided, however, that, Grantor may, upon providing Grantee with security satisfactory to Grantee, proceed diligently and in good faith to contest the validity or applicability of any such statute, ordinance, regulation or requirement so long as during such contest the Property shall not be subject to any lien, charge, fine or other liability and shall not be in danger of being forfeited, lost or closed. Grantor shall not use or occupy, or allow the use or occupancy of, the Property in any manner which violates any Lease of or any other agreement applicable to the Property or any applicable law, rule, regulation or order or which constitutes a public or private nuisance or which makes void, voidable or cancelable, or increases the premium of, any insurance then in force with respect thereto.

1.25Additional Taxes.

In the event of the enactment after the date hereof of any law of the state in which the Property is located or of any other governmental entity deducting from the value of the Property for the purpose of taxing any lien or security interest thereon, or imposing upon Grantee the payment of the whole or any part of the taxes or assessments or charges or liens herein required to be paid by Grantor, or changing in any way the laws relating to the taxation of deeds of trust, mortgages or security agreements or debts secured by deeds of trust, mortgages or security agreements or the interest of the Grantee, mortgagee or secured party in the property covered thereby, or the manner of collection of such taxes, so as to adversely affect this Security Instrument or the Debt or Grantee, then, and in any such event, Grantor, upon demand by Grantee, shall pay such taxes, assessments, charges or liens, or reimburse Grantee therefor; provided, however, that if in the opinion of counsel for Grantee (a) it might be unlawful to require Grantor to make such payment, or (b) the making of such payment might result in the imposition of interest beyond the maximum amount permitted by law, then and in either such event, Grantee may elect, by notice in writing given to Grantor, to declare all of the Debt to be

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and become due and payable in full thirty (30) days from the giving of such notice, and, in connection with the payment of such Debt, no prepayment premium or fee shall be due unless, at the time of such payment, an Event of Default or a Default shall have occurred, which Default or Event of Default is unrelated to the provisions of this Section 1.25, in which event any applicable prepayment premium or fee in accordance with the terms of the Note shall be due and payable.

1.26Secured Indebtedness.

It is understood and agreed that this Security Instrument shall secure payment of not only the indebtedness evidenced by the Note but also any and all substitutions, replacements, renewals and extensions of the Note, any and all indebtedness and obligations arising pursuant to the terms hereof and any and all indebtedness and obligations arising pursuant to the terms of any of the other Loan Documents, all of which indebtedness is equally secured with and has the same priority as any amounts advanced as of the date hereof. It is agreed that any future advances made by Grantee to or for the benefit of Grantor from time to time under this Security Instrument or the other Loan Documents and whether or not such advances are obligatory or are made at the option of Grantee, or otherwise, made for any purpose, within twenty (20) years from the date hereof, and all interest accruing thereon, shall be equally secured by this Security Instrument and shall have the same priority as all amounts, if any, advanced as of the date hereof and shall be subject to all of the terms and provisions of this Security Instrument.

1.27Grantor’s Waivers.

To the full extent permitted by law, Grantor agrees that Grantor shall not at any time insist upon, plead, claim or take the benefit or advantage of any law now or hereafter in force providing for any appraisement, valuation, stay, moratorium or extension, or any law now or hereafter in force providing for the reinstatement of the Debt prior to any sale of the Property to be made pursuant to any provisions contained herein or prior to the entering of any decree, judgment or order of any court of competent jurisdiction, or any right under any statute to redeem all or any part of the Property so sold. Grantor, for Grantor and Grantor’s successors and assigns, and for any and all persons ever claiming any interest in the Property, to the full extent permitted by law, hereby knowingly, intentionally and voluntarily, with and upon the advice of competent counsel: (a) waives, releases, relinquishes and forever forgoes all rights of valuation, appraisement, stay of execution, reinstatement and notice of election or intention to mature or declare due the Debt (except such notices as are specifically provided for herein); (b) waives, releases, relinquishes and forever forgoes all right to a marshaling of the assets of Grantor, including the Property, to a sale in the inverse order of alienation, or to direct the order in which any of the Property shall be sold in the event of foreclosure of the liens and security interests hereby created and agrees that any court having jurisdiction to foreclose such liens and security interests may order the Property sold as an entirety; and (c) waives, releases, relinquishes and forever forgoes all rights and periods of redemption provided under applicable law. To the full extent permitted by law, Grantor shall not have or assert any right under any statute or rule of law pertaining to the exemption of homestead or other exemption under any federal, state or local law now or hereafter in effect, the administration of estates of decedents or other matters whatever to defeat, reduce or affect the right of Grantee under the terms of this Security Instrument to a sale of the Property, for the collection of the Debt without any prior or different

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resort for collection, or the right of Grantee under the terms of this Security Instrument to the payment of the Debt out of the proceeds of sale of the Property in preference to every other claimant whatever. Furthermore, Grantor hereby knowingly, intentionally and voluntarily, with and upon the advice of competent counsel, waives, releases, relinquishes and forever forgoes all present and future statutes of limitations as a defense to any action to enforce the provisions of this Security Instrument or to collect any of the Debt to the fullest extent permitted by law. Grantor covenants and agrees that upon the commencement of a voluntary or involuntary bankruptcy proceeding by or against Grantor, Grantor shall not seek a supplemental stay or otherwise shall not seek pursuant to 11 U.S.C. §105 or any other provision of the Bankruptcy Reform Act of 1978, as amended, or any other debtor relief law (whether statutory, common law, case law, or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, to stay, interdict, condition, reduce or inhibit the ability of Grantee to enforce any rights of Grantee against any guarantor or indemnitor of the secured obligations or any other party liable with respect thereto by virtue of any indemnity, guaranty or otherwise.

1.28SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.

(a)GRANTOR, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, AFTER CONSULTING WITH COUNSEL, (i) SUBMITS TO PERSONAL JURISDICTION IN THE STATE IN WHICH THE PREMISES IS LOCATED OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THE NOTE, THIS SECURITY INSTRUMENT OR ANY OTHER OF THE LOAN DOCUMENTS, (ii) AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN THE COUNTY IN WHICH THE PREMISES IS LOCATED, (iii) SUBMITS TO THE JURISDICTION OF SUCH COURTS, AND (iv) TO THE FULLEST EXTENT PERMITTED BY LAW, AGREES THAT IT WILL NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM (BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF GRANTEE TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM).

(b)GRANTOR, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, AFTER CONSULTING WITH COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THE DEBT OR ANY CONDUCT, ACT OROMISSION OF GRANTEE OR GRANTOR, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH GRANTEE OR GRANTOR, IN EACH OR THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.

1.29Attorney-in-Fact Provisions.

With respect to any provision of this Security Instrument or any other Loan Document whereby Grantor grants to Grantee a power-of-attorney, provided no Default or Event of Default has occurred under this Security Instrument, Grantee shall first give Grantor written notice at

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least three (3) days prior to acting under such power, which notice shall demand that Grantor first take the proposed action within such period and advising Grantor that if it fails to do so, Grantee will so act under the power; provided, however, that, in the event that a Default or an Event of Default has occurred, or if necessary to prevent imminent death, serious injury, damage, loss, forfeiture or diminution in value to the Property or any surrounding property or to prevent any adverse affect on Grantee’s interest in the Property, Grantee may act immediately and without first giving such notice. In such event, Grantee will give Grantor notice of such action as soon thereafter as reasonably practical.

1.30Management.

The management of the Property shall be by either: (a) Grantor or an entity affiliated with Grantor approved by Grantee for so long as Grantor or said affiliated entity is managing the Property in a first class manner; or (b) a professional property management company approved by Grantee. Such management by an affiliated entity or a professional property management company shall be pursuant to a written agreement approved by Grantee. In no event shall any manager be removed or replaced or the terms of any management agreement modified or amended without the prior written consent of Grantee. After an Event of Default or a default under any management contract then in effect, which default is not cured within any applicable grace or cure period, Grantee shall have the right to terminate, or to direct Grantor to terminate, such management contract upon thirty (30) days’ notice and to retain, or to direct Grantor to retain, a new management agent approved by Grantee. All Rents and Profits generated by or derived from the Property shall first be utilized solely for current expenses directly attributable to the ownership and operation of the Property, including, without limitation, current expenses relating to Grantor’s liabilities and obligations with respect to this Security Instrument and the other Loan Documents, and none of the Rents and Profits generated by or derived from the Property shall be diverted by Grantor and utilized for any other purposes unless all such current expenses attributable to the ownership and operation of the Property have been fully paid and satisfied.

1.31Hazardous Waste and Other Substances.

(a)Grantor hereby represents and warrants to Grantee that, as of the date hereof, to the best of Grantor’s knowledge, information and belief, and except as set forth in that certain Phase I Environmental Site Assessment dated October 4, 2002 and prepared by EPIC Engineering Inc.; (i) none of Grantor nor the Property nor any Tenant at the Premises nor the operations conducted thereon is in direct or indirect violation of or otherwise exposed to any liability under any local, state or federal law, rule or regulation or common law duty pertaining to human health, natural resources or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. §9601 et seq.) (“CERCLA”), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §6901 et seq.) (“RCRA”), the Federal Water Pollution Control Act (33 U.S.C. §1251 et seq.), the Clean Air Act (42 U.S.C. §7401 et seq.), the Emergency Planning and Community-Right-to-Know Act (42 U.S.C. §11001 et seq.), the Endangered Species Act (16 U.S.C. §1531 et seq.), the Toxic Substances Control Act (15 U.S.C. §2601 et seq.), the Occupational Safety and Health Act (29 U.S.C. §651 et seq.) and the Hazardous Materials Transportation Act (49 U.S.C. §1801 et

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seq.), the Georgia Hazardous Waste Management Act, as amended, O.C.G.A. § 12-8-60 et seq., the Georgia Oil or Hazardous Materials Spills or Releases Act, as amended, O.C.G.A. § 12-14-1 et seq., the Georgia Comprehensive Solid Waste Management Act, as amended, O.C.G.A. § 12-8-20 et seq., the Georgia Asbestos Safety Act, as amended, O.C.G.A. § 12-12-1 et seq., the Georgia Underground Storage Tank Act, as amended, O.C.G.A. § 12-13-1 et seq., the Georgia Water Quality Control Act, as amended, O.C.G.A. § 12-5-20 et seq., the Georgia Hazardous Site Response Act, as amended, O.C.G.A. § 12-8-90 et seq., and regulations promulgated pursuant thereto by the Georgia Department of Natural Resources Environmental Protection Division and the regulations promulgated pursuant to said laws, all as amended, regulations promulgated pursuant to said laws, all as amended from time to time (collectively, the “Environmental Laws”) or otherwise exposed to any liability under any Environmental Law relating to or affecting the Property, whether or not used by or within the control of Grantor; (ii) no hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants (including, without limitation, asbestos or asbestos-containing materials, lead based paint, polychlorinated biphenyls, petroleum or petroleum products or byproducts, flammable explosives, radioactive materials, infectious substances, radon gas or raw materials which include hazardous constituents) or any other substances or materials which are included under or regulated by Environmental Laws (collectively, “Hazardous Substances”) are located on, in or under or have been handled, generated, stored, processed or disposed of on or released or discharged from the Property (including underground contamination), except for those substances used by Grantor or any Tenant in the ordinary course of their respective businesses and in compliance with all Environmental Laws and where such could not reasonably be expected to give rise to liability under Environmental Laws; (iii) the Property is not subject to any private or governmental lien or judicial or administrative notice or action arising under Environmental Laws; (iv) there is no pending, nor, to Grantor’s knowledge, information or belief, threatened litigation arising under Environmental Laws affecting Grantor or the Property; there are no and have been no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Substances or landfills or dumps on the Property; (v) Grantor has received no notice of, and to the best of Grantor’s knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of the Property, nor does Grantor know of any basis for such an investigation, action, proceeding or claim; (vi) Grantor has received no notice of and, to the best of Grantor’s knowledge and belief, there has been no claim by any party that any use, operation or condition of the Property has caused any nuisance or any other liability or adverse condition on any other property, nor does Grantor know of any basis for such an investigation, action, proceeding or claim; and (vii) radon is not present at the Property in excess or in violation of any applicable thresholds or standards or in amounts that require under applicable law disclosure to any tenant or occupant of or invitee to the Property or to any governmental agency or the general public.

(b)Grantor has not received nor to the best of Grantor’s knowledge, information and belief has there been issued, any notice, notification, demand, request for information, citation, summons, or order in any way relating to any actual, alleged or potential violation or liability arising under Environmental Laws; and

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(c)Neither the Property, nor to the best of Grantor’s knowledge, information and belief, any property to which Grantor has, in connection with the maintenance or operation of the Property, directly or indirectly transported or arranged for the transportation of any Hazardous Substances is listed or, to the best of Grantor’s knowledge, information and belief, proposed for listing on the National Priorities List promulgated pursuant to CERCLA, on CERCLIS (as defined in CERCLA) or on any similar federal or state list of sites requiring environmental investigation or clean-up.

(d)Grantor shall comply with all applicable Environmental Laws. Grantor shall keep or cause the Property to be kept free from Hazardous Substances (except those substances used by Grantor or any Tenant in the ordinary course of their respective businesses and except in compliance with all Environmental Laws and where such could not reasonably be expected to give rise to liability under Environmental Laws) and in compliance with all Environmental Laws. Grantor shall not install or use any underground storage tanks, shall expressly prohibit the use, generation, handling, storage, production, processing and disposal of Hazardous Substances by all Tenants in quantities or conditions that would violate or give rise to any obligation to take remedial or other action under any applicable Environmental Laws. Without limiting the generality of the foregoing, during the term of this Security Instrument, Grantor shall not install in the Improvements or permit to be installed in the Improvements any asbestos or asbestos- containing asbestos.

(e)Grantor shall promptly notify Grantee if Grantor shall become aware of (i) the actual or potential existence of any Hazardous Substances on the Property other than those occurring in the ordinary course of Grantor’s business and which do not violate, or would not otherwise give rise to liability under Environmental Laws, (ii) any direct or indirect violation of, or other exposure to liability under, any Environmental Laws, (iii) any lien, action or notice affecting the Property or Grantor resulting from any violation or alleged violation of or liability or alleged liability under any Environmental Laws, (iv) the institution of any investigation, inquiry or proceeding concerning Grantor or the Property pursuant to any Environmental Laws or otherwise relating to Hazardous Substances, or (v) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Security Instrument incorrect in any respect if made at the time of such discovery. Immediately upon receipt of same, Grantor shall deliver to Grantee copies of any and all requests for information, complaints, citations, summonses, orders, notices, reports or other communications, documents or instruments in any way relating to any actual, alleged or potential violation or liability of any nature whatsoever arising under Environmental Laws and relating to the Property or to Grantor. Indemnitors shall remedy or cause to be remedied in a timely manner (and in any event within the time period permitted by applicable Environmental Laws) any violation of Environmental Laws or any condition that could give rise to liability under Environmental Laws. Without limiting the foregoing, Grantor shall, promptly and regardless of the source of the contamination or threat to the environment or human health, at its own expense, take all actions as shall be necessary or prudent, for the clean-up of any and all portions of the Property or other affected property, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with all applicable Environmental Laws (and in all events in a manner satisfactory to Grantee) and shall further pay or cause to be paid, at no expense to Grantee, all clean-up, administrative and enforcement costs of applicable governmental agencies

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which may be asserted against the Property. In the event Grantor fails to do so, Grantee may, but shall not be obligated to, cause the Property or other affected property to be freed from any Hazardous Substances or otherwise brought into conformance with Environmental Laws and any and all costs and expenses incurred by Grantee in connection therewith, together with interest thereon at the Default Interest Rate from the date incurred by Grantee until actually paid by Grantor, shall be immediately paid by Grantor on demand and shall be secured by this Security Instrument and by all of the other Loan Documents securing all or any part of the Debt. Grantor hereby grants to Grantee and its agents and employees access to the Property and a license to remove any items deemed by Grantee to be Hazardous Substances and to do all things Grantee shall deem necessary to bring the Property into conformance with Environmental Laws.

(f)Grantor covenants and agrees, at Grantor’s sole cost and expense, to indemnify, defend (at trial and appellate levels, and with attorneys, consultants and experts acceptable to Grantee), and hold Grantee harmless from and against any and all liens, damages (including without limitation, punitive or exemplary damages), losses, liabilities (including, without limitation, strict liability), obligations, settlement payments, penalties, fines, assessments, citations, directives, claims, litigation, demands, defenses, judgments, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including, without limitation, reasonable attorneys’, consultants’ and experts’ fees and disbursements actually incurred in investigating, defending, settling or prosecuting any claim, litigation or proceeding) which may at any time be imposed upon, incurred by or asserted or awarded against Grantee or the Property, and arising directly or indirectly from or out of: (i) any violation or alleged violation of, or liability or alleged liability under, any Environmental Law; (ii) the presence, release or threat of release of or exposure to any Hazardous Substances on, in, under or affecting all or any portion of the Property or any surrounding areas, regardless of whether or not caused by or within the control of Grantor; (iii) any transport, treatment, recycling, storage, disposal or arrangement therefor of Hazardous Substances whether on the Property, originating from the Property, or otherwise associated with Grantor or any operations conducted on the Property at any time; (iv) the failure by Grantor to comply fully with the terms and conditions of this Section 1.31; (v) the breach of any representation or warranty contained in this Section 1.31; (vi) the enforcement of this Section 1.31, including, without limitation, the cost of assessment, investigation, containment, removal and/or remediation of any and all Hazardous Substances from all or any portion of the Property or any surrounding areas, the cost of any actions taken in response to the presence, release or threat of release of any Hazardous Substances on, in, under or affecting any portion of the Property or any surrounding areas to prevent or minimize such release or threat of release so that it does not migrate or otherwise cause or threaten danger to present or future public health, safety, welfare or the environment, and costs incurred to comply with Environmental Laws in connection with all or any portion of the Property or any surrounding areas. The indemnity set forth in this Section 1.31 shall also include any diminution in the value of the security afforded by the Property or any future reduction in the sales price of the Property by reason of any matter set forth in this Section 1.31. The foregoing indemnity shall specifically not include any such costs relating to Hazardous Substances which are initially placed on, in or under the Property after foreclosure or other taking of title to the Property by Grantee or its successors or assigns. Grantee’s rights under this Section shall survive payment in full of the Debt and shall be in addition to all other rights of Grantee under this Security Instrument, the Note and the other Loan Documents.

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(g)Upon Grantee’s request, at any time after the occurrence of an Event of Default or at such other time as Grantee has reasonable grounds to believe that Hazardous Substances are or have been released, stored or disposed of on the Property, or on property contiguous with the Property, or that the Property may be in violation of the Environmental Laws, Grantor shall perform or cause to be performed, at Grantor’s sole cost and expense and in scope, form and substance satisfactory to Grantee, an inspection or audit of the Property prepared by a hydrogeologist or environmental engineer or other appropriate consultant approved by Grantee indicating the presence or absence of Hazardous Substances on the Property, the compliance or non-compliance status of the Property and the operations conducted thereon with applicable Environmental Laws, or an inspection or audit of the Property prepared by an engineering or consulting firm approved by Grantee indicating the presence or absence of friable asbestos or substances containing asbestos or lead or substances containing lead or lead based paint (“Lead Based Paint”) on the Property. If Grantor fails to provide reports of such inspection or audit within thirty (30) days after such request, Grantee may order the same, and Grantor hereby grants to Grantee and its employees and agents access to the Property and an irrevocable license to undertake such inspection or audit. The cost of such inspection or audit, together with interest thereon at the Default Interest Rate from the date incurred by Grantee until actually paid by Grantor, shall be immediately paid by Grantor on demand and shall be secured by this Security Instrument and by all of the other Loan Documents securing all or any part of the Debt.

(h)Reference is made to that certain Environmental Indemnity Agreement of even date herewith by and among Grantor, the indemnitor named therein and Grantee (the “Environmental Indemnity Agreement”). The provisions of this Security Instrument and the Environmental Indemnity Agreement shall be read together to maximize the coverage with respect to the subject matter thereof, as determined by Grantee.

(i)[Reserved].

(j)If, prior to the date hereof, it was determined that the Property contains Lead Based Paint, Grantor had prepared an assessment report describing the location and condition of the Lead Based Paint (a “Lead Based Paint Report”). If, at any time hereafter, Lead Based Paint is suspected of being present on the Property, Grantor agrees, at its sole cost and expense and within twenty (20) days thereafter, to cause to be prepared a Lead Based Paint Report prepared by an expert, and in form, scope and substance, acceptable to Grantee.

(k)Grantor agrees that if it has been, or if at any time hereafter it is, determined that the Property contains Lead Based Paint, on or before thirty (30) days following (i) the date hereof, if such determination was made prior to the date hereof or (ii) such determination, if such determination is hereafter made, as applicable, Grantor shall, at its sole cost and expense, develop and implement, and thereafter diligently and continuously carry out (or cause to be developed and implemented and thereafter diligently and continually to be carried out), an operations, abatement and maintenance plan for the Lead Based Paint on the Property, which plan shall be prepared by an expert, and be in form, scope and substance, acceptable to Grantee (together with any Lead Based Paint Report, the “O&M Plan”). (If an O&M Plan has been prepared prior to the date hereof, Grantor agrees to diligently and continually carry out (or cause

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to be carried out) the provisions thereof.) Compliance with the O&M Plan shall require or be deemed to require, without limitation, the proper preparation and maintenance of all records, papers and forms required under the Environmental Laws.

1.32Indemnification; Subrogation.

(a)Grantor shall indemnify, defend and hold Grantee harmless against: (i) any and all claims for brokerage, leasing, finders or similar fees which may be made relating to the Property or the Debt, and (ii) any and all liability, obligations, losses, damages, penalties, claims, actions, suits, costs and expenses (including Grantee’s reasonable attorneys’ fees) of whatever kind or nature which may be asserted against, imposed on or incurred by Grantee in connection with the Debt, this Security Instrument, the Property, or any part thereof, or the exercise by Grantee of any rights or remedies granted to it under this Security Instrument; provided, however, that nothing herein shall be construed to obligate Grantor to indemnify, defend and hold harmless Grantee from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs and expenses enacted against, imposed on or incurred by Grantee by reason of Grantee’s willful misconduct or gross negligence.

(b)If Grantee is made a party defendant to any litigation or any claim is threatened or brought against Grantee concerning the Debt, this Security Instrument, the Property, or any part thereof, or any interest therein, or the construction, maintenance, operation or occupancy or use thereof, then Grantor shall indemnify, defend and hold Grantee harmless from and against all liability by reason of said litigation or claims, including reasonable attorneys’ fees and expenses incurred by Grantee in any such litigation or claim, whether or not any such litigation or claim is prosecuted to judgment. If Grantee commences an action against Grantor to enforce any of the terms hereof or to prosecute any breach by Grantor of any of the terms hereof or to recover any sum secured hereby, Grantor shall pay to Grantee its reasonable attorneys’ fees and expenses. The right to such attorneys’ fees and expenses shall be deemed to have accrued on the commencement of such action, and shall be enforceable whether or not such action is prosecuted to judgment. If Grantor breaches any term of this Security Instrument, Grantee may engage the services of an attorney or attorneys to protect its rights hereunder, and in the event of such engagement following any breach by Grantor, Grantor shall pay Grantee reasonable attorneys’ fees and expenses incurred by Grantee, whether or not an action is actually commenced against Grantor by reason of such breach. All references to “attorneys” in this subsection and elsewhere in this Security Instrument shall include, without limitation, any attorney or law firm engaged by Grantee and Grantee’s in-house counsel, and all references to “fees and expenses” in this subsection and elsewhere in this Security Instrument shall include, without limitation, any fees of such attorney or law firm, any appellate counsel fees, if applicable, and any allocation charges and allocation costs of Grantee’s in-house counsel.

(c)A waiver of subrogation shall be obtained by Grantor from its insurance carrier and, consequently, Grantor waives any and all right to claim or recover against Grantee, its officers, employees, agents and representatives, for loss of or damage to Grantor, the Property, Grantor’s property or the property of others under Grantor’s control from any cause insured against or required to be insured against by the provisions of this Security Instrument.

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1.33Covenants with Respect to Indebtedness, Operations, Fundamental Changes of Grantor.

Grantor hereby represents, warrants and covenants as of the date hereof and until such time as the Debt is paid in full, that Grantor;

(a)will not, nor will any partner, limited or general, member or shareholder thereof, as applicable, amend, modify or otherwise change its partnership certificate, partnership agreement, articles of incorporation, by-laws, operating agreement, articles of organization, or other formation agreement or document, as applicable, in any material term or manner, or in a manner which adversely affects Grantor’s existence as a single purpose entity;

(b)will not liquidate or dissolve (or suffer any liquidation or dissolution), or enter into any transaction of merger or consolidation, or acquire by purchase or otherwise all or substantially all the business or assets of, or any stock or other evidence of beneficial ownership of any entity;

(c)has not and will not guarantee, pledge its assets for the benefit of, or otherwise become liable on or in connection with, any obligation of any other person or entity;

(d)does not own and will not own any asset other than (i) the Property, and (ii) incidental personal property necessary for the operation of the Property;

(e)is not engaged and will not engage, either directly or indirectly, in any business other than the ownership, management and operation of the Property;

(f)will not enter into any contract or agreement with any general partner, principal, affiliate or member of Grantor, as applicable, or any affiliate of any general partner, principal or member of Grantor, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than an affiliate;

(g)has not incurred and will not incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (i) the Debt, and (ii) affiliate advances or trade payables or accrued expenses incurred in the ordinary course of business of operating the Property, and no other debt will be secured (senior, subordinate or pari passu) by the Property;

(h)has not made and will not make any loans or advances to any third party (including any affiliate);

(i)is and will be solvent and pay its debts from its assets as the same shall become due;

(j)has done or caused to be done and will do all things necessary to preserve its existence, and will observe all formalities applicable to it;

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(k)will conduct and operate its business in its own name and as presently conducted and operated;

(l)will maintain financial statements, books and records and bank accounts separate from those of its affiliates, including, without limitation, its general partners or members, as applicable;

(m)will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including, without limitation, any affiliate, general partner, or member, as applicable, or any affiliate of any general partner or member of Grantor, as applicable);

(n)will file its own tax returns;

(o)will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;

(p)will allocate fairly and reasonably any overhead and expense for shared office space;

(q)will not commingle the funds and other assets of Grantor with those of any general partner, member, affiliate, principal or any other person;

(r)has and will maintain its assets in such a manner that it is not costly or difficult to segregate, ascertain or identify its individual assets from those of any affiliate or any other person;

(s)does not and will not hold itself out to be responsible for the debts or obligations of any other person;

(t)will pay any liabilities out of its own funds, including salaries of its employees, not funds of any affiliate;

(u)will use stationery, invoices, and checks separate from its affiliates; and

(v)will not partition, or permit any partition of, the Property; and

(w)will not amend or terminate any co-tenancy or joint ownership agreement without the prior written consent of Grantee.

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ARTICLE II

EVENTS OF DEFAULT

2.1Events of Default.

The occurrence of any of the following events shall be an Event of Default hereunder:

(a)Grantor fails to pay any money to Grantee required hereunder at the time or within any applicable grace period set forth herein.

(b)Grantor fails to provide insurance as required by Section 1.4 hereof or fails to perform any covenant, agreement, obligation, term or condition set forth in Section 1.31 or Section 1.33 hereof.

(c)Grantor fails to perform any other covenant, agreement, obligation, term or condition set forth herein, other than those otherwise described in this Section 2.1, and, to the extent such failure or default is susceptible of being cured, the continuance of such failure or default for thirty (30) days after written notice thereof from Grantee to Grantor; provided, however, that if such default is susceptible of cure but such cure cannot be accomplished with reasonable diligence within said period of time, and if Grantor commences to cure such default promptly after receipt of notice thereof from Grantee, and thereafter prosecutes the curing of such default with reasonable diligence, such period of time shall be extended for such period of time as may be necessary to cure such default with reasonable diligence, but not to exceed an additional sixty (60) days.

(d)Any representation or warranty made herein, in or in connection with any application or commitment relating to the loan evidenced by the Note, or in any of the other Loan Documents to Grantee by Grantor, by any principal, general partner, manager or member in Grantor, or by any Indemnitor is determined by Grantee to have been false or misleading in any material respect at the time made.

(e)There shall be a sale, conveyance, disposition, alienation, hypothecation, leasing, assignment, pledge, mortgage, granting of a security interest in or other transfer or further encumbrancing of the Property, Grantor or its general partners or managing members, or any portion thereof or any interest therein, in violation of Section 1.13 hereof.

(f)A default occurs under any of the other Loan Documents or any joint ownership agreement or co-tenancy agreement which has not been cured within any applicable grace or cure period therein provided.

(g)Grantor, any principal, general partner or managing member in Grantor or any Indemnitor becomes insolvent, or makes a transfer in fraud of creditors, or makes an assignment for the benefit of creditors, or files a petition in bankruptcy, or is voluntarily adjudicated insolvent or bankrupt or admits in writing the inability to pay its debts as they mature, or petitions or applies to any tribunal for or consents to or fails to contest the appointment of a

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receiver, trustee, custodian or similar officer for Grantor, for any such principal, general partner or managing member of Grantor or for any Indemnitor or for a substantial part of the assets of Grantor, of any such principal, general partner or managing member of Grantor or of any Indemnitor, or commences any case, proceeding or other action under any bankruptcy, reorganization, arrangement, readjustment or debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect.

(h)A petition is filed or any case, proceeding or other action is commenced against Grantor, against any principal, general partner or managing member of Grantor or against any Indemnitor seeking to have an order for relief entered against it as debtor or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts or other relief under any law relating to bankruptcy, insolvency, arrangement, reorganization, receivership or other debtor relief under any law or statute of any jurisdiction, whether now or hereafter in effect, or a court of competent jurisdiction enters an order for relief against Grantor, against any principal, general partner or managing member of Grantor or against any Indemnitor, as debtor, or an order, judgment or decree is entered appointing, with or without the consent of Grantor, of any such principal, general partner or managing member of Grantor or of any Indemnitor, a receiver, trustee, custodian or similar officer for Grantor, for any such principal, general partner or managing member of Grantor or for any Indemnitor, or for any substantial part of any of the properties of Grantor, of any such principal, general partner or managing member of Grantor or of any Indemnitor, and if any such event shall occur, such petition, case, proceeding, action, order, judgment or decree is not dismissed within sixty (60) days after being commenced.

(i)The Property or any part thereof is taken on execution or other process of law in any action against Grantor.

(j)Grantor abandons all or a portion of the Property.

(k)The holder of any lien or security interest on the Property (without implying the consent of Grantee to the existence or creation of any such lien or security interest), whether superior or subordinate to this Security instrument or any of the other Loan Documents, declares a default and such default is not cured within any applicable grace or cure period set forth in, the applicable document or such holder institutes foreclosure or other proceedings for the enforcement of its remedies thereunder.

(l)The Property, or any part thereof, is subjected to waste or to removal, demolition or material alteration so that the value of the Property is materially diminished thereby and Grantee determines that it is not adequately protected from any loss, damage or risk associated therewith.

(m)Any dissolution, termination, partial or complete liquidation, merger or consolidation of Grantor, any of its principals, any general partner or any managing member, or any Indemnitor.

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ARTICLE III

REMEDIES

3.1Remedies Available.

If there shall occur an Event of Default under this Security Instrument, then this Security Instrument is subject to foreclosure as provided by law and Grantee may, at its option and by or through a trustee, nominee, assignee or otherwise, to the fullest extent permitted by law, exercise any or all of the following rights, remedies and recourses, either successively or concurrently:

(a)Acceleration. Accelerate the maturity date of the Note and declare any or all of the Debt to be immediately due and payable without any presentment, demand, protest, notice or action of any kind whatever (each of which is hereby expressly waived by Grantor), whereupon the same shall become immediately due and payable. Upon any such acceleration, payment of such accelerated amount shall constitute a prepayment of the principal balance of the Note and any applicable prepayment fee provided for in the Note shall then be immediately due and payable.

(b)Entry on the Property. Either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court and without regard to the adequacy of its security, enter upon and take possession of the Property, or any part thereof, without force or with such force as is permitted by law and without notice or process or with such notice or process as is required by law, unless such notice and process is waivable, in which case Grantor hereby waives such notice and process, and do any and all acts and perform any and all work which may be desirable or necessary in Grantee’s judgment to complete any unfinished construction on the Premises, to preserve the value, marketability or rentability of the Property, to increase the income therefrom, to manage and operate the Property or to protect the security hereof, and all sums expended by Grantee therefor, together with interest thereon at the Default Interest Rate, shall be immediately due and payable to Grantee by Grantor on demand and shall be secured hereby and by all of the other Loan Documents securing all or any part of the Debt.

(c)Collect Rents. With or without taking possession of the Property, sue or otherwise collect the Rents, including those past due and unpaid.

(d)Appointment of Receiver. Upon, or at any time prior or after, initiating the exercise of any power of sale, instituting any judicial foreclosure or instituting any other foreclosure of the liens and security interests provided for herein or any other legal proceedings hereunder, make application to a court of competent jurisdiction for appointment of a receiver for all or any part of the Property, as a matter of strict right and without notice to Grantor and without regard to the adequacy of the Property for the repayment of the Debt or the solvency of Grantor or any person or persons liable for the payment of the Debt, and Grantor does hereby irrevocably consent to such appointment, waive any and all notices of and defenses to such appointment and agree not to oppose any application therefor by Grantee, but nothing herein is to be construed to deprive Grantee of any other right, remedy or privilege Grantee may now have

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under the law to have a receiver appointed, provided, however, that the appointment of such receiver, trustee or other appointee by virtue of any court order, statute or regulation shall not impair or in any manner prejudice the rights of Grantee to receive payment of the Rents pursuant to other terms and provisions hereof. Any such receiver shall have all of the usual powers and duties of receivers in similar cases, including, without limitation, the full power to hold, develop, rent, lease, manage, maintain, operate and otherwise use or permit the use of the Property upon such terms and conditions as said receiver may deem to be prudent and reasonable under the circumstances as more fully set forth in Section 3.3 below. Such receivership shall, at the option of Grantee, continue until full payment of all of the Debt or until title to the Property shall have passed by foreclosure sale under this Security Instrument or deed in lieu of foreclosure.

(e)Foreclosure. Immediately commence an action to foreclose this Security Instrument or to specifically enforce its provisions with respect to any of the Debt, pursuant to the statutes in such case made and provided, and sell the Property or cause the Property to be sold in accordance with the requirements and procedures provided by said statutes in a single parcel or in several parcels at the option of Grantee. In the event foreclosure proceedings are instituted by Grantee, all expenses incident to such proceedings, including, but not limited to, reasonable attorneys’ fees and costs, shall be paid by Grantor and secured by this Security Instrument and by all of the other Loan Documents securing all or any part of the Debt. The Debt and all other obligations secured by this Security Instrument, including, without limitation, interest at the Default Interest Rate, any prepayment charge, fee or premium required to be paid under the Note in order to prepay principal (to the extent permitted by applicable law), reasonable attorneys’ fees and any other amounts due and unpaid to Grantee under the Loan Documents, may be bid by Grantee in the event of a foreclosure sale hereunder. In the event of a judicial sale pursuant to a foreclosure decree, it is understood and agreed that Grantee or its assigns may become the purchaser of the Property or any part thereof.

(f)Judicial Remedies. Proceed by suit or suits, at law or in equity, instituted by or on behalf of Grantee, to enforce the payment of the Debt or the other obligations of Grantor hereunder or pursuant to the Loan Documents, to foreclose the liens and security interests of this Security Instrument as against all or any part of the Property, and to have all or any part of the Property sold under the judgment or decree of a court of competent jurisdiction. This remedy shall be cumulative of any other non-judicial remedies available to Grantee with respect to the Loan Documents. Proceeding with the request or receiving a judgment for legal relief shall not be or be deemed to be an election of remedies or bar any available non-judicial remedy of Grantee.

(g)Other. Exercise any other right or remedy available hereunder, under any of the other Loan Documents or at law or in equity.

3.2Application of Proceeds.

To the fullest extent permitted by law, the proceeds of any sale under this Security Instrument shall be applied, to the extent funds are so available, to the following items in such order as Grantee in its discretion may determine:

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(a)To payment of the reasonable costs, expenses and fees of taking possession of the Property, and of holding, operating, maintaining, using, leasing, repairing, improving, marketing and selling the same and of otherwise enforcing Grantee’s rights and remedies hereunder and under the other Loan Documents, including, but not limited to, receivers’ fees, court costs, attorneys’, accountants’, appraisers’, managers’ and other professional fees, title charges and transfer taxes.

(b)To payment of all sums expended by Grantee under the terms of any of the Loan Documents and not yet repaid, together with interest on such sums at the Default Interest Rate.

(c)To payment of the Debt and all other obligations secured by this Security Instrument, including, without limitation, interest at the Default Interest Rate and, to the extent permitted by applicable law, any prepayment fee, charge or premium required to be paid under the Note in order to prepay principal, in any order that Grantee chooses in its sole discretion.

(d)The remainder, if any, of such funds shall be disbursed to Grantor or to the person or persons legally entitled thereto.

3.3Right and Authority of Receiver or Grantee in the Event of Default; Power of Attorney.

Upon the occurrence of an Event of Default, and entry upon the Property pursuant to Section 3.1(b) hereof or appointment of a receiver pursuant to Section 3.1(d) hereof, and under such terms and conditions as may be prudent and reasonable under the circumstances in Grantee’s or the receiver’s sole discretion, all at Grantor’s expense, Grantee or said receiver, or such other persons or entities as they shall hire, direct or engage, as the case may be, may do or permit one or more of the following, successively or concurrently: (a) enter upon and take possession and control of any and all of the Property; (b) take and maintain possession of all documents, books, records, papers and accounts relating to the Property; (c) exclude Grantor and its agents, servants and employees wholly from the Property; (d) manage and operate the Property; (e) preserve and maintain the Property; (f) make repairs and alterations to the Property; (g) complete any construction or repair of the Improvements, with such changes, additions or modifications of the plans and specifications or intended disposition and use of the Improvements as Grantee may in its sole discretion deem appropriate or desirable to place the Property in such condition as will, in Grantee’s sole discretion, make it or any part thereof readily marketable or rentable; (h) conduct a marketing or leasing program with respect to the Property, or employ a marketing or leasing agent or agents to do so, directed to the leasing or sale of the Property under such terms and conditions as Grantee may in its sole discretion deem appropriate or desirable; (i) employ such contractors, subcontractors, materialmen, architects, engineers, consultants, managers, brokers, marketing agents, or other employees, agents, independent contractors or professionals, as Grantee may in its sole discretion deem appropriate or desirable to implement and effectuate the rights and powers herein granted; (j) execute and deliver, in the name of Grantee as attorney-in-fact and agent of Grantor or in its own name as Grantee, such documents and instruments as are necessary or appropriate to consummate authorized transactions; (k) enter such leases, whether of real or personal property, or tenancy agreements, under such terms and conditions as Grantee may in its sole discretion deem

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appropriate or desirable; (1) collect and receive the Rents from the Property; (m) eject tenants or repossess personal property, as provided by law, for breaches of the conditions of their leases or other agreements; (n) sue for unpaid Rents, payments, income or proceeds in the name of Grantor or Grantee; (o) maintain actions in forcible entry and detainer, ejectment for possession and actions in distress for rent; (p) compromise or give acquittance for Rents, payments, income or proceeds that may become due; (q) delegate or assign any and all rights and powers given to Grantee by this Security Instrument; and (r) do any acts which Grantee in its sole discretion deems appropriate or desirable to protect the security hereof and use such measures, legal or equitable, as Grantee may in its sole discretion deem appropriate or desirable to implement and effectuate the provisions of this Security Instrument. This Security Instrument shall constitute a direction to and full authority to any lessee, or other third party who has heretofore dealt or contracted or may hereafter deal or contract with Grantor or Grantee, at the request of Grantee, to pay all amounts owing under any lease, contract, concession, license or other agreement to Grantee without proof of the Event of Default relied upon. Any such lessee or third party is hereby irrevocably authorized to rely upon and comply with (and shall be fully protected by Grantor in so doing) any request, notice or demand by Grantee for the payment to Grantee of any Rents or other sums which may be or thereafter become due under its lease, contract, concession, license or other agreement, or for the performance of any undertakings under any such lease, contract, concession, license or other agreement, and shall have no right or duty to inquire whether any Event of Default under this Security Instrument or under any of the other Loan Documents has actually occurred or is then existing. Grantor hereby constitutes and appoints Grantee, its assignees, successors, transferees and nominees, as Grantor’s true and lawful attorney-in-fact and agent, with full power of substitution in the Property, in Grantor’s name, place and stead, to do or permit any one or more of the foregoing described rights, remedies, powers and authorities, successively or concurrently, and said power of attorney shall be deemed a power coupled with an interest and irrevocable so long as any portion of the Debt is outstanding. Any money advanced by Grantee in connection with any action taken under this Section 3.3, together with interest thereon at the Default Interest Rate from the date of making such advancement by Grantee until actually paid by Grantor, shall be a demand obligation owing by Grantor to Grantee and shall be secured by this Security Instrument and by every other instrument securing all or any portion of the Debt.

3.4Occupancy After Foreclosure.

In the event there is a foreclosure sale hereunder and at the time of such sale, Grantor or Grantor’s representatives, successors or assigns, or any other persons claiming any interest in the Property by, through or under Grantor (except tenants of space in the Improvements subject to leases entered into prior to the date hereof), are occupying or using the Property, or any part thereof, then, to the extent not prohibited by applicable law, each and all shall, at the option of Grantee or the purchaser at such sale, as the case may be, immediately become the tenant of the purchaser at such sale, which tenancy shall be a tenancy from day-to-day, terminable at the will of either landlord or tenant, at a reasonable rental per day based upon the value of the Property occupied or used, such rental to be due daily to the purchaser. Further, to the extent permitted by applicable law, in the event the tenant fails to surrender possession of the Property upon the termination of such tenancy, the purchaser shall be entitled to institute and maintain an action for

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unlawful detainer of the Property in the appropriate court of the county in which the Premises is located.

3.5Notice to Account Debtors.

Grantee may, at any time after an Event of Default, notify the account debtors and obligors of any accounts, chattel paper, negotiable instruments or other evidences of indebtedness to Grantor included in the Property to pay Grantee directly. Grantor shall at any time or from time to time upon the request of Grantee provide to Grantee a current list of all such account debtors and obligors and their addresses.

3.6Cumulative Remedies.

All remedies contained in this Security Instrument are cumulative and Grantee shall also have all other remedies provided at law and in equity or in any other Loan Documents. Such remedies may be pursued separately, successively or concurrently at the sole subjective direction of Grantee and may be exercised in any order and as often as occasion therefor shall arise. No act of Grantee shall be construed as an election to proceed under any particular provisions of this Security Instrument to the exclusion of any other provision of this Security Instrument or as an election of remedies to the exclusion of any other remedy which may then or thereafter be available to Grantee. No delay or failure by Grantee to exercise any right or remedy under this Security Instrument shall be construed to be a waiver of that right or remedy or of any Event of Default. Grantee may exercise any one or more of its rights and remedies at its option without regard to the adequacy of its security.

3.7Payment of Expenses.

Grantor shall pay on demand all of Grantee’s expenses incurred in any efforts to enforce any terms of this Security Instrument, whether or not any lawsuit is filed and whether or not foreclosure is commenced but not completed, including, but not limited to, reasonable legal fees and disbursements, foreclosure costs and title charges, together with interest thereon from and after the date incurred by Grantee until actually paid by Grantor at the Default Interest Rate, and the same shall be secured by this Security Instrument and by all of the other Loan Documents securing all or any part of the Debt.

3.8Fair Market Value. The “fair market value” of the Property shall be determined as of the foreclosure date in order to enforce a deficiency against Grantor or any other party liable for the repayment of the indebtedness secured hereby, the term “fair market value” shall include those matters required by applicable law and shall also include the additional factors as follows:

(a)The Property is to be valued “AS IS, WHERE IS” and “WITH ALL FAULTS” and there shall be no assumption of restoration of or refurbishment of the Property after the date of foreclosure;

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(b)There shall be an assumption of a prompt resale of the Property for an all cash sales price by the purchaser at the foreclosure so that no extensive holding period should be factored into the determination of “fair market value” of the Property;

(c)An offset to the fair market value of the Property, as determined hereunder, shall be made by deducting from such value the reasonable estimated closing costs relating to the sale of the Property, including, but not limited to, brokerage commissions, title policy expenses, tax prorations, escrow fees, and other common charges which are incurred by a seller of real property similar to the Property; and

(d)After consideration of the factors required by law and those required above, an additional discount factor shall be calculated based upon the estimated time it will take to effectuate a sale of the Property so that the “fair market value” as so determined is discounted to be as of the date of the foreclosure of the Property.

ARTICLE IV

MISCELLANEOUS TERMS AND CONDITIONS

4.1Time of Essence.

Time is of the essence with respect to all provisions of this Security Instrument.

4.2Release of Security Instrument.

If all of the Debt be paid, then and in that event only, all rights under this Security Instrument, except for those provisions hereof which by their terms survive, shall terminate and the Property shall become wholly clear of the liens, security interests, conveyances and assignments evidenced hereby, which shall be promptly released of record by Grantee in due form at Grantor’s cost. No release of this Security Instrument or the lien hereof shall be valid unless executed by Grantee.

4.3Certain Rights of Grantee.

Without affecting Grantor’s liability for the payment of any of the Debt, Grantee may from time to time and without notice to Grantor: (a) release any person liable for the payment of the Debt; (b) extend or modify the terms of payment of the Debt; (c) accept additional real or personal property of any kind as security or alter, substitute or release any property securing the Debt; (d) recover any part of the Property; (e) consent in writing to the making of any subdivision map or plat thereof; (f) join in granting any easement therein; or (g) join in any extension agreement of this Security Instrument or any agreement subordinating the lien hereof.

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4.4Waiver of Certain Defenses.

No action for the enforcement of the lien hereof or of any provision hereof shall be subject to any defense which would not be good and available to the party interposing the same in an action at law upon the Note or any of the other Loan Documents.

4.5Notices; Designation of Managing Agent.

All notices, demands, requests or other communications to be sent by one party to the other hereunder or required by law shall be in writing and shall be deemed to have been validly given or served by delivery of the same in person to the intended addressee, or by depositing the same with Federal Express or another reputable private courier service for next business day delivery, or by depositing the same in the United States mail, postage prepaid, registered or certified mail, return receipt requested, in any event addressed to the intended addressee: to Grantor as set forth in the next succeeding paragraph, to Grantee at Wachovia Bank, National Association, 201 South Tryon Street, Suite 130, PMB Box #4, Loan Number 50-2753516, Charlotte, North Carolina 28202, or at such other address as may be designated by such party as herein provided. All notices, demands and requests shall be effective upon such personal delivery, or one (1) business day after being deposited with the private courier service, or two (2) business days after being deposited in the United States mail as required above. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given as herein required shall be deemed to be receipt of the notice, demand or request sent. By giving to the other party hereto at least fifteen (15) days’ prior written notice thereof in accordance with the provisions hereof, the parties hereto shall have the right from time to time to change their respective addresses and each shall have the right to specify as its address any other address within the United States of America.

Steven D. Bell & Company (“SDB&Co”), the Indemnitor and an affiliate of Henry Town Center, LLC, one of the co-tenants comprising Grantor, hereby accepts appointment as the managing agent with respect to notices, demands, requests or other communications between Grantor and Grantee. SDB&Co hereby agrees to serve as attorney-in-fact for Borrower for the limited purpose of receiving all notices with respect to the Debt. Borrower acknowledges that SDB&Co will be the only party to be shown in the Loan Documents as to which notices from Grantee shall be delivered. For the purposes of the Debt, Borrower acknowledges that notice from Grantee to SDB&Co shall be deemed notice to all co-tenants. SDB&Co agrees that as managing agent it shall keep all books, records and accounts pertaining to the Debt separate from any other property of SDB&Co. Borrower agrees that SDB&Co, as managing agent and The Sembler Company, as property manager (the “Property Manager”) may be discharged or replaced only with Grantee’s prior written consent. Borrower agrees that SDB&Co shall be responsible for assuring that the Property is well maintained by the Property Manager and that all expenses related to the Property are paid by the Property Manager when due. Any notices to Grantor hereunder shall be sent to SDB&Co, 823 N. Elm Street, Suite 200, Greensboro, North Carolina 27401.

4.6Successors and Assigns; Joint and Several Liability.

The terms, provisions, indemnities, covenants and conditions hereof shall be binding upon Grantor and the successors and assigns of Grantor, including all successors in interest of

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Grantor in and to all or any part of the Property, and shall inure to the benefit of Grantee, its directors, officers, shareholders, employees and agents and their respective successors and assigns and shall constitute covenants running with the land. All references in this Security Instrument to Grantor or Grantee shall be deemed to include all such parties’ successors and assigns, and the term “Grantee” as used herein shall also mean and refer to any lawful holder or owner, including pledgees and participants, of any of the Debt. If Grantor consists of more than one person or entity, each is jointly and severally liable to perform the obligations of Grantor hereunder and all representations, warranties, covenants and agreements made by Grantor hereunder are joint and several.

4.7Severability.

A determination that any provision of this Security Instrument is unenforceable or invalid shall not affect the enforceability or validity of any other provision, and any determination that the application of any provision of this Security Instrument to any person or circumstance is illegal or unenforceable shall not affect the enforceability or validity of such provision as it may apply to any other persons or circumstances.

4.8Gender.

Within this Security Instrument, words of any gender shall be held and construed to include any other gender, and words in the singular shall be held and construed to include the plural, and vice versa, unless the context otherwise requires.

4.9Waiver; Discontinuance of Proceedings.

Grantee may waive any single Event of Default by Grantor hereunder without waiving any other prior or subsequent Event of Default. Grantee may remedy any Event of Default by Grantor hereunder without waiving the Event of Default remedied. Neither the failure by Grantee to exercise, nor the delay by Grantee in exercising, any right, power or remedy upon any Event of Default by Grantor hereunder shall be construed as a waiver of such Event of Default or as a waiver of the right to exercise any such right, power or remedy at a later date. No single or partial exercise by Grantee of any right, power or remedy hereunder shall exhaust the same or shall preclude any other or further exercise thereof, and every such right, power or remedy hereunder may be exercised at any time and from time to time. No modification or waiver of any provision hereof nor consent to any departure by Grantor therefrom shall in any event be effective unless the same shall be in writing and signed by Grantee, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose given. No notice to nor demand on Grantor in any case shall of itself entitle Grantor to any other or further notice or demand in similar or other circumstances. Acceptance by Grantee of any payment in an amount less than the amount then due on any of the Debt shall be deemed an acceptance on account only and shall not in any way affect the existence of an Event of Default. In case Grantee shall have proceeded to invoke any right, remedy or recourse permitted hereunder or under the other Loan Documents and shall thereafter elect to discontinue or abandon the same for any reason, Grantee shall have the unqualified right to do so and, in such an event, Grantor and Grantee shall be restored to their former positions with respect to the Debt, the Loan

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Documents, the Property and otherwise, and the rights, remedies, recourses and powers of Grantee shall continue as if the same had never been invoked.

4.10Section Headings.

The headings of the sections and paragraphs of this Security Instrument are for convenience of reference only, are not to be considered a part hereof and shall not limit or otherwise affect any of the terms hereof.

4.11GOVERNING LAW.

THIS SECURITY INSTRUMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PREMISES IS LOCATED, PROVIDED THAT TO THE EXTENT THAT ANY OF SUCH LAWS MAY NOW OR HEREAFTER BE PREEMPTED BY FEDERAL LAW, SUCH FEDERAL LAW SHALL SO GOVERN AND BE CONTROLLING, AND PROVIDED FURTHER THAT THE LAWS OF THE STATE IN WHICH THE PREMISES IS LOCATED SHALL GOVERN AS TO THE CREATION, PRIORITY AND ENFORCEMENT OF LIENS AND SECURITY INTERESTS IN THE PROPERTY LOCATED IN SUCH STATE.

4.12Counting of Days.

The term “days” when used herein shall mean calendar days. If any time period ends on a Saturday, Sunday or holiday officially recognized by the state within which the Premises is located, the period shall be deemed to end on the next succeeding business day. The term “business day” when used herein shall mean a weekday, Monday through Friday, except a legal holiday or a day on which banking institutions in New York, New York are authorized by law to be closed.

4.13Relationship of the Parties.

The relationship between Grantor and Grantee is that of a borrower and a lender only and neither of those parties is, nor shall it hold itself out to be, the agent, employee, joint venturer or partner of the other party.

4.14Application of the Proceeds of the Note.

To the extent that proceeds of the Note are used to pay indebtedness secured by any outstanding lien, security interest, charge or prior encumbrance against the Property, such proceeds have been advanced by Grantee at Grantor’s request and Grantee shall be subrogated to any and all rights, security interests and liens owned by any owner or holder of such outstanding liens, security interests, charges or encumbrances, irrespective of whether said liens, security interests, charges or encumbrances are released.

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4.15Unsecured Portion of Indebtedness.

If any part of the Debt cannot be lawfully secured by this Security Instrument or if any part of the Property cannot be lawfully subject to the lien and security interest hereof to the full extent of such indebtedness, then all payments made shall be applied on said indebtedness first in discharge of that portion thereof which is unsecured by this Security Instrument.

4.16Cross Default.

An Event of Default hereunder which has not been cured within any applicable grace or cure period shall be a default under each of the other Loan Documents.

4.17Interest After Sale.

In the event the Property or any part thereof shall be sold upon foreclosure as provided hereunder, to the extent permitted by law, the sum for which the same shall have been sold shall, for purposes of redemption (pursuant to the laws of the State in which the Premises is located), bear interest at the Default Interest Rate.

4.18Inconsistency with Other Loan Documents.

In the event of any inconsistency between the provisions hereof and the provisions in any of the other Loan Documents, it is intended that the provisions of the Note shall control over the provisions of this Security Instrument, and that the provisions of this Security Instrument shall control over the provisions of the Assignment of Leases and Rents, the Guaranty and Indemnity Agreement, the Environmental Indemnity Agreement, and the other Loan Documents.

4.19Construction of this Document.

This document may be construed as a security deed, Security Instrument, chattel mortgage, conveyance, assignment, security agreement, pledge, financing statement, hypothecation or contract, or any one or more of the foregoing, in order to fully effectuate the liens and security interests created hereby and the purposes and agreements herein set forth.

4.20No Merger.

It is the desire and intention of the parties hereto that this Security Instrument and the lien hereof do not merge in fee simple title to the Property. It is hereby understood and agreed that should Grantee acquire any additional or other interests in or to the Property or the ownership thereof, then, unless a contrary intent is manifested by Grantee as evidenced by an appropriate document duly recorded, this Security Instrument and the lien hereof shall not merge in such other or additional interests in or to the Property, toward the end that this Security Instrument may be foreclosed as if owned by a stranger to said other or additional interests.

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4.21Rights With Respect to Junior Encumbrances.

Any person or entity purporting to have or to take a junior mortgage or other lien upon the Property or any interest therein shall be subject to the rights of Grantee to amend, modify, increase, vary, alter or supplement this Security Instrument, the Note or any of the other Loan Documents, and to extend the maturity date of the Debt, and to increase the amount of the Debt, and to waive or forebear the exercise of any of its rights and remedies hereunder or under any of the other Loan Documents and to release any collateral or security for the Debt, in each and every case without obtaining the consent of the holder of such junior lien and without the lien or security interest of this Security Instrument losing its priority over the rights of any such junior lien.

4.22Grantee May File Proofs of Claim.

In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings affecting Grantor or the principals, general partners or managing members in Grantor, or their respective creditors or property, Grantee, to the extent permitted by law, shall be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have the claims of Grantee allowed in such proceedings for the entire Debt at the date of the institution of such proceedings and for any additional amount which may become due and payable by Grantor hereunder after such date.

4.23Fixture Filing.

This Security Instrument shall be effective from the date of its recording as a financing statement filed as a fixture filing with respect to all goods constituting part of the Property which are or are to become fixtures. This Security Instrument shall also be effective as a financing statement covering minerals or the like (including oil and gas) and is to be filed for record in the real estate records of the county where the Premises is situated. The mailing address of Grantor and the address of Grantee from which information concerning the security interests may be obtained are set forth in Section 1.22 above.

4.24After-Acquired Property.

All property acquired by Grantor after the date of this Security Instrument which by the terms of this Security Instrument shall be subject to the lien and the security interest created hereby, shall immediately upon the acquisition thereof by Grantor and without further mortgage, conveyance or assignment become subject to the lien and security interest created by this Security Instrument. Nevertheless, Grantor shall execute, acknowledge, deliver and record or file, as appropriate, all and every such further mortgages, security agreements, financing statements, assignments and assurances as Grantee shall require for accomplishing the purposes of this Security Instrument.

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4.25No Representation.

By accepting delivery of any item required to be observed, performed or fulfilled or to be given to Grantee pursuant to the Loan Documents, including, but not limited to, any officer’s certificate, balance sheet, statement of profit and loss or other financial statement, survey, appraisal or insurance policy, Grantee shall not be deemed to have warranted, consented to, or affirmed the sufficiency, legality, effectiveness or legal effect of the same, or of any term, provision or condition thereof, and such acceptance of delivery thereof shall not be or constitute any warranty, consent or affirmation with respect thereto by Grantee.

4.26Counterparts.

This Security Instrument may be executed in any number of counterparts, each of which shall be effective only upon delivery and thereafter shall be deemed an original, and all of which shall be taken to be one and the same instrument, for the same effect as if all parties hereto had signed the same signature page. Any signature page of this Security Instrument may be detached from any counterpart of this Security Instrument without impairing the legal effect of any signatures thereon and may be attached to another counterpart of this Security Instrument identical in form hereto but having attached to it one or more additional signature pages.

4.27Personal Liability.

Notwithstanding anything to the contrary contained in this Security Instrument, the liability of Grantor and its officers, directors, general partners, managers, members and principals for the Debt and for the performance of the other agreements, covenants and obligations contained herein and in the Loan Documents shall be limited as set forth in Section 2.6 of the Note.

4.28Recording and Filing.

Grantor will cause the Loan Documents and all amendments and supplements thereto and substitutions therefor to be recorded, filed, re-recorded and re-filed in such manner and in such places as Grantee shall reasonably request, and will pay on demand all such recording, filing, re-recording and re-filing taxes, fees and other charges. Grantor shall reimburse Grantee, or its servicing agent, for the costs incurred in obtaining a tax service company to verify the status of payment of taxes and assessments on the Property.

4.29Entire Agreement and Modifications.

This Security Instrument and the other Loan Documents contain the entire agreements between the parties relating to the subject matter hereof and thereof and all prior agreements relative hereto and thereto which are not contained herein or therein are terminated. This Security Instrument and the other Loan Documents may not be amended, revised, waived, discharged, released or terminated orally but only by a written instrument or instruments executed by the party against which enforcement of the amendment, revision, waiver, discharge,

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release or termination is asserted. Any alleged amendment, revision, waiver, discharge, release or termination which is not so documented shall not be effective as to any party.

4.30Maximum Interest.

The provisions of this Security Instrument and of all agreements between Grantor and Grantee, whether now existing or hereafter arising and whether written or oral, are hereby expressly limited so that in no contingency or event whatsoever, whether by reason of demand or acceleration of the maturity of the Note or otherwise, shall the amount paid, or agreed to be paid (“Interest”) to Grantee for the use, forbearance or retention of the money loaned under the Note exceed the maximum amount permissible under applicable law. If, from any circumstance whatsoever, performance or fulfillment of any provision hereof or of any agreement between Grantor and Grantee shall, at the time performance or fulfillment of such provision shall be due, exceed the limit for Interest prescribed by law or otherwise transcend the limit of validity prescribed by applicable law, then, ipso facto, the obligation to be performed or fulfilled shall be reduced to such limit, and if, from any circumstance whatsoever, Grantee shall ever receive anything of value deemed Interest by applicable law in excess of the maximum lawful amount, an amount equal to any excessive Interest shall be applied to the reduction of the principal balance owing under the Note in the inverse order of its maturity (whether or not then due) or, at the option of Grantee, be paid over to Grantor, and not to the payment of Interest. All Interest (including any amounts or payments deemed to be Interest) paid or agreed to be paid to Grantee shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full period until payment in full of the principal balance of the Note so that the Interest thereon for such full period will not exceed the maximum amount permitted by applicable law. This Section will control all agreements between Grantor and Grantee.

4.31Interest Payable by Grantee.

Grantee shall cause funds in the Replacement Reserve to be deposited into interest bearing accounts of the type customarily maintained by Grantee or its servicing agent for the investment of similar reserves, which accounts may not yield the highest interest rate then available. Interest payable on such amounts shall be computed based on the daily outstanding balance in the Replacement Reserve. Such interest shall be calculated on a simple, non-compounded interest basis based solely on contributions made to the Replacement Reserve by Grantor. All interest earned on amounts contributed to the Replacement Reserve shall be retained by Grantee and accumulated for the benefit of Grantor and added to the balance in the Replacement Reserve and shall be disbursed for payment of the items for which other funds in the Replacement Reserve are to be disbursed.

4.32Dissemination of Information.

If Grantee determines at any time to sell, transfer or assign the Note, this Security Instrument and the other Loan Documents, and any or all servicing rights with respect thereto, or to grant participations therein (the “Participations”) or issue mortgage pass-through certificates or other securities evidencing a beneficial interest in a rated or unrated public offering or private placement (the “Securities”), Grantee may forward to each purchaser, transferee, assignee,

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servicer, participant, investor, or their respective successors in such Participations and/or Securities (collectively, the “Investor”) or any Rating Agency rating such Securities, each prospective Investor and each of the foregoing’s respective counsel, all documents and information which Grantee now has or may hereafter acquire relating to the Debt and to Grantor, any Guarantor, any Indemnitor and the Property, which shall have been furnished by Grantor, any Guarantor, or any Indemnitor, as Grantee determines necessary or desirable.

4.33Secondary Market.

Grantee may sell, transfer and deliver the Loan Documents to one or more Investors in the secondary mortgage market. In connection with such sale, Grantee may retain or assign responsibility for servicing the loan or may delegate some or all of such responsibility and/or obligations to a servicer, including, but not limited to, any subservicer or master servicer, on behalf of the investors. All references to Grantee herein shall refer to and include, without limitation, any such servicer, to the extent applicable.

4.34Certain Matters Relating to Property Located in the State of Georgia.

With respect to the Property which is located in the State of Georgia, notwithstanding anything contained herein to the contrary:

Power of Sale.(a) Upon the occurrence of an Event of Default, Grantee, or the agent or successor of Grantee, may, at its option, sell or offer for sale the Property in such portions, order and parcels as Grantee may determine with or without having first taken possession of same, to the highest bidder for cash at one or more public sales in accordance with the terms and provisions of the law of the State of Georgia. Such sale shall be made at the area within the courthouse of the county in which the Property (or any portion thereof to be sold) is situated (whether the parts or parcels thereof, if any, in different counties are contiguous or not, and without the necessity of having any personal property hereby secured present at such sale) which is designated by the applicable court of such county as the area in which public sales are to take place, or, if no such area is designated, at the area at the courthouse designated in the notice of sale as the area in which the sale will take place, on such day and at such times as permitted under applicable law of the State of Georgia, after advertising the time, place and terms of sale and that portion of the Property in accordance herewith and such law, and after having served written or printed notice of the proposed sale by certified mail on each borrower obligated to pay the Note and other secured indebtedness secured by this Security Deed according to the records of Grantee in accordance with applicable law. The affidavit of any person having knowledge of the facts to the effect that such service was completed shall be prima facie evidence of the fact of service. The time, place and terms of any such sale shall be advertised once a week for four (4) consecutive weeks, immediately prior to the date of sale (but without regard to the number of days elapsed intervening between the date of publication of the first advertisement and the date of sale) in a newspaper in which sheriff’s sales are advertised in said county. In the event of any such public sale pursuant to the aforesaid power of sale and agency, Grantor shall be deemed a tenant holding over and shall forthwith deliver possession of the Property to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over.

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At any such public sale, Grantee may execute and deliver in the name of Grantor to the purchaser a conveyance of the Property or any part of the Property in fee simple. Grantor hereby constitutes and appoints Grantee the agent and attorney-in-fact of Grantor to make such sale and conveyance, and thereby to divest Grantor of all right, title and equity that Grantor may have in and to the Property and to vest the same in the purchaser or purchasers at such sale or sales, and all the acts and doings of said agent and attorney-in-fact are hereby ratified and confirmed and any recitals in said conveyance or conveyances as to facts essential to a valid sale shall be binding upon Grantor. The aforesaid power of sale and agency hereby granted are coupled with an interest and are irrevocable by death or otherwise, are granted as cumulative of the other remedies provided hereby or by law for collection of the Debt and shall not be exhausted by one exercise thereof but may be exercised until full payment of all of the Debt. In the event of any sale under this Deed by virtue of the exercise of the powers herein granted, or pursuant to any order in any judicial proceeding or otherwise, the Property may be sold in its entirety or in separate parcels and in such manner or order as Grantee in its sole discretion may elect, and if Grantee so elects, Grantee may sell the personal property covered by this Deed at one or more separate sales in any manner permitted by the Uniform Commercial Code of Georgia, and one or more exercises of the powers herein granted shall not extinguish or exhaust such powers, until all the Property is sold or the Note and other secured indebtedness is paid in full. If the Note and other secured indebtedness is now or hereafter further secured by any chattel mortgages, deeds to secure debt or deeds of trust, pledges, contracts or guaranty, assignments of lease, or other security instruments, Grantee at its option may exhaust the remedies granted under any of said security instruments either concurrently or independently, and in such order as Grantee may determine.

(b)Upon any foreclosure sale or sales of all or any portion of the Property under the power herein granted, Grantee may bid for and purchase the Property and shall be entitled to apply all or any part of the Debt as a credit to the purchase price.

(c)In the event of a foreclosure or a sale of all or any portion of the Property under the power herein granted, the proceeds of said sale shall be applied, in whatever order Grantee in its sole discretion may decide, to the expenses of such sale and of all proceedings in connection therewith (including, without limitation, attorneys’ fees and expenses), to insurance premiums, liens, assessments, taxes and charges (including, without limitation, utility charges advanced by Grantee), to payment of the outstanding principal balance of the Debt, and to the accrued interest on all of the foregoing; and the remainder, if any, shall be paid to Grantor, or to the person or entity lawfully entitled thereto.

4.35WAIVER OF NOTICE AND HEARING.

GRANTOR HEREBY WAIVES ANY RIGHT IT MAY HAVE UNDER THE CONSTITUTION OF THE STATE OF GEORGIA OR THE CONSTITUTION OF THE UNITED STATES OF AMERICA TO NOTICE OR TO A JUDICIAL HEARING PRIOR TO THE EXERCISE OF ANY RIGHT OR REMEDY PROVIDED BY THIS SECURITY DEED AND GRANTOR WAIVES ITS RIGHTS, IF ANY, TO SET ASIDE OR

59

INVALIDATE ANY SALE DULY CONSUMMATED IN ACCORDANCE WITH THE PROVISIONS OF THIS SECURITY DEED ON THE GROUND (IF SUCH BE THE CASE) THAT THE SALE WAS CONSUMMATED WITHOUT A PRIOR JUDICIAL HEARING. ALL WAIVERS BY GRANTOR IN THIS PARAGRAPH HAVE BEEN VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY, AFTER THE GRANTOR HAS BEEN FIRST INFORMED BY COUNSEL OF ITS OWN CHOOSING AS TO POSSIBLE ALTERNATIVE RIGHTS, AND HAVE BEEN AS AN INTENTIONAL RELINQUISHMENT AND ABANDONMENT OF A KNOWN RIGHT AND PRIVILEGE.

4.36Attorneys’ Fee.

When used herein and in the other Loan Documents, the phrase “attorneys’ fees and expenses” shall mean attorneys’ fees and expenses actually incurred without the benefit of statutory presumption.

[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

60

IN WITNESS WHEREOF, Grantor has executed this Security Instrument on the day and year first written above.

GRANTOR:
Henry Town Center, LLC
A Georgia limited liability company
By:	/s/ Steven D. Bell
	Steven D. Bell
	Managing Member

Signed, sealed and delivered
in the presence of:
/s/ Barbara R. Christy
Print Name:	Barbara R. Christy
	Unofficial Witness
/s/ Lois J. Blankenship
Notary Public
(Notarial Seal)
My commission expires: April 7, 2007

Signed, sealed and delivered	Alpha Seven, LLC
in the presence of the following	a Delaware limited liability company
witnesses:
	By:	Edwards Mill Village Associates Limited
/s/ [ILLEGIBLE]		Partnership, a North Carolina limited
Unofficial Witness		partnership
	Its:	Sole Member
/s/ [ILLEGIBLE]
Notary Public			By:		ALPHA THREE, a North Carolina
				general partnership
(NOTARY SEAL)
			Its:		General Partner
My Commission Expires:
			By:		/s/ Robert F. Andrews, III
9-11-04					Robert F. Andrews, III
					General Partner

Elliston Henry Town Center, LLC
a Delaware limited liability company
By	Winston Three, LLC, a North Carolina
	Limited liability company, its sole member
	By	/s/ W. Leon Elliston
		W. Leon Elliston
		Sole Member/Manager

Signed, sealed and delivered
in the presence of:
/s/ C.W. Eller
Print Name:	C.W. ELLER
	Unofficial Witness
/s/ Cameron R. Higdon
Notary Public
(Notarial Seal)
My commission expires: 02/25/2006
		[Signatures continue on following page]

		Owen Henry Town Center, LLC
		A Delaware limited liability company
		By:	/s/ Benjamin Ligon Owen
			Benjamin Ligon Owen
			Sole Member/Manager
Signed, sealed and delivered
in the presence of:
/s/ Lydia Owen Boesch
Print Name:	Lydia Owen Boesch
	Unofficial Witness
/s/ [ILLEGIBLE]
Notary Public
(Notarial Seal)
My commission expires: June 26, 2004

		DSCongdonA, LLC
		a Delaware limited liability company
		By:	/s/ Robert A. Cox, Jr.
			Robert A. Cox, Jr.
			Manager
Signed, sealed and delivered
in the presence of:
/s/ Jirleen K. Sandhu
Print Name:	Jirleen K. Sandhu
	Unofficial Witness
/s/ [ILLEGIBLE]
Notary Public
(Notarial Seal)
My commission expires: 10/31/2006

		JWCongdonA, LLC
		a Delaware limited liability company
		By:	/s/ Robert A. Cox, Jr.,
			Robert A. Cox, Jr.,
			Manager
Signed, sealed and delivered
in the presence of:
/s/ Jirleen K. Sandhu
Print Name:	Jirleen K. Sandhu
	Unofficial Witness
/s/ [ILLEGIBLE]
Notary Public
(Notarial Seal)
My commission expires: 10/31/2006

		KCVanstoryA, LLC
		a Delaware limited liability company
		By:	/s/ Robert A. Cox, Jr.
			Robert A. Cox, Jr.
			Manager
Signed, sealed and delivered
in the presence of:
/s/ Jirleen K. Sandhu
Print Name:	Jirleen K. Sandhu
	Unofficial Witness
/s/ [ILLEGIBLE]
Notary Public
(Notarial Seal)
My commission expires: 10/31/2006

		ALCongdonA, LLC
		a Delaware limited liability company
		By:	/s/ Robert A. Cox, Jr.
			Robert A. Cox, Jr.
			Manager
Signed, sealed and delivered
in the presence of:
/s/ Jirleen K. Sandhu
Print Name:	Jirleen K. Sandhu
	Unofficial Witness
/s/ [ILLEGIBLE]
Notary Public
(Notarial Seal)
My commission expires: 10/31/2006

		SCTerryA, LLC
		a Delaware limited liability company
		By:	/s/ Robert A. Cox, Jr.
			Robert A. Cox, Jr.
			Manager
Signed, sealed and delivered
in the presence of:
/s/ Jirleen K. Sandhu
Print Name:	Jirleen K. Sandhu
	Unofficial Witness
/s/ [ILLEGIBLE]
Notary Public
(Notarial Seal)
My commission expires: 10/31/2006

		JRCongdon,Jr.A, LLC
		a Delaware limited liability company
		By:	/s/ Robert A. Cox, Jr.
			Robert A. Cox, Jr.
			Manager
Signed, sealed and delivered
in the presence of:
/s/ Jirleen K. Sandhu
Print Name:	Jirleen K. Sandhu
	Unofficial Witness
/s/ [ILLEGIBLE]
Notary Public
(Notarial Seal)
My commission expires: 10/31/2006

		Spence Henry Town Center, LLC
		a Delaware limited liability company
		By:	/s/ David A. Spence
			David Spence
			Sole Member/Manager
Signed, sealed and delivered
in the presence of:
/s/ Jeanette DeVeau
Print Name:	Jeanette DeVeau
	Unofficial Witness
/s/ Leigh Ann Weber
Notary Public
(Notarial Seal)
My commission expires: 3-3-2007

		Jay Henry Town Center, LLC
		a Delaware limited liability company
		By:	Jay Family Limited Partnership, a North
			Carolina limited partnership, its sole member
			By:	/s/ Mack C. Jay III
				Name:		Mack C. Jay III
				Title:	Gen. Partner
Signed, sealed and delivered
in the presence of:
/s/ Gregory S. Williams
Print Name:	Gregory S. Williams
	Unofficial Witness
/s/ M. Lynn Pound
Notary Public
(Notarial Seal)
My commission expires: 7-25-2007

EXHIBIT “A”

LEGAL DESCRIPTION

Developer Tract 1

All that tract or parcel of land lying and being in Land Lots 82 & 111 of the 6^th District, Henry County, Georgia, and being more particularly described as follows:

Commencing at a concrete right-of-way monument found at the southwestern corner of the mitered intersection of the western right-of-way of Interstate Highway No. 75 (variable right-of-way) and the northern right-of-way of Jonesboro Road (variable right-of-way); Thence along the northern right-of-way of Jonesboro Road (variable right-of-way) North 71 degrees 36 minutes 51 seconds West, a distance of 111.85 feet to a concrete right-of-way monument found; Thence along said right-of-way South 18 degrees 19 minutes 24 seconds West, a distance of 25.00 feet to a point; Thence North 71 degrees 36 minutes 34 seconds West, a distance of 88.11 feet to a 1/2 inch crimped top pipe found; Thence North 18 degrees 19 minutes 21 seconds East, a distance of 88.00 feet to a point; Thence North 71 degrees 41 minutes 15 seconds West, a distance of 665.75 feet to a 5/8 inch rebar set; said point being the TRUE POINT OF BEGINNING; Thence along said right-of-way North 71 degrees 41 minutes 15 seconds West, a distance of 88.50 feet to a 5/8 inch rebar set; Thence leaving said right-of-way North 18 degrees 15 minutes 14 seconds East, a distance of 24.16 feet to a 5/8 inch rebar set; Thence South 71 degrees 44 minutes 46 seconds East, a distance of 20.00 feet to a 5/8 inch rebar set; Thence North 18 degrees 15 minutes 14 seconds East, a distance of 188.56 feet to a pk nail set; Thence along a curve to the left, an arc length of 147.29 feet, said curve having a radius of 490.00 feet, with a chord distance of 146.73 feet, at North 09 degrees 38 minutes 34 seconds East, to a 5/8 inch rebar set; Thence North 01 degrees 01 minutes 54 seconds East, a distance of 29.74 feet to a 5/8 inch rebar set; Thence North 43 degrees 00 minutes 13 seconds West, a distance of 26.67 feet to a 5/8 inch rebar set; Thence North 87 degrees 02 minutes 20 seconds West, a distance of 130.46 feet to a 5/8 inch rebar set; Thence North 72 degrees 57 minutes 01 seconds West, a distance of 49.30 feet to a 5/8 inch rebar set; Thence North 87 degrees 02 minutes 20 seconds West, a distance of 161.78 feet to a 5/8 inch rebar set; Thence North 02 degrees 57 minutes 40 seconds East, a distance of 76.00 feet to a pk nail set; Thence North 87 degrees 02 minutes 20 seconds West, a distance of 52.04 feet to a pk nail set; Thence North 02 degrees 57 minutes 40 seconds East, a distance of 254.40 feet to a pk nail set; Thence South 87 degrees 02 minutes 20 seconds East, a distance of 82.00 feet to a point; Thence North 02 degrees 57 minutes 40 seconds East, a distance of 332.88 feet to a pk nail set; Thence North 87 degrees 02 minutes 20 seconds West, a distance of 93.17 feet to a pk nail set; Thence North 02 degrees 57 minutes 40 seconds East, a distance of 181.83 feet to a pk nail set; Thence South 87 degrees 02 minutes 20 seconds East, a distance of 12.00 feet to a pk nail set; Thence North 02 degrees 57 minutes 40 seconds East, a distance of 96.69 feet to a pk nail set; Thence South 87 degrees 02 minutes 20 seconds East, a distance of 108.00 feet to a pk nail set; Thence North 02 degrees 57 minutes 40 seconds East, a distance of 579.84 feet to a 5/8 inch rebar set; Thence North 89 degrees 59 minutes 42 seconds East, a distance of 145.88 feet to a 1/2 inch rebar found; Thence South 79 degrees 37 minutes 33 seconds East, a distance of 150.01 feet to a 1/2 inch rebar found; Thence North 85 degrees 56 minutes 21 seconds East, a distance of 84.92 feet to a 1/2inch rebar found; Thence North 72

degrees 16 minutes 16 seconds East, a distance of 119.73 feet to a 5/8 inch rebar found; Thence North 42 degrees 50 minutes 27 seconds East, a distance of 123.21 feet to a 3\4 inch open top pipe found on the western right-of-way of Interstate Highway No. 75 (variable right-of-way); Thence along said right-of-way, South 19 degrees 05 minutes 25 seconds East, a distance of 715.05 feet to a point; Thence leaving said right-of-way South 02 degrees 57 minutes 40 seconds West, a distance of 321.79 feet to a point; Thence South 47 degrees 57 minutes 40 seconds West, a distance of 25.73 feet to a point; Thence South 02 degrees 57 minutes 40 seconds West, a distance of 194.72 feet to a point; Thence South 88 degrees 59 minutes 16 seconds East, a distance of 110.72 feet to a point; Thence North 01 degrees 00 minutes 44 seconds East, a distance of 20.84 feet to a point; Thence South 88 degrees 59 minutes 16 seconds East, a distance of 99.51 feet to a point on the western right-of-way of Interstate Highway No. 75 (variable right-of-way); Thence along said right-of-way South 22 degrees 00 minutes 10 seconds East, a distance of 69.74 feet to a 5/8 inch rebar found; Thence leaving said right-of-way North 88 degrees 59 minutes 16 seconds West, a distance of 307.56 feet to a pk nail set; Thence South 81 degrees 36 minutes 34 seconds West, a distance of 259.79 feet to a point; Thence North 88 degrees 58 minutes 17 seconds West, a distance of 179.04 feet to a pk nail set; Thence South 01 degrees 01 minutes 54 seconds West, a distance of 564.43 feet to a pk nail set; Thence South 71 degrees 44 minutes 46 seconds East, a distance of 40.50 feet to a point; Thence South 66 degrees 24 minutes 28 seconds West, a distance of 28.19 feet to a point; Thence South 18 degrees 15 minutes 14 seconds West, a distance of 206.00 feet to a 5/8” rebar set located on the Northern right-of-way of Jonesboro Road, said point being the TRUE POINT OF BEGINNING.

Said tract contains 26.177 Acres.

TOGETHER WITH:

Developer Tract 2

All that tract or parcel of land lying and being in Land Lots 83 & 110 of the 6^th District, Henry County, Georgia, and being more particularly described as follows:

Commencing at a concrete right-of-way monument found at the southwestern corner of the mitered intersection of the western right-of-way of Interstate Highway No. 75 (variable right-of-way) and the northern right-of-way of Jonesboro Road (variable right-of-way); Thence along the northern right-of-way of Jonesboro Road (variable right-of-way) North 71 degrees 36 minutes 51 seconds West, a distance of 111.85 feet to a concrete right-of-way monument found; Thence along said right-of-way South 18 degrees 19 minutes 24 seconds West, a distance of 25.00 feet to a point; Thence North 71 degrees 36 minutes 34 seconds West, a distance of 88.11 feet to a 1/2 inch crimped top pipe found; Thence North 18 degrees 19 minutes 21 seconds East, a distance of 88.00 feet to a point; Thence North 71 degrees 41 minutes 15 seconds West, a distance of 925.05 feet to a point; Thence along a curve to the left, an arc length of 131.42 feet, said curve having a radius of 1417.32 feet, with a chord distance of 131.37 feet, at North. 74 degrees 20 minutes 37 seconds West, to a point; Thence along a curve to the left, an arc length of 212.21 feet, said curve having a radius of 1417.32 feet, with a chord distance of 212.01 feet, at North 81 degrees 17 minutes 21 seconds West, to a point; Thence along a curve to the left, an arc length

of 50.00 feet, said curve having a radius of 1417.32 feet, with a chord distance of 50.00 feet, at North 86 degrees 35 minutes 21 seconds West, to a 5/8 inch rebar found; Thence along a curve to the left, an arc length of 17.27 feet, said curve having a radius of 1417.32 feet, with a chord distance of 17.27 feet, at North 87 degrees 56 minutes 56 seconds West, to a 5/8 inch rebar set; Thence North 88 degrees 17 minutes 53 seconds West, a distance of 487.47 feet to a 5/8 inch rebar set; said 5/8 inch rebar set being the TRUE POINT OF BEGINNING; Thence South 02 degrees 57 minutes 40 seconds West, a distance of 38.78 feet to a 5/8 inch rebar set; Thence North 88 degrees 07 minutes 55 seconds West, a distance of 101.03 feet to a 5/8 inch rebar set; Thence leaving said right-of-way North 02 degrees 57 minutes 40 seconds East, a distance of 30.00 feet to a 5/8 inch rebar set; Thence South 88 degrees 07 minutes 55 seconds East, a distance of 20.00 feet to a 5/8 inch rebar set; Thence North 02 degrees 57 minutes 40 seconds East, a distance of 637.29 feet to a 5/8 inch rebar set; Thence North 87 degrees 02 minutes 20 seconds West, a distance of 29.37 feet to a pk nail set; Thence South 02 degrees 57 minutes 40 seconds West, a distance of 54.68 feet to a pk nail set; Thence North 87 degrees 02 minutes 20 seconds West, a distance of 308.09 feet to a pk nail set; Thence South 02 degrees 57 minutes 40 seconds West, a distance of 65.67 feet to a pk nail set; Thence North 87 degrees 02 minutes 20 seconds West, a distance of 511.22 feet to a 5/8 inch rebar set on the Eastern right-of-way of Mount Olive Road (variable right-of-way); Thence along said right-of-way the following courses and distances; North 18 degrees 38 minutes 12 seconds West, a distance of 108.35 feet to a 5/8 inch rebar set; Thence along a curve to the right, an arc length of 81.70 feet, said curve having a radius of 860.00 feet, with a chord distance of 81.67 feet, at North 15 degrees 54 minutes 54 seconds West, to a 5/8 inch rebar set; Thence along a curve to the right, an arc length of 330.70 feet, said curve having a radius of 860.00 feet, with a chord distance of 328.66 feet, at North 02 degrees 10 minutes 39 seconds West, to a 5/8 inch rebar set; Thence North 08 degrees 50 minutes 26 seconds East, a distance of 15.23 feet to a 5/8 inch rebar set; Thence North 09 degrees 24 minutes 00 seconds East, a distance of 26.66 feet to a 5/8 inch rebar set; Thence leaving said right-of-way, South 55 degrees 04 minutes 52 seconds East, a distance of 48.90 feet to a 5/8 inch rebar found; Thence South 87 degrees 02 minutes 20 seconds East, a distance of 199.65 feet to an angle iron found; Thence South 89 degrees 33 minutes 01 seconds East, a distance of 97.25 feet to a 5/8 inch rebar found; Thence North 51 degrees 07 minutes 53 seconds East, a distance of 212.77 feet to a 5/8 inch rebar set; Thence North 51 degrees 07 minutes 53 seconds East, a distance of 196.92 feet to a 5/8 inch rebar found; Thence North 02 degrees 57 minutes 40 seconds East, a distance of 194.91 feet to a 5/8 inch rebar set; Thence South 87 degrees 02 minutes 20 seconds East, a distance of 330.21 feet to a 5/8 inch rebar found; Thence North 02 degrees 57 minutes 40 seconds East, a distance of 127.12 feet to a point on the centerline of Walnut Creek (said point also herein called “Point A”); Thence northeasterly, easterly, and southeasterly along the centerline of Walnut Creek and following the meanderings thereof 278.17 feet, more or less, to a point on the centerline of Walnut Creek (said point also herein called “Point B”) said Point B also being located by commencing at Point A and following the traverse line described as follows: North 78 degrees 29 minutes 37 seconds East, a distance of 61.76 feet to a point; Thence North 71 degrees 58 minutes 40 seconds East, a distance of 63.78 feet to a point; Thence North 78 degrees 18 minutes 44 seconds East, a distance of 63.54 feet to a point; Thence North 87 degrees 43 minutes 53 seconds East, a distance of 60.45 feet to a point; Thence North 69 degrees 07 minutes 39 seconds East, a distance of 28.64 feet to Point B; Thence leaving the said centerline of Walnut Creek South 02 degrees 57 minutes 40 seconds West, a distance of 285.39 feet to a 5/8 inch rebar set; Thence

North 87 degrees 02 minutes 20 seconds West, a distance of 12.00 feet to a 5/8 inch rebar set; Thence South 02 degrees 57 minutes 40 seconds West, a distance of 247.00 feet to a pk nail set; Thence South 87 degrees 02 minutes 20 seconds East, a distance of 12.00 feet to a point; Thence South 02 degrees 57 minutes 40 seconds West, a distance of 197.81 feet to a pk nail set; Thence South 87 degrees 02 minutes 20 seconds East, a distance of 24.51 feet to a pk nail set; Thence South 02 degrees 57 minutes 40 seconds West, a distance of 318.69 feet to a pk nail set; Thence North 87 degrees 02 minutes 20 seconds West, a distance of 20.20 feet to a pk nail set; Thence South 02 degrees 57 minutes 40 seconds West, a distance of 274.61 feet to a 5/8 inch rebar set; Thence North 87 degrees 02 minutes 20 seconds West, a distance of 58.80 feet to a 5/8 inch rebar set; Thence North 87 degrees 02 minutes 20 seconds West, a distance of 162.21 feet to a 5/8 inch rebar set; Thence South 47 degrees 57 minutes 40 seconds West, a distance of 28.69 feet to a 5/8 inch rebar set; Thence South 02 degrees 57 minutes 40 seconds West, a distance of 355.26 feet to a 5/8 inch rebar set; Thence South 88 degrees 17 minutes 53 seconds East, a distance of 16.89 feet to a 5/8 inch rebar set; said rebar set being the TRUE POINT OF BEGINNING.

Said tract contains 24.261 Acres.

TOGETHER WITH:

Developer Tract 3

All that tract or parcel of land lying and being in Land Lot 110 of the 6^th District, Henry Corner, Georgia, and being more particularly described as follows:

Commencing at a concrete right-of-way monument found at the southwestern corner of the mitered intersection of the western right-of-way of Interstate Highway No. 75 (variable right-of-way) and the northern right-of-way of Jonesboro Road (variable right-of-way); Thence along the northern right-of-way of Jonesboro Road (variable right-of-way) North 71 degrees 36 minutes 51 seconds West, a distance of 111.85 feet to a concrete right-of-way monument found; Thence along said right-of-way South 18 degrees 19 minutes 24 seconds West, a distance of 25.00 feet to a point; Thence North 71 degrees 36 minutes 34 seconds West, a distance of 88.11 feet to a 1/2 inch crimped top pipe found; Thence North 18 degrees 19 minutes 21 seconds East, a distance of 88.00 feet to a point; Thence North 71 degrees 41 minutes 15 seconds West, a distance of 925.05 feet to a point; Thence along a curve to the left, an arc length of 131.42 feet, said curve having a radius of 1417.32 feet, with a chord distance of 131.37 feet, at North 74 degrees 20 minutes 37 seconds West, to a point; Thence along a curve to the left, an arc length of 212.21 feet, said curve having a radius of 1417.32 feet, with a chord distance of 212.01 feet, at North 81 degrees 17 minutes 21 seconds West, to a point; Thence along a curve to the left, an arc length of 50.00 feet, said curve having a radius of 1417.32 feet, with a chord distance of 50.00 feet, at North 86 degrees 35 minutes 21 seconds West, to a 5/8 inch rebar found; Thence along a curve to the left, an arc length of 17.27 feet, said curve having a radius of 1417.32 feet, with a chord distance of 17.27 feet, at North 87 degrees 56 minutes 56 seconds West to a 5/8 inch rebar set; Thence North 88 degrees 17 minutes 53 seconds West, a distance of 487.47 feet to a 5/8 inch rebar set; Thence South 02 degrees 57 minutes 40 seconds West, a distance of 38.78 feet to a 5/8 inch rebar set; Thence North 88 degrees 07 minutes 55 seconds West, a distance of 101.03 feet

to a 5/8 inch rebar set; said point being the TRUE POINT OF BEGINNING; Thence along the right-of-way of Jonesboro Road, North 88 degrees 07 minutes 55 seconds West, a distance of 684.41 feet to a 5/8 inch rebar set at the intersection of the northern right-of-way of Jonesboro Road (variable right-of-way) and eastern right-of-way of Mount Olive Road (variable right-of-way); Thence along the eastern right-of-way of Mount Olive Road (variable right-of-way) North 22 degrees 04 minutes 25 seconds West, a distance of 31.15 feet to a 5/8 inch rebar set; Thence along said right-of-way North 15 degrees 51 minutes 54 seconds West, a distance of 49.30 feet to a 5/8 inch rebar set; Thence North 07 degrees 39 minutes 18 seconds West, a distance of 298.06 feet to a 5/8 inch rebar set; Thence along a curve to the left, an arc length of 154.10 feet, said curve having a radius of 803.90 feet, with a chord distance of 153.86 feet, at North 13 degrees 08 minutes 46 seconds West, to a 5/8 inch rebar set; Thence North 18 degrees 38 minutes 12 seconds West, a distance of 48.10 feet to a 5/8 inch rebar set; Thence leaving said right-of-way South 87 degrees 02 minutes 20 seconds East, a distance of 511.22 feet to a pk nail set; Thence North 02 degrees 57 minutes 40 seconds East, a distance of 65.67 feet to a pk nail set; Thence South 87 degrees 02 minutes 20 seconds East, a distance of 308.09 feet to a pk nail set; Thence North 02 degrees 57 minutes 40 seconds East, a distance of 54.68 feet to a pk nail set; Thence South 87 degrees 02 minutes 20 seconds East, a distance of 29.37 feet to a 5/8 inch rebar set; Thence South 02 degrees 57 minutes 40 seconds West, a distance of 637.29 feet to a 5/8 inch rebar set; Thence North 88 degrees 07 minutes 55 seconds West, a distance of 20.00 feet to a 5/8 inch rebar set; Thence South 02 degrees 57 minutes 40 seconds West, a distance of 30.00 feet to a 5/8 inch rebar set; said point being the TRUE POINT OF BEGINNING.

Said tract contains 10.379 Acres.

TOGETHER WITH:

Outparcel 7

All that tract or parcel of land lying and being in Land Lot 110 of the 6^th District, Henry County, Georgia, and being more particularly described as follows:

Commencing at a concrete right-of-way monument found at the southwestern corner of the mitered intersection of the western right-of-way of Interstate Highway No. 75 (variable right-of-way) and the northern right-of-way of Jonesboro Road (variable right-of-way); Thence along the northern right-of-way of Jonesboro Road (variable right-of-way) North 71 degrees 36 minutes 51 seconds West, a distance of 111.85 feet to a concrete right-of-way monument found; Thence along said right-of-way South 18 degrees 19 minutes 24 seconds West, a distance of 25.00 feet to a point; Thence North 71 degrees 36 minutes 34 seconds West, a distance of 88.11 feet to a 2 1/2 inch crimped top pipe found; Thence North 18 degrees 19 minutes 21 seconds East, a distance of 88.00 feet to a point; Thence North 71 degrees 41 minutes 15 seconds West, a distance of 925.05 feet to a point; Thence along a curve to the left, an arc length of 131.42 feet, said curve having a radius of 1417.32 feet, with a chord distance of 131.37 feet, at North 74 degrees 20 minutes 37 seconds West, to a point; Thence along a curve to the left, an arc length of 212.21 feet, said curve having a radius of 1417.32 feet, with a chord distance of 212.01 feet, at North 81 degrees 17 minutes 21 seconds West, to a point; Thence along a curve to the left, an arc length of 50.00 feet, said curve having a radius of 1417.32 feet, with a chord distance of 50.00 feet, at

North 86 degrees 35 minutes 21 seconds West, to a 5/8” rebar found; said point being the TRUE POINT OF BEGINNING; Thence along said right-of-way along a curve to the left, an arc length of 17.27 feet, said curve having a radius of 1417.32 feet, with a chord distance of 17.27 feet, at North 87 degrees 56 minutes 56 seconds West, to a 5/8 inch rebar set; Thence North 88 degrees 17 minutes 53 seconds West, a distance of 187.78 feet to a 5/8” rebar set; Thence leaving said right-of-way North 02 degrees 57 minutes 40 seconds East, a distance of 368.59 feet to a PK nail set; Thence South 87 degrees 02 minutes 20 seconds East, a distance of 71.79 feet to a 5/8” rebar found; Thence along a curve to the right, an arc length of 119.20 feet, said curve having a radius of 490.00 feet, with a chord distance of 118.90 feet, at South 80 degrees 04 minutes 12 seconds East, to a 5/8” rebar found; Thence South 34 degrees 53 minutes 21 seconds East, a distance of 24.74 feet to a 5/8” rebar found; Thence South 02 degrees 57 minutes 40 seconds West, a distance of 330.23 feet to a 5/8” rebar found on said right-of-way of Jonesboro Road, said point being the TRUE POINT OF BEGINNING.

Said tract of land contain 1.703 Acres.

EXHIBIT B

Debtor’s name:	Henry Town Center, LLC
Debtor’s organizational structure:	limited liability company
Debtor’s principal place of business:	823 North Elm Street, Suite 200 Greensboro, North Carolina 27401
Debtor’s mailing address:	823 North Elm Street, Suite 200 Greensboro, North Carolina 27401
Time period for which Debtor has been using or operating under said names and organizational structure without change:	2002
Secured Party’s name:	Wachovia Bank, National Association
Secured Party’s organizational structure: Secured Party’s mailing address:	a national banking association 201 South Tryon Street, Suite 130 PMB Box #4 Charlotte, North Carolina 28202

[Continued on next page]

B-1

Debtor’s name:	Alpha Seven LLC
Debtor’s organizational structure:	limited liability company
Debtor’s principal place of business:	5151 Glenwood Avenue Raleigh, North Carolina 27612
Debtor’s mailing address:	5151 Glenwood Avenue Raleigh, North Carolina 27612
Time period for which Debtor has been using or operating under said names and organizational structure without change:	2002
Secured Party’s name:	Wachovia Bank, National Association
Secured Party’s organizational structure: Secured Party’s mailing address:	a national banking association 201 South Tryon Street, Suite 130 PMB Box #4 Charlotte, North Carolina 28202

B-2

Debtor’s name:	Elliston Henry Town Center
Debtor’s organizational structure:	limited liability company
Debtor’s principal place of business:	388 Vanderbilt Road Asheville, North Carolina 28803
Debtor’s mailing address:	388 Vanderbilt Road Asheville, North Carolina 28803
Time period for which Debtor has been using or operating under said names and organizational structure without change:	2002
Secured Party’s name:	Wachovia Bank, National Association
Secured Party’s organizational structure: Secured Party’s mailing address:	a national banking association 201 South Tryon Street, Suite 130 PMB Box #4 Charlotte, North Carolina 28202

B-3

Debtor’s name:	Owen Henry Town Center, LLC
Debtor’s organizational structure:	limited liability company
Debtor’s principal place of business:	124 5thStreet N Columbus, MS 39701
Debtor’s mailing address:	124 5th Street N Columbus, MS 39701
Time period for which Debtor has been using or operating under said names and organizational structure without change:	2002
Secured Party’s name:	Wachovia Bank, National Association
Secured Party’s organizational structure: Secured Party’s mailing address:	a national banking association 201 South Tryon Street, Suite 130 PMB Box #4 Charlotte, North Carolina 28202

B-4

Debtor’s name:	DSCongdonA, LLC
Debtor’s organizational structure:	limited liability company
Debtor’s principal place of business:	701 East Byrd Street, 15th Floor Richmond, Virginia 23219
Debtor’s mailing address:	701 East Byrd Street, 15th Floor Richmond, Virginia 23219
Time period for which Debtor has been using or operating under said names and organizational structure without change:	2002
Secured Party’s name:	Wachovia Bank, National Association
Secured Party’s organizational structure: Secured Party’s mailing address:	a national banking association 201 South Tryon Street, Suite 130 PMB Box #4 Charlotte, North Carolina 28202

B-5

Debtor’s name:	JWCongdonA, LLC
Debtor’s organizational structure:	limited liability company
Debtor’s principal place of business:	701 East Byrd Street, 15th Floor Richmond, Virginia 23219
Debtor’s mailing address:	701 East Byrd Street, 15th Floor Richmond, Virginia 23219
Time period for which Debtor has been using or operating under said names and organizational structure without change:	2002
Secured Party’s name:	Wachovia Bank, National Association
Secured Party’s organizational structure: Secured Party’s mailing address:	a national banking association 201 South Tryon Street, Suite 130 PMB Box #4 Charlotte, North Carolina 28202

B-6

Debtor’s name:	KCVanstoryA, LLC
Debtor’s organizational structure:	limited liability company
Debtor’s principal place of business:	701 East Byrd Street, 15th Floor Richmond, Virginia 23219
Debtor’s mailing address:	701 East Byrd Street, 15th Floor Richmond, Virginia 23219
Time period for which Debtor has been using or operating under said names and organizational structure without change:	2002
Secured Party’s name:	Wachovia Bank, National Association
Secured Party’s organizational structure: Secured Party’s mailing address:	a national banking association 201 South Tryon Street, Suite 130 PMB Box #4 Charlotte, North Carolina 28202

B-7

Debtor’s name:	ALCongdonA, LLC
Debtor’s organizational structure:	limited liability company
Debtor’s principal place of business:	701 East Byrd Street, 15th Floor Richmond, Virginia 23219
Debtor’s mailing address:	701 East Byrd Street, 15th Floor Richmond, Virginia 23219
Time period for which Debtor has been using or operating under said names and organizational structure without change:	2002
Secured Party’s name:	Wachovia Bank, National Association
Secured Party’s organizational structure: Secured Party’s mailing address:	a national banking association 201 South Tryon Street, Suite 130 PMB Box #4 Charlotte, North Carolina 28202

B-8

Debtor’s name:	SCTerryA, LLC
Debtor’s organizational structure:	limited liability company
Debtor’s principal place of business:	701 East Byrd Street, 15th Floor Richmond, Virginia 23219
Debtor’s mailing address:	701 East Byrd Street, 15th Floor Richmond, Virginia 23219
Time period for which Debtor has been using or operating under said names and organizational structure without change:	2002
Secured Party’s name:	Wachovia Bank, National Association
Secured Party’s organizational structure: Secured Party’s mailing address:	a national banking association 201 South Tryon Street, Suite 130 PMB Box #4 Charlotte, North Carolina 28202

B-9

Debtor’s name:	JRCongdon, JR.A, LLC
Debtor’s organizational structure:	limited liability company
Debtor’s principal place of business:	701 East Byrd Street, 15th Floor Richmond, Virginia 23219
Debtor’s mailing address:	701 East Byrd Street, 15th Floor Richmond, Virginia 23219
Time period for which Debtor has been using or operating under said names and organizational structure without change:	2002
Secured Party’s name:	Wachovia Bank, National Association
Secured Party’s organizational structure: Secured Party’s mailing address:	a national banking association 201 South Tryon Street, Suite 130 PMB Box #4 Charlotte, North Carolina 28202

B-10

Debtor’s name:	Jay Henry Town Center, LLC
Debtor’s organizational structure:	limited liability company
Debtor’s principal place of business:	1400 Battleground Avenue, Suite 217 Greensboro, North Carolina 27401
Debtor’s mailing address:	1400 Battleground Avenue, Suite 217 Greensboro, North Carolina 27401
Time period for which Debtor has been using or operating under said names and organizational structure without change:	2002
Secured Party’s name:	Wachovia Bank, National Association
Secured Party’s organizational structure: Secured Party’s mailing address:	a national banking association 201 South Tryon Street, Suite 130 PMB Box #4 Charlotte, North Carolina 28202

B-11

Debtor’s name:	Spence Henry Town Center, LLC
Debtor’s organizational structure:	limited liability company
Debtor’s principal place of business:	516 East Rosemary Street Chapel Hill, North Carolina 27514
Debtor’s mailing address:	516 East Rosemary Street Chapel Hill, North Carolina 27514
Time period for which Debtor has been using or operating under said names and organizational structure without change:	2002
Secured Party’s name:	Wachovia Bank, National Association
Secured Party’s organizational structure: Secured Party’s mailing address:	a national banking association 201 South Tryon Street, Suite 130 PMB Box #4 Charlotte, North Carolina 28202

[End of Exhibit B]

B-12

EX-10.477

Exhibit 10.477

ASSIGNMENT

This Assignment is made as of the 23rd day of December, 2004 by INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation (“Assignor”) to and for the benefit of INLAND WESTERN PANAMA CITY, L.L.C., a Delaware limited liability company (“Assignee”).

Assignor does hereby sell, assign, transfer, set over and convey unto Assignee all of its right, title and interest as Buyer under into that certain Agreement of Sale for the purchase and sale of a Shopping Center dated as of November 19, 2004, as amended and entered into by Kimco Panama City, LLC, a Delaware limited liability company, as Seller, and Assignor, as Buyer (collectively, the “Agreement”), for the sale and purchase of the property described by the Agreement, located in Panama City, Florida.

Assignor represents and warrants that it is the Buyer under the Agreement, and that it has not sold, assigned, transferred, or encumbered such interest in any way to any other person or entity. By acceptance hereof, Assignee accepts the foregoing assignment and agrees, from andafter the date hereof, to (i) perform all of the obligations of Buyer under the Agreement, and (ii) indemnify, defend, protect and hold Assignor harmless from and against all claims and liabilities arising under the Agreement.

IN WITNESS WHEREOF, Assignor and Assignee have executed this instrument as of the date first written above.

ASSIGNOR:
INLAND REAL ESTATE ACQUISITIONS, INC. an Illinois corporation
By:	/s/ Jason A. Lazarus
Name:		Jason A. Lazarus
As Its:		V.P.
ASSIGNEE:
INLAND WESTERN PANAMA CITY, L.L.C., a Delaware limited liability company
By: Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
By:	/s/ [ILLEGIBLE]
Name:		[ILLEGIBLE]
As Its:		[ILLEGIBLE]

EX-10.478

Exhibit 10.478

AGREEMENT OF SALE

THIS AGREEMENT made this 19^th day of November, 2004, between KIMCOPANAMA CITY, LLC, a Delaware limited liability company, with an office at 3333 New Hyde Park Road, Suite 100 (P. O. Box 5020), New Hyde Park, New York 11042 (hereinafter, “Seller”), and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois Corporation, with an office at 2901 Butterfield Road, Oak Brook, Illinois 60523 (hereinafter, “Buyer”).

WHEREAS, Seller owns a portion of the shopping center located at West 23^rdStreet and Jenks Avenue in Panama City, Florida (the “Shopping Center”) and Seller wishes to sell and Buyer wishes to buy Seller’s entire right title and interest in the Shopping Center;

NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows:

1.DEFINITIONS. The following expressions shall have the meanings set forth below:

1.1“Real Estate” means the fee interest in the land described on Exhibit 1 and all of the buildings and other improvements constructed thereon.

1.2“Space Lease(s)” means all lease(s), license(s), concessions or other occupancy or use agreements, including all modifications, addenda and supplements thereto and guarantees thereof, applicable to any part of the Real Estate. All existing Space Leases as of the date hereof are listed on attached Exhibit 2.

1.3“Property” means collectively all of Seller’s rights and interest in the Real Estate, the Space Leases and the other assets described in Article 2 hereof.

1.4“Closing Date” means the date on which Closing occurs. “Closing” means the event whereby title to the Property is actually conveyed by Seller to Buyer.

1.5“Service Contracts” means all written agreements pursuant to which goods, services or supplies are furnished on a recurring basis for the operation of the Real Estate and are approved by Buyer during the Due Diligence Period (as hereinafter defined). Copies of such Service Contracts are attached as Exhibit 3.

1.6“Escrow Agent” means Chicago Title and Trust Company, 171 North Clark Street, Chicago, Illinois, Attn: Nancy Castro, Escrow Agent. Chicago Title and Trust Company may also be hereinafter referred to as the “Title Company”.

1.7“Due Diligence Period” means a period of time commencing on the date a fully executed copy of this Agreement is received by Buyer in accordance with Article 13 hereof and expiring at midnight, New York time, December 2, 2004.

1.8“Permitted Exceptions” means those certain title exceptions set forth in Exhibit 6 attached hereto that are approved by Buyer in accordance with the terms of Article 6 hereof.

1.9“Personal Property” means all personal property and equipment (if any) owned by Seller and located on the Real Estate.

1.10“Deposit” means a deposit, to be paid by Buyer to Escrow Agent upon the execution hereof, in the amount of One Hundred Thousand ($100,000.00) Dollars, plus all interest earned thereon.

1.11“Declaration” means that certain Declaration of Covenants, Conditions, Easements and Restrictions dated January 27, 1999 in the Official Records of Bay County, Florida, Book 1848, page 2123 as amended.

1.12“OEA” means that certain Restrictive Covenants Agreement between Kimco Panama City, LLC and Home Depot U.S.A., Inc. dated May 30, 2002 recorded under Clerk’s file 2002-032768 at Book 214B, page 817 of the official Records of Bay County. Florida, as amended.

2.SALE AND PURCHASE. In accordance with the provisions of this Agreement, Seller agrees to sell, convey, assign and transfer to Buyer, and Buyer agrees to purchase and acquire from Seller, subject to the Permitted Exceptions and Space Leases, all of Seller’s right, title and interest in and to: (a) the Real Estate, (b) the Space Leases, (c) any Personal Property, (d) any land lying in the bed of

any street, road or avenue, opened or proposed, in front of or adjoining the Real Estate, (e) any strips or gores adjoining the Real Estate, (f) all appurtenances and hereditaments appertaining to the Real Estate and (g) the right to use, in common with others the name “23rd Street Plaza Shopping Center” provided Buyer’s use of same is done in a commercially reasonable manner in connection with the first class operation of the

3.PURCHASE PRICE. The “Purchase Price” for the Property shall be Seven Million, Two Hundred Fifty-Seven Thousand,, Four Hundred Ninety-Eight ($7,257,498.00) Dollars shall be paid as follows:

A.(i)Upon the execution of this Agreement Buyer shall pay the Deposit to Escrow Agent by bank check to the order of Escrow Agent or wire transfer of federal funds for immediate credit.

(ii)The Deposit shall be invested by Escrow Agent in a sound financial institution’s money market fund or account which pays interest or dividends, in Escrow Agent’s name separate from its personal and business accounts. All investment decisions shall be made by Buyer. If no Closing occurs, all interest or dividends earned shall be paid to the party entitled to the escrowed proceeds, which party shall pay all income taxes thereon. The parties shall furnish Escrow Agent with their respective tax identification numbers. At Closing, Escrow Agent shall pay the Deposit (together with all interest earned thereon) to Seller; and the principal portion of the Deposit shall be a credit against the Purchase Price (but no such credit shall be given for the interest earned on such principal portion of the Deposit, if any, which shall be the property of Buyer). All escrow fees, if any, charged by Escrow Agent shall be equally shared by Seller and Buyer, Escrow Agent shall hold the Deposit as set forth above unless either Seller or Buyer makes a written demand upon Escrow Agent for the Deposit accompanied by an affidavit signed by the party making the demand stating sufficient facts to show that said party is entitled to receive the Deposit pursuant to the terms of this Agreement. Upon receipt of such demand, Escrow Agent shall give ten (10) days written notice to the other party of such demand and of Escrow Agent’s intention to remit the Deposit to the party making the demand on the stated date, together with a copy of the affidavit. If Escrow Agent does not receive a written objection before the proposed date for remitting the Deposit, Escrow Agent is hereby authorized to so remit. If, however, Escrow Agent actually receives written objection from the other party before the proposed date on which the Deposit is to be remitted, Escrow Agent shall continue to hold the Deposit until otherwise directed by joint written instructions from Seller and Buyer or until a final judgment of an appropriate court. In the event of a dispute, Escrow Agent may place the Deposit with an appropriate court and, after giving written notice of such action to the parties, Escrow Agent shall have no further obligations with respect to the Deposit. The parties acknowledge that Escrow Agent is acting as a stakeholder at their request and for their convenience, that Escrow Agent shall not be deemed to be the agent of either of the parties, and the Escrow Agent shall not be liable to either of the parties for any act or omission on its part unless taken or suffered in bad faith or in willful or negligent disregard of this Agreement. Seller and Buyer shall jointly and severally indemnify and hold Escrow Agent harmless from and against all costs, claims and expenses, including reasonable attorney’ fees, incurred in connection with the faithful performance of Escrow Agent’s duties hereunder. Escrow Agent acknowledges agreement to the provisions of this Agreement applicable to it by signing on the signature page of this Agreement. Notwithstanding the foregoing, Buyer shall have the right to deliver a notice of termination of this Agreement to Escrow Agent and Seller on or prior to the expiration of the Due Diligence Period and Escrow Agent shall be authorized, immediately upon receipt of such notice and verification of Seller’s receipt of same, to return the Earnest Money to Buyer. Buyer agrees to return all documents provided to Buyer by or on behalf of Seller to Seller within fifteen (15) days of Tenant’s delivery of the notice of termination to Escrow Agent and Seller.

B.At Closing, and subject to the terms and provisions of this Agreement, Buyer shall pay Seller the balance of the Purchase Price by wire transfer of immediately available federal funds into a so-called “New York Style” closing escrow to be established by the Escrow Agent. Seller shall furnish Escrow Agent with wire transfer instructions prior to Closing.

C.Intentionally Deleted.

D.In connection with any Personal Property included in the sale, the parties agree that no part of the Purchase Price shall be deemed to have been paid by Buyer on account thereof.

4.CONDITIONS PRIOR TO CLOSING; DUE DILIGENCE PERIOD.

4.1(A) Buyer shall at Closing accept the Property in AS IS physical condition as exists on the date hereof, subject to reasonable wear and tear between the date hereof and the Closing Date. Buyer acknowledges that Buyer will have the Due Diligence Period to inspect the Shopping Center

2

or cause an inspection thereof to be made on Buyer’s behalf and it is understood and agreed that neither Seller nor any person acting or purporting to act for Seller has made or now makes any representation as to the physical condition (latent or patent or otherwise), income, expense, operation, legality of current rents, or any other matter of thing affecting or relating to the Shopping Center except as herein specifically set forth. Buyer hereby expressly acknowledges that except as expressly set forth herein, no such representations have been made and Buyer further agrees to take the Shopping Center “as is” as of the date hereof and subject to normal use, wear, tear, and deterioration between now and Closing. Buyer agrees that Seller is not liable or bound in any manner by any financial or written statements, representations, real estate brokers’ “set-ups”, or information pertaining to the Shopping Center furnished by any real estate broker, agent, employee, trustee, servant or other person, unless the same are specifically set forth herein. It is understood and agreed that all understandings and agreements heretofore had between the parties are hereby merged in this Agreement which alone fully and completely expresses their agreement and that the same is entered into after full investigation, neither party relying upon any statement or representation made by the other not embodied in this Agreement.

(B) Seller’s Required Pre-Closing Deliveries

Seller shall, as soon as practicable after the date of this Agreement but not later than five (5) business days after the date of this Agreement,, deliver to Buyer the following (which are referred to herein as “Pre-Closing Deliveries”): (a) copy of the Space Leases affecting the Property and the Ground Leases; (b) a certification from Seller (pursuant to the terms of the Rent Roll (Exhibit 2) setting forth the name of each tenant at the Property and the date of the Space Leases and any modifications or amendments thereto, the amount of rent payable by each tenant throughout the term of its respective Space Lease, any concessions granted to the tenants, the amount of security deposits, if any, (or a certification that Seller is not holding any security deposits), the expiration date of the Space Leases, and the existence of any options to renew or extend the term of the Space Leases or to purchase all or any part of the Property and such information with respect to any subtenant if Seller has knowledge thereof; (c) a certification by Seller that there are no employees at the Property; (d) a certification by Seller that, other than as disclosed to Buyer, there are no service agreements, maintenance contracts or other similar agreements affecting the Property; (e) copies of the most recent tax bill for the Property, together with copies of any notice of assessments received by Seller, or any other information relative to taxes assessed against the Property; (f) copies, if any, of any environmental reports, architectural drawings, warranties, guarantees, plans and specs or any similar document in Seller’s possession relating to the Property; (g) copies of any insurance policies or certificates insuring the Property, whether purchased by Seller or by the tenants under the Space Leases; (h) copies of certificates of occupancy for each tenant at the Property and copies of any building code violations received by Seller with respect to the Property during the last two years and evidence reasonably acceptable to Buyer that such violations have been corrected, or a certification from Seller that it has not received any notice of building code violations; (i) the materials described on Buyer’s Due Diligence Checklist, attached hereto as Exhibit 12, and made a part hereof; (j) as applicable (depending upon the number of years the Property has been operating), an operating statement for the Property for the two calendar years prior to the year of the date hereof, and monthly operating statements for the Property for each month of the year of the date hereof. Such statements shall include reasonable detail of all items of income and expense, other than construction costs as well as all items of capital expenditures made during the relevant periods, other than capital expenditures made in connection with the initial construction of the Shopping Center, and (k) an engagement and representation letter signed by Seller and prepared by and for the benefit of Buyer’s auditors substantially in the form attached hereto as Exhibit 18, and made a part hereof.

4.2On and after the date hereof, Buyer shall have access to the Property for the purpose of making engineering, survey or non-intrusive inspections and independent investigations; and Seller will on receipt of reasonable prior written notice, provide Buyer with access to information within its possession or control with respect to the Property, including (without limitation) full and accurate copies of Space Leases, Service Contracts, title information or instruments, and books and operating records of the Shopping Center. Buyer agrees to defend, indemnify and hold Seller harmless from any personal injury or property damage caused by Buyer in doing any testing, inspections or survey and such obligation shall survive the Closing or sooner termination of this Agreement. Buyer shall give Seller true, accurate and complete copies of all written reports prepared by third parties resulting from Buyer’s inspections and investigations.

4.3(a)Buyer shall have the Due Diligence Period within which to inspect and examine the Real Estate, the Space Leases and the Service Contracts.

(b)In the event that during the Due Diligence Period, Buyer, in its sole judgment, and absolute discretion, determines that Buyer is not satisfied with the condition of the Real Estate, the Property, the Space Leases, the Ground Leases, or the Service Contracts then, prior to the end of the Due Diligence Period, Buyer shall have the right by giving written notice to Seller and Escrow

3

Agent to cancel and terminate this Agreement without liability except as set forth in Sections 4.2 and 15.8. Upon receipt of such notice prior to the end of the Due Diligence Period, Escrow Agent shall deliver the Deposit to Buyer. In the event Buyer fails to give such notice prior to the end of the Due Diligence Period, Buyer’s right to cancel this Agreement pursuant to this Section 4 shall lapse.

4.4Audit. At such time as Buyer’s auditors (KPMG) complete the audit of Property operations, Seller agrees to execute and deliver to KPMG the audit letter attached hereto as Exhibit 18, and made a part hereof. The provisions of this Section 4.5 shall survive Closing.

5.ADJUSTMENTS AND PRORATIONS.

5.1Seller shall be entitled to all income produced from the operation of the Property which is allocable to the period prior to the Closing Date and shall be responsible for all expenses allocable to that period; and Buyer shall be entitled to all income and responsible for all expenses allocable to the period beginning at 12:01 A.M. on the Closing Date. At Closing, all items of income and expense with respect to the Property shall be prorated in accordance with the foregoing provisions and the rules for the specific items set forth hereafter:

5.1.1Seller shall arrange for a billing under all those Service Contracts for which fees are based on usage and with utility companies for a billing for utilities, to include all utilities or service used up to the Closing Date, and Seller shall pay the resultant bills. In the event any of the Service Contracts set forth in Exhibit 3 cover periods beyond the Closing Date the same shall be prorated on a per diem basis.

5.1.2Real estate taxes, general, special and/or betterment assessments and personal property taxes shall be prorated for those taxes which are due and payable as of the Closing Date. In the event that as of the Closing Date the actual tax bills for the tax year or years in question are not available and the amount of taxes to be prorated as aforesaid cannot be ascertained, then rates, millages and assessed valuation of the previous year, with known changes, shall be used; and after the Closing occurs and when the actual amount of taxes for the year or years in question shall be determinable, such taxes will be re-prorated between the parties to reflect the actual amount of such taxes.

5.1.3Rentals and other payments (other than “percentage rent” and common area maintenance charges which are dealt with in Section 5.1.4 and Section 5.1.6) which are payable pursuant to Space Leases shall be prorated on a per diem basis as and when collected (subject to the provisions of Section 5.3). Buyer shall not be obligated to make any payment or give any credit to Seller on account of or by reason of any rental or other payments which are unpaid as of the Closing Date, but shall be required to turn over Seller’s share of the same within ten (10) days if, as and when received by Buyer after the Closing; likewise, Seller agrees to turn over Buyer’s share of any payments received from tenants applicable to any period from and after the date of Closing within ten (10) days of Seller’s receipt of same; this provision shall survive Closing.

5.1.4Percentage rent; if any, payable under each Space Lease shall be prorated with respect to the lease year thereunder in which Closing occurs on a per diem basis as and when collected. Any percentage rent collected by Buyer including any percentage rent which is delinquent and pertaining to (i) an entire lease year or accounting period of a tenant under a Space Lease which ends on a date prior to the Closing Date, or (ii) that portion of a lease year or accounting period of such tenant covering a period prior to the Closing Date where such lease year or accounting period begins prior to the Closing Date and ends thereafter shall in both cases be paid to Seller within ten (10) days of receipt by Buyer; and if any tenant’s Space Lease provides for offsets or deductions against percentage rent, then such offsets ordeductions shall be prorated inthe same manner as the percentage rent itself is prorated. This provision shall survive Closing.

5.1.5Gas, water, electricity, heat, fuel, sewer and other utilities charges to which Section 5.1.1 cannot be applied, and the governmental licenses, permits and inspection fees and operating expenses relating to the Shopping Center (expressly excluding therefrom, however, such expenses relating to the initial construction of the Shopping Center), shall be prorated on a per diem basis.

5.1.6Common area maintenance expenses and charges shall be prorated. Seller shall be responsible for all common area expenses and charges incurred prior to the Closing Date, and Buyer shall be responsible for the same accruing on and subsequent to the Closing Date. All common area expense payments made by each tenant and such charges paid under its Space Lease for the entire lease year during which the Closing occurs, including end-of-year adjustments, if any, shall be prorated between Seller and Buyer in the following manner: Not later than three (3) days prior to

4

Closing, Seller shall deliver to Buyer, with regard to each Shopping Center tenant required to pay common area charges (“CAM Charges”) under its lease, a detailed computation showing all CAM Charge expenses incurred by Seller for the period from the beginning of each such tenant’s then current billing period for CAM Charges (e.g., calendar year, lease year, etc.) through the Closing Date, any CAM estimated payments or charges collected by Seller relating to such tenant (hereinafter “CAM Estimates”), and a bill for the tenant’s pro rata share of CAM Charges (i.e., for CAM charges through the Closing Date net of any such CAM Estimates held by Seller), together with all invoices and other evidence documenting such CAM Charges in detail required by such tenant’s lease. Buyer shall send any such bills to tenants promptly following Closing, in which event such tenant shall pay any amount shown due directly to Seller, and except as otherwise stated in Section 5.3.3 below Buyer shall have no responsibility to collect same. However, if any tenant rightfully refuses to pay such bill for CAM Charges due through the Closing Date, then Buyer shall resubmit such bill to any such tenant at the same time as Buyer next submits Buyer’s own bill to any such tenant; and any payment thereafter made by any such tenant on account of CAM Charges shall belong to and be forwarded within ten (10) days of its receipt to Seller until Seller’s bill is paid in full.

Any CAM Estimates for any tenant shall be retained by Seller up to the amount of the pre-Closing CAM Charges payable by such tenant as evidenced by such bills and computations delivered by Seller at Closing, and Buyer shall receive a credit for any excess CAM Estimates collected by Seller.

5.1.7All prepaid rentals, other prepaid payments(other than monthly real estate tax estimates or installments), security deposits paid pursuant to Space Leases, electric, gas, sewer and water deposits deposited with Seller by tenants, (including any accrued interest required under any Space Lease on all of the foregoing, unless Seller is entitled to retain the benefit thereof) under any Space Leases, license agreements or concession agreements relating to the Property, shall all belong to Buyer and all shall be assigned and delivered to Buyer at Closing, whereupon Seller shall be released from all liability with respect thereto. At Seller’s option, Buyer shall receive a cash credit in the amount of all Security Deposits to be delivered to Buyer at Closing, and Seller may retain same.

5.1.8Buyer shall not be responsible for any charges, salaries, vacation pay or fringe benefits of employees of Seller prior to or following the Closing and none of the foregoing shall be prorated.

5.2All prorations and payments to be made under the foregoing provisions shall be made on the basis of a written statement or statements delivered to Buyer by Seller and approved by Buyer. In the event any prorations, apportionments orcomputation shall prove to be incorrect for any reason, then either party shall be entitled to an adjustment to correct the same, provided that it makes written demand on the one from who it is entitled to such adjustment within two (2) years after the erroneous payment or computation was made; this provision shall survive Closing.

5.3All accounts receivable flowing from the Property shall be treated as follows:

5.3.1Buyer and Seller agree to treat all base or minimum rental payments received from a tenant as applicable to base or minimum rent which was owed by that tenant, if any, first for the month prior to the month in which Closing occurs and next for the month in which Closing occurs until the base or minimum rental amount due to Seller for such periods have been collected. In the event that there remains any unpaid base or minimum rent for a period prior to such periods, all payments of base or minimum rent received from such tenant shall be applied to sums owed Buyer before any part thereof shall be treated as belonging to Seller. In the event that there remains any unpaid tenant receivable other than base or minimum rent (including without limitation any tax, CAM, insurance or percentage rent payments) for any period prior to Closing, all payments received from any tenant in arrears (whether base or minimum rent or any other amount) shall be applied first to any such sums owed Buyer from such tenant before any part thereof shall be treated as belonging to Seller.

5.3.2In the event that any tenant of Seller or Buyer shall hereafter apply or shall have heretofore applied for relief under the provisions of any bankruptcy or similar laws for the protection of debtors, the provisions of Section 5.3.1 shall not apply, and the parties shall have the right to seek collection of their respective accounts, their entitlements being determined by the Closing and the other provisions of this Agreement. Neither party shall have the right to enter into any transactions that purport to compromise claims belonging to the other, without the other party’s prior written consent.

5.3.3“If at the Closing Date any tenants owe Seller any money (i.e. reimbursements to Seller for payment of liens or violations on the Property that were created by tenant(s) but that Seller is required hereunder to satisfy in order to effectuate the sale of the Property or rent arrears (which shall include CAM and tax reimbursements)), Seller shall have

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the right, subsequent to the Closing, to collect such sums directly from the tenants, including bringing lawsuits against the tenants (at Seller’s sole expense) for such collection (except that Seller is prohibited from bringing a lawsuit against any tenant(s) to collect rent in arrears for a period of thirty (30) days after such dispute or arrears has arisen (the “Buyer Collection Period”); instead Buyer agrees to use commercially reasonable efforts to collect such arrears on Seller’s behalf, if Buyer is unsuccessful in collecting the tenant arrears by the expiration of the Buyer Collection Period, then Seller shall have the right to collect such sums directly form the tenants including bringing lawsuits against the tenants (at Sellers sole expense) for such collection, however, Seller agrees that any such legal action or collection shall not include any disturbance of the possession, use or occupancy of the tenants or any right to evict the tenants, whether pursuant to the lease provisions or otherwise, and Buyer shall at Seller’s expense join in any lawsuit and/or also participate or cooperate with Seller in its collection attempts. Buyer will (at Seller’s expense) join in such a lawsuit or action only if the same does not include or require disturbance of the possession of any tenants.”

5.3.4In the event Seller has granted rent concessions to tenants under space lease(s) that would extend beyond the Closing Date, Buyer shall receive credit for same.

5.4Intentionally Deleted.

5.5The provisions of this Article 5 will survive Closing.

6.TITLE AND SURVEY.

6.1Seller shall convey and Buyer shall accept, subject to the right of Buyer to review and approve all title matters, documents and plats of record in regard to the condition of title to the Property, title such as the Title Company will be willing to approve and insure subject only to Permitted Exceptions as provided for in this Agreement. Buyer acknowledges that it has heretofore received copies of Seller’s existing title insurance policy for the Real Estate (the “Existing Title Policy”) and of Seller’s existing survey of the Real Estate (the “Existing Survey”). Promptly following the execution of this Agreement, Buyer may (if it so elects) obtain(see Section 6.4 for allocation of costs) updates of the Existing Survey to the certification standards described upon the Surveyor’s certification attached hereto as Exhibit 13 and made a part hereof (such updated survey hereinafter referred to as the “Updated Survey”); if Buyer does obtain such an Updated Survey, Buyer shall cause it to be certified to Seller and Buyer shall promptly furnish Buyer, Seller and the Title Company with a copy thereof. Promptly following the execution of this Agreement, Buyer shall also (see Section 6.4 for allocation of costs) obtain a commitment for ALTA Form B Leasehold Title Insurance (the “Title Commitment”); and Buyer shall promptly cause the Title Company to furnish Seller and Buyer with true accurate and complete copies thereof (including true, accurate and complete copies of all underlying title exception documents referenced therein). Not later than the expiration of the Due Diligence Period, Buyer shall give Seller written notice (“Buyer’s Title/Survey Notice”) of any title exceptions which are contained in the Title Commitment and/or the Survey which are not Permitted Exceptions. Failure by Buyer to give Buyer’s Title/Survey Notice (or to object to any matter referenced in the Title Commitment) to Seller on or before said date shall constitute Buyer’s final and irrevocable approval of the condition of title (and to any such unobjected to matter) in and to the Real Estate. If Buyer’s Title/Survey Notice shall be timely given Seller shall have a period of fifteen (15) days following Seller’s receipt of Buyer’s Title/Survey Notice, to commence to remove, correct, cure or satisfy (provided Seller does in fact elect to so remove, correct, cure or satisfy) any title exceptions that were identified in Buyer’s Title/Survey Notice as not being Permitted Exceptions, it being nevertheless agreed that Seller shall have no obligation to undertake any action or to incur any expense in order to effectuate any such removal, correction, cure or satisfaction (except that notwithstanding the foregoing Seller shall be required to remove or discharge any fee mortgages or deeds of trust, as well as any other liens in an ascertainable dollar amount). In the event that Seller elects not to attempt to remove, correct, cure or satisfy the matters raised in Buyer’s Title/Survey Notice, or if having elected to do so, does not within thirty (30) days thereafter, (or such additional time as is reasonably necessary (not to exceed an additional fifteen (15) days without Buyer’s written consent) to remove, correct, cure or satisfy the matter(s) so raised using commercially reasonable good faith efforts) effectuate any such removal, correction, cure or satisfaction as aforesaid (hereinafter called “title correction”), Buyer shall have the right at its sole option either (a) to terminate this Agreement, in which event the Deposit shall be returned to Buyer and neither party shall thereafter have any further liability hereunder, or (b) to accept such title as is disclosed by the Title Commitment and/or Survey without title correction and without Survey correction and without any reduction to the Purchase Price, thereby waiving any rights against Seller with respect thereto. Said election shall be made by Buyer within three (3) days following Buyer’s receipt of written notification by Seller that Seller has not effectuated (or has elected not to effectuate) title correction. In the event that Seller (even though under no duty to do so) shall undertake title correction and/or Survey correction as aforesaid, and shall be successful, this Agreement shall continue in full force and effect and Buyer shall close the transaction

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contemplated hereby in accordance with the terms hereof. In the event that Seller shall only be partially successful in obtaining title and/or Survey correction, Buyer shall have the same alternative rights as Buyer would have in the event Seller had declined to seek title and/or Survey correction (as set forth above). Buyer shall make its election within three (3) days after Buyer’s receipt of written notice from Seller to Buyer of the extent to which title and/or the Survey has been corrected.

6.2If at the Closing Date there may be any liens or encumbrances which render title unmarketable or otherwise are not permitted title exceptions hereunder, and which Seller is obligated or desires to pay and discharge, Seller may use any portion of the balance of the Purchase Price to satisfy the same, provided Seller shall simultaneously either deliver to Buyer at the Closing instruments in recordable form and sufficient to satisfy such liens and encumbrances of record together with the cost of recording or filing said instruments; or provided that Seller has made arrangements with the title company in advance of Closing, Seller will deposit with said company sufficient monies, acceptable to and required by it to insure obtaining and the recording of such satisfactions and the issuance of title insurance to Buyer either free of any such liens and encumbrances, or with insurance against enforcement of same out of the insured premises. The existence of any such liens and encumbrances shall not be deemed objections to title, if Seller shall comply with the foregoing requirements. Unpaid liens for taxes, water charges, sewer rents and assessments which are the obligation of Seller to satisfy and discharge shall be objections to title, and thus the amount thereof, plus interest and penalties thereon, shall be deducted from the Purchase Price to be paid hereunder and allowed to Buyer, subject to the provisions for apportionment of taxes, water charges and sewer rents contained herein. Unpaid franchise tax of any entity in the chain of title to which such tax is applicable, or estate, income or other taxes which may be liens against the Property as of the Closing Date shall not be an objection to title, provided the title company agrees to insure against the collection of said taxes from the Property and in such event if required by the title company, Seller agrees to deposit at Closing with the title company an amount deemed reasonable by it to secure the payment of such unpaid franchise tax, or other tax.

6.3In the event that Seller is unable to convey title in accordance with the terms of this Agreement, or if any representation of Seller herein is untrue in a material respect on the Closing Date and Seller does not correct same (it being understood Seller will be entitled to a reasonable adjournment of Closing for such purpose, not to exceed fifteen (15) days), the sole responsibility of Seller will be to refund (or cause to be refunded by the Escrow Agent) to Buyer any amount paid on account of the Purchase Price; upon the making of such refund, this Agreement shall be deemed canceled, neither party shall have any further claim against the other by reason of this Agreement, except that Buyer shall remain liable on its obligations under Sections 4.2 and 15.8.

6.4The costs of obtaining the Title Commitment, the policy of title insurance to issue at Closing (in form subject to Buyer’s sole discretion, and agreed to prior to the expiration of the Due Diligence Period) with premium up to the amount of the Purchase Price “Basic Title Policy” shall be split equally between Buyer and Seller. The costs of any excess coverage or endorsements including, but not limited to, Zoning 3.1; Survey; Access, Usury, Location, Tax ID, Contiguity, EPA, Comprehensive and Doing Business, to the extent available or applicable (the “Title Endorsements”), shall be borne by Buyer (Basic Title Policy plus endorsements shall be referred to collectively as the “Title Policy”) and expressly excluding therefrom, however, the costs to release any monetary encumbrance affecting the Property and any title curative endorsements which shall be borne by Seller. All costs of the survey shall be borne equally by Seller and Buyer.

7.DAMAGE, DESTRUCTION OR REQUIRED ALTERATION.

7.1 Prior to Closing, in the event of any damage to or destruction of all or part of the Real Estate (notice of which shall be given to Buyer by Seller as soon as practicable following its occurrence), then Seller shall have the right (but not the obligation) to adjourn the Closing Date for up to sixty (60) days in order to repair or replace such damage or destruction, except that if the cost of such repair or replacement exceeds ten percent of the Purchase Price, then in any such case (i) Buyer shall have the right to terminate this Agreement by giving Seller written notice of its intention to do so, such notice by Buyer to Seller to be given not later than three (3) days after Buyer shall have received the notice from Seller of such aforesaid occurrence, (in which event the Deposit shall forthwith be returned to Buyer, whereupon this Agreement shall be null and voidand of no further force or effect whatsoever, except that Buyer shall remain liable on its obligations under Sections 4.2 and 15.8); or (ii) if Buyer elects not to (or does not have the right to) terminate this Agreement, this Agreement shall continue in full force and effect except that at Closing Buyer shall receive an abatement of the Purchase Price in an amount equal to Seller’s reasonable good faith estimate of the amount required to repair and restore all unrepaired damage (and Seller shall retain all rights to collect insurance proceeds for such loss). Buyer may elect to have its architect provide a good faith estimate of the amount required to repair and restore all unrepaired damage. If Seller’s estimate disagrees with Buyer’s architect’s estimate, the parties shall select another architect to make a final determination of the amount required to repair and restore all

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unrepaired damage and both parties shall be bound by the third architect’s determination. The party whose architect differs most from the third architect’s determination shall pay the third architect’s fee.

7.2(a)In the event that any governmental authority having jurisdiction of all or part of the Real Estate has notified Seller before the Closing that some alteration of or addition to the Real Estate is required to be made by law, rule or regulation (notice of which shall be given to Buyer by Seller as soon as practicable after its receipt) or otherwise requires a cure of a violation, then (subject to the provisions of Section 7.2(b)) Seller shall have the right (but not the obligation) to undertake such alteration or addition or cure; provided, however, that if the cost of such alteration or addition or cure shall exceed the sum of one (1%) percent of the Purchase Price, then in such event Seller may either elect to pay the entire cost and cure the same before the Closing or may decline to undertake the same, in which event Buyer shall have the option, exercisable within three (3) days following notice from Seller of the requirement and Seller’s refusal to comply therewith, (i) to terminate this Agreement by giving Seller notice thereof (in which event the Deposit shall forthwith be returned to Buyer, whereupon the Agreement shall be null and void and of no further force or effect whatsoever, except that Buyer shall remain liable on its obligations under Sections 4.2 and 15.8); or (ii) if such notice of termination is not timely given, to proceed with the Closing, in which event the Purchase Price shall be reduced by Seller’s reasonable good faith estimate of the cost to cure, up to the maximum sum of one percent of the Purchase Price. Buyer may elect to have its engineer provide a good faith estimate of the cost to cure. If Seller’s estimate disagrees with Buyer’s architect’s estimate, the parties shall select a another engineer to make a final determination of the cost to cure and both parties shall be bound by the third engineer’s determination. The party whose engineer differs most from the third engineer’s determination shall pay the third engineer’s fee.

(b)Notwithstanding the foregoing provisions of Section 7.2(a), Seller may elect but shall have no obligation to cure or pay for, any violation which either (i) is first placed (i.e., notice first given to Seller or first placed of record) after the date of this Agreement, or (ii) is the responsibility of a Shopping Center tenant to cure or discharge pursuant to its Space Lease. In the event Seller elects to cure or pay for such violation(s), Seller shall have a period of fifteen (15) days after receipt of notice of the violation to commence to cure or pay for same, and shall proceed with diligence to cure same, however, if Seller elects to cure a violation, and Seller reasonably believe that the Closing Date (as hereinafter defined) will need to be extended more than thirty (30) days to effectuate the cure, then Seller shall not commence to cure the violation then Buyer may elect to (i) complete the purchase without any adjustment in the Purchase Price or (ii) terminate the Agreement in such event, unless Buyer agrees to the required extension. In the event Seller elects not to cure or pay for such violation, the sole responsibility of Seller will be to refund (or cause to be refunded by the Escrow Agent) to Buyer any amount paid on account of the Purchase Price; upon the making of such refund, this Agreement shall be deemed cancelled, neither party shall have any further claim against the other by reason of this Agreement, except that Buyer shall remain liable on its obligations under Sections 4.2 and 15.8.

8.EMINENT DOMAIN. In the event that any eminent domain proceedings shall be commenced prior to the Closing affecting (i) any of the parking area(s) within the Real Estate or any access roadway serving the Real Estate that is not replaced by an access roadway in a comparable location with respect to the Real Estate; or (ii) which is of such a nature as would permit any tenant occupying leased premises to cancel its Space Lease, Buyer shall have the right to terminate this Agreement, by written notice given to Seller within three (3) days after the event, (in which case the Deposit shall forthwith be returned to Buyer, whereupon the Agreement shall be null and void and of no further force or effect whatsoever). In any case wherein Buyer has the right to terminate this Agreement pursuant to this Section 8 and Buyer elects not to terminate, or in any case wherein Buyer does not have the right to terminate, Buyer and Seller shall consummate Closing on the Closing Date, without any reduction to or abatement of the Purchase Price, and all theretofore unpaid condemnation awards shall belong to Buyer.

9.NO ASSIGNMENT. Buyer shall not have the right to assign this Agreement or its rights under this Agreement without obtaining in each instance Seller’s prior written consent. Notwithstanding the foregoing, Buyer shall have the right, without Seller’s consent, to assign its entire right, title and interest in and to this Agreement, expressly including the Deposit, to any entity controlling, controlled by, or under common control with Buyer or Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, (an “Affiliate”); provided that, not less than three (3) business days prior to Closing, Seller receives an executed assignment and assumption agreement, in a commercially reasonable form, which expressly assigns the Deposit and in which such assignee expressly assumes performance of this Agreement for the benefit of Seller. No such assignment or designation shall relieve or release Buyer from any obligations under this Agreement (whether arising

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pre- or post-closing), and Buyer shall remain jointly and severally liable forall of same together with such assignee.

10.COVENANTS AND REPRESENTATIONS. As of the date hereof, and to the best of Seller’s knowledge, Seller covenants, warrants and represents to Buyer the following:

10.1Seller has obtained any consents from partners and/or shareholders required to permit the transactions contemplated by this Agreement including the sale of the Property to Buyer.

10.2There is no pending or threatened litigation affecting the Property brought by or against Seller that would materially adversely affect Buyer except as set forth in Exhibit 7 attached hereto and made a part hereof. If Seller is served with process or receives notice that litigation relating to the Property has been commenced against it, Seller shall promptly notify Buyer. The provisions of this Section shall not apply to any litigation relating to the property involving personal injury or property damage(s) covered by insurance.

10.3The Space Leases described in Exhibit 2 comprise all the Space Leases presently existing, and same have not been materially amended or modified except (if at all) as may be set forth in Exhibit 2. Seller has neither given nor received any outstanding, uncured notice of default to or from any Space Lease tenant. Following a date which is five (5) business days prior to the expiration of the Due Diligence Period (the “Cut Off Date”), and prior to Closing, Seller will not, without the prior written consent of Buyer(which Buyer agrees not to reasonably withhold or delay), cancel (except for default by a tenant) or materially amend any Space Lease, or enter into any new Space Lease or any Service Contract affecting the Property not cancelable on 30 days notice. On or prior to the Cut Off Date, Seller may take any of the foregoing actions without Buyer’s consent, provided it delivers a copy of any new documentation evidencing same to Buyer not later than three (3) business days prior to the expiration of the Due Diligence Period.

10.4Except as otherwise expressly provided herein, there are no contracts or agreements affecting the Property other than the Service Contracts, Space Leases, and Permitted Exceptions; and there are no on-site employees or hired persons in connection with the management, operation or maintenance of the Property; and Buyer shall have no obligation, liability or responsibility with respect to charges, salaries, vacation pay, fringe benefits or like items subsequent to Closing, nor with any management or employment agreements with respect to the Property.

10.5The signatories to this Agreement on behalf of Seller have the power and authority to enter into this Agreement and to bind Seller to the provisions hereof.

10.6As of the date hereof: (i) to Daniel Slattery’s knowledge Seller is not aware of and has receive no building code violation notices with respect to the Property (other than notices of violations which have been removed or corrected); and (ii) to Daniel Slattery’s knowledge Seller is not aware of and has received no notices of any action or governmental proceeding in connection with eminent domain, or for a zoning change, which would affect the Property; and (iii) to Daniel Slattery’s knowledge Seller is not aware of any structural problems in the improvements constructed upon the Property and the exterior structures are in good condition and repair.

10.7Intentionally Deleted.

11.THE CLOSING.

11.1The Closing shall be held at the Title Company’s offices (at the address set forth above) at 9:00 A.M. on the Closing Date. The Closing Date shall be December 9, 2004.

11.2At Closing, Buyer shall pay the Purchase Price as adjusted in accordance with the provisions of this Agreement; and Buyer shall execute and deliver such other instruments as Seller may reasonably request in connection with or to consummate the transactions contemplated by this Agreement.

11.3(A)At Closing, Seller shall deliver to Buyer the following:

(a)A Special Warranty Deed in favor of Buyer for the Real Estate in proper recordable form and duly executed and acknowledged by Seller.

(b)A F.I.R.P.T.A. affidavit.

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(c)It shall be a condition precedent to Buyer’s obligation to remit the remainder of the Purchase Price to the Title Company on the Closing Date and effectuate the transaction contemplated herein that on or before the third (3rd) business day prior to the Closing Date, Buyer shall have received an estoppel certificate from each tenant under a Space Lease each such estoppel to be dated not more than 30 days prior to the Closing Date, in either the form required by its Space Lease, or otherwise in the form attached hereto as Exhibit 10, and made a part hereof, as well as Seller’s estoppel in the form of Exhibit 10. If Seller is unable to obtain any such required estoppel from a tenant prior to Closing, Seller shall deliver its own estoppel in the form attached as Exhibit 10 (provided, however, Buyer shall not be obligated to accept Seller’s estoppel, which shall survive Closing (but if post-Closing Seller delivers any such tenant estoppel, Seller shall be relieved from responsibility under any Seller estoppel it delivered regarding all matters confirmed by such tenant estoppel). If Seller fails to deliver any such required estoppel, Seller shall have no liability by reason thereof provided, however that Seller shall not be required to deliver its own estoppel containing an assertion that Seller in good faith believes to be untrue, and Buyer’s sole right shall be to terminate this Agreement and to obtain a refund of the Deposit as set forth in Section 14.3. If any estoppel certificate is dated earlier than forty (40) days prior to the Closing Date, in lieu of requiring Seller to obtain a new estoppel from the subject tenant(s), which shall be required of Seller if any estoppel certificate is dated earlier than sixty (60) days prior to the Closing Date, Buyer agrees that Seller may deliver, at Closing, its representation that to the best of Seller’s knowledge, the facts in said estoppel remain true in all material respects as of the Closing Date.

(d)Seller shall use its commercially reasonable good faith efforts to obtain, prior to the expiration of the Due Diligence Period, an estoppel certificate from each party to, or affected by any declaration, association, reciprocal easement, or like agreement affecting the Property (hereinafter “REA estoppel”). Seller will request that the estoppel be in a form substantially similar to the form attached hereto as Exhibit 11 and made a part hereof. In the alternative, within five (5) days of the date this Agreement is fully executed by Seller and Buyer, Seller shall provide Buyer with the necessary information for each REA party such that during the Due Diligence Period, Buyer may request the REA estoppel from the REA parties directly. In the event Seller and Buyer are unable to obtain these estoppels despite Seller’s commercially reasonable good faith efforts prior to the expiration of the Due Diligence Period, Seller may deliver and Buyer may accept (although nothing contained herein shall require Buyer to accept), its own estoppel in the form attached as Exhibit 11, which shall survive Closing (but if post-Closing Seller delivers any such REA estoppel, Seller shall be relieved from responsibility under any Seller estoppel it delivered regarding all matters confirmed by such “REA” estoppel).

(e)It shall be a condition precedent to Buyer’s obligation to remit the remainder of the Purchase Price to the Title Company on the Closing Date and effectuate the transaction contemplated herein that on or before the third (3^rd) business day prior to the Closing Date, Buyer shall have received an assignment of all warranties and guaranties, if available, for materials and workmanship benefiting the Property, including an acknowledgment by the material and/or service provider of the acceptance of the assignment where required by the terms of the warranty and/or guaranty, with all fees and costs of such assignment (and inspection, if required) (not to exceed One Thousand Dollars ($1,000.00)) being paid at the sole cost and expense of Seller; any such costs or fees in excess of One Thousand Dollars ($1,000.00) being shared equally between the parties hereto.

(B)At Closing, Seller and Buyer shall each execute and deliver to the other the following:

(a)An Assignment and Assumption Agreement for the Space Leases in the form of Exhibit 4 attached hereto.

(b)An Assignment and Assumption Agreement for the Service Contracts, in the form of Exhibit 5 attached hereto.

(c)Notices to tenants, in the form attached hereto as Exhibit 14, and made a part hereof, notifying them of the sale and (if applicable) the transfer of their security deposit to Buyer.

(d)Notice to OEA parties in form required by the OEA.

(e)To the extent at closing Seller has not entered into a lease for the space for 2,675 square feet vacancy noted on Exhibit 9, then Seller shall master lease same pursuant to the terms hereof (the “New Vacant Space”) a Master Lease for a term expiring on the earlier of (i) twelve (12) months or (ii) such date as Seller leases the Vacant Space. Lease-up of the Property shall in no event yield an average Fixed Rent and Reimbursements amount that is less than the sum of Fixed Rent and Reimbursements per the Rent Roll. The Master Lease shall be in the form of Exhibit 8 attached hereto and

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shall incorporate that portion of the Property vacant space for which a bona fide Space Lease(s) had been executed but have become vacant between the date hereof and the date of Closing with the “Tenant Conditions” (as hereinafter defined) having been satisfied. For the purposes hereof, the Tenant Conditions for any Property vacant space gross leasable area are hereby defined as (i) a signed lease, and (ii) with Tenant either paying full rent and reimbursements or the all conditions precedent to Rent Commencement Date (as defined in such tenant lease) shall have occurred or been satisfied and (iii) with all the leasing commissions and tenant improvement allowances either paid for by Seller or credited to Buyer and (iv) with a certificate of occupancy or its equivalent occupancy permit issued by the local governmental authorities, for such tenant’s respective demised premises (v) Tenant shall have open and operated for its permitted use for at lease one day (vi) and Seller obtains an estoppel from Tenant that the delivery conditions (i.e. Landlord Work) has been completed or Seller shall give a Seller estoppel to that effect. If a bona fide Space Lease for the Vacant Space or any portion thereof with the Tenant Conditions satisfied is executed prior to the Closing Date, the parties shall either not enter into a Seller Lease or the applicable provisions thereof (including but not limited to the annual base rent) shall be adjusted accordingly to reflect that portion of the Vacant Space that is leased and thus released and not covered by the Master Lease. Seller acknowledges and agrees that it shall be responsible for placing all vacant space in Vanilla Box condition however, it may be satisfied by second generation space in “as is” condition such that a tenant has already occupied same, and needn’t be in “new” condition.

11.4Each party shall pay its own legal fees and travel and lodging expenses in connection with this transaction. Seller shall pay for all transfer taxes and documentary stamps and the parties shall each pay 1/2of the recording charges for transfer of title to the Real Estate and the “New York Style” closing escrow fees charged by the Title Company.

11.5Buyer also agrees to cooperate with Seller to permit the conveyance of the Property to be consummated as a part of a transaction intended by Seller to qualify as a tax-free exchange under Section 1031 of the Internal Revenue Code and in conjunction therewith to execute such documents as Seller may reasonably request (such cooperation may include, without limitation, accepting a conveyance from a party other than Seller and paying the Purchase Price to a party other than Seller). In no event, however, shall (a) Buyer bear any expense associated with the exchange transaction, (b) Buyer be obligated to take title to Seller’s exchange property, (c) the consummation of such tax-free exchange materially delay the conveyance to Buyer of the Property, (d) Buyer have any liability to Seller or any other party for the qualification of the exchange transaction for tax-free exchange treatment under Section 1031 of the Internal Revenue Code or under any other provision and (e) the consummation of such tax free exchange relieve Seller of any of its obligations hereunder.

11.6Intentionally Deleted.

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12.BROKERS.

Each party represents and warrants to the other that it dealt with no broker in connection with this transaction. Each party agrees to defend, indemnify and hold the other harmless from and against any and all loss, liability and expense, including reasonable attorney’s fees, that the indemnitee may incur arising by reason of the above representation by the indemnitor being false. The provisions of this Section 12 shall survive Closing.

13.NOTICES.  All notices, demands, requests, consents, approvals or other communications (for the purpose of this Section collectively called “Notices”) required or permitted to be given hereunder or which are given with respect to this Agreement shall be valid only if in writing and sent by registered or certified United States mail, return receipt requested, postage prepaid, or delivered by Federal Express or UPS courier service, addressed as follows:

	To Seller:	8383 Wilshire Boulevard
		Suite 950
		Beverly Hills, CA 90211
		Attn: Jerald Friedman
		Phone: (323) 866-3519
		Fax: (323) 866-3511
		With a copy to:
		3333 New Hyde Park Road
		Suite 100
		New Hyde Park, New York 11042
		Attn: Barbara E. Briamonte, Esq.
		Phone: (516) 869-7157
		Fax: (516) 869-7201
	and a copy to:	1111 Burlington Avenue
		Suite 113
		Lisle, IL 60532
		Phone: (630) 437-6610
		Fax: (630) 322-9204
		Attention: Daniel Slattery
To Buyer:		Inland Real Estate Acquisitions, Inc.
		2901 Butterfield Road Oakbrook, IL 60523
		Phone: (630) 218-4948
		Fax: (630) 218-4935
		Attention: G. Joseph Cosenza
	and a copy to:	Jason Lazarus
		Fax: (678) 996-2140
		with a copy to:
		The Inland Group, Inc.
		2901 Butterfield Road
		Oak Brook, IL 60523
		Attn: Robert Baum, General Counsel
		Facsimile Nos: (630) 218-4900
		Copy via facsimile:
		Charles R. Benvenuto (630) 571-2360
	To Escrow Agent:	CHICAGO TITLE & TRUST COMPANY
		171 North Clark Street
		Chicago, Illinois 60601
		Attn: Nancy Castro, Escrow Agent
		Phone: (312) 223-2709
		Fax: (312) 223-2108

or such other address as such party shall hereafter have specified by Notice given by the same means. Any Notice shall be deemed given when delivered to the carrier delivering same, delivery charges prepaid, and properly sealed and addressed. Any Notice may also be given by telecopier to the following

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numbers; Seller (516) 869-7201, Buyer (843) 852-3675, (630) 218-4935, (678) 996-2140 and (630) 218-4900;, and Escrow Agent (312) 223-2108, Attn: Nancy Castro, provided that a “hard copy” of such notice is sent within one (1) business day after such telecopier transmission in the manner above set forth; and in the case of notice by telecopier (with confirmation sent as aforesaid), notice shall be deemed given upon electronic confirmation of receipt.

14.DEFAULTS.

14.1If Closing does not take place because of Buyer’s default the Deposit shall be retained by Seller as agreed upon liquidated damages as Seller’s sole remedy for such default, and thereupon this Agreement shall be null and void and of no further force or effect whatsoever (except that Buyer shall remain liable on its obligations under Sections 4.2 and 15.8). The parties hereto expressly agree that Seller’s actual damages in the event of a default by Buyer would be extremely difficult or impractical to ascertain and that the amount of the Deposit represents the parties’ reasonable estimate of such damages.

14.2If Closing does not occur due to Seller’s willful default and refusal to close despite Buyer’s willingness to do so (such willingness includes waiver by Buyer of any uncured title objection properly made by Buyer under Section 6.1 or material breach of representation or warranty by Seller) (such willful default and refusal being hereinafter referred to as a “Seller Default”), then Buyer, as its sole and exclusive right and remedy as a result of such Seller Default, may elect to either (i) cancel this Agreement, in which event the Deposit shall be returned to Buyer, Seller shall be liable for any title and survey costs, as well as environmental site assessment, appraisal and legal fees theretofore incurred by Buyer (however Seller shall not be obligated to reimburse Buyer more than Twenty-Five Thousand Dollars ($25,000.00) in the aggregate for such environmental site assessment, appraisal and legal fees), and thereupon no party shall have any further right or obligation hereunder (except that Buyer shall remain liable on its obligations under Sections 4.2 and 15.8), or (ii) Buyer may enforce specific performance of this Agreement without any reduction or abatement of the Purchase Price, together with the right of Buyer to collect its reasonable attorney’s fees and costs of suit, subject to the limitation on Landlord’s reimbursement of same described above.

14.3Subject to the provisions of Article 14.1 and 14.2 above, if Closing should not occur for any reason whatsoever other than a default by Buyer or a Seller Default (including without limitation by reason of a material breach of representation or warranty of Seller or an uncured title objection properly made by Buyer under Section 6.1, or a failure to deliver any tenant estoppel required hereunder) which Buyer is not willing to waive, then in such event this Agreement shall be and be deemed cancelled, the Deposit shall be returned to Buyer, and thereupon Buyer shall have no other right, by way of damages or otherwise, against Seller notwithstanding the existence of any failure or breach of representation, warranty, covenant, title, provision of estoppel or other Closing condition (provided that Buyer will remain liable on its obligations under Sections 4.2 and 15.8).

15.MISCELLANEOUS.

15.1The representations, warranties and covenants contained in Article 10 of this Agreement shall survive delivery of the deed for a period of twelve (12) months. Other than the survival of such representations, warranties and covenants, the acceptance of the deed by Buyer shall be conclusive evidence of the performance by Seller of all of the provisions ofthis Agreement to be performed by Seller.

15.2This Agreement (including the Exhibits attached hereto) contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings, if any, with respect thereto.

15.3This Agreement may not be canceled, modified, changed or supplemented, nor may any obligation hereunder be waived, except by written instrument signed by the party to be charged or by its agent duly authorized in writing.

15.4The parties do not intend to confer any benefit hereunder on any person, firm or corporation other than the parties hereto and their respective successors or assigns.

15.5“TIME IS OF THE ESSENCE” with respect to all provisions of this Agreement, with the sole exception that each of Buyer and Seller shall be entitled to a single adjournment (not to exceed two (2) business days in any event) of the Closing Date.

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15.6This Agreement shall extend to and be binding upon the legal representatives, heirs, executors, administrators and, subject to the provisions of this Agreement, the permitted assigns of the parties hereto.

15.7Intentionally Deleted.

15.8Buyer represents and warrants that it will keep all information and/or reports and/or documents obtained from Seller or its agents (including without limitation the rent and other terms of the Space Leases), or related to or connected with the Property (including without limitation the existence of this Agreement and the Purchase Price) strictly confidential and will not disclose any such information to any person or entity (except for Buyer’s attorneys, consultants and advisors and except as required by law; provided that any such parties similarly agree to treat such material confidentially), without the prior written consent of Seller. In amplification and not in limitation of the foregoing, Buyer may not make any public disclosure of the existence or terms of this Agreement prior to Closing.

15.9This Agreement shall be governed by, interpreted under, and construed and enforced in accordance with, the laws of the State wherein the Property is located. This Agreement shall be construed in accordance with its plain meaning and without reference to any maxim or rule of interpretation providing that a writing should be construed against the party responsible for the drafting thereof.

15.10This Agreement shall not be recorded or filed in the public records of any jurisdiction by either party and any attempt to do so may be treated by the other party as a breach of this Agreement.

15.11This Agreement may be executed in one or more counterparts, each of which when so executed and delivered shall be deemed an original.

16. Conditions Precedent to Buyer’s Obligation.

In addition to the conditions precedent described in Article 11-3(A) (c), (d) & (e), Buyer’s obligation to remit the remainder of the Purchase Price to the Title Company on the Closing Date and effectuate the transaction contemplated hereunder is subject to and contingent upon the following;

(a)The Title Company’s issuing or committing to issue the Title Policy insuring that fee simple title to the Property is vested in Buyer as required in Article 6 hereof;

(b)The completeness, truth and accuracy in all material respects and to the best of Ruth Mitteldorf’s or Daniel Slattery’s knowledge of the Rent Roll, and any certifications, schedules, covenants and statements prepared and executed by Seller as part of the Pre-Closing Deliveries, the completeness in all material respects and to the best of Seller’s knowledge of the Space Leases delivered by Seller as part of the Pre-Closing Deliveries, the completeness, truth and accuracy in all material respects and to the best of Seller’s knowledge as of Closing, of the representations and warranties of Seller contained in Section 10 hereof, and the performance by Seller, to the extent possible by the date of Closing, of the covenants contained in Section 10 hereof. It shall be a condition to Buyer’s obligation to close with respect to the Property that, at the Closing, Seller shall deliver to Buyer a Certificate that shall confirm, to the best of Seller’s knowledge, the truth and accuracy in all material respects, as of Closing, of Seller’s representations contained in this Agreement, and the representations contained in such certificate, as well as any continuing obligations of Seller hereunder, shall survive the Closing for a period of twelve (12) months; and

(c)That as of the date of closing: (i) neither Seller, as landlord under the Space Leases, nor any tenant thereunder, shall be in material default under the terms of any Space Lease and (ii) and eight-five percent (85%) of the Property gross leaseable area being leased to tenants with the Tenant Conditions satisfied.

[SEE SIGNATURE BLOCKS ON NEXT PAGE]

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IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of the day and year first above written.

	BUYER:
	INLAND REAL ESTATE ACQUISITIONS, INC.
WITNESS:
[ILLEGIBLE]
[ILLEGIBLE]	By:	/s/ Jason A. Lazarus
		Name: Jason A. Lazarus
		Title: Vice President
		Date of Execution:			November 19, 2004
	SELLER:
	KIMCO PANAMA CITY, LLC
WITNESS:
	By:  [ILLEGIBLE]
[ILLEGIBLE]
[ILLEGIBLE]	By:		/s/ Ruth Mitteldorf
			Name: Ruth Mitteldorf
			Title: VP- Finance
			Date of Execution:			11/19/04
	Escrow Agent signs to confirm its agreement with the provisions of Section 3(A)(b) hereof:
	ESCROW AGENT:
WITNESS:
CHICAGO TITLE & TRUST COMPANY
	By:
	Name:			Nancy Castro
	Title:
	Date of Execution:

EX-10.479

Exhibit 10.479

ASSIGNMENT

This Assignment is made as of the 23^rd day of December, 2004 by INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation (“Assignor”) to and for the benefit of INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limited liability company (“Assignee”).

Assignor does hereby sell, assign, transfer, set over and convey unto Assignee all of its right, title and interest as Buyer under that certain Agreement of Purchase and Sale dated as of September 20, 2004, as amended, and entered into by Coram Property Development LLC, as Seller, and Inland Real Estate Acquisitions, Inc., Assignor, as Buyer (collectively, the “Agreement”), solely as the Agreement applies to the sale and purchase of the property described by the Agreement, located in Suffolk County, Coram, New York commonly known as Coram Plaza shopping center.

Assignor represents and warrants that it is the Buyer under the Agreement, and that it has not sold, assigned, transferred, or encumbered such interest in any way to any other person or entity. By acceptance hereof, Assignee accepts the foregoing Assignment and agrees, from and after the date hereof, to (i) perform all of the obligations of Buyer under the Agreement, and (ii) indemnify, defend, protect and hold Assignor harmless from and against all claims and liabilities arising under the Agreement.

IN WITNESS WHEREOF, Assignor and Assignee have executed this instrument as of the date first written above.

ASSIGNOR:
INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
By:		/s/ G. Joseph Cosenza
Name:			G. Joseph Cosenza
Its:	President
ASSIGNEE:
INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limited liability company
By: INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., its sole member
By:				/s/ [ILLEGIBLE]
Name:				[ILLEGIBLE]
Its:				[ILLEGIBLE]

EX-10.480

Exhibit 10.480

Coram Plaza

Coram, NY

Amendment to Agreement

AMENDMENT TO AGREEMENT

THIS AMENDMENT TO AGREEMENT (the “Amendment”) is made and entered into as of the 21st day of October, 2004, by and between Coram Property Development LLC, a Delaware limited liability company (“Seller”) and Inland Real Estate Acquisitions, Inc., an Illinois corporation (“Buyer”).

WITNESSETH:

WHEREAS, Seller and Buyer entered into that certain Agreement of Purchase and Sale dated September 20, 2004 (“the Agreement”) as amended by Letter Agreement dated October 15, 2004, for the sale and purchase of the property commonly known as Century Plaza shopping center located in Coram, New York as legally described by the Agreement (“the Property”).

WHEREAS, Buyer and Seller have mutually agreed to amend certain provisions of the Agreement.

NOW THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Buyer and Seller agree as follows:

1.The “Closing”, as defined in Paragraph 3.1 of the Agreement is hereby amended by deleting “October 22, 2004” and inserting “November 5, 2004” therein.

2.This Amendment may be executed in one or more counterparts, each of which shall constitute an original and all of which taken together shall constitute one Amendment. Each person executing this Amendment represents that such person has full authority and legal power to do so and bind the party on which behalf he or she has executed this Amendment. Any counterpart to this Amendment may be executed by facsimile copy and shall be binding on the parties.

Except as modified herein, the Agreement shall remain unmodified and in full force and effect.

Signatures on following page

BUYER:	Inland Real Estate Acquisitions, Inc., as Illinois corporation
	By:	/s/ G. Joseph Cosenza
	Name:				G. Joseph Cosenza
	Title:		President
SELLER:	Coram Property Development LLC, a Delaware limited liability company
	By:	/s/ Arthur W. Hooper, Jr.
	Name:				Arthur W. Hooper, Jr.
	Title:			Exec. Vice President

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AGREEMENT OF PURCHASE AND SALE

BY AND BETWEEN

CORAM PROPERTY DEVELOPMENT LLC

And

INLAND REAL ESTATE ACQUISITIONS, INC.

DATED AS OF September 20, 2004

TABLE OF CONTENTS

ARTICLE 1 - Purchase and Sale
	1.1	Covenant to Sell and Purchase
	1.2	Purchase Price; Escrow Agent
ARTICLE 2 - Title and Condition of Property; Financing
	2.1	State of Title
	2.2	Investigations; No Reliance on Documents; As-Is Sale
	2.3	Due Diligence Period
	2.4	Buyer’s Right to Terminate
	2.5	Prepayment of Existing Loans; Assumption of Existing F Property Loan
ARTICLE 3 - The Closing
	3.1	Time and Place
	3.2	Closing
	3.3	Delivery of Possession
ARTICLE 4 - Apportionments and Allocation of Expenses
	4.1	Credits and Prorations
	4.2	Other Adjustments
	4.3	Transaction and Closing Costs
ARTICLE 5 - Representations and Warranties
	5.1	Seller’s Representations and Warranties
	5.2	Buyer’s Representations and Warranties
	5.3	Changed Circumstances
	5.4	Survival of Representations and Warranties
ARTICLE 6 - Additional Agreements
	6.1	Operations Pending Closing
	6.2	Mutual Cooperation
ARTICLE 7 - Risk of Loss
	7.1	Casualty
	7.2	Condemnation

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ARTICLE		8 - Remedies Upon Default
	8.1	Time of Essence
	8.2	Default by Buyer
	8.3	Default by Seller
ARTICLE 9 - Agents and Commission
	9.1	Brokers
ARTICLE 10 - Miscellaneous
	10.1	Notices
	10.2	No Recording
	10.3	No Agency
	10.4	Severability
	10.5	Assignment and Succession
	10.6	Amendments and Waivers
	10.7	Further Assurances
	10.8	Absence of Third-Party Beneficiaries
	10.9	Governing Law; Jurisdiction
	10.10	Interpretation
	10.11	Entire Agreement
	10.12	Counterparts
	10.13	Expenses
	10.14	Consents
	10.15	Headings
	10.16	Waiver of Trial by Jury
	10.17	Confidentiality
	10.18	Drafts not an Offer to Enter into a Legally Binding Contract
	10.19	Exculpation
	10.20	Joint and Several

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AGREEMENT OF PURCHASE AND SALE

THIS AGREEMENT OF PURCHASE AND SALE (hereinafter referred to as the “Agreement”), dated as of this 20^th day of September, 2004, between Coram Property Development LLC, a Delaware limited liability company, having an address at 1720 Post Road, Fairfield, CT 06824 (referred to as “Seller”), and Inland Real Estate Acquisitions, Inc., an Illinois corporation, having an address at 2901 Butterfield Road, Oak Brook, Illinois 60523 (hereinafter referred to as “Buyer”).

W1TNESSETH:

WHEREAS, Seller is the owner of certain real property containing approximately 24.01 acres of land known as Century Plaza and located in the Town of Coram, County of Suffolk, State of New York (hereinafter referred to as the “Real Property”).

WHEREAS, Seller desires to sell to Buyer and Buyer desires to purchase from Seller the Real Property subject to the terms and conditions hereinafter provided; and

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties intending to be legally bound, hereby agree as follows;

ARTICLE 1

Purchase and Sale

1.1Covenant to Sell and Purchase, Seller shall sell and convey to Buyer, and Buyer shall purchase from Seller, the following:

(a)the Real Property owned by Seller, together with all of the tenements, hereditaments and appurtenances appertaining thereto, including any estate, right, title, interest, property, claim and demand of Seller in and to all streets, alleys, rights-of-way, sidewalks, easements, and utility lines or agreements (hereinafter collectively referred to the “Land”);

(b)all improvements, buildings and structures owned by Seller situate on the Land, including the shopping center and other facilities located thereon, and any apparatus, equipment, appliances and fixtures incorporated therein and used in connection with the operation and occupancy thereof, to the extent owned by Seller (hereinafter collectively referred to as the “Improvements”, and the Land and the Improvements are hereinafter collectively referred to as the “Property” and individually as a “Property”);

(c)all right, title and interest of Seller in and to the leases and other occupancy agreements with the tenants set forth on Exhibit “B” attached hereto covering all or any portion of the Real Property or the improvements to the extent they

1

are in effect on the Closing Date (as such term is defined in Section 3.1 hereof) (hereinafter collectively referred to as the “Leases”), together with all current rents and other sums due thereunder (hereinafter referred to as the “Rents”);

(d)the non-exclusive right to use all of Seller’s architectural and engineering plans, specifications and drawings, soil studies, land surveys, environmental studies and reports, hazardous waste studies and reports, market reports and surveys which are in the possession of the Seller (if any) which relate to the Property (hereinafter collectively referred to as the “Plans”);

(e)all utility, service, equipment, maintenance and other contracts relating to the ownership, maintenance or use of the Property, as approved during the Due Diligence Period (as hereinafter defined) by Buyer (hereinafter collectively referred to as the “Property Contracts”);

(f)to the extent assignable, all permits, approvals and licenses issued by any federal, state or local governmental authority or agency pertaining to the ownership, operation, maintenance or use of the Land, including, without limitation, zoning, site plan and subdivision approvals and developers’ agreements (hereinafter collectively referred to as the “Permits”);

(g)all books, records and operating reports in Seller’s possession, which are necessary to ensure continuity of operation of the Property (hereinafter collectively referred to as the “Records”);

(h)all right, title and interest, if any, of Seller in and to the name of Century Plaza; and

(i)all warranties and/or guaranties for materials and workmanship benefiting the Purchaser, to the extent assignable by their terms (hereinafter collectively referred to as the “Warranties”).

1.2Purchase Price; Escrow Agent.

(a)Seller is to sell and Buyer is to purchase all of the Property for the aggregate Purchase Price of Thirty Eight Million five Hundred Thousand and 00/100 ($38,500,000.00) DOLLARS (hereinafter referred to as the “Purchase Price”).

(b)Upon the execution and delivery of this Agreement by Seller and Buyer, Buyer shall deposit with Chicago Title Insurance Company, 171 N. Clark Street, Chicago, IL 60601, the sum of Four Hundred and 00/100 ($400,000.00) DOLLARS (hereinafter referred to as the “Good Faith Deposit”). This Agreement shall not be deemed to be effective and binding upon the parties hereto unless and until the Good Faith Deposit is so delivered. If the Good Faith Deposit is not paid within two business days following complete execution of this Agreement by all parties, this Agreement shall be null and void and no party shall be bound by the terms hereof. The Escrow Agent shall hold the Good Faith Deposit in an interest-bearing trust account maintained by the Escrow Agent at Chicago Title Insurance Company, Chicago Office

2

(hereinafter referred to as the “Deposit Escrow Account”), in accordance with the terms and conditions of this Agreement. The term “Deposit” shall mean and refer to the Good Faith Deposit plus all accrued interest in the Deposit Escrow Account. The Deposit shall be distributed in accordance with the terms of this Agreement.

(c)At the Closing (as such term is defined in Section 2.1 hereof), the Purchase Price shall be paid by Buyer to Seller as follows:

(i)By delivery of the Deposit by the Escrow Agent to or at the direction of the Seller;

(ii)By payment on the Closing Date, by wire transfer from the Closing Escrow of immediately available funds to a bank account designated by Seller in writing to Buyer prior to the Closing of the amount equal to the aggregate Purchase Price, as such amount may be increased or decreased by prorations and adjustments as herein provided, minus the Good Faith Deposit.

(d)(i)The duties of the Escrow Agent are limited to those specifically provided for herein and are purely ministerial in nature. Escrow Agent shall incur no liability hereunder or otherwise except for its own gross negligence or willful misconduct, and Seller and Buyer hereby release Escrow Agent from any liability (other than as excepted herein) for any action taken by it hereunder or for any failure or refusal to act hereunder or for any other matter. Unless Escrow Agent shall have been guilty of gross negligence or willful misconduct, Seller and Buyer, jointly and severally, agree to indemnify and hold harmless Escrow Agent from and against any liability incurred by it as a result of its acting as escrow Agent hereunder. Notwithstanding the immediately preceding sentence, however, Buyer shall be solely responsible for the payment of all fees and other compensation charged by the Escrow Agent for acting as such hereunder, including the reimbursement of any costs and expenses incurred by the Escrow Agent in connection with its acting as Escrow Agent hereunder.

(ii)Escrow Agent shall not be bound in any way or by any agreement or contract between Seller or Buyer, whether or not it has knowledge thereof, and Escrow Agent’s only duties and responsibilities shall be to hold the Deposit as escrow agent and to dispose of the Deposit in accordance with the terms of this Agreement. Without limiting the generality of the foregoing, Escrow Agent shall, in the absence of its gross negligence or willful misconduct, have no responsibility to protect the Deposit and shall not be responsible for any failure to demand, collect or enforce any obligation with respect to the Deposit or for any diminution in value of the Deposit for any cause. Escrow Agent may, at the expense of Seller and Buyer, consult with counsel and accountants in connection with its duties under this Agreement and Escrow Agent shall be fully protected in any act taken, suffered or permitted by it in good faith in accordance with the advice of such counsel and accountants. Escrow Agent shall not be obligated to take any action hereunder which may, in its reasonable judgment, involve it in any liability unless Escrow Agent shall have been furnished with reasonable indemnity satisfactory in amount, form and substance to Escrow Agent.

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(iii)Escrow Agent is acting as a stakeholder only with respect to the Deposit. If there is any dispute as to whether Escrow Agent is obligated to disburse the Deposit or as to whom the Deposit is to be delivered, Escrow Agent shall not make any delivery, but in such event Escrow Agent shall hold the Deposit until receipt by Escrow Agent of any authorization in writing, signed by all parties having an interest in such dispute, directing the disposition of the Deposit. In the absence of such authorization Escrow Agent shall hold the Deposit until the final determination of the rights of the parties in any appropriate proceeding. Escrow Agent shall have no responsibility to determine the authenticity or validity of any notice, in accordance with any written notice, direction or instruction given to it under this Agreement and believed by it to be authentic. If such written authorization is not given, or proceedings for such determination are not begun, within thirty (30) days after the dispute arises, Escrow Agent may, but is not required to, bring an appropriate action or proceeding for leave to deposit the Deposit with a court of the State of New York. Pending such determination Escrow Agent shall be reimbursed for all costs and expenses of such action or proceeding, including, without limitation, attorneys’ fees and disbursements by the party determined not to be entitled to the Deposit. Upon making delivery of the Deposit in the manner provided in this Agreement, Escrow Agent shall have no further liability hereunder. In no event shall Escrow Agent be under any duty to institute, defend or participate in any proceeding which may arise between Seller and Buyer in connection with the Deposit.

(iv)Escrow Agent or any successor Escrow Agent may resign at any time by giving fifteen (15) days’ prior notice of resignation to the other parties hereto, such resignation to be effective on the date specified in such notice. In case the office of Escrow Agent shall become vacant for any reason, Seller may appoint a title company, bank or trust company that is reasonably acceptable to Buyer as successor Escrow Agent to the retiring Escrow Agent, whereupon such successor Escrow Agent shall succeed to all rights and obligations of the retiring Escrow Agent as if originally named hereunder, and the retiring Escrow Agent shall duly transfer and deliver to such successor Escrow Agent the funds and records, including without limitation the Deposit, held by the retiring Escrow Agent hereunder.

(e)Escrow Agent shall execute this Agreement solely for the purpose of being bound by the provisions of Sections l.2(b) and (d) hereof and to acknowledge its receipt of the Good Faith Deposit.

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ARTICLE 2

Title and Condition of Property; Financing

2.1State of Title.

(a)Title shall be conveyed to Buyer at Closing in fee simple by New York form bargain and sale deed with covenants against grantor’s acts and shall be insurable at regular rates free and clear of any and all liens, claims, encumbrances, mortgages, deeds of trust and security interests (except for the lien of real estate taxes not yet due and payable), but subject to all Permitted Exceptions (as such term is defined in Section 2.1(c) hereof).

(b)Buyer, the cost and expense thereof to be equally shared by Seller and Buyer, shall obtain a preliminary title search (hereinafter referred to as the “Title Commitment”) from Chicago Title Insurance Company (in such capacity, hereinafter referred to as the “Title Company”), pursuant to which the Title Company has committed to insure (upon the payment of a requisite premium at regular rates) that Buyer shall own good and indefeasible fee simple title to the Property as described in Section 2.1(a) of this Agreement. Buyer shall forward a complete copy of the Title Commitment to Seller within five (5) business days after Buyer’s receipt of same. Buyer shall have until 5 p.m. on October 15, 2004 (hereinafter referred to as the “Due Diligence Period”) within which to object, by written notice to Seller, to any exceptions to title set forth in the Title Commitment. Seller, the cost and expense thereof to be shared equally by Seller and Buyer, shall cause reputable surveyors licensed in the State of New York, to prepare and deliver an ALTA as-built survey of the Property (to specifications approved by Buyer) (the “Survey”) to Buyer and Seller and the Title Company no later than the expiration of the Due Diligence Period. Buyer shall have until 5:00 p.m. on the last day of the Due Diligence Period within which to notify Seller in writing that Buyer objects to any state of facts as shown on any Survey, which written notice must be given contemporaneously with any written notice given as to exceptions to title referred to above. If Buyer notifies Seller in writing that Buyer objects to any exceptions to title and/or to any state of facts in the Survey (hereinafter referred to as a “Title Objection Notice”), Seller shall have ten (10) business days after receipt of such notification to notify Buyer (i) that Seller will remove the Title Objection Notice exceptions from title or, if applicable, remove the matters as shown on the Survey on or before the Closing or (ii) that Seller elects not to cause such exceptions or matters to be removed. If Seller fails to notify Buyer within such ten (10) business days, Seller shall be deemed to have given notice under clause (ii) above. If Seller gives (or is deemed to have given) Buyer notice under clause (ii) above, Buyer shall have five (5) business days from the date of receipt of such notice (or in a case where Seller gives no such notice, from the last date on which such notice could have been given) in which to notify Seller and the Escrow Agent (x) that Buyer will nevertheless proceed with the transactions contemplated by this Agreement and take title to the Property subject to such exceptions and such matters without reduction of the Purchase Price or (y) that Buyer will terminate this Agreement. If Buyer does not

5

provide any notice contemplated by the immediately preceding sentence, Buyer shall be deemed to have elected to take title to the Property pursuant to clause (x) above. If this Agreement is terminated pursuant to the provisions of Section 2.1(b)(y), (i) this Agreement shall terminate and be of no further force and effect, (ii) no party hereto shall have any further rights or obligations hereunder (except for representations, warranties and/or any indemnity obligations of any party pursuant to the provisions of this Agreement which expressly survive termination of this Agreement), and (iii) the Escrow Agent shall immediately return the Deposit to Buyer.

(c)The term “Permitted Exceptions” as used herein shall mean (i) the lien of real estate taxes, assessments and water and sewer charges not yet due and payable, (ii) all matters set forth in the Title Commitment and approved by Buyer or deemed approved by Buyer as provided hereinabove, provided, however, matters set forth in the Title Commitment for which the Standards of Title of the New York Bar Association recommend no curative action be taken shall be deemed approved (iii) intentionally deleted, (iv) all existing building, zoning and other city, state, county or federal laws, codes and regulations affecting the Property, (v) any existing general utility easements serving the Property (provided that such easements do not subject any owner of such Property to obligations other than are usual and customary in similar easements and provided further that no Improvements (other than parking areas and access aisles) are constructed on such easements), (vi) such state of facts as would be shown by accurate survey of the Property, (vii) the Leases, and (viii) any title exception created directly by any act or omission of Buyer or its representatives, agents, employees or invitees.

(d)Seller’s obligation to convey title to the Property is solely as set forth in Section 2.1(a) hereof. To the extent that Buyer may elect, at its option, to request the Title Company to issue endorsements to the most current form of ALTA owner’s title insurance policy as currently and customarily used in the State of New York, the issuance of such endorsements shall be shared equally by Buyer and Seller, and (to the extent that Buyer has not terminated this Agreement during the Due Diligence Period in accordance with the terms of Section 2.4 hereof) the issuance of any such endorsements shall not be a pre-condition to Buyer’s obligation to consummate the transactions contemplated by this Agreement.

2.2Investigations; No Reliance on Documents; As-Is Sale.

(a)Except as expressly set forth in this Agreement, neither Seller nor Buyer makes any representations or warranties as to the truth, accuracy or completeness of any materials, data or information delivered by such party or its brokers or agents to the other party in connection with the transaction contemplated hereby Seller and Buyer acknowledge and agree that all materials, data and information delivered by the other party in connection with the transactions contemplated hereby are provided to the other party as a convenience only and that any reliance on or use of such materials, data or information shall be at the sole risk of the party receiving such materials, data or information from the other party, except as otherwise expressly stated herein. Neither Seller, nor any affiliate of Seller, nor the persons or entities which prepared any report or

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reports (unless Buyer has obtained reliance letters from any such persons or entities or has established legal privity with such persons or entities by some other means) delivered by Seller to Buyer, shall have anyliability to Buyer for any inaccuracy in or omission from any such reports.

(b)Except as expressly set forth in this Agreement and in any documents delivered by Seller at the Closing, it is understood and agreed that Seller is not making and has not at any time made any warranties or representations of any kind or character, express or implied, with respect to the Property, including, but not limited to, any warranties or representations as to habitability, merchantability or fitness for a particular purpose, or as to the state of title, physical condition, environmental condition and/or zoning of the Property.

BUYER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL AND CONVEY OR ASSIGN TO BUYER AND BUYER SHALL ACCEPT THE Property “AS IS, WHERE IS, WITH ALL FAULTS” AND WITH ALL LATENT OR PATENT DEFECTS, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT OR THE DOCUMENTS EXECUTED AND DELIVERED BY SELLER AT THE CLOSING. BUYER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO ANY PROPERTY OR RELATING THERETO MADE OR FURNISHED BY SELLER, OR ANY REAL ESTATE BROKER OR AGENT PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT OR DOCUMENTS EXECUTED AND DELIVERED BY SELLER AT THE CLOSING. BUYER ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS AND TAKES INTO ACCOUNT THAT THE PROPERTY IS BEING SOLD “AS IS, WHERE IS, WITH ALL FAULTS”. IN ADDITION, SELLER WILL HAVE NO OBLIGATION TO PROVIDE ANY REPAIRS, ALTERATIONS OR IMPROVEMENTS TO THE PROPERTY AS A CONDITION PRECEDENT TO BUYER’S OBLIGATION TO CLOSE TITLE. IN FURTHERANCE OF THE FOREGOING AND NOT IN LIMITATION THEREOF, BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT EXCEPT AS SPECIFICALLY SET FORTH HEREIN TO THE CONTRARY, BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, FROM SELLER OR ANY PARTNER, MEMBER, MANAGER, SHAREHOLDER, OFFICER OR DIRECTOR OF SELLER OR FROM ANY EMPLOYEE, ATTORNEY, AGENT OR REPRESENTATIVE OF SELLER AS TO ANY MATTER CONCERNING ANY PROPERTY OR ANY MATERIALS PROVIDED BY THE SELLER PURSUANT TO SECTION 2.3 HEREOF, INCLUDING WITHOUT LIMITATION: (i) THE QUALITY, NATURE, HABITABILITY, MERCHANTABILITY, USE, OPERATION, VALUE, MARKETABILITY, ADEQUACY OR PHYSICAL CONDITION OF THE PROPERTY OR ANY ASPECT OR PORTION THEREOF, INCLUDING, WITHOUT

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LIMITATION, STRUCTURAL ELEMENTS, FOUNDATIONS, ROOFS, APPURTENANCES, ACCESS, LANDSCAPING, PARKING FACILITIES, ELECTRICAL, MECHANICAL, HVAC, PLUMBING, SEWAGE, UTILITY SYSTEMS, FACILITIES, APPLIANCES, SOILS, GEOLOGY OR GROUNDWATER, (ii) THE DIMENSIONS OR LOT SIZE OF ANY PROPERTY OR THE SQUARE FOOTAGE OF THE IMPROVEMENTS THEREON OR OF ANY TENANT SPACE THEREIN, (iii) THE DEVELOPMENT OR INCOME POTENTIAL, OR DEVELOPMENT OR OTHER RIGHTS OF OR RELATING TO PROPERTY, (iv) PROPERTY’S INSURABILITY, MERCHANTABILITY, FITNESS, SUITABILITY, OR ADEQUACY FOR ANY PARTICULAR PURPOSE, (v) THE ZONING OR OTHER LEGAL STATUS OF PROPERTY OR ANY OTHER PUBLIC OR PRIVATE RESTRICTIONS ON THE USE OF PROPERTY, (vi) THE COMPLIANCE OF THE PROPERTY OR ITS OPERATION WITH ANY APPLICABLE CODES, LAWS, REGULATIONS, STATUTES, ORDINANCES, COVENANTS, CONDITIONS OR RESTRICTIONS OF ANY GOVERNMENTAL AUTHORITY OR OF ANY OTHER PERSON OR ENTITY (INCLUDING, WITHOUT LIMITATION, THE AMERICANS WITH DISABILITIES ACT), (viii) THE ABILITY OF BUYER TO OBTAIN ANY GOVERNMENTAL APPROVALS, LICENSES OR PERMITS NECESSARY FOR BUYER’S INTENDED USE OR DEVELOPMENT OF THE PROPERTY, (viii) THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS ON, IN, UNDER, ABOVE OR ABOUT THE PROPERTY OR ANY ADJOINING OR NEIGHBORING PROPERTY, (ix) THE DESIGN, CONSTRUCTION OR THE QUALITY OF ANY LABOR AND MATERIALS USED IN THE CONSTRUCTION OF ANY IMPROVEMENTS, (x) THE CONDITION OF TITLE TO THE PROPERTY, (xi) THE LEASES, CONTRACTS OR ANY OTHER AGREEMENTS AFFECTING THE PROPERTY OR THE INTENTIONS OF ANY PARTY WITH RESPECT TO THE NEGOTIATION AND/OR EXECUTION OF ANY LEASE OR CONTRACT WITH RESPECT TO THE PROPERTY, OR THE APPLICABLE SELLER’S OWNERSHIP, DEVELOPMENT OR OPERATION OF THE PROPERTY OR (xii) THE ECONOMICS OF, OR THE INCOME AND EXPENSES, REVENUE OR EXPENSE PROJECTIONS OR OTHER FINANCIAL MATTERS, RELATING TO THE PROPERTY, OR THE OPERATION THEREOF. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER AGREES THAT BUYER IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF SELLER, WHETHER SUCH REPRESENTATION OR WARRANTY IS IMPLIED, PRESUMED OR EXPRESSLY PROVIDED, ARISING BY VIRTUE OF ANY STATUTE OR COMMON LAW. BUYER AGREES THAT SELLER IS UNDER NO DUTY TOMAKE ANY INQUIRY REGARDING ANY MATTER THAT MAY OR MAY NOT BE KNOWN TO ANY SELLER OR TO CONFIRM, INVESTIGATE OR QUESTION THE ADEQUACY OF ANY APPRAISAL, REPORT, ANALYSES OR STUDY OF ANY ASPECT OF THE PROPERTY PREPARED OR OBTAINED BY SELLER.

(c)Buyer’s acceptance of Seller’s deeds for the Property shall be deemed to be full performance by Seller of, and will discharge Seller from, all liabilities and obligations under this Agreement, and thereafter Seller shall have no liability or obligation to Buyer or to any subsequent owner of the Property with respect to the Property, nor any liability or obligation to any other person, firm, corporation or public

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body with respect to actions or claims which arise on or after the Closing Date with respect to the Property. Upon transfer of the Property, Buyer shall be deemed to have accepted and shall be subject to the terms, conditions and other obligations applicable to the owner of, and relating to, the Property which are set forth in any governmental approvals relating to the construction, use or occupancy of the Property, including without limitation, site plan approvals and developer’s agreements, whether or not same shall have been recorded.

(d)Buyer, in consideration for the promises and covenants contained in this Agreement, and for other good and valuable consideration, the receipt of which is hereby acknowledged, as of Closing does hereby release and forever discharge Seller from any and all actions, causes of action, suits, controversies, claims and demands whatsoever, in law and in equity, for or on account of injuries claimed to have been received by Buyer in connection with the condition of the Property as of the date of Closing, including without limitation the geophysical and environmental condition on, or originating from, the Property. It is expressly understood and agreed by Buyer and Seller that this release specifically applies to any claims made in connection with any possible environmental contamination on, or originating from, the Property, and/or any violation of the Environmental Laws (as such term is hereinafter defined) by the Seller in connection with the Property. For the purposes of this release, the term “environmental contamination” shall include any type of environmental orders, statutes or regulations applicable to the Property, including without limitation to the Comprehensive Environmental Response, Compensation and Liability Act, the Superfund Amendments and Reauthorization Act, the Federal Clean Water Act, the Spill Compensation and Control Act, the Federal Water Pollution Control Act, the Underground Storage of Hazardous Substances Act, the Resource Conservation and Recovery Act and all other applicable federal, state and/or local environmental acts (hereinafter collectively referred to as the “Environmental Laws”) as the same are currently in force or may be later amended, as well as any other claims, suits or actions arising from or related to the environmental condition of the Property. By accepting title to the Property at Closing, Buyer shall be deemed to have agreed that Buyer: (i) is satisfied with the environmental conditions of the Property (regardless of whether the Property complies with all Environmental Laws or other laws, orders, statutes or regulations affecting the Property) and that Buyer shall have been given the opportunity to determine, to its own satisfaction, that the Property complies with all Environmental Laws or other laws, orders, statutes or regulations affecting the Property; (ii) accepts that Property in an “AS IS” condition without relying on any verbal or written statement or representation relating to the Property that may have been made by the Seller (except as expressly set forth in this Agreement); and (iii) shall be solely responsible for any environmental contamination on, or originating from, the Property which is not disclosed in the Environmental Assessments to be obtained by Buyer pursuant to Section 2.3 hereof or which otherwise occurs after the Closing Date due to the actions or inactions of the Buyer, its successors and/or assigns or any third party, and Buyer agrees that it will be solely responsible for any such environmental contamination. It is understood and agreed that Seller does not admit any liability for any environmental contamination, and liability on the part of Seller is expressly denied.

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(e)The provisions of this Section 2.2  shall survive Closing or termination of this Agreement.

2.3Due Diligence Period. Buyer shall have until 5 p.m. (prevailing New York City, New York time) on the last day of the Due Diligence Period to inspect the Property, to conduct and prepare studies, tests and surveys and to investigate and review any and all matters relating to the Property which Buyer shall reasonably deem appropriate, including, without limitation, zoning matters, environmental matters, the Plans, the Property Contracts, the Permits, the Leases, the Records, the Title Commitment and the condition of the Property. In connection with Buyer’s review of the Property, Seller, respectively, shall deliver to Buyer within five (5) business days after the signing of this Agreement copies of the documents described on the Due Diligence Checklist attached hereto as Exhibit “C” and made a part hereof, including copies (if any) of (i) the most recent tax bills, (ii) the most recent title report and survey of the Property as are available, (iii) each of the Leases and any amendments thereto, (iv) all Property Contracts, (v) all Plans, (vi) all Permits, (vii) all Records, (viii) all Warranties, (ix) all environmental reports and studies relating to the Property and (x) all unrecorded developer’s agreements. All of the foregoing tests, investigations and studies shall be conducted by Buyer or its agents at Buyer’s sole risk, cost and expense. Prior to any such entry unto the Property, Buyer shall afford Seller not less that one (1) business day’s advance written notice of such inspection. Buyer covenants and agrees that none of its tests, investigations or studies shall materially interfere with or disrupt in any manner whatsoever (hereinafter referred to collectively as “Interference”) (x) the operation of any Property or any part thereof by any Seller or any tenant under any Lease or (y) the conduct of business by any Seller or any tenant under any Lease. Prior to entry on any Property by Buyer, Buyer shall deliver to Seller certificates of insurance (prepared on an insurance certificate form known as an “Accord 27”) from an insurance company or companies reasonably satisfactory to Seller, naming Seller and any other party requested by Seller as additional insureds which certificates shall evidence policies of insurance insuring against claims for bodily injury, death and property damage with confirmed single limit amounts of $1,000,000.00 and aggregate amounts of $2,000,000.00. So long as no Interference results therefrom, Seller will provide Buyer and its agents with access to all structures located on the respective Property to permit Buyer to fully conduct its due diligence activities. Buyer shall repair and restore any damage caused to the Property as a result of entry by Buyer or its agents or representatives. Buyer shall defend, indemnify and hold Seller harmless from and against any and all damages, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees and court costs) suffered or incurred by Seller or any tenant under any Leases with respect to all claims for personal injury, death or for loss or damage to property in connection with Buyer’s or its agents’, representatives’, contractors’ or subcontractors’ entry onto the Property and/or performance of such studies, tests and surveys. Buyer’s indemnification obligations under this Section 2.3 shall survive the Closing or termination of this Agreement.

2.4Buyer’s Right to Terminate. Buyer shall have until 5:00 p.m. (prevailing New York City, New York time) on the last day of the Due Diligence Period within which to notify Seller and Escrow Agent in writing (hereinafter referred to as a

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“Termination Notice”), of its election to terminate this Agreement in its entirety (but not otherwise, except as set forth in Section 2.5(b)(ii) hereof), for any reason or for no reason whatsoever. If this Agreement is terminated pursuant to the provisions of this Section 2.4, (i) this Agreement shall terminate and be of no further force and effect, (ii) no party hereto shall have any further rights or obligations hereunder (except for representations, warranties and/or any indemnity obligations of any party pursuant to the provisions of this Agreement which expressly survive termination of this Agreement), and (iii) the Escrow Agent shall immediately return the Deposit to Buyer. If Buyer shall not deliver an appropriate Termination Notice within the time period set forth herein, Buyer shall be deemed to have accepted the results of its due diligence examination of the Property, this Agreement shall remain in full force and effect and Buyer shall have no further right to cancel or terminate this Agreement, except as otherwise expressly provided herein. If Buyer terminates this Agreement, Buyer shall promptly return all due diligence material provided by Seller.

2.5Prepayment of Existing Loans.

Buyer hereby acknowledges that the Property is currently subject to that certain mortgage loan generally described on Exhibit “D” attached hereto and made a part hereof (hereinafter collectively referred to as the “Existing Loan”) made by the Lender (hereinafter referred as the “Existing Lender”) identified on Exhibit “D” hereto. Buyer and Seller hereby acknowledge and agree that Buyer is not assuming the obligations of the Seller under the Existing Loan, and that all principal and accrued and unpaid interest under the Existing Loan shall be prepaid out of the proceeds of the Closing of the transactions contemplated hereby. Notwithstanding the foregoing, Seller agrees to reasonably cooperate with Buyer’s efforts to cause the Existing Lender to assign the Existing Loan documents to Buyer’s lender (if any) at Closing.

ARTICLE 3

The Closing

3.1Time and Place. Consummation of the transactions contemplated hereby (hereinafter referred to as the “Closing”) shall take place using the services of Chicago Title Insurance Company (“Chicago Title”), as escrow agent. Seller and Buyer shall deliver all of their respective closing documents in escrow to Chicago with instructions on the distribution of the documents at such time as Chicago Title has wired to Seller the net funds due Seller in accordance with the closing statement agreed upon between the parties. The Closing shall take place on a date to be agreed upon by Seller and Buyer (hereinafter referred to as the “Closing Date”), which date shall not be later than October 22, 2004.

3.2Closing. At the Closing (or such earlier date as set forth herein), Seller and Buyer shall take such actions and deliver such agreements and other instruments and documents necessary or appropriate to effect the transactions contemplated by this Agreement in accordance with the terms hereof, including, without limitation, the following:

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(a)Buyer shall deliver to Seller the portion of the Purchase Price payable pursuant to Section 1.2(c) hereof and the Escrow Agent shall deliver the Deposit to the Seller.

(b)Seller and Buyer shall execute and deliver closing statements each in a form reasonably acceptable to Seller, Buyer and their respective counsel.

(c)Seller shall convey and transfer to Buyer good and insurable title to the Property, subject to the Permitted Exceptions, by executing, acknowledging and delivering to Buyer (the “Deed”).

(d)Seller and Buyer shall execute and deliver assignment and assumption agreements in substantially the form attached hereto as Exhibit “E” and made a part hereof, duly executed and acknowledged by Seller and Buyer and in proper form for recording (if necessary), pursuant to which Seller will assign to Buyer all of Seller’s rights, title and interest as lessor in and to the respective Leases, and pursuant to which Buyer will assume all obligations as lessor under the Leases. Seller will simultaneously deliver to Buyer an original executed copy of each of the Leases and all guarantees of the Leases and a letter, duly executed by the respective Seller, in form satisfactory to Buyer, addressed to each of the tenants under the Leases advising the tenants of the assignment of the Leases.

(e)Seller shall cause each commercial tenant under each Lease to deliver to Buyer a written tenant estoppel certificate in the form required under each such Lease, or if no form is specified and if no form is generally used by a tenant in similar transactions, in substantially the form attached hereto as Exhibit “F” and made a part hereof.

(f)Seller shall deliver to Buyer a rent roll for the Property owned by it containing a schedule of the Rents and other charges and payments due from tenants under the Leases, including without limitation any which are in arrears, all dated as of the Closing Date and certified by Seller as true and correct.

(g)Seller shall deliver to Buyer an affidavit of title in customary form, duly executed and acknowledged by Seller.

(h)Seller and Buyer shall deliver to the Title Company all documents, affidavits and instruments reasonably required by the Title Company and in a form reasonably acceptable to Seller, Buyer, their respective counsel and the Title Company.

(i)Seller shall deliver to Buyer a limited liability company certificate, satisfactory to the Title Company and Buyer, with respect to the authority of Seller to approve this Agreement and the transactions contemplated hereby.

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(j)Buyer shall deliver to Seller a corporate resolution, satisfactory to the Title Company and Seller, with respect to the authority of Buyer to approve this Agreement and the transactions contemplated hereby.

(k)Seller shall deliver to Buyer all Plans, Property Contracts, Permits, Records and all other records pertinent to the ownership, operation, maintenance or use of the Property which are in such Seller’s possession. Seller and Buyer shall execute and deliver an assignment and assumption agreement, pursuant to which Seller will assign to Buyer all of such Seller’s right, title and interest in the Plans, Property Contracts, Permits and Records, and pursuant to which Buyer will assume all obligations with respect thereto.

(1)Seller shall deliver to Buyer an affidavit stating that such Seller is not a “foreign person” as that term is defined pursuant to the Foreign Investment in Real Property Tax Act of 1980 (hereinafter referred to as “FIRPTA”).

(m)Seller shall execute a notice to the Tenants of the Property in substantially the form attached hereto as Exhibit “G”, which notices shall be delivered to Buyer at Closing for Buyer to forward to the respective Tenants.

(n)The parties shall execute and deliver to each other any other instrument or instruments (i) required to be delivered under any provision of this Agreement and (ii) reasonably requested by the attorney for either party in connection with this transaction.

(o)To the extent obtained by Buyer (with Seller’s cooperation in accordance with Section 6.2(c) hereof), and to the extent paid for on before Closing by Buyer, Seller shall cause all Warranties to be transferred to the name of Buyer.

(p)To the extent obtained by Seller in accordance with Section 6.2(c) hereof, estoppel certificates from parties to any reciprocal easement or similar agreement affecting the Property (hereinafter referred to as the “REA Estoppels”) in either the form prescribed by any such document or in substantially the same form attached hereto as Exhibit “H”.

(q)Seller shall obtain from The Stop & Shop Supermarket Company LLC (formerly know as The Stop & Shop Supermarket Company) (“Stop & Shop”) a waiver of the right of first offer set forth in Article XX of that certain lease agreement between Seller and Stop & Shop, dated December 30, 2002, being assigned as part of the Closing in the form of Exhibit “I”.

(r)Seller shall execute and deliver to Buyer’s auditors, KPMG, an audit letter in the form attached as Exhibit J, attached hereto and made a part hereof. In the event the audit of Property operations has not been performed by KPMG at or prior to the date of Closing, Seller agrees to

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execute and deliver the audit letter at such time as the audit is performed. The terms of this provision shall survive Closing.

3.3Delivery of Possession. Possession of the Property shall be delivered to Buyer at the Closing upon execution and delivery of the Deed free of all tenancies and occupants, except with respect to tenants under the Leases.

ARTICLE 4

Apportionments and Allocation of Expenses

4.1Credits and Prorations. Subject to any provision of this Agreement to the contrary, the following items shall be apportioned for the calendar year in which the Closing occurs as of midnight on the calendar day immediately preceding the Closing: (a) all Rents, revenues and other income, if any, from the Property, (b) real estate taxes; (c) water and sewer charges and other utility charges, if any, (d) all security deposits under Leases shall be credited to Buyer at Closing, and (e) any other income, expense or other items relating to the Property which is customarily prorated between a purchaser and a seller of real property in the counties in which the Property is located.

4.2Other Adjustments.

(a)Notwithstanding anything contained in Section 4.1 hereof, any taxes paid at or prior to Closing shall be prorated based upon the amounts actually paid. If taxes and assessments due and payable during the year of Closing have not been paid before Closing, Seller shall be charged at Closing an amount equal to that portion of such taxes and assessments, plus interest and penalties, if any, which relate to the period before Closing and Buyer shall pay the taxes and assessments prior to their becoming delinquent. Any such apportionment made with respect to a tax year for which the tax rate or assessed valuation, or both, have not yet been fixed shall be based upon the tax rate and/or assessed valuation last fixed. To the extent that the actual taxes and assessments for the current year differ from the amount apportioned at Closing, the parties shall make all necessary adjustments by appropriate payments between themselves within thirty (30) days after such amounts are determined following Closing, subject to the provisions of Section 4.2(b) of this Agreement.

(b)Except as otherwise provided herein, any expense amount which cannot be ascertained with certainty as of Closing (and for which Buyer and Seller are unable to adjust and/or allocate at or prior to Closing) shall be prorated on the basis of the parties’ reasonable estimates of such amount, and shall be the subject of a final proration ninety (90) days after Closing, or as soon thereafter as the precise amounts can be ascertained. Buyer shall promptly notify Seller when it becomes aware that any such estimated amount has been ascertained. Once all revenue and expense amounts have been ascertained, Buyer shall prepare, and certify as correct, a final proration statement which shall be subject to Seller approval. Upon the acceptance and approval by Seller of any final proration statement submitted by Buyer, such statement shall be conclusively deemed to be accurate and final.

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(c)All rents, including without limitation all basic rent, additional rent, CAM charges, tenant real estate tax reimbursements and all amounts due and payable to the landlord under the Leases (hereinafter collectively referred to as “Rents”), shall be prorated and adjusted as of the Closing Date based upon the number of days in the month in which the Closing occurs. In furtherance of the foregoing, and in furtherance of the desire of Buyer and Seller to negotiate appropriate credits for all tenant matters, Seller shall prepare all CAM reconciliations for calendar year 2004 prior to the end of the Due Diligence Period, and shall deliver copies thereof to Buyer. Based upon (i) the overpayments and underpayments shown on the CAM reconciliations (ii) the delinquency, if any, at such time in the payment of Rent by any Tenants and (iii) the existence, if any, of any unpaid tenant improvements or leasing commissions or any unexpired free rent periods (hereinafter collectively referred to as “Tenant Concessions”) Buyer and Seller shall negotiate in good faith with each other appropriate credits to one another to be allocated at Closing in connection with the Leases. Such good faith negotiations shall include negotiations with respect to Rents which remain unpaid on and as of the anticipated Closing Date, as well as allocation of responsibility for the economic effect of the payment or realization of Tenant Concessions, it being the intent of the Buyer and Seller to negotiate fair and equitable credits such that (i) Seller will have no claims against Tenants following Closing for past due Rent, CAM payments, other additional rent and Tenant Concessions, (ii) Seller will owe no additional payments to Buyer in respect of Rent, CAM payments, other additional rent and Tenant Concessions, and (iii) Buyer will owe no additional payments to Seller in respect thereof.

(d)All common area expenses, maintenance, taxes other than real estate taxes (such as rental taxes), other expenses incurred in operating the Property, and any other costs incurred in the ordinary course of business or in the management and operation of the Property, shall be prorated on the basis of the actual number of days elapsed (monthly or annually, as applicable). Subject to the negotiations referred to in Section 4.2(c) hereof, Seller shall pay all such expenses that accrue prior to Closing and Buyer shall pay all such expenses accruing as of the Closing Date and thereafter. Seller and Buyer shall obtain billings and meter readings as of the Closing Date to aid in such prorations, to the extent available or necessary.

(e)Buyer shall be entitled to a credit in the amount of the tenant security deposits set forth on Schedule 4.2(e) attached hereto.

(f)Subject to the final sentence of Section 4.2(b) hereof, the provisions of this Section 4.2 shall survive Closing.

4.3Transaction and Closing Costs.

(a)Seller and Buyer shall execute such returns, questionnaires and other documents as shall be required with regard to all applicable real property transaction taxes imposed by applicable federal, state or local law or ordinance.

(b)Seller shall pay the fees of counsel representing Seller in connection with this transaction. In addition, Seller shall also pay the following costs and expenses:

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(i) any realty transfer tax, sales tax, documentary stamp tax or similar tax which becomes payable by reason of the transfer of the Property;

(ii) the fees for any consultants which have been hired or retained by Seller in connection with the transactions contemplated by this Agreement;

(iii) one-half of all survey and title charges;

(c)  Buyer shall pay the fees of counsel representing Buyer in connection with this transaction, if any. In addition, Buyer shall also pay the following costs and expenses:

(i) one-half of all survey and title charges;

(ii) the cost of appraisals, Environmental Assessments of the Property prepared on Buyer’s behalf or at Buyer’s direction;

(iii) the fees for recording the Deed and any other recordable Transfer Documents;

(iv) except as set forth in Section 9.1 hereof, the fees for any other brokers or consultants which have been hired or retained by Buyer in connection with the transaction contemplated by this Agreement; and

(v) the fees and expenses of the Escrow Agent, as set forth in Section 1.2(d)(i) hereof.

(d)All costs and expenses incident to the transaction contemplated hereby and the closing thereof, and not specifically described above, shall be paid by the party incurring same.

(e)The provisions of this Section 4.3 shall survive the Closing or termination of this Agreement.

4.4Master Lease.

Simultaneously with the Closing, Seller shall enter into a master lease (the “Master Lease”) with Buyer for all of the vacant space (“Vacant Space”) at the Property (currently estimated to be 11,700 s.f.) at a rental rate of $15.00 p.s.f. plus the pro rata share of CAM and taxes for a period of two (2) years. Pursuant to the Master Lease Seller shall make monthly payments in advance on the first day of each month of the term for rent, CAM and taxes. The determination of the square footage of the Vacant Space shall be made as of the date of the Closing. Subsequent to the Closing and prior to the end of the two (2) year Master Lease, if any portion of the Vacant Space is leased and put in service (“Leased Space”), the Master Lease shall terminate as to the applicable Vacant Space as of such date. “Leased Space” shall mean space for which: (i) a tenant has executed a lease for any portion of the Vacant Space, accepted its space, subject to any

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normal punch list items, and (ii) opened for business to the public, and (iii) commenced the payment of full rent, common area maintenance and taxes, and (iv) all the leasing commissions and tenant improvement allowances having either paid for by Seller or credited to Buyer, and (v) a certificate of occupancy or its equivalent occupancy permit issued by the local governmental authorities, for such tenant’s respective demised premises, and (vi) the tenant executes and delivers an acceptable estoppel certificate to Buyer. Notwithstanding the foregoing, in the event a ground lease is entered into for any portion of the Property the term “Leased Space” for such ground lease parcel shall mean space for which: (i) a tenant has executed a ground lease; and (ii) a tenant has commenced the payment of full rent, common area maintenance and taxes, and (iii) all the leasing commissions and tenant improvement allowances having either paid for by Seller or credited to Buyer; and (iv) the tenant executes and delivers an acceptable estoppel certificate to Buyer. It is understood that at no time shall Buyer be entitled to receive a rental payment from a tenant and also a rental payment attributable to such tenant from the Master Lease (whether due to partial satisfaction of the Leased Space criteria, or otherwise), and Buyer agrees to immediately remit such duplicate payment to Seller upon receipt.

4.5Vacant Space Escrow.

Seller shall escrow with Escrow Agent the sum of $30.00 p.s.f. for tenant improvements and leasing commissions for the Vacant Space (the “Vacant Space Escrow”). Subsequent to the Closing and prior to the end of the two (2) year Master Lease, if any portion of the Vacant Space is leased and put in service (“Leased Space”), Seller shall be entitled to immediately receive from escrow agent the sum of $30.00 p.s.f. for the applicable Leased Space. If, at the end of the two (2) year Master Lease, there then exists any Vacant Space, the amount remaining in the Vacant Space Escrow attributable to tenant improvements and leasing commissions for the then Vacant Space shall be released to Buyer.

ARTICLE 5

Representations and Warranties

5.1Seller Representations and Warranties. Seller, hereby makes the following representations and warranties to Buyer as of the date of this Agreement, which representations and warranties shall be true and correct as of the Closing Date as a condition to Buyer’s obligation to close hereunder:

(a)Seller is a limited liability company duly organized, validly existing and in good standing under the laws of its state of formation. Seller has all requisite power and authority to own and operate its Property and carry on its business with respect to such Property as now being conducted. Seller has the requisite power and authority to enter into this Agreement and to perform its obligations hereunder and to consummate the transactions contemplated hereby. Neither the execution, delivery and performance by Seller of this Agreement, nor the consummation of the transactions

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contemplated hereby or thereby will violate or conflict with any provision of the articles of organization or operating agreement of Seller.

(b)Seller is not a “foreign person” as such term is defined pursuant to FIRPTA.

(c)The execution, delivery and performance by Seller of this Agreement, and the consummation of the transactions contemplated hereby and thereby, will not violate any provision of Seller’s organization documents.

(d)The Leases are the only leases and tenancies in effect with respect to the Property and no individuals or entities occupy the Property or any portion thereof except pursuant to the Leases. The copies of the Leases previously delivered or to be delivered to Buyer are or will be true, correct and complete copies of all the Leases and any amendments thereto. Except as disclosed herein or in the Leases, copies of which shall be reviewed by Buyer during the Due Diligence Period, no Lease provides the tenant thereunder with a right of first refusal to purchase its demised premises or any of the Property.

(e)No Seller has received any written notice from a tenant under any Lease of such tenant’s intention to vacate or abandon its demised premises prior to the end of the term of its Lease. The applicable Seller shall promptly provide Buyer with a copy of any written notice of default under any Lease given or received between the date hereof and the date of the Closing.

(f)No Seller has received any written notice from any tenant under any Lease which claim any default by Landlord thereunder. The applicable Seller shall promptly provide Buyer with a copy of any written notice of default under any Lease given or received between the date hereof and the date of the Closing.

(g)Except as otherwise disclosed to Buyer, no Seller has received any written notice of any violations of any federal, state or municipal zoning, fire, environmental, building or other laws, codes, statutes, ordinances, orders, regulations or requirements affecting the Property owned by it, the terms of which have not been complied with, and Seller will promptly notify Buyer of the receipt of any written notice of any such violations received by such Seller between the date hereof and the date of the Closing.

(h)There are no attachments, executions, assignments for the benefit of creditors, receiverships, conservatorships or voluntary or involuntary proceedings in bankruptcy or actions pursuant to any other debtor relief laws contemplated by any Seller or pending against such Seller and regarding the Property owned by it.

(i)No tenant is entitled to any rent concessions or “free rent” under the terms of any of the leases, all tenant improvement allowances due under any of the leases have either been paid, or if not yet due and payable, will be escrowed by Seller from the net funds due Seller at the Closing, with Chicago Title.

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(j)Schedule 5.1(j) sets forth any unpaid leasing commissions and the amount hereof. All leasing commissions for which a lien could be filed shall be paid on or before the Closing Date

5.2Buyer’s Representations and Warranties. Buyer hereby makes the following representations and warranties to Seller as of the date of this Agreement, which representations and warranties shall be true and correct as of the Closing Date as a condition to Seller’s obligation to close hereunder.

(a)Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Illinois. Buyer has the requisite power and authority to enter into this Agreement and the Buyer Ancillary Documents, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation by Buyer of the transactions contemplated hereby and thereby have been duly authorized by Buyer and no consents of any third parties are necessary for Buyer’s execution, delivery and performance of this Agreement and the transactions contemplated hereby and thereby. Neither the execution, delivery and performance by Buyer of this Agreement, nor the consummation of the transactions contemplated hereby or thereby will violate or conflict with any provision of the documents and instruments under which Buyer is constituted.

(b)No action or other proceeding whatsoever is now pending or, to the best knowledge of Buyer, threatened against Buyer or any shareholders, partners, members or owners, as the case may be, of the foregoing which calls into question or seeks to set aside or enjoin any of the approvals or authorizations of the transactions contemplated by this Agreement, or the performance of Buyer’s obligations hereunder, or which will or may otherwise impede the Closing.

(c)Buyer has all funds available to it which are sufficient to consummate the transaction contemplated by this Agreement.

(d)Buyer fully understands the nature and significance of the transactions provided for in this Agreement and the limitations provided in Section 2.2 hereof and elsewhere herein. Buyer is satisfied with the amount being paid by it for the Property, as set forth herein, based and in sole reliance upon its own valuation of the Property and its review and analysis of the rent roll for each Property, reports of physical inspections (including without limitation, environmental inspections), business, operations, condition and prospects for the Property.

5.3Changed Circumstances. Seller and Buyer shall promptly notify the other in writing, if, after the execution of this Agreement and prior to the Closing, any event occurs or condition exists which renders any of the foregoing representations and warranties made by it materially untrue or misleading. All of the foregoing representations and warranties, respectively, shall be deemed made by Seller, respectively, and Buyer on the date of this Agreement and at the time of the Closing.

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5.4Survival of Representations and Warranties; Limitation on Seller’s Liability. Unless otherwise set forth in this Agreement, the representations and warranties of Seller and Buyer, respectively, as set forth in this Article 5 and elsewhere in this Agreement and in any other agreements, affidavits, estoppels, instruments or other documents executed by any of the Seller in connection with the transactions contemplated hereby (hereinafter collectively referred to as the “Closing Documents”) shall survive Closing for six (6) months. In the event that the Closing for the transactions contemplated herein occurs, and to the extent that, thereafter, Buyer incurs any actual costs or losses during the six (6) month period referred to above as a result of any incorrect representations or warranties made by Seller hereunder or under the Closing Documents which exceed $25,000.00. No claims based upon any incorrect representation or warranties may be brought by Buyer to the extent that the costs or losses actually incurred by Buyer do not individually or collectively exceed the Minimum Threshold, and no such claims may be brought at any time following the six-month anniversary of the Closing. In addition, to the extent that Buyer actually knows at or prior to Closing that any of Seller’s representations or warranties are inaccurate, untrue or incorrect in any way, such representations and warranties shall be deemed modified to reflect Buyer’s knowledge. Without limitation, Seller shall not have any liability in connection with this Agreement by reason of any inaccuracy of a representation or warranty if and to the extent that such inaccuracy has been identified by Seller by notice to Buyer or otherwise is actually known by Buyer at the time of Closing (whether matters contradicting any representation or warranty is contained in any Exhibit or Schedule to this Agreement, whether such matters are contained in any materials delivered to Buyer by or on behalf of Seller, or whether such matters are contained in any study, test, analysis or report prepared by or for the benefit of Buyer in connection with the transactions contemplated hereunder), and Buyer consummates the Closing.

ARTICLE 6

Additional Agreements

6.1Operations Pending Closing. Between the date of execution of this Agreement and the Closing, Seller shall comply with all covenants, conditions, restrictions, laws, statutes, rules and regulations and ordinances applicable to the Property, and shall own, manage and operate the Property in a manner consistent with past practices and shall use reasonable and prudent efforts to preserve for Buyer the favorable relationships which Seller has with tenants, suppliers, vendors and others having ongoing relationships with the respective Property. Seller (a) may, at Seller’s option, after prior notice to Buyer, in the ordinary course and consistent with Seller’s current practices, negotiate with prospective tenants, and (b) enter into Leases (on terms that Seller believes, in its good faith business judgment, to be market terms), enforce Leases and perform landlord’s obligations under the Leases (other than with respect to Leases that have been or that are in the process of being terminated). Seller shall not, without first obtaining written consent of Buyer, which consent shall not be unreasonably withheld, conditions or delayed, enter into new Leases or modify the terms of or

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terminate any Leases. In addition, Seller shall promptly notify Buyer, in writing, of (i) any default beyond applicable grace periods committed by any tenants (other than defaults in the payment of rent, adjustments for which will be made at Closing) and (ii) any written notices received from any tenants regarding Seller’s defaults or any tenant’s intention to terminate its lease.

6.2Mutual Cooperation. Seller and Buyer agree to cooperate fully with one another in connection with the transactions contemplated herein during the Due Diligence Period. In furtherance of the foregoing, Seller agrees to (a) to provide contact information to Buyer with respect to persons who prepared previous surveys, environmental assessments and appraisals, if any, with respect to the Property, (b) to execute all documents (at no cost to Seller) to effectuate the transfer to Buyer of any Warranties and (c) to use its commercially reasonable efforts (which for purposes of this Section 6.4(e) shall not require any Seller to incur unreasonable costs) to obtain the REA Estoppels.

Article 7

Risk of Loss

7.1Casualty.

(a)If, at or prior to Closing, any damage, destruction or casualty shall have occurred as to which a tenant (i) has the responsibility to repair and restore the Property under its respective Lease and (ii) has no right of rent abatement or offset, in full or in part as a result of such casualty, the parties shall proceed to Closing in accordance with the terms of this Agreement without any reduction in the Purchase Price.

(b)(i) If, at or prior to Closing, any other damage, destruction or casualty, of any Property, occurs, which damage, destruction or casualty creates loss valued at ten (10%) percent or less of the Purchase Price, then this Agreement shall continue in full force and effect and the Seller shall give written notice of such event to Buyer (which notice will include a description of the nature, extent and estimated amount of damage or loss suffered by the Property in connection with such casualty), in which event the parties shall proceed to Closing in accordance with the terms of this Agreement without any reduction in the Purchase Price, and the Seller shall (A) assign to Buyer at Closing all of its rights to and interest in all proceeds of casualty insurance and business interruption and rent loss insurance relating to the period from and after the date of Closing payable on account of such casualty, (B) pay to Buyer at Closing an amount equal to the full amount of the deductible applicable under such insurance policies, by way of a credit against the Purchase Price equal to the deductible unless tenants are responsible for the deductible in CAM. The Seller shall cooperate reasonably with Buyer before and after Closing to file and process an insurance claim for all insured loss arising out of such casualty.The Seller shall not settle or adjust any such insurance claim without Buyer’s prior written consent. Seller shall have no obligation to repair or restore any Property other than necessary measures as may be necessary to secure any such Property from natural elements, vandalism or further deterioration.

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(ii)If, at or prior to Closing, any other damage, destruction or casualty, of any Property, occurs which damage, destruction or casualty creates a loss valued in excess of ten (10%) percent of the Purchase Price allocated to such Property, then the Seller shall notify Buyer in writing (hereinafter referred to as a “Seller Casualty Notice”), which Seller Casualty Notice will include a description of the nature, extent and estimated amount of damage or loss suffered by the affected Property in connection with such casualty. Within ten (10) days after receipt of the Seller Casualty Notice, Buyer shall notify the applicable Seller, in writing, as to whether (A) Buyer will elect to proceed to Closing or (B) Buyer will elect to terminate this Agreement. If Buyer does not make such written election within the time period specified above, Buyer will be deemed to have made the election set forth in clause (A).

(iii)If Buyer makes (or is deemed to have made) the election set forth clause (A) of Section 7.1(b)(ii) above, then this Agreement shall continue in full force and effect and the parties shall proceed to Closing in accordance with the terms of this Agreement without any reduction in the Purchase Price, and the Seller shall (A) assign to Buyer at Closing all of its rights to and interest in all proceeds of casualty insurance and business interruption and rent loss insurance relating to the period from and after the date of Closing payable on account of such casualty and (B) pay to Buyer at Closing an amount equal to the full amount of the deductible applicable under such insurance policies, by way of a credit against the Purchase Price equal to the deductible. The Seller shall cooperate reasonably with Buyer before and after Closing to file and process an insurance claim for all insured loss arising out of such casualty. The Seller shall not settle or adjust any such insurance claim without Buyer’s prior written consent. The Seller shall have no obligation to repair or restore any Property other than necessary measures as may be necessary to secure any such Property from natural elements, vandalism or further deterioration.

7.2Condemnation. If, at or prior to the time of Closing, all or any portion of any Property shall be condemned or taken pursuant to any governmental or other power of eminent domain, any written notice of taking or condemnation with respect to all or any portion of a Property is issued, or any proceedings are instituted by any governmental authority having the power of eminent domain to take all or any portion of such Property, then (a) the Seller shall notify Buyer in writing of such action, (b) Buyer shall proceed to closing with a reduction in the Purchase Price equal to any condemnation award previously paid to the Seller, (c) the Seller shall assign to Buyer at the time of Closing all of such Seller’s right to any unpaid condemnation awards and (d) such Seller shall convey the entire Property (or remainder thereof) to Buyer.

ARTICLE 8

Remedies Upon Default

8.1Time of Essence. If full performance of this Agreement is not completed by the Closing Date, either party shall have the right after such date to declare time to be of the essence of this Agreement by giving notice of such election to the other party. Such notice shall contain a declaration that time is of the essence and shall fix the time,

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date and place of final settlement, which date may not be sooner than twenty (20) days nor later than thirty (30) days following the effective date of giving such notice.

8.2Default by Buyer. In the event the sale of the Property as contemplated hereunder is not consummated due to Buyer’s default hereunder, Seller shall be entitled, as its sole remedy, to terminate this Agreement and receive the Deposit as liquidated damages, and not as a penalty, for the breach of this Agreement (which shall operate to terminate this Agreement and release Buyer and Seller from any and all liability hereunder other than with respect to those representations, warranties and/or indemnities which survive termination of this Agreement), it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are difficult, if not impossible, to determine and the Deposit and any accrued interest thereon, is a reasonable estimate thereof. Seller expressly waives its right to seek compensatory or consequential damages in the event of Buyer’s default hereunder.

8.3Default by Seller. In the event the sale of the Property as contemplated hereunder is not consummated due to a default by all Seller hereunder, Buyer shall be entitled, at its election, as its sole remedy, (a) to waive such default and close title in accordance with the terms of this Agreement without any reduction of the Purchase Price, (b) to receive the return of the Deposit which shall operate to terminate this Agreement and release Buyer and Seller from any and all liability hereunder (other than with respect to those representations, warranties and/or indemnities which survive termination of this Agreement), or (c) to enforce specific performance of the Seller’s obligations to convey the Property to Buyer in accordance with the terms of this Agreement, including a claim for reasonable attorney’s fees and costs of suit.

ARTICLE 9

Agents and Commission

9.1Brokers. With respect to the transaction contemplated by this Agreement, Seller and Buyer represent that the sole broker is Jeffrey R. Dunne, CB Richard Ellis (hereinafter referred to as the “Broker”), which is to paid a commission pursuant to separate agreement. In the event that any claim for commission or finder’s fee other than the Broker’s Fees is brought by any person or entity as a consequence of the transaction contemplated hereby and as a result of any action or omission of Seller or Buyer, then Seller or Buyer, as the case may be, shall hold harmless the other party against any loss, cost or expense of any nature, including, but not limited to, court costs and reasonable attorney’s fees arising as a consequence of the claim for the commission or fee. The terms of this Section 9.1 shall survive the Closing or termination of this Agreement.

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ARTICLE 10

Miscellaneous

10.1Notices. Every notice or other communication required or contemplated by this Agreement by any party shall be in writing and shall be delivered by (i) personal delivery, (ii) internationally recognized express courier, such as Federal Express, UPS or DHL or (iii) facsimile with a confirmation copy sent simultaneously in the manner contemplated by clauses (i) or (ii) of this Section 10.1, in each case addressed to the party for whom intended at the following address:

(i)	If to Buyer:	Inland Real Estate Acquisitions, Inc.
		2901 Butterfield Road
		Oak Brook, Illinois 60523
		Attn: G. Joseph Cosenza, President
		Fax No.: 630-218-4935
(ii)	With a copy to:	Inland Real Estate Group, Inc.
		2901 Butterfield Road
		Oak Brook, Illinois 60523
		Attn: Robert Baum, General Counsel
		Fax No.: 630-218-4900 and 630-571-2360
(iii)	If to Seller:	Coram Property Development LLC
		1720 Post Road
		Fairfield, Connecticut 06824
		Attn: Arthur W. Hooper, Jr.
		Fax No.: 203-256-4019
(iv)	With a copy to:	Pillsbury Winthrop LLP
		695 E. Main Street
		P.O. Box 6760
		Stamford, CT 06905-6760
		Attn: Kent S. Nevins, Esq.
		Fax No.: 203-965-8226
(v)	If to the Escrow Agent:	Chicago Title Insurance Company
		171 N. Clark Street
		Chicago, IL 60601
		Attn: Nancy Castro
		Fax No.: 312-223-2108

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or at such other address as the intended recipient previously shall have designated by written notice to the other parties. Notice by registered or certified mail shall be effective on the date it is officially recorded as delivered to the intended recipient by return receipt or equivalent, and in the absence of such record of delivery, the effective date shall be presumed to have been the third (3rd) business day after it was deposited in the mail. All notices and other communications required or contemplated by this Agreement to be delivered in person or sent by courier shall be deemed to have been delivered to and received by the addressee and shall be effective on the date of personal delivery; notices delivered by facsimile with simultaneous confirmation copy by registered or certified or equivalent mail or courier shall be deemed delivered to and received by the addressee and effective on the date sent. Notice not given in writing shall be effective only if acknowledged in writing by a duly authorized representative of the party to whom it was given.

10.2No Recording. Neither Seller nor Buyer shall cause or permit this Agreement nor any memorandum hereof to be filed of record in any office or place of public record and if Buyer or Seller shall fail to comply with the terms hereof by recording or attempting to record the same, such act shall not operate to bind or cloud title to the Property. If either party or counsel acting for either party shall cause or permit this Agreement, a copy hereof, or a memorandum hereof to be filed in an office of place of public record, the other party, at its option, may treat such act as a default under this Agreement.

10.3No Agency. This Agreement shall not constitute an appointment of any of the parties hereto as the legal representative or agent of any other party hereto nor shall any party hereto have any right or authority to assume, create or incur in any manner any obligation or other liability of any kind, express or implied, against, or in the name or on behalf of, the other party hereto.

10.4Severability. In the event any provision of this Agreement shall be determined to be invalid or unenforceable under applicable law, all other provisions of this Agreement shall continue in full force and effect unless such invalidity or unenforceability causes substantial deviation from the underlying intent of the parties expressed in this Agreement or unless the invalid or unenforceable provisions comprise an integral part of, or in inseparable from, the remainder of this Agreement. If this Agreement continues in full force and effect as provided above, the parties shall replace the invalid provision with a valid provision which corresponds as far as possible to the spirit and purpose of the invalid provision.

10.5Assignment and Succession. Except as expressly permitted herein, no party may assign or otherwise transfer any rights, interests or obligations under this Agreement (excluding an assignment resulting by operation of law as a result of the merger or consolidation of any such party) without the prior written consent of the other party, which consent may be withheld in the sole and absolute discretion of such party for any reason whatsoever or for no reason. This Agreement shall inure to the benefit of the parties hereto and to their respective permitted successors and assigns. Notwithstanding

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the foregoing, within ten (10) days prior to Closing, Buyer shall have the right to notify Seller of the names of its nominee entity taking title to the Property.

10.6Amendments and Waivers. No amendment, modification, termination or waiver of any provision of this Agreement or consent to any departure by any party therefrom, shall in any event be effective without the written concurrence of the other party hereto. Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it is given. No notice to or demand on any party in any case shall entitle any other party to any other or further notice or demand in similar or other circumstances.

10.7Further Assurances. Each of the parties hereto agrees that, from and after the Closing, upon the reasonable request of the other party hereto and without further consideration, such party will execute and deliver to such other party such documents and further assurances and will take such other actions (without cost to such party) as such other party may reasonably request in order to carry out the purpose and intention of this Agreement including but not limited to the effective consummation of the transactions contemplated under the provisions of this Agreement. The provisions of this Section 10.7 shall survive Closing.

10.8Absence of Third-Party Beneficiaries. No provisions of this Agreement, express or implied, are intended or shall be construed to confer upon or give to any person or entity other than the parties hereto, any rights, remedies or other benefits under or by reason of this Agreement unless specifically provided otherwise herein, and except as so provided, all provisions hereof shall be personal solely between the parties to this Agreement.

10.9Governing Law; Jurisdiction. The validity, construction, performance and enforceability of this Agreement shall be governed in all respects by the laws of the State of Connecticut, without reference to the choice-of-law principles thereof. Buyer and Seller agree to submit to personal jurisdiction in the State of New York in any action or proceeding arising out of this Agreement. In furtherance of such agreement, the parties hereto agree and consent that without limiting other methods of obtaining jurisdiction, personal jurisdiction over the each party in any such action or proceeding may be obtained within or without the jurisdiction of any court located in New York and that any process or notice of motion or other application to any such court in connection with any such action or proceeding may be served upon the party by registered or certified mail to, or by personal service at, the respective addresses listed in Section 10.1 herein (or as otherwise established by notice to the other party), whether such address may be within or without the jurisdiction of any such court. The parties hereto further agree that the venue of any litigation arising in connection with this Agreement or in respect of any of the obligations of the parties hereto under this Agreement, shall, to the extent permitted by law, be in Fairfield County, Connecticut.

10.10Interpretation. This Agreement, including any exhibits, schedules and amendments, has been negotiated at arm’s length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. Each party has been

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represented by experienced and knowledgeable legal counsel. Accordingly, any rule of law or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to effect the purposes of the parties and this Agreement.

10.11Entire Agreement. The terms of this Agreement and the other writings referred to herein (including but not limited to all schedules, exhibits, addenda, and related agreements) and delivered by the parties hereto are intended by the parties to be the final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous agreement. The parties further intend that this Agreement, together with the exhibits and schedules hereto shall constitute the complete and exclusive statement of its terms and shall supersede any prior agreement with respect to the subject matter hereof.

10.12Counterparts. This Agreement may be executed simultaneously in multiple counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Execution and delivery of this Agreement by exchange of facsimile copies bearing the facsimile signature of a party hereto shall constitute a valid and binding execution and delivery of this Agreement by such party. Such facsimile copies shall constitute enforceable original documents.

10.13Expenses. Each of the parties agrees to pay its own expenses in connection with the transactions contemplated by this Agreement, including without limitation legal, consulting, accounting and investment banking fees, whether or not such transactions are consummated.

10.14Consents. Whenever this Agreement requires or permits consent by or on behalf of any party hereto, such consent shall be given in writing.

10.15Headings. The article and section headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.

10.16Waiver of Trial by Jury. EACH PARTY HEREBY WAIVES, IRREVOCABLY AND UNCONDITIONALLY, TRIAL BY JURY IN ANY ACTION BROUGHT ON, UNDER OR BY VIRTUE OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY OF THE DOCUMENTS EXECUTED IN CONNECTION HEREWITH, THE PROPERTY, OR ANY CLAIMS, DEFENSES, RIGHTS OR SET-OFF OR OTHER ACTIONS PERTAINING HERETO OR TO ANY OF THE FOREGOING.

10.17Confidentiality.

(a)Buyer shall use is best efforts, and cause its attorneys, representatives and consultants (hereinafter collectively referred to as the “Buyer Parties”) to use their best efforts, to use all information, documents, surveys, leases and other materials provided to them by the Seller hereunder (hereinafter collectively referred to as the “Due Diligence

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Materials”) exclusively for the purpose of evaluating the merits of a possible purchase of the Property as contemplated by this Agreement and not for any other purpose whatsoever. Buyer further agrees, except as may be required by applicable law, that it will not disclose any Due Diligence Materials or use them to the detriment of any Seller.

(b)In the event this Agreement is terminated prior to the consummation of the purchase and sale contemplated hereunder, all Due Diligence Materials and all copies thereof will be returned to Seller promptly. All analyses, compilation, studies or other documents prepared by or for Buyer and reflecting any Due Diligence Material or otherwise based thereon will be (at Buyer’s option) either (i) destroyed or (ii) retained by Buyer in accordance with the confidentiality restrictions set forth in this Section 10.17.

(c)Buyer acknowledges that the Due Diligence Materials are proprietary in nature and that Seller would suffer significant and irreparable harm in the event of the misuse or disclosure of the Due Diligence Materials. Without affecting any other rights or remedies that either party may have, Buyer acknowledges and agrees that Seller shall be entitled to seek the remedies of injunction, specific performance and other equitable relief for any breach or threatened breach of the provisions of this Agreement relating to confidentiality by any Buyer Party.

(d)Buyer hereby indemnifies and holds harmless Seller from and against all loss, liability, claim, damage and expense arising out of any breach of this Section 10.17 by Buyer or by any Buyer Party.

(e)Prior to Closing neither party shall issue any press release or public statement with respect to the transactions contemplated by this Agreement without the prior consent of the other party, except to the extent such release or statement is required by law or the regulations of the Securities and Exchange Commission or the New York Stock Exchange, and (ii) after Closing, any such release or statement issued by Seller or Buyer shall be subject to the review and approval of the other respective party (which approval shall not be unreasonably withheld). If Seller or Buyer is required by law to issue a release or statement, such party shall, at least two (2) Business Days prior to the issuance of same, deliver a copy of the proposed release to the other party for its review.

(f)This Section 10.17 shall survive Closing and any termination of this Agreement.

10.18Drafts not an Offer to Enter into a Legally Binding Contract. The submission of a draft, or a marked up draft, of this Agreement by one party to another is not intended by either party to be an offer to enter into a legally binding contract with respect to the purchase and sale of the Property. The parties shall be legally bound with respect to the purchase and sale of the Property pursuant to the terms of this Agreement only if and when the parties have been able to negotiate all of the terms and provisions of this Agreement in a matter acceptable to each of the parties in their respective sole discretion, including, without limitation, all of the Exhibits hereto, and Seller and Buyer have fully executed and delivered to each other a counterpart of this Agreement, including, without limitation, all Exhibits hereto.

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10.19Exculpation. This Agreement and all documents, agreement, understandings, and arrangements relating to this transaction have been executed by the undersigned in his capacity as Managing Member of Coram Property Development LLC, and neither the officer executing this Agreement nor the members, managers or officers of the Seller shall be bound or have any personal liability hereunder. Neither Seller, on the one hand, or Buyer, on the other hand, will seek recourse or commence any action against the officer of the other executing this Agreement or any of the members, managers or officers of the other, or any of their personal assets, for the performance or payment of any obligation hereunder or thereunder. The foregoing shall also apply to any future documents, agreement, understandings, arrangements and transactions between or among the parties.

10.20Intentionally Deleted.

10.21Business Day. As used herein, the term Business day means any day other than a Saturday, Sunday and any other day which is a legal holiday in the State of Connecticut on which offices of the State of New York are routinely scheduled to be closed.

10.22Tax Free Exchange (a) Seller reserves the right to include this transaction as part of a tax-deferred exchange under Section 1031 of the Code for the benefit of such Seller, so long as the same is at no cost, expense or liability to Purchaser. Each member of Seller expressly reserves the right to assign, on or before the Closing Date, its rights (but not its obligations) hereunder to a “Qualified Intermediary” as defined in, and provided for, in IRC Reg. 1.1031(k)-1(g)(4). Purchaser agrees to execute any and all documents as are reasonably necessary in connection with such exchange, provided that the closing of this transaction for the conveyance of the Premises shall not be contingent upon or subject to the completion of such exchange. In connection herewith, and for the purpose of engaging in such an exchange, each member of Seller may make such transfers prior to the Closing of its interest in the Premises or in such Seller to its shareholders, partners (general or limited), members and/or principals in their individual capacities as may be required by such member of Seller for the purpose of holding title to the Premises, provided that any such transfer shall be subject to the terms of this Contract and shall not in any way alter or modify the obligations of such member of Seller hereunder. In the event of any such transfer, Purchaser acknowledges that the shareholders, partners (general or limited), members, principals of such member of Seller shall not, by virtue of such transfer accept or consent to any personal liability under the terms of this Contract and that Seller shall remain solely liable for any obligations contained herein regardless of any such transfer.

(b) Purchaser reserves the right to include this transaction as part of a tax-deferred exchange under Section 1031 of the Code for the benefit of Purchaser, so long as the same is at no cost, expense or liability to Seller. Purchaser expressly reserves the right to assign, on or before the Closing Date, its rights (but not its obligations) hereunder to a “Qualified Intermediary” as defined in, and provided for, in IRC Reg. 1.1031(k)-1(g)(4). Seller agrees to execute any and all documents as are reasonably necessary in connection with such exchange, provided that the closing of this transaction for the

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conveyance of the Premises shall not be contingent upon or subject to the completion of such exchange.

[Remainder of this page intentionally left blank]

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IN WITNESS WHEREOF, the parties hereto have set executed or caused their duly authorized representatives to execute this Agreement of Purchase and Sale as of the day and year first written above.

SELLER:
CORAM PROPERTY DEVELOPMENT
LLC		]
By:	/s/ Louis L. Ceruzzi, Jr.,
Louis L. Ceruzzi, Jr.,
BUYER:
INLAND REAL ESTATE ACQUISITIONS, INC.
By:	/s/ G. Joseph Cosenza
G. Joseph Cosenza, President

The undersigned hereby joins in this Agreement solely in its capacity as Escrow Agent and solely to evidence its agreement to be bound by the terms of Sections 1.2(b)and (d) hereof and acknowledge receipt of the $400,000.00 Good Faith Deposit.

Chicago Title Insurance Company
By:	/s/ Nancy Castro

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EX-10.481

Exhibit 10.481

ASSIGNMENT

This Assignment is made as of the 28^th day of December, 2004 by INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation (“Assignor”) to and for the benefit of INLAND WESTERN PHENIX CITY, L.L.C., a Delaware limited liability company (“Assignee”).

Assignor does hereby sell, assign, transfer, set over and convey unto Assignee all of its right, title and interest as Buyer under into that certain Real Estate Sale Agreement for the purchase and sale of a Shopping Center dated as of November 15, 2004, as amended and entered into by Regency Realty Group, Inc., a Florida corporation, as Seller, and Assignor, as Buyer (collectively,  the “Agreement”), for the sale and purchase of the property described by the Agreement, located in Phenix City, Alabama.

Assignor represents and warrants that it is the Buyer under the Agreement, and that it has not sold, assigned, transferred, or encumbered such interest in any way to any other person or entity. By acceptance hereof, Assignee accepts the foregoing assignment and agrees, from and after the date hereof, to (i) perform all of the obligations of Buyer under the Agreement, and (ii) indemnify, defend, protect and hold Assignor harmless from and against all claims and liabilities arising under the Agreement.

IN WITNESS WHEREOF, Assignor and Assignee have executed this instrument as of the date first written above.

ASSIGNOR:
INLAND REAL ESTATE ACQUISITIONS, INC. an Illinois corporation
By:	/s/ Jason A. Lazarus
Name:		Jason A. Lazarus
As Its:		V.P.
ASSIGNEE:
INLAND WESTERN PHENIX CITY, L.L.C., a Delaware limited liability company
By: Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
By:	[ILLEGIBLE]
Name:		[ILLEGIBLE]
As Its:		[ILLEGIBLE]

EX-10.482

Exhibit 10.482

FIRST AMENDMENT TO REAL ESTATE AGREEMENT

Phenix Crossing, Phenix City, Alabama

THIS AGREEMENT is made as of this 20th day of December, 2004, between INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation (referred to herein as “Buyer”), and REGENCY REALTY GROUP, INC., a Florida corporation (referred to herein as “Seller”).

RECITALS

A.The parties heretofore executed that certain Real Estate Sale Agreement with an Effective Date of November 15, 2004 (the “Agreement”), for the purchase and sale of property located in Lee County, Alabama, as more particularly described in the Agreement (the “Property”).

B.Buyer and Seller wish to further amend certain terms of the Agreement as set forth herein.

C.Except as otherwise expressly provided for herein, capitalized terms used herein shall have the same meaning as set forth in the Agreement.

NOW, THEREFORE, in consideration of the mutual agreements herein, and other good and valuable consideration, including the sum of Ten Dollars ($10.00) paid by each party to the other, the receipt of which is hereby acknowledged, the parties promise and agree to amend the Agreement as follows:

1.The Buyer hereby acknowledges that the Buyer has completed its due diligence review of the Property, subject only to the title and survey matters set forth in the December 20, 2004 letter from Charles J. Benvenuto, P.C. delivered to Seller. Therefore, the Agreement is modified to provide that upon the expiration of the Inspection Period, the Earnest Money Deposit (as increased pursuant to the terms of the Agreement) shall be non-refundable, other than in the event the title and survey matters are not resolved to the satisfaction of Buyer (not to be unreasonably withheld), in which event the Buyer shall have the right to terminate the Agreement and receive a return of the Earnest Money Deposit.

2.At Closing, the Buyer shall receive a credit against the Purchase Price in the aggregate amount of $18,000.00, which shall consist of (i) $15,500.00 credit for recovery from slippage in the NOI for the Property, and (ii) $2,500.00 for deferred maintenance on the Property.

3.Section 3.3 of the Agreement is modified to provide that the Closing shall take place at the offices of Escrow Agent on December 28, 2004.

4.The remaining terms and conditions of the Agreement remain in full force and effect.

5.This Amendment may be executed by the parties hereto individually or in combination, in one or more counterparts, each of which shall be an original and all of which will constitute one and the same Amendment.

6.The parties hereby agree that an executed facsimile copy of this Amendment may be transmitted to either party and be deemed an original for purposes hereof.

7.As modified herein, all terms and conditions in the Agreement shall remain in full force and effect.

IN WITNESS WHEREOF, the parties have executed this Amendment as of the day and year first above written.

“SELLER”
REGENCY REALTY GROUP, INC., a
Florida corporation
By:	/s/ John R. Ibach
Name:			John R. Ibach
Title:		Attorney for and on behalf of Seller
				Date:	12/20, 2004
“BUYER”
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By:	/s/ [ILLEGIBLE]
Name:			[ILLEGIBLE]
Title:		[ILLEGIBLE]
Date:		12/20, 2004

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REAL ESTATE SALE AGREEMENT

(Existing Shopping Center)

THIS AGREEMENT is made as of the 15^th day of November, 2004, between INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation, and its permitted nominee (referred to herein as “Buyer”), and REGENCY REALTY GROUP, INC., aFlorida corporation (referred to herein as “Seller”).

Background

Buyer wishes to purchase the following shopping center in Alabama, but specifically excluding the outparcels being retained by Seller, identified as:

Center	City	County
Phenix Crossing	Phenix City	Russell

Seller wishes to sell the said shopping center to Buyer;

In consideration of the mutual agreements herein, and for other good and valuable consideration, the receipt of which is hereby acknowledged, Seller agrees to sell to Buyer and Buyer agrees to purchase the said shopping center, subject to the following terms and conditions:

1. DEFINITIONS

As used in this Agreement, the following terms shall have the following meanings:

1.1Agreement means this Real Estate Sale Agreement, which shall supercede all prior agreements and understandings between Buyer and Seller concerning the sale and purchase of the Shopping Center.

1.2Broker means Staubach Retail Services Southeast, L.L.C., a licensed real estate broker, whose address is 3400 Peachtree Road, N.E., Suite 1100, Atlanta, Georgia 30326, the responsible broker being Thomas Statham.

1.3Buyer means Inland Real Estate Acquisitions, Inc., and its permitted nominee.

1.4Closing means generally the execution and delivery of those documents and funds necessary to effect the sale of the Shopping Center to Buyer.

1.5Closing Date means the date on which the Closing occurs.

1.6Contracts means all service contracts and similar agreements concerning the furnishing of goods and services to Seller with respect to the Shopping Center.

1.7Earnest Money Deposit means the deposits delivered by Buyer to Escrow Agent under Section 2.2 of this Agreement.

1.8Effective Date means the next business day following the date upon which the fully executed Agreement has been executed by the Escrow Agent.

1.9Environmental Law means any current legal requirement in effect at the Closing Date pertaining to (a) the protection of health, safety, and the indoor or outdoor environment, (b)

the conservation, management, protection or use of natural resources and wildlife, (c) the protection or use of source water and groundwater, (d) the management, manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal, release, threatened release, abatement, removal, remediation or handling of, or exposure to, any Hazardous Material or (e) pollution (including any release to air, land, surface water, and groundwater); and includes, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq., Solid Waste Disposal Act, as amended by the Resource Conservation Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42 USC 6901 et seq., Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act of 1966, as amended, 42 USC 7401 et seq., Toxic Substances Control Act of 1976,15 USC 2601 et seq., Hazardous Materials Transportation Act, 49 USC App. 1801, Occupational Safety and Health Act of 1970, as amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et seq., Emergency Planning and Community Right-to-Know Act of 1986, 42 USC App. 11001 et seq., National Environmental Policy Act of 1969, 42 USC 4321 et seq., Safe Drinking Water Act of 1974, as amended by 42 USC 300(f) et seq., and any similar, implementing or successor law, any amendment, rule, regulation, order or directive, issued thereunder.

1.10Escrow Agent means the firm identified as the Escrow Agent in Section 10.2 of this Agreement.

1.11Hazardous Material means petroleum, petroleum products, drycleaning solvents and other hazardous or toxic substances as defined in or regulated by any Environmental Law in effect at the pertinent date or dates.

1.12Improvements means all buildings, structures or other improvements owned by Seller, (but not those, if any, owned by tenants) situated on the real property on which the Shopping Center is located, if any.

1.13Inspection Period means the period of time which begins on the Effective Date and ends on the thirty fifth (35^th) day after the Effective Date.

1.14Leases means all leases and other occupancy agreements permitting persons to lease or occupy any portion of the Shopping Center.

1.15Major Tenants with respect to the Shopping Center, are those identified as such on Exhibit 1.15 attached hereto.

1.16Materials means all plans, drawings, specifications, soil test reports, environmental assessments and similar documents concerning the Shopping Center which are in Seller’s possession.

1.17Permitted Exceptions means only the following interests, liens and encumbrances:

(a)Liens for ad valorem taxes not payable on or before Closing;

(b)The exceptions noted with respect to the Shopping Center in the Existing Title Policy and on the Existing Survey, it being understood, however, that Buyer shall have the Inspection Period within which to determine whether

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any such item will materially and adversely affect Buyer’s contemplated use of the Property.

(c)The Leases;

(d)A standard form of Declaration of Restrictions, Covenants, and Conditions and Grant of Easements required by Publix, the final form of which shall be negotiated in good faith between the Buyer and Seller during the Inspection Period, to govern the Property and the adjacent Outparcels; and

(e)Covenants, restrictions, easements and other matters of record, it being understood, however, that Buyer shall have the Inspection Period within which to determine whether any such item will materially and adversely affect Buyer’s contemplated use of the Property.

1.18Personal Property means all (a) sprinkler, plumbing, heating, air-conditioning, electric power or lighting, incinerating, ventilating and cooling systems, with each of their respective appurtenant furnaces, boilers, engines, motors, dynamos, radiators, pipes, wiring and other apparatus, equipment and fixtures, elevators, partitions, fire prevention and extinguishing systems owned by Seller, located in or on the Improvements, (b) the Materials, (c) other tangible personal property used in connection with the ownership or operation of the Improvements, provided the same are now owned or are acquired by Seller, prior to the Closing, and (d) all trade names, franchises, licenses, permits, easements, development rights and approvals, deposits, credits, petroleum and mineral interests and royalties, air and water rights, construction and product warranties, the Leases (including all security deposits and guarantees given with respect thereto), Contracts and Materials, and all other intangibles owned by or for the benefit of Seller in connection with the Shopping Center, including the rights of Seller in and to the name of the Shopping Center: “Phenix Crossing.” The previous provisions to the contrary notwithstanding, the term Personal Property shall specifically exclude all entrance, exit and leasing signs referencing “Regency”, “Regency Centers” or affiliated entities.

1.19Property means collectively the Real Property, the Improvements and the Personal Property, constituting the Shopping Center. It is sometimes used with the same meaning as “Shopping Center” when the context so requires.

1.20Purchase Price means the consideration agreed to be paid by Buyer for the purchase of the Shopping Center as set forth in Section 2.1 (subject to prorations and adjustments as provided herein).

1.21REA Estoppel Letter. REA estoppel certificate, in the form attached hereto as Exhibit 1.21, or such other form reasonably approved by Buyer, from each party to any declaration, reciprocal easement agreement, or like agreement benefiting and/or burdening the Shopping Center.

1.22Real Property means the lands and easements more particularly described in the Existing Title Policy with respect to the Shopping Center, but specifically excluding the outparcels, which are being retained by the Seller. The Existing Title Policy for the Shopping Center has been or will be delivered to Buyer.

1.23Rent Roll means the Leases enumerated with respect to the Shopping Center, as listed on Exhibit 1.23 of this Agreement, identifying with particularity the space leased by each

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tenant, the square footage and applicable rent, common area maintenance, tax and other reimbursements, and similar information concerning each of the Leases, together with a separate certificate setting forth security deposits held.

1.24Seller means Regency Realty Group, Inc., a Florida corporation.

1.25Seller Financial Statements means the statements of income and expense prepared by Seller for the Shopping Center, as, of and three (3) calendar years next preceding the date of this Agreement and all monthly and quarterly reports of income and expense prepared by Seller for the Shopping Center for any such period beginning after the latest of such calendar years, and ending prior to Closing.

1.26Shopping Center means the shopping center identified on the initial page hereof.

1.27Survey means a map of a staked survey of the Real Property and Improvements constituting the Shopping Center prepared by the surveyor who prepared the Existing Survey for the Shopping Center, such Survey to comply with the ALTA/ACSM Survey Requirements 1999 for ALTA/ACSM land title surveys jointly established and adopted in 1999, by the American Land Title Association, American Congress on Surveying and Mapping, and the National Society of Professional Engineers, including optional items 1, 2, 3, 4, 6, 7(a, b, and c), 8, 9, 10 and 11 of Table “A” thereof, which meets the accuracy standards (as adopted by ALTA and ACSM and in effect on the date of the Survey). The surveyor shall prepare and deliver to Buyer elevation certificates for each building located within the Shopping Center that is located within a flood zone. The Survey shall be certified to Buyer, Seller, and the Title Company. The existing survey for the Shopping Center has been or will be delivered to Buyer and is identified on Exhibit 1.27 attached hereto (“Existing Survey”).

1.28Tenant Estoppel Letter means a letter or other certificate from a tenant certifying as to certain matters regarding such tenant’s Lease, in substantially the same form as Exhibit 1.28 of this Agreement, or in the case of national or regional “credit” tenants, the form customarily used by such tenant. In any case, the form of Tenant Estoppel Letter which the particular tenant is obligated to give under its lease shall be deemed acceptable, notwithstanding any other requirement of this Agreement.

1.29Title Company means Chicago Title Insurance Company.

1.30Title Defect means any exception in a Title Insurance Commitment or any matter disclosed by a new Survey to which Buyer objects, other than a Permitted Exception (recognizing that Buyer has the right to approve of any title exception and the Survey in accordance with the terms hereof).

1.31Title Insurance means an Alabama promulgated form of owners policy of title insurance in the amount of the Purchase Price insuring marketable fee simple title to the Shopping Center in Buyer, subject only to the Permitted Exceptions (as approved by Buyer), issued by the Title Company. Should Buyer or Buyer’s lender require special endorsements to any policy, the cost of such endorsement(s) shall be borne by Buyer. Buyer has received or will receive an existing title insurance policy for the Shopping Center, which is identified on Exhibit 1.31 attached hereto (“Existing Title Policy”).

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1.32Title Insurance Commitment means a preliminary title report whereby the Title Company agrees to issue the Title Insurance to Buyer, together with copies of all instruments which are exceptions noted therein or conditions to be satisfied.

2. PURCHASE PRICE AND PAYMENT

2.1Purchase Price; Payment.  The total Purchase Price for the Property (subject to adjustment as provided herein) shall be $10,064,802.00. The Purchase Price shall be payable in cash, before 2:00 P.M. (Charlotte, NC time) on the date of Closing.

2.2Earnest Money Deposit.  An initial earnest money deposit in the amount of $100,000.00 shall be deposited with Escrow Agent by Buyer within two (2) business days after the Effective Date. This Agreement may be terminated by Seller by notice to Buyer if the said deposit is not delivered to Escrow Agent by such deadline(s). All deposits made as earnest money, shall be deemed included within the meaning of the term Earnest Money Deposit for all purposes. The Earnest Money Deposit shall be held as specifically provided in this Agreement and, at Buyer’s option, shall either be applied to the Purchase Price at Closing, or released to Buyer upon Closing (with the full Purchase Price having been paid).

2.3Tax Prorations. Ad valorem taxes and assessments shall be prorated at Closing as of midnight of the day preceding the Closing Date, based upon the highest discounted rate for ad valorem taxes for the year of Closing. If the amount of the taxes for the year of closing are not available on the Closing Date, such taxes will be prorated based upon the highest discounted rate for the immediately preceding calendar year. If applicable, Seller or Buyer shall pay the Closing year taxes on the date necessary to obtain the highest discounted rate available. If necessary, on or before March 31 of the year following Closing, Seller shall provide to Buyer a final tenant reconciliation for the year of closing and a final proration between Seller and Buyer shall then be made with the prorations as of midnight of the day preceding Closing, after receipt and application of all tenant reimbursements, giving credit to Seller and Buyer based on amounts actually received from the tenants, and the actual taxes paid by Buyer.

2.4Other Prorations. If the Closing occurs during a month when one or more tenants have not yet paid rent, the rent shall be prorated by giving Buyer a credit at Closing for a prorated amount for the period between the Closing Date and the last day of the month in which Closing occurs. Other matters of income and expense, if any, and other items customarily prorated in transactions of this kind shall be prorated as of midnight of the day preceding the Closing Date.

2.5Further Adjustments to the Purchase Price.  The Purchase Price shall be further adjusted as of midnight of the day preceding the Closing Date by subtracting the amount of security deposits, prepaid rents from and credit balances of tenants under the Leases. Any rents, percentage rents or tenant reimbursements payable by tenants after the Closing Date but applicable to periods prior to the Closing Date shall be remitted to Seller by Buyer within thirty (30) days after receipt, except that Major Tenant (as described on Exhibit 1.15) reimbursements due for ad valorem property taxes which are paid by any Major Tenant on an annual basis shall be prorated as of the Closing Date, giving credit to Seller for the prorated amount of the projected amount to be paid for the same for the period from January 1 of the year of Closing and Closing Date. Buyer shall undertake to collect delinquencies in the ordinary course of its business, but shall have no obligation to institute any litigation. Seller may separately institute litigation for sums due it from tenants, but shall not attempt to evict any tenant. Should Buyer collect any delinquent rents or other sums which cover periods prior to the Closing Date and for

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which Seller received no proration or credit, Buyer shall remit same to Seller within thirty (30) days after receipt. Buyer will not interfere in Seller’s efforts to collect sums due it prior to the Closing. Seller will remit to Buyer within thirty (30) days after receipt any rents, percentage rents or tenant reimbursements received by Seller after Closing which are attributable to periods occurring on or after the Closing Date. Undesignated receipts after Closing of either Buyer or Seller from tenants in the Shopping Center shall be applied first to then current rents and reimbursements for such tenant(s), then to delinquent rents and reimbursements attributable to post-Closing Date periods, and then to pre-Closing Date periods.

2.6Closing Costs.

(a)Seller shall pay:

(1)The costs, if any, of satisfying any liens, curing title defects (including, if Seller elects to cure the defect or is required to cure in accordance with Section 7 of this Agreement, the cost and expense of title policy endorsements required to accomplish same, if any) and recording any curative title documents;

(2)A credit against the Purchase Price in the amount of $94,160.00, which represents market rent and reimbursements for a twelve (12) month period, tenant improvement costs and leasing commissions for the vacant suites 8 and 11 within the Shopping Center;

(3)The brokerage commission payable to Broker incurred in connection with the sale of the Shopping Center to Buyer, if and when this transaction closes, in accordance with a separate written agreement between Broker and Seller; and

(4)Seller’s attorneys’ fees relating to the sale of the Property.

(b)Buyer shall pay:

(1)The costs of Buyer’s due diligence investigations;

(2)The costs of the Phase I environmental site assessment to be obtained by Buyer, if any;

(3)Transfer taxes imposed upon the transactions contemplated hereby;

(4)The costs of Title Insurance;

(5)The costs of the new Survey;

(6)The costs, fees and taxes attributable to Buyer’s financing, if any;

(7)The costs of recording the closing documents to be recorded; and

(8)Buyer’s attorneys’ fees.

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3. INSPECTION PERIOD AND CLOSING

3.1Inspection Period.  Buyer shall have the Inspection Period within which to physically inspect the Property and conduct its due diligence related thereto, and Seller agrees to provide Buyer with the documentation described upon the Due Diligence Checklist attached hereto as Exhibit 3.1, and made a part hereof. Buyer and Buyer’s officers, employees, consultants, attorneys and other authorized representatives shall have the right to reasonable access to the Property and to all records of Seller related thereto (including without limitation title information, property leasing files, surveys, environmental assessment reports and other information concerning the condition of the Property), at reasonable times during the Inspection Period, for the purpose of inspecting the Property, conducting a Phase I Environmental Site Assessment in accordance with ASTM standards only, reviewing the books and records of Seller concerning the Property, evaluating the leasing and physical condition of the Property, conducting tenant interviews and otherwise conducting its due diligence review, provided however that Buyer shall not be permitted to obtain soil, or groundwater samples from the Property for the purpose of conducting laboratory analysis on such samples. Seller shall give Buyer any authorizations which may be required by Buyer in order to gain access to records or other information pertaining to the Property or the use thereof maintained by any third party, governmental or quasi-governmental authorities or organizations. Buyer hereby expressly agrees that unless requested by Seller in writing to disclose such results, Buyer shall maintain the confidentiality of its Phase I report and any other environmental investigation or due diligence and specifically, shall not disclose such information to Seller, any third party or any governmental entity unless required to do so by law. Buyer hereby agrees to indemnify and hold Seller harmless from any damages, liabilities or claims for property damage or personal injury and mechanics liens caused by or arising from Buyer and its agents and contractors in the conduct of such inspections and investigations. Prior to any entry upon any Property by Buyer or any officer, employee, agent, consultant or contractor of Buyer, Buyer shall provide Seller with an insurance certificate reflecting liability insurance coverage of not less than $1,000,000 and naming Seller as an additional insured and to restore the Property to the condition that existed prior to such inspections or investigations. Buyer’s indemnity and insurance obligations shall survive the Closing or early termination hereof. Seller shall cooperate with and assist Buyer in making such inspections, interviews and reviews. Buyer agrees that it will not interview, converse or communicate with any tenant without affording Seller reasonable notice and an opportunity to be present and furnishing Seller a copy of each and every written communication to or from a tenant promptly upon giving or receiving same.

3.2Buyer’s Termination Right.  Within the Inspection Period, Buyer may elect (for any reason, or for no reason) whether or not to go forward with this Agreement to Closing, which election shall be made by notice to Seller and Escrow Agent given within the Inspection Period. If such notice is not timely given, this Agreement and all rights, duties and obligations of Buyer and Seller hereunder, except any which expressly survive termination such as Buyer’s indemnity and insurance obligations in Section 3.1, shall terminate, whereupon Escrow Agent shall promptly return to Buyer the Earnest Money Deposit. Buyer shall return to Seller the materials and information furnished to Buyer by Seller, at no cost to Seller, after the Buyer’s receipt of the Earnest Money Deposit. After the conclusion of the Inspection Period the Earnest Money Deposit shall not be refundable except upon terms otherwise expressly set forth herein.

3.3Time and Place of Closing. The Closing shall take place at the offices of Escrow Agent on the tenth (10^th) day after the end of the Inspection Period. By providing Buyer with written notice, no later than three (3) business days prior to Closing, Seller shall have the right to

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extend the date of Closing by thirty (30) days if Seller has not obtained all required Tenant Estoppel Letters. At any time during such thirty (30) day extension period, Seller may provide Buyer with written notice that all Tenant Estoppel Letters have been obtained, and the Closing shall be set at a time mutually agreeable to Buyer and Seller within the next five (5) business days following such written notice.

4. WARRANTIES, REPRESENTATIONS AND COVENANTS OF SELLER

Seller, in its capacity as owner of the Shopping Center, warrants and represents, as of the Effective Date and to the best knowledge of Seller and, where indicated, covenants and agrees, as follows:

4.1Organization; Authority. Seller is duly organized, validly existing and in good standing under the laws of the state of its organization. Seller is authorized to transact business in the state in which the Shopping Center is located. Seller has full power and authority to enter into and perform this Agreement in accordance with its terms.

4.2Title. Seller is the owner in fee simple of the Shopping Center.

4.3Litigation. There is no litigation or proceeding pending, or to the best of Seller’s knowledge, threatened against Seller relating to the Shopping Center, except as set forth on Exhibit 4.3 attached hereto.

4.4Leases. There are no Leases affecting the Shopping Center other than those listed on the Rent Roll. The copies of the Leases, which will be made available to Buyer during the course of the Inspection Period, will be, to the best knowledge of Seller, true, correct and complete copies thereof. Between the end of the Inspection Period and the Closing Date, Seller will not terminate or modify any of the Leases, enter into any new Leases or grant additional renewal rights to any tenant, without the consent of Buyer. During the Inspection Period Seller will advise Buyer of the terms of any proposed new Lease or material modification of any existing Lease, or of any termination. No rent or reimbursement has been paid more than one (1) month in advance. No security deposit has been paid, except as stated on a separate certified report from Seller. No tenants under the Leases are entitled to interest on any security deposits.

4.5Financial Statements.  Each of the Seller Financial Statements delivered or to be delivered to Buyer hereunder has or will have been prepared in accordance with the books and records of Seller and presents fairly in all material respects the results of operations for the Shopping Center as of and for the periods to which they relate.

4.6Contracts.  Except as stated on Exhibit 4.6 attached hereto, which is a list of all service contracts in force and effect as of the date hereof, there are no Contracts affecting the Shopping Center, which extend beyond the Closing Date and which, if terminated in accordance with their terms, would bind Buyer or encumber the Shopping Center more than thirty (30) days after such termination. All Contracts are in full force and effect, and all obligations of Seller under the Contracts required to be performed to date have been performed in all material respects; no party to any Contract has asserted any claim of default or offset against Seller with respect thereto and no event has occurred or failed to occur, which would in any way affect the validity or enforceability of any such Contract. The copies of the Contracts to be delivered to Buyer will be true, correct and complete copies thereof. Seller will fulfill its obligations under all Contracts, and agrees that between the end of the Inspection Period and the Closing will not terminate or modify any Contracts or enter into any new Contract without the consent of Buyer

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(not to be unreasonably withheld) except such obligations as are freely terminable without penalty upon not more than thirty (30) days’ written notice.

4.7Maintenance and Operation of Shopping Center.  From and after the date hereof and until the Closing, Seller covenants to keep and maintain and operate the Shopping Center substantially in the manner in which it is currently being maintained and operated and covenants not to cause or permit any waste nor undertake any action with respect to the operation thereof outside the ordinary course of business without Buyer’s prior written consent, not to be unreasonably withheld. Seller covenants not to remove from the Improvements or the Real Property any article included in the Personal Property, without replacing the same with a replacement of the same general quality and/or type. Seller covenants to maintain such casualty and liability insurance on the Property as is presently being maintained.

4.8Permits and Zoning; Compliance with Law. To the best knowledge of Seller, the Shopping Center is properly zoned for its present use without variance or grandfathering as a nonconforming use.

4.9Rent Roll; Tenant Estoppel Letters.  The Rent Roll is true and correct in all material respects. After the Inspection Period ends without termination by Buyer, Seller shall use commercially reasonable efforts to obtain current Tenant Estoppel Letters from all Tenants under the Leases.

4.10Condemnation.  To the best knowledge of Seller, neither the whole nor any portion of the Shopping Center, including access thereto, is subject to temporary requisition of use by any governmental authority or has been condemned, or taken in any proceeding similar to a condemnation proceeding, nor is there now pending or formally threatened any condemnation, expropriation, requisition or similar proceeding against the Property or any portion thereof. Seller has received no notice nor has any other knowledge that any such proceeding is contemplated.

4.11Consents and Approvals; No Violation. Neither the execution and delivery of this Agreement by Seller nor the consummation by Seller of the transactions contemplated hereby will (a) conflict with or breach any provision of the organizational documents of Seller; (b) violate or breach any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, any note, bond, mortgage, indenture or deed of trust to which Seller is a party; or (c) violate any order, writ, injunction, decree, judgment, statute, law or ruling of any court or governmental authority applicable to Seller.

4.12Environmental Matters.  Except for uses permitted by applicable law, to the best of Seller’s knowledge Seller has used no Hazardous Material at the Shopping Center, nor has Seller knowingly permitted any other person to do so, except as reflected by the environmental assessment reports that have been previously been delivered to Buyer as part of Buyer’s due diligence as listed on Exhibit 4.12 attached hereto or as otherwise set forth on Exhibit 4.12 attached hereto.

4.13REA Estoppel Letters.  After the Inspection Period ends without termination by Buyer, Seller shall use commercially reasonable efforts to obtain current REA Estoppel Letters from all REA parties under any declaration or reciprocal easement agreement. Failure to obtain such REA Estoppel Letters shall not be a default under this Agreement or a condition to Buyer’s obligation to close.

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4.14Foreign Investment and Real Property Tax Act.  Seller is not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code, or under any comparable state statutes which are applicable to this transaction. At Closing Seller will execute and deliver to Buyer an affidavit regarding such matters.

4.15Seller’s Knowledge.  When used herein, the term “to the best of Seller’s knowledge” or “to the best of knowledge of Seller” shall mean only the actual, current, conscious knowledge, without inquiry (not constructive or implied knowledge) of Seller’s Representative, Barry Argalas.

5. WARRANTIES AND REPRESENTATIONS OF BUYER

5.1Buyer hereby warrants and represents that Buyer is an entity which is duly organized, validly existing and in good standing under the laws of the state of its organization. Buyer will, prior to Closing, be authorized to transact business in the state in which the Shopping Center is located. Buyer has full power and authority to enter into and perform this Agreement in accordance with its terms.

5.2Disclaimer.  BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER HAS NOT MADE, AND SPECIFICALLY NEGATES AND DISCLAIMS, ANY REPRESENTATIONS, WARRANTIES (OTHER THAN THE SPECIAL WARRANTY OF TITLE CONTAINED IN THE SPECIAL WARRANTY DEED TO BE DELIVERED IN ACCORDANCE WITH THIS AGREEMENT), COVENANTS OR AGREEMENTS OF ANY KIND OR CHARACTER REGARDING ANY ASPECT OF THE SHOPPING CENTER, INCLUDING, WITHOUT LIMITATION: (A) THE VALUE,  NATURE,  QUALITY OR PHYSICAL CONDITION THEREOF, (B) THE INCOME TO BE DERIVED THEREFROM, (C) THE SUITABILITY OF THE SHOPPING CENTER FOR ANY ACTIVITY OR USE WHICH BUYER OR ANY TENANT MAY CONDUCT THEREON, (D) THE COMPLIANCE OF THE SHOPPING CENTER OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE SHOPPING CENTER, (F) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE SHOPPING CENTER, OR (G) COMPLIANCE OF THE SHOPPING CENTER WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING THE EXISTENCE THEREIN, THEREON OR THEREUNDER OF HAZARDOUS MATERIALS. ADDITIONALLY, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO PERSON ACTING ON BEHALF OF SELLER IS AUTHORIZED TO MAKE, AND BY EXECUTION HEREOF BUYER ACKNOWLEDGES THAT NO PERSON HAS MADE, ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT REGARDING THE SHOPPING CENTER OR THE TRANSACTIONS CONTEMPLATED HEREIN. BUYER ACKNOWLEDGES THAT, HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE SHOPPING CENTER, BUYER IS RELYING SOLELY ON ITS OWN INVESTIGATIONS AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER, OTHER THAN INFORMATION EXPRESSLY REQUIRED TO BE PROVIDED BY SELLER HEREUNDER. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT EXCEPT AS EXPRESSLY SET FORTH HEREIN TO THE MAXIMUM EXTENT PERMITTED BY LAW THE SALE PROVIDED FOR HEREIN ARE MADE ON AN “AS-IS, WHERE-IS” BASIS WITH ALL FAULTS. THE PROVISIONS OF THIS

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SECTION SHALL SURVIVE THE CLOSING OR ANY TERMINATION OF THIS AGREEMENT. FURTHERMORE, EXCEPT FOR ANY CLAIM THE BUYER MAY HAVE AS A RESULT OF THE BREACH BY THE SELLER OF ANY EXPRESS REPRESENTATION OR WARRANTY OF SELLER SET FORTH HEREIN, BUYER DOES HEREBY RELEASE AND FOREVER DISCHARGE SELLER, ITS DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, LEGAL REPRESENTATIVES, AGENTS AND ASSIGNS, FROM ANY AND ALL ACTIONS, CAUSES OF ACTION, CLAIMS AND DEMANDS FOR, UPON OR BY REASON OF ANY DAMAGE, LOSS OR INJURY WHICH HERETOFORE HAVE BEEN OR WHICH HEREAFTER MAY BE SUSTAINED BY BUYER RESULTING FROM OR ARISING OUT OF THE PRESENCE OF ANY HAZARDOUS MATERIALS OR OTHER ENVIRONMENTAL CONTAMINATION ON OR IN THE VICINITY OF THE PROPERTY, INCLUDING THE SOIL AND/OR GROUNDWATER (HEREINAFTER REFERRED TO AS THE “CLAIMS”). THIS RELEASE APPLIES TO ALL SUCH CLAIMS WHETHER THE ACTIONS CAUSING THE PRESENCE OF HAZARDOUS MATERIALS ON OR IN THE VICINITY OF THE PROPERTY OCCURRED BEFORE OR AFTER THE CLOSING. THIS RELEASE EXTENDS AND APPLIES TO, AND ALSO COVERS AND INCLUDES, ALL STATUTORY OR COMMON LAW CLAIMS THE BUYER MAY HAVE AGAINST THE SELLER. THE PROVISIONS OF ANY STATE, FEDERAL, OR LOCAL LAW OR STATUTE PROVIDING IN SUBSTANCE THAT RELEASES SHALL NOT EXTEND TO CLAIMS, DEMANDS, INJURIES OR DAMAGES WHICH ARE UNKNOWN OR UNSUSPECTED TO EXIST AT THE TIME, TO THE PERSON EXECUTING SUCH RELEASE, ARE HEREBY EXPRESSLY WAIVED.

5.3USA Patriot Act.

(a)(a)None of the funds to be used for payment by Buyer of the Purchase Price will be subject to 18 U.S.C. §§ 1956-1957 (Laundering of Money Instruments), 18 U.S.C. §§ 981-986 (Federal Asset Forfeiture), 18 U.S.C. §§ 881  (Drug Property Seizure), Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001, or the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (the “US Patriot Act”).

(b)(b)Buyer is not,and will not become, a person or entity with whom U.S. persons are restricted from doing business with under the regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of Treasury (including those named on OFAC’s Specially Designed and Blocked Persons list) or under any statute, executive order (including the September 24, 2001 Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism), the USA Patriot Act, or other governmental action.

6. POSSESSION; RISK OF LOSS

6.1Possession. Possession of the Shopping Center will be transferred to Buyer at the conclusion of the Closing, subject to the Permitted Exceptions.

6.2Risk of Loss.  All risk of loss to the Shopping Center shall remain upon Seller until the conclusion of the Closing. If, before Closing, any material and substantial portion (defined as damage in excess of $250,000) of the Shopping Center is damaged by fire or other

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casualty, or if any material and substantial portion of the Shopping Center is taken or formally threatened by eminent domain (defined as affecting any Shopping Center building, and/or any Shopping Center parking, if the same results in a noncompliance with zoning or impacts 10% or more of the total parking, and/or adversely impacts any access drive serving the Shopping Center), and/or violates the terms and conditions of any lease regarding minimum number of parking spaces or parking ratios, Seller shall, within ten (10) days of such damage or taking, notify Buyer thereof and Buyer shall have the option to:

(a)terminate this Agreement upon notice to Seller and Escrow Agent given within ten (10) business days after such notice from Seller; or

(b)proceed with the purchase of the Shopping Center, in which event Seller shall assign to Buyer all Seller’s right, title and interest in all amounts due or collected by Seller under any insurance policies (together with Seller’s payment to Buyer of any deductible thereunder) or as condemnation awards.

7. TITLE MATTERS

Seller has delivered or will deliver to Buyer promptly after the Effective Date hereof copies of the Existing Title Policy and Existing Survey, and within ten days of the Effective Date, Seller shall use diligent efforts to deliver to Buyer’s counsel new Title Insurance Commitment. Within five (5) days of receipt of the new title commitment, Buyer shall order a new Survey. Buyer will have ten (10) business days after its receipt of both the new Title Insurance Commitment and the new Survey, but no longer than the Inspection Period, within which to notify Seller in writing of any conditions, defects, encroachments or other objections to title or survey which are not acceptable to Buyer. Any matter disclosed by the Title Insurance Commitment (other than liens removable by the payment of money) or by the Survey which is not timely specified in Buyer’s written notice to Seller, shall be deemed a Permitted Exception. Seller shall use reasonable efforts to cure all objections to title or survey made by Buyer (“Title Objections”) by Closing, but shall not be obligated to cure any Title Objections, other than (i) those which are in the nature of a mortgage lien voluntarily imposed by Seller; (ii) a mechanic’s or construction lien; or (iii) other claim which can be cured by the payment of money, provided the amount of money to be paid to effect the cure does not exceed $5,000.00 and in no event shall Seller be obligated to institute any litigation to cure any Title Objections. If Seller elects not to cure a Title Objection, Seller shall notify Buyer in writing of such election. If any Title Objection is not cured by Closing, Buyer may (i) refuse to purchase the Shopping Center and terminate this Agreement and immediately receive a return of the Earnest Money Deposit; or (ii) waive such objection(s) and close the purchase of the Shopping Center, subject to the Title Objection(s), and without reduction of the Purchase Price.

8. CLOSING DELIVERIES

8.1Seller Deliveries. At Closing Seller shall deliver:

(a)A special warranty deed in proper form for recording, duly executed, witnessed and acknowledged, so as to convey to Buyer the fee simple title to the Shopping Center, subject only to the Permitted Exceptions;

(b)Originals, if available, or if not, true copies of the Leases and Contracts;

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(c)Assignments to Buyer of all Leases and all Contracts, containing an indemnity against breach of such instruments by Seller prior to the Closing Date and including all security deposits and other sums from tenants held by or for Seller with respect to the Leases, and containing a reciprocal indemnity from Buyer against breach of such instruments and claims made by tenants and others which arise from and after the Closing Date;

(d)A quitclaim bill of sale or assignment of all Personal Property and Materials;

(e)An updated Rent Roll certified by Seller;

(f)Tenant Estoppel Letters obtained by Seller, if not already delivered to Buyer, which must include those from all Major Tenants and seventy five percent (75.0%) by number of the other tenants who have signed leases for any portion of the Shopping Center, together with Seller’s estoppel (in the form required for the respective tenants) for each tenant not delivering an estoppel (i.e., to achieve 100% estoppel delivery to Buyer). If Seller delivers a Seller’s Estoppel Letter for any tenant and within ninety (90) days thereafter delivers a Tenant Estoppel Letter from such tenant in form required herein and containing the same provisions as are included in the Seller’s Estoppel, Seller will be released from any and all liabilities and obligations thereafter accruing under such Seller’s Estoppel Letter;

(g)An owner’s affidavit, non-foreign affidavit, non-tax withholding certificate and such other documents as may reasonably be required by the Title Company in order to effectuate the provisions of this Agreement and the consummation of the transactions contemplated herein;

(h)Resolutions or affidavits of Seller authorizing the transaction described herein;

(i)An executed audit representation letter in the form attached hereto as Exhibit 8.l(i), and made a part hereof;

(j)Letters to tenants signed by Seller, in the form attached hereto as Exhibit 8.1(j), and made a part hereof, notifying the tenants of the acquisition of the Shopping Center by Buyer and directing the tenants to pay all rents and other sums to Buyer from and after the Closing Date;

(k)An updated certificate, as of closing, certifying that the representations and warranties contained in Article 4 of this agreement remain true and correct in all material respects; and

(1)Such other documents as the Title Company may reasonably request to effect the transaction contemplated by this Agreement.

8.2Buyer Deliveries. At Closing Buyer shall deliver:

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(a)Subject to the terms of subparagraph 2.2 hereof, a direction to Escrow Agent to disburse the Earnest Money Deposit to Seller;

(b)The balance of the Purchase Price;

(c)The reciprocal indemnity described in Subsection 8.l(c) above;

(d)Resolutions or affidavits of Buyer authorizing the transactions described herein; and

(e)Such other documents as the Title Company may reasonably request to effect the transactions contemplated by this Agreement.

8.3Reasonable Efforts. Each of the parties hereto agrees to use reasonable efforts to take or cause to be taken all actions reasonably necessary, proper or advisable to consummate the transactions contemplated by this Agreement.

9. BREACH; REMEDIES

9.1Breach by Seller.  In the event of a breach of Seller’s obligations herein, Buyer may, at Buyer’s election: (i) terminate this Agreement and receive a return of the Earnest Money Deposit, and the parties shall have no further rights or obligations under this Agreement (except as expressly survive termination); (ii) enforce this Agreement by suit for specific performance (including costs and expenses of suit, including reasonable attorney’s fees); or (iii) waive such breach and close the purchase contemplated hereby, notwithstanding such breach.

9.2Breach by Buyer. In the event of a breach of Buyer’s obligations herein, Seller’s sole legal and equitable remedy (except for breaches related to Buyer’s indemnity and insurance obligations) shall be to terminate this Agreement and retain Buyer’s Earnest Money Deposit as AGREED LIQUIDATED DAMAGES for such breach, and upon payment in full to Seller of such Earnest Money Deposit, the parties shall have no further rights, claims, liabilities or obligations under this Agreement (except the indemnity and insurance obligations of Buyer, for which Seller, in the event of a breach thereof by Buyer, shall have available to it all remedies at law or in equity).

10. MISCELLANEOUS

10.1Commissions. Seller and Buyer represent to each other that neither Seller (in the case of Seller’s representation) nor Buyer (in the case of Buyer’s representation) has dealt with nor does it have any knowledge of any broker or other person who has or may have any claim against Seller, Buyer or the Shopping Center for a brokerage commission, finder’s fee or like payment arising out of or in connection with this transaction, other than Broker (which fee shall be paid by Seller pursuant to separate agreement). Buyer agrees to indemnify and hold Seller harmless from any other such claim arising by, through or under Buyer, and Seller agrees to indemnify and hold Buyer harmless from any other such claim arising by, through or under Seller.

10.2Notices. All notices and demands of any kind which either party may be required or may desire to serve upon the other party in connection with this Agreement shall be in writing, signed by the party or its counsel identified below, and shall be served (as an alternative to

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personal service) by overnight courier service or facsimile transmission (followed promptly by personal service or mailing of a hard copy), at the addresses set forth below:

As to Seller: Regency Centers, L.P.
Attention: Barry Argalas
121 West Forsyth Street, Suite 200
Jacksonville, Florida 32202
Telephone: 904/598-7464
Facsimile: 904/354-3448

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With a copy to Seller’s Counsel:	Rogers Towers, P.A. Attention: William E. Scheu, Esq. And John R. Ibach, Esq. 1301 Riverplace Blvd., Suite 1500 Jacksonville, Florida 32207 Telephone: 904/398-3911 Facsimile: 904/396-0663
As to Buyer:	Inland Real Estate Acquisitions, Inc. Attention: Vice Chairman 2901 Butterfield Road Oak Brook, Illinois 60523 Telephone: 630-218-4948 Facsimile:   630-218-4935
With a copy to Buyer’s Counsel:	The Inland Real Estate Group, Inc. Attention: General Counsel 2901 Butterfield Road Oak Brook, Illinois 60523 Telephone: 630-218-8000 Facsimile:  630-219-4900 and 630-571-2360
With a copy to Escrow Agent: (if required)	Chicago Title Insurance Company Attention: Nancy Castro 171 North Clark Street Chicago, Illinois 60601 Telephone: 312-223-2709 Facsimile: 312-223-2108
As to Broker:	Staubach Retail Services Southeast, L.L.C. Attention: Thomas Statham 3400 Peachtree Road, N.E., Suite 1100 Atlanta, Georgia 30326 Telephone:                                        Facsimile:

Any such notice or demand so secured, shall constitute proper notice hereunder upon delivery to the United States Postal Service or to such overnight courier, or by confirmation of the facsimile transmission.

10.3Headings.  The titles and headings of the various sections hereof are intended solely for means of reference and are not intended for any purpose whatsoever to modify, explain or place any construction on any of the provisions of this Agreement.

10.4Validity. If any of the provisions of this Agreement or the application thereof to any persons or circumstances shall, to any extent, be invalid or unenforceable, the remainder of

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this Agreement shall not be affected thereby, and every other provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

10.5Attorneys’ Fees.  In the event of any dispute, litigation or other proceeding between the parties hereto to enforce any of the provisions of this Agreement or any right of either party hereunder, the unsuccessful party to such dispute, litigation or other proceeding shall pay to the successful party all costs and expenses, including reasonable attorneys’ fees, incurred at trial, on appeal, and in any arbitration, administrative or other proceedings, all of which may be included in and as a part of the judgment rendered in such litigation. Any indemnity provisions herein shall include indemnification for such costs and fees. This section shall survive the Closing or a prior termination hereof.

10.6Time. Time is of the essence of this Agreement, provided that if any date upon which some action, notice or response is required of any party hereunder occurs on a weekend or national holiday, such action, notice or response shall not be required until the next succeeding business day.

10.7Governing Law.  This Agreement shall be governed by the laws of the state in which the Property is located.

10.8Gender; Plural; Singular; Terms.  A reference in this Agreement to any gender, masculine, feminine or neuter, shall be deemed a reference to the other, and the singular shall be deemed to include the plural and vice versa, unless the context otherwise requires. The terms “herein,” “hereof,” “hereunder,” and other words of a similar nature mean and refer to this Agreement as a whole and not merely to the specified section or clause in which the respective word appears unless expressly so stated.

10.9Exhibits. All exhibits attached hereto are incorporated herein by reference to the same extent as though such exhibits were included in the body of this Agreement verbatim.

10.10Counterparts, Further Instruments, Etc. This Agreement may be executed in counterparts, and when so executed shall be deemed executed as one agreement. Seller and Buyer shall execute any and all documents and perform any and all acts reasonably necessary to fully implement this Agreement.

10.11No Recording.  Neither this Agreement nor any memorandum notice or short form hereof shall be recorded.

10.12Survival. The indemnities, representations and warranties of each of Seller and Buyer, and their respective obligations intended to be performed after the Closing, if any, shall survive for a period of six (6) months after the Closing.

10.13Successors and Assigns.  Buyer shall not assign its rights hereunder except to affiliated entities. An affiliated entity for purposes hereof shall include any entity which is wholly owned by a party or by a parent of a party, or any entity in which a party or a parent of a party has an equity interest and is a general or managing partner/member. The terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of the heirs, successors and permitted assigns of the parties. No third parties, including any brokers or creditors, shall be beneficiaries hereof or entitled to any rights or benefits hereunder.

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10.14Entire Agreement.  This Agreement, together with the exhibits attached hereto, supercedes all prior agreements between the parties as to the Property, if any, and constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement may not be modified, amended or otherwise changed in any manner except by a writing executed by Buyer and Seller or their respective counsel identified herein.

10.15Section 1031 Exchange.  Buyer acknowledges that Seller may effect a like-kind exchange under Section 1031 of the Internal Revenue Code of 1986, as amended (the “Code”). Accordingly, Buyer agrees that it will cooperate with Seller to effect a tax-free exchange in accordance with the provisions of Section 1031 of the Code and the regulations promulgated with respect thereto. Seller shall be solely responsible for any additional fees, costs or expenses incurred in connection with the like-kind exchange contemplated by this paragraph, and Buyer shall not be required to execute any document other than an assignment of the contract to a qualified intermediary and a closing statement identifying the qualified intermediary as the Seller, nor incur any debt, obligation or expense in accommodating Seller hereunder. In no event shall Seller’s ability or inability to effect a like-kind exchange, as contemplated hereby, in any way delay the Closing or relieve Seller from its obligations and liabilities under this Agreement. Seller hereby agrees to indemnify and hold harmless Buyer from any liability, losses or damages incurred by Buyer in connection with or arising out of the Section 1031 like-kind exchange, including but not limited to any tax liability.

10.16Buyer’s Conditions to Closing: It is a condition to Buyer’s obligation to close that as of the date of Closing: (i) all tenant improvement allowances and leasing commissions for any tenant lease shall have been fully paid and discharged (or credited to Buyer at Closing), and (ii) there shall not then exist any “Material Default” by any tenant under any lease either on the part of Seller, as landlord, or any tenant.  Material Default as used herein shall include any one or more of the following events have occurred since the Effective Date of this Agreement: (i) a tenant has ceased operation of its business; (ii) a tenant is 60 days late in payment of Base Rent; or (iii) a tenant has violated an exclusive use limitation or other restriction contained in a lease.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

“SELLER”
REGENCY CENTERS, L.P., a Delaware limited partnership
By: Regency Centers Corporation, a Florida corporation
Its: General Partner
	By:	/s/ Barry Argalas
	Name: Barry Argalas
	Its: Vice President
	Date:		11-10	, 2004
	Tax Identification No: 59-3191743

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“BUYER”
INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
By:	/s/ Jason A. Lazarus
Name:			Jason A. Lazarus
Title:		V.P.
Date:				November 9	, 2004
Tax Identification No: 36-3614035

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EX-10.483

Exhibit 10.483

ASSIGNMENT AND ASSUMPTION
OF PURCHASE AND SALE AGREEMENT

This ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT (this “Assignment”) is made and entered into this              day of December, 2004 by Inland Real Estate Acquisitions, Inc., an Illinois Corporation, (“Assignor”), and Inland Western Mesa Fiesta, L.L.C., a Delaware limited liability company, (“Assignee”).

RECITALS

A.VV Arizona, L.P. (“Seller”) and Assignor have previously entered into that certain Agreement of Purchase and Sale dated as of December 7, 2004 (the “Purchase Agreement”), relating to the sale of a certain shopping center commonly known as Mesa Fiesta Shopping Center located in the City of Mesa, Arizona.

B.Assignor desires to assign its interest in and to the Purchase Agreement to Assignee upon the terms and conditions contained herein.

NOW, THEREFORE, in consideration of the receipt of ten and 00/100 Dollars ($10.00) and other good and valuable consideration in hand paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged by Assignor, the parties hereby agree as follows:

1.Recitals. The foregoing recitals are, by this reference, incorporated into the body of this Assignment as if the same had been set forth in the body hereof in their entirety.

2.Assignment and Assumption.  Assignor hereby assigns, conveys, transfers, and sets over to Assignee all of Assignor’s right, title, and interest in and to the Purchase Agreement.  Assignee hereby accepts the foregoing Assignment and assumes, and agrees to perform, all duties, obligations, liabilities, indemnities, covenants, and agreements of Assignor set forth in the Purchase Agreement.

3.Counterparts.  This document may be executed in any number of counterparts, each of which may be executed by any one or more of the parties hereto, but all of which must constitute one instrument and shall be binding and effective when all parties hereto have executed at least one counterpart.

4.Successors.  This Assignment shall be binding upon and for the benefit of the parties hereto and their respective Successors and Assigns.

IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to be executed as of the day and year first written above.

ASSIGNOR:
INLAND REAL ESTATE ACQUISITIONS, INC., An Illinois Corporation
By:	/s/ G. Joseph Cosenza
Name:		G. Joseph Cosenza
Title:		President
ASSIGNEE:
INLAND WESTERN MESA FIESTA, L.L.C., a Delaware limited liability company
By:		Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
		By:	/s/ Valerie Medina
		Name:	Valerie Medina
		Title:	Asst. Secretary

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EX-10.484

Exhibit 10.484

AGREEMENT OF PURCHASE AND SALE

THIS AGREEMENT OF PURCHASE AND SALE (this “Agreement”) is made and entered into by and between VV ARIZONA, L.P., a Delaware limited partnership (“Seller”), and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation (“Purchaser”), to be effective as of the date on which the last of Seller or Purchaser executes this Agreement as indicated below (the “Effective Date”).

W I T N E S S E T H:

ARTICLE I
PURCHASE AND SALE

1.1Agreement of Purchase and Sale. Subject to the terms and conditions hereinafter set forth and for the consideration stated herein, Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, the following:

(a)All that certain tract or parcel of land situated in Maricopa County, Arizona, more particularly described on Exhibit A attached hereto and made a part hereof for all purposes, together with all improvements situated thereon (including, without limitation, a retail shopping center known as Mesa Fiesta containing approximately 194,892 square feet of net rentable area), together with all rights, tenements, hereditaments, casements, privileges and appurtenances pertaining thereto, including any right, title and interest of Seller in and to any and all adjacent roads, highways and rights-of-way (collectively, the “Realty”);

(b)All of Seller’s right, title and interest in and to all tenant leases now or hereafter covering any of the Realty (collectively, the “Leases”) and any security or other deposits actually held by Seller in connection therewith, all as set forth on the List of Leases (the “List of Leases”) attached hereto as Exhibit I;

(c)All tangible and intangible personal property owned by Seller and situated upon and used in connection with the ownership, operation, use, enjoyment or occupancy of the Realty, including, without limitation, all existing surveys, blue prints, drawings, plans and specifications, assignable telephone numbers and listings, assignable permits, inventory and equipment, if any (collectively, the “Personalty”);

(d)All of Seller’s right, title and interest in and to the name “Mesa Fiesta Shopping Center” (the “Name”) for the Realty;

(e)All of Seller’s right, title and interest in and to all assignable warranties and guaranties issued in connection with any of the Realty and any of the Personalty (collectively, the “Warranties”); and

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(f)All of Seller’s right, title and interest in and to all assignable contracts and agreements relating to the upkeep, repair, maintenance or operation of any of the Realty and any of the Personalty (collectively, the “Operating Agreements”).

1.2Property Defined. The property and interests described in Sections 1.1(a) through 1.1(f) above are hereinafter sometimes referred to collectively as the “Property.” The Property does not include (i) any of Seller’s insurance policies applicable to the Realty or Seller’s business or (ii) that certain Property Management Agreement, dated July 27, 1998, between Seller and Vestar Property Management Company, which shall be terminated effective as of the Closing Date, as defined in Section 4.1 below.

1.3Permitted Exceptions.  The Property shall be conveyed subject to the following matters (collectively, the “Permitted Exceptions”):

(a)real property taxes for the year of Closing (hereinafter defined) (if such taxes are not yet due and payable) and subsequent years;

(b)the Leases; and

(c)matters shown on the Title Commitment (as defined below), as approved or deemed approved by Purchaser.

1.4Purchase Price.  Seller shall sell and Purchaser shall purchase the Property for a total purchase price of Thirty Six Million Eight Hundred Fifty Four Thousand Seven Hundred Thirty Six Thousand and No/100 Dollars ($36,854,736.00) (the “Purchase Price”).

1.5Earnest Money.  Not later than two (2) Business Days after the Effective Date, Purchaser shall deliver to the Title Company the sum of Four Hundred Thousand and No/100 Dollars ($400,000.00) in immediately available funds as earnest money, to be deposited in an interest bearing account and held pursuant to an Earnest Money Escrow Agreement in the form attached hereto as Exhibit B (such sum, together the Additional Earnest Money, as defined in Section 3.3 below, with all interest earned thereon, is referred to herein as the “Earnest Money”). The Earnest Money shall be applied against the Purchase Price at Closing.  In the event that Purchaser fails to deliver the Earnest Money to the Title Company in the manner and within the time provided herein, this Agreement shall automatically terminate, and neither party shall have any further obligation hereunder.

1.6Payment of Purchase Price.  The Purchase Price shall be paid by Purchaser to Seller in immediately available funds at Closing.

1.7Independent Contract Consideration.  Simultaneously with the execution of this Agreement, Purchaser shall deliver to Seller a check in the amount of One Hundred Dollars ($100.00) (the “Independent Contract Consideration”), which amount Seller and Purchaser hereby acknowledge and agree has been bargained for and agreed to as consideration for Seller’s execution and delivery of this Agreement.  The Independent Contract Consideration is in

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addition to and independent of any other consideration or payment provided for in this Agreement, and is nonrefundable in all events.

ARTICLE II
TITLE AND SURVEY

2.1Commitment for Title Insurance. Seller has delivered to Purchaser, a Commitment for Title Insurance (the “Title Commitment”), issued by Lawyers Title Insurance Corporation, through its national accounts office in Richmond, Virginia (the “Title Company”), covering the Realty, showing all matters affecting title to the Realty and binding the Title Company to issue an Owner Policy of Title Insurance (such policy in the amount of the Purchase Price with extended coverage and the Special Endorsements described below is referred to herein as the “Owner’s Title Policy”). Promptly after the Effective Date, Seller shall request that the Title Company modify the Title Commitment to add Purchaser as the proposed insured, specify that coverage will be equal to the Purchase Price and commit to issue the following endorsements (the “Special Endorsements”): 3.1 zoning (long form) with parking and loading docks, owner’s comprehensive, survey, access, P.I.N., subdivision, utility facility, contiguity, environmental lien, removal of creditor’s rights exception, and removal of the arbitration clause. If the Title Company does not, within seven (7) days after the Effective Date, (i) modify the Title Commitment as required above and (ii) commit in writing to issue one or more of the Special Endorsements (subject only to satisfaction of customary underwriting requirements), Purchaser shall either (i) agree that the Special Endorsement in question need not be issued such that the requirement is waived or (ii) terminate this Agreement and receive a refund of the Earnest Money. Such election shall be made prior to the Due Diligence Deadline, as defined in Section 3.3 below. To the extent not previously delivered, the Title Company shall deliver copies of instruments listed as exceptions to title, the same being as legible as the record permits. If the Title Commitment shall reveal any exception that is objectionable to Purchaser, Purchaser may deliver written notice to Seller objecting to such exception not later than the Due Diligence Deadline. Purchaser’s failure to deliver written notice of objection prior to the Due Diligence Deadline shall be deemed approval by Purchaser of all matters shown on the Title Commitment. Within two (2) Business Days after receipt of Purchaser’s notice of objection, Seller shall indicate in writing whether Seller agrees to cure such objection, with Seller’s failure to respond being deemed an election not to cure. Seller shall be under no obligation to cure any title exception, but if Seller shall fail to cure or commit in writing to cure any of Purchaser’s objections within such two (2) Business Day period, Purchaser may either (i) waive such objection, or (ii) terminate this Agreement. Purchaser’s failure to waive all unsatisfied objections prior to the date scheduled for Closing shall constitute an election to terminate. Purchaser shall receive a refund of the Earnest Money upon such termination or deemed termination.

2.2Survey. Seller has delivered to Purchaser a copy of the latest survey of the Property prepared by a licensed surveyor (the “Surveyor”). Seller shall cause the Surveyor to prepare an updated survey of the Realty certified as of a date no more than thirty (30) days prior to delivery thereof (the “Survey”).  The Survey shall meet the requirements of, and be certified in accordance with, the current requirements for an urban survey jointly established and adopted by

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the American Land Title Association and the American Congress on Surveying and Mapping with all Table A options, excluding Items 5 (contours) and Item 7(b)(3). Two (2) copies of the Survey shall be delivered to each of Seller, Purchaser and the Title Company not later than ten (10) days after the Effective Date.

2.3Owner’s Title Policy. At Closing, the Title Company shall furnish to Purchaser the Owner’s Title Policy with the Special Endorsements, insuring title to the Realty, in the amount of the Purchase Price, subject only to the Permitted Exceptions, except:

(a)The exception relating to discrepancies, conflicts or shortages in area or boundary lines, or any encroachment or any overlapping of improvements which a survey might show shall be modified to delete such exception, except as to shortages in area, and substitute matters shown on the Survey in lieu thereof;

(b)The exception relating to ad valorem taxes shall be limited to taxes owing for the current and subsequent years; and

(c)There shall be no exception for (i) “parties in possession” other than parties claiming under Leases or (ii) yet to be filed materialmen’s or mechanics’ liens.

ARTICLE III
SUBMISSION ITEMS/INSPECTION RIGHTS

3.1Delivery of Materials. No later than three (3) Business Days after the Effective Date, Seller shall deliver to Purchaser in the case of (g), the following items (to the extent in Seller’s possession):

(a)Copies of all Warranties and Operating Agreements, excluding the Management Agreement;

(b)Copies of the real estate and tangible personalty ad valorem tax statements for the preceding calendar year on the Realty and the Personal Property;

(c)Copies of all operating statements for the Realty for the calendar year 2003 with copies of any interim statements that have been prepared for calendar year 2004;

(d)An inventory of the tangible Personalty, if available;

(e)Copies of all plans and specifications of all improvements constituting a part of the Realty;

(f)Certificate(s) of Occupancy for the Realty and any amendments thereto;

(g)Copies of the Leases;

(h)A copy of any existing environmental assessment report for the Realty;

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(i)Evidence of the hazard insurance coverages in effect with respect to the Realty; and

(j)Copies of any governmental licenses and permits, special use, and zoning variances related to the Property.

The items listed in (a) through (j) above are herein called the “Submission Items.”

SELLER MAKES NO REPRESENTATION OR WARRANTY CONCERNING SUBMISSION ITEMS, AND PURCHASER ACKNOWLEDGES AND AGREES THAT ANY RELIANCE BY PURCHASER ON OR USE OF SUBMISSION ITEMS SHALL BE AT THE SOLE RISK OF PURCHASER.

3.2Right of Inspection. Purchaser shall have the right from the date of execution of this Agreement until the Due Diligence Deadline, as defined in Section 3.3 below (and thereafter until the Closing, if this Agreement is not terminated by Purchaser pursuant to Section 3.3 below), to make physical inspections of the Property, to interview Tenants, and to examine all books and records maintained by Seller relating to the Property (excluding information relating solely to Seller’s partnership affairs [the “Proprietary Information”]) at such place or places as such books and records may be located. Prior to entry on the Property, Purchaser shall provide evidence of liability insurance with minimum limits of Two Million Dollars ($2,000,000.00) and otherwise reasonably satisfactory to Seller.  In exercising the privileges granted pursuant to this Section, Purchaser shall avoid interfering with the use and enjoyment of the Property by any Tenant, and Purchaser shall substantially restore the Property to the condition existing prior to such activities on the Property.  No physically invasive testing may be undertaken without the prior written consent of Seller. Purchaser agrees to indemnify, defend and hold Seller harmless from and against claims of third parties for any loss, liability, cost, damage or expense (including, without limitation, attorneys’ fees, accountants’ fees, court costs and interest) resulting from such inspection and examination.  All inspections and Tenant interviews shall occur at reasonable times agreed upon by Seller and Purchaser and shall be conducted so as not to unreasonably interfere with use of the Property by Seller or the Tenants. Seller shall have the right to have a representative present at any such inspections or Tenant interviews. Purchaser’s indemnification obligation shall survive Closing or termination of this Agreement, as applicable.

3.3Due Diligence Period. Purchaser shall have the right to terminate this Agreement for any reason or no reason by delivering written notice of termination to Seller and the Title Company (the “Termination Notice”) no later than 5:00 p.m. (EST) on December 20, 2004 (the “Due Diligence Deadline”).  If Purchaser affirmatively elects to proceed with Closing by delivering written notice of acceptance to Seller on or before the Due Diligence Deadline or Purchaser fails to deliver a Termination Notice prior to the Due Diligence Deadline, (i) this Agreement shall remain in full force and effect, (ii) Purchaser shall be deemed to have elected to close and (ii) Purchaser shall, on or before the Due Diligence Deadline, deliver to Escrow Agent the sum of Eight Hundred Thousand and No/100 Dollars ($800,000.00) (the “Additional Earnest Money”) to be treated as Earnest Money for all purposes and applied against the Purchase Price at Closing.  If Purchaser timely delivers a Termination Notice, the Earnest Money shall be

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refunded to Purchaser and the parties shall be released from liability hereunder, except for any liability that expressly survives termination.

ARTICLE IV
CLOSING

4.1Time and Place. The closing of the transaction contemplated hereby (“Closing”) shall take place via escrow with the Title Company at 10:00 a.m., Chicago, Illinois time, on or before December 23, 2004 (the “Closing Date”), and/or at such other location and at such time as may be agreed upon in writing by Seller and Purchaser.  Time is of the essence with respect to the Closing.

4.2Seller’s Obligations at Closing. At Closing, Seller shall:

(a)deliver to Purchaser a Special Warranty Deed (the “Deed”), executed and acknowledged by Seller in the form attached hereto as Exhibit C (with such reasonable changes thereto as may be required by the Title Company to comply with the laws of the State of Arizona), conveying the Realty to Purchaser free and clear of all encumbrances except the Permitted Exceptions;

(b)join with Purchaser in the execution and acknowledgment of a Bill of Sale and Assignment (the “Bill of Sale”) in the form attached hereto as Exhibit D, conveying the Personalty, the Name, the Warranties, and the Operating Agreements (excluding the Management Agreement) to Purchaser free and clear of all encumbrances except the Permitted Exceptions;

(c)join with Purchaser in the execution and acknowledgment of an Assignment and Assumption of Tenant Leases (the “Lease Assignment”) in the form attached hereto as Exhibit E, conveying to Purchaser the Leases and all security and other deposits held by Seller with respect to the Leases free and clear of all encumbrances except the Permitted Exceptions;

(d)join with Purchaser in the execution of a Closing Statement (the “Closing Statement”);

(e)execute and deliver to Purchaser a FIRPTA Affidavit in the form attached hereto as Exhibit F;

(f)deliver to Purchaser possession and occupancy of the Property, subject to the Permitted Exceptions;

(g)join with purchaser in the execution of a letter to each Tenant under the Leases (collectively, the “Tenant Letters”) in the form attached hereto as Exhibit G, the Tenant Letters to be prepared by Seller and delivered to the Tenants promptly after Closing by Purchaser;

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(h)deliver to Purchaser such evidence as Purchaser and/or the Title Company may reasonably require as to the authority of the person or persons executing documents on behalf of Seller;

(i)request the Title Company to issue the Owner’s Title Policy to Purchaser, upon payment of the premium therefor;

(j)deliver to Purchaser all keys and combinations to locks on the Property in Seller’s possession;

(k)deliver to Purchaser all original Leases and assumed Operating Agreements in Seller’s possession or control;

(l)deliver to Purchaser all books, records, advertising materials, and correspondence in the possession of Seller pertaining to the Property and all documents in the possession of Seller pertaining to Tenants, including, but not by way of limitation, all applications, correspondence and credit reports relating to each such Tenant;

(m)deliver to Purchaser all permits issued by the appropriate governmental authorities and utility companies when the improvements on the Realty were completed, to the extent available;

(n)deliver to the Title Company an affidavit duly executed by Seller stating that there are no unpaid bills or claims (except for bills or expenses to be prorated pursuant to this Agreement at Closing) for labor performed or materials furnished in connection with the Property;

(o)deliver to Purchaser a certificate duly executed by Seller to the effect that, to Seller’s actual knowledge, all of the representations and warranties set forth in Section 5.1 hereof are true and correct in all material respects as of the Closing Date, except due to a Changed Circumstance which has been disclosed in writing to Purchaser pursuant to Section 4.7 below;

(p)deliver to Purchaser estoppel certificates (the “Tenant Estoppel Certificates”) signed by not less than seven (7) of the eight (8) Tenants leasing space in the Property, in the form attached hereto as Exhibit H or in the form customarily issued by the Tenant in question; provided that (i) the foregoing shall merely be a condition to Closing and Seller shall not be deemed to be in default under this Agreement if Seller is unable to deliver such Tenant Estoppel Certificates from the requisite Tenants as long as Seller uses commercially reasonable efforts to obtain the same, (ii) Seller may extend the Closing Date for up to fifteen (15) days in order to pursue the obtaining of such Tenant Estoppel Certificates, notwithstanding Section 4.1 above, and (iii) if Seller obtains Tenant Estoppel Certificates from seven (7) Tenants but the eighth Tenant has not delivered a Tenant Estoppel Certificate as of the Closing Date (including the 15-day extension provided above if Seller shall so elect), Seller shall deliver a Landlord’s Certificate (the “Landlord’s Certificate”) as to the tenant and the lease for which an estoppel has not been

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received. The Landlord’s Certificate shall verify, to Seller’s actual knowledge, the information set forth in the form Tenant Estoppel Certificate, as to the missing estoppel. Any exception in the Landlord’s Certificate shall be subject to the provisions of Section 4.7 below.

(q)deliver to the appropriate party an affidavit of Property value duly executed by Seller for the purpose of recording the Deed.

4.3Purchaser’s Obligations at Closing. At Closing, Purchaser shall:

(a)pay to Seller the Purchase Price in immediately available funds;

(b)join with Seller in execution of the Bill of Sale, the Lease Assignment, the Closing Statement and the Tenant Letters described in Sections 4.2(b), 4.2(c), 4.2(d), and 4.2(g) hereof, respectively; and

(c)deliver to Seller such evidence as Seller and/or the Title Company may reasonably require as to the authority of the person or persons executing documents on behalf of Purchaser.

4.4Prorations.

(a)The following shall be apportioned as of the Closing Date with respect to the Property:

(i)rents collected under the Leases for the month of Closing and each Tenant’s portion of operating expenses;

(ii)percentage rent payable under the Leases (with any percentage rent received by Purchaser after Closing being allocated and prorated across the entire calendar year in which percentage rent accrued as opposed to only the months in which percentage rent is actually payable or collected);

(iii)real property and tangible personal property ad valorem taxes with respect to the Realty and the Personalty for the current year, with any apportionment of such taxes for a tax year as to which either the tax rate or the assessed valuation, or both, have not yet been fixed to be made upon the basis of the tax rate and/or assessed valuation last fixed; provided that Seller and Purchaser agree that, to the extent the actual taxes for the current year differ from the amount so apportioned at Closing, Seller and Purchaser will make all necessary adjustments by appropriate payments between themselves following Closing;

(iv)current expenses under the Operating Agreements that will remain in effect after Closing; and

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(v)gas, electricity, water, trash disposal and other utility charges with respect to the Realty.

(b)In making such apportionments, Purchaser shall be entitled to rents and other income earned and due from the Property with respect to the Closing Date, and Purchaser shall be responsible for real property taxes and other expenses accrued or incurred with respect to the Closing Date.  All such apportionments shall be subject to post-Closing adjustments as necessary to reflect later relevant information not available at Closing (including the amount of percentage rents due after Closing) and to correct any errors made at Closing with respect to such apportionments and the party receiving more than it was entitled to hereunder shall reimburse the other party hereto in the amount of such overpayment within thirty (30) days after receiving written demand therefor. Notwithstanding the foregoing, such apportionments shall be deemed final and not subject to further post-Closing adjustments if no such adjustments have been requested after a period of thirty (30) days from such time as all necessary information is available to make a complete and accurate determination of such apportionments; provided that any prorated percentage rent due to Seller shall be paid to Seller upon receipt without request or demand.  All other matters with respect to apportionments shall be governed by the Closing Statement. The provisions of this Section 4.4(b) shall survive the Closing.

(c)At Closing, Seller shall credit to the account of Purchaser against the Purchase Price allocable to the Realty any security deposits or prepaid rent, the continuing obligations for which are actually and explicitly transferred to Purchaser at Closing pursuant to any Leases executed by Seller or Seller’s predecessors in interest, as lessor, which will continue in effect after Closing, and Seller shall retain all security deposits and prepaid rent.

(d)After Closing, Purchaser shall use commercially efforts to collect any delinquent rents or other payments due as of the Closing Date, and shall pay such amounts to Seller within ten (10) Business Days after collection.  Any rents and other payments collected after Closing shall be applied first to current charges and then to delinquencies. If delinquencies remain unpaid within ninety (90) days after the Closing Date, Seller shall be entitled to pursue its own collection efforts, but Seller shall not have any right to file any action to evict any Tenant that is delinquent.

4.5Closing Costs. Seller shall pay (a) the fees of any counsel representing it in connection with the transaction contemplated hereby, (b) the premium for the Owner’s Title Policy standard coverage (excluding extended coverage and any endorsements desired by Purchaser), and (c) one-half (1/2) of any escrow fees charged by the Title Company. Purchaser shall pay (a) the fees of any counsel representing Purchaser in connection with the transaction contemplated hereby, (b) the premium for the Owner’s Title Policy extended coverage and any endorsements obtained by Purchaser, (c) the cost of the Survey, (d) the cost of any tests, inspections or environmental site assessments conducted or obtained by Purchaser, (e) transfer taxes, documentary stamps and similar charges (if any, Seller having been advised that Arizona does not impose such taxes, stamps or charges), (f) recording fees due in connection with the recording of the Deed and other conveyance documents; and (g) one-half (1/2) of any escrow

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fees charged by the Title Company. Purchaser shall also reimburse Seller for the cost of the Phase I environmental site assessment obtained by Seller from URS Corporation (or one of its affiliates); provided that issuer of such assessment delivers a reliance letter to Purchaser.  All other costs and expenses incident to the transaction contemplated hereby and the closing thereof shall be paid by the party incurring the same.

4.6Closing Constitutes Waiver.  Notwithstanding Article V and without limiting Section 9.1 below, if any of the representations or warranties of Seller contained in this Agreement or in any certificate delivered in connection herewith are materially false or inaccurate, or Seller is in breach or default of any of its obligations under this Agreement, but Purchaser nonetheless closes the transaction hereunder and purchases the Property, then (i) Seller shall have no liability or obligation respecting such false or inaccurate representations or warranties or other breach or default (and any cause of action resulting therefrom shall terminate upon the Closing) in the event and to the extent that on or prior to the Closing, Purchaser shall have had actual knowledge of the false or inaccurate representations or warranties or other breach or default, and (ii) to the extent the Submission Items furnished to Purchaser contain provisions or information that are inconsistent with the foregoing representations and warranties (unless Seller had knowledge of such inconsistency and willfully failed to disclose the same to Purchaser), such representations and warranties shall be deemed to be modified to the extent necessary to eliminate such inconsistency and to conform such representations and warranties to such Submission Items.

4.7Changed Circumstance.  If Seller obtains actual knowledge of any changed circumstance that causes any representation or warranty of Seller to no longer be true in any material respect (the “Material Changed Circumstance”), Seller shall promptly send written notice thereof to Purchaser describing the Material Changed Circumstance and the manner in which it has made any of Seller’s representations or warranties herein untrue. As used herein, a change in Seller’s representation and warranty shall be deemed “material” if (i) the market value of the Property is decreased by more than $100,000 as a result of such Material Changed Circumstance, or (ii) it is a Lease Status Representation (as defined in Section 5.1(c) below.  If Purchaser does not approve the Material Changed Circumstance in writing on or before the Closing Date, Seller shall not be in default and Seller shall have the right, but not the obligation, to attempt to remedy the Material Changed Circumstance.  In the Seller fails or refuses to remedy the Material Changed Circumstance to the reasonable satisfaction of Purchaser on or before the Closing Date, Seller shall have the right to extend the Closing Date for up to thirty (30) days to attempt to remedy the same.  If Seller has not remedied the Material Adverse Change on or before the Closing Date (including the extension provided above), Purchaser shall, as its sole and exclusive remedy,  either (i) waive and approve the Material Changed Circumstance, in which event the applicable representation or warranty shall be deemed modified, or (ii) terminate this Agreement, in which event the Earnest Money shall be returned to Purchaser and neither Seller nor Purchaser shall have any further rights or obligations hereunder one to the other except with respect to these obligations which expressly survive the termination of this Agreement.

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ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS

5.1Representations and Warranties of Seller. Seller hereby makes the following representations and warranties to Purchaser, which representations and warranties shall survive Closing for a period of one hundred eighty (180) days, but no longer:

(a)Seller is a limited partnership, duly organized and validly existing in good standing under the laws of the State of Delaware.

(b)Seller has complete capacity, power and authority to enter into this Agreement and all other agreements to be executed and delivered by Seller pursuant to the terms and provisions hereof, to perform its obligations hereunder and thereunder, and to consummate the transaction contemplated hereby.

(c)(i) All Leases are shown on the list attached hereto as Exhibit I, the Leases are all in full force and effect and the tenants thereunder are in occupancy, open for business and paying full rent thereunder; (ii) to Seller’s actual knowledge, no Leases are in default for failure to pay rent and other sums when due, and there exists no material non-monetary default under the Leases; (iii) to Seller’s actual knowledge, Seller has not failed to perform its material obligations under the Leases (the representations in the foregoing subsections (i), (ii) and (iii) being referred to herein as “Lease Status Representations”) ; (iv) there are no oral agreements with any Tenants, the breach of which would have a material adverse effect on the rental income from the Realty; (v) all leasing commissions due for current terms of Leases now in effect will be paid at or prior to Closing; (vi) Seller has received no written notice of any condemnation proceedings instituted against the Realty and has no notice of any threatened condemnation proceedings with respect to the Property; (vii) to Seller’s actual knowledge, Seller has received no written notice that the Property is subject to any remedial obligations under any applicable laws; (viii) to Seller’s actual knowledge, there are no material actions or claims affecting Seller or the Property being currently prosecuted; (ix) Seller has no actual knowledge of any threatened actions or claims affecting Seller or the Property; and (x) Seller has received no written notice that the Realty fails to comply with any applicable governmental regulations.  As used herein, any reference to “knowledge” with respect to Seller shall mean the current, actual (as opposed to the constructive, deemed or imputed) knowledge of Kathleen Burgi-Sandell (as Seller’s primary asset manager), without any duty of investigation or inquiry.  Notwithstanding the foregoing, there shall be no personal liability on the part of Kathleen Burgi-Sandell hereunder.

5.2Covenants of Seller.  Seller hereby covenants with Purchaser that, until the Closing, Seller will:

(a)perform all of Seller’s material obligations under the Leases;

(b)advise Purchaser immediately if Seller acquires actual knowledge of any litigation or administrative proceedings instigated or threatened against the Property;

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(c)(i) maintain the casualty loss insurance now in effect for the Realty and tangible Personalty; (ii) not enter into any new Leases nor modify any of the Leases without first obtaining the written consent of Purchaser, which consent shall not be unreasonably withheld or delayed; (iii) not enter into any service, employment or management contract pertaining to or encumbering the Property unless the same is cancelable at or prior to Closing without penalty or premium, without first obtaining the written consent of Purchaser, which consent shall not be unreasonably withheld or delayed; (iv) continue to operate the Property in substantially the same manner it is being operated on the date of execution of this Agreement; (v) not voluntarily create any new lien on the Property that will not be discharged at Closing out of the Purchase Price; and (vi) not voluntarily create any non-lien encumbrance or modify, extend, renew or change an existing non-lien encumbrance on title to the Realty (except new Leases permitted hereby) without first obtaining the written consent of Purchaser, which consent shall not be unreasonably withheld or delayed; and

(d)pay all tenant improvement and other expenses agreed to be paid by Landlord under the Leases and pay all real estate commissions agreed to be paid by Seller in respect of the current term of said Leases, but this agreement shall not extend to (i) expenses or commissions relating to Lease expansions or renewals occurring after the Effective Date, or (ii) any commissions, allowances or concessions payable with respect to any Leases that are signed by Seller after the Effective Date with Purchaser’s approval, the foregoing expenses in items (i) and (ii) being Purchaser’s costs if Closing occurs.

5.3Representations and Warranties of Purchaser. Purchaser hereby makes the following representations and warranties to Seller, which representations and warranties shall be deemed to be restated at Closing and shall survive Closing:

(a)Purchaser is a corporation, duly organized and validly existing in good standing under the laws of the State of Illinois.

(b)Purchaser has complete capacity, power and authority to enter into this Agreement and all other agreements to be executed and delivered by Purchaser pursuant to the terms and provisions hereof, to perform its obligations hereunder and thereunder, and to consummate the transaction contemplated hereby.

(c)Purchaser will not use the assets of an employee benefit plan as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”) and covered under Title I, Part 4 of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended, in the performance or discharge of its obligations hereunder, including the acquisition of the Property, and Purchaser will not assign its interest hereunder to any person or entity which does not expressly make this representation and warranty for the benefit of Seller.

(d)(i) Neither Purchaser nor any person or entity which controls Purchaser is currently identified by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) or otherwise qualifies as an Embargoed Person; (ii) Purchaser is not in

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violation of any applicable law relating to anti-money laundering or anti-terrorism, including, without limitation, those related to transacting business with Embargoed Persons or the requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, U.S. Public Law 107-56, and the related regulations issued thereunder, including temporary regulations (collectively, as the same may be amended from time to time, the “Patriot Act”); and (iii) Purchaser shall not (A) be or become subject at any time to any law, regulation, or list of any government agency (including, without limitation, the list maintained by OFAC and accessible through the OFAC website) that prohibits or limits Seller from conducting business with Purchaser or (B) fail to provide documentary and other evidence of Purchaser’s identity as may be requested by Seller at any time to enable Seller to verify Purchaser’s identity or to comply with any applicable law or regulation, including, without limitation, the Patriot Act.

ARTICLE VI
DEFAULT

6.1Default by Purchaser.  In the event that Purchaser fails to consummate this Agreement for any reason, except Seller’s default, Seller shall be entitled to terminate this Agreement and receive the Earnest Money as liquidated damages.

6.2Default by Seller. In the event that Seller fails to consummate this Agreement for any reason, except Purchaser’s default, Purchaser shall be entitled, as its sole and exclusive remedies, either (a) to enforce specific performance of this Agreement, or (b) to terminate this Agreement and receive a refund of the Earnest Money, it being the intention of Seller and Purchaser that specific performance should be awarded, if such performance is possible, even though monetary damages or another remedy is otherwise available at law.  Under no circumstance will Seller be liable for consequential or other damages.  Notwithstanding the foregoing, if specific performance is not available because of an intentional default by Seller in contravention of this Agreement, Purchaser may recover the out of pocket costs incurred by Purchaser in connection with this Agreement up to a maximum of Twenty Thousand Dollars ($20,000.00).

6.3Limitation of Liability.  Notwithstanding anything to the contrary contained in this Agreement or any documents executed in connection herewith, if the Closing of the transaction contemplated hereunder shall have occurred, the aggregate liability of Seller arising pursuant to or in connection with the representations, warranties, covenants or other obligations (whether express or implied) of Seller under this Agreement (or any document or certificate executed or delivered in connection herewith) shall not exceed One Million and No/100 Dollars ($1,000,000.00), absent fraud by Seller.  The provisions of this Section 6.3 shall survive the Closing.

6.4No Limitation of Indemnification Obligations.  Sections 6.1, 6.2 and 6.3 shall not limit the liability of any party for, or the ability of any party to fully enforce, any indemnification provision of this Agreement.

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ARTICLE VII
RISK OF LOSS

7.1In the event of any damage or destruction to any portion of the Property prior to the Closing Date, the estimated cost of repair of which, as determined by a third party contractor selected by Seller and approved by Purchaser, is in excess of Five Hundred Thousand Dollars ($500,000.00), or any tenant under a Lease has a right to terminate its Lease by virtue of such damage or destruction unless such termination right is waived in writing by such tenant, Purchaser may cither terminate this Agreement and receive a refund of the Earnest Money, or Purchaser may elect to consummate the transaction contemplated hereby, in which event Seller’s right to all insurance proceeds resulting from such damage or destruction shall be assigned in writing by Seller to Purchaser (less any amounts previously expended by Seller to restore the Property and less any rent loss or business interruption insurance proceeds attributable to the period prior to Closing), Seller shall credit Purchaser the amount of its insurance deductible at Closing and Seller shall have no further obligation to Purchaser with regard to such damage or destruction. In the event of any damage or destruction to the Property prior to the Closing Date, the estimated cost of repair of which, as determined by a third party contractor selected by Seller and approved by Purchaser, is Five Hundred Thousand Dollars ($500,000.00) or less and no tenant under a Lease has a right to terminate its Lease by virtue of such damage or destruction (unless such termination right is waived in writing by such tenant), Purchaser shall have no right to terminate this Agreement as a result thereof, and all of Seller’s right to all insurance proceeds resulting from such damage or destruction shall be assigned in writing by Seller to Purchaser (less any amounts previously expended by Seller to restore the Property and less any rent loss or business interruption insurance proceeds attributable to the period prior to Closing), Seller shall credit Purchaser the amount of its insurance deductible at Closing and Seller shall have no further obligation to Purchaser with regard to such damage or destruction.

7.2In the event of a taking by condemnation or similar proceedings or actions of all or any material portion of the Property, prior to the Closing Date, Purchaser shall have the option to terminate this Agreement upon written notice to Seller prior to Closing. If Purchaser does not exercise its option under the immediately preceding sentence of this Section to terminate this Agreement, then the Agreement shall remain in full force and effect and Seller shall assign or pay to Purchaser, at Closing, Seller’s entire interest in and to any and all condemnation awards or proceeds from any such proceedings or actions in lieu thereof (less any reasonable costs incurred to obtain to awards). Any termination under this Section 7.2 shall constitute a termination of all of Purchaser’s rights to acquire the Property.

7.3The parties shall have the rights and duties set forth in this Article VII rather than as prescribed by the Uniform Vendor and Purchaser Risk Act.

ARTICLE VIII
COMMISSIONS

8.1Each party represents to the other that there has been no broker, finder, real estate agent or similar agent engaged in connection with the sale of the Property from Seller to Purchaser as contemplated hereby, except for CB Richard Ellis Real Estate Services, Inc., which

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has served exclusively as Seller’s broker (“Seller’s Broker”). Seller shall pay any commission due to Seller’s Broker pursuant to a separate agreement; provided that Seller’s obligation to pay, and the right of Seller’s Broker to receive, any such commission is expressly conditioned upon consummation of the Closing and Seller’s receipt of the Purchase Price hereunder. Each party agrees that should any claim be made for brokerage commissions or finder’s fees by any broker, finder or agent by, through or on account of any acts of the indemnifying party or its agents, employees or representatives, the indemnifying party will hold the other party free and harmless from and against any and all loss, liability, cost, damage and expense (including, without limitation, attorneys’ fees, accountants’ fees, court costs and interest) in connection therewith. The provisions of this Section 8.1 shall survive the Closing.

ARTICLE IX
MISCELLANEOUS

9.1Disclaimers.  PURCHASER AKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SPECIFIED IN SECTION 5.1 OF THIS AGREEMENT OR ANY INSTRUMENT TO BE DELIVERED AT CLOSING, SELLER HAS NOT MADE, AND SELLER HEREBY SPECIFICALLY DISCLAIMS, ANY WARRANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING (a) THE NATURE AND CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, AND THE SUITABILITY THEREOF AND OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY ELECT TO CONDUCT THEREON; (b) THE EXISTENCE, NATURE AND EXTENT OF ANY RIGHT-OF-WAY, LEASE, RIGHT TO POSSESSION OR USE, LIEN, ENCUMBRANCE, LICENSE, RESERVATION, CONDITION OR OTHER MATTER AFFECTING TITLE TO THE PROPERTY; OR (c) WHETHER THE USE OR OPERATION OF THE PROPERTY COMPLIES WITH ANY AND ALL LAWS, ORDINANCES OR REGULATIONS OF ANY GOVERNMENT OR OTHER REGULATORY BODY. PURCHASER AGREES TO ACCEPT THE PROPERTY, AND ACKNOWLEDGES THAT THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE BY SELLER, ON AN “AS IS, WHERE IS, AND WITH ALL FAULTS” BASIS. PURCHASER EXPRESSLY ACKNOWLEDGES THAT EXCEPT AS OTHERWISE EXPRESSLY SPECIFIED IN SECTION 5.1 OF THIS AGREEMENT, IF ANY, AND EXCEPT FOR ANY WARRANTY OF TITLE CONTAINED IN THE DEED TO BE DELIVERED BY SELLER TO PURCHASER AT CLOSING, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (OTHER THAN SELLER’S WARRANTY OF TITLE TO BE SET FORTH IN THE DEED), ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION (INCLUDING, WITHOUT LIMITATION, THE SUBMISSION ITEMS) PROVIDED BY OR ON BEHALF

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OF SELLER TO PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY.  PURCHASER ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SPECIFIED IN ANY WRITTEN INSTRUMENT DELIVERED BY SELLER TO PURCHASER, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW REGARDING OR WITH RESPECT TO ANY SUCH INFORMATION (INCLUDING, WITHOUT LIMITATION, THE SUBMISSION ITEMS) PROVIDED OR TO BE PROVIDED BY SELLER REGARDING THE PROPERTY.

FURTHER, AND WITHOUT IN ANY WAY LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, SELLER HAS NOT MADE AND MAKES NO REPRESENTATION OR WARRANTY, AND HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, WITH RESPECT TO THE PRESENCE OR DISPOSAL ON OR BENEATH THE PROPERTY (OR ANY PARCEL IN PROXIMITY THERETO) OF HAZARDOUS SUBSTANCES OR MATERIALS WHICH ARE CATEGORIZED AS HAZARDOUS OR TOXIC UNDER ANY LOCAL, STATE OR FEDERAL LAW, STATUTE, ORDINANCE, RULE OR REGULATION PERTAINING TO ENVIRONMENTAL OR SUBSTANCE REGULATION, CONTAMINATION, CLEANUP OR DISCLOSURE (INCLUDING, WITHOUT LIMITATION, ASBESTOS) AND SHALL HAVE NO LIABILITY TO PURCHASER THEREFOR. WITHOUT LIMITATION OF THE PRECEDING SENTENCE, SELLER SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE ACCURACY OF ANY ENVIRONMENTAL REPORTS WHICH MAY BE INCLUDED WITHIN THE SUBMISSION ITEMS. BY ACCEPTANCE OF THIS AGREEMENT AND THE DEED TO BE DELIVERED BY SELLER AT CLOSING, PURCHASER ACKNOWLEDGES THAT PURCHASER’S OPPORTUNITY FOR INSPECTION AND INVESTIGATION OF THE PROPERTY (AND OTHER PARCELS IN PROXIMITY THERETO) WILL BE ADEQUATE TO ENABLE PURCHASER TO MAKE PURCHASER’S OWN DETERMINATION WITH RESPECT TO THE PRESENCE OR DISPOSAL ON OR BENEATH THE PROPERTY (AND OTHER PARCELS IN PROXIMITY THERETO) OF SUCH HAZARDOUS SUBSTANCES OR MATERIALS, AND PURCHASER ACCEPTS THE RISK OF THE PRESENCE OR DISPOSAL OF ANY SUCH SUBSTANCES OR MATERIALS.

PURCHASER, AND ANYONE CLAIMING, BY, THROUGH OR UNDER PURCHASER, HEREBY FULLY RELEASES, DISCHARGES, AND HOLDS HARMLESS SELLER, ITS EMPLOYEES, OFFICERS, DIRECTORS, PARTNERS, REPRESENTATIVES AND AGENTS, AND THEIR RESPECTIVE PERSONAL REPRESENTATIVES, HEIRS, SUCCESSORS AND ASSIGNS FROM ANY COST, LOSS, LIABILITY, DAMAGE, EXPENSE, DEMAND, ACTION OR CAUSE OF ACTION ARISING FROM OR RELATED TO ANY CONSTRUCTION DEFECTS, ERRORS, OMISSIONS, OR OTHER CONDITIONS AFFECTING THE PROPERTY; PROVIDED THAT THIS SHALL NOT RELEASE SELLER FROM CLAIMS ARISING, IF ANY, AS A RESULT OF ANY WRITTEN REPRESENTATION OR WARRANTY OF SELLER BEING FALSE WHEN MADE.  PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THIS RELEASE

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SHALL BE GIVEN FULL FORCE AND EFFECT ACCORDING TO EACH OF ITS EXPRESSED TERMS AND PROVISIONS, INCLUDING, BUT NOT LIMITED TO, THOSE RELATING TO UNKNOWN AND SUSPECTED CLAIMS, DAMAGES AND CAUSES OF ACTION.  THIS COVENANT RELEASING SELLER SHALL BE BINDING UPON PURCHASER, ITS PERSONAL REPRESENTATIVES, HEIRS, SUCCESORS AND ASSIGNS.

THE PROVISIONS OF THIS SECTION 10.1 (INCLUDING, WITHOUT LIMITATION, THE WAIVER AND RELEASE OF CLAIMS CONTAINED HEREIN) SHALL SURVIVE THE CLOSING.

9.2Assignment. This Agreement may not be assigned by Purchaser without the prior written consent of Seller, which approval may be granted or withheld in Seller’s sole discretion, provided that Purchaser’s assignee assumes all of the obligations of Purchaser under this Agreement.  Notwithstanding the foregoing, Purchaser may, without Seller’s consent, assign its rights under this Agreement to any entity that is wholly owned or controlled by Purchaser, any of its principals or Inland Western Retail Real Estate Trust, Inc. In the event of an assignment, the assignee shall assume all obligations of this Agreement, but Purchaser shall not be released from primary liability for payment and performance under the Agreement.

9.3Notices.  Any notice pursuant hereto shall be given in writing by (a) personal delivery, or (b) overnight courier (such as Federal Express), or (c) prepaid telegram, telex or facsimile transmission (provided that such telegram, telex or facsimile transmission is confirmed by overnight courier in the manner previously described), sent to the intended addressee at the address set forth below, or to such other address or to the attention of such other person as the addressee shall have designated by written notice sent in accordance herewith, and shall be deemed to have been given either at the time of personal delivery, or in the case of expedited delivery service or mail, as of the date of first attempted delivery at the address and in the manner provided herein, or, in the case of telegram, telex or facsimile transmission, upon delivery. Unless changed in accordance with the preceding sentence, the addresses for notices given pursuant hereto shall be as follows:

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(a)If to Seller:

VV Arizona, L.P.

c/o INVESCO Real Estate Germany, L.P.

1166 Avenue of the Americas

26th Floor

New York, MY 10036-2727

Phone No.: (212) 278-9000

Facsimile No.: (212) 278-9418

Attention: Christian Goebel, Director

With a copy to:

J. Greer Cummings, Jr.

Boult Cummings Conners & Berry PLC

414 Union Street, Suite 1600

Post Office Box 198062

Nashville, Tennessee 37219

Telephone:    (615) 252-2316

Facsimile:     (615) 252-6316

(b)If to Purchaser:

Inland Real Estate Acquisitions, Inc.

2901 Butterfield Road

Oak Brook, Illinois 60523

Attn: G. Joseph Cosenza

Phone No.: (630) 218-8000

Facsimile No.: (630) 218-4935

With a copy to:

Dennis K. Holland, Esq.

The Inland Real Estate Group, Inc.

2900 Butterfield Road

Oak Brook, Illinois 60523

Telephone:     (630) 218-8000

Facsimile:      (630) 218-4900

9.4Modification.  This Agreement cannot under any circumstance be modified orally, and no agreement shall be effective to waive, change, modify or discharge this Agreement in whole or in part unless such agreement is in writing and is signed by both Seller and Purchaser

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9.5Confidentiality and Publicity.  (a) Purchaser recognizes, understands and agrees that Purchaser will become aware of certain information regarding the ownership and operation of the Property, including, specifically, without limitation, the information to be provided to Purchaser pursuant to Section 3.1 hereof and the information to be obtained by Purchaser pursuant to Section 3.2 hereof.  Purchaser agrees that, unless required pursuant to a subpoena properly issued by a court of competent jurisdiction, or as may be required in Purchaser’s reasonable opinion to be disclosed in any SEC or other regulatory filings, it shall not disclose any such information to any third party or parties, except to agents, employees or independent contractors advising or assisting Purchaser with the transaction contemplated hereby, potential or actual investors, potential and actual lenders of all or a portion of the Purchase Price; provided that such parties likewise agree or are otherwise bound to keep such information confidential.

(b)Purchaser and Seller each hereby covenants that (i) prior to the Closing neither Purchaser nor Seller shall issue any press release or public statement (a “Release”) with respect to the transaction without the prior written consent of the other party hereto, except to the extent required by applicable law, and (ii) after the Closing, any Release issued by Purchaser or Seller shall be subject to the prior review and approval of the other party hereto (which approval shall not be unreasonably withheld or delayed), except to the extent required by applicable law.  If Purchaser or Seller is required by applicable law to issue a Release, such party shall, at least two (2) Business Days prior to the issuance of the same, deliver a copy of the proposed Release (other than any SEC filing) to the other party (as appropriate) for its review.

9.6Reporting Requirements.  The Title Company shall serve as the “real estate reporting person” as that term is defined in Section 6045(e) of the Internal Revenue Code of 1986, as amended.  This Agreement shall constitute a designation agreement, the name and address of the transferor and transferee of the transaction contemplated hereby appear in Section 9.3 hereof and Seller, Purchaser and the Title Company agree to retain a copy of this Agreement for a period of four (4) years following the end of the calendar year in which Closing occurs. The provisions of this Section 9.6 shall survive the Closing.

9.7Time of Essence.  Seller and Purchaser agree that time is of the essence with regard to this Agreement.

9.8Business Days.  If any date provided for in this Agreement shall fall on a day which is not a Business Day, the date provided for shall be deemed to refer to the next Business Day.  As used herein, the term “Business Day” shall mean Monday through Friday, excluding bank holidays on which national banking associations are authorized to be closed.

9.9Successors and Assigns. The terms and provisions hereof shall apply to and bind the permitted successors and assigns of the parties hereto.

9.10Exhibits and Schedules.  The following schedules or exhibits attached hereto (collectively, the “Exhibits”) shall be deemed to be an integral part hereof:

(a)           Exhibit A – legal description of the Realty;

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(b)	Exhibit B – Earnest Money Escrow Agreement;
(c)	Exhibit C – Deed;
(d)	Exhibit D – Bill of Sale;
(e)	Exhibit E – Lease Assignment;
(f)	Exhibit F – FIRPTA Affidavit;
(g)	Exhibit G – Tenant Letter;
(h)	Exhibit H – Tenant Estoppel Certificate; and
(i)	Exhibit I – List of Leases.

9.11Entire Agreement.  This Agreement, including the Exhibits and Schedules, contains the entire agreement between Seller and Purchaser pertaining to the transaction contemplated hereby and fully supersedes all prior agreements and understandings between Seller and Purchaser pertaining to such transaction.

9.12Further Assurances.  Both Seller and Purchaser agree that it will without further consideration execute and deliver such other documents and take such other actions, whether prior or subsequent to Closing, as may be reasonably requested by the other party to consummate more effectively the transaction contemplated hereby. The provisions of this Section 9.12 shall survive Closing.

9.13Fees and Expenses.  In the event of any controversy, claim or dispute between Seller and Purchaser affecting or relating to the subject matter or performance of the rights, duties and obligations under this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party all of the prevailing party’s reasonable expenses, including, without limitation, attorneys’ fees, accountants’ fees, court costs and interest.

9.14Counterparts. This Agreement may be executed in multiple counterparts, and all such executed counterparts shall constitute the same agreement. It shall be necessary to account for only one (1) such counterpart in proving the existence, validity or content of this Agreement.

9.15Severability.  If any provision hereof is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall nonetheless remain in full force and effect.

9.16Section and Exhibit Headings. Section and exhibit headings contained herein are for convenience only and shall not be considered in interpreting or construing this Agreement.

9.17Waiver of Jury Trial.  EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS AGREEMENT OR ANY

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OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

9.18Binding Effect.  This Agreement shall not be binding upon either Seller or Purchaser unless and until both Seller and Purchaser have executed this Agreement.

9.19Choice of Law.  This Agreement shall be governed by and construed in accordance with the internal laws of the State of Arizona, without regard to the conflicts of laws principles thereof.

9.20No Third Party Beneficiary.  The provisions hereof and of the documents to be executed and delivered at Closing are and will be for the benefit of Seller and Purchaser only and are not for the benefit of any third party, and accordingly, no third party shall have the right to enforce the provisions hereof or of the documents to be executed and delivered at Closing.

9.21No Recordation. In no event shall this Agreement or any memorandum hereof be recorded by Purchaser or any agent or representative of Purchaser in the public records.  Any such recordation or attempted recordation shall constitute a breach of this Agreement by Purchaser, in which event Seller shall be entitled to terminate this Agreement and receive the Earnest Money from the Title Company and the parties shall have no further liability hereunder, except for any liability that expressly survives termination.

9.22Section 1031 Exchange.  Notwithstanding anything to the contrary contained in this Agreement, Seller’s rights under this Agreement may, at any time and without the consent of Purchaser, be assigned to a “qualified intermediary” which Seller selects for the purpose of effecting a tax deferred exchange of the Property for other real property of like kind pursuant to Section 1031 of the Internal Revenue Code of 1986, as amended.  No such assignment shall release Seller from liability under this Agreement, and Seller shall remain fully and primarily liable for performance of all Seller obligations under this Agreement, notwithstanding such assignment.  Purchaser shall cooperate in all reasonable respects with Seller and such qualified intermediary in order to effectuate the exchange desired by Seller, but at no expense to and without imposition of any liability or obligation on Purchaser.

9.23Effective Date. As used herein, the term “Effective Date” shall mean the date of execution hereof by the last of Seller or Purchaser.

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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement effective as of the Effective Date.

PURCHASER:
[PURCHASER NAME]
By:	INLAND REAL ESTATE ACQUISITIONS, INC.
	By:	/s/ Edward A. Rowe
	Name:			Edward A. Rowe
	Title:		Authorized Signatory
Date Executed by Purchaser:					Dec. 7, 2004
SELLER:
VV ARIZONA, L.P.
By:	VV USA, LLC,
	its General Partner
	By:
	Name:
	Title:
Dated Executed by Seller:

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[SIGNATURE PAGE FOR AGREEMENT OF PURCHASE AND SALE]

IN WITNESS WHEREOF, the Purchaser and Seller have executed counterparts of this Agreement on the dates set forth below, to be effective as of the Effective Date.

PURCHASER:
INLAND REAL ESTATE ACQUISITIONS, INC.
By:
Name:
Title:
Date Executed by Purchaser:
SELLER:
VV ARIZONA, L.P.
By:	VV USA, LLC,
	its General Partner
	By:	/s/ [ILLEGIBLE]
	Name:			[ILLEGIBLE]
	Title:		[ILLEGIBLE] Director
Dated Executed by Seller:					December 1, 2004

EX-10.485

Exhibit 10.485

ASSIGNMENT

This Assignment is made as of the 29th day of December 2004 by INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation (“Assignor”) to and for the benefit of INLAND WESTERN ACWORTH STILESBORO OAKS, L.L.C., and INLAND WESTERN CUMMING GREEN’S CORNER, L.L.C., and INLAND WESTERN COVINGTON NEWTON CROSSROADS, L.L.C., allDelaware limited liability companies (collectively, the “Assignee”).

Assignor does hereby sell, assign, transfer, set over and convey unto Assignee all of its right, title and interest as Buyer under that certain Purchase and Sale Agreement dated December 9, 2004, as amended and entered into by FFI AMERICAN MARKET FUND, L.P., a Georgia limited partnership, as seller, and Assignor, as Buyer (collectively, the “Agreement”), for the sale and purchase of the Stilesboro Oaks shopping center located in Cobb County, Georgia, and Green’s Corner shopping center located in Forsyth County, Georgia, and Newton Crossroads located in Newton County, Georgia as further described by the Agreement,.

Assignor represents and warrants that it is the Buyer under the Agreement, and that it has not sold, assigned, transferred, or encumbered such interest in any way to any other person or entity. By acceptance hereof, Assignee accepts the foregoing assignment and agrees, from and after the date hereof, to (i) perform all of the obligations of Buyer under the Agreement, and (ii) indemnify, defend, protect and hold Assignor harmless from and against all claims and liabilities arising under the Agreement.

IN WITNESS WHEREOF, Assignor and Assignee have executed this instrument as of the date first written above.

ASSIGNOR:
INLAND REAL ESTATE ACQUISITIONS, INC. an Illinois corporation
By:	/s/ G. Joseph Cosenza
Name:			G. Joseph Cosenza
As Its:			President
ASSIGNEE:
INLAND WESTERN ACWORTH STILESBORO OAKS, L.L.C., a Delaware limited liability company
		By: Inland Western Retail Real Estate Trust, Inc., a Maryland corporation
			By:	/s/ [ILLEGIBLE]
			Name:		[ILLEGIBLE]
			As Its:		[ILLEGIBLE]

ASSIGNEE:
INLAND WESTERN CUMMING GREEN’S CORNER, L.L.C., a Delaware limited liability company
	By: Inland Western Retail Real Estate Trust, Inc., a Maryland corporation
	By:	/s/ [ILLEGIBLE]
	Name:		[ILLEGIBLE]
	As Its:		[ILLEGIBLE]
ASSIGNEE:
INLAND WESTERN COVINGTON NEWTON CROSSROADS, L.L.C., a Delaware limited liability company
	By: Inland Western Retail Real Estate Trust, Inc., a Maryland corporation
	By:	/s/ [ILLEGIBLE]
	Name:		[ILLEGIBLE]
	As Its:		[ILLEGIBLE]

EX-10.486

Exhibit 10.486

SECOND
AMENDMENT TO AGREEMENT

This SECOND AMENDMENT TO AGREEMENT (the “Amendment”) is made and entered into as of the 20^th day of December 2004, by and between FFI AMERICAN MARKET FUND, L.P., a Georgia limited partnership (“Seller”) and Inland Real Estate Acquisitions, Inc. (“Purchaser”).

W I T N E S S E T H:

WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale Agreement dated December 9, 2004 as amended by Amendment to Agreement dated December 14, 2004 (collectively, the “Agreement”), for the sale and purchase of the following properties: Green’s Corner located in Cumming, Georgia; Newton Crossroads located in Covington, Georgia; and Stilesboro Oaks located in Acworth, Georgia, each as legally described by the Agreement (collectively, the “Property”).

WHEREAS, Purchaser and Seller have mutually agreed to amend certain provisions of the Agreement.

NOW THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Purchaser and Seller agree as follows:

1.In accordance with Section 2.3 of the Agreement, Purchaser has notified Seller of its title objections to the Title Commitment and to the Surveys for Green’s Corner and Newton Crossroads in that certain title objection letter dated December 17, 2004 (the “Title Objection Letter”).  Notwithstanding the foregoing, Seller and Purchaser agree that Purchaser shall retain its rights to object solely to title matters first raised on the Survey for Stilesboro Oaks through December 22, 2004 at 5:00 p.m. (EST), and in the event that Purchaser has not obtained the Survey for Stilesboro on or before such date and time, Purchaser shall have the right to terminate the Agreement in accordance with Section 2.3.

2.In accordance with Section 2.3 of the Agreement, Seller shall respond in writing to Purchaser’s Title Objection Letter on or before December 22, 2004, but Seller retains the right to respond to any title objections raised by Purchaser with respect to the Survey for Stilesboro Oaks through December 23, 2004 at 5:00 p.m. (EST).

3.This Second Amendment may be executed in one or more counterparts, each of which shall constitute an original and all of which taken together shall constitute one agreement.  Each person executing this Second Amendment represents that such person has full authority and legal power to do so and bind the party on whose behalf he or she has executed this Second Amendment.  Any counterpart to this Second Amendment may be executed by facsimile copy and shall be binding on the parties.

Except as modified herein, the Agreement shall remain unmodified and in full force and effect.

[signatures on following page]

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Seller:
FFI AMERICAN MARKET FUND, L.P. a
Georgia limited partnership
			By:		FFI REAL ESTATE USA, LLC, A Georgia limited liability company, its general partner
					By:	/s/ Robert Cancelliere
					Name:			Robert Cancelliere
					Title:		President
Purchaser:
INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
By:	/s/ G. Joseph Cosenza
Name:				G. Joseph Cosenza
Title:		President

3

AMENDMENT TO AGREEMENT

This AMENDMENT TO AGREEMENT (the “Amendment”) is made and entered into as of the 14^th day of December 2004, by and between FFI AMERICAN MARKET FUND, L.P., a Georgia limited partnership (“Seller”) and Inland Real Estate Acquisitions, Inc. (“Purchaser”).

W I T N E S S E T H:

WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale Agreement dated December 9, 2004 (the “Agreement”), for the sale and purchase of the following properties: Green’s Corner located in Cumming, Georgia; Newton Crossroads located in Covington, Georgia; and Stilesboro Oaks located in Acworth, Georgia, each as legally described by the Agreement (collectively, the “Property”).

WHEREAS, Purchaser and Seller have mutually agreed to amend certain provisions of the Agreement.

NOW THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Buyer and Seller agree as follows:

1.Purchaser approves of its due diligence investigations of the Property subject to Seller exercising its commercially reasonable efforts to deliver the following information to Purchaser prior to the date of Closing: (i) items 4, 5, 7, 12, 13, 15, 26, and 28 described by a letter dated December 2, 2004 from Robert Brinkman (copy attached) to Bridget O’Donnell, and (ii) Kroger CAM quarterly statements for 2003; and (iii) explanation of delinquencies re GNC and Buck’s Pizza; and (iv) GNC-2002 & 2003 CAM and Tax Reconciliation.

2.Seller and Purchaser further agree that at Closing, Seller shall pay to Purchaser by separate check from Seller’s net proceeds of sale, the following: (i) $230,802; (ii) $20,000; (iii) $7,000; and (iv) $11,500 all for various repairs to the Property.

3.Purchaser reserves its rights in regard to Survey and Title as described in Section 2.3 of the Agreement.

4.This Amendment may be executed in one or more counterparts, each of which shall constitute an original and all of which taken together

shall constitute one agreement.  Each person executing this Amendment represents that such person has full authority and legal power to do so and bind the party on whose behalf he or she has executed this Amendment.  Any counterpart to this Amendment may be executed by facsimile copy and shall be binding on the parties.

Except as modified herein, the Agreement shall remain unmodified and in full force and effect.

Seller:
FFI AMERICAN MARKET FUND, L.P. a
Georgia limited partnership
	By:		FFI REAL ESTATE USA, LLC, A Georgia limited liability company, its general partner
			By:	/s/ Robert Cancelliere
			Name:			Robert Cancelliere
			Title:		President
Purchaser:
INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
By:
Name:		G. Joseph Cosenza
Title:	President

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	Inland Real Estate Acquisitions, Inc. 2901 Butterfield Road Oak Brook, IL 60623 Phone: (630) 218-4908 Fax: 4935 www.inlandgroup.com
December 2, 2004
	EMAIL
	Ms. Bridget O’Donnell Investment Sales Maxwell Properties, Inc. 6017 Sandy Springs Circle Atlanta, GA 30328

RE:Kroger Portfolio
Atlanta, GA

Dear Bridget:

We have completed our comprehensive file and lease review and have the following comments and questions, and need for additional information on each property.

Green’s Corner

1.Kroger – We are missing the LEASE dated 1/23/98 and Exhibit B to the LEASE AGREEMENT.  (We did receive Exhibit A today.)

You had previously responded to a similar request by resending the LEASE AGREEMENT which we already had.  The Kroger lease consists of both parts.

2.Mailboxes, Etc. – Exhibit J is an addendum which indicates the Guarantor is Peachtree Etc., Inc. We need a copy of the Guaranty Agreement.  Is this Guarantor in addition to the one shown in Exhibit F, or a replacement guarantor?

Exhibit J also indicates the space to be 1,324 5F, but the rent roll shows 1,320 SF.  Note that the Exhibit J states that the addendum prevails over the lease.

3.Subway – We are missing Exhibit B.

4.KB’s BBQ – We need sales figures for 2003.

5.Golden Palace – We need sales figures for 2003.

Newton Crossroads

6.Washington Mutual – The expiration date on the rent roll appears incorrect.  Based on the lease, it should be 4/30/07. Also note that the future rent dates and rent increases are not shown on the rent roll.

7.GNC – We are missing the top of virtually all pages of the original lease. Can you see if you can get us a more complete copy of the original lease (the sublease is OK)?

We are missing sales reports for 2003 and 12/02 and 3/01.

8.Subway – The remainder of the co-tenancy provision in Section 4 appears to be missing.  Would you please check into this?

9.H&R Block – This lease expires 1/31/05.  Although there is a special extension provision extending the lease to 4/30/05, in the case that the lease is not renewed, has this lease been renewed? Are renewal terms being negotiated?

10.Just New Releases – We are missing page 7 of the lease.

11.Great Clips – We need the document extending the term from 7/1/02 to 6/30/07.  In a previous request, you provided us with an Estoppel/ Amendment, but that only extended the lease to 6/12/02.

12.Daily Nails – The sales reports for 2002, 2003 and 2004 are incomplete (missing various months).  Please provide the missing information.

13.Best Cleaners – Section 5 of the Special Stipulations state that the tenant is to provide the landlord with a copy of a Limited Pollution Liability Policy with a $1 Mil limit.  Please forward a copy for our review.

Exhibit I – Special Stipulations – We are missing some pages as we only have the first page.

Please provide tenant sales figures for at least 2002, 2003 and 2004 YTD.

Stilesboro Oaks

14.Clothing Care Cleaners – The insurance provision does not require this tenant to carry environmental liability insurance; however, Section 13.2 (f) permits the landlord to require the tenant to carry other insurance as the landlord deems prudent.  Has such insurance been required of the tenant?

15.We are missing the following tenant sales reports.

•Clothing Care – 6/03 – 9/03

•GNC – 2003; 1/02, 12/02; l/0l – 3/01

•Gondoller Pizza – 10/03

•Great Clips – 2002 and 10/03

•Mailboxes, Etc. – 2002 (except 3/02 – 6/02); 2003 and 2004 YTD

•Mr. Wonton – 7/03 and 12/03; 1/04 and 9/04

•Vintage Bottle – 3/02, 4/02, 6/02, 10/02, 11/02 and 6/03 – 12/03

Applies to All Three Properties

We are in need of the following items from our due diligence checklist for each property.

16.Updated/Corrected Rent Rolls

17.Rent Commencement Date Letters

•Green’s – Buck’s Pizza and KB’s BBQ

•Stilesboro – Tae Kwon Do and Subway

18.Last three year’s bills for insurance on each center

19.Copies of actual tenant invoices for the 2003 CAM / Tax / Insurance Reconciliations

20.2004 YTD Tenant Ledgers indicating at least the current monthly amounts paid by each tenant for CAM / Tax / Insurance plus a YTD balance paid by each tenant

21.11/30/04 Delinquency Report

22.Service Agreements –

•Fire / Sprinkler Alarm Monitoring and Maintenance

•Cleaning / Sweeping / Porter

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•Exterminating

•Landscaping

•Scavenger / Dumpsters (We received this for Green’s only)

23.Copies of one month’s invoices for recurring contractual operating expenses (for above service agreements)

24.Copies of invoices for various significant (over $1,000) expense items (repairs, maintenance, contractual)

25.Copies of all roof warranties and other warranties that may exist

26.Current Tenant Contact List

27.Certificates of Insurance

•Green’s – McDonalds (Building and General Liability), Cumming Nall & Tan, Subway (expired 11/14/04), and Great Clips (expired 11/13/04)

•Newton – GNC, Great Clips, Peking Chinese, Daily Nails (expired 8/15/04)

•Stilesboro – Subway and Vintage Bottle Shop

28.Current Property Liability and Umbrella Insurance Policies, or Certificate of Insurance summarizing coverages

29.Certificates of Occupancy

•Green’s – Subway, Bucks Pizza, KB’s BBQ, Great Clips

•Newton – H&R Block, Just New Release

•Stilesboro – We have received only the Tae Kwon Do C/O.

30.Building Plans and Specifications

31.Tenant Estoppels – Please be cautious to utilize the form which is attached to the Purchase Agreement.

Thank you for your assistance.  I look forward to working closely with you on these transactions.

If you have any questions, you can contact me at (630) 218-4909 or via email at rbrinkman@inlandgroup.com.

Sincerely,

INLAND REAL ESTATE ACQUISITIONS, INC.

/s/ Robert W. Brinkman

Robert W. Brinkman

Due Diligence Officer

cc: Joe Cosenza, Charles Benvenuto, Vicki Yates, Andrew Viola, Matt Swanson

/kek

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PURCHASE AND SALE AGREEMENT

BETWEEN

FFI AMERICAN MARKET FUND, L.P.,
a Georgia limited partnership

AS SELLER,

AND

INLAND REAL ESTATE ACQUISITIONS, INC.,

an Illinois corporation

AS PURCHASER

As of December 9, 2004

PURCHASE AND SALE AGREEMENT

THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made as of December 9, 2004 (the “Effective Date”), by and between FFI AMERICAN MARKET FUND, L.P., a Georgia limited partnership (“Seller”), and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation (together with its assignee identified pursuant to the terms of Section 11.3 hereof, collectively, “Purchaser”).

CHICAGO TITLE & TRUST COMPANY, a Missouri corporation (“Escrow Agent”), and MAXWELL PROPERTIES INC., a Georgia licensed real estate broker (“Broker”) are parties to this Agreement for the limited purposes set forth herein.

WITNESSETH:

ARTICLE 1

PURCHASE AND SALE

1.1Agreement of Purchase and Sale. Subject to the terms and conditions hereinafter set forth, Seller agrees to sell and convey and Purchaser agrees to purchase the following:

(a) those certain tracts or parcels of land more particularly described on Exhibit A attached hereto and made a part hereof (collectively, the “Land”), together with all and singular rights and appurtenances pertaining thereto, including all right, title and interest of Seller (if any) in and to adjacent streets, alleys or rights-of-way.

(b) the buildings, structures, fixtures and other improvements on the Land (collectively, the “Improvements”; the Land and the Improvements being hereinafter sometimes collectively referred to as the “Real Property”).  The separately named facilities comprising the Real Property are listed on Exhibit A-1 attached hereto (each, a “Project”).

(c) all of Seller’s right, title and interest (if any) in, to and under all tangible personal property upon the Land or within the Improvements (collectively as the “Tangible Personal Property”), including specifically, without limitation, appliances, equipment, furniture, carpeting, draperies and curtains, tools and supplies, and other items of tangible personal property owned by Seller and used exclusively in connection with the operation of the Land and the Improvements, but excluding (i) cash and cash equivalents, (ii) computer software and computer files, (iii) personal property owned by tenants under the Leases and their respective employees, (iv) any items leased to Seller, and (v) all brochures, advertising copy, promotional materials, manuals, reports, portfolios, binders, training materials and other such items.

(d) all of Seller’s right, title and interest in and to all agreements listed and described on Exhibit B (the “List of Leases”) attached hereto and made a part hereof,

pursuant to which any portion of the Land or Improvements is used or occupied by anyone other than Seller (collectively, the “Leases”).

(e) all of Seller’s right, title and interest in, to and under (i) the Designated Service Contracts (as defined in Section 5.7(b) of this Agreement), (ii) all assignable existing warranties and guaranties issued to or inuring to the benefit of Seller in connection with the Improvements or the Tangible Personal Property, (iii) all governmental permits, licenses and approvals, if any, belonging to or inuring to the benefit of Seller and pertaining to the Real Property or the Tangible Personal Property, but only to the extent that such permits, licenses and approvals are assignable and only to the extent that such permits, licenses and approvals relate to the Real Property or the Tangible Personal Property as opposed to other property of Seller and (iv) subject to Section 1.7 hereof, the shopping center names Stilesboro Oaks, Green’s Corner and Newton Crossroads (collectively, the “Intangible Property”).

1.2Property Defined. The Land, the Improvements, the Tangible Personal Property, the Leases and the Intangible Property are hereinafter sometimes referred to collectively as the “Property.”

1.3Permitted Exceptions. The Property shall be conveyed subject to the matters which are, or are deemed to be, Permitted Exceptions pursuant to Article 2 hereof (herein referred to collectively as the “Permitted Exceptions”).

1.4Purchase Price. Seller is to sell and Purchaser is to purchase the Property for a total purchase price of THIRTY-FIVE MILLION FOUR HUNDRED EIGHTY THOUSAND AND NO/100 DOLLARS ($35,480,000.00) (the “Purchase Price”).

1.5Payment of Purchase Price. The Purchase Price, as adjusted by prorations and adjustments as herein provided, shall be payable in full at Closing in cash by wire transfer of immediately available federal funds to a bank account of Escrow Agent designated by Escrow Agent in writing to Purchaser prior to the Closing (“Escrow Agent’s Account”), and, as adjusted by prorations and adjustments as herein provided, shall be subsequently payable in full at Closing in cash by wire transfer of immediately available federal funds to a bank account designated by Seller in writing to Escrow Agent prior to the Closing.

1.6Earnest Money. On the date hereof, Purchaser shall deposit with the Chicago, Illinois office of Escrow Agent the sum of FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00) (the “Earnest Money”) in good funds, either by certified bank or cashier’s check or by wire transfer of immediately available funds.  The Escrow Agent shall invest the Earnest Money pursuant to Purchaser’s directions and in accordance with the terms and conditions of Article 10.  All interest accruing and other income earned on such sum shall be the property of Purchaser in all events and shall not become a part of the Earnest Money.  If Purchaser fails to deliver the Earnest Money to the Escrow Agent within the time period specified above, Seller shall be entitled to terminate this Agreement (until such time as Purchaser has deposited the Earnest Money with Escrow Agent), and upon such termination, neither party shall have any further rights, obligations or liabilities hereunder except to the extent that any

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right, obligation or liability set forth herein expressly survives termination of this Agreement.  In any event, if Purchaser is entitled to have the Earnest Money returned to Purchaser pursuant to any provision of this Agreement, One Hundred Dollars ($100.00) of the Earnest Money shall nevertheless be paid to Seller as good and sufficient consideration for entering into this Agreement.  Time is of the essence for the delivery of the Earnest Money.

1.7Shopping Center Name. Seller acknowledges that after Closing, Purchaser shall be entitled to use the names of the Projects set forth on Exhibit A-1 as part of its names for the respective Improvements to the same extent Seller was so entitled; provided, however, Seller makes no representation or warranty as to any right to use such names or any other names used in connection with the Improvements.  This Section 1.7 shall survive the Closing.

ARTICLE 2

TITLE AND SURVEY

2.1Title Examination; Commitment for Title Insurance.  No later than the Title Objection Deadline (as hereinafter defined), Purchaser shall obtain from Escrow Agent (in its capacity as agent for the title insurer, sometimes hereinafter referred to as the “Title Company”), at Purchaser’s expense, commitments for owner’s polices of title insurance (collectively, the “Title Commitments”) covering each Project comprising the Real Property, and shall deliver to Seller a copy of such Title Commitments, together with legible copies of all instruments referred to therein.

2.2Survey.  On or before the Title Objection Deadline, Purchaser may obtain, at Purchaser’s expense, ALTA/ACSM surveys of each Project comprising the Real Property prepared by a licensed Georgia surveyor, and shall deliver three (3) copies of any such surveys to Seller and to the Title Company.  Such surveys shall constitute the “Surveys” hereunder.  For purposes of the Deeds to be delivered to Purchaser at the Closing, the legal descriptions of the Property shall be the legal descriptions by which Seller acquired the Property, copies of which are attached hereto as Exhibit A, less and except any rights-of-way or other conveyances previously made by Seller.  If the metes and bounds description drawn from any Survey reflects a legal description different from the corresponding legal description attached hereto as a portion of Exhibit A, Seller shall also deliver a quit claim deed for such portion of the Property at Closing containing the legal description drawn from the Survey.

2.3Title Objections; Cure of Title Objections.  Purchaser shall have until December 20, 2004 (the “Title Objection Deadline”) to notify Seller, in writing, of such objections as Purchaser may have to the Title Commitments or the Surveys, other than the Permitted Exceptions described in Section 2.4 hereof.  In the event that Purchaser has not received one or more of the Surveys prior to December 20, 2004, Purchaser shall have the right to terminate this Agreement as of December 20, 2004 by delivering written notice of such termination to Seller on said date, in which event the Earnest Money shall immediately be returned to Purchaser in accordance with Section 1.6 of this Agreement, and thereafter neither party hereto shall have any further rights, obligations or liabilities hereunder except to the extent

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that any right, obligation or liability set forth herein expressly survives termination of this Agreement.  Any item contained in the Title Commitments or any matter shown on the Surveys to which Purchaser does not object on or before the Title Objection Deadline shall be deemed a “Permitted Exception”.  In the event Purchaser shall notify Seller of objections to title or to matters shown on the Surveys on or before the Title Objection Deadline, Seller shall have the right, but not the obligation, to cure such objections.  On or before December 22, 2004, Seller shall notify Purchaser in writing whether Seller elects to attempt to cure such objections (and Seller’s failure to provide such a notice shall be deemed an election by Seller not to cure any such objection).  If Seller elects to attempt to cure, and provided that Purchaser shall not have terminated this Agreement in accordance with Section 3.2 hereof, Seller shall use commercially reasonable efforts to attempt to remove, satisfy or cure the same.  For this purpose Seller shall be entitled to a reasonable extension of the Closing if additional time is required, but in no event shall the extension extend for more than thirty (30) days.  If Seller elects (or is deemed to have elected) not to cure any valid objections specified in Purchaser’s notice, or if Seller fails or is unable to effect a cure prior to Closing (or any date to which the Closing had been extended), Purchaser shall have the following options: (i) to accept a conveyance of the Property subject to the Permitted Exceptions, specifically including any matter objected to by Purchaser which Seller is unwilling or unable to cure, and without reduction of the Purchase Price; or (ii) to terminate this Agreement by sending written notice thereof to Seller and Escrow Agent, and upon delivery of such notice of termination, this Agreement shall terminate and the Earnest Money shall immediately be returned to Purchaser in accordance with Section 1.6 of this Agreement, and thereafter neither party hereto shall have any further rights, obligations or liabilities hereunder except to the extent that any right, obligation or liability set forth herein expressly survives termination of this Agreement.  If Seller notifies Purchaser that Seller does not intend to attempt to cure any title objection, or if Seller is deemed to have elected not to cure any title objections, or if Seller notifies Purchaser of Seller’s intent to cure any objection and Seller later notifies Purchaser that Seller has failed or will be unable to effect a cure thereof, Purchaser shall, within two (2) days after receiving Seller’s notice, notify Seller in writing whether Purchaser shall elect to accept the conveyance under clause (i) above or to terminate this Agreement under clause (ii) above (with Purchaser’s failure to provide such a notice deemed an election by Purchaser to accept conveyance under clause (i) above). Notwithstanding anything contained herein to the contrary, Seller shall be obligated at Closing to discharge (a) all mortgages of Seller (regardless of whether Purchaser objects to such mortgages) and (b) all undisputed monetary liens arising by, through or under Seller. The term “mortgage” as used herein includes any mortgage, deed of trust, deed to secure debt and similar security instrument securing an indebtedness of Seller and encumbering the Property or any portion thereof; the terms “discharge” and “discharged” as used herein include compliance with a statutory bonding procedure that has the legal effect of removing the mortgage or item as a lien on the Property or otherwise allows the mortgage or item to be removed from the title exceptions in the Title Policies.

2.4Conveyance of Title.  At Closing, Seller shall convey and transfer the Property to Purchaser.  It shall be a condition to Purchaser’s obligation to close this transaction that title to the Real Property conveyed and transferred to Purchaser shall be such title to the Real Property as will enable the Title Company to issue to Purchaser its extended coverage owner’s policies of title insurance, together with such endorsements as required by Purchaser (the “Title Policies”)

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covering each Project comprising the Real Property, collectively in the full amount of the Purchase Price, subject to the following matters, which shall be deemed to be Permitted Exceptions:

(a)the rights of tenants under the Leases described in the List of Leases and any new Leases entered into between the Effective Date and Closing and (if required) approved by Purchaser in accordance with the terms of this Agreement;

(b)the lien of all ad valorem real estate taxes and assessments not yet due and payable as of the date of Closing, subject to adjustment as herein provided;

(c)local, state and federal laws, ordinances or governmental regulations, including but not limited to, building, zoning and land use laws, ordinances and regulations, now or hereafter in effect relating to the Property;

(d)all matters shown in Schedule B of the Title Commitments, subject to the provisions of Section 2.3 of this Agreement or as otherwise expressly provided in this Agreement;

(e)additional items, if any, appearing of record or shown on the Surveys, except to the extent Seller agrees to cure any such matters pursuant to Section 2.3 or 2.5 hereof; and

(f)additional items, if any, approved by Purchaser pursuant to Section 2.6 hereof.

2.5Pre-Closing “Gap” Title Defects.  Whether or not Purchaser shall have furnished to Seller any notice of title objections pursuant to the foregoing provisions of this Agreement, Purchaser may, at or prior to Closing, notify Seller in writing of any objections to title first raised by the Title Company or the Surveyor and first arising between (a) the effective date of the applicable Title Commitment and (b) the date on which the transaction contemplated herein is scheduled to close; provided, however, that Purchaser must notify Seller of any such objections within the earlier of (x) the date that is three (3) business days after Purchaser’s first receipt of an updated title commitment, updated survey or written notice from Seller (whichever first provides notice) of the condition giving rise to any such objection and (y) the date that is five (5) days before the Closing Date.  With respect to any objections to title set forth in such notice, Seller shall have the same option to cure and Purchaser shall have the same option to accept title subject to such matters or to terminate this Agreement as those which apply to any notice of objections made by Purchaser on or before the Title Objection Deadline.  If Seller elects to attempt to cure any such matters, Seller shall have the right, at its election, to extend the date for Closing by a reasonable additional time to effect such a cure, but in no event shall the Closing be extended for more than thirty (30) days.

2.6Seller’s Covenant Not to Encumber.  Seller agrees that, between the Effective Date and the Closing Date, Seller will not sell, assign, rent, convey (absolutely or as security), grant a security interest in, or otherwise encumber or dispose of, the Property (or any part thereof

5

or estate therein) in any manner that will survive Closing, except as approved in writing by Purchaser or as expressly provided in this Agreement.  Notwithstanding the foregoing, Seller shall have the right to (i) continue leasing the Property in the manner described in Section 5.4(b) hereof, and (ii) amend or enter into service contracts in the manner described in Section 5.4(g) hereof.

ARTICLE 3

INSPECTION PERIOD

3.1Right of Inspection.

(a) Beginning on November 5, 2004 and continuing thereafter so long as this Agreement remains in full force and effect, Purchaser shall have the right to examine at such place or places at the Property, in the offices of the property manager or elsewhere as the same may be located, any operating files maintained by Seller or its property manager in connection with the leasing, maintenance and/or management of the Property, including, without limitation, the Leases, lease files, service contracts, bills, invoices, receipts and other general records relating to the income and expenses of the Property, correspondence, surveys, plans and specifications, warranties for services and materials provided to the Property and similar materials, but excluding materials not directly related to the leasing, maintenance, and/or management of the Property, such as Seller’s internal memoranda,  financial projections, insurance policies, operating budgets, appraisals, accounting and tax records and similar proprietary or confidential information.

(b) Seller delivered to Purchaser copies of the items listed on Exhibit H attached hereto and by this reference incorporated herein (the “Property Information”) on November 4, 2004, to the extent the same were in Seller’s possession, and Purchaser hereby acknowledges receipt of said items.

(c) During the term of the Agreement, Purchaser and its agents, representatives, contractors and consultants (collectively, the “Purchaser Parties”) shall, upon twenty-for (24) hours prior telecopy notice to Seller c/o Bill Worthington at Maxwell Properties (Fax No. 404-255-3382; Phone No. 404-255-3001) have the right to enter upon the Property during regular business hours for the purpose of conducting such investigations of the Property (collectively, “Inspections”) as Purchaser may reasonably require, and which are reasonably approved by Seller; provided that, Seller shall have the opportunity to have one of its representatives accompany Purchaser on each such entry; and provided further that all such inspections shall be subject to the rights of tenants under the Leases.  Any and all such Inspections shall be done at Purchaser’s sole cost and expense.  The Inspections shall not damage the Property in any respect, shall not interfere with the rights or operations of any tenants of the Property, shall be conducted in accordance with standards customarily employed in the industry and in compliance with all governmental laws, rules and regulations and, unless Purchaser obtains the prior written consent of Seller, which may be granted or withheld in Seller’s sole discretion, shall not be invasive in any respect (specifically, for example, Purchaser shall not conduct any soil borings,

6

test pits, groundwater testing, or other Phase II or Phase III environmental testing or any testing relating to the operation of any dry cleaner without prior approval of Seller).  Prior to conducting any environmental testing of the Property, including Phase I testing, Purchaser shall obtain Seller’s prior approval of Purchaser’s environmental consultant.  Following each such entry by Purchaser with respect to the Inspections, Purchaser shall promptly restore, or cause to be restored, the Property to its original condition as existed prior to any such Inspections.  Seller shall reasonably cooperate with Purchaser in its Inspections, but shall not be obligated to incur any liability or expense in connection therewith.

(d) Purchaser shall indemnify, hold harmless and defend Seller, Seller’s partners, and their respective officers, directors, shareholders, agents and employees (collectively, the “Indemnitees”) from and against any and all liabilities, losses, costs, damages and expenses (including reasonable attorneys’ fees and expenses and court costs) of whatsoever nature that may be incurred by the Indemnitees, or any of them, and arising out of or in connection with personal injury or death of persons, loss, destruction or damage to property whatsoever, or any liens or claims of lien filed against the Property, where any such personal injury, death, loss, destruction, damage, lien or claim of lien results in whole or in part from the acts or omissions of Purchaser.  In so defending the Indemnitees and each of them, Purchaser shall provide counsel that is reasonably acceptable to such Indemnitees.  This Section 3.1(d) shall survive the revocation, termination or consummation of this Agreement.

(e) Purchaser shall cause all persons and entities entering the Property at Purchaser’s request to maintain adequate and appropriate insurance to cover risks of the type described in Section 3.l(d) above, and before undertaking the Inspections, Purchaser will at Seller’s request deliver to Seller written evidence establishing to Seller’s reasonable satisfaction that such adequate and appropriate insurance is being maintained.  Before undertaking the Inspections, Purchaser shall name Seller or cause Seller to be named as an additional insured under the insurance policies to be maintained in accordance with this Section 3.1.

(f) Purchaser expressly agrees that the results of any Inspections (including without limitation the results of any environmental testing) obtained by Purchaser (or its contractors, subcontractors, consultants, representatives or agents) in the course of or in connection with any Inspections shall remain confidential to Purchaser.  Unless required by law, or if Seller so requests in writing, Purchaser (and its contractors, subcontractors, consultants, representatives and agents) shall not disclose any such results to Seller, to the Georgia Environmental Protection Division, or to any other third parties.  In the event of any inconsistency between this Section 3.1 and the provisions of that certain Access Agreement entered into by Seller and Purchaser with respect to the Property, the terms of this Section 3.1 shall govern.

3.2Right of Termination.  Seller agrees that in the event Purchaser determines, in Purchaser’s sole discretion, that it does not wish to acquire the Property for any reason or no reason, then Purchaser shall have the right to terminate this Agreement by either (a) giving written notice of termination to Seller on or before 5:00 p.m. local time at the Property on

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December 14, 2004 (the “Inspection Date”), or (b) failing to give written notice to Seller on or before the Inspection Date of Purchaser’s election to proceed with this transaction and waive its right to terminate pursuant to this Section 3.2, with Purchaser’s failure to provide any such notice deemed an election to terminate.  Upon any such termination or deemed termination of this Agreement pursuant to Purchaser’s rights under this Section 3.2, then this Agreement shall terminate, the Earnest Money shall be returned to Purchaser in accordance with Section 1.6 hereof, and Purchaser and Seller shall have no further rights and obligations hereunder except those which expressly survive termination of this Agreement.  If Purchaser gives timely written notice of its election to proceed and to waive its right to terminate pursuant to this Section 3.2 on or before the Inspection Date, then Purchaser shall no longer have the right to terminate this Agreement under this Section 3.2 and, subject to any contrary provisions, including Purchaser’s termination rights pursuant to Section 2.3 of this Agreement, Purchaser shall be bound to proceed to Closing and consummate the transaction contemplated hereby pursuant to the terms of this Agreement.  Time is of the essence with respect to the provisions of this Section 3.2. The period commencing on the Effective Date and ending on the Inspection Date is sometimes referred to herein as the “Inspection Period”.

Notwithstanding any provision of this Agreement to the contrary, Escrow Agent is hereby authorized and directed to release the Earnest Money to Purchaser immediately (without further authorization from Seller) upon receipt by Escrow Agent of Purchaser’s notice of termination of the Agreement in accordance with this Section 3.2 (with a copy of such notice to be delivered concurrently by Purchaser to Seller) on or prior to 5:00 p.m. local time at the Property on December 14, 2004.

ARTICLE 4

CLOSING

4.1Time and Place.  The consummation of the transaction contemplated hereby (“Closing”) shall be held at the Chicago, Illinois office of Escrow Agent, at 2:00 p.m. local time at the Property) on December 31, 2004 (or such extended date as may be provided under other provisions of this Agreement).  At Closing, Seller and Purchaser shall perform the obligations set forth in, respectively, Section 4.2 and Section 4.3.  The Closing may be held at such other place or such earlier time and date as Seller and Purchaser shall mutually approve.  The date on which the Closing is scheduled to occur hereunder (or, if earlier, the date on which Closing occurs) is sometimes referred to herein as the “Closing Date.”

4.2Seller’s Obligations at Closing.  At Closing, Seller shall:

(a) deliver to Purchaser one or more duly executed limited warranty deeds (the “Deeds”) in recordable form, conveying the Real Property, subject to the Permitted Exceptions; the warranty of title in the Deeds will extend only to claims made by, through or under Seller and not otherwise;

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(b) deliver to Purchaser one or more duly executed bills of sale conveying the Tangible Personal Property and Intangible Personal Property with special warranty of title but subject to the limitations set forth in Section 9.2;

(c) assign the Leases then in effect to Purchaser, and Purchaser shall assume, from and after the date of Closing, the landlord/lessor interest in and to the Leases, as amended or supplemented pursuant to this Agreement, by one or more duly executed assignment and assumption agreements pursuant to which (i) Seller shall indemnify Purchaser and hold Purchaser harmless from and against any and all claims pertaining to the Leases arising from events occurring prior to Closing and (ii) Purchaser shall indemnify Seller and hold Seller harmless from and against any and all claims pertaining to the Leases arising from events occurring from and after the Closing, including without limitation, claims made by tenants with respect to tenants’ security deposits to the extent paid, credited or assigned to Purchaser that are identified in such assignment and assumption agreement or on a settlement statement executed by the parties in connection with Closing;

(d) assign to Purchaser, and Purchaser shall assume, from and after the date of Closing, Seller’s interest in the Designated Service Contracts (as defined in Section 5.7(b) hereof), as amended or supplemented pursuant to this Agreement, by one or more duly executed assignment and assumption agreements pursuant to which (i) Seller shall indemnify Purchaser and hold Purchaser harmless from and against any and all claims pertaining to the Designated Service Contracts or the other Intangible Property arising from events occurring prior to Closing and (ii) Purchaser shall indemnify Seller and hold Seller harmless from and against any and all claims pertaining to the Designated Service Contracts or the other Intangible Property arising from events occurring from and after the Closing;

(e) join with Purchaser to execute a notice in form and content reasonably satisfactory to Purchaser and Seller, which Purchaser shall send to each tenant under each of the Leases informing such tenant of the sale of the Property and of the assignment to Purchaser of Seller’s interest in, and obligations under, the Leases (including, if applicable any security deposits) and directing that all rent and other sums payable after the Closing under each such Lease shall be paid as set forth in the notice.  Purchaser shall deliver to each and every tenant of the Property under a Lease thereof a signed statement acknowledging Purchaser’s receipt and responsibility for each tenant’s security deposit (to the extent delivered by Seller to Purchaser at Closing and identified pursuant to Section 4.2(c) at Closing), if any, all in compliance with and pursuant to the applicable law.  The provisions of this sub-section (e) shall survive Closing.

(f) deliver to Purchaser a certificate (“Seller’s Closing Certificate”), dated as of the date of Closing and duly executed by Seller, stating that the representations and warranties of Seller contained in Section 5.1 of this Agreement are true and correct in all material respects as of the date of Closing (with appropriate modifications to reflect any changes therein or identifying any representation or warranty which is not, or no longer is, true and correct and explaining the state of facts giving rise to the change).  The

9

inclusion of any change or exception in such certificate shall not prejudice Purchaser’s rights under this Agreement with respect to the subject matter of such change or exception.

(g) deliver to Purchaser such evidence as Purchaser’s counsel and/or the Title Company may reasonably require as to the authority of the person or persons executing documents on behalf of Seller;

(h) deliver to Purchaser an affidavit duly executed by Seller stating that Seller is not a “foreign person” as defined in the Federal Foreign Investment in Real Property Tax Act of 1980 and the 1984 Tax Reform Act;

(i) deliver to the Title Company one or more owner’s affidavits or ALTA statements, if required by the Title Company, duly executed by Seller or a representative of Seller, in form and content reasonably satisfactory to Seller and the Title Company;

(j) deliver to Purchaser, pursuant to Purchaser’s reasonable instructions, the Leases then in effect, the Designated Service Contracts and licenses and permits, if any, in the possession of Seller or Seller’s agents, including any originally executed Leases then in effect and Designated Service Contracts in Seller’s possession at the Property or otherwise in Seller’s reasonable control, together with such keys, leasing and property files and records which are used exclusively in connection with the continued operation, leasing and maintenance of the Property, but excluding any budget or market analysis;

(k) deliver to Purchaser possession and occupancy of the Property, subject to the Permitted Exceptions;

(1) deliver such additional documents as shall be reasonably requested by the Title Company or required to consummate the transaction contemplated by this Agreement; provided, however, that in no event shall Seller be required to indemnify the Title Company, Purchaser, or any other party pursuant to any such documents, or undertake any other material liability not expressly contemplated in this Agreement, unless Seller elects to do so in its sole discretion;

(m) if the one or more of the legal descriptions attached hereto as Exhibit A differ from the legal descriptions of the Property drawn from the Surveys, Seller shall at Closing deliver (in addition to the Deeds) one or more quit claim deeds conveying each portion of the Property pursuant to the legal description drawn from the corresponding Survey, which legal descriptions shall be subject to Seller’s approval, which approval shall not be unreasonably withheld;

(n) deliver to Purchaser all tenant estoppels in Seller’s possession from tenants at the Property; and

(o) deliver to Escrow Agent such certificates or affidavits, if any, as are required under applicable provisions of Georgia law and regulation, to assure Escrow Agent that

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Georgia sales tax withholding is not required.  If Seller fails to deliver such certificates or affidavits, and otherwise fails to provide Escrow Agent reasonably satisfactory assurance that withholding is not required, then Escrow Agent shall be entitled to withhold applicable Georgia sales taxes, if and to the extent required by applicable Georgia law and regulation.

4.3Purchaser’s Obligations at Closing.  At Closing, Purchaser shall:

(a) deliver to Escrow Agent the full amount of the Purchase Price, as increased or decreased by prorations and adjustments as herein provided, prior to 2:00 p.m. (Atlanta, Georgia local time) on the Closing Date, in immediately available federal funds wire transferred to Escrow Agent’s Account pursuant to Section 1.5 above, it being agreed that at Closing, the Earnest Money shall be applied towards payment of the Purchase Price, and deliver to Escrow Agent instructions to immediately release the full amount of the Purchase Price, as increased or decreased by prorations and adjustments as herein provided, to Seller;

(b) join Seller in execution of the instruments described in Sections 4.2(b), 4.2(c), 4.2(d), and 4.2(e) above;

(c) deliver to Seller such evidence as Seller’s counsel and/or the Title Company may reasonably require as to the authority of the person or persons executing documents on behalf of Purchaser; and

(d) deliver such additional documents as shall be reasonably requested by the Title Company or required to consummate the transaction contemplated by this Agreement; provided, however, that in no event shall Purchaser be required to undertake any other material liability not expressly contemplated in this Agreement, unless Purchaser elects to do so in its sole discretion.

4.4Credits and Prorations.

(a) All income and expenses in connection with the operation of the Property shall be apportioned as of 11:59 p.m., on the date prior to the Closing Date, as if Purchaser were vested with title to the Property during the entire Closing Date, such that, except as otherwise expressly provided to the contrary in this Agreement, Seller shall have the benefit of income and the burden of expenses for the day preceding the Closing Date and the Purchaser shall have the benefit of income and the burden of expenses for the Closing Date and thereafter. Items (l)-(5) below will be prorated at Closing utilizing the information known at that time.  A post-closing “true-up” shall take place within ninety (90) days of the Closing Date to adjust the prorations of said items (1), (3), (4) and (5), if necessary, and within a reasonable time to adjust the proration of said item (2), if necessary.  Such prorated items shall include, without limitation, the following:

(1) rents based on the amount collected for the current month (the term “rents” as used in this Agreement includes all payments due and payable by

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tenants under the Leases other than refundable deposits, application fees, late charges and termination payments (of which deposits shall be treated as set forth in Section 4.4(b)(l), but such other amounts shall be retained by Seller);

(2) ad valorem taxes (including personal property taxes on the Tangible Personal Property) and assessments levied against the Property, which shall be prorated as set forth in Section 4.4(b)(2) hereof;

(3) payments under the Designated Service Contracts.  To the extent any rebate, concession or commission payable to Seller under any Designated Service Contract has accrued before Closing but has not been paid to Seller, Seller shall receive a credit for such accrued amounts at Closing;

(4) to the extent the same have not been settled as of the Closing Date, (which Seller shall use reasonable efforts to so settle) gas, electricity and other utility charges for which Seller is liable, if any, such charges to be apportioned at Closing on the basis of the most recent meter reading occurring prior to Closing; and

(5) any other operating expenses or other items pertaining to the Property which are customarily prorated between a purchaser and a seller in comparable commercial transactions in the area in which the Property is located.

(b) Notwithstanding anything contained in the foregoing provisions:

(1) At Closing, (A) Seller shall, at Seller’s option, either deliver to Purchaser any unforfeited tenant deposits shown on the Rent Roll or credit to Purchaser the amount of such unforfeited deposits and any interest thereon, and (B) Purchaser shall credit to the account of Seller all refundable cash or other deposits posted with utility companies serving the Property, or, at either party’s option, Purchaser shall contract directly with the utility companies and Seller shall be entitled to receive and retain such refundable cash and deposits; provided that Purchaser and Seller will cooperate so that utility service to the Property is not interrupted.  For the purposes of this Section 4.4(b)(l) the term “unforfeited deposits” means any refundable deposits which are held by Seller and which Seller has not applied, and is not entitled to apply, against delinquent rents, property damage or otherwise.

(2) Any ad valorem taxes due and payable prior to Closing shall be fully paid and discharged at or prior to Closing.  Ad valorem taxes and assessments for the tax year in which the Closing occurs shall be prorated as of the Closing Date.  Notwithstanding the foregoing, if all taxes and assessments for the tax year in which the Closing occurs have not be paid before Closing, Seller shall be charged at Closing an amount equal to that portion of such taxes and assessments which relate to the period before Closing and Purchaser shall pay the taxes and assessments prior to their becoming delinquent.  Any such apportionment made

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with respect to a tax year for which the tax rate or assessed valuation, or both, have not yet been fixed shall be based upon the tax rate and/or assessed valuation last fixed.  To the extent that the actual taxes and assessments for the current tax year differ from the amount apportioned at Closing, the parties shall make all necessary adjustments by appropriate payments between themselves following Closing upon the availability of the final tax bills, but such adjustments must be made within ninety (90) days of written notice of the final tax bills by the party who last receives such written notice.

(3) Gas, electricity and other utility charges referred in Section 4.4(a)(4) above which are payable by any tenant to a third party shall not be apportioned hereunder, and Purchaser shall accept title subject to any of such charges unpaid and Purchaser shall look solely to the tenant responsible therefor for the payment of the same, If Seller shall have paid any of such charges on behalf of any tenant, shall not have been reimbursed therefor by the time of Closing and is entitled to be reimbursed for any such payment pursuant to the relevant Lease, Purchaser shall credit to Seller an amount equal to all such charges so paid by Seller.

(4) As to gas, electricity and other utility charges referred to in Section 4.4(a)(4) above, Seller shall use good faith to pay all of such items accrued to the Closing Date directly to the person or entity entitled thereto, and to the extent Seller’s efforts are effective and the utility company agrees to look solely to Seller for payment of such item accrued to the Closing Date, such item shall not be apportioned hereunder, and Seller’s obligation to pay such item with respect to the period prior to Closing directly in such case shall survive the Closing.

(5) The Tangible Personal Property is included in this sale, without further charge, and Seller shall pay to the applicable taxing authority the amount of any sales tax or other taxes payable in connection with the Tangible Personal Property, if any, and Seller shall execute and deliver any tax returns required of it in connection therewith, said obligations of Seller to survive closing.

(6) If the Closing occurs hereunder, Purchaser shall assume and be responsible for, and shall indemnify Seller against any claims for, the payment of (A) all Tenant Inducement Costs (as hereinafter defined) and leasing commissions (other than leasing commissions payable to Seller) which become due and payable (whether before, on or after Closing) as a result of any renewals or expansion of existing leases and as a result of any new leases, approved or deemed approved in accordance with Section 5.4(b) hereof, and (B) all Tenant Inducement Costs which become due and payable after Closing.  If Seller shall have paid prior to Closing any Tenant Inducement Costs or leasing commissions described in this subsection 6(A) above, then Purchaser shall credit to Seller at Closing an amount equal to all such Tenant Inducement Costs or leasing commissions paid by Seller.  The term “Tenant Inducement Costs” shall mean payments required under a Lease to be paid by the landlord thereunder which is in the nature of a tenant improvement, including,  without limitation, tenant

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improvement costs, lease buyout costs, and moving, design, refurbishment, finish air conditioning system allowance, club membership and other allowances.

(7) Unpaid and delinquent rent collected by Seller and Purchaser after the date of Closing shall be delivered as follows: (a) if Seller collects any unpaid or delinquent rent for the Property, Seller shall, within fifteen (15) days after the receipt thereof, deliver to Purchaser any such rent which Purchaser is entitled to hereunder relating to the date of Closing and any period thereafter, and (b) if Purchaser collects any unpaid or delinquent rent from the Property, Purchaser shall, within fifteen (15) days after the receipt thereof, deliver to Seller any such rent which Seller is entitled to hereunder relating to the period prior to the date of Closing.  Seller and Purchaser agree that all rent received by Seller or Purchaser after the Closing shall be applied first to current rentals and then to delinquent rentals, if any, in inverse order of maturity.  Purchaser will make a good faith effort after Closing to collect all rents in the usual course of Purchaser’s operation of the Property, but Purchaser will not be obligated to institute any lawsuit or other collection procedures to collect delinquent rents.

(8) For a period of two (2) years from and after the Closing Date, in the event that a tenant of any Project exercises any right that it might have under its lease to inspect or audit the common area maintenance expenses for any Project for any period prior to the Closing Date, Seller shall, at Purchaser’s expense, make available to Purchaser any books and records in the possession of Seller pertaining to any such audit, but in no event shall Seller be liable to Purchaser or any such tenant for any refund of common area costs or payment of costs and expenses as a result of any such inspection or audit.

(9) The provisions of this Section 4.4 shall survive Closing.

4.5Closing Costs.  Seller shall pay (a) the fees of any counsel representing it in connection with this transaction, (b) one-half (¹/₂) of any escrow fee which may be charged by Escrow Agent or Title Company, (c) all applicable transfer taxes, documentary stamp taxes and similar charges relating to the transfer of the Property, (d) the costs of curing all title objections for which Seller is responsible under this Agreement, (e) the costs of recording all mortgage cancellations and (f) any sales or similar taxes on the transfer of the Tangible Property, as more fully described in Section 4.4(b)(5).  Purchaser shall pay (t) the cost of the Survey, (u) the fees of any counsel representing Purchaser in connection with this transaction, (v) one-half (¹/₂) of any escrow fees charged by the Escrow Agent or Title Company, (w) the fees for recording the Deed, (x) the costs of the Title Commitments and premiums for the Title Policies and any lender’s policy, title insurance endorsements, or deletion of the “survey exception”, (y) the costs of any financing obtained by Purchaser and (z) the cost of Purchaser’s inspections of the Property.  All other costs and expenses incident to this transaction and the closing thereof shall be paid by the party incurring same.

4.6Conditions Precedent to Obligation of Purchaser.  The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the date

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of Closing (or such earlier time as otherwise required hereby) of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:

(a) Seller shall have delivered to Purchaser all of the material items required to be delivered to Purchaser by Seller or Seller’s agents pursuant to the terms of this Agreement, including but not limited to, those provided for in Section 4.2.

(b) On or prior to the date that is three (3) business days prior to the Closing Date, Seller shall have delivered to Purchaser a tenant estoppel from the Kroger located in each Project (collectively, “Kroger”) on a form of tenant estoppel acceptable to or regularly used by Kroger, in each case containing no information with respect to the status of the Kroger lease which is, in Purchaser’s reasonable judgment, materially adverse with respect to such lease, and (i) tenant estoppels from tenants leasing, in the aggregate, at least seventy percent (70%) of the space that is under lease in each Project but not leased to Kroger, which estoppel from such other tenants shall be (A) in substantially the same form as attached hereto as Exhibit G, or (B) in such other form as is approved by Purchaser, such approval not to be unreasonably withheld, or (C) if any such tenant is a nationally recognized retailer, in such form as is acceptable to or regularly used by such tenant, or (D) in such form as set forth in such tenant’s Lease, and containing no information with respect to the status of such lease which is, in Purchaser’s reasonable judgment, materially adverse with respect to such lease and (ii) certificates from Seller substantially in the form as attached hereto as Exhibit I attached hereto and by this reference incorporated herein (the “Seller Lease Estoppel Certificate”) for any tenant at the Property, excluding Kroger, that did not deliver an estoppel; provided, however, if Seller shall be deemed liable for any damages as a result of a Seller Lease Estoppel Certificate, such liability shall be subject to the limitations of Section 5.3 of this Agreement.  Additionally, Seller shall use good faith efforts to obtain from the declarant, if applicable, under each recorded association, declaration, reciprocal easement or like agreement that benefits or burdens each Project, an estoppel confirming that such agreement is in full force and effect, that no notice of default has been received thereunder and such other customary information as may be appropriate.

(c) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing (with appropriate modifications permitted under this Agreement or not adverse to Purchaser).

(d) Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the date of Closing.

(e) All other conditions precedent to Purchaser’s obligation to consummate the transaction hereunder (if any) which are set forth in this Agreement shall have been satisfied on or before the date of Closing.

In the event any of the foregoing conditions has not been satisfied by the Closing Date (or three (3) business days prior to the Closing Date in the case of Section 4.6(b)), Purchaser shall have

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the right to terminate this Agreement by written notice given to Seller and Escrow Agent on the Closing Date (or three (3) business days prior to the Closing Date in the case of Section 4.6(b)), whereupon Escrow Agent shall immediately refund the Earnest Money to Purchaser and the parties shall have no further rights, duties or obligations hereunder, other than those which are expressly provided herein to survive the termination of this Agreement; provided, however, that if any of the foregoing conditions has not been satisfied due to a default by Purchaser or Seller hereunder, then Purchaser’s and Seller’s respective rights, remedies and obligations shall instead be determined in accordance with Article 6.

4.7Conditions Precedent to Obligation of Seller. The obligation of Seller to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing of all of the following conditions, any or all of which may be waived by Seller in its sole discretion:

(a) Seller shall have received the Purchase Price as adjusted pursuant to and payable in the manner provided for in this Agreement.

(b) Purchaser shall have delivered to Seller all of the items required to be delivered to Seller by Purchaser or Purchaser’s agents pursuant to the terms of this Agreement, including but not limited to, those provided for in Section 4.3.

(c) All of the representations and warranties of Purchaser contained in this Agreement shall be true and correct in all material respects as of the date of Closing.

(d) All other conditions precedent to Seller’s obligation to consummate the transaction hereunder (if any) which are set forth in this Agreement shall have been satisfied on or before the date of Closing.

In the event any of the foregoing conditions has not been satisfied by the Closing Date, Seller shall have the right to terminate this Agreement by written notice given to Purchaser on the Closing Date, whereupon Escrow Agent shall refund the Earnest Money to Purchaser and the parties shall have no further rights, duties or obligations hereunder, other than those which are expressly provided herein to survive a termination of this Agreement; provided, however, if any of the foregoing conditions has not been satisfied due to a default by Purchaser or Seller hereunder, then Purchaser’s and Seller’s respective rights, remedies and obligations shall instead be determined in accordance with Article 6.

ARTICLE 5

REPRESENTATIONS, WARRANTIES AND COVENANTS

5.1Representations and Warranties of Seller.  Seller hereby makes the following representations and warranties to Purchaser as of the Effective Date.  Such representations and warranties are subject to (i) those matters, if any, disclosed in Seller’s disclosure statement attached hereto as Exhibit F and made a part hereof by this reference (“Seller’s Disclosure

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Statement”), (ii) the Permitted Exceptions, and (iii) all other applicable provisions of this Agreement, including without limitation Article 9.  In addition, each individual representation and warranty is qualified to the extent of any applicable information or exception which is otherwise disclosed in another representation or warranty.

(a) Organization and Authority.  Seller has been duly organized and is validly existing and in good standing as a limited partnership under the laws of the State of Georgia.  Seller has the full right and authority to enter into this Agreement and to transfer the Property pursuant hereto and to consummate or cause to be consummated the transactions contemplated herein.  The person signing this Agreement on behalf of Seller is authorized to do so,  Neither the execution and delivery of this Agreement nor any other documents executed and delivered, or to be executed and delivered, by Seller in connection with the transactions described herein, will violate any provision of Seller’s organizational documents or of any agreements, regulations, or laws to or by which Seller is bound.  This Agreement has been duly authorized, executed and delivered by Seller, is a valid and binding obligation of Seller and is enforceable against Seller in accordance with its terms subject to  (i) applicable bankruptcy, insolvency, reorganization, moratorium, and other laws affecting the rights of creditors generally; and (ii) the exercise of judicial discretion in accordance with general principles of equity.

(b) Consents.  Seller has obtained, or will obtain by Closing, all consents and permissions (if any) related to the transactions herein contemplated and required under any covenant, agreement, encumbrance, law or regulation by which Seller or the Property is bound.

(c) Pending Actions.  There is no action, suit, arbitration, administrative or judicial proceeding, or unsatisfied order or judgment pending or, to Seller’s knowledge, threatened against Seller which pertains directly to the Property or the transaction contemplated by this Agreement (including, without limitation, matters in regard to the environmental condition of the Property).  In addition, there is no other action, suit, arbitration, administrative or judicial proceeding, or unsatisfied order or judgment pending against Seller which, if adversely determined, would have a Material Adverse Effect.  As used in this Agreement, “Material Adverse Effect” means, with respect to any fact or circumstance, that such fact or circumstance would individually or in the aggregate have a material adverse effect on title to the Property or any portion thereof, on Seller’s ability to consummate the transaction contemplated herein, or on the value or operation of the Property.

(d) Leases.  Seller is the lessor or landlord under the Leases.  Except as set forth in the List of Leases, there are no other leases or occupancy agreements affecting the Property to which Seller is a party or of which Seller is aware. Notwithstanding anything to the contrary contained in this Agreement, Seller does not represent or warrant that any particular Lease will be in force or effect at Closing or that the tenants under the Leases will have performed their obligations thereunder.  The termination of any Lease prior to Closing by reason of the tenant’s default shall not affect the obligations of Purchaser under this Agreement in any manner or entitle Purchaser to an abatement of or credit

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against the Purchase Price or give rise to any other claim on the part of Purchaser.  In the event that any tenant estoppel delivered to Purchaser with respect to any of the Leases contains any statement of fact, information or other matter which is inconsistent with any statement in this Agreement, such tenant estoppel shall control and Seller shall have no liability for any claim based upon a breach of representation or warranty regarding such statement of fact, information or other matter contained in such tenant estoppel.

(e) Taxes and Assessments.  True and complete copies of the most recent real estate tax bills for the Property have been or will be delivered to Purchaser.  Except for the Permitted Exceptions, Seller does not have any knowledge of any pending or threatened liens, special assessments, or impositions against the Property by any governmental or public authority.

(f) Condemnation.  Seller has not received from any governmental authority written notice of any pending condemnation proceedings relating to the Property, nor to Seller’s knowledge, are any such proceedings threatened.

(g) Insurance.  To Seller’s knowledge, Seller has not received prior to the Effective Date any written notice from any insurance company or board of fire underwriters of any defects or inadequacies in or on the Property or any part or component thereof that would materially and adversely affect the insurability of the Property or cause any material increase in the premiums for insurance for the Property, that have not been cured or repaired.

(h) Financial Status.  Seller is solvent, has not made a general assignment for the benefit of its creditors, and has not admitted in writing its inability to pay its debts as they become due, nor has Seller filed, nor does it contemplate the filing of, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or any other proceeding for the relief of debtors in general, nor has any such proceeding been instituted by or against Seller, nor is any such proceeding to Seller’s knowledge threatened or contemplated.  The sale of the Property will not render Seller insolvent.

(i) Service Contracts.  To Seller’s knowledge, there are no management, service, supply, equipment rental and similar agreements affecting the Property other than those set forth in Exhibit C. Those service contracts which have been or will be delivered by Seller to Purchaser are true, correct and complete in all material respects and include any material amendments or modifications thereto.

(j) Employees.  Seller has no employees which Purchaser shall be obligated to employ following the Closing.

(k) Agreements.  To Seller’s knowledge, there exist no off-record development, cost-sharing, recapture or like agreements burdening the Property that will survive the Closing of the transactions described by this Agreement.

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5.2Knowledge Defined.  References to the “knowledge” of Seller shall refer only to the actual knowledge, without investigation or inquiry, on the Effective Date of the Knowledge Parties (as hereinafter defined) of Seller, and shall not be construed, by imputation or otherwise, to refer to the knowledge of any other officer, agent, manager, representative, employee property manager or broker of Seller or any affiliate of Seller, or to impose upon such Knowledge Parties any duty to investigate the matter to which such actual knowledge, or the absence thereof, pertains.  As used herein, the term “Knowledge Parties” shall refer to Robert Cancelliere (who is the President of Seller) and Bill Worthington (who is the property manager).

5.3Survival of Seller’s Representations and Warranties.  The representations and warranties of Seller set forth in Section 5.1, as updated by Seller’s Closing Certificate, shall survive Closing for a period of one hundred eighty (180) days after Closing.  No claim for a breach of any representation or warranty of Seller, nor any liability under a Seller Lease Estoppel Certificate, shall be actionable or payable (a) if the breach in question, or condition addressed in the Seller Lease Estoppel Certificate, results from or is based on a condition, state of facts or other matter which was known to Purchaser prior to Closing, (b) unless the valid claims for all such breaches and liability collectively aggregate Twenty-Five Thousand Dollars ($25,000.00) or more, in which event the full amount of such valid claims shall be actionable, up to but not exceeding the amount of the Cap (as defined below), and (c) unless written notice containing a description of the specific nature of such breach shall have been given by Purchaser to Seller prior to the expiration of said one hundred eighty (180) day period (or such shorter period as set forth in a Seller Lease Estoppel Certificate with respect thereto) and an action shall have been commenced by Purchaser against Seller within two hundred seventy (270) days after Closing. Seller shall not be liable to Purchaser if Purchaser’s claim is satisfied from any insurance policy, service contract or Lease.  As used herein, the term “Cap” shall mean One Million Dollars ($1,000,000.00).  In no event shall Seller’s aggregate liability to Purchaser (i) for any and all breaches of any representation or warranty of Seller in this Agreement or Seller’s Closing Certificate and (ii) pursuant to Seller Lease Estoppel Certificates, exceed, in the aggregate, the amount of the Cap, and Purchaser hereby waives and disclaims any right to damages or compensation for any and all such breaches in excess of the Cap unless Seller shall have committed fraud in which event the Cap shall not be applicable to such claims of fraud.

5.4Covenants of Seller.  Seller hereby covenants with Purchaser, from the Effective Date until the Closing or earlier termination of this Agreement, as follows:

(a) Operation of Property.  Seller shall use reasonable efforts to operate and maintain the Property in a manner generally consistent with the manner in which Seller has operated and maintained the Property prior to the date hereof.

(b) Execution of New Leases and Renewals.  Seller shall use reasonable efforts to negotiate leases or Lease renewals for unrented space in the Improvements and shall maintain a marketing program for vacant space in the Improvements consistent with Seller’s current practices at the Property.  Any new leases or renewals or amendments to existing leases concerning the Improvements entered into by Seller (x) after the Effective Date until the Inspection Date or earlier termination of this Agreement must be approved in writing by Purchaser in its reasonable discretion, and (y) after the Inspection Date until the Closing or earlier termination of this Agreement must be approved in writing by

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Purchaser in Purchaser’s sole discretion; provided, however, if Purchaser does not respond in writing to Seller’s written request for Purchaser’s approval of the terms of any proposed lease or renewal within five (5) business days of Purchaser’s receipt of such request, Purchaser shall be deemed to have approved such proposed lease or renewal.  Each such new lease or renewal entered into by Seller shall constitute a “Lease” for purposes of this Agreement.

(c) Maintenance of Insurance.  Seller shall keep the Improvements insured against loss or damage (including rental loss) by fire and all risks covered by the Seller’s insurance that is currently in force (of which Seller shall provide reasonable evidence within ten (10) days after the Effective Date), provided that Seller may make adjustments in Seller’s insurance coverage for the Property which are consistent with Seller’s general insurance program for other properties owned or managed by Seller or its affiliates or property manager as in effect from time to time.

(d) Enforcement of Existing Leases.  Seller shall make commercially reasonable efforts to perform the landlord’s material obligations to the tenants under the Leases and to enforce the material obligations of the tenants under the Leases, in each case in accordance with the current management standards of Seller for the Property.

(e) Provide Copies of Notices.  Seller shall furnish Purchaser with a copy of all written notices received by Seller from (i) any governmental authority of any violation of any law, statute, ordinance, regulation or order of any governmental or public authority relating to the Property, or (ii) any tenant asserting any default under any of the Leases, within five (5) business days following Seller’s receipt thereof, but, if received by such date, in no event later than two (2) business days prior to the Closing Date.

(f) Removal and Replacement of Tangible Personal Property.  Seller shall not remove any Tangible Personal Property except as may be required for necessary repair or replacement (which repair and replacement shall be of equal quality and quantity as existed as of the time of the removal), or otherwise in accordance with current inventory and management standards of Seller for the Property.

(g) Execution of New Contracts.  Seller shall not, without Purchaser’s prior written consent in each instance (which consent shall not be unreasonably withheld or delayed during the Inspection Period but which thereafter may be withheld in Purchaser’s sole discretion), materially amend or terminate any of the Designated Service Contracts (as defined in Section 5.7(b)), or enter into any contract or agreement that will be an obligation affecting any portion of the Property or binding on Purchaser after the Closing, except that Seller may enter into, amend or enforce (including enforcement by termination) service contracts in the ordinary course of business as reasonably necessary for the continued operation and maintenance of the Property, provided any new service contracts are terminable without cause or penalty on thirty (30) days notice.

(h) Maintenance of Permits.  Seller shall make commercially reasonable efforts to maintain in existence all licenses, permits and approvals that are now in existence with

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respect to, and are required for, the ownership, operation or improvement of the Property, and are of a continuing nature.

5.5Representations and Warranties of Purchaser.  Purchaser hereby makes the following representations and warranties to Seller as of the Effective Date:

(a) Organization and Authority.  Purchaser has been duly organized and is validly existing as a corporation under the laws of the State of Illinois.  Purchaser has the full right and authority to enter into this Agreement and to purchase the Property pursuant hereto and to consummate or cause to be consummated the transactions contemplated herein.  The person signing this Agreement on behalf of Purchaser is authorized to do so.  Neither the execution and delivery of this Agreement nor any other documents executed and delivered, or to be executed and delivered, by Purchaser in connection with the transactions described herein, will violate any provision of Purchaser’s organizational documents or of any agreements, regulations, or laws to or by which Purchaser is bound.  This Agreement has been duly authorized, executed and delivered by Purchaser, is a valid and binding obligation of Purchaser and is enforceable against Purchaser in accordance with its terms subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium, and other laws affecting the rights of creditors generally; and (ii) the exercise of judicial discretion in accordance with general principles of equity.

(b) Consents.  Purchaser has obtained all consents and permissions (if any) related to the execution of this Agreement and, prior to the expiration of the Inspection Period, Purchaser shall have obtained all further consents and permissions (if any), required to consummate transactions herein contemplated and required under any covenant, agreement, encumbrance, law or regulation by which Purchaser is bound.

(c) Pending Actions.  There is no action, suit, arbitration, administrative or judicial administrative proceeding, or unsatisfied order or judgment pending or, to Purchaser’s knowledge, threatened against Purchaser or the transaction contemplated by this Agreement, which, if adversely determined, could individually or in the aggregate have a material adverse effect on Purchaser’s ability to consummate the transaction contemplated herein.

(d) Financial Status.  Purchaser has adequate financial resources to purchase the Property.  Purchaser is solvent, has not made a general assignment for the benefit of its creditors, and has not admitted in writing its inability to pay its debts as they become due, nor has Purchaser filed, nor does it contemplate the filing of, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or any other proceeding for the relief of debtors in general, nor has any such proceeding been instituted by or against Purchaser, nor is any such proceeding to Purchaser’s knowledge threatened or contemplated.  The purchase of the Property will not render Purchaser insolvent.

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5.6Survival of Purchaser’s Representations and Warranties.  The representations and warranties of Purchaser set forth in Section 5.5 shall survive Closing for a period of one hundred eighty (180) days after Closing.

5.7Covenants of Purchaser.

(a) Purchaser hereby covenants with Seller that Purchaser shall, upon Seller’s request, furnish to Seller copies of any reports received by Purchaser in connection with any inspection of the Property for the presence of hazardous materials, including asbestos, asbestos-containing materials, petroleum, petroleum-based substances, dry cleaning solvents and any other substances regulated by federal, state or local environmental laws or regulations (“Hazardous Materials”).  Purchaser hereby assumes full responsibility for such inspections and irrevocably waives any claim against Seller arising from the presence of Hazardous Materials on the Property.  Purchaser shall also, upon Seller’s request, furnish to Seller copies of any other reports received by Purchaser relating to any other inspections of the Property conducted on Purchaser’s behalf, if any.

(b) “Designated Service Contracts” means (i) those certain service contracts which are assignable in accordance with their terms that Purchaser identifies by written notice delivered to Seller on or before the Inspection Date as the service contracts Purchaser elects Seller to assign at Closing, (ii) those assignable service contracts regarding which Purchaser has failed to deliver such written notice on or before the Inspection Date, and (iii) those service contracts (the “Must Take Service Contracts”) which are assignable in accordance with their terms and which may not be terminated without cause or penalty, with thirty (30) days (or less) written notice; provided, however, in no event shall any property management agreement for any Project be deemed a Designated Service Contract.  Purchaser hereby covenants with Seller that on or before the Inspection Date, Purchaser shall deliver written notice to Seller instructing which of the assignable service contracts Purchaser desires for Seller to assign to Purchaser and which it does not.  If Purchaser fails to timely deliver such notice, Purchaser shall be deemed to have chosen to have all assignable service contracts (other than any existing property management agreements) assigned to Purchaser, and all such service contracts shall be deemed part of the “Designated Service Contracts.” At Closing or as promptly as practicable thereafter, Seller will cause the service contracts which Purchaser has elected not to have assigned to Purchaser (other than the Must Take Service Contracts), by operation of the aforesaid notice on or before the Inspection Date, to be terminated at Seller’s expense, such termination to be effective within the time period provided for in the applicable service contract or, if no such time period is provided, as promptly as practicable after the Closing Date.  The provisions of this Section 5.7(b) shall survive Closing.

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ARTICLE 6

DEFAULT

6.1Default by Purchaser.  If the sale of the Property as contemplated hereunder is not consummated due to Purchaser’s default hereunder, then Seller shall be entitled, as its sole and exclusive remedy for such default, to terminate this Agreement and receive the Earnest Money as liquidated damages for the breach of this Agreement and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Earnest Money is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity.  Seller’s right to receive the Earnest Money is intended not as a penalty, but as full liquidated damages.  The right to receive the Earnest Money as full liquidated damages is Seller’s sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) sue Purchaser: (a) for specific performance of this Agreement, or (b) to recover any damages of any nature or description other than or in excess of the Earnest Money.  Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) sue Seller or seek or claim a refund of the Earnest Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller’s actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages.  This Section 6.1 is subject to Section 6.4 hereof.

6.2Default by Seller.  If the sale of the Property as contemplated hereunder is not consummated due to Seller’s default hereunder, then Purchaser shall be entitled, as its sole remedy for such default, either (a) to receive, upon notice to Escrow Agent and Seller, an immediate return of the Earnest Money, which return shall operate to terminate this Agreement and release Seller from any and all liability hereunder, or (b) to enforce specific performance of Seller’s obligation to convey the Property to Purchaser pursuant to this Agreement.  Notwithstanding the foregoing, it is understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder.  Purchaser expressly waives its rights to seek damages in the event of Seller’s default hereunder.  In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or for actual damages in excess of the amount set forth above.  Purchaser hereby waives any right to seek or collect any such consequential, speculative, remote or punitive damages, or any actual damages in excess of the amount set forth above.  Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Earnest Money if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before thirty (30) days following the date upon which Closing was to have occurred.

6.3Notice of Default; Opportunity to Cure.  Neither Seller nor Purchaser shall be deemed to be in default hereunder until and unless such party has been given written notice of its failure to comply with the terms hereof and thereafter does not cure such failure within five (5) business days after receipt of such notice; provided, however, that this Section 6.3 (i) shall not be applicable to Purchaser’s failure to deliver the Earnest Money or any portion thereof on the date required hereunder or to a party’s failure to make any deliveries required of such party on the

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Closing Date and, accordingly, (ii) shall not have the effect of extending the Closing Date or the due date of the Earnest Money deposit hereunder.

6.4Recoverable Damages.  Notwithstanding Sections 6.1 and 6.2 hereof, in no event shall the provisions of Sections 6.1 and 6.2 limit the damages recoverable by either party against the other party due to the other party’s express obligation to indemnify such party as expressly provided in this Agreement.

ARTICLE 7

RISK OF LOSS

7.1Minor Damage.  In the event of loss or damage to one or more of the Projects or any portions thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect provided Seller performs any necessary repairs or, at Seller’s option, assigns to Purchaser all of Seller’s right, title and interest to any claims and proceeds Seller may have with respect to any casualty insurance policies or condemnation awards relating to the premises in question.  In the event that Seller elects to perform repairs upon the Project(s), Seller shall use reasonable efforts to complete such repairs promptly.  If Seller does not complete such repairs prior to Closing, Seller shall assign its casualty claim to Purchaser.  If Seller assigns its casualty claim to Purchaser, Purchaser shall receive a credit against the Purchase Price equal to the deductible amount under Seller’s insurance policy.  Upon Closing, full risk of loss with respect to the Property shall pass to Purchaser.

7.2Major Damage.  In the event of a “major” loss or damage, Purchaser may terminate this Agreement by written notice to Seller and Escrow Agent, in which event the Earnest Money shall be returned to Purchaser in accordance with Section 1.6.  If Purchaser does not elect to terminate this Agreement within ten (10) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event Seller shall, at Seller’s option, either (a) perform any necessary repairs, or (b) assign to Purchaser all of Seller’s right, title and interest to any claims and proceeds Seller may have with respect to any casualty insurance policies or condemnation awards relating to the premises in question.  In the event that Seller elects to perform repairs upon the Project(s), Seller shall use reasonable efforts to complete such repairs promptly.  If Seller does not complete such repairs prior to Closing, Seller shall assign its casualty claim to Purchaser.  If Seller assigns its casualty claim to Purchaser, Purchaser shall receive a credit against the Purchase Price equal to the deductible amount under Seller’s insurance policy.  Upon Closing, full risk of loss with respect to the Property shall pass to Purchaser.

7.3Definition of “Major” Loss or Damage.  For purposes of Sections 7.1 and 7.2, “major” loss or damage refers to the following; (i) casualty loss or damage to one or more of the Projects or any portions thereof such that the cost of repairing or restoring the premises in question to a condition substantially similar to that of the premises in question prior to the event of damage would be, in the opinion of an architect selected by Seller and reasonably approved by Purchaser, equal to or greater than Five Hundred Thousand Dollars ($500,000.00) in the

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aggregate and/or (ii) any loss due to a condemnation which would (a) permanently and materially impair the current use of one or more of the Projects, (b) permit any tenant at the applicable Project(s) to terminate its Lease, (c) take any point of ingress and/or egress to and/or from the applicable Project(s) or (d) result in the reduction of the parking ratio at the applicable Project(s) below the ratio required by (I) any Lease, (II) any easement agreement then in effect and/or (III) the local municipality or municipalities having jurisdiction over the applicable Projects).  In the case of subsection (i) above, if Purchaser does not give notice to Seller of Purchaser’s reasons for disapproving an architect within five (5) business days after receipt of notice of the proposed architect, Purchaser shall be deemed to have approved the architect selected by Seller.

ARTICLE 8

COMMISSIONS

8.1Broker’s Commission.  The parties acknowledge that Broker has been retained by and represents Seller as broker in connection with the sale of the Property by Seller to Purchaser, and is to be compensated for its services by Seller.  Seller agrees that Seller shall pay to Broker upon, but only upon, final consummation of the transaction contemplated herein, a real estate brokerage commission pursuant to a separate written agreement between Seller and Broker.  Broker has executed this Agreement for the purpose of acknowledging and agreeing that no real estate commission shall be earned by it or due it if the transaction contemplated herein does not close as a result of Seller’s default, Purchaser’s default or otherwise.  At Closing, Broker shall execute and deliver to Seller and Purchaser a release of any lien or claim of lien of Broker with respect to the Property and shall execute and deliver to Purchaser and Seller a general release of any claims arising out of the transaction contemplated in this Agreement.

8.2Representation and Indemnity.  Purchaser and Seller each hereby represents and warrants to the other that it has not disclosed this Agreement or the subject matter hereof to, and has not otherwise dealt with, any real estate broker, agent or salesman (other than Broker) so as to create any legal right or claim in any such broker, agent or salesman (other than Broker) for a real estate commission or similar fee or compensation with respect to the negotiation and/or consummation of this Agreement or the conveyance of the Property by Seller to Purchaser.  Except as provided in Section 8.1 with respect to Broker, Purchaser and Seller hereby indemnify each other against, and agree to hold each other harmless from, any liability or claim (and all expenses, including reasonable attorneys’ fees, incurred in defending any such claim or in enforcing this indemnity) for a real estate brokerage commission or similar fee or compensation arising out of or in any way connected with any claimed dealings with the indemnitor and relating to this Agreement or the purchase and sale of the Property.  Broker hereby represents and warrants to Seller and Purchaser that it has not disclosed this Agreement or the subject matter hereof to, and has not otherwise dealt with, any real estate broker, agent or salesman so as to create any legal right or claim in any such broker, agent or salesman for a real estate commission or similar fee or compensation with respect to the negotiation and/or consummation of this Agreement or the conveyance of the Property by Seller to Purchaser.  Further, Broker hereby indemnifies Purchaser and Seller against, and agrees to hold Purchaser and Seller

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harmless from, any liability or claim (and all expenses, including attorneys’ fees, incurred in defending any such claim or in enforcing this indemnity) for a real estate brokerage commission or similar fee or compensation arising out of or in any way connected with any claimed dealings with such Broker and relating to this Agreement or the purchase and sale of the Property.

8.3Execution by Broker.  Broker has executed this Agreement solely for the purpose of acknowledging and agreeing to the provisions of this Article 8.  Broker’s consent to any modification or amendment of any provision of this Agreement other than this Article 8 shall not be required.

8.4Survival.  This Article 8 shall survive the rescission, cancellation, termination or consummation of this Agreement.

ARTICLE 9

DISCLAIMERS AND WAIVERS

9.1No Reliance on Documents.  Except as expressly stated herein, Seller makes no representation or warranty as to the truth, accuracy or completeness of any materials, data or information delivered by Seller to Purchaser in connection with the transaction contemplated hereby.  Purchaser acknowledges and agrees that all materials, data and information delivered by Seller to Purchaser in connection with the transaction contemplated hereby are provided to Purchaser as a convenience only and that any reliance on or use of such materials, data or information by Purchaser shall be at the sole risk of Purchaser, except as otherwise expressly stated herein.  Without limiting the generality of the foregoing provisions, Purchaser acknowledges and agrees that (a) any environmental or other report with respect to the Property which is delivered by Seller to Purchaser shall be for general informational purposes only, (b) Purchaser shall not have any right to rely on any such report delivered by Seller to Purchaser, but rather will rely on its own inspections and investigations of the Property and any reports commissioned by Purchaser with respect thereto, and (c) neither Seller, any affiliate of Seller nor the person or entity which prepared any such report delivered by Seller to Purchaser shall have any liability to Purchaser for any inaccuracy in or omission from any such report.

9.2Disclaimers.  Except as expressly set forth in this Agreement, it is understood and agreed that Seller is not making and has not at any time made any warranties or representations of any kind or character, expressed or implied, with respect to the Property, including, but not limited to, any warranties or representations as to habitability, merchantability, fitness for a particular purpose, title (other than Seller’s special warranty of title to be set forth in the Deeds), zoning, tax consequences, latent or patent physical or environmental condition, utilities, operating history or projections, valuation, governmental approvals, the compliance of the Property with governmental laws, the truth, accuracy or completeness of the Property documents or any other information provided by or on behalf of Seller to Purchaser, or any other matter or thing regarding the Property.  Purchaser acknowledges and agrees that upon closing Seller shall sell and convey to Purchaser and Purchaser shall accept the Property “as is, where is, with all faults”, except to the extent expressly provided otherwise in this Agreement.  Purchaser has not

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relied and will not rely on, and Seller is not liable for or bound by, any expressed or implied warranties, guaranties, statements, representations or information pertaining to the Property or relating thereto (including specifically, without limitation, property information packages distributed with respect to the Property) made or furnished by Seller, the manager of the Property, or any real estate broker or agent representing or purporting to represent Seller, to whomever made or given, directly or indirectly, orally or in writing, unless specifically set forth in this Agreement.

Without limiting the above, Purchaser, for itself and its affiliates, shareholders, successors, successors-in-title, transferees and assigns hereby releases, remises, forever discharges and covenants not to sue Seller and its partners (both general and limited, past, present, and future) and affiliated corporations and their successors, and assigns, of and from any and all claims, losses, damages, demands, actions, suits, proceedings, causes of action, injunctive or other equitable relief, costs, expenses, fines, or penalties of any kind or nature whatsoever which Purchaser now has, ever had, or may in the future have, whether known or unknown, suspected or unsuspected, which arise from or pertain in any way to Hazardous Materials or which arise under or otherwise pertain to any Environmental Law.  Purchaser agrees that should any investigation, cleanup, remediation or removal of Hazardous Substances or other environmental conditions on or related to the Property be required after the date of Closing, Seller shall have no liability to Purchaser to perform or pay for such investigation, clean-up, removal or remediation.  This release, covenant not to sue and acknowledgment of no liability shall survive the Closing or any termination of this Agreement.  The foregoing shall not be interpreted to waive any claim of Purchaser with respect to any breach by Seller of any express representations and warranties made by Seller in Section 5.1 that expressly survive closing pursuant to Section 5.3.

Purchaser represents to Seller that Purchaser has conducted, or will conduct prior to Closing, such investigations of the Property, including but not limited to, the physical and environmental conditions thereof, as Purchaser deems necessary to satisfy itself as to the condition of the Property and the existence or nonexistence or curative action to be taken with respect to any Hazardous Materials or toxic substances on or discharged from the Property, and will rely solely upon same and not upon any information provided by or on behalf of Seller or its agents or employees with respect thereto, other than such representations, warranties and covenants of Seller as are expressly set forth in this Agreement.  Upon Closing, Purchaser shall assume the risk that adverse matters, including but not limited to, construction defects and adverse physical and environmental conditions, may not have been revealed by Purchaser’s investigations, and Purchaser, upon closing, shall be deemed to have waived, relinquished and released Seller (and Seller’s and its partners’ respective officers, directors, shareholders, employees and agents) from and against any and all claims, demands, causes of action (including causes of action in tort or under any Environmental Law), losses, damages, liabilities (whether based on strict liability or otherwise), losses, damages, liabilities, costs and expenses (including attorneys’ fees and court costs) of any and every kind or character, known or unknown, which Purchaser might have asserted or alleged against Seller (and Seller’s and its partners’ respective officers, directors, shareholders, employees and agents) at any time by reason of or arising out of any latent or patent construction defects or physical conditions, violations of any applicable laws (including, without limitation, any environmental laws) and any and all other acts, omissions,

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events, circumstances or matters regarding the Property.  The foregoing shall not be interpreted to waive any claim of Purchaser with respect to any breach by Seller of any express representations and warranties made by Seller in Section 5.1 that expressly survive closing pursuant to Section 5.3.

Purchaser agrees that should any investigation, cleanup, remediation or removal of Hazardous Substances or other environmental conditions on or related to the Property be required after the date of Closing, Seller shall have no liability to Purchaser to perform or pay for such investigation, clean-up, removal or remediation.  The foregoing shall not be interpreted to waive any claim of Purchaser with respect to any breach by Seller of any express representations and warranties made by Seller in Section 5.1 that expressly survive closing pursuant to Section 5.3.

9.3Effect and Survival of Disclaimers.  Seller and Purchaser acknowledge that the provisions of this Article 9 are an integral part of this transaction and a material inducement to Seller to enter into this Agreement and that Seller would not enter into this Agreement but for the provisions of this Article 9.  Seller and Purchaser agree that the provisions of this Article 9 shall survive Closing or any termination of this Agreement.

ARTICLE 10

ESCROW AGENT

10.1Investment of Earnest Money.  Escrow Agent shall invest the Earnest Money pursuant to Purchaser’s reasonable directions.  Escrow Agent shall promptly advise Seller and Purchaser of the investment of the Earnest Money.  Escrow Agent shall invest the Earnest Money only in such accounts as will allow Escrow Agent to disburse the Earnest Money upon one (l) day’s notice.

10.2Payment at Closing.  If the Closing takes place under this Agreement, Escrow Agent shall deliver the Earnest Money to, or upon the instructions of, Seller and Purchaser at Closing.

10.3Payment on Demand.  Subject to the terms of Section 3.2 hereof, after December 14, 2004, upon receipt of any written certification from Seller or Purchaser claiming the Earnest Money pursuant to the provisions of this Agreement, Escrow Agent shall promptly forward a copy thereof to the other such party (i.e., Purchaser or Seller, whichever did not claim the Earnest Money pursuant to such notice) and, unless such other party within ten (10) days thereafter notifies Escrow Agent of any objection to such requested disbursement of the Earnest Money, Escrow Agent shall disburse the Earnest Money to the party demanding the same and shall thereupon be released and discharged from any further duty or obligation hereunder.

10.4Exculpation of Escrow Agent.  It is agreed that the duties of Escrow Agent are herein specifically provided and are purely ministerial in nature, and that Escrow Agent shall incur no liability whatsoever except for its willful misconduct or negligence, so long as Escrow

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Agent is acting in good faith.  Seller and Purchaser do each hereby release Escrow Agent from any liability for any error of judgment or for any act done or omitted to be done by Escrow Agent in the good faith performance of its duties hereunder and do each hereby indemnify Escrow Agent against, and agree to hold, save, and defend Escrow Agent harmless from, any costs, liabilities, and expenses incurred by Escrow Agent in serving as Escrow Agent hereunder and in faithfully discharging its duties and obligations hereunder.

10.5Stakeholder.  Escrow Agent is acting as a stakeholder only with respect to the Earnest Money.  If there is any dispute as to whether Escrow Agent is obligated to deliver the Earnest Money or as to whom the Earnest Money is to be delivered, Escrow Agent may refuse to make any delivery and may continue to hold the Earnest Money until receipt by Escrow Agent of an authorization in writing, signed by Seller and Purchaser, directing the disposition of the Earnest Money, or, in the absence of such written authorization, until final determination of the rights of the parties in an appropriate judicial proceeding.  If such written authorization is not given, or a proceeding for such determination is not begun, within ten (10) days of notice to Escrow Agent of such dispute, Escrow Agent may bring an appropriate action or proceeding for leave to deposit the Earnest Money in a court of competent jurisdiction pending such determination.  Escrow Agent shall be reimbursed for all costs and expenses of such action or proceeding, including, without limitation, reasonable attorneys’ fees and disbursements, by the party determined not to be entitled to the Earnest Money.  Upon making delivery of the Earnest Money in any of the manners herein provided, Escrow Agent shall have no further liability or obligation hereunder.

10.6Interest.  All interest and other income earned on the Earnest Money deposited with Escrow Agent hereunder shall be reported for income tax purposes as earnings of Purchaser.  Purchaser’s taxpayer identification number is 36-3614035.

10.7Execution by Escrow Agent.  Escrow Agent has executed this Agreement solely for the purpose of acknowledging and agreeing to the provisions of this Article 10 and Section 3.2.  Escrow Agent’s consent to any modification or amendment of this Agreement shall not be required except in the case of this Article 10, Section 3.2 and any modification which affects Purchaser’s right to receive a return of the Earnest Money.

10.8Conflict.  In the event of a conflict between this Article 10 and Section 3.2 of this Agreement, the terms of Section 3.2 shall control.

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ARTICLE 11

MISCELLANEOUS

11.1Confidentiality.  Purchaser and its representatives shall hold in strictest confidence all data and information obtained by Purchaser with respect to the Property, except where disclosure is required by law or Purchaser’s SEC reporting requirements.  This Section 11.1 and the other confidentiality (and indemnity) provisions of this Agreement, including, without limitation, Section 3.1(f) hereof, shall survive any termination of this Agreement.

11.2Public Disclosure.   Subject to the terms of Section 11.1 hereof, prior to Closing, any release to the public of information with respect to the sale contemplated herein or any matters set forth in this Agreement will be made only in the form approved by Purchaser and Seller.

11.3Assignment.  Purchaser may not assign its rights under this Agreement without first obtaining Seller’s written approval, which approval may be given or withheld in Seller’s sole discretion.  Any transfer, directly or indirectly, of any stock, partnership interest or other ownership interest in Purchaser without Seller’s written approval, which approval may be given or withheld in Seller’s sole discretion, shall constitute a default by Purchaser under this Agreement; provided, however, Purchaser may assign this Agreement at Closing to a Permitted Affiliate without Seller’s consent.  For purposes hereof, the term “Permitted Affiliate” means an entity that controls, is controlled by, or is under common control with Purchaser and is solvent at the time of assignment and at the time of Closing, is not rendered insolvent by such assignment, and has sufficient assets to consummate the transaction contemplated herein.  No transfer or assignment by Purchaser shall release or relieve Purchaser of its obligations hereunder.  If Purchaser assigns its rights under this Agreement in accordance with this Section 11.3, Purchaser shall deliver to Seller, at Closing, written evidence of such assignment which includes an acknowledgement by assignor and assignee that Seller is entitled to rely upon or is an intended third party beneficiary of such assignment.

11.4Notices.  Any notice, request or other communication (a “notice”) required or permitted to be given hereunder shall be in writing and shall be delivered by hand or overnight courier (such as United Parcel Service or Federal Express) or via facsimile and addressed to each party at its address or facsimile number as set forth below.  Any such notice shall be considered given on the date of such hand or courier delivery, deposit with such overnight courier for next business day delivery, or sending via facsimile transmission, but the time period (if any is provided herein) in which to respond to such notice shall commence on the date of receipt of hand or overnight courier delivery or on the date of receipt via facsimile transmission as provided above (provided, however, that any facsimile transmission received after 5:00 p.m. local time at the Property shall be deemed received the following business day). Rejection or other refusal to accept or inability to deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice.  By giving at least five (5) days’ prior written notice thereof, any party may from time to time and at any time change its mailing address hereunder.  Any notice of any party may be given by such party’s counsel.

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The parties’ respective addresses for notice purposes are as follows.  Telephone numbers are given for convenience of reference only, and notice by telephone (other than via facsimile as provided above) shall not be effective.

If to Seller:	FFI American Market Fund, L.P.
	c/o FFI Real Estate USA, LLC
	4360 Chamblee Dunwoody Road
	Suite 520
	Atlanta, Georgia 30341
	Attention: Robert Cancelliere
	Telephone No. 770-457-2600
	Facsimile No. 770-457-3373
with a copy to:	King & Spalding LLP
	191 Peachtree Street, N.E.
	Atlanta, Georgia 30303-1763
	Attention: David G. Williams, Esq.
	Telephone No. 404-572-4619
	Facsimile No. 404-572-5148
If to Purchaser:	Inland Real Estate Acquisitions, Inc.
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Attention: G. Joseph Cosenza, President
	Telephone No. 630-218-8000
	Facsimile No. 630-218-4935
with a copy to:	The Inland Real Estate Group, Inc.
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Attention: Robert Baum, General Counsel
	Telephone No. 630-218-8000
	Facsimile No. 630-218-4900 and 630-571-2360
If to Escrow Agent:	Chicago Title & Trust Company
	171 North Clark Street
	Chicago, Illinois 60601
	Attention: Nancy Castro
	Telephone No. 312-223-2709
	Facsimile No. 312-223-2108

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If to Broker:	Maxwell Properties Inc.
	6017 Sandy Springs Circle
	Atlanta, Georgia 30328
	Attention: Bill Worthington
	Telephone No. 404-255-3001
	Facsimile No. 404-255-3382

11.5Modifications.  This Agreement cannot be changed orally, and no agreement shall be effective to waive, change, modify or discharge it in whole or in part unless such agreement is in writing and is signed by the parties against whom enforcement of any waiver, change, modification or discharge is sought.

11.6Calculation of Time Periods.  Unless otherwise specified, in computing any period of time described in this Agreement, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is a Saturday, Sunday or legal holiday under the laws of the State in which the Property is located, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday or legal holiday.  The final day of any such period shall be deemed to end at 5:00 p.m., Atlanta, Georgia time.

11.7Successors and Assigns.  Subject to Section 11.3 hereof, the terms and provisions of this Agreement are to apply to and bind the permitted successors and assigns of the parties hereto.

11.8Entire Agreement.  This Agreement, including the Exhibits, contain the entire agreement between the parties pertaining to the subject matter hereof and fully supersedes all prior written or oral agreements and understandings between the parties pertaining to such subject matter.

11.9Further Assurances.  Each party agrees that it will without further consideration execute and deliver such other documents and take such other action, whether prior or subsequent to Closing, as may be reasonably requested by the other party to consummate more effectively the purposes or subject matter of this Agreement.  Without limiting the generality of the foregoing, Purchaser shall, if requested by Seller, execute acknowledgments of receipt with respect to any materials delivered by Seller to Purchaser with respect to the Property. Upon a request therefor and after having an opportunity to review and verify the Historical Summary of Gross Income and Direct Operating Expenses referenced therein, Seller agrees that it shall deliver to Purchaser’s auditor, KPMG LLP, a letter in the form attached hereto as Exhibit D. The provisions of this Section 11.9 shall survive Closing.

11.10Counterparts.  This Agreement may be executed in counterparts, and all such executed counterparts shall constitute the same agreement.  It shall be necessary to account for only one such counterpart in proving this Agreement.

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11.11Severability.  If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall nonetheless remain in full force and effect.

11.12Applicable Law.  This Agreement is performable in the state in which the Property is located and shall in all respects be governed by, and construed in accordance with, the substantive federal laws of the United States and the laws of such state. Seller and Purchaser hereby irrevocably submit to the jurisdiction of any state or federal court sitting in the state in which the Property is located in any action or proceeding arising out of or relating to this Agreement and hereby irrevocably agree that all claims in respect of such action or proceeding shall be heard and determined in a state or federal court sitting in the state in which the Property is located. If either Seller or Purchaser institutes a legal action to enforce its rights under this Agreement, the prevailing party shall be entitled to recover from the other party its reasonable attorneys’ fees and court costs incurred in connection therewith. Purchaser and Seller agree that the provisions of this Section 11.12 shall survive the Closing of the transaction contemplated by this Agreement.

11.13No Third Party Beneficiary.  The provisions of this Agreement and of the documents to be executed and delivered at Closing are and will be for the benefit of Seller and Purchaser only and are not for the benefit of any third party, and accordingly, no third party shall have the right to enforce the provisions of this Agreement or of the documents to be executed and delivered at Closing.

11.14Employees.  Prior to the Inspection Date, Purchaser agrees not to offer employment to or solicit the employment of any employees of Seller who are employed at the Property, if any.

11.15Seller’s Access to Records after Closing.  Purchaser shall cooperate with Seller for a period of three (3) years after Closing in case of Seller’s need in response to any legal requirement, tax audit, tax return preparation or litigation threatened or brought against Seller, by allowing Seller and its agents or representatives access, upon reasonable advance notice (which notice shall identity the nature of the information sought by Seller), at all reasonable times to examine and make copies of any and all instruments, files and records which predate the Closing, provided, however, that nothing contained in this Section shall require Purchaser to retain any files or records for any particular period of time.  This Section 11.15 shall survive Closing.

11.16Exhibits and Schedules.  The following schedules or exhibits attached hereto shall be deemed to be an integral part of this Agreement:

Exhibit A	-	Legal Description of the Land
Exhibit A-l	-	List of Projects
Exhibit B	-	List of Leases
Exhibit C	-	Service Contracts
Exhibit D	-	Form of Audit Letter
Exhibit E	-	[Reserved]

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Exhibit F	-	Seller’s Disclosure Schedule
Exhibit G	-	Form of Tenant Estoppel
Exhibit H	-	Due Diligence Materials
Exhibit I	-	Seller Lease Estoppel Certificate

11.17Captions.  The section headings appearing in this Agreement are for convenience of reference only and are not intended, to any extent and for any purpose, to limit or define the text of any section or any subsection hereof.

11.18Construction.  The parties acknowledge that the parties and their counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any exhibits or amendments hereto.

11.19Termination of Agreement.  It is understood and agreed that if either Purchaser or Seller terminates this Agreement pursuant to a right of termination granted hereunder, such termination shall operate to relieve Seller and Purchaser from all obligations under this Agreement, except for such obligations as are specifically stated herein to survive the termination of this Agreement.

11.20Survival.  Those provisions of this Agreement that by their terms expressly survive the Closing shall survive Closing and shall not be merged into the execution and delivery of the Deeds and other documents to be executed and delivered by Seller at Closing (the “Obligations Surviving Closing”).  Except for the Obligations Surviving Closing, all representations, warranties, covenants and agreements contained in this Agreement shall be merged into the instruments and documents executed and delivered at Closing.

11.21Time of Essence.  Time is of the essence with respect to this Agreement.

[SIGNATURES ON FOLLOWING PAGES]

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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the Effective Date.

SELLER:
FFI AMERICAN MARKET FUND, L.P., a Georgia limited partnership
By:	FFI REAL ESTATE USA, LLC, a Georgia limited liability company, its general partner
	By:	/s/ Robert [ILLEGIBLE]
	Name:			Robert [ILLEGIBLE]
	Title:		President

[SIGNATURES CONTINUED ON FOLLOWING PAGE]

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PURCHASER:
INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
By:	/s/ [ILLEGIBLE]
Name:			[ILLEGIBLE]
Title:		President

[SIGNATURES CONTINUED ON FOLLOWING PAGE]

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Escrow Agent and Broker have executed this Agreement for the limited purposes set forth herein.

ESCROW AGENT:
CHICAGO TITLE & TRUST COMPANY, aMissouri corporation
By:	/s/ Nancy R. Castro
Name:			NANCY R. CASTRO
Title:		AVP

[SIGNATURES CONTINUED ON FOLLOWING PAGE]

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BROKER:
MAXWELL PROPERTIES INC., a Georgia licensed real estate broker
By:	/s/ [ILLEGIBLE]
Name:			[ILLEGIBLE]
Title:		Vice President

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EX-10.487

Exhibit 10.487

ASSIGNMENT OF CONTRACT

This ASSIGNMENT OF CONTRACT (the “Assignment”) is made and entered into this 30th day of December, 2004 by INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation (“Assignor”) and INLAND WESTERN VIERA LAKE ANDREW, L.L.C., a Delaware limited liability company (“Assignee”).

Assignor does hereby sell, assign, transfer, set over and convey unto Assignee all of its right, title and interest as Purchaser under that certain agreement dated as of November 15, 2004, as amended, and entered into by Wickham & 95 Corp., a Florida corporation and Lot 91, L.L.C., an Arizona limited liability company, as Seller, and Assignor, as Purchaser (collectively, the “Agreement”), with respect to the sale and purchase of the property described by the Agreement, located in Viera, Florida and known as The Shoppes at Lake Andrew Shopping Center.

Assignor represents and warrants that it is the Purchaser under the Agreement, and that it has not sold, assigned, transferred, or encumbered such interest in any way to any other person or entity. By acceptance hereof, Assignee accepts the foregoing Assignment and agrees, from and after the date hereof, to (i) perform all of the obligations of Purchaser under the Agreement, and (ii) indemnify, defend, protect and hold Assignor harmless from and against all claims and liabilities arising under the Agreement.

ASSIGNOR:
INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
By:	/s/ Karen Kautz
Name:	KAREN KAUTZ
Title:	Vice President
ASSIGNEE:
INLAND WESTERN VIERA LAKE ANDREW, L.L.C., a Delaware limited liability company
By:	Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
	By:	/s/ Debra A. Palmer
	Name:	DEBRA A. PALMER
	Title:	Asst. Secretary

EX-10.488

Exhibit 10.488

	Inland Real Estate Acquisitions, Inc.
	2901 Butterfield Road
	Oak Brook, IL 60523
	Phone: (630) 218-4948 Fax: 630-218-4935
	www.inlandgroup.com

		November 8, 2004
Wickham & 95 Corporation (Seller)
Lot 91, LLC (Seller)
c/o Matthew Development LLC (Seller)
Attn: Ernie Euler
7331 Office Park Place, Suite 200
Viera, FL 32940
Re:	Shoppes at Lake Andrew
	Viera, FL

Dear Ernie:

This letter represents this corporation’s offer to purchase the Shoppes at Lake Andrew with 144,772 net rentable square feet, situated on approximately 18 acres of land, located at the northwest corner of Wickham and I-95 in Viera, FL (see Exhibit A attached).

The above property shall include all the land and buildings and common facilities, as well as all personalty within the buildings and common areas, supplies, landscaping equipment, and any other items presently used on the site and belonging to owner, and all intangible rights relating to the property.

This corporation or its nominee will consummate this transaction on the following basis:

1.The total purchase price shall be $28,300,000.00, plus or minus prorations, including the existing first mortgage as stated below, and with no new mortgage contingencies, to be paid at closing 30 days following the acceptance of this agreement (see Paragraph 11). In the event that closing does not occur on or before December 30, 2004, either party may by written notice to the other and the Escrow Agent terminate this Contract whereupon the Deposit shall be refunded to Purchaser and all parties shall be relieved of any further obligations hereunder (in the event of any such cancellation, Purchaser shall immediately return to Seller all due diligence materials and any other information delivered to Purchaser by Seller). Purchaser’s Deposit in the amount of $500,000.00 shall be nonrefundable thirty (30) days after the date of this Agreement (the due diligence period), subject to closing conditions as set forth herein.

Purchaser shall purchase the property subject only to one non-recourse first mortgage with Nationwide Life Insurance Company having a current balance of $15,800,000.00 with a monthly interest payment of $65,833.33 as of the Closing Date which is an annualized interest payment of $790,000.00, at an interest rate of 5.00% through December 30, 2009 and changing on December 31, 2009 to an interest rate of 6.54%, with amortization, for an approximate monthly principal and interest payment of $107,416.67 which is an approximate annualized principal and interest payment of $1,289,000.00 maturing on March 1, 2014. Seller shall cause Nationwide Life Insurance Company to release at Closing Lot 90 (World Savings) from the lien of its mortgage.

Within the due diligence period, Purchaser shall apply to and the first mortgagee shall approve this transaction and shall approve Inland and Inland Western Retail Real Estate Trust, Inc., Inland’s nominee and Inland’s affiliate’s subsequent ownership without recourse to any. Any fees or expenses incurred in obtaining said approvals shall be paid by Seller. Said first mortgages shall be current and without default at

closing and any and all existing reserves and impounds, including replacement reserves, for said financing shall be assigned to Purchaser at closing and shall be paid to Seller by Purchaser at closing.

The balance of $12,368,500.00, plus or minus prorations, shall be paid in cash to Seller at closing with it being understood that Seller’s equity shall be subject to increase in the same amount of any debt reduction between the date of this agreement and the closing date.

Seller and Purchaser shall allocate the Purchase Price between land, building and depreciable improvements by written agreement prior to closing.

2.There are no real estate brokerage commissions involved in this transaction.

3.Seller represents and warrants (to the best of the Seller’s knowledge), that the above referenced property is leased to the tenants described on Exhibit B pursuant to the leases covering the building and all of the land, parking areas, reciprocal easements and REA/OEA agreements (if any), for the entire terms and option periods. Any concessions given to any tenants that extend beyond the closing day shall be settled at closing by Seller giving a full cash credit to Purchaser for any and all of those concessions.

4.Seller warrants and represents (to the best of the Seller’s knowledge), that the property is free of violations, and the interior and exterior structures are in a good state of repair, free of leaks, structural problems, and mold, and the property is in full compliance with Federal, State, City and County ordinances, environmental laws and concerns, and no one has a lease that exceeds the lease term stated in said leases, nor does anyone have an option or right of first refusal to purchase or extend, nor is there any contemplated condemnation of any part of the property, nor are there any current or contemplated assessments.

5.Seller warrants and represents (to the best of the Seller’s knowledge), that during the term of the leases the tenants and guarantors (if applicable) are responsible for and pay all operating expenses relating to the property on a prorata basis, including but not limited to, real estate taxes, REA/OEA agreements, utilities, insurance, all common area maintenance, parking lot and the building, etc.

Prior to closing, but only after Purchaser’s Deposit in the amount of $500,000.00 is deemed non-refundable, (which is the first day following the end of the due diligence period), Seller shall not enter into or extend any agreements without Purchaser’s approval. Any new contract not accepted by Purchaser within five (5) days of receipt by Purchaser, shall be terminated by Seller. Any work presently in progress on the property shall be completed by Seller prior to closing.

6.Ten (10) days prior to closing Seller shall furnish Purchaser with estoppel letters acceptable to Purchaser from all tenants, guarantors, and parties to reciprocal and/or operating easement agreements, if available. Seller shall deliver its own estoppel for any tenant less than 4,000 sq. ft., not delivering an estoppel. Any Seller estoppel so delivered shall expire six (6) months after its effective date.

7.Seller is responsible for payment of any leasing brokerage fees or commissions which are due any leasing brokers for the existing leases stated above or for the renewal of same.

8.This offer is subject to Seller supplying to Purchaser prior to closing and if available a certificate of insurance from the tenants and guarantors in the form and coverage provided in the leases.

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9.It is understood that Seller may have in its possession Level 1 Environmental Reports which Seller will supply to Purchaser 10 days prior to closing. Seller shall have said reports, which must be acceptable to Purchaser, updated and re-certified to Purchaser at closing, all at Purchaser’s cost.

10.The above sale of the real estate shall be consummated by conveyance of a special warranty deed from Seller to Purchaser’s designee, with the Seller paying any city, state, or county transfer taxes for the closing, and Seller agrees to cooperate (at no cost to Seller) with Purchaser’s lender, if any, and the money lender’s escrow.

11.The closing shall occur through Chicago Title & Trust Company, in Chicago, Illinois with Nancy Castro as Escrowee, 30 days following acceptance of this agreement (see paragraph 1), at which time title to the above property shall be marketable; i.e., free and clear of all liens, encroachments and encumbrances, and an ALTA form B owner’s title policy with extended coverage and required endorsements, waiving off all construction, including 3.1 zoning including, if available, parking and loading docks, and insuring all improvements as legally conforming uses and not as non-conforming or conditional uses, paid by Seller shall be issued, with all warranties and representations to the best of Seller’s knowledge being true now and at closing and surviving the closing for (12) months, and each party shall be paid in cash their respective credits, including, but not limited to, security deposits, rent and expenses, interest in arrears (if any) with a proration of real estate taxes based on the most recent bill or latest assessment, or the estimated assessments for 2004 using the Assessor’s formula for these sales transactions, with a later reproration of taxes when the actual bills are received. At closing, no credit will be given to Sellers for any past due, unpaid or delinquent rents, all of which Seller shall retain the right to collect.

12.Within the due diligence period, Purchaser may, at Purchaser’s sole cost and expense, obtain an appraisal of the property prepared by MAI or any other qualified appraiser which determines the value of the property to be not less than the Purchase Price, and certified in the name of, Purchaser or Purchaser’s lender.

13.Neither Seller (Landlord) or any tenant and guarantor shall be in material default on any lease or agreement at closing, nor is there any pending litigation.

14.Seller warrants and represents that there are no employees employed for the property or its ownership entity.

15.Prior to closing, Seller shall furnish to Purchaser copies of all guarantees and warranties which Seller received from any and all contractors and sub-contractors pertaining to the property. To the best of Seller’s knowledge all guarantees and warranties survive the closing and are assignable and transferable to any titleholder subsequent to Seller’s ownership.

16.This offer is subject to the property being 100% occupied at the time of closing, with all tenants occupying their space, open for business, and paying full rent, including CAM, tax and insurance current, as shown on Exhibit B attached.

17.Fifteen (15) days prior to closing, Seller must provide the title as stated above, Within the due diligence period, Seller shall request pay for and give to purchaser a current Urban ALTA/ACSM spotted survey in accordance with the minimum standard detail requirements for ALTA/ACSM Land Title surveys jointly established and adopted by ALTA and ACSM in 1999 and includes all Table A optional survey responsibilities which shall be acceptable to Purchaser and the title company at closing.

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18.Seller agrees to immediately make available and disclose all information that Purchaser needs to evaluate the above property, including all inducements, abatements, concessions or cash payments given to tenants, and for CAM, copies of the bills. Seller agrees to cooperate, at no cost or expense to Seller, with Purchaser and Purchaser’s representatives to facilitate Purchaser’s evaluations and reports, including at least a one-year audit of the books and records of the property.

This offer is, of course, predicated upon the Purchaser’s review and written approval, within the due diligence period, of the existing leases, new leases, lease modifications (if any), all tenant correspondence, REA/OEA agreements, tenants’ and guarantors’ financial statements, sales figures, representations of income and expenses made by Seller, site inspection, environmental, appraisal, etc., and at least one year of audited operating statements on said property is required that qualify, comply with and can be used in a public offering.

If this offer is acceptable, please sign the original of this letter and initial each page, keeping copies for your files and returning the original to me by November 15, 2004.

		Sincerely,
ACCEPTED:		INLAND REAL ESTATE ACQUISITIONS, INC. or nominee
By:	/s/ Ernie Euler
Date:	10.15.04	/s/ G. Joseph Cosenza
		G. Joseph Cosenza
		Vice Chairman

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EXHIBIT B

SHOPPES AT LAKE ANDREW

Viera, FL

SHADOW-ANCHORED BY WAL-MART

TENANTS	S.F.	ANNUAL BASE RENT	MONTHLY BASE RENT	RENT PER SQ. FOOT		LEASE COMMENCEMENT DATE	LEASE EXPIRATION DATE
Ross Dress For Less	30,187	286,776.00	23,898.00	$	9.50	2/12/2004	1/31/2016
Linen N Things	28,240	353,000.00	29,416.67	$	12.50	2/12/2004	1/31/2015
Shoe Carnival	10,800	135,000.00	11,250.00	$	12.50	10/2/2003	10/31/2013
Pier 1 Imports	10,622	191,196.00	15,933.00	$	18.00	10/9/2003	2/28/2014
Dress Barn	4,312	74,536.00	6,211.33	$	18.50	4/16/2004	6/30/2009
EB Games	1,800	43,200.00	3,600.00	$	24.00	8/11/2003	8/31/2008
Subway	1,200	31,200.00	2,600.00	$	26.00
Rag Shop	19,976	219,736.00	18,311.33	$	11.00	11/16/2003	11/30/2013
Petco	13,767	213,388.00	17,782.33	$	15.50	9/29/2003	9/30/2013
Your House Interiors	9,748	150,660.00	12,555.00	$	15.46	8/1/2004	7/31/2009
Mattress Barn	4,520	83,244.00	6,937.00	$	18.42	10/2/2003	10/31/2008
Payless	2,700	59,400.00	4,950.00	$	22.00	6/27/2003	6/30/2013
Asian Wok	1,200	32,400.00	2,700.00	$	27.00	9/20/2003	9/30/2008
Cellular Express	1,200	33,372.00	2,781.00	$	27.81	8/2/2003	8/31/2013
Hair Cuttery	1,200	32,400.00	2,700.00	$	27.00	8/28/2003	8/31/2008
Professional	1,200	31,200.00	2,600.00	$	26.00	8/23/2003	8/31/2013
The Blind Spot	1,200	31,200.00	2,600.00	$	26.00	1/29/2004	1/31/2009
Gulf Atlantic Hearing Aid	900	29,700.00	2,475.00	$	33.00	1/31/2004	1/31/2009
Totals	144,772	2,031,608.00

	The Inland Real Estate Group, Inc.
	2901 Butterfield Road
	Oak Brook, Illinois 50523
	630-218-8000 Fax: 630-218-4900
	Law Department

December 15, 2004
VIA FACSIMILE 321/242-8007
Wickham & 95 Corporation
Lot 91, LLC
c/o Matthew Development, LLC
7331 Office Park Place, Suite 200
Viera, Florida 32940
Attn: Mr. Ernie Euler
	Re:	The Shoppes at Lake Andrew, Viera, Florida
		(the “Property”)

Dear Mr. Euler:

Reference is hereby made to that certain letter agreement dated November 15, 2004 (the “Agreement”), between Inland Real Estate Acquisitions, Inc. (“Inland”), as purchaser, and Wickham & 95 Corporation and Lot 91, LLC (ECE), as seller. All capitalized terms not defined herein shall have the meanings ascribed to them in the Agreement.

As you are aware, pursuant to the terms of the Agreement, the due diligence period, as defined in the Agreement, is scheduled to end today, December 15, 2004. However, certain due diligence matters remain outstanding. Accordingly, Inland requires that the due diligence period be extended from December 16, 2004 ECE to December 20, 2004.  Please note that we are not requesting an extension of the closing date, which will remain December 30, 2004.  Except for the extensions of the due diligence period as provided above, all terms and provisions of the Agreement shall remain unchanged as originally written.

Please confirm WICKHAM & 95 CORP. ECE agreement to the foregoing by having the appropriate party on behalf of WICKHAM & 95 CORP. ECE sign a copy of this letter on the line provided below. Once executed, please have one (1) fully executed copy returned to us by facsimile (630/218-4900, Attn: Robin Rash) no later than 2:30 p.m., Chicago time, today, December 15, 2004 (with the original to follow by regular mail).

Should Inland not receive a copy of this letter, executed by WICKHAM & 95 CORP. ECE by 2:30 p.m. Chicago time, on December 15, 2004,then in order to protect its Earnest Money, this letter shall serve as Inland’s notice of termination of the Agreement.

Thank you, and if you have any questions, please feel free to contact me at (630) 218-8000, ext. 2854 or e-mail:

rrash@inlandgroup.com.

			Sincerely,
			THE INLAND REAL ESTATE GROUP, INC.
			/s/ Robin Rash
			Robin Rash
			Assistant Counsel
cc:		Dale Dettmer, Esq. (via facsimile at 321/768-1147)
		Krasny & Dettmer
		304 S. Harbor City Blvd., Ste 201
		Melbourne, FL 32901
		Chicago Title Insurance Company
		171 N. Clark
		3rd Floor, Division 2
		Chicago, IL 60601
		Attention: Nancy Castro (via facsimile at 312/223-2108)
		Mr. G. Joseph Cosenza (by hand)
		Mr. Ed Murray (by hand)
APPROVED AND AGREED:
WICKHAM & 95 CORP. ECE LOT 91, LLC
By:	/s/ Ernie Euler
Name:	ERNIE EULER
Its:	PRESIDENT

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	The Inland Real Estate Group, Inc.
	2901 Butterfield Road
	Oak Brook, Illinois 50523
	630-218-8000 Fax 630-218-4900
	Law Department

December 20, 2004
VIA FACSIMILE 321/242-8007
c/o Matthew Development, LLC
7331 Office Park Place, Suite 200
Viera, Florida 32940
Attn: Mr. Ernie Euler
	Re:	The Shoppes at Lake Andrew, Viera, Florida
		(the “Property”)

Gentlemen:

This letter is written with respect to that letter agreement (the “Agreement”), between Inland Real Estate Acquisitions, Inc., as Purchaser, and Wickham & 95 Corporation and Lot 91, LLC (collectively, “Seller”), in connection with the Property.

Please be advised that Purchaser is prepared to waive all items of due diligence with respect to the Property, and to proceed to closing on December 30, 2004, subject to the following:

1.             Satisfaction of the items raised in that correspondence from Robin Rash to you, dated December 18, 2004;

2.             Completion of all negotiations and documentation among Nationsbank, Seller and Purchaser regarding (a) assumption of the loan by Inland and (b) amending the loan payment terms to be interest only for the first five years, commencing with the acquisition closing date;

3.             Satisfaction of all other conditions precedent to closing contained in the Agreement.

4.             Written waiver by World Savings of the right of first refusal contained in the lease for World Savings to acquire Lot 4, Wal-Mart at Viera Subdivision (a/k/a Lot 91).

5.             Delivery of the following missing items: Utility bills; service contracts; commencement date agreements for Linens, Shoe Carnival, EB Games, Subway, Asian Wok, Hair Cuttery; tenant financials; and tenant insurance certificates.

If you are in agreement with the foregoing, please so indicate by executing below and faxing a copy of this letter to me at 630/218-4900.

Thank you, and if you have any questions, please feel free to contact me at (630)218-8000, ext. 2854 or e-mail: rrash@inlandgroup.com.

			Sincerely,
			THE INLAND REAL ESTATE GROUP, INC.
			/s/ Robin Rash
			Robin Rash
			Assistant Counsel
AGREED ON BEHALF OF SELLERS:
By:		/s/ Ernie Euler
Date:		12.20.04
RR/rr
cc:	Dale Dettmer, Esq., Krasny & Dettmer, 304 S. Harbor City Blvd., Suite 201, Melbourne, Florida 32901 (Via facsimile at 321/768-1147)
	Mr. G. Joseph Cosenza (by hand)
	Mr. Ed Murray (by hand)

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EX-10.489

Exhibit 10.489

PROMISSORY NOTE

(“Note”)

$15,150,000.00	Winter Park, Florida
	October 30, 2002

THE UNDERSIGNED, (“Maker”), promises to pay to the order of AMSOUTH BANK, a bank organized under the laws of Alabama, (“Payee”), whose mailing address is Post Office Box 588001, Orlando, Florida 32858, the principal sum of FIFTEEN MILLION ONE HUNDRED FIFTY THOUSAND DOLLARS ($15,150,000.00), or so much thereof as may be advanced and outstanding from time to time, with interest on the unpaid principal from the date of each such advance at the following rate and payable in the following manner:

(a)Definitions.  For the purposes of the determination of the payment terms to be applied to this Note, the following definitions shall apply:

i.“Accelerated Maturity Date” shall mean April 30, 2003.

ii.“Calculation Rate” shall mean assumed interest rate of the greater of (a) the then current interest rate applicable to this Note or (b) the yield on U.S. government securities adjusted to a constant maturity of ten (10) years as reported or made available by the Federal Reserve in the most recently released Statistical Release H.15 or as otherwise released or reported as of the Maturity Date plus two hundred (225) basis points (two and one-quarter percent (2.25%) per annum) or 2 (c) eight percent (8.00%) per annum.

iii.“Debt Service Coverage Ratio” shall mean that ratio that actual rents to be received in accordance with signed and delivered lease agreements with tenants and lease agreements approved by the Lender less all operating expenses (including an appropriate capital reserve approved by the Lender and adequate accruals for real estate taxes and insurance) bears to the principal payments due pursuant to the terms of this Note together with interest thereon based on the Calculation Rate.

iv.“Extended Maturity Date” shall mean April 30, 2005.

v.“Extension Notice” shall mean a written notice delivered to Payee whereby Maker exercises its option to extend the Maturity Date in accordance with the terms and conditions of this Note.

vi.“Extension Period” shall mean the period beginning with the Maturity Date and ending one day prior to the Extended Maturity Date.

vii.“Loan Documents” shall mean this Note, the Mortgage securing this Note and all other loan documents as may be now or hereafter executed in connection therewith.

viii.“Maturity Date” shall mean April 30, 2004.

ix.“Payment Date” shall mean the 20th day of each month during the term of this Note.

x.“Project” shall mean the property and improvements constructed thereon encumbered by the lien of the Mortgage securing this Note.

(b)The interest rate shall be a variable rate equal to two hundred fifty (250) basis points (two and one-half percent (2.50%) per annum) in excess of the LIBOR Base Rate (the “Stated Rate”).  As used herein, the “LIBOR Base Rate” shall mean the average

offered rate in the London interbank market for deposits in U.S. dollars for a one (1) month period (or if the reporting source utilized by Payee shall report the LIBOR Base Rate in daily rather than monthly increments, shall mean a thirty (30) day period) as published in the Wall Street Journal or such other comparable financial information reporting service used by the Payee at the time such rate is determined. The interest rate shall be adjusted prospectively on each Payment Date, as hereinafter defined, utilizing the LIBOR Base Rate on each such Payment Date.

(c)Interest on this Note, as calculated above in paragraph (b), shall be payable monthly in arrears on each Payment Date during the term of this Note commencing with the first Payment Date following the date of this Note.

(d)The entire unpaid principal balance, together with accrued interest, shall be due and payable on or before the Maturity Date.

(e)Notwithstanding the terms of paragraph (d) above, unless Maker shall have satisfied each and every term and condition set forth in Section 7.8 of the Construction and Loan Agreement governing the Project of even date herewith executed by the Maker and the Payee, the Payee shall have the option, to be exercised or not exercised in Payee’s sole and absolute discretion, to declare the entire unpaid principal balance, together with accrued interest immediately due and payable at any time on or after the Accelerated Maturity Date.

(f)Further notwithstanding the terms of paragraph (d) above the provided the Payee shall not have exercised its option set forth in paragraph (e) above, the Maker shall have the option to extend the term of this Note from the Maturity Date to the Extended Maturity Date provided that Maker shall have satisfied the following terms and conditions:

i.Maker shall have delivered to Payee an Extension Notice requesting the extension of the Maturity Date (aa) not later than thirty (30) days prior to the Maturity Date and (bb) not earlier than sixty (60) days prior to the Maturity Date; and

ii.Maker shall have paid to Payee an extension fee of one-quarter of one percent (.25%) of the outstanding disbursed and undisbursed principal balance of this Note.

iii.At the time of delivery of the Extension Notice there is no outstanding uncured event of default in this Note or any of the Loan Documents; and

iv.With the exception of interest reserve, Maker is eligible for the final advance of funds pursuant to the Loan Documents; and

v.There exists no unsatisfied claim of lien in connection with the Project; and

vi.The Project is projected to maintain a Debt Service Coverage Ratio of no less than 1.25:1.00 for the twelve (12) month period following the Maturity Date as determined by Payee in Payee’s sole discretion.

vii.Payee has been provided and has approved the updated financial statements of Robert M. Renfro, Mary Renfro and Ernest C. Euler, current as of no more than sixty (60) days prior to the Maturity Date and demonstrating no adverse change to the financial condition of such individuals.

Provided that Maker shall have timely and properly delivered the Extension Notice and the foregoing terms and conditions are satisfied, then during the Extension Period, interest on

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this Note and principal shall be paid in accordance with the following paragraphs (g), (h) and (i):

(g)Interest on this Note, as calculated above in paragraph (b), shall be continue to be payable monthly in arrears on each Payment Date commencing with the Maturity Date.

(h)Principal shall be paid in consecutive monthly installments of FIFTY THOUSAND FIVE HUNDRED and NO/100 DOLLARS ($50,500.00) on each Payment Date commencing with the Maturity Date.

(i)The entire unpaid principal balance, together with accrued interest, shall be due and payable on or before the Extended Maturity Date.

Default Rate.  After the occurrence of an Event of Default, as hereinafter defined or after maturity, this Note and all sums due hereunder shall bear interest at the maximum allowable rate permitted by law (“Penalty Rate”) from the date of default or maturity until paid.

Interest Basis.  Interest shall be calculated on the basis of a three hundred sixty (360) day year for actual days elapsed.

Interest Parity.  This loan evidenced by this Note is being made pursuant to the rate provisions of Chapters 665 and 687 of the Florida Statutes.

Late Charge.  The Maker agrees to pay to Payee, on demand, a late charge equal to 5% of any installment that is not paid within 15 days after it is due and 5% of the interest portion of the payment due upon the final maturity date of this note if that payment is not paid within 15 days after it is due. This provision shall not be deemed to excuse a late payment or be deemed a waiver of any other right Payee may have, including, without limitation, the right to declare the entire unpaid principal and interest immediately due an payable.

Prepayment.  The Maker shall have the privilege of prepaying this Note in part or in full, without penalty, at any time, and any prepayment shall be applied to the installment or installments of principal last maturing. No partial prepayment shall excuse or defer Maker’s subsequent payment obligations.

Security.  This Note is secured by, among other things, a Mortgage (the “Mortgage”) upon real property (the “Property”) in Brevard County, Florida. This Note, the Mortgage and other loan documents as may be now or hereafter executed in connection therewith (“Loan Document(s)”) shall together evidence the debt and constitute the security for the Note.

Application of Payments.  All payments made on the indebtedness evidenced by this Note shall be applied first to repayment of monies paid or advanced by Payee on behalf of the Maker in accordance with the terms of the Loan Documents, and thereafter shall be applied to payment of accrued interest, and lastly to payments of principal in the inverse order of their maturity. No partial prepayment of principal will have the effect of postponing, satisfying, reducing or otherwise affecting any scheduled installment before this Note is paid in full.

Place and Manner of Payment.  All payments of interest and principal are payable in lawful money of the United States of America in cash or immediately available funds, at the Payee’s office at which the payment is made, or at such other place as the Payee may designate in writing. At its option, the Payee may elect to give the Maker credit for any payment made by check or other instrument in accordance with the Payee’s availability schedule in effect from time to time for such items and instruments, which the Payee will make available to the Maker on request.

Events of Default.  Maker shall be in default in this Note upon the occurrence of any of the following events, circumstances or conditions (each an “Event of Default”):

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(a)Maker’s failure to make any payment of any sum due hereunder on or before the due date thereof without further notice or demand, or to make any other payment due, in accordance with its terms, by the Maker to the Payee under any other promissory note or under any security agreement or other written obligation of any kind now existing or hereinafter created.

(b)The existence of a default or breach of any of the terms of this Note or any other Loan Document that is not cured within any applicable grace and/or cure period without further notice or demand.

Remedies after Default.  At the option of Payee, all or any part of the principal and accrued interest on the Note, and all other obligations of the Maker to the Payee shall become immediately due and payable without additional notice or demand, upon the occurrence of an Event of Default or at any time thereafter. Payee may exercise all rights and remedies provided by law, equity, this Note or any other Loan Document or any other obligation of the Maker to the Payee. All rights and remedies as set forth in the Loan Documents are cumulative and concurrent and may be pursued singularly, successively or together, at the sole discretion of Payee, and may be exercised as often as occasion therefore shall arise. Such remedies are not exclusive, and Payee is entitled to all remedies provided at law or equity, whether or not expressly set forth therein. No act, or omission or commission or waiver of Payee, including specifically any failure to exercise any right, remedy or recourse, shall be effective unless set forth in a written document executed by Payee and then only to the extent specifically recited therein. A waiver or release with reference to one event shall not be construed as continuing, as a bar to, or as a waiver or release of, any subsequent right, remedy or recourse as to any subsequent event, nor shall any single or partial exercise thereof preclude any other or further exercise or the exercise of any other right, remedy or recourse. No notice to or demand on any party liable for the payment of this Note in any case shall entitle any such party to any other or further notice or demand in the same, similar or other circumstances.

Right of Set-off.  Neither the Maker, any co-signer, endorser, surety nor guarantor shall have any right of set-off against the Payee under this Note or under any Loan Document executed in connection with the loan evidenced by this Note. In addition to the remedies provided for herein, the Maker, each co-signer, endorser, surety or guarantor grants to the Payee a security interest in any funds or other assets from time to time on deposit with or in possession of the Payee, and the Payee may, at any time set-off the indebtedness evidenced by this Note against any such funds or other assets, including but not limited to, all money owed by Payee to Maker, each co-signer, endorser, surety or guarantor whether or not due. Maker, each co-signer, endorser, surety or guarantor acknowledge and agree that Payee may exercise its right of set-off to pay all or any part of the outstanding principal balance and accrued interest owed on this Note or on any other obligation of the Maker to the Payee against any obligation Payee may have, now or hereafter, to pay money to Maker, each co-signer, endorser, surety or guarantor. This right of set-off includes, but is not limited to, the following:

(a)Any deposit, account balance, securities account balance or certificate of deposit balance Maker has with Payee whether special, general, time, savings, checking or NOW account; and

(b)Any money owing to Maker on an item presented to Payee or in Payee’s possession for collection or exchange; and

(c)Any repurchase agreement or any other non-deposit obligation or any credit in favor of Maker.

If any such money is also owned by some other person who has not agreed to pay this Note (such as another depositor on a joint account), Payee’s right of set-off will extend to the amount which could be withdrawn or paid directly to Maker on Maker’s request, endorsement or instruction alone. In addition, (where Maker may obtain payment from Payee only with the endorsement or consent of someone who has not agreed to pay this Note), Payee’s right of set-off will extend to Maker’s interest in the obligation. Payee’s right of set-off will not apply to any account if it clearly appears that Maker’s rights in the account are solely as a fiduciary for another, such as security deposits that are property of others but held by Maker in an account appropriately identified, or to any account.

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which by its nature and applicable law (for example an IRA or other tax deferred retirement account), must be exempt from the claims of creditors.  Maker hereby appoints Payee as its attorney-in-fact and authorizes Payee to redeem or obtain payment on any certificate of deposit in which Maker has an interest in order to exercise Payee’s right of set-off. Such authorization applies to any certificate of deposit even if not matured. Maker further authorizes Payee to assess and withhold any early withdrawal penalty without liability against Payee in the event such penalty is applicable as a result of Payee’s set-off against a certificate of deposit prior to its maturity.

Payee’s right of set-off may be exercised upon an Event of Default:

(a)Without prior demand or notice; and

(b)Without regard to the existence or value of any collateral securing this Note; and

(c)Without regard to the number or creditworthiness of any other persons who have agreed to pay this Note.

Payee will not be liable for dishonor of a check or other request for payment where there is insufficient funds in the account (or other obligation) to pay such request because of Payee’s exercise of its right of set-off. Maker agrees to indemnify and hold Payee harmless from any person’s claims, arising as the result of Payee’s right of set-off and the costs and expenses, including without limitation, attorneys’ fees.

The Maker understands that the Payee may from time to time enter into a participation agreement or agreements with one or more participants pursuant to which such participant or participants shall be given participations in the loan evidenced by this Note and that such participants may from time to time similarly grant to other participants sub-participations in the loan evidenced by this Note. The Maker agrees that any participant and any sub-participant may exercise any and all rights of banker’s lien or set-off, whether arising by operation of law or given to Payee by the provisions of this Note, with respect to the Maker as fully as if such participant or sub-participant had made the loan directly to the Maker. For the purposes of the paragraph only, the Maker shall be deemed to be directly obligated to each participant or sub-participant in the amount of its participating interest in the principal of, and the interest on, the loan evidenced by this Note.

Taxes.  All parties liable for the payment of this Note agree to pay all documentary stamp tax, nonrecurring intangible tax, and all interest and penalties, if any, on this Note and advances hereunder and on any instrument securing the foregoing or any guaranty thereof.

Collection Expenses.  All parties liable for the payment of the Note agree to pay the Payee all costs incurred by the Payee, whether or not an action be brought, in collecting the sums due under the Note, enforcing the performance and/or protecting its rights under the Loan Documents and in realizing on any of the security for the Note. Such costs and expenses shall include, but are not limited to, filing fees, costs of publication, deposition fees, stenographer fees, witness fees and other court and related costs. Sums advanced by the Payee for the payment of collection costs and expenses shall accrue interest at the Penalty Rate, from the time they are advanced or paid by the Payee, and shall be due and payable upon payment by Payee without notice or demand and shall be secured by the lien of the Mortgage.

Attorneys’ Fees.  All parties liable for the payment of the Note agree to pay the Payee reasonable attorneys’ fees incurred by the Payee, whether or not an action be brought, in collecting the sums due under the Note, enforcing the performance and/or protecting its rights under the Loan Documents and in realizing on any of the security for the Note. Such reasonable attorneys’ fees shall include, but not be limited to, fees for attorneys, paralegals, legal assistants, and expenses incurred in any and all judicial, bankruptcy, reorganization, administrative, receivership, or other proceedings effecting creditor’s rights and involving a claim under the Note or any Loan Document, which such proceedings may arise before or after entry of a final judgment. Such fees shall be paid regardless whether suit is brought and shall include all fees incurred by Payee at all trial and appellate levels including bankruptcy court. Sums advanced by the Payee for the payment of attorneys’ fees shall

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accrue interest at the Penalty Rate, from the time they are advanced by the Payee, and shall be due and payable upon payment by Payee without notice or demand and shall be secured by the lien of the Mortgage.

Waiver and Consent.  By the making, signing, endorsement or guaranty of this Note:

(a)Maker and each co-signer, endorser, surety or guarantor waive demand, presentment, protest, notice of protest, notice of dishonor, suit against any party and all of the requirements necessary to hold any maker, co-signer, endorser, surety or guarantor liable;

(b)Each co-signer, endorser, surety or guarantor consents to any renewals or extensions of time for payment on this Note;

(c)Maker and each co-signer, endorser, surety or guarantor consents to Payee’s release of, agreement not sue, suspension of the right to enforce this instrument against and discharge or compromise of any obligation of any co-signer, endorser, surety or guarantor, all without notice to or further reservations of rights against any of such parties, and all without in any way affecting or releasing the liability of any of such parties;

(d)Maker and each co-signer, endorser, surety or guarantor waive and consent to the release, substitution, impairment, exchange and other dealing in any manner with all or any portion of any collateral securing this Note and any right of set-off that may now or hereafter secure this Note, all without notice to or further reservations of rights against any of such parties, and all without in any way affecting or releasing the liability of any of such parties, even though such release, substitution, impairment, exchange or other dealing may in any manner and to any extent impair any such collateral, lien or right of set-off;

(e)Each co-signer, endorser, surety or guarantor consents to any modification of the terms of this Note or any other Loan Document;

(f)Maker and each co-signer, endorser, surety or guarantor consent to any and all sales, repurchases, participations and sub-participations of this Note to or by any person or entity in any amounts and waive notice of such sales, repurchases, participations and sub-participations of this Note;

(g)Maker and each co-signer, endorser, surety or guarantor consent to Payee’s right of set-off as well as any participant’s or sub-participant’s right of set-off.

Usury Limitation.  The parties agree and intend to comply with the applicable usury law, and notwithstanding anything contained herein or in any of the Loan Documents, or other document related to the loan evidenced by this Note, the effective rate of interest to be paid on this Note (including all costs, charges and fees which are characterized as interest under applicable law) shall not exceed the maximum contract rate of interest permitted under applicable law, as it exists from time to time. Payee agrees not to knowingly collect or charge interest (whether denominated as fees, interest or other charges) which will render the interest rate hereunder usurious, and if any payment of interest or fees by Maker to Payee would render this Note usurious, Maker agrees to give Payee written notice of such fact with or in advance of such payment. If Payee should receive any payment which constitutes interest under applicable law in excess of the maximum lawful contract rate permitted under applicable law (whether denominated as interest, fees or other charges), the amount of interest received in excess of the maximum lawful rate shall automatically be applied to reduce the principal balance, regardless of how such sum is characterized or recorded by the parties.

Joint and Several.  The obligations of this Note shall be joint and several.

No Obligation to Extend.  On Maturity Date, or, if Maker shall have satisfied the conditions for extension of the term of this Note to the Extended Maturity Date, on Extended Maturity Date, Maker must repay the entire principal balance of this Note and unpaid interest then due. The Payee is under no obligation to refinance the Note at that time. Maker will therefore be required to make

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payment out of other assets Maker may own, or Maker will have to find a lender willing to lend the money at prevailing market rates, which may be considerably higher than the interest rate on this Note.

Disclaimer of Relationship.  The Maker and all co-signers, endorsers, sureties and guarantors, if any, to this obligation acknowledge that:

(a)The relationship between the Payee, Maker and any co-signer, endorser, surety or guarantor is one of creditor and debtor and not one of partner or joint venturer;

(b)There exists no confidential or fiduciary relationship between Payee and Maker and any co-signer, endorser, surety or guarantor imposing a duty of disclosure upon the Payee; and

(c)The Maker and any co-signer, endorser, surety or guarantor have not relied on any representation of the Payee regarding the merits of the use of proceeds of the loan. Maker and any co-signer, endorser, surety or guarantor waive any and all claims and causes of action which exist now or may exist in the future arising out of any breach or alleged breach of a duty on the part of the Payee to disclose any facts material to this loan transaction and the use of the proceeds.

Choice of Law and Venue.  This Note shall be governed by the Laws of the State of Florida, and the United States of America, whichever the context may require or permit. The Maker and all guarantors, if any, to this obligation expressly agree that proper venue for any action which may be brought under this Note in addition to any other venue permitted by law shall be any county in which property encumbered by the Mortgage is located as well as Orange County, Florida. Should Payee institute any action under this Note, the Maker and all guarantors, if any, hereby submit themselves to the jurisdiction of any court sitting in Florida.

Severability.  If any provision of this Note shall be held unenforceable or void, then such provision shall be deemed severable from the remaining provisions and shall in no way affect the enforceability of the remaining provisions nor the validity of this Note.

Maker and Payee Defined.  The term “Maker” includes each and every person or entity signing this Note and any co-signers, guarantors, their successors and assigns; provided, however, that no party liable hereunder may assign or transfer his, her or its obligation hereunder without the written consent of the Payee. The term “Payee” shall include the Payee and any transferee and assignee of Payee or other holder of this Note.

Captions and Pronouns.  The captions and headings of the various sections of this Note are for convenience only, and are not to be construed as confining or limiting in any way the scope or intent of the provisions hereof. Whenever the context requires or permits, the singular shall include the plural, the plural shall include the singular, and the masculine, feminine and neuter shall be freely interchangeable.

Receipt of Copy.  By signing this Note, Maker acknowledges that it was read by Maker prior to execution and a copy was received by Maker.

Time of the Essence.  Time is of the essence with respect to each provision in this Note where a time or date for performance is stated. All time periods or dates for performance stated in this Note are material provisions of this Note.

Documentary Stamps.  Florida Documentary stamp tax as required by Chapter 201 of the Florida Statutes in the amount required by Florida law have been paid and are affixed to the original Mortgage and Security Agreement, of even date herewith, which secures this Note.

Waiver of Trial by Jury.  The Maker hereby, and the Payee by its acceptance of this Note, knowingly, voluntarily and intentionally waive the right either may have to a trial by

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jury in respect to any litigation arising out of, under, or in connection with this Note and all Loan Documents and other agreements executed or contemplated to be executed in connection herewith, or arising out of, under, or in connection with any course of conduct, course of dealing, statements (whether verbal or written) or action of either party, whether in connection with the making of the loan, collection of the loan, or otherwise. This provision is a material inducement for the Payee making the loan evidenced by this Note.

IN WITNESS WHEREOF, Maker has executed and delivered this instrument this day and year first above written.

WICKHAM & 95 CORP., a Florida corporation
By:	/s/ Ernie Euler
ERNIE EULER, President
LOT 90, L.L.C., a Florida limited liability company
By:	/s/ Ernest C. Euler
ERNEST C. EULER, Manager
LOT 91, L.L.C., a Florida limited liability company
By:	/s/ Ernest C. Euler
ERNEST C. EULER, Manager

STATE OF FLORIDA

COUNTY OF ORANGE

The foregoing instrument was acknowledged before me this 30th day of October, 2002, by ERNEST C. EULER a/k/a ERNIE EULER, as President of WICKHAM & 95 CORP., a Florida corporation on behalf of the corporation, as Manager of LOT 90, L.L.C., a Florida limited liability company, on behalf of the company and as Manager of LOT 91, L.L.C., a Florida limited liability company, on behalf of the company. He is personally known to me or has produced Florida's driver’s license as identification.

		/s/ Gregory L. Holzhauer
FLORIDA DOCUMENTARY STAMPS REQUIRED TO BE PAID ON		Notary Public
THE INDEBTEDNESS EVIDENCED HEREBY HAVE BEEN PAID		Print Name:
AND AFFIXED TO THE ORIGINAL MORTGAGE		My Commission Expires:
DATED	10-30-02.
		[SEAL]	GREGORY L HOLZHAUER
			MY COMMISSION # DC 839816
			EXPIRES: August [ILLEGIBLE]
			[ILLEGIBLE]

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Borrower Name:	Wickham & 95 Corp.
	Lot 90, L.L.C.
	Lot 91, L.L.C.
Project Name:	Shoppes at Lake Andrew
	Viera, Florida

ALLONGE

Attached to that certain Promissory Note dated October 30, 2002 from WICKHAM & 95 CORP., a Florida corporation, LOT 90, L.L.C., a Florida limited liability company and LOT 91, L.L.C., a Florida limited liability company to AMSOUTH BANK, a bank organized under the laws of Alabama, in the original stated principal amount of FIFTEEN MILLION ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($15,150,000.00).

Pay to the order of NATIONWIDE LIFE INSURANCE COMPANY, an Ohio corporation, without recourse.

Date: February 24, 2004

AMSOUTH BANK, a bank organized
under the laws of Alabama
By:		/s/ [ILLEGIBLE]
Name:			[ILLEGIBLE]
Its:	Vice President
(CORPORATE SEAL)

EX-10.490

Exhibit 10.490

Borrower Name:	Wickham & 95 Corp.
	Lot 90, L.L.C.
	Lot 91, L.L.C.
Project Name:	Shoppes at Lake Andrew
	Viera, Florida

THIS NOTE IS A FUTURE ADVANCE AND RENEWAL NOTE, AMENDING, RESTATING AND RENEWING THAT CERTAIN PROMISSORY NOTE BY BORROWER TO AND IN FAVOR OF AMSOUTH BANK, A STATE BANKING CORPORATION, DATED OCTOBER 30, 2002 IN THE ORIGINAL PRINCIPAL AMOUNT OF FIFTEEN MILLION ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($15,150,000.00) (THE “ORIGINAL NOTE”).

THE OUTSTANDING PRINCIPAL BALANCE OF THE ORIGINAL NOTE IN THE AMOUNT OF FOURTEEN MILLION SEVEN HUNDRED EIGHTY-EIGHT THOUSAND SIX HUNDRED SIXTEEN AND 96/100 DOLLARS ($14,788,616.96) IS EXEMPT FROM FLORIDA DOCUMENTARY STAMP TAXES PURSUANT TO FLORIDA STATUTES SECTION 201.09 AND FLORIDA ADMINISTRATIVE CODE RULE 12B-4.054 AND EXEMPT FROM FLORIDA INTANGIBLE TAXES PURSUANT TO FLORIDA STATUTES SECTION 199.143. THE ORIGINAL OF THE AFORESAID NOTE IS ATTACHED HERETO. FLORIDA DOCUMENTARY STAMP TAXES AND FLORIDA INTANGIBLE TAXES ARE BEING PAID IN CONNECTION WITH THE AMOUNT OF ONE MILLION SIXTY ONE THOUSAND THREE HUNDRED EIGHTY-THREE AND 04/100 DOLLARS ($1,061,383.04) BEING ADVANCED IN CONNECTION HEREWITH.  DOCUMENTARY STAMPS IN THE AMOUNT OF THREE THOUSAND SEVEN HUNDRED FOURTEEN AND 90/100 DOLLARS ($3,714.90) HAVE BEEN AFFIXED TO THE ORIGINAL NOTICE OF FUTURE ADVANCE, MORTGAGE MODIFICATION AND AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT OF EVEN DATE HEREWITH WHICH SECURES THIS NOTE.  INTANGIBLE TAXES IN THE AMOUNT OF TWO THOUSAND ONE HUNDRED TWENTY-TWO AND 77/100 DOLLARS ($2,122.77) ARE BEING PAID IN CONNECTION HEREWITH.

FUTURE ADVANCE AND RENEWAL NOTE

$15,850,000.00	Orlando, Florida
	February 26th, 2004

FOR VALUE RECEIVED, THE UNDERSIGNED, WICKHAM &95 CORP., a Florida corporation whose Federal Tax Identification Number is 65-0984228, LOT 90, L.L.C., a Florida corporation whose Federal Tax Identification Number is

68-0522290, and LOT 91, L.L.C., a Florida corporation whose Federal Tax Identification Number is 68-0522288 (collectively, the “Borrower”) promises to pay to the order of NATIONWIDE LIFE INSURANCE COMPANY, an Ohio corporation, its successors and assigns (“Lender”), the principal sum of FIFTEEN MILLION EIGHT HUNDRED FIFTY THOUSAND AND NO/100

DOLLARS ($15,850,000.00), together with interest on the principal balance of this Future Advance and Renewal Note (the “Note”), from time to time remaining unpaid, from the date of disbursement by Lender at the applicable interest rate hereinafter set forth together with all other sums due hereunder or under the terms of the Mortgage (as hereinafter defined) in lawful money of the United States of America which shall be legal tender in payment of all debts at the time of such payment the (“Loan”).  Both principal and interest and all other sums due hereunder shall be payable at the office of Lender at One Nationwide Plaza, Columbus, Ohio

43215-2220, Attention: Real Estate Investment Department, 34T, or at such other place either within or without the State of Ohio as Lender may from time to time designate. Said principal and interest shall be paid over a term, at the times, and in the manner set forth below, to wit:

Payment Provision:

(A)          Interest accrued on the unpaid principal balance of this Note from the date of disbursement hereof through February 29, 2004 at the rate of Six and Fifty-Four One Hundredths percent (6.54%) per annum, shall be due and payable on the disbursement date of the Loan;

(B)           Thereafter, monthly installments of principal and interest on the unpaid principal balance of this Note at the rate of Six and Fifty-Four One Hundredths percent (6.54%) per annum, shall be due and payable in one hundred nineteen (119) consecutive monthly installments commencing on April 1, 2004 and continuing on the first day of each calendar month thereafter, with each such installment to be in the sum of One Hundred Seven Thousand Four Hundred Sixteen and 84/100 Dollars ($107,416.84), without deduction or set-off.

Maturity.

The unpaid principal balance of this Note and all accrued unpaid interest thereon, (if not sooner paid), shall be due and payable in full on March 1, 2014 (the “Maturity Date”).

Application of Payments.

All payments shall be applied first to any late payment or other such charges as provided in this Note or in the Mortgage, then to accrued unpaid interest on this Note, and the balance, if any, shall be applied to the reduction of the outstanding principal balance of this Note (subject to the terms hereof). Interest due hereunder shall be calculated on the basis of a three hundred sixty (360)-day year (composed of twelve (12) thirty (30)-day months) except the payment due under payment provision (A) above which shall be calculated on the actual number of days; provided, however, in no event shall the rate of interest payable under the terms of this Note exceed the maximum rate of interest permitted under applicable law.

Late Payment Charge.

Prior to the acceleration or maturity of this Note, Lender may collect a late payment charge in an amount equal to five percent (5%) of any full monthly installment not received by the due date. Such late payment charge shall constitute liquidated damages for the purpose of covering the extra expenses involved in handling delinquent installments and Lender may collect such late payment charges even though it has not given any notice to Borrower of such late payment or a cure period, if any, has not passed; provided that such late payment charge shall

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not, together with other interest to be paid on the indebtedness evidenced by this Note or indebtedness arising under any instrument securing the payment hereof, exceed the maximum interest permitted under applicable law. Borrower acknowledges that the late payment charge is a fair and reasonable estimate, considering all of the circumstances existing on the date of execution of this Note, of the cost the Lender will incur by reason of such late payment.

Prepayment.

(A)          Except as hereinafter provided, Borrower shall not have the right to prepay all or any part of the Loan at any time. Borrower shall have the right to prepay, in full but not in part, the Loan evidenced by this Note, provided that, as conditions precedent, Borrower: (i) gives Lender not less than thirty (30) days’ prior Written Notice (as defined in the Mortgage) of Borrower’s intention to so prepay this Note; and (ii) pays to Lender the Prepayment Premium (as hereinafter defined), if any, then due and payable to Lender as hereinafter provided.  As used herein, the term “Prepayment Premium” shall mean a sum equal to the greater of either: (i) one percent (1%) of the outstanding principal balance of this Note at the time of prepayment; or (ii) an amount equal to the sum of (a) the present value of the scheduled monthly payments due under this Note from the date of prepayment to the Maturity Date, and (b) the present value of the amount of principal and interest due under this Note on the Maturity Date (assuming all scheduled monthly payments due prior to the Maturity Date were made when due), minus (c) the outstanding principal balance of this Note as of the date of prepayment. The present values described in (a) and (b) shall be computed on a monthly basis as of the date of prepayment discounted at the yield-to-maturity of the U.S. Treasury Note or Bond closest in maturity to the Maturity Date of this Note as reported in The Wall Street Journal (or, if The Wall Street Journal is no longer published, as reported in such other daily financial publication of national circulation which shall be designated by Lender) on the fifth (5) business day preceding the date of prepayment.  Borrower shall be obligated to prepay this Note on the date set forth in the notice to Lender required hereinabove, after such notice has been delivered to Lender. Notwithstanding the foregoing or any other provision herein to the contrary, if Lender elects to apply insurance proceeds, condemnation awards, or any escrowed amounts, if applicable, to the reduction of the outstanding principal balance of this Note in the manner provided in the Mortgage, no Prepayment Premium shall be due or payable as a result of such application, and the monthly installments due and payable hereunder shall be reduced accordingly.

(B)           In the event the Maturity Date of the Loan evidenced by this Note is accelerated by Lender at any time due to a default by Borrower under this Note or any of the other Loan Documents (as hereinafter defined), then a tender of payment in an amount necessary to satisfy the entire outstanding principal balance of this Note together with all accrued unpaid interest hereon made by Borrower, or by anyone on behalf of Borrower, at any time prior to, at, or as a result of, a foreclosure sale or sale pursuant to power of sale, shall constitute a voluntary prepayment hereunder prior to the contracted Maturity Date of this Note thus requiring the payment to Lender of a Prepayment Premium equal to the applicable Prepayment Premium as set forth in paragraph (A) above; provided, however, that in the event such Prepayment Premium is construed to be interest under the laws of the State of Florida in any circumstance, such payment shall not be required to the extent that the amount thereof, together with other interest payable hereunder, exceeds the maximum rate of interest that may be lawfully charged under applicable law.

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(C)           Notwithstanding anything contained herein to the contrary, during the ninety (90)-day period immediately preceding the Maturity Date of this Note, the entire outstanding principal balance and all accrued unpaid interest on this Note may be prepaid in full, but not in part, at par, without incurring a Prepayment Premium.

Additional Conditions.

This Note is secured by, among other things, a Notice of Future Advance, Mortgage Modification and Amended and Restated Mortgage and Security Agreement (the “Mortgage”) and by an Amended and Restated Assignment of Leases, Rents and Profits (the “Assignment”) of even date herewith, encumbering certain real property described therein and located in Brevard County, State of Florida and certain other property, all as more particularly described in the Mortgage (collectively, the “Property”).  The Mortgage and the Assignment contain terms and provisions which provide grounds for acceleration of the Loan evidenced by this Note, together with additional remedies in the event of default hereunder or thereunder. Failure on the part of Lender to exercise any right granted herein or in the Mortgage or the Assignment or any other Loan Document shall not constitute a waiver of such right, or preclude Lender’s subsequent exercise and enforcement thereof. This Note, the Mortgage, the Assignment and all other documents and instruments executed as further evidence of, as additional security for, or executed in connection with, the Loan evidenced by this Note are hereinafter collectively referred to as the “Loan Documents”.

Except as otherwise provided herein, all parties to this Note, including endorsers, sureties and guarantors, if any, hereby jointly and severally waive presentment for payment, demand, protest, notice of protest, notice of demand, notice of nonpayment, notice of dishonor, notice of intent to accelerate the maturity of this Note, notice of acceleration of the maturity of this Note, and any and all other notices and demands whatsoever, and agree to remain bound hereby until the principal, interest and all other obligations arising under this Note are paid in full, notwithstanding any extensions of time for payment which may be granted by Lender, even though the period of extension be indefinite, and notwithstanding any inaction by, or failure to assert any legal rights available to Lender pursuant to the terms and conditions of this Note.

If the obligations evidenced by this Note, or any part thereof, are placed in the hands of an attorney or other person for collection, whether by suit or otherwise, at any time, or from time to time, Borrower shall be liable to Lender, in each instance, for all costs and expenses incurred in connection therewith, including, without limitation, Reasonable Attorneys’ Fees (as hereinafter defined).

Default.

If Borrower defaults under this Note or under any of the other Loan Documents, then in any or all of such events, at the option of Lender, the entire outstanding principal balance of this Note, together with all accrued unpaid interest thereon and all other obligations arising under this Note or any of the other Loan Documents, may be accelerated by Lender and may become and be immediately due and payable then or thereafter as Lender may elect, regardless of the Maturity Date hereof. All such amounts shall bear interest after maturity, by acceleration or otherwise, at the lesser of either: (i)the highest rate of interest then allowed by the laws of the

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State of Florida or, if controlling, the laws of the United States; or (ii) the then applicable interest rate of this Note plus five hundred (500) basis points per annum.

During the existence of any such default, which remains uncured beyond any applicable grace or cure period, Lender may apply any sums received, including but not limited to insurance proceeds or condemnation awards, to any amount then due and owing hereunder or under the terms of any of the other Loan Documents as Lender may determine.  Neither the right nor the exercise of the right herein granted unto Lender to apply such proceeds as aforesaid shall serve to cure the default or preclude Lender from exercising its option to cause the entire Loan evidenced by this Note to become immediately due and payable by reason of Borrower’s default under the terms of this Note or any of the other Loan Documents.

Notwithstanding any provisions herein to the contrary, Lender’s right, power and privilege to accelerate the maturity of the indebtedness evidenced hereby shall be conditioned upon, with respect to any Non-Monetary Default (as hereinafter defined), Lender giving Borrower Written Notice of such Non-Monetary Default and a thirty (30)-day period, after the date of such notice, within which to cure such Non-Monetary Default, unless such Non-Monetary Default cannot reasonably be cured within said thirty (30)-day time period, in which event Borrower shall have an extended period of time to complete such cure, provided that action to cure such Non-Monetary Default has commenced within said thirty (30)-day period and Borrower is, in Lender’s sole judgment, not diminishing or impairing the value of the Property, and is diligently pursuing a cure to completion, but in no event longer than ninety (90) days.  Any notice required hereunder shall be given as provided in the Mortgage. Lender shall have no obligation to give Borrower notice of, or any period to cure, any Monetary Default or any Incurable Default (as hereinafter defined) prior to exercising Lender’s right, power and privilege to accelerate the maturity of the Loan evidenced hereby, to declare the same to be immediately due and payable, and to exercise all other rights and remedies herein granted or otherwise available to Lender at law or in equity.  As used herein, the term “Monetary Default” shall mean any default which can be cured by the payment of money, including but not limited to, the payment of principal and/or interest due under this Note and the payment of taxes, assessments and insurance premiums when due as provided in the Mortgage.  As used herein, the term “Non-Monetary Default” shall mean any default which is not a Monetary Default or an Incurable Default.  As used herein, the term “Incurable Default” shall mean either: (i) any voluntary or involuntary sale, assignment, mortgaging or transfer of the Property or ownership interests in Borrower in violation of the covenants of the Mortgage; or (ii) if Borrower, or any person or entity comprising Borrower, should make an assignment for the benefit of creditors, become insolvent, or file (or have filed against it) a petition in bankruptcy (including but not limited to, a petition seeking a rearrangement or reorganization) which is not dismissed within thirty (30) days after the filing of same.

Notwithstanding any provision of this Note to the contrary, during any period of default and regardless of any cure period applicable to such default, in each instance under this Note, the Mortgage, or any of the other Loan Documents in which either: (i) Borrower is permitted to take a material action without Lender’s consent; or (ii) Lender’s consent is to be exercised reasonably, Lender’s consent shall be required and shall be granted or withheld in Lender’s sole and absolute discretion.

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Savings Clause; Severability.

It is the intent of Borrower and Lender in the execution of this Note and all other instruments now or hereafter securing this Note to contract in strict compliance with applicable usury law. In furtherance thereof, Lender and Borrower stipulate and agree that none of the terms and provisions contained in this Note, or in any other instrument executed in connection herewith, shall ever be construed to create a contract to pay interest at a rate in excess of the maximum interest rate permitted to be charged by applicable law.  Neither Borrower nor any guarantors, endorsers or other parties now or hereafter becoming liable for payment of this Note shall ever be required to pay interest on this Note at a rate in excess of the maximum interest that may be lawfully charged under applicable law, and the provisions of this section shall control over all other provisions of this Note and any other instruments now or hereafter executed in connection herewith which may be in apparent conflict herewith.  Lender expressly disavows any intention to charge or collect excessive unearned interest or finance charges in the event the maturity of this Note is accelerated. If the maturity of this Note shall be accelerated for any reason or if the principal of this Note is paid prior to the end of the term of this Note, and as a result thereof the interest received for the actual period of existence of the Loan evidenced by this Note exceeds the maximum permitted by applicable law, Lender shall refund to Borrower the amount of such excess and thereby shall render inapplicable any and all penalties of any kind provided by applicable law as a result of such excess interest.  In the event that Lender shall collect monies which are deemed to constitute interest which would increase the effective interest rate on this Note to a rate in excess of that permitted to be charged by applicable law, all such sums deemed to constitute interest in excess of the lawful rate shall, upon such determination be immediately returned to Borrower, in which event any and all penalties of any kind under applicable law as a result of such excess interest shall be inapplicable. By execution of this Note, Borrower acknowledges that it believes the Loan evidenced by this Note to be non-usurious and agreesthat if, at any time, Borrower should have reason to believe that such Loan is in fact usurious, it will give Lender notice of such condition and Borrower agrees that Lender shall have ninety (90) days in which to make appropriate refund or other adjustment in order to correct such condition if in fact such exists. The term “applicable law” or “applicable usury law” as used in this Note shall mean the laws of the State of Florida or the laws of the United States, whichever laws allow the greater rate of interest and do not violate the laws of the State of Florida, as such laws now exist or may be changed or amended or come into effect in the future. If any clauses or provisions herein contained operate or would prospectively operate to invalidate this Note, then such clauses or provisions only shall be held for naught, as though not herein contained and the remainder of this Note shall remain operative and in full force and effect.

Exculpation.

The liability of Borrower with respect to the payment of principal and interest shall be “non-recourse”. Except as hereinafter provided, Lender’s source of satisfaction of Borrower’s obligations under this Note and the other Loan Documents shall be limited to the Property and Lender’s receipt of the rents, issues and profits from the Property and any other security or

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collateral now or hereafter held by Lender, and Lender shall not seek to procure payment out of any other assets of Borrower, or any person or entity comprising Borrower, or to seek judgment (except as hereinafter provided) for any sums which are or may be payable under this Note or any of the other Loan Documents, as well as any claim or judgment (except as hereafter provided) for any deficiency remaining after foreclosure of the Mortgage. Notwithstanding the foregoing, nothing herein contained shall be deemed to be a release or impairment of the Loan evidenced by this Note or the security therefor intended by the other Loan Documents, or be deemed to preclude Lender from exercising its rights to foreclose the Mortgage or to enforce any of its other rights or remedies under the Loan Documents, including but not limited to that certain Guaranty of even date herewith from Ernie Euler and Mike Renfro (the “Guarantors”) to Lender (the “Guaranty”).

Notwithstanding the foregoing, it is expressly understood and agreed that the aforesaid limitation on liability shall in no way affect or apply to the continued personal liability of Borrower for any loss or damage suffered by Lender due to:

(1)fraud, willful misconduct or material misrepresentation made by Borrower or Guarantors in or in connection with the Application for Mortgage Loan dated February 18, 2003, modified by Lender on May 27, 2003, further modified by Lender on January 27, 2003, and accepted by Borrower on                                 and any subsequent amendments thereto, this Note or any of the other Loan Documents;

(2)the failure of Borrower to pay taxes which accrue prior to Lender taking control of the Property or to pay assessments or any other governmental impositions, charges for labor incurred by Borrower, charges for materials incurred by Borrower or any other charges incurred by Borrower which may create liens on any portion of the Property;

(3)the misapplication or misappropriation of (i) proceeds of insurance covering any portion of the Property; (ii) proceeds of the sale, condemnation or transfer in lieu of condemnation of any portion of the Property; or (iii) rentals received by or on behalf of Borrower subsequent to the date on which Lender makes written demand therefor pursuant to any of the Loan Documents;

(4)causing or permitting waste or causing arson to occur in, on or about the Property, and failing to maintain the Property, except for ordinary wear and tear;

(5)Borrower’s failure to return to Lender all unearned advance rentals and security deposits that have been paid by tenants of the Property to the extent that such amounts have not been refunded to or forfeited by such tenants;

(6)the failure by Borrower to pay any and all tenant improvement allowances owed to tenants leasing space in the Property;

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(7)the failure by Borrower to pay to Lender any and all fees paid to Borrower by any tenant of the Property which fees permit the tenant to terminate its lease or otherwise abandon or vacate its leased premises;

(8)loss by fire or any other casualty to the extent not compensated by insurance proceeds collected by or remitted to Lender, as a result of Borrower’s failure to comply with the insurance provisions of the Mortgage;

(9)the failure to return to or reimburse Lender for all Fixtures and Personal Property (as defined in the Mortgage) owned by Borrower and taken from the Property by or on behalf of Borrower, out of the ordinary course of business, and not replaced by items with values equal to or greater than the original values of the Fixtures and Personal Property so removed;

(10)all court costs and Reasonable Attorneys’ Fees (as hereinafter defined) actually incurred by Lender for which Borrower is liable pursuant to the terms of this Note or any of the other Loan Documents;

(11)(i) the removal of any chemical, material or substance in excess of legal limits or which is required by any governmental entity, to which exposure is prohibited, limited or regulated by any federal, state, county or local authority, and which may or could pose a hazard to the health and safety of the occupants of the Property (which substances are also further defined in the Mortgage as “Hazardous Materials”), regardless of the source of origination (including sources off the Property which migrate onto the Property or its groundwater); (ii) the restoration of the Property to comply with all governmental regulations pertaining to Hazardous Materials found in, on or under the Property, regardless of the source of origination (including sources off the Property which migrate onto the Property or its groundwater); and (iii) any indemnity or other agreement to hold Lender harmless from and against any and all losses, liabilities, damages, injuries, costs and expenses of any and every kind arising as a result of the existence and/or removal of Hazardous Materials in violation of Hazardous Waste Laws and from the violation of Hazardous Waste Laws (as defined in the Mortgage).  Borrower shall not be liable hereunder if the Property becomes contaminated (a) subsequent to Lender’s acquisition of the Property by foreclosure or acceptance of a deed in lieu thereof, or (b) subsequent to any transfer of ownership of the Property which was approved or authorized in writing by Lender pursuant to the Mortgage, provided that such transferee assumes in writing all obligations of Borrower with respect to compliance with Hazardous Waste Laws under the Mortgage and the Indemnity Agreement by Borrower and executed of even date herewith. Liability under this subsection (11) shall extend beyond repayment of the Loan and compliance with the terms of the Note and compliance with the terms of the Mortgage unless Borrower at such time provides Lender with an environmental assessment report acceptable to Lender, in Lender’s sole discretion, showing the Property to be free of Hazardous Materials and not in violation of Hazardous Waste Laws. The burden of proof under this subparagraph with regard to establishing the date upon which

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such Hazardous Materials were placed or appeared in, on or under the Property shall be upon Borrower;

(12)(i) any and all costs incurred in order to cause the Property to comply with any applicable Accessibility Laws (as defined in the Mortgage) and (ii) any indemnity or other agreements to hold Lender harmless from and against any and all losses, liabilities, damages, injuries, costs or expenses of any kind arising as a result of non-compliance with any applicable Accessibility Laws.  Borrower shall not be liable hereunder for compliance with any applicable Accessibility Laws that first become effective, or for any violation of any applicable Accessibility Laws resulting from alterations or improvements to the Property that are performed subsequent to Lender’s acquisition of the Property by foreclosure or acceptance of a deed in lieu thereof or subsequent to any transfer of ownership of the Property which was approved or authorized in writing by Lender pursuant to the Mortgage, provided that such transferee assumes in writing all obligations of Borrower pertaining to any applicable Accessibility Laws pursuant to the terms of the Loan Documents.  The burden of proof under this subparagraph with regard to establishing the date upon which such non-compliance with any Accessibility Laws occurred at the Property shall be upon Borrower; and

(13)failure to remit to Lender any amounts under any letter of credit (or any renewals and/or replacements thereof) supplied by Borrower to Lender in connection with the Loan, this Note or any of the other Loan Documents in the event that the bank issuing such letter of credit becomes insolvent, files or has filed against it any bankruptcy or similar proceeding or is closed (either temporarily or permanently), is placed in receivership, conservatorship or liquidation by the Federal Deposit Insurance Corporation, Resolution Trust Corporation or any other governmental or quasi-governmental entity, or otherwise fails or refuses to honor such letter of credit or otherwise fails to maintain certain criteria required by Lender; and

(14)failure to timely pay any amounts payable for all state documentary stamp taxes and intangible personal property taxes, if any, which may be levied or assessed against the Loan, this Note, the Mortgage or any of the other Loan Documents, together with all interest penalties or charges in connection therewith.

The obligations of Borrower in subsections (1) through (14) above, except as specifically provided in subsections (11) and (12), shall survive the repayment of the Loan evidenced by this Note, and satisfaction of the Mortgage unless such repayment is in the full amount of all sums due and owing under the Loan and such repayment occurs prior to a default under the Loan resulting in the foreclosure of the Mortgage or transfer of the Property in lieu of foreclosure.

Full Recourse.

Notwithstanding any provisions in this Note to the contrary, including without limitation the provisions set forth in the section captioned “Exculpation” hereinabove, Borrower shall be personally liable, jointly and severally, for the entire indebtedness evidenced by this Note (including all principal, interest and other charges) in the event (i) Borrower violates the

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covenant governing the placing of subordinate financing on the Property as set forth in the Mortgage; (ii) Borrower violates the covenant restricting transfers of interests in the Property or transfers of ownership interests in Borrower as set forth in the Mortgage; or (iii) there is filed against Borrower or any guarantor or indemnitor of the Loan, a petition in bankruptcy or for the appointment of a receiver, or there commences under any bankruptcy or insolvency law, proceedings for Borrower’s relief, or for the compromise, extension, arrangement or adjustment of Borrower’s obligations which is not dismissed within thirty (30) days after the filing of same.

Waiver of Jury Trial.

BORROWER, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES HEREBY THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY TORT ACTION, AGAINST LENDER, ITS SUCCESSORS AND ASSIGNS, BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO OR IN CONNECTION WITH ANY OF THE LOAN DOCUMENTS, THE LOAN OR ANY COURSE OF CONDUCT, ACT, OMISSION, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, LENDER’S DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH LENDER), IN CONNECTION WITH THE LOAN OR THE LOAN DOCUMENTS INCLUDING, WITHOUT LIMITATION, IN ANY COUNTERCLAIM WHICH ANY PARTY MAY BE PERMITTED TO ASSERT THEREUNDER, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL LENDER, ITS SUCCESSORS OR ASSIGNS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS PROFITS OR OPPORTUNITY) AND BY ITS EXECUTION HEREOF, BORROWER WAIVES ANY RIGHT TO CLAIM OR SEEK ANY SUCH DAMAGES.

Captions.

The captions set forth at the beginning of the various paragraphs of this Note are for convenience only, and shall not be used to interpret or construe the provisions of this Note.

Attorneys’ Fees.

As used herein, the phrase “Reasonable Attorneys’ Fees” shall mean fees charged by attorneys selected by Lender based upon such attorneys’ then prevailing hourly rates as opposed to any statutory presumption specified by any statute then in effect in the State of Florida.

Applicable Laws.

This Note and the rights and obligations of the parties hereunder shall be governed by, and construed in accordance with, the internal laws of the State of Florida, without regard to principles of conflicts of laws.  The parties hereto irrevocably; (i) agree that any suit, action or other legal proceeding arising out of or relating to this Note may be brought in a court of record

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in the State of Florida or in the courts of the United States of America located in such state; (ii) consent to the non-exclusive jurisdiction of each such court in any suit, action or proceeding; and (iii) waive any objection which it may have to the laying of venue of any such suit, action or proceeding in any of such courts and any claim that any such suit, action or proceeding has been brought in an inconvenient forum.

Modifications.

This Note may not be amended or modified except by an agreement in writing signed by the party against whom enforcement is sought.

Time of the Essence.

In connection with the Loan and this Note, time shall be of the essence.

Successors and Assigns.

The terms, conditions, obligations and liabilities of this Note shall be binding upon Borrower, its heirs, personal representatives, successors and assigns, and shall inure to the benefit of Lender, its successors and assigns. If Borrower is comprised of more than one (1) person or entity, then the liability of each such person and entity hereunder shall be joint and several.

Authorization.

By its signature below, Borrower represents and warrants that the Loan transaction contemplated by this Note and any of the other Loan Documents have been properly authorized by Borrower’s governing or managing body, and that the person signing on behalf of Borrower has been duly authorized to sign for, and hereto bind the Borrower.

Transfer.

Lender may, at any time, sell, transfer or assign this Note, the Mortgage, the Assignment and the other Loan Documents, and any or all servicing rights with respect thereto, or grant participations therein or issue mortgage pass-through certificates or other securities evidencing a beneficial interest in a rated or unrated public offering or private placement.  Lender may forward to each purchaser, transferee, assignee, servicer, participant, investor in such securities or any credit rating agency rating such securities (collectively, the “Investor”) and each prospective Investor, all documents and information which Lender now has or may hereafter acquire relating to the Loan and to Borrower, any guarantor and the Property, whether furnished by Borrower, any guarantor or otherwise, as Lender determines necessary or desirable. Borrower shall execute, acknowledge and deliver any and all instruments reasonably requested by Lender to satisfy such purchasers or participants that the unpaid indebtedness evidenced by this Note is outstanding upon the terms and provisions set out in this Note and the other Loan Documents. To the extent, if any, specified in such assignment or participation, such assignee(s) or participant(s) shall have the rights and benefits with respect to this Note and the other Loan Documents as such assignee(s) or participant(s) would have if they were the Lender hereunder.

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IN WITNESS WHEREOF, Borrower has executed this Note under seal as of the day and year first above written.

WICKHAM & 95 CORP., a Florida corporation
By:		/s/ Ernie Euler
Name:				Ernie Euler
Its:	President
(CORPORATE SEAL)
LOT 90, L.L.C., a Florida limited liability
company
By:		/s/ Robert M. Renfro
Name:			Robert M. Renfro
Its:		Manager
(CORPORATE SEAL)
LOT 91, L.L.C., a Florida limited liability
company
By:		/s/ Robert M. Renfro
Name:					Robert M. Renfro
Its:		Manager
(CORPORATE SEAL)

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Borrower’s Address:

c/o Matthew Development

7331 Office Park Place, Suite 200

Viera, Florida 32940

Wickman & 95 Corp.’s FEI#: 65-0984228

Lot 90, L.L.C.’s FEI#: 68-0522290

Lot 91, L.L.C.’s FEI#: 68-0522288

Documentary Stamps in the amount of Three Thousand Eight Hundred Seventy-Four and 15/100 Dollars ($3,874.15) have been affixed to the original Notice of Future Advance, Mortgage Modification and Amended and Restated Mortgage and Security Agreement of even date herewith which secures this Note. Intangible Taxes in the amount of Two Thousand Two Hundred Thirteen and 72/100 Dollars ($2,213.72) are being paid in connection with the execution of this Note.

STATE OF FLORIDA

COUNTY OF BREVARD

The foregoing instrument was acknowledged before me this 16^th day of February, 2004, by Ernie Euler, as President of WICKHAM & 95 CORP., a Florida corporation on behalf of the corporation.  He is personally known to me.

Notary Public
Name:	Charine Lewis
Commission No.:			DD174578
My Commission Expires:				12-29-06
(SEAL)
				Charine C Lewis My Commission DD174578 Expires December 29, 2006

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STATE OF FLORIDA

COUNTY OF BREVARD

The foregoing instrument was acknowledged before me this 16^th day of February, 2004, by Robert M. Renfro, as Manager of LOT 90, L.L.C., a Florida limited liability company on behalf of the company.  He is personally known to me.

Notary Public
Name:	Charine Lewis
Commission No.:			DD174578
My Commission Expires:					12-29-06
(SEAL)
				Charine C Lewis My Commission DD174578 Expires December 29, 2006

STATE OF FLORIDA

COUNTRY OF BREVARD

The foregoing instrument was acknowledged before me this 16^thday of February, 2004, by Robert M. Renfro as Manager of LOT 91, L.L.C., a Florida limited liability company on behalf of the company.  He is personally known to me.

Notary Public
Name:	Charine Lewis
Commission No.:			DD174578
My Commission Expires:					12-29-06
(SEAL)
				Charine C Lewis My Commission DD174578 Expires December 29, 2006

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EX-10.491

Exhibit 10.491

Prepared by and return to:

Darrell D. Garvey, Esquire

Lowndes, Drosdick, Doster, Kantor & Read, P.A.

450 South Orange Avenue, Suite 800

Orlando, Florida 32801

Borrower Name:	Wickham & 95 Corp.
	Lot 90, L.L.C.
	Lot 91, L.L.C.
Project Name:	Shoppes at Lake Andrew
	Viera, Florida

THIS NOTICE OF FUTURE ADVANCE, MORTGAGE MODIFICATION AND AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT AMENDS AND RESTATES THAT CERTAIN MORTGAGE AND SECURITY AGREEMENT EXECUTED BY WICKHAM & 95 CORP., A FLORIDA CORPORATION, LOT 90, L.L.C., A FLORIDA LIMITED LIABILITY COMPANY, AND LOT 91, L.L.C., A FLORIDA LIMITED LIABILITY COMPANY, TO AND IN FAVOR OF AMSOUTH BANK, A STATE BANKING CORPORATION (“AMSOUTH”) DATED OCTOBER 30, 2002 AND RECORDED ON NOVEMBER 4, 2002 IN OFFICIAL RECORDS BOOK 4728, PAGE 3484, OF THE PUBLIC RECORDS OF BREVARD COUNTY, FLORIDA, AS ASSIGNED AND ENDORSED TO LENDER BY THE ASSIGNMENT OF NOTE AND MORTGAGE AGREEMENTS REFERRED TO HEREIN, AND SECURES THE FUTURE ADVANCE AND RENEWAL NOTE REFERRED TO HEREIN IN THE ORIGINAL PRINCIPAL AMOUNT OF FIFTEEN MILLION EIGHT HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($15,850,000.00) (THE “RENEWAL NOTE”). THE RENEWAL NOTE AMENDS, RESTATES AND RENEWS THAT CERTAIN PROMISSORY NOTE IN THE STATED PRINCIPAL SUM OF FIFTEEN MILLION ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($15,150,000.00) DATED OCTOBER 30, 2002.

THE OUTSTANDING PRINCIPAL BALANCE OF THE ORIGINAL NOTE IN THE AMOUNT OF FOURTEEN MILLION SEVEN HUNDRED EIGHTY-EIGHT THOUSAND SIX HUNDRED SIXTEEN AND 96/100 DOLLARS ($14,788,616.96) IS EXEMPT FROM FLORIDA DOCUMENTARY STAMP TAXES PURSUANT TO FLORIDA STATUTES, SECTION 201.09 AND FLORIDA ADMINISTRATIVE CODE RULE 12B-4.054 AND IS EXEMPT FROM FLORIDA INTANGIBLE TAXES PURSUANT TO FLORIDA STATUTES SECTION 199.143. DOCUMENTARY STAMP TAXES AND FLORIDA INTANGIBLE TAXES ARE BEING PAID IN CONNECTION WITH THE AMOUNT OF ONE MILLION SIXTY ONE THOUSAND THREE HUNDRED EIGHTY-THREE AND 04/100 DOLLARS ($1,061,383.04) BEING ADVANCED IN CONNECTION HEREWITH. DOCUMENTARY STAMP TAXES IN THE AMOUNT OF THREE THOUSAND SEVEN HUNDRED FOURTEEN AND 90/100 DOLLARS ($3,714.90) HAVE BEEN AFFIXED HERETO. INTANGIBLE TAXES HAVE BEEN PAID IN THE AMOUNT OF TWO THOUSAND ONE HUNDRED TWENTY-TWO AND 77/100 DOLLARS ($2,122.77).

NOTICE OF FUTURE ADVANCE, MORTGAGE MODIFICATION AND AMENDED
AND RESTATED MORTGAGE AND SECURITY AGREEMENT

THIS NOTICE OF FUTURE ADVANCE, MORTGAGE MODIFICATION AND AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT is made, executed and delivered as of this 26^th day of February, 2004, by WICKHAM & 95 CORP., a Florida corporation, LOT 90, L.L.C., a Florida limited liability company, and LOT 91, L.L.C., a Florida limited liability company (hereinafter collectively referred to as “Borrower”), whose address is c/o Matthew Development, 7331 Office Park Place, Suite 200, Viera, Florida 32940, to and in favor of NATIONWIDE LIFE INSURANCE COMPANY, an Ohio corporation, its successors and assigns (hereinafter referred to as “Lender”), having its principal office at One Nationwide Plaza, Columbus, Ohio 43215-2220, Attention: Real Estate Investment Department, 34T, or at such other place either within or without the State of Ohio, as Lender may from time to time designate;

THAT WHEREAS, Lender is the owner and holder of that certain Mortgage and Security Agreement by Borrower to and in favor of AmSouth Bank, a state banking corporation (“AmSouth”) dated October 30, 2002 and recorded on November 4, 2002, in Official Records Book 4728, Page 3484, of the Public Records of Brevard County, Florida (hereinafter referred to as the “Original Mortgage”); and

WHEREAS, the Original Mortgage secures that certain Promissory Note executed by Borrower to and in favor of AmSouth dated October 30, 2002 in the original principal amount of FIFTEEN MILLION ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($15,150,000.00) (the “Original Note”); and

WHEREAS, the Original Mortgage and the Original Note were subsequently assigned and transferred to Lender pursuant to that certain Assignment of Note and Mortgage Agreements from AmSouth to Lender dated on or about the date hereof and recorded concurrently herewith; and

WHEREAS, the Original Note and the Original Mortgage are now held by Lender; and

WHEREAS the Original Note has a current principal balance in the amount of FOURTEEN MILLION SEVEN HUNDRED FORTY-THREE THOUSAND ONE HUNDRED FORTY AND 33/100 DOLLARS ($14,743,140.33); and

WHEREAS, Borrower executed a Future Advance and Renewal Note to and in favor of Lender renewing the Original Note and increasing the principal balance of the loan to FIFTEEN MILLION EIGHT HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($15,850,000.00) (the “Note”); and

WHEREAS, Borrower and Lender desire to modify and amend the Original Mortgage in order to reflect that the Original Mortgage secures the Note, and to modify and amend certain other terms of the Original Mortgage.

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NOW THEREFORE, for and in consideration of the premises and mutual covenants herein contained and for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) the receipt and sufficiency of which are hereby acknowledged, Borrower and Lender hereby agree as follows:

1.All of the foregoing recitations are true and correct and are hereby incorporated herein and made a part hereof.

2.Under no circumstances shall this instrument or any portion hereof constitute or be deemed to constitute a novation of the Original Mortgage. The Original Mortgage, as hereby amended and restated, shall secure the Note with the same priority of lien as if this instrument had been executed and recorded at the same time as the Original Mortgage was originally executed and recorded.

3.Borrower hereby covenants, stipulates, agrees and acknowledges that the obligation of Borrower to repay to Lender the Note is hereby declared to be secured by the Original Mortgage, as amended and restated hereby, in the same manner and to the same extent as if the Note was made and executed on the date that the Original Mortgage was originally executed and delivered and that nothing herein contained shall diminish or in any way or manner limit the right of Lender to make additional advances to the Borrower pursuant to the provisions of the Original Mortgage, as amended and restated hereby.

4.Borrower hereby acknowledges, represents and confirms unto Lender that (a) it does not now have and at no prior time had any defenses (including without limitation, the defense of usury), claims, counterclaims, cross-actions or equities, or rights of rescission, set off, abatement, or diminution, with respect to the Original Note, the Original Mortgage or the Note or the Mortgage (as hereinafter defined) or any other loan documents executed in connection therewith, and that it has at no time asserted any such defense, claim or right of rescission, set off, abatement or diminution with respect thereto, and if any such defense, claim, counterclaim, cross-action or equity, or rights of rescission, set off, abatement or diminution do exist the same are hereby waived and released; (b) the Original Mortgage, the Original Note and all other loan documents executed in connection therewith are valid, binding and free from any infirmity of any nature whatsoever, and are enforceable in accordance with their respective terms; (c) the Original Mortgage constitutes a valid first lien against the Property (defined herein); and (d) no payments of interest or any other charges have been made to Lender which would result in the computation or earning of interest in excess of the maximum legal rate of interest permitted under the laws applicable thereto.

5.The terms and conditions of the Mortgage are hereby amended and superseded in their entirety; and the Original Mortgage is hereby restated in its entirety (the Original Mortgage as so amended and restated being herein referred to as the “Mortgage”) as follows:

MORTGAGE AND SECURITY AGREEMENT

THIS MORTGAGE AND SECURITY AGREEMENT (hereinafter referred to as the “Mortgage”) is made, executed and delivered as of the day and year first written above by

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WICKHAM & 95 CORP., a Florida corporation, Lot 90, L.L.C., a Florida limited liability company, and Lot 91, L.L.C., a Florida limited liability company (hereinafter collectively referred to as “Borrower”), whose address is c/o Matthew Development, 7331 Office Park Place, Suite 200, Viera, Florida 32940, to and in favor of NATIONWIDE LIFE INSURANCE COMPANY, an Ohio corporation, its successors and assigns hereof (hereinafter referred to as “Lender”), having its principal office at One Nationwide Plaza, Columbus, Ohio 43215-2220, Attention: Real Estate Investment Department, 34T, or at such other place either within or without the State of Ohio, as Lender may from time to time designate;

W I T N E S S E T H:

WHEREAS, Borrower is justly indebted to Lender in the original principal sum of FIFTEEN MILLION EIGHT HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($15,850,000.00) with interest thereon, which Loan is evidenced and represented by that certain Future Advance and Renewal Note of even date herewith from Borrower to Lender in the amount of the Loan (hereinafter referred to as the “Note”), both principal and interest being payable as therein provided, with the first payment on the Note becoming due and payable on the date of disbursement, and all amounts remaining unpaid thereon being finally due and payable on March 1, 2014, and the term “Note” shall include all other notes given in substitution, modification, increase, renewal or extension of the original Note described herein, in whole or in part; and

WHEREAS, Lender, as a condition precedent to the extension of credit and the making of the Loan has required that Borrower provide Lender with security for the repayment of the Loan as well as for the performance, observance and discharge by Borrower of various terms, covenants, conditions and agreements made by Borrower to, with, in favor of and for the benefit of Lender with respect to the Loan and such security;

NOW THEREFORE, in consideration of and in order to secure the repayment of the Loan evidenced and represented by the Note, together with interest on the Loan, as well as the payment of all other sums of money secured hereby, as hereinafter provided; to secure the observance, performance and discharge by Borrower of all terms, covenants, conditions and agreements set forth in the Note, this Mortgage and in the other Loan Documents (hereafter defined); inorder to charge the properties, interests and rights hereinafter described with such payment, observance, performance and discharge; and in consideration of the sum of ONE AND NO/100 DOLLAR ($1.00) paid by Lender to Borrower, and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged by Borrower, Borrower does hereby grant, bargain, sell, convey, assign, transfer, pledge, deliver, hypothecate, warrant and confirm unto Lender forever, all of Borrower’s right, title and interest in and to the following described properties, including all rights, interests, replacements, substitutions and additions thereto, therein or therefore (collectively, the “Mortgaged Property”):

(a)All that certain piece, parcel or tract of land or real property of which Borrower is now seized and in actual or constructive possession, situated in the City of Viera, County of Brevard and State of Florida, and being more particularly described on Exhibit A attached hereto and by this reference made a part hereof (the “Real Property”);

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(b)All buildings, structures and other improvements of any kind, nature or description now or hereafter erected, constructed, placed or located upon the Real Property (the “Improvements”), including, without limitation, any and all additions to, substitutions for or replacements of such Improvements;

(c)All minerals, royalties, gas rights, water, water rights, water stock, flowers, shrubs, lawn plants, crops, trees, timber and other emblements now or hereafter located on, under or above all or any part of the Real Property;

(d)All and singular, the tenements, hereditaments, strips and gores, rights-of-way, easements, privileges, profits and other appurtenances now or hereafter belonging or in any way appertaining to the Real Property, including, without limitation, all right, title and interest of Borrower in any after-acquired right, title, interest, remainder or reversion in and to the beds of any ways, streets, avenues, roads, alleys, passages and public places, open or proposed, in front of, running through, adjoining or adjacent to the Real Property (the “Appurtenances”);

(e)Any and all leases, licenses, contracts, rents, license fees, royalties, issues, revenues, profits, proceeds, deposits, income and other benefits, including accounts receivable, termination fees, of, accruing to or derived from the Real Property, Improvements and Appurtenances, and any business or enterprise presently situated or hereafter operated thereon and therewith and all of Borrower’s right, title and interest under any and all lease guaranties, letters of credit, and any other credit support furnished to Borrower in connection with any of the foregoing (the “Rents”);

(f)Any and all awards, payments or settlements, including interest thereon, and the right to receive the same, as a result of: (a) the exercise of the right of eminent domain; (b) the alteration of the grade of any way, street, avenue, road, alley, passage or public place; (c) any other injury, damage, casualty or claim relating to the taking of, or decrease in the value of, the Real Property, Improvements or Appurtenances; or (d) proceeds of insurance awards, tothe extent of all amounts which may be secured by this Mortgage at the date of any such award or payment including but not limited to Reasonable Attorneys’ Fees (as hereinafter defined), costs and disbursements incurred by Lender in connection with the collection of such award or payment;

(g)All fixtures, materials, equipment, machinery, apparatus, appliances, and other property whatsoever now or hereafter attached to, installed in, or used in connection with the buildings and other improvements now erected or hereafter to be erected on said land, including, but not limited to, furnaces, steam boilers, hot-water boilers, oil burners, pipes, radiators, air conditioning and sprinkler systems, gas and electric fixtures, carpets, rugs, shades, awnings, screens, elevators, motors, dynamos, cabinets and all other furnishings, tools, equipment and machinery; appliances, building supplies, materials, and all fixtures, accessions and appurtenances thereto, and all renewals or replacements of or substitutions for any of the foregoing, all of which property and things are hereby declared to be permanent fixtures and accessions to the freehold and part of the realty conveyed herein as security for the indebtedness herein mentioned; and

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(h)All agreements or contracts relating to any interest rate cap agreements, swaps or other interest hedging agreements;

TO HAVE AND TO HOLD the foregoing Mortgaged Property and the rights hereby granted for its use and benefit unto Lender and its successors and assigns in fee simple forever.

In order to secure the repayment of the Loan evidenced and represented by the Note, together with interest on the Loan, as well as the payment of all other sums of money secured hereby, as hereinafter provided; and to secure the observance, performance and discharge by Borrower of all covenants, conditions and agreements set forth in the Note, this Mortgage and in the other Loan Documents; and in order to charge the properties, interests and rights hereinafter described with such payment, observance, performance and discharge; and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) paid by Lender and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, Borrower hereby grants Lender a security interest in all Fixtures, Goods (including, without limitation, Consumer Goods, Inventory, Equipment and Farm Products), Accounts, Chattel Paper (including, without limitation, Electronic Chattel Paper and Tangible Chattel Paper), Instruments, General Intangibles (including, without limitation, Payment Intangibles and Software), Letters of Credit, Letter-of-Credit Rights, Documents, As-Extracted Collateral, Money and Deposit Accounts of every kind, and all proceeds thereof, including, without limitation, any and all licenses, permits, franchises, trademarks, trade names, service marks or logos, plans, specifications, maps, construction contracts, instruments, insurance policies, fittings and fixtures of every kind, which is, are or shall hereafter be located upon, attached, affixed to or used or useful, either directly or indirectly, in connection with the complete and comfortable use, occupancy and operation of the Real Property, Improvements or Appurtenances as a retail center project (the “Existing Use”), or any other business, enterprise or operation as may hereafter be conducted upon or with said Real Property, Improvements or Appurtenances, including, without limitation, any and all licenses, permits or franchises, used or required in connection with such use, occupancy or operation as well as the proceeds thereof or therefrom regardless of form, all security deposits and advance rentals under lease agreements now or at any time hereafter covering or affecting any of the Property and held by or for the benefit of Borrower, all monetary deposits which Borrower has been required to give to any public or private utility with respect to utility services furnished to the Real Property or Improvements, all rents, issues and profits from leases of all or any part of the Real Property or Improvements, all proceeds (including premium refunds) of each policy of insurance relating to the Real Property or Improvements, all proceeds from the taking of the Real Property or Improvements or any part thereof or any interest therein or right or estate appurtenant thereto by eminent domain or by purchase in lieu thereof, all amounts deposited in escrow for the payment of ad valorem taxes, assessments, charges, ground rentals and/or premiums for policies of insurance with respect to the Real Property or Improvements, all proceeds and other amounts paid or owing to Borrower under or pursuant to any and all contracts and bonds relating to the construction, erection or renovation of the Real Property or Improvements, all oil, gas and other hydrocarbons and other minerals produced from or allocated to the Real Property and all products processed or obtained therefrom, the proceeds thereof, and all accounts and general intangibles under which such proceeds may arise, together with any sums of money that may now or at any time hereafter become due and payable to Borrower by virtue of any and all royalties, overriding royalties, bonuses, delay rentals and any other amount of any kind or character arising under any and all present and future oil, gas and mining leases

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covering the Real Property or any part thereof (collectively, the “Fixtures and Personal Property”) which term expressly excludes any toxic waste or substance deemed hazardous under federal, regional, state or local laws, codes, ordinances, statutes, rules, regulations, decisions or orders).  The Mortgaged Property and the Fixtures and Personal Property are herein together referred to as the “Property”.

Except as otherwise expressly provided in this Mortgage, all terms in this Mortgage relating to the Property and the grant of the foregoing security interest which are defined in the Uniform Commercial Code of the State (the “UCC”) shall have the meanings assigned to them in Article 9 (or, absent definition in Article 9, in any other Article) of the UCC, as those meanings may be amended, revised or replaced from time to time. Notwithstanding the foregoing, the parties intend that the terms used herein which are defined in the UCC have, at all times, the broadest and most inclusive meanings possible. Accordingly, if the UCC shall in the future be amended or held by a court to define any term used herein more broadly or inclusively than the UCC in effect on the date of this Mortgage, then such term, as used herein, shall be given such broadened meaning. If the UCC shall in the future be amended or held by a court to define any term used herein more narrowly, or less inclusively, than the UCC in effect on the date of this Mortgage, such amendment or holding shall be disregarded in defining terms used in this Mortgage.

Borrower hereby covenants and warrants with and to Lender that Borrower is indefeasibly seized of the Property and has good right, full power, and lawful authority to convey and encumber all of the same as aforesaid; that subject to the Permitted Exceptions (as hereinafter defined) Borrower hereby fully warrants the title to the Property and will defend the same and the validity and priority of the lien and encumbrance of this Mortgage against the lawful claims of all persons whomsoever; and Borrower further warrants that the Property is free and clear of all liens and encumbrances of any kind, nature or description, save and except only (with respect to said Real Property, Improvements and Appurtenances) for real property taxes for years subsequent to 2004 (which are not yet due and payable) and those exceptions accepted by Lender as set forth in the title insurance commitment or proforma policy issued to Lender precedent to the issuance of a Lender’s Policy of Title Insurance insuring the first lien priority of this Mortgage (the “Permitted Exceptions”).

If Borrower shall pay to Lender the Loan evidenced by the Note, and if Borrower shall duly, promptly and fully perform, discharge, execute, effect, complete and comply with and abide by each and every one of the terms, covenants, conditions and agreements of the Note, this Mortgage and all other Loan Documents, then this Mortgage and the estates and interests hereby granted and created shall cease, terminate and be null and void, and shall be discharged of record at the expense of Borrower.

Borrower, for the benefit of Lender and its successors and assigns, does hereby expressly covenant and agree as follows:

1.Payment of Principal and Interest.   Borrower shall pay the principal of the Loan evidenced by the Note, together with all interest thereon, in accordance with the terms, covenants and conditions of the Note, promptly at the times, at the place and in the manner that said principal and interest shall become due, and shall promptly and punctually pay all other sums

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required to be paid by Borrower pursuant to the terms, covenants and conditions of the Note, this Mortgage, the Assignment of Leases, Rents and Profits of even date herewith (the “Assignment”) and all other documents and instruments executed as further evidence of, as additional security for or executed in connection with the Loan evidenced by the Note (collectively, the “Loan Documents”).

2.Performance of Other Obligations.   Borrower shall perform, comply with and abide by each and every one of the terms, covenants, conditions and agreements contained and set forth in the Note, this Mortgage, and the other Loan Documents, shall comply with all Laws, (hereafter defined) and shall perform all of its obligations under any term, covenant, condition, restriction or agreement of record affecting the Property, and to insure that at all times the Property constitutes one or more legal lots capable of being conveyed without violation of any subdivision or platting laws, codes, ordinances, statutes, rules, regulations, or other laws relating to the division, separation or subdivision of real property.

3.Preservation and Maintenance of Property; Accessibility; Hazardous Waste.

(a)Borrower shall keep all Improvements now existing or hereafter erected on the Real Property in good order and repair, only to be used for the Existing Use, and not to do or permit any waste, impairment or deterioration thereof or thereon, nor to alter, remove or demolish any of the Improvements or any Fixtures and Personal Property attached or appertaining thereto, without the prior written consent of Lender, nor to initiate, join in or consent to any change in any private restrictive covenant, zoning ordinance or other public or private restrictions limiting or defining the uses which may be made of the Property or any part thereof, nor to do or permit any other act whereby the Property shall become less valuable, be used for purposes contrary to applicable Law or be used in any manner which will increase the premium for or result in a termination or cancellation of the insurance policies hereinafter required to be kept and maintained on the Property.  In furtherance of, and not by way of limitation upon, the foregoing covenant, Borrower shall effect such repairs as Lender may reasonably require, and from time to time make all needful and proper replacements so that the Improvements, Appurtenances, Fixtures and Personal Property will, at all times, be in good condition, fit and proper for the respective purposes for which they were originally erected or installed. In connection with the making of such repairs, Borrower shall use contractors who are properly licensed, who carry workers’ compensation insurance and appropriate liability insurance, who generally have a good reputation for completing their work in a neat, prompt and workmanlike manner, and use only new or re-manufactured goods of a quality as good or better than that originally used on the Property. As provided herein, Borrower shall insure that no liens are filed against the Property that relate in any way to the repair work provided for herein.

(b)Borrower at all times shall keep the Property and ground water of the Property free of Hazardous Materials (as hereinafter defined) and any liens arising in connection therewith.  Borrower shall not and shall not knowingly permit its tenants or any third party requiring the consent of Borrower to enter the Property, to use, generate, manufacture, treat, store, release, threaten release, transport on or over, emit or dispose of Hazardous Materials in, on, over, under or about the Property including the ground water of the Property in violation of any federal, regional, state or local law, code, ordinance, statute, rule, regulation, decision or order currently in existence or hereafter enacted or rendered (collectively, “Hazardous Waste

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Laws”). Borrower shall give Lender prompt Written Notice (as hereinafter defined) of any claim by any person, entity, or governmental agency that a significant release or disposal of Hazardous Materials has occurred in, on, over, under or about the Property, including the ground water of the Property, in excess of those permitted by the Hazardous Waste Laws, whether caused by the Borrower, any tenant or any third party. Borrower, through its professional engineers and at the Borrower’s sole cost, shall promptly and thoroughly investigate any suspected release of Hazardous Materials in, on, over, under or about the Property, including the ground water of the Property. Borrower shall forthwith remove, repair, remediate, clean up, and/or detoxify any Hazardous Materials found in, on, over, under or about the Property or in the ground water of the Property to the extent such actions are required by any applicable Hazardous Waste Laws, and whether or not Borrower was responsible for the existence of the Hazardous Materials in, on, over, under or about the Property or the ground water of the Property. Hazardous Materials shall include, but not be limited to, substances defined as “hazardous substances”, ‘‘hazardous materials”, or “toxic substances” in The Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by The Superfund Amendments and Reauthorization Act of 1986, The Hazardous Materials Transportation Act, The Resource Conservation and Recovery Act of 1976, as amended by The Used Oils Recycling Act of 1980, The Solid Waste Disposal Act Amendment of 1984, The Toxic Substances Control Act, The Clean Air Act, The Clean Water Act or under any Hazardous Waste Laws (as defined in the Indemnity Agreement of even date herewith executed by Borrower). In addition, Borrower shall not incorporate any underground storage tanks into the Real Property without the prior written consent of Lender, and shall insure that all tanks currently on the Real Property comply with current Hazardous Waste Laws and underground storage tank regulations and are properly registered.

Borrower hereby agrees to indemnify and defend Lender and hold Lender harmless from and against any and all losses, liabilities, damages, injuries, costs, expenses, fines, fees, suits, actions, debts, obligations, and claims of any and every kind whatsoever, including Reasonable Attorneys’ Fees (collectively, “Losses”) paid, incurred or suffered by, or asserted against, Lender for, with respect to, or as a direct or indirect result of, the presence in, on, over, under or about, or the escape, seepage, leakage, spillage, discharge, emission or release from, the Property of any Hazardous Materials (including, without limitation, any losses, liabilities, damages, injuries, costs, expenses or claims asserted or arising under any Hazardous Waste Laws), regardless of the source of origination and whether or not caused by, or within the control of, Borrower AND INCLUDING ANY CLAIMS OF LENDER’S NEGLIGENCE OR STRICT LIABILITY, but excluding Lender’s willful misconduct or gross negligence.

Liability under this Section 3(b) and similar provisions in this Mortgage and the other Loan Documents concerning Hazardous Materials shall survive repayment of the Note and satisfaction of this Mortgage; provided, however, Borrower shall have no liability under this Section 3(b) regarding Hazardous Materials if either (i)the Property becomes contaminated subsequent to Lender’s acquisition of the Property by foreclosure, acceptance by Lender of a deed to lieu thereof, or subsequent to any transfer of ownership of the Property which was approved or authorized by Lender in writing, pursuant to this Mortgage, provided that such transferee assumes in writing all ofthe obligations of Borrower with respect to Hazardous Materials pursuant to the Loan Documents, or (ii) at such time Borrower provides Lender with an environmental assessment report acceptable to Lender, in Lender’s sole discretion, showing

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the Property to be free of Hazardous Materials and not in violation of any Hazardous Waste Laws. The burden of proof under this Section 3(b) with regard to establishing the date upon which any Hazardous Materials was released in, on, over, under or about the Property shall be upon Borrower.

(c)Borrower at all times shall maintain the Property in full compliance with all federal, state, county, regional or local laws, codes, ordinances, rules, regulations, decisions and orders currently in existence orhereafter enacted or rendered, governing accessibility for the disabled, including but not limited to: The Architectural Barriers Act of 1968; The Rehabilitation Act of 1973; The Fair Housing Act of 1988; The Americans with Disabilities Act; and The Florida Elimination of Architectural Barriers Act (collectively, the “Accessibility Laws”).

Borrower hereby agrees to indemnify and defend Lender and hold Lender harmless from and against any and all Losses paid, incurred or suffered by, or asserted against Lender for, with respect to, or as a direct or indirect result of, the non-compliance of the Property with the Accessibility Laws whether or not caused by, or within the control of, Borrower, AND EXCLUDING ANY CLAIMS OF LENDER’S NEGLIGENCE OR STRICT LIABILITY, but excluding Lender’s willful misconduct or gross negligence.

Liability under this Section 3(c) and similar provisions in this Mortgage and the other Loan Documents concerning Accessibility Laws shall survive repayment of the Note and satisfaction of this Mortgage; provided, however, Borrower shall not be liable under this Section 3(c) for compliance with any Accessibility Laws if such Accessibility Laws first become effective, or such violations result from alterations or improvements to the Property that are performed subsequent to Lender’s acquisition of the Property by foreclosure or acceptance of a deed in lieu thereof or subsequent to any transfer which was approved or authorized by Lender pursuant to this Mortgage; provided that such transferee assumes in writing all obligations pertaining to the Accessibility Laws pursuant to this Mortgage and the other Loan Documents. The burden of proof under this Section 3(c) with regard to establishing the date upon which such non-compliance with any Accessibility Laws occurred at the Property shall be upon Borrower.

Lender, and/or its agents, shall have the right and shall be permitted, but shall not be required, at all reasonable times, to enter upon and inspect the Property to insure compliance with the foregoing covenants, and any and all other terms, covenants, conditions and agreements set forth in this Mortgage.

4.Payment of Taxes, Assessments and Other Charges. Borrower shall pay all taxes, assessments and other charges as already levied or assessed, or that may be hereafter levied or assessed, upon or against the Property, when the same shall become due and payable according to Law, before delinquency, and before any interest or penalty shall attach thereto, and to deliver official receipts evidencing the payment of the same to Lender not later than thirty (30) days following the payment of the same. Borrower shall have the right to contest, in good faith and in accordance with applicable Laws and procedures, the proposed assessment of ad valorem taxes or special assessments by governmental authorities having jurisdiction over the Property; provided, however, Borrower shall give Written Notice of its intent to bring such an action to Lender, and Lender may, in its sole discretion, require Borrower to post a bond or other

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collateral satisfactory to Lender (and acceptable to the title company insuring this Mortgage) as a result of Borrower’s act.

5.Payment of Liens, Charges and Encumbrances. Borrower shall immediately pay and discharge from time to time when the same shall become due, all lawful claims and demands of mechanics, materialmen, laborers, realtors, brokers and others which, if unpaid, might result in, or permit the creation of, a lien, charge or encumbrance upon the Property or any part thereof, or on the Rents, arising therefrom and, in general, to do or cause to be done everything necessary so that the lien of this Mortgage shall be fully preserved, at the sole cost of Borrower, without expense to Lender. Borrower shall have the right to contest, in good faith and in accordance with applicable Laws and procedures, mechanics’, materialmen’s and other such liens filed against the Property; provided however, that Borrower shall give Written Notice to Lender of its intent to bring such action, and Lender may, in Lender’s sole discretion, require Borrower to post a bond or other collateral satisfactory to Lender (and acceptable to the title company insuring this Mortgage) as a result of Borrower’s act.

6.Payment of Junior Encumbrances. Borrower shall permit no default or delinquency under any other lien, imposition, charge or encumbrance against the Property, even though junior and inferior to the lien of this Mortgage; provided however, the foregoing shall not be construed to permit any such additional lien or encumbrance against the Property, other than the Permitted Exceptions.

7.Payment of Mortgage Taxes. Borrower shall pay any and all taxes which may be levied orassessed directly or indirectly upon the Note and/or this Mortgage (except for income taxes payable by Lender) or the Loan secured hereby, without regard to any Law which may be hereafter enacted imposing payment of the whole or any part thereof upon Lender, its successors or assigns.  Upon violation of this covenant, or upon the rendering by any court of competent jurisdiction of a decision that such a covenant by Borrower is legally inoperative, or if any court of competent jurisdiction shall render a decision that the rate of said tax when added to the rate of interest provided for in the Note exceeds the then maximum rate of interest allowed by Law, then, and in any such event, the debt hereby secured shall, at the option of Lender, its successors or assigns, become immediately due and payable, anything contained in this Mortgage or in the Note secured hereby notwithstanding, without the imposition of a Prepayment Premium (as defined in the Note.  The additional amounts which may become due and payable hereunder shall become a part of the Loan secured by this Mortgage.

8.Hazard Insurance. Borrower shall continuously, during the term of this Mortgage, keep the Improvements, Appurtenances, and Fixtures and Personal Property, now or hereafter existing, erected, installed and located in or upon the Real Property, insured with extended coverage insurance against loss or damage resulting from fire, windstorm, flood, sinkhole, earthquake, mine subsidence, acts of terrorism, and such other hazards, casualties, contingencies and perils including, without limitation, other risks insured against by persons operating like properties in the locality of the Property, or otherwise deemed necessary or advisable by Lender, on such forms and with such deductibles as may be required by Lender, covering the Property in the amount of the full replacement cost thereof, (without taking into account any depreciation) less excavating and foundation costs, and covering all loss or abatement of rental or other income, without a provision for co-insurance, in an amount equal to the scheduled rental income

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of the Property for at least twelve (12) months, or if applicable, business interruption insurance in an amount sufficient to pay debt service on the Note, operating expenses, taxes and insurance on the Property for a period of twelve (12) months, and covering loss by flood (if the Property lies in a Special Flood Hazard Area as designated on the Department of Housing and Urban Development’s Maps, or other flood prone designation) in an amount equal to the outstanding principal balance of the Loan or such other amount as approved by Lender, and earthquake insurance with a deductible amount of no more than ten percent (10%) of the policy amount, if the Property is located within one-half (1/2) mile of an Alquist-Priolo Special Earthquake Study Zone or if, in the judgment of Lender’s inspecting architect, the Property lies in an area of anticipated significant seismic activity, and “Ordinance or Law Coverage” or “Enforcement” endorsements in amounts satisfactory to Lender if any of the Improvements or the use of the Property shall at any time constitute legal non-conforming structures or uses or the ability to rebuild the Improvements is restricted or prohibited, and comprehensive boiler and machinery insurance (without exclusion for explosion), if applicable, in amounts as shall be reasonably required by Lender and covering all boilers or other pressure vessels, machinery and equipment located at or about the Property (including, without limitation, electrical equipment, sprinkler systems, heating and air conditioning equipment, refrigeration equipment and piping). All such insurance shall be carried with a company or companies licensed to do business in the state where the Property is located, which is acceptable to Lender, which company or companies shall have a rating at the time this Mortgage is executed equivalent to at least A+ :X as shown in the most recent Best’s Key Rating Guide.  The original policy or policies and renewals thereof (or, at the sole option of Lender, duplicate originals or certified copies thereof), together with receipts evidencing payment of the premium therefor, shall be deposited with, held by and are hereby assigned to, Lender as additional security for the Loan secured hereby.  Each such policy of insurance shall contain a noncontributing loss payable clause in favor of and in a form acceptable to Lender, and shall provide for not less than thirty (30) days prior Written Notice to Lender of any intent to modify, non-renew, cancel or terminate the policy or policies, or the expiration of such policies of insurance, or the exclusion of any individual risk such as acts of terrorism. If the insurance required under this Section 8 or any portion thereof is maintained pursuant to a blanket policy, Borrower shall furnish to Lender a certified copy of such policy, together with an original Evidence of Insurance Certificate (Acord Form 27) for hazard insurance indicating that Lender is an additional insured under such policy in regard to the Property and showing the amount of coverage apportioned to the Property, which coverage shall be in an amount sufficient to satisfy the requirements hereof.  Not less than fifteen (15) days prior to the expiration dates of each policy required of Borrower hereunder, Borrower will deliver to Lender a renewal policy or policies marked “premium paid” or accompanied by other evidence of payment and renewal satisfactory to Lender. In the event of foreclosure of this Mortgage or other transfer of title to the Property in extinguishment of the Loan secured hereby, all right, title and interest of Borrower, in and to any insurance policies then in force including any rights to unearned premiums, and in and to insurance proceeds then payable, shall pass to the purchaser or grantee. Notwithstanding anything to the contrary contained in this paragraph, Borrower will not be required to maintain Hazard Insurance with respect to the property and improvements located at Lot 3, Wal-Mart at Viera, as recorded in Plat Book 48, Page 79, 80 & 81, of the Public Records of Brevard County, Florida (the World Bank ground lease parcel).

In the event of loss by reason of hazards, casualties, contingencies and perils for which insurance has been required by Lender hereunder, Borrower shall give immediate notice thereof

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to Lender.  Lender is hereby irrevocably appointed attorney-in-fact coupled with an interest for Lender to, at its option, make proof of loss and/or to file a claim thereunder. Each insurance company concerned is hereby notified, authorized and directed to make payment for such loss directly to Lender, instead of to Borrower and Lender jointly, and Borrower hereby authorizes Lender to adjust and compromise any losses for which insurance proceeds are payable under any of the aforesaid insurance policies and, after deducting the costs of collection, to apply the proceeds of such insurance, at its option either: (a) to the restoration or repair of the insured Improvements, Appurtenances, and Fixtures and Personal Property, provided that, in the opinion and sole discretion of Lender, such restoration or repair is reasonably practical and, provided further, that, in the opinion and sole discretion of Lender, either: (i) the insurance proceeds so collected are sufficient to cover the cost of such restoration or repair of the damage or destruction with respect to which such proceeds were paid, or (ii) the insurance proceeds so collected are not sufficient alone to cover the cost of such restoration or repair, but are sufficient therefor when taken together with funds provided and made available by Borrower from other sources; in which event Lender shall make such insurance proceeds available to Borrower for the purpose of effecting such restoration or repair, but Lender shall not be obligated to see to the proper application of such insurance proceeds nor shall the amount of funds so released or used be deemed to be payment of or on account of the Loan secured hereby; or (b) to the reduction of the Loan, notwithstanding the fact that the amount owing thereon may not then be due and payable or that said Loan is otherwise adequately secured, in which event such proceeds shall be applied at par against the Loan secured hereby and the monthly payment due on account of such Loan shall be reduced accordingly as calculated by Lender. None of such actions taken by Lender shall be deemed to be or result in a waiver or impairment of any equity, lien or right of Lender under and by virtue of this Mortgage, nor will the application of such insurance proceeds to the reduction of the Loan serve to cure any default in the payment thereof. In the event of foreclosure of this Mortgage or other transfer of title to the Property in extinguishment of the Loan secured hereby, all right, title and interest of Borrower in and to any insurance policies then in force including any rights to unearned premiums and in and to insurance proceeds then payable, shall pass to the purchaser or grantee.

In case of Borrower’s failure to keep the Property properly insured as required herein, Lender, its successors or assigns, may, at its option (but shall not be required to) acquire such insurance as required herein at Borrower’s sole expense.

Notwithstanding anything set forth in this Section 8 to the contrary, in the event of loss or damage to the Property by fire or other casualty for which insurance has been required by Lender and provided by Borrower, and (a) the amount of such loss or damage does not exceed twenty-five percent (25%) of the unpaid principal balance of the Note, or (b) restoration is required by the terms of a Major Tenant Lease, Lender hereby agrees to allow the proceeds of insurance to be used for the restoration of the Property and to release such insurance proceeds to Borrower as such restoration progresses, provided:

(a)Borrower is not in default beyond any applicable grace or cure periods under any of the terms, covenants and conditions of this Mortgage, the Note or any of the other Loan Documents;

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(b)The Improvements, after such restoration, shall be at least eighty percent (80%) leased pursuant to leases approved in writing by Lender;

(c)The plans and specifications for the restoration of the Property are approved in writing by Lender in advance;

(d)At all times during such restoration, Borrower has deposited with Lender funds which, when added to the insurance proceeds received by Lender, are sufficient to complete the restoration of the Property in accordance with the approved plans and specifications, and all applicable building codes, zoning ordinances, regulations and Accessibility Laws, and further, that the funds retained by Lender are sufficient to complete the restoration of the Property as certified to Lender by Lender’s inspecting architect/engineer;

(e)Borrower provides suitable completion, payment and performance bonds, builders’ all risk insurance, and all necessary licenses and permits for such restoration in form and amount acceptable to Lender;

(f)The insurer under such policies of fire or other casualty insurance does not assert any defense to payment under such policies against Lender, Borrower, any tenant, or third party of Borrower with regard to the Property;

(g)Lender shall have the option, upon the completion of such restoration of the Property, to apply any surplus insurance proceeds remaining after the completion of such restoration, at par, to the reduction of the outstanding principal balance of the Note; notwithstanding the fact that the amount owing thereon may not then be due and payable or that said Loan is otherwise adequately secured;

(h)The funds held by Lender shall be disbursed no more often than once per month and in not more than five (5) increments of not less than FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00) each, except the final disbursement of such funds which may be in an amount less than FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00);

(i)Lender’s obligation to make any such disbursement shall be conditioned upon Lender’s receipt of written certification from Lender’s inspecting architect/engineer (whose reasonable fees shall be reimbursed to Lender by Borrower) that all construction and work for which such disbursement is requested has been completed in accordance with the approved plans and specifications and in accordance with all applicable building codes, zoning ordinances and all other Laws and, further, that Borrower has deposited with Lender sufficient funds to complete such restoration in accordance with Section 8(d); and

(j)Lender shall be entitled to require and to impose such other conditions to the release of such funds as would be customarily or reasonably be required and imposed by local construction lenders for a project of similar nature and cost.

9.Liability Insurance. Borrower shall carry and maintain such commercial general liability insurance as may from time to time be reasonably required by Lender, taking into consideration the type of property being insured and the corresponding liability exposure, on forms, with deductibles, in amounts and with such company or companies licensed to do

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business inthe state where the Property is located and as may be acceptable to Lender. All such commercial general liability insurance shall be carried with a company or companies which have and maintain a rating equivalent to at least AA:X as shown in the most recent Best’s Key Rating Guide.  The original policy or policies and all renewals thereof (or, at the sole option of Lender, duplicate originals or certified copies thereof), together with a Certificate of Insurance (Acord Form 25S) and receipts evidencing payment of the premium therefor, shall be deposited with, held by and are hereby assigned to, Lender as additional security for the Loan secured hereby. Such policy or policies of insurance shall name Lender as an additional insured and shall provide for not less than thirty (30) days prior Written Notice to Lender of any intent to modify, cancel, non-renew, or terminate the policy or policies or the expiration of such policy or policies of insurance, or the exclusion of any individual risk such as acts of terrorism. Not less than fifteen (15) days prior to the expiration dates of each policy or policies required of Borrower hereunder, Borrower will deliver to Lender a renewal policy or policies marked “premium paid” or accompanied by other evidence of payment and renewal satisfactory to Lender.  In the event of foreclosure of this Mortgage or other transfer of title to the Property in extinguishment of the Loan secured hereby, all right, title and interest of Borrower, in and to any insurance policies then in force including any rights to unearned premiums, and in and to insurance proceeds then payable, shall pass to the purchaser or grantee.  In case of Borrower’s failure to keep the Property properly insured asrequired herein, Lender, its successors or assigns, may, at its option (but shall not be required to) acquire such insurance as required herein at Borrower’s sole expense.

10.Compliance With Laws.

(a)Borrower shall observe, abide by and comply with all federal, regional, state and local laws, codes, ordinances, statutes, rules, regulations, decisions, orders, requirements or decrees relating to the Property enacted, promulgated or issued by any federal, state, county or local governmental or quasi-governmental authority or any agency or subdivision thereof having jurisdiction over Borrower or the Property, which now or hereafter affect Borrower or the Property, including Hazardous Waste Laws and Accessibility Laws (collectively, the “Laws”), and to observe and comply with all conditions and requirements necessary to preserve and extend any and all rights, licenses, permits (including, but not limited to, zoning, variances, special exceptions and nonconforming uses), privileges, franchises and concessions which are applicable to the Property, or which have been granted to or contracted for by Borrower in connection with any existing, presently contemplated or future uses of the Property.

(b)Borrower shall not engage in any transaction, which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under the Note, this Mortgage and the other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). Borrower shall deliver to Lender such certifications or other evidence from time to time throughout the term of this Mortgage, as requested by Lender in its sole discretion, that (i) Borrower is not an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmental plan” within the meaning of Section 3(32) of ERISA; (ii) Borrower is not subject

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to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (iii) one or more of the following circumstances is true:

(i)Equity interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R. § 2510.3-101(b)(2);

(ii)Less than twenty-five percent (25%) of each outstanding class of equity interests in Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R. § 2510.3-101(f)(2);or

(iii)Borrower qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R § 2510.3-101(c) or (e) or an investment company registered under The Investment Company Act of 1940.

11.Maintenance of Permits. Borrower shall obtain, keep and constantly maintain in full force and effect during the entire term of this Mortgage, all certificates, licenses and permits necessary to keep the Property operating for the Existing Use and, except as specifically provided for in this Mortgage, not to assign, transfer or in any manner change such certificates, licenses or permits without first receiving the written consent of Lender.

12.Obligations of Borrower as Lessor.

(a)Borrower shall perform every obligation of Borrower (as the landlord) and enforce every obligation of the tenant in any and every lease, license or other occupancy agreement of or affecting the Property or any part thereof (the “Occupancy Leases”), and not to modify, alter, waive or cancel any such Occupancy Leases or any part thereof or rights thereunder, without the prior written consent of Lender (but such consent shall not be required for such action as to Occupancy Leases of three thousand (3,000) square feet or less if such action is in the ordinary course of business of owning and operating the Property in a prudent and business-like manner, on then current market terms), nor collect for more than thirty (30) days in advance of the date due any Rents that may be collectible under any such Occupancy Leases and, except as provided for in this Mortgage, not to assign any such Occupancy Lease(s) or any such Rents relating thereto, to any party other than Lender, without the prior written consent of Lender. Borrower will notify Lender in writing of any default under any Occupancy Lease. In the event of default under any such Occupancy Lease by reason of failure of Borrower to keep orperform one or more of the covenants, agreements or conditions thereof, Lender is hereby authorized and empowered, and may, at its sole option, remedy, remove or cure any such default, and further, Lender may, at its sole option and in its sole discretion but without obligation to do so, pay any sum of money deemed necessary by Lender for the performance of said covenants, agreements and conditions, or for the curing or removal of any such default, and incur all expenses and obligations which Lender may consider necessary or reasonable in connection therewith, and Borrower shall repay on demand all such sums so paid or advanced by Lender together with interest thereon until paid at the lesser of either: (i) the highest rate of interest then allowed by the Laws of the State of Florida, or, if controlling, the Laws of the United States, or (ii) the then applicable interest rate of the Note plus five hundred (500) basis points per annum; all of such sums, if unpaid, shall be added to and become part of the Loan.

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(b)All such Occupancy Leases hereafter made shall be subject to the approval of Lender and: (i) shall be at competitive market rental rates then prevailing in the geographic area for projects used for the Existing Use comparable to the Property; (ii) shall have lease terms of not less than three (3) years; and (iii) at Lender’s option, shall be superior or subordinate in all respects to the lien of this Mortgage. Provided, however, that Lender shall not require approval in advance of any Occupancy Leases which conform to the Borrower’s Form Lease (as hereinafter defined) aspreviously approved by Lender, except as set forth below. Neither the right nor the exercise of the right herein granted unto Lender to keep or perform any such covenants, agreements or conditions as aforesaid shall preclude Lender from exercising its option to cause the whole Loan secured hereby to become immediately due and payable by reason of Borrower’s default in keeping or performing any such covenants, agreements or conditions.

(c)Lender has approved a form of Occupancy Lease to be used by Borrower in connection with the Property (the “Form Lease”).  Borrower shall not, without the prior written consent of Lender, modify or alter the Form Lease in any material respect. In addition, Borrower shall not, without the prior written consent of Lender, surrender, terminate, modify or alter, either orally or in writing, any Occupancy Lease now existing or hereafter made with any Major Tenant (as hereinafter defined) for allor part of the Property, permit an assignment or sublease of any such Occupancy Lease, or request or consent to the subordination of any Occupancy Lease to any lien subordinate to this Mortgage. Borrower shall furnish Lender with copies of all executed Occupancy Leases of all or any part of the Property now existing or hereafter made, and Borrower shall assign to Lender (which assignment shall be in form and content acceptable to Lender), as additional security for the Note and the Loan, all Occupancy Leases now existing or hereafter made for all or any part of the Property. Additionally, if any Occupancy Lease contains a provision allowing the tenant to terminate their lease upon payment of a lease termination fee, Borrower agrees that all such sums shall constitute rent, and shall be paid to Lender so long as this Mortgage is in effect.

Notwithstanding the foregoing approval by Lender of Borrower’s Form Lease, Lender hereby specifically reserves the right to approve all prospective tenants under all Occupancy Leases hereafter proposed to be made if either: (i) the term thereof, excluding options to renew the same, exceeds five (5) years; or (ii) the net rentable area to be occupied thereunder, including expansion options, exceeds ten percent (10%) of the net leasable area of each of the buildings comprising the Improvements (the tenants under such leases being hereinafter referred to as “Major Tenants”). Borrower shall notify Lender in writing of all prospective Major Tenants, and shall deliver to Lender, at Borrower’s sole cost and expense, a copy of the prospective Major Tenant’s current financial statement and the most recent Dun & Bradstreet credit report on said prospective Major Tenant. The financial statement delivered to Lender hereunder shall be certified as true and correct by the Major Tenant, or, if available, by a certified public accountant. If Lender fails to respond within ten (10) business days after receipt from Borrower of an Occupancy Lease, together with tenant credit information, Lender shall be deemed to have approved such Occupancy Lease; provided that all items so submitted shall be sent certified mail, labeled with the following statement: “TIME SENSITIVE RESPONSE REQUIRED WITHIN TEN (10) BUSINESS DAYS OF ACTUAL RECEIPT.

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(d)In no event shall Borrower exercise any right to relocate any lessee outside the Property pursuant to any right set forth in an Occupancy Lease without the prior written consent of Lender.

13.Maintenance of Parking &Access; Prohibition Against Alteration; Separate Tax Lot.

(a)Borrower shall construct, keep and constantly maintain, as the case may be, all curbs, drives, parking areas and the number of parking spaces heretofore approved by Lender, or heretofore or hereafter required by any Laws or any governmental body, agency or authority having jurisdiction over Borrower or the Property, and as required by the terms of the Occupancy Leases, and not to alter, erect, build or construct upon any portion of the Property, any building, structure or improvement of any kind whatsoever, the erection, building or construction of which has not been previously approved by Lender in writing, which approval shall be at the sole discretion of Lender provided, however, that the initial construction of World Savings Bank and other tenant buildout pursuant to approved Occupancy Leases, which is ongoing as of the date hereof, is specifically permitted.

(b)Borrower shall cause the Property to remain separately assessed for real estate tax purposes as a separate tax lot or lots.

14.Execution of Additional Documents. Borrower shall do, make, execute, acknowledge, witness and deliver all deeds, conveyances, mortgages, deeds of trust, assignments, estoppel certificates, subordination non-disturbance and attornments, notices of assignments, transfers, assurances, security agreements, financing statements and renewals thereof, and all other instruments or other acts necessary, as Lender shall from time to time require for the purpose of better assuring, conveying, assigning, transferring, securing and confirming unto Lender the Property and rights hereby encumbered, created, conveyed, assigned or intended now or hereafter so to be encumbered, created, conveyed or assigned, or which Borrower may now be or may hereafter become bound to encumber, create, convey or assign to Leader, or for the purpose of carrying out the intention or facilitating the performance of the terms of this Mortgage, or for filing, registering or recording this Mortgage, and to pay all filing, registration or recording fees and all taxes, costs and other expenses, including Reasonable Attorneys’ Fees, incident to the preparation, execution, acknowledgment, delivery and recordation of any of the same. By signing this Mortgage, Borrower authorizes Lender to file such financing statements, with or without the signature of Borrower, as Lender may elect, as may be necessary or desirable to perfect the lien of Lender’s security interest in the Fixtures and Personal Property. Without limiting any other provision herein, Borrower hereby authorizes Lender to file one or more financing statements and any renewal orcontinuation statements thereof, describing the Property and the proceeds of the Property, including, without limitation, a financing statement covering “all assets of Borrower all proceeds therefrom, and all rights and privileges with respect thereto”. Borrower further authorizes Lender to file, with or without any additional signature from Borrower, as Lender may elect, such amendments and continuation statements as Lender may deem necessary or desirable from time to time to perfect or continue the lien of Lender’s security interest in the Fixtures and Personal Property. Borrower hereby ratifies any financing statements that may have been filed by Lender in advance of the date hereof to perfect Lender’s security interest in the Fixtures and Personal Property.

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15.After Acquired Property Secured. Borrower shall subject to the lien of this Mortgage all right, title and interest of Borrower in and to all extensions, improvements, betterments, renewals, substitutions and replacements of, and all additions and appurtenances to, the Property hereinabove described, hereafter acquired by or released to Borrower, or constructed, assembled or placed by Borrower on the Real Property, and all conversions of the security constituted thereby,  immediately upon such acquisition,  release,  construction, assembling, placement or conversion, as the case may be, and in each such case, without any further mortgage, deed of trust, encumbrance, conveyance, assignment or other act by Borrower, as fully, completely and with the same effect as though now owned by Borrower and specifically described herein, but at any and all times, Borrower will execute and deliver to Lender any and all such further assurances, mortgages, deeds of trust, conveyances, security agreements, financing statements or assignments thereof or security interests therein as Lender may reasonably require for the purpose of expressly and specifically subjecting the same to the lien of this Mortgage.

16.Payments by Lender on Behalf of Borrower.  Borrower shall make payment of any taxes, assessments or public charges on or with respect to the Property before the same shall become delinquent, or to make payment of any insurance premiums or other charges, impositions, or liens herein or elsewhere required to be paid by Borrower, or if Borrower shall fail so to do, then Lender, at its sole option, but without obligation to do so, may make payment or payments of the same and also may redeem the Property from tax sale without any obligation to inquire into the validity of such taxes, assessments, charges, impositions or liens. In the case of any such payment by Lender, Borrower agrees to reimburse Lender, upon demand therefor, the amount of such payment and of any fees and expenses attendant in making the same, together with interest thereon at the lesser of either: (a) the highest rate of interest then allowed by the Laws of the State of Florida or, if controlling, the Laws of the United States, or (b) the then applicable interest rate of the Note plus five hundred (500) basis points per annum; and until paid such amounts and interest shall be added to and become part of the Loan secured hereby to the same extent that this Mortgage secures the repayment of the Loan.  In making payments authorized by the provisions of this Section 16, Lender may do so whenever, in Lender’s sole judgment and discretion, such advance or advances are necessary or desirable to protect the full security intended to be afforded by this Mortgage.  Neither the right nor the exercise of the rights herein granted to Lender to make any such payments as aforesaid shall preclude Lender from exercising its option to cause the Loan secured hereby to become immediately due and payable by reason of Borrower’s default in making such payments as hereinabove required.

17.Funds Held by Lender for Taxes, Assessments, Insurance Premiums and Other Charges. In order to more fully protect the security of this Mortgage, Borrower shall deposit with Lender, together with and in addition to each monthly payment due on account of the Loan, an amount equal to one-twelfth (1/12^th) of the annual total of such taxes, assessments, insurance premiums and other charges (all as estimated by Lender in its sole discretion) so that, at least thirty (30) days prior to the due date thereof, Lender shall be able to pay in full all such taxes, assessments, insurance premiums and other charges as the same shall become due. Lender may hold the sums so deposited without paying interest, commingle same with its general funds and/or apply the same to the payment of said taxes, assessments, insurance premiums or other charges as they become due and payable.  If at any time the funds so held by Lender are insufficient to pay such taxes, assessments, insurance premiums or other charges as they become

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due and payable, Borrower shall immediately, upon Written Notice and demand by Lender, deposit with Lender the amount of such deficiency. The failure on the part of Borrower to do so shall entitle Lender, at Lender’s sole option, to make such payments in accordance with the rights and pursuant to the conditions elsewhere provided in this Mortgage. Whenever any default exists under this Mortgage, Lender may, at Lender’s sole option but without an obligation so to do, apply any funds so held by Lender pursuant to this Section 17 toward the payment of the Loan, notwithstanding the fact that the amount owing thereon may not then be due and payable or that the Loan may otherwise be adequately secured, in such order and manner of application as Lender may elect.

18.Condemnation: Eminent Domain. All claims and rights of action for, and all awards and other compensation heretofore or hereafter made to Borrower and all subsequent owners of the Property in any taking by eminent domain, recovery for inverse condemnation or by deed in lieu thereof, whether permanent or temporary, of all or any part of the Property or any easement or any appurtenance thereto, including severance and consequential damages and change in grade of any way, street, avenue, road, alley, passage or public place, are hereby assigned to Lender. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, and authorizes, directs and empowers Lender, at the option of Lender as said attorney-in-fact, on behalf of Borrower, its successors and assigns, to adjust or compromise the claim for any such award, and alone to collect and receive the proceeds thereof, to give proper receipts and acquittances therefor and, after deducting any expenses of collection, at Lender’s sole option either:

(a)to apply the net proceeds as a credit upon anyportion of the Loan, as selected by Lender, notwithstanding the fact that the amount owing thereon may not then be due and payable, or that the Loan is otherwise adequately secured. In the event Lender applies such awards to the reduction of the outstanding Loan evidenced by the Note, such proceeds shall be applied at par, and the monthly installments due and payable under the Note shall be reduced accordingly as calculated by Lender; however no such application shall serve to cure an existing default of Borrower; or

(b)to hold said proceeds without any allowance of interest, and make the same available for restoration or rebuilding of the Improvements. In the event that Lender elects to make said proceeds available to reimburse Borrower for the cost of the restoration or rebuilding of the Improvements on the Real Property, such proceeds shall be made available in the manner and under the same conditions as required under Section 8 hereof.  If the proceeds are made available by Lender to reimburse Borrower for the cost of said restoration or rebuilding, any surplus which may remain out of said award after payment of such cost of restoration or rebuilding, shall be applied on account of the Loan at par notwithstanding the fact that the amount owing thereon may not then be due and payable or that the Loan may otherwise be adequately secured.

Borrower further covenants and agrees to give Lender immediate notice of the actual or threatened commencement of any proceedings under eminent domain, and to deliver to Lender copies of any and all papers served in connection with any such proceedings. Borrower further covenants and agrees to make, execute and deliver to Lender, at any time or times, upon request, free, clear and discharged of any encumbrance of any kind whatsoever, any and all further

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assignments and/or other instruments deemed necessary by Lender for the purpose of validly and sufficiently assigning all such awards and other compensation heretofore or hereafter made to Lender (including the assignment of any award from the United States government at any time after the allowance of the claim therefor, the ascertainment of the amount thereof and the issuance of the warrant for payment thereof).

If either: (i) any part of any of the Improvements situated on the Real Property shall be condemned by any governmental authority having jurisdiction; or (ii) lands constituting a portion of the Real Property shall be condemned by any governmental authority having jurisdiction, in either case such that the remaining Property is in violation of applicable parking, zoning, platting, or other ordinances, or fails to comply with the terms of the Occupancy Leases with Major Tenants, then Lender shall be entitled to application of condemnation proceeds to the outstanding principal balance of the Note at par, and the right to accelerate the maturity date of the Note and require payment in full without the imposition of a Prepayment Premium.

19.Costs of Collection. In the event that the Note is placed in the hands of an attorney for collection, or in the event that Lender shall become a party either as plaintiff or as defendant, in any action, suit, appeal or legal proceeding (including, without limitation, foreclosure, condemnation, bankruptcy, administrative proceedings or any proceeding wherein proof of claim is by law required to be filed), hearing, motion or application before any court or administrative body in relation to the Property or the lien and security interest granted or created hereby or herein, or for the recovery or protection of the Loan or the Property, or for the foreclosure of this Mortgage, or for the enforcement of the terms and conditions of the Loan Documents, Borrower shall indemnify, save, defend and hold Lender harmless from and against any and all Losses incurred by Lender on account thereof, and Borrower shall repay, on demand, all such Losses, together with interest thereon until paid at the lesser of either (a) the highest rate of interest then allowed by the Laws of the State of Florida, or, if controlling, the Laws of the United States, or (b) the then applicable rate of interest of the Note plus five hundred (500) basis points per annum; all of which sums, if unpaid, shall be added to and become a part of the Loan.

20.Default Rate. Any sums not paid when due, whether maturing by lapse of time or by reason of acceleration under the provisions of the Note, this Mortgage or any of the other Loan Documents, and whether principal, interest or money owing for advancements pursuant to the terms of this Mortgage or any other Loan Document, shall bear interest until paid at the lesser of either (a) the highest rate of interest then allowed by the Laws of the State of Florida, or, if controlling, the Laws of the United States, or (b) the then applicable rate of interest of the Note plus five hundred (500) basis points per annum; all of which sums shall be added to and become a part of the Loan.

21.Savings Clause. Notwithstanding any provisions in the Note or in this Mortgage to the contrary, the total liability for payments in the nature of interest, including but not limited to Prepayment Premiums, default interest and late payment charges, shall not exceed the limits imposed by the Laws of the State of Florida or, if controlling, the Laws of the United States, relating to maximum allowable charges of interest.  Lender shall not be entitled to receive, collect or apply, as interest on the Loan, any amount in excess of the maximum lawful rate of interest permitted to be charged by any Laws. In the event Lender ever receives, collects or applies as interest any such excess, such amount which would be excessive interest shall be

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applied to reduce the unpaid principal balance of the Loan evidenced by the Note.  If the unpaid principal balance of such Loan has been paid in full, any remaining excess shall be forthwith returned to Borrower.

22.Bankruptcy, Reorganization or Assignment. It shall be a default hereunder if Borrower or any general partner or managing member of Borrower shall: (a) elect to dissolve or liquidate its business organization or wind up its business affairs without receiving the prior written approval of Lender; (b) consent to the appointment of a receiver, trustee or liquidator of all or a substantial part of its assets; (c) be adjudicated as bankrupt or insolvent, or file a voluntary petition in bankruptcy, or admit in writing its inability to pay its debts as they become due; (d) make a general assignment for the benefit of creditors; (e) file a petition under or take advantage of any insolvency law; (f) file an answer admitting the material allegations of a petition filed against Borrower or any general partner or managing member of Borrower in any bankruptcy, reorganization or insolvency proceeding, or fail to cause the dismissal of such petition within thirty (30) days after the filing of said petition; (g) take action for the purpose of effecting any of the foregoing; or (h) if any order, judgment or decree shall be entered upon an application of a creditor of Borrower or any general partner or managing member of Borrower by a court of competent jurisdiction approving a petition seeking appointment of a receiver or trustee of all or a substantial part of Borrower’s assets or any of Borrower’s general partner’s or managing member’s assets and such order, judgment or decree shall continue unstayed and in effect for a period of thirty (30) days.

23.Time is of the Essence, Monetary and Non-Monetary Defaults. It is understood by Borrower that time is of the essence hereof in connection with all obligations of Borrower herein and any of the other Loan Documents.

Lender, at its sole option, may declare the Loan, as well as all other monies secured or evidenced hereby or by any of the other Loan Documents, including, without limitation, all Prepayment Premiums (to the extent permitted by the Laws of the State of Florida) and late payment charges, to be in default and forthwith due and payable, in the event:

(a)Borrower defaults in the payment of any monthly installment of the Note, whether of principal or interest, or both, or in the payment of any other sums of money referred to herein or in the Note or in any of the other Loan Documents, promptly and fully when the same shall be due, without notice or demand from Lender to Borrower in regard to such Monetary Default (as hereinafter defined).

(b)Borrower breaches or defaults on any of the terms, covenants, conditions and agreements of the Note, this Mortgage, or any other Loan Documents; or in the event that each and every one of said terms, covenants, conditions and agreements is not otherwise either duly, promptly and fully discharged or performed, and any such Non-Monetary Default (as hereinafter defined) remains uncured for a period of thirty (30) days after Written Notice thereof has been delivered from Lender to Borrower; unless such Non-Monetary Default cannot be cured within said thirty (30) day period, in which event Borrower shall have a reasonable period of time to complete cure, provided that action to cure such Non-Monetary Default is promptly commenced within said thirty (30) day period, and Borrower is, in Lender’s sole judgment, not

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diminishing or impairing the value of the Property, and is diligently pursuing a cure to completion, but in no event longer than ninety (90) days.

(c)Any representation or warranty of Borrower or of its members, general partners, principals, affiliates, agents or employees, or of any Guarantor made herein or in or in any other Loan Document, in any guaranty, or in any certificate, report, financial statement or other instrument or document furnished to Lender shall have been false or misleading in any material respect when made.

(d)Any seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing or other unlawful action of Borrower, its affiliates, or any tenant in the Property under any federal, state or local law.

(e)If Borrower consummates a transaction which would cause this Mortgage or Lender’s exercise of its rights under this Mortgage, the Note or the other Loan Documents to constitute a nonexempt prohibited transaction under ERISA or result in a violation of a state statute regulating governmental plans, subjecting Lender to liability for a violation of ERISA or a state statute.

(f)Any default occurs in the performance of any covenant or obligation of Borrower or any other party under any indemnity or guaranty delivered to Lender in connection with the Loan and such default continues beyond the expiration of applicable notice and cure periods.

Upon the occurrence of any one of the above events, and at the option of Lender, the principal of and the interest accrued on the Loan and all other sums secured by this Mortgage and the other Loan Documents shall immediately become due and payable as if all of said sums of money were originally stipulated to be paid on such day. In addition, Lender may avail itself of all rights and remedies provided by law or equity, and may foreclose or prosecute a suit at law or in equity as if all monies secured hereby had matured prior to its institution, anything in this Mortgage or any of the other Loan Documents to the contrary notwithstanding. Lender shall have no obligation to give Borrower notice of, or any period to cure, any Monetary Default or any Incurable Default (as hereinafter defined) prior to exercising its rights, powers, privileges and remedies.

As used herein, the term “Monetary Default” shall mean any default which can be cured by the payment of money such as, but not limited to, the payment of principal and interest due under the Note, or the payment of taxes, assessments and insurance premiums when due as provided in this Mortgage. As used herein, the term “Non-Monetary Default” shall mean any default that is not a Monetary Default or an Incurable Default. As used herein, the term “Incurable Default” shall mean either: (i) any voluntary or involuntary sale, assignment, mortgaging, encumbering or transfer in violation of the covenants contained herein or any of the other Loan Documents; or (ii) if Borrower, or any person or entity comprising Borrower or any guarantor or indemnitor of the Loan, should breach any of the provisions of Section 22.

24.Foreclosure. Upon the occurrence of a default hereunder, Lender may institute an action to foreclose this Mortgage as to the amount so declared due and payable, and thereupon

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the Property (or any portion thereof) shall be sold according to law to satisfy and pay the same, together with all costs, expenses and allowances thereof, including, without limitation, Reasonable Attorneys’ Fees. The Property may be sold in one parcel, several parcels or groups of parcels, and Lender shall be entitled to bid at the sale, and, if Lender is the highest bidder for the Property or any part or parts thereof, Lender shall be entitled to purchase the same.  The failure or omission on the part of Lender to exercise the option for acceleration of maturity of the Note and foreclosure of this Mortgage following any default as aforesaid or to exercise any other option or remedy granted hereunder to Lender when entitled to do so in any one or more instances, or the acceptance by Lender of partial payment of the Loan secured hereby, whether before or subsequent to Borrower’s default hereunder, shall not constitute a waiver of any such default or the right to exercise any such option or remedy, but such option or remedy shall remain continuously in force. Acceleration of the maturity of the Note, once claimed hereunder by Lender, at the option of Lender, may be rescinded by written acknowledgment to that effect by Lender, but the tender and acceptance of partial payments alone shall not in any way either affect or rescind such acceleration of maturity, nor act as a waiver, accord and satisfaction, modification, novation or similar defense.

25.UCC Remedies. Upon the occurrence of a default, Lender may exercise its rights of enforcement with respect to the Fixtures and Personal Property under the UCC, and in conjunction with, in addition to or in substitution for those rights and remedies:

(a)Written Notice mailed to Borrower as provided herein ten (10) days prior to the date of public sale of the Fixtures and Personal Property or prior to the date after which private sale of the Fixtures and Personal Property will be made shall constitute reasonable notice;

(b)any sale made pursuant to the provisions of this Section shall be deemed to have been a public sale conducted in a commercially reasonable manner if held contemporaneously with the sale of the Mortgaged Property under power of sale as provided herein upon giving the same notice with respect to the sale of the Fixtures and Personal Property hereunder as is required for such sale of the Mortgaged Property under power of sale;

(c)in the event of a foreclosure sale, whether made under the terms hereof, or under judgment of a court, the Fixtures and Personal Property and the Mortgaged Property may, at the option of Lender, be sold as a whole;

(d)it shall not be necessary that Lender take possession of the Fixtures and Personal Property or any part thereof prior to the time that any sale pursuant to the provisions of this Section is conducted and it shall not be necessary that the Fixtures and Personal Property or any part thereof be present at the location of such sale;

(e)prior to application of proceeds of disposition of the Fixtures and Personal Property to the secured indebtedness, such proceeds shall be applied to the reasonable expenses of retaking, holding, preparing for sale or lease, selling, leasing and the like and the Reasonable Attorneys Fees and other legal expenses incurred by Lender;

(f)any and all statements of fact or other recitals made in any bill of sale or assignment or other instrument evidencing any foreclosure sale hereunder as to nonpayment of

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the indebtedness or as to the occurrence of any default, or as to Lender having declared all of such indebtedness to be due and payable, or asto notice of time, place and terms of sale and of the properties to be sold having been duly given, or as to any other act or thing having been duly done by Lender, shall be taken as prima facie evidence of the truth of the facts so stated and recited;

(g)Lender may appoint or delegate any one (1) or more persons as agent to perform any act or acts necessary or incident to any sale held by Lender, including the sending of notices and the conduct of the sale, but in the name and on behalf of Lender; and

(h)this Mortgage covers Goods which are or are to become Fixtures related to the Real Property, and covers As-Extracted Collateral related to the Real Property. A carbon, photographic or other reproduction of this Mortgage or of any financing statement relating to this Mortgage shall be sufficient as a financing statement.  This Mortgage shall be effective as a financing statement filed as a fixture filing with respect to all fixtures included within the Property and is to be filed for record in the real estate records in the Office of the County Clerk where the Property (including said fixtures) is situated. This Mortgage shall also be effective as a financing statement As-Extracted Collateral with respect to all As-Extracted Collateral included within the Real Property (including, without limitation, all oil, gas, other minerals, and other substances of value which may be extracted from the earth and all accounts arising out of the sale at the wellhead or minehead thereof), and is to be filed for record in the real estate records of the county where the Property is situated. The mailing address of Borrower is set forth in Section 43 of this Mortgage and the address of Lender from which information concerning the security interest may be obtained is the address of Lender set forth in Section 43 of this Mortgage.

26.Protection of Lender’s Security. At any time after default hereunder, Lender, or Lender’s agents or contractors, is authorized, without notice and in Lender’s sole discretion, to enter upon and take possession of the Property or any part thereof, and to perform any acts which Lender deems necessary or proper to conserve the security interest herein intended to be provided by the Property, to operate any business or businesses conducted thereon, and tocollect and receive all Rents thereof and therefrom, including those past due as well as those accruing thereafter.

27.Appointment of Receiver. If,at any time after a default hereunder, Lender deems, in Lender’s sole discretion, that a receivership may be necessary to protect the Property or its Rents, whether before or after maturity of the Note and whether before or at the time of or after the institution of foreclosure or suit to collect the Loan or to enforce this Mortgage or any of the other Loan Documents, Lender, as a matter of strict right and regardless of the value of the Property or the amounts due hereunder or secured hereby, or of the solvency of any party bound for the payment of such indebtedness, shall have the right, upon ex parte application and without notice to anyone, and by any court having jurisdiction, to the appointment of a receiver to take charge of, manage, preserve, protect and operate the Property, to collect the Rents thereof, to make all necessary and needful repairs, and to pay all taxes, assessments, insurance premiums and other such charges against and expenses of the Property, and to do such other acts as may by such court be authorized and directed, and after payment of the expenses of the receivership and the management of the Property, to apply the net proceeds of such receivership in reduction of

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the Loan or in such other manner as the said court shall direct notwithstanding the fact that the amount owing thereon may not then be due and payable or the said Loan is otherwise adequately secured. Such receivership shall, at the option of Lender, continue until full payment of all sums hereby secured or until title to the Property shall have passed by sale under this Mortgage, Borrower hereby specifically waives its right to object to the appointment of a receiver as aforesaid, and hereby expressly agrees that such appointment shall be made as an admitted equity and as a matter of absolute right to Lender.

28.Rights and Remedies Cumulative; Forbearance Not a Waiver. The rights and remedies herein provided are cumulative, and Lender, as the holder of the Note and of every other obligation secured hereby, may recover judgment thereon, issue execution therefor and resort to every other right or remedy available at law or in equity, without first exhausting any right or remedy available to Lender and without affecting or impairing the security of any right or remedy afforded hereby, and no enumeration of special rights or powers by any provisions hereof shall be construed to limit any grant of general rights or powers, or to take away or limit any and all rights granted to or vested in Lender by law or equity. Borrower further agrees that no delay or omission on the part of Lender to exercise anyrights or powers accruing to it hereunder shall impair any such right or power, or shall be construed to be a waiver of any such default hereunder or an acquiescence therein; and every right, power and remedy granted herein or by law or equity to Lender may be exercised from time to time as often as Lender deems expedient.

Lender may resort to any security given by this Mortgage or to any other security now existing or hereafter given to secure the payment of the Loan, in whole or in part, and in such portions and in such order as may seem best to Lender in its sole discretion, and any such action shall not be considered as a waiver of any of the rights, benefits, liens or security interests evidenced by this Mortgage. To the full extent Borrower may do so, Borrower agrees that Borrower will not at any time insist upon, plead, claim or take the benefit or advantage of any law now or hereafter in force pertaining to the rights and remedies of sureties or providing for any appraisement, valuation, stay, extension or redemption, and Borrower, for Borrower and Borrower’s heirs, devisees, representatives, successors and assigns, and for any and all persons ever claiming any interest in the Property, to the extent permitted by law, hereby waives and releases all rights of redemption, valuation, appraisement, stay of execution, notice of intention to mature or declare due the whole of the secured indebtedness, notice of election to mature or declare due the whole of the secured indebtedness and all rights to a marshaling of the assets of Borrower, including the Property, or to a sale in inverse order of alienation in the event of foreclosure of the liens and security interests hereby created. Borrower shall not have or assert any right under any statute or rule of law pertaining to the marshaling of assets, sale in inverse order of alienation, the exemption of homestead, the administration of estates of decedents or other matters whatever to defeat, reduce or affect the right of Lender under the terms of this Mortgage to a sale of the Property for the collection of the secured indebtedness without any prior or different resort for collection, or the right of Lender under the terms of this Mortgage to the payment of such indebtedness out of the proceeds of sale of the Property in preference to every other claimant whatever. If any law referred to in this Section and now in force, of which Borrower or Borrower’s heirs, devisees, representatives, successors and assigns and such other persons claiming any interest in the Property might take advantage despite this Section, shall

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hereafter be repealed or cease to be in force, such law shall not thereafter be deemed to preclude the application of this Section.

29.Modification Not an Impairment of Security. Lender, without notice and without regard to the consideration, if any, paid therefor, and notwithstanding the existence at that time of any inferior mortgages, deeds of trust, or other liens thereon, may release any part of the security described herein, or may release any person or entity liable for the Loan secured hereby without in any way affecting the priority of this Mortgage, to the full extent of the Loan remaining unpaid hereunder, upon any part of the security not expressly released. Lender may, at its option and within Lenders sole discretion, also agree with any party obligated on the Loan, or having any interest in the security described herein, to extend the time for payment of any part or all of the Loan, and such agreement shall not, in any way, release or impair this Mortgage, but shall extend the same as against the title of all parties having any interest in said security, which interest is subject to this Mortgage.

30.Property Management and Leasing. The exclusive manager of the Property shall be Borrower, or such other manager as may be first approved in writing by Lender.  The exclusive leasing agent of the Property, if other than Borrower or the foregoing party, shall be first approved in writing by Lender. The management and leasing contracts (or in the absence of any such written contract, a letter sostating and further identifying the name of the person or entity charged with the responsibility for managing and/or leasing the Property) shall be subordinate to this Mortgage, and satisfactory to and subject to the prior written approval of Lender throughout the term of the Loan.  Upon default in either of these requirements, then the whole of the Loan hereby secured shall, at the election of Lender, become immediately due and payable, together with any Prepayment Premium, late payment charges and all other sums required by the Note or the other Loan Documents, and Lender shall be entitled to excercise any or all remedies provided for or referenced in this Mortgage.

31.Modification Not a Waiver.  In the event Lender (a) releases, as aforesaid, any part of the security described herein or any person or entity liable for the Loan; (b) grants an extension of time for the payment of the Note; (c) takes other or additional security for the payment of the Note; or (d) waives or fails to exercise any rights granted herein, in the Note, or any of the other Loan Documents, any said act or omission shall not release Borrower, subsequent purchasers of the Property or any part thereof, or makers, sureties, endorsers or guarantors of the Note, if any, from any obligation or any covenant of this Mortgage, the Note or any of the other Loan Documents, nor preclude Lender from exercising any right, power or privilege herein granted or intended to be granted in the event of any other default then made, or any subsequent default.

32.Transfer of Property or Controlling Interest in Borrower; Assumption. Except as set forth in Section 38(b) hereof, without the prior written consent of Lender, the sale, transfer, assignment or conveyance of all or any portion of the Property, or the transfer, assignment or conveyance of a controlling interest in Borrower or its general partner or managing member, or any guarantor, whether voluntary or by operation of law, without the prior written consent of Lender, shall constitute a default hereunder, and entitle Lender, at Lender’s sole option, to accelerate all sums due on the Note, together with any Prepayment Premiums (to the extent permitted by the Laws of the State of Florida), late payment charges or any other amounts

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secured hereby. Lender may, however, elect to waive the option to accelerate granted hereunder if, prior to any such sale, transfer, assignment or conveyance of the Property, the following conditions shall be fully satisfied: (a) Lender acknowledges in writing that, in Lender’s sole discretion, the creditworthiness of the proposed transferee and the ability and experience of the proposed transferee to operate the Property are satisfactory to Lender; (b) Lender and the proposed transferee stall enter into an agreement in writing that (i) the rate of interest payable on the Loan secured hereby shall be at such rate as Lender shall determine, (ii) the repayment schedule as set forth in the Note shall be modified by Lender, in Lender’s sole discretion, to initiate amortization or modify the existing amortization schedule in order to amortize the then remaining unpaid principal balance of the Note secured hereby over a period of time as determined by Lender, in Lender’s sole discretion, without a change in the maturity date of the Note, and (iii) the proposed transferee shall assume all obligations of Borrower under the Note, this Mortgage and the other Load Documents in writing and an assumption fee, to be determined by Lender in Lender’s sole discretion, may be charged by Lender; (c) Lender shall receive, for Lender’s review and approval, copies of all transfer documents; and (d) Borrower or the transferee shall pay all costs and expenses in connection with such transfer and assumption, without limitation, all fees and expenses incurred by Lender.

Borrower, or any subsequent owner of the Property or any portion thereof, shall do all things necessary to preserve and keep in full force and effect its and their legal existence. franchises, rights and privileges as a corporation, partnership or limited liability company, as the case may be, under the laws of the State of its formation and its right to own property and transact business in the State of Florida. It shall be a default hereunder if Borrower, or any subsequent owner of the Property or any portion thereof, shall amend, modify, transfer, assign or terminate the applicable governing documents for such entity, including its partnership agreement, certificate of partnership, operating agreement, articles of organization, regulations, articles of incorporation or bylaws, as the case may be (as applicable, the “Governing Documents”), of Borrower or such subsequent owner without the prior written consent of Lender. Borrower, or such subsequent owner of the Property, shall provide Lender with copies of any proposed amendment to its applicable Governing Documents, so that Lender may, in Lender’s sole discretion, determine whether such amendment adversely affects Lender, the Property or the security value thereof. Provided, however, that any amendment, modification, transfer, assignment or termination of Borrower’s applicable Governing Documents or any other action pursuant to which the current general partner or managing member of Borrower shall either: (i) cease to be the general partner or managing member of Borrower; or (ii) except to the extent permitted herein, cease to own or maintain a partnership or membership interest in Borrower equal to or greater than its partnership or membership interest at the time this Mortgage is executed, shall be deemed to have a material adverse effect upon Lender and the Property, and shall be a default hereunder.

Borrower shall not change its name or identity in any manner which may make any financing or continuation statement filed in connection with the Loan seriously misleading within the meaning of the UCC enacted in the State of Florida or change its jurisdiction of organization unless Borrower shall have delivered to Lender written notice thereof not less than thirty (30) days before the effective date of such change and shall have taken all action which Lender determines to be reasonably necessary or desirable to confirm and protect Lender’s security interests and rights under this Mortgage and the perfection and priority thereof.

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Borrower will not change its principal places of business unless it shall have given Lender prior written notice of its intent to do so not less than thirty (30) days in advance of the effective date of such change. Borrower shall bear all costs incurred by Lender in connection with any such change including, without limitation, Reasonable Attorney’s Fees.

In the event the ownership of the Property, or any part thereof, shall become vested in a person or entity other than Borrower, whether with or without the prior written consent of Lender, Lender may, without notice to Borrower, deal with such successor or successors in interest with reference to the Property, this Mortgage and the other Loan Documents, in the same manner and to the same extent as with Borrower without in any way vitiating or discharging Borrower’s liability hereunder or under any of the Loan Documents. No sale, transfer or conveyance of the Property, no forbearance on the part of Lender and no extension of time given by Lender to Borrower for the payment of the Note shall operate to release, discharge, modify, change or affect the original liability of Borrower, either in whole or in part, unless expressly set forth in writing executed by Lender. Notwithstanding anything contained herein to the contrary, Borrower hereby waives any right it now has or may hereafter have to require Lender to prove an impairment of its security as a condition to the exercise of Lender’s rights under this Section 32.

A sale, transfer, assignment or conveyance within the meaning of this Section shall be deemed to include, but not be limited to: (a) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (b) an agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a tenant under an Occupancy Lease or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any leases or any Rents; (c) if Borrower, any guarantor, any indemnitor, or any general partner or managing member of Borrower, is a corporationthe voluntary or involuntary sale, conveyance, transfer or pledge of such corporation’s stock (or the stock of any corporation, directly or indirectly controlling such corporation by operation of law or otherwise), or the creation or issuance of new stock by which an aggregate of more than ten percent (10%) of such corporation’s stock shall be vested in a party or parties who are not now stockholders; and (d) if Borrower, any guarantor, indemnitor, or any general partner or managing member of Borrower, is a limited partnership, general partnership, limited liability partnership, limited liability company, or joint venture, the change, removal or resignation of a general partner, managing partner, or member, or the transfer or pledge of the interest of any general partner, managing partner, or member or any profits or proceeds relating to such interest.

(A)Notwithstanding the foregoing, Lender shall permit transfers of interests in the Borrower without Lender’s prior written consent and without any transfer fee, so long as no default, or event which, with notice of the passage of time or both, could result in a default, has occurred hereunder or under the Note and (i) such transfer is to the family members, estate, heirs and/or beneficiaries (including a Testamentary Trust) of the members of Borrower named herein for estate planning purposes and/or testamentary disposition, (ii) Lender receives notice of such transfer, (iii) Lender receives copies of all transfer documents, (iv) Borrower, or the transferee, pays all costs and expenses incurred by Lender in connection with such transfer, including Reasonable Attorneys’ Fees (as hereinafter defined), and (v) such transferee assumes all obligations of Borrower or Borrower’s estate under the Note, this Mortgage, and the other Loan Documents with the same degree of liability as Borrower as of the date hereof, and (vi) Ernie

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Euler and Mike Renfro, or if either is deceased, such party’s heirs or beneficiaries having a creditworthiness acceptable to Lender, remain personally liable for the exclusions from non-recourse liability set forth in the Note and Guaranty executed by Ernie Euler and Mike Renfro of even date herewith.

33.           Further Encumbrance Prohibited: Subrogation.   So long as the Note remains unpaid, Borrower shall not, either voluntarily or involuntarily, permit the Property or any part thereof to become subject to any secondary or subordinate lien, mortgage, deed of trust, security interest or encumbrance of any kind whatsoever without the prior written consent of Lender, and the imposition of any such secondary lien, mortgage, deed of trust, security interest or encumbrance without the approval of Lender shall constitute a default hereunder, and entitle Lender, at Lender’s sole option, to declare the outstanding principal balance of the Note, all accrued and unpaid interest thereon, Prepayment Premiums (to the extent permitted by the laws of the State of Florida, late payment charges and any other amounts secured hereby to be and become immediately due and payable in full.  In the event that Lender shall hereafter give its written consent to the imposition of any such secondary lien, mortgage, deed of trust, security interest or other encumbrance upon the Property, Lender, at Lender’s sole option, shall be entitled to accelerate the maturity of the Note and exercise any and all remedies provided and available to Lender hereunder and in the other Loan Documents in the event that the holder of any such secondary lien or encumbrance shall institute foreclosure or other proceedings to enforce the same; it being understood and agreed that a default under any instrument or document evidencing, securing or secured by any such secondary lien or encumbrance shall be and constitute a default hereunder. In the event all or any portion of the proceeds of the Loan are used for the purpose of retiring debt or debts secured by prior liens on the Property, Leader shall be subrogated to the rights and lien priority of the holder or holders of the lien or liens so discharged.

34.           Conveyance of Mineral Rights Prohibited.  Borrower agrees that the making of any oil, gas or mineral lease, or the sale or conveyance of any mineral interest or right to explore for minerals under, through or upon the Property, would impair the value of the Property, and that Borrower shall have no right, power or authority to lease the Property, or any part thereof, for oil, gas or other mineral purposes, or to grant, assign or convey any mineral interest of any nature, or the right to explore for oil, gas and other minerals, without first obtaining Lender’s express written permission therefor, which permission shall not be valid until recorded among the Public Records of Brevard County, in the State of Florida. Borrower further agrees that if Borrower shall make, execute, or enter into any such lease or attempt to grant any such mineral rights without such prior written permission of Lender, then Lender shall have the option, without notice, to declare the same to be a default hereunder, and to declare the Loan immediately due and payable in full. Whether or not Lender shall consent to such lease or grant of mineral rights, Lender shall receive the entire consideration to be paid for any such lease or grant of mineral rights, with the same to be applied to the Loan notwithstanding the fact that the amount owing thereon may not then be due and payable or that the Loan is otherwise adequately secured; provided, however, that the acceptance of such consideration shall in no way impair the lien of this Mortgage on the Property or cure any existing Monetary Default.

35.           Estoppel Certification by Borrower.  Borrower, upon request of Lender therefor made either personally or by mail, shall certify in writing to Lender (or any party designated by

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Lender), in a form satisfactory to Lender or such designer, the amount of principal and interest then outstanding under the terms of the Note and any other sums due and owing under this Mortgage or any of the other Loan Documents, and whether any offsets or defenses exist against the Loan. Such certification shall be made by Borrower within ten (10) days if the request is made personally, or within twenty (20) days if the request is made by mail.

36.           Cross Default. The Note is also secured by the terms, conditions and provisions of the Assignment and, additionally, may be secured by contracts or agreements of guaranty or other security instruments.  The terms, covenants, conditions and agreements of each security instrument shall be considered a part hereof as fully as if set forth herein verbatim. Any default under this Mortgage or any of the other Loan Documents shall constitute a default hereunder and under each of the other Loan Documents. Notwithstanding the foregoing, the enforcement or attempted enforcement of this Mortgage or any of the other Loan Documents now or hereafter held by Lender shall not prejudice or in any manner affect the right of Lender to enforce any other Loan Document; it being understood and agreed that Lender shall be entitled to enforce this Mortgage and any of the other Loan Documents now or hereafter held by it in such order and manner as Lender, in its sole discretion, shall determine.

37.           Examination of Borrower’s Records.  Borrower will maintain complete and accurate books and records showing in detail the income and expenses of the Property, and will permit Lender and its agents, contractors or representatives to examine said books and records and all supporting vouchers and date during nominal business hours and from time to time upon request by Lender, in such place as such books and records are customarily kept. Borrower will furnish to Lender, within one hundred twenty (120) days after the close of each respective fiscal period annual and semi-annual financial statements (income statements and a balance sheet) for the Borrower and the Property.  These statements shall be in form reasonably acceptable to Lender, shall be prepared in accordance with generally accepted accounting principles, and shall include a rent roll, certified as true and correct by Borrower. The statements shall show in detail all income derived from and expenses incurred in connection with the ownership of the Property, including current annual sales figures for all Major Tenants of the Property if required under the Major Tenant leases or if such financial information is otherwise available.  In the event Borrower fails to provide such statements to Lender within the time prescribed above, Borrower shall pay Lender the sum of TWO HUNDRED AND NO/100 DOLLARS ($200.00) in administrative expenses for each successive month for which the statements are delinquent.  Upon a default hereunder beyond any applicable grace or cure periods, Lender shall have the right to require that said financial statements be audited and certified by acertified public accountant acceptable to Lender, at the sole cost and expense of Borrower.

In addition, at the request of Lender, but in no case more often than once a quarter or more than three (3) times during the term of the Loan, Borrower shall furnish to Lender (i) unaudited financial statements (balance sheet, income statement, cash flow statement and current rent roll) covering operation of the Property for periods other than those set forth in the preceding paragraph; (ii) unaudited financial statements (balance sheets, income statements, and cash flow statements) for Borrower, its general partner(s), shareholder(s) or member(s) (whichever is applicable) and for such other principals of Borrower as designated by Lender; and (iii) a portfolio analysis showing annualized cash flow statements (including debt service payments) for all real properties owned by Borrower, its general partner(s), shareholder(s), or

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member(s) (whichever is applicable) and for such designated principals. All such statements shall be certified to Lender to be complete, correct, and accurate by the individual (for an individual’s statements) or by an authorized representative of the entity (if statements are for a partnership, corporation or limited liability company).

38.Alteration, Removal and Change in Use of Property Prohibited. Borrower covenants and agrees to permit or suffer none of the following without the prior written consent of Lender:

(a)           Any structural alteration of, or addition to, the Improvements now or hereafter situated upon the Real Property, or the addition of any new buildings or other structure(s) thereto, other than the erection or removal of non-load bearing interior walls provided, however, that the initial construction of World Savings Bank and other tenant buildout pursuant to approved Occupancy Leases (which is ongoing as of the date hereof) isspecifically permitted; or

(b)           The removal, transfer, sale or lease (except for Occupancy Leases) of the Property, except that the removal, replacement or substitution of fixtures, equipment, machinery, apparatus and articles of personal property (replacement or substituted items must be of like or better quality than the removed items in their original condition) encumbered hereby may be made in the normal course of business; or

(c)           The use of any of the Improvements now or hereafter situated on the Real Property for any purpose other than the Existing Use and related facilities.

39.           Future Advances Secured.    This Mortgage shall secure not only existing indebtedness, but also future advances, whether such advances are obligatory or to be made at the option of Lender. Upon the request of Borrower, and at Lender’s option prior to release of this Mortgage, Lender may make future advances to Borrower. All future advances with interest thereon shall be secured by this Mortgage to the same extent as if such future advances were made on the date of the execution of this Mortgage unless the parties shall agree otherwise in writing, but the total secured indebtedness shall not exceed at any one time a maximum principal amount equal to double the face amount of the Note plus interest and costs of collection, including court costs and Reasonable Attorneys’ Fees. Any advances or disbursements made for the benefit or protection of or the payment of taxes, assessments, levies or insurance upon the Property, with interest on such disbursements as provided herein, shall be added to the principal balance of the Note and collected as a part thereof. To the extent that this Mortgage may secure more than one note, a default in the payment of any such mortgage note shall constitute a default in the payment of all such notes. The filing of any notice limiting the maximum amount that may be secured by this Mortgage pursuant to Florida Statutes Section 697.04 or otherwise shall be and constitute a default under this Mortgage.

40.            Effect of Security Agreement. Borrower agrees to, and shall upon the request of Lender, execute and deliver to Lender, in form and content satisfactory to Lender, such financing statements, descriptions of property and such further assurances as Lender, in Lender’s sole discretion, may from time to time consider necessary to create, perfect, continue and preserve the lien and encumbrances hereof, and the security interest granted herein, upon and in the Property.

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Without the prior written consent of Lender, Borrower shall not create or suffer to be created, pursuant to the UCC, any other security interest in such real and personal property and fixtures described herein. Upon the occurrence of a default hereunder or Borrower’s breach of any other covenants or agreements between the parties entered into in conjunction herewith, Lender shall have the remedies of a secured party under the UCC as provided in Section 25, and at Lender’s option, the remedies provided for in this Mortgage and the other Loan Documents. Lender, at the expense of Borrower, may cause such statements, descriptions and assurances, as herein provided in this Section 40, and this Mortgage, to be recorded and re-recorded, filed and refiled, at such times and in such places as may be required or permitted by law to so create, perfect and preserve the lien and encumbrance hereof upon all of the Property.

41.            Terms of Application Survive Closing.   The terms and provisions of the Application for Mortgage Loan dated February 18, 2003, modified by Lender on May 27, 2003, further modified by Lender on January 27, 2003, and accepted by Borrower on February 25, 2004 and any subsequent amendments thereto (the “Application”), executed by and between Borrower and Lender, are incorporated herein by reference.  All terms, covenants, conditions and agreements of the Application not expressly set forth in this Mortgage and any of the other Loan Documents shall survive the execution and delivery hereof, and remain in full force and effect. In the event any conflict exists between the terms, covenants, conditions and agreements of the Application and the Loan Documents, the terms, covenants, conditions and agreements of the Loan Documents shall prevail.

42.            Successors and Assigns; Terminology.   The provisions hereof shall be binding upon Borrower and the heirs, personal representatives, trustees, successors and assigns of Borrower, and shall inure to the benefit of Lender, its successors and assigns. Where more than one (1) Borrower is named herein, the obligations and liabilities of said Borrower shall be joint and several.

Wherever used in this Mortgage, unless the context clearly indicates a contrary intent or unless otherwise specifically provided herein: (a) the word “Borrower” shall mean Borrower and/or any subsequent owner or owners of the Property; (b) the word “Lender” shall mean Lender or any subsequent holder or holders of this Mortgage; (c) the word “Note” shall mean the Note(s) secured by this Mortgage; and (d) the word “person” shall mean an individual, trustee, trust, corporation, partnership, limited liability corporation, limited liability partnership, joint venture or unincorporated association. As used herein, the phrase “Reasonable Attorneys’ Fees” shall mean fees charged by attorneys selected by Lender based upon such attorneys’ then prevailing hourly rates as opposed to any statutory presumption specified by any statute then in effect in the State. As used herein words of any gender shall include all other genders.

43.            Notices.   All notices, reports, requests or other written instruments required or permitted hereunder, shall be in writing, signed by the party giving or making the same, and shall be sent hand-delivered, effective upon receipt, sent by United States Express Mail or by a nationally recognized overnight courier, effective upon receipt, or sent by United States registered or certified mail, postage prepaid, with return receipt requested, deemed effective on the earlier of the day of actual delivery as shown by the addressee’s return receipt or the expiration of three (3) business days after the date of mailing, addressed to the party intended to

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receive the same at the address set forth below or at such other address as shall be given in writing by any party to another (“Written Notice”):

If to Borrower:	WICKHAM & 95 CORP.
	c/o Matthew Development
	7331 Office Park Place, Suite 200
	Viera, Florida 32940
	Attention: Mike Renfro and Ernie Euler
with a copy to:	GREENBERG TRAURIG
	401 East Las Olas Boulevard, Suite 2000
	Ft. Lauderdale, Florida 33301
	Attn: Peter Tunis, Esquire
If to Lender:	NATIONWIDE LIFE INSURANCE COMPANY
	One Nationwide Plaza
	Columbus, Ohio 43215-2220
	Attention: Real Estate Investment Department, 34T

44.           Governing Law; Waiver of Jury Trial; Severability. BORROWER, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES HEREBY THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY TORT ACTION, AGAINST LENDER, ITS SUCCESSORS AND ASSIGNS, BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO OR IN CONNECTION WITH ANY OF THE LOAN DOCUMENTS, THE LOAN OR ANY COURSE OF CONDUCT, ACT, OMISSION, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, LENDER’S DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH LENDER), IN CONNECTION WITH THE LOAN OR THE LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION, IN ANY COUNTERCLAIM WHICH ANY PARTY MAY BE PERMITTED TO ASSERT THEREUNDER, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL LENDER, ITS SUCCESSORS OR ASSIGNS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS PROFITS OR OPPORTUNITY) AND BY ITS EXECUTION HEREOF, BORROWER WAIVES ANY RIGHT TO CLAIM OR SEEK ANY SUCH DAMAGES. THIS MORTGAGE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE FLORIDA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. THE PARTIES HERETO IRREVOCABLY (A) AGREE THAT ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS MORTGAGE MAY BE BROUGHT IN A COURT OF RECORD IN THE STATE OR IN THE COURTS OF THE UNITED STATES OF AMERICA LOCATED IN SUCH STATE. (B) CONSENT TO THE

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NON-EXCLUSIVE JURISDICTION OF EACH SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING, AND (C) WAIVE ANY OBJECTION WHICH IT MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY OF SUCH COURTS AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. IF ANY CLAUSES OR PROVISIONS HEREIN CONTAINED OPERATE, OR WOULD PROSPECTIVELY OPERATE, TO INVALIDATE THIS MORTGAGE, THEN SUCH CLAUSES OR PROVISIONS ONLY SHALL BE HELD FOR NAUGHT, AS THOUGH NOT HEREIN CONTAINED, AND THE REMAINDER OF THIS MORTGAGE SHALL REMAIN OPERATIVE AND IN FULL FORCE AND EFFECT.

45.           Rights of Lender Cumulative.   The rights of Lender arising under the terms, covenants, conditions and agreements contained in this Mortgage shall be separate, distinct and cumulative, and none of them shall be in exclusion of the others. No act of Lender shall be construed as an election to proceed under any one provision herein to the exclusion of any other provisions, anything herein or otherwise to the contrary notwithstanding.    If Borrower is comprised of more than one (1) person or entity, then the liability of each such person and entity hereunder shall be joint and several.

46.           Modifications.  This Mortgage cannot be changed, altered, amended or modified except by an agreement in writing and in recordable form, executed by both Borrower and Lender.

47.           Exculpation.   Notwithstanding anything contained herein to the contrary, the liability of Borrower is subject to the limited recourse provisions contained in the Exculpation section of the Note, which are incorporated herein and made a part hereof by reference as if fully set forth herein.

48.           Full Recourse. Notwithstanding any provisions in this Mortgage to the contrary, including without limitation the provisions set forth in the section captioned “Exculpation” hereinabove. Borrower shall be personally liable, jointly and severally, for the entire Loan secured by this Mortgage (including all principal, interest and other charges) in the event (a) Borrower violates the covenant governing the placing of subordinate financing on the Property as set forth in this Mortgage; (b) Borrower violates the covenant restricting transfers of interests in the Property or transfers of ownership interests in Borrower as set forth in this Mortgage; or (c) Borrower or any guarantor violates the provisions of Section 22 of this Mortgage, or there is filed against Borrower or any guarantor or indemnitor of the Loan, a petition in bankruptcy or for the appointment of a receiver, or there commences under any bankruptcy or insolvency law, proceedings for Borrower’s relief, or for the compromise, extension, arrangement or adjustment of Borrower’s obligations which is not dismissed within thirty (30) days after the filing of same.

49.           Lender is Not a Joint Venturer or Partner. Borrower and Lender acknowledge and agree that in no event shall Lender be deemed to be a partner or joint venturer with Borrower or any member of Borrower. Without limitation of the foregoing, Lender shall not be deemed to be a partner or joint venturer on account of its becoming a mortgagee in possession or exercising any rights pursuant to this Mortgage or pursuant to any other instrument or document evidencing or securing any of the indebtedness secured hereby, or otherwise.

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50.           Captions. The captions set forth at the beginning of the various Sections of this Mortgage are for convenience only, and shall not be used to interpret or construe the provisions of this Mortgage.

51.           Trading With the Enemy Act. Neither the making of the Loan to Borrower (or the use of its proceeds) nor the execution of any of the Loan Documents will violate the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto.  In addition, Borrower’ warrants, represents and covenants that neither Borrower, Guarantor nor any of their respective affiliated entities is or will be an entity or person (i) that is listed in the Annex to, or isotherwise subject to the provisions of Executive Order 13224 issued on September 24, 2001 (“EO13224”), (ii) whose name appears on the United States Treasury Department’s Office of Foreign Assets Control (“OFAC”) most current list of “Specifically Designed National and Blocked Persons” (which list may be published from time to time in various mediums including, but not limited to, the OFAC website, http:www.treas.gov/ofac/t11sdn.pdf), (iii) who commits, threatens to commit or supports “terrorism”, as that term is defined in EO 13224, or (iv) who is otherwise affiliated with any entity or person listed in subparts (i) – (iv) above (any and all parties or persons described in subparts [i] — [iv] above are herein referred to as a “Prohibited Person”).  Borrower covenants and agrees that neither Borrower, Guarantor nor any of their respective affiliated entities will (i) conduct any business, nor engage in any transaction or dealing, with any Prohibited Person, including, but not limited to, the making or receiving of any contribution of funds, goods, or services, to or for the benefit of a Prohibited Person, or (ii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in EO13224. Borrower further covenants and agrees to deliver (from time to time) to Lender any such certification or other evidence as may be requested by Lender in its sole and absolute discretion, confirming that (i) neither Borrower nor Guarantor is a Prohibited Person and (ii) neither Borrower nor Guarantor has engaged in any business, transaction or dealings with a Prohibited Person, including, but not limited to, the making or receiving of any contribution of funds, goods, or services, to or for the benefit of a Prohibited Person.

52.           Replacement Documents. Upon receipt of an affidavit of an officer of Lender as to the loss, theft, destruction or mutilation of the Note or any other Loan Document which is not of public record, and, in the case of any such mutilation, upon surrender and cancellation of such Note or other Loan Document, Borrower, at its expense, will issue, in lieu thereof, a replacement Note or other Loan Document, dated the date of such lost, stolen, destroyed or mutilated Note or other Loan Document in the same principal amount thereof and otherwise of like tenor.

53.           Sole Discretion of Lender. Wherever pursuant to this Mortgage Lender exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Lender, the decision of Lender to approve or disapprove or to decide that arrangements or terms are satisfactory or not satisfactory shall be in the sole discretion of Lender and shall be final and conclusive, except as may be otherwise expressly and specifically provided herein.

54.           Secondary Market. Lender may, at any time, sell, transfer or assign the Note, this Mortgage, the Assignment and the other Loan Documents, and any or all servicing rights with

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respect thereto, or grant participation therein or issue mortgage pass-through certificates or other securities evidencing a beneficial interest in a rated or unrated public offering or private placement. Lender may forward to each Investor and each prospective Investor, all documents and information which Lender now has or may hereafter acquire relating to the Loan and to Borrower, any guarantor and the Property, whether furnished by Borrower, any guarantor or otherwise, as Lender determines necessary or desirable.

[SIGNATURES BEGIN ON NEXT PAGE]

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IN WITNESS WHEREOF, Borrower has caused this Mortgage to be executed as of the day and year first above written.

Signed, sealed and delivered in the presence of:			WICKHAM & 95 CORP., a Florida corporation
/s/ Nelson R Hamilton			By:	/s/ Ernie Euler
Name:	Nelson R Hamilton		Name:			ERNIE EULER
/s/ Charine Lewis			Its:		PRESIDENT
Name:		CHARINE LEWIS	(CORPORATE SEAL)

STATE OF FLORIDA

COUNTY OF BREVARD

The foregoing instrument was acknowledged before me this 16^th day of February, 2004, by ERNIE EULER, as President of WICKHAM & 95 CORP., a Florida corporation on behalf of the corporation.  He is personally known to me.

Notary Public
Name:	Charine Lewis
Commission No.:		DD174578
My Commission Expires:			12-29-06
(SEAL)

Charine C Lewis
My Commission DD174578
Expires December 29, 2006

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Signed, sealed and delivered in the presence of:			LOT 90, L.L.C., a Florida limited liability
			company
/s/ Nelson R Hamilton			By:	/s/ Robert M. Renfro
Name:		Nelson R Hamilton	Name:		ROBERT M. RENFRO
/s/ Charine Lewis			Its:	Manager
Name:	CHARINE LEWIS		(CORPORATE SEAL)

STATE OF FLORIDA

COUNTY OF BREVARD

The foregoing instrument was acknowledged before me this 16^th day of February, 2004, by ROBERT M. RENFRO, as Manager of LOT 90, L.L.C., a Florida limited liability company on behalf of the company.  He is personally known to me.

Notary Public
Name:	Charine Lewis
Commission No.:			DD174578
My Commission Expires:					12-29-06
(SEAL)
				Charine C Lewis My Commission DD174578 Expires December 29, 2006

39

Signed, sealed and delivered in the presence of:		LOT 91, L.L.C., a Florida limited liability
		company
/s/ Nelson R Hamilton		By:	/s/ Robert M. Renfro
Name:	Nelson R Hamilton	Name:		ROBERT M. RENFRO
/s/ Charine Lewis		Its:	Manager
Name:	CHARINE LEWIS	(CORPORATE SEAL)

STATE OF FLORIDA

COUNTY OF BREVARD

The foregoing instrument was acknowledged before me this 16^th day of February, 2004, by ROBERT M. RENFRO, as Manager of LOT 91, L.L.C., a Florida limited liability company on behalf of the company.  He is personally known to me.

Notary Public
Name:	Charine Lewis
Commission No.:			DD174578
My Commission Expires:					12-29-06
(SEAL)
				Charine C Lewis My Commission DD174578 Expires December 29, 2006

40

		NATIONWIDE LIFE INSURANCE COMPANY, an Ohio corporation
/s/ Marcia M. Billman		By:	/s/ Todd A. Harrop
Name:	Marcia M. Billman	Name:			, Vice President
				TODD A. HARROP
				ASSOCIATE VICE PRESIDENT
/s/ Sheri Perkins				MORTGAGE LOAN ACQUISITIONS
		(CORPORATE SEAL)
Name:	Sheri Perkins

STATE OF OHIO

COUNTY OF FRANKLIN

The foregoing instrument was acknowledged before me this 10 day of February, 2004 by Todd A. Harrop, as Associate Vice President of NATIONWIDE LIFE INSURANCE COMPANY, an Ohio corporation, on behalf of the corporation.  He is personally known to me.

	Notary Public
	Name:	Marcia M. Billman
	Commission No.:
	My Commission Expires:
	(SEAL)
			MARCIA M. BILLMAN Notary Public, State of Ohio My Commission Expires 12-08-07

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EXHIBIT “A”

PARCEL 1

A parcel of land lying within Section 9 and 10, Township 26 South, Range 36 East, Brevard County, Florida, more particularly described as follows:

From the Southeast corner of said Section 9; thence South 88° 40’ 59” West, along the South line of said Section 9, a distance of 34.65 feet; thence North 01° 19’ 01” West, 249.21 feet; thence North 14° 31’ 21” West 786.66 feet; thence North 75° 28’ 39’ East, 270.19 feet to the Point of Beginning; thence North 14° 31’ 21” West 626.54 feet, thence North 75° 29’ 02” East 181.34 feet to the point of a curve, concave Southerly, having a radius of 1900.00 feet; thence Easterly along the arc of said curve to the right, a distance of 360.61 feet, through a central angle of 10° 52’ 27”, to a point of reverse curve, concave Northerly, having a radius of 2650.00 feet, thence Easterly along the arc of said curve to the left, a distance of 169.62 feet, through a central angle of 3° 40’ 02”; to the Westerly right of way of Interstate of 95 (as described in Circuit Court Book 53, Pages 359 through 363, public records of Brevard County, Florida); thence South 14° 30’ 59” East, along the said Westerly right of way a distance of 430.56 feet; thence South 04° 15’ 31” East, 437.30 feet; thence South 75° 28’ 39” West 544.32 feet; thence North 14° 31’ 21” West, 295.16 feet; thence South 75° 28’ 39” West, 84.97 feet to the Point of Beginning.

PARCEL 2

Lot 2, WAL-MART AT VIERA, according to the plat thereof recorded in Plat Book 48, page 79, Public Records of Brevard County, Florida.

PARCEL 3

Lot 2, WAL-MART AT VIERA, according to the plat thereof recorded in Plat Book 48, page 79, Public Records of Brevard County, Florida.

PARCEL 4

Lot 4, WAL-MART AT VIERA, according to the plat thereof recorded in Plat Book 48, pages 79, 80 and 81, Public Records of Brevard County, Florida.

PARCEL 5

Non-exclusive easements for the benefit of Parcels 1 through 4 above for ingress, egress, utilities, drainage and signage, as created and described in the instrument entitled Easements with Covenants and Restrictions Affecting Land recorded in Official Records Book 4406 page 2162, public records of Brevard County, Florida.

PARCEL 6

Intentionally deleted.

PARCEL 7

Non-exclusive easement for the benefit of Parcel 1 above, for ingress and egress, as created and described in the Spyglass Hill Road Easement Agreement recorded in Official Records Book 4209, page 2355, less and except that portion of said easement which was dedicated to Brevard County by the plat of Napolo Drive recorded in Plat Book 48, page 30, public records of Brevard County, Florida.

PARCEL 8

Intentionally deleted.

PARCEL 9

Non-exclusive easements for the benefit of Parcels 1 through 4 above, for drainage purposes, as created and described in the Declaration and Grant of Storm Water Retention and Drainage Easement Agreement recorded in Official Records Book 4405, page 1938, public records of Brevard County, Florida.

PARCEL 10

Non-exclusive easement for the benefit of Parcels 2 through 4 above, for ingress and egress purposes, as created and described in the Spyglass Hill Road Easement Agreement recorded in Official Records Book 4405, page 1998, as re-recorded in Official Records Book 4462, page 1656, less and except that portion of said easement which was dedicated to Brevard County by the plat of Napolo Drive recorded in Plat Book 48, page 30, public records of Brevard County, Florida.

EX-10.492

Exhibit 10.492

Borrower Name:	Inland Western Viera Lake Andrew, LLC
Project Name:	Shoppes at Lake Andrew
	Viera, Florida

THIS NOTE IS A RENEWAL NOTE, AMENDING, RESTATING AND RENEWING THAT CERTAIN FUTURE ADVANCE AND RENEWAL NOTE BY WICKHAM & 95 CORP., A FLORIDA CORPORATION, LOT 90, L.L.C., A FLORIDA LIMITED LIABILITY COMPANY, AND LOT 91, L.L.C., A FLORIDA LIMITED LIABILITY COMPANY TO AND IN FAVOR OF NATIONWIDE LIFE INSURANCE COMPANY, AN OHIO CORPORATION, DATED FEBRUARY 27, 2004 IN THE ORIGINAL PRINCIPAL AMOUNT OF FIFTEEN THOUSAND EIGHT HUNDRED FIFTY AND NO/100 DOLLARS ($15,850,000.00) (THE “ORIGINAL NOTE”).

FLORIDA DOCUMENTARY STAMP TAXES ARE BEING PAID IN CONNECTION WITH THE AMOUNT OF FIFTEEN MILLION SIX HUNDRED FIFTY-SIX THOUSAND FIVE HUNDRED ELEVEN AND NO/100 DOLLARS ($15,656,511.00) BEING ADVANCED IN CONNECTION HEREWITH.  DOCUMENTARY STAMPS IN THE AMOUNT OF FIFTY-FIVE THOUSAND FOUR HUNDRED SEVENTY-FIVE AND NO/100 DOLLARS ($55,475,00.00) HAVE BEEN AFFIXED TO THE ORIGINAL ASSUMPTION AGREEMENT OF EVEN DATE HEREWITH WHICH, TOGETHER WITH THE NOTICE OF FUTURE ADVANCE, MORTGAGE MODIFICATION AND AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT DATED FEBRUARY 27, 2004 AND RECORDED ON MARCH 1, 2004 IN OFFICIAL RECORDS BOOK 5212, PAGE 2259 OF THE PUBLIC RECORDS OF BREVARD COUNTY, FLORIDA, AS AMENDED AND RESTATED BY THAT CERTAIN MORTGAGE MODIFICATION AND AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT OF EVEN DATE HEREWITH, SECURES THIS NOTE.  THE OUTSTANDING PRINCIPAL BALANCE OF THE ORIGINAL NOTE IN THE AMOUNT OF FIFTEEN MILLION SIX HUNDRED FIFTY-SIX THOUSAND FIVE HUNDRED ELEVEN AND NO/100 DOLLARS ($15,656,511.00) EXEMPT FROM FLORIDA INTANGIBLE TAXES PURSUANT TO FLORIDA STATUTES SECTION 199.145.3.  THE ORIGINAL OF THE AFORESAID ORIGINAL NOTE IS ATTACHED HERETO.

RENEWAL NOTE

$15,656,511.00 Orlando, Florida

December        , 2004

FOR VALUE RECEIVED, THE UNDERSIGNED, INLAND WESTERN VIERA LAKE ANDREW, L.L.C., a Delaware limited liability company (“Borrower”) whose Federal Tax Identification Number is 20-1930110 promises to pay to the order of NATIONWIDE LIFE INSURANCE COMPANY, an Ohio corporation, its successors and assigns (“Lender”), the principal sum of FIFTEEN MILLION SIX HUNDRED FIFTY-SIX THOUSAND FIVE

HUNDRED ELEVEN AND NO/100 DOLLARS ($15,656,511.00), together with interest on the principal balance of this Renewal Note (the “Note”), from time to time remaining unpaid, from the date of disbursement by Lender at the applicable interest rate hereinafter set forth together with all other sums due hereunder or under the terms of the Mortgage (as hereinafter defined) in lawful money of the United States of America which shall be legal tender in payment of all debts at the time of such payment the (“Loan”).  Both principal and interest and all other sums due hereunder shall be payable at the office of Lender at One Nationwide Plaza, Columbus, Ohio 43215-2220, Attention: Real Estate Investment Department, 34T, or at such other place either within or without the State of Ohio as Lender may from time to time designate.  Said principal and interest shall be paid over a term, at the times, and in the manner set forth below, to wit:

Payment Provision:

(A)Interest accrued on the unpaid principal balance of this Note from the date of disbursement hereof through December 31, 2004 at the rate of Six and Fifty-Four One Hundredths percent (6.54%) per annum, shall be due and payable on the disbursement date of the Loan;

(B)Thereafter, monthly installments of interest only on the unpaid principal balance of this Note at the rate of Five percent (5.00%) per annum, shall be due and payable in Sixty (60) consecutive monthly installments commencing on February 1, 2005 and continuing on the first day of each calendar month thereafter, with each such installment to be in the sum of Sixty-Five Thousand Two Hundred Thirty-Five and 46/100 Dollars ($65,235.46), without deduction or set- off.

(C)Thereafter, monthly installments of principal and interest on the unpaid principal balance of this Note at the rate of Six and Fifty-Four One Hundredths percent (6.54%) per annum, shall be due and payable in Forty-nine (49) consecutive monthly installments commencing February 1, 2010 and continuing on the first day of each calendar month thereafter, with each such installment to be in the sum of One Hundred Seven Thousand Four Hundred Sixteen and 84/100 Dollars ($107,416.84), without deduction or set-off.

Maturity.

The unpaid principal balance of this Note and all accrued unpaid interest thereon, (if not sooner paid), shall be due and payable in full on March 1, 2014 (the “Maturity Date”).

Application of Payments.

All payments shall be applied first to any late payment or other such charges as provided in this Note or in the Mortgage, then to accrued unpaid interest on this Note, and the balance, if any, shall be applied to the reduction of the outstanding principal balance of this Note (subject to the terms hereof).  Interest due hereunder shall be calculated on the basis of a three hundred sixty (360)-day year (composed of twelve (12) thirty (30)-day months) except the payment due under payment provision (A) above which shall be calculated on the actual number of days; provided, however, in no event shall the rate of interest payable under the terms of this Note exceed the maximum rate of interest permitted under applicable law.

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Late Payment Charge.

Prior to the acceleration or maturity of this Note, Lender may collect a late payment charge in an amount equal to five percent (5%) of any full monthly installment not received by the due date.  Such late payment charge shall constitute liquidated damages for the purpose of covering the extra expenses involved in handling delinquent installments and Lender may collect such late payment charges even though it has not given any notice to Borrower of such late payment or a cure period, if any, has not passed; provided that such late payment charge shall not, together with other interest to be paid on the indebtedness evidenced by this Note or indebtedness arising under any instrument securing the payment hereof, exceed the maximum interest permitted under applicable law. Borrower acknowledges that the late payment charge is a fair and reasonable estimate, considering all of the circumstances existing on the date of execution of this Note, of the cost the Lender will incur by reason of such late payment.

Prepayment.

(A)Except as hereinafter provided, Borrower shall not have the right to prepay all or any part of the Loan at any time. Borrower shall have the right to prepay, in full but not in part, the Loan evidenced by this Note, provided that, as conditions precedent, Borrower: (i) gives Lender not less than thirty (30) days’ prior Written Notice (as defined in the Mortgage) of Borrower’s intention to so prepay this Note; and (ii) pays to Lender the Prepayment Premium (as hereinafter defined), if any, then due and payable to Lender as hereinafter provided.  As used herein, the term “Prepayment Premium” shall mean a sum equal to the greater of either: (i) one percent (1%) of the outstanding principal balance of this Note at the time of prepayment; or (ii) an amount equal to the sum of (a) the present value of the scheduled monthly payments due under this Note from the date of prepayment to the Maturity Date, and (b) the present value of the amount of principal and interest due under this Note on the Maturity Date (assuming all scheduled monthly payments due prior to the Maturity Date were made when due), minus (c) the outstanding principal balance of this Note as of the date of prepayment.  The present values described in (a) and (b) shall be computed on a monthly basis as of the date of prepayment discounted at the yield-to-maturity of the U.S. Treasury Note or Bond closest in maturity to the Maturity Date of this Note as reported in The Wall Street Journal (or, if The Wall Street Journal is no longer published, as reported in such other daily financial publication of national circulation which shall be designated by Lender) on the fifth (5) business day preceding the date of prepayment.  Borrower shall be obligated to prepay this Note on the date set forth in the notice to Lender required hereinabove, after such notice has been delivered to Lender.  Notwithstanding the foregoing or any other provision herein to the contrary, if Lender elects to apply insurance proceeds, condemnation awards, or any escrowed amounts, if applicable, to the reduction of the outstanding principal balance of this Note in the manner provided in the Mortgage, no Prepayment Premium shall be due or payable as a result of such application, and the monthly installments due and payable hereunder shall be reduced accordingly.

(B)In the event the Maturity Date of the Loan evidenced by this Note is accelerated by Lender at any time due to a default by Borrower under this Note or any of the other Loan Documents (as hereinafter defined), then a tender of payment in an amount necessary to satisfy the entire outstanding principal balance of this Note together with all accrued unpaid interest hereon made by Borrower, or by anyone on behalf of Borrower, at any time prior to, at, or as a

3

result of, a foreclosure sale or sale pursuant to power of sale, shall constitute a voluntary prepayment hereunder prior to the contracted Maturity Date of this Note thus requiring the payment to Lender of a Prepayment Premium equal to the applicable Prepayment Premium as set forth in paragraph (A) above; provided, however, that in the event such Prepayment Premium is construed to be interest under the laws of the State of Florida in any circumstance, such payment shall not be required to the extent that the amount thereof, together with other interest payable hereunder, exceeds the maximum rate of interest that may be lawfully charged under applicable law.

(C)Notwithstanding anything contained herein to the contrary, during the ninety (90)-day period immediately preceding the Maturity Date of this Note, the entire outstanding principal balance and all accrued unpaid interest on this Note may be prepaid in full, but not in part, at par, without incurring a Prepayment Premium.

Additional Conditions.

This Note is secured by, among other things, that certain Notice Of Future Advance, Mortgage Modification and Amended and Restated Mortgage and Security Agreement dated February 27, 2004 and recorded on March 1, 2004 in Official Records Book 5212, Page 2259 of the Public Records of Brevard County, Florida, as assumed by Borrower pursuant to that certain Assumption Agreement of even date herewith to be recorded in the Public Records of Brevard County, Florida and as amended and restated by that certain Mortgage Modification and Amended and Restated Mortgage and Security Agreement of even date herewith to be recorded in the Public Records of Brevard County, Florida (the “Mortgage”), and by an Amended and Restated Assignment of Leases, Rents and Profits of even date herewith to be recorded in the Public Records of Brevard County, Florida (the “Assignment”), encumbering certain real property described therein and located in Brevard County, State of Florida and certain other property, all as more particularly described in the Mortgage (collectively, the “Property”).  The Mortgage and the Assignment contain terms and provisions which provide grounds for acceleration of the Loan evidenced by this Note, together with additional remedies in the event of default hereunder or thereunder.  Failure on the part of Lender to exercise any right granted herein or in the Mortgage or the Assignment or any other Loan Document shall not constitute a waiver of such right, or preclude Lender’s subsequent exercise and enforcement thereof.  This Note, the Mortgage, the Assignment and all other documents and instruments executed as further evidence of, as additional security for, or executed in connection with, the Loan evidenced by this Note are hereinafter collectively referred to as the “Loan Documents”.

Except as otherwise provided herein, all parties to this Note, including endorsers, sureties and guarantors, if any, hereby jointly and severally waive presentment for payment, demand, protest, notice of protest, notice of demand, notice of nonpayment, notice of dishonor, notice of intent to accelerate the maturity of this Note, notice of acceleration of the maturity of this Note, and any and all other notices and demands whatsoever, and agree to remain bound hereby until the principal, interest and all other obligations arising under this Note are paid in full, notwithstanding any extensions of time for payment which may be granted by Lender, even though the period of extension be indefinite, and notwithstanding any inaction by, or failure to assert any legal rights available to Lender pursuant to the terms and conditions of this Note.

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If the obligations evidenced by this Note, or any part thereof, are placed in the hands of an attorney or other person for collection, whether by suit or otherwise, at any time, or from time to time, Borrower shall be liable to Lender, in each instance, for all costs and expenses incurred in connection therewith, including, without limitation, Reasonable Attorneys’ Fees (as hereinafter defined).

Default.

If Borrower defaults under this Note or under any of the other Loan Documents, then in any or all of such events, at the option of Lender, the entire outstanding principal balance of this Note, together with all accrued unpaid interest thereon and all other obligations arising under this Note or any of the other Loan Documents, may be accelerated by Lender and may become and be immediately due and payable then or thereafter as Lender may elect, regardless of the Maturity Date hereof.  All such amounts shall bear interest after maturity, by acceleration or otherwise, at the lesser of either: (i) the highest rate of interest then allowed by the laws of the State of Florida or, if controlling, the laws of the United States; or (ii) the then applicable interest rate of this Note plus five hundred (500) basis points per annum.

During the existence of any such default, which remains uncured beyond any applicable grace or cure period, Lender may apply any sums received, including but not limited to insurance proceeds or condemnation awards, to any amount then due and owing hereunder or under the terms of any of the other Loan Documents as Lender may determine.  Neither the right nor the exercise of the right herein granted unto Lender to apply such proceeds as aforesaid shall serve to cure the default or preclude Lender from exercising its option to cause the entire Loan evidenced by this Note to become immediately due and payable by reason of Borrower’s default under the terms of this Note or any of the other Loan Documents.

Notwithstanding any provisions herein to the contrary, Lender’s right, power and privilege to accelerate the maturity of the indebtedness evidenced hereby shall be conditioned upon, (i) with respect to any Monetary Default (as hereinafter defined), Lender giving Borrower Written Notice of such Monetary Default and a five (5) day period after such notice is given within which to cure such Monetary Default; provided, however, that Lender shall not be required to give such notice and right to cure as to Monetary Defaults, which occur during any Loan Year (hereinafter defined) if Lender has previously given Written Notice of a Monetary Default during such Loan Year; and (ii) with respect to any Non-Monetary Default (as hereinafter defined), Lender giving Borrower Written Notice of such Non-Monetary Default and a thirty (30)-day period, after the date of such notice, within which to cure such Non-Monetary Default, unless such Non-Monetary Default cannot reasonably be cured within said thirty (30)-day time period, in which event Borrower shall have an extended period of time to complete such cure, provided that action to cure such Non-Monetary Default has commenced within said thirty (30)-day period and Borrower is, in Lender’s sole judgment, not diminishing or impairing the value of the Property, and is diligently pursuing a cure to completion, but in no event longer than ninety (90) days.  It is understood and agreed that the agreement of Lender to provide notice and an opportunity to cure a Monetary Default does not waive Lender’s right to any late payment charge.  As used herein, the term “Loan Year” shall mean each twelve (12) month period beginning with January 1, 2005 and each anniversary thereof.  Any notice required hereunder shall be given as provided in the Mortgage.  Except as provided hereinabove, Lender shall have

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no obligation to give Borrower notice of, or any period to cure, any Monetary Default or any Incurable Default (as hereinafter defined) prior to exercising Lender’s right, power and privilege to accelerate the maturity of the Loan evidenced hereby, to declare the same to be immediately due and payable, and to exercise all other rights and remedies herein granted or otherwise available to Lender at law or in equity. As used herein, the term “Monetary Default” shall mean any default which can be cured by the payment of money, including but not limited to, the payment of principal and/or interest due under this Note and the payment of taxes, assessments and insurance premiums when due as provided in the Mortgage.  As used herein, the term “Non-Monetary Default” shall mean any default which is not a Monetary Default or an Incurable Default. As used herein, the term “Incurable Default” shall mean either: (i) any voluntary or involuntary sale, assignment, mortgaging or transfer of the Property or ownership interests in Borrower in violation of the covenants of the Mortgage; or (ii) if Borrower, or any person or entity comprising Borrower, should make an assignment for the benefit of creditors, become insolvent, or file (or have filed against it) a petition in bankruptcy (including but not limited to, a petition seeking a rearrangement or reorganization) which is not dismissed within thirty (30) days after the filing of same.

Notwithstanding any provision of this Note to the contrary, during any period of default and regardless of any cure period applicable to such default, in each instance under this Note, the Mortgage, or any of the other Loan Documents in which either: (i) Borrower is permitted to take a material action without Lender’s consent; or (ii) Lender’s consent is to be exercised reasonably, Lender’s consent shall be required and shall be granted or withheld in Lender’s sole and absolute discretion.

Savings Clause; Severability.

It is the intent of Borrower and Lender in the execution of this Note and all other instruments now or hereafter securing this Note to contract in strict compliance with applicable usury law. In furtherance thereof, Lender and Borrower stipulate and agree that none of the terms and provisions contained in this Note, or in any other instrument executed in connection herewith, shall ever be construed to create a contract to pay interest at a rate in excess of the maximum interest rate permitted to be charged by applicable law. Neither Borrower nor any guarantors, endorsers or other parties now or hereafter becoming liable for payment of this Note shall ever be required to pay interest on this Note at a rate in excess of the maximum interest that may be lawfully charged under applicable law, and the provisions of this section shall control over all other provisions of this Note and any other instruments now or hereafter executed in connection herewith which may be in apparent conflict herewith.  Lender expressly disavows any intention to charge or collect excessive unearned interest or finance charges in the event the maturity of this Note is accelerated.  If the maturity of this Note shall be accelerated for any reason or if the principal of this Note is paid prior to the end of the term of this Note, and as a result thereof the interest received for the actual period of existence of the Loan evidenced by this Note exceeds the maximum permitted by applicable law, Lender shall refund to Borrower the amount of such excess and thereby shall render inapplicable any and all penalties of any kind provided by applicable law as a result of such excess interest.  In the event that Lender shall collect monies which are deemed to constitute interest which would increase the effective interest rate on this Note to a rate in excess of that permitted to be charged by applicable law, all such sums deemed to constitute interest in excess of the lawful rate shall, upon such

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determination be immediately returned to Borrower, in which event any and all penalties of any kind under applicable law as a result of such excess interest shall be inapplicable.  By execution of this Note, Borrower acknowledges that it believes the Loan evidenced by this Note to be non-usurious and agrees that if, at any time, Borrower should have reason to believe that such Loan is in fact usurious, it will give Lender notice of such condition and Borrower agrees that Lender shall have ninety (90) days in which to make appropriate refund or other adjustment in order to correct such condition if in fact such exists.  The term “applicable law” or “applicable usury law” as used in this Note shall mean the laws of the State of Florida or the laws of the United States, whichever laws allow the greater rate of interest and do not violate the laws of the State of Florida, as such laws now exist or may be changed or amended or come into effect in the future.  If any clauses or provisions herein contained operate or would prospectively operate to invalidate this Note, then such clauses or provisions only shall be held for naught, as though not herein contained and the remainder of this Note shall remain operative and in full force and effect.

Exculpation.

The liability of Borrower with respect to the payment of principal and interest shall be “non-recourse”.  Except as hereinafter provided, Lender’s source of satisfaction of Borrower’s obligations under this Note and the other Loan Documents shall be limited to the Property and Lender’s receipt of the rents, issues and profits from the Property and any other security or collateral now or hereafter held by Lender, and Lender shall not seek to procure payment out of any other assets of Borrower, or any person or entity comprising Borrower, or to seek judgment (except as hereinafter provided) for any sums which are or may be payable under this Note or any of the other Loan Documents, as well as any claim or judgment (except as hereafter provided) for any deficiency remaining after foreclosure of the Mortgage.  Notwithstanding the foregoing, nothing herein contained shall be deemed to be a release or impairment of the Loan evidenced by this Note or the security therefor intended by the other Loan Documents, or be deemed to preclude Lender from exercising its rights to foreclose the Mortgage or to enforce any of its other rights or remedies under the Loan Documents, including but not limited to that certain Guaranty of even date herewith from Ernie Euler and Mike Renfro (the “Guarantors”) to Lender (the “Guaranty”).

Notwithstanding the foregoing, it is expressly understood and agreed that the aforesaid limitation on liability shall in no way affect or apply to the continued personal liability of Borrower for any loss or damage suffered by Lender due to:

(1)fraud, willful misconduct or material misrepresentation made by Borrower or Guarantors in or in connection with the letter from Lender consenting to the assumption of the Loan dated December 21, 2004, and accepted by Borrower on December 30, 2004 and any subsequent amendments thereto, this Note or any of the other Loan Documents;

(2)the failure of Borrower to pay taxes which accrue prior to Lender taking control of the Property or to pay assessments or any other governmental impositions, charges for labor incurred by Borrower, charges for materials incurred by Borrower or any

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other charges incurred by Borrower which may create liens on any portion of the Property;

(3)the misapplication or misappropriation of (i) proceeds of insurance covering any portion of the Property; (ii) proceeds of the sale, condemnation or transfer in lieu of condemnation of any portion of the Property; or (iii) rentals received by or on behalf of Borrower subsequent to the date on which Lender makes written demand therefor pursuant to any of the Loan Documents;

(4)causing or permitting waste or causing arson to occur in, on or about the Property, and failing to maintain the Property, except for ordinary wear and tear;

(5)Borrower’s failure to return to Lender all unearned advance rentals and security deposits that have been paid by tenants of the Property to the extent that such amounts have not been refunded to or forfeited by such tenants;

(6)the failure by Borrower to pay any and all tenant improvement allowances owed to tenants leasing space in the Property;

(7)the failure by Borrower to pay to Lender any and all fees paid to Borrower by any tenant of the Property which fees permit the tenant to terminate its lease or otherwise abandon or vacate its leased premises;

(8)loss by fire or any other casualty to the extent not compensated by insurance proceeds collected by or remitted to Lender, as a result of Borrower’s failure to comply with the insurance provisions of the Mortgage;

(9)the failure to return to or reimburse Lender for all Fixtures and Personal Property (as defined in the Mortgage) owned by Borrower and taken from the Property by or on behalf of Borrower, out of the ordinary course of business, and not replaced by items with values equal to or greater than the original values of the Fixtures and Personal Property so removed;

(10)all court costs and Reasonable Attorneys’ Fees (as hereinafter defined) actually incurred by Lender for which Borrower is liable pursuant to the terms of this Note or any of the other Loan Documents;

(11)(i) the removal of any chemical, material or substance in excess of legal limits or which is required by any governmental entity, to which exposure is prohibited, limited or regulated by any federal, state, county or local authority, and which may or could pose a hazard to the health and safety of the occupants of the Property (which substances are also further defined in the Mortgage as “Hazardous Materials”), regardless of the source of origination (including sources off the Property which migrate onto the Property or its groundwater); (ii) the restoration of the Property to comply with all governmental regulations pertaining to Hazardous Materials found in, on or under the Property, regardless of the source of origination (including sources off the Property which migrate onto the Property or its groundwater); and (iii) any indemnity or other agreement to hold Lender harmless

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from and against any and all losses, liabilities, damages, injuries, costs and expenses of any and every kind arising as a result of the existence and/or removal of Hazardous Materials in violation of Hazardous Waste Laws and from the violation of Hazardous Waste Laws (as defined in the Mortgage).  Borrower shall not be liable hereunder if the Property becomes contaminated (a) subsequent to Lender’s acquisition of the Property by foreclosure or acceptance of a deed in lieu thereof, or (b) subsequent to any transfer of ownership of the Property which was approved or authorized in writing by Lender pursuant to the Mortgage, provided that such transferee assumes in writing all obligations of Borrower with respect to compliance with Hazardous Waste Laws under the Mortgage and the Indemnity Agreement by Borrower and executed of even date herewith.  Liability under this subsection (11) shall extend beyond repayment of the Loan and compliance with the terms of the Note and compliance with the terms of the Mortgage unless Borrower at such time provides Lender with an environmental assessment report acceptable to Lender, in Lender’s sole discretion, showing the Property to be free of Hazardous Materials and not in violation of Hazardous Waste Laws.  The burden of proof under this subparagraph with regard to establishing the date upon which such Hazardous Materials were placed or appeared in, on or under the Property shall be upon Borrower;

(12)(i) any and all costs incurred in order to cause the Property to comply with any applicable Accessibility Laws (as defined in the Mortgage) and (ii) any indemnity or other agreements to hold Lender harmless from and against any and all losses, liabilities, damages, injuries, costs or expenses of any kind arising as a result of non-compliance with any applicable Accessibility Laws.  Borrower shall not be liable hereunder for compliance with any applicable Accessibility Laws that first become effective, or for any violation of any applicable Accessibility Laws resulting from alterations or improvements to the Property that are performed subsequent to Lender’s acquisition of the Property by foreclosure or acceptance of a deed in lieu thereof or subsequent to any transfer of ownership of the Property which was approved or authorized in writing by Lender pursuant to the Mortgage, provided that such transferee assumes in writing all obligations of Borrower pertaining to any applicable Accessibility Laws pursuant to the terms of the Loan Documents.  The burden of proof under this subparagraph with regard to establishing the date upon which such non-compliance with any Accessibility Laws occurred at the Property shall be upon Borrower; and

(13)failure to remit to Lender any amounts under any letter of credit (or any renewals and/or replacements thereof) supplied by Borrower to Lender in connection with the Loan, this Note or any of the other Loan Documents in the event that the bank issuing such letter of credit becomes insolvent, files or has filed against it any bankruptcy or similar proceeding or is closed (either temporarily or permanently), is placed in receivership, conservatorship or liquidation by the Federal Deposit Insurance Corporation, Resolution Trust Corporation or any other governmental or quasi-governmental entity, or otherwise fails or refuses to honor such letter of credit or otherwise fails to maintain certain criteria required by Lender; and

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(14)failure to timely pay any amounts payable for all state documentary stamp taxes and intangible personal property taxes, if any, which may be levied or assessed against the Loan, this Note, the Mortgage or any of the other Loan Documents, together with all interest penalties or charges in connection therewith.

The obligations of Borrower in subsections (1) through (14) above, except as specifically provided in subsections (11) and (12), shall survive the repayment of the Loan evidenced by this Note, and satisfaction of the Mortgage unless such repayment is in the full amount of all sums due and owing under the Loan and such repayment occurs prior to a default under the Loan resulting in the foreclosure of the Mortgage or transfer of the Property in lieu of foreclosure.

Full Recourse.

Notwithstanding any provisions in this Note to the contrary, including without limitation the provisions set forth in the section captioned “Exculpation” hereinabove, Borrower shall be personally liable, jointly and severally, for the entire indebtedness evidenced by this Note (including all principal, interest and other charges) in the event (i) Borrower violates the covenant governing the placing of subordinate financing on the Property as set forth in the Mortgage; (ii) Borrower violates the covenant restricting transfers of interests in the Property or transfers of ownership interests in Borrower as set forth in the Mortgage; or (iii) there is filed against Borrower or any guarantor or indemnitor of the Loan, a petition in bankruptcy or for the appointment of a receiver, or there commences under any bankruptcy or insolvency law, proceedings for Borrower’s relief, or for the compromise, extension, arrangement or adjustment of Borrower’s obligations which is not dismissed within thirty (30) days after the filing of same.

Waiver of Jury Trial.

BORROWER, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES HEREBY THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY TORT ACTION, AGAINST LENDER, ITS SUCCESSORS AND ASSIGNS, BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO OR IN CONNECTION WITH ANY OF THE LOAN DOCUMENTS, THE LOAN OR ANY COURSE OF CONDUCT, ACT, OMISSION, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, LENDER’S DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH LENDER), IN CONNECTION WITH THE LOAN OR THE LOAN DOCUMENTS INCLUDING, WITHOUT LIMITATION, IN ANY COUNTERCLAIM WHICH ANY PARTY MAY BE PERMITTED TO ASSERT THEREUNDER, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.  IN NO EVENT SHALL LENDER, ITS SUCCESSORS OR ASSIGNS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS PROFITS OR OPPORTUNITY) AND BY ITS EXECUTION HEREOF, BORROWER WAIVES ANY RIGHT TO CLAIM OR SEEK ANY SUCH DAMAGES.

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Captions.

The captions set forth at the beginning of the various paragraphs of this Note are for convenience only, and shall not be used to interpret or construe the provisions of this Note.

Attorneys’ Fees.

As used herein, the phrase “Reasonable Attorneys’ Fees” shall mean fees charged by attorneys selected by Lender based upon such attorneys’ then prevailing hourly rates as opposed to any statutory presumption specified by any statute then in effect in the State of Florida.

Applicable Laws.

This Note and the rights and obligations of the parties hereunder shall be governed by, and construed in accordance with, the internal laws of the State of Florida, without regard to principles of conflicts of laws.  The parties hereto irrevocably; (i) agree that any suit, action or other legal proceeding arising out of or relating to this Note may be brought in a court of record in the State of Florida or in the courts of the United States of America located in such state; (ii) consent to the non-exclusive jurisdiction of each such court in any suit, action or proceeding; and (iii) waive any objection which it may have to the laying of venue of any such suit, action or proceeding in any of such courts and any claim that any such suit, action or proceeding has been brought in an inconvenient forum.

Modifications.

This Note may not be amended or modified except by an agreement in writing signed by the party against whom enforcement is sought.

Time of the Essence.

In connection with the Loan and this Note, time shall be of the essence.

Successors and Assigns.

The terms, conditions, obligations and liabilities of this Note shall be binding upon Borrower, its heirs, personal representatives, successors and assigns, and shall inure to the benefit of Lender, its successors and assigns.  If Borrower is comprised of more than one (1) person or entity, then the liability of each such person and entity hereunder shall be joint and several.

Authorization.

By its signature below, Borrower represents and warrants that the Loan transaction contemplated by this Note and any of the other Loan Documents have been properly authorized by Borrower’s governing or managing body, and that the person signing on behalf of Borrower has been duly authorized to sign for, and hereto bind the Borrower.

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Transfer.

Lender may, at any time, sell, transfer or assign this Note, the Mortgage, the Assignment and the other Loan Documents, and any or all servicing rights with respect thereto, or grant participations therein or issue mortgage pass-through certificates or other securities evidencing a beneficial interest in a rated or unrated public offering or private placement.  Lender may forward to each purchaser, transferee, assignee, servicer, participant, investor in such securities or any credit rating agency rating such securities (collectively, the “Investor”) and each prospective Investor, all documents and information which Lender now has or may hereafter acquire relating to the Loan and to Borrower, any guarantor and the Property, whether furnished by Borrower, any guarantor or otherwise, as Lender determines necessary or desirable.  Borrower shall execute, acknowledge and deliver any and all instruments reasonably requested by Lender to satisfy such purchasers or participants that the unpaid indebtedness evidenced by this Note is outstanding upon the terms and provisions set out in this Note and the other Loan Documents.  To the extent, if any, specified in such assignment or participation, such assignee(s) or participant(s) shall have the rights and benefits with respect to this Note and the other Loan Documents as such assignee(s) or participant(s) would have if they were the Lender hereunder.

IN WITNESS WHEREOF, Borrower has executed this Note under seal as of the day and year first above written.

INLAND WESTERN VIERA LAKE ANDREW, L.L.C., a Delaware limited liability company
By:	Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
	By:		/s/ Debra Palmer
	Name:			Debra Palmer
	Its:	Asst. Secretary
		(CORPORATE SEAL)

Borrower’s Address:

c/o The Inland Real Estate Group, Inc.,

2901 Butterfield Road

Oak Brook, Illinois 60523

Borrower’s FEI#: 20-1930110

Documentary Stamps in the amount of FIFTY-FIVE THOUSAND FOUR HUNDRED SEVENTY-FIVE AND NO/100 DOLLARS ($55,475,00.00) have been affixed to the original Assumption Agreement of even date herewith which secures this Note.

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EX-10.493

Exhibit 10.493

Prepared by and return to:

Darrell D. Garvey, Esquire

Lowndes, Drosdick, Doster, Kantor & Reed, P.A.

450 South Orange Avenue, Suite 800

Orlando, Florida 32801

Borrower Name:	Inland Western Viera Lake Andrew, L.L.C.
Project Name:	Shoppes at Lake Andrew Viera, Florida

THIS MORTGAGE MODIFICATION AND AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT AMENDS AND RESTATES THAT CERTAIN NOTICE OF FUTURE ADVANCE, MORTGAGE MODIFICATION AND AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT DATED FEBRUARY 26, 2004 AND RECORDED ON MARCH 1, 2004 IN OFFICIAL RECORDS BOOK 5212, PAGE 2259 OF THE PUBLIC RECORDS OF BREVARD COUNTY, FLORIDA AS ASSUMED BY BORROWER PURSUANT TO THAT CERTAIN ASSUMPTION AGREEMENT OF EVEN DATE HEREWITH (THE “ASSUMPTION AGREEMENT”), AND SECURES THE RENEWAL NOTE REFERRED TO HEREIN IN THE ORIGINAL PRINCIPAL AMOUNT OF FIFTEEN MILLION SIX HUNDRED FIFTY-SIX THOUSAND FIVE HUNDRED ELEVEN AND NO/100 DOLLARS ($15,656,511.00) (THE “RENEWAL NOTE”).  THE RENEWAL NOTE AMENDS, RESTATES AND RENEWS THAT CERTAIN FUTURE ADVANCE AND RENEWAL NOTE IN THE STATED PRINCIPAL SUM OF FIFTEEN MILLION EIGHT HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($I5,850,000.00) DATED FEBRUARY 27, 2004.

DOCUMENTARY STAMP TAX ON SAID OUTSTANDING AMOUNT IN THE SUM OF FIFTY-FIVE THOUSAND FOUR HUNDRED SEVENTY-FIVE AND NO/100 DOLLARS ($55,475.00.00) HAS BEEN PAID SIMULTANEOUSLY WITH THE RECORDING OF THE ASSUMPTION AGREEMENT.  THE OUTSTANDING PRINCIPAL BALANCE OF THE RENEWAL NOTE IS EXEMPT FROM FLORIDA INTANGIBLE TAXES PURSUANT TO FLORIDA STATUTES SECTION 199.145.3.

MORTGAGE MODIFICATION AND AMENDED AND RESTATED MORTGAGE AND
SECURITY AGREEMENT

THIS MORTGAGE MODIFICATION AND AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT is made, executed and delivered as of this 30 day of December, 2004, by INLAND WESTERN VIERA LAKE ANDREW, L.L.C., a Delaware corporation whose address is 2901 Butterfield Road, Oak Brook, Illinois 60523, Attention: Mr. Michael Poe, to and in favor of NATIONWIDE LIFE INSURANCE COMPANY, an Ohio corporation, its successors and assigns (hereinafter referred to as “Lender”), having its principal office at One Nationwide Plaza, Columbus, Ohio 43215-2220,

Attention: Real Estate Investment Department, 34T, or at such other place either within or without the State of Ohio, as Lender may from time to time designate;

THAT WHEREAS, Lender is the owner and holder of that certain Mortgage and Security Agreement by WICKHAM & 95 CORP., a Florida corporation, LOT 90, L.L.C., a Florida limited liability company, and LOT 91, L.L.C., a Florida limited liability company (collectively, “Wickham”) to and in favor of AmSouth Bank, a state banking corporation (“AmSouth”) dated October 30, 2002 and recorded on November 4, 2002, in Official Records Book 4728, Page 3484, of the Public Records of Brevard County, Florida (hereinafter referred to as the “AmSouth Mortgage”); and

WHEREAS, the Original Mortgage secures that certain Promissory Note executed by Wickham to and in favor of AmSouth dated October 30, 2002 in the original principal amount of FIFTEEN MILLION ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($15,150,000.00) (the “AmSouth Note”); and

WHEREAS, the AmSouth Mortgage and the AmSouth Note were subsequently assigned and transferred to Lender pursuant to that certain Assignment of Note and Mortgage Agreements from AmSouth to Lender dated February 24, 2004 and recorded March 1, 2004 in Official Records Book 5212, Page 2254 of the Public Records of Brevard County, Florida; and

WHEREAS, the principal balance of the AmSouth Note was increased and the AmSouth Note was renewed by certain Future Advance and Renewal Note executed by Wickham to and in favor of Lender in the amount of FIFTEEN MILLION EIGHT HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($15,850,000.00) (the “Future Advance and Renewal Note”); and

WHEREAS, the Future Advance and Renewal Note is secured by that certain Notice Of Future Advance, Mortgage Modification and Amended and Restated Mortgage and Security Agreement (the “Original Mortgage”) from Wickham to Lender dated February 27, 2004 and recorded on March 1, 2004 in Official Records Book 5212, Page 2259 of the Public Records of Brevard County, Florida which encumbers, among other things, that certain real property located in Brevard County, Florida more particularly described on Exhibit A attached hereto (the “Overall Property”); and

WHEREAS the Future Advance and Renewal Note has a current principal balance in the amount of FIFTEEN MILLION SIX HUNDRED FIFTY-SIX THOUSAND FIVE HUNDRED ELEVEN AND 00/100 DOLLARS ($15,656,511.00); and

WHEREAS, Borrower assumed the Loan pursuant to that certain Assumption Agreement of even date herewith to be recorded in the Public Records of Brevard County, Florida; and

WHEREAS, in connection with the assumption of the Loan, Borrower executed a Renewal Note of even date herewith in the Original Principal Amount of FIFTEEN MILLION SIX HUNDRED FIFTY-SIX THOUSAND FIVE HUNDRED ELEVEN AND 00/100 DOLLARS ($15,656,511.00) (the “Note”); and

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WHEREAS, Borrower and Lender desire to modify and amend the Original Mortgage in order to reflect that the Original Mortgage secures the Note, and to modify and amend certain other terms of the Original Mortgage.

NOW THEREFORE, for and in consideration of the premises and mutual covenants herein contained and for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) the receipt and sufficiency of which are hereby acknowledged, Borrower and Lender hereby agree as follows:

1.All of the foregoing recitations are true and correct and are hereby incorporated herein and made a part hereof.

2.Under no circumstances shall this instrument or any portion hereof constitute or be deemed to constitute a novation of the Original Mortgage.  The Original Mortgage, as hereby amended and restated, shall secure the Note with the same priority of lien as if this instrument had been executed and recorded at the same time as the Original Mortgage was originally executed and recorded.

3.Borrower hereby covenants, stipulates, agrees and acknowledges that the obligation of Borrower to repay to Lender the Note is hereby declared to be secured by the Original Mortgage, as amended and restated hereby, in the same manner and to the same extent as if the Note was made and executed on the date that the Original Mortgage was originally executed and delivered and that nothing herein contained shall diminish or in any way or manner limit the right of Lender to make additional advances to the Borrower pursuant to the provisions of the Original Mortgage, as amended and restated hereby.

4.Borrower hereby acknowledges, represents and confirms unto Lender that (a) it does not now have and at no prior time had any defenses (including without limitation, the defense of usury), claims, counterclaims, cross-actions or equities, or rights of rescission, set off, abatement, or diminution, with respect to the Original Note, the Original Mortgage or the Note or the Mortgage (as hereinafter defined) or any other loan documents executed in connection therewith, and that it has at no time asserted any such defense, claim or right of rescission, set off, abatement or diminution with respect thereto, and if any such defense, claim, counterclaim, cross-action or equity, or rights of rescission, set off, abatement or diminution do exist the same are hereby waived and released; (b) the Original Mortgage, the Original Note and all other loan documents executed in connection therewith are valid, binding and free from any infirmity of any nature whatsoever, and are enforceable in accordance with their respective terms; (c) the Original Mortgage constitutes a valid first lien against the Property (defined herein); and (d) no payments of interest or any other charges have been made to Lender which would result in the computation or earning of interest in excess of the maximum legal rate of interest permitted under the laws applicable thereto.

5.The terms and conditions of the Mortgage are hereby amended and superseded in their entirety; and the Original Mortgage is hereby restated in its entirety (the Original Mortgage as so amended and restated being herein referred to as the “Mortgage”) as follows:

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MORTGAGE AND SECURITY AGREEMENT

THIS MORTGAGE AND SECURITY AGREEMENT (hereinafter referred to as the “Mortgage”) is made, executed and delivered as of the day and year first written above by INLAND WESTERN VIERA LAKE ANDREW, L.L.C., a Delaware corporation (hereinafter referred to as “Borrower”), whose address is 2901 Butterfield Road, Oak Brook, Illinois 60523, Attention: Mr. Michael Poe, to and in favor of NATIONWIDE LIFE INSURANCE COMPANY, an Ohio corporation, its successors and assigns hereof (hereinafter referred to as “Lender”), having its principal office at One Nationwide Plaza, Columbus, Ohio 43215-2220, Attention: Real Estate Investment Department, 34T, or at such other place either within or without the State of Ohio, as Lender may from time to time designate;

WITNESSETH:

WHEREAS, Borrower is justly indebted to Lender in the original principal sum of FIFTEEN MILLION SIX HUNDRED FIFTY-SIX THOUSAND FIVE HUNDRED ELEVEN AND NO/100 DOLLARS ($15,656,511.00) with interest thereon, which Loan is evidenced and represented by that certain Renewal Note of even date herewith from Borrower to Lender in the amount of the Loan (hereinafter referred to as the “Note”), both principal and interest being payable as therein provided, with the first payment on the Note becoming due and payable on the date of disbursement, and all amounts remaining unpaid thereon being finally due and payable on March 1, 2014, and the term “Note” shall include all other notes given in substitution, modification, increase, renewal or extension of the original Note described herein, in whole or in part; and

WHEREAS, Lender, as a condition precedent to the extension of credit and the making of the Loan has required that Borrower provide Lender with security for the repayment of the Loan as well as for the performance, observance and discharge by Borrower of various terms, covenants, conditions and agreements made by Borrower to, with, in favor of and for the benefit of Lender with respect to the Loan and such security;

NOW THEREFORE, in consideration of and in order to secure the repayment of the Loan evidenced and represented by the Note, together with interest on the Loan, as well as the payment of all other sums of money secured hereby, as hereinafter provided; to secure the observance, performance and discharge by Borrower of all terms, covenants, conditions and agreements set forth in the Note, this Mortgage and in the other Loan Documents (hereafter defined); in order to charge the properties, interests and rights hereinafter described with such payment, observance, performance and discharge; and in consideration of the sum of ONE AND NO/100 DOLLAR ($1.00) paid by Lender to Borrower, and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged by Borrower, Borrower does hereby grant, bargain, sell, convey, assign, transfer, pledge, deliver, hypothecate, warrant and confirm unto Lender forever, all of Borrower’s right, title and interest in and to the following described properties, including all rights, interests, replacements, substitutions and additions thereto, therein or therefore (collectively, the “Mortgaged Property”):

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(a)All that certain piece, parcel or tract of land or real property of which Borrower is now seized and in actual or constructive possession, situated in the City of Viera, County of Brevard and State of Florida, and being more particularly described on Exhibit A attached hereto and by this reference made a part hereof (the “Real Property”);

(b)All buildings, structures and other improvements of any kind, nature or description now or hereafter erected, constructed, placed or located upon the Real Property (the “Improvements”), including, without limitation, any and all additions to, substitutions for or replacements of such Improvements;

(c)All minerals, royalties, gas rights, water, water rights, water stock, flowers, shrubs, lawn plants, crops, trees, timber and other emblements now or hereafter located on, under or above all or any part of the Real Property;

(d)All and singular, the tenements, hereditaments, strips and gores, rights-of-way, easements, privileges, profits and other appurtenances now or hereafter belonging or in any way appertaining to the Real Property, including, without limitation, all right, title and interest of Borrower in any after-acquired right, title, interest, remainder or reversion in and to the beds of any ways, streets, avenues, roads, alleys, passages and public places, open or proposed, in front of, running through, adjoining or adjacent to the Real Property (the “Appurtenances”);

(e)Any and all leases, licenses, contracts, rents, license fees, royalties, issues, revenues, profits, proceeds, deposits, income and other benefits, including accounts receivable, termination fees, of, accruing to or derived from the Real Property, Improvements and Appurtenances, and any business or enterprise presently situated or hereafter operated thereon and therewith and all of Borrower’s right, title and interest under any and all lease guaranties, letters of credit, and any other credit support furnished to Borrower in connection with any of the foregoing (the “Rents”);

(f)Any and all awards, payments or settlements, including interest thereon, and the right to receive the same, as a result of: (a) the exercise of the right of eminent domain; (b) the alteration of the grade of any way, street, avenue, road, alley, passage or public place; (c) any other injury, damage, casualty or claim relating to the taking of, or decrease in the value of, the Real Property, Improvements or Appurtenances; or (d) proceeds of insurance awards, to the extent of all amounts which may be secured by this Mortgage at the date of any such award or payment including but not limited to Reasonable Attorneys’ Fees (as hereinafter defined), costs and disbursements incurred by Lender in connection with the collection of such award or payment;

(g)All fixtures, materials, equipment, machinery, apparatus, appliances, and other property whatsoever now or hereafter attached to, installed in, or used in connection with the buildings and other improvements now erected or hereafter to be erected on said land, including, but not limited to, furnaces, steam boilers, hot-water boilers, oil burners, pipes, radiators, air conditioning and sprinkler systems, gas and electric fixtures, carpets, rugs, shades, awnings, screens, elevators, motors, dynamos, cabinets and all other furnishings, tools, equipment and machinery, appliances, building supplies, materials, and all fixtures, accessions and appurtenances thereto, and all renewals or replacements of or substitutions for any of the

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foregoing, all of which property and things are hereby declared to be permanent fixtures and accessions to the freehold and part of the realty conveyed herein as security for the indebtedness herein mentioned; and

(h)All agreements or contracts relating to any interest rate cap agreements, swaps or other interest hedging agreements;

TO HAVE AND TO HOLD the foregoing Mortgaged Property and the rights hereby granted for its use and benefit unto Lender and its successors and assigns in fee simple forever.

In order to secure the repayment of the Loan evidenced and represented by the Note, together with interest on the Loan, as well as the payment of all other sums of money secured hereby, as hereinafter provided; and to secure the observance, performance and discharge by Borrower of all covenants, conditions and agreements set forth in the Note, this Mortgage and in the other Loan Documents; and in order to charge the properties, interests and rights hereinafter described with such payment, observance, performance and discharge; and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) paid by Lender and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, Borrower hereby grants Lender a security interest in all Fixtures, Goods (including, without limitation, Consumer Goods, Inventory, Equipment and Farm Products), Accounts, Chattel Paper (including, without limitation, Electronic Chattel Paper and Tangible Chattel Paper), Instruments, General Intangibles (including, without limitation, Payment Intangibles and Software), Letters of Credit, Letter-of-Credit Rights, Documents, As-Extracted Collateral, Money and Deposit Accounts of every kind, and all proceeds thereof, including, without limitation, any and all licenses, permits, franchises, trademarks, trade names, service marks or logos, plans, specifications, maps, construction contracts, instruments, insurance policies, fittings and fixtures of every kind, which is, are or shall hereafter be located upon, attached, affixed to or used or useful, either directly or indirectly, in connection with the complete and comfortable use, occupancy and operation of the Real Property, Improvements or Appurtenances as a retail center project (the “Existing Use”), or any other business, enterprise or operation as may hereafter be conducted upon or with said Real Property, Improvements or Appurtenances, including, without limitation, any and all licenses, permits or franchises, used or required in connection with such use, occupancy or operation as well as the proceeds thereof or therefrom regardless of form, all security deposits and advance rentals under lease agreements now or at any time hereafter covering or affecting any of the Property and held by or for the benefit of Borrower, all monetary deposits which Borrower has been required to give to any public or private utility with respect to utility services furnished to the Real Property or Improvements, all rents, issues and profits from leases of all or any part of the Real Property or Improvements, all proceeds (including premium refunds) of each policy of insurance relating to the Real Property or Improvements, all proceeds from the taking of the Real Property or Improvements or any part thereof or any interest therein or right or estate appurtenant thereto by eminent domain or by purchase in lieu thereof, all amounts deposited in escrow for the payment of ad valorem taxes, assessments, charges, ground rentals and/or premiums for policies of insurance with respect to the Real Property or Improvements, all proceeds and other amounts paid or owing to Borrower under or pursuant to any and all contracts and bonds relating to the construction, erection or renovation of the Real Property or Improvements, all oil, gas and other hydrocarbons and other minerals produced from or allocated to the Real Property and all products processed or obtained therefrom, the proceeds thereof, and

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all accounts and general intangibles under which such proceeds may arise, together with any sums of money that may now or at any time hereafter become due and payable to Borrower by virtue of any and all royalties, overriding royalties, bonuses, delay rentals and any other amount of any kind or character arising under any and all present and future oil, gas and mining leases covering the Real Property or any part thereof (collectively, the “Fixtures and Personal Property”) which term expressly excludes any toxic waste or substance deemed hazardous under federal, regional, state or local laws, codes, ordinances, statutes, rules, regulations, decisions or orders).  The Mortgaged Property and the Fixtures and Personal Property are herein together referred to as the “Property”.

Except as otherwise expressly provided in this Mortgage, all terms in this Mortgage relating to the Property and the grant of the foregoing security interest which are defined in the Uniform Commercial Code of the State (the “UCC”) shall have the meanings assigned to them in Article 9 (or, absent definition in Article 9, in any other Article) of the UCC, as those meanings may be amended, revised or replaced from time to time.  Notwithstanding the foregoing, the parties intend that the terms used herein which are defined in the UCC have, at all times, the broadest and most inclusive meanings possible.  Accordingly, if the UCC shall in the future be amended or held by a court to define any term used herein more broadly or inclusively than the UCC in effect on the date of this Mortgage, then such term, as used herein, shall be given such broadened meaning.  If the UCC shall in the future be amended or held by a court to define any term used herein more narrowly, or less inclusively, than the UCC in effect on the date of this Mortgage, such amendment or holding shall be disregarded in defining terms used in this Mortgage.

Borrower hereby covenants and warrants with and to Lender that Borrower is indefeasibly seized of the Property and has good right, full power, and lawful authority to convey and encumber all of the same as aforesaid; that subject to the Permitted Exceptions (as hereinafter defined) Borrower hereby fully warrants the title to the Property and will defend the same and the validity and priority of the lien and encumbrance of this Mortgage against the lawful claims of all persons whomsoever; and Borrower further warrants that the Property is free and clear of all liens and encumbrances of any kind, nature or description, save and except only (with respect to said Real Property, Improvements and Appurtenances) for real property taxes for years subsequent to 2004 (which are not yet due and payable) and those exceptions accepted by Lender as set forth in the title insurance commitment or proforma policy issued to Lender precedent to the issuance of a Lender’s Policy of Title Insurance insuring the first lien priority of this Mortgage (the “Permitted Exceptions”).

If Borrower shall pay to Lender the Loan evidenced by the Note, and if Borrower shall duly, promptly and fully perform, discharge, execute, effect, complete and comply with and abide by each and every one of the terms, covenants, conditions and agreements of the Note, this Mortgage and all other Loan Documents, then this Mortgage and the estates and interests hereby granted and created shall cease, terminate and be null and void, and shall be discharged of record at the expense of Borrower.

Borrower, for the benefit of Lender and its successors and assigns, does hereby expressly covenant and agree as follows:

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1.Payment of Principal and Interest.  Borrower shall pay the principal of the Loan evidenced by the Note, together with all interest thereon, in accordance with the terms, covenants and conditions of the Note, promptly at the times, at the place and in the manner that said principal and interest shall become due, and shall promptly and punctually pay all other sums required to be paid by Borrower pursuant to the terms, covenants and conditions of the Note, this Mortgage, the Assignment of Leases, Rents and Profits of even date herewith (the “Assignment”) and all other documents and instruments executed as further evidence of, as additional security for or executed in connection with the Loan evidenced by the Note (collectively, the “Loan Documents”).

2.Performance of Other Obligations.  Borrower shall perform, comply with and abide by each and every one of the terms, covenants, conditions and agreements contained and set forth in the Note, this Mortgage, and the other Loan Documents, shall comply with all Laws, (hereafter defined) and shall perform all of its obligations under any term, covenant, condition, restriction or agreement of record affecting the Property, and to insure that at all times the Property constitutes one or more legal lots capable of being conveyed without violation of any subdivision or platting laws, codes, ordinances, statutes, rules, regulations, or other laws relating to the division, separation or subdivision of real property.

3.Preservation and Maintenance of Property; Accessibility; Hazardous Waste.

(a)Borrower shall keep all Improvements now existing or hereafter erected on the Real Property in good order and repair, only to be used for the Existing Use, and not to do or permit any waste, impairment or deterioration thereof or thereon, nor to alter, remove or demolish any of the Improvements or any Fixtures and Personal Property attached or appertaining thereto, without the prior written consent of Lender, nor to initiate, join in or consent to any change in any private restrictive covenant, zoning ordinance or other public or private restrictions limiting or defining the uses which may be made of the Property or any part thereof, nor to do or permit any other act whereby the Property shall become less valuable, be used for purposes contrary to applicable Law or be used in any manner which will increase the premium for or result in a termination or cancellation of the insurance policies hereinafter required to be kept and maintained on the Property.  In furtherance of, and not by way of limitation upon, the foregoing covenant, Borrower shall effect such repairs as Lender may reasonably require, and from time to time make all needful and proper replacements so that the Improvements, Appurtenances, Fixtures and Personal Property will, at all times, be in good condition, fit and proper for the respective purposes for which they were originally erected or installed.  In connection with the making of such repairs, Borrower shall use contractors who are properly licensed, who carry workers’ compensation insurance and appropriate liability insurance, who generally have a good reputation for completing their work in a neat, prompt and workmanlike manner, and use only new or re-manufactured goods of a quality as good or better than that originally used on the Property.  As provided herein, Borrower shall insure that no liens are filed against the Property that relate in any way to the repair work provided for herein.

(b)Borrower at all times shall keep the Property and ground water of the Property free of Hazardous Materials (as hereinafter defined) and any liens arising in connection therewith.  Borrower shall not and shall not knowingly permit its tenants or any third party requiring the consent of Borrower to enter the Property, to use, generate, manufacture, treat,

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store, release, threaten release, transport on or over, emit or dispose of Hazardous Materials in, on, over, under or about the Property including the ground water of the Property in violation of any federal, regional, state or local law, code, ordinance, statute, rule, regulation, decision or order currently in existence or hereafter enacted or rendered (collectively, “Hazardous Waste Laws”). Borrower shall give Lender prompt Written Notice (as hereinafter defined) of any claim by any person, entity, or governmental agency that a significant release or disposal of Hazardous Materials has occurred in, on, over, under or about the Property, including the ground water of the Property, in excess of those permitted by the Hazardous Waste Laws, whether caused by the Borrower, any tenant or any third party.  Borrower, through its professional engineers and at the Borrower’s sole cost, shall promptly and thoroughly investigate any suspected release of Hazardous Materials in, on, over, under or about the Property, including the ground water of the Property. Borrower shall forthwith remove, repair, remediate, clean up, and/or detoxify any Hazardous Materials found in, on, over, under or about the Property or in the ground water of the Property to the extent such actions are required by any applicable Hazardous Waste Laws, and whether or not Borrower was responsible for the existence of the Hazardous Materials in, on, over, under or about the Property or the ground water of the Property.  Hazardous Materials shall include, but not be limited to, substances defined as “hazardous substances”, “hazardous materials”, or “toxic substances” in The Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by The Superfund Amendments and Reauthorization Act of 1986, The Hazardous Materials Transportation Act, The Resource Conservation and Recovery Act of 1976, as amended by The Used Oils Recycling Act of 1980, The Solid Waste Disposal Act Amendment of 1984, The Toxic Substances Control Act, The Clean Air Act, The Clean Water Act or under any Hazardous Waste Laws (as defined in the Indemnity Agreement of even date herewith executed by Borrower).  In addition, Borrower shall not incorporate any underground storage tanks into the Real Property without the prior written consent of Lender, and shall insure that all tanks currently on the Real Property comply with current Hazardous Waste Laws and underground storage tank regulations and are properly registered.

Borrower hereby agrees to indemnify and defend Lender and hold Lender harmless from and against any and all losses, liabilities, damages, injuries, costs, expenses, fines, fees, suits, actions, debts, obligations, and claims of any and every kind whatsoever, including Reasonable Attorneys’ Fees (collectively, “Losses”) paid, incurred or suffered by, or asserted against, Lender for, with respect to, or as a direct or indirect result of, the presence in, on, over, under or about, or the escape, seepage, leakage, spillage, discharge, emission or release from, the Property of any Hazardous Materials (including, without limitation, any losses, liabilities, damages, injuries, costs, expenses or claims asserted or arising under any Hazardous Waste Laws), regardless of the source of origination and whether or not caused by, or within the control of, Borrower AND INCLUDING ANY CLAIMS OF LENDER’S NEGLIGENCE OR STRICT LIABILITY, but excluding Lender’s willful misconduct or gross negligence.

Liability under this Section 3(b) and similar provisions in this Mortgage and the other Loan Documents concerning Hazardous Materials shall survive repayment of the Note and satisfaction of this Mortgage; provided, however, Borrower shall have no liability under this Section 3(b) regarding Hazardous Materials if either (i) the Property becomes contaminated subsequent to Lender’s acquisition of the Property by foreclosure, acceptance by Lender of a deed in lieu thereof, or subsequent to any transfer of ownership of the Property which was

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approved or authorized by Lender in writing, pursuant to this Mortgage, provided that such transferee assumes in writing all of the obligations of Borrower with respect to Hazardous Materials pursuant to the Loan Documents, or (ii) at such time Borrower provides Lender with an environmental assessment report acceptable to Lender, in Lender’s sole discretion, showing the Property to be free of Hazardous Materials and not in violation of any Hazardous Waste Laws.  The burden of proof under this Section 3(b) with regard to establishing the date upon which any Hazardous Materials was released in, on, over, under or about the Property shall be upon Borrower.

(c)Borrower at all times shall maintain the Property in full compliance with all federal, state, county, regional or local laws, codes, ordinances, rules, regulations, decisions and orders currently in existence or hereafter enacted or rendered, governing accessibility for the disabled, including but not limited to: The Architectural Barriers Act of 1968; The Rehabilitation Act of 1973; The Fair Housing Act of 1988; The Americans with Disabilities Act; and The Florida Elimination of Architectural Barriers Act (collectively, the “Accessibility Laws”).

Borrower hereby agrees to indemnify and defend Lender and hold Lender harmless from and against any and all Losses paid, incurred or suffered by, or asserted against Lender for, with respect to, or as a direct or indirect result of, the non-compliance of the Property with the Accessibility Laws whether or not caused by, or within the control of, Borrower, AND INCLUDING ANY CLAIMS OF LENDER’S NEGLIGENCE OR STRICT LIABILITY, but excluding Lender’s willful misconduct or gross negligence.

Liability under this Section 3(c) and similar provisions in this Mortgage and the other Loan Documents concerning Accessibility Laws shall survive repayment of the Note and satisfaction of this Mortgage; provided, however, Borrower shall not be liable under this Section 3(c) for compliance with any Accessibility Laws if such Accessibility Laws first become effective, or such violations result from alterations or improvements to the Property that are performed subsequent to Lender’s acquisition of the Property by foreclosure or acceptance of a deed in lieu thereof or subsequent to any transfer which was approved or authorized by Lender pursuant to this Mortgage, provided that such transferee assumes in writing all obligations pertaining to the Accessibility Laws pursuant to this Mortgage and the other Loan Documents.  The burden of proof under this Section 3(c) with regard to establishing the date upon which such non-compliance with any Accessibility Laws occurred at the Property shall be upon Borrower.

Lender, and/or its agents, shall have the right and shall be permitted, but shall not be required, at all reasonable times, to enter upon and inspect the Property to insure compliance with the foregoing covenants, and any and all other terms, covenants, conditions and agreements set forth in this Mortgage.

4.Payment of Taxes, Assessments and Other Charges.  Borrower shall pay all taxes, assessments and other charges as already levied or assessed, or that may be hereafter levied or assessed, upon or against the Property, when the same shall become due and payable according to Law, before delinquency, and before any interest or penalty shall attach thereto, and to deliver official receipts evidencing the payment of the same to Lender not later than thirty (30) days following the payment of the same.  Borrower shall have the right to contest, in good faith and in accordance with applicable Laws and procedures, the proposed assessment of ad valorem taxes

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or special assessments by governmental authorities having jurisdiction over the Property; provided, however, Borrower shall give Written Notice of its intent to bring such an action to Lender, and Lender may, in its sole discretion, require Borrower to post a bond or other collateral satisfactory to Lender (and acceptable to the title company insuring this Mortgage) as a result of Borrower’s act.

5.Payment of Liens, Charges and Encumbrances.  Borrower shall immediately pay and discharge from time to time when the same shall become due, all lawful claims and demands of mechanics, materialmen, laborers, realtors, brokers and others which, if unpaid, might result in, or permit the creation of, a lien, charge or encumbrance upon the Property or any part thereof, or on the Rents, arising therefrom and, in general, to do or cause to be done everything necessary so that the lien of this Mortgage shall be fully preserved, at the sole cost of Borrower, without expense to Lender.  Borrower shall have the right to contest, in good faith and in accordance with applicable Laws and procedures, mechanics’, materialmen’s and other such liens filed against the Property; provided however, that Borrower shall give Written Notice to Lender of its intent to bring such action, and Lender may, in Lender’s sole discretion, require Borrower to post a bond or other collateral satisfactory to Lender (and acceptable to the title company insuring this Mortgage) as a result of Borrower’s act.

6.Payment of Junior Encumbrances.  Borrower shall permit no default or delinquency under any other lien, imposition, charge or encumbrance against the Property, even though junior and inferior to the lien of this Mortgage; provided however, the foregoing shall not be construed to permit any such additional lien or encumbrance against the Property, other than the Permitted Exceptions.

7.Payment of Mortgage Taxes.  Borrower shall pay any and all taxes which may be levied or assessed directly or indirectly upon the Note and/or this Mortgage (except for income taxes payable by Lender) or the Loan secured hereby, without regard to any Law which may be hereafter enacted imposing payment of the whole or any part thereof upon Lender, its successors or assigns.  Upon violation of this covenant, or upon the rendering by any court of competent jurisdiction of a decision that such a covenant by Borrower is legally inoperative, or if any court of competent jurisdiction shall render a decision that the rate of said tax when added to the rate of interest provided for in the Note exceeds the then maximum rate of interest allowed by Law, then, and in any such event, the debt hereby secured shall, at the option of Lender, its successors or assigns, become immediately due and payable, anything contained in this Mortgage or in the Note secured hereby notwithstanding, without the imposition of a Prepayment Premium (as defined in the Note.  The additional amounts which may become due and payable hereunder shall become a part of the Loan secured by this Mortgage.

8.Hazard Insurance.  Borrower shall continuously, during the term of this Mortgage, keep the Improvements, Appurtenances, and Fixtures and Personal Property, now or hereafter existing, erected, installed and located in or upon the Real Property, insured with extended coverage insurance against loss or damage resulting from fire, windstorm, flood, sinkhole, earthquake, mine subsidence, acts of terrorism, and such other hazards, casualties, contingencies and perils including, without limitation, other risks insured against by persons operating like properties in the locality of the Property, or otherwise deemed necessary or advisable by Lender, on such forms and with such deductibles as may be required by Lender, covering the Property in

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the amount of the full replacement cost thereof, (without taking into account any depreciation) less excavating and foundation costs, and covering all loss or abatement of rental or other income, without a provision for co-insurance, in an amount equal to the scheduled rental income of the Property for at least twelve (12) months, or if applicable, business interruption insurance in an amount sufficient to pay debt service on the Note, operating expenses, taxes and insurance on the Property for a period of twelve (12) months, and covering loss by flood (if the Property lies in a Special Flood Hazard Area as designated on the Department of Housing and Urban Development’s Maps, or other flood prone designation) in an amount equal to the outstanding principal balance of the Loan or such other amount as approved by Lender, and earthquake insurance with a deductible amount of no more than ten percent (10%) of the policy amount, if the Property is located within one-half (1/2) mile of an Alquist-Priolo Special Earthquake Study Zone or if, in the judgment of Lender’s inspecting architect, the Property lies in an area of anticipated significant seismic activity, and “Ordinance or Law Coverage” or “Enforcement” endorsements in amounts satisfactory to Lender if any of the Improvements or the use of the Property shall at any time constitute legal non-conforming structures or uses or the ability to rebuild the Improvements is restricted or prohibited, and comprehensive boiler and machinery insurance (without exclusion for explosion), if applicable, in amounts as shall be reasonably required by Lender and covering all boilers or other pressure vessels, machinery and equipment located at or about the Property (including, without limitation, electrical equipment, sprinkler systems, heating and air conditioning equipment, refrigeration equipment and piping).  All such insurance shall be carried with a company or companies licensed to do business in the state where the Property is located, which is acceptable to Lender, which company or companies shall have a rating at the time this Mortgage is executed equivalent to at least A+:X as shown in the most recent Best’s Key Rating Guide.  The original policy or policies and renewals thereof (or, at the sole option of Lender, duplicate originals or certified copies thereof), together with receipts evidencing payment of the premium therefor, shall be deposited with, held by and are hereby assigned to, Lender as additional security for the Loan secured hereby.  Each such policy of insurance shall contain a noncontributing loss payable clause in favor of and in a form acceptable to Lender, and shall provide for not less than thirty (30) days prior Written Notice to Lender of any intent to modify, non-renew, cancel or terminate the policy or policies, or the expiration of such policies of insurance, or the exclusion of any individual risk such as acts of terrorism.  If the insurance required under this Section 8 or any portion thereof is maintained pursuant to a blanket policy, Borrower shall furnish to Lender a certified copy of such policy, together with an original Evidence of Insurance Certificate (Acord Form 27) for hazard insurance indicating that Lender is an additional insured under such policy in regard to the Property and showing the amount of coverage apportioned to the Property, which coverage shall be in an amount sufficient to satisfy the requirements hereof.  Not less than fifteen (15) days prior to the expiration dates of each policy required of Borrower hereunder, Borrower will deliver to Lender a renewal policy or policies marked “premium paid” or accompanied by other evidence of payment and renewal satisfactory to Lender.  In the event of foreclosure of this Mortgage or other transfer of title to the Property in extinguishment of the Loan secured hereby, all right, title and interest of Borrower, in and to any insurance policies then in force including any rights to unearned premiums, and in and to insurance proceeds then payable, shall pass to the purchaser or grantee.

In the event of loss by reason of hazards, casualties, contingencies and perils for which insurance has been required by Lender hereunder, Borrower shall give immediate notice thereof to Lender.  Lender is hereby irrevocably appointed attorney-in-fact coupled with an interest for

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Lender to, at its option, make proof of loss and/or to file a claim thereunder.  Each insurance company concerned is hereby notified, authorized and directed to make payment for such loss directly to Lender, instead of to Borrower and Lender jointly, and Borrower hereby authorizes Lender to adjust and compromise any losses for which insurance proceeds are payable under any of the aforesaid insurance policies and, after deducting the costs of collection, to apply the proceeds of such insurance, at its option either: (a) to the restoration or repair of the insured Improvements, Appurtenances, and Fixtures and Personal Property, provided that, in the opinion and sole discretion of Lender, such restoration or repair is reasonably practical and, provided further, that, in the opinion and sole discretion of Lender, either: (i) the insurance proceeds so collected are sufficient to cover the cost of such restoration or repair of the damage or destruction with respect to which such proceeds were paid, or (ii) the insurance proceeds so collected are not sufficient alone to cover the cost of such restoration or repair, but are sufficient therefor when taken together with funds provided and made available by Borrower from other sources; in which event Lender shall make such insurance proceeds available to Borrower for the purpose of effecting such restoration or repair; but Lender shall not be obligated to see to the proper application of such insurance proceeds nor shall the amount of funds so released or used be deemed to be payment of or on account of the Loan secured hereby; or (b) to the reduction of the Loan, notwithstanding the fact that the amount owing thereon may not then be due and payable or that said Loan is otherwise adequately secured, in which event such proceeds shall be applied at par against the Loan secured hereby and the monthly payment due on account of such Loan shall be reduced accordingly as calculated by Lender.  None of such actions taken by Lender shall be deemed to be or result in a waiver or impairment of any equity, lien or right of Lender under and by virtue of this Mortgage, nor will the application of such insurance proceeds to the reduction of the Loan serve to cure any default in the payment thereof.  In the event of foreclosure of this Mortgage or other transfer of title to the Property in extinguishment of the Loan secured hereby, all right, title and interest of Borrower in and to any insurance policies then in force including any rights to unearned premiums and in and to insurance proceeds then payable, shall pass to the purchaser or grantee.

In case of Borrower’s failure to keep the Property properly insured as required herein, Lender, its successors or assigns, may, at its option (but shall not be required to) acquire such insurance as required herein at Borrower’s sole expense.

Notwithstanding anything set forth in this Section 8 to the contrary, in the event of loss or damage to the Property by fire or other casualty for which insurance has been required by Lender and provided by Borrower, and (a) the amount of such loss or damage does not exceed twenty-five percent (25%) of the unpaid principal balance of the Note, or (b) restoration is required by the terms of a Major Tenant Lease, Lender hereby agrees to allow the proceeds of insurance to be used for the restoration of the Property and to release such insurance proceeds to Borrower as such restoration progresses, provided:

(a)Borrower is not in default beyond any applicable grace or cure periods under any of the terms, covenants and conditions of this Mortgage, the Note or any of the other Loan Documents;

(b)The Improvements, after such restoration, shall be at least eighty percent (80%) leased pursuant to leases approved in writing by Lender;

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(c)The plans and specifications for the restoration of the Property are approved in writing by Lender in advance;

(d)At all times during such restoration, Borrower has deposited with Lender funds which, when added to the insurance proceeds received by Lender, are sufficient to complete the restoration of the Property in accordance with the approved plans and specifications, and all applicable building codes, zoning ordinances, regulations and Accessibility Laws, and further, that the funds retained by Lender are sufficient to complete the restoration of the Property as certified to Lender by Lender’s inspecting architect/engineer;

(e)Borrower provides suitable completion, payment and performance bonds, builders’ all risk insurance, and all necessary licenses and permits for such restoration in form and amount acceptable to Lender;

(f)The insurer under such policies of fire or other casualty insurance does not assert any defense to payment under such policies against Lender, Borrower, any tenant, or third party of Borrower with regard to the Property;

(g)Lender shall have the option, upon the completion of such restoration of the Property, to apply any surplus insurance proceeds remaining after the completion of such restoration, at par, to the reduction of the outstanding principal balance of the Note; notwithstanding the fact that the amount owing thereon may not then be due and payable or that said Loan is otherwise adequately secured;

(h)The funds held by Lender shall be disbursed no more often than once per month and in not more than five (5) increments of not less than FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00) each, except the final disbursement of such funds which may be in an amount less than FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00);

(i)Lender’s obligation to make any such disbursement shall be conditioned upon Lender’s receipt of written certification from Lender’s inspecting architect/engineer (whose reasonable fees shall be reimbursed to Lender by Borrower) that all construction and work for which such disbursement is requested has been completed in accordance with the approved plans and specifications and in accordance with all applicable building codes, zoning ordinances and all other Laws and, further, that Borrower has deposited with Lender sufficient funds to complete such restoration in accordance with Section 8(d); and

(j)Lender shall be entitled to require and to impose such other conditions to the release of such funds as would be customarily or reasonably be required and imposed by local construction lenders for a project of similar nature and cost.

9.Liability Insurance.  Borrower shall carry and maintain such commercial general liability insurance as may from time to time be reasonably required by Lender, taking into consideration the type of property being insured and the corresponding liability exposure, on forms, with deductibles, in amounts and with such company or companies licensed to do business in the state where the Property is located and as may be acceptable to Lender.  All such commercial general liability insurance shall be carried with a company or companies which have and maintain a rating equivalent to at least A+:X as shown in the most recent Best’s Key Rating

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Guide.  The original policy or policies and all renewals thereof (or, at the sole option of Lender, duplicate originals or certified copies thereof), together with a Certificate of Insurance (Acord Form 25S) and receipts evidencing payment of the premium therefor, shall be deposited with, held by and are hereby assigned to, Lender as additional security for the Loan secured hereby.  Such policy or policies of insurance shall name Lender as an additional insured and shall provide for not less than thirty (30) days prior Written Notice to Lender of any intent to modify, cancel, non-renew, or terminate the policy or policies or the expiration of such policy or policies of insurance, or the exclusion of any individual risk such as acts of terrorism.  Not less than fifteen (15) days prior to the expiration dates of each policy or policies required of Borrower hereunder, Borrower will deliver to Lender a renewal policy or policies marked “premium paid” or accompanied by other evidence of payment and renewal satisfactory to Lender.  In the event of foreclosure of this Mortgage or other transfer of title to the Property in extinguishment of the Loan secured hereby, all right, title and interest of Borrower, in and to any insurance policies then in force including any rights to unearned premiums, and in and to insurance proceeds then payable, shall pass to the purchaser or grantee.  In case of Borrower’s failure to keep the Property properly insured as required herein, Lender, its successors or assigns, may, at its option (but shall not be required to) acquire such insurance as required herein at Borrower’s sole expense.

10.Compliance With Laws.

(a)Borrower shall observe, abide by and comply with all federal, regional, state and local laws, codes, ordinances, statutes, rules, regulations, decisions, orders, requirements or decrees relating to the Property enacted, promulgated or issued by any federal, state, county or local governmental or quasi-governmental authority or any agency or subdivision thereof having jurisdiction over Borrower or the Property, which now or hereafter affect Borrower or the Property, including Hazardous Waste Laws and Accessibility Laws (collectively, the “Laws”), and to observe and comply with all conditions and requirements necessary to preserve and extend any and all rights, licenses, permits (including, but not limited to, zoning, variances, special exceptions and nonconforming uses), privileges, franchises and concessions which are applicable to the Property, or which have been granted to or contracted for by Borrower in connection with any existing, presently contemplated or future uses of the Property.

(b)Borrower shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under the Note, this Mortgage and the other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”).  Borrower shall deliver to Lender such certifications or other evidence from time to time throughout the term of this Mortgage, as requested by Lender in its sole discretion, that (i) Borrower is not an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmental plan” within the meaning of Section 3(32) of ERISA; (ii) Borrower is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (iii) one or more of the following circumstances is true:

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(i)Equity interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R. § 2510.3-101(b)(2);

(ii)Less than twenty-five percent (25%) of each outstanding class of equity interests in Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R. § 2510.3-101(f)(2); or

(iii)Borrower qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. § 2510.3-101(c) or (e) or an investment company registered under The Investment Company Act of 1940.

11.Maintenance of Permits.  Borrower shall obtain, keep and constantly maintain in full force and effect during the entire term of this Mortgage, all certificates, licenses and permits necessary to keep the Property operating for the Existing Use and, except as specifically provided for in this Mortgage, not to assign, transfer or in any manner change such certificates, licenses or permits without first receiving the written consent of Lender.

12.Obligations of Borrower as Lessor.

(a)Borrower shall perform every obligation of Borrower (as the landlord) and enforce every obligation of the tenant in any and every lease, license or other occupancy agreement of or affecting the Property or any part thereof (the “Occupancy Leases”), and not to modify, alter, waive or cancel any such Occupancy Leases or any part thereof or rights thereunder, without the prior written consent of Lender (but such consent shall not be required for such action as to Occupancy Leases of three thousand (3,000) square feet or less if such action is in the ordinary course of business of owning and operating the Property in a prudent and business-like manner, on then current market terms), nor collect for more than thirty (30) days in advance of the date due any Rents that may be collectible under any such Occupancy Leases and, except as provided for in this Mortgage, not to assign any such Occupancy Lease(s) or any such Rents relating thereto, to any party other than Lender, without the prior written consent of Lender. Borrower will notify Lender in writing of any default under any Occupancy Lease, In the event of default under any such Occupancy Lease by reason of failure of Borrower to keep or perform one or more of the covenants, agreements or conditions thereof, Lender is hereby authorized and empowered, and may, at its sole option, remedy, remove or cure any such default, and further, Lender may, at its sole option and in its sole discretion but without obligation to do so, pay any sum of money deemed necessary by Lender for the performance of said covenants, agreements and conditions, or for the curing or removal of any such default, and incur all expenses and obligations which Lender may consider necessary or reasonable in connection therewith, and Borrower shall repay on demand all such sums so paid or advanced by Lender together with interest thereon until paid at the lesser of either; (i) the highest rate of interest then allowed by the Laws of the State of Florida, or, if controlling, the Laws of the United States, or (ii) the then applicable interest rate of the Note plus five hundred (500) basis points per annum; all of such sums, if unpaid, shall be added to and become part of the Loan.

(b)All such Occupancy Leases hereafter made shall be subject to the approval of Lender and: (i) shall be at competitive market rental rates then prevailing in the geographic area for projects used for the Existing Use comparable to the Property, (ii) shall have lease terms

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of not less than three (3) years; and (iii) at Lender’s option, shall be superior or subordinate in all respects to the lien of this Mortgage. Provided, however, that Lender shall not require approval in advance of any Occupancy Leases which conform to the Borrower’s Form Lease (as hereinafter defined) as previously approved by Lender, except as set forth below.  Neither the right nor the exercise of the right herein granted unto Lender to keep or perform any such covenants, agreements or conditions as aforesaid shall preclude Lender from exercising its option to cause the whole Loan secured hereby to become immediately due and payable by reason of Borrower’s default in keeping or performing any such covenants, agreements or conditions.

(c)Lender has approved a form of Occupancy Lease to be used by Borrower in connection with the Property (the “Form Lease”).  Borrower shall not, without the prior written consent of Lender, modify or alter the Form Lease in any material respect.  In addition, Borrower shall not, without the prior written consent of Lender, surrender, terminate, modify or alter, either orally or in writing, any Occupancy Lease now existing or hereafter made with any Major Tenant (as hereinafter defined) for all or part of the Property, permit an assignment or sublease of any such Occupancy Lease, or request or consent to the subordination of any Occupancy Lease to any lien subordinate to this Mortgage.  Borrower shall furnish Lender with copies of all executed Occupancy Leases of all or any part of the Property now existing or hereafter made, and Borrower shall assign to Lender (which assignment shall be in form and content acceptable to Lender), as additional security for the Note and the Loan, all Occupancy Leases now existing or hereafter made for all or any part of the Property.  Additionally, if any Occupancy Lease contains a provision allowing the tenant to terminate their lease upon payment of a lease termination fee, Borrower agrees that all such sums shall constitute rent, and shall be paid to Lender so long as this Mortgage is in effect.

Notwithstanding the foregoing approval by Lender of Borrower’s Form Lease, Lender hereby specifically reserves the right to approve all prospective tenants under all Occupancy Leases hereafter proposed to be made if either: (i) the term thereof, excluding options to renew the same, exceeds five (5) years; or (ii) the net rentable area to be occupied thereunder, including expansion options, exceeds ten percent (10%) of the net leasable area of each of the buildings comprising the Improvements (the tenants under such leases being hereinafter referred to as “Major Tenants”).  Borrower shall notify Lender in writing of all prospective Major Tenants, and shall deliver to Lender, at Borrower’s sole cost and expense, a copy of the prospective Major Tenant’s current financial statement and the most recent Dun & Bradstreet credit report on said prospective Major Tenant.  The financial statement delivered to Lender hereunder shall be certified as true and correct by the Major Tenant, or, if available, by a certified public accountant.  If Lender fails to respond within ten (10) business days after receipt from Borrower of an Occupancy Lease, together with tenant credit information, Lender shall be deemed to have approved such Occupancy Lease; provided that all items so submitted shall be sent certified mail, labeled with the following statement: “TIME SENSITIVE RESPONSE REQUIRED WITHIN TEN (10) BUSINESS DAYS OF ACTUAL RECEIPT.

(d)In no event shall Borrower exercise any right to relocate any lessee outside the Property pursuant to any right set forth in an Occupancy Lease without the prior written consent of Lender.

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13.Maintenance of Parking & Access: Prohibition Against Alteration; Separate Tax Lot.

(a)Borrower shall construct, keep and constantly maintain, as the case may be, all curbs, drives, parking areas and the number of parking spaces heretofore approved by Lender, or heretofore or hereafter required by any Laws or any governmental body, agency or authority having jurisdiction over Borrower or the Property, and as required by the terms of the Occupancy Leases, and not to alter, erect, build or construct upon any portion of the Property, any building, structure or improvement of any kind whatsoever, the erection, building or construction of which has not been previously approved by Lender in writing, which approval shall be at the sole discretion of Lender.

(b)Borrower shall cause the Property to remain separately assessed for real estate tax purposes as a separate tax lot or lots.

14.Execution of Additional Documents.  Borrower shall do, make, execute, acknowledge, witness and deliver all deeds, conveyances, mortgages, deeds of trust, assignments, estoppel certificates, subordination non-disturbance and attornments, notices of assignments, transfers, assurances, security agreements, financing statements and renewals thereof, and all other instruments or other acts necessary, as Lender shall from time to time require for the purpose of better assuring, conveying, assigning, transferring, securing and confirming unto Lender the Property and rights hereby encumbered, created, conveyed, assigned or intended now or hereafter so to be encumbered, created, conveyed or assigned, or which Borrower may now be or may hereafter become bound to encumber, create, convey or assign to Lender, or for the purpose of carrying out the intention or facilitating the performance of the terms of this Mortgage, or for filing, registering or recording this Mortgage, and to pay all filing, registration or recording fees and all taxes, costs and other expenses, including Reasonable Attorneys^’ Fees, incident to the preparation, execution, acknowledgment, delivery and recordation of any of the same.  By signing this Mortgage, Borrower authorizes Lender to file such financing statements, with or without the signature of Borrower, as Lender may elect, as may be necessary or desirable to perfect the lien of Lender’s security interest in the Fixtures and Personal Property.  Without limiting any other provision herein, Borrower hereby authorizes Lender to file one or more financing statements and any renewal or continuation statements thereof, describing the Property and the proceeds of the Property, including, without limitation, a financing statement covering “all assets of Borrower all proceeds therefrom, and all rights and privileges with respect thereto”.  Borrower further authorizes Lender to file, with or without any additional signature from Borrower, as Lender may elect, such amendments and continuation statements as Lender may deem necessary or desirable from time to time to perfect or continue the lien of Lender’s security interest in the Fixtures and Personal Property.  Borrower hereby ratifies any financing statements that may have been filed by Lender in advance of the date hereof to perfect Lender’s security interest in the Fixtures and Personal Property.

15.After Acquired Property Secured.  Borrower shall subject to the lien of this Mortgage all right, title and interest of Borrower in and to all extensions, improvements, betterments, renewals, substitutions and replacements of, and all additions and appurtenances to, the Property hereinabove described, hereafter acquired by or released to Borrower, or constructed, assembled or placed by Borrower on the Real Property, and all conversions of the

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security constituted thereby, immediately upon such acquisition, release, construction, assembling, placement or conversion, as the case may be, and in each such case, without any further mortgage, deed of trust, encumbrance, conveyance, assignment or other act by Borrower, as fully, completely and with the same effect as though now owned by Borrower and specifically described herein, but at any and all times, Borrower will execute and deliver to Lender any and all such further assurances, mortgages, deeds of trust, conveyances, security agreements, financing statements or assignments thereof or security interests therein as Lender may reasonably require for the purpose of expressly and specifically subjecting the same to the lien of this Mortgage.

16.Payments by Lender on Behalf of Borrower.  Borrower shall make payment of any taxes, assessments or public charges on or with respect to the Property before the same shall become delinquent, or to make payment of any insurance premiums or other charges, impositions, or liens herein or elsewhere required to be paid by Borrower, or if Borrower shall fail so to do, then Lender, at its sole option, but without obligation to do so, may make payment or payments of the same and also may redeem the Property from tax sale without any obligation to inquire into the validity of such taxes, assessments, charges, impositions or liens.  In the case of any such payment by Lender, Borrower agrees to reimburse Lender, upon demand therefor, the amount of such payment and of any fees and expenses attendant in making the same, together with interest thereon at the lesser of either: (a) the highest rate of interest then allowed by the Laws of the State of Florida or, if controlling, the Laws of the United States, or (b) the then applicable interest rate of the Note plus five hundred (500) basis points per annum; and until paid such amounts and interest shall be added to and become part of the Loan secured hereby to the same extent that this Mortgage secures the repayment of the Loan.  In making payments authorized by the provisions of this Section 16, Lender may do so whenever, in Lender’s sole judgment and discretion, such advance or advances are necessary or desirable to protect the full security intended to be afforded by this Mortgage.  Neither the right nor the exercise of the rights herein granted to Lender to make any such payments as aforesaid shall preclude Lender from exercising its option to cause the Loan secured hereby to become immediately due and payable by reason of Borrower’s default in making such payments as hereinabove required.

17.Funds Held by Lender for Taxes, Assessments, Insurance Premiums and Other Charges.  In order to more fully protect the security of this Mortgage, Borrower shall deposit with Lender, together with and in addition to each monthly payment due on account of the Loan, an amount equal to one-twelfth (l/12^th) of the annual total of such taxes, assessments, insurance premiums and other charges (all as estimated by Lender in its sole discretion) so that, at least thirty (30) days prior to the due date thereof, Lender shall be able to pay in full all such taxes, assessments, insurance premiums and other charges as the same shall become due. Lender may hold the sums so deposited without paying interest, commingle same with its general funds and/or apply the same to the payment of said taxes, assessments, insurance premiums or other charges as they become due and payable.  If at any time the funds so held by Lender are insufficient to pay such taxes, assessments, insurance premiums or other charges as they become due and payable, Borrower shall immediately, upon Written Notice and demand by Lender, deposit with Lender the amount of such deficiency.  The failure on the part of Borrower to do so shall entitle Lender, at Lender’s sole option, to make such payments in accordance with the rights and pursuant to the conditions elsewhere provided in this Mortgage.  Whenever any default exists under this Mortgage, Lender may, at Lender’s sole option but without an obligation

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so to do, apply any funds so held by Lender pursuant to this Section 17 toward the payment of the Loan, notwithstanding the fact that the amount owing thereon may not then be due and payable or that the Loan may otherwise be adequately secured, in such order and manner of application as Lender may elect.

18.Condemnation; Eminent Domain.  All claims and rights of action for, and all awards and other compensation heretofore or hereafter made to Borrower and all subsequent owners of the Property in any taking by eminent domain, recovery for inverse condemnation or by deed in lieu thereof, whether permanent or temporary, of all or any part of the Property or any easement or any appurtenance thereto, including severance and consequential damages and change in grade of any way, street, avenue, road, alley, passage or public place, are hereby assigned to Lender.  Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, and authorizes, directs and empowers Lender, at the option of Lender as said attorney-in-fact, on behalf of Borrower, its successors and assigns, to adjust or compromise the claim for any such award, and alone to collect and receive the proceeds thereof, to give proper receipts and acquittances therefor and, after deducting any expenses of collection, at Lender’s sole option either:

(a)to apply the net proceeds as a credit upon any portion of the Loan, as selected by Lender, notwithstanding the fact that the amount owing thereon may not then be due and payable, or that the Loan is otherwise adequately secured.  In the event Lender applies such awards to the reduction of the outstanding Loan evidenced by the Note, such proceeds shall be applied at par, and the monthly installments due and payable under the Note shall be reduced accordingly as calculated by Lender; however no such application shall serve to cure an existing default of Borrower; or

(b)to hold said proceeds without any allowance of interest, and make the same available for restoration or rebuilding of the Improvements.  In the event that Lender elects to make said proceeds available to reimburse Borrower for the cost of the restoration or rebuilding of the Improvements on the Real Property, such proceeds shall be made available in the manner and under the same conditions as required under Section 8 hereof.  If the proceeds are made available by Lender to reimburse Borrower for the cost of said restoration or rebuilding, any surplus which may remain out of said award after payment of such cost of restoration or rebuilding, shall be applied on account of the Loan at par notwithstanding the fact that the amount owing thereon may not then be due and payable or that the Loan may otherwise be adequately secured.

Borrower further covenants and agrees to give Lender immediate notice of the actual or threatened commencement of any proceedings under eminent domain, and to deliver to Lender copies of any and all papers served in connection with any such proceedings.  Borrower further covenants and agrees to make, execute and deliver to Lender, at any time or times, upon request, free, clear and discharged of any encumbrance of any kind whatsoever, any and all further assignments and/or other instruments deemed necessary by Lender for the purpose of validly and sufficiently assigning all such awards and other compensation heretofore or hereafter made to Lender (including the assignment of any award from the United States government at any time after the allowance of the claim therefor, the ascertainment of the amount thereof and the issuance of the warrant for payment thereof).

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If either: (i) any part of any of the Improvements situated on the Real Property shall be condemned by any governmental authority having jurisdiction; or (ii) lands constituting a portion of the Real Property shall be condemned by any governmental authority having jurisdiction, such that the remaining Property is in violation of applicable parking, zoning, platting, or other ordinances, or fails to comply with the terms of the Occupancy Leases with Major Tenants.  In either of said events, Lender shall be entitled to application of condemnation proceeds to the outstanding principal balance of the Note at par, and the right to accelerate the maturity date of the Note and require payment in full without the imposition of a Prepayment Premium.

19.Costs of Collection.  In the event that the Note is placed in the hands of an attorney for collection, or in the event that Lender shall become a party either as plaintiff or as defendant, in any action, suit, appeal or legal proceeding (including, without limitation, foreclosure, condemnation, bankruptcy, administrative proceedings or any proceeding wherein proof of claim is by law required to be filed), hearing, motion or application before any court or administrative body in relation to the Property or the lien and security interest granted or created hereby or herein, or for the recovery or protection of the Loan or the Property, or for the foreclosure of this Mortgage, or for the enforcement of the terms and conditions of the Loan Documents, Borrower shall indemnify, save, defend and hold Lender harmless from and against any and all Losses incurred by Lender on account thereof, and Borrower shall repay, on demand, all such Losses, together with interest thereon until paid at the lesser of either (a) the highest rate of interest then allowed by the Laws of the State of Florida, or, if controlling, the Laws of the United States, or (b) the then applicable rate of interest of the Note plus five hundred (500) basis points per annum; all of which sums, if unpaid, shall be added to and become a part of the Loan.

20.Default Rate.  Any sums not paid when due, whether maturing by lapse of time or by reason of acceleration under the provisions of the Note, this Mortgage or any of the other Loan Documents, and whether principal, interest or money owing for advancements pursuant to the terms of this Mortgage or any other Loan Document, shall bear interest until paid at the lesser of either (a) the highest rate of interest then allowed by the Laws of the State of Florida, or, if controlling, the Laws of the United States, or (b) the then applicable rate of interest of the Note plus five hundred (500) basis points per annum; all of which sums shall be added to and become a part of the Loan.

21.Savings Clause.  Notwithstanding any provisions in the Note or in this Mortgage to the contrary, the total liability for payments in the nature of interest, including but not limited to Prepayment Premiums, default interest and late payment charges, shall not exceed the limits imposed by the Laws of the State of Florida or, if controlling, the Laws of the United States, relating to maximum allowable charges of interest.  Lender shall not be entitled to receive, collect or apply, as interest on the Loan, any amount in excess of the maximum lawful rate of interest permitted to be charged by any Laws.  In the event Lender ever receives, collects or applies as interest any such excess, such amount which would be excessive interest shall be applied to reduce the unpaid principal balance of the Loan evidenced by the Note.  If the unpaid, principal balance of such Loan has been paid in full, any remaining excess shall be forthwith returned to Borrower.

22.Bankruptcy, Reorganization or Assignment.  It shall be a default hereunder if Borrower or any general partner or managing member of Borrower shall: (a) elect to dissolve or

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liquidate its business organization or wind up its business affairs without receiving the prior written approval of Lender; (b) consent to the appointment of a receiver, trustee or liquidator of all or a substantial part of its assets; (c) be adjudicated as bankrupt or insolvent, or file a voluntary petition in bankruptcy, or admit in writing its inability to pay its debts as they become due; (d) make a general assignment for the benefit of creditors; (e) file a petition under or take advantage of any insolvency law; (f) file an answer admitting the material allegations of a petition filed against Borrower or any general partner or managing member of Borrower in any bankruptcy, reorganization or insolvency proceeding, or fail to cause the dismissal of such petition within thirty (30) days after the filing of said petition; (g) take action for the purpose of effecting any of the foregoing; or (h) if any order, judgment or decree shall be entered upon an application of a creditor of Borrower or any general partner or managing member of Borrower by a court of competent jurisdiction approving a petition seeking appointment of a receiver or trustee of all or a substantial part of Borrower’s assets or any of Borrower’s general partner’s or managing member’s assets and such order, judgment or decree shall continue unstayed and in effect for a period of thirty (30) days.

23.Time is of the Essence, Monetary and Non-Monetary Defaults.  It is understood by Borrower that time is of the essence hereof in connection with all obligations of Borrower herein and any of the other Loan Documents.

Lender, at its sole option, may declare the Loan, as well as all other monies secured or evidenced hereby or by any of the other Loan Documents, including, without limitation, all Prepayment Premiums (to the extent permitted by the Laws of the State of Florida) and late payment charges, to be in default and forthwith due and payable, in the event:

(a)Borrower defaults in the payment of any monthly installment of the Note, whether of principal or interest, or both, or in the payment of any other sums of money referred to herein or in the Note or in any of the other Loan Documents, promptly and fully when the same shall be due, without notice or demand from Lender to Borrower in regard to such Monetary Default (as hereinafter defined), and any such Monetary Default remains uncured for a period of five (5) days after Written Notice thereof has been given by Lender to Borrower, unless Lender has previously given Borrower such Written Notice for a failure to pay in the then current Loan Year (as defined in the Note), in which event no such notice need be given and no right to cure need be afforded Borrower as to any further Monetary Default during such Loan Year.  It is understood and agreed that the agreement of Lender provided notice and an opportunity to cure a Monetary Default does not waive Lender’s right to any late payment charge.

(b)Borrower breaches or defaults on any of the terms, covenants, conditions and agreements of the Note, this Mortgage, or any other Loan Documents; or in the event that each and every one of said terms, covenants, conditions and agreements is not otherwise either duly, promptly and fully discharged or performed, and any such Non-Monetary Default (as hereinafter defined) remains uncured for a period of thirty (30) days after Written Notice thereof has been delivered from Lender to Borrower; unless such Non-Monetary Default cannot be cured within said thirty (30) day period, in which event Borrower shall have a reasonable period of time to complete cure, provided that action to cure such Non-Monetary Default is promptly commenced within said thirty (30) day period, and Borrower is, in Lender’s sole judgment, not

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diminishing or impairing the value of the Property, and is diligently pursuing a cure to completion, but in no event longer than ninety (90) days.

(c)Any representation or warranty of Borrower or of its members, general partners, principals, affiliates, agents or employees, or of any Guarantor made herein or in or in any other Loan Document, in any guaranty, or in any certificate, report, financial statement or other instrument or document furnished to Lender shall have been false or misleading in any material respect when made.

(d)Any seizure or forfeiture of the Property, or any portion thereof, or Borrower’s interest therein, resulting from criminal wrongdoing or other unlawful action of Borrower, its affiliates, or any tenant in the Property under any federal, state or local law.

(e)If Borrower consummates a transaction which would cause this Mortgage or Lender’s exercise of its rights under this Mortgage, the Note or the other Loan Documents to constitute a nonexempt prohibited transaction under ERISA or result in a violation of a state statute regulating governmental plans, subjecting Lender to liability for a violation of ERISA or a state statute.

(f)Any default occurs in the performance of any covenant or obligation of Borrower or any other party under any indemnity or guaranty delivered to Lender in connection with the Loan and such default continues beyond the expiration of applicable notice and cure periods.

Upon the occurrence of any one of the above events, and at the option of Lender, the principal of and the interest accrued on the Loan and all other sums secured by this Mortgage and the other Loan Documents shall immediately become due and payable as if all of said sums of money were originally stipulated to be paid on such day.  In addition, Lender may avail itself of all rights and remedies provided by law or equity, and may foreclose or prosecute a suit at law or in equity as if all monies secured hereby had matured prior to its institution, anything in this Mortgage or any of the other Loan Documents to the contrary notwithstanding.  Except as provided hereinabove, Lender shall have no obligation to give Borrower notice of, or any period to cure, any Monetary Default or any Incurable Default (as hereinafter defined) prior to exercising its rights, powers, privileges and remedies.

As used herein, the term “Monetary Default” shall mean any default which can be cured by the payment of money such as, but not limited to, the payment of principal and interest due under the Note, or the payment of taxes, assessments and insurance premiums when due as provided in this Mortgage.  As used herein, the term “Non-Monetary Default” shall mean any default that is not a Monetary Default or an Incurable Default.  As used herein, the term “Incurable Default” shall mean either: (i) any voluntary or involuntary sale, assignment, mortgaging, encumbering or transfer in violation of the covenants contained herein or any of the other Loan Documents; or (ii) if Borrower, or any person or entity comprising Borrower or any guarantor or indemnitor of the Loan, should breach any of the provisions of Section 22.

24. Foreclosure.  Upon the occurrence of a default hereunder, Lender may institute an action to foreclose this Mortgage as to the amount so declared due and payable, and thereupon

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the Property (or any portion thereof) shall be sold according to law to satisfy and pay the same, together with all costs, expenses and allowances thereof, including, without limitation, Reasonable Attorneys’ Fees.  The Property may be sold in one parcel, several parcels or groups of parcels, and Lender shall be entitled to bid at the sale, and, if Lender is the highest bidder for the Property or any part or parts thereof, Lender shall be entitled to purchase the same.  The failure or omission on the part of Lender to exercise the option for acceleration of maturity of the Note and foreclosure of this Mortgage following any default as aforesaid or to exercise any other option or remedy granted hereunder to Lender when entitled to do so in any one or more instances, or the acceptance by Lender of partial payment of the Loan secured hereby, whether before or subsequent to Borrower’s default hereunder, shall not constitute a waiver of any such default or the right to exercise any such option or remedy, but such option or remedy shall remain continuously in force.  Acceleration of the maturity of the Note, once claimed hereunder by Lender, at the option of Lender, may be rescinded by written acknowledgment to that effect by Lender, but the tender and acceptance of partial payments alone shall not in any way either affect or rescind such acceleration of maturity, nor act as a waiver, accord and satisfaction, modification, novation or similar defense.

25.UCC Remedies.  Upon the occurrence of a default, Lender may exercise its rights of enforcement with respect to the Fixtures and Personal Property under the UCC, and in conjunction with, in addition to or in substitution for those rights and remedies:

(a)Written Notice mailed to Borrower as provided herein ten (10) days prior to the date of public sale of the Fixtures and Personal Property or prior to the date after which private sale of the Fixtures and Personal Property will be made shall constitute reasonable notice;

(b)any sale made pursuant to the provisions of this Section shall be deemed to have been a public sale conducted in a commercially reasonable manner if held contemporaneously with the sale of the Mortgaged Property under power of sale as provided herein upon giving the same notice with respect to the sale of the Fixtures and Personal Property hereunder as is required for such sale of the Mortgaged Property under power of sale;

(c)in the event of a foreclosure sale, whether made under the terms hereof, or under judgment of a court, the Fixtures and Personal Property and the Mortgaged Property may, at the option of Lender, be sold as a whole;

(d)it shall not be necessary that Lender take possession of the Fixtures and Personal Property or any part thereof prior to the time that any sale pursuant to the provisions of this Section is conducted and it shall not be necessary that the Fixtures and Personal Property or any part thereof be present at the location of such sale;

(e)prior to application of proceeds of disposition of the Fixtures and Personal Property to the secured indebtedness, such proceeds shall be applied to the reasonable expenses of retaking, holding, preparing for sale or lease, selling, leasing and the like and the Reasonable Attorneys Fees and other legal expenses incurred by Lender;

(f)any and all statements of fact or other recitals made in any bill of sale or assignment or other instrument evidencing any foreclosure sale hereunder as to nonpayment of

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the indebtedness or as to the occurrence of any default, or as to Lender having declared all of such indebtedness to be due and payable, or as to notice of time, place and terms of sale and of the properties to be sold having been duly given, or as to any other act or thing having been duly done by Lender, shall be taken as prima facie evidence of the truth of the facts so stated and recited;

(g)Lender may appoint or delegate any one (1) or more persons as agent to perform any act or acts necessary or incident to any sale held by Lender, including the sending of notices and the conduct of the sale, but in the name and on behalf of Lender; and

(h)this Mortgage covers Goods which are or are to become Fixtures related to the Real Property, and covers As-Extracted Collateral related to the Real Property.  A carbon, photographic or other reproduction of this Mortgage or of any financing statement relating to this Mortgage shall be sufficient as a financing statement.  This Mortgage shall be effective as a financing statement filed as a fixture filing with respect to all fixtures included within the Property and is to be filed for record in the real estate records in the Office of the County Clerk where the Property (including said fixtures) is situated.  This Mortgage shall also be effective as a financing statement As-Extracted Collateral with respect to all As-Extracted Collateral included within the Real Property (including, without limitation, all oil, gas, other minerals, and other substances of value which may be extracted from the earth and all accounts arising out of the sale at the wellhead or minehead thereof), and is to be filed for record in the real estate records of the county where the Property is situated.  The mailing address of Borrower is set forth in Section 43 of this Mortgage and the address of Lender from which information concerning the security interest may be obtained is the address of Lender set forth in Section 43 of this Mortgage.

26.Protection of Lender’s Security.  At any time after default hereunder, Lender, or Lender’s agents or contractors, is authorized, without notice and in Lender’s sole discretion, to enter upon and take possession of the Property or any part thereof, and to perform any acts which Lender deems necessary or proper to conserve the security interest herein intended to be provided by the Property, to operate any business or businesses conducted thereon, and to collect and receive all Rents thereof and therefrom, including those past due as well as those accruing thereafter.

27.Appointment of Receiver.  If, at any time after a default hereunder, Lender deems, in Lender’s sole discretion, that a receivership may be necessary to protect the Property or its Rents, whether before or after maturity of the Note and whether before or at the time of or after the institution of foreclosure or suit to collect the Loan or to enforce this Mortgage or any of the other Loan Documents, Lender, as a matter of strict right and regardless of the value of the Property or the amounts due hereunder or secured hereby, or of the solvency of any party bound for the payment of such indebtedness, shall have the right, upon ex parte application and without notice to anyone, and by any court having jurisdiction, to the appointment of a receiver to take charge of, manage, preserve, protect and operate the Property, to collect the Rents thereof, to make all necessary and needful repairs, and to pay all taxes, assessments, insurance premiums and other such charges against and expenses of the Property, and to do such other acts as may by such court be authorized and directed, and after payment of the expenses of the receivership and the management of the Property, to apply the net proceeds of such receivership in reduction of

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the Loan or in such other manner as the said court shall direct notwithstanding the fact that the amount owing thereon may not then be due and payable or the said Loan is otherwise adequately secured.  Such receivership shall, at the option of Lender, continue until full payment of all sums hereby secured or until title to the Property shall have passed by sale under this Mortgage.  Borrower hereby specifically waives its right to object to the appointment of a receiver as aforesaid, and hereby expressly agrees that such appointment shall be made as an admitted equity and as a matter of absolute right to Lender.

28.Rights and Remedies Cumulative; Forbearance Not a Waiver. The rights and remedies herein provided are cumulative, and Lender, as the holder of the Note and of every other obligation secured hereby, may recover judgment thereon, issue execution therefor and resort to every other right or remedy available at law or in equity, without first exhausting any right or remedy available to Lender and without affecting or impairing the security of any right or remedy afforded hereby, and no enumeration of special rights or powers by any provisions hereof shall be construed to limit any grant of general rights or powers, or to take away or limit any and all rights granted to or vested in Lender by law or equity.  Borrower further agrees that no delay or omission on the part of Lender to exercise any rights or powers accruing to it hereunder shall impair any such right or power, or shall be construed to be a waiver of any such default hereunder or an acquiescence therein; and every right, power and remedy granted herein or by law or equity to Lender may be exercised from time to time as often as Lender deems expedient.

Lender may resort to any security given by this Mortgage or to any other security now existing or hereafter given to secure the payment of the Loan, in whole or in part, and in such portions and in such order as may seem best to Lender in its sole discretion, and any such action shall not be considered as a waiver of any of the rights, benefits, liens or security interests evidenced by this Mortgage.  To the full extent Borrower may do so, Borrower agrees that Borrower will not at any time insist upon, plead, claim or take the benefit or advantage of any law now or hereafter in force pertaining to the rights and remedies of sureties or providing for any appraisement, valuation, stay, extension or redemption, and Borrower, for Borrower and Borrower’s heirs, devisees, representatives, successors and assigns, and for any and all persons ever claiming any interest in the Property, to the extent permitted by law, hereby waives and releases all rights of redemption, valuation, appraisement, stay of execution, notice of intention to mature or declare due the whole of the secured indebtedness, notice of election to mature or declare due the whole of the secured indebtedness and all rights to a marshaling of the assets of Borrower, including the Property, or to a sale in inverse order of alienation in the event of foreclosure of the liens and security interests hereby created.  Borrower shall not have or assert any right under any statute or rule of law pertaining to the marshaling of assets, sale in inverse order of alienation, the exemption of homestead, the administration of estates of decedents or other matters whatever to defeat, reduce or affect the right of Lender under the terms of this Mortgage to a sale of the Property for the collection of the secured indebtedness without any prior or different resort for collection, or the right of Lender under the terms of this Mortgage to the payment of such indebtedness out of the proceeds of sale of the Property in preference to every other claimant whatever.  If any law referred to in this Section and now in force, of which Borrower or Borrower’s heirs, devisees, representatives, successors and assigns and such other persons claiming any interest in the Property might take advantage despite this Section, shall

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hereafter be repealed or cease to be in force, such law shall not thereafter be deemed to preclude the application of this Section.

29.Modification Not an Impairment of Security.  Lender, without notice and without regard to the consideration, if any, paid therefor, and notwithstanding the existence at that time of any inferior mortgages, deeds of trust, or other liens thereon, may release any part of the security described herein, or may release any person or entity liable for the Loan secured hereby without in any way affecting the priority of this Mortgage, to the full extent of the Loan remaining unpaid hereunder, upon any part of the security not expressly released.  Lender may, at its option and within Lender’s sole discretion, also agree with any party obligated on the Loan, or having any interest in the security described herein, to extend the time for payment of any part or all of the Loan, and such agreement shall not, in any way, release or impair this Mortgage, but shall extend the same as against the title of all parties having any interest in said security, which interest is subject to this Mortgage.

30.Property Management and Leasing.  The exclusive manager of the Property shall be Borrower, or such other manager as may be first approved in writing by Lender.  The exclusive leasing agent of the Property, if other than Borrower or the foregoing party, shall be first approved in writing by Lender.  The management and leasing contracts (or in the absence of any such written contract, a letter so stating and further identifying the name of the person or entity charged with the responsibility for managing and/or leasing the Property)  shall be subordinate to this Mortgage, and satisfactory to and subject to the prior written approval of Lender throughout the term of the Loan.  Upon default in either of these requirements, then the whole of the Loan hereby secured shall, at the election of Lender, become immediately due and payable, together with any Prepayment Premium, late payment charges and all other sums required by the Note or the other Loan Documents, and Lender shall be entitled to exercise any or all remedies provided for or referenced in this Mortgage.

31.Modification Not a Waiver.  In the event Lender (a) releases, as aforesaid, any part of the security described herein or any person or entity liable for the Loan; (b) grants an extension of time for the payment of the Note; (c) takes other or additional security for the payment of the Note; or (d) waives or fails to exercise any rights granted herein, in the Note, or any of the other Loan Documents, any said act or omission shall not release Borrower, subsequent purchasers of the Property or any part thereof, or makers, sureties, endorsers or guarantors of the Note, if any, from any obligation or any covenant of this Mortgage, the Note or any of the other Loan Documents, nor preclude Lender from exercising any right, power or privilege herein granted or intended to be granted in the event of any other default then made, or any subsequent default.

32.Transfer of Property or Controlling Interest in Borrower: Assumption.  Except as set forth in Section 38(b) hereof, without the prior written consent of Lender, the sale, transfer, assignment or conveyance of all or any portion of the Property, or the transfer, assignment or conveyance of a controlling interest in Borrower or its general partner or managing member, or any guarantor, whether voluntary or by operation of law, without the prior written consent of Lender, shall constitute a default hereunder, and entitle Lender, at Lender’s sole option, to accelerate all sums due on the Note, together with any Prepayment Premiums (to the extent permitted by the Laws of the State of Florida), late payment charges or any other amounts

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secured hereby.  Lender may, however, elect to waive the option to accelerate granted hereunder if, prior to any such sale, transfer, assignment or conveyance of the Property, the following conditions shall be fully satisfied: (a) Lender acknowledges in writing that, in Lender’s sole discretion, the creditworthiness of the proposed transferee and the ability and experience of the proposed transferee to operate the Property are satisfactory to Lender; (b) Lender and the proposed transferee shall enter into an agreement in writing that (i) the rate of interest payable on the Loan secured hereby shall be at such rate as Lender shall determine, (ii) the repayment schedule as set forth in the Note shall be modified by Lender, in Lender’s sole discretion, to initiate amortization or modify the existing amortization schedule in order to amortize the then remaining unpaid principal balance of the Note secured hereby over a period of time as determined by Lender, in Lender’s sole discretion, without a change in the maturity date of the Note, and (iii) the proposed transferee shall assume all obligations of Borrower under the Note, this Mortgage and the other Loan Documents in writing and an assumption fee, to be determined by Lender in Lender’s sole discretion, may be charged by Lender; (c) Lender shall receive, for Lender’s review and approval, copies of all transfer documents; and (d) Borrower or the transferee shall pay all costs and expenses in connection with such transfer and assumption, including, without limitation, all fees and expenses incurred by Lender. Notwithstanding the foregoing, Lender acknowledges that Borrower’s general partner is a publicly traded real estate investment trust (“REIT”) and that such general partner shares are freely traded in the public markets.  Transfers of shares of the general partner in the ordinary course of such trading shall not be a default under the loan documents.

Borrower, or any subsequent owner of the Property or any portion thereof, shall do all things necessary to preserve and keep in full force and effect its and their legal existence, franchises, rights and privileges as a corporation, partnership or limited liability company, as the case may be, under the laws of the State of its formation and its right to own property and transact business in the State of Florida.  It shall be a default hereunder if Borrower, or any subsequent owner of the Property or any portion thereof, shall amend, modify, transfer, assign or terminate the applicable governing documents for such entity, including its partnership agreement, certificate of partnership, operating agreement, articles of organization, regulations, articles of incorporation or bylaws, as the case may be (as applicable, the “Governing Documents”), of Borrower or such subsequent owner without the prior written consent of Lender.  Borrower, or such subsequent owner of the Property, shall provide Lender with copies of any proposed amendment to its applicable Governing Documents, so that Lender may, in Lender’s sole discretion, determine whether such amendment adversely affects Lender, the Property or the security value thereof.  Provided, however, that any amendment, modification, transfer, assignment or termination of Borrower’s applicable Governing Documents or any other action pursuant to which the current general partner or managing member of Borrower shall either: (i) cease to be the general partner or managing member of Borrower; or (ii) except to the extent permitted herein, cease to own or maintain a partnership or membership interest in Borrower equal to or greater than its partnership or membership interest at the time this Mortgage is executed, shall be deemed to have a material adverse effect upon Lender and the Property, and shall be a default hereunder.

Borrower shall not change its name or identity in any manner which may make any financing or continuation statement filed in connection with the Loan seriously misleading within the meaning of the UCC enacted in the State of Florida or change its jurisdiction of

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organization unless Borrower shall have delivered to Lender written notice thereof not less than thirty (30) days before the effective date of such change and shall have taken all action which Lender determines to be reasonably necessary or desirable to confirm and protect Lender’s security interests and rights under this Mortgage and the perfection and priority thereof.  Borrower will not change its principal places of business unless it shall have given Lender prior written notice of its intent to do so not less than thirty (30) days in advance of the effective date of such change.  Borrower shall bear all costs incurred by Lender in connection with any such change including, without limitation, Reasonable Attorney’s Fees.

In the event the ownership of the Property, or any part thereof, shall become vested in a person or entity other than Borrower, whether with or without the prior written consent of Lender, Lender may, without notice to Borrower, deal with such successor or successors in interest with reference to the Property, this Mortgage and the other Loan Documents, in the same manner and to the same extent as with Borrower without in any way vitiating or discharging Borrower’s liability hereunder or under any of the Loan Documents.  No sale, transfer or conveyance of the Property, no forbearance on the part of Lender and no extension of time given by Lender to Borrower for the payment of the Note shall operate to release, discharge, modify, change or affect the original liability of Borrower, either in whole or in part, unless expressly set forth in writing executed by Lender.  Notwithstanding anything contained herein to the contrary, Borrower hereby waives any right it now has or may hereafter have to require Lender to prove an impairment of its security as a condition to the exercise of Lender’s rights under this Section 32.

A sale, transfer, assignment or conveyance within the meaning of this Section shall be deemed to include, but not be limited to: (a) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (b) an agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a tenant under an Occupancy Lease or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any leases or any Rents; (c) if Borrower, any guarantor, any indemnitor, or any general partner or managing member of Borrower, is a corporation, the voluntary or involuntary sale, conveyance, transfer or pledge of such corporation’s stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise), or the creation or issuance of new stock by which an aggregate of more than ten percent (10%) of such corporation’s stock shall be vested in a party or parties who are not now stockholders; and (d) if Borrower, any guarantor, indemnitor, or any general partner or managing member of Borrower, is a limited partnership, general partnership, limited liability partnership, limited liability company, or joint venture, the change, removal or resignation of a general partner, managing partner, or member, or the transfer or pledge of the interest of any general partner, managing partner, or member or any profits or proceeds relating to such interest.

Notwithstanding anything contained in this Section 32 to the contrary, including the immediately-preceding paragraph, as long as no default has occurred hereunder or under the Note and is continuing beyond the expiration of any applicable cure period, ownership interests in Borrower or the Property (provided that there shall be no more than one owner of the Property) may be transferred or assigned to The Inland Group, Inc. or Inland Real Estate Investment Corporation, to an Affiliate of The Inland Group, Inc. or Inland Retail Real Estate Trust Investment Corporation or to a real estate investment trust sponsored by one of the

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foregoing entities provided that Inland Western Retail Real Estate Trust, Inc. ratifies its obligations as indemnitor and guarantor under the Indemnity Agreement and Guaranty Agreement of even date herewith in favor of Lender, and such Affiliate or real estate investment trust retains management and operating control of Borrower, without necessity of Lender’s consent and without payment of a fee or premium except Lender’s actual reasonable fees so long as the transferee assumes (subject to the non-recourse provisions and carve-outs contained therein) all obligations of the transferor, if any, under the Note and the Loan Documents, if any.  “Affiliate” shall mean, with respect to a party, any person or entity that controls, is controlled by or is under common control with such party, with “control” and its derivatives meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such party, whether through the ownership of voting stock, partnership interests or units or limited liability company membership interests or by contract or otherwise.  No transfer or assignment shall be valid or permitted hereunder unless Lender has received prior written notice of the transfer or assignment and copies of all transfer and other related documents and Borrower pays all reasonable fees and expenses incurred by Lender in connection with such transfer and assumption, including, without limitation, title insurance charges (if the proposed transfer would impair Lender’s title insurance) and Reasonable Attorneys’ Fees.  Any transfer of which does not strictly comply with the terms and conditions of this Section 32 shall be a default hereunder and shall entitle Lender to exercise all rights and remedies provided in this Mortgage.

33.Further Encumbrance Prohibited; Subrogation.  So long as the Note remains unpaid, Borrower shall not, either voluntarily or involuntarily, permit the Property or any part thereof to become subject to any secondary or subordinate lien, mortgage, deed of trust, security interest or encumbrance of any kind whatsoever without the prior written consent of Lender, and the imposition of any such secondary lien, mortgage, deed of trust, security interest or encumbrance without the approval of Lender shall constitute a default hereunder, and entitle Lender, at Lender’s sole option, to declare the outstanding principal balance of the Note, all accrued and unpaid interest thereon, Prepayment Premiums (to the extent permitted by the laws of the State of Florida, late payment charges and any other amounts secured hereby to be and become immediately due and payable in full.  In the event that Lender shall hereafter give its written consent to the imposition of any such secondary lien, mortgage, deed of trust, security interest or other encumbrance upon the Property, Lender, at Lender’s sole option, shall be entitled to accelerate the maturity of the Note and exercise any and all remedies provided and available to Lender hereunder and in the other Loan Documents in the event that the holder of any such secondary lien or encumbrance shall institute foreclosure or other proceedings to enforce the same; it being understood and agreed that a default under any instrument or document evidencing, securing or secured by any such secondary lien or encumbrance shall be and constitute a default hereunder.  In the event all or any portion of the proceeds of the Loan are used for the purpose of retiring debt or debts secured by prior liens on the Property, Lender shall be subrogated to the rights and lien priority of the holder or holders of the lien or liens so discharged.

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34.Conveyance of Mineral Rights Prohibited.   Borrower agrees that the making of any oil, gas or mineral lease, or the sale or conveyance of any mineral interest or right to explore for minerals under, through or upon the Property, would impair the value of the Property, and that Borrower shall have no right, power or authority to lease the Property, or any part thereof, for oil, gas or other mineral purposes, or to grant, assign or convey any mineral interest of any nature, or the right to explore for oil, gas and other minerals, without first obtaining Lender’s express written permission therefor, which permission shall not be valid until recorded among the Public Records of Brevard County, in the State of Florida.  Borrower further agrees that if Borrower shall make, execute, or enter into any such lease or attempt to grant any such mineral rights without such prior written permission of Lender, then Lender shall have the option, without notice, to declare the same to be a default hereunder, and to declare the Loan immediately due and payable in full.  Whether or not Lender shall consent to such lease or grant of mineral rights, Lender shall receive the entire consideration to be paid for any such lease or grant of mineral rights, with the same to be applied to the Loan notwithstanding the fact that the amount owing thereon may not then be due and payable or that the Loan is otherwise adequately secured; provided, however, that the acceptance of such consideration shall in no way impair the lien of this Mortgage on the Property or cure any existing Monetary Default.

35.Estoppel Certification by Borrower.  Borrower, upon request of Lender therefor made either personally or by mail, shall certify in writing to Lender (or any party designated by Lender), in a form satisfactory to Lender or such designee, the amount of principal and interest then outstanding under the terms of the Note and any other sums due and owing under this Mortgage or any of the other Loan Documents, and whether any offsets or defenses exist against the Loan.  Such certification shall be made by Borrower within ten (10) days if the request is made personally, or within twenty (20) days if the request is made by mail.

36.Cross Default.  The Note is also secured by the terms, conditions and provisions of the Assignment and, additionally, may be secured by contracts or agreements of guaranty or other security instruments.  The terms, covenants, conditions and agreements of each security instrument shall be considered a part hereof as fully as if set forth herein verbatim.  Any default under this Mortgage or any of the other Loan Documents shall constitute a default hereunder and under each of the other Loan Documents. Notwithstanding the foregoing, the enforcement or attempted enforcement of this Mortgage or any of the other Loan Documents now or hereafter held by Lender shall not prejudice or in any manner affect the right of Lender to enforce any other Loan Document; it being understood and agreed that Lender shall be entitled to enforce this Mortgage and any of the other Loan Documents now or hereafter held by it in such order and manner as Lender, in its sole discretion, shall determine.

37.Examination of Borrower’s Records.  Borrower will maintain complete and accurate books and records showing in detail the income and expenses of the Property, and will permit Lender and its agents, contractors or representatives to examine said books and records and all supporting vouchers and data during normal business hours and from time to time upon request by Lender, in such place as such books and records are customarily kept.  Borrower will furnish to Lender, within one hundred twenty (120) days after the close of each respective fiscal period annual and semi-annual financial statements (income statements and a balance sheet) for the Borrower and the Property.  These statements shall be in form reasonably acceptable to Lender, shall be prepared in accordance with generally accepted accounting principles, and shall

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include a rent roll, certified as true and correct by Borrower.  The statements shall show in detail all income derived from and expenses incurred in connection with the ownership of the Property, including current annual sales figures for all Major Tenants of the Property if required under the Major Tenant leases or if such financial information is otherwise available.  In the event Borrower fails to provide such statements to Lender within the time prescribed above, Borrower shall pay Lender the sum of TWO HUNDRED AND NO/100 DOLLARS ($200.00) in administrative expenses for each successive month for which the statements are delinquent. Upon a default hereunder beyond any applicable grace or cure periods, Lender shall have the right to require that said financial statements be audited and certified by a certified public accountant acceptable to Lender, at the sole cost and expense of Borrower.

In addition, at the request of Lender, but in no case more often than once a quarter or more than three (3) times during the term of the Loan, Borrower shall furnish to Lender (i) unaudited financial statements (balance sheet, income statement, cash flow statement and current rent roll) covering operation of the Property for periods other than those set forth in the preceding paragraph; (ii) unaudited financial statements (balance sheets, income statements, and cash flow statements) for Borrower, its general partner(s), shareholder(s) or member(s) (whichever is applicable) and for such other principals of Borrower as designated by Lender; and (iii) a portfolio analysis showing annualized cash flow statements (including debt service payments) for all real properties owned by Borrower, its general partner(s), shareholder(s), or member(s) (whichever is applicable) and for such designated principals.  All such statements shall be certified to Lender to be complete, correct, and accurate by the individual (for an individual’s statements) or by an authorized representative of the entity (if statements are for a partnership, corporation or limited liability company).

38.Alteration, Removal and Change in Use of Property Prohibited.  Borrower covenants and agrees to permit or suffer none of the following without the prior written consent of Lender:

(a)Any structural alteration of, or addition to, the Improvements now or hereafter situated upon the Real Property, or the addition of any new buildings or other structure(s) thereto, other than the erection or removal of non-load bearing interior walls; or

(b)The removal, transfer, sale or lease (except for Occupancy Leases) of the Property, except that the removal, replacement or substitution of fixtures, equipment, machinery, apparatus and articles of personal property (replacement or substituted items must be of like or better quality than the removed items in their original condition) encumbered hereby may be made in the normal course of business; or

(c)The use of any of the Improvements now or hereafter situated on the Real Property for any purpose other than the Existing Use and related facilities.

39.Future Advances Secured.  This Mortgage shall secure not only existing indebtedness, but also future advances, whether such advances are obligatory or to be made at the option of Lender.  Upon the request of Borrower, and at Lender’s option prior to release of this Mortgage, Lender may make future advances to Borrower.  All future advances with interest thereon shall be secured by this Mortgage to the same extent as if such future advances were

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made on the date of the execution of this Mortgage unless the parties shall agree otherwise in writing, but the total secured indebtedness shall not exceed at any one time a maximum principal amount equal to double the face amount of the Note plus interest and costs of collection, including court costs and Reasonable Attorneys’ Fees.  Any advances or disbursements made for the benefit or protection of or the payment of taxes, assessments, levies or insurance upon the Property, with interest on such disbursements as provided herein, shall be added to the principal balance of the Note and collected as a part thereof.  To the extent that this Mortgage may secure more than one note, a default in the payment of any such mortgage note shall constitute a default in the payment of all such notes.  The filing of any notice limiting the maximum amount that may be secured by this Mortgage pursuant to Florida Statutes Section 697.04 or otherwise shall be and constitute a default under this Mortgage.

40.Effect of Security Agreement.  Borrower agrees to, and shall upon the request of Lender, execute and deliver to Lender, in form and content satisfactory to Lender, such financing statements, descriptions of property and such further assurances as Lender, in Lender’s sole discretion, may from time to time consider necessary to create, perfect, continue and preserve the lien and encumbrances hereof, and the security interest granted herein, upon and in the Property.  Without the prior written consent of Lender, Borrower shall not create or suffer to be created, pursuant to the UCC, any other security interest in such real and personal property and fixtures described herein.  Upon the occurrence of a default hereunder or Borrower’s breach of any other covenants or agreements between the parties entered into in conjunction herewith, Lender shall have the remedies of a secured party under the UCC as provided in Section 25, and at Lender’s option, the remedies provided for in this Mortgage and the other Loan Documents.  Lender, at the expense of Borrower, may cause such statements, descriptions and assurances, as herein provided in this Section 40, and this Mortgage, to be recorded and re-recorded, filed and refiled, at such times and in such places as may be required or permitted by law to so create, perfect and preserve the lien and encumbrance hereof upon all of the Property.

41.Terms of Application Survive Closing.  The terms and provisions of the letter from Lender consenting to the assumption of the Loan by Borrower dated December 21, 2004 and accepted by Borrower on December 30, 2004 and any subsequent amendments thereto (the “Application”), executed by and between Borrower and Lender, are incorporated herein by reference.  All terms, covenants, conditions and agreements of the Application not expressly set forth in this Mortgage and any of the other Loan Documents shall survive the execution and delivery hereof, and remain in full force and effect.  In the event any conflict exists between the terms, covenants, conditions and agreements of the Application and the Loan Documents, the terms, covenants, conditions and agreements of the Loan Documents shall prevail.

42.Successors and Assigns; Terminology.  The provisions hereof shall be binding upon Borrower and the heirs, personal representatives, trustees, successors and assigns of Borrower, and shall inure to the benefit of Lender, its successors and assigns.  Where more than one (1) Borrower is named herein, the obligations and liabilities of said Borrower shall be joint and several.

Wherever used in this Mortgage, unless the context clearly indicates a contrary intent or unless otherwise specifically provided herein: (a) the word “Borrower” shall mean Borrower

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and/or any subsequent owner or owners of the Property; (b) the word “Lender” shall mean Lender or any subsequent holder or holders of this Mortgage; (c) the word “Note” shall mean the Note(s) secured by this Mortgage; and (d) the word “person” shall mean an individual, trustee, trust, corporation, partnership, limited liability corporation, limited liability partnership, joint venture or unincorporated association.  As used herein, the phrase “Reasonable Attorneys’ Fees” shall mean fees charged by attorneys selected by Lender based upon such attorneys’ then prevailing hourly rates as opposed to any statutory presumption specified by any statute then in effect in the State.  As used herein words of any gender shall include all other genders.

43.Notices.  All notices, reports, requests or other written instruments required or permitted hereunder, shall be in writing, signed by the party giving or making the same, and shall be sent hand-delivered, effective upon receipt, sent by United States Express Mail or by a nationally recognized overnight courier, effective upon receipt, or sent by United States registered or certified mail, postage prepaid, with return receipt requested, deemed effective on the earlier of the day of actual delivery as shown by the addressee’s return receipt or the expiration of three (3) business days after the date of mailing, addressed to the party intended to receive the same at the address set forth below or at such other address as shall be given in writing by any party to another (“Written Notice”):

If to Borrower:	Inland Western Viera Lake Andrew, L.L.C.
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Attention: Steve Grimes
with copy to:	Inland Western Retail Real Estate Trust, Inc.
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Attention: Roberta Matlin
and additional copy to:	The Inland Real Estate Group, Inc.
	Law Department
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Attention: Robert Baum, Esq.
If to Lender:	Nationwide Life Insurance Company
	One Nationwide Plaza
	Columbus, Ohio 43215-2220
	Attention: Real Estate Investment Department, 34T

44.Governing Law; Waiver of Jury Trial; Severability.  BORROWER, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES HEREBY THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY TORT ACTION, AGAINST LENDER, ITS SUCCESSORS AND ASSIGNS, BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO OR IN

34

CONNECTION WITH ANY OF THE LOAN DOCUMENTS, THE LOAN OR ANY COURSE OF CONDUCT, ACT, OMISSION, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, LENDER’S DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH LENDER), IN CONNECTION WITH THE LOAN OR THE LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION, IN ANY COUNTERCLAIM WHICH ANY PARTY MAY BE PERMITTED TO ASSERT THEREUNDER, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.  IN NO EVENT SHALL LENDER, ITS SUCCESSORS OR ASSIGNS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS PROFITS OR OPPORTUNITY) AND BY ITS EXECUTION HEREOF, BORROWER WAIVES ANY RIGHT TO CLAIM OR SEEK ANY SUCH DAMAGES.  THIS MORTGAGE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE FLORIDA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.  THE PARTIES HERETO IRREVOCABLY (A) AGREE THAT ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS MORTGAGE MAY BE BROUGHT IN A COURT OF RECORD IN THE STATE OR IN THE COURTS OF THE UNITED STATES OF AMERICA LOCATED IN SUCH STATE, (B) CONSENT TO THE NON-EXCLUSIVE JURISDICTION OF EACH SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING, AND (C) WAIVE ANY OBJECTION WHICH IT MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY OF SUCH COURTS AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.  IF ANY CLAUSES OR PROVISIONS HEREIN CONTAINED OPERATE, OR WOULD PROSPECTIVELY OPERATE, TO INVALIDATE THIS MORTGAGE, THEN SUCH CLAUSES OR PROVISIONS ONLY SHALL BE HELD FOR NAUGHT, AS THOUGH NOT HEREIN CONTAINED, AND THE REMAINDER OF THIS MORTGAGE SHALL REMAIN OPERATIVE AND IN FULL FORCE AND EFFECT.

45.Rights of Lender Cumulative.  The rights of Lender arising under the terms, covenants, conditions and agreements contained in this Mortgage shall be separate, distinct and cumulative, and none of them shall be in exclusion of the others.  No act of Lender shall be construed as an election to proceed under any one provision herein to the exclusion of any other provisions, anything herein or otherwise to the contrary notwithstanding.  If Borrower is comprised of more than one (1) person or entity, then the liability of each such person and entity hereunder shall be joint and several.

46.Modifications.  This Mortgage cannot be changed, altered, amended or modified except by an agreement in writing and in recordable form, executed by both Borrower and Lender.

47.Exculpation.  Notwithstanding anything contained herein to the contrary, the liability of Borrower is subject to the limited recourse provisions contained in the Exculpation

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section of the Note, which are incorporated herein and made a part hereof by reference as if fully set forth herein.

48.Full Recourse.  Notwithstanding any provisions in this Mortgage to the contrary, including without limitation the provisions set forth in the section captioned “Exculpation” hereinabove, Borrower shall be personally liable, jointly and severally, for the entire Loan secured by this Mortgage (including all principal, interest and other charges) in the event (a) Borrower violates the covenant governing the placing of subordinate financing on the Property as set forth in this Mortgage: (b) Borrower violates the covenant restricting transfers of interests in the Property or transfers of ownership interests in Borrower as set forth in this Mortgage; or (c) Borrower or any guarantor violates the provisions of Section 22 of this Mortgage, or there is filed against Borrower or any guarantor or indemnitor of the Loan, a petition in bankruptcy or for the appointment of a receiver, or there commences under any bankruptcy or insolvency law, proceedings for Borrower’s relief, or for the compromise, extension, arrangement or adjustment of Borrower’s obligations which is not dismissed within thirty (30) days after the filing of same.

49.Lender is Not a Joint Venturer or Partner.  Borrower and Lender acknowledge and agree that in no event shall Lender be deemed to be a partner or joint venturer with Borrower or any member of Borrower.  Without limitation of the foregoing, Lender shall not be deemed to be a partner or joint venturer on account of its becoming a mortgagee in possession or exercising any rights pursuant to this Mortgage or pursuant to any other instrument or document evidencing or securing any of the indebtedness secured hereby, or otherwise.

50.Captions.  The captions set forth at the beginning of the various Sections of this Mortgage are for convenience only, and shall not be used to interpret or construe the provisions of this Mortgage.

51.Trading With the Enemy Act.  Neither the making of the Loan to Borrower (or the use of its proceeds) nor the execution of any of the Loan Documents will violate the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto.  In addition, Borrower warrants, represents and covenants that neither Borrower, Guarantor nor any of their respective affiliated entities is or will be an entity or person (i) that is listed in the Annex to, or is otherwise subject to the provisions of Executive Order 13224 issued on September 24, 2001 (“EO13224”), (ii) whose name appears on the United States Treasury Department’s Office of Foreign Assets Control (“OFAC”) most current list of “Specifically Designed National and Blocked Persons” (which list may be published from time to time in various mediums including, but not limited to, the OFAC website, http:www.treas.gov/ofac/t11sdn.pdf), (iii) who commits, threatens to commit or supports “terrorism”, as that term is defined in EO 13224, or (iv) who is otherwise affiliated with any entity or person listed in subparts (i) – (iv) above (any and all parties or persons described in subparts [i] – [iv] above are herein referred to as a “Prohibited Person”).  Borrower covenants and agrees that neither Borrower, Guarantor nor any of their respective affiliated entities will (i) conduct any business, nor engage in any transaction or dealing, with any Prohibited Person, including, but not limited to, the making or receiving of any contribution of funds, goods, or services, to or for the benefit of a Prohibited Person, or (ii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to

36

violate, any of the prohibitions set forth in EO13224.  Borrower further covenants and agrees to deliver (from time to time) to Lender any such certification or other evidence as may be requested by Lender in its sole and absolute discretion, confirming that (i) neither Borrower nor Guarantor is a Prohibited Person and (ii) neither Borrower nor Guarantor has engaged in any business, transaction or dealings with a Prohibited Person, including, but not limited to, the making or receiving of any contribution of funds, goods, or services, to or for the benefit of a Prohibited Person.

52.Replacement Documents.  Upon receipt of an affidavit of an officer of Lender as to the loss, theft, destruction or mutilation of the Note or any other Loan Document which is not of public record, and, in the case of any such mutilation, upon surrender and cancellation of such Note or other Loan Document, Borrower, at its expense, will issue, in lieu thereof, a replacement Note or other Loan Document, dated the date of such lost, stolen, destroyed or mutilated Note or other Loan Document in the same principal amount thereof and otherwise of like tenor.

53.Sole Discretion of Lender.  Wherever pursuant to this Mortgage Lender exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Lender, the decision of Lender to approve or disapprove or to decide that arrangements or terms are satisfactory or not satisfactory shall be in the sole discretion of Lender and shall be final and conclusive, except as may be otherwise expressly and specifically provided herein.

54.Secondary Market.  Lender may, at any time, sell, transfer or assign the Note, this Mortgage, the Assignment and the other Loan Documents, and any or all servicing rights with respect thereto, or grant participation therein or issue mortgage pass-through certificates or other securities evidencing a beneficial interest in a rated or unrated public offering or private placement. Lender may forward to each Investor and each prospective Investor, all documents and information which Lender now has or may hereafter acquire relating to the Loan and to Borrower, any guarantor and the Property, whether furnished by Borrower, any guarantor or otherwise, as Lender determines necessary or desirable.

[SIGNATURES BEGIN ON NEXT PAGE]

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IN WITNESS WHEREOF, Borrowerhas caused this Mortgage to be executed as of the day and year first above written.

 Signed, sealed and delivered

in the presence of:		INLAND WESTERN VIERA LAKE ANDREW, L.L.C., a Delaware corporation
		By:	Inland Western Retail Real Estate Trust,
			Inc., a Maryland corporation,
			its sole member
/s/ Patricia Clayton			By:	/s/ Debra Palmer
Name:	PATRICIA CLAYTON		Name:			Debra Palmer
			Title:		Assistant Secretary
/s/ Doris E. Ahern					(CORPORATE SEAL)
Name:	DORIS E. AHERN

STATE OF	ILLINOIS
COUNTY OF		DUPAGE

The foregoing instrument was acknowledged before me this 30 day of December, 2004 by Debra Palmer, as Assistant Secretary of Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, sole member of INLAND WESTERN VIERA LAKE ANDREW, L.L.C., a Delaware corporation on behalf of the corporation.  She is personally known to me or has produced                    as identification and did not take an oath.

/s/ Doris E. Ahern
Name:	DORIS E. AHERN
Commission No.:
My Commission Expires:		10-13-08
(SEAL)
OFFICIAL SEAL
DORIS E AHERN
NOTARY PUBLIC  STATE OF ILLINOIS
MY COMMISSION EXPIRES 10/13/08

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	NATIONWIDE LIFE INSURANCE
	COMPANY, an Ohio corporation
	By:
Name:	Name:	, Vice President
Name:	(CORPORATE SEAL)

STATE OF OHIO

COUNTY OF FRANKLIN

The foregoing instrument was acknowledged before me this               day of December, 2004 by                         , as Vice President of NATIONWIDE LIFE INSURANCE COMPANY, an Ohio corporation, on behalf of the corporation.  He/she is personally known to me or has produced                                                       as identification.

Name:

Commission No.:

My Commission Expires:

(SEAL)

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EXHIBIT A

LEGAL DESCRIPTION

40

EXHIBIT “A”

PARCEL 1:

Lot 2, Plat of Wal-Mart at Viera, recorded in Plat Book 48, pages 79 through 81, together with the benefits and burdens and all of Grantor’s right, title and interest in and to “Outparcel Lot 2” as set forth in that certain Easements with Covenants and Restrictions Affecting Land which is recorded in Official Records Book 4406, page 2162, all of the Public Records of Brevard County, Florida.

Together with:

A parcel of land lying within Section 9 & 10, Township 26 South, Range 36 East, Brevard County, Florida, more particularly described as follows:

From the Southeast corner of said Section 9; thence South 88° 40’ 59” West, along the South line of said Section 9, a distance 34.65 feet; thence North 01° 19’ 01” West, 249.21 feet; thence North 14° 31’ 21” West 786.66 feet, thence North 75° 28’39’ East, 270.19 feet to the Point of Beginning; thence North 14° 31’ 21” West 626.54 feet, thence North 75° 29’ 02” East 181.34 feet to the point of a curve, concave Southerly, having a radius of 1900.00 feet; thence Easterly along the arc of said curve to a right, a distance of 360.61 feet through a central angle of 10° 52’ 27”, to a point of reverse curve, concave Northerly, having a radius of 2650.00 feet, thence Easterly along the arc of said curve to the left a distance of 169.61 feet, through a central angle of 03° 40’ 02”; to the Westerly Right of Way of Interstate of 95 (as described in Circuit Court Book 53, Pages 359-363, Public Records of Brevard County, Florida); thence South 14° 30’ 59” East, along the said Westerly Right of Way a distance of 430.56 feet; thence South 04° 15’ 31” East, 437.30 feet; thence South 75° 28’ 39” West 544.32 feet; thence North 14° 31’ 21” West, 295.16 feet; thence South 75° 28’ 39” West, 84.97 feet, to the Point of Beginning.

PARCEL 2:

Lot 4, Plat of Wal-Mart at Viera, recorded in Plat Book 48, pages 79 through 81, together with the benefits and burdens and all of Grantor’s right, title and interest in and to “Outparcel Lot 4” as set forth in that certain Easements with Covenants and Restrictions Affecting Land which is recorded in Official Records Book 4406, page 2162, all of the Public Records of Brevard County, Florida.

EX-10.494

Exhibit 10.494

ASSIGNMENT OF CONTRACT

This ASSIGNMENT OF CONTRACT (the “Assignment”) is made and entered into this 29 day of December, 2004 by INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation (“Assignor”) and INLAND WESTERN CEDAR HILL PLEASANT RUN LIMITED PARTNERSHIP, an Illinois limited partnership (“Assignee”).

Assignor does hereby sell, assign, transfer, set over and convey unto Assignee all of its right, title and interest as under that certain letter agreement dated as of April 21, 2004, as amended, and entered into by PRTC Pleasant Run Towne Crossing, L.P., a Texas limited partnership, as Seller, and Assignor, as (collectively, the “Agreement”), solely as the Agreement applies to the sale and purchase of the property described by the Agreement, located in Cedar Hill, Texas, and being legally described in Exhibit A, attached hereto and made a part hereof.

Assignor represents and warrants that it is the Purchaser under the Agreement, and that it has not sold, assigned, transferred, or encumbered such interest in any way to any other person or entity. By acceptance hereof, Assignee accepts the foregoing Assignment and agrees, from and after the date hereof, to (i) perform all of the obligations of Purchaser under the Agreement, and (ii) indemnify, defend, protect and hold Assignor harmless from and against all claims and liabilities arising under the Agreement.

(signature page follows)

SIGNATURE PAGE FOR
ASSIGNMENT OF CONTRACT BETWEEN
INLAND REAL ESTATE ACQUISITIONS, INC.
AND INLAND WESTERN CEDAR HILL PLEASANT RUN LIMITED PARTNERSHIP

IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to be executed as of the day and year first above written.

ASSIGNOR:
INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
By:			/s/ Karen M. Kautz
Name:			Karen M. Kautz
Title:			Vice President
ASSIGNEE:
INLAND WESTERN CEDAR HILL PLEASANT RUN LIMITED PARTNERSHIP, an Illinois limited partnership
By:		Inland Western Cedar Hill Pleasant Run GP, L.L.C., a Delaware limited liability company
	By:			Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
				By:	/s/ Valerie Medina
				Name:	Valerie Medina
				Title:	Asst. Secretary

EXHIBITS

EXHIBIT A:                  LEGAL DESCRIPTION OF THE PROPERTY

2

EXHIBIT A

LEGAL DESCRIPTION OF THE PROPERTY

3

Exhibit  “A”

TRACT I: Parcel A (Fee)

Lots 8R and 10R, Block A, of PLEASANT RUN TOWNE CROSSING ADDITION, an Addition to the City of Cedar Hill, Dallas County, Texas, according to the Replat thereof recorded in Volume 2003072, Page 61, of the Map Records of Dallas County, Texas.

TRACT I: Parcel B (Fee)

Lots 6 and 7, Block A, of PLEASANT RUN TOWNE CROSSING ADDITION, an Addition to the City of Cedar Hill, Dallas County, Texas, according to the Plat thereof recorded in Volume 2003012, Page 20, of the Map Records of Dallas County, Texas.

and

Lot 3R, Block A, of PLEASANT RUN TOWNE CROSSING ADDITION, an Addition to the City of Cedar Hill, Dallas County, Texas, according to the Replat thereof recorded in Volume 2003231, Page 64, of the Map Records of Dallas County, Texas, same being the Replat of Lots 3, 4 and 5 in Block A of Pleasant Run Towne Crossing Addition as recorded in Volume 2003012, Page 20 of the Deed Records of Dallas County, Texas

TRACT I: Parcel C (Fee)

Lots 2R and 9R-1, Block A, of PLEASANT RUN TOWNE CROSSING ADDITION, an Addition to the City of Cedar Hill, Dallas County, Texas, according to the Replat thereof recorded in Volume 2004248, Page 00262, of the Map Records of Dallas County, Texas.

TRACT II: (Easement)

Non-Exclusive easement for access, parking, and ingress and egress and utilities as created in that certain Operation and Easement Agreement dated November 18, 2002 by and between Target Corporation and PRTC Pleasant Run Towne Crossing, L.P., recorded in Volume 2002230, Page 3350, Deed Records of Dallas County, Texas.

4

EX-10.495

Exhibit 10.495

Loan No. 10025002

PROMISSORY NOTE

$22,800,000.00

December 30, 2004

FOR VALUE RECEIVED, INLAND WESTERN CEDAR HILL PLEASANT RUN LIMITED PARTNERSHIP, an Illinois limited partnership, having its principal place of business at 2901 Butterfield Road, Oak Brook, Illinois 60523, as maker hereunder (referred to herein as “Borrower”) hereby unconditionally promises to pay to the order of KEYBANK NATIONAL ASSOCIATION, a national banking association, its successors and assigns, having an address at 911 Main Street, Suite 1500, Kansas City, Missouri 64105 (“Lender”), or at such other place as the holder hereof may from time to time designate in writing, the principal sum of TWENTY-TWO MILLION EIGHT HUNDRED THOUSAND AND NO/100 DOLLARS ($22,800,000.00), in lawful money of the United States of America with interest thereon to be computed from the date of this Note at the Interest Rate, and to be paid in accordance with the terms of this Note and that certain Loan Agreement, dated as of the date hereof, between Borrower and Lender (the “Loan Agreement”). All capitalized terms not defined herein shall have the respective meanings set forth in the Loan Agreement.

ARTICLE 1

PAYMENT TERMS

Borrower agrees to pay interest on the unpaid principal sum of this Note from time to time outstanding at the rates and at the times specified in the Loan Agreement and the outstanding balance of the principal sum of this Note and all accrued and unpaid interest thereon shall be due and payable on the Maturity Date. This Note shall be the “Note” as defined in the Loan Agreement.

ARTICLE 2

DEFAULT AND ACCELERATION

The Debt shall without notice become immediately due and payable at the option of Lender if any payment required in this Note is not paid on or prior to the date when due or if not paid on the Maturity Date or on the happening of any other Event of Default.

ARTICLE 3

LOAN DOCUMENTS

This Note is secured by the Mortgage and the other Loan Documents. All of the terms, covenants and conditions contained in the Loan Agreement, the Mortgage and the other Loan Documents are hereby made part of this Note to the same extent and with the same force as if they were fully set forth herein. In the event of a conflict or inconsistency between the terms of this Note and the Loan Agreement, the terms and provisions of the Loan Agreement shall govern.

ARTICLE 4

SAVINGS CLAUSE

It is expressly stipulated and agreed to be the intent of Borrower and Lender at all times to comply strictly with the applicable Texas law, or federal law (if applicable), governing the maximum rate or amount of interest payable on the indebtedness evidenced by this Note and the Loan Documents.  All agreements in this Note and all other Loan Documents, whether now existing or hereafter arising and whether written or oral are expressly limited so that in no contingency or event whatsoever, whether by reason of acceleration of maturity of the indebtedness evidenced hereby, prepayment, or otherwise, shall the amount agreed to be paid hereunder for the use, forbearance, or detention of money exceed the highest lawful rate permitted under applicable usury laws (the “Maximum Amount”).  To the extent Chapter 303 of the Texas Finance Code, and its successor statutes and amendments, as then in effect (collectively, the ‘‘Statute”),are applicable, the “weekly ceiling” specified in the Statute, as selected by Lender, is the applicable ceiling. Lender may, in accordance with and to the extent permitted by applicable law, at its option and from time to time revise its election of the applicable “rate ceiling” as to current and future balances outstanding, and may use the “quarterly ceiling” or the “monthly ceiling” from time to time in effect, as such terms are defined inthe Statute, or any other legally available “ceilings” as the Maximum Amount under Texas or other applicable law. If the Maximum Amount as determined under any applicable federal law shall at any time exceed the maximum rate of interest as determined under applicable Texas law, then to the extent permitted by law, the applicable federal rate shall be deemed controlling for purposes of determining the Maximum Amount during such period of time. In no event shall the provisions of Chapter 346 of the Texas Finance Code (which regulate certain revolving credit loan accounts and revolving triparty accounts) apply to the indebtedness evidenced hereby. This Article 4 will control all agreements between Borrower and Lender. If, from any circumstance whatsoever (including without limitation, the receipt of any late charge or similar amount), fulfillment of any provision of this Note or any other Loan Document at the time performance of such provision shall be due shall involve exceeding any usury limit prescribed by law that a court of competent jurisdiction may deem applicable hereto, then, ipso facto, the obligations to be fulfilled shall be reduced to allow compliance with such limit, and if, from any circumstance whatsoever, Lender shall ever receive anything of value deemed interest in an amount that would exceed the highest lawful rate, the receipt of such excess shall be deemed a mistake and shall be canceled automatically or, if theretofore paid, such excess shall be credited against the principal amount of the indebtedness evidenced hereby to which the same may lawfully be credited, and any portion of such excess not capable of being so credited shall be refunded immediately to Borrower.  Borrower hereby agrees that, as a condition precedent to any claim seeking usury penalties against Lender, Borrower will provide written notice to Lender, advising Lender in reasonable detail of the nature and amount of the violation, and Lender shall have sixty (60) days after receipt of such notice in which to correct such usury violation, if any, by either refunding such excess interest to Borrower or crediting such excess interest against this Note and/or the indebtedness evidenced hereby or in the Loan Documents then owing by Borrower to Lender. All interest contracted for, charged, taken, reserved, paid or agreed to be paid to Lender shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full term of this Note, including any extensions and renewals hereof until payment in full of the principal balance of this Note so that the interest thereon for such full term will not exceed at any time the Maximum Amount.

2

ARTICLE 5

NO ORAL CHANGE

This Note may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Borrower or Lender, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.

ARTICLE 6

WAIVERS

Borrower and all others who may become liable for the payment of all or any part of the Debt do hereby severally waive presentment and demand for payment, notice of dishonor, notice of intention to accelerate, notice of acceleration, protest and notice of protest and non-payment and all other notices of any kind.  No release of any security for the Debt or extension of time for payment of this Note or any installment hereof, and no alteration, amendment or waiver of any provision of this Note, the Loan Agreement or the other Loan Documents made by agreement between Lender or any other Person shall release, modify, amend, waive, extend, change, discharge, terminate or affect the liability of Borrower, and any other Person who may become liable for the payment of all or any part of the Debt, under this Note, the Loan Agreement or the other Loan Documents. No notice to or demand on Borrower shall be deemed to be a waiver of the obligation of Borrower or of the right of Lender to take further action without further notice or demand as provided for in this Note, the Loan Agreement or the other Loan Documents.  If Borrower is a partnership, the agreements herein contained shall remain in force and applicable, notwithstanding any changes in the individuals comprising the partnership, and the term “Borrower,” as used herein, shall include any alternate or successor partnership, but any predecessor partnership and their partners shall not thereby be released from any liability.  If Borrower is a limited liability company, the agreements herein contained shall remain in force and applicable, notwithstanding any changes in the members comprising the company, and the term “Borrower,” as used herein, shall include any alternate or successor company, but any predecessor company and its members shall not thereby be released from any liability.  If Borrower is a corporation, the agreements contained herein shall remain in full force and applicable notwithstanding any changes in the shareholders comprising, or the officers and directors relating to, the corporation, and the term “Borrower” as used herein, shall include any alternative or successor corporation, but any predecessor corporation shall not be relieved of liability hereunder.  (Nothing in the foregoing sentence shall be construed as a consent to, or a waiver of, any prohibition or restriction on transfers of interests in such entity which may be set forth in the Loan Agreement, the Mortgage or any other Loan Document.)

ARTICLE 7

TRANSFER

Upon the transfer of this Note, Borrower hereby waiving notice of any such transfer except as provided in the Loan Agreement, Lender may deliver all the collateral mortgaged, granted, pledged or assigned pursuant to the Loan Documents, or any part thereof, to the transferee who shall thereupon become vested with all the rights herein or under applicable law given to Lender with respect thereto, and Lender shall from that date forward forever be relieved

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and fully discharged from any liability or responsibility in the matter; but Lender shall retain all rights hereby given to it with respect to any liabilities and the collateral not so transferred.

ARTICLE 8

EXCULPATION

The provisions of Section 9.4 of the Loan Agreement are hereby incorporated by reference into this Note to the same extent and with the same force as if fully set forth herein.

ARTICLE 9

GOVERNING LAW

THIS NOTE SHALL BE DEEMED TO BE A CONTRACT ENTERED INTO PURSUANT TO THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND SHALL IN ALL RESPECTS BE GOVERNED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND APPLICABLE FEDERAL LAWS.

ARTICLE 10

NOTICES

All notices or other written communications hereunder shall be delivered in accordance with Section 10.6 of the Loan Agreement.

[NO FURTHER TEXT ON THIS PAGE]

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IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and year first above written.

BORROWER:
INLAND WESTERN CEDAR HILL PLEASANT RUN LIMITED PARTNERSHIP, an Illinois limited partnership
By:		Inland Western Cedar Hill Pleasant Run GP, L.L.C., a Delaware limited liability company, its general partner
	By:		Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
			By:	/s/ Debra A. Palmer
			Name:	Debra A. Palmer
			Title:	Assistant Secretary

Pay to the order of                                                                     , without recourse.

KEYBANK NATIONAL ASSOCIATION, a
national banking association

By:

Print Name:

Print Title:

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STATE OF ILLINOIS

COUNTY OF DUPAGE

On this 29 day of December, 2004, before me, Doris E. Ahern, a Notary Public in and for said state, personally appeared Debra A. Palmer, who being by me duly sworn did say that she is the Assistant Secretary of Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, the sole member of Inland Western Cedar Hill Pleasant Run GP, L.L.C., a Delaware limited liability company, the general partner of Inland Western Cedar Hill Pleasant Run Limited Partnership, an Illinois limited partnership, and that the within instrument was signed and sealed in behalf of said entities.

[Notarial Seal]		/s/ Doris E. Ahern
		Print Name:	Doris E. Ahern
My commission expires :	10/13/08

OFFICIAL SEAL

DORIS E AHERN

NOTARY PUBLIC STATE OF ILLINOIS

MY COMMISSION EXPIRES 10/13/08

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EX-10.496

Exhibit 10.496

THIS INSTRUMENT CONTAINS INDEMNIFICATION PROVISIONS LIMITING LENDER’S LIABILITY FOR NEGLIGENCE.

Loan No. 10025002

LOAN AGREEMENT

Dated as of December 30, 2004

Between

INLAND WESTERN CEDAR HILL PLEASANT RUN LIMITED PARTNERSHIP,

as Borrower

and

KEYBANK NATIONAL ASSOCIATION,

as Lender

TABLE OF CONTENTS

ARTICLE I	DEFINITIONS; PRINCIPLES OF CONSTRUCTION
Section 1.1	Definitions
Section 1.2	Principles of Construction
ARTICLE II	GENERAL TERMS
Section 2.1	Loan Commitment; Disbursement to Borrower
Section 2.2	Interest; Loan Payments; Late Payment Charge
Section 2.3	Prepayments
Section 2.4	Intentionally Omitted
Section 2.5	Release of Property
Section 2.6	Manner of Making Payments
ARTICLE III	CONDITIONS PRECEDENT
Section 3.1	Conditions Precedent to Closing
ARTICLE IV	REPRESENTATIONS AND WARRANTIES
Section 4.1	Borrower Representations
Section 4.2	Survival of Representations
ARTICLE V	BORROWER COVENANTS
Section 5.1	Affirmative Covenants
Section 5.2	Negative Covenants
ARTICLE VI	INSURANCE; CASUALTY; CONDEMNATION
Section 6.1	Insurance
Section 6.2	Casualty
Section 6.3	Condemnation
Section 6.4	Restoration
ARTICLE VII	RESERVE FUNDS
Section 7.1	Required Repair Funds
Section 7.2	Tax and Insurance Escrow Fund
Section 7.3	Replacements and Replacement Reserve
Section 7.4	Intentionally Deleted
Section 7.5	Intentionally Deleted
Section 7.6	Intentionally Deleted
Section 7.7	Reserve Funds, Generally
ARTICLE VIII	DEFAULTS
Section 8.1	Event of Default
Section 8.2	Remedies
Section 8.3	Remedies Cumulative; Waivers
ARTICLE IX	SPECIAL PROVISIONS
Section 9.1	Sale of Notes and Securitization
Section 9.2	Securitization
Section 9.3	Rating Surveillance
Section 9.4	Exculpation
Section 9.5	Termination of Manager
Section 9.6	Servicer
Section 9.7	Splitting the Loan

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ARTICLE X	MISCELLANEOUS
Section 10.1	Survival
Section 10.2	Lender’s Discretion
Section 10.3	Governing Law
Section 10.4	Modification, Waiver in Writing
Section 10.5	Delay Not a Waiver
Section 10.6	Notices
Section 10.7	Trial by Jury
Section 10.8	Headings
Section 10.9	Severability
Section 10.10	Preferences
Section 10.11	Waiver of Notice
Section 10.12	Remedies of Borrower
Section 10.13	Expenses; Indemnity
Section 10.14	Schedules Incorporated
Section 10.15	Offsets, Counterclaims and Defenses
Section 10.16	No Joint Venture or Partnership; No Third Party Beneficiaries
Section 10.17	Publicity
Section 10.18	Waiver of Marshalling of Assets
Section 10.19	Waiver of Counterclaim
Section 10.20	Conflict; Construction of Documents; Reliance
Section 10.21	Brokers and Financial Advisors
Section 10.22	Prior Agreements
Section 10.23	Transfer of Loan

SCHEDULES
Schedule I	-	Intentionally Omitted
Schedule II	-	Rent Roll
Schedule III	-	Required Repairs
Schedule IV	-	Intentionally Omitted
Schedule V	-	Intentionally Omitted
Schedule VI	-	Affiliate Agreements
Schedule VII	-	Intentionally Omitted
Schedule VIII	-	Intentionally Omitted
Schedule IX	-	Intentionally Omitted
Schedule X	-	Other Contract Funds Agreements

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LOAN AGREEMENT

THIS LOAN AGREEMENT, dated as of this      day of December, 2004 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”), between KEYBANK NATIONAL ASSOCIATION, a national banking association, having an address at 911 Main Street, Suite 1500, Kansas City, Missouri 64105 (“Lender”), and INLAND WESTERN CEDAR HILL PLEASANT RUN LIMITED PARTNERSHIP, an Illinois limited partnership, having an address at 2901 Butterfield Road, Oak Brook, Illinois 60523 (“Borrower”).

W I T N E S S E T H:

WHEREAS, Borrower desires to obtain the Loan (as hereinafter defined) from Lender; and

WHEREAS, Lender is willing to make the Loan to Borrower, subject to and in accordance with the terms of this Agreement and the other Loan Documents (as hereinafter defined).

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

ARTICLE I

DEFINITIONS; PRINCIPLES OF CONSTRUCTION

Section 1.1Definitions. For all purposes of this Agreement, except as otherwise expressly required or unless the context clearly indicates a contrary intent:

“Additional Insolvency Opinion”  shall mean any subsequent Insolvency Opinion.

“Affiliate” shall mean, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person or is a director or officer of such Person or of an Affiliate of such Person.

“Annual Budget” shall mean the operating budget, including all planned capital expenditures, for the Property prepared by Borrower for the applicable Fiscal Year or other period.

“Assignment of Leases” shall mean, with respect to the Property, that certain first priority Assignment of Leases and Rents, dated as of the date hereof, from Borrower, as assignor, to Lender, as assignee, assigning to Lender all of Borrower’s interest in and to the Leases and Rents of the Property as security for the Loan, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Assignment of Management Agreement” shall mean that certain Assignment of Management Agreement and Subordination of Management Fees dated as of the date hereof among Lender, Borrower and Manager, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Award” shall mean any compensation paid by any Governmental Authority in connection with a Condemnation in respect of all or any part of the Property.

“Basic Carrying Costs” shall mean, with respect to the Property, the sum of the following costs associated with the Property for the relevant Fiscal Year or payment period: (i) Taxes and (ii) Insurance Premiums.

“Borrower” shall mean Inland Western Cedar Hill Pleasant Run Limited Partnership, together with its permitted successors and assigns.

“Business Day” shall mean any day other than a Saturday, Sunday or any other day on which national banks in New York, New York are not open for business.

“Capital Expenditures” shall mean, for any period, the amount expended for items capitalized under accounting principles reasonably acceptable to Lender, consistently applied (including expenditures for building improvements or major repairs, leasing commissions and tenant improvements).

“Cash Expenses” shall mean, for any period, the operating expenses for the operation of the Property as set forth in an Approved Annual Budget to the extent that such expenses are actually incurred by Borrower minus any payments into the Tax and Insurance Escrow Fund.

“Casualty” shall have the meaning specified in Section 6.2 hereof.

“Casualty Consultant” shall have the meaning set forth in Section 6.4(b)(iii) hereof.

“Casualty Retainage” shall have the meaning set forth in Section 6.4(b)(iv) hereof.

“Closing Date” shall mean the date of the funding of the Loan.

“Code” shall mean the Internal Revenue Code of 1986, as amended, as it may be further amended from time to time, and any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.

“Condemnation” shall mean a temporary or permanent taking by any Governmental Authority as the result or in lieu or in anticipation of the exercise of the right of condemnation or eminent domain, of all or any part of the Property, or any interest therein or right accruing thereto, including any right of access thereto or any change of grade affecting the Property or any part thereof.

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“Debt” shall mean the outstanding principal amount set forth in, and evidenced by, this Agreement and the Note together with all interest accrued and unpaid thereon and all other sums (including the Prepayment Consideration) due to Lender in respect of the Loan under the Note, this Agreement, the Mortgage or any other Loan Document.

“Debt Service” shall mean, with respect to any particular period of time, scheduled interest payments under the Note.

“Debt Service Coverage Ratio” shall mean a ratio for the applicable period in which:

(a)the numerator is the Net Operating Income (excluding interest on credit accounts) for such period as set forth in the statements required hereunder, without deduction for (i) actual management fees incurred in connection with the operation of the Property, (ii) amounts paid to the Reserve Funds, less (A) management fees equal to the greater of (1) assumed management fees of five percent (5%) of Gross Income from Operations or (2) the actual management fees incurred; (B) assumed Replacement Reserve Fund contributions equal to $0.15 per square foot of gross leaseable area at the Property; and (C) assumed reserves for tenant improvements and leasing commissions equal to $0.72 per square foot of gross leaseable area of the Property; and

(b)the denominator is the aggregate amount of interest due and payable on the Note for such applicable period.

“Default” shall mean the occurrence of any event hereunder or under any other Loan Document which, but for the giving of notice or passage of time, or both, would be an Event of Default.

“Default Rate” shall mean, with respect to the Loan, a rate per annum equal to the lesser of (a) the maximum rate permitted by applicable law, or (b) five percent (5%) above the Interest Rate.

“Disclosure Document” shall have the meaning set forth in Section 9.2 hereof.

“Eligible Account” shall mean a separate and identifiable account from all other funds held by the holding institution that is either (a) an account or accounts maintained with a federal or state-chartered depository institution or trust company which complies with the definition of Eligible Institution or (b) a segregated trust account or accounts maintained with a federal or state chartered depository institution or trust company acting in its fiduciary capacity which, in the case of a state chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R. §9.10(b), having in either case a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal and state authority. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.

“Eligible Institution” shall mean a depository institution or trust company insured by the Federal Deposit Insurance Corporation the short term unsecured debt obligations or commercial paper of which are rated at least A-l by Standard & Poor’s Ratings Services, P-1

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by Moody’s Investors Service, Inc., and F-1+ by Fitch, Inc. in the case of accounts in which funds are held for 30 days or less (or, in the case of accounts in which funds are held for more than 30 days, the long term unsecured debt obligations of which are rated at least “AA” by Fitch and S&P and “Aa” by Moody’s).

“Environmental Indemnity” shall mean that certain Environmental Indemnity Agreement executed by Borrower in connection with the Loan for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.

“Event of Default” shall have the meaning set forth in Section 8.1(a) hereof.

“Exchange Act” shall have the meaning set forth in Section 9.2 hereof.

“Fiscal Year” shall mean each twelve (12) month period commencing on January 1 and ending on December 31 during each year of the term of the Loan.

“Governmental Authority” shall mean any court, board, agency, commission, office or other authority of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city or otherwise) whether now or hereafter in existence.

“Gross Income from Operations” shall mean all sustainable income as reported on the financial statements delivered by Borrower in accordance with this Agreement, computed in accordance with accounting principles reasonably acceptable to Lender, consistently applied, derived from the ownership and operation of the Property from whatever source, including, but not limited to, (i) Rents from Tenants that are in occupancy, open for business and paying unabated Rent, (ii) utility charges, (iii) escalations, (iv) intentionally omitted; (v) service fees or charges, (vi) license fees, (vii) parking fees, and (viii) other required pass-throughs but excluding (i) sales, use and occupancy or other taxes on receipts required to be accounted for by Borrower to any Governmental Authority, (ii) refunds and uncollectible accounts, (iii) sales of furniture, fixtures and equipment, (iv) Insurance Proceeds (other than business interruption or other loss of income insurance), (v) Awards, (vi) unforfeited security deposits, (vii) utility and other similar deposits and (viii) any disbursements to Borrower from the Reserve Funds. Gross income shall not be diminished as a result of the Mortgage or the creation of any intervening estate or interest in the Property or any part thereof.

“Improvements” shall have the meaning set forth in the granting clause of the Mortgage with respect to the Property.

“Indebtedness” of a Person, at a particular date, means the sum (without duplication) at such date of (a) indebtedness or liability for borrowed money; (b) obligations evidenced by bonds, debentures, notes, or other similar instruments; (c) obligations for the deferred purchase price of property or services (including trade obligations); (d) obligations under letters of credit; (e) obligations under acceptance facilities; (f) all guaranties, endorsements (other than for collection or deposit in the ordinary course of business) and other contingent

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obligations to purchase, to provide funds for payment, to supply funds, to invest in any Person or entity, or otherwise to assure a creditor against loss; and (g) obligations secured by any Liens, whether or not the obligations have been assumed.

“Indemnitor” shall mean Inland Western Retail Real Estate Trust, Inc., a Maryland corporation.

“Indemnity Agreement” shall mean that certain Indemnity Agreement dated as of the date hereof by and between Borrower and Inland Western Retail Real Estate Trust, Inc., a Maryland corporation in favor of Lender.

“Independent Director” shall mean a director of a corporation or a manager of a limited liability company who is not at the time of initial appointment, or at any time while serving as a director or manager, as the case may be, of such an entity, and has not been at any time during the preceding five (5) years: (a) a stockholder, director (with the exception of serving as the Independent Director), officer, employee, partner, attorney or counsel of the Borrower or any Affiliate of either of them; (b) a customer, supplier or other person who derives any of its purchases or revenues from its activities with the Borrower or any Affiliate of either of them; (c) a Person controlling or under common control with any such stockholder, director, officer, partner, customer, supplier or other Person; or (d) a member of the immediate family of any such stockholder, director, officer, employee, partner, customer, supplier or other person. As used in this definition, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise.

“Inland Western Retail Real Estate Trust, Inc.” shall mean Inland Retail Real Estate Trust, Inc., a Maryland corporation.

“Insolvency Opinion” shall have the meaning set forth in Section 3.1.6 hereof.

“Insurance Premiums” shall have the meaning set forth in Section 6.1(b) hereof.

“Insurance Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.

“Interest Rate” shall mean 5.215 percent (5.215%) per annum.

“Lease” shall mean any lease, sublease or subsublease, letting, license, concession or other agreement (whether written or oral and whether now or hereafter in effect) pursuant to which any Person is granted a possessory interest in, or right to use or occupy all or any portion of any space in the Property of Borrower, and every modification, amendment or other agreement relating to such lease, sublease, subsublease, or other agreement entered into in connection with such lease, sublease, subsublease, or other agreement and every guarantee of the performance and observance of the covenants, conditions and agreements to be performed and observed by the other party thereto.

“Legal Requirements” shall mean, with respect to the Property, all federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances,

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judgments, decrees and injunctions of Governmental Authorities affecting the Property or any part thereof, or the construction, use, alteration or operation thereof, or any part thereof, whether now or hereafter enacted and in force, and all permits, licenses and authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Borrower, at any time in force affecting the Property or any part thereof, including, without limitation, any which may (a) require repairs, modifications or alterations in or to the Property or any part thereof, or (b) in any way limit the use and enjoyment thereof.

“Lender” shall mean KeyBank National Association, together with its successors and assigns.

“Licenses” shall have the meaning set forth in Section 4.1.22 hereof.

“Lien” shall mean, with respect to the Property, any mortgage, deed of trust, deed to secure debt, lien, pledge, hypothecation, assignment, security interest, or any other encumbrance, charge or transfer of, on or affecting Borrower, the Property, any portion thereof or any interest therein, including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialmen’s and other similar liens and encumbrances.

“Loan” shall mean the loan made by Lender to Borrower pursuant to this Agreement.

“Loan Documents” shall mean, collectively, this Agreement, the Note, the Mortgage, the Assignment of Leases and Rents, the Environmental Indemnity, the Assignment of Management Agreement, the Indemnity Agreement and all other documents executed and/or delivered in connection with the Loan.

“Major Tenant” shall mean any tenant (i) leasing more than 10,000 square feet of the Property or (ii) whose Rents comprise 25% or more of the effective gross income (as determined by Lender) of the Property.

“Management Agreement” shall mean, with respect to the Property, the management agreement entered into by and between Borrower and the Manager, pursuant to which the Manager is to provide management and other services with respect to the Property.

“Manager” shall mean Inland Southwest Management LLC, a Delaware limited liability company.

“Maturity Date” shall mean January 1, 2010, or such other date on which the final payment of principal of the Note becomes due and payable as therein or herein provided, whether at such stated maturity date, by declaration of acceleration, or otherwise.

“Maximum Legal Rate” shall mean the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by the Note and as provided for herein or the other Loan

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Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan.

“Monthly Debt Service Payment Amount” shall mean an amount equal to $ 99,085.00

“Mortgage” shall mean, with respect to the Property, that certain first priority Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated the date hereof, executed and delivered by Borrower as security for the Loan and encumbering the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Net Cash Flow” for any period shall mean the amount obtained by subtracting Operating Expenses and Capital Expenditures for such period from Gross Income from Operations for such period.

“Net Cash Flow After Debt Service” for any period shall mean the amount obtained by subtracting Debt Service for such period from Net Cash Flow for such period.

“Net Cash Flow Schedule” shall have the meaning set forth in Section 5.1.11(b) hereof.

“Net Operating Income” shall mean the amount obtained by subtracting from Gross Income from Operations (i) Operating Expenses, and (ii) a vacancy allowance equal to the greater of (x) market vacancy (as reasonably determined by Lender), less actual vacancy, and (y) underwritten vacancy of 11.6%, less actual vacancy. Notwithstanding the foregoing, if actual vacancy exceeds market vacancy and underwritten vacancy, then there shall be no adjustment for a vacancy allowance.

“Net Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.

“Net Proceeds Deficiency” shall have the meaning set forth in Section 6.4(b)(vi) hereof.

“Note” shall mean that certain Promissory Note of even date herewith in the principal amount of TWENTY-TWO MILLION EIGHT HUNDRED THOUSAND AND NO/100 DOLLARS ($22,800,000.00), made by Borrower in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Officers’ Certificate” shall mean a certificate delivered to Lender by Borrower which is signed by an authorized senior officer of the Sole Member.

“Operating Expenses” shall mean the total of all expenditures, computed in accordance with accounting principles reasonably acceptable to Lender, consistently applied, of whatever kind relating to the operation, maintenance and management of the Property that are incurred on a regular monthly or other periodic basis, including without limitation, utilities, ordinary repairs and maintenance, insurance, license fees, property taxes and assessments, advertising expenses, management fees, payroll and related taxes, computer processing charges,

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operational equipment or other lease payments as approved by Lender, and other similar costs, but excluding depreciation, Debt Service, Capital Expenditures and contributions to the Reserve Funds.

“Other Charges” shall mean all ground rents, maintenance charges, impositions other than Taxes, and any other charges, including, without limitation, vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Property, now or hereafter levied or assessed or imposed against the Property or any part thereof.

“Other Contract Funds” shall mean any payment due to Borrower under any of the agreements described on Schedule X.

“Payment Date” shall mean the first (1st) day of each calendar month during the term of the Loan or, if such day is not a Business Day, the immediately succeeding Business Day.

“Permitted Encumbrances” shall mean, with respect to the Property, collectively, (a) the Liens and security interests created by the Loan Documents, (b) all Liens, encumbrances and other matters disclosed in the Title Insurance Policies relating to the Property or any part thereof, (c) Liens, if any, for Taxes imposed by any Governmental Authority not yet due or delinquent, and (d) such other title and survey exceptions as Lender has approved or may approve in writing in Lender’s reasonable discretion, which Permitted Encumbrances in the aggregate do not materially adversely affect the value or use of the Property or Borrower’s ability to repay the Loan.

“Permitted Investments” shall mean any one or more of the following obligations or securities acquired at a purchase price of not greater than par, including those issued by Servicer, the trustee under any Securitization or any of their respective Affiliates, payable on demand or having a maturity date not later than the Business Day immediately prior to the first Payment Date following the date of acquiring such investment and meeting one of the appropriate standards set forth below:

(i)obligations of, or obligations fully guaranteed as to payment of principal and interest by, the United States or any agency or instrumentality thereof provided such obligations are backed by the full faith and credit of the United States of America including, without limitation, obligations of: the U.S. Treasury (all direct or fully guaranteed obligations), the Farmers Home Administration (certificates of beneficial ownership), the General Services Administration (participation certificates), the U.S. Maritime Administration (guaranteed Title XI financing), the Small Business Administration (guaranteed participation certificates and guaranteed pool certificates), the U.S. Department of Housing and Urban Development (local authority bonds) and the Washington Metropolitan Area Transit Authority (guaranteed transit bonds); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus

8

a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(ii)Federal Housing Administration debentures;

(iii)obligations of the following United States government sponsored agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm Credit System (consolidated systemwide bonds and notes), the Federal Home Loan Banks (consolidated debt obligations), the Federal National Mortgage Association (debt obligations), the Student Loan Marketing Association (debt obligations), the Financing Corp. (debt obligations), and the Resolution Funding Corp. (debt obligations); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(iv)federal funds, unsecured certificates of deposit, time deposits, bankers’ acceptances and repurchase agreements with maturities of not more than 365 days of any bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(v)fully Federal Deposit Insurance Corporation-insured demand and time deposits in, or certificates of deposit of, or bankers’ acceptances issued by, any bank or trust company, savings and loan association or savings bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities); provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move

9

proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(vi)debt obligations with maturities of not more than 365 days and at all times rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest long-term unsecured rating category; provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(vii)commercial paper (including both non-interest-bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one year after the date of issuance thereof) with maturities of not more than 365 days and that at all times is rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest short-term unsecured debt rating; provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(viii)units of taxable money market funds, which funds are regulated investment companies, seek to maintain a constant net asset value per share and invest solely in obligations backed by the full faith and credit of the United States, which funds have the highest rating available from each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) for money market funds or mutual funds; and

(ix)any other security, obligation or investment which has been approved as a Permitted Investment in writing by (a) Lender and (b) each Rating Agency, as evidenced by a written confirmation that the designation of such security, obligation or investment as a Permitted Investment will not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities by such Rating Agency;

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provided, however, that no obligation or security shall be a Permitted Investment if (A) such obligation or security evidences a right to receive only interest payments or (B) the right to receive principal and interest payments on such obligation or security are derived from an underlying investment that provides a yield to maturity in excess of 120% of the yield to maturity at par of such underlying investment.

“Person” shall mean any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.

“Personal Property” shall have the meaning set forth in the granting clause of the Mortgage with respect to the Property.

“Physical Conditions Report” shall mean, with respect to the Property, a report prepared by a company satisfactory to Lender regarding the physical condition of the Property, satisfactory in form and substance to Lender in its sole discretion, which report shall, among other things, (a) confirm that the Property and its use complies, in all material respects, with all applicable Legal Requirements (including, without limitation, zoning, subdivision and building laws) and (b) include a copy of a final certificate of occupancy with respect to all Improvements on the Property.

“Policies” shall have the meaning specified in Section 6.1(b) hereof.

“Prepayment Consideration” shall have the meaning set forth in Section 2.3.1.

“Prepayment Rate” shall mean the bond equivalent yield (in the secondary market) on the United States Treasury Security that as of the Prepayment Rate Determination Date has a remaining term to maturity closest to, but not exceeding, the remaining term to the Maturity Date, as most recently published in the “Treasury Bonds, Notes and Bills” section in The Wall Street Journal as of the date of the related tender of the payment. If more than one issue of United States Treasury Securities has the remaining term to the Maturity Date referred to above, the “Prepayment Rate” shall be the yield on the United States Treasury Security most recently issued as of such date. If the publication of the Prepayment Rate in The Wall Street Journal is discontinued, Lender shall determine the Prepayment Rate on the basis of “Statistical Release H.15(519), Selected Interest Rates,” or any successor publication, published by the Board of Governors of the Federal Reserve System, or on the basis of such other publication or statistical guide as Lender may reasonably select.

“Prepayment Rate Determination Date” shall mean the date which is five (5) Business Days prior to the prepayment date.

“Property” shall mean the parcel of real property, the Improvements thereon and all personal property owned by Borrower and encumbered by the Mortgage, together with all rights pertaining to such property and Improvements, as more particularly described in the Granting Clauses of the Mortgage and referred to therein as the “Property.”

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“Provided Information” shall have the meaning set forth in Section 9.1(a) hereof.

“Purchase Contract” shall mean that certain letter agreement dated April 21, 2004, between Inland Real Estate Acquisitions, Inc., Lakepointe Towne Crossing, L.P. (I & II), Davis Towne Crossing, L.P., PRTC Pleasant Run Town Crossing, L.P. and MTC Mansfield Towne Crossing, L.P., as heretofore or hereafter assigned, amended and modified.

“Purchase Price Adjustment” shall mean an adjustment of the purchase price with respect to the acquisition of the Property in connection with an “Earnout Closing” pursuant to Section 17 of the Purchase Contract.

“Qualifying Entity” shall have the meaning set forth in Section 5.2.13(b) hereof.

“Qualifying Manager” shall mean either (a) a reputable and experienced management organization reasonably satisfactory to Lender, which organization or its principals possess at least ten (10) years experience in managing properties similar in size, scope and value of the Property and which, on the date Lender determines whether such management organization is a Qualifying Manager, manages at least one million square feet of retail space, provided that Borrower shall have obtained prior written confirmation from the Rating Agency that management of the Property by such entity will not cause a downgrading, withdrawal or qualification of the then current rating of the securities issued pursuant to the Securitization, or (b) the fee owner of the Property, provided that such owner possesses experience in managing and operating properties similar in size, scope and value of the Property. Lender acknowledges that on the date hereof Inland Southwest Management LLC shall be deemed to be a Qualifying Manager. Lender also acknowledges that a new property management company that is an affiliate of or under common control with Inland Southwest Management LLC also shall be deemed a Qualifying Manager.

“Rating Agencies” shall mean each of Standard & Poor’s Ratings Services, a division, of McGraw-Hill, Inc., Moody’s Investors Service, Inc. and Fitch, Inc., or any other nationally-recognized statistical rating agency which has been approved by Lender.

“Rating Surveillance Charge” shall have the meaning set forth in Section 9.3 hereof.

“Relevant Leasing Threshold” shall mean, any Lease for an amount of leaseable square footage equal to or greater than [10,000] square feet.

“Relevant Restoration Threshold” shall mean Three Hundred Fifty Thousand and No/100 dollars ($350,000.00).

“REMIC Trust” shall mean a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code that holds the Note.

“Rents” shall mean, with respect to the Property, all rents, rent equivalents, moneys payable as damages or in lieu of rent or rent equivalents, royalties (including, without limitation, all oil and gas or other mineral royalties and bonuses), income, receivables, receipts,

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revenues, deposits (including, without limitation, security, utility and other deposits), accounts, cash, issues, profits, charges for services rendered, and other consideration of whatever form or nature received by or paid to or for the account of or benefit of Borrower or its agents or employees from any and all sources arising from or attributable to the Property, and proceeds, if any, from business interruption or other loss of income insurance, including the Other Contract Funds.

“Replacement Reserve Account” shall have the meaning set forth in Section 7.3.1 hereof.

“Replacement Reserve Fund” shall have the meaning set forth in Section 7.3.1 hereof.

“Replacement Reserve Monthly Deposit” shall have the meaning set forth in Section 7.3.1 hereof.

“Replacements” shall have the meaning set forth in Section 7.3.l(a) hereof.

“Required Repair Account” shall have the meaning set forth in Section 7.1.1 hereof.

“Required Repair Fund” shall have the meaning set forth in Section 7.1.1 hereof.

“Required Repairs” shall have the meaning set forth in Section 7.1.1 hereof.

“Reserve Funds” shall mean the Tax and Insurance Escrow Fund, the Replacement Reserve Fund, the Required Repair Fund (if any), or any other escrow fund established by the Loan Documents.

“Restoration” shall have the meaning set forth in Section 6.2 hereof.

“Securities” shall have the meaning set forth in Section 9.1 hereof.

“Securities Act” shall have the meaning set forth in Section 9.2 hereof.

“Securitization” shall have the meaning set forth in Section 9.1 hereof.

“Servicer” shall have the meaning set forth in Section 9.6 hereof.

“Servicing Agreement” shall have the meaning set forth in Section 9.6 hereof.

“Severed Loan Documents” shall have the meaning set forth in Section 8.2(c) hereof.

“Severing Documentation” shall have the meaning set forth in Section 9.7 hereof.

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“Sole Member” shall mean Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, the sole member of the sole general partner of Borrower.

“Special Purpose Entity” means a corporation, limited partnership, limited liability company, or Delaware statutory trust which at all times on and after the date hereof:

(i)is organized solely for the purpose of (A) acquiring, developing, owning, holding, selling, leasing, transferring, exchanging, managing and operating the Property, entering into this Agreement with the Lender, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing; or (B) acting as a general partner of the limited partnership that owns the Property, a member of the limited liability company that owns the Property or the beneficiary or trustee of a Delaware statutory trust that owns the Property;

(ii)is not engaged and will not engage in any business unrelated to (A) the acquisition, development, ownership, management or operation of the Property, (B) acting as general partner of the limited partnership that owns the Property, (C) acting as a member of the limited liability company that owns the Property, or (D) acting as the beneficiary or trustee of a Delaware statutory trust that owns the Property, as applicable;

(iii)does not have and will not have any assets other than those related to the Property or its partnership interest in the limited partnership, the member interest in the limited liability company or the beneficial interest in the Delaware statutory trust that owns the Property or acts as the general partner, managing member or beneficiary or trustee thereof, as applicable;

(iv)has not engaged, sought or consented to and will not engage in, seek or consent to any dissolution, winding up, liquidation, consolidation, merger, sale of all or substantially all of its assets, transfer of partnership, membership or beneficial or trustee interests (if such entity is a general partner in a limited partnership, a member in a limited liability company or a beneficiary of a Delaware statutory trust) or amendment of its limited partnership agreement, articles of incorporation, articles of organization, certificate of formation, operating agreement or trust formation and governance documents (as applicable) with respect to the matters set forth in this definition;

(v)if such entity is a limited partnership, has as its only general partners, Special Purpose Entities that are corporations, limited partnerships or limited liability companies;

(vi)if such entity is a corporation, has at least one (1) Independent Director, and has not caused or allowed and will not cause or allow the board of directors of such entity to take any action related to a bankruptcy or insolvency proceeding or a voluntary dissolution without the unanimous affirmative vote of 100% of the members of its board of directors, including the Independent Director;

(vii)if such entity is a limited liability company and such limited liability company has more than one member, such limited liability company has as its manager a

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Special Purpose Entity that is a corporation and that owns at least 1.0% (one percent) of the equity of the limited liability company;

(viii)if such entity is a limited liability company and such limited liability company has only one member, such limited liability company (a) has been formed under Delaware law and (b) has either a corporation or other person or entity that shall become a member of the limited liability company upon the dissolution or disassociation of the member, and (c) has not less than one (1) Independent Director, and (d) will not cause or allow its board of directors to take any action related to a bankruptcy or insolvency proceeding or a voluntary dissolution without the unanimous affirmative vote of 100% of the members of its board of directors, including the Independent Director;

(ix)if such entity is (a) a limited liability company, has articles of organization, a certificate of formation and/or an operating agreement, as applicable, (b) a limited partnership, has a limited partnership agreement, (c) a corporation, has a certificate of incorporation or articles, or (d) a Delaware statutory trust, has organizational documents that, in each case, provide that such entity will not: (1) dissolve, merge, liquidate, consolidate; (2) except as permitted herein, sell all or substantially all of its assets or the assets of the Borrower (as applicable) except as permitted herein; (3) engage in any other business activity, or amend its organizational documents with respect to the matters set forth in this definition without the consent of the Lender; or (4) without the affirmative vote of all other directors of the corporation (that is such entity or the general partner or managing or co-managing member or manager of such entity), file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings with respect to itself or to any other entity in which it has a direct or indirect legal or beneficial ownership interest;

(x)has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, beneficiaries, shareholders or Affiliates except (A) in the ordinary course of its business and on terms which are intrinsically fair, commercially reasonable and are no less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party and (B) in connection with this Agreement;

(xi)is solvent and pays its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same become due, and is maintaining adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;

(xii)has not failed and will not fail to correct any known misunderstanding regarding the separate identity of such entity;

(xiii)will file its own tax returns; provided, however, that Borrower’s assets and income may be included in a consolidated tax return of its parent companies if inclusion on such consolidated tax return is in compliance with applicable law;

(xiv)has maintained and will maintain its own resolutions and agreements;

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(xv)(a) has not commingled and will not commingle its funds or assets with those of any other Person and (b) has not participated and will not participate in any cash management system with any other Person, except with respect to a custodial account maintained by the Manager on behalf of Affiliates of Borrower and, with respect to funds in such custodial account, has separately accounted, and will continue to separately account for, each item of income and expense applicable to the Property and Borrower;

(xvi)has held and will hold its assets in its own name;

(xvii)has conducted and will conduct its business in its name or in a name franchised or licensed to it by an entity other than an Affiliate of Borrower;

(xviii)has maintained and will maintain its balance sheets, operating statements and other entity documents separate from any other Person and has not permitted and will not permit its assets to be listed as assets on the financial statement of any other entity except as required or permitted by accounting principles reasonably acceptable to Lender, consistently applied; provided, however, that (i) any such consolidated financial statement shall contain a note indicating that it maintains separate balance sheets and operating statements for the Borrower and the Property, or (ii) if such Person is controlled by Inland Western Retail Real Estate Trust, Inc., then such Person may be included in the consolidated financial statement of Inland Western Retail Real Estate Trust, Inc. provided such consolidated financial statement contains a note indicating that it maintains separate financial records for each Person controlled by Inland Western Retail Real Estate Trust, Inc.;

(xix)has a sufficient number of employees in light of its contemplated business operations, which may be none;

(xx)has observed and will observe all partnership, corporate, limited liability company or Delaware business trust formalities, as applicable;

(xxi)has and will have no Indebtedness (including loans (whether or not such loans are evidenced by a written agreement) between Borrower and any Affiliates of Borrower and relating to the management of funds in the custodial account maintained by the Manager) other than (i) the Loan, (ii) liabilities incurred in the ordinary course of business relating to the ownership and operation of the Property and the routine administration of Borrower, which liabilities are not more than sixty (60) days past the date incurred (unless disputed in accordance with applicable law), are not evidenced by a note and are paid when due, and which amounts are normal and reasonable under the circumstances, and (iii) such other liabilities that are permitted pursuant to this Agreement;

(xxii)has not and will not assume or guarantee or become obligated for the debts of any other Person or hold out its credit as being available to satisfy the obligations of any other Person except as permitted pursuant to this Agreement;

(xxiii)has not and will not acquire obligations or securities of its partners, members or shareholders or any other Affiliate;

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(xxiv)has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, but not limited to, paying for shared office space and services performed by any employee of an affiliate;

(xxv)has not maintained or used, and will not maintain or use, invoices and checks bearing the name of any other Person, provided, however, that Manager, on behalf of such Person, may maintain and use invoices and checks bearing Manager’s name;

(xxvi)has not pledged and will not pledge its assets for the benefit of any other Person except as permitted or required pursuant to this Agreement;

(xxvii)has held itself out and identified itself and will hold itself out and identify itself as a separate and distinct entity under its own name or in a name franchised or licensed to it by an entity other than an Affiliate of Borrower and not as a division or part of any other Person, except for services rendered by Manager under the Management Agreement, so long as Manager holds itself out as an agent of the Borrower;

(xxviii)has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;

(xxix)has not made and will not make loans to any Person or hold evidence of indebtedness issued by any other person or entity (other than cash and investment-grade securities issued by an entity that is not an Affiliate of or subject to common ownership with such entity);

(xxx)has not identified and will not identify its partners, members or shareholders, or any Affiliate of any of them, as a division or part of it, and has not identified itself and shall not identify itself as a division of any other Person;

(xxxi)has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, shareholders or Affiliates except (A) in the ordinary course of its business and on terms which are intrinsically fair, commercially reasonable and are no less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party and (B) in connection with this Agreement;

(xxxii)does not and will not have any of its obligations guaranteed by any Affiliate except as otherwise required in the Loan Documents; and

(xxxiii)has complied and will comply with all of the terms and provisions contained in its organizational documents. The statement of facts contained in its organizational documents are true and correct and will remain true and correct.

“State” shall mean, with respect to the Property, the State or Commonwealth in which the Property or any part thereof is located.

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“Survey” shall mean a survey of the Property in question prepared by a surveyor licensed in the State and satisfactory to Lender and the company or companies issuing the Title Insurance Policies, and containing a certification of such surveyor satisfactory to Lender.

“Tax and Insurance Escrow Fund” shall have the meaning set forth in Section 7.2 hereof regardless of whether the funds held therein are held by Lender for the payment of Taxes or Insurance Premiums or both.

“Taxes” shall mean all real estate and personal property taxes, assessments, water rates or sewer rents, now or hereafter levied or assessed or imposed against the Property or any part thereof.

“Tenant” shall mean any person or entity with a possessory right to all or any part of the Property pursuant to a Lease or other written agreement.

“Terrorism Insurance Guarantor” shall have the meaning set forth in Section 6.1 hereof.

“Title Insurance Policies” shall mean, with respect to the Property, one or more mortgagee title insurance policies in the form (acceptable to Lender) promulgated by the state Board of Insurance issued with respect to the Property and insuring the lien of the Mortgage encumbering the Property.

“Transferee” shall have the meaning set forth in Section 5.2.13 hereof.

“Trustee” shall have the meaning set forth in the Mortgage.

“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in the applicable State in which the Property is located.

“U.S. Obligations” shall mean direct non-callable obligations of the United States of America as defined in Section 2(a)(16) of the Investment Company Act as amended (15 USC 80a-1) stated in REMIC Section 1.86 OG-2(a)(8).

Section 1.2Principles of Construction. All references to sections and schedules are to sections and schedules in or to this Agreement unless otherwise specified. All uses of the word “including” shall mean “including, without limitation” unless the context shall indicate otherwise. Unless otherwise specified, the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified, all meanings attributed to defined terms herein shall be equally applicable to both the singular and plural forms of the terms so defined.

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ARTICLE II

GENERAL TERMS

Section 2.1Loan Commitment; Disbursement to Borrower.

2.1.1The Loan. Subject to and upon the terms and conditions set forth herein, Lender hereby agrees to make and Borrower hereby agrees to accept the Loan on the Closing Date.

2.1.2Disbursement to Borrower.  Borrower may request and receive only one borrowing hereunder in respect of the Loan and any amount borrowed and repaid hereunder in respect of the Loan may not be reborrowed.

2.1.3The Note, Mortgage and Loan Documents. The Loan shall be evidenced by the Note and secured by the Mortgage, the Assignment of Leases and the other Loan Documents.

2.1.4Use of Proceeds. Borrower shall use the proceeds of the Loan to (a) repay and discharge any existing loans relating to the Property, (b) pay all past-due Basic Carrying Costs, if any, in respect of the Property, (c) make deposits into the Reserve Funds on the Closing Date in the amounts provided herein, (d) pay costs and expenses incurred in connection with the Closing of the Loan, as approved by Lender, (e) fund any working capital requirements of the Property, and (f) distribute the balance, if any, to Borrower.

Section 2.2Interest; Loan Payments: Late Payment Charge.

2.2.1Interest Generally.   Interest on the outstanding principal balance of the Loan shall accrue from the Closing Date to but excluding the Maturity Date at the Interest Rate.

2.2.2Interest Calculation.  Interest on the outstanding principal balance of the Loan shall be calculated on the basis of a three hundred sixty (360) day year comprised of twelve (12) months of thirty (30) days each, except that interest due and payable for a period of less than a full month shall be calculated by multiplying the actual number of days elapsed in the period for which the calculation is being made by a daily rate based on a three hundred sixty (360) day year.

2.2.3Payments Generally.   Borrower shall pay to Lender (a) on the Closing Date, an amount equal to interest only on the outstanding principal balance of the Loan from the Closing Date up to but not including the first Payment Date following the Closing Date, and (b) on February 1, 2005 and each Payment Date thereafter up to but not including the Maturity Date, the Monthly Debt Service Payment Amount which is an amount equal to the interest on the outstanding principal amount of the Loan for the prior calendar month, calculated as set forth herein, which payments shall be applied to accrued and unpaid interest at the Interest Rate.

2.2.4Intentionally Deleted.

2.2.5Payment on Maturity Date. Borrower shall pay to Lender on the Maturity Date the outstanding principal balance of the Loan, all accrued and unpaid interest and all other amounts due hereunder and under the Note, the Mortgage and other the Loan Documents.

2.2.6Payments after Default. Upon the occurrence and during the continuance of an Event of Default, interest on the outstanding principal balance of the Loan and, to the extent permitted by law, overdue interest and other amounts due in respect of the Loan, shall

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accrue at the Default Rate, calculated from the date such payment was due without regard to any grace or cure periods contained herein. Interest at the Default Rate shall be computed from the occurrence of the Event of Default until the earlier of (i) the cure of such Event of Default in a manner reasonably satisfactory to Lender or (ii) the actual receipt and collection of the Debt (or that portion thereof that is then due). To the extent permitted by applicable law, interest at the Default Rate shall be added to the Debt, shall itself accrue interest at the same rate as the Loan and shall be secured by the Mortgage.  This paragraph shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of the occurrence of any Event of Default and Lender retains its rights under the Note and this Agreement to accelerate and to continue to demand payment of the Debt upon the happening and continuance of any Event of Default.

2.2.7Late Payment Charge.   If any principal, interest or any other sums due under the Loan Documents is not paid by Borrower on or prior to the date which is five (5) days after the date it is due, Borrower shall pay to Lender upon demand an amount equal to the lesser of five percent (5%) of such unpaid sum or the maximum amount permitted by applicable law in order to defray the expense incurred by Lender in handling and processing such delinquent payment and to compensate Lender for the loss of the use of such delinquent payment. Any such amount shall be secured by the Mortgage and the other Loan Documents to the extent permitted by applicable law.  The foregoing late payment charge shall not apply to the payment of all outstanding principal, interest and other sums due on the Maturity Date.

2.2.8Usury Savings.   The provisions of Section 4 of the Note are hereby incorporated by reference into this Agreement to the same extent and with the same force as if fully set forth herein.

Section 2.3Prepayments.

2.3.1Voluntary Prepayments.

(a)Borrower may at any time prior to the Maturity Date, provided it has given Lender prior written notice in accordance with the terms of this Agreement, prepay the unpaid principal balance of the Loan in whole, but not in part, by paying, together with the amount to be prepaid, (i) interest accrued and unpaid on the portion of the principal balance of the Loan being prepaid to and including the date of prepayment, (ii) unless prepayment is tendered on a Payment Date, an amount equal to the interest that would have accrued on the amount being prepaid after the date of prepayment through and including the next Payment Date had the prepayment not been made (which amount shall constitute additional consideration for the prepayment), (iii) all other sums then due under this Agreement, the Note, the Mortgage and the other Loan Documents, and (iv) a prepayment consideration (the “Prepayment Consideration”) equal to the greater of (A) one percent (1%) of the principal balance of the Loan being prepaid or (B) the excess, if any, of (1) the sum of the present values of all then-scheduled payments of principal and interest under this Agreement including, but not limited to, principal and interest on the Maturity Date (with each such payment discounted to its present value at the date of prepayment at the rate which, when compounded monthly, is equivalent to the Prepayment Rate), over (2) the principal amount of the Loan being prepaid. Lender shall notify Borrower of the amount and the basis of determination of the required prepayment consideration.

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(b)Notwithstanding anything in paragraph (a) of this Section to the contrary, on the Payment Date that is three months prior to the Maturity Date, and on each day thereafter through the Maturity Date, Borrower may, at its option, prepay the Debt without payment of any Prepayment Consideration; provided, however, if such prepayment is not paid on a regularly scheduled Payment Date, the Debt shall include interest that would have accrued on such prepayment through and including the day immediately preceding the next regularly scheduled Payment Date.  Borrower’s right to prepay any portion of the principal balance of the Loan shall be subject to (i) Borrower’s submission of a notice to Lender setting forth the amount to be prepaid and the projected date of prepayment, which date shall be no less than thirty (30) days from the date of such notice, and (ii) Borrower’s actual payment to Lender of the amount to be prepaid as set forth in such notice on the projected date set forth in such notice or any day following such projected date occurring in the same calendar month as such projected date.

2.3.2Mandatory Prepayments.  On the next occurring Payment Date following the date on which Borrower actually receives any Net Proceeds, if Lender is not obligated to make such Net Proceeds available to Borrower pursuant to this Agreement for the restoration of the Property, Borrower shall, at Lender’s option, prepay the outstanding principal balance of the Note in an amount equal to one hundred percent (100%) of such Net Proceeds. No Prepayment Consideration shall be due in connection with any prepayment made pursuant to this Section 2.3.2.  Any partial prepayment under this Section shall be applied to the last payments of principal due under the Loan.

2.3.3Prepayments after Default. Following an Event of Default, if Borrower or anyone on Borrower’s behalf makes a tender of payment of all or any portion of the Debt at any time prior to a foreclosure sale (including a sale under the power of sale under the Mortgage), or during any redemption period after foreclosure, (i) the tender of payment shall constitute an evasion of Borrower’s obligation to pay any Prepayment Consideration due under this Agreement and such payment shall, therefore, to the maximum extent permitted by law, include a premium equal to the Prepayment Consideration that would have been payable on the date of such tender had the Loan not been so accelerated, or (ii) if at the time of such tender a prepayment of the principal amount of the Loan would have been prohibited under this Agreement had the principal amount of the Loan not been so accelerated, the tender of payment shall constitute an evasion of such prepayment prohibition and shall, therefore, to the maximum extent permitted by law, include an amount equal to the greater of (i) 1% of the then principal amount of the Loan (or the relevant portion thereof being prepaid) and (ii) an amount equal to the excess of (A) the sum of the present values of a series of payments payable at the times and in the amounts equal to the payments of principal and interest (including, but not limited to the principal and interest payable on the Maturity Date) which would have been scheduled to be payable after the date of such tender under this Agreement had the Loan (or the relevant portion thereof) not been accelerated, with each such payment discounted to its present value at the date of such tender at the rate which when compounded monthly is equivalent to the Prepayment Rate, over (B) the then principal amount of the Loan.

Section 2.4Intentionally Omitted.

Section 2.5Release of Property.   Except as set forth in this Section 2.5, no repayment or prepayment of all or any portion of the Note shall cause, give rise to a right to

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require, or otherwise result in, the release of any Lien of the Mortgage on the Property. If Borrower has elected to prepay the entire amount of the Loan pursuant to Section 2.3.1 and the requirements of this Section 2.5 have been satisfied, the Property shall be released from the Lien of the Mortgage.

2.5.1Release on Payment in Full. Lender shall, upon the written request and at the expense of Borrower, upon payment in full of all principal and interest on the Loan and all other amounts due and payable under the Loan Documents in accordance with the terms and provisions of the Note and this Loan Agreement, release the Lien of the Mortgage on the Property not theretofore released.

Section 2.6Manner of Making Payments.

2.6.1Making of Payments. Each payment by Borrower hereunder or under the Note shall be made in funds settled through the New York Clearing House Interbank Payments System or other funds immediately available to Lender by 1:00 p.m., New York City time, on the date such payment is due, to Lender by deposit to such account as Lender may designate by written notice to Borrower. Whenever any payment hereunder or under the Note shall be stated to be due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day.

2.6.2No Deductions, Etc. All payments made by Borrower hereunder or under the Note or the other Loan Documents shall be made irrespective of, and without any deduction for, any setoff, defense or counterclaims.

ARTICLE III

CONDITIONS PRECEDENT

Section 3.1Conditions Precedent to Closing. The obligation of Lender to make the Loan hereunder is subject to the fulfillment by Borrower or waiver by Lender of the following conditions precedent no later than the Closing Date:

3.1.1Representations and Warranties; Compliance with Conditions.    The representations and warranties of Borrower contained in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on and as of such date, and no Default or an Event of Default shall have occurred and be continuing; and Borrower shall be in compliance in all material respects with all terms and conditions set forth in this Agreement and in each other Loan Document on its part to be observed or performed.

3.1.2Loan Agreement and Note.   Lender shall have received a copy of this Agreement and the Note, in each case, duly executed and delivered on behalf of Borrower.

3.1.3Delivery of Loan Documents; Title Insurance; Reports; Leases, Etc.

(a)Mortgage, Assignment of Leases and other Loan Documents. Lender shall have received from Borrower fully executed and acknowledged counterparts of the

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Mortgage and the Assignment of Leases and evidence that counterparts of the Mortgage and Assignment of Leases have been delivered to the title company for recording, in the reasonable judgment of Lender, so as to effectively create upon such recording valid and enforceable Liens upon the Property, of the requisite priority, in favor of Lender (or such trustee as may be required under local law), subject only to the Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents. Lender shall have also received from Borrower fully executed counterparts of the Assignment of Management Agreement and the other Loan Documents.

(b)Title Insurance.  Lender shall have received a Title Insurance Policy issued by a title company acceptable to Lender and dated as of the Closing Date.  Such Title Insurance Policy shall (i) provide coverage in an amount equal to the principal amount of the Loan together with, if applicable, a “tie-in” or similar endorsement, (ii) insure Lender that the Mortgage creates a valid lien on the Property encumbered thereby of the requisite priority, free and clear of all exceptions from coverage other than Permitted Encumbrances and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements), (iii) contain such endorsements and affirmative coverages as are available in the State and Lender may reasonably request, and (iv) name Lender, its successors and assigns, as the insured.  The Title Insurance Policy shall be assignable without cost to Lender.  Lender also shall have received evidence that all premiums in respect of such Title Insurance Policy have been paid.

(c)Survey.   Lender shall have received a title survey for the Property, certified to the title company and Lender and their successors and assigns, in form and content satisfactory to Lender and prepared by a professional and properly licensed land surveyor satisfactory to Lender in accordance with the most recent Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys.  The following additional items from the list of “Optional Survey Responsibilities and Specifications” (Table A) should be added to each survey: 2, 3, 4, 6, 8, 9, 10, 11 and 13.  The survey shall reflect the same legal description contained in the Title Insurance Policy relating to the Property referred to in clause (ii) above and shall include, among other things, a legal description of the real property comprising part of such Property reasonably satisfactory to Lender. The surveyor’s seal shall be affixed to each survey and the surveyor shall provide a certification for each survey in form and substance acceptable to Lender.

(d)Insurance.  Lender shall have received valid certificates of insurance for the policies of insurance required hereunder, satisfactory to Lender in its sole discretion, and evidence of the payment of all premiums payable for the existing policy period.

(e)Environmental Reports.    Lender shall have received an environmental report in respect of the Property, in each case reasonably satisfactory to Lender.

(f)Zoning.   With respect to the Property, Lender shall have received, at Lender’s option, (i) letters, if available, or other evidence with respect to the Property from the appropriate municipal authorities (or other Persons) concerning applicable zoning and building laws, or (ii)  other evidence of zoning compliance, in each case in substance reasonably satisfactory to Lender.

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(g)Encumbrances. Borrower shall have taken or caused to be taken such actions in such a manner so that Lender has a valid and perfected first Lien on the Property as of the Closing Date with respect to the Mortgage on the Property, subject only to applicable Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents, and Lender shall have received satisfactory evidence thereof.

3.1.4Related Documents. Each additional document not specifically referenced herein, but relating to the transactions contemplated herein, shall have been duly authorized, executed and delivered by all parties thereto and Lender shall have received and approved certified copies thereof.

3.1.5Delivery of Organizational Documents.   On or before the Closing Date, Borrower shall deliver or cause to be delivered to Lender copies certified by Borrower of all organizational documentation related to Borrower and/or the formation, structure, existence, good standing and/or qualification to do business, as Lender may request in its sole discretion, including, without limitation, good standing certificates, qualifications to do business in the appropriate jurisdictions, resolutions authorizing the entering into of the Loan and incumbency certificates as may be requested by Lender.

3.1.6Opinions of Borrower’s Counsel. Lender shall have received opinions of Borrower’s counsel with respect to (a) non-consolidation issues (“Insolvency Opinion”) and (b) due execution, authority, enforceability of the Loan Documents and such other matters as Lender may reasonably require, all such opinions in form, scope and substance reasonably satisfactory to Lender and Lender’s counsel in their reasonable discretion.

3.1.7Budget. Borrower shall have delivered, and Lender shall have approved, the Annual Budget for the current Fiscal Year.

3.1.8Basic Carrying Costs. Borrower shall have paid all Basic Carrying Costs relating to the Property which are in arrears, including without limitation, (a) accrued but unpaid insurance premiums relating to the Property, (b) currently due and payable Taxes (including any in arrears) relating to the Property, and (c) currently due Other Charges relating to the Property, which amounts shall be funded with proceeds of the Loan.

3.1.9Completion of Proceedings. All organizational proceedings taken or to be taken in connection with the transactions contemplated by this Agreement and other Loan Documents and all documents incidental thereto shall be reasonably satisfactory in form and substance to Lender, and Lender shall have received all such counterpart originals or certified copies of such documents as Lender may reasonably request.

3.1.10Payments.   All payments, deposits or escrows required to be made or established by Borrower under this Agreement, the Note and the other Loan Documents on or before the Closing Date shall have been paid.

3.1.11Tenant Estoppels.   (a) Lender shall have received an executed tenant estoppel letter, which shall be in form and substance satisfactory to Lender, from each Major Tenant, and (b) Borrower shall exercise reasonable commercial efforts to deliver estoppel letters from Tenants occupying not less than seventy percent (70%), disregarding the area leased by

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Major Tenants of the remaining gross leasable area of the Property; provided, however, that, in the event that Borrower is unable to deliver some or all of the estoppels described in clause (b) of this Section 3.1.11, Lender agrees that the requirement to deliver such letters to Lender shall be waived by Lender as a condition precedent to the closing of the Loan so long as Borrower delivers on or before the Closing Date, a certificate executed by Borrower with respect to all applicable leases which shall be in substantially the same form and contain the same terms as set forth in Lender’s standard form of estoppel certificate.

3.1.12Transaction Costs. Borrower shall have paid or reimbursed Lender for all title insurance premiums, recording and filing fees, costs of environmental reports, Physical Conditions Reports, appraisals and other reports, the fees and costs of Lender’s counsel and all other third party out-of-pocket expenses incurred in connection with the origination of the Loan.

3.1.13Material Adverse Change.   There shall have been no material adverse change in the financial condition or business condition of Borrower, any Major Tenant or the Property since the date of the most recent financial statements delivered to Lender. The income and expenses of the Property, the occupancy leases thereof, and all other features of the transaction shall be as represented to Lender without material adverse change. Neither Borrower nor any of its constituent Persons nor any Major Tenant shall be the subject of any bankruptcy, reorganization, or insolvency proceeding.

3.1.14Leases and Rent Roll.   Lender shall have received copies of all tenant leases, certified copies of any tenant leases as requested by Lender and certified copies of all ground leases affecting the Property.  Lender shall have received a current certified rent roll of the Property, reasonably satisfactory in form and substance to Lender.

3.1.15Subordination and Attornment.  Lender shall have received appropriate instruments acceptable to Lender in its commercially reasonable discretion subordinating the Leases of each of the Major Tenants and other Leases of record prior to the Mortgage and including an agreement by such Tenants to attorn to Lender in the event of a foreclosure or delivery of a deed in lieu thereof.

3.1.16Tax Lot. Lender shall have received evidence that the Property constitutes one (1) or more separate tax lots, which evidence shall be reasonably satisfactory in form and substance to Lender.

3.1.17Physical Conditions Reports.     Lender shall have received Physical Conditions Reports with respect to the Property, which reports shall be reasonably satisfactory in form and substance to Lender.

3.1.18Management Agreement.  Lender shall have received a certified copy of the Management Agreement with respect to the Property which shall be satisfactory in form and substance to Lender.

3.1.19Appraisal. Lender shall have received an appraisal of the Property, which shall be satisfactory in form and substance to Lender.

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3.1.20Financial Statements. Lender shall have received (a) a balance sheet with respect to the Property for the two most recent Fiscal Years and statements of income and statements of cash flows with respect to the Property for the three most recent Fiscal Years, each in form and substance reasonably satisfactory to Lender or (b) such other financial statements relating to the ownership and operation of the Property, in form and substance reasonably satisfactory to Lender.

3.1.21Further Documents.  Lender or its counsel shall have received such other and further approvals, opinions, documents and information as Lender or its counsel may have reasonably requested including the Loan Documents in form and substance reasonably satisfactory to Lender and its counsel.

3.1.22Environmental Insurance.   If required by Lender, Borrower shall have obtained a secured creditor environmental insurance policy with respect to the Property, which shall be in form and substance satisfactory to Lender. Any such policy shall have a term not less than the term of the Loan. Borrower shall have provided to Lender evidence that the premiums for such policy has been paid in full.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

Section 4.1Borrower Representations. Borrower represents and warrants as of the date hereof and as of the Closing Date that:

4.1.1Organization.  Borrower has been duly organized and is validly existing and in good standing with requisite power and authority to own the Property and to transact the businesses in which it is now engaged. Borrower is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with the Property, businesses and operations.  Borrower possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own the Property and to transact the businesses in which it is now engaged, and the sole business of Borrower is the ownership, management and operation of the Property.

4.1.2Proceedings.   Borrower has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the other Loan Documents.  This Agreement and such other Loan Documents have been duly executed and delivered by or on behalf of Borrower and constitute legal, valid and binding obligations of Borrower enforceable against Borrower in accordance with their respective terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

4.1.3No Conflicts. The execution, delivery and performance of this Agreement and the other Loan Documents by Borrower will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance (other than pursuant to the Loan Documents) upon any of the

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property or assets of Borrower pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument to which Borrower is a party or by which any of Borrower’s property or assets is subject, nor will such action result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Borrower or any of Borrower’s properties or assets, and any consent, approval, authorization, order, registration or qualification of or with any court or any such regulatory authority or other governmental agency or body required for the execution, delivery and performance by Borrower of this Agreement or any other Loan Documents has been obtained and is in full force and effect.

4.1.4Litigation.    To Borrower’s knowledge, there are no actions, suits or proceedings at law or in equity by or before any Governmental Authority or other agency now pending or threatened against or affecting Borrower or the Property, which actions, suits or proceedings, if determined against Borrower or the Property, might materially adversely affect the condition (financial or otherwise) or business of Borrower or the condition or ownership of the Property.

4.1.5Agreements.    Except such instruments and agreements set forth as Permitted Encumbrances in the Title Insurance Policy, Borrower is not a party to any agreement or instrument or subject to any restriction which might materially and adversely affect Borrower or the Property, or Borrower’s business, properties or assets, operations or condition, financial or otherwise. To Borrower’s knowledge, Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party or by which Borrower or the Property are bound.  Borrower has no material financial obligation under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Borrower is a party or by which Borrower or the Property is otherwise bound, other than (a) obligations incurred in the ordinary course of the operation of the Property and (b) obligations under the Loan Documents.

4.1.6Title.   Borrower has good and indefeasible fee simple title to the real property comprising part of the Property and good title to the balance of the Property, free and clear of all Liens whatsoever except the Permitted Encumbrances, such other Liens as are permitted pursuant to the Loan Documents and the Liens created by the Loan Documents. The Mortgage, when properly recorded in the appropriate records, together with any Uniform Commercial Code financing statements required to be filed in connection therewith, will create (a) a valid, perfected lien on the Property, subject only to Permitted Encumbrances and the Liens created by the Loan Documents and (b) perfected security interests in and to, and perfected collateral assignment of, all personalty (including the Leases), all in accordance with the terms thereof, in each case subject only to any applicable Permitted Encumbrances, such other Liens as are permitted pursuant to the Loan Documents and the Liens created by the Loan Documents. There are no claims for payment for work, labor or materials affecting the Property which are due and unpaid under the contracts pursuant to which such work or labor was performed or materials provided which are or may become a lien prior to, or of equal priority with, the Liens created by the Loan Documents.

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4.1.7Solvency; No Bankruptcy Filing. Borrower (a) has not entered into the transaction or executed the Note, this Agreement or any other Loan Documents with the actual intent to hinder, delay or defraud any creditor and (b) received reasonably equivalent value in exchange for its obligations under such Loan Documents.  Giving effect to the Loan, the fair saleable value of Borrower’s assets exceeds and will, immediately following the making of the Loan, exceed Borrower’s total liabilities, including, without limitation, subordinated, unliquidated, disputed and contingent liabilities. The fair saleable value of Borrower’s assets is and will, immediately following the making of the Loan, be greater than Borrower’s probable liabilities, including the maximum amount of its contingent liabilities on its debts as such debts become absolute and matured. Borrower’s assets do not and, immediately following the making of the Loan will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Borrower does not intend to, and does not believe that it will, incur debt and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such debt and liabilities as they mature (taking into account the timing and amounts of cash to be received by Borrower and the amounts to be payable on or in respect of obligations of Borrower). Except as expressly disclosed to Lender in writing, no petition in bankruptcy has been filed against Borrower, or to the best of Borrower’s knowledge, any constituent Person in the last seven (7) years, and neither Borrower, nor to the best of Borrower’s knowledge, any constituent Person in the last seven (7) years has ever made an assignment for the benefit of creditors or taken advantage of any insolvency act for the benefit of debtors. Neither Borrower nor any of its constituent Persons are contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of Borrower’s assets or property, and Borrower has no knowledge of any Person contemplating the filing of any such petition against it or such constituent Persons.

4.1.8Full and Accurate Disclosure. To Borrower’s knowledge, no statement of fact made by Borrower in this Agreement or in any of the other Loan Documents contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained herein or therein not misleading. There is no material fact presently known to Borrower which has not been disclosed to Lender which adversely affects, nor as far as Borrower can foresee, might adversely affect, the Property or the business, operations or condition (financial or otherwise) of Borrower.

4.1.9No Plan Assets. Borrower is not an “employee benefit plan,” as defined in Section 3(3) of ERISA, subject to Title I of ERISA, and none of the assets of Borrower constitutes or will constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101. In addition, (a) Borrower is not a “governmental plan” within the meaning of Section 3(32) of ERISA and (b) transactions by or with Borrower are not subject to state statutes regulating investment of, and fiduciary obligations with respect to, governmental plans similar to the provisions of Section 406 of ERISA or Section 4975 of the Code currently in effect, which prohibit or otherwise restrict the transactions contemplated by this Loan Agreement.

4.1.10Compliance.  To Borrower’s knowledge, Borrower and the Property and the use thereof comply in all material respects with all applicable Legal Requirements, including, without limitation, building and zoning ordinances and codes.  Borrower is not in default or violation of any order, writ, injunction, decree or demand of any Governmental Authority. There

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has not been committed by Borrower or, to Borrower’s knowledge, any other Person in occupancy of or involved with the operation or use of the Property any act or omission affording the federal government or any other Governmental Authority the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents.

4.1.11Financial Information.   All financial data, including, without limitation, the statements of cash flow and income and operating expense, that have been delivered to Lender in respect of the Property (i) are to the best of Borrower’s knowledge, true, complete and correct in all material respects, (ii) accurately represent the financial condition of the Property as of the date of such reports, and (iii) to the extent prepared or audited by an independent certified public accounting firm, have been prepared in accordance with accounting principles reasonably acceptable to Lender, consistently applied throughout the periods covered, except as disclosed therein; provided, however, that if any financial data is delivered to Lender by any Person other than Borrower, Indemnitor or any of their Affiliates, or if such financial data has been prepared by or at the direction of any Person other than Borrower, Indemnitor or any of their Affiliates, then the foregoing representations with respect to such financial data shall be to the best of Borrower’s knowledge, after due inquiry.  Borrower does not have any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that are known to Borrower and reasonably likely to have a materially adverse effect on the Property or the operation thereof as retail shopping centers, except as referred to or reflected in said financial statements.  Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of Borrower from that set forth in said financial statements.

4.1.12Condemnation.   No Condemnation or other proceeding has been commenced or, to Borrower’s knowledge, is contemplated with respect to all or any portion of the Property or for the relocation of roadways providing access to the Property.

4.1.13Federal Reserve Regulations. No part of the proceeds of the Loan will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by Legal Requirements or by the terms and conditions of this Agreement or the other Loan Documents.

4.1.14Utilities and Public Access.  The Property has rights of access to public ways and is served by water, sewer, sanitary sewer and storm drain facilities adequate to service the Property for its respective intended uses.  All public utilities necessary or convenient to the full use and enjoyment of the Property are located either in the public right-of-way abutting the Property (which are connected so as to serve the Property without passing over other property) or in recorded easements serving the Property and such easements are set forth in and insured by the Title Insurance Policies.  All roads necessary for the use of the Property for their current respective purposes have been completed and dedicated to public use and accepted by all Governmental Authorities.

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4.1.15Not a Foreign Person.   Borrower is not a “foreign person” within the meaning of §1445(f)(3) of the Code.

4.1.16Separate Lots.   The Property is comprised of one (1) or more parcels which constitute a separate tax lot or lots and does not constitute a portion of any other tax lot not a part of the Property.

4.1.17Assessments.    There are no pending, or to Borrower’s knowledge, proposed special or other assessments for public improvements or otherwise affecting the Property, nor are there any contemplated improvements to the Property that may result in such special or other assessments.

4.1.18Enforceability.   The Loan Documents are not subject to any right of rescission, set-off, counterclaim or defense by Borrower, including the defense of usury, nor would the operation of any of the terms of the Loan Documents, or the exercise of any right thereunder, render the Loan Documents unenforceable, and Borrower has not asserted any right of rescission, set-off, counterclaim or defense with respect thereto.

4.1.19No Prior Assignment. There is no prior assignment of the Leases or any portion of the Rents by Borrower or any of its predecessors in interest, given as collateral security which is presently outstanding.

4.1.20Insurance.   Borrower has obtained and has delivered to Lender certified copies of all insurance policies reflecting the insurance coverages, amounts and other requirements set forth in this Agreement. To the best of Borrower’s knowledge, no claims have been made under any such policy, and no Person, including Borrower, has done, by act or omission, anything which would impair the coverage of any such policy.

4.1.21Use of Property. The Property is used exclusively for retail purposes and other appurtenant and related uses.

4.1.22Certificate of Occupancy; Licenses.  All certifications, permits, licenses and approvals, including without limitation, certificates of completion and occupancy permits required to be obtained by Borrower for the legal use, occupancy and operation of the Property as a retail shopping center have been obtained and are in full force and effect, and to the best of Borrower’s knowledge, after due inquiry, all certifications, permits, licenses and approvals, including without limitation, certificates of completion and occupancy permits required to be obtained by any Person other than Borrower for the legal use, occupancy and operation of the Property as a retail shopping center, have been obtained and are in full force and effect (all of the foregoing certifications, permits, licenses and approvals are collectively referred to as the “Licenses”). Borrower shall and shall cause all other Persons to, keep and maintain all Licenses necessary for the operation of the Property as a retail shopping center. To Borrower’s knowledge, the use being made of the Property is in conformity with all certificates of occupancy issued for the Property.

4.1.23Flood Zone. To the best of Borrower’s knowledge, after due inquiry, none of the Improvements on the Property are located in an area as identified by the Federal Emergency Management Agency as an area having special flood hazards.

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4.1.24Physical Condition.    Except as disclosed in the Physical Conditions Reports delivered to Lender in connecting with this Loan, to Borrower’s knowledge, the Property, including, without limitation, all buildings, improvements, parking facilities, sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, are in good condition, order and repair in all material respects; there exists no structural or other material defects or damages in the Property, whether latent or otherwise, and Borrower has not received notice from any insurance company or bonding company of any defects or inadequacies in the Property, or any part thereof, which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond.

4.1.25Boundaries.  To the best of Borrower’s knowledge, after due inquiry, all of the improvements which were included in determining the appraised value of the Property lie wholly within the boundaries and building restriction lines of the Property, and no improvements on adjoining properties encroach upon the Property, and no easements or other encumbrances upon the Property encroach upon any of the improvements, so as to affect the value or marketability of the Property except those which are insured against by title insurance.

4.1.26Leases.  The Property is not subject to any Leases other than the Leases described on the Rent Roll attached as Schedule II hereto and made a part hereof. To the best of Borrower’s knowledge, no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leases are in full force and effect and to Borrower’s knowledge, there are no defaults thereunder by either party and there are no conditions that, with the passage of time or the giving of notice, or both, would constitute defaults thereunder. To the best of Borrower’s knowledge, no Rent (including security deposits) has been paid more than one (1) month in advance of its due date. To the best of Borrower’s knowledge, all work to be performed by Borrower under each Lease has been performed as required and has been accepted by the applicable tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any tenant has already been received by such tenant.  To the best of Borrower’s knowledge, there has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents received therein which is outstanding.  To Borrower’s knowledge, no tenant listed on Schedule II has assigned its Lease or sublet all or any portion of the premises demised thereby, no such tenant holds its leased premises under assignment or sublease, nor does anyone except such tenant and its employees occupy such leased premises. No tenant under any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part. Except as set forth in Schedule II, no tenant under any Lease has any right or option for additional space in the Improvements except as set forth in Schedule II. To Borrower’s actual knowledge based on the Environmental Report delivered to Lender in connection herewith, no hazardous wastes or toxic substances, as defined by applicable federal, state or local statutes, rules and regulations, have been disposed, stored or treated by any tenant under any Lease on or about the leased premises nor does Borrower have any knowledge of any tenant’s intention to use its leased premises for any activity which, directly or indirectly, involves the use, generation, treatment, storage, disposal or transportation of any petroleum product or any toxic or hazardous

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chemical, material, substance or waste, except in either event, in compliance with applicable federal, state or local statues, rules and regulations.

4.1.27Survey.  The Survey for the Property delivered to Lender in connection with this Agreement has been prepared in accordance with the provisions of Section 3.l.3(c) hereof, and does not fail to reflect any material matter affecting the Property or the title thereto.

4.1.28Loan to Value.   The maximum principal amount of the Loan does not exceed one hundred twenty-five percent (125%) of the fair market value of the Property as set forth on the appraisals of the Property delivered to Lender.

4.1.29Filing and Recording Taxes.   All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the transfer of the Property to Borrower have been paid or are simultaneously being paid.  All mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents, including, without limitation, the Mortgage, have been paid, and, under current Legal Requirements, the Mortgage is enforceable in accordance with its terms by Lender (or any subsequent holder thereof).

4.1.30Special Purpose Entity/Separateness.

(a)Until the Debt has been paid in full, Borrower hereby represents, warrants and covenants that the Borrower is, shall be and shall continue to be a Special Purpose Entity. If Borrower consists of more than one Person, each such Person shall be a Special Purpose Entity.

(b)The representations, warranties and covenants set forth in Section 4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.

(c)Any and all of the assumptions made in any Insolvency Opinion, including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects, and Borrower will have complied and will comply with all of the assumptions made with respect to it in any Insolvency Opinion. Each entity other than Borrower with respect to which an assumption is made in any Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any such Insolvency Opinion.

4.1.31Management Agreement. The Management Agreement is in full force and effect and, to Borrower’s knowledge, there is no default thereunder by any party thereto and no event has occurred that, with the passage of time and/or the giving of notice would constitute a default thereunder.

4.1.32Illegal Activity. To Borrower’s knowledge, no portion of the Property has been or will be purchased with proceeds of any illegal activity.

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4.1.33No Change in Facts or Circumstances; Disclosure.    All information submitted by Borrower to Lender and in all financial statements, rent rolls, reports, certificates and other documents submitted in connection with the Loan or in satisfaction of the terms thereof and all statements of fact made by Borrower in this Agreement or in any other Loan Document, are accurate, complete and correct in all material respects, provided, however, that if such information was provided to Borrower by non-affiliated third parties, Borrower represents that such information is, to the best of its knowledge after due inquiry, accurate, complete and
correct in all material respects.  There has been no material adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading in any material respect or that otherwise materially and adversely affects or might materially and adversely affect the Property or the business operations or the financial condition of Borrower. Borrower has disclosed to Lender all material facts and has not failed to disclose any material fact that could cause any representation or warranty made herein to be materially misleading.

4.1.34Intentionally omitted.

4.1.35Principal Place of Business and Organization. Borrower shall not change its principal place of business set forth in the introductory paragraph of this Agreement without first giving Lender thirty (30) days prior written notice. Borrower shall not change the place of its organization as set forth in the introductory paragraph of this Agreement without the consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed.  Upon Lender’s request, Borrower shall execute and deliver additional financing statements, security agreements and other instruments which may be necessary to effectively evidence or perfect Lender’s security interest in the Property as a result of such change of principal place of business or place of organization.

4.1.36Investment Company Act. Borrower is not (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; (b) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (c) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

Section 4.2Survival of Representations. Borrower agrees that all of the representations and warranties of Borrower set forth in Section 4.1 and elsewhere in this Agreement and in the other Loan Documents shall survive for so long as any amount remains owing to Lender under this Agreement or any of the other Loan Documents by Borrower. All representations, warranties, covenants and agreements made in this Agreement or in the other Loan Documents by Borrower shall be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.

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ARTICLE V

BORROWER COVENANTS

Section 5.lAffirmative Covenants. From the date hereof and until payment and performance in full of all obligations of Borrower under the Loan Documents or the earlier release of the Lien of the Mortgage encumbering the Property (and all related obligations) in accordance with the terms of this Agreement and the other Loan Documents, Borrower hereby covenants and agrees with Lender that:

5.1.1Existence; Compliance with Legal Requirements; Insurance. Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, rights, licenses, permits and franchises and comply with all Legal Requirements applicable to it and the Property. There shall never be committed by Borrower or any other Person in occupancy of or involved with the operation or use of the Property any act or omission affording the federal government or any state or local government the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents. Borrower hereby covenants and agrees not to commit, permit or suffer to exist any act or omission affording such right of forfeiture. Borrower shall at all times maintain, preserve and protect all its franchises and trade names and preserve all the remainder of its property used or useful in the conduct of its business and shall keep the Property in good working order and repair, and from time to time make, or cause to be made, all reasonably necessary repairs, renewals, replacements, betterments and improvements thereto, all as more fully provided in the Mortgage. Borrower shall keep the Property insured at all times by financially sound and reputable insurers, to such extent and against such risks, and maintain liability and such other insurance, as is more fully provided in this Agreement. Borrower shall operate, or cause the tenant to operate, any Property that is the subject of an O&M Agreement (if any) in accordance with the terms and provisions thereof in all material respects. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding promptly initiated and conducted in good faith and with due diligence, the validity of any Legal Requirement, the applicability of any Legal Requirement to Borrower or the Property or any alleged violation of any Legal Requirement, provided that (i) no Event of Default has occurred and remains uncured; (ii) intentionally omitted; (iii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with the provisions of any instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iv) the Property or any part thereof or interest therein will not be in danger of being sold, forfeited, terminated, concealed or lost; (v) Borrower shall promptly upon final determination thereof comply with any such Legal Requirement determined to be valid or applicable or cure any violation of any Legal Requirement; (vi) such proceeding shall suspend the enforcement of the contested Legal Requirement against Borrower or the Property; and (vii) Borrower shall furnish such security as may be required in the proceeding, or as may be requested by Lender, to insure compliance with such Legal Requirement, together, with all interest and penalties payable in connection therewith. Lender may apply any such security, as necessary to cause compliance with such Legal Requirement at any time when, in the reasonable judgment of Lender, the validity, applicability or violation of such Legal Requirement

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is finally established or the Property (or any part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost.

5.1.2Taxes and Other Charges.   Borrower shall pay or caused to be paid all Taxes and Other Charges now or hereafter levied or assessed or imposed against the Property or any part thereof as the same become due and payable; provided, however, Borrower’s obligation to directly pay to the appropriate taxing authority Taxes shall be suspended for so long as Borrower complies with the terms and provisions of Section 7.2 hereof. Borrower will deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes and Other Charges have been so paid or are not then delinquent no later than ten (10) days prior to the date on which the Taxes and/or Other Charges would otherwise be delinquent if not paid (provided, however, that Borrower is not required to furnish such receipts for payment of Taxes in the event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays or causes to be paid all Taxes and Other Charges and provides a copy of the receipt evidencing the payment thereof to Lender, then Lender shall reimburse Borrower, provided that there are then sufficient proceeds in the Tax and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to Section 7.2.  Upon written request of Borrower, if Lender has paid such Taxes pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that such Taxes have been paid.  Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. After prior written notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances; (iii) the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish such security as may be required in the proceeding, or as may be reasonably requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon.  Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established.

5.1.3Litigation.   Borrower shall give prompt written notice to Lender of any litigation or governmental proceedings pending or threatened against Borrower which might materially adversely affect Borrower’s condition (financial or otherwise) or business or the Property.

5.1.4Access to Property.   Borrower shall permit agents, representatives and employees of Lender to inspect the Property or any part thereof at reasonable hours upon reasonable advance notice, subject to the rights of Tenants under their respective Leases.

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5.1.5Notice of Default. Borrower shall promptly advise Lender of any material adverse change in Borrower’s condition, financial or otherwise, or of the occurrence of any Default or Event of Default of which Borrower has knowledge.

5.1.6Cooperate in Legal Proceedings.    Borrower shall cooperate fully with Lender with respect to any proceedings before any court, board or other Governmental Authority which may in any way affect the rights of Lender hereunder or any rights obtained by Lender under any of the other Loan Documents and, in connection therewith, permit Lender, at its election, to participate in any such proceedings.

5.1.7Perform Loan Documents. Borrower shall observe, perform and satisfy all the terms, provisions, covenants and conditions of, and shall pay when due all costs, fees and expenses to the extent required under the Loan Documents executed and delivered by, or applicable to, Borrower.

5.1.8Insurance Benefits. Borrower shall cooperate with Lender in obtaining for Lender the benefits of any Insurance Proceeds lawfully or equitably payable in connection with the Property, and Lender shall be reimbursed for any expenses incurred in connection therewith (including reasonable attorneys’ fees and disbursements, and the payment by Borrower of the
expense of an appraisal on behalf of Lender in case of a fire or other casualty affecting the Property or any part thereof) out of such Insurance Proceeds.

5.1.9Further Assurances. Borrower shall, at Borrower’s sole cost and expense:

(a)furnish to Lender all instruments, documents, boundary surveys, footing or foundation surveys, certificates, plans and specifications, appraisals, title and other insurance reports and agreements, and each and every other document, certificate, agreement and instrument required to be furnished by Borrower pursuant to the terms of the Loan Documents or reasonably requested by Lender in connection therewith;

(b)execute and deliver to Lender such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect the collateral at any time securing or intended to secure the obligations of Borrower under the Loan Documents, as Lender may reasonably require; and

(c)do and execute all and such further lawful and reasonable acts, conveyances and assurances for the better and more effective carrying out of the intents and purposes of this Agreement and the other Loan Documents, as Lender shall reasonably require from time to time.

5.1.10Intentionally Omitted.

5.1.11Financial Reporting.

(a)Borrower will keep and maintain or will cause to be kept and maintained on a Fiscal Year basis, in accordance with the requirements for a Special Purpose Entity set forth above, proper and accurate books, records and accounts reflecting all of the financial affairs of Borrower and all items of income and expense in connection with the operation on an individual

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basis of the Property.  Lender shall have the right from time to time at all times during normal business hours upon reasonable notice to examine such books, records and accounts at the office of Borrower or other Person maintaining such books, records and accounts and to make such copies or extracts thereof as Lender shall desire. After the occurrence and during the continuance of an Event of Default, Borrower shall pay any costs and expenses incurred by Lender to examine Borrower’s accounting records with respect to the Property, as Lender shall reasonably determine to be necessary or appropriate in the protection of Lender’s interest.

(b)Borrower will furnish to Lender annually, within one hundred twenty (120) days following the end of each Fiscal Year of Borrower, either (i) a complete copy of Borrower’s annual financial statements audited by a “Big Four” accounting firm or other independent certified public accountant reasonably acceptable to Lender in accordance with the requirements for a Special Purpose Entity set forth above, or (ii) a consolidated and annotated financial statement of Borrower and Sole Member, audited by a “Big Four” accounting firm or other independent certified public accountant reasonably acceptable to Lender in accordance with the requirements for a Special Purpose Entity set forth above, together with unaudited financial statements relating to the Borrower and the Property. Such financial statements for the Property for such Fiscal Year and shall contain statements of profit and loss for Borrower and the Property and a balance sheet for Borrower.  Such statements shall set forth the financial condition and the results of operations for the Property for such Fiscal Year, and shall include, but not be limited to, amounts representing annual Net Cash Flow, Net Operating Income, Gross Income from Operations and Operating Expenses. Borrower’s annual financial statements shall be accompanied by (i) a comparison of the budgeted income and expenses and the actual income and expenses for the prior Fiscal Year, (ii) a certificate executed by the chief financial officer of Borrower or Sole Member, as applicable, stating that each such annual financial statement presents fairly the financial condition and the results of operations of Borrower and the Property being reported upon and has been prepared in accordance with accounting principles reasonably acceptable to Lender, consistently applied, (iii) with respect to any consolidated financial statement of Borrower and Sole Member, an unqualified opinion of a “Big Four” accounting firm or other independent certified public accountant reasonably acceptable to Lender, (iv) a certified rent roll containing current rent, lease expiration dates and the square footage occupied by each tenant; (v) a schedule audited by such independent certified public accountant reconciling Net Operating Income to Net Cash Flow (the “Net Cash Flow Schedule”), which shall itemize all adjustments made to Net Operating Income to arrive at Net Cash Flow deemed material by such independent certified public accountant.  Together with Borrower’s annual financial statements, Borrower shall furnish to Lender an Officer’s Certificate certifying as of the date thereof whether there exists an event or circumstance which constitutes a Default or Event of Default under the Loan Documents executed and delivered by, or applicable to, Borrower, and if such Default or Event of Default exists, the nature thereof, the period of time it has existed and the action then being taken to remedy the same.

(c)Borrower will furnish, or cause to be furnished, to Lender on or before forty-five (45) days after the end of each calendar quarter the following items, accompanied by a certificate of the chief financial officer of Borrower or Sole Member, as applicable, stating that such items are true, correct, accurate, and complete and fairly present the financial condition and results of the operations of Borrower and the Property (subject to normal year-end adjustments) as applicable: (i) a rent roll for the subject period accompanied by an Officer’s Certificate with

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respect thereto; (ii) quarterly and year-to-date operating statements (including Capital Expenditures) prepared for each calendar quarter, noting Net Operating Income, Gross Income from Operations, and Operating Expenses (not including any contributions to the Replacement Reserve Fund, and other information necessary and sufficient to fairly represent the financial position and results of operation of the Property during such calendar month, and containing a comparison of budgeted income and expenses and the actual income and expenses together with a detailed explanation of any variances of five percent (5%) or more between budgeted and actual amounts for such periods, all in form satisfactory to Lender; (iii) a calculation reflecting the annual Debt Service Coverage Ratio for the immediately preceding twelve (12) month period as of the last day of such period accompanied by an Officer’s Certificate with respect thereto; and (iv) a Net Cash Flow Schedule (such Net Cash Flow for the Borrower may be unaudited if it is certified by an officer of the Borrower). In addition, such certificate shall also be accompanied by a certificate of the chief financial officer of Borrower or Sole Member stating that the representations and warranties of Borrower set forth in Section 4.1.30(a) are true and correct as of the date of such certificate. Provided, further, that during the twelve (12) month period commencing on the date hereof, Borrower will furnish a current rent roll and monthly and year-to-date operating statements within twenty (20) days of Lender’s written request.

(d)For the partial year period commencing on the date hereof, and for each Fiscal Year thereafter, Borrower shall submit to Lender an Annual Budget not later than thirty (30) days after the commencement of such period or Fiscal Year in form reasonably satisfactory to Lender.

(e)Borrower shall furnish to Lender, within ten (10) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information with respect to the operation of the Property and the financial affairs of Borrower as may be reasonably requested by Lender.

(f)Borrower shall furnish to Lender, within ten (10) Business Days after Lender’s request (or as soon thereafter as may be reasonably possible), financial and sales information from each Major Tenant and such other tenants designated by Lender (to the extent such financial and sales information is required to be provided under applicable leases and same is received by Borrower after request therefor).

(g)Borrower will cause Indemnitor to furnish to Lender annually, within one hundred twenty (120) days following the end of each Fiscal Year of Indemnitor, financial statements audited by an independent certified public accountant, which shall include an annual balance sheet and profit and loss statement of Indemnitor, in the form reasonably required by Lender.

(h)Any reports, statements or other information required to be delivered under this Agreement shall be delivered (i) in paper form, (ii) on a diskette, and (iii) if requested by Lender and within the capabilities of Borrower’s data systems without change or modification thereto, in electronic form and prepared using a Microsoft Word for Windows or WordPerfect for Windows files (which files may be prepared using a spreadsheet program and saved as word processing files).

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5.1.12Business and Operations.     Borrower will continue to engage in the businesses presently conducted by it as and to the extent the same are necessary for the ownership, maintenance, management and operation of the Property.  Borrower will qualify to do business and will remain in good standing under the laws of each jurisdiction as and to the extent the same are required for the ownership, maintenance, management and operation of the Property.

5.1.13Title to the Property. Borrower will warrant and defend (a) the title to the Property and every part thereof, subject only to Liens permitted hereunder (including Permitted Encumbrances) and (b) the validity and priority of the Liens of the Mortgage and the Assignment of Leases on the Property, subject only to Liens permitted hereunder (including Permitted Encumbrances), in each case against the claims of all Persons whomsoever.  Borrower shall reimburse Lender for any losses, costs, damages or expenses (including reasonable attorneys’ fees and court costs) incurred by Lender if an interest in the Property, other than as permitted hereunder, is claimed by another Person.

5.1.14Costs of Enforcement. In the event (a) that the Mortgage encumbering the Property is foreclosed in whole or in part or that the Mortgage is put into the hands of an attorney for collection, suit, action or foreclosure, (b) of the foreclosure of any mortgage prior to or subsequent to the Mortgage encumbering the Property in which proceeding Lender is made a party, or (c) of the bankruptcy, insolvency, rehabilitation or other similar proceeding in respect of Borrower or any of its constituent Persons or an assignment by Borrower or any of its constituent Persons for the benefit of its creditors, Borrower, its successors or assigns, shall be chargeable with and agrees to pay all costs of collection and defense, including reasonable attorneys’ fees and costs, incurred by Lender or Borrower in connection therewith and in connection with any appellate proceeding or post-judgment action involved therein, together with all required service or use taxes.

5.1.15Estoppel Statement.

(a)After request by Lender, Borrower shall within ten (10) days furnish Lender with a statement, duly acknowledged and certified, setting forth (i) the amount of the original principal amount of the Note, (ii) the unpaid principal amount of the Note, (iii) the Interest Rate of the Note, (iv) the date installments of interest and/or principal were last paid, (v) any offsets or defenses to the payment of the Debt, if any, and (vi) that the Note, this Agreement, the Mortgage and the other Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such modification.

(b)Borrower shall use commercially reasonable efforts to deliver to Lender upon request, tenant estoppel certificates from each commercial tenant leasing space at the Property in form and substance reasonably satisfactory to Lender provided that Borrower shall not be required to deliver such certificates more frequently than one (1) time in any calendar year.

(c)Within thirty (30) days of request by Borrower, Lender shall deliver to Borrower a statement setting forth the items described at (a) (i), (ii), (iii) and (iv) of this Section 5.1.15.

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5.1.16Loan Proceeds. Borrower shall use the proceeds of the Loan received by it on the Closing Date only for the purposes set forth in Section 2.1.4.

5.1.17Performance by Borrower.   Borrower shall in a timely manner observe, perform and fulfill each and every covenant, term and provision of each Loan Document executed and delivered by, or applicable to, Borrower, and shall not enter into or otherwise suffer or permit any amendment, waiver, supplement, termination or other modification of any Loan Document executed and delivered by, or applicable to, Borrower without the prior written consent of Lender.

5.1.18Confirmation of Representations.   Borrower shall deliver, in connection with any Securitization, (a) one or more Officer’s Certificates certifying as to the accuracy of all representations made by Borrower in the Loan Documents as of the date of the closing of such Securitization, and (b) certificates of the relevant Governmental Authorities in all relevant jurisdictions indicating the good standing and qualification of Borrower and its member as of the date of the Securitization.

5.1.19No Joint Assessment. Borrower shall not suffer, permit or initiate the joint assessment of the Property (a) with any other real property constituting a tax lot separate from the Property, and (b) which constitutes real property with any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to such real property portion of the Property.

5.1.20Leasing Matters. Any Leases with respect to the Property written after the date hereof, for more than the Relevant Leasing Threshold square footage, shall be subject to the prior written approval of Lender, which approval may be given or withheld in the sole discretion of Lender. Lender shall approve or disapprove any such Lease within ten (10) Business Days of Lender’s receipt of a final execution draft of such Lease (including all exhibits, schedules, supplements, addenda or other agreements relating thereto) and a written notice from Borrower requesting Lender’s approval to such Lease, and such Lease shall be deemed approved, if Lender does not disapprove such Lease within said ten (10) Business Day period provided such written notice conspicuously states, in large bold type, that “PURSUANT TO SECTION 5.1.20 OF THE LOAN AGREEMENT, THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE CONTRARY WITHIN TEN (10) BUSINESS DAYS OF LENDER’S RECEIPT OF SUCH LEASE AND WRITTEN NOTICE.” Borrower shall furnish Lender with executed copies of all Leases. All renewals of Leases and all proposed Leases shall provide for rental rates comparable to existing local market rates (unless such rental rates are otherwise set forth in the Leases executed prior to the date hereof).  All proposed Leases shall be on commercially reasonable terms and shall not contain any terms which would materially affect Lender’s rights under the Loan Documents.  All Leases executed after the date hereof shall provide that they are subordinate to the Mortgage encumbering the Property and that the tenant thereunder agrees to attorn to Lender or any purchaser at a sale by foreclosure or power of sale.  Borrower (i) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) shall enforce the terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed in a commercially reasonable manner and in a manner not to impair

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the value of the Property involved except that no termination by Borrower or acceptance of surrender by a tenant of any Lease shall be permitted unless by reason of a tenant default and then only in a commercially reasonable manner to preserve and protect the Property provided, however, that no such termination or surrender of any Lease covering more than the Relevant Leasing Threshold will be permitted without the written consent of Lender which consent may be withheld in the sole discretion of Lender; (iii) shall not collect any of the rents more than one (1) month in advance (other than security deposits); (iv) shall not execute any other assignment of lessor’s interest in the Leases or the Rents (except as contemplated by the Loan Documents); (v) shall not alter, modify or change the terms of the Leases in a manner inconsistent with the provisions of the Loan Documents without the prior written consent of Lender, which consent may be withheld in the sole discretion of Lender; and (vi) shall execute and deliver at the request of Lender all such further assurances, confirmations and assignment in connection with the Leases as Lender shall from time to time reasonably require. Notwithstanding the foregoing, Borrower may, without the prior written consent of Lender, terminate any Lease which demises less than the Relevant Leasing Threshold under any of the following circumstances: (i) the tenant under said Lease is in default beyond any applicable grace and cure period, and Borrower has the right to terminate such Lease; (ii) such termination is permitted by the terms of the Lease in question and Borrower has secured an obligation from a third party to lease the space under the Lease to be terminated at a rental equal to or higher than the rental due under the Lease to be terminated; and (iii) if the tenant under the Lease to be terminated has executed a right under said Lease to terminate its lease upon payment of a termination fee to Borrower, and has in fact terminated its lease and paid said fee, Borrower may accept said termination.

5.1.21Alterations. Subject to the rights of tenants to make alterations pursuant to the terms of their respective Leases, Borrower shall obtain Lender’s prior written consent to any alterations to any Improvements, which consent shall not be unreasonably withheld or delayed except with respect to alterations that may have a material adverse effect on Borrower’s financial condition, the value of the Property or the Net Operating Income. Notwithstanding the foregoing, Lender’s consent shall not be required in connection with any alterations that will not have a material adverse effect on Borrower’s financial condition, the value of the Property or the Net Operating Income, provided that such alterations are made in connection with (a) tenant improvement work performed pursuant to the terms of any Lease executed on or before the date hereof, (b) tenant improvement work performed pursuant to the terms and provisions of a Lease and not adversely affecting any structural component of any Improvements, any utility or HVAC system contained in any Improvements or the exterior of any building constituting a part of any Improvements, (c) alterations performed in connection with the restoration of the Property after the occurrence of a casualty in accordance with the terms and provisions of this Agreement or (d) any structural alteration which costs less than $50,000.00 in the aggregate for all components thereof which constitute such alteration or any non-structural alteration which costs less than $100,000.00 in the aggregate for all components thereof which constitute such alteration. If the total unpaid amounts due and payable with respect to alterations to the Improvements at the Property (other than such amounts to be paid or reimbursed by tenants under the Leases) shall at any time equal or exceed $350,000.00 (the “Threshold Amount”), Borrower shall promptly deliver to Lender as security for the payment of such amounts and as additional security for Borrower’s obligations under the Loan Documents any of the following: (A) cash, (B) U.S. Obligations, (C) other securities having a rating acceptable to Lender and that the applicable Rating Agencies have confirmed in writing will not, in and of itself, result in a downgrade,

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withdrawal or qualification of the initial, or, if higher, then current ratings assigned in connection with any Securitization, or (D) a completion bond or letter of credit issued by a financial institution having a rating by Standard & Poor’s Ratings Group of not less than A-1+ if the term of such bond or letter of credit is no longer than three (3) months or, if such term is in excess of three (3) months, issued by a financial institution having a rating that is acceptable to Lender and that the applicable Rating Agencies have confirmed in writing will not, in and of itself, result in a downgrade, withdrawal or qualification of the initial, or, if higher, then current ratings assigned in connection with any Securitization. Such security shall be in an amount equal to the excess of the total unpaid amounts with respect to alterations to the Improvements on the Property (other than such amounts to be paid or reimbursed by tenants under the Leases) over the Threshold Amount and, if cash, may be applied from time to time, at the option of Borrower, to pay for such alterations. At the option of Lender, following the occurrence and during the continuance of an Event of Default, Lender may terminate any of the alterations and use the deposit to restore the Property to the extent necessary to prevent any material adverse effect on the value of the Property.

5.1.22Principal Place of Business. Borrower shall not change its principal place of business set forth on the first page of this Agreement without first giving Lender thirty (30) days prior written notice.

5.1.23Payments to Tenants. Borrower shall pay, in accordance with the terms of the respective Leases, the amounts set forth as required tenant improvement allowances in the tenant estoppel certificates delivered to Lender in connection with Loan closing by Panera and Mattress Firm. Borrower shall furnish to Lender copies of the checks issued to such Tenants for such payments.

Section 5.2Negative Covenants. From the date hereof until payment and performance in full ofall obligations of Borrower under the Loan Documents or the earlier release of the Lien of the Mortgage encumbering the Property in accordance with the terms of this Agreement and the other Loan Documents, Borrower covenants and agrees with Lender that it will not do, directly or indirectly, any of the following:

5.2.1Operation of Property.  Borrower shall not, without the prior consent of Lender, terminate the Management Agreement or otherwise replace the Manager or enter into any other management agreement with respect to the Property unless the Manager is in default thereunder beyond any applicable grace or cure period, in which event no consent by Lender shall be required.  Lender agrees that its consent will not be unreasonably withheld, delayed or conditioned provided that the Person chosen by Borrower as the replacement Manager is a Qualifying Manager and provided further that Borrower shall deliver an acceptable non- consolidation opinion covering such replacement Manager if any such opinion was delivered at the closing of the Loan and such Person was not covered by that opinion.

5.2.2Liens.   Borrower shall not, without the prior written consent of Lender, create, incur, assume or suffer to exist any Lien on any portion of the Property or permit any such action to be taken, except:

(i)Permitted Encumbrances;

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(ii)Liens created by or permitted pursuant to the Loan Documents; and

(iii)Liens for Taxes or Other Charges not yet due.

5.2.3Dissolution. Borrower shall not (a) engage in any dissolution, liquidation or consolidation or merger with or into any other business entity, (b) engage in any business activity not related to the ownership and operation of the Property, (c) transfer, lease or sell, in one transaction or any combination of transactions, the assets or all or substantially all of the properties or assets of Borrower except to the extent permitted by the Loan Documents, (d) modify, amend, waive or terminate its organizational documents or its qualification and good standing in any jurisdiction or (e) cause the Sole Member to (i) dissolve, wind up or liquidate or take any action, or omit to take an action, as a result of which the Sole Member would be dissolved, wound up or liquidated in whole or in part, or (ii) amend, modify, waive or terminate the certificate of limited partnership or partnership agreement of the Sole Member, in each case, without obtaining the prior written consent of Lender or Lender’s designee.

5.2.4Change in Business.  Borrower shall not enter into any line of business other than the ownership and operation of the Property, or make any material change in the scope or nature of its business objectives, purposes or operations, or undertake or participate in activities other than the continuance of its present business.

5.2.5Debt Cancellation.   Borrower shall not cancel or otherwise forgive or release any claim or debt (other than termination of Leases in accordance herewith) owed to Borrower by any Person, except for adequate consideration and in the ordinary course of Borrower’s business.

5.2.6Affiliate Transactions. Borrower shall not enter into, or be a party to, any transaction with an Affiliate of Borrower or any of the partners of Borrower except in the ordinary course of business and on terms which are fully disclosed to Lender in advance and are no less favorable to Borrower or such Affiliate than would be obtained in a comparable arm’s-length transaction with an unrelated third party. Lender hereby acknowledges disclosure of the agreements described on Schedule VI between Borrower and an Affiliate of Borrower.

5.2.7Zoning. Borrower shall not initiate or consent to any zoning reclassification of any portion of the Property or seek any variance under any existing zoning ordinance or use or permit the use of any portion of the Property in any manner that could result in such use becoming a non-conforming use under any zoning ordinance or any other applicable land use law, rule or regulation, without the prior consent of Lender.

5.2.8Assets. Borrower shall not purchase or own any properties other than the Property.

5.2.9Debt.  Borrower shall not create, incur or assume any Indebtedness other than the Debt except to the extent expressly permitted hereby.

5.2.10No Joint Assessment. Borrower shall not suffer, permit or initiate the joint assessment of the Property with (a) any other real property constituting a tax lot separate from the Property, or (b) any portion of the Property which may be deemed to constitute personal

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property, or any other procedure whereby the Lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to the Property.

5.2.11Intentionally Deleted.

5.2.12ERISA.

(a)Borrower shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under the Note, this Agreement or the other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA.

(b)Borrower further covenants and agrees to deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan, as requested by Lender in its sole discretion, that (A) Borrower is not and does not maintain an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ER1SA_, or a “governmental plan” within the meaning of Section 3(3) of ERISA; (B) Borrower is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (C) one or more of the following circumstances is true:

(i)Equity interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R. §2510.3-101(b)(2);

(ii)Less than twenty-five percent (25%) of each outstanding class of equity interests in Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R. §25l0.3-101(f)(2);or

(iii)Borrower qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. §2510.3-101(c) or (e).

5.2.13 Transfers. Unless such action is permitted by the provisions of this Section 5.2.13, Borrower will not (i) sell, assign, convey, transfer or otherwise dispose of its interests in the Property or any part thereof, (ii) permit any owner, directly or indirectly, of an ownership interest in the Property, to transfer such interest, whether by transfer of stock or other interest in Borrower or any entity, or otherwise, (iii) incur Indebtedness, (iv) mortgage, hypothecate or otherwise encumber or grant a security interest in the Property or any part thereof, (v) sell, assign, convey, transfer, mortgage, encumber, grant a security interest in, or otherwise dispose of any direct or indirect ownership interest in Borrower, or permit any owner of an interest in Borrower to do the same, or (vi) file a declaration of condominium with respect to the Property (any of the foregoing transactions, a “Transfer”). For purposes hereof, a “Transfer” shall not include any issuance, sale or transfer of interests in Inland Western Retail Real Estate Trust, Inc.

(a)On and after the date that is the later of (i) twelve (12) months following the Closing Date, or (ii) the date of any payment in connection with an Earnout Closing (as defined in the Purchase Contract) relating to the Property, but in no event later than the date that is twenty four (24) months following the Closing Date, Lender shall not withhold its consent to a Transfer of the Property, provided that the following conditions are satisfied:

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(1)the transferee of the Property shall be a Special Purpose Entity (the “Transferee”) which at the time of such transfer will be in compliance with the covenants contained in Section 5.1.1 and the representations contained in 4.1.30 hereof and which shall have assumed in writing (subject to the terms of Section 9.4 hereof) and agreed to comply with all the terms, covenants and conditions set forth in this Loan Agreement and the other Loan Documents, expressly including the covenants contained in Section 5.1.1 and the representations contained in 4.1.30 hereof;

(2)if requested by Lender, Borrower shall deliver confirmation in writing from the Rating Agencies that such proposed Transfer will not cause a downgrading, withdrawal or qualification of the then current rating of any securities issued pursuant to such Securitization;

(3)if Manager does not act as manager of the transferred Property then the manager of the Property must be a Qualifying Manager;

(4)no Event of Default shall have occurred and be continuing;

(5)if required or requested by any of the Rating Agencies, Borrower shall deliver an Additional Insolvency Opinion, and if required by a Rating Agency, a fraudulent conveyance opinion with respect to Transferee, which opinion shall be acceptable to Lender in its reasonable discretion;

(6)Borrower shall have paid (A) an assumption fee equal to one percent (1.0%) of the then outstanding principal balance of the Loan, and (B) the reasonable and customary third-party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer; provided, however, no assumption fee shall be required for a Transfer of the Property to a Transferee acceptable to Lender in connection with a joint venture between Inland Western Retail Real Estate Trust, Inc. and an institution acceptable to Lender provided Inland Western Retail Real Estate Trust, Inc., or an Affiliate wholly-owned (directly or indirectly) by Inland Western Retail Real Estate Trust, Inc., owns at least twenty percent (20%) of the ownership interests in such Transferee and for which Inland Western Retail Real Estate Trust, Inc., or an Affiliate wholly-owned (directly or indirectly) by Inland Western Retail Real Estate Trust, Inc., is the managing entity and otherwise maintains operational and managerial control of such Transferee, provided that Borrower shall pay all of Lender’s reasonable and customary third-party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer and a processing fee of $5,000.

Lender shall notify Borrower of its approval or disapproval of a proposed Transfer pursuant to this Section 5.2.13(a) within thirty (30) days after receiving from Borrower a written request therefor.

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(b)On and after the date that is the later of (i) twelve (12) months following the Closing Date, or (ii) the date of any payment in connection with an Earnout Closing (as defined in the Purchase Contact) relating to the Property, but in no event later than the date that is twenty four (24) months following the Closing Date, Lender shall not withhold its consent to, and shall not charge an assumption fee in connection with, (1) a Transfer of up to, in the aggregate, forty-nine percent (49%) of the ownership interests in Borrower; or (2) a Transfer of greater than forty-nine percent (49%) of the ownership interest in Borrower, provided that (A) such transfer is to a Qualified Entity (as defined below), and (B) Borrower shall pay all of Lender’s reasonable and customary third-party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer and a processing fee of $5,000.  For purposes of this Agreement, a “Qualified Entity” shall mean an entity (x) with a net worth of $200,000,000 or more, (y) with sufficient experience (determined by Lender in its reasonable discretion) in the ownership and management of properties similar to the Property, and (z) which owns or manages retail properties containing at least 500,000 square feet of gross leasable area.  If required or requested by any of the Rating Agencies, Borrower shall deliver a substantive non-consolidation opinion with respect to any party not now owning more than 49% of the ownership interests in Borrower acquiring more than 49% of the ownership interests in Borrower.

(c)Notwithstanding anything in this Section 5.2.13 to the contrary, Borrower shall be permitted to Transfer the entire Property to a newly-formed Special Purpose Entity which shall be wholly-owned subsidiary of Inland Western Retail Real Estate Trust, Inc. or affiliate thereof (“Permitted Affiliate Transferee”) which shall be approved by Lender by the Closing Date (“Permitted Affiliate Transfer”), provided (1) no Event of Default shall have occurred and be continuing, (2) the creditworthiness of Inland Western Retail Real Estate Trust, Inc., as applicable, has not deteriorated, in the sole discretion of Lender, from the Closing Date to the date of the proposed Transfer, and (3) Borrower shall have paid all reasonable and customary third party expenses (including reasonable attorneys’ fees and disbursements) actually incurred by Lender in connection with such Transfer (but not any assumption or processing fee).

(d)Borrower, without the consent of Lender, may grant easements, restrictions, covenants, reservations and rights of way in the ordinary course of business for access, parking, water and sewer lines, telephone and telegraph lines, electric lines and other utilities or for other similar purposes, provided that no transfer, conveyance or encumbrance shall materially impair the utility and operation of the Property or materially adversely affect the value of the Property or the Net Operating Income of the Property. If Borrower shall receive any consideration in connection with any of said described transfers or conveyances, Borrower shall have the right to use any such proceeds in connection with any alterations performed in connection therewith, or required thereby.  In connection with any transfer, conveyance or encumbrance permitted above, the Lender shall execute and deliver any instrument reasonably necessary or appropriate to evidence its consent to said action or to subordinate the Lien of the Mortgage to such easements, restrictions, covenants, reservations and rights of way or other similar grants upon receipt by the Lender of: (A) a copy of the instrument of transfer; and (B) an Officer’s Certificate stating with respect to any transfer described above, that such transfer does not materially impair the utility and operation of the Property or materially reduce the value of the Property or the Net Operating Income of the Property.

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ARTICLE VI

INSURANCE; CASUALTY; CONDEMNATION

Section 6.1      Insurance.

(a)Borrower shall obtain and maintain, or cause to be maintained, insurance for Borrower and the Property providing at least the following coverages:

(i)comprehensive all risk insurance on the Improvements and the Personal Property, including contingent liability from Operation of Building Laws, Demolition Costs and Increased Cost of Construction Endorsements, in each case (A) in an amount equal to one hundred percent (100%) of the “Full Replacement Cost,” which for purposes of this Agreement shall mean actual replacement value (exclusive of costs of excavations, foundations, underground utilities and footings) with a waiver of depreciation, but the amount shall in no event be less than the outstanding principal balance of the Loan; (B) containing an agreed amount endorsement with respect to the Improvements and Personal Property waiving all co-insurance provisions; (C) providing for no deductible in excess of Ten Thousand and No/100 Dollars ($10,000) for all such insurance coverage; and (D) containing an “Ordinance or Law Coverage” or “Enforcement” endorsement if any of the Improvements or the use of the Property shall at any time constitute legal non-conforming structures or uses. In addition, Borrower shall obtain: (y) if any portion of the Improvements is currently or at any time in the future located in a federally designated “special flood hazard area,” flood hazard insurance in an amount equal to the lesser of (1) the outstanding principal balance of the Note or (2) the maximum amount of such insurance available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended or such greater amount as Lender shall require; and (z) earthquake insurance in amounts and in form and substance satisfactory to Lender in the event the Property is located in an area with a high degree of seismic activity, provided that the insurance pursuant to clauses (y) and (z) hereof shall be on terms consistent with the comprehensive all risk insurance policy required under this subsection (i).

(ii)commercial general liability insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about the Property, such insurance (A) to be on the so-called “occurrence” form with a combined limit, including umbrella coverage, of not less than Two Million and No/100 Dollars ($2,000,000.00) in the aggregate and One Million and No/100 Dollars ($1,000,000.00) per occurrence; (B) to continue at not less than the aforesaid limit until required to be changed by Lender in writing by reason of changed economic conditions making such protection inadequate; and (C) to cover at least the following hazards: (1) premises and operations; (2) products and completed operations on an “if any” basis; (3) independent contractors; (4) blanket contractual liability for all legal contracts; and (5) contractual liability covering the indemnities contained in Article 9 of the Mortgage to the extent the same is available;

(iii)business income insurance (A) with loss payable to Lender; (B) covering all risks required to be covered by the insurance provided for in subsection (i) above; (C)

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covering rental losses or business interruption, as may be applicable, for a period of at least twelve (12) months after the date of the casualty and containing any extended period of indemnity endorsement which provides that after the physical loss to the Improvements and Personal Property has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss, or the expiration of six (6) months from the date that the Property is repaired or replaced and operations are resumed, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period; and (D) in an annual amount equal to 100% of the rents or estimated gross revenues from the operation of the Property (as reduced to reflect expenses not incurred during Restoration).  The amount of such business income insurance shall be determined prior to the date hereof and at least once each year thereafter based on Borrower’s reasonable estimate of the gross income from the Property for the succeeding twelve (12) month period.  All proceeds payable to Lender pursuant to this subsection shall be held by Lender and shall be applied to the obligations secured by the Loan Documents from time to time due and payable hereunder and under the Note; provided, however, that nothing herein contained shall be deemed to relieve Borrower of its obligations to pay the obligations secured by the Loan Documents on the respective dates of payment provided for in the Note and the other Loan Documents except to the extent such amounts are actually paid out of the proceeds of such business income insurance;

(iv)at all times during which structural construction, repairs or alterations are being made with respect to the Improvements, and only if the Property coverage form does not otherwise apply, (A) owner’s contingent or protective liability insurance covering claims not covered by or under the terms or provisions of the above mentioned commercial general liability insurance policy; and (B) the insurance provided for in subsection (i) above written in a so-called builder’s risk completed value form (1) on a non-reporting basis, (2) against all risks insured against pursuant to subsection (i) above, (3) including permission to occupy the Property, and (4) with an agreed amount endorsement waiving co-insurance provisions;

(v)workers’ compensation, subject to the statutory limits of the State;

(vi)comprehensive boiler and machinery insurance, if applicable, in amounts as shall be reasonably required by Lender on terms consistent with the commercial property insurance policy required under subsection (i) above;

(vii)umbrella liability insurance in an amount not less than Five Million and No/100 Dollars ($5,000,000.00) per occurrence on terms consistent with the commercial general liability insurance policy required under subsection (ii) above;

(viii)if any of the policies of insurance covering the risks required to be covered under subsections (i) through (vii) above contains an exclusion from coverage for acts of terrorism, Borrower shall obtain and maintain a separate policy providing such coverages in the event of any act of terrorism, provided such coverage is commercially available for properties similar to the Property and located in or around the region in which the Property is located. Notwithstanding the foregoing, Borrower shall not be required to

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obtain such a policy, provided (I) Borrower confirms to Lender, in writing, that it shall protect and hold Lender harmless from any losses associated with such risks by, among other things, either (A) depositing with Lender sums sufficient to pay for all uninsured costs related to a Restoration of the Property following any act of terrorism (which sum shall be treated as a Net Proceeds Deficiency) and any remaining balance following a Restoration shall be remitted by Lender to Borrower in accordance with Section 6.4(b)(vii) hereof), or (B) at the option of Borrower prepaying the Loan in accordance with the terms hereof, including, without limitation, the payment of any Prepayment Consideration due in connection therewith; (II) Inland Western Retail Real Estate Trust, Inc. (“Terrorism Insurance Guarantor”) executes a guaranty, in form and substance satisfactory to Lender, guaranteeing in the event of any act of terrorism, payment to Lender of any sums that Borrower is obligated to pay to Lender under clause (I) above (which shall be applied in accordance with Section 6.4 hereof), and (III) Terrorism Insurance Guarantor maintains a net worth of at least $300,000,000 (as determined by such entity’s most recent audited financial statements), such entity maintains a direct or indirect ownership interest in Borrower, and the aggregate loan-to-value ratio (as determined by Lender) (“LTV”) for all properties on which such entity has a direct or indirect ownership interest shall not exceed 55%, however, Terrorism Insurance Guarantor may exceed the 55% LTV for a period not to exceed six (6) months out of any twelve (12) month period either 1) during the time period when Terrorism Insurance Guarantor is offering securities to the public, or 2) when in the business judgement of Terrorism Insurance Guarantor, exceeding an LTV of 55% is necessary given existing circumstances of the credit environment, but in no event shall the LTV exceed 65% if Terrorism Insurance Guarantor maintains a net worth greater than or equal to $300,000,000, but less than $400,000,000, or 70% if Terrorism Insurance Guarantor maintains a net worth of at least $400,000,000.

(ix)upon sixty (60) days’ written notice, such other reasonable insurance and in such reasonable amounts as Lender from time to time may reasonably request against such other insurable hazards which at the time are commonly insured against for property similar to the Property located in or around the region in which the Property is located.

(b)All insurance provided for in Section 6.1 (a) shall be obtained under valid and enforceable policies (collectively, the “Policies” or in the singular, the “Policy”), and shall be subject to the approval of Lender as to insurance companies, amounts, deductibles, loss payees and insureds. The Policies shall be issued by financially sound and responsible insurance companies authorized to do business in the State and having a rating of “A:X” or better in the current Best’s Insurance Reports and a claims paying ability rating of “AA” or better by at least two (2) of the Rating Agencies including, (i) Standard & Poor’s Ratings Group, and (ii) Moody’s Investors Services, Inc. if Moody’s Investors Service, Inc. is rating the Securities. The Policies described in Section 6.1 (other than those strictly limited to liability protection) shall designate Lender as loss payee. Not less than ten (10) days prior to the expiration dates of the Policies theretofore furnished to Lender, certificates of insurance evidencing the Policies accompanied by evidence satisfactory to Lender of payment of the premiums due thereunder (the “Insurance Premiums”), shall be delivered by Borrower to Lender.

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(c)Any blanket insurance Policy shall specifically allocate to the Property the amount of coverage from time to time required hereunder and shall otherwise provide the same protection as would a separate Policy insuring only the Property in compliance with the provisions of Section 6.1(a).

(d)All Policies of insurance provided for or contemplated by Section 6.1(a), except for the Policy referenced in Section 6.1(a)(v), shall name Borrower, or the Tenant, as the insured and Lender as the additional insured, as its interests may appear, and in the case of property damage, boiler and machinery, flood and earthquake insurance, shall contain a so-called New York standard non-contributing mortgagee clause in favor of Lender providing that the loss thereunder shall be payable to Lender.

(e)All Policies of insurance provided for in Section 6.1(a) shall contain clauses or endorsements to the effect that:

(i)no act or negligence of Borrower, or anyone acting for Borrower, or of any Tenant or other occupant, or failure to comply with the provisions of any Policy, which might otherwise result in a forfeiture of the insurance or any part thereof, shall in any way affect the validity or enforceability of the insurance insofar as Lender is concerned;

(ii)the Policy shall not be materially changed (other than to increase the coverage provided thereby) or canceled without at least thirty (30) days’ written notice to Lender and any other party named therein as an additional insured;

(iii)the issuers thereof shall give written notice to Lender if the Policy has not been renewed fifteen (15) days prior to its expiration; and

(iv)Lender shall not be liable for any Insurance Premiums thereon or subject to any assessments thereunder.

(f)If at any time Lender is not in receipt of written evidence that all insurance required hereunder is in full force and effect, Lender shall have the right, after ten (10) Business Days written notice to Borrower, to take such action as Lender deems necessary to protect its interest in the Property, including, without limitation, the obtaining of such insurance coverage as Lender in its sole discretion deems appropriate.  All premiums incurred by Lender in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by Borrower to Lender upon demand and, until paid, shall be secured by the Mortgage and shall bear interest at the Default Rate. If Borrower fails in so insuring the Property or in so assigning and delivering the Policies, Lender may, at its option, obtain such insurance using such carriers and agencies as Lender shall elect from year to year and pay the premiums therefor, and Borrower will reimburse Lender for any premium so paid, with interest thereon as stated in the Note from the time of payment, on demand, and the amount so owing to Lender shall be secured by the Mortgage.  The insurance obtained by Lender may, but need not, protect Borrower’s interest and the coverage that Lender purchases may not pay any claim that Borrower makes or any claim that is made against Borrower in connection with the Property.

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Section 6.2Casualty.  If the Property shall be damaged or destroyed, in whole or in part, by fire or other casualty (a “Casualty”), Borrower (a) shall give to Lender prompt notice of such damage reasonably estimated by Borrower to cost more than One Hundred Thousand Dollars ($100,000.00) to repair, and (b) shall promptly commence and diligently prosecute the completion of the repair and restoration of the Property as nearly as possible to the condition the Property was in immediately prior to such fire or other casualty, with such alterations as may be reasonably approved by Lender (a “Restoration”) and otherwise in accordance with Section 6.4. Borrower shall pay all costs of such Restoration whether or not such costs are covered by insurance. Lender may, but shall not be obligated to make proof of loss if not made promptly by Borrower.

Section 6.3Condemnation.  Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the Condemnation of the Property and shall deliver to Lender copies of any and all papers served in connection with such proceedings. Lender may participate in any such proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through Condemnation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Debt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note.  If the Property or any portion thereof is taken by a condemning authority, Borrower shall promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the provisions of Section 6.4. If the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.

Section 6.4Restoration.  The following provisions shall apply in connection with the Restoration of the Property:

(a)If the Net Proceeds shall be less than Relevant Restoration Threshold and the costs of completing the Restoration shall be less than the Relevant Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.

(b)If the Net Proceeds are equal to or greater than the Relevant Restoration Threshold or the costs of completing the Restoration is equal to or greater than the Relevant Restoration Threshold, then in either case, Lender shall make the Net Proceeds available for the

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Restoration in accordance with the provisions of this Section 6.4(b). The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (x) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi) and (viii) as a result of such damage or destruction, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting same (“Insurance Proceeds”), or (y) the net amount of the Award, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.

(i)The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:

(A)no Event of Default shall have occurred and be continuing;

(B)(1) in the event the Net Proceeds are Insurance Proceeds, and (x) less than twenty-five percent (25%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such fire or other casualty, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property, or (2) in the event the Net Proceeds are Condemnation Proceeds, and (x) less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property;

(C)Leases demising in the aggregate a percentage amount equal to or greater than the Rentable Space Percentage of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such fire or other casualty or taking, whichever the case may be, and will make all necessary repairs and restorations thereto at their sole cost and expense.  The term “Rentable Space Percentage” shall mean (x) in the event the Net Proceeds are Insurance Proceeds, a percentage amount equal to fifty percent (50%) and (y) in the event the Net Proceeds are Condemnation Proceeds, a percentage amount equal to fifty percent (50%);

(D)Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than ninety (90) days after such damage or destruction or taking, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion;

(E)Lender shall be satisfied that any operating deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the Property asa result of the occurrence of any such fire

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or other casualty or taking, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 6.1(a)(iii), if applicable, or (3) by other funds of Borrower;

(F)Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) the Maturity Date, (2) the earliest date required for such completion under the terms of any Leases, (3) such time as may be required under applicable zoning law, ordinance, rule or regulation in order to repair and restore the Property to the condition it was inimmediately prior to such fire or other casualty or to as nearly as possible the condition it was in immediately prior to such taking, as applicable or (4) the expiration of the insurance coverage referred to in Section 6.1(a)(iii);

(G)the Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable zoning laws, ordinances, rules and regulations provided, however, that compliance with such zoning laws, ordinances, rules and regulations (including, without limitation, parking requirements) will not require restoration of the Improvements or the Property to a size, condition, or configuration materially different than that which existed immediately prior to such Casualty or taking;

(H)the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable governmental laws, rules and regulations (including, without limitation, all applicable environmental laws);

(I)such fire or other casualty or taking, as applicable, does not result in the loss of access to the Property or the related Improvements;

(J)the Debt Service Coverage Ratio, after giving effect to the Restoration, shall be equal to or greater than 2.1:1;

(K)Borrower shall deliver or cause to be delivered to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, which budget should be consistent with restoration budgets of similar retail properties then owned and operated by nationally recognized owners and operators of retail properties located in the areas in which the Property is located; and

(L)the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s discretion to cover the cost of the Restoration.

(ii)The Net Proceeds shall be held by Lender in an interest bearing account and, until disbursed in accordance with the provisions of this Section 6.4(b), shall constitute additional security for the Debt and other obligations under the Loan Documents.  The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of

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evidence satisfactory to Lender that (A) all materials installed and work and labor performed to be paid for out of the requested disbursement in connection with the Restoration have been performed, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy.

(iii)All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Casualty Consultant”), such review and acceptance not to be unreasonably withheld or delayed. Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and rnaterialmen engaged in the Restoration, as well as the contracts under which they have been engaged, shall be subject to prior review and acceptance by Lender and the Casualty Consultant, such review and acceptance not to be unreasonably withheld or delayed. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be paid by Borrower.

(iv)In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Casualty Retainage. The term “Casualty Retainage” shall mean an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until the Restoration has been completed. The Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Section 6.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Casualty Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 6.4(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate governmental and quasi-governmental authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Casualty Retainage; provided, however, that Lender will release the portion of the Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company issuing the Title Insurance Policy, and Lender receives an endorsement

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to the Title Insurance Policy insuring the continued priority of the lien of the Mortgage and evidence of payment of any premium payable for such endorsement. If required by Lender, the release of any such portion of the Casualty Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.

(v)Lender shall not be obligated to make disbursements of the Net Proceeds more frequently than once every calendar month.

(vi)If at any time the Net Proceeds or the undisbursed balance thereof shall not, in the reasonable opinion of Lender in consultation with the Casualty Consultant, be sufficient to pay in full the balance of the costs which are estimated by the Casualty Consultant to be incurred in connection with the completion of the Restoration, Borrower shall deposit the deficiency (the “Net Proceeds Deficiency”)with Lender before any further disbursement of the Net Proceeds shall be made. The Net Proceeds Deficiency deposited with Lender shall be held by Lender and shall be disbursed for costs actually incurred in connection with the Restoration on the same conditions applicable to the disbursement of the Net Proceeds, and until so disbursed pursuant to this Section 6.4(b) shall constitute additional security for the Debt and other obligations under the Loan Documents.

(vii)The excess, if any, of the Net Proceeds and the remaining balance, if any, of the Net Proceeds Deficiency deposited with Lender after the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 6.4(b), and the receipt by Lender of evidence satisfactory to Lender that all costs incurred in connection with the Restoration have been paid in full, shall be remitted by Lender to Borrower, provided no Event of Default shall have occurred and shall be continuing under the Note, this Agreement or any of the other Loan Documents.

(c)All Net Proceeds not required (i) to be made available for the Restoration or (ii) to be returned to Borrower as excess Net Proceeds pursuant to Section 6.4(b)(vii) may be retained and applied by Lender toward the payment of the Debt whether or not then due and payable in such order, priority and proportions as Lender in its sole discretion shall deem proper (provided no Event of Default exists, such Borrower shall not be required to pay any Prepayment Consideration in connection with such payment), or, at the discretion of Lender, the same may be paid, either in whole or in part, to Borrower for such purposes as Lender shall designate, in its discretion.

(d)In the event of foreclosure of the Mortgage with respect to the Property, or other transfer of title to the Property in extinguishment in whole or in part of the Debt all right, title and interest of Borrower in and to the Policies that are not blanket Policies then in force concerning the Property and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure or Lender or other transferee in the event of such other transfer of title.

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(e)Lender shall with reasonable promptness following any Casualty or Condemnation notify Borrower whether or not Net Proceeds are required to be made available to Borrower for restoration pursuant to this Section 6.4.

ARTICLE VII

RESERVE FUNDS

Section 7.1Required Repair Funds.

7.1.1Deposits.   Borrower shall perform the repairs at the Property, if any, as more particularly set forth on Schedule III hereto within six (6) months from the date of funding (such repairs hereinafter referred to as “Required Repairs”).  Borrower shall complete the Required Repairs on or before the required deadline for each repair as set forth on Schedule III. It shall be an Event of Default under this Agreement if (i) Borrower does not complete the Required Repairs at the Property by the required deadline for each repair as set forth on Schedule III, and (ii) Borrower does not satisfy each condition contained in Section 7.1.2 hereof. Upon the occurrence of such an Event of Default, Lender, at its option, may withdraw all Required Repair Funds from the Required Repair Account and Lender may apply such funds either to completion of the Required Repairs at the Property or toward payment of the Debt in such order, proportion and priority as Lender may determine in its sole discretion.  Lender’s right to withdraw and apply Required Repair Funds shall be in addition to all other rights and remedies provided to Lender under this Agreement and the other Loan Documents.  On the Closing Date, Borrower shall deposit with Lender the amount for the Property set forth on such Schedule III hereto, if any, to perform the Required Repairs for the Property.  Amounts so deposited with Lender, if any, shall be held by Lender in an interest bearing account. Amounts so deposited, if any, shall hereinafter be referred to as Borrower’s “Required Repair Fund” and the account, if any, in which such amounts are held shall hereinafter be referred to as Borrower’s “Required Repair Account.”

7.1.2Release of Required Repair Funds. Lender shall disburse to Borrower the Required Repair Funds from the Required Repair Account from time to time upon satisfaction by Borrower of each of the following conditions:  (i) Borrower shall submit a written request for payment to Lender at least fifteen (15) days prior to the date on which Borrower requests such payment be made and specifies the Required Repairs to be paid, (ii) on the date such request is received by Lender and on the date such payment is to be made, no Default or Event of Default shall exist and remain uncured, (iii) Lender shall have received a certificate from Borrower (A) stating that all Required Repairs at the Property to be funded by the requested disbursement have been completed in good and workmanlike manner and in accordance with all applicable federal, state and local laws, rules and regulations, such certificate to be accompanied by a copy of any license, permit or other approval by any Governmental Authority required to commence and/or complete the Required Repairs, (B) identifying each Person that supplied materials or labor in connection with the Required Repairs performed at the Property to be funded by the requested disbursement under a contract in excess of $50,000, and (C) stating that each Person who has supplied materials or labor in connection with the Required Repairs to be funded by the requested disbursement has been paid in full or will be paid in full upon such disbursement, such certificate to be accompanied by lien waivers or other evidence of payment satisfactory to

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Lender, (iv) at Lender’s option, a title search for the Property indicating that the Property is free from all liens, claims and other encumbrances not previously approved by Lender, and (v) Lender shall have received such other evidence as Lender shall reasonably request that the Required Repairs at the Property to be funded by the requested disbursement have been completed and are paid for or will be paid upon such disbursement to Borrower.  Lender shall not be required to make disbursements from the Required Repair Account with respect to the Property more than once each calendar month and such disbursement shall be made only upon satisfaction of each condition contained in this Section 7.1.2.

Section 7.2Tax and Insurance Escrow Fund. Borrower shall pay to Lender on each Payment Date (a) one-twelfth of the Taxes that Lender estimates will be payable during the next ensuing twelve (12) months in order to accumulate with Lender sufficient funds to pay all such Taxes at least thirty (30) days prior to their respective due dates and (b) one-twelfth of the Insurance Premiums that Lender estimates will be payable for the renewal of the coverage afforded by the Policies upon the expiration thereof in order to accumulate with Lender sufficient funds to pay all such Insurance Premiums at least thirty (30) days prior to the expiration of the Policies, (said amounts in (a) and (b) above are hereinafter called the “Tax and Insurance Escrow Fund”). The Tax and Insurance Escrow Fund and the payments of interest or principal or both, payable pursuant to the Note, shall be added together and shall be paid as an aggregate sum by Borrower to Lender. Lender will apply the Tax and Insurance Escrow Fund to payments of Taxes and Insurance Premiums required to be made by Borrower pursuant to this Agreement and under the Mortgage. In making any payment relating to the Tax and Insurance Escrow Fund, Lender may do so according to any bill, statement or estimate procured from the appropriate public office (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums) or from Borrower without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof, provided, however, Lender shall use reasonable efforts to pay such real property taxes sufficiently early to obtain the benefit of any available discounts of which it has knowledge. If the amount of the Tax and Insurance Escrow Fund shall exceed the amounts due for Taxes and Insurance Premiums, Lender shall, in its sole discretion, return any excess to Borrower or credit such excess against future payments to be made to the Tax and Insurance Escrow Fund. The Tax and Insurance Escrow Fund shall be held by Lender in an interest-bearing account and shall at Lender’s option be held in Eligible Account at an Eligible Institution.  Any interest earned on said account shall be held in said account and credited toward future deposits to the Tax and Insurance Escrow Fund. Any amount remaining in the Tax and Insurance Escrow Fund after the Debt has been paid in full shall be returned to Borrower. In allocating such excess, Lender may deal with the Person shown on the records of Lender to be the owner of the Property.  If at any time Lender reasonably determines that the Tax and Insurance Escrow Fund is not or will not be sufficient to pay Taxes or Insurance Premiums by the dates set forth above, Lender shall notify Borrower of such determination and Borrower shall increase its monthly payments to Lender by the amount that Lender estimates is sufficient to make up the deficiency at least thirty (30) days prior to delinquency of the Taxes or Insurance Premiums. Notwithstanding anything to the contrary hereinbefore contained, in the event that Borrower provides (1) evidence satisfactory to Lender that the Property is insured under a “blanket” policy which is acceptable to Lender and which otherwise satisfies the requirements of this Agreement and (2) evidence satisfactory to Lender that the Taxes for the Property have been paid in accordance with the requirements set forth in this Agreement, Lender will waive the requirement set forth herein for Borrower to make

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deposits into the Tax and Insurance Escrow Fund for the payment of Insurance Premiums due on such “blanket” policy of insurance and for payment of such Taxes, provided, however, Lender expressly reserves the right to require Borrower to make deposits to the Tax and Insurance Escrow Fund for the payment of Insurance Premiums if at any time the Property is not insured under a “blanket” insurance policy which satisfies the requirements of this Agreement or Taxes are not paid in accordance with the requirements of this Agreement.

Section 7.3Replacements and Replacement Reserve.

7.3.1Replacement Reserve Fund.   Borrower shall pay to Lender on the date hereof and on each Payment Date one twelfth of the amount (the “Replacement Reserve Monthly Deposit”) reasonably estimated by Lender in its sole discretion to be due for replacements and repairs required to be made to the Property during the calendar year (collectively, the “Replacements”), which Replacement Reserve Monthly Deposit shall be in an amount equal to no less than $0.15 per year per square foot of gross leasable area. Amounts so deposited shall hereinafter be referred to as Borrower’s “Replacement Reserve Fund” and the account in which such amounts are held shall hereinafter be referred to as Borrower’s “Replacement Reserve Account.”  Lender may reassess its estimate of the amount necessary for the Replacement Reserve Fund from time to time, and may increase the monthly amounts required to be deposited into the Replacement Reserve Fund upon thirty (30) days notice to Borrower if Lender determines in its reasonable discretion that an increase is necessary to maintain the proper maintenance and operation of the Property.  Any amount held in the Replacement Reserve Account and allocated for the Property shall be retained by Lender in an interest bearing account, or, at the option of Lender, in an Eligible Account at an Eligible Institution; provided, however, that, any interest accrued on the amounts on deposit in the Replacement Reserve Fund shall be disbursed to Borrower no more than once per calendar year upon the written request of Borrower. Notwithstanding anything to the contrary in this Section 7.3, Borrower shall not be required to make Replacement Reserve Monthly Deposits, provided that: (i) no Event of Default shall have occurred; and (ii) Borrower makes all necessary Replacements and otherwise maintains the Property to Lender’s satisfaction. Upon notice from Lender following: (a) an Event of Default; or (b) the failure of Borrower to make necessary Replacements or otherwise maintain the Property to Lender’s satisfaction, Borrower shall begin to deposit the Replacement Reserve Monthly Deposit into the Replacement Reserve Fund beginning on the Payment Date (as defined herein) immediately following the date of such notice.

7.3.2Disbursements from Replacement Reserve Account.

(a)Lender shall make disbursements from the Replacement Reserve Account to pay Borrower only for the costs of the Replacements.  Lender shall not be obligated to make disbursements from the Replacement Reserve Account to reimburse Borrower for the costs of routine maintenance to the Property or for costs which are to be reimbursed from the Required Repair Fund (if any).

(b)Lender shall, upon written request from Borrower and satisfaction of the requirements set forth in this Section 7.3.2, disburse to Borrower amounts from the Replacement Reserve Account necessary to pay for the actual approved costs of Replacements or to reimburse

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Borrower therefor, upon completion of such Replacements (or, upon partial completion in the case of Replacements made pursuant to Section 7.3.2(f)) as determined by Lender.  In no event shall Lender be obligated to disburse funds from the Replacement Reserve Account if a Default or an Event of Default exists.

(c)Each request for disbursement from the Replacement Reserve Account shall be in a form specified or approved by Lender and shall specify (i) the specific Replacements for which the disbursement is requested, (ii) the quantity and price of each item purchased, if the Replacement includes the purchase or replacement of specific items, (iii) the price of all materials (grouped by type or category) used in any Replacement other than the purchase or replacement of specific items, and (iv) the cost of all contracted labor or other services applicable to each Replacement for which such request for disbursement is made. With each request Borrower shall certify that all Replacements have been made in accordance with all applicable Legal Requirements of any Governmental Authority having jurisdiction over the Property to which the Replacements are being provided and, unless Lender has agreed to issue joint checks as described below, each request shall include evidence of payment of all such amounts.  Each request for disbursement shall include copies of invoices for all items or materials purchased and all contracted labor or services provided. Except as provided in Section 7.3.2(e), each request for disbursement from the Replacement Reserve Account shall be made only after completion of the Replacement for which disbursement is requested.  Borrower shall provide Lender evidence of completion satisfactory to Lender in its reasonable judgment.

(d)Borrower shall pay all invoices in connection with the Replacements with respect to which a disbursement is requested prior to submitting such request for disbursement from the Replacement Reserve Account or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with a Replacement.  In the case of payments made by joint check, Lender may require a waiver of lien from each Person receiving payment prior to Lender’s disbursement from the Replacement Reserve Account. In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $100,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to the requirements of applicable law and shall cover all work performed and materials supplied (including equipment and fixtures) for the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current reimbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request).

(e)If (i) the cost of a Replacement exceeds $100,000, (ii) the contractor performing such Replacement requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for reimbursement from the Replacement Reserve Account may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of the work, (B) the materials for which the request is made are on site at the Property and are properly secured or have been installed in the Property, (C) all other conditions in this Agreement for disbursement have been satisfied, (D) funds remaining in the

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Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required, and (E) if required by Lender, each contractor or subcontractor receiving payments under such contract shall provide a waiver of lien with respect to amounts which have been paid to that contractor or subcontractor.

(f)Borrower shall not make a request for disbursement from the Replacement Reserve Account more frequently than once in any calendar month and (except in connection with the final disbursement) the total cost of all Replacements in any request shall not be less than $5,000.00.

7.3.3Performance of Replacements.

(a)Borrower shall make Replacements when required in order to keep the Property in condition and repair consistent with other first class, full service retail properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.

(b)Lender reserves the right, at its option, to approve all contracts or work orders with materialmen, mechanics, suppliers, subcontractors, contractors or other parties providing labor or materials under contracts for an amount in excess of $100,000 in connection with the Replacements. Upon Lender’s request, Borrower shall assign any contract or subcontract to Lender.

(c)In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner, and such failure continues to exist for more than thirty (30) days after notice from Lender to Borrower, Lender shall have the option to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.

(d)In order to facilitate Lender’s completion or making of the Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right to enter onto the Property and perform any and all work and labor necessary to complete or make the Replacements and/or employ watchmen to protect the Property from damage. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution to complete or undertake the Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked but shall only be effective following an Event of Default. Borrower empowers said attorney-in-fact as follows:  (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing the Replacements; (ii) to make such additions, changes and corrections to the Replacements as shall

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be necessary or desirable to complete the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.

(e)Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.

(f)Borrower shall permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of tenants under their Leases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.

(g)Lender may require an inspection of the Property at Borrower’s expense prior to making a monthly disbursement in excess of $10,000 from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.

(h)The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialman’s or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).

(i)Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the Property effective to the date of the disbursement, which search shows that no mechanic’s or materialmen’s liens or other liens of any nature have been placed against the Property since the date of recordation of the

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Mortgage and that title to the Property is free and clear of all Liens (other than the lien of the Mortgage and any other Liens previously approved in writing by Lender, if any).

(j)All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.

(k)In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s compensation insurance, builder’s risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.

7.3.4Failure to Make Replacements.

(a)It shall be an Event of Default under this Agreement if Borrower fails to comply with any provision of this Section 7.3 and such failure is not cured within thirty (30) days after notice from Lender; provided, however, if such failure is not capable of being cured within said thirty (30) day period, then provided that Borrower commences action to complete such cure and thereafter diligently proceeds to complete such cure, such thirty (30) day period shall be extended for such time as is reasonably necessary for Borrower, in the exercise of due diligence, to cure such failure, but such additional period of time shall not exceed sixty (60) days. Upon the occurrence of such an Event of Default, Lender may use the Replacement Reserve Fund (or any portion thereof) for any purpose, including but not limited to completion of the Replacements as provided in Section 7.3.3, or for any other repair or replacement to the Property or toward payment of the Debt in such order, proportion and priority as Lender may determine in its sole discretion. Lender’s right to withdraw and apply the Replacement Reserve Funds shall be in addition to all other rights and remedies provided to Lender under this Agreement and the other Loan Documents.

(b)Nothing in this Agreement shall obligate Lender to apply all or any portion of the Replacement Reserve Fund on account of an Event of Default to payment of the Debt or in any specific order or priority.

7.3.5Balance in the Replacement Reserve Account. The insufficiency of any balance in the Replacement Reserve Account shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.

7.3.6Indemnification.BORROWER SHALL INDEMNIFY LENDER AND HOLD LENDER HARMLESS FROM AND AGAINST ANY AND ALL ACTIONS, SUITS, CLAIMS, DEMANDS, LIABILITIES, LOSSES, DAMAGES, OBLIGATIONS AND COSTS AND EXPENSES (INCLUDING LITIGATION COSTS AND REASONABLE ATTORNEYS FEES AND EXPENSES) ARISING FROM OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OF THE REPLACEMENTS

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UNLESS THE SAME ARE SOLELY DUE TO GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LENDER. BORROWER SHALL ASSIGN TO LENDER ALL RIGHTS AND CLAIMS BORROWER MAY HAVE AGAINST ALL PERSONS OR ENTITIES SUPPLYING LABOR OR MATERIALS IN CONNECTION WITH THE REPLACEMENTS; PROVIDED, HOWEVER, THAT LENDER MAY NOT PURSUE ANY SUCH RIGHT OR CLAIM UNLESS AN EVENT OF DEFAULT HAS OCCURRED AND REMAINS UNCURED.

Section 7.4Intentionally Deleted.

Section 7.5Intentionally Deleted.

Section 7.6Intentionally Deleted.

Section 7.7Reserve Funds, Generally.

7.7.1Borrower grants to Lender a first-priority perfected security interest in each of the Reserve Funds and any and all monies now or hereafter deposited in each Reserve Fund as additional security for payment of the Debt. Until expended or applied in accordance herewith, the Reserve Funds shall constitute additional security for the Debt.

7.7.2Upon the occurrence of an Event of Default, Lender may, in addition to any and all other rights and remedies available to Lender, apply any sums then present in any or all of the Reserve Funds to the payment of the Debt in any order in its sole discretion.

7.7.3The Reserve Funds shall not constitute trust funds and may be commingled with other monies held by Lender.

7.7.4The Reserve Funds shall be held in interest bearing accounts. All earnings or interest on the Reserve Funds shall be added to and become a part of such Tax and Insurance Escrow Fund and shall be disbursed in the same manner as other monies deposited in such Reserve Funds.

7.7.5Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any Reserve Fund or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.

7.7.6Lender shall not be liable for any loss sustained on the investment of any funds constituting the Reserve Funds unless occasioned by the gross negligence or willful misconduct of Lender.

7.7.7Upon payment in full of the Debt and performance of all other obligations under this Agreement and the other Loan Documents, Lender shall disburse to Borrower all remaining Reserve Funds.

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ARTICLE VIII

DEFAULTS

Section 8.1Event of Default.

(a)Each of the following events shall constitute an event of default hereunder (an “Event of Default”):

(i)if any portion of the Debt is not paid within five (5) days of the applicable due date;

(ii)if any of the Taxes or Other Charges are not paid prior to the date when the same become delinquent, except to the extent that there are sufficient funds in the Tax and Insurance Escrow Fund to pay such Taxes or Other Charges and Lender fails to or refuses to release the same from the Tax and Insurance Escrow Fund;

(iii)if the Policies are not kept in full force and effect, or if certified copies of the Policies are not delivered to Lender within the time frame provided herein;

(iv)if Borrower transfers or encumbers any portion of the Property without Lender’s prior written consent (to extent such consent is required) or otherwise violates the provisions of Section 5.2.13 of this Loan Agreement;

(v)if any material representation or warranty made by Borrower herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document furnished to Lender shall have been false or misleading in any material respect as of the date the representation or warranty was made;

(vi)if Borrower or indemnitor or any guarantor under any guaranty or indemnity issued in connection with the Loan shall make an assignment for the benefit of creditors;

(vii)if a receiver, liquidator or trustee shall be appointed for Borrower or any guarantor or indemnitor under any guarantee or indemnity issued in connection with the Loan or if Borrower or such guarantor or indemnitor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower or such guarantor or indemnitor, or if any proceeding for the dissolution or liquidation of Borrower or such guarantor or indemnitor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by Borrower or such guarantor or indemnitor, upon the same not being discharged, stayed or dismissed within one hundred eighty (180) days;

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(viii)if Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;

(ix)if Borrower breaches any of its respective negative covenants contained in Section 5.2 or any covenant contained in Section 4.1.30 hereof;

(x)with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if Borrower shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;

(xi)if any Purchase Price Adjustment is not timely paid in accordance with the Purchase Contract following satisfaction of Borrower’s reasonable documentation requirements of its seller under the Purchase Contract;

(xii)if Borrower shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement not specified in subsections (i) to (xi) above, for ten (10) days after notice to Borrower from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such 30-day period and provided further that Borrower shall have commenced to cure such Default within such 30-day period and thereafter diligently and expeditiously proceeds to cure the same, such 30-day period shall be extended for such time as is reasonably necessary for Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed one hundred eighty (180) days; or

(xiii)if there shall be default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to Borrower or the Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt.

(b)Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi), (vii) or (viii) above) and at any time thereafter Lender may, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in the Property, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents against Borrower and the Property, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi), (vii) or (viii) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.

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Section 8.2Remedies.

(a)Upon the occurrence of an Event of Default, all or any one or more of the rights, powers, privileges and other remedies available to Lender against Borrower under this Agreement or any of the other Loan Documents executed and delivered by, or applicable to, Borrower or at law or in equity may be exercised by Lender at any time and from time to time, whether or not all or any of the Debt shall be declared due and payable, and whether or not Lender shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Loan Documents with respect to the Property. Any such actions taken by Lender shall be cumulative and concurrent and may be pursued independently, singly, successively, together or otherwise, at such time and in such order as Lender may determine in its sole discretion, to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of Lender permitted by law, equity or contract or as set forth herein or in the other Loan Documents. Without limiting the generality of the foregoing, Borrower agrees that if an Event of Default is continuing (i) Lender is not subject to any “one action” or “election of remedies” law or rule, and (ii) all liens and other rights, remedies or privileges provided to Lender shall remain in full force and effect until Lender has exhausted all of its remedies against the Property and the Mortgage has been foreclosed, sold and/or otherwise realized upon in satisfaction of the Debt or the Debt has been paid in full. Without limiting the generality of the foregoing, it is expressly agreed that upon any Event of Default described in clause (xi) above, in addition to all other remedies available to Lender, Lender shall have the right to enforce Indemnitor’s guaranty of the payment of the Purchase Price Adjustment, as set forth in the Indemnity Agreement, without first resorting to or exhausting any security or collateral or without first having recourse to any Loan Document or any of the Property through foreclosure proceedings or otherwise.

(b)Lender shall have the right from time to time to partially foreclose the Mortgage in any manner and for any amounts secured by the Mortgage then due and payable as determined by Lender in its sole discretion including, without limitation, the following circumstances: (i) in the event Borrower defaults beyond any applicable grace period in the payment of one or more scheduled payments of principal and interest, Lender may foreclose the Mortgage to recover such delinquent payments, or (ii) in the event Lender elects to accelerate less than the entire outstanding principal balance of the Loan, Lender may foreclose the Mortgage to recover so much of the principal balance of the Loan as Lender may accelerate and such other sums secured by the Mortgage as Lender may elect. Notwithstanding one or more partial foreclosures, the Property shall remain subject to the Mortgage to secure payment of sums secured by the Mortgage and not previously recovered.

(c)Lender shall have the right from time to time to sever the Note and the other Loan Documents into one or more separate notes, mortgages and other security documents (the “Severed Loan Documents”)in such denominations as Lender shall determine in its sole discretion for purposes of evidencing and enforcing its rights and remedies provided hereunder. Borrower shall execute and deliver to Lender from time to time, promptly after the request of Lender, a severance agreement and such other documents as Lender shall request in order to effect the severance described in the preceding sentence, all in form and substance reasonably satisfactory to Lender. Borrower hereby absolutely and irrevocably appoints Lender following the occurrence of an Event of Default as its true and lawful attorney, coupled with an interest, in

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its name and stead to make and execute all documents necessary or desirable to effect the aforesaid severance, Borrower ratifying all that its said attorney shall do by virtue thereof; provided, however, Lender shall not make or execute any such documents under such power until three (3) days after notice has been given to Borrower by Lender of Lender’s intent to exercise its rights under such power. Borrower shall not be obligated to pay any costs or expenses incurred in connection with the preparation, execution, recording or filing of the Severed Loan Documents, and the Severed Loan Documents shall not contain any representations, warranties or covenants not contained in the Loan Documents and any such representations and warranties contained in the Severed Loan Documents will be given by Borrower only as of the Closing Date.

(d)As used in this Section 8.2, a “foreclosure” shall include any sale by power of sale.

Section 8.3Remedies Cumulative; Waivers. The rights, powers and remedies of Lender under this Agreement shall be cumulative and not exclusive of any other right, power or remedy which Lender may have against Borrower pursuant to this Agreement or the other Loan Documents, or existing at law or in equity or otherwise. Lender’s rights, powers and remedies may be pursued singly, concurrently or otherwise, at such time and in such order as Lender may determine in Lender’s sole discretion. No delay or omission to exercise any remedy, right or power accruing upon an Event of Default shall impair any such remedy, right or power or shall be construed as a waiver thereof, but any such remedy, right or power may be exercised from time to time and as often as may be deemed expedient. A waiver of one Default or Event of Default with respect to Borrower shall not be construed to be a waiver of any subsequent Default or Event of Default by Borrower or to impair any remedy, right or power consequent thereon.

ARTICLE IX

SPECIAL PROVISIONS

Section 9.1Sale of Notes and Securitization. At the request of the holder of the Note and, to the extent not already required to be provided by Borrower under this Agreement, Borrower shall cooperate with Lender to allow Lender to satisfy the market standards to which the holder of the Note customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with the sale of the Note or participations therein or the first successful securitization (such sale and/or securitization, the “Securitization”) of rated single or multi-class securities (the “Securities”) secured by or evidencing ownership interests in the Note and the Mortgage. In this regard Borrower shall:

(a)(i) provide such financial and other information with respect to the Property, Borrower and the Manager, (ii) provide budgets relating to the Property and (iii) to perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of the Property, as may be reasonably requested by the holder of the Note or the Rating Agencies or as may be necessary or appropriate in connection with the Securitization (the “Provided Information”), together, if customary, with

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appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to Lender and the Rating Agencies;

(b)cause counsel to render opinions, which may be relied upon by the holder of the Note, the Rating Agencies and their respective counsel, agents and representatives, as to non-consolidation, fraudulent conveyance, and true sale and/or lease or any other opinion customary in securitization transactions, which counsel and opinions shall be reasonably satisfactory to the holder of the Note and the Rating Agencies;

(c)make such representations and warranties as of the closing date of the Securitization with respect to the Property, Borrower, and the Loan Documents as are consistent with the representations and warranties made in the Loan Documents; and

(d)execute such amendments to the Loan Documents and organizational documents as may be reasonably requested by the holder of the Note or the Rating Agencies or otherwise to effect the Securitization; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of the Loan.

All material out-of-pocket third party costs and expenses incurred by Borrower in connection with complying with requests made under this Section 9.1 shall be paid by Lender.

Section 9.2Securitization. Borrower understands that certain of the Provided Information may be included in disclosure documents in connection with the Securitization, including, without limitation, a prospectus, prospectus supplement or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects.

Section 9.3Rating Surveillance. Lender, at its option, may retain the Rating Agencies to provide rating surveillance services on any certificates issued in a Securitization. Such rating surveillance will be at the expense of Lender (the “Rating Surveillance Charge”).

Section 9.4Exculpation. Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender or Trustee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender or Trustee to enforce and realize upon its interest under the Note, this Agreement, the Mortgage and the other Loan Documents, or in the

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Property, the Rents following an Event of Default, or any other collateral given to Lender or Trustee pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents following an Event of Default and in any other collateral given to Lender or Trustee, and Lender or Trustee, by accepting the Note, this Agreement, the Mortgage and the other Loan Documents, agrees that it shall not sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage or the other Loan Documents. The provisions of this section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender or Trustee to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Mortgage; (c) affect the validity or enforceability of or any guaranty made in connection with the Loan or any of the rights and remedies of Lender or Trustee thereunder; (d) impair the right of Lender or Trustee to obtain the appointment of a receiver; (e) impair the enforcement of any of the Assignment of Leases following an Event of Default; (f) constitute a prohibition against Lender or Trustee commencing any other appropriate action or proceeding in order for Lender or Trustee to exercise its remedies against the Property; or (g) constitute a waiver of the right of Lender or Trustee to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any loss, damage, cost, expense, liability, claim or other obligation incurred by Lender or Trustee (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following;

(i)fraud or intentional misrepresentation by Borrower or any guarantor in connection with the Loan;

(ii)the gross negligence or willful misconduct of Borrower;

(iii)material physical waste of the Property;

(iv)the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;

(v)the removal or disposal of any portion of the Property after an Event of Default;

(vi)the misapplication or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property which are not applied by Borrower in accordance with this Agreement, (B) any awards or other amounts received in connection with the condemnation of all or a portion of the Property which are not applied by Borrower in accordance with this Agreement, or (C) any Rents following an Event of Default;

(vii)failure to pay charges for labor or materials or other charges that can create liens on any portion of the Property; or

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(viii)any security deposits, advance deposits or any other deposits collected with respect to the Property which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof.

(ix)the breach of Borrower’s indemnification obligation pursuant to Section 10.13(b) hereof with respect to a Purchase Price Adjustment.

Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) the Debt shall be fully recourse to the Borrower and (B) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured by the Mortgage or to require that all collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents in the event that the (I) first full monthly payment under the Note is not paid within five (5) days of notice that such payment is late (provided, however, that such grace period relates only to the recourse trigger described in this paragraph), or (II) failure of Borrower to permit on-site inspections of the Property subject to the rights of the Major Tenants under their respective Leases and any applicable cure period set forth in the Loan Documents, to provide financial information as required under the Loan Documents subject to any applicable cure period (except for financial information required to be delivered by the Major Tenants pursuant to their respective Leases that has not been delivered to Borrower, provided Borrower has requested such financial information from the Major Tenants, or to comply with Section 4.1.30 hereof, or (III) failure of Borrower to obtain Lender’s prior written consent to any subordinate financing or other voluntary lien encumbering the Property, or (IV) failure of Borrower to obtain Lender’s prior written consent to any assignment, transfer or conveyance of the Property, or any portion thereof, or any interest therein as required by this Agreement. Notwithstanding the provision set forth in clause (III) of this paragraph, a voluntary lien other than a lien securing an extension of credit filed against the Property shall not constitute a recourse trigger for purposes of this paragraph provided such lien (A) is fully bonded to the satisfaction of Lender and discharged of record within ninety (90) days of filing, or (B) within such ninety (90) day period, Lender receives affirmative title insurance from the title insurance company insuring the lien of the Mortgage that such lien is subject and subordinate to the lien of the Mortgage and no enforcement action is commenced by the applicable lien holder.

Section 9.5Termination of Manager. If (a) the amounts evidenced by the Note have been accelerated pursuant to Section 8.1 (b) hereof, (b) the Manager shall become insolvent, (c) the Manager is in default under the terms of the Management Agreement beyond any applicable grace or cure period, or (d) Manager is not managing the Property in accordance with the management practices of nationally recognized management companies managing similar properties in locations comparable to those of the Property, then, in the case of (a), (b), (c) or (d), Borrower shall, at the request of Lender, terminate the Management Agreement and replace the Manager with a manager reasonably approved by Lender on terms and conditions reasonably satisfactory to Lender, it being understood and agreed that the management fee for such replacement manager shall not exceed then prevailing market rates. In addition and without limiting the rights of Lender hereunder or under any of the other Loan Documents, in the event

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that (i) the Management Agreement is terminated, (ii) the Manager no longer manages the Property, or (iii) a receiver, liquidator or trustee shall be appointed for Manager or if Manager shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Manager, or if any proceeding for the dissolution or liquidation of Manager shall be instituted, then Borrower (at Borrower’s sole cost and expense) shall immediately, in its name, establish new deposit accounts separate from any other Person with a depository satisfactory to Lender into which all Rents and other income from the Property shall be deposited and shall grant Lender a first priority security interest in such account pursuant to documentation satisfactory in form and substance to Lender.

Section 9.6Servicer. At the option of Lender, the Loan may be serviced by a servicer/trustee (the “Servicer”) selected by Lender and Lender may delegate all or any portion of its responsibilities under this Agreement and the other Loan Documents to the Servicer pursuant to a servicing agreement (the “Servicing Agreement”) between Lender and Servicer. Lender shall be responsible for any set-up fees or any other costs relating to or arising under the Servicing Agreement.

Section 9.7Splitting the Loan. At the election of Lender in its sole discretion, the Loan shall be split and severed into two or more loans which shall not be cross-collateralized or cross-defaulted with each other. Borrower hereby agrees to deliver to Lender to effectuate such severing of the Loan as reasonably requested by Lender, (a) additional executed documents, or amendments and modifications to the Loan Documents, (b) new opinions or updates to the opinions delivered to Lender in connection with the closing of the Loan, (c) endorsements and/or updates to the title insurance policies delivered to Lender in connection with the closing of the Loan, and (d) any other certificates, instruments and documentation reasonably determined by Lender as necessary or appropriate to such severance (the items described in subsections (a) through (d) collectively hereinafter shall be referred to as “Severing Documentation”), which Severing Documentation shall be acceptable to Lender in form and substance in its reasonable discretion. Lender hereby agrees to be responsible for all reasonable third-party expenses incurred in connection with the preparation and delivery of the Severing Documentation and the effectuation of the uncrossing of the Loan from the additional Loans. Borrower hereby acknowledges and agrees that upon such severing of the Loan, Lender may effect, in its sole discretion, one or more Securitizations of which the severed loans may be a part.

ARTICLE X

MISCELLANEOUS

Section 10.1Survival. This Agreement and all covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the making by Lender of the Loan and the execution and delivery to Lender of the Note, and shall continue in full force and effect so long as all or any of the Debt is outstanding and unpaid unless a longer period is expressly set forth herein or in the other Loan Documents. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the legal representatives, successors and assigns of such party. All covenants,

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promises and agreements in this Agreement, by or on behalf of Borrower, shall inure to the benefit of the legal representatives, successors and assigns of Lender.

Section 10.2Lender’s Discretion. Whenever pursuant to this Agreement, Lender exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Lender, the decision of Lender to approve or disapprove or to decide whether arrangements or terms are satisfactory or not satisfactory shall (except as is otherwise specifically herein provided) be in the sole discretion of Lender and shall be final and conclusive.

Section 10.3Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT ENTERED INTO PURSUANT TO THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND SHALL IN ALL RESPECTS BE GOVERNED, CONSTRUED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND APPLICABLE FEDERAL LAWS.

Section 10.4Modification, Waiver in Writing. No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement, or of the Note, or of any other Loan Document, nor consent to any departure by Borrower therefrom, shall in any event be effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given. Except as otherwise expressly provided herein, no notice to, or demand on Borrower, shall entitle Borrower to any other or future notice or demand in the same, similar or other circumstances.

Section 10.5Delay Not a Waiver. Neither any failure nor any delay on the part of Lender in insisting upon strict performance of any term, condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under the Note or under any other Loan Document, or any other instrument given as security therefor, shall operate as or constitute a waiver thereof, nor shall a single or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege. In particular, and not by way of limitation, by accepting payment after the due date of any amount payable under this Agreement, the Note or any other Loan Document, Lender shall not be deemed to have waived any right either to require prompt payment when due of all other amounts due under this Agreement, the Note or the other Loan Documents, or to declare a default for failure to effect prompt payment of any such other amount.

Section 10.6Notices. All notices, consents, approvals and requests required or permitted hereunder or under any other Loan Document except as otherwise provided in Section 1.01 of the Rider to the Mortgage, shall be given in writing and shall be effective for all purposes if hand delivered or sent by (a) certified or registered United States mail, postage prepaid, return receipt requested or (b) expedited prepaid delivery service, either commercial or United States Postal Service, with proof of attempted delivery, and by telecopier (with answer back acknowledged), addressed as follows (or at such other address and Person as shall be designated from time to time by any party hereto, as the case may be, in a written notice to the other parties hereto in the manner provided for in this Section):

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If to Lender:

KeyBank National Association

911 Main Street, Suite 1500

Kansas City, Missouri 64105

Attention: Loan Servicing

If to Trustee:

Kenneth F. Plifka

Stutzman, Bromberg, Esserman & Plifka

2323 Bryan Street, 22nd Floor

Dallas, Texas 75201

If to Borrower:

Inland Western Cedar Hill Pleasant Run Limited Partnership

c/o Inland Western Retail Real Estate Trust, Inc.

2901 Butterfield Road

Oak Brook, IL 60523

Attention: Roberta Matlin

With a copy to:

Inland Western Retail Real Estate Trust, Inc.

2901 Butterfield Road

Oak Brook, IL 60523

Attention: Robert H. Baum, Esq.

A notice shall be deemed to have been given: in the case of hand delivery, at the time of delivery; in the case of registered or certified mail, when delivered or the first attempted delivery on a Business Day; or in the case of expedited prepaid delivery and telecopy, upon the first attempted delivery on a Business Day.

Section 10.7Trial by Jury. BORROWER AND LENDER HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER AND LENDER.

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Section 10.8Headings. The Article and/or Section headings and the Table of Contents in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

Section 10.9Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Section 10.10Preferences. Lender shall have the continuing and exclusive right to apply or reverse and reapply any and all payments by Borrower to any portion of the obligations of Borrower hereunder. To the extent Borrower makes a payment or payments to Lender, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or proceeds received, the obligations hereunder or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by Lender.

Section 10.11Waiver of Notice. Borrower shall not be entitled to any notices of any nature whatsoever from Lender except with respect to matters for which this Agreement or the other Loan Documents specifically and expressly provide for the giving of notice by Lender to Borrower and except with respect to matters for which Borrower is not, pursuant to applicable Legal Requirements, permitted to waive the giving of notice. Borrower hereby expressly waives the right to receive any notice from Lender with respect to any matter for which this Agreement or the other Loan Documents do not specifically and expressly provide for the giving of notice by Lender to Borrower.

Section 10.12Remedies of Borrower. In the event that a claim or adjudication is made that Lender or its agents have acted unreasonably or unreasonably delayed acting in any case where by law or under this Agreement or the other Loan Documents, Lender or such agent, as the case may be, has an obligation to act reasonably or promptly, Borrower agrees that neither Lender nor its agents shall be liable for any monetary damages, and Borrower’s sole remedies shall be limited to commencing an action seeking injunctive relief or declaratory judgment. The parties hereto agree that any action or proceeding to determine whether Lender has acted reasonably shall be determined by an action seeking declaratory judgment.

Section 10.13Expenses; Indemnity.

(a)Borrower covenants and agrees to pay or, if Borrower fails to pay, to reimburse, Lender upon receipt of written notice from Lender for all reasonable costs and expenses (including reasonable attorneys’ fees and disbursements) incurred by Lender in connection with (i) the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby and thereby and all the costs of furnishing all opinions by counsel for Borrower (including without limitation any opinions requested by Lender as to any legal matters arising under this Agreement

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or the other Loan Documents with respect to the Property); (ii) Borrower’s ongoing performance of and compliance with Borrower’s respective agreements and covenants contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date, including, without limitation, confirming compliance with environmental and insurance requirements; (iii) Lender’s ongoing performance and compliance with all agreements and conditions contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date; (iv) except as otherwise provided in this Agreement, the negotiation, preparation, execution, delivery and administration of any consents, amendments, waivers or other modifications to this Agreement and the other Loan Documents and any other documents or matters reasonably requested by Lender; (v) securing Borrower’s compliance with any requests made pursuant to the provisions of this Agreement; (vi) the filing and recording fees and expenses, title insurance and reasonable fees and expenses of counsel for providing to Lender all required legal opinions, and other similar expenses incurred in creating and perfecting the Liens in favor of Lender pursuant to this Agreement and the other Loan Documents; (vii) enforcing or preserving any rights, in response to third party claims or the prosecuting or defending of any action or proceeding or other litigation, in each case against, under or affecting Borrower, this Agreement, the other Loan Documents, the Property, or any other security given for the Loan; and (viii) enforcing any obligations of or collecting any payments due from Borrower under this Agreement, the other Loan Documents or with respect to the Property or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or of any insolvency or bankruptcy proceedings; provided, however, that Borrower shall not be liable for the payment of any such costs and expenses to the extent the same arise by reason of the gross negligence, illegal acts, fraud or willful misconduct of Lender.

(b)BORROWER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS LENDER FROM AND AGAINST ANY AND ALL OTHER LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, CLAIMS, COSTS, EXPENSES AND DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL FOR LENDER IN CONNECTION WITH ANY INVESTIGATIVE, ADMINISTRATIVE OR JUDICIAL PROCEEDING COMMENCED OR THREATENED, WHETHER OR NOT LENDER SHALL BE DESIGNATED A PARTY THERETO), THAT MAY BE IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST LENDER IN ANY MANNER RELATING TO OR ARISING OUT OF (I) ANY BREACH BY BORROWER OF ITS OBLIGATIONS UNDER, OR ANY MATERIAL MISREPRESENTATION BY BORROWER CONTAINED IN, THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, (II) THE USE OR INTENDED USE OF THE PROCEEDS OF THE LOAN OR (III) ANY PURCHASE PRICE ADJUSTMENT (COLLECTIVELY, THE “INDEMNIFIED LIABILITIES”); PROVIDED, HOWEVER, THAT BORROWER SHALL NOT HAVE ANY OBLIGATION TO LENDER HEREUNDER TO THE EXTENT THAT SUCH INDEMNIFIED LIABILITIES ARISE FROM THE GROSS NEGLIGENCE, ILLEGAL ACTS, FRAUD OR WILLFUL MISCONDUCT OF LENDER. TO THE EXTENT THAT THE UNDERTAKING TO INDEMNIFY, DEFEND AND HOLD HARMLESS SET FORTH IN THE PRECEDING SENTENCE MAY BE UNENFORCEABLE BECAUSE IT VIOLATES ANY LAW OR PUBLIC POLICY, BORROWER SHALL PAY THE MAXIMUM PORTION THAT IT IS

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PERMITTED TO PAY AND SATISFY UNDER APPLICABLE LAW TO THE PAYMENT AND SATISFACTION OF ALL INDEMNIFIED LIABILITIES INCURRED BY LENDER.

Section 10.14Schedules Incorporated. The Schedules annexed hereto are hereby incorporated herein as a part of this Agreement with the same effect as if set forth in the body hereof.

Section 10.15Offsets, Counterclaims and Defenses. Any assignee of Lender’s interest in and to this Agreement, the Note and the other Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses which are unrelated to such documents which Borrower may otherwise have against any assignor of such documents, and no such unrelated counterclaim or defense shall be interposed or asserted by Borrower in any action or proceeding brought by any such assignee upon such documents and any such right to interpose or assert any such unrelated offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by Borrower.

Section 10.16No Joint Venture or Partnership; No Third Party Beneficiaries.

(a)Borrower and Lender intend that the relationships created hereunder and under the other Loan Documents be solely that of borrower and lender. Nothing herein or therein is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower and Lender nor to grant Lender any interest in the Property other than that of mortgagee, beneficiary or lender.

(b)This Agreement and the other Loan Documents are solely for the benefit of Lender and Borrower and nothing contained in this Agreement or the other Loan Documents shall be deemed to confer upon anyone other than Lender and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or therein. All conditions to the obligations of Lender to make the Loan hereunder are imposed solely and exclusively for the benefit of Lender and no other Person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lender will refuse to make the Loan in the absence of strict compliance with any or all thereof and no other Person shall under any circumstances be deemed to be a beneficiary of such conditions, any or all of which may be freely waived in whole or in part by Lender if, in Lender’s sole discretion, Lender deems it advisable or desirable to do so.

Section 10.17Publicity. All news releases, publicity or advertising by Borrower or their Affiliates through any media intended to reach the general public which refers to the Loan Documents or the financing evidenced by the Loan Documents, to Lender, or any of its Affiliates shall be subject to the prior written approval of Lender. All news releases, publicity or advertising by Lender through any media intended to reach the general public which refers solely to the Borrower or to the Loan made by the Lender to the Borrower shall be subject to the prior written approval of Borrower, provided however, the foregoing shall not apply to Provided Information included in disclosure documents in connection with a Securitization.

76

Section 10.18Waiver of Marshalling of Assets. To the fullest extent permitted by law, Borrower, for itself and its successors and assigns, waives all rights to a marshalling of the assets of Borrower, Borrower’s partners and others with interests in Borrower, and of the Property, or to a sale in inverse order of alienation in the event of foreclosure of the Mortgage or sale of the Property by power of sale, and agrees not to assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce or affect the right of Lender under the Loan Documents to a sale of the Property for the collection of the Debt without any prior or different resort for collection or of the right of Lender to the payment of the Debt out of the net proceeds of the Property in preference to every other claimant whatsoever.

Section 10.19Waiver of Counterclaim. Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Lender or its agents.

Section 10.20Conflict; Construction of Documents; Reliance. In the event of any conflict between the provisions of this Loan Agreement and any of the other Loan Documents, the provisions of this Loan Agreement shall control. The parties hereto acknowledge that they were represented by competent counsel in connection with the negotiation, drafting and execution of the Loan Documents and that such Loan Documents shall not be subject to the principle of construing their meaning against the party which drafted same. Borrower acknowledges that, with respect to the Loan, Borrower shall rely solely on its own judgment and advisors in entering into the Loan without relying in any manner on any statements, representations or recommendations of Lender or any parent, subsidiary or Affiliate of Lender. Lender shall not be subject to any limitation whatsoever in the exercise of any rights or remedies available to it under any of the Loan Documents or any other agreements or instruments which govern the Loan by virtue of the ownership by it or any parent, subsidiary or Affiliate of Lender of any equity interest any of them may acquire in Borrower, and Borrower hereby irrevocably waives the right to raise any defense or take any action on the basis of the foregoing with respect to Lender’s exercise of any such rights or remedies. Borrower acknowledges that Lender engages in the business of real estate financings and other real estate transactions and investments which may be viewed as adverse to or competitive with the business of Borrower or its Affiliates.

Section 10.21Brokers and Financial Advisors. BORROWER HEREBY REPRESENTS THAT IT HAS DEALT WITH NO FINANCIAL ADVISORS, BROKERS, UNDERWRITERS, PLACEMENT AGENTS, AGENTS OR FINDERS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OTHER THAN INLAND MORTGAGE CORP. BORROWER HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD LENDER HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, COSTS AND EXPENSES OF ANY KIND (INCLUDING LENDER’S REASONABLE ATTORNEYS’ FEES AND EXPENSES) IN ANY WAY RELATING TO OR ARISING FROM A CLAIM BY ANY PERSON THAT SUCH PERSON ACTED ON BEHALF OF BORROWER OR LENDER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREIN. THE

77

PROVISIONS OF THIS SECTION 10.21 SHALL SURVIVE THE EXPIRATION AND TERMINATION OF THIS AGREEMENT AND THE PAYMENT OF THE DEBT.

Section 10.22Prior Agreements. This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and all prior agreements or understandings among or between such parties, whether oral or written, including, without limitation, the Commitment Letter dated November 23, 2004 between Borrower and Lender are superseded by the terms of this Agreement and the other Loan Documents and unless specifically set forth in a writing contemporaneous herewith the terms, conditions and provisions of such prior agreement do not survive execution of this Agreement.

Section 10.23Transfer of Loan. In the event that Lender transfers the Loan, Borrower shall continue to make payments at the place set forth in the Note until such time that Borrower is notified in writing by Lender that payments are to be made at another place.

[THE BALANCE OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]

78

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written.

BORROWER:
INLAND WESTERN CEDAR HILL
PLEASANT RUN LIMITED PARTNERSHIP,
an Illinois limited partnership
By:	Inland Western Cedar Hill Pleasant Run GP,
	L.L.C., a Delaware limited liability
	company, its general partner
	By:	Inland Western Retail Real Estate
		Trust, Inc., a Maryland corporation,
		its sole member
		By:	/s/ Debra A. Palmer
			Name:   Debra A. Palmer
			Title:   Assistant Secretary
KEYBANK NATIONAL ASSOCIATION, a
national banking association
By:
Name:
Title:

ACKNOWLEDGMENT

STATE OF ILLINOIS

COUNTY OF Du PAGE

On this 29 day of DECEMBER, 2004, before me, DORIS E. AHERN a Notary Public in and for said state, personally appeared DEBRA A. PALMER who being by me duly sworn did say that she is the Assistant Secretary of Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, the sole member of Inland Western Cedar Hill Pleasant Run GP, L.L.C., a Delaware limited liability company, the general partner of Inland Western Cedar Hill Pleasant Run Limited Partnership, an Illinois limited partnership, and that the within instrument was signed and sealed in behalf of said entities.

[Notarial Seal]	/s/ Doris E. Ahern
	Print Name:	DORIS E. AHERN

My commission expires: 10/13/08

OFFICIAL SEAL

DORIS E AHERN

NOTARY PUBLIC STATE OF ILLINOIS

MY COMMISSION EXPIRES 10/13/08

SCHEDULE I

Intentionally Omitted

SCH. X-1

SCHEDULE II

RENT ROLL

(next page)

SCH. X-2

Pleasant Run Towne Crossing - Cedar Hill, TX

TENANTS	S.F.	ANNUAL BASE RENT	MONTHLY	RENT		LEASE COMMENCEMENT DATE	LEASE EXPIRATION DATE
Oshman’s	40,954	409,540.00	34,128.33	$	10.00	May-04	April-14
Circuit City	32,570	455,880.00	37,088.33	$	14.00	November-03	January-18
Bed Bath & Beyond	22,000	220,000.00	18,333.00	$	10.00	December-03	January-14
Michaels	21,390	224,595.00	18,716.25	$	10.50	November-03	November-13
Saltgrass Steakhouse	8,500	84,989.06	7,053.33	$	10.00	June-04	May-24
Joe's Crab Shack	7,000	75,000.12	8,250.01	$	10.71	June-04	May-24
The Maytag Store	5,225	94,050.00	7,837.50	$	10.00	April-04	April-09
Panera Bread	4,999	119,976.00	8,888.00	$	24.00
JPMorgan Chase Bank	4,700	84,999.50	7,083.28	$	18.08	February-04	February-24
Bombay	4,500	81,000.00	6,750.00	$	18.00	November-03	November-13
Half Price Books	10,708	121,295.00	10,108.00	$	12.00	February-04	January-14
Brook Mays	6,250	112,600.00	9,375.00	$	18.00
Mattress Firm	6,000	132,000.00	11,000.00	$	22.00
Vitamin Shop	5,000	135,000.00	11,250.00	$	27.00
Limited Too	4,500	51,000.00	6,750.00	$	18.00
Sleep Experts	4,500	99,000.00	8,250.00	$	22.00
Little Gym	4,000	72,000.00	8,000.00	$	18.00
Carpet Mills	3,000	54,000.00	4,800.00	$	18.00
Zales	3,000	66,000.00	5,500.00	$	22.00
Ritz Camera	2,400	55,200.00	4,600.00	$	23.00
ASAP Mail	2,000	40,000.00	3,323.33	$	20.00
Mothers Work	1,805	36,100.00	3,008.33	$	20.00	April-04	March-14
H&R Block	1,500	25,500.00	2,125.00	$	17.00
Luxury Nails	1,200	25,200.00	2,100.00	$	21.00
Vacant	7,807	168,140.00	13,178.33	$	20.00
Vacant	4,050	72,000.00	8,075.00	$	18.00
Vacant	2,500	55,000.00	4,583.33	$	22.00
Vacant	1,547	27,848.00	2,320.50	$	18.00
Vacant	1,240	24,800.00	2,088.67	$	20.00
Vacant	1,200	24,000.00	2,000.00	$	20.00
Totals	225,545	3,267,622.58

SCHEDULE III

REQUIRED REPAIRS

[NONE]

SCH. X-3

SCHEDULE IV

Intentionally Omitted

SCH. X-4

SCHEDULE V

Intentionally Omitted

SCH. X-5

SCHEDULE VI

AFFILIATE AGREEMENTS

Management Agreement

Management Agreement with Inland Southwest Management LLC

SCH. X-6

SCHEDULE VII

Intentionally Omitted

SCH. X-7

SCHEDULE VIII

Intentionally Omitted

SCH. X-8

SCHEDULE IX

Intentionally Omitted

SCH. X-9

EX-10.497

Exhibit 10.497

ASSIGNMENT AND ASSUMPTION

OF PURCHASE AND SALE AGREEMENT

This ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT (this “Assignment”) is made and entered into this         day of December, 2004 by Inland Real Estate Acquisitions, Inc., an Illinois Corporation, (“Assignor”), and Inland Western Evans, L.L.C., a Delaware limited liability company, (“Assignee”).

RECITALS

A.Eastern Retail Holdings Limited Partnership (“Seller”) and Assignor have previously entered into that certain Purchase and Sale Agreement dated as of October 5, 2004 (the “Purchase Agreement”), relating to the sale, inter alia, of a certain shopping center commonly known as Evans Towne Center located in the City of Evans, Georgia (the “Property”).

B.Assignor desires to assign its interest in and to the Purchase Agreement to Assignee upon the terms and conditions contained herein.

NOW, THEREFORE, in consideration of the receipt of Ten and 00/100 Dollars ($10.00) and other good and valuable consideration in hand paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged by Assignor, the parties hereby agree as follows:

1.Recitals. The foregoing recitals are, by this reference, incorporated into the body of this Assignment as if the same had been set forth in the body hereof in their entirety.

2.Assignment and Assumption. Assignor hereby assigns, conveys, transfers, and sets over to Assignee all of Assignor’s right, title, and interest in and to the Purchase Agreement, with respect to the acquisition of the Property. Assignee hereby accepts the foregoing Assignment and assumes, and agrees to perform, all duties, obligations, liabilities, indemnities, covenants, and agreements of Assignor set forth in the Purchase Agreement, with respect to and pertaining to the Property.

3Counterparts. This document may be executed in any number of counterparts, each of which may be executed by any one or more of the parties hereto, but all of which must constitute one instrument and shall be binding and effective when all parties hereto have executed at least one counterpart.

4.Successors. This Assignment shall be binding upon and for the benefit of the parties hereto and their respective Successors and Assigns.

IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to be executed as of the day and year first written above.

ASSIGNOR:
INLAND REAL ESTATE ACQUISITIONS, INC.,
An Illinois Corporation
By:	/s/ G. Joseph Cosenza
Name:		G. Joseph Cosenza
Title:		President
ASSIGNEE:
INLAND WESTERN EVANS, L.L.C., a Delaware
limited liability company
By:			Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
			By:	/s/ Valerie Medina
			Name:	Valerie Medina
			Title:	Asst. Secretary

2

EX-10.498

Exhibit 10.498

ASSIGNMENT AND ASSUMPTION

OF PURCHASE AND SALE AGREEMENT

This ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT (this “Assignment”) is made and entered into this       day of December, 2004 by Inland Real Estate Acquisitions, Inc., an Illinois Corporation, (“Assignor”), and Inland Western Irmo Station, L.L.C., a Delaware limited liability company, (“Assignee”).

RECITALS

A.            Eastern Retail Holdings Limited Partnership  (“Seller”)  and Assignor have previously entered into that certain Purchase and Sale Agreement dated as of October 5, 2004 (the “Purchase Agreement”), relating to the sale, inter alia, of a certain shopping center commonly known as Irmo Station located in the City of Irmo, South Carolina (the “Property”).

B.             Assignor desires to assign its interest in and to the Purchase Agreement to Assignee upon the terms and conditions contained herein.

NOW, THEREFORE, in consideration of the receipt of Ten and 00/100 Dollars ($10.00) and other good and valuable consideration in hand paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged by Assignor, the parties hereby agree as follows:

1.Recitals. The foregoing recitals are, by this reference, incorporated into the body of this Assignment as if the same had been set forth in the body hereof in their entirety.

2.Assignment and Assumption. Assignor hereby assigns, conveys, transfers, and sets over to Assignee all of Assignor’s right, title, and interest in and to the Purchase Agreement, with respect to the acquisition of the Property. Assignee hereby accepts the foregoing Assignment and assumes, and agrees to perform, all duties, obligations, liabilities, indemnities, covenants, and agreements of Assignor set forth in the Purchase Agreement, with respect to and pertaining to the Property.

3.Counterparts. This document may be executed in any number of counterparts, each of which may be executed by any one or more of the parties hereto, but all of which must constitute one instrument and shall be binding and effective when all parties hereto have executed at least one counterpart.

4.Successors. This Assignment shall be binding upon and for the benefit of the parties hereto and their respective Successors and Assigns.

IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to be executed as of the day and year first written above.

ASSIGNOR:
INLAND REAL ESTATE ACQUISITIONS, INC.,
An Illinois Corporation
By:	/s/ G. Joseph Cosenza
Name:			G. Joseph Cosenza
Title:		President
ASSIGNEE:
INLAND WESTERN IRMO STATION, L.L.C., a
Delaware limited liability company
By:		Inland Western Retail Real Estate Trust, Inc., a Maryland corporation, its sole member
		By:
		Name:		Valerie Medina
		Title:		Asst. Secretary

2

EX-10.499

Exhibit 10.499

FOURTH AMENDMENT TO AGREEMENT OF PURCHASE AND SALE

THIS FOURTH AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (the “Second Amendment”) is made and entered into this 29^th dayor December, 2004 by and between Eastern Retail Holdings Limited Partnership, a Delaware limited partnership (“Seller”) and Inland Real Estate Acquisitions, Inc., an Illinois corporation (“Purchaser”).

Recitals

A.Purchaser and Seller entered into an Agreement of Purchase and Sale dated October 5, 2004, as amended by First Amendment to Agreement of Purchase and Sale dated November 4, 2004, the Second Amendment to Agreement of Purchase and Sale dated November 10, 2004 and the Third Amendment to Agreement of Purchase and Sale dated December 13, 2004 (collectively, the “Purchase Agreement”).

B.Purchaser and Seller now desire to amend certain terms of the Purchase Agreement.

NOW, THEREFORE, in consideration of the mutual premises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

Amendments

1.Defined Terms. Except as otherwise expressly indicated herein to the contrary, all capitalized words and phrases contained herein shall have the same meaning and definition as are contained in the Purchase Agreement.

2.Purchase Price Adjustment. The first grammatical paragraph of Section 1.3 of the Purchase Agreement, entitled “Amount and Payment of Purchase Price”, is hereby restated in its entirety so as to read as follows:

“Subject to all of the terms and conditions hereof, the purchase price (“Purchase Price”) shall be Twenty One Million Five Hundred and Ninety-Five Thousand Dollars ($21,595,000.00). The Purchase Price shall be allocated Twelve Million Eight Hundred Thousand Dollars ($12,800,000.00) to Irmo and Eight Million Seven Hundred and Ninety-Five Thousand Dollars ($8,795,000.00) to Evans. The Purchase Price shall be paid as follows:”

3.Closing.Section 5.1, entitled “Time and Place”, is amended and restated in its entirety so as to read as follows:

“Unless this Agreement is extended or sooner terminated, Buyer and Seller agree to make full settlement on or before December 31, 2004.”

1

4.Miscellaneous.

(a)All section headings of this Fourth Amendment are for convenience of reference only, and form no part hereof.

(b)In the event of any conflict between the terms and conditions of this Fourth Amendment and the terms and conditions of the Purchase Agreement, the terms and conditions of this Fourth Amendment shall control and prevail.

(c)Except as expressly modified and amended by this Fourth Amendment, the Purchase Agreement shall remain unmodified and in full force and effect, and the Purchase Agreement, as so amended, shall bind and inure to the benefit of Seller and Buyer and their respective successors, legal representatives and assigns.

(d)This Fourth Amendment may be executed in counterpart originals, and all executed counterparts shall, when taken together, constitute the entire Fourth Amendment.

IN WITNESS WHEREOF, the parties hereto have executed this Fourth Amendment as of the date first written above.

SELLER:
EASTERN RETAIL HOLDINGS LIMITED
PARTNERSHIP, a Delaware limited partnership
By:	LMRES Real Estate Advisers, Inc., its
	General Partner
	By:	/s/ Beth L. Vopper
	Name:	BETH L. VOPPER
	Its:	VICE PRESIDENT
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation,
By:
Name:
Its:

2

THIRD AMENDMENT TO AGREEMENT OF PURCHASE AND SALE

THIS THIRD AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (the “Third Amendment”) is made and entered into this 13^thday of December by and between Eastern Retail Holdings Limited Partnership, a Delaware limited partnership (“Seller”) and Inland Real Estate Acquisitions, Inc., an Illinois corporation (“Purchaser”).

Recitals

A.Purchaser and Seller entered into an Agreement of Purchase and Sale dated October 5, 2004, as heretofore amended, (the “Purchase Agreement”).  Capitalized terms used but not defined herein shall have the meaning ascribed thereto in the Purchase Agreement.

B.Purchaser and Seller now desire to amend certain terms of the Purchase Agreement.

NOW, THEREFORE, in consideration of the mutual premises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

Amendments

1.The date of Closing is extended to December 23, 2004.

2.Except as set forth herein, all other terms and conditions set forth in the Purchase Agreement shall remain unchanged. In the event of an inconsistency between the terms of the Purchase and Agreement and the terms of this Third Amendment, this Third Amendment shall control.

(The remainder of this page is intentionally blank)

SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE

THIS SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (the “Second Amendment”) is made and entered into this 10^th day of November, 2004 by and between Eastern Retail Holdings Limited Partnership, a Delaware limited partnership (“Seller”) and Inland Real Estate Acquisitions, Inc., an Illinois corporation (“Purchaser”).

Recitals

A.Purchaser and Seller entered into an Agreement of Purchase and Sale dated October 5, 2004,as amended by First Amendment to Agreement of Purchase And Sale dated November 4, 2004 (collectively, the “Purchase Agreement”).

B.Purchaser and Seller now desire to amend certain terms of the Purchase Agreement.

NOW, THEREFORE, in consideration of the mutual premises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

Amendments

1.Defined Terms. Except as otherwise expressly indicated herein to the contrary, all capitalized words and phrases contained herein shall have the same meaning and definition as are contained in the Purchase Agreement.

2.Purchase Price Adjustment. The first grammatical paragraph of Section 1.3 of the Purchase Agreement, entitled “Amount and Payment of Purchase Price”, is hereby restated in its entirety so as to read as follows:

“Subject to all of the terms and conditions hereof, the purchase price (“Purchase Price”) shall be Twenty One Million Six Hundred and Thirty Thousand Dollars ($21,630,000.00). The Purchase Price shall be allocated Twelve Million Eight Hundred Thousand Dollars ($12,800,000.00) to Irmo and Eight Million Eight Hundred and Thirty Thousand Dollars ($8,830,000.00) to Evans. The Purchase Price shall be paid as follows:”

3.Adjustments to Purchase Price. Section 1.4 of the Purchase Agreement, entitled “Adjustments to Purchase Price”, and Exhibit B to the Purchase Agreement, entitled “Schedule of Unleased Stores”, are hereby deleted in their entirety fromthe Purchase Agreement.

4.Evaluation Period. With respect to Section 2.1 of the Purchase Agreement, Buyer hereby acknowledges that, except as hereafter provided, Buyer is either satisfied with or has waived the results of its testings, reviews, inspections and examination of documents and matters identified in Exhibit C of the Agreement, and, subject to the satisfaction of the following items, Buyer hereby gives Seller Notice to Proceed. Those items which remain unsatisfied and except for subsection 4(c) below, must be satisfied prior to Closing, are as follows:

1

IN WITNESS WHEREOF, the parties hereto have executed this Fourth Amendment as of the date first written above.

SELLER:
EASTERN RETAIL HOLDINGS LIMITED
PARTNERSHIP, a Delaware limited partnership
By:	LMRES Real Estate Advisers, Inc., its
	General Partner
	By:	/s/ Beth L. Vopper
	Name:	BETH L. VOPPER
	Its:	VICE PRESIDENT
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation,
By:	/s/ G. Joseph Cosenza
Name:	G. Joseph Cosenza
Its:	President

2

(a) Seller shall provide Buyer with copies of certificates of occupancy issued during years 2003 and 2004 to tenants of Evans and Irmo;

(b) Seller shallprovide Buyer with a list containing the names of the contact persons for all tenants of Evans and Irmo, and the addresses and telephone numbers of the contact persons;

(c) Seller shall use commercially reasonable efforts to obtain current sales reports for the current year from the following tenants: Zita, Inc. (Quiznos), Thuan C. Hguyen and Hoa V. Nguyen (US Nails) and Sun Rayz Tanning and shall deliver them to Buyer;

(d) Ita Taekwondo Academy of Irmo, a tenant under a lease dated August 19, 2004, must be in occupancy and must have paid its first month’s rent;

(e) Seller shall obtain lease renewal from Dr. John L. Edwards, D.D.S., a tenant at Irmo under a lease dated April 1, 2000.

5.Closing. Section 5.1, entitled “Time and Place”, is amended and restated in its entirety so as to read as follows:

“Unless this Agreement is extended or sooner terminated, Buyer and Seller agree to make full settlement on or before thirty (30) days following the date of this Fifth Amendment.”

6.Title and Survey. Notwithstanding anything to the contrary contained in Section 2.2 of the Purchase Agreement, Buyer shall have until Closing to satisfy itself as to the title to the Property and the Survey.

7.Remedies. If the requirements for Closing as contained in this Second Amendment have not been satisfied within the time periods herein set forth, then the Buyer shall, asBuyer’s sole remedy, have the right to terminate this Agreement by written notice of termination to Seller, whereupon the Deposit shall immediately be refunded to Buyer, this Agreement shall become null and void and all parties hereto shall be released from all liability and responsibility hereunder.

8.Miscellaneous.

(a) All section headings of this Second Amendment are for convenience of reference only, and form no part hereof.

(b) In the event of any conflict between the terms and conditions of this Second Amendment and theterms and conditions of the Purchase Agreement, the terms and conditions of this Second Amendment shall control and prevail.

(c) Except as expressly modified and amended by this Second Amendment, the Purchase Agreement shall remain unmodified and in full force and effect, and the Purchase

3

Agreement, as so amended, shall bind and inure to the benefit of Seller and Buyer and their respective successors, legal representatives and assigns.

(d) This Second Amendment may be executed in counterpart originals, and all executed counterparts shall, when taken together, constitute the entire Second Amendment.

(The remainder of this page is intentionally blank)

4

IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment as of the date first written above.

SELLER:
EASTERN RETAIL HOLDINGS LIMITED
PARTNERSHIP, a Delaware limited partnership
By:	LMRES Real Estate Advisers, Inc., its General Partner
	By:		/s/ Beth L. Vopper
	Name:		Beth L. Vopper
	Its:		Vice President
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation,
By:		/s/ G. Joseph Cosenza
Name:		G. Joseph Cosenza
Its:		President

5

FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE

THIS FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (the “First Amendment”) is made and entered into this 4^th day of November by and between Eastern Retail Holdings Limited Partnership, a Delaware limited partnership (“Seller”) and Inland Real Estate Acquisitions, Inc., an Illinois corporation (“Purchaser”).

Recitals

A.Purchaser and Seller entered into an Agreement of Purchase and Sale (the “Purchase Agreement”) dated October 5, 2004. Capitalized terms used but not defined herein shall have the meaning ascribed thereto in the Purchase Agreement.

B.Purchaser and Seller now desire to amend certain terms of the Purchase Agreement.

NOW, THEREFORE, in consideration of the mutual premises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

Amendments

1.Notwithstanding the provisions of Section 2.1 of the Purchase Agreement, the Evaluation Period shall be deemed to be extended to and end at 6:00 p.m. (CST), Chicago, Illinois time, on November 10, 2004.

2.Except as set forth herein, all other terms and conditions set forth in the Purchase Agreement shall remain unchanged. In the event of an inconsistency between the terms of the Purchase and Agreement and the terms of this First Amendment shall control.

(The remainder of this page is intentionally blank)

IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the date first written above.

SELLER:
EASTERN RETAIL HOLDINGS LIMITED
PARTNERSHIP, a Delaware limited partnership
By:		LMRES Real Estate Advisers, Inc., its General Partner
		By:	/s/ Beth L. Vopper
		Name:	Beth L. Vopper
		Its:	Vice President
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation,
By:	/s/ G. Joseph Cosenza
Name:	G. Joseph Cosenza
Its:	PRESIDENT

AGREEMENT OF PURCHASE AND SALE

BETWEEN

EASTERN RETAIL HOLDINGS LIMITED PARTNERSHIP

SELLER

AND

INLAND REAL ESTATE ACQUISITIONS, INC.

BUYER

TABLE OF CONTENTS

1.1.	Property
1.2.	Sale and Purchase
1.3.	Amount and Payment of Purchase Price
1.4.	Adjustments to Purchase Price
2.1.	Evaluation Period; Tests
2.2.	Title and Survey
2.3.	Inventory of Personal Property
2.4.	Rent Roll; Leases
2.5.	Contracts
2.7.	Condition of Title
2.8.	Tenant Estoppel Letters
3.1.	Representations and Warranties by Seller
3.2.	Representations by Buyer
4.1.	Conditions Precedent to the Obligations of Buyer
4.2.	Conditions Precedent to the Obligations of Seller
5.1.	Time and Place
5.2.	Payment of Purchase Price
5.3.	Transfer of Title to Real Property
5.4.	Closing Documents
5.5.	Definition of Closing
5.6.	Possession
6.1.	Closing Costs
6.2.	Closing Adjustments
6.3.	Security Deposits
6.4.	Survival of Closing
7.1.	Casualty
7.2.	Condemnation
8.1.	Appointment of Escrow Agent
8.2.	Duties of Escrow Agent
8.3.	Survival of Termination
9.1.	Brokerage

9.2.	Remedies Upon Default
9.3.	Indemnification
9.4.	Amendment
9.5.	Notices
9.6.	Assignment
9.7.	Parties Bound
9.8.	Time of Essence
9.9.	Waiver
9.10.	Construction
9.11.	Entire Agreement
9.12.	Pronouns
9.13.	Headings
9.14.	Applicable Law
9.15.	Covenant Against Recording
9.16.	Computation of Time
9.17.	Counterparts
9.18.	Waiver of Tender
9.19.	Condition of Property
9.20.	Withholding on Sales of Real Property

AGREEMENT OF PURCHASE AND SALE

THIS AGREEMENT OF PURCHASE AND SALE (this “Agreement”), dated as of the    day of August, 2004, by and between EASTERN RETAIL HOLDINGS LIMITED PARTNERSHIP, a Delaware Limited Partnership (“Seller”) and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation, or its permitted Assignee, (“Buyer” or “Purchaser”);

WITNESSETH:

THAT, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer, intending to be legally bound, do hereby agree as follows:

ARTICLE 1

SALE OF THE PROPERTY

1.1.Property.

As used herein, the term “Property” shall refer collectively to the “Real Property” and the “Personal Property” which are defined as follows:

1.1.1.“Real Property” means, collectively, all of the following:

(a)the land and improvements thereon known as Irmo Station Shopping Center (“Irmo”) and located at the intersection of Lake Murray Boulevard and Saint Andrews Road, Lexington County, South Carolina. The land is more particularly described in Exhibit A-l attached hereto and made a part hereof; and

(b)the land and improvements thereon known as Evans Towne Centre Shopping Center (“Evans”) located on Washington Road in Columbia County, Georgia. The land is more particularly described in Exhibit A-2 attached hereto and made a part hereof.

1.1.2The land is more particularly described in Exhibit A-l and A-2 attached hereto and made a part hereof. The Real Property includes all of Seller’s right, title, and interest in and to all leases, tenements, hereditaments, appurtenances, beneficial easements and rights of way in any way appertaining, belonging, or incident thereto, all of Seller’s rights in adjacent avenues, streets, and alleys, open or proposed, and all strips and gores as well as all of Seller’s rights in machinery, fixtures, and equipment (to the extent the same constitutes real property and is not part of the Personal Property) used or useful in the operation, maintenance, ownership, or use thereof, together with all modifications, substitutions, deletions, and additions thereto from and after the date hereof and through and including Closing (as defined in Section 5.5);

1.1.3“Personal Property” means all of the Seller’s right, title and interest in all personal property owned or leased by Seller and used in connection with the Real Property, including all of Seller’s right, title and interest in: machinery, equipment, and fixtures (to the extent the same constitute personal property, and are not part of the Real Property), any inventory as of Closing, all permits, certificates of use and occupancy, licenses or other authorizations or agreements, (to the extent the same may be transferred pursuant to applicable law), the trade names “Irmo Station

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Shopping Center” and “Evans Towne Centre Shopping Center”; all telephone listings and advertisements relating to the use or operation of the Property; all plans, specifications, and “as built” surveys relating to the Real Property and all books and records relating to the Property that are maintained by or for Seller, together with all modifications, substitutions, deletions and additions to any of the foregoing from and after the date hereof and through and including Closing.

1.1.4“Contracts” means collectively all written contracts and agreements pertaining to the Property, and not cancelable on thirty (30) days notice without penalty or premium, including, but not limited to: (i) all management leasing, construction, architectural, maintenance, operating and service contracts, (ii) all equipment leases and all rights and options of Seller thereunder relating to equipment or property located in or upon the Property or used in connection therewith, and (iii) guarantees and warranties in effect with respect to the Property or any portion thereof.

1.1.5“Property” means the Real Property, the Personal Property, and the Contracts.

1.2.Sale and Purchase.

Subject to all of the terms and conditions hereof, Seller hereby agrees to sell to Purchaser, and Purchaser hereby agrees to purchase from Seller, (a) the Real Property in fee simple, and (b) the Personal Property.

1.3.Amount and Payment of Purchase Price.

Subject to all the terms and conditions hereof, and in particular Section 1.4 hereof, the purchase price (“Purchase Price”) shall be Twenty One Million Nine Hundred Eighty Thousand Dollars ($21,980,000.00). The Purchase Price shall be allocated Thirteen Million One Hundred Thousand Dollars ($13,100,000.) to Irmo and Eight Million Eight Hundred and Eighty Thousand Dollars ($8,880,000.) to Evans. The Purchase Price shall be paid as follows:

1.3.1.Concurrently with execution of this Agreement by Seller, Buyer shall deposit Four Hundred Thousand Dollars ($400,000.00) with the Escrow Agent pursuant to Article 8. hereof. The term “Deposit” shall mean all sums deposited with Escrow Agent hereunder. At Closing, the Deposit shall, at Purchaser’s option, be credited against the Purchase Price or returned to Purchaser. Except as otherwise provided in this Agreement, the Deposit shall be non-refundable after the expiration of the Evaluation Period.

1.3.2.The full Purchase Price shall be paid by Buyer at Closing by wire transfer of immediately available funds to the order of Seller at Closing.

1.4.Adjustments to Purchase Price.

Attached hereto as Exhibit B is a schedule identifying those stores, by Suite Number, which are not under lease at Evans and Irmo as of the Effective Date, and a stipulated value assigned to each unleased store. If, on the Closing Date, any one or more of such unleased stores have not been leased for a term of at least three (3) years and at base rents per square foot at least equal to the amounts set forth on Exhibit B for each store with (i) all tenant improvements required thereunder completed and paid for, (ii) all leasing commissions due in connection therewith paid in full, (iii) a certificate of occupancy having been issued for such space, and (iv) the tenant thereunder is, open for business and paying at least the amount of Base Rent stipulated in Exhibit B for the space in question, plus the tenant’s pro rate share of common area maintenance, taxes and insurance, then the Purchase Price shall be reduced by the stipulated

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value assigned to each such unleased store. For example, if Suite 7 in Evans is unleased as of the Closing Date, then that portion of the Purchase Price allocated to Evans shall be reduced by $51,888.00. then the Purchase Price shall be reduced by the stipulated value assigned to each such unleased store. For example, if Suite 7 in Evans is unleased as of the Closing Date, then that portion of the Purchase Price allocated to Evans shall be reduced by $51,888.00. –If, at Closing, there is a fully executed lease on one or more of the stores shown on Exhibit B, and such lease or leases meet all of the requirements of this Section 14 except that one or more of the requirements set forth in subsections. 14 (i), (ii), (iii) and (iv) have not been satisfied (such leases are herein called “Non-Conforming Leases”), then the amount by which the Purchase Price is so reduced shall be deposited in escrow with the Escrow Agent. If, within twelve (12) months following Closing, all of the requirements of subsections 14 (i), (ii), (iii) and (iv) have been satisfied for any Non-Conforming Lease, then the Purchaser shall so notify the Escrow Agent and the Seller in writing, whereupon the Escrow Agent shall immediately pay over to Seller the amount of the escrow deposit attributed to the Non-Conforming Lease or Leases in question. If, within twelve (12) months following Closing, all of the requirements of subsections 14 (i), (ii), (iii) and (iv) have not been satisfied for any Non-Conforming Lease, then the Purchaser shall so notify the Escrow Agent and the Seller, whereupon the Escrow Agent shall immediately pay over to Purchaser the amount of the escrow deposit attributed to the Non-Conforming Lease or Leases in question.

ARTICLE 2

EVALUATION PERIOD; ACTIONS PRIOR TO CLOSING

2.1.Evaluation Period; Tests.

Buyer shall have a period commencing with the date of this Agreement, which shall be the date upon which the last of Buyer and Seller have executed this Agreement (the “Effective Date”) and terminating at 6:00 p.m. Chicago, Illinois time on the thirtieth (30) day thereafter (the “Evaluation Period”) to make and conduct any and all investigations (including but not limited to investigations of the matters pertaining to the Property which are disclosed, by reference or otherwise, in this Agreement and its Exhibits), tests, engineering evaluations, economic feasibility evaluations, design evaluations, review of all financial and property-related information, review of County real estate taxes, building code and zoning records pertaining to the Property, and any other tests, studies, or evaluations which Buyer may, in its sole discretion, deem necessary or desirable in order to evaluate the Property, and to review the leases of portions of the Property (“Leases”) and the suitability of the Property for Buyer’s purposes. In the event that Buyer shall, in its sole discretion, determine that the Property (and the terms and conditions of the Leases) are suitable for Buyer’s purposes, then Buyer may, by giving written notice (“Notice to Proceed”) to Seller at any time prior to the expiration of the Evaluation Period, elect to proceed with this Agreement. All studies and tests made or conducted by or for Buyer pursuant to this Section 2.1 shall be at Buyer’s sole cost and expense and shall be subject to the provisions of Section 2.1.1. In the event that Closing does not occur under this Agreement for any reason other than Seller’s default, then, notwithstanding any other provision of this Agreement purporting to terminate all rights and obligations hereunder, all data and material, including plans, specifications, surveys, title commitments, engineering studies and drawings, surveys, sketches, test results, contracts, agreements and Leases relating to the Property delivered by Seller to Buyer shall, at Seller’s request, be returned by Buyer to Seller.

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If,on or prior to the date of expiration of the Evaluation Period, Buyer shall either fail to give Seller Notice to Proceed, or shall fail to give Seller written notice of its election to terminate this Agreement, then Buyer shall be deemed to have terminated this Agreement pursuant to this Section 2.1 whereupon the Deposit shall be immediately refunded to Buyer, this Agreement shall become null and void and all parties hereto shall be released from all liability and responsibility hereunder.

It shall be clearly understood that the Buyer may give Notice to Proceed only with respect to both Irmo and Evans. If the Buyer gives Notice to Proceed with respect to one of the two shopping centers, then such Notice to Proceed shall be treated as a termination of this Agreement pursuant to this Section 2.1.

2.1.1.Tests; Entry. Buyer shall have the right (subject to the provisions of this Section 2.1.1 and any other applicable provisions of this Agreement) from and after the Effective Date and until the end of the Evaluation Period (and until Closing if this Agreement is not terminated during the Evaluation Period);

(a)To perform or cause to be performed such engineering, structural, mechanical, water, sanitary sewer, utility, topographic, market, financial, environmental, infestation, and/or other studies, tests, or investigations as Buyer may, in its sole discretion, elect;

(b)To enter, or cause its agents or representatives to enter, upon the Property for the purpose of making any of the aforesaid tests, investigations and/or studies. Any exercise by Buyer of its rights to perform tests upon the Property pursuant to Section 2.1, this Section 2.1.1 or any other provision of this Agreement or to review the files and records of Seller or the manager of the Property (the “Manager”) shall only be taken or made upon reasonable prior notice to Seller and to the Manager. All tests, inspections, reports and investigations made by or for Buyer pursuant to Section 2.1, this Section 2.1.1 or any other provision of this Agreement shall be at Buyer’s sole risk, cost and expense and all such tests, inspections, reports and investigations shall (to the extent conducted or made at the Property) be conducted or made with due regard to the business operations being conducted at the Property and the rights, privileges and convenience of Seller’s tenants, guests, invitees and licensees; and

(c)In connection with any entry upon the Property prior to Closing, Buyer shall (i) permit a representative of Seller to accompany Buyer and (ii) indemnify, defend and save and hold harmless Seller from any and all damage to the Property or injury to persons caused by such entry and at Seller’s option, prior to Buyer’s entry upon the Property, Buyer shall provide Seller with a certificate evidencing liability insurance in the amount of not less than $1,000,000., naming Seller as an additional insured.

2.1.2.Access to Information. Within five (5) days of the Effective Date, Seller shall deliver the Buyer the items set forth on Exhibit C attached hereto, except for those items crossed out or noted on Exhibit C as, “not applicable”, “Seller not to provide” and those items not considered as applicable under item 2 of Expense Information on Exhibit C. Those items noted on Exhibit C as “available in management office”, or “if available, located in management office”, may be inspected by Buyer in the office of the Seller’s management company.

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2.2.Title and Survey.

Buyer shall, at Buyers’ expense, satisfy itself as to the title to the Property in accordance with the following provisions:

2.2.1.Within five (5) days after the Effective Date, Buyer shall request, and thereafter shall cause, Buyer shall cause Chicago Title Insurance Company (the “Title Insurer”) to issue the Title Commitment (as hereinafter defined), together with legible copies of any and all title exception documents referenced therein. The “Title Commitment” shall mean a commitment for an ALTA Owner’s Title Insurance Policy (Form B) for the Real Property issued by the Title Company in the full amount of the Purchase Price, covering title to the Real Property on or after the date hereof, showing Seller as owner of the Real Property in fee simple, and providing for full extended coverage over all general title exceptions contained in such policies and containing the following special endorsements (collectively, the “Special Title Endorsements”) Zoning Endorsement 3.1 (amended to include parking and loading dock coverage), owner’s comprehensive, access, survey (legal description equivalency), P.I.N., contiguity (if applicable, encroachment (if applicable), utility facility, subdivision, location, environmental lien and deletion of the arbitration provision and creditors’ rights provision.

2.2.2Within five (5) days after the Effective Date, Seller shall order, and Seller shall, at Buyer’s expense cause a duly licensed land surveyor to deliver a current ALTA/ACSM Title Survey of the Real Property prepared in accordance with the Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys jointly established by the American Land Title Association and the American Congress on Surveying and Mapping in 1999, that meets the accuracy requirements of an Urban Survey, as defined therein, and includes items 1, 3, 4, 6,7 (a, b and c), 8-11 and 13-16 of Table A thereof (the “Survey”). The Survey shall be otherwise certified to Buyer and prepared in accordance with the certification and additional requirements set forth on Exhibit D. attached hereto.

2.2.3  (a) In the event (i) the Survey shows any easement, right-of-way, encroachment, conflict, protrusion or other matter affecting the Real Property that is unacceptable to Buyer, or (ii) any exceptions appear in the Title Commitment that are unacceptable to Buyer, Buyer shall notify Seller in writing of such facts (“Buyer’s Title Objections”) not later than 5:00 p.m. Central Time upon the date which is the later of the expiration of the Evaluation Period or five (5) business days after the date Buyer has received delivery of both the Survey and Title Commitment (the “Title Approval Period”). Upon the expiration of the Title Approval Period, except for Buyer’s Title Objections, Monetary Liens (as hereafter defined), and any other matters arising subsequent to the date of the Survey and Title Commitment, Buyer shall be deemed to have accepted the form and substance of the Survey, the Title Commitment and all matters shown or addressed therein (collectively, the “Approved Title Matters”).

(b)Notwithstanding anything to the contrary contained herein, except for any Monetary Liens and any matters created after the date of the Title Commitment, Seller shall have no obligation to take any steps or bring any action or proceeding or otherwise to incur any effort or expense whatsoever to eliminate or modify any of Buyer’s Title Objections; provided, however, Seller, at its sole option, may attempt to eliminate or modify all or a portion of Buyer’s Title Objections to Buyer’s reasonable satisfaction prior to the Closing Date. In the event Seller is unable or unwilling to attempt to eliminate or modify all of Buyer’s Title Objections to the reasonable satisfaction of Buyer, Seller shall provide written notice thereof to Buyer within ten (10) business days of its receipt of Buyer’s Title Objections (“Seller’s Notice”). Buyer may

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thereafter elect to close notwithstanding Buyer’s Title Objections (in which case Seller shall have no liability to eliminate or modify, and Buyer shall take the Property subject to, the Buyer’s Title Objections) or Buyer may (as its sole and exclusive remedy) terminate this Agreement by delivering notice thereof in writing to Seller, in which event neither party shall have any obligation hereunder other than the Surviving Obligations and Buyer shall be entitled to return of the Deposit. Seller shall cause all mortgages, deeds of trust and monetary liens (including liens for delinquent taxes, mechanics’ liens and judgment liens) affecting the Property and all indebtedness secured thereby (the “Monetary Liens”) to be fully satisfied, released and discharged of record on or prior to the Closing Date.

(c)The term “Permitted Exceptions” as used herein includes: (i) all of the Approved Title Matters, and (ii) any Buyer’s Title Objection other than Monetary Liens or those items Seller agreed to eliminate or modify pursuant to Section 2.2.3(b), that Buyer has elected to waive its objection with respect thereto pursuant to Section 2.2.3(b).

2.3.Inventory of Personal Property.

An inventory of tangible Personal Property (the “Inventory”) which Inventory shall be updated as of Closing, and which update shall reveal no material changes to the Inventory, is attached hereto as Exhibit E.

2.4.Rent Roll; Leases.

The rent roll for the Property (the “Rent Roll” is attached hereto as Exhibit F).

2.5.Contracts.

It is acknowledged and agreed that as of the date hereof Seller and/or the Manager have entered into, or are otherwise responsible for, certain employment, supply, service, operating, leasing, tenant improvement and other contracts relating to the Property. Copies of all such contracts and certificates confirming insurance coverage will be delivered to Buyer within five (5) business days after the Effective Date. A listing of all such contracts is set forth as Exhibit G. Buyer shall review such contracts during the Evaluation Period and, if Buyer gives Seller Notice to Proceed, Buyer will, prior to the expiration of the Evaluation Period, advise Seller which of such contracts must be terminated by Seller at or prior to Closing, as a condition of Closing. All such contracts which are not to be terminated at or prior to Closing, and all other contracts relating to the Property entered into after the date hereof with the prior written consent of Buyer (which consent Buyer agrees not to unreasonably withhold or delay, provided such contracts are terminable by Seller at any time for any reason on no more than 30 days prior written notice) are herein collectively referred to as the “Continuing Contracts.” In no event shall Buyer be obligated to enter into or consent to any amendment, replacement or termination of a Continuing Contract after the Evaluation Period except on such terms as may be approved in writing by Buyer in advance.

2.6Conduct Pending Closing or Termination.

Prior to the earlier of Closing or the termination of this Agreement:

2.6.1Conduct Not Permitted. Seller shall not engage in or permit or suffer any of the following acts to occur:

(a)  Any sale, assignment, disposition, or encumbrance of any portion of the Real Property (except as otherwise expressly provided in this Agreement) or of all or

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any substantial portion of the Personal Property without Buyer’s prior written consent;

(b)  Any intentional action by Seller that would result in any of Seller’s warranties and representations set forth in Article 3 not being and remaining true and correct as of Closing;

(c)  After the expiration of the Evaluation Period, if the Buyer has given the Seller Notice to Proceed, Seller shall not execute any new lease for any portion of the Property or a material amendment, replacement, or termination of any of the Leases unless such execution, amendment, replacement, or termination occurs with Buyer’s prior written consent: provided, however, that Seller may enter into leases of the unleased space listed in Exhibit B hereto, so long as such leases meet the criteria of Section 1.4 hereof. Seller shall immediately notify Buyer of any such actions taken during the Evaluation Period, and Buyer shall have at least ten (10) business days to review any such action. Any such action taken without Buyer’s prior written consent shall, at Buyer’s option, give Buyer the right either to terminate this Agreement and receive a return of the Deposit or to proceed to Closing without any abatement of the Purchase Price; and

(d)  Seller shall not execute any new contracts relating to the operation and maintenance of the Property to the extent such contracts extend beyond Closing without the prior written consent of Buyer, which consent shall not be unreasonably withheld. Seller shall immediately notify Buyer of any such proposed actions.

2.6.2Seller’s Covenants. Seller agrees that:

(a)  Seller shall furnish to Buyer copies of any and all written notices that Seller receives from any governmental entity with respect to the Property;

(b)  until Closing, Seller shall maintain for Seller’s own benefit its existing insurance coverage on the Property (and Buyer shall have the right at its cost and expense to maintain such additional insurance with respect to the Property and its interest therein as Buyer may deem to be necessary or appropriate);

(c)  after the expiration of the Evaluation Period, Seller shall not settle any fire or casualty loss claims, or agree to any award or payment in a Condemnation (as defined in Section 7.2), without obtaining Buyer’s prior written consent in each case; provided, however, that Buyer’s prior written consent shall not be required, and Seller shall be free to make any settlement or agreement it deems necessary or appropriate from and after the date, if any, on which the parties exercise (or are deemed to have exercised) their option pursuant to Sections 7.1 or 7.2 to terminate this Agreement for or on account of any such casualty or Condemnation; and further provided that Seller may make a partial settlement to obtain insurance proceeds (and may use such proceeds) to perform interim repairs or renovations to the Property as required by any Lease, by any governmental authority or as required to prevent further damage or deterioration to the Property;

(d)  Seller shall continue to operate and maintain the Property in accordance with good business practices and shall maintain the Property in good condition including making all necessary repairs and replacements; and

(e)  At Closing there shall be no contracts pertaining to the Property other than the Continuing Contracts which will be assigned to Buyer.

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2.7.Condition of Title.

At Closing, title to the Real Property shall be subject only to the Permitted Exceptions.

2.8.Tenant Estoppel Letters.

Seller agrees to use reasonable efforts to obtain tenant estoppel letters addressed to Buyer (the “Tenant Estoppel Letters”) in the form attached hereto as Exhibit H. from all of the tenants of the Property shown on the Rent Roll; to deliver to Buyer all such letters which Seller is able to obtain through the use of reasonable efforts signed by the tenants no later than five (5) days prior to Closing; and to use reasonable efforts to cause tenants to sign corrected letters in the event any such letter contains errors, omissions, or inaccuracies. In addition, Seller agrees to execute and deliver estoppel letters in form as attached hereto as Exhibit H-l, in place of and with respect to all tenants other than the tenants identified in Sections 4.1.10(a) and (b) hereof, who do not otherwise deliver a Tenant Estoppel Letter.

ARTICLE 3

REPRESENTATIONS AND WARRANTIES

3.1.Representations and Warranties by Seller.

As of the date hereof, Seller hereby represents and warrants to Buyer as follows:

3.1.1.Seller is authorized to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the conveyance of the Property by Seller pursuant to this Agreement, do not otherwise require the consent of any person, agency, entity or, as applicable, partner or shareholder not a party to this Agreement.

3.1.2.Seller has granted no option (which remains outstanding) or otherwise made any commitment (which remains outstanding) to any person other than Buyer to sell, transfer, or dispose of the Property or any interest therein (other than a leasehold interest pursuant to the Leases).

3.1.3.This Agreement does not violate the terms of any other contract or instrument to which Seller is a party or by which Seller is bound.

3.1.4.Except for the Continuing Contracts or as otherwise disclosed to Buyer, Seller is not a party to any written or oral contract, and otherwise has no liability, actual or contingent, for (i) the employment of any person with respect to the Property, (ii) the payment of or provision for any bonus, profit-sharing plan, retirement benefit, vacation benefit, hospitalization insurance, or similar plan or practice, formal or informal, with respect to any current or past employees with respect to the Property, or (iii) any labor union with respect to the Property.

3.1.5.Seller is not a “foreign person” as the term is defined in §1445 of the Internal Revenue Code of 1986, as amended or replaced (the “Code”) and Seller agrees to execute an affidavit to that effect at Closing.

3.1.6.There are no actions or proceedings pending or to the best of Seller’s actual knowledge, threatened to place Seller in bankruptcy or appoint a receiver for Seller.

3.1.7.Property. With respect to the Property and the ownership, leasing, management and operation thereof, Seller represents and warrants that:

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(a) There are no tenancies or occupancies affecting the Property or persons in possession of any part thereof, except under the Leases described in the Rent Roll.

(b) Seller is not a party to, and has no knowledge of, any of the following with respect to the Property: (i) leases or conditional sales agreements of any personalty, (ii) employment contracts, or union agreements, or retirement or pension plans, (iii) signage agreements, (iv) licenses granting rights to parties other than Seller, (v) merchants’ association or promotional service agreements, or (vi) any similar commitments or agreements whatsoever incidental to the management, operation or leasing of the Property, written or oral, except (A) the Contracts set forth in Exhibit G, (B) the Leases, (C) the Permitted Exceptions and (D) the existing management and leasing contracts and other contracts to be canceled by Seller at or before Closing, unless otherwise continued by Buyer at Buyer’s sole election.

(c) Copies of the Rent Roll and Leases and the Contingency Contracts set forth in Exhibits F and G which have been delivered to Buyer on or prior to the date hereof are true, accurate and complete copies of all documents comprising the Leases and the Contracts set forth in Exhibits F and G, with all supplements, amendments and exhibits thereto and there are no modifications or other agreements, written or oral, affecting the Leases or the Contracts set forth in Exhibits F and G.

(d) There is no prepaid rent (other than rent prepaid no more than one (1) month in advance pursuant to the terms of the relevant Leases) with respect to the Property, and no security deposits relating to the Leases or otherwise affecting any of the Property have been collected other than as reflected on Exhibit F hereto. Except as set forth on Exhibit I hereto, and otherwise to the best of Seller’s knowledge, there is no material default by any party under any of the Leases.

(e) There is no litigation, claim, audit, action or proceeding pending or to the best of Seller’s knowledge, threatened before or by any court, public board or body or governmental or administrative agency or instrumentality against Seller or against Seller by any tenant or by any other person or entity in any manner affecting the Property, except for claims by third parties for personal injuries at the Property which are being defended by Seller’s insurance company, and except as shown on Exhibit J hereof. As to such claims, Seller hereby agrees to protect, defend, indemnify and save Buyer and Buyer’s permitted assignee harmless from any and all claims, demands, liabilities and damages, arising therefrom.

(f) As of the Effective Date there is no delinquent property tax, levy or assessment against the Property.

(g) To the best of Seller’s knowledge, except as shown on Exhibit K hereto, there is no pending or threatened condemnation proceeding against the Property or any portion thereof, nor have Seller or its agents received any written notice of any public request, plans or proposals for changes in road grade, access or other municipal improvements that may affect the Property or result in a tax, levy or assessment against the Property.

(h) As of the Effective Date Seller has received no written notice of any alleged violation of any fire, zoning, applicable comprehensive plans, building, health or

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environmental laws, regulations or rulings, whether federal, state or local, or of any other alleged violations of law which affect the Property. (i) To the best of Seller’s knowledge as of the Effective Date, (i) there are no hazardous waste or hazardous substances stored or located upon or under any portion of the Property; (ii) the Property is not used to treat, store or dispose of waste materials, hazardous substances, asbestos or PCBs; (iii) there is no leaking or drainage of waste materials or hazardous substances into the ground water beneath or adjacent to the Property; and (iv) there are no buried or semi-buried or otherwise placed tanks, storage vessels, drums or containers of any kind manufactured, stored or located on the Property.

3.2.Representations by Buyer.

As of the date hereof, Buyer hereby represents and warrants to Seller as follows:

3.2.1.Buyer is fully competent and authorized to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by Buyer do not require the consent of any person, agency or entity not a party to this Agreement.

3.2.2.There are no actions or proceedings pending or threatened to liquidate, reorganize, arrange, place in bankruptcy, appoint a receiver for, or dissolve Buyer.

3.2.3.This Agreement does not violate the terms of any other contract or instrument to which Buyer is a party or by which Buyer is bound.

ARTICLE 4

CONDITIONS OF CLOSING

4.1.Conditions Precedent to the Obligations of Buyer.

In addition to any other conditions precedent stated in this Agreement, the obligations of Buyer to purchase and make payment for the Property pursuant to the provisions of this Agreement shall be subject to the following conditions:

4.1.1.The representations and warranties made by Seller hereunder shall be true and correct on and as of Closing.

4.1.2.There will not be pending or threatened as of Closing any litigation, proceeding or investigation, including but not limited to, any bankruptcy, arrangement, reorganization, insolvency or foreclosure proceedings (but excluding any Condemnation which shall be governed by Article 7 hereof): (i) materially and adversely affecting the Property; or (ii) against or involving Seller that would materially and adversely affect Seller’s title to the Property.

4.1.3.Between the date of this Agreement and Closing, Seller shall have complied with the obligations and covenants contained in Sections 2.7 and 2.9 hereof.

4.1.4.As of Closing, the status of title of the Property shall be as set forth in Section 2.8 hereof.

4.1.5.The holder of all mortgages encumbering the Property shall have executed and delivered letters to the Escrow Agent and the Buyer stating the amounts necessary to pay off and then satisfy such mortgages as of Closing; including prepayment premiums and other charges, all of which shall be Seller’s responsibility to pay.

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4.1.6.Seller shall execute and deliver all documents and shall take all other actions required of Seller pursuant to Article 5.

4.1.7.Buyer shall not have discovered or become aware of any environmental liability associated with or arising out of the use, operation, or ownership of the Property.

4.1.8.Buyer shall have obtained a letter or letters from the appropriate local municipal authority or authorities in form and content reasonably acceptable to Buyer, stating in substance that the Property is zoned for its current use, that all required development and subdivision approvals have been obtained and that there are no known building code violations.

4.1.9.All contracts which are not Continuing Contracts shall have been terminated at or prior to Closing and written evidence thereof submitted to Buyer.

4.1.10.Seller shall have delivered to Buyer prior to Closing, Tenant Estoppel Letters reasonably satisfactory to Buyer from (a) Kroger, Pizza Hut and Dollar Tree in the case of Irmo, (b) Publix, in the case of Evans, and (c) Seventy Percent (70%) in number of all other tenants, dated not more than thirty (30) days prior to Closing. In addition, Seller agrees to execute and deliver estoppel letters in form as attached hereto as Exhibit H-l, in place of and with respect to all tenants other than tenants identified in Sections 4.1.10(a) and (b) hereof, who do not otherwise deliver a Tenant Estoppel Letter.

4.2.Conditions Precedent to the Obligations of Seller.

In addition to any other conditions precedent stated in this Agreement, the obligations of Seller to sell the Property pursuant to the provisions of this Agreement shall be subject to the following conditions:

4.2.1.The representations and warranties made by Buyer in Section 3.2 shall be true and correct on and as of Closing.

4.2.2.There will not be pending any litigation, proceeding, or investigation, including but not limited to, any bankruptcy, arrangement, reorganization, or insolvency proceeding against or involving Buyer that would materially and adversely affect Buyer’s ability to consummate Closing.

4.2.3.Buyer shall pay the Purchase Price, shall execute and deliver all documents, and shall take all other actions required of Buyer pursuant to Article 5.

ARTICLE 5
CLOSING

5.1.Time and Place.

Unless this Agreement is extended or sooner terminated, Buyer and Seller agree to make full settlement on or before thirty (30) days following the date Buyer gives Notice to Proceed to Seller, but in no event shall Closing occur on September 8, 2004 through and including September 20, 2004 or December 8, 2004 through and including December 20, 2004, at the offices of the Escrow Agent or at such other time, place and date as may be agreed upon by Buyer and Seller in their respective sole discretion.

5.2.Payment of Purchase Price.

At Closing, Escrow Agent shall deliver the Deposit to Seller, and Buyer shall pay the balance of the Purchase Price as provided in Section 1.3.2.

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5.3.Transfer of Title to Real Property.

At Closing, and upon payment of the Purchase Price and full performance by Buyer, Seller shall convey to Buyer, by limited warranty deed, in the case of Irmo, and limited warranty deed, in the case of Evans,, title to the Real Property in fee simple absolute, subject to the Permitted Exceptions, which shall include ad valorem real property taxes for the year of closing and subsequent years, provided that none of such taxes are due and payable and prorated as elsewhere provided herein.

5.4.Closing Documents.

The following documents shall be executed and/or delivered as of Closing with respect to each of Irmo and Evans:

5.4.1.Seller shall execute and deliver the limited warranty deeds conveying the Real Property to Buyer. If the Buyer obtains a new or updated survey of the Real Property and the legal description set forth in Purchaser’s survey differs from the legal description set forth in Exhibit A hereto, Seller shall also execute and deliver a quitclaim deed containing a legal description based upon Purchaser’s survey.

5.4.2.Seller shall execute and deliver a Bill of Sale transferring to Buyer all of Seller’s right, title and interest in the Personal Property, if any, free and clear of all charges, security interests, mortgages, liens, and encumbrances created or arising by or through Seller (other than Permitted Exceptions).

5.4.3.(a) Seller and Buyer shall each execute and deliver an Assignment and Assumption of Leases pursuant to which Seller shall assign, and Buyer shall from and after the date of Closing, assume, all of Seller’s right, title, interest, rights, duties, and obligations under all Leases;

(b) Seller and Buyer shall each execute and deliver an Assignment and Assumption of Contracts and Warranties pursuant to which Seller shall assign, and Buyer shall from and after the date of Closing, assume all of Seller’s rights, title interest, duties and obligations under the Contracts and all Continuing Contracts in force and effect as of Closing, and such other matters (limited to Seller’s rights therein and only to the extent assignable) as are to be assigned by Seller to Buyer hereunder (such other matters to include any warranties, permits, licenses, and other items necessary or useful in connection with the operation of the Property).

5.4.4.To the extent not previously delivered, at Closing Seller shall deliver to Buyer (i) the originals of all Leases then in force and effect (or to the extent that Seller does not have an original executed copy of any of the Leases in Seller’s possession, a photostatic copy of such Lease, together with a certification by Seller that such photostatic copy is a true and correct copy of such Lease) and the originals or true copies of all Continuing Contracts then in force and effect; (ii) the originals or true copies of all real estate tax records, utility bills, and other records relating to the use, ownership and operation of the Real Property during the period owned by Seller to the extent in Seller’s or an affiliate or agent of Seller’s possession as of Closing; (iii) all plans, specifications and “as builts” relating to the Real Property to the extent in Seller’s or an affiliate or agent of Seller’s possession as of Closing; (iv) the most recent certificates of use and occupancy to the extent in Seller’s or an affiliate or agent of Seller’s possession as of Closing; (v) to the extent not already provided herein, any warranties, guarantees, operating manuals or documents, maintenance, supply, and service contracts, engineering data, and other documents

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respecting the use, operation, or ownership of the Property which are in Seller’s or an affiliate or agent of Seller’s possession as of Closing; (vi) the Tenant Estoppel Letters required to be delivered pursuant to Section 2.9 above to the extent the same have been obtained by Seller; and (viii) all access, operating, or other keys to the Property in Seller’s possession as of Closing.

5.4.5.Seller shall deliver the Inventory of the Personal Property, if any, updated as of Closing.

5.4.6.Seller and Buyer shall approve a closing statement reflecting costs and adjustments set forth in Sections 6.1 and 6.2.

5.4.7.Seller shall execute and deliver to Buyer an affidavit confirming that Seller is not a “foreign person” under §1445 of the Code.

5.4.8.Seller shall deliver in a form reasonably acceptable to Buyer a notification to tenants of the sale and purchase of the Property, which notification shall instruct the tenants to pay all rent and charges directly to Buyer, from and after the Closing.

5.4.9.Seller shall deliver to Buyer the letter or letters required by Section 4.1.8. hereof.

5.4.10.Seller shall execute and deliver to Buyer the audit letter in the form of Exhibit L attached hereto.

5.5.Definition of Closing.

All of the actions described in Sections 5.3 through 5.4 shall be deemed to have been taken simultaneously, none of such actions shall be deemed to have been taken unconditionally until all of such actions have been fully performed, and all of such actions are collectively referred to herein as “Closing.”

5.6.Possession.

Seller shall deliver possession of and occupancy to the Property to Buyer as of Closing, subject to all Leases, all Permitted Exceptions, and any other matters permitted by this Agreement or created or otherwise consented to in writing by Buyer.

ARTICLE 6

CLOSING COSTS AND ADJUSTMENTS

6.1.Closing Costs.

Buyer shall pay the costs of recording the deed and other title transfer documents and cost of any financing obtained by Buyer, including the fee owner’s and any mortgagee’s title policy, premiums, title commitment fees, recording fees, commitment fees and mortgage loan fee. Each party shall bear the fees of its respective attorneys and advisors. Seller shall pay any brokerage commission due Seller’s agent, Trammell Crow Company, in connection with this sale and purchase transaction. Realty transfer taxes shall be paid by Seller. Buyer shall pay for the cost of the survey referenced in Section 2.3 hereof.

6.2.Closing Adjustments.

6.2.1.Except as hereinafter specifically provided to the contrary, all minimum rent, additional rent and other sums payable under the Leases; all current operating expenses, all real estate taxes, (on the basis of the actual fiscal years for which such taxes are assessed), other taxes and assessments (whether general or special); and all utilities, water and sewer charges

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(excluding, however, any utilities, water and sewer charges paid or payable directly by the tenants under the Leases), shall be adjusted and prorated as of Closing. Any credit due to Buyer pursuant to this subsection 6.2.1 shall be applied against the Purchase Price; and any credit due to Seller pursuant to this Section 6.2.1 shall be paid by Buyer to Seller at Closing as an addition to the Purchase Price in the manner of payment set forth in Section 1.3.3.

6.2.2.Seller and Buyer acknowledge and agree that it may not be possible to effect a final reconciliation of all income and expense items that are to be adjusted until after Closing. The parties agree to cooperate in good faith in effecting such a final reconciliation and each party shall promptly pay (or reimburse the other party for) any expenses item that is chargeable to the other party and shall promptly remit any income item to the other party if entitled thereto. Seller covenants that it shall retain the financial ability to make such adjustments.

6.2.3.Seller shall use its best efforts to arrange for the rendition of final bills by the utility companies involved as of Closing (excluding, however, any bills for utilities consumed by an individual tenant if such tenant is obligated by its lease to pay separately for the utilities consumed by it), but in the event such final bills cannot be rendered or obtained by Closing, final adjustments shall be made within sixty (60) days after Closing.

6.2.4.Notwithstanding anything contained herein to the contrary, rent in arrears for months prior to Closing shall not be prorated. Buyer shall promptly pay to Seller any rental received by Buyer attributable to rents in arrears as of Closing (and Buyer shall apply any rental received to the most current rental due and owing when such payment was made). Buyer shall use reasonable efforts to collect back rent due Seller, but shall not be required to file suit or to evict delinquent tenants. Within ninety (90) days after Closing, Buyer shall deliver to Seller a written report setting forth the status of its collection of delinquent rents as of sixty (60) days after Closing. The terms of this Section 6.2.4 shall survive Closing.

6.2.5.The apportionment of percentage rental, if any, payable under any of the Leases (“Percentage Rent”) (and the amounts due Buyer and Seller respectively under each of the Leases with respect thereto) shall be made and paid on or before the thirtieth (30th) day following the date when the last amount due on account of such Percentage Rent shall have been paid by the tenant under its Lease with respect to the percentage rent lease year (as defined in each of the Leases) in which the Closing occurs. The amount to be apportioned shall be the total of the amounts collected by both Buyer and Seller as percentage rent for such percentage rent lease year. Seller’s portion thereof shall be an amount which bears the same ratio to the total percentage rent for the applicable percentage rent lease year as the number of days up to and including the date of Closing in such percentage rent lease year shall bear to the full number of days in such percentage rent lease year; and Buyer shall be entitled to the remaining portion. Buyer shall use its reasonable efforts to cause all Percentage Rent payments for the percentage rent lease years with respect to which percentage rent is to be apportioned between Buyer and Seller to be paid to Buyer by all tenants under the Leases; and Buyer shall divide and distribute the amounts so collected between Buyer and Seller in accordance with the provisions hereof. Each of Seller and Buyer shall deliver to the other (promptly after receipt) copies of all sales reports received by it from tenants under the Leases for the percentage rent lease years in which the date of Closing occurs.

Notwithstanding anything to the contrary contained in this Section 6.2.5., it is understood and agreed that if, at the time of Buyer’s receipt of percentage rent from a particular tenant, such tenant is in arrears for all or any portion if its 2005 pass-through charges (the “Pass Through Charge Arrearage”) then the Seller shall only be entitled to receive its portion of that amount of

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the percentage rent payment which exceeds the amount of the Pass-Through Charge Arrearage. If, on or before December 31, 2005, such tenant subsequently remits to Buyer the amount of the Pass-Through Charge Arrearage, then Buyer will pay to Seller the Seller’s remaining portion of the percentage rent payment withheld as aforesaid.

6.2.6.Seller shall be deemed to have retained and reserved to itself at Closing all claims against tenants or former tenants or their bankrupt estates for arrearages under any of the Leases existing at Closing or under any prior leases. The claims retained and reserved to Seller pursuant to the provisions of this Section 6.2.6 shall be limited to claims and actions for the collection of money, and at no time shall Seller have the right after the completion of Closing to seek ejectment of a tenant under any of the Leases or termination of a Lease.

6.3.Security Deposits.

At Closing Buyer shall receive a credit against the Purchase Price for the total sum of all tenant security deposits paid by tenants under the Leases.

6.4.Survival of Closing.

The obligations of Seller and Buyer in this Article 6, shall survive Closing.

ARTICLE 7
CASUALTY AND CONDEMNATION

7.1.Casualty.

7.1.1.Subject to the provisions of this Article 7, risk of loss or damage to the Real Property from fire or other casualty shall remain on Seller until Closing.

7.1.2.If any of the improvements included in the Real Property shall be destroyed or damaged prior to the Closing, and if either the estimated cost of repair or replacement exceeds Five Hundred Thousand Dollars ($500,000.), or the damage permits the termination of one or more of the Leases or, except to the extent affected by the matters described in Exhibit K, causes loss of parking or access, Buyer may, by written notice given to Seller within twenty (20) days after receipt of written notice from Seller of such damage or destruction, elect to terminate this Agreement, in which event the rights, duties, obligations, and liabilities of all parties hereunder shall immediately terminate and be of no further force or effect, and the Deposit shall forthwith be returned to Buyer. If Buyer does not elect to terminate this Agreement pursuant to this Section 7.1.2, or has no right to terminate this Agreement (because the damage or destruction does not exceed $500,000.00 and does not permit the termination of one or more of the Leases), or there is no loss of parking or access other than such as results from the matters described in Exhibit K hereof, and the sale of the Property is consummated, Purchaser shall receive an assignment of all insurance proceeds paid or payable to Seller by reason of such destruction or damage under Seller’s insurance policies (less amounts of insurance theretofore received and applied by Seller to costs actually incurred for restoration), together with a credit in the amount of Seller’s deductible. Seller shall not settle or release any damage or destruction claims without obtaining Buyer’s prior written consent in each case. All said insurance proceeds received by Seller by the date of Closing shall be paid by Seller to Buyer at Closing. In addition, at Closing, Seller shall pay over to Buyer and assign to Buyer, all proceeds of any rent loss insurance for the period of time commencing on the date of Closing. If the amount of said casualty or rent loss

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insurance proceeds is not settled by the date or Closing, Seller shall execute at Closing all proofs of loss, assignments of claim, and other similar instruments in order that Buyer receive all of Seller’s right, title, and interest in and under said insurance proceeds.

7.2.Condemnation.

If, on or prior to the Closing, any portion of the Property except as set forth on Exhibit I is subjected to a bona fide threat of condemnation by a body having the power of eminent domain or is taken by eminent domain or condemnation (or sale in lieu thereof), or if Seller has received notice that any condemnation action or proceeding with respect to the Property is contemplated by a body having the power of eminent domain, Seller shall give Buyer immediate written notice of such threatened or contemplated condemnation or of such taking or sale, and Buyer may by written notice to Seller given within thirty (30) days of the receipt of such notice from Seller, elect to cancel this Agreement. If Buyer chooses to cancel this Agreement in accordance with this Section 7.2, the rights, duties, obligations, and liabilities of the parties hereunder shall immediately terminate and be of no further force and effect. If Buyer does not elect to cancel this Agreement in accordance herewith, this Agreement shall remain in full force and effect and the sale of the Property contemplated by this Agreement, less any interest taken by eminent domain or condemnation, or sale in lieu thereof, shall be effected with no further adjustment and without reduction of the Purchase Price, and at the Closing, Seller shall assign, transfer, and set over to Buyer all of the right, title, and interest of Seller in and to any awards that have been or that may thereafter be made for such taking. At such time as all or a part of the Property is subjected to a bona fide threat of condemnation and Buyer shall not have elected to terminate this Agreement as hereinabove provided, Purchase shall be permitted to participate in the proceedings as if Buyer were a party to the action. Seller shall not settle or agree to any award or payment pursuant to condemnation, eminent domain, or sale in lieu thereof without obtaining Buyer’s prior written consent thereto in each case.

ARTICLE 8

ESCROW AGENT

8.1.Appointment of Escrow Agent.

The parties hereby designate Chicago Title Insurance Company to serve as escrow agent hereunder (herein “Escrow Agent”).

8.2.Duties of Escrow Agent.

Escrow Agent shall deposit the Deposit, as received, in a federally insured account in a bank or other financial institution as directed by Buyer in the name of Escrow Agent as escrow agent. Escrow Agent shall have the right to disburse the Deposit in accordance with the terms of this Agreement and any interest earned on the deposit shall be disbursed by the Escrow Agent as directed by the Purchaser. The Escrow Agent shall have no liability to any party on account of Escrow Agent’s failure to disburse the Deposit if a dispute shall have arisen with respect to the propriety of such disbursement; and, in the event of any dispute as to who is entitled to receive the Deposit the Escrow Agent may disburse it in accordance with the final order of a court of competent jurisdiction, or may deposit the Deposit with such a court pending a final decision of such controversy (and any reasonable attorney’s fees or legal costs paid or incurred by Escrow Agent shall be out-of-pocket disbursements for which the parties shall be liable to reimburse

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Escrow Agent). The parties hereto further expressly agree that Escrow Agent shall not be liable for failure of any depository and shall be otherwise liable only in the event of Escrow Agent’s gross negligence or willful misconduct.

8.3.Survival of Termination.

Escrow Agent’s obligations to disburse or refund the Deposit, the obligation of the parties with respect to the reimbursement of Escrow Agent’s out-of-pocket expenses and the other provisions of this ARTICLE 8 shall survive any termination of this Agreement.

ARTICLE 9

MISCELLANEOUS

9.1.Brokerage.

Seller and Buyer represent and warrant to each other that neither has dealt with a broker in connection with this transaction except as set forth below. Seller and Buyer each warrant and represent to the other that, except as set forth below, no agent, broker, or finder has acted for the warranting party in connection with this Agreement or is entitled to compensation on account of the transactions contemplated hereby. Seller acknowledges that it has utilized the services of Trammell Crow Company in connection with this transaction, and shall pay all brokerage commissions for the services of Trammell Crow Company. The obligations of the parties pursuant to this Section 9.1 shall survive Closing hereof and any termination hereof.

9.2.Remedies Upon Default.

9.2.1.Buyer and Seller agree that it would be impracticable and difficult to ascertain the actual damages which would be suffered by Seller if Buyer wrongfully fails to consummate the purchase and sale contemplated herein. Buyer and Seller have carefully considered the loss to Seller occasioned by taking the Property off the market as a consequence of the negotiation and execution of this Agreement, the Seller’s performance hereunder, and the other damages, general and special, which Buyer and Seller realize and recognize Seller will sustain but which cannot be calculated with certainty. Based on all those considerations, Buyer and Seller have agreed that the damage to Seller from an uncured breach by Buyer of its obligation to complete Closing would reasonably be expected to equal the amount of the Deposit. Accordingly, if all conditions precedent to Buyer’s obligation to consummate the transactions herein contemplated have been waived by Buyer or satisfied, but Buyer does not timely complete Closing, and if Buyer fails to cure such breach or default within ten (10) days after written notice thereof from Seller, the Seller shall as its sole and exclusive remedy, be entitled to be paid, and to retain, the Deposit as full and complete liquidated damages. Thereafter, this Agreement shall terminate, and the parties hereto shall have no further rights or obligations to each other under this Agreement, either at law or in equity or otherwise, except that the obligations of Buyer pursuant to the provisions of Section 2.1.1(c)(ii) shall continue in full force and effect.

9.2.2.If all conditions precedent to Seller’s obligations to consummate the transactions herein contemplated have been waived by Seller or satisfied and if Buyer has materially performed its covenants and obligations and is not otherwise in material default hereunder, but Seller has breached its covenants, warranties, representations, agreements, undertakings, or obligations or is otherwise in default hereunder and, as a result, is unable to consummate the

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purchase and sale contemplated herein at Closing and if Seller fails to cure such breach or default within thirty (30) days after notice thereof from Buyer, or if all conditions precedent to Buyer’s obligation to consummate the transactions herein contemplated have not been waived by Buyer or satisfied, then the sole and exclusive remedies of Buyer shall be either to terminate this Agreement by giving Seller written notice of termination, in which event the Deposit shall be forthwith returned to Buyer, and the parties hereto shall have no further rights or obligations to each other under this Agreement, either at law or in equity or otherwise, or to waive such breach, failure to satisfy condition(s) precedent or default and bring an action against Seller for specific performance of its obligations hereunder to sell and convey the Property to Buyer.

9.3.Indemnification.

9.3.1.Buyer and Seller each agree to indemnify and hold the other harmless from and against all claims, demands, debts, dues, liabilities, actions, causes of action, costs, and expenses (including reasonable attorneys’ fees) that may be asserted against or paid or incurred by the indemnified party for, on account of, or in connection with any breach by the indemnifying party of its payment obligations and/or warranties and representations contained in Section 9.1.

9.3.2.The indemnity contained in this Section 9.3 shall survive Closing or any sooner termination of this Agreement.

9.4.Amendment.

This Agreement may not be modified, amended, or discharged, and no provision hereof may be waived, except by an instrument in writing and duly executed by the party against whom enforcement of the amendment, modification, discharge, or waiver is sought.

9.5.Notices.

All notices, waivers, approvals, consents, demands, requests, or other communications (collectively, “Notices”) which may be or are required to be given, served, or sent by any party hereto to the other party hereto pursuant to, or in connection with, this Agreement shall be in writing and shall be hand delivered, sent by Federal Express, or similar overnight service, or mailed by first class, registered, or certified mail, return receipt requested, or transmitted by telegram, telex, or telecopy, addressed as follows:

If to Seller:Eastern Retail Holdings Limited

Partnership

1600 Market Street, Suite 1310

Philadelphia, PA 19103-7501

att: Benjamin A. Suit

Fax #215-446-8101

With a copy to:John S. Randolph, Jr., Esq.

555 Croton Road

Suite 120

King of Prussia, PA 19406-3176

Fax #610-337-8281

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If to Buyer:Inland Real Estate Acquisitions, Inc.

501C Manatee Avenue West

Holmes Beach, Florida 34217

Attn: Steven Sanders

Phone: (941) 779-1000

Fax: (941) 779-2000

With a copy to:The Inland Real Estate Group, Inc.

Law Department

2901 Butterfield Road

Oak Brook, Illinois 60523

Attn: Dennis K. Holland, Esq.

Phone: (630) 218-8000

Fax: (630) 218-4900

If to Escrow Agent:Chicago Title Insurance Company

171 N. Clark Street

Chicago, Illinois

Attn: Ms. Nancy Castro

Phone: (312) 223-3909

Fax: (312) 223-2108

Each party may designate by Notice in writing, at least five (5) business days before its effective date, a new address or addressee to which any Notice may thereafter be given, served, or sent. Each Notice which is given, served, or sent in the manner specified in this Section 9.5 shall be deemed to have been given and received as of the date it is delivered or as of the date on which delivery is refused or unclaimed by the addressee upon presentation. Notices may be given, served or sent by registered or certified mail, by express mail delivery or by facsimile transmission.

9.6.Assignment.

Buyer shall have the right to assign this Agreement without Seller’s consent to an entity in which either it, Inland Western Retail Real Estate Trust, Inc., or an affiliate of either is a managing member or general partner. Otherwise, Buyer shall have no right to assign this Agreement unless Seller’s prior written consent is obtained.

9.7.Parties Bound.

All terms, conditions, covenants, warranties, representations, agreements, undertakings, and obligations hereunder shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors, and assigns.

9.8.Time of Essence.

TIME IS OF THE ESSENCE OF THIS AGREEMENT.

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9.9.Waiver.

Neither the waiver by either of the parties hereto of a breach of or a default under any of the provisions of this Agreement, nor the failure of either of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any of such provisions, rights, or privileges hereunder.

9.10.Construction.

Buyer and Seller acknowledge that they both participated equally in the negotiation and drafting of this Agreement and that, accordingly, no court construing this Agreement shall construe it more stringently against one of such parties than against the other.

9.11.Entire Agreement.

This Agreement, including the Exhibits which are an integral part hereof, constitutes the entire agreement between Seller and Buyer with respect to the transactions contemplated herein, and it supersedes all prior oral or written agreements, commitments, or understandings with respect to the matters provided for herein. No agreements, representations, or warranties have been made by Buyer or Seller except as specifically set forth in this Agreement, and in particular, no oral or written expression, or non-verbal conduct of a person intended by such person as a substitute for oral or written expression, will be attributed to Buyer or Seller as an agreement or a warranty or representation, except as specifically set forth in this Agreement. The provisions of this Section 9.11 shall survive Closing or a termination of this Agreement.

9.12.Pronouns.

All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the person or entity may require.

9.13.Headings.

Article and Section headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof.

9.14.Applicable Law.

This Agreement shall be given effect and construed by application of the law of the Commonwealth of Pennsylvania without regard to principles of conflicts of laws.

9.15.Covenant Against Recording.

This Agreement shall not be recorded in any public record, and neither party shall cause to be recorded a notice of the existence of this Agreement, or any other writing asserting an interest in the Property prior to the Closing. Any recordation in violation of this Section 9.15 shall relieve the non-recording party from any further obligation, and shall entitle that party to resort to the remedies provided in Section 9.2.

9.16.Computation of Time.

In computing any time for giving Notices or other period of time prescribed or allowed by any provision of this Agreement, the day of the act, event, or default from which the designated

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period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or a legal holiday in Philadelphia, Pennsylvania in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday. Unless otherwise specified herein, all notice or other periods expire as of 5:00 p.m., eastern standard time on the last day of the notice or other period.

9.17.Counterparts.

This Agreement may be executed in counterparts by the parties, each of which shall be deemed an original document, and all of which together shall be considered a single document.

9.18.Waiver of Tender.

The tender of an executed Deed by Seller and the tender by Buyer of the Purchase Price at Closing are hereby mutually waived; but nothing herein contained shall be construed as a waiver of Seller’s obligation to deliver the Deed and/or of the concurrent obligation of Buyer to pay the Purchase Price at Closing.

9.19.Condition of Property.

Except as explicitly otherwise provided in the Agreement, the Property shall be conveyed to Buyer “AS IS, WHERE IS”, without any representation or warranty of title or conditions of the Property, either express or implied.

9.20.Withholding on Sales of Real Property

Seller is hereby advising Buyer that South Carolina law and Georgia law will require Buyer to withhold from the sales proceeds an amount equal to state income taxes from the sale of the Property, and to remit the withheld amount to the applicable state taxing authorities unless the Seller can qualify as a “deemed resident” of the state in question. Seller and Buyer will cooperate with each other to assure that the withholding requirements, if any, of each state are complied with.

(Signature Page on Following Page)

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IN WITNESS WHEREOF, Seller and Buyer have caused this Agreement to be executed and delivered as of the date first above written.

WITNESSES:	SELLER:	EASTERN RETAIL HOLDINGS LIMITED PARTNERSHIP
		By:	LMRES Real Estate Advisers, Inc., general partner
			By:
		Vice President
	BUYER:	INLAND REAL ESTATE ACQUISITIONS, INC.
		By:	/s/ [ILLEGIBLE]
/s/ [ILLEGIBLE]		Its:	President
	ESCROW	CHICAGO TITLE INSURANCE
	AGENT:	COMPANY
		By:
		Its:

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EX-10.500

Exhibit 10.500

ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT

For good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned, INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation, (“Assignor”) hereby assigns to INLAND WESTERN MARKHAM CORP., a New Brunswick corporation, (“Assignee”) all of its right, title and interest as a party to that certain Purchase and Sale Agreement (the “Purchase Agreement”) by and between INLAND REAL ESTATE ACQUISITIONS, INC., or its Designees, (collectively, “Purchaser”), and 1001674 ONTARIO, INC. and 1001675 ONTARIO, INC. (collectively, “Seller”), dated January 25, 2005 for purchase and sale of certain real property commonly known as 101 McNabb Street, Markham, Ontario, Canada (the “Property”).

By execution hereof by Assignee, Assignee for itself and its successors and assigns hereby accepts the assignment and assumes all of the obligations of Assignor under the Purchase Agreement.

This Assignment is effective as of the 25^thday of January, 2005.

ASSIGNOR:	INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
	By:		/s/ G. Joseph Cosenza
			G. Joseph Cosenza
	Its:		President
ASSIGNEE:	INLAND WESTERN MARKHAM CORP., a New Brunswick corporation
	By:	/s/ [ILLEGIBLE]
	Its:	asst. Secretary

EX-10.501

Exhibit 10.501

PURCHASE AND SALE AGREEMENT

AMONG

1001674 ONTARIO, INC.,

and

1001675 ONTARIO, INC.,

collectively, SELLER

AND

INLAND REAL ESTATE ACQUISITIONS, INC.,

PURCHASER.

DATED AS OF JANUARY 25, 2005

TABLE OF CONTENTS

1.	SALE OF PROPERTY
2.	PURCHASE PRICE
3.	APPORTIONMENTS
4.	CLOSING DATE/ELECTRONIC REGISTRATION
5.	PERMITTED ENCUMBRANCES
6.	TITLE
7.	PROPERTY NOT INCLUDED IN SALE
8.	REPRESENTATIONS AND WARRANTIES
9.	CLOSING COSTS
10.	CONDITIONS PRECEDENT TO CLOSING
11.	DOCUMENTS TO BE DELIVERED BY SELLER AT CLOSING
12.	DOCUMENTS AND PAYMENTS TO BE DELIVERED BY PURCHASER AT CLOSING
13.	OPERATION OF THE PROPERTY PRIOR TO THE CLOSING DATE
14.	AS-IS
15.	BROKER
16.	CASUALTY; EXPROPRIATION
17.	REMEDIES
18.	INTENTIONALLY DELETED
19.	INTENTIONALLY DELETED
20.	INTENTIONALLY DELETED
21.	ASSIGNMENT
22.	INTENTIONALLY DELETED
23.	NOTICES
24.	PROPERTY INFORMATION AND CONFIDENTIALITY
25.	MISCELLANEOUS

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EXHIBITS:
A.	INTENTIONALLY DELETED
B.	SELLER’S EQUIPMENT AND PERSONALTY
C.	DOCUMENTS TO WHICH SELLER OR AMEX CANADA INC. IS A PARTY
D.	FORM OF SNDA
E.	FORM OF DEED
F.	FORM OF LEASE
G.	INCOME TAX ACT SECTION 116 DECLARATION
SCHEDULES:
1	DESCRIPTION OF THE LAND
2	PERMITTED ENCUMBRANCES
8(4)(2) MATERIALLY CONTRAVENED DOCUMENTS
8(4)(5) DUE DILIGENCE ITEMS DELIVERED TO PURCHASER

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TABLE OF DEFINED TERMS

The following capitalized terms are defined in the respective Section of the Agreement identified below:

•“Agreement” - - as such term is defined in the opening paragraph hereof.

•“CITIGROUP” - - as such term is defined in Section 6(1)(i) hereof.

•“Closing” - - as such term is defined in Section 4 hereof.

•“Closing Date” - as such term is defined in Section 4 hereof.

•“Current Lease” - as such term is defined in the Recitals hereof.

•“Deed” - - as such term is defined in Section 11(1) hereof.

•“Environmental Laws” - as such term is defined in Section 8(2) hereof.

•“Excluded Equipment” - as such term is defined in Section 7 hereof.

•“Exculpated Parties” - as such term is defined in Section 8(1) hereof.

•“Governmental Action” - as such term is defined in Section 8(4)(3) hereof.

•“Governmental Authority” - as such term is defined in Section 8(4)(3) hereof.

•“Guarantor” - - as such term is defined in Section 8(4)(2)(B) hereof.

•“Involuntary Liens” as such term is defined in Section 6(2) hereof.

•“Hazardous Substances” - as such term is defined in Section 14(1) hereof.

•“Lease” - - as such term is defined in Section 11(3) hereof.

•“Permitted Encumbrances” - as such term is defined in Section 5 hereof.

•“Property” - - as such term is defined in the recitals hereof.

•“Property Information” - as such term is defined in Section 24(4) hereof.

•“Purchase Price” - as such term is defined in Section 2 hereof.

•“Purchaser” - - as such term is defined in the opening paragraph hereof.

•“Purchaser’s Representatives” - as such term is defined in Section 24(4) hereof.

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•“Seller” - - as such term is defined in the opening paragraph hereof.

•“Seller’s Affiliates” - as such term is defined in Section 25(5) hereof.

•“Seller’s Solicitors” - as such term is defined in Section 4(1) hereof.

•“Survey” - - as such term is defined in Section 6(1)(i) hereof.

•“Surviving Obligations” - as such term is defined in Section 25(19) hereof.

•“Taking” - - as such term is defined in Section 16(2) hereof.

•“Termination Obligations” as such term is defined in Section 17(1) hereof.

•“Third Party Reports” - as such term is defined in Section 8(1) hereof.

•“Title Commitments” - as such term is defined in Section 6(1)(i) hereof.

•“Title Company” - as such term is defined in Section 6(1)(i) hereof.

•“Title Due Diligence Period” - as such term is defined in Section 6(1)(ii) hereof.

•“Title Objection Letter” - as such term is defined in Section 6(1)(i) hereof.

•“Transfer Tax Payments” - as such term is defined in Section 9 hereof.

•“Transfer Tax Return” - as such term is defined in Section 9 hereof.

•“Unacceptable Encumbrances” - as such term is defined in Section 6(1)(i) hereof.

•“US Properties PSA” - as such term is defined in the recitals hereof.

•“Voluntary Liens” as such term is defined in Section 6(2) hereof.

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PURCHASE AND SALE AGREEMENT

PURCHASE AND SALE AGREEMENT (this “Agreement”) dated as of the 25th day of January, 2005, by and among 1001674 ONTARIO, INC. and 1001675 ONTARIO, INC., each being a corporation governed by the laws of the Province of Ontario, and each having an office at 101 McNabb Street, Markham, Ontario L3R 4H8 (individually and collectively, the “Seller”), and INLAND REAL ESTATE ACQUISTIONS, INC., a corporation governed by the laws of the State of Illinois (the “Purchaser”), having an office at 2901 Butterfield Road, Oak Brook, Illinois 60523.

W I T N E S S E T H

WHEREAS, 1001674 Ontario, Inc. is the only owner of registered title to the parcel of land described on Schedule “1” attached hereto and the buildings and improvements located thereon (such land, buildings and improvements being collectively referred to herein as the “Property”) and 1001675 Ontario, Inc. is the only owner of beneficial title to the Property; and

WHEREAS, Seller’s affiliate, Amex Canada Inc., currently leases the Property from Seller (the “Current Lease”); and

WHEREAS, Seller and Purchaser now desire to enter into an agreement whereby, subject to the terms and conditions contained herein, (i) Seller agrees to sell the Property to Purchaser or its affiliated assignee and Purchaser’s affiliated assignee shall purchase the Property from Seller and (ii) Amex Canada Inc. shall lease the Property from Purchaser’s affiliated assignee commencing immediately upon closing of such purchase; and

WHEREAS, Purchaser intends to assign this Agreement (subject to Section 21 hereof) to its affiliate, Inland Western Markham Corp., a corporation governed by the laws of the Province of New Brunswick (“Purchaser’s Designee”); and

WHEREAS, on December 16, 2004, Seller’s affiliates, IDS Property Casualty Insurance Company, FRC West Property, L.L.C. and American Express Travel Related Services Company, Inc., as seller, and Purchaser, as purchaser, entered into that certain Purchase and Sale Agreement for various properties located in the United States of America (the “US Properties PSA”).

NOW, THEREFORE, in consideration of ten ($10.00) dollars and the mutual covenants and agreements hereinafter set forth, and intending to be legally bound hereby, it is hereby agreed as follows:

1.SALE OF PROPERTY.

Seller agrees to sell and convey to Purchaser, and Purchaser agrees to purchase from Seller, at the price and upon the terms and conditions set forth in this Agreement, the Property.

2.PURCHASE PRICE.

(1)The purchase price to be paid by Purchaser to Seller for the Property (the “Purchase Price”) is Forty Two Million and No/100 ($42,000,000.00) Dollars payable at the Closing by bank wire transfer of immediately available funds to

Seller’s account or to the account or accounts of such other party or parties as may be designated by Seller on or at least two (2) business days prior to the Closing Date. Any payment made by wire transfer shall not be deemed to have been made until confirmed as received by Seller’s bank and credited to Seller’s account.

(2)If there shall be any real property tax or assessment appeals with respect to the period prior to Closing allocable to the Property, Seller may, at its option, and at its sole cost and expense, continue the prosecution of such appeals and take related action which Seller reasonably deems appropriate in connection therewith. Purchaser shall have the right, at its sole cost and expense, to be present at any hearings in connection with such proceedings with respect to the 2004 calendar year real property taxes. Purchaser shall cooperate with Seller in connection with such proceedings and appeals and collection of any refund, credit or rebate of real property taxes paid relating to the time period prior to the Closing, but shall not be obligated to incur any expense as a result thereof. With respect to the period prior to Closing, Seller owns and retains all right, title and interest in and to such real property tax and tax assessment appeals and all rebates, credits or refunds, and all amounts payable in connection therewith or resulting from any statutory or legislative change shall be paid directly to Seller by the applicable authorities. With respect to the period prior to Closing, if such refund, rebate or credit or any part thereof is received by Purchaser, or otherwise credited to Purchaser or to the tax roll for the Property, Purchaser shall promptly pay such amount to Seller unless Purchaser or the lessor under the Lease is obligated to pay such amount to the tenant under the Lease. Purchaser agrees that it shall make available to Seller copies of all correspondence and other documentation relating to the reassessment of real property taxes relating to the Property, which comes into the possession or control of Purchaser subsequent to the Closing and relates to realty taxes for the period prior to the Closing.

The provisions of this Section 2(2) shall survive the Closing.

(3)Purchaser shall forthwith restore any damage to the Property resulting from any audits, inspections or tests performed for or on behalf of Purchaser at the Property.

3.APPORTIONMENTS.

Insofar as Seller’s affiliate and Purchaser’s Designee will be entering into an absolutely net and carefree Lease at the Closing with respect to the Property, there shall not be any apportionments or adjustments between Seller or Purchaser with respect to income and expenses for the Property. The provisions of this Section 3 shall survive the Closing.

4.CLOSING DATE/ELECTRONIC REGISTRATION.

(1)The delivery of the Deed and the consummation of the transactions contemplated by this Agreement (the “Closing”) shall take place at the offices of Fasken Martineau DuMoulin LLP, Toronto, Ontario (the “Seller’s Solicitors”) at 10 a.m.

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local time on or about January 25, 2005 (the “Closing Date”), Time shall be of the essence with respect to the obligations of Purchaser to close the sale contemplated by this Agreement on the Closing Date and execute and deliver a Lease for the Property on the Closing Date. The parties agree that with respect to ancillary closing documents (i.e., all documents to be delivered at Closing pursuant to this Agreement except the Lease, the SNDA, the estoppel, the Notice of Lease, the Deed and any other closing documents that the parties hereto agree to record) required to be delivered on the Closing Date, executed facsimile copies of such ancillary closing documents shall be acceptable; provided that originals of such ancillary closing documents shall be delivered within two (2) business days after the Closing Date.

(2)In the event that the electronic registration system (hereinafter referred to as “TERS”) is operative in the applicable Land Registry Office in which the Property is registered, the following provisions shall prevail, namely:

(a)the Purchaser shall be obliged to retain a lawyer in good standing with the Law Society of Upper Canada to represent the Purchaser in connection with the completion of this transaction, and shall authorize and instruct such lawyer to enter into an escrow closing agreement with the Seller’s Solicitors on the latter’s standard form (hereinafter referred to as the “Escrow Registration Agreement”), establishing the procedures and timing for completing this transaction;

(b)the delivery and exchange of documents and monies and the release thereof to the Seller and the Purchaser, as the case may be:

(i)shall not occur contemporaneously with the registration of the Transfer/Deed; and

(ii)shall be governed by the Escrow Registration Agreement, pursuant to which the solicitor receiving the documents and/or certified funds will be required to hold the same in escrow, and will not be entitled to release the same except in strict accordance with the provisions of the Escrow Registration Agreement.

5.PERMITTED ENCUMBRANCES. Subject to Purchaser’s review in accordance with Section 6(1) below, Seller shall convey and Purchaser shall accept title to the Property subject to those instruments, documents and matters set forth on Schedule “2” annexed hereto and made a part hereof (collectively the “Permitted Encumbrances”); provided, however, that upon the request of either party hereto, Schedule 2 may be revised after the execution of this Agreement so long as any subsequent revisions to the Permitted Encumbrances schedule (i) are to include items of the same type and category as those items set forth on Schedule 2 attached to this Agreement as of the date of the execution of this Agreement, (ii) are reasonably acceptable to both parties, (iii) do not create any encroachments or violate any restrictions of record or covenants of record for the applicable Property(ies) other than encroachments with respect to which Title Company has agreed to insure over or restrictions of record or covenants of record that do not interfere with the use or enjoyment of the Property and for which the Title Company has

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agreed to issue a “Comprehensive 1 Endorsement” or a “Restrictions Endorsement”, in either event confirming “no violations”, and (iv) do not occur after the Closing Date.

6.TITLE.

(1)(i)Prior to the date of this Agreement, Purchaser has received (x) a title commitment and the related underlying documents (together, “Title Commitment”) for the Property from the Title Company and (y) a survey as more particularly described on Schedule 2 as item 1(f) (the “Survey”, together with the Title Commitment, the “Title Items”). Purchaser has provided Seller with a notice of Purchaser’s comments and objections to the Title Items (a “Title Objection Letter”). Purchaser and Seller have, and shall continue, in good faith, to address Purchaser’s comments and attempt to eliminate Purchaser’s objections as contained in the Title Objection Letter.

(ii)In the event that, prior to the Closing Date, Purchaser and Seller have not, to the reasonable satisfaction of Purchaser, addressed Purchaser’s comments and/or eliminated Purchaser’s objections to the Title Items as contained in the Title Objection Letter, or (y) Purchaser receives an updated Title Commitment which indicates the existence of any liens, encumbrances, or other defects or exceptions in or to title to the Property other than Permitted Encumbrances and those identified on the initial Title Items (collectively, the “Unacceptable Encumbrances”), subject to which Purchaser is unwilling to accept title, then provided Purchaser gives Seller notice of the same within one (1) business day after receipt of such updated Title Item, Seller shall undertake to eliminate such Unacceptable Encumbrances. Purchaser hereby waives any right Purchaser may have to advance as objections to title or as grounds for Purchaser’s refusal to close this transaction any Unacceptable Encumbrance with respect to which Purchaser has not notified Seller prior to the Closing (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unacceptable Encumbrance as an objection to title or as a ground for Purchaser’s refusal to close this transaction). Seller, in its sole discretion, may adjourn the Closing one or more times for up to sixty (60) days in the aggregate in order to attempt, in good faith, to eliminate Unacceptable Encumbrances. Purchaser shall cooperate with Seller and shall also use its reasonable good faith efforts to eliminate Unacceptable Encumbrances. Seller shall cooperate with Purchaser so that Purchaser may obtain title insurance from Chicago Title Insurance Company (the “Title Company”); provided, however, in no event shall Seller be required to spend any money to satisfy any conditions for the Title Company that Seller would not have been required to satisfy for LandAmerica and in no event shall extensions of time be granted in this Section 6(1) for new searches or commitments that duplicate what is made available to Purchaser by LandAmerica. The parties hereto acknowledge and agree that all fees due to the Title Company and to LandAmerica have been paid in full.

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(2)Notwithstanding anything to the contrary set forth in this Section 6 or elsewhere in this Agreement, Seller shall not be obligated to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Title Item objected to by Purchaser or Unacceptable Encumbrances not waived by Purchaser or to arrange for title insurance insuring against enforcement of such Title Items or Unacceptable Encumbrances against, or collection of the same out of, the Property; except that Seller shall (A) either (i) satisfy or (ii) cause a reputable title company to insure over (it being agreed that Purchaser shall be required to accept such “cure” from any reputable title company agreeing to insure over such matter) (x) mortgages voluntarily imposed by Seller, (y) judgments against Seller or (z) other liens voluntarily imposed by Seller (excluding mechanic’s liens) (collectively, “Voluntary Liens”) secured by or affecting the Property which can be satisfied by payment of liquidated amounts and (B) with respect to (x) judgments as to which Seller is disputing or contesting, and (y) liens not voluntarily imposed by Seller (collectively, “Involuntary Liens”) affecting the Property which can be satisfied by payment of liquidated amounts, Seller shall be obligated to spend, with respect to the Property, an amount not to exceed the lesser of (i) two (2%) percent of the Purchase Price or (ii) $500,000.00 to satisfy or cause a reputable title company to insure over (it being agreed that Purchaser shall be required to accept such “cure” from any reputable title company agreeing to insure over such matter) such Involuntary Lien. Without limiting the generality of the preceding provisions of this Section 6(2), for the purposes of this Agreement (including, without limitation, Sections 6(1) and 17(1)), Seller’s failure or refusal to bring any action or proceeding, to make any payments or to otherwise incur any expense (except for Seller’s obligation to satisfy or cause a reputable title insurance company to insure over such Voluntary Liens and Involuntary Liens as aforesaid) in order to eliminate Unacceptable Encumbrances not waived by Purchaser or to arrange for such title insurance shall not be a default by Seller hereunder (willful or otherwise) and Purchaser shall not be entitled to any damages in connection therewith. Further, if Purchaser elects not to close the transaction solely due to Seller’s failure to cure or cause a reputable title company to insure over any Voluntary Liens or Involuntary Liens as aforesaid, such failure shall not be a default by Seller hereunder, however, Seller shall reimburse Purchaser for its actual, reasonable third party costs incurred in connection with this Agreement in an amount that, when aggregated with the reasonable third party costs to which the “Purchaser” under the US Properties PSA would be entitled under Section 6(2) of that agreement, does not exceed $100,000. With respect to any Involuntary Lien, Seller shall not be permitted to elect to reimburse Purchaser for its actual, reasonable third party costs incurred in connection with this Agreement in lieu of Seller’s obligation to attempt to cure an Involuntary Lien as aforesaid, provided, however, if Seller, in its reasonable opinion reasonably exercised, believes that the expenditure of the lesser of (i) two (2%) percent of the Purchase Price or (ii) $500,000, will not “cure” such Involuntary Lien, then Seller shall not be obligated to expend such sums, and Seller shall remain liable to reimburse Purchaser for its actual reasonable third party costs in an amount that, when aggregated with the reasonable third party costs to which the “Purchaser” under the US Properties PSA would be entitled under Section 6(2) of that agreement, does not exceed $100,000. Notwithstanding anything contained in this Agreement to the contrary, in no event shall Seller be liable for any damages, cost and/or expenses, including,

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without limitation, damages suffered by Purchaser or any of Purchaser’s affiliates resulting from, or in any way related to, the expiration of Purchaser’s “rate lock”, which the parties acknowledge expired on December 17, 2004. With respect to mechanic’s liens, Seller shall address mechanic’s liens as provided for in the Lease.

(3)If on the Closing Date there are any Liens or other encumbrances, subject to Sections 6(2) and 6(5), which Seller must pay or discharge in order to convey to Purchaser such title as is herein provided to be conveyed, Seller may use any portion of the Purchase Price to satisfy the same, provided:

(i)Seller shall deliver to Purchaser or the Title Company at the Closing, instruments in recordable form and sufficient to satisfy such Liens or other encumbrances of record together with the cost of recording or filing said instruments; or

(ii)Seller, having made arrangements with the Title Company, shall deposit with said company sufficient monies acceptable to said company to insure the obtaining and the recording of such satisfactions; and

(iii)The existence of any such Liens or other encumbrances shall not be deemed objections to title if Seller shall comply with the foregoing requirements.

(4)If on the Closing Date there shall be security interests filed against the Purchaser under the Personal Property Security Act (Ontario) specifically referencing the Property, the same shall not constitute objections to title provided Seller executes and delivers an officer’s certificate to the effect either (i) that the personal property (as defined in the Lease) covered by said security interests is no longer in or on the Property, or (ii) if such personal property is still in or on the Property, that it has either (x) been fully paid for, (y) is not the personal property of Seller or (z) would qualify as “Lessee’s Equipment or Personalty” under the Lease.

(5)In the event that a discharge of any mortgage or charge held by a Chartered Bank, Trust Company, Credit Union or Insurance Company and which is not to be assumed by the Purchaser on completion, is not available in registrable form on Closing, the Purchaser agrees to accept the Seller’s Solicitor’s personal undertaking to obtain, out of the closing funds, a discharge or cessation of charge in registrable form and to register same on title within a reasonable period of time (not to exceed 60 days) after completion, provided that on or before Closing the Seller shall provide to the Purchaser a mortgage statement prepared by the mortgagee setting out the balance required to obtain the discharge together with a direction executed by the Seller directing payment to the mortgagee of the amount required to obtain the discharge out of the balance due on completion.

7.PROPERTY NOT INCLUDED IN SALE.

Notwithstanding anything to the contrary contained herein, it is expressly agreed by the parties hereto that any alterations at, on or in any of the Property that (i) are readily removable without unrepaired damage to the Property, (ii) do not reduce the value, economic life or utility of the Property if removed, (iii) are not integral to the structure or operation of the Property, and (iv) are not required for the lawful occupancy of the

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Property shall not be included in the Property to be sold to Purchaser hereunder. In addition, Seller’s Equipment and Personalty as described on Exhibit “B”, attached hereto and made a part hereof, shall also not be included in the Property to be sold to Purchaser hereunder. Seller shall assign to Amex Canada Inc. at Closing all of Seller’s right, title and interest in the property described above in this paragraph (including but not limited to Seller’s Equipment and Personalty described on Exhibit “B” attached hereto) as not being sold to Purchaser hereunder.

8.REPRESENTATIONS AND WARRANTIES.

(1)Purchaser expressly acknowledges that, except as expressly set forth in this Agreement or in the Lease, neither Seller, nor any person acting on behalf of Seller, nor any person or entity which prepared or provided for any of the materials reviewed by Purchaser in conducting its due diligence, nor any direct or indirect officer, director, partner, shareholder, employee, agent, representative, accountant, advisor, attorney, principal, affiliate, consultant, contractor, successor or assign of any of the foregoing parties (Seller, and all of the other parties described in the preceding portions of this sentence (other than (i) Purchaser and (ii) any parties who have issued writings which specifically state that Purchaser is entitled to rely upon the accuracy, truthfulness or completeness thereof or delivered a Third Party Report) shall be referred to herein collectively as the “Exculpated Parties”) has made any oral or written representations or warranties, whether express or implied, by operation of law or otherwise, with respect to the Property (including, without limitation, the environmental condition of the Property), the zoning and other laws, regulations and rules applicable thereto or the compliance by the Property therewith, the revenues and expenses generated by or associated with the Property, or otherwise relating to the Property or the transactions contemplated herein. Without limiting the generality of the foregoing, Purchaser has not relied on any representations or warranties, and neither Seller nor any of Seller’s Affiliates, nor any of their agents or representatives has or is willing to make any representations or warranties, express or implied, other than as may be expressly set forth herein and in the Lease, as to (i) the status of title to the Property, (ii) existing lease agreements, (iii) the current or future real estate tax liability, assessment or valuation of the Property; (iv) the potential qualification of the Property for any and all benefits conferred by any laws whether for subsidies, special real estate tax treatment, insurance, mortgages or any other benefits, whether similar or dissimilar to those enumerated; (v) the compliance of the Property in its current or any future state with applicable laws or any violations thereof, including, without limitation, those relating to access for the handicapped, environmental or zoning matters, and the ability to obtain a change in the zoning or a variance in respect to the Property non-compliance, if any, with zoning laws; (vi) the nature and extent of any right-of-way, lease, possession, lien, encumbrance, license, reservation, condition or otherwise; (vii) the availability of any financing for the purchase, alteration, rehabilitation or operation of the Property from any source, including, without limitation, any government authority or any lender; (viii) the current or future use of the Property, including, without limitation, the Property’s use for commercial, manufacturing or general office purposes; (ix) the present and future condition and operating state of any personal property and the present or future structural and physical condition of the improvements on the Property, its suitability for rehabilitation or renovation, or the need for expenditures for capital improvements,

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repairs or replacements thereto; (x) the viability or financial condition of any tenant; (xi) the status of the leasing market in which the Property is located; or (xii) the actual or projected income or operating expenses of the Property.

(2)Purchaser expressly acknowledges that it is acquiring the Property based solely on its own independent investigation and inspection of the Property and not in reliance on any information provided by Seller, or any of the other Exculpated Parties, except for the representations expressly set forth herein or in the Lease. Notwithstanding anything to the contrary herein, as used herein the term “Exculpated Parties” shall not include any parties or entities who have prepared any of the Third Party Reports, but in no event shall this sentence be deemed to exclude Seller nor any direct or indirect officer, director, partner, shareholder or employee of Seller as an Exculpated Party. “Third Party Reports” shall mean all Environmental Reports (as defined in the Lease), appraisals, certificates, reports, assessments, studies or other information delivered to Purchaser for its review with respect to the Property. Purchaser acknowledges that Seller has afforded Purchaser the opportunity for full and complete investigations, examinations and inspections of the Property and all Property Information. Purchaser further acknowledges and agrees that (i) the Property Information delivered or made available to Purchaser and Purchaser’s Representatives by Seller or Seller’s Affiliates, or any of their agents or representatives may have been prepared by third parties and may not be the work product of Seller and/or any of Seller’s Affiliates; (ii) neither Seller nor any of Seller’s Affiliates has made any independent investigation or verification of, or has any knowledge of, the accuracy or completeness of, the Property Information; (iii) the Property Information delivered or made available to Purchaser and Purchaser’s Representatives is furnished to each of them at the request, and for the convenience of, Purchaser; (iv) Seller expressly disclaims any representations or warranties with respect to the accuracy or completeness of the Property Information prepared by either Seller or any third-party vendors and Purchaser releases Seller and Seller’s Affiliates, and their agents and representatives, from any and all liability with respect thereto; and (v) any further distribution of the Property Information is subject to Section 24. Purchaser and Seller hereby agree that this paragraph does not constitute a waiver of any Purchaser’s rights or Seller’s obligations that arise in connection with the offering memorandum covering the subject matter of and issued in connection with this Agreement.

(3)This Agreement, as written, contains all the terms of the agreement entered into between the parties as of the date hereof, and Purchaser acknowledges that neither Seller nor any of Seller’s Affiliates, nor any of their agents or representatives, nor any broker has made any representations or held out any inducements to Purchaser, and Seller hereby specifically disclaims any representation, oral or written, past, present or future, other than those specifically set forth in Sections 8 and 15 and in the Lease. Purchaser acknowledges and agrees that Seller’s liability with respect to Seller’s representations and warranties in this Agreement and the Leases shall be limited to Seller’s interest in the Property, and Purchaser shall have no recourse against Seller, Seller’s Affiliates, or their respective directors, shareholders, employees, agents, representatives, whom shall have no personal liability. Purchaser further acknowledges and agrees that its obligations under this Agreement shall not be subject to any financing contingency or other contingencies or satisfaction of conditions except to the extent specifically set forth herein and

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Purchaser shall have no right to terminate this Agreement, except as expressly provided in the Agreement.

(4)The Seller represents and warrants to the Purchaser as follows:

1.Seller is validly existing and in good standing under the laws of the Province of Ontario. Seller has the corporate power and authority to conduct its business in all material respects as now conducted, to own or hold its property, to lease its property and to enter into and perform its obligations under this Agreement and when executed and delivered will have the corporate power and authority to enter into and perform its obligations under the documents described on Exhibit “C” attached hereto to which it is a signatory.

2.(A)This Agreement has been duly (a) authorized by all necessary corporate action and (b) executed and delivered to Purchaser. When executed and delivered by Seller or Amex Canada Inc., as the case may be, at Closing, each of the documents required to be executed and/or delivered pursuant to Section 11 hereof, including but not limited to those described on Exhibit “C”, will have been duly (a) authorized by all necessary corporate action, and (b) executed and delivered to Purchaser. At Closing, performance of this Agreement and each of the documents required to be executed and/or delivered pursuant to Section 11 hereof, including but not limited to those described on Exhibit “C”, that have been executed and delivered by Seller, or Amex Canada Inc., as the case may be, to Purchaser will not, (x) require any approval of the stockholders of Seller, or Amex Canada Inc., as the case may be, or any approval or consent of any trustee or holder of any indebtedness or obligation of Seller, or Amex Canada Inc., as the case may be, other than such consents and approvals as have been obtained, (y) contravene any applicable law binding on Seller, or Amex Canada Inc., as the case may be, or (z) except as set forth on Schedule 8(4)(2), materially contravene or result in any material breach of or constitute any material default under the organizational documents of Seller, or Amex Canada Inc., as the case may be, or any indenture, judgment, order, mortgage, loan agreement, contract, partnership or joint venture agreement, lease or other agreement or instrument to which Seller, or Amex Canada Inc., as the case may be, is a party or by which Seller, or Amex Canada Inc., as the case may be, is bound, or result in the creation of any Lien upon the Property.

(B)When executed and delivered by American Express Travel Related Services Company, Inc. (“Guarantor”) at Closing, the Guaranty will have been duly (a) authorized by all necessary corporate action, and (b) executed and delivered to Purchaser. At Closing, performance of the Guaranty will not, (x) require any approval of the stockholders of Guarantor or any approval or consent of any trustee or holder of any indebtedness or obligation of Guarantor other than such consents and approvals as have been obtained, (y) contravene any

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applicable law binding on Guarantor or (z) except as set forth on Schedule 8(4)(2), materially contravene or result in any material breach of or constitute any material default under the organizational documents of Guarantor, or any indenture, judgment, order, mortgage, loan agreement, contract, partnership or joint venture agreement, lease or other agreement or instrument to which Guarantor is a party or by which Guarantor is bound, or result in the creation of any Lien upon the Property.

3.All action by any Governmental Authority (“Governmental Action”) required in connection with the execution, delivery and performance by Seller or Amex Canada Inc., as the case may be, of the documents required to be executed and/or delivered pursuant to Section 11 hereof, including but not limited to those described on Exhibit “C”, has been or will have been obtained, given or made at or prior to Closing, including, without limitation, obtaining all approvals from any federal or state bank regulatory authorities. For purposes of this Agreement, “Governmental Authority” shall mean Canada, the province in which the Property is located and any political subdivision thereof, and any and all agencies, departments, commissions, boards, bureaus, bodies, councils, offices, authorities, or instrumentality of any of them, of any nature whatsoever for any governmental unit (federal, provincial, county, municipal, city, foreign or otherwise) whether now or hereafter in existence.

4.Seller is not a non-resident of Canada within the meaning of Section 116 of the Income Tax Act (Canada).

5.To Seller’s knowledge, but without independent investigation or duty of inquiry, except as may be set forth on Schedule 8(5) (copies of which Purchaser acknowledges receipt prior to the date hereof), Seller has not received any written notice of building code violations or violations of Environmental Laws that (a) have not been cured, or (b) are not de minimis in nature.

6.Seller has no actual knowledge (i) and has received no written notice of any special assessments affecting the Property that would materially and adversely affect the value of the Property; (ii) and has received no written notice of any expropriation proceedings affecting any of the Property; (iii) of any of Seller’s employees having any contracts or agreements with Seller that will survive the expiration of the Lease or of any other material contracts that are binding on any of the Property and that will survive the expiration of the Lease, other than those that are cancelable without penalty.

7.Except for the Current Lease, there are no registered leases on any of the Property or any other rights to occupy the Property.

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8.Seller is in compliance with the subdivision control provisions of the Planning Act, and covenants to remain, at its sole cost and expense, in compliance with such provisions at all times until Closing.

9.Except as expressly set forth in this Agreement, none of Seller’s representations, warranties or covenants shall survive Closing or the termination of this Agreement.

(5)If at or prior to the Closing, (A) Purchaser shall become aware (whether through its own efforts, by notice from Seller or otherwise) that any of the representations or warranties made herein by Seller are untrue, inaccurate or incorrect and shall give Seller notice thereof at or prior to the Closing, or (B) Seller shall notify Purchaser that a representation or warranty made herein by Seller is untrue, inaccurate or incorrect, then Seller may, in its sole discretion, elect by notice to Purchaser to postpone the Closing one or more times for up to sixty (60) days in the aggregate in order to cure or correct such untrue, inaccurate or incorrect representation or warranty. If any such representation or warranty is materially untrue, inaccurate or incorrect, and is not cured or corrected by Seller on or before the Closing Date (or final adjourned Closing Date as provided above, if Seller elects to adjourn the Closing), then Purchaser, as its sole remedy for any and all such materially untrue, inaccurate or incorrect material representations or warranties, shall elect either (x) to waive such misrepresentations or breaches of warranties and consummate the transactions contemplated hereby without any reduction of or credit against the Purchase Price; or (y) if such misrepresentation is specific to a Property (as opposed to being applicable to all Property), to delete such Property from this Agreement and receive a credit against the Purchase Price in an amount equal to the portion of the Purchase Price allocated to such Property or (z) if such misrepresentation is not specific to a Property, to terminate this Agreement by notice given to Seller on the Closing Date, in which event, this Agreement shall be terminated and neither party shall have any further rights, obligations or liabilities hereunder, except for the Termination Obligations. Purchaser acknowledges and agrees that (x) at or prior to the Closing, Purchaser’s rights and remedies in the event any of Seller’s representations or warranties made in this Agreement are untrue, inaccurate or incorrect shall be only as provided in this Section 8, and (y) if the Closing does not occur by virtue of such breach, Purchaser hereby expressly waives, relinquishes and releases all other rights or remedies available to it at law, in equity or otherwise (including, without limitation, the right to seek damages from Seller) as a result of any of Seller’s representations or warranties made in this Agreement being untrue, inaccurate or incorrect. If Purchaser elects to consummate the transactions contemplated hereby after receipt of notice of the breach or after its having otherwise become aware of such breach, then Purchaser shall be deemed to have waived such misrepresentation or breach of warranty and there shall be no reduction of or credit against the Purchase Price and the Purchaser shall not use Seller’s breach as a basis for delaying or refusing to proceed to Closing.

(6)In the event the Closing occurs, notwithstanding anything contained in this Section 8 or elsewhere in this Agreement to the contrary, Purchaser hereby expressly waives, relinquishes and releases any right or remedy available to it at law, in equity or under this Agreement to make a claim against Seller for damages

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that Purchaser may incur, or to rescind this Agreement and the transactions contemplated hereby, as the result of any of Seller’s representations or warranties being untrue, inaccurate or incorrect if Purchaser knew that such representation or warranty was untrue, inaccurate or incorrect at the time of the Closing and Purchaser nevertheless closes title hereunder.

(7)The representations and warranties of Seller set forth in this Section 8 and elsewhere in this Agreement shall be true, accurate and correct in all material respects upon the execution of this Agreement and shall be deemed to be repeated on and as of the Closing Date. The representations and warranties (whether express or implied) of Seller set forth in this Section 8 and elsewhere in this Agreement shall remain operative and shall survive the Closing and the execution and delivery of the Deed for a period of two hundred seventy (270) days following the Closing Date, and no action or claim based thereon shall be commenced after such period, but any claim made within such 270-day period shall survive such period until finally determined and all amounts, if and as required, are paid. If Purchaser shall have timely commenced an action with respect to a breach of a representation or warranty made by Seller hereunder and a court of competent jurisdiction shall, determine that (A) Seller was in breach of the applicable representation or warranty as of the date of this Agreement or as of the Closing Date, (B) Purchaser suffered damages by reason of such breach, and (C) Purchaser did not have knowledge of such breach on or prior to the date of the Closing, then, Purchaser shall be entitled to receive an amount equal to its damages; provided that in no event shall Purchaser be entitled to receive as damages, in connection with any and all breaches of the representations and warranties of Seller hereunder, an amount in excess of between zero dollars and $2,000,000 which, when aggregated with the damages for the “Seller’s” breaches of its representations and warranties to which the “Purchaser” under the US Properties PSA would be entitled under Section 8(7) of that agreement, would not cause such aggregated amount to exceed $2,000,000 notwithstanding that the amount of any damages suffered by Purchaser exceeds $2,000,000.

(8)Purchaser represents and warrants to Seller as follows:

1.Purchaser is validly existing and in good standing under the laws of the State of Illinois. Purchaser’s Designee will be at Closing validly existing and in good standing under the laws of the Province of New Brunswick. Purchaser has the corporate power and authority to conduct its business as now conducted, to own or hold its assets, to own or hold the Property or to lease the Property, as the case may be, and to enter into and perform its obligations under all documents to which it is or is to become a party. Purchaser is duly qualified to do business and is in good standing as a foreign corporation in any jurisdiction where the failure to also qualify would have a material adverse effect on its ability to perform its obligations under all documents to which it is a party.

2.Each of the documents to which Purchaser is a party has been duly authorized by all necessary (i) corporate or (ii) trust action, executed and delivered to Seller, and performance thereof by Purchaser will not,

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(1) require any approval of the members/stockholders of Purchaser or any approval or consent of any trustee or holder of any indebtedness or obligation of Purchaser, other than such consents and approvals as have been obtained, (2) contravene any applicable law binding on Purchaser or (3) contravene or result in any breach of or constitute any default under the organizational documents of Purchaser, or any indenture, judgment, order, mortgage, loan agreement, contract, partnership or joint venture agreement, lease or other agreement or instrument to which Purchaser is a party or by which Purchaser is bound, or result in the creation of any Lien upon any property of Purchaser.

3.All Governmental Action required in connection with the execution, delivery and performance by Purchaser of all of the documents to which it is a party, has been or will have been obtained, given or made, including, without limitation, obtaining all approvals from any federal or state bank regulatory authorities.

4.Purchaser’s Designee is and/or will be at Closing registered under Subdivision d of Division V of Part IX of the Excise Tax Act (“ETA”) for the collection and remittance of the goods and services tax payable thereunder (“GST”) and its registration number is 860614973 RT0001.

5.Purchaser’s Designee is not a non-Canadian within the meaning of the Investment Canada Act (Canada).

6.Purchaser (including for the purposes of this Section 8(8)(6), any entity that is directly or indirectly 15% or more owned by Purchaser or as to which Purchaser directly or indirectly has the right to vote 15% or more of the voting securities thereof) is not a Significant Competitor (as defined in the Lease) of Seller, and no entity that directly or indirectly has a 15% or greater interest in Purchaser is a Significant Competitor (as defined in the Lease) of Seller.

7.Purchaser is neither the legal nor beneficial owner of any real property adjoining any part of the Property.

(9)If at or prior to the Closing, (A) Seller shall become aware (whether through its own efforts, by notice from Purchaser or otherwise) that any of the representations or warranties made herein by Purchaser are untrue, inaccurate or incorrect and shall give Purchaser notice thereof at or prior to the Closing, or (B) Purchaser shall notify Seller that a representation or warranty made herein by Purchaser is untrue, inaccurate or incorrect, then Purchaser may, in its sole discretion, elect by notice to Seller to adjourn the Closing one or more times for up to sixty (60) days in the aggregate in order to cure or correct such untrue, inaccurate or incorrect representation or warranty. If any such representation or warranty is materially untrue, inaccurate or incorrect, and is not cured or corrected by Purchaser on or before the Closing Date (whether or not the Closing is adjourned as provided above), then Seller, as its sole remedy for any and all such

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materially untrue, inaccurate or incorrect material representations or warranties, shall elect either (x) to waive such misrepresentations or breaches of warranties and consummate the transactions contemplated hereby without any adjustment of the Purchase Price, or (y) if such misrepresentation is specific to a Property (as opposed to being applicable to all Property), to delete such Property from this Agreement and to reduce the Purchase Price in an amount equal to the portion of the Purchase Price allocated to such Property or (z) if such misrepresentation is not specific to a Property, to terminate this Agreement by notice given to Purchaser on the Closing Date, in which event, this Agreement shall be terminated and neither party shall have any further rights, obligations or liabilities hereunder, except for the Surviving Obligations. Seller acknowledges and agrees that (a) at or prior to the Closing, Seller’s rights and remedies in the event any of Purchaser’s representations or warranties made in this Agreement are untrue, inaccurate or incorrect shall be only as provided in this Section 8, and (b) if the Closing does not occur by virtue of such breach, Seller hereby expressly waives, relinquishes and releases all other rights or remedies available to it at law, in equity or otherwise (including, without limitation, the right to seek damages from Purchaser) as a result of any of Purchaser’s representations or warranties made in this Agreement being untrue, inaccurate or incorrect. If Seller elects to consummate the transactions contemplated hereby after receipt of notice of the breach then Seller shall be deemed to have waived such misrepresentation or breach of warranty and there shall be no adjustment in the Purchase Price, and Seller shall not use Purchaser’s breach as a basis for delaying or refusing to proceed to Closing.

(10)Seller represents to Purchaser, as of the date of this Agreement, that Seller has no right, after the Closing, to re-purchase the Property, or any portion thereof, from Purchaser. Purchaser represents to Seller, as of the date of this Agreement, that Purchaser has no right, after the Closing, to require Seller to re-purchase the Property.

(11)The representations and warranties of Purchaser set forth in this Section 8 and elsewhere in this Agreement shall be true, accurate and correct in all material respects upon the execution of this Agreement, shall be deemed to be repeated on and as of the Closing Date. The representations and warranties (whether express or implied) of Purchaser set forth in this Section 8 and elsewhere in this Agreement shall remain operative and shall survive the Closing and the execution and delivery of the Deed for a period of one (1) year following the Closing Date, and no action or claim based thereon shall be commenced after such period.

9.CLOSING COSTS.

(1)At the Closing, Seller shall be liable for the payment of (i) all applicable Land Transfer Tax and registration fees (the “Transfer Tax Payments”) imposed pursuant to the laws of the Province of Ontario or any other Governmental Authority in respect of the transactions contemplated by this Agreement by wire transfer to the Seller’s Solicitors or delivery to the Seller’s Solicitors of certified cheques drawn on one of the five largest (by asset size) Schedule 1 Chartered Canadian Banks and payable to the order of the relevant Governmental Authority together with any return (the “Transfer Tax Return”) required thereby which

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shall be duly executed by Purchaser, (ii) recording charges to discharge any mortgages that are not to be assumed (iii) its share of the title insurance-related costs as described in Section 6(1)(ii), (iv) one-half of any escrow fees, and (v) the cost of the appraisals, engineering reports and Phase 1 environmental reports ordered by Seller.

(2)At the Closing, Purchaser shall be responsible for (i) its share of the title insurance-related costs as described in Section 6(1)(ii), (ii) recording charges in connection with the conveyance of the Property to Purchaser (including, without limitation, recording fees), (iii) one-half of any escrow fees, (iv) the cost of the appraisals, engineering reports and Phase 1 environmental reports ordered by Purchaser, and (v) all applicable provincial sales tax and federal goods and services tax payable in connection with the sale, transfer, assignment and delivery of the Property by the Seller to the Purchaser.

(3)Seller and Purchaser agree that each party shall pay its own costs, fees and expenses of counsel retained by each party in connection with the consummation of this transaction.

(4)Purchaser shall be responsible for the payment of all costs and expenses relating to the debt to be secured by Purchaser to finance the purchase of the Property, including, without limitation, recording fees, debt placement fees, initial rating agency fees (but not on-going fees), surety bond fees and fees and expenses of counsel for the debt. The provisions of this Section 9 shall survive the Closing.

10.CONDITIONS PRECEDENT TO CLOSING.

(1)Purchaser’s obligation under this Agreement to purchase the Property is subject to the fulfillment of each of the following conditions, subject, however, to the provisions of Section 10(3):

1.The representations and warranties of Seller contained herein shall be materially true, accurate and correct as of the Closing Date (subject to the provisions of Section 8(5));

2.Seller shall be ready, willing and able to deliver title to the Property in accordance with the terms and conditions of this Agreement;

3.Seller shall have delivered all the documents and other items required pursuant to Section 11 hereof, and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by the Seller at or prior to the Closing;

4.Purchaser shall have received at Closing a title policy for the Property with all endorsements required by this Agreement, an updated ALTA survey, the Lease, estoppel certificates in form reasonably acceptable to Seller and a subordination, non-disturbance and attornment agreement substantially in the form attached hereto as Exhibit “D” (“SNDA”), it being agreed and understood that in no event shall Seller’s failure to deliver any estoppel certificate or SNDA be deemed

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a default by Seller nor shall any such failure or delay give Purchaser any right whatsoever to fail to close this transaction as described herein in the manner and at the time otherwise prescribed by this Agreement;

5.As of the Closing Date, Guarantor under the Lease for the Property, shall have an S&P credit rating of higher than “A”;

6.All material consents and approvals by any Governmental Authority and parties to agreements to which Seller is a party or by which Seller’s assets are bound that are required with respect to the consummation of the transactions contemplated by this Agreement shall have been obtained and copies thereof or other evidence satisfactory thereof shall have been delivered to Purchaser at or prior to the Closing;

7.No order or injunction of any court or administrative agency of competent jurisdiction nor any statute, rule, regulation or executive order promulgated by any Governmental Authority of competent jurisdiction shall be in effect as of the Closing which prohibits the transfer of the Property or the consummation of any other transaction contemplated hereby;

8.On or prior to the Closing Date, (A) Seller shall not have applied for or consented to the appointment of a receiver, trustee or liquidator for itself or any of its assets unless the same shall have been discharged prior to the Closing Date, and no such receiver, liquidator or trustee shall have otherwise been appointed, unless same shall have been discharged prior to the Closing Date, (B) Seller shall not have admitted in writing an inability to pay its debts as they mature, (C) Seller shall not have made a general assignment for the benefit of creditors, (D) Seller shall not have been adjudicated as bankrupt or insolvent, or had a petition for reorganization granted with respect to Seller, (E) Seller shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of a petition filed against it in any proceedings under any such law, or had any petition filed against it in any proceeding under any of the foregoing laws unless the same shall have been dismissed, canceled or terminated prior to the Closing Date; and

9.The Current Lease shall have been terminated concurrently with the Closing.

(2)Seller’s obligation under this Agreement to sell the Property to Purchaser is subject to the fulfillment of each of the following conditions, subject, however to the provisions of Section 10(3):

1.The representations and warranties of Purchaser contained herein shall be materially true, accurate and correct as of the Closing Date;

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2.Purchaser shall have delivered the funds required hereunder and all the documents to be executed by Purchaser set forth in Section 12 hereof and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by Purchaser at or prior to the Closing;

3.All consents and approvals by any Governmental Authority and parties to agreements to which Purchaser is a party or by which Purchaser’s assets are bound that are required with respect to the consummation of the transactions contemplated by this Agreement shall have been obtained and copies thereof shall have been delivered to Seller at or prior to the Closing;

4.No order or injunction of any court or administrative agency of competent jurisdiction nor any statute, rule, regulation or executive order promulgated by any Governmental Authority of competent jurisdiction shall be in effect as of the Closing which prohibits the transfer of the Property or the consummation of any other transaction contemplated hereby;

5.On or prior to the Closing Date, (A) Purchaser shall not have applied for or consented to the appointment of a receiver, receiver-manager, trustee or liquidator for itself or any of its assets unless the same shall have been discharged prior to the Closing Date, and no such receiver, receiver-manager, liquidator or trustee shall have otherwise been appointed, unless same shall have been discharged prior to the Closing Date, (B) Purchaser shall not have admitted in writing an inability to pay its debts as they mature, (C) Purchaser shall not have made a general assignment for the benefit of creditors, (D) Purchaser shall not have been adjudicated as bankrupt or insolvent, or had a petition for reorganization granted with respect to Purchaser, (E) Purchaser shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of a petition filed against it in any proceedings under any such law, or had any petition filed against it in any proceeding under any of the foregoing laws unless the same shall have been dismissed, canceled or terminated prior to the Closing Date;

6.Purchaser’s Designee and its affiliates, Inland Western Markham Limited Partnership and Inland Western Markham DST, shall have entered into that certain Canadian Tax Monitoring And Indemnity Agreement with Amex Canada Inc. in the form attached hereto as Exhibit “E”; and

7.Purchaser’s Affiliate, Inland Western Retail Real Estate Trust, Inc., shall have executed and delivered the Indemnification Guaranty in the form attached as an exhibit to the Lease (as defined below).

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(3)In the event that any condition contained in Section 10(1) or 10(2) is not satisfied, the party entitled to the satisfaction of such condition as a condition to its obligation to close title hereunder shall have as its sole remedy hereunder the right to elect to (i) waive such unsatisfied condition whereupon title shall close as provided in this Agreement, or (ii) if such failure is by Seller and is specific to a Property, Purchaser may delete such Property from this Agreement and receive credit against the Purchase Price in an amount equal to the portion of the Purchase Price allocated to such Property or, (iii) if such failures relate to more than one of the Property if such failures were by Seller, Purchaser may terminate this Agreement, or (iv) if such failure is by Purchaser or Seller and is not specific to a Property, terminate this Agreement. Nothing contained in this Section 10(3) shall be construed so as to bestow any right of termination upon a party for the failure of a condition to be satisfied unless such party is expressly entitled to the satisfaction of such condition as provided in Section 10(1) or 10(2). The provisions of this Section 10(3) shall survive the Closing.

11.DOCUMENTS TO BE DELIVERED BY SELLER AT CLOSING. At or prior to the Closing, Seller shall execute, acknowledge and deliver or cause to be delivered to the Title Company for delivery to Purchaser, pursuant to escrow instructions from Seller and the Purchaser, the following for the Property:

(1)An electronically registrable transfer/deed of land for the Property with the statements pursuant to Section 50(22) of the Planning Act (Ontario) completed by the Seller and the Seller’s Solicitors (collectively, the “Deed”) conveying title to the Property in the form shown in Exhibit “F” annexed hereto and made a part hereof;

(2)A lease for the Property, substantially in the form of the lease attached hereto as Exhibit “G” (the “Lease”) and a notice thereof for recording in the land records where the Property is located;

(3)Pro Forma fee title insurance policy with all endorsements required pursuant to this Agreement insuring the Property for the Purchase Price;

(4)A current ALTA survey certified to Purchaser and Purchaser’s lender, if any;

(5)Tenants’ insurance certificates as required by the Lease;

(6)Such organizational documentation, if any, as the Title Company may reasonably require in order to issue an owner’s fee title insurance policy based on the Title Commitment, with a copy of such documentation to Purchaser;

(7)Land Transfer Tax Returns, if any,to be prepared by Seller and signed by Purchaser;

(8)The Transfer Tax Payments, if any;

(9)A statutory declaration stating that Seller is not a non-resident of Canada within the meaning of Section 116 of the Income Tax Act (Canada) as attached and made a part hereof as Exhibit “H”;

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(10)All other documents Seller is required to deliver pursuant to the provisions of this Agreement and of any applicable laws and/or regulations;

(11)Such SNDA’s and estoppel certificates as may be agreed to by Seller in connection with Purchaser’s financing;

(12)A transfer/deed of land for the Property from 1001675 Ontario, Inc. not for registration, but in registrable form, along with its authorization and direction to 1001674 Ontario, Inc. to convey to the Purchaser registered title to the Property; and

(13)Closing Statements for Purchaser and Seller indicating deposits, credits and charges with respect to each Property, including an undertaking by each of Purchaser and Seller to re-adjust any item on or omitted from same.

All items to be delivered under this Article 11 shall be in form and substance acceptable to Purchaser and its counsel, acting reasonably and in good faith.

12.DOCUMENTS AND PAYMENTS TO BE DELIVERED BY PURCHASER AT CLOSING. At the Closing, Purchaser shall execute, acknowledge and deliver or cause to be delivered to the Seller, the following for the Property:

(1)The Purchase Price payable at the Closing pursuant to Section 2(1), subject to adjustments as expressly provided in this Agreement;

(2)The Lease;

(3)If Purchaser is a trust, certified copies of the trust agreement pursuant to which Purchaser was formed;

(4)If such is required by the terms of any Permitted Encumbrance, a specific assumption agreement pursuant to which the Purchaser assumes the obligations of the Seller contained in such document from and after the Closing;

(5)Land Transfer Tax Returns, if any, to be prepared by Seller and signed by Purchaser;

(6)Such organizational documentation, if any, as the Title Company may reasonably require in order to issue an owner’s fee title insurance policy based on the Title Commitment;

(7)On Closing, the Purchaser shall either remit to the Seller all GST payable pursuant to the ETA in respect of the sale of the Property or self assess for the exigible GST and deliver prior to closing to the Seller a notarial copy of the Purchaser’s GST registration certificate and a declaration and indemnity stating the following:

(i)The Purchaser’s Designee is registered under Subdivision d of Division V of Part IX of the ETA for the collection and remittance of GST and its Registration Number is 860614973 RT0001;

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(ii)The Purchaser shall remit directly to the Receiver General of Canada all GST, if any, which the Purchaser is required to remit in accordance with the ETA, and file the prescribed form in connection with the sale or conveyance of the Property;

(iii)The Property is being purchased by the Purchaser as principal for its own account and is not being purchased by the Purchaser as an agent, trustee or otherwise on behalf of or for another person;

(iv)The Purchaser shall indemnify and save harmless the Seller from any GST, penalty, interest or other amounts which may be payable by or assessed against the Seller under the ETA as a result of or in connection with the Seller’s failure to collect and remit any GST applicable on the sale and conveyance of the Property by the Seller.

(8)All other documents Purchaser is required to deliver pursuant to the provisions of this Agreement and of any applicable laws and/or regulation;

(9)A certification from an authorized officer of Inland Western Retail Real Estate Trust, Inc. that Purchaser (including for the purposes of this Section 12(9), any entity that is directly or indirectly 15% or more owned by Purchaser or as to which Purchaser directly or indirectly has the right to vote 15% or more of the voting securities thereof) is not a Significant Competitor (as defined in the Lease) of Seller, and no entity that directly or indirectly has a 15% or greater interest in Purchaser is a Significant Competitor (as defined in the Lease) of Seller; and

(10)Closing Statements for Purchaser and Seller indicating deposits, credits and charges with respect to each Property, including an undertaking by each of Purchaser and Seller to re-adjust any item on or omitted from same.

All items to be delivered under this Article 12 shall be in form and substance acceptable to Seller and its counsel, acting reasonably and in good faith.

13.OPERATION OF THE PROPERTY PRIOR TO THE CLOSING DATE. Between the date hereof and the Closing Date, Seller shall have the right and the obligation to continue to operate and maintain the Property in the same general manner as operated and maintained prior to the date hereof.

14.AS-IS.

(1)Purchaser acknowledges and agrees that upon closing Seller shall sell and convey to Purchaser and Purchaser shall accept the Property “as is, where is, with all faults”, including, without limitation, those arising from, related to or in connection with Hazardous Substances at, in, on, above, under, about, or migrating to or from or affecting the Property. Purchaser has had the opportunity to investigate the Property (including, without, limitation the environmental condition of each property) and has not relied and will not rely on, and Seller is not liable for or bound by, any express or implied warranties, guaranties, statements, representations or information pertaining to the Property relating thereto (including specifically, without limitation, environmental conditions) made or furnished by Seller directly

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or indirectly, orally or in writing except for the representations and warranties of the Seller contained herein or in the Lease. Purchaser and Purchaser’s successors, assigns, operators, mortgagees, tenants, licensees and occupants of the Property waive, release and discharge Seller and its parents, subsidiaries, affiliates, partners, officers, directors, employees, agents, representatives, shareholders, predecessors, successors and assigns from, without limitation, any and all obligation or liability, whether known or unknown, foreseen or unforeseen, threatened or actual, now existing or hereafter in existence, of Purchaser arising from relating to or in connection with the presence of Hazardous Substances at, in, on, above, under, about or migrating to or from the Property. “Hazardous Substances” shall mean each and every element, compound, chemical mixture, contaminant, pollutant, material, waste, or other substance which is defined, determined or identified as hazardous or toxic under any Environmental Law or is otherwise regulated by any Governmental Authority. “Environmental Laws” shall mean any federal, provincial or local statute, regulation or ordinance or any judicial or administrative decree or decision, whether now existing or hereafter enacted, promulgated or issued, with respect to any Hazardous Substances, drinking water, ground water, wetlands, landfills, open dumps, storage tanks, underground storage tanks, solid waste, waste water, storm water runoff, waste emissions or wells and include, without limitation, those Environmental Laws relating to the storage, generation, use, handling, manufacture, processing, labelling, advertising, sale, display, transportation, treatment, release and disposal of Hazardous Substances, including without limitation, the Canadian Environmental Protection Act, 1999, S.C. 1999, c.33, the Transportation of Dangerous Goods Act, 1992, c.34, the Environmental Protection Act, R.S.O. 1990, c. E.19, the Ontario Water Resources Act, R.S.O. 1990, c. O.40 and any regulation, order, guideline or policy made pursuant to any of such statutes or in respect of any of such statutes.

The release contained in this Section 14(1) above shall run with the land, be binding upon Purchaser and Purchaser’s successors and assigns, and all future owners, operators, mortgagees, tenants, licensees and occupants of the Property and shall inure to the benefit of Seller and its successors and assigns, and shall survive the Closing.

(2)Purchaser or anyone claiming by, through or under Purchaser, hereby fully and irrevocably releases Seller and Seller’s Affiliates, and their agents and representatives, from any and all claims that it may now have or hereafter acquire against Seller or Seller’s Affiliates, or their agents or representatives for any cost, loss, liability, damage, expense, action or cause of action, whether foreseen or unforeseen, arising from or related to any construction defects, errors or omissions on or in the Property, the presence of Hazardous Substances, or any other conditions (whether patent, latent or otherwise) affecting the Property, except for claims against Seller based upon any obligations and liabilities of Seller expressly provided in this Agreement or the Lease. Purchaser further acknowledges and agrees that this release shall be given full force and effect according to each of its expressed terms and provisions, including, but not limited to, those relating to unknown and suspected claims, damages and causes of action. As a material covenant and condition of this Agreement, Purchaser agrees that in the event of any such construction defects, errors or omissions, the presence of Hazardous Substances, or any other conditions affecting the Property, Purchaser

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shall have no claims against Seller, except for claims against Seller based upon any obligations and liabilities of Seller expressly provided in this Agreement.

(3)Seller shall not be liable or bound in any manner by any oral or written “setups” or information pertaining to the Property or the rents furnished by Seller, Seller’s Affiliates, their agents or representatives, any real estate broker, including, without limitation, CITIGROUP, Trammell Crow Company (“TCC”), or other person.

(4)Each of Purchaser and Seller hereto acknowledge that it has consulted with its tax advisors in connection with the transactions contemplated by this Agreement, and each party hereto acknowledges that it has not relied upon any advice or opinions given by the other party or its attorneys or agents, nor has any party hereto guaranteed any particular tax consequences in connection with the transactions contemplated by this Agreement.

(5)The Purchaser agrees that it will not initiate any inspection of the Property by any Governmental Authority but shall be entitled to contact the appropriate Governmental Authority to obtain a zoning letter.

(6)The provisions of this Section 14 shall survive the termination of this Agreement and the Closing.

15.BROKER. Purchaser and Seller each represent and warrant to the other that it has not dealt or negotiated with, or engaged on its own behalf or for its benefit, any broker, finder, consultant, advisor, or professional in the capacity of a broker or finder in connection with this Agreement or the transactions contemplated hereby other than Citigroup Global Markets, Inc. (“CITIGROUP”)and TCC. Purchaser acknowledges and represents that it has also dealt with Stan Johnson Company in connection with the transactions contemplated hereby. Each party hereby agrees to indemnify, defend and hold the other harmless from and against any and all claims, demands, causes of action, losses, costs and expenses (including reasonable legal fees, court costs and disbursements) arising from its breach of the foregoing representations. Seller agrees that it shall pay CITIGROUP and TCC in accordance with separate agreements between Seller and CITIGROUP and Seller and TCC. Purchaser agrees that it shall pay Stan Johnson Company in accordance with a separate agreement between Purchaser and Stan Johnson Company. The obligations and representations and warranties contained in this Section 15 shall survive the termination of this Agreement and the Closing.

16.CASUALTY; EXPROPRIATION.

(1)If a “material” part (as hereinafter defined) of the Property is damaged or destroyed by fire or other casualty, Seller shall notify Purchaser of such fact and, except as hereinafter provided, Purchaser shall have the option to terminate this Agreement upon notice to Seller given not later than ten (10) days after receipt of Seller’s notice. Notwithstanding the foregoing, if a “material” part of any of the Property is damaged or destroyed and Purchaser elects to terminate this Agreement as provided above, Purchaser’s election shall be ineffective if within ten (10) days after Seller’s receipt of Purchaser’s election notice, Seller shall elect by notice to Purchaser to repair such damage or destruction and shall thereafter complete such repair within ninety (90) days after the then scheduled Closing

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Date at the time of Purchaser’s election. If Seller makes such election to repair, Seller shall have the right to postpone the Closing Date one or more times for up to ninety (90) days in the aggregate in order to complete such repairs and shall have the right to retain all insurance proceeds which Seller may be entitled to receive as a result of such damage or destruction. If (i) Purchaser does not elect to terminate this Agreement, (ii) Purchaser elects to terminate this Agreement but such election is ineffective because Seller elects to repair such damage and completes such repair within such 90-day period provided above, or (iii) there is damage to or destruction of an “immaterial” part (“immaterial” is herein deemed to be any damage or destruction which is not “material”, as such term is hereinafter defined) of the Property, Purchaser shall close title as provided in this Agreement and, at the Closing, Seller shall, unless Seller has repaired such damage or destruction prior to the Closing, apply the proceeds of any insurance collected by Seller in accordance with the terms of the Lease. A “material” part of the Property shall be deemed to have been damaged or destroyed if the cost of repair or replacement shall be $250,000 or more as reasonably estimated by Seller or if Tenant can terminate its Lease or abate rent thereunder, or the Property cannot be legally occupied. This provision shall not survive Closing or the termination of this Agreement.

(2)If, prior to the Closing Date, all or any “significant” portion (as hereinafter defined) of the Property is taken by eminent domain or expropriation (or is the subject of a pending taking which has not been consummated) (in each case, a “Taking”), Seller shall notify Purchaser of such Taking and Purchaser shall have the option to terminate this Agreement upon notice to Seller given not later than ten (10) days after receipt of Seller’s notice. If Purchaser does not elect to terminate this Agreement, or if a Taking involves an “insignificant” portion (“insignificant” is herein deemed to be any taking which is not “significant”, as such term is herein defined) of the Property, at the Closing Seller shall assign and turn over, and Purchaser shall be entitled to receive and keep, all awards or other proceeds for such Taking. A “significant” portion of the Property means a Taking of twenty percent 20% or more of the Property or if Tenant can terminate its Lease or abate rent thereunder, or the Property cannot be legally occupied. This provision shall not survive Closing or the termination of this Agreement.

(3)Notwithstanding anything contained in Section 16(1) and Section 16(2) to the contrary, if this Agreement is not terminated as provided in Section 16(1) or Section 16(2) and the eminent domain or expropriation proceeds payable with respect to the Property as a result of any Taking exceeds the Purchase Price in Section 2(1) of this Agreement, Seller’s obligation to pay over to Purchaser those proceeds paid to Seller prior to the Closing shall be limited to the Purchase Price and Seller shall be entitled to retain the remainder of such proceeds. To the extent that payment of all or any portion of such proceeds does not occur prior to the Closing, the parties agree that Seller shall be entitled to that portion of the proceeds in excess of the Purchase Price, which agreement shall survive the Closing. To the extent that no proceeds are due to Seller in connection with Section 16(1) and Section 16(2), this Section 16(3) shall not survive the Closing.

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17.REMEDIES.

(1)If the Closing fails to occur and such failure to close is on account of (i) Seller not eliminating all Unacceptable Encumbrances (which failure to eliminate is due to circumstances beyond Seller’s reasonable control and is not due to Seller’s willful bad faith hereunder; provided, however, in no event shall Seller be required to bring any action or proceeding or make any payments or otherwise incur any expenses in order to eliminate any Unacceptable Encumbrances other than as set forth in Section 6(2)), not waived by Purchaser, or, in lieu thereof, arranging for title insurance reasonably acceptable to Purchaser insuring against enforcement of such Unacceptable Encumbrances against, or collection of the same out of, the Property, then after five (5) business days written notice from Purchaser and any additional time as is necessary so as to afford Seller a reasonable opportunity to cure, then Purchaser, as its sole remedy for such failure of Seller, may terminate this Agreement by notice to Seller. If Purchaser elects to terminate this Agreement pursuant to this Section 17(1), then upon notice to Seller, this Agreement shall be terminated and neither party shall have any further rights, obligations or liabilities hereunder, except for those rights, obligations and liabilities which expressly survive the termination of this Agreement in the event that no Closing occurs hereunder (the “Termination Obligations”). Except as set forth in this Section 17(1), Purchaser hereby expressly waives, relinquishes and releases any right or remedy available to it at law, in equity or otherwise by reason of Seller not eliminating all Unacceptable Encumbrances not waived by Purchaser, or, in lieu thereof, arranging for title insurance reasonably acceptable to Purchaser insuring against enforcement of such Unacceptable Encumbrances against, or collection of the same out of, the Property.

(2)A.If the Closing fails to occur and such failure to close is on account of Seller’s breach of its performance obligations under this Agreement and is in a case where such failure and close is not covered in Section 17(1) above, then after five (5) business days written notice from Purchaser and any additional time as is necessary so as to afford Seller a reasonable opportunity to cure, then Purchaser, as its sole remedy for such breach of Seller’s performance obligations hereunder, may elect to either: (i) terminate this Agreement by notice to Seller; or (ii) seek specific performance from Seller, provided that in no event shall Seller be obligated to spend more than the lesser of (A) two (2%) percent of the Purchase Price or (B)$500,000 (including, but not limited to, legal fees) to perform hereunder; provided further, that where Purchaser has elected to terminate the Agreement and where (and only in such instances where) Seller’s failure is willful and in bad faith according to a judgment of a court of competent jurisdiction, Purchaser will be entitled to reimbursement of its damages up to the lesser of (a) $2,000,000 or (b) an amount between zero dollars and $2,000,000 which, when aggregated with the damages for the “Seller’s” willful and bad faith failure to which the “Purchaser” under the US Properties PSA would be entitled under Section 17(2)A of that agreement, would not cause such aggregated amount to exceed $5,000,000; and provided further, that where Purchaser has elected to terminate this Agreement and where (and only in such instances where) Seller’s failure is not willful and in bad faith according to a judgment of a court of competent jurisdiction, Purchaser shall be entitled to reimbursement of its damages up to an amount between zero dollars and $2,000,000 which, when

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aggregated with the damages for the “Seller’s” failure that is not willful and not in bad faith to which the “Purchaser” under the US Properties PSA would be entitled under Section 17(2)A of that agreement, would not cause such aggregated amount to exceed $2,000,000.

B.As a condition precedent to Purchaser exercising any right it may have to bring an action for specific performance as the result of Seller’s failure to perform its obligations hereunder, Purchaser must commence such an action by filing a Complaint within one hundred eighty (180) days after the occurrence of such default. Purchaser agrees that its failure to timely commence such an action for specific performance within such one hundred eighty (180) day period shall be deemed a waiver by it of its right to commence such an action. If Purchaser elects to terminate this Agreement pursuant to this Section 17(2), then this Agreement shall be terminated and neither party shall have any further rights, obligations or liabilities hereunder, except for the Termination Obligations. Notwithstanding anything contained herein to the contrary, Purchaser may pursue any rights or remedies it may have against Seller with respect to the Termination Obligations subject to the express damages limits set forth in Section 17(2)A above.

(3)If the Closing fails to occur by reason of Purchaser’s failure to perform its obligations hereunder, then Seller as its sole remedy, may elect to either (i) terminate this Agreement by notice to Purchaser, or (ii) seek specific performance from Purchaser, and (1) where (and only in such instances where) Purchaser’s failure is willful and in bad faith according to a judgment of a court of competent jurisdiction, Seller shall be entitled to reimbursement of its damages up to an amount between zero dollars and $5,000,000 which, when aggregated with the damages for the “Purchaser’s” willful and bad faith failure to which the “Seller” under the US Properties PSA would be entitled under Section 17(3)(1) of that agreement, would not cause such aggregated amount to exceed $5,000,000 or (2) where Purchaser’s failure is not willful and in bad faith according to a judgment of a court of competent jurisdiction, Seller shall be entitled to reimbursement of its damages up to an amount between zero dollars and $2,000,000 which, when aggregated with the damages for the “Purchaser’s” failure that is not willful and not in bad faith to which the “Seller” under the US Properties PSA would be entitled under Section 17(3)(2) of that agreement, would not cause such aggregated amount to exceed $2,000,000. If Seller elects to terminate this Agreement pursuant to this Section 17(3), then upon notice to Purchaser, this Agreement shall be terminated, and neither party shall have any further rights, obligations or liabilities hereunder, except for the Termination Obligations. Nothing contained herein shall limit or restrict Seller’s ability to pursue any rights or remedies it may have against Purchaser with respect to the Termination Obligations subject to the express damages limits set forth in this Section 17(3).

(4)TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL ASSERT AND EACH HEREBY WAIVES ANY CLAIM AGAINST THE OTHER ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.

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(5)The provisions of this Section 17 shall survive the termination of this Agreement.

18.INTENTIONALLY DELETED.

19.INTENTIONALLY DELETED.

20.INTENTIONALLY DELETED.

21.ASSIGNMENT. This Agreement may not be assigned by Purchaser without the express written consent of Seller, which consent Seller shall have right to withhold or grant in its sole and absolute discretion; provided, however, that Purchaser shall be entitled, upon giving prior written notice to Seller, to assign its rights under this Agreement to Inland Western Retail Real Estate Trust, Inc. (the “REIT”); provided that the REIT, and any entity owned or controlled by the REIT and any entity that has a 15% or greater interest in the REIT is not a Significant Competitor, as defined in the Lease. The entity to whom Purchaser assigns this Agreement as permitted by this Section 21, whether Purchaser’s Designee or otherwise, shall become the “Purchaser” under this Agreement, but such an assignment and assumption shall not relieve Inland Real Estate Acquisitions, Inc. of the obligations of the “Purchaser” under this Agreement.

22.INTENTIONALLY DELETED.

23.NOTICES.

(1)All notices, elections, consents, approvals, demands, objections, requests or other communications which Seller, or Purchaser may be required or desire to provide pursuant to, under or by virtue of this Agreement must be in writing and sent by (i) a prepaid nationally recognized overnight courier service, and any such notice shall be deemed received one (1) business day after delivery to a nationally recognized courier service specifying overnight delivery, or (ii) U.S. certified or registered mail, return receipt requested, postage prepaid, addressed as follows, or (iii) by telefax followed by a copy sent in the manner of either clause (i) or (ii) above:

If to Seller:

1001674 Ontario, Inc.

c/o American Express Company

200 Vesey Street

New York, New York 10285

Attention: Jeffrey S. Furman, Vice President Global Real Estate

Telefax: 212/ 640-9685

With copies to:

Sills Cummis Epstein & Gross, P.C.

One Riverfront Plaza

Newark, New Jersey 07102

Attention: Mark S. Levenson, Esq.

Telefax: 973-643-6500

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With copies to:

Amex Bank of Canada

101 McNabb Street

Markham, Ontario

L3R 4H8

Attn: Chairman of the Board, President, Chief Executive Officer and General Manager

Telefax: 905-474-8708

and

Amex Bank of Canada

101 McNabb Street

Markham, Ontario

L3R 4H8

Attn: Vice President and Group Counsel

Telefax: 905-474-9985

If to Purchaser:

The Inland Real Estate Group, Inc.

2901 Butterfield Road

Oak Brook, Illinois 60523

Attention: G. Joseph Cosenza, President

Telefax:630-218-4935

With copies to:

The Inland Real Estate Group, Inc.

2901 Butterfield Road

Oak Brook, Illinois 60523

Attention: Gary Pechter, Esq.

Telefax:630-218-4900

(2)Seller or Purchaser may designate another addressee or change its address for notices and other communications hereunder by a notice given to the other parties in the manner provided in this Section 23(2). A notice or other communication sent in compliance with the provisions of this Section 23 shall be deemed received when actually received, as evidenced by the return receipt, or when delivery is first refused. From time to time any party may designate a new address for purposes of notice hereunder by giving two (2) days written notice thereof to each of the other parties hereto. All notices given hereunder shall be irrevocable unless expressly specified otherwise.

24.PROPERTY INFORMATION AND CONFIDENTIALITY.

(1)Purchaser agrees that, prior to the Closing, all Property Information shall be kept strictly confidential and shall not, without the prior written consent of Seller, be

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disclosed by Purchaser or Purchaser’s Representatives, in any manner whatsoever, in whole or in part, and will not be used by Purchaser or Purchaser’s Representatives, directly or indirectly, for any purpose other than evaluating the Property. Moreover, Purchaser agrees that, prior to the Closing, the Property Information will be transmitted only to Purchaser’s Representatives who need to know the Property Information for the purpose of evaluating the Property, and who are informed by the Purchaser of the confidential nature of the Property Information. The provisions of this Section 24(1) shall in no event apply to Property Information which is a matter of public record and shall not prevent Purchaser from complying with any law, including, without limitation, governmental regulatory, disclosure, tax and reporting requirements, provided that prior to Purchaser disclosing any Property Information as set forth in this sentence, Purchaser shall notify, and consult with, Seller regarding such disclosure. Purchaser shall indemnify and hold Seller and Seller’s Affiliates harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, without limitation, attorneys’ fees and disbursements) suffered or incurred by Seller or any of Seller’s Affiliates and arising out of or in connection with a breach by Purchaser or Purchaser’s Representatives of the provisions of this Section 24(1).

(2)Purchaser and Seller, for the benefit of each other, hereby agree that between the date hereof and the Closing Date, they will not release or cause or permit to be released any press notices, publicity (oral or written), advertising or promotional materials relating to, or otherwise announce or disclose or cause or permit to be announced or disclosed, in any manner whatsoever, the terms, conditions or substance of this Agreement or the transactions contemplated herein, without first obtaining the written consent of the other party hereto. It is understood that the foregoing shall not preclude either party from discussing the substance or any relevant details of the transactions contemplated in this Agreement, subject to the terms of Section 24(1), with any of its attorneys, accountants, professional consultants, potential lenders or potential investors in a proposed Rule 144A offering, as the case may be, or prevent either party hereto from complying with any law, including, without limitation, governmental regulatory, disclosure, tax and reporting requirements, or prevent either party from making any disclosure required to obtain any governmental consents or other third party consents that are required to be obtained prior to the Closing provided that prior to Purchaser releasing or otherwise disclosing any information as set forth in this sentence, Purchaser shall notify, and consult with, Seller regarding such release or disclosure. Purchaser shall indemnify and hold Seller harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, without limitation, attorneys’ fees and disbursements) suffered or incurred and arising out of or in connection with a breach by Purchaser of the provisions of this Section 24(2). Notwithstanding the foregoing, Seller may make disclosures (i) that Seller believes are desirable to its employees in explanation of this transaction and answering questions that Seller’s employees may raise and (ii) that Seller believes are necessary to make under the Securities Exchange Act of 1934 (including the filing of this Agreement as an exhibit to any filing required or otherwise necessary under such act). Further, Seller shall be entitled to issue a press release pertaining to the transactions contemplated by this Agreement upon (x) the signing of this Agreement and (y) the closing of

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transactions contemplated hereby (or any one of them); provided that Seller shall give Purchaser an opportunity to review such press release(s) before same are issued.

(3)In the event this Agreement is terminated, Purchaser and Purchaser’s Representatives shall either (i) promptly deliver to Seller all originals and copies of the Property Information referred to in clause (i) of Section 24(4) in the possession of Purchaser and Purchaser’s Representatives or (ii) confirm in writing that such Property Information has been destroyed, at Purchaser’s expense. In the event Purchaser or Purchaser’s Representatives fail to comply with the preceding sentence within ten (10) business days after this Agreement is terminated, Purchaser shall pay Seller $10,000 for each day after the tenth business day that Seller has not received materially all Property Information and/or the confirmation of destruction, and Purchaser shall indemnify, defend and hold Seller harmless from and against all losses, damages and claims arising from Purchaser’s or Purchaser’s Representatives’ failure.

(4)As used in this Agreement, the term “Property Information” shall mean (i) all information and documents in any way relating to the Property, the operation thereof, the sale thereof or the leasing thereof furnished to, or otherwise made available for review by, Purchaser or its directors, officers, employees, affiliates, partners, brokers, agents or other representatives, including, without limitation, attorneys, accountants, contractors, consultants, engineers and financial advisors (collectively, “Purchaser’s Representatives”), by Seller or any of Seller’s Affiliates, or their agents or representatives, including, without limitation, their contractors, engineers, attorneys, accountants, consultants, brokers or advisors, and (ii) all analyses, compilations, data, studies, reports or other information or documents prepared or obtained by Purchaser or Purchaser’s Representatives containing or based, in whole or in part, on the information or documents described in the preceding clause (i), or otherwise reflecting their review or investigation of the Property.

(5)In addition to any other remedies available to Seller, Seller shall have the right to seek equitable relief, including, without limitation, injunctive relief or specific performance, against Purchaser or Purchaser’s Representatives in order to enforce the provisions of this Section 24.

(6)Notwithstanding anything contained herein to the contrary, Purchaser shall continue to abide by that certain letter agreement regarding confidentiality between American Express Company and Purchaser, dated as of January 5, 2005.

(7)The provisions of this Section 24 shall survive the termination of this Agreement and the Closing.

25.MISCELLANEOUS.

(1)This Agreement shall not be altered, amended, changed, waived, terminated or otherwise modified in any respect or particular, and no consent or approval required pursuant to this Agreement shall be effective, unless the same shall be in writing and signed by or on behalf of the party to be charged.

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(2)This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and to their respective heirs, executors, administrators, successors and permitted assigns. This Agreement is an agreement solely for the benefit of Seller and Purchaser (and their permitted successors and/or assigns). No other person, party or entity shall have any rights hereunder nor shall any other person, party or entity be entitled to rely upon the terms, covenants and provisions contained herein. The provisions of this Section 25(2) shall survive the Closing.

(3)All prior statements, understandings, representations and agreements between the parties, oral or written, are superseded by and merged in this Agreement, which alone fully and completely expresses the agreement between them in connection with this transaction and which is entered into after full investigation, neither party relying upon any statement, understanding, representation or agreement made by the other not embodied in this Agreement or in the Lease. This Agreement shall be given a fair and reasonable construction in accordance with the intentions of the parties hereto, and without regard to or aid of canons requiring construction against Seller or the party drafting this Agreement.

(4)Except as otherwise expressly provided herein, Purchaser’s acceptance of the Deed shall be deemed a discharge of all of the obligations of Seller hereunder and all of Seller’s representations, warranties, covenants and agreements herein shall merge in the documents and agreements executed at the Closing and shall not survive the Closing.

(5)Purchaser agrees that it does not have and will not have any claims or causes of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, principal, parent, subsidiary or other affiliate of Seller, including, without limitation, American Express Company, or any of Seller’s affiliates which is a party to the US Properties PSA, or any officer, director, employee, trustee, shareholder, partner or principal of any such parent, subsidiary or other affiliate (collectively, “Seller’s Affiliates”), arising out of or in connection with this Agreement or the transactions contemplated hereby. Purchaser agrees to look solely to Seller and the Property for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to enforce any personal obligation against any of Seller’s Affiliates with respect to any matters arising out of or in connection with this Agreement or the transactions contemplated hereby. Without limiting the generality of the foregoing provisions of this Section 25(5), Purchaser hereby unconditionally and irrevocably waives any and all claims and causes of action of any nature whatsoever it may now or hereafter have against Seller’s Affiliates, and hereby unconditionally and irrevocably releases and discharges Seller’s Affiliates from any and all liability whatsoever which may now or hereafter accrue in favor of Purchaser against Seller’s Affiliates, in connection with or arising out of this Agreement or the transactions contemplated hereby. The provisions of this Section 25(5) shall survive the termination of this Agreement and the Closing.

(6)Seller and Purchaser agree that, wherever this Agreement provides that either Seller or Purchaser must send or give any notice, make an election or take some

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other action within a specific time period in order to exercise a right or remedy it may have hereunder, time shall be of the essence with respect to the taking of such action, and if either Seller or Purchaser fails to take such action within the applicable time period such failure shall be deemed to be an irrevocable waiver by that Seller or Purchaser of such right or remedy.

(7)No failure or delay of either party in the exercise of any right or remedy given to such party hereunder or the waiver by any party of any condition hereunder for its benefit (unless the time specified herein for exercise of such right or remedy has expired) shall constitute a waiver of any other or further right or remedy nor shall any single or partial exercise of any right or remedy preclude other or further exercises thereof or any other right or remedy. No waiver by either party of any breach hereunder or failure or refusal by the other party to comply with its obligations shall be deemed a waiver of any other or subsequent breach, failure or refusal to so comply.

(8)Neither this Agreement nor any memorandum thereof shall be recorded and any attempted recordation hereof shall be void and shall constitute a default.

(9)Delivery of this Agreement shall not be deemed an offer and neither Seller nor Purchaser shall have any rights or obligations hereunder unless and until both parties have signed and delivered an original of this Agreement. This Agreement may be executed in one or more counterparts, each of which so executed and delivered shall be deemed an original, but all of which taken together shall constitute but one and the same instrument.

(10)Each of the Exhibits and Schedules referred to herein and attached hereto is incorporated herein by this reference.

(11)The caption headings in this Agreement are for convenience only and are not intended to be a part of this Agreement and shall not be construed to modify, explain or alter any of the terms, covenants or conditions herein contained.

(12)This Agreement shall be interpreted and enforced in accordance with the laws of the Province of Ontario and the Laws of Canada applicable therein without reference to principles of conflicts of laws.

(13)If any provision of this Agreement shall be unenforceable or invalid, the same shall not affect the remaining provisions of this Agreement and to this end the provisions of this Agreement are intended to be and shall be severable. Notwithstanding the foregoing sentence, if (i) any provision of this Agreement is finally determined by a court of competent jurisdiction to be unenforceable or invalid in whole or in part, (ii) the opportunity for all appeals of such determination have expired, and (iii) such unenforceability or invalidity alters the substance of this Agreement (taken as a whole) so as to deny either party, in a material way, the realization of the intended benefit of its bargain, such party may terminate this Agreement within thirty (30) days after the final determination by notice to the other. If such party so elects to terminate this Agreement, then this Agreement shall be terminated and neither party shall have any further rights, obligations or liabilities hereunder, except for the Surviving Obligations, and subject to Section 24(3).

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(14)Seller and Purchaser hereby knowingly, voluntarily, intentionally, unconditionally and irrevocably waive any right each may have to trial by jury in any action, proceeding or counterclaim (whether arising in tort or contract) brought by either against the other on any matter arising out of or in any way connected with this Agreement or any other document executed and delivered by either party in connection herewith (including any action to rescind or cancel this agreement on the grounds that this agreement was fraudulently induced or is otherwise void or voidable).

(15)INTENTIONALLY OMITTED.

(16)Purchaser acknowledges that a default by the Seller’s Affiliate under the Lease shall not give rise to any remedies under this Agreement, including, without limitation, any right to receive back all or any portion of the Purchase Price.

(17)To the extent that under the Lease, Seller’s Affiliate, as lessee (“Lessee”), incurs damages (including but not limited to fees and expenses of legal counsel) under the title representation contained in Section 20.1(1) of the Lease and Purchaser, as lessor, under the Lease (“Lessor”) would be entitled to pursue a claim with respect to such matter under the title policy received in connection with the Closing (without waiving any of its rights under such policy except for a reduction in the policy amount), Lessor shall pursue such claim under the title policy for the amount of the damages and shall remit to Lessee the amount of any such damages that Lessee has suffered, provided that (y) Lessee pays all of Lessor’s costs and expenses incurred in connection with Lessor’s pursuit of such claim and (z) Seller first pursues such claim under any existing title policy as the former owner. To the extent that the Title Company that issues the title policies in connection with the Closing pays any such claim made by Lessor, Lessee shall indemnify the Lessor against any damages resulting from the reduction of the title coverage under the Lessor’s title policy upon the payment of such claim. The provisions of this Section 25(17) shall survive Closing.

(18)Any tender of documents or money may be made upon the Seller or the Purchaser or upon their respective solicitors.

(19)This Agreement is conditional on compliance with Section 50 of the Planning Act, R.S.O. 1990, as amended.

(20)The Purchaser hereby waives compliance by the Seller with any applicable bulk sales legislation. The Seller agrees to indemnify and save the Purchaser harmless from all claims, suits, courses of action which any creditor may institute with respect to the Property pursuant to or arising out of non-compliance with such legislation.

(21)All references herein to “Dollars” or the symbol “$” shall mean currency of the United States of America.

(22)The following Sections shall survive the Closing and/or the termination of this Agreement as more particularly set forth in such Section: 2(2), 3, 8, 9, 10(3), 14, 15, 16(3), 17, 24, 25(2), 25(5), 25(19) and 25(20) (collectively, the “Surviving Obligations”).

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[No further text on this page; two signature pages follow]

33

IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first above written.

SELLER:
	1001674 ONTARIO, INC.
	By:	/s/ Elizabeth Daruwala
		Name: Elizabeth Daruwala
		Title:   Director
	By:	/s/ Beth S. Horowitz
		Name: Beth S. Horowitz
		Title:   Director
	1001675 ONTARIO, INC.
	By:	/s/ Elizabeth Daruwala
		Name: Elizabeth Daruwala
		Title:   Director
	By:	/s/ Beth S. Horowitz
		Name: Beth S. Horowitz
		Title:   Director

34

PURCHASER:
	INLAND REAL ESTATE ACQUISITIONS, INC.
	By:	/s/ G. Joseph Cosenza
		Name: G. Joseph Cosenza
		Title:   Authorized Signatory
	By:	/s/ Karen M. Kautz
		Name: Karen M. Kautz
		Title:   Vice President

35

SCHEDULE 1

DESCRIPTION OF THE LAND

Municipal Address: 101 McNabb Street, Markham, Ontario

And legally described as:

Parcel Block 15-1, Section M1915; Block 15, Plan M1915; subject to LA823764 Markham, Regional Municipality of York

PIN:  02990-0020 (LT)

PT BLK 6 PLM1915, designated as Part 2 on Plan 65R-10022, Town of Markham, Regional Municipality of York

PIN: 02990-0068 (LT)

BLK7 PLM19I5, save and except PT 1, Plan 65R-9950, Town of Markham, Regional Municipality of York

PIN:  02990-0070 (LT)

PTBLK7 PL M1915 designated as Part 1 on Plan 65R-9980, Town of Markham, Regional Municipality of York

PIN:  02990-0071 (LT)

PT BLK 16 PL M1915 designated as Part 1 on Plan 65R-20771, Town of Markham, Regional Municipality of York, T/W PT ELK 16 PL Ml915 designated as Part 2 on Plan 65R-8188, as in LT246604

PIN:  02990-0072 (LT)

PT BLK 6 PL Ml 915 designated as Part 3 on Plan 65R-10022, Town of Markham, Regional Municipality of York

PIN:  02990-0076 (LT); and

PT BLK 16 PL M1915 designated as Parts 3, 4and 5 on Plan 65R-9980, Town of Markham, Regional Municipality of York, S/T easement over Part 2, Plan 65R-18257 in favour of Part 1, Plan 65R-I 5257 as in LT1084755; 8/T easement over PT 6 Plan 65R-8188 in favour of Pt. 1, 2, 7, 8, Plan 65R-8188 as in LT246605; S/T easement over PT 6, Plan 65R-8188 and PT2, Plan 66R-11550 in favour of PTS 1,2,7,8, Plan 65R-8188 as in LT246606; S/T LA823764.

PIN:  02990-0078 (LT)

SCHEDULE 2

PERMITTED ENCUMBRANCES

Purchaser shall take title to the Property subject to:

1.(a)Industrial Subdivision Agreement between Cedarland Property Limited and The Corporation of the Town of Markham registered October 2, 1979 as Instrument No. LA803357;

(b)Transfer of Easement from Cedarland Property Limited in favour of The Corporation of the Town of Markham registered December 14, 1979 as Instrument No. LA823764;

(c)Intentionally Deleted;

(d)Site Plan Control Agreement between American Express Canada Inc. and The Corporation of the Town of Markham registered September 3, 1981 as Instrument No. LT57946;

(e)Amendment to Site Plan Control Agreement between American Express Canada Inc. and The Corporation of the Town of Markham registered February 2, 1987 as Instrument No. LT355945;

(f)Instrument No. LT244318 is an Application to register By-Law No. 168-85 with respect to Part Lot Control registered August 27, 1985 relating to PIN Nos. 02990-0078 and 02990-0072;

(g)Instrument No. LT217670Z is an Application to Register Condition, Restriction or Covenant by Cedarland Properties Limited on March 20, 1985 relating to PIN Nos. 02990-0068, 02990-0070, 02990-0071 and 02990-0076;

(h)Instrument No. LT1410472 is an Application to register Notice of Site Plan Control Agreement registered March 20, 1985 relating to PIN Nos. 02990-0068, 02990-0070 and 02990-0072;

(i)Instrument No. LT367375 is an Application to Register Notice of a Site Plan Agreement registered March 26, 1987 relating to PIN No. 02990-0076;

(j)Intentionally Deleted;

(k)Intentionally Deleted;

(l)Intentionally Deleted;

(m)Notice of Lease registered as Instrument No. ~ on ~ between Inland Western Markham Corp. and Amex Canada Inc., containing a Right of First Refusal for the Tenant to purchase the premises;

(n)Easement over Part 2 on Plan 65R-18257 in favour of the owners of Part 1 on Plan 65R-18257 as described in Instrument No. LT1084755;

(o)Easement over Part 6, Plan 65R-8188 in favour of the owners of Parts 1, 2, 7 and 8 on Plan 65R-8188 as described in Instrument No. LT246605;

(p)Easement over Part 6, Plan 65R-8188 and Part 2 on Plan 66R-11550 in favour of the owners of Parts 1, 2, 7 and 8 on Plan 65R-8188 as described in Instrument No. LT246606; and

(q)The location, boundaries, perimeter description and easements disclosed on the survey dated January 11, 2005 and prepared by Les Rudnicki of Speight, Van Nostrand & Gibson Limited.

2.Any reservations or exceptions contained in the original grants from the Crown as varied by statute.

2

SCHEDULE 8(4)(2)

BREACHES OR DEFAULTS UNDER OTHER DOCUMENTS

None

3

SCHEDULE 8(4)(5)

DUE DILIGENCE ITEMS DELIVERED TO PURCHASER

1. Plan of Survey with Topography Blocks 7 and 15 part of blocks 6 and 16 Registered Plan M-1915 dated September 23, 2004 prepared by Speight, Van Nostrang & Gibson Limited.

2. Draft Phase I Environmental Assessment of GFS International dated June 7, 2004 prepared by Property Solutions Incorporated (Property Solutions document no. 20041390) with final drafts sent November 29, 2004.

3. Draft Property Condition Assessment of American Express Service Center dated June 8, 2004, prepared by Property Solutions Incorporated (Property Solutions document no. 20041391).

4. Environmental Reliance Letters / Bank of America modifications.

5. Existing title commitment dated May 13, 2004, prepared by LandAmerica Lawyers Title Insurance Corporation.

6. Evidence of Zoning Compliance dated June 3, 2004 from Markham Development Services Commission Building Standards.

7. Property Tax Bill dated January 9, 2004 from Town of Markham - Tax Inquiries.

4

EX-10.502

Exhibit 10.502

PURCHASE AGREEMENT

(101 McNabb Street, Markham)

THIS AGREEMENT is made this 25^th ay of January, 2005.

BETWEEN:

Inland Western Markham Limited Partnership

(the “Buyer”)

- and -

Inland Western Markham Corp.

(the “Seller”)

WHEREAS the Seller is the owner of the Assets and the parties have agreed upon the purchase and sale of the Assets on the terms set out herein.

NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the covenants and agreements contained herein, the parties agree as follows:

ARTICLE 1 - - GENERAL CONTRACT PROVISIONS

1.1Defined Terms

Where used in this agreement, unless the context otherwise requires, the following words and phrases shall have the meanings set forth below:

“Assets” are the Lease and the Property.

“Business Day” is every day except Saturday, Sunday and a statutory holiday.

“Closing Date” is the next Business Day after the later of the date of the registration of the Mortgage and the advance of funds thereunder.

“Lease” is the lease of the Property between the Seller, as landlord, and AMEX Canada Inc., as tenant.

“Mortgage” is the first mortgage to be registered on the Property in favour of Bank of America, N.A. in the principal amount of $25,380,000 USD.

“Note” is the form of promissory note attached as schedule 2.

“Permitted Encumbrances” are (a) the Lease, (b) the Mortgage, (c) the registered restrictions and municipal agreements affecting the Property, provided such restrictions and agreements have been fully complied with to the Closing Date and do not prevent the existing uses of the Property, (d) easements for public utilities supplying services to the Property, (e) the reservations in the original grant from the Crown, and (f) minor title defects that do not materially affect the value or existing uses of the Property.

“Property” is the land and the structures situate thereon described in schedule 1.

“Purchase Price” is the sum of $42,000,000 USD.

1.2Interpretation

Grammatical variations of any terms defined herein shall have similar meanings. Words importing the singular number shall include the plural and vice versa. Words importing the masculine gender shall include the feminine and neuter genders. The division of this agreement into separate sections, subsections and clauses, and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this agreement.

1.3Binding Effect

This agreement shall enure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.

1.4Time

Time shall be of the essence of this agreement.

1.5Currency

All references to amounts of currency shall be deemed to refer to United States dollars.

1.6Governing Law

This agreement is executed and delivered in the Province of Ontario and all rights and obligations in connection therewith shall be construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein.

1.7Further Assurances

The Seller shall at any time and from time to time after the Closing Date at the Buyer’s Expense execute and deliver to the Buyer such further documents or other assurances as the Buyer may reasonably require in order to effectively vest the Assets in the Buyer or its nominee.

2

ARTICLE 2 - - PURCHASE AND SALE

2.1Agreement to Purchase

Subject to the terms and provisions hereof, the Seller shall sell the Assets to the Buyer and the Buyer shall purchase the Assets from the Seller on the Closing Date.

2.2Payment

The Purchase Price shall be paid on the Closing Date as follows:

(a)as to $25,380,000 by the Buyer executing and delivering the Note to the Seller; and

(b)the Buyer shall pay to the Seller, or as it may direct in writing, the balance of the Purchase Price by setting off such amount against the amount owed by the Seller to the Buyer pursuant to a loan agreement dated as of the date hereof.

ARTICLE 3 – TITLE

3.1Conveyance

The Seller shall cause a Transfer/Deed of Land in standard Ontario form conveying good and marketable title to the Property to be executed and delivered to the Buyer on the Closing Date free and clear of all restrictions, charges, liens, encroachments and encumbrances save and except for those Permitted Encumbrances that are in good standing.

3.2Planning Act

This agreement shall be effective to create an interest in the Property only if the subdivision control provisions of the Planning Act are complied with by the Seller on or before the Closing Date. The Seller shall proceed diligently at its own expense to obtain any necessary consent required for the conveyance of the Property to the Buyer.

ARTICLE 4 - - REPRESENTATIONS, WARRANTIES AND COVENANTS

The Seller represents, warrants and covenants (and acknowledges that Buyer is relying upon such representations, warranties and covenants in connection with the purchase by the Buyer of the Assets) that, as of the date hereof and from and after the Closing Date:

4.1Incorporation

The Seller is duly incorporated and subsisting and is a resident of Canada for purposes of the Income Tax Act (Canada) with all powers, licenses, permits and rights which it requires to carry on its business.

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4.2Authority

The Seller has good right and full power and authority to execute and deliver this agreement and all other documents and things to be executed, delivered and done by it and to incur and carry out all obligations provided for herein. The performance of the Seller’s obligations hereunder is not in conflict with, and does not constitute a default under, any terms, provisions or conditions of its charter, articles or by-laws.

4.3Mortgage

From and after the Closing Date, the Seller shall pay all amounts owing from time to time under the Mortgage and shall perform all covenants so as to keep the Mortgage in good standing at all times. The Seller acknowledges that the Note contains provisions allowing the Buyer to set off amounts paid to the holder of the Mortgage against amounts owing under the Note.

4.4Bulk Sales Act

The Seller shall indemnify the Buyer for all claims resulting from the Seller not complying with the provisions of the Bulk Sales Act (Ontario).

4.5GST

The Seller is a GST registrant under the Excise Tax Act and such registration will extend to and cover the business of the Buyer as the Seller is the general partner of the Buyer.

ARTICLE 5 – CLOSING

5.1Closing Deliveries of Seller

On the Closing Date, the Seller shall execute and/ or deliver to Buyer or the Buyer’s Solicitors:

(a)the Transfer/Deed of Land for the Property; and

(b)an indemnity in relation to the covenant of the Seller under section 4.3.

5.2Closing Deliveries of Buyer

On the Closing Date, the Buyer shall execute and/or deliver to Seller:

(a)the Note; and

(b)the sum due on closing pursuant to section 2.2 hereof.

4

IN WITNESS WHEREOF the parties have executed this agreement.

`	INLAND WESTERN MARKHAM LIMITED PARTNERSHIP, by its general partner Inland Western Markham Corp., a New Brunswick corporation
	by:	/s/ Debra A. Palmer
			Debra A. Palmer
	Its:		Assistant Secretary
	INLAND WESTERN MARKHAM CORP., a New Brunswick corporation
	by:	/s/ DebraA. Palmer
			Debra A. Palmer, Assistant Secretary

5

SCHEDULE 1

Property Address:	101 McNabb Street, Markham, Ontario being PIN’s:
	02990-0020 (LT)
	02990-0068 (LT)
	02990-0070 (LT)
	02990-0071 (LT)
	02990-0072 (LT)
	02990-0076 (LT)
	02990-0078 (LT)

6

Article 3 – DEFAULT AND ACCELERATION

                The Debt shall without notice become immediately due and payable at the option of Lender if any payment reuqired in this Note is not paid prior to the tenth (10^th) day following the date when due or if not paid on the Maturity Date or on the happening of any other Event of Default.

Article 4 – PAYMENTS AFTER DEFAULT

                Upon the occurrence and during the continuance of an Event of Default, interest on the outstanding principal balance of the Loan and, to the extent permitted by law, overdue interest and other amounts due in respect of the Loan and, to the extent permitted by law, overdue interest and other amounts due in respect of the Loan shall accrue at a rate per annum equal to the lesser of (a) the maximum rate permitted by applicable law, or (b) four percent (4%) above the Note Rate (such rate, the "Default Rate").  Interest at the Default Rate shall be computed from the occurrence of the Event of Default until the earlier of (i) the actual receipt and collection of the Debt (or that portion thereof that is then due) and (ii) the cure of such Event of Default.  To the extent permitted by applicable law, interest at the Default Rate shall be added to the Debt, shall itself accrue interest at the same rate as the Loan and shall be secured by the Mortgage.  This Article shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of the occurrence of any Event of Default; the acceptance of any payment from Borrower shall not be deemed to cure or constitute a waiver of any Event of Default; and Lender retains its rights under this Note, the Loan Agreement and the other Loan Documents to accelerate and to continue to demand payment of the Debt upon the happening of and during the continuance any Event of Default, despite any payment by Borrower to Lender.

Article 5 – PREPAYMENT

Except as otherwise expressly permitted by this Article 5, no voluntary prepayments, whether in whole or in part, of the Loan or any other amount at any time due and owing under this Note can be made by Borrower or any other Person without the express written consent of Lender.

(a)            Voluntary Prepayment.  Borrower shall have no right to make, and Lender shall have no obligation to accept, any voluntary prepayment, whether in whole or in part, of any other amount under this Note at any time.

(b)           Involuntary Prepayment Involuntary Prepayment.  In the event of any involuntary prepayment of any amount under this Note, whether in whole or in part, in connection with or following Lender's acceleration of this Note or otherwise, and whether the Mortgage is satisfied or released by foreclosure (whether by power of sale or judicial proceeding), deed in lieu of foreclosure or by any other means, including, without limitation, repayment of this Note by Borrower or any other person pursuant to any statutory or common law right of redemption, Borrower shall, in addition to any portion of the principal balance prepaid (together with all interest accrued and unpaid thereon and, in the event the prepayment is made on a date other than a Scheduled Payment Date, a sum equal to the amount of interest which would have accrued under this Note on the amount of such prepayment if such prepayment had occurred on the next Scheduled Payment Date), pay to Lender a prepayment premium in an amount equal to Yield Maintenance together with, an amount equal to one percent (1%) of the portion of the Loan being prepaid.

9

As used herein, “Yield Maintenance” means a prepayment premium in an amount equal to the greater of equal to the greater of (i) 1% of the portion of the amount being prepaid, and (ii) the present value as of the Prepayment Calculation Date of a series of monthly payments over the remaining term of this Note through and including the Optional Prepayment Date each equal to the amount of interest which would be due on the portion being prepaid assuming a per annum interest rate equal to the excess of the Note Rate over the Reinvestment Yield, and discounted at the Reinvestment Yield. As used herein, “Reinvestment Yield” means the yield calculated by the linear interpolation of the yields, as reported in the Federal Reserve Statistical Release H.15-Selected Interest Rates under the heading “U.S. government securities” and the sub-heading “Treasury constant maturities” for the week ending prior to the Prepayment Calculation Date, of the U.S. Treasury constant maturities with maturity dates (one longer and one equal to or shorter) most nearly approximating the Optional Prepayment Date, and converted to a monthly compounded nominal yield. In the event Release H.15 is no longer published, Lender shall select a comparable publication to determine the Reinvestment Yield. The “Prepayment Calculation Date” shall mean, as applicable, the date on which (i) Lender applies any prepayment to the reduction of the outstanding principal amount of this Note, (ii) Lender accelerates the Loan, in the case of a prepayment resulting from acceleration, or (iii) Lender applies funds held under any Reserve Account, in the case of a prepayment resulting from such an application (other than in connection with acceleration of the Loan).

(c)           Insurance Proceeds and Awards; Excess Interest. Notwithstanding any other provision herein to the contrary, and provided no Default exists, Borrower shall not be required to pay any prepayment premium in connection with any prepayment to the Mortgagee by the Lender occurring solely as a result of (i) the application of insurance proceeds or awards pursuant to the terms of the loan documents between the Lender and the Mortgagee, or (ii) the application of any interest in excess of the maximum rate permitted by applicable law to the reduction of the Loan.

Article 6 – USURY SAVINGS

This Note is subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the principal balance at a rate which could subject Lender to either civil or criminal liability as a result of being in excess of the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by this Note and as provided for herein, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions (such rate, the “Maximum Legal Rate”). If, by the terms of this Note, Borrower is at any time required or obligated to pay interest on the principal balance due hereunder at a rate in excess of the Maximum Legal Rate, the Note Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced to the Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. All sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the sums due under the Loan, shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the Loan does not exceed the Maximum Legal Rate of interest from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.

10

Article 7 – LATE PAYMENT CHARGE

If any principal or interest payment is not paid by Borrower before the tenth (10th) day after the date the same is due (or such greater period, if any, required by applicable law), Borrower shall pay to Lender upon demand an amount equal to the lesser of four percent (4%) of such unpaid sum or the maximum amount permitted by applicable law in order to defray the expense incurred by Lender in handling and processing such delinquent payment and to compensate Lender for the loss of the use of such delinquent payment, provided however, Borrower shall not be required to pay Lender a late charge in connection with the final payment under the loan. Any such amount shall be secured by the Mortgage and the other Loan Documents to the extent permitted by applicable law.

Article 8 – GOVERNING LAW

This Note shall in all respects be governed, construed, applied and enforced in accordance with the laws of the Province of Ontario and any applicable federal laws of Canada.

IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and year first above written.

INLAND WESTERN MARKHAM LIMITED PARTNERSHIP, by its general partner Inland Western Markham Corp., a New Brunswick corporation
by:
	Debra A. Palmer
Its:	Assistant Secretary

11

EX-10.503

Exhibit 10.503

LOAN TERMS TABLE

Note Date: January 26, 2005	MERS No.: 8000101-0000000569-3
Borrower: INLAND WESTERN MARKHAM CORP., a New Brunswick corporation
Original Principal Amount: $25,380,000.00	Loan No.: 58625
Initial Note Rate: 4.2975%	Servicing No.: 3190725
Revised Note Rate: As defined in Article 2
Monthly Payment Amount: As defined in Article l(a)	Optional Prepayment Date:
	February 1, 2010
Maturity Date: February 1, 2015

PROMISSORY NOTE

FOR VALUE RECEIVED Borrower, having its principal place of business at 2901 Butterfield Road, Oak Brook, IL 60523, hereby unconditionally promises to pay to the order of BANK OF AMERICA, N.A., a national banking association, having an address at 214 North Tryon Street, Charlotte, North Carolina 28255 (“Lender”), the Original Principal Amount, in lawful money of the United States of America with interest thereon to be computed from the date of this Note at the Note Rate (as defined below), and to be paid in accordance with the terms set forth below. The Loan Terms Table set forth above is a part of this Note and all terms used in this Note which are defined in the Loan Terms Table shall have the meaning set forth therein. All capitalized terms not defined herein shall have the respective meanings set forth in that certain Loan Agreement dated the date hereof between Lender and Borrower (the “Loan Agreement”).

Article 1 – PAYMENT TERMS; MANNER OF PAYMENT

(a)Borrower hereby agrees to pay sums due under this Note as follows: an initial payment is due on the Closing Date for interest from the Closing Date through and including the last day of the calendar month in which the Closing Date occurs; and thereafter, except as may be adjusted in accordance with the last sentence of Section l(b), consecutive monthly installments of interest only in an amount calculated in accordance with Article 2 below (such amount, the “Monthly Payment Amount”) shall be payable pursuant to the terms hereof on the first (1st) day of each month beginning on March 1, 2005 (each such date through and including the Maturity Date, a “Scheduled Payment Date”) until the entire indebtedness evidenced hereby is fully paid, except that any remaining indebtedness, if not sooner paid, shall be due and payable on the Maturity Date. In addition to the foregoing, commencing on the Optional Prepayment Date and continuing on each Scheduled Payment Date thereafter, Borrower hereby agrees to pay all Excess Cash (as defined in the Loan Agreement) until the principal amount of this Note is paid in full, provided, however, the entire Debt, including all Accrued Interest (defined below), shall be due on the Maturity Date.

(b)Each payment by Borrower hereunder shall be made to P.O. Box 65585, Charlotte, NC 28265-0585, or at such other place as Lender may designate from time to time in writing. Whenever any payment hereunder shall be stated to be due on a day which is not a Business Day, such payment shall be made on the first Business Day preceding such scheduled

due date. All payments made by Borrower hereunder or under the other Loan Documents shall be made irrespective of, and without any deduction for, any setoff, defense or counterclaims.

(c)Provided no Event of Default has occurred, (i) each Monthly Payment Amount made as scheduled on this Note shall be applied first to the payment of interest computed at the Initial Note Rate, and the balance toward the reduction of the principal amount of this Note, and (ii) each payment of Excess Cash made as required on this Note shall be applied first to the reduction of the principal amount of this Note until paid in full, and the balance to Accrued Interest until paid in full. All voluntary and involuntary prepayments on this Note shall be applied, to the extent thereof, to accrued but unpaid interest on the amount prepaid, to the remaining Principal Amount, and any other sums due and unpaid to the Lender in connection with the Loan, in such manner and order as Lender may elect in its sole and absolute discretion, including, but not limited to, application to principal installments in inverse order of maturity. Following the occurrence of an Event of Default, any payment made on this Note shall be applied to accrued but unpaid interest, late charges, accrued fees, the unpaid principal amount of this Note, and any other sums due and unpaid to Lender in connection with the Loan, in such manner and order as Lender may elect in its sole and absolute discretion.

(d)Remittances in payment of any part of the indebtedness other than in the required amount in immediately available U.S. funds shall not, regardless of any receipt or credit issued therefor, constitute payment until the required amount is actually received by the holder hereof in immediately available U.S. funds and shall be made and accepted subject to the condition that any check or draft may be handled for collection in accordance with the practices of the collecting bank or banks.

Article 2 - INTEREST

The Loan shall bear interest at a fixed rate per annum equal to the Note Rate. The “Note Rate” shall mean (a) from the date of this Note through but excluding the Optional Prepayment Date, the Initial Note Rate, and (b) from and after the Optional Prepayment Date through and including the date this Note is paid in full, the Revised Note Rate. The “Revised Note Rate” shall mean a rate per annum equal to the sum of (x) two percent (2.00%) and (y) the greater of (i) the Initial Note Rate and (ii) the sum of the Treasury Rate plus five percent (5.00%). The “Treasury Rate” shall mean the yield per annum calculated by the linear interpolation of yields, as reported in the Federal Reserve Statistical Release H.15 – Selected Interest Rates under the heading “US government securities” and the subheading “Treasury constant maturities” for the week ending prior to the Optional Prepayment Date, of U.S. Treasury constant maturities with maturity dates (one longer and one shorter) most nearly approximating the Maturity Date. In the event H.15 is no longer published, Lender in its reasonable discretion shall select a comparable publication to determine the Treasury Rate. From and after the Optional Prepayment Date, interest in excess of the Initial Note Rate shall accrue and be added to the Debt and shall earn interest at the Revised Note Rate to the extent permitted by applicable law (“Accrued Interest”). Interest shall be computed on the basis of a three hundred sixty (360) day year consisting of twelve (12) months of thirty (30) days each. Except as otherwise set forth herein or in the other Loan Documents, interest shall be paid in arrears.

2

Article 3 - - DEFAULT AND ACCELERATION

The Debt shall without notice become immediately due and payable at the option of Lender if any payment required in this Note is not paid prior to the tenth (10^th) day following the date when due or if not paid on the Maturity Date or on the happening of any other Event of Default.

Article 4 - PAYMENTS AFTER DEFAULT

Upon the occurrence and during the continuance of an Event of Default, interest on the outstanding principal balance of the Loan and, to the extent permitted by law, overdue interest and other amounts due in respect of the Loan shall accrue at a rate per annum equal to the lesser of (a) the maximum rate permitted by applicable law, or (b) four percent (4%) above the Note Rate (such rate, the “Default Rate”). Interest at the Default Rate shall be computed from the occurrence of the Event of Default until the earlier of (i) the actual receipt and collection of the Debt (or that portion thereof that is then due) and (ii) the cure of such Event of Default. To the extent permitted by applicable law, interest at the Default Rate shall be added to the Debt, shall itself accrue interest at the same rate as the Loan and shall be secured by the Security Instrument. This Article shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of the occurrence of any Event of Default; the acceptance of any payment from Borrower shall not be deemed to cure or constitute a waiver of any Event of Default; and Lender retains its rights under this Note, the Loan Agreement and the other Loan Documents to accelerate and to continue to demand payment of the Debt upon the happening of and during the continuance any Event of Default, despite any payment by Borrower to Lender.

Article 5 - PREPAYMENT

Except as otherwise expressly permitted by this Article 5, no voluntary prepayments, whether in whole or in part, of the Loan or any other amount at any time due and owing under this Note can be made by Borrower or any other Person without the express written consent of Lender.

(a)Voluntary Prepayment.  Borrower shall have no right to make, and Lender shall have no obligation to accept, any voluntary prepayment, whether in whole or in part, of the Loan, or any other amount under this Note or the other Loan Documents, at any time.

(b)Involuntary Prepayment. In the event of any involuntary prepayment of the Loan or any other amount under this Note, whether in whole or in part, in connection with or following Lender’s acceleration of this Note or otherwise, and whether the Security Instrument is satisfied or released by foreclosure (whether by power of sale or judicial proceeding), deed in lieu of foreclosure or by any other means, including, without limitation, repayment of the Loan by Borrower or any other Person pursuant to any statutory or common law right of redemption, Borrower shall pay any portion of the principal balance of the Loan prepaid (together with all interest accrued and unpaid thereon and, in the event the prepayment is made on a date other than a Scheduled Payment Date, a sum equal to the amount of interest which would have accrued

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under this Note on the amount of such prepayment if such prepayment had occurred on the next Scheduled Payment Date).

(c)Insurance Proceeds and Awards; Excess Interest. Notwithstanding any other provision herein to the contrary, and provided no Default exists, Borrower shall not be required to pay any prepayment premium in connection with any prepayment occurring solely as a result of (i) the application of Insurance Proceeds or Awards pursuant to the terms of the Loan Documents, or (ii) the application of any interest in excess of the maximum rate permitted by applicable law to the reduction of the Loan.]

Article 6 - SECURITY

This Note is secured by the Security Instrument and the other Loan Documents. All of the terms, covenants and conditions contained in the Loan Agreement, the Security Instrument and the other Loan Documents are hereby made part of this Note to the same extent and with the same force as if they were fully set forth herein.

Article 7 - USURY SAVINGS

This Note is subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the principal balance of the Loan at a rate which could subject Lender to either civil or criminal liability as a result of being in excess of the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by this Note and as provided for herein or in the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan (such rate, the “Maximum Legal Rate”). If, by the terms of this Note or the other Loan Documents, Borrower is at any time required or obligated to pay interest on the principal balance due hereunder at a rate in excess of the Maximum Legal Rate, the Note Rate or the Default Rate, as the case may be, shall be deemed to be immediately reduced to the Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. All sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the sums due under the Loan, shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the Loan does not exceed the Maximum Legal Rate of interest from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.

Article 8 - - LATE PAYMENT CHARGE

If any principal or interest payment is not paid by Borrower before the tenth (10th) day after the date the same is due (or such greater period, if any, required by applicable law), Borrower shall pay to Lender upon demand an amount equal to the lesser of four percent (4%) of such unpaid sum or the maximum amount permitted by applicable law in order to defray the expense incurred by Lender in handling and processing such delinquent payment and to compensate Lender for the loss of the use of such delinquent payment, provided however, Borrower shall not be required to pay Lender a late charge in connection with the final payment

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under the loan. Any such amount shall be secured by the Security Instrument and the other Loan Documents to the extent permitted by applicable law.

Article 9 - - NO ORAL CHANGE

This Note may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Borrower or Lender, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought.

Article 10 - - WAIVERS

BORROWER AND ALL OTHERS WHO MAY BECOME LIABLE FOR THE PAYMENT OF ALL OR ANY PART OF THE DEBT DO HEREBY SEVERALLY WAIVE PRESENTMENT AND DEMAND FOR PAYMENT, NOTICE OF DISHONOR, NOTICE OF INTENTION TO ACCELERATE, NOTICE OF ACCELERATION, PROTEST AND NOTICE OF PROTEST AND NON-PAYMENT AND ALL OTHER NOTICES OF ANY KIND EXCEPT AS PROVIDED IN THE LOAN AGREEMENT. NO RELEASE OF ANY SECURITY FOR THE DEBT OR EXTENSION OF TIME FOR PAYMENT OF THIS NOTE OR ANY INSTALLMENT HEREOF, AND NO ALTERATION, AMENDMENT OR WAIVER OF ANY PROVISION OF THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS MADE BY AGREEMENT BETWEEN LENDER OR ANY OTHER PERSON SHALL RELEASE, MODIFY, AMEND, WAIVE, EXTEND, CHANGE, DISCHARGE, TERMINATE OR AFFECT THE LIABILITY OF BORROWER, AND ANY OTHER PERSON WHO MAY BECOME LIABLE FOR THE PAYMENT OF ALL OR ANY PART OF THE DEBT, UNDER THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS. NO NOTICE TO OR DEMAND ON BORROWER SHALL BE DEEMED TO BE A WAIVER OF THE OBLIGATION OF BORROWER OR OF THE RIGHT OF LENDER TO TAKE FURTHER ACTION WITHOUT FURTHER NOTICE OR DEMAND AS PROVIDED FOR IN THIS NOTE, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS. IF BORROWER IS A LIMITED LIABILITY COMPANY, THE AGREEMENTS HEREIN CONTAINED SHALL REMAIN IN FORCE AND BE APPLICABLE, NOTWITHSTANDING ANY CHANGES IN THE INDIVIDUALS COMPRISING THE LIMITED LIABILITY COMPANY, AND THE TERM “BORROWER,” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATE OR SUCCESSOR LIMITED LIABILITY COMPANY, BUT ANY PREDECESSOR LIMITED LIABILITY COMPANY AND ITS MEMBERS SHALL NOT THEREBY BE RELEASED FROM ANY LIABILITY. IF BORROWER IS A PARTNERSHIP, THE AGREEMENTS HEREIN CONTAINED SHALL REMAIN IN FORCE AND BE APPLICABLE, NOTWITHSTANDING ANY CHANGES IN THE INDIVIDUALS COMPRISING THE PARTNERSHIP, AND THE TERM “BORROWER,” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATE OR SUCCESSOR PARTNERSHIP, BUT ANY PREDECESSOR PARTNERSHIP AND THEIR PARTNERS SHALL NOT THEREBY BE RELEASED FROM ANY LIABILITY. IF BORROWER IS A CORPORATION, THE AGREEMENTS CONTAINED HEREIN SHALL REMAIN IN FULL FORCE AND BE APPLICABLE NOTWITHSTANDING ANY CHANGES IN THE

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SHAREHOLDERS COMPRISING, OR THE OFFICERS AND DIRECTORS RELATING TO, THE CORPORATION, AND THE TERM “BORROWER” AS USED HEREIN, SHALL INCLUDE ANY ALTERNATIVE OR SUCCESSOR CORPORATION, BUT ANY PREDECESSOR CORPORATION SHALL NOT BE RELIEVED OF LIABILITY HEREUNDER. (NOTHING IN THE FOREGOING SENTENCE SHALL BE CONSTRUED AS A CONSENT TO, OR A WAIVER OF, ANY PROHIBITION OR RESTRICTION ON TRANSFERS OF INTERESTS IN SUCH BORROWING ENTITY WHICH MAY BE SET FORTH IN THE LOAN AGREEMENT, THE MORTGAGE OR ANY OTHER LOAN DOCUMENTS.) IF BORROWER CONSISTS OF MORE THAN ONE PERSON OR PARTY, THE OBLIGATIONS AND LIABILITIES OF EACH PERSON OR PARTY SHALL BE JOINT AND SEVERAL.

Article 11 - - TRIAL BY JURY

BORROWER AND LENDER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS NOTE, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF LENDER AND BORROWER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER AND LENDER.

Article 12 - - TRANSFER

Upon the transfer of this Note, Borrower hereby waiving notice of any such transfer, Lender may deliver all the collateral mortgaged, granted, pledged or assigned pursuant to the Loan Documents, or any part thereof, to the transferee who shall thereupon become vested with all the rights herein or under applicable law given to Lender with respect thereto, and Lender shall thereafter forever be relieved and fully discharged from any liability or responsibility in the matter arising from events thereafter occurring; but Lender shall retain all rights hereby given to it with respect to any liabilities and the collateral not so transferred.

Article 13 - - EXCULPATION

The provisions of Article 15 of the Loan Agreement are hereby incorporated by reference into this Note to the same extent and with the same force as if fully set forth herein.

Article 14 - - GOVERNING LAW

This Note shall in all respects be governed, construed, applied and enforced in accordance with the laws of the State of New York and any applicable law of the United States of America.

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Article 15 - - NOTICES

All notices or other written communications hereunder shall be delivered in accordance with Article 16 of the Loan Agreement.

Article 16 - - TAX IDENTIFICATION NUMBER

This Note provides for the Borrower’s federal taxpayer identification number to be inserted in the Loan Terms Table on the first page of this Note if the Borrower has been assigned such identification number. If such number is not available at the time of execution of this Note or is not inserted by the Borrower, the Borrower hereby authorizes and directs the Lender to fill in such number on the first page of this Note when the Borrower provides to Lender, advises the Lender of, or the Lender otherwise obtains, such number.

Article 17 - - ATTORNEYS’ FEES

Any provisions in this Note or elsewhere in the Loan Documents providing for the payment of “attorneys’ fees,” “reasonable attorneys’ fees” or words of similar import, shall mean actual attorneys’ fees and paralegal fees incurred based upon the usual and customary fees or hourly rates of the attorneys and paralegals involved without giving effect to any statutory presumption that may then be in effect.

Article 18 - SEVERABILITY

Wherever possible, each provision of this Note shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Note shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Note.

[NO FURTHER TEXT ON THIS PAGE]

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IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and year first above written.

INLAND WESTERN MARKHAM CORP., a New Brunswick corporation
By:	/s/ Scott Wilton
Name:	Scott Wilton
Its:	Secretary

EX-10.504

Exhibit 10.504

LOAN AGREEMENT

Dated as of January 26, 2005

Between

INLAND WESTERN MARKHAM CORP.,

as Borrower

and

BANK OF AMERICA, N.A.,

as Lender

TABLE OF CONTENTS

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SECTION 5.13. ESTOPPEL STATEMENT

SECTION 5.14. LEASING MATTERS

SECTION 5.15. PROPERTY MANAGEMENT

SECTION 5.16. LIENS

SECTION 5.17. DEBT CANCELLATION

SECTION 5.18. ZONING

SECTION 5.19. ERISA

SECTION 5.20. NO JOINT ASSESSMENT

SECTION 5.21. RECIPROCAL EASEMENT AGREEMENTS

ARTICLE 6 ENTITY COVENANTS

SECTION 6.1. SINGLE PURPOSE ENTITY/SEPARATENESS

SECTION 6.2. CHANGE OF NAME, IDENTITY OR STRUCTURE

SECTION 6.3. BUSINESS AND OPERATIONS

SECTION 6.4. INDEPENDENT DIRECTOR

ARTICLE 7 NO SALE OR ENCUMBRANCE

SECTION 7.1. TRANSFER DEFINITIONS

SECTION 7.2. NO SALE/ENCUMBRANCE

SECTION 7.3. PERMITTED TRANSFERS

SECTION 7.4. LENDER’S RIGHTS

SECTION 7.5. ASSUMPTION

SECTION 7.6. ASSUMPTION BY INLAND PERMITTED TRANSFEREE

ARTICLE 8 INSURANCE; CASUALTY; CONDEMNATION; RESTORATION

SECTION 8.1. INSURANCE

SECTION 8.2. CASUALTY

SECTION 8.3. EXPROPRIATION

SECTION 8.4. RESTORATION

ARTICLE 9 REPLACEMENTS; RESERVE FUNDS

SECTION 9.1. REPLACEMENTS

SECTION 9.2. TAX AND INSURANCE RESERVE FUNDS

SECTION 9.3. RESERVE FUNDS GENERALLY

ARTICLE 10 CASH MANAGEMENT

SECTION 10.1. CASH MANAGEMENT ACCOUNT

SECTION 10.2. DEPOSITS AND WITHDRAWALS

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SECTION 10.3. SECURITY INTEREST

ARTICLE 11 EVENTS OF DEFAULT; REMEDIES

SECTION 11.1. EVENT OF DEFAULT

SECTION 11.2. REMEDIES

ARTICLE 12 ENVIRONMENTAL PROVISIONS

SECTION 12.1. ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES

SECTION 12.2. ENVIRONMENTAL COVENANTS

SECTION 12.3. LENDER’S RIGHTS

SECTION 12.4. OPERATIONS AND MAINTENANCE PROGRAMS

SECTION 12.5. ENVIRONMENTAL DEFINITIONS

ARTICLE 13 SECONDARY MARKET

SECTION 13.1. TRANSFER OF LOAN

SECTION 13.2. DELEGATION OF SERVICING

SECTION 13.3. DISSEMINATION OF INFORMATION

SECTION 13.4. COOPERATION

ARTICLE 14 INDEMNIFICATIONS

SECTION 14.1. GENERAL INDEMNIFICATION

SECTION 14.2. MORTGAGE AND INTANGIBLE TAX INDEMNIFICATION

SECTION 14.3. ERISA INDEMNIFICATION

SECTION 14.4. SURVIVAL

ARTICLE 15 EXCULPATION

SECTION 15.1. EXCULPATION

ARTICLE 16 NOTICES

SECTION 16.1. NOTICES

ARTICLE 17 FURTHER ASSURANCES

SECTION 17.1. REPLACEMENT DOCUMENTS

SECTION 17.2. RECORDING OF MORTGAGE, ETC.

SECTION 17.3. FURTHER ACTS, ETC.

SECTION 17.4. CHANGES IN TAX, DEBT, CREDIT AND DOCUMENTARY STAMP LAWS

SECTION 17.5. EXPENSES

ARTICLE 18 WAIVERS

SECTION 18.1. REMEDIES CUMULATIVE; WAIVERS

SECTION 18.2. MODIFICATION, WAIVER IN WRITING

SECTION 18.3. DELAY NOT A WAIVER

SECTION 18.4. TRIAL BY JURY

SECTION 18.5. WAIVER OF NOTICE

SECTION 18.6. REMEDIES OF BORROWER

SECTION 18.7. WAIVER OF MARSHALLING OF ASSETS

SECTION 18.8. WAIVER OF STATUTE OF LIMITATIONS

SECTION 18.9. WAIVER OF COUNTERCLAIM

ARTICLE 19GOVERNING LAW

SECTION 19.1. CHOICE OF LAW

SECTION 19.2. SEVERABILITY

SECTION 19.3. PREFERENCES

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ARTICLE 20 MISCELLANEOUS

SECTION 20.1. SURVIVAL

SECTION 20.2. LENDER’S DISCRETION

SECTION 20.3. HEADINGS

SECTION 20.4. COST OF ENFORCEMENT

SECTION 20.5. SCHEDULES INCORPORATED

SECTION 20.6. OFFSETS, COUNTERCLAIMS AND DEFENSES

SECTION 20.7. NO JOINT VENTURE OR PARTNERSHIP; NO THIRD PARTY BENEFICIARIES

SECTION 20.8. PUBLICITY

SECTION 20.9. CONFLICT; CONSTRUCTION OF DOCUMENTS; RELIANCE

SECTION 20.10. ENTIRE AGREEMENT

SECTION 20.11. INTEREST ACT (CANADA)

SECTION 20.12. MAXIMUM INTEREST RATE

SECTION 20.13. JUDGMENT CURRENCY

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LOAN AGREEMENT

THIS LOAN AGREEMENT, dated as of January 26, 2005 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”), between BANK OF AMERICA, N.A., a national banking association, having an address at Bank of America Corporate Center, 214 North Tryon Street, Charlotte, North Carolina 28255 (together with its successors and/or assigns, “Lender”) and INLAND WESTERN MARKHAM CORP., a corporation governed by the laws of New Brunswick having an address at 101 McNabb Street, Markham, Ontario, Canada L3R 4H8 (together with its successors and/or assigns, “Borrower”).

RECITALS:

Borrower desires to obtain the Loan (defined below) from Lender.

Lender is willing to make the Loan to Borrower, subject to and in accordance with the terms of this Agreement and the other Loan Documents (defined below).

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

ARTICLE 1

DEFINITIONS; PRINCIPLES OF CONSTRUCTION

Section 1.1.Definitions

For all purposes of this Agreement, except as otherwise expressly required or unless the context clearly indicates a contrary intent:

“Account Collateral” shall mean (i) the Accounts, and all cash, checks, drafts, certificates and instruments, if any, from time to time deposited or held in the Accounts; (ii) any and all amounts in or credited to the Accounts invested in Permitted Investments; (iii) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise payable in respect of, or in exchange for, any or all of the foregoing; and (iv) to the extent not covered by clauses (i) - (iii) above, all “proceeds” (as defined under the UCC or the PPSA as in effect in the State or Province in which the Accounts are located) of any or all of the foregoing.

“Accounts” shall mean the Cash Management Account, the Tax and Insurance Reserve Accounts, if any, and any other account or sub-account established by this Agreement, the Mortgage, or the other Loan Documents.

“Accredited Investor” shall have the meaning set forth in the regulations promulgated by the Securities and Exchange Commission.

“Act” shall have the meaning set forth in Section 6.1(c).

“Affiliate” shall mean, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person or is a director or officer of such Person or of an Affiliate of such Person.

“Affiliated Loans” shall mean a loan made by Lender to a parent, subsidiary or such other entity affiliated with Borrower or Borrower Principal.

“Affiliated Manager” shall have the meaning set forth in Section 7.1 hereof.

“American Express” shall mean Amex Canada Inc., a corporation incorporated under the laws of Ontario, Canada.

“American Express Lease” shall mean that certain Lease Agreement dated as of January 25, 2005 between Borrower, as landlord, and American Express, as tenant, with respect to the Property.

“American Express Lease Default” shall mean (i) a default, after the expiration of any applicable notice or cure periods, under the American Express Lease or (ii) the cancellation, termination or surrender of the American Express Lease.

“Assignment of Management Agreement” shall mean that certain Assignment and Subordination of Management Agreement dated the date hereof among Lender, Borrower and Manager, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Award” shall mean any compensation paid by any Governmental Authority in connection with a Condemnation in respect of all or any part of the Property.

“Borrower Principal” shall mean Inland Western Retail Real Estate Trust, Inc., a Maryland corporation.

“Business Day” shall mean a day on which Lender is open for the conduct of substantially all of its banking business at its office in the city in which the Note is payable (excluding Saturdays and Sundays).

“Cash Management Account” shall have the meaning set forth in Section 10.1(a) hereof.

“Cash Management Period” shall mean the period commencing on the 45^th day prior to the Optional Prepayment Date.

“Casualty” shall have the meaning set forth in Section 8.2.

“Closing Date” shall mean the date of the funding of the Loan.

“Control” shall have the meaning set forth in Section 7.1 hereof.

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“Creditors Rights Laws” shall mean with respect to any Person any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to its debts or debtors.

“Debt” shall mean the outstanding principal amount set forth in, and evidenced by, this Agreement and the Note together with all interest accrued and unpaid thereon and all other sums due to Lender in respect of the Loan under the Note, this Agreement, the Mortgage or any other Loan Document.

“Debt Service” shall mean, with respect to any particular period of time, scheduled principal and/or interest payments under the Note.

“Default” shall mean the occurrence of any event hereunder or under any other Loan Document which, but for the giving of notice or passage of time, or both, would be an Event of Default.

“Default Rate” shall mean, with respect to the Loan, a rate per annum equal to the lesser of (a) the maximum rate permitted by applicable law, or (b) four percent (4%) above the Note Rate.

“Dollars” and “$” shall mean the lawful currency of the United States of America.

“Eligible Account” shall mean a separate and identifiable account from all other funds held by the holding institution that is either (a) an account or accounts maintained with a federal or state chartered depository institution or trust company which complies with the definition of Eligible Institution or (b) a segregated trust account or accounts maintained with the corporate trust department of a federal or state chartered depository institution or trust company acting in its fiduciary capacity which, in the case of a federally chartered depository institution or trust company acting in its fiduciary capacity is subject to the regulations regarding adversary funds on deposit therein under 12 CFR §9.10(b), and in the case of a state chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R. §9.10(b), having in either case a combined capital surplus of at least $50,000,000 and subject to supervision or examination by federal and state authority. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.

“Eligible Institution” shall mean a depository institution or trust company insured by the Federal Deposit Insurance Corporation, the short term unsecured debt obligations or commercial paper of which are rated at least “A-l” by S&P, “P-l” by Moody’s and “F-l” by Fitch in the case of accounts in which funds are held for thirty (30) days or less (or, in the case of accounts in which funds are held for more than thirty (30) days, the long term unsecured debt obligations of which are rated at least “AA-” by Fitch and S&P (or “A-” by S&P, if such depository’s short term unsecured debt rating is at least “A-l” by S&P) and “Aa2” by Moody’s). Notwithstanding the foregoing, prior to a Securitization, Bank of America, N.A. shall be an Eligible Institution.

“Embargoed Person” shall mean any person identified by OFAC or any other Person with whom a Person resident in the United States of America may not conduct business or

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transactions by prohibition of federal law or Executive Order of the President of the United States of America.

“Environmental Indemnity” shall mean that certain Environmental Indemnity Agreement, dated as of the date hereof, executed by Borrower and Borrower Principal in connection with the Loan for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Environmental Law” shall have the meaning set forth in Section 12.5 hereof.

“Environmental Liens” shall have the meaning set forth in Section 12.5 hereof.

“Environmental Report” shall have the meaning set forth in Section 12.5 hereof.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time and any successor statutes thereto and applicable regulations issued pursuant thereto in temporary or final form.

“Event of Default” shall have the meaning set forth in Section 11.1 hereof.

“Excess Cash” shall mean all Rents and other revenue from the Property after payment of the following:

(i)  following a default by American Express under the American Express Lease, funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account;

(ii)  funds sufficient to pay interest computed at the Initial Note Rate (as defined in the Note);

(iii)  funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents;

(iv)  funds sufficient to pay Operating Expenses (to the extent actually incurred).

“Exchange Act” shall mean the Securities and Exchange Act of 1934, as amended.

“Expropriation” shall mean any expropriation, requisition or other taking or sale of the use, occupancy or title to any or all of the Property, by or on account of any expropriation proceeding or other action by any Governmental Authority or other Person under the power of statutory right of expropriation or otherwise or any transfer in lieu of or in anticipation thereof.

“Fitch” shall mean Fitch, Inc.

“GAAP” shall mean generally accepted accounting principles in the United States of America as of the date of the applicable financial report.

“General Assignment of Rents” shall mean that general assignment of rents dated the date hereof, executed and delivered by Borrower as security for the Loan and encumbering the

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Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Governmental Authority” shall mean any court, board, agency, department, commission, office or other authority of any nature whatsoever for any governmental unit (federal, state, provincial, county, municipal, city, town, special district or otherwise) whether now or hereafter in existence.

“Guarantor” shall mean any Person having a long-term unsecured debt rating above the Trigger Rating that may, from time to time, at the option of American Express, execute a guaranty in favor of landlord under the American Express Lease.

“Hazardous Materials” shall have the meaning set forth in Section 12.5 hereof.

“Improvements” shall have the meaning set forth in the granting clause of the Mortgage.

“Income Taxes” shall have the meaning set forth in Section 5.5 hereof.

“Indemnified Parties” shall mean (a) Lender, (b) any prior owner or holder of the Loan or Participations in the Loan, (c) any servicer or prior servicer of the Loan, (d) any Investor or any prior Investor in any Securities, (e) any trustees, custodians or other fiduciaries who hold or who have held a full or partial interest in the Loan for the benefit of any Investor or other third party, (f) any receiver or other fiduciary appointed in a foreclosure or other Creditors Rights Laws proceeding, (g) any officers, directors, shareholders, partners, members, employees, agents, servants, representatives, contractors, subcontractors, affiliates or subsidiaries of any and all of the foregoing, and (h) the heirs, legal representatives, successors and assigns of any and all of the foregoing (including, without limitation, any successors by merger, consolidation or acquisition of all or a substantial portion of the Indemnified Parties’ assets and business), in all cases whether during the term of the Loan or as part of or following a foreclosure of the Mortgage.

“Independent Director” shall have the meaning set forth in Section 6.4(a).

“Inland Permitted Transferee” shall mean a newly-formed special purpose corporation that is wholly-owned (directly or indirectly) by Inland Retail Real Estate Trust, Inc., a Maryland corporation; Inland Real Estate Corporation, a Maryland corporation; Inland Real Estate Corporation; a Delaware corporation or Borrower Principal.

“Insurance Premiums” shall have the meaning set forth in Section 8.1 hereof.

“Insurance Proceeds” shall have the meaning set forth in Section 8.4(b) hereof.

“Internal Revenue Code” shall mean the Internal Revenue Code of 1986, as amended, as it may be further amended from time to time, and any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.

“Investor” shall have the meaning set forth in Section 13.3 hereof.

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“Lease” shall have the meaning set forth in the Mortgage.

“Legal Requirements” shall mean all statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting the Property or any part thereof, or the construction, use, alteration or operation thereof, whether now or hereafter enacted and in force, and all permits, licenses, authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Borrower, at any time in force affecting the Property or any part thereof, including, without limitation, any which may (a) require repairs, modifications or alterations in or to the Property or any part thereof, or (b) in any way limit the use and enjoyment thereof.

“Lien” shall mean any mortgage, deed of trust, lien, pledge, hypothecation, assignment, security interest, or any other encumbrance, charge or transfer of, on or affecting Borrower, the Property, any portion thereof or any interest therein, including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialmen’s and other similar liens and encumbrances.

“LLC Agreement” shall have the meaning set forth in Section 6.1(c).

“Loan” shall mean the loan made by Lender to Borrower pursuant to this Agreement.

“Loan Documents” shall mean, collectively, this Agreement, the Note, the Mortgage, the Environmental Indemnity, the General Assignment of Rents, the Specific Assignment of Lease, the Assignment of Management Agreement and any and all other documents, agreements and certificates executed and/or delivered in connection with the Loan, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Lockout Period” shall mean the period commencing on the date hereof and ending on the date of the second anniversary hereof.

“Losses” shall mean any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, fines, penalties, charges, fees, judgments, awards, amounts paid in settlement of whatever kind or nature (including but not limited to legal fees and other costs of defense).

“Management Agreement” shall mean the management agreement entered into by and between Borrower and Manager, pursuant to which Manager is to provide management and other services with respect to the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified in accordance with the terms of this Agreement.

“Manager” shall mean Inland US Management LLC, a Delaware limited liability company or such other entity selected as the manager of the Property in accordance with the terms of this Agreement.

“Material Litigation” shall mean, with respect to any Person, any material conviction, indictment (that is not dismissed before trial), judgment, litigation or regulatory action. For

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purposes of this definition, a matter shall be deemed material if it is reasonably foreseeable that a prudent institutional commercial real estate mortgage lender would consider such matter as a material adverse factor in its underwriting of the Person in question. With respect to non-criminal matters, isolated actions occurring more than five (5) years prior to the date of a proposed transfer shall not be deemed material provided that there is no indication of fraud, intentional misrepresentation or intent to defraud creditors with respect to such actions.

“Maturity Date” shall have the meaning set forth in the Note.

“Maximum Legal Rate” shall mean the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by the Note and as provided for herein or the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan.

“Member” shall have the meaning set forth in Section 6.1(c).

“Monthly Payment Amount” shall mean the monthly payment of interest due on each Scheduled Payment Date as set forth in the Note.

“Moody’s” shall mean Moody’s Investor Services, Inc.

“Mortgage” shall mean that certain first priority mortgage/deed of trust/deed to secure debt and security agreement dated the date hereof, executed and delivered by Borrower as security for the Loan and encumbering the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Net Proceeds” shall have the meaning set forth in Section 8.4(b) hereof.

“Net Proceeds Deficiency” shall have the meaning set forth in Section 8.4(b)(vi) hereof.

“Note” shall mean that certain promissory note of even date herewith in the principal amount of $25,380,000, made by Borrower in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Note Rate” shall have the meaning set forth in the Note.

“OFAC” shall have the meaning set forth in Section 4.38 hereof.

“Operating Expenses” shall mean, with respect to any period of time, the total of all expenses actually paid or payable, computed in accordance with federal tax basis accounting, or in accordance with other methods acceptable to Lender in its sole discretion, of whatever kind relating to the operation, maintenance and management of the Property, including, without limitation, utilities, ordinary repairs and maintenance, Insurance Premiums, license fees, Taxes and Other Charges, advertising expenses, payroll and related taxes, computer processing charges, management fees equal to the greater of 4% of the Operating Income and the management fees actually payable under the Management Agreement for such period of time, operational equipment or other lease payments as approved by Lender, normalized capital expenditures but

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specifically excluding depreciation and amortization, income taxes, Debt Service, any incentive fees due under the Management Agreement, any item of expense that in accordance with federal tax basis accounting should be capitalized, any item of expense that would otherwise be covered by the provisions hereof but which is paid by American Express under the American Express Lease and deposits into the Reserve Accounts.

“Optional Prepayment Date” shall have the meaning set forth in the Note.

“Other Charges” shall mean all ground rents, maintenance charges, impositions other than Taxes, and any other charges, including, without limitation, vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Property, now or hereafter levied or assessed or imposed against the Property or any part thereof.

“Participations” shall have the meaning set forth in Section 13.1 hereof.

“Patriot Act” shall have the meaning set forth in Section 4.38 hereof.

“Permitted Encumbrances” shall mean collectively, (a) the Lien and security interests created by the Loan Documents, (b) all Liens, encumbrances and other matters disclosed in the Title Insurance Policy, (c) Liens, if any, for Taxes imposed by any Governmental Authority not yet due or delinquent, and (d) such other title and survey exceptions as Lender has approved or may approve in writing in Lender’s sole discretion.

“Permitted Investments” shall mean to the extent available from Lender or Lender’s servicer for deposits in the Reserve Accounts and the Lockbox Account, any one or more of the following obligations or securities acquired at a purchase price of not greater than par, including those issued by a servicer of the Loan, the trustee under any securitization or any of their respective Affiliates, payable on demand or having a maturity date not later than the Business Day immediately prior to the date on which the funds used to acquire such investment are required to be used under this Agreement and meeting one of the appropriate standards set forth below:

(a)obligations of, or obligations fully guaranteed as to payment of principal and interest by, the United States or any agency or instrumentality thereof provided such obligations are backed by the full faith and credit of the United States of America including, without limitation, obligations of: the U.S. Treasury (all direct or fully guaranteed obligations), the Farmers Home Administration (certificates of beneficial ownership), the General Services Administration (participation certificates), the U.S. Maritime Administration (guaranteed Title XI financing), the Small Business Administration (guaranteed participation certificates and guaranteed pool certificates), the U.S. Department of Housing and Urban Development (local authority bonds) and the Washington Metropolitan Area Transit Authority (guaranteed transit bonds); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) be rated “AAA” or the equivalent by each of the Rating Agencies, (iii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iv) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must

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move proportionately with that index, and (v) such investments must not be subject to liquidation prior to their maturity;

(b)Federal Housing Administration debentures;

(c)obligations of the following United States government sponsored agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm Credit System (consolidated systemwide bonds and notes), the Federal Home Loan Banks (consolidated debt obligations), the Federal National Mortgage Association (debt obligations), the Financing Corp. (debt obligations), and the Resolution Funding Corp. (debt obligations); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(d)federal funds, unsecured certificates of deposit, time deposits, bankers’ acceptances and repurchase agreements with maturities of not more than 365 days of any bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(e)fully Federal Deposit Insurance Corporation-insured demand and time deposits in, or certificates of deposit of, or bankers’ acceptances with maturities of not more than 365 days and issued by, any bank or trust company, savings and loan association or savings bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities); provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

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(f)debt obligations with maturities of not more than 365 days and at all times rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest long-term unsecured rating category; provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(g)commercial paper (including both non-interest-bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one year after the date of issuance thereof) with maturities of not more than 365 days and that at all times is rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest short-term unsecured debt rating; provided, however, that the investments described in this clause must (i) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (ii) if rated by S&P, must not have an “r” highlighter affixed to their rating, (iii) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (iv) such investments must not be subject to liquidation prior to their maturity;

(h)units of taxable money market funds, with maturities of not more than 365 days and which funds are regulated investment companies, seek to maintain a constant net asset value per share and invest solely in obligations backed by the full faith and credit of the United States, which funds have the highest rating available from each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) for money market funds; and

(i)any other security, obligation or investment which has been approved as a Permitted Investment in writing by (i) Lender and (ii) each Rating Agency, as evidenced by a written confirmation that the designation of such security, obligation or investment as a Permitted Investment will not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities by such Rating Agency;

provided, however, that no obligation or security shall be a Permitted Investment if (A) such obligation or security evidences a right to receive only interest payments, (B) the right to receive principal and interest payments on such obligation or security are derived from an underlying investment that provides a yield to maturity in excess of one hundred twenty percent (120%) of the yield to maturity at par of such underlying investment or (C) such obligation or security has a remaining term to maturity in excess of one (1) year.

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“Person” shall mean any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any federal, state, provincial, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.

“Personal Property” shall have the meaning set forth in the granting clause of the Mortgage.

“Policies” shall have the meaning set forth in Section 8.1 hereof.

“PPSA” shall mean the Personal Property Security Act (Ontario) as amended from time to time.

“Prohibited Transfer” shall have the meaning set forth in Section 7.2 hereof.

“Property” shall mean the parcel of real property, the Improvements thereon and all Personal Property owned by Borrower and encumbered by the Mortgage, together with all rights pertaining to such property and Improvements, as more particularly described in the granting clause of the Mortgage and referred to therein as the “Property”.

“Property Condition Report” shall mean a report prepared by a company satisfactory to Lender regarding the physical condition of the Property, satisfactory in form and substance to Lender in its sole discretion.

“Province” shall mean the province in which the Property or any part thereof is located.

‘‘Qualified Manager” shall mean (a) Manager or (b) a reputable and experienced professional management organization (i) which manages, together with its affiliates, at least ten (10) first class office buildings totaling at least 3,500,000 square feet of gross leasable area, exclusive of the Property and (ii) approved by Lender, which approval shall not have been unreasonably withheld and for which Lender shall have received written confirmation from the Rating Agencies that the employment of such manager will not result in a downgrade, withdrawal or qualification of the initial, or if higher, then current ratings issued in connection with a Securitization, or if a Securitization has not occurred, any ratings to be assigned in connection with a Securitization.

“Rating Agencies” shall mean each of S&P, Moody’s and Fitch, or any other nationally-recognized statistical rating agency which has been approved by Lender.

“REA” shall mean any construction, operation and reciprocal easement agreement or similar agreement (including any separate agreement or other agreement between Borrower and one or more other parties to an REA with respect to such REA) affecting the Property or portion thereof.

“Release” shall have the meaning set forth in Section 12.5 hereof.

“REMIC Trust” shall mean a “real estate mortgage investment conduit” (within the meaning of Section 860D, or applicable successor provisions, of the Code) that holds the Note.

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“Rents” shall have the meaning set forth in the Mortgage.

“Replacements” shall have the meaning set forth in Section 9.2(a) hereof.

“Required Repairs” shall have the meaning set forth in Section 9.l(a) hereof.

“Reserve Accounts” shall mean the Tax and Insurance Reserve Account.

“Reserve Funds” shall mean the Tax and Insurance Reserve Funds.

“Restoration” shall mean, following the occurrence of a Casualty or a Condemnation which is of a type necessitating the repair of the Property, the completion of the repair and restoration of the Property as nearly as possible to the condition the Property was in immediately prior to such Casualty or Condemnation, with such alterations as may be reasonably approved by Lender.

“Restoration Consultant” shall have the meaning set forth in Section 8.4(b)(iii) hereof.

“Restoration Retainage” shall have the meaning set forth in Section 8.4(b)(iv) hereof.

“Restricted Party” shall have the meaning set forth in Section 7.1 hereof.

“Sale or Pledge” shall have the meaning set forth in Section 7.1 hereof.

“Scheduled Payment Date” shall have the meaning set forth in the Note.

“Securities” shall have the meaning set forth in Section 13.1 hereof.

“Securities Act” shall mean the Securities Act of 1933, as amended.

“Securities Liabilities” shall have the meaning set forth in Section 13.5 hereof.

“Securitization” shall have the meaning set forth in Section 13.1 hereof.

“Special Member” shall have the meaning set forth in Section 6. l(c).

“Specific Assignment of Lease” shall mean that specific assignment of the American Express Lease dated the date hereof, executed and delivered by Borrower as security for the Loan and encumbering the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“S&P” shall mean Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.

“State” shall mean the State of New York.

“Tax and Insurance Reserve Account” shall have the meaning set forth in Section 9.6 hereof.

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“Tax and Insurance Reserve Funds” shall have the meaning set forth in Section 9.6 hereof.

“Taxes” shall mean all real estate and personal property taxes, assessments, water rates or sewer rents, now or hereafter levied or assessed or imposed against the Property or part thereof.

“Tenant” shall mean any Person leasing, subleasing or otherwise occupying any portion of the Property under a Lease or other occupancy agreement with Borrower, including, without limitation, American Express, as tenant under the American Express Lease.

“Tenant Direction Letter” shall have the meaning set forth in Section 10.2(a)(i) hereof.

“Title Insurance Policy” shall mean that certain mortgagee title insurance policy issued with respect to the Property and insuring the lien of the Mortgage.

“Transferee” shall have the meaning set forth in Section 7.5 hereof.

“Trigger Rating” shall mean the long-term unsecured debt rating of Guarantor (or American Express if there is no Guarantor) below BBB as issued by S&P or below Baa2 as issued by Moody’s.

“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in the State where the applicable Property is located.

Section 1.2.Principles of Construction.

All references to sections and schedules are to sections and schedules in or to this Agreement unless otherwise specified. All uses of the word “including” shall mean “including, without limitation” unless the context shall indicate otherwise. Unless otherwise specified, the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified, all meanings attributed to defined terms herein shall be equally applicable to both the singular and plural forms of the terms so defined.

ARTICLE 2

GENERAL TERMS

Section 2.1.Loan Commitment; Disbursement to Borrower

(a)Subject to and upon the terms and conditions set forth herein, Lender hereby agrees to make and Borrower hereby agrees to accept the Loan on the Closing Date.

(b)Borrower may request and receive only one borrowing in respect of the Loan and any amount borrowed and repaid in respect of the Loan may not be reborrowed.

(c)The Loan shall be evidenced by the Note and secured by the Mortgage and the other Loan Documents.

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(d)Borrower shall use the proceeds of the Loan to (i) pay the purchase price for acquiring the Property, (ii) pay certain costs and expenses incurred in connection with the closing of the Loan, as approved by Lender, (iv) fund any working capital requirements of the Property, and (v) distribute the balance, if any, to its members.

Section 2.2.Loan Payments

(a)The Loan and interest shall be payable pursuant to the terms of the Note.

Section 2.3.Prepayment

The Loan may not be prepaid, in whole or in part, except in strict accordance with the express terms and conditions of the Note.

ARTICLE 3

CONDITIONS PRECEDENT

The obligation of Lender to make the Loan hereunder is subject to the fulfillment by Borrower or waiver by Lender of all the conditions precedent to closing set forth in the application or term sheet for the Loan delivered by Borrower to Lender and any commitment rider to the application for the Loan issued by Lender.

ARTICLE 4

REPRESENTATIONS AND WARRANTIES

Borrower and, where specifically indicated, each Borrower Principal represents and warrants to Lender as of the Closing Date that:

Section 4.1.Organization

Borrower and each Borrower Principal (when not an individual) (a) has been duly organized and is validly existing and in good standing with requisite power and authority to own its properties and to transact the businesses in which it is now engaged, (b) is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with its properties, businesses and operations, (c) possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own its properties and to transact the businesses in which it is now engaged, and the sole business of Borrower is the ownership, management and operation of the Property, and (d) in the case of Borrower, has full power, authority and legal right to mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the Property pursuant to the terms of the Loan Documents, and in the case of Borrower and each Borrower Principal, has full power, authority and legal right to keep and observe all of the terms of the Loan Documents to which it is a party. Borrower and each Borrower Principal represent and warrant that the chart attached hereto as Exhibit A sets forth an accurate listing of the direct and indirect owners of the equity interests in Borrower, and each Borrower Principal (when not an individual).

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Section 4.2.Status of Borrower

Borrower’s exact legal name is correctly set forth on the first page of this Agreement, on the Mortgage and on any UCC-1 or PPSA Financing Statements filed in connection with the Loan. Borrower is an organization of the type specified on the first page of this Agreement. Borrower is organized under the laws of the Province of New Brunswick. Borrower’s principal place of business and chief executive office, and the place where Borrower keeps its books and records, including recorded data of any kind or nature, regardless of the medium of recording, including software, writings, plans, specifications and schematics, has been for the preceding four months (or, if less, the entire period of the existence of Borrower) the address of Borrower set forth on the first page of this Agreement.

Section 4.3.Validity of Documents

Borrower and Borrower Principal have taken all necessary action to authorize the execution, delivery and performance of this Agreement and the other Loan Documents to which they are parties. This Agreement and such other Loan Documents have been duly executed and delivered by or on behalf of Borrower and Borrower Principal and constitute the legal, valid and binding obligations of Borrower and Borrower Principal enforceable against Borrower and Borrower Principal in accordance with their respective terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

Section 4.4.No Conflicts

The execution, delivery and performance of this Agreement and the other Loan Documents by Borrower and Borrower Principal will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance (other than pursuant to the Loan Documents) upon any of the property or assets of Borrower or Borrower Principal pursuant to the terms of any agreement or instrument to which Borrower or Borrower Principal is a party or by which any of Borrower’s or Borrower Principal’s property or assets is subject, nor will such action result in any violation of the provisions of any statute or any order, rule or regulation of any Governmental Authority having jurisdiction over Borrower or Borrower Principal or any of Borrower’s or Borrower Principal’s properties or assets, and any consent, approval, authorization, order, registration or qualification of or with any Governmental Authority required for the execution, delivery and performance by Borrower or Borrower Principal of this Agreement or any of the other Loan Documents has been obtained and is in full force and effect.

Section 4.5.Litigation

There are no actions, suits or proceedings at law or in equity by or before any Governmental Authority or other agency now pending or, to Borrower’s or Borrower Principal’s knowledge, threatened against or affecting Borrower, Borrower Principal, Manager or the Property, which actions, suits or proceedings, if determined against Borrower, Borrower Principal, Manager or the Property, would materially adversely affect the condition (financial or otherwise) or business of Borrower or Borrower Principal or the condition or ownership of the Property.

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Section 4.6.Agreements

Borrower is not a party to any agreement or instrument or subject to any restriction which would materially and adversely affect Borrower or the Property, or Borrower’s business, properties or assets, operations or condition, financial or otherwise. Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party or by which Borrower or the Property is bound. Borrower has no material financial obligation under any agreement or instrument to which Borrower is a party or by which Borrower or the Property is otherwise bound, other than (a) obligations incurred in the ordinary course of the operation of the Property and (b) obligations under the Loan Documents.

Section 4.7.Solvency

Borrower and each Borrower Principal have (a) not entered into the transaction or executed the Note, this Agreement or any other Loan Documents with the actual intent to hinder, delay or defraud any creditor and (b) received reasonably equivalent value in exchange, for their obligations under such Loan Documents. Giving effect to the Loan, the fair saleable value of the assets of Borrower and each Borrower Principal exceeds and will, immediately following the making of the Loan, exceed the total liabilities of Borrower and Borrower Principal, including, without limitation, subordinated, unliquidated, disputed and contingent liabilities. No petition in bankruptcy has been filed against Borrower, Borrower Principal, or Affiliated Manager in the last ten (10) years, and neither Borrower nor Borrower Principal, or Affiliated Manager in the last ten (10) years has made an assignment for the benefit of creditors or taken advantage of any Creditors Rights Laws. Neither Borrower nor Borrower Principal, or Affiliated Manager is contemplating either the filing of a petition by it under any Creditors Rights Laws or the liquidation of all or a major portion of Borrower’s assets or property, and Borrower has no knowledge of any Person contemplating the filing of any such petition against Borrower or Borrower Principal, or Affiliated Manager.

Section 4.8.Full and Accurate Disclosure

No statement of fact made by or on behalf of Borrower or Borrower Principal in this Agreement or in any of the other Loan Documents or in any other document or certificate delivered by or on behalf of Borrower or Borrower Principal contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained herein or therein not misleading. There is no material fact presently known to Borrower or Borrower Principal which has not been disclosed to Lender which adversely affects, nor as far as Borrower or Borrower Principal can reasonably foresee, might adversely affect, the Property or the business, operations or condition (financial or otherwise) of Borrower or Borrower Principal.

Section 4.9.No Plan Assets

Borrower is not an “employee benefit plan,” as defined in Section 3(3) of ERISA, subject to Title 1 of ERISA, and none of the assets of Borrower constitutes or will constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101. In addition, (a) Borrower is not a “governmental plan” within the meaning of Section 3(32) of

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ERISA and (b) transactions by or with Borrower are not subject to state statutes regulating investment of, and fiduciary obligations with respect to, governmental plans similar to the provisions of Section 406 of ERISA or Section 4975 of the Internal Revenue Code currently in effect, which prohibit or otherwise restrict the transactions contemplated by this Agreement.

Section 4.10.Not a Foreign Person

Borrower is not a non-resident corporation within the meaning of the Income Tax Act (Canada). Borrower Principal is not a “foreign Person” within the meaning of §1445(f)(3) of the Internal Revenue Code.

Section 4.11.Enforceability

The Loan Documents are not subject to any right of rescission, set-off, counterclaim or defense by Borrower, including the defense of usury, nor would the operation of any of the terms of the Loan Documents, or the exercise of any right thereunder, render the Loan Documents unenforceable, and neither Borrower nor Borrower Principal has asserted any right of rescission, set-off, counterclaim or defense with respect thereto. No Default or Event of Default exists under or with respect to any Loan Document.

Section 4.12.Business Purposes

The Loan is solely for the business purpose of Borrower, and is not for personal, family, household, or agricultural purposes.

Section 4.13.Compliance

Except as expressly disclosed by Borrower to Lender in writing in connection with the closing of the Loan, to Borrower’s knowledge, Borrower and the Property, and the use and operation thereof, comply in all material respects with all Legal Requirements, including, without limitation, building and zoning ordinances and codes. To Borrower’s knowledge, Borrower is not in default or violation of any order, writ, injunction, decree or demand of any Governmental Authority and Borrower has received no written notice of any such default or violation. There has not been committed by Borrower or, to Borrower’s knowledge, any other Person in occupancy of or involved with the operation or use of the Property any act or omission affording any Governmental Authority the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents.

Section 4.14.Financial Information

All financial data, including, without limitation, the balance sheets, statements of cash flow, statements of income and operating expense and rent rolls, that have been delivered to Lender in respect of Borrower, Borrower Principal and/or the Property (a) are true, complete and correct in all material respects, (b) accurately represent the financial condition of Borrower, Borrower Principal or the Property, as applicable, as of the date of such reports, and (c) to the extent prepared or audited by an independent certified public accounting firm, have been prepared in accordance with tax basis accounting throughout the periods covered, except as

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disclosed therein. Borrower does not have any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that are known to Borrower and reasonably likely to have a material adverse effect on the Property or the current and/or intended operation thereof, except as referred to or reflected in said financial statements. Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of Borrower or Borrower Principal from that set forth in said financial statements.

Section 4.15.Condemnation

No Condemnation or other proceeding has been commenced or, to Borrower’s best knowledge, is threatened or contemplated with respect to all or any portion of the Property or for the relocation of roadways providing access to the Property.

Section 4.16.Utilities and Public Access; Parking

To the best of Borrower’s knowledge, the Property has adequate rights of access to public ways and is served by water, sewer, sanitary sewer and storm drain facilities adequate to service the Property for full utilization of the Property for its intended uses. All public utilities necessary to the full use and enjoyment of the Property as currently used and enjoyed are located either in the public right-of-way abutting the Property (which are connected so as to serve the Property without passing over other property) or in recorded easements serving the Property and such easements are set forth in and insured by the Title Insurance Policy. All roads necessary for the use of the Property for its current purposes have been completed and dedicated to public use and accepted by all Governmental Authorities. The Property has, or is served by, parking to the extent required to comply with all Legal Requirements.

Section 4.17.Separate Lots

The Property is assessed for real estate tax purposes as one or more wholly independent tax lot or lots, separate from any adjoining land or improvements not constituting a part of such lot or lots, and no other land or improvements is assessed and taxed together with the Property or any portion thereof.

Section 4.18.Assessments

To Borrower’s knowledge, there are no pending or proposed special or other assessments for public improvements or otherwise affecting the Property, nor are there any contemplated improvements to the Property that may result in such special or other assessments.

Section 4.19.Insurance

Borrower has obtained and has delivered to Lender cither (a) certified copies of all Policies or, to the extent such Policies are not available as of the Closing Date, certificates of insurance with respect to all such Policies reflecting the insurance coverages, amounts and other requirements set forth in this Agreement or (b) the certificate of American Express that American Express is a self-insurer with respect to the occurrences referred to in Section 8.1 and

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that the rating of American Express by the Rating Agencies has not fallen below the Trigger Rating.

Section 4.20.Use of Property

The Property is used exclusively for general office purposes and other appurtenant and related uses.

Section 4.21.Certificate of Occupancy; Licenses

All certificates of occupancy and to Borrower’s knowledge all certifications, permits, licenses and approvals, including, without limitation, certificates of completion and any applicable liquor license required for the legal use, occupancy and operation of the Property for the purpose intended herein, have been obtained and are valid and in full force and effect. Borrower shall keep and maintain (or require American Express to maintain) all licenses necessary for the operation of the Property for the purpose intended herein. The use being made of the Property is in conformity with the final certificate of occupancy (or compliance, if applicable) and any other permits or licenses issued for the Property.

Section 4.22.Flood Zone

None of the Improvements on the Property are located in an area identified by the Town of Markham or the local conservation authority having jurisdiction as an area having special flood hazards, or, if any portion of the Improvements is located within such area, Borrower will obtain or cause American Express to obtain the insurance prescribed in Section 8.l(a)(i) at any time during the term of the Loan when American Express ceases to be a self-insurer or when the rating of American Express by the Rating Agencies falls below the Trigger Rating.

Section 4.23.Physical Condition

Except as set forth in the Property Condition Report, to Borrower’s knowledge, the Property, including, without limitation, all buildings, improvements, parking facilities, sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, are in good condition, order and repair in all material respects. Except as set forth in the Property Condition Report, to Borrower’s knowledge, there exist no structural or other material defects or damages in the Property, as a result of a Casualty or otherwise, and whether latent or otherwise. Borrower has not received notice from any insurance company or bonding company of any defects or inadequacies in the Property, or any part thereof, which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond.

Section 4.24.Boundaries; Survey

(a) None of the Improvements which were included in determining the appraised value of the Property lie outside the boundaries and building restriction lines of the Property to any material extent, and (b) no improvements on adjoining properties encroach upon the

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Property and no easements or other encumbrances upon the Property encroach upon any of the Improvements so as to materially affect the value or marketability of the Property.

Section 4.25.Leases

The entire Property has been leased to American Express pursuant to the American Express Lease. (a) The American Express Lease is in full force and effect; (b) the premises demised under the American Express Lease have been completed and American Express has accepted possession of and is in occupancy of the demised premises; (c) American Express has commenced the payment of rent under the American Express Lease, there are no offsets, claims or defenses to the enforcement thereof and Borrower has no monetary obligations to American Express under the American Express Lease; (d) all Rents due and payable under the American Express Lease have been paid and no portion thereof has been paid for any period more than thirty (30) days in advance; (e) the rent payable under the American Express Lease is the amount of fixed rent set forth in the American Express Lease, and there is no claim or basis for a claim by American Express thereunder for an adjustment to the Rent; (f) Borrower is the sole owner of the entire landlord’s interest in the American Express Lease; (g) the American Express Lease is the valid, binding and enforceable obligation of Borrower and American Express thereunder and there are no agreements with American Express with respect to the American Express Lease other than as expressly set forth therein; (h) no Person has any possessory interest in, or right to occupy, the Property or any portion thereof except under the American Express Lease; (i) except for the right of First refusal set forth in Article 4 and the right to offer to purchase the Property under Article 12, the American Express Lease does not contain any option or offer to purchase or right of first refusal to purchase the Property or any part thereof; and (j) neither the American Express Lease nor the Rents have been assigned or pledged except to Lender, and no other Person has any interest therein.

Section 4.26.Filing and Recording Taxes

All mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents, including, without limitation, the Mortgage, have been paid or will be paid, and, under current Legal Requirements, the Mortgage is enforceable in accordance with its terms by Lender (or any subsequent holder thereof).

Section 4.27.Management Agreement

The Management Agreement is in full force and effect and there is no default thereunder by any party thereto and, to Borrower’s knowledge, no event has occurred that, with the passage of time and/or the giving of notice, would constitute a default thereunder. No management fees under the Management Agreement are accrued and unpaid.

Section 4.28.Illegal Activity

No portion of the Property has been or will be purchased with proceeds of any illegal activity, and no part of the proceeds of the Loan will be used in connection with any illegal activity.

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Section 4.29.Construction Expenses

All costs and expenses of any and all labor, materials, supplies and equipment used in the construction, maintenance or repair of the Improvements have been paid in full. To Borrower’s knowledge after due inquiry, there are no claims for payment for work, labor or materials affecting the Property which are or may become a lien prior to, or of equal priority with, the Liens created by the Loan Documents.

Section 4.30.Personal Property

Borrower has paid in full for, and is the owner of, all Personal Property (other than tenants’ property) used in connection with the operation of the Property, free and clear of any and all security interests, liens or encumbrances, except for Permitted Encumbrances and the Lien and security interest created by the Loan Documents.

Section 4.31.Taxes

Borrower and Borrower Principal have filed all federal, provincial, state, county, municipal, and city income, personal property and other tax returns required to have been filed by them and have paid all taxes and related liabilities which have become due pursuant to such returns or pursuant to any assessments received by them. Neither Borrower nor Borrower Principal knows of any basis for any additional assessment in respect of any such taxes and related liabilities for prior years.

Section 4.32.Permitted Encumbrances

None of the Permitted Encumbrances, individually or in the aggregate, materially interferes with the benefits of the security intended to be provided by the Loan Documents, materially and adversely affects the value of the Property, impairs the use or the operation of the Property or impairs Borrower’s ability to pay its obligations in a timely manner.

Section 4.33.Federal Reserve Regulations

Borrower will use the proceeds of the Loan for the purposes set forth in Section 2.1(d) hereof and not for any illegal activity. No part of the proceeds of the Loan will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by Legal Requirements or prohibited by the terms and conditions of this Agreement or the other Loan Documents.

Section 4.34.Investment Company Act

Borrower is not (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; (b) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the

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Public Utility Holding Company Act of 1935, as amended; or (c) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

Section 4.35.        Reciprocal Easement Agreements

(a)Neither Borrower nor any other party is currently in default (nor has any notice been given or received with respect to an alleged or current default) under any of the terms and conditions of the REA, and the REA remains unmodified and in full force and effect;

(b)All easements granted pursuant to the REA which were to have survived the site preparation and completion of construction (to the extent that the same has been completed), remain in full force and effect and have not been released, terminated, extinguished or discharged by agreement or otherwise;

(c)To the best of Borrower’s knowledge, all sums due and owing by Borrower to the other parties to the REA (or by the other parties to the REA to the Borrower) pursuant to the terms of the REA, including without limitation, all sums, charges, fees, assessments, costs, and expenses in connection with any taxes, site preparation and construction, non-shareholder contributions, and common area and other property management activities have been paid, are current, and no lien has attached on the Property (or threat thereof been made) for failure to pay any of the foregoing;

(d)The terms, conditions, covenants, uses and restrictions contained in the REA do not conflict in any manner with any terms, conditions, covenants, uses and restrictions contained in any Lease or in any agreement between Borrower and occupant of any peripheral parcel, including without limitation, conditions and restrictions with respect to kiosk placement, tenant restrictions (type, location or exclusivity), sale of certain goods or services, and/or other use restrictions; and

(e)The terms, conditions, covenants, uses and restrictions contained in the American Express Lease do not conflict in any manner with any terms, conditions, covenants, uses and restrictions contained in the REA, any other lease or in any agreement between Borrower and occupant of any peripheral parcel, including without limitation, conditions and restrictions with respect to kiosk placement, tenant restrictions (type, location or exclusivity), sale of certain goods or services, and/or other use restrictions.

Section 4.36.No Change in Facts or Circumstances; Disclosure

All information submitted by Borrower or its agents to Lender and in all financial statements, reports, certificates and other documents submitted in connection with the Loan or in satisfaction of the terms thereof and all statements of fact made by Borrower in this Agreement or in any other Loan Document, are accurate, complete and correct in all material respects. There has been no material adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading in any material respect or that otherwise materially and adversely affects or might materially and adversely affect the Property or the business operations or the financial condition of Borrower. Borrower has disclosed to Lender all material facts and has not failed to disclose any material fact that could cause any representation or warranty made herein to be materially misleading.

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Section 4.37.Intellectual Property

All trademarks, trade names and service marks necessary to the business of Borrower as presently conducted or as Borrower contemplates conducting its business are in good standing and, to the extent of Borrower’s actual knowledge, uncontested. Borrower has not infringed, is not infringing, and has not received notice of infringement with respect to asserted trademarks, trade names and service marks of others. To Borrower’s knowledge, there is no infringement by others of trademarks, trade names and service marks of Borrower.

Section 4.38.Compliance with Anti-Terrorism Laws

None of Borrower, Borrower Principal or any Person who Controls Borrower or Borrower Principal currently is identified by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) or otherwise qualifies as an Embargoed Person, and Borrower has implemented procedures to ensure that no Person who now or hereafter owns a material direct or indirect equity interest in Borrower is an Embargoed Person or is Controlled by an Embargoed Person. To Borrower’s knowledge neither Borrower nor Borrower Principal is in violation of any applicable law relating to anti-money laundering or anti-terrorism, including, without limitation, those related to transacting business with Embargoed Persons or the requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, U.S. Public Law 107-56, and the related regulations issued thereunder, including temporary regulations (collectively, as the same may be amended from time to time, the “Patriot Act”). To the best of Borrower’s knowledge, no tenant at the Property is currently identified by OFAC or otherwise qualifies as an Embargoed Person, or is owned or Controlled by an Embargoed Person.

Section 4.39.Patriot Act

Neither Borrower nor Borrower Principal shall (a) be or become subject at any time to any law, regulation, or list of any government agency (including, without limitation, the list maintained by OFAC and accessible through the OFAC website) that prohibits or limits any lender from making any advance or extension of credit to Borrower or from otherwise conducting business with Borrower and Borrower Principal, or (b) fail to provide documentary and other evidence of Borrower’s identity as may be requested by any lender at any time to enable any lender to verify Borrower’s identity or to comply with any applicable law or regulation, including, without limitation, the Patriot Act. In addition, Borrower hereby agrees to provide to Lender any additional information that Lender deems necessary from time to time in order to ensure compliance with all applicable laws concerning money laundering and similar activities.

Section 4.40.Survival

Borrower agrees that, unless expressly provided otherwise, all of the representations and warranties of Borrower set forth in this Article 4 and elsewhere in this Agreement and in the other Loan Documents shall survive for so long as any portion of the Debt remains owing to Lender. All representations, warranties, covenants and agreements made in this Agreement or in

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the other Loan Documents by Borrower shall be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.

ARTICLE 5

BORROWER COVENANTS

From the date hereof and until repayment of the Debt in full and performance in full of all obligations of Borrower under the Loan Documents or the earlier release of the Lien of the Mortgage (and all related obligations) in accordance with the terms of this Agreement and the other Loan Documents, Borrower hereby covenants and agrees with Lender that:

Section 5.1.Existence; Compliance with Legal Requirements

(a)Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, rights, licenses, permits and franchises and comply with all Legal Requirements applicable to it and the Property. Borrower hereby covenants and agrees not to commit, permit or suffer to exist any act or omission affording any Governmental Authority the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents. Borrower shall at all times maintain, preserve and protect all franchises and trade names used in connection with the operation of the Property. So long as American Express is in compliance with the terms of the American Express Lease with respect to the matters described in this Section 5.1, Borrower shall be deemed in compliance with this Section 5.1.

(b)Borrower, at its own expense, may contest or permit American Express to contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the Legal Requirements affecting the Property, provided that (i) no Default or Event of Default has occurred and is continuing; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower or the Property is subject and shall not constitute a default thereunder; (iii) neither the Property, any part thereof or interest therein, any of the tenants or occupants thereof, nor Borrower shall be affected in any material adverse way as a result of such proceeding; (iv) non-compliance with the Legal Requirements shall not impose civil or criminal liability on Borrower or Lender; (v) unless the contest is initiated and conducted by American Express pursuant to the American Express Lease Borrower shall have furnished the security as may be required in the proceeding or by Lender to ensure compliance by Borrower with the Legal Requirements; and (vi) if the contest is initiated and conducted by Borrower, Borrower shall have furnished to Lender all other items reasonably requested by Lender. Borrower shall give written notice to Lender of any contest initiated and conducted by Borrower promptly after initiation thereof and shall inform Lender of any contest initiated and conducted by American Express of which Borrower is given notice by American Express.

Section 5.2.Maintenance and Use of Property

Borrower shall cause the Property to be maintained in a good and safe condition and repair. The Improvements and the Personal Property shall not be removed, demolished or except as may be expressly permitted under the American Express Lease without the consent of the

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landlord thereunder, materially altered (except for normal replacement of the Personal Property) without the prior written consent of Lender. So long as American Express is in compliance with the terms of the American Express Lease with respect to the matters described in this Section 5.2, Borrower shall be deemed in compliance with this Section 5.2. If under applicable zoning provisions the use of all or any portion of the Property is or shall become a nonconforming use, Borrower will not cause or permit the nonconforming use to be discontinued or the nonconforming Improvement to be abandoned without the express written consent of Lender.

Section 5.3.Waste

Borrower shall not commit or suffer any waste of the Property or make any change in the use of the Property which will in any way materially increase the risk of fire or other hazard arising out of the operation of the Property, or take any action that might invalidate or give cause for cancellation of any Policy, or do or permit to be done thereon anything that may in any way impair the value of the Property or the security for the Loan. Borrower will not, without the prior written consent of Lender, permit any drilling or exploration for or extraction, removal, or production of any minerals from the surface or the subsurface of the Property, regardless of the depth thereof or the method of mining or extraction thereof.

Section 5.4.Taxes and Other Charges

(a)Borrower shall pay or cause American Express to pay all Taxes and Other Charges now or hereafter levied or assessed or imposed against the Property or any part thereof as the same become due and payable. Borrower shall furnish or cause to be furnished to Lender such receipts for the payment of the Taxes and the Other Charges as are delivered to Borrower by American Express and, upon request by Lender, a certificate from Borrower and Borrower Principal that as of the date of such certificate there are no liens filed against the Property arising from the non-payment of Taxes or Other Charges. Borrower shall not suffer nor permit American Express to suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against the Property, and shall promptly pay for all utility services provided to the Property. So long as American Express is in compliance with the terms of the American Express Lease with respect to the matters described in this Section 5.4, Borrower shall be deemed in compliance with this Section 5.4.

(b)Borrower, at its own expense, may contest or permit American Express to contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes or Other Charges, provided that (i) no Default or Event of Default has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable Legal Requirements; (iii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled or lost; (iv) Borrower shall promptly upon final determination thereof pay the amount of any such Taxes or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding shall suspend the collection of such contested Taxes or Other Charges from the Property; and (vi) Borrower shall furnish or cause American Express to furnish (but only to the extent required to be furnished by

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American Express under the American Express Lease) such security as may be required in the proceeding, or deliver to Lender such reserve deposits as may be requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties thereon (unless Borrower or American Express has paid all of the Taxes or Other Charges under protest). Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the judgment of Lender, the entitlement of such claimant is established or the Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, canceled or lost or there shall be any danger of the Lien of the Mortgage being primed by any related Lien.

Section 5.5.Payments Free of Taxes

(a)Any and all payments made by Borrower to Lender under or pursuant to any of the Loan Documents for the purposes of the Income Tax Act (Canada) shall be made free and clear of, and without deduction for, any and all present or future taxes, levies, imposts, deductions, charges, fees, duties or withholding or other charges of any nature imposed by any taxing authority, and all liabilities with respect thereto, imposed by any jurisdiction as a consequence or result of any action taken by Borrower including the making of any payment under or pursuant to any of the Loan Documents excluding, in the case of Lender, taxes imposed on its net income or capital taxes or receipts and franchise taxes (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as “Income Taxes”). If Borrower shall be required by law to deduct any Income Taxes from or in respect of any sum payable to Lender under or pursuant to any of the Loan Documents, the sum payable to Lender shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 5.5) the recipient thereof receives an amount equal to the sum it would have received had no such deductions been made.

(b)Borrower hereby indemnifies and holds harmless Lender for the full amount of Income Taxes and for any incremental Income Taxes due to Borrower’s failure to remit to Lender the required receipts or other required documentary evidence or due to a Borrower’s failure to pay any Income Taxes when due to the appropriate taxing authority (including, without limitation, any Income Taxes imposed by any jurisdiction on amounts payable under this Section 5.5) paid by Lender and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Income Taxes were correctly or legally assessed. Lender shall promptly notify Borrower of any such payment of Income Taxes and, if such payment was made pursuant to an incorrect or illegal assessment, shall reasonably cooperate with Borrower, at the expense of Borrower, in any dispute of such assessment. Payment pursuant to this indemnification shall be made within 30 days from the date Lender makes written demand therefor.

(c)Without prejudice to the survival of any other agreement of Borrower hereunder, the agreements and obligations of Borrower contained in this Section 5.5 shall survive the repayment of the Debt and the termination of this Agreement.

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Section 5.6.Litigation

Borrower shall give prompt written notice to Lender of any litigation or governmental proceedings pending or threatened in writing against Borrower which might materially adversely affect Borrower’s condition (financial or otherwise) or business or the Property.

Section 5.7.Access to Property

Borrower shall permit agents, representatives and employees of Lender to inspect the Property or any part thereof at reasonable hours upon reasonable advance notice, subject to the rights of American Express under the American Express Lease.

Section 5.8.Notice of Default

Borrower shall promptly advise Lender of any material adverse change in the condition (financial or otherwise) of Borrower, any Borrower Principal or the Property or of the occurrence of any Default or Event of Default of which Borrower has knowledge and of any American Express Lease Default of which Borrower has knowledge.

Section 5.9.Cooperate in Legal Proceedings

Borrower shall at Borrower’s expense cooperate fully with Lender with respect to any proceedings before any court, board or other Governmental Authority which may in any way affect the rights of Lender hereunder or any rights obtained by Lender under any of the other Loan Documents and, in connection therewith, permit Lender, at its election, to participate in any such proceedings.

Section 5.10.Performance by Borrower

Borrower shall in a timely manner observe, perform and fulfill each and every covenant, term and provision to be observed and performed by Borrower under this Agreement and the other Loan Documents and any other agreement or instrument affecting or pertaining to the Property and any amendments, modifications or changes thereto.

Section 5.11.Awards; Insurance Proceeds

Borrower shall cooperate with Lender in obtaining for Lender the benefits of any Awards or Insurance Proceeds lawfully or equitably payable to Borrower in connection with the Property, and Lender shall be reimbursed for any expenses incurred in connection therewith (including reasonable, actual attorneys’ fees and disbursements, and the payment by Borrower of the expense of an appraisal on behalf of Lender in case of a Casualty or Condemnation affecting the Property or any part thereof) out of such Awards or Insurance Proceeds. The actual payment of any Awards shall be governed by Section 8.4 hereof.

Section 5.12.Financial Reporting

(a)           Borrower and Borrower Principal shall keep adequate books and records of account in accordance with federal tax basis accounting, or in accordance with other methods acceptable to Lender in its sole discretion, consistently applied and shall furnish to Lender:

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(i)prior to a Securitization, at the request of Lender, monthly, and following a Securitization, quarterly and annual certificates signed and dated by Borrower, certifying that, the American Express Lease is in full force and effect, whether any defaults (or any matter that, with the passage of time or the giving of notice, could become a default) exist thereunder and any other information as is reasonably required by Lender, within twenty (20) days after the end of each calendar month, thirty (30) days after the end of each fiscal quarter or one hundred twenty (120) days after the close of each fiscal year of Borrower, as applicable;

(ii)prior to a Securitization, at the request of Lender, monthly, and following a Securitization, quarterly and annual operating statements of the Property, prepared and certified by Borrower in the form required by Lender, detailing the revenues received, the expenses incurred and the net operating income before and after debt service (principal and interest) and major capital improvements (including, without limitation, any capital improvements planned by American Express of which Borrower has notice) for the period of calculation and containing appropriate year-to-date information, within twenty (20) days after the end of each calendar month, thirty (30) days after the end of each fiscal quarter or one hundred (120) days after the close of each fiscal year of Borrower, as applicable;

(iii)annual balance sheets, profit and loss statements, statements of cash flows, and statements of change in financial position of Borrower and Borrower Principal in the form required by Lender prepared and certified by Borrower and Borrower Principal within one hundred twenty (120) days after the close of each fiscal year of Borrower and Borrower Principal, as the case may be (provided that with respect to Borrower, such statements may be delivered by the holder(s) of beneficial interests in Borrower in accordance with Section 6.1(a)(viii); and

(iv)all financial statements, operating statements, budgets, capital repair estimates or projections and certifications of any kind with respect to the foregoing delivered to Borrower by American Express under the American Express Lease.

(b)To the extent not inconsistent with the provisions of Section 5.l2(a) hereof (e.g., GAAP accounting and audits shall not be required ), Borrower and Borrower Principal shall furnish Lender with such other additional financial or management information (including state, provincial and federal tax returns) as may, from time to time, be reasonably required by Lender in form and substance satisfactory to Lender (including, without limitation, any financial reports required to be delivered by any Tenant or any guarantor of any Lease pursuant to the terms of such Lease), and shall furnish to Lender and its agents convenient facilities for the examination and audit of any such books and records

(c)Without limiting any other rights available to Lender under this Loan Agreement or any of the other Loan Documents, in the event Borrower shall fail to timely furnish Lender any financial document or statement in accordance with this Section 5.12, Borrower shall promptly pay to Lender a non-refundable charge in the amount of $500 for each such failure. The payment of such amount shall not be construed to relieve Borrower of any Event of Default hereunder arising from such failure.

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(d)All items requiring the certification of Borrower shall, except where Borrower is an individual, require a certificate executed by the general partner, managing member or chief executive officer of Borrower, as applicable (and the same rules shall apply to any sole shareholder, general partner or managing member which is not an individual).

Section 5.13.Estoppel Statement

(a)After request by Lender, Borrower shall within ten (10) Business Days furnish Lender with a statement, duly acknowledged and certified, setting forth (i) the amount of the original principal amount of the Note, (ii) the rate of interest on the Note, (iii) the unpaid principal amount of the Note, (iv) the date installments of interest and/or principal were last paid, (v) any offsets or defenses to the payment of the Debt, if any, and (vi) that the Note, this Agreement, the Mortgage and the other Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such modification.

(b)Borrower shall use its best efforts to deliver to Lender, promptly upon request, a duly executed estoppel certificate from American Express on the form attached to the American Express Lease as an exhibit.

Section 5.14.Leasing Matters.

(a)Borrower (i) shall observe and perform all the obligations imposed on the landlord under the American Express Lease and shall not do or permit to be done anything to impair the value of the American Express Lease as security for the Debt; (ii) shall promptly send copies to Lender of all notices of default which Borrower shall send or receive thereunder; (iii) shall enforce all of the material terms, covenants and conditions contained in the American Express Lease on the part of the tenant thereunder to be observed or performed; (iv) shall not collect any of the Rents more than one (1) month in advance; (v) shall not execute any other assignment of the landlord’s interest in the American Express Lease or the Rents; and (vi) shall not consent to any assignment of or subletting under the American Express Lease not in accordance with its terms without the prior written consent of Lender.

(b)Borrower shall not, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a surrender of space under or shorten the term of the American Express Lease.

Section 5.15.Property Management

(a)Borrower shall (i) promptly perform and observe all of the covenants required to be performed and observed by it under the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (ii) promptly notify Lender of any default under the Management Agreement of which it is aware; (iii) promptly deliver to Lender a copy of any notice of default or other material notice received by Borrower under the Management Agreement; (iv) promptly give notice to Lender of any notice or information that Borrower receives which indicates that Manager is terminating the Management Agreement or that Manager is otherwise discontinuing its management of the Property; and (v) promptly enforce the performance and observance of all of the covenants required to be performed and observed by Manager under the Management Agreement.

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(b)If at any time, (i) Manager shall become insolvent or a debtor in a bankruptcy proceeding; (ii) an Event of Default has occurred and is continuing; or (iii) a default has occurred and is continuing after the expiration of any applicable cure periods under the Management Agreement, Borrower shall, at the request of Lender, terminate the Management Agreement upon thirty (30) days prior notice to Manager and replace Manager with a Qualified Manager, it being understood and agreed that the management fee for such replacement manager shall not exceed then prevailing market rates.

(c)In addition to the foregoing, in the event that Lender, in Lender’s reasonable discretion, at any time prior to the termination of the Assignment of Management Agreement, determines that the Property is not being managed in accordance with generally accepted management practices for projects similarly situated, Lender may deliver written notice thereof to Borrower and Manager, which notice shall specify with particularity the grounds for Lender’s determination. If Lender reasonably determines that the conditions specified in Lender’s notice are not remedied to Lender’s reasonable satisfaction by Borrower or Manager within thirty (30) days from the date of such notice or that Borrower or Manager has failed to diligently undertake correcting such conditions within such thirty (30) day period, Lender may direct Borrower to terminate the Management Agreement and to replace Manager with a Qualified Manager on terms and conditions satisfactory to Lender, it being understood and agreed that the management fee for such replacement manager shall not exceed then prevailing market rates.

(d)Borrower shall not, without the prior written consent of Lender (which consent shall not be unreasonably withheld, conditioned or delayed): (i) surrender, terminate or cancel the Management Agreement or otherwise replace Manager or enter into any other management agreement with respect to the Property; (ii) reduce or consent to the reduction of the term of the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Management Agreement; or (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the Management Agreement in any material respect. In the event that Borrower replaces Manager at any time during the term of Loan pursuant to this subsection, such Manager shall be a Qualified Manager.

(e)Notwithstanding the foregoing, Borrower shall be permitted to transfer the management of the Property to Inland US Management LLC, a Delaware limited liability company, provided that the terms of the management contract between Borrower and such entity provides for fees no greater than, is on terms that are substantially similar to and is no less favorable to Borrower than the Management Agreement in effect as of the date hereof.

Section 5.16.Liens

Borrower shall not, without the prior written consent of Lender, create, incur, assume or suffer to exist any Lien on any portion of the Property or permit any such action to be taken, except Permitted Encumbrances.

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Section 5.17.Debt Cancellation

Borrower shall not cancel or otherwise forgive or release any claim or debt owed to Borrower by any Person, except for adequate consideration and in the ordinary course of Borrower’s business.

Section 5.18.Zoning

Borrower shall not initiate or consent to any zoning reclassification of any portion of the Property or seek any variance under any existing zoning ordinance or use or permit the use of any portion of the Property in any manner that could result in such use becoming a non-conforming use under any zoning ordinance or any other applicable land use law, rule or regulation, without the prior written consent of Lender.

Section 5.19.ERISA

(a)To the extent applicable, Borrower shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under the Note, this Agreement or the other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA.

(b)Borrower further covenants and agrees to deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan, as requested by Lender in its sole discretion, that, (i) Borrower is not and does not maintain an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmental plan” within the meaning of Section 3(3) of ERISA; (ii) Borrower is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (iii) one or more of the following circumstances is true:

(A)Equity interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R. §2510.3-101(b)(2);

(B)Less than twenty-five percent (25%) of each outstanding class of equity interests in Borrower are held by “benefit, plan investors” within the meaning of 29 C.F.R. §2510.3-101(f)(2); or

(C)Borrower qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. §2510.3-101(c) or (e).

Section 5.20.No Joint Assessment

Borrower shall not suffer, permit or initiate the joint assessment of the Property with (a) any other real property constituting a tax lot separate from the Property, or (b) any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the Lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to the Property.

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Section 5.21.Reciprocal Easement Agreements

Borrower shall not enter into, terminate or modify any REA without Lender’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Borrower shall enforce, comply with, and cause each of the parties to the REA to comply with all of the material economic terms and conditions contained in the REA, provided that Borrower may agree, without Lender’s consent, to modifications to any REA or to grant easements with respect to the Property which could not reasonably be expected to have a material adverse effect on the use, value or operation of the Property, on the ability of American Express to perform its obligations under the American Express Lease or on Borrower’s ability to perform its obligations under the Loan Documents.

ARTICLE 6
ENTITY COVENANTS

Section 6.1.Single Purpose Entity/Separateness

Until the Debt has been paid in full, Borrower represents, warrants and covenants as follows:

Borrower has not and will not:

(i)engage in any business or activity other than the ownership, operation and maintenance of the Property, and activities incidental thereto;

(ii)acquire or own any assets other than (A) the Property, and (B) such incidental Personal Property as may be necessary for the operation of the Property;

(iii)except as expressly provided in Article 7 hereof, merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure;

(iv)fail to observe all organizational formalities, or fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the applicable Legal Requirements of the jurisdiction of its organization or formation, or amend, modify, terminate or fail to comply with the provisions of its organizational documents;

(v)own any subsidiary, or make any investment in, any Person;

(vi)commingle its assets with the assets of any other Person, or permit any Affiliate or constituent party independent access to its bank accounts;

(vii)incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) the Debt, (B) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past the date

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incurred and paid on or prior to such date, (C) financing leases and purchase money indebtedness incurred in the ordinary course of business relating to Personal Property on commercially reasonable terms and conditions, and/or (D) a loan with the Borrower Principal, which is subordinate to the Loan with Lender, to fund a portion of the equity required to purchase the Property; provided however, the aggregate amount of the indebtedness described in (B) and (C) shall not exceed at any time three percent (3%) of the outstanding principal amount of the Note;

(viii)permit its records, books of account, bank accounts, financial statements and accounting records (including with respect to financial position, assets, liabilities, net worth and operating results) to be shown on the financial statements of any holder of a beneficial interest in Borrower unless such financial statements shall contain a footnote indicating that Borrower is a separate legal entity and the assets of Borrower are not available as collateral to creditors of such holder;

(ix)enter into any contract or agreement with any general partner, member, shareholder, principal, guarantor of the obligations of Borrower, or any Affiliate of the foregoing, except upon terms and conditions that are intrinsically fair, commercially reasonable and substantially similar to those that would be available on an arm’s-length basis with unaffiliated third parties;

(x)maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;

(xi)assume or guarantee the debts of any other Person, hold itself out to be responsible for the debts of any other Person, or otherwise pledge its assets for the benefit of any other Person or hold out its credit as being available to satisfy the obligations of any other Person;

(xii)make any loans or advances to any Person;

(xiii)fail to file its own tax returns or files a consolidated federal income tax return with any Person (unless prohibited or required, as the case may be, by applicable Legal Requirements);

(xiv)fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name or fail to correct any known misunderstanding regarding its separate identity;

(xv)fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that Borrower’s failure to do so solely because of a shortfall in cash flow derived from the operation of the Property shall not, by itself, constitute a breach of this covenant);

(xvi)Without the unanimous written consent of all of its members, as applicable, and the written consent of 100% of the directors of Borrower, including, without limitation, the Independent Director, (a) file or consent to the filing of any

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petition, either voluntary or involuntary, to take advantage of any Creditors Rights Laws, (b) seek or consent to the appointment of a receiver, liquidator or any similar official, (c) take any action that might cause such entity to become insolvent, or (d) make an assignment for the benefit of creditors;

(xvii)fail to allocate shared expenses (including, without limitation, shared office space and services performed by an employee of an Affiliate) among the Persons sharing such expenses and to use separate stationery, invoices and checks;

(xviii)fail to remain solvent or pay its own liabilities (including, without limitation, salaries of its own employees) only from its own funds (provided that Borrower’s failure to do so solely because of a shortfall in cash flow derived from the operation of the Property shall not, by itself, constitute a breach of this covenant);

(xix)acquire obligations or securities of its partners, members, shareholders or other affiliates, as applicable;

(xx)violate or cause to be violated the assumptions made with respect to Borrower, Manager (if applicable) and their respective direct and/or indirect owners in any opinion letter pertaining to substantive consolidation delivered to Lender in connection with the Loan; or

(xxi)fail to maintain a sufficient number of employees in light of its contemplated business operations.

Section 6.2.Change of Name, Identity or Structure

Borrower shall not change or permit to be changed (a) Borrower’s name, (b) Borrower’s identity (including its trade name or names), (c) Borrower’s principal place of business set forth on the first page of this Agreement, (d) the corporate, partnership or other organizational structure of Borrower, or Borrower Principal, (e) Borrower’s province of organization, or (f) Borrower’s organizational identification number, if applicable, without in each case notifying Lender of such change in writing at least thirty (30) days prior to the effective date of such change and, in the case of a change in Borrower’s structure, without first obtaining the prior written consent of Lender. In addition, Borrower shall not change or permit to be changed any organizational documents of Borrower if such change would adversely impact the covenants set forth in Section 6.1 and Section 6.4 hereof. Borrower authorizes Lender to file any financing statement or financing statement amendment required by Lender to establish or maintain the validity, perfection and priority of the security interest granted herein. At the request of Lender, Borrower shall execute a certificate in form satisfactory to Lender listing the trade names under which Borrower intends to operate the Property, and representing and warranting that Borrower does business under no other trade name with respect to the Property. If Borrower does not now have an organizational identification number and later obtains one, or if the organizational identification number assigned to Borrower subsequently changes, Borrower shall promptly notify Lender of such organizational identification number or change. Nothing in this Section 6.2 shall be deemed to restrict any express rights granted to Borrower under Article 7 hereof.

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Section 6.3.Business and Operations

Borrower will qualify to do business and will remain in good standing under the laws of the State as and to the extent the same are required for the ownership, maintenance, management and operation of the Property.

Section 6.4.Independent Director

(a)The organizational documents of Borrower shall provide that at all times there shall be, and Borrower shall cause there to be, at least one duly appointed member of the board of directors (each an “Independent Director”) of Borrower reasonably satisfactory to Lender who is not at the time of such individual’s initial appointment, and shall not have been at any time during the preceding five (5) years, and shall not be at any time while serving as a manager of Borrower, either (i) a shareholder (or other equity owner) of, or an officer, director, partner, manager, member, employee, attorney or counsel of, Borrower, Borrower Principal or any of their respective shareholders, partners, members, subsidiaries or affiliates; (ii) a customer or creditor of, or supplier to, Borrower or any of its respective shareholders, partners, members, subsidiaries or affiliates who derives any of its purchases or revenue from its activities with Borrower or any Affiliate of any of them; (iii) a Person who Controls or is under common Control with any such shareholder, officer, director, partner, manager, member, employee, supplier, creditor or customer; or (iv) a member of the immediate family of any such shareholder, officer, director, partner, manager, member, employee, supplier, creditor or customer.

(b)The organizational documents of Borrower shall provide that the board of directors of Borrower shall not take any action which, under the terms of any certificate of incorporation, by-laws or any voting trust agreement with respect to any common stock, requires an unanimous vote of the board of directors of Borrower unless at the time of such action there shall be at least one member of the board who is an Independent Director. Borrower will not, without the unanimous written consent of its board of directors including the Independent Director, on behalf of Borrower, (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable Creditors Rights Laws; (ii) seek or consent to the appointment of a receiver, liquidator or any similar official; (iii) take any action that might cause such entity to become insolvent; or (iv) make an assignment for the benefit of creditors.

ARTICLE 7
NO SALE OR ENCUMBRANCE

Section 7.1.Transfer Definitions

For purposes of this Article 7 an “Affiliated Manager” shall mean any managing agent in which Borrower, Borrower Principal, or any affiliate of such entities has, directly or indirectly, any legal, beneficial or economic interest; “Control” shall mean the power to direct, the management and policies of a Restricted Party, directly or indirectly, whether through the ownership of voting securities or other beneficial interests, by contract or otherwise; “Restricted Party” shall mean Borrower, Borrower Principal any Affiliated Manager, or any shareholder, partner, member or non-member manager, or any direct or indirect legal or beneficial owner of

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Borrower, Borrower Principal, any Affiliated Manager or any non-member manager; and a “Sale or Pledge” shall mean a voluntary or involuntary sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment, grant of any options with respect to, or any other transfer or disposition of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) of a legal or beneficial interest.

Section 7.2.No Sale/Encumbrance

(a)Borrower shall not cause or permit a Sale or Pledge of the Property or any part thereof or any legal or beneficial interest therein nor permit a Sale or Pledge of an interest in any Restricted Party (in each case, a “Prohibited Transfer”), other than pursuant to the American Express Lease, without the prior written consent of Lender.

(b)A Prohibited Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock in one or a series of transactions; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general or limited partner or any profits or proceeds relating to such partnership interests or the creation or issuance of new partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of any member or any profits or proceeds relating to such membership interest; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) the removal or the resignation of the Manager (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.15.

Section 7.3.Permitted Transfers

Notwithstanding the provisions of Section 7.2, the following transfers shall not be deemed to be a Prohibited Transfer: (a) a transfer by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party, so long as Borrower delivers notice to Lender as soon as practicable thereafter and that such Restricted Party is promptly reconstituted, if applicable, following the death of such member, partner or shareholder and there is no change in Control of such Restricted Party as a result of such transfer; (b) the Sale or Pledge, in one or a series of related transactions, of not more than forty-nine percent (49%) of the stock, limited partnership interests or non-managing membership interests (as the case may be) in a Restricted Party; (c) a transfer of the Property to Western Markham Limited Partnership provided that the sole general partner is Borrower or a Canadian trust whose sole beneficiary is Borrower Principal; (d) a transfer of the Property to a newly formed Canadian trust of which a newly formed Canadian corporation will be the sole trustee and Borrower will be the sole

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beneficiary; provided, however, no such transfers shall result in a change in Control in the Restricted Party or change in control of the Property, and as a condition to each such transfer, Lender shall receive not less than thirty (30) days prior written notice of such proposed transfer and further provided that as a condition to a transfer described in subparagraph (d), Lender shall receive together with the written notice of such proposed transfer (i) a written agreement executed by the Transferee in form and substance reasonably satisfactory to Lender assuming and agreeing to observe, comply with and perform all the terms, covenants, conditions and indemnifications of the Loan Documents on the part of Borrower to be performed arising from and after the date of the transfer (except the obligation to pay the Debt) and (ii) a written agreement executed by Borrower Principal in form and substance reasonably satisfactory to Lender acknowledging and agreeing that its obligations set forth in Article 4, Section 12.2, Article 13, Article 15 and Article 18 of this Agreement shall continue in full force and effect, notwithstanding the transfer. Notwithstanding the foregoing, any one or more of the transfers that results in any Person owning in excess of forty-nine percent (49%) of the ownership interest in a Restricted Party shall comply with the requirements of Section 7.4.

Section 7.4.Lender’s Rights

Lender reserves the right to condition the consent to a Prohibited Transfer requested hereunder upon (a) a modification of the terms hereof and an assumption of the Note and the other Loan Documents as so modified by the proposed Prohibited Transfer, (b) receipt of payment of a transfer fee equal to one percent (1%) of the outstanding principal balance of the Loan and all of Lender’s expenses incurred in connection with such Prohibited Transfer, (c) receipt of written confirmation from the Rating Agencies that the Prohibited Transfer will not result in a downgrade, withdrawal or qualification of the initial, or if higher, then current ratings issued in connection with a Securitization, or if a Securitization has not occurred, any ratings to be assigned in connection with a Securitization, (d) the proposed transferee’s continued compliance with the covenants set forth in this Agreement (including, without limitation, the covenants in Article 6) and the other Loan Documents, (e) a new manager for the Property and a new management agreement satisfactory to Lender, and (f) the satisfaction of such other conditions and/or legal opinions as Lender shall determine in its sole discretion to be in the interest of Lender. All expenses incurred by Lender shall be payable by Borrower whether or not Lender consents to the Prohibited Transfer. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Prohibited Transfer made without Lender’s consent. This provision shall apply to each and every Prohibited Transfer, whether or not Lender has consented to any previous Prohibited Transfer. In the event an opinion letter pertaining to substantive consolidation was delivered to Lender and the Rating Agencies in connection with the closing of the Loan, and if any Sale or Pledge permitted under this Article 7 results in any Person and its Affiliates owning in excess of forty-nine percent (49%) of the ownership interests in a Restricted Party, Borrower shall, prior to such transfer, and in addition to any other requirement for Lender consent contained herein, deliver a revised substantive non-consolidation opinion letter to Lender reflecting such Prohibited Transfer, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies.

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Section 7.5.Assumption

Notwithstanding the foregoing provisions of this Article 7, following the date which is six (6) months from the Closing Date, Lender shall not unreasonably withhold consent to a transfer of the Property in its entirety to, and the related assumption of the Loan by, a corporation (a “Transferee”) provided that each of the following terms and conditions are satisfied:

(a)no Default or Event of Default has occurred;

(b)Borrower shall have (i) delivered written notice to Lender of the terms of such prospective transfer not less than forty-five (45) days before the date on which such transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transferee as Lender shall reasonably require and (ii) paid to Lender a non-refundable processing fee in the amount of $10,000. Lender shall have the right to approve or disapprove the proposed transfer based on its then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld. In determining whether to give or withhold its approval of the proposed transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Property, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate;

(c)Borrower shall have paid to Lender, concurrently with the closing of such transfer, (i) a non-refundable assumption fee in an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note, and (ii) all out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection with the transfer;

(d)(i) Transferee shall have assumed and agreed to pay the Debt as and when due subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such transfer, Transferee and its constituent partners, members or shareholders as Lender may require, shall have executed, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and (ii) if required by Lender, a Person affiliated with Transferee and acceptable to Lender shall have assumed the obligations of Borrower Principal under the Loan Documents with respect to all acts and events occurring or arising after the transfer of the Property pursuant to this Section 7.5;

(e)Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable law, and shall execute any additional documents reasonably requested by Lender;

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(f)Borrower shall have delivered to Lender, without any cost or expense to Lender, such endorsements to Lender’s Title Insurance Policy insuring that fee simple or leasehold title to the Property, as applicable, is vested in Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;

(g)Transferee shall have furnished to Lender, all appropriate papers evidencing Transferee’s organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which papers shall include certified copies of all documents relating to the organization and formation of Transferee. Transferee and such constituent shareholders of Transferee, as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;

(h)Transferee shall assume the obligations of Borrower under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.15 hereof and assign to Lender as additional security such new management agreement;

(i)Transferee shall furnish an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (g) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, General Assignment of Rents, Specific Assignment of Lease, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee has been duly organized, and is in existence and good standing, and (E) with respect to such other matters as Lender may reasonably request;

(j)if required by Lender, Lender shall have received confirmation in writing from the Rating Agencies that rate the Securities to the effect that the transfer will not result in a qualification, downgrade or withdrawal of any rating initially assigned or to be assigned to the Securities;

(k)Borrower’s obligations under the contract of sale pursuant to which the transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.5;

(1)Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies; and

(m)Transferee shall be a corporation or other entity reasonably acceptable to Lender.

A consent by Lender with respect to a transfer of the Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.5 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Sale or Pledge of the Property. Upon the transfer of the Property pursuant to this Section 7.5, Borrower and Borrower Principal shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or

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circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer.

Section 7.6.Assumption by Inland Permitted Transferee

Notwithstanding the foregoing provisions of this Article 7, Borrower shall be permitted to transfer the Property in its entirety to, provided the Loan is simultaneously assumed by, an Inland Permitted Transferee, and provided further that each of the following terms and conditions is satisfied:

(a)no Default or Event of Default has occurred;

(b)Borrower shall have delivered written notice to Lender of the terms of such prospective transfer not less than forty-five (45) days before the date on which such transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transferee as Lender shall reasonably require;

(c)Borrower shall have paid to Lender all out-of-pocket costs and expenses, including reasonable attorneys’ fees, incurred by Lender in connection with the transfer;

(d)such Inland Permitted Transferee assumes and agrees to pay the Debt as and when due subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such transfer, such Inland Permitted Transferee and its constituent partners, members or shareholders as Lender may require, shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption;

(e)Borrower and such Inland Permitted Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest, extent permitted by applicable law, and shall execute any additional documents reasonably requested by Lender;

(f)Borrower shall have delivered to Lender, without any cost or expense to Lender, endorsements to Lender’s Title Insurance Policy insuring that fee simple title to the Property is vested in such Inland Permitted Transferee (subject to Permitted Encumbrances), hazard insurance endorsements or certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;

(g)such Inland Permitted Transferee shall have furnished to Lender, all appropriate papers evidencing Transferee’s organization and good standing, and the qualification of the signers to execute the assumption of the Debt, which papers shall include certified copies of all documents relating to the organization and formation of such Transferee. Transferee and such constituent shareholders of Transferee, as Lender shall require, shall comply with the covenants set forth in Article 6 hereof;

(h)such Inland Permitted Transferee shall assume the obligations of Borrower under any Management Agreement or provide a new management agreement with a new manager

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which meets with the requirements of Section 5.15 hereof and assign to Lender as additional security such new management agreement;

(i)Transferee shall furnish an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (g) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the Note, the Mortgage, the General Assignment of Rents, the Specific Assignment of Rents, this Agreement, the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, have been duly organized, and are in existence and good standing, and (E) with respect to such other matters as Lender may reasonably request; and

(j)in the event a substantive non-consolidation opinion was required in connection with the closing of the Loan, Transferee shall, prior to such transfer, deliver a substantive non-consolidation opinion to Lender, which opinion shall be in form, scope and substance acceptable in all respects to Lender and the Rating Agencies.

A consent by Lender with respect to a transfer of the Property in its entirety to, and the related assumption of the Loan by, a Transferee pursuant to this Section 7.6 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Sale or Pledge of the Property.

ART1CLE 8

INSURANCE; CASUALTY; CONDEMNATION; RESTORATION

Section 8.1.Insurance

(a)Subject to the provisions of paragraph (g) of this Section 8.1, Borrower shall obtain and maintain, or cause American Express to maintain, insurance for Borrower and the Property providing at least the following coverages:

(i)comprehensive “special causes of loss” form of insurance (or its equivalent) on the Improvements and the Personal Property (A) in an amount equal to not less than one hundred percent (100%) of the “Full Replacement Cost,” which for purposes of this Agreement shall mean actual replacement value (exclusive of costs of excavations, foundations, underground utilities and footings) with a waiver of depreciation; (B) written on a replacement cost basis and containing either an agreed amount endorsement with respect to the Improvements and Personal Property or a waiver of all co-insurance provisions; (C) providing for no deductible in excess of $10,000 for all such insurance coverage; (D) at all times insuring against at least, those hazards that are commonly insured against, under a “special causes of loss” form of policy, as the same shall exist on the date hereof, and together with any increase in the scope of coverage provided under such form after the date hereof; and (E) if any of the Improvements or the use of the Property shall at any time constitute legal non-conforming structures or uses, providing coverage for contingent liability from Operation of Building Laws, Demolition Costs and Increased Cost of Construction Endorsements and containing an “Ordinance or Law Coverage” or “Enforcement” endorsement. In

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addition, Borrower shall obtain flood and earthquake insurance in amounts and in form and substance reasonably satisfactory to Lender in the event the Property is located in a flood zone or in an area with a high degree of seismic risk, provided that the insurance shall be on terms consistent with the special causes of loss form required under this subsection (i);

(ii)commercial general liability insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about the Property, with such insurance (A) to be on the so-called “occurrence” form with a general aggregate limit of not less than $2,000,000 and a per occurrence limit of not less than $1,000,000; (B) to continue at not less than the aforesaid limit until required to be changed by Lender in writing by reason of changed economic conditions making such protection inadequate; and (C) to cover at least the following hazards: (1) premises and operations; (2) products and completed operations; (3) independent contractors; (4) blanket contractual liability; and (5) contractual liability covering the indemnities contained in Article 12 and Article 14 hereof to the extent the same is available;

(iii)if the rating of American Express issued by the Rating Agencies falls below the Trigger Rating, loss of rents insurance or business income insurance, as applicable, (A) with loss payable to Lender; (B) covering all risks required to be covered by the insurance provided for in subsection (i) above; and (C) which provides that after the physical loss to the Improvements and Personal Property occurs, the loss of rents or income, as applicable, will be insured until such rents or income, as applicable, either returns to the same level that existed prior to the loss or the expiration of twelve (12) months, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period; and (D) which contains an extended period of indemnity endorsement which provides that after the physical loss to the Improvements and Personal Property has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss, or the expiration of twelve (12) months from the date that the Property is repaired or replaced and operations are resumed, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period. The amount of such loss of rents or business income insurance, as applicable, shall be determined prior to the date hereof and at least once each year thereafter based on Borrower’s reasonable estimate of the gross income from the Property for the succeeding period of coverage required above. All proceeds payable to Lender pursuant to this subsection shall be held by Lender and shall be applied to the obligations secured by the Loan Documents from time to time due and payable hereunder and under the Note; provided, however, that nothing herein contained shall be deemed to relieve Borrower of its obligations to pay the obligations secured by the Loan Documents on the respective dates of payment provided for in the Note, this Agreement and the other Loan Documents except to the extent, such amounts are actually paid out of the proceeds of such loss of rents or business income insurance, as applicable;

(iv)at all times during which structural construction, repairs or alterations are being made with respect to the Improvements, and only if the Property coverage form does not otherwise apply, (A) owner’s contingent or protective liability insurance covering claims not covered by or under the terms or provisions of the above mentioned

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commercial general liability insurance policy; and (B) the insurance provided for in subsection (i) above written in a so-called Builder’s Risk Completed Value form (1) on a non-reporting basis, (2) against “special causes of loss” insured against pursuant to subsection (i) above, (3) including permission to occupy the Property, and (4) with an agreed amount endorsement waiving co-insurance provisions;

(v)workers’ compensation, subject to the statutory limits of the Province, and employer’s liability insurance in respect of any work or operations on or about the Property, or in connection with the Property or its operation (if applicable);

(vi)comprehensive boiler and machinery insurance, if applicable, in amounts as shall be reasonably required by Lender on terms consistent with the commercial property insurance policy required under subsection (i) above;

(vii)excess liability insurance in an amount not less than $75,000,000 per occurrence on terms consistent with the commercial general liability insurance required under subsection (ii) above; and

(viii)upon sixty (60) days’ written notice, such other reasonable insurance and in such reasonable amounts as Lender from time to time may reasonably request against such other insurable hazards which at the time are commonly insured against for property similar to the Property located in or around the region in which the Property is located.

With respect to the policies required to be maintained pursuant to clauses (i) through (viii) above, Borrower shall use commercially reasonable efforts, consistent with those of prudent owners of institutional quality commercial real estate, to maintain insurance against Losses resulting from acts of terrorism.

(b)All insurance provided for in Section 8.1(a) shall be obtained under valid and enforceable policies (collectively, the “Policies” or in the singular, the “Policy”), and shall be subject to the approval of Lender as to insurance companies, amounts, deductibles, loss payees and insureds. The Policies shall be issued by financially sound and responsible insurance companies authorized to do business in the State and/or Province and having a claims paying ability rating of “A-” or better by S&P (or such other ratings approved by Lender) and/or a general policy rating of “A” or better and a financial class of VIII or better by A.M. Best Company, Inc. The Policies described in Section 8.1(a) shall designate Lender and its successors and assigns as additional insureds, mortgagees and/or loss payee as deemed appropriate by Lender. To the extent such Policies are not available as of the Closing Date, Borrower shall deliver to Lender prior to the Closing Date a certificate of insurance evidencing the coverages and amounts required hereunder and, upon request of Lender as soon as available after the Closing Date, certified copies of all Policies. Not less than ten (10) days prior to the expiration dates of any insurance coverage in place with respecl to the Property. Borrower shall deliver to Lender an Acord 28 or similar certificate, accompanied by evidence satisfactory to Lender of payment of the premiums due in connection therewith (the “Insurance Premiums”), and, as soon as available thereafter, certified copies of all renewal Policies.

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(c)Any blanket insurance Policy shall specifically allocate to the Property the amount of coverage from time to time required hereunder and shall otherwise provide the same protection as would a separate Policy insuring only the Property in compliance with the provisions of Section 8.1 (a).

(d)All Policies provided for or contemplated by Section 8.l(a), except for the Policy referenced in Section 8.l(a)(v), shall name Borrower as the insured and Lender as the additional insured, as its interests may appear, and in the case of property damage, boiler and machinery, flood and earthquake insurance, shall contain a standard Insurance Bureau of Canada mortgagee clause in favor of Lender providing that the loss thereunder shall be payable to Lender.

(e)All Policies provided for in Section 8.1(a) shall contain clauses or endorsements to the effect that:

(i)no act or negligence of Borrower, or anyone acting for Borrower, or of any Tenant or other occupant, or failure to comply with the provisions of any Policy, which might otherwise result in a forfeiture of the insurance or any part thereof, shall in any way affect the validity or enforceability of the insurance insofar as Lender is concerned;

(ii)the Policies shall not be materially changed (other than to increase the coverage provided thereby) or canceled by the insurer without at least thirty (30) days’ (ten (10) days’ in the case of non-payment of premium) prior written notice to Lender and any other party named therein as an additional insured;

(iii)the issuers thereof shall give written notice to Lender if the Policies have not been renewed thirty (30) days prior to its expiration; and

(iv)Lender shall not be liable for any Insurance Premiums thereon or subject to any assessments thereunder.

(f)If at any time Lender is not in receipt of written evidence that all insurance required hereunder is in full force and effect, Lender shall have the right, without notice to Borrower, to take such action as Lender deems necessary to protect its interest in the Property, including, without limitation, obtaining such insurance coverage as Lender in its sole discretion deems appropriate. All premiums incurred by Lender in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by Borrower to Lender upon demand and, until paid, shall be secured by the Mortgage and shall bear interest at the Default Rate.

(g)Notwithstanding any other provision hereof to the contrary, Lender acknowledges that so long as no American Express Lease Default has occurred, Borrower shall not be required to obtain the insurance coverages set forth in paragraphs (a)(i) through (viii) if (x) Guarantor (or American Express if there is no Guarantor) is a self-insurer and maintains a rating issued by the Rating Agencies of not less than the Trigger Rating or (y) American Express maintains insurance with coverages and carriers in compliance with the terms of the American Express Lease.

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Section 8.2.Casualty

If the Property shall be damaged or destroyed, in whole or in part, by fire or other casualty (a “Casualty”), Borrower shall give prompt notice of such damage to Lender and shall promptly commence and diligently prosecute the Restoration of the Property in accordance with Section 8.4, whether or not Lender makes any Net Proceeds available pursuant to Section 8.4. Borrower shall pay all costs of such Restoration whether or not such costs are covered by insurance. Lender may, but shall not be obligated to make proof of loss if not made promptly by Borrower. Borrower shall adjust all claims for Insurance Proceeds in consultation with, and approval of, Lender; provided, however, if an Event of Default has occurred and is continuing, Lender shall have the exclusive right to participate in the adjustment of all claims for Insurance Proceeds.

Section 8.3.Expropriation

Borrower shall promptly give Lender notice of the actual or threatened commencement of any proceeding for the Expropriation of the Property of which Borrower has knowledge and shall deliver to Lender copies of any and all papers served in connection with such proceedings. Lender may participate in any such proceedings, and Borrower shall from time to time deliver to Lender all instruments requested by it to permit such participation. Borrower shall, at its expense, diligently prosecute any such proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings. Notwithstanding any taking by any public or quasi-public authority through Expropriation or otherwise (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Debt at the time and in the manner provided for its payment in the Note and in this Agreement and the Debt shall not be reduced until any Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Debt. Lender shall not be limited to the interest paid on the Award by the expropriating authority but shall be entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. If the Property or any portion thereof is taken by an appropriating authority, Borrower shall promptly commence and diligently prosecute the Restoration of the Property and otherwise comply with the provisions of Section 8.4, whether or not Lender makes any Net Proceeds available pursuant to Section 8.4. If the Property is sold, through foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered or denied, to receive the Award, or a portion thereof sufficient to pay the Debt. So long as no American Express Lease Default has occurred, the payment and allocation of any Awards shall be governed by the American Express Lease.

Section 8.4.Restoration

The following provisions shall apply in connection with the Restoration of the Property:

(a)If the Net Proceeds shall be less than $50,000 and the costs of completing the Restoration shall be less than $50,000, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 8.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.

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(b)If the Net Proceeds are equal to or greater than $50,000 or the costs of completing the Restoration are equal to or greater than $50,000, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 8.4. The term “Net Proceeds” for purposes of this Section 8.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 8.1(a)(i), (iv), (vi) and (viii) as a result of a Casualty, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting the same (“Insurance Proceeds”), or (ii) the net amount of the Award as a result of an Expropriation, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting the same (“Expropriation Proceeds”), whichever the case may be.

(i)The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:

(A)no Event of Default shall have occurred and be continuing;

(B)(1) in the event the Net Proceeds are Insurance Proceeds, less than thirty percent (30%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of a Casualty, or (2) in the event the Net Proceeds are Expropriation Proceeds, less than ten percent (10%) of the land constituting the Property is taken, such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land;

(C)The American Express Lease shall remain in full force and effect during and after completion of the Restoration without abatement of Rent;

(D)Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than sixty (60) days after such Casualty or Expropriation, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion;

(E)Lender shall be satisfied that any operating deficits, including all scheduled payments under the Note, which will be incurred with respect to the Property as a result of the occurrence of any such Casualty or Expropriation, whichever the case may be, will be covered out of the insurance coverage referred to in Section 8.1(a)(iii) above;

(F)Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, (2) the earliest date required for such completion under the terms of any Leases or material agreements affecting the Property, (3) such time as may be required under applicable zoning law, ordinance, rule or regulation, or (4) the expiration of the insurance coverage referred to in Section 8.l(a)(iii);

(G)the Property and the use thereof after the Restoration will be in compliance with and permitted under all Legal Requirements;

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(H)the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements;

(I)such Casualty or Expropriation, as applicable, does not result in the loss of access to the Property or the Improvements;

(J)Borrower shall deliver, or cause to be delivered, to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, which budget shall be acceptable to Lender; and

(K)the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s reasonable judgment to cover the cost of the Restoration.

(ii)The Net Proceeds shall be held by Lender until disbursements commence, and, until disbursed in accordance with the provisions of this Section 8.4, shall constitute additional security for the Debt and other obligations under the Loan Documents. The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all the conditions precedent to such advance, including those set forth in Section 8.4(b)(i), have been satisfied, (B) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the related Restoration item have been paid for in full, and (C) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy. Notwithstanding the foregoing, Business Interruption Proceeds required to be maintained by Borrower pursuant to section 8.1(a)(iii) shall be controlled by Lender at all times, shall not be subject to the provisions of this Section 8.4 and shall be used solely for the payment of the obligations under the Loan Documents and Operating Expenses.

(iii)All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Restoration Consultant”). Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration, as well as the contracts in excess of $50,000 under which they have been engaged, shall be subject to prior review and acceptance by Lender and the Restoration Consultant. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration, including, without limitation, reasonable counsel fees and disbursements and the Restoration Consultant’s fees, shall be paid by Borrower.

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(iv)In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Restoration Consultant, minus the Restoration Retainage. The term “Restoration Retainage” shall mean an amount equal to the greater of:

(A)ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Restoration Consultant, until the Restoration has been completed and

(B)the amount of the owner’s holdback required to be maintained pursuant to the provisions of the Construction Lien Act (Ontario) as amended from time to time.

The Restoration Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Section 8.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Restoration Retainage shall not be released until the Restoration Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 8.4(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate Governmental Authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Restoration Retainage; provided, however, that Lender will release the portion of the Restoration Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Restoration Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company issuing the Title Insurance Policy, and evidence of compliance with the provisions of the Construction Lien Act (Ontario) and Lender receives an endorsement to the Title Insurance Policy insuring the continued priority of the lien of the Mortgage and evidence of payment of any premium payable for such endorsement. If required by Lender, the release of any such portion of the Restoration Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.

(v)Lender shall not be obligated to make disbursements of the Net Proceeds more frequently than once every calendar month.

(vi)If at any time the Net Proceeds or the undisbursed balance thereof shall not, in the reasonable opinion of Lender in consultation with the Restoration Consultant, be sufficient to pay in full the balance of the costs which are estimated by the Restoration Consultant to be incurred in connection with the completion of the Restoration, Borrower shall deposit the deficiency (the “Net Proceeds Deficiency”) with Lender before any

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further disbursement of the Net Proceeds shall be made. The Net Proceeds Deficiency deposited with Lender shall be held by Lender and shall be disbursed for costs actually incurred in connection with the Restoration on the same conditions applicable to the disbursement of the Net Proceeds, and until so disbursed pursuant to this Section 8.4(b) shall constitute additional security for the Debt and other obligations under the Loan Documents.

(vii)The excess, if any, of the Net Proceeds and the remaining balance, if any, of the Net Proceeds Deficiency deposited with Lender after the Restoration Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 8.4(b), and the receipt by Lender of evidence satisfactory to Lender that all costs incurred in connection with the Restoration have been paid in full, shall be remitted by Lender to Borrower, provided no Event of Default shall have occurred and shall be continuing under the Note, this Agreement or any of the other Loan Documents.

(c)All Net Proceeds not required (i) to be made available for the Restoration or (ii) to be returned to Borrower as excess Net Proceeds pursuant to Section 8.4(b)(vii) may (x) be retained and applied by Lender toward the payment of the Debt whether or not then due and payable in such order, priority and proportions as Lender in its sole discretion shall deem proper, or, (y) at the sole discretion of Lender, the same may be paid, either in whole or in part, to Borrower for such purposes and upon such conditions as Lender shall designate.

(d)In the event of foreclosure of the Mortgage, or other transfer of title to the Property in extinguishment in whole or in part of the Debt, all right, title and interest of Borrower in and to the Policies then in force concerning the Property and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure, Lender or other transferee in the event of such other transfer of title.

(e)Notwithstanding the foregoing, so long as no American Express Lease Default has occurred, the Net Proceeds shall be used for restoration of the Property in accordance with the provisions of the American Express Lease.

ARTICLE 9
REPLACEMENTS; RESERVE FUNDS

Section 9.1.Replacements

On an ongoing basis throughout the term of the Loan, Borrower shall make capital repairs, replacements and improvements necessary to keep the Property in good order and repair and in a good marketable condition or prevent deterioration of the Property. So long as no American Express Lease Default shall have occurred, the compliance by American Express with its obligations for maintenance of the Property as set forth in the American Express Lease shall be deemed compliance by Borrower with the provisions of this Section 9.1.

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Section 9.2.Tax and Insurance Reserve Funds

If required by Lender following a default by American Express under the American Express Lease Borrower shall establish an Eligible Account with Lender or Lender’s agent sufficient to discharge Borrower’s obligations for the payment of Taxes and Insurance Premiums pursuant to Section 5.4 and Section 8.1 hereof (the “Tax and Insurance Reserve Account”) Borrower shall deposit into the Tax and Insurance Reserve Account on each Scheduled Payment Date (a) one-twelfth of the Taxes that Lender estimates will be payable during the next ensuing twelve (12) months or such higher amount necessary to accumulate with Lender sufficient funds to pay all such Taxes at least thirty (30) days prior to the earlier of (i) the date that the same will become delinquent and (ii) the date that additional charges or interest will accrue due to the non-payment thereof, and (b) except to the extent Lender has waived the insurance escrow because the insurance required hereunder is maintained under a blanket insurance Policy acceptable to Lender in accordance with Section 8.1(c), one-twelfth of the Insurance Premiums that Lender estimates will be payable during the next ensuing twelve (12) months for the renewal of the coverage afforded by the Policies upon the expiration thereof or such higher amount necessary to accumulate with Lender sufficient funds to pay all such Insurance Premiums at least thirty (30) days prior to the expiration of the Policies (said amounts in (a) and (b) above hereinafter called the “Tax and insurance Reserve Funds”). Lender will apply the Tax and Insurance Reserve Funds to payments of Taxes and Insurance Premiums required to be made by Borrower pursuant to Section 5.4 and Section 8.1 hereof. In making any disbursement from the Tax and Insurance Reserve Account, Lender may do so according to any bill, statement or estimate procured from the appropriate public office or tax lien service (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums), without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof. If the amount of the Tax and Insurance Reserve Funds shall exceed the amounts due for Taxes and Insurance Premiums pursuant to Section 5.4 and Section 8.1 hereof, Lender shall, in its sole discretion, return any excess to Borrower or credit such excess against future payments to be made to the Tax and Insurance Reserve Account. In allocating any such excess, Lender may deal with the person shown on Lender’s records as being the owner of the Property. Any amount remaining in the Tax and Insurance Reserve Account after the Debt has been paid in full shall be returned to Borrower or the person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto. If at any time Lender reasonably determines that the Tax and Insurance Reserve Funds are not or will not be sufficient to pay Taxes and Insurance Premiums by the dates set forth in (a) and (b) above, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.

Section 9.3.Reserve Funds Generally

(a)No earnings or interest on the Reserve Accounts shall be payable to Borrower. Neither Lender nor any loan servicer that at any time holds or maintains the Reserve Accounts shall have any obligation to keep or maintain such Reserve Accounts or any funds deposited therein in interest-bearing accounts. If Lender or any such loan servicer elects in its sole and absolute discretion to keep or maintain any Reserve Accounts or any funds deposited therein in an interest-bearing account (i) the account shall be an Eligible Account, (ii) such funds shall not be invested except in Permitted Investments, and (iii) all interest earned or accrued thereon shall be for the account of and be retained by Lender or such loan servicer.

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(b)Borrower grants to Lender a first-priority perfected security interest in, and assigns and pledges to Lender, each of the Reserve Accounts and any and all funds hereafter deposited therein as additional security for payment of the Debt. Until expended or applied in accordance herewith, the Reserve Accounts and the Reserve Funds shall constitute additional security for the Debt. The provisions of this Section 9.9 are intended to give Lender or any subsequent holder of the Loan “control” of the Reserve Accounts within the meaning of the UCC.

(c)The Reserve Accounts and any and all Reserve Funds deposited therein shall be subject to the exclusive dominion and control of Lender, which shall hold the Reserve Accounts and any or all Reserve Funds now or hereafter deposited therein subject to the terms and conditions of this Agreement. Borrower shall have no right of withdrawal from the Reserve Accounts or any other right or power with respect to the Reserve Accounts or any or all of the Reserve Funds hereinafter deposited therein, except as expressly provided in this Agreement.

(d)Lender shall furnish or cause to be furnished to Borrower, without charge, an annual accounting of each Reserve Account in the normal format of Lender or its loan servicer, showing credits and debits to such Reserve Account and the purpose for which each debit to such Reserve Account was made.

(e)As long as no Event of Default has occurred, Lender shall make disbursements from the Reserve Accounts in accordance with this Agreement. All such disbursements shall be deemed to have been expressly pre-authorized by Borrower, and shall not be deemed to constitute the exercise by Lender of any remedies against Borrower unless an Event of Default has occurred and is continuing and Lender has expressly stated in writing its intent to proceed to exercise its remedies as a secured party, pledgee or lienholder with respect to the Reserve Accounts.

(f)The Reserve Funds shall not constitute escrow or trust funds and may be commingled with other monies held by Lender. Notwithstanding anything else herein to the contrary, Lender may commingle in one or more Eligible Accounts any and all funds controlled by Lender, including, without limitation, funds pledged in favor of Lender by other borrowers, whether for the same purposes as the Reserve Accounts or otherwise. Without limiting any other provisions of this Agreement or any other Loan Document, the Reserve Accounts may be established and held in such name or names as Lender or its loan servicer, as agent for Lender, shall deem appropriate, including, without limitation, in the name of Lender or such loan servicer as agent for Lender. In the case of any Reserve Account which is held in a commingled account, Lender or its loan servicer, as applicable, shall maintain records sufficient to enable it to determine at all times which portion of such account is related to the Loan. The Reserve Accounts are solely for the protection of Lender and Lender shall have no responsibility beyond the allowance of due credit for the sums actually received by Lender or beyond the reimbursement or payment of the costs and expenses for which such accounts were established in accordance with their terms. Upon assignment of the Loan by Lender, any Reserve Funds shall be turned over to the assignee and any responsibility of Lender as assignor shall terminate. The requirements of this Agreement concerning Reserve Accounts in no way supersede, limit or waive any other rights or obligations of the parties under any of the Loan Documents or under applicable law.

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(g)Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in the Reserve Accounts or the Reserve Funds deposited therein or permit any Lien to attach thereto, except for the security interest granted in this Section 9.9, or any levy to be made thereon, or any UCC and/or PPSA Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.

(h)Borrower will maintain the security interest created by this Section 9.9 as a first priority perfected security interest and will defend the right, title and interest of Lender in and to the Reserve Accounts and the Reserve Funds against the claims and demands of all Persons whomsoever. At any time and from time to time, upon the written request of Lender, and at the sole expense of Borrower, Borrower will promptly and duly execute and deliver such further instruments and documents and will take such further actions as Lender reasonably may request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted.

ARTICLE 10
CASH MANAGEMENT

Section 10.1.Cash Management Account

(a)Borrower acknowledges and confirms that Borrower has established, and Borrower covenants that it shall maintain an Eligible Account into which Borrower shall, and shall cause Manager to, deposit or cause to be deposited all Rents and other revenue from the Property during the Cash Management Period or upon the occurrence of an Event of Default prior to the commencement of the Cash Management Period pursuant to the terms of Section 10.2 hereof (such account, the sub-accounts thereof, all funds at any time on deposit therein and any proceeds, replacements or substitutions of such account or funds therein, are referred to herein as the “Cash Management Account”).

(b)The Cash Management Account shall be in the name of Borrower for the benefit of Lender, provided that Borrower shall be the owner of all funds on deposit in such accounts for federal and applicable state, provincial and local tax purposes (except to the extent Lender retains any interest earned on the Cash Management Account for its own account following the occurrence and during the continuance of an Event of Default). Sums on deposit in the Cash Management Account shall not be invested except in such Permitted Investments as determined and directed by Lender and all income earned thereon shall be the income of Borrower and be applied to and become part of the Cash Management Account, to be disbursed in accordance with this Article 10. Lender shall have no liability for any loss resulting from the investment of funds in Permitted Investments in accordance with the terms and conditions of this Agreement.

(c)The Cash Management Account shall be subject to the exclusive dominion and control of Lender during the Cash Management Period or the continuance of an Event of Default and, except as otherwise expressly provided herein, neither Borrower, Manager nor any other party claiming on behalf of, or through, Borrower or Manager, shall have any right of withdrawal therefrom or any other right or power with respect thereto.

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(d)Borrower agrees to pay the customary fees and expenses incurred in connection with maintaining the Cash Management Account.

(e)Lender shall be responsible for the performance only of such duties with respect to the Cash Management Account as are specifically set forth herein, and no duty shall be implied from any provision hereof. Lender shall not be under any obligation or duty to perform any act which would involve it in expense or liability or to institute or defend any suit in respect hereof, or to advance any of its own monies. Borrower shall indemnify and hold Lender and its directors, employees, officers and agents harmless from and against any loss, cost or damage (including, without limitation, reasonable attorneys’ fees and disbursements) incurred by such parties in connection with the Cash Management Account other than such as result from the gross negligence or willful misconduct of Lender or intentional nonperformance by Lender of its obligations under this Agreement.

Section 10.2.Deposits and Withdrawals

(a)Borrower represents, warrants and covenants that:

(i)Concurrently with the execution of this Agreement Borrower has executed and delivered to Lender an instruction letter in the form of Exhibit B attached hereto addressed to American Express (the “Tenant Direction Letter”). Upon the occurrence of an Event of Default or upon commencement of the Cash Management Period, Lender or Lender’s agent, shall have the right to deliver the Tenant Direction Letter to American Express and all payments of Rent and other items payable under the American Express Lease shall thereafter be sent directly to the Cash Management Account;

(ii)On the occurrence of an Event of Default or the commencement of the Cash Management Period Borrower shall, and shall cause Manager to, instruct all Persons that maintain open accounts with Borrower or Manager with respect to the Property or with whom Borrower or Manager does business on an “accounts receivable” basis with respect to the Property to deliver all payments due under such accounts to the Cash Management Account. Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner;

(iii)All Rents or other income from the Property received after the commencement of the Cash Management Period or the occurrence of an Event of Default shall (A) be deemed additional security for payment of the Debt and shall be held in trust for the benefit, and as the property, of Lender, (B) not be commingled with any other funds or property of Borrower or Manager, and (C) if received by Borrower or Manager notwithstanding the delivery of the Tenant Direction Letter, be deposited in the Cash Management Account within one (1) Business Day of receipt;

(iv)Without the prior written consent of Lender, so long as any portion of the Debt remains outstanding, during the Cash Management Period or the continuance of an Event of Default neither Borrower nor Manager shall terminate, amend, revoke or modify the Tenant Direction Letter in any manner whatsoever or direct or cause American

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Express to pay any amount in any manner other than as provided in the Tenant Direction Letter; and

(v)So long as any portion of the Debt remains outstanding, during the Cash Management Period or during the continuance of an Event of Default neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Cash Management Account into which revenues from the ownership and operation of the Property are deposited.

(b)Intentionally Omitted.

(c)If an Event of Default shall have occurred and be continuing or during a Cash Management Period, on each Scheduled Payment Date (and if such day is not a Business Day, then the immediately preceding day which is a Business Day) commencing the month immediately following the month during which the Cash Management Period commences, Borrower hereby irrevocably authorizes Lender to withdraw or allocate to the sub-accounts of the Cash Management Account, as the case may be, amounts received in the Cash Management Account, in each case to the extent that sufficient funds remain therefor:

(i)following a default by American Express under the American Express Lease, funds sufficient to pay the monthly deposits to the Tax and Insurance Reserve Account shall be allocated to the Tax and Insurance Reserve Account to be held and disbursed in accordance with Section 9.2;

(ii)funds sufficient to pay the Monthly Payment Amount shall be withdrawn and paid to Lender;

(iii)funds sufficient to pay any interest accruing at the Default Rate, late payment charges, if any, and any other sums due and payable to Lender under any of the Loan Documents, shall be withdrawn and paid to Lender and applied against such items;

(iv)funds sufficient to pay Operating Expenses (to the extent actually incurred) for the following month shall be allocated to the Operating Expense Reserve Account to be held and disbursed to pay Operating Expenses;

(v)funds in an amount equal to the balance (if any) remaining on deposit in the Cash Management Account after the foregoing withdrawals and allocations shall be withdrawn and paid to Lender to be applied to the principal amount of the Loan until the principal amount of the Loan is paid in full.

(d)Notwithstanding anything to the contrary herein, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited in the Cash Management Account and that Borrower is liable for any deficiency in available funds, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Lender’s servicer. If the amount on deposit in the Cash Management Account is insufficient to make all of the withdrawals and allocations described in Section 10.2(c)(i) through (v) above, Borrower shall deposit such deficiency into the Cash Management Account within five (5) days (provided that such five day period shall not constitute a grace period for any

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default or Event of Default under this Agreement or any other Loan Document based on a failure to satisfy any monetary obligation provided in any Loan Document).

(e)If an Event of Default shall have occurred and be continuing, Borrower hereby irrevocably authorizes Lender to make any and all withdrawals from the Cash Management Account and transfers between any Reserve Account as Lender shall determine in Lender’s sole and absolute discretion and Lender may use all funds contained in any such accounts for any purpose, including but not limited to repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. Lender’s right to withdraw and apply funds as stated herein shall be in addition to all other rights and remedies provided to Lender under this Agreement, the Note, the Mortgage and the other Loan Documents.

Section 10.3.Security Interest

(a)To secure the full and punctual payment of the Debt and performance of all obligations of Borrower now or hereafter existing under this Agreement and the other Loan Documents, Borrower hereby grants to Lender a first-priority perfected security interest in each of the Accounts and the Account Collateral. Furthermore, Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any of the foregoing or permit any Lien to attach thereto or any levy to be made thereon or any UCC and/or PPSA Financing Statements to be filed with respect thereto. Borrower will maintain the security interest created by this Section 10.3(a) as a first priority perfected security interest and will defend the right, title and interest of Lender in and to each of the Accounts and the Account Collateral against the claims and demands of all Persons whomsoever.

(b)Borrower authorizes Lender to file any financing statement or statements required by Lender to establish or maintain the validity, perfection and priority of the security interest granted herein in connection with the Cash Management Account. Borrower agrees that at any time and from time to time, at the expense of Borrower, Borrower will promptly and duly execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable, or that Lender may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereby (including, without limitation, any security interest in and to any Permitted Investments) or to enable Lender to exercise and enforce its rights and remedies hereunder.

(c)Upon the occurrence of an Event of Default, Lender may exercise any or all of its rights and remedies as a secured party, pledgee and lienholder with respect to the Accounts and the Account Collateral.  Without limitation of the foregoing, upon any Event of Default, Lender may use the Accounts and the Account Collateral for any of the following purposes: (A) repayment of the Debt, including, but not limited to, principal prepayments and the prepayment premium applicable to such full or partial prepayment (as applicable); (B) reimbursement of Lender for all losses, fees, costs and expenses (including, without limitation, reasonable legal fees) suffered or incurred by Lender as a result of such Event of Default; (C) payment of any amount expended in exercising any or all rights and remedies available to Lender at law or in equity or under this Agreement or under any of the other Loan Documents; (D) payment of any item as required or permitted under this Agreement; or (E) any other purpose permitted by applicable law; provided, however, that any such application of funds shall not cure or be

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deemed to cure any Event of Default. Without limiting any other provisions hereof, each of the remedial actions described in the immediately preceding sentence shall be deemed to be a commercially reasonable exercise of Lender’s rights and remedies as a secured party with respect to the Accounts and the Account Collateral and shall not in any event be deemed to constitute a setoff or a foreclosure of a statutory banker’s lien. Nothing in this Agreement shall obligate Lender to apply all or any portion of the Accounts and the Account Collateral to effect a cure of any Event of Default, or to pay the Debt, or in any specific order of priority. The exercise of any or all of Lender’s rights and remedies under this Agreement or under any of the other Loan Documents shall not in any way prejudice or affect Lender’s right to initiate and complete a foreclosure under the Mortgage.

ARTICLE 11

EVENTS OF DEFAULT; REMEDIES

Section 11.1.  Event of Default

The occurrence of any one or more of the following events shall constitute an “Event of Default”:

(a)if any portion of the Debt is not paid on or prior to the tenth day following the date the same is due or if the entire Debt is not paid on or before the Maturity Date;

(b)except as otherwise expressly provided in the Loan Documents, if any of the Taxes or Other Charges are not paid when the same are due and payable, unless there is sufficient money in the Tax and Insurance Reserve Account for payment of amounts then due and payable and Lender’s access to such money has not been constrained or restricted in any manner;

(c)should American Express cease to be a self-insurer or if the rating of American express issued by the Rating Agencies falls below the Trigger Rating, if (i) the Policies are not kept in full force and effect, or (ii) the certificate of insurance is not delivered to Lender in accordance with Section 8.1;

(d)if Borrower breaches any covenant with respect to itself contained in Article 6 or any covenant contained in Article 7 hereof;

(e)if any representation or warranty of, or with respect to, Borrower or Borrower Principal, or any member, general partner, principal or beneficial owner of any of the foregoing, made herein, in any other Loan Document, or in any certificate, report, financial statement or other instrument or document furnished to Lender at the time of the closing of the Loan or during the term of the Loan shall have been false or misleading in any material respect when made;

(f)if (i) Borrower, or any managing member or general partner of Borrower, Borrower Principal, or American Express shall commence any case, proceeding or other action (A) under any Creditors Rights Laws, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or Borrower, any managing member or general partner of

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Borrower, Borrower Principal, or American Express shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii) there shall be commenced against Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of any order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (iv) Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) Borrower, any managing member or general partner of Borrower, Borrower Principal, or American Express shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due;

(g)if Borrower shall be in default beyond applicable notice and grace periods under any other mortgage, deed of trust, deed to secure debt or other security agreement covering any part of the Property, whether it be superior or junior in lien to the Mortgage;

(h)if the Property becomes subject to any mechanic’s, materialman’s or other Lien other than a Lien for any Taxes or Other Charges not then due and payable and the Lien shall remain undischarged of record (by payment, bonding or otherwise) for a period of thirty (30) days;

(i)if any federal income tax lien is filed against Borrower, any member or general partner of Borrower, Borrower Principal, or the Property and same is not discharged of record (or bonded or insured to Lender’s satisfaction) within thirty (30) days after same is filed;

(j)if an uninsured judgment is filed against the Borrower in excess of $20,000 which is not vacated or discharged (or bonded or insured to Lender’s satisfaction) within 30 days;

(k)if any default occurs under any guaranty or indemnity executed in connection herewith and such default continues after the expiration of applicable grace periods, if any;

(l)if Borrower shall permit any event within its control to occur that would cause any REA to terminate without notice or action by any party thereto or would entitle any party to terminate any REA and the term thereof by giving notice to Borrower; or any REA shall be surrendered, terminated or canceled for any reason or under any circumstance whatsoever except as provided for in such REA; or any term of any REA shall be modified or supplemented unless permitted by the American Express Lease; or Borrower shall fail, within ten (10) Business Days after demand by Lender, to exercise its option to renew or extend the term of any REA or shall fail or neglect to pursue diligently all actions necessary to exercise such renewal rights pursuant to such REA except as provided for in such REA; or

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(m)if an American Express Lease Default shall occur under the American Express Lease; or

(n)if Borrower shall continue to be in default under any other term, covenant or condition of this Agreement or any of the Loan Documents for more than ten (10) days after notice from Lender in the case of any default which can be cured by the payment of a sum of money or for thirty (30) days after notice from Lender in the case of any other default, provided that if such default cannot reasonably be cured within such thirty (30) day period and Borrower shall have commenced to cure such default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for so long as it shall require Borrower in the exercise of due diligence to cure such default, it being agreed that no such extension shall be for a period in excess of one hundred twenty (120) days.

Section 11.2.  Remedies

(a)Upon the occurrence of an Event of Default (other than an Event of Default described in Section 11.1(f) above) and at any time thereafter Lender may, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in the Property, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents against Borrower and the Property, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in Section 11.1(f) above, the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.

(b)Upon the occurrence of an Event of Default, all or any one or more of the rights, powers, privileges and other remedies available to Lender against Borrower under this Agreement or any of the other Loan Documents executed and delivered by, or applicable to, Borrower or at law or in equity may be exercised by Lender at any time and from time to time, whether or not all or any of the Debt shall be declared due and payable, and whether or not Lender shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Loan Documents with respect to the Property. Any such actions taken by Lender shall be cumulative and concurrent and may be pursued independently, singularly, successively, together or otherwise, at such time and in such order as Lender may determine in its sole discretion, to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of Lender permitted by law, equity or contract or as set forth herein or in the other Loan Documents.

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ART1CLE 12

ENVIRONMENTAL PROVISIONS

Section 12.1.  Environmental Representations and Warranties

Borrower represents and warrants, except as disclosed in an Environmental Report of the Property and information that Borrower knows that: (a) there are no Hazardous Materials or underground storage tanks in, on, or under the Property, except those that are both (i) in compliance with Environmental Laws and with permits issued pursuant thereto (if such permits are required), if any, and (ii) either (A) in the case of Hazardous Materials, in amounts not in excess of that necessary to operate the Property for the purposes set forth herein or (B) fully disclosed to and approved by Lender in writing pursuant to an Environmental Report; (b) there are no past, present or threatened Releases of Hazardous Materials in violation of any Environmental Law or which would require remediation by a Governmental Authority in, on, under or from the Property except as described in the Environmental Report; (c) there is no threat of any Release of Hazardous Materials migrating to the Property except as described in the Environmental Report; (d) there is no past or present non-compliance with Environmental Laws, or with permits issued pursuant thereto, in connection with the Property except as described in the Environmental Report; (e) Borrower does not know of, and has not received, any written or oral notice or other communication from any Person relating to Hazardous Materials in, on, under or from the Property; (f) the Property is free of Mold; and (g) Borrower has truthfully and fully provided to Lender, in writing, any and all information relating to environmental conditions in, on, under or from the Property known to Borrower or contained in Borrower’s files and records, including but not limited to any reports relating to Hazardous Materials in, on, under or migrating to or from the Property and/or to the environmental condition of or the presence of Mold at the Property.

Section 12.2.  Environmental Covenants

Borrower covenants and agrees that so long as Borrower owns, manages and is in possession of the operation of the Property: (a) all uses and operations on or of the Property, whether by Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto; (b) there shall be no Releases of Hazardous Materials in, on, under or from the Property; (c) there shall be no Hazardous Materials in, on, or under the Property, except those that are both (i) in compliance with all Environmental Laws and with permits issued pursuant thereto, if and to the extent required, and (ii) (A) in amounts not in excess of that necessary to operate the Property for the purposes set forth herein or (B) fully disclosed to and approved by Lender in writing or (C) with respect to Mold, not in a condition, location, or of a type which may pose a risk to human health or safety or the environment or which may result in damage to or would adversely affect or impair the value or marketability of the Property; (d) Borrower shall keep the Property free and clear of all Environmental Liens; (e) Borrower shall, at its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to Section 12.4 below, including but not limited to providing all relevant information and making knowledgeable persons available for interviews; (f) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender, upon Lender’s reasonable belief that the Property is not in full compliance with all Environmental Laws, and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (g) Borrower shall keep the Property free of Mold; and (h) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender to (i) reasonably effectuate remediation of any Hazardous Materials in, on, under or from the Property; and (ii) comply with

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any Environmental Law; (i) Borrower shall not allow any tenant or other user of the Property to violate any Environmental Law; and (j) Borrower shall immediately notify Lender in writing after it has become aware of (A) any presence or Release or threatened Release of Hazardous Materials in, on, under, from or migrating towards the Property; (B) any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien against the Property; (D) any required or proposed remediation of environmental conditions relating to the Property; and (E) any written or oral notice or other communication of which Borrower becomes aware from any source whatsoever (including but not limited to a Governmental Authority) relating in any way to Hazardous Materials. Any failure of Borrower to perform its obligations pursuant to this Section 12.2 shall constitute bad faith waste with respect to the Property.

Section 12.3.  Lender’s Rights

Lender and any other Person designated by Lender, including but not limited to any representative of a Governmental Authority, and any environmental consultant, and any receiver appointed by any court of competent jurisdiction, shall have the right, but not the obligation, to enter upon the Property at all reasonable times to assess any and all aspects of the environmental condition of the Property and its use, including but not limited to conducting any environmental assessment or audit (the scope of which shall be determined in Lender’s sole discretion) and taking samples of soil, groundwater or other water, air, or building materials, and conducting other invasive testing. Borrower shall cooperate with and provide access to Lender and any such person or entity designated by Lender.

Section 12.4.  Operations and Maintenance Programs

If recommended by the Environmental Report or any other environmental assessment or audit of the Property, Borrower shall establish and comply with an operations and maintenance program with respect to the Property, in form and substance reasonably acceptable to Lender, prepared by an environmental consultant reasonably acceptable to Lender, which program shall address any asbestos-containing material or lead based paint that may now or in the future be detected at or on the Property. Without limiting the generality of the preceding sentence, Lender may require (a) periodic notices or reports to Lender in form, substance and at such intervals as Lender may specify, (b) an amendment to such operations and maintenance program to address changing circumstances, laws or other matters, (c) at Borrower’s sole expense, supplemental examination of the Property by consultants specified by Lender, (d) access to the Property by Lender, its agents or servicer, to review and assess the environmental condition of the Property and Borrower’s compliance with any operations and maintenance program, and (e) variation of the operations and maintenance program in response to the reports provided by any such consultants.

Section 12.5.  Environmental Definitions

“Environmental Law” means any present and future federal, state, provincial, municipal, regional and local laws, statutes, ordinances, rules, regulations, standards, policies, codes, guidelines and other government directives or requirements, as well as common law, including but not limited to the Environmental Protection Act (Ontario) and the Water Resources

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Act (Ontario), that apply to Borrower or the Property and relate to Hazardous Materials or protection of human health or the environment. “Environmental Liens” means all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of Borrower or any other Person. “Environmental Report” means the written reports resulting from the environmental site assessments of the Property delivered to Lender in connection with the Loan. “Hazardous Materials” shall mean petroleum and petroleum products and compounds containing them, including gasoline, diesel fuel and oil; explosives, flammable materials; radioactive materials; polychlorinated biphenyls and compounds containing them; lead and lead-based paint; asbestos or asbestos-containing materials in any form that is or could become friable; underground or above-ground storage tanks, whether empty or containing any substance; any substance the presence of which on the Property is prohibited by any federal, state or local authority; any substance that requires special handling; and any other material or substance now or in the future defined as a “hazardous substance,” “hazardous material”, “hazardous waste”, “toxic substance”, “toxic pollutant”, “contaminant”, or “pollutant” within the meaning of any Environmental Law. “Mold” shall mean any mold, fungi, bacterial or microbial matter present at or in the Property, including, without limitation, building materials which is in a condition, location or a type which may pose a risk to human health or safety or the environment, may result in damage to or would adversely affect or impair the value or marketability of the Property. “Release” of any Hazardous Materials includes but is not limited to any release, deposit, discharge, emission, leaking, spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Materials.

ARTICLE 13

SECONDARY MARKET

Section 13.1.  Transfer of Loan

Lender may, at any time, sell, transfer or assign the Loan Documents, or grant participations therein (“Participations”) or syndicate the Loan (“Syndication”) or issue mortgage pass-through certificates or other securities evidencing a beneficial interest in a rated or unrated public offering or private placement (“Securities”) (a Syndication or the issuance of Participations and/or Securities, a “Securitization”).

Section 13.2.  Delegation of Servicing

At the option of Lender, the Loan may be serviced by a servicer/trustee selected by Lender and Lender may delegate all or any portion of its responsibilities under this Agreement and the other Loan Documents to such servicer/trustee pursuant to a servicing agreement between Lender and such servicer/trustee.

Section 13.3.  Dissemination of Information

Lender may forward to each purchaser, transferee, assignee, or servicer of, and each participant, or investor in, the Loan, or any Participations and/or Securities or any of their respective successors (collectively, the “Investor”) or any Rating Agency rating the Loan, or any Participations and/or Securities, each prospective Investor, and any organization maintaining

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databases on the underwriting and performance of commercial mortgage loans, all documents and information which Lender now has or may hereafter acquire relating to the Debt and to Borrower, any managing member or general partner thereof, Borrower Principal, and the Property, including financial statements, whether furnished by Borrower or otherwise, as Lender determines necessary or desirable. Borrower irrevocably waives any and all rights it may have under applicable Legal Requirements to prohibit such disclosure, including but not limited to any right of privacy.

Section 13.4.  Cooperation

Borrower and Borrower Principal agree to cooperate with Lender in connection with any sale or transfer of the Loan or any Participation and/or Securities created pursuant to this Article 13, including, without limitation, (a) the delivery of an estoppel certificate required in accordance with Section 5.13 and such other documents as may be reasonably requested by Lender, (b) the execution of such amendments to the Loan Documents as may be requested by the holder of the Note or the Rating Agencies or otherwise to effect the Securitization including, without limitation, bifurcation of the Loan into two or more components and/or separate notes; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, except in connection with a bifurcation of the Loan which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average coupon of the original Note, or (ii) in the reasonable judgment of Borrower, modify or amend any other material economic term of the Loan, or (iii) in the reasonable judgment of Borrower, materially increase Borrower’s obligations and liabilities under the Loan Documents, and (c) make changes to the organizational documents of Borrower and its principals and/or use its best efforts to cause changes to the legal opinions delivered by Borrower in connection with the Loan, provided, that such changes shall not result in a material adverse economic effect to Borrower. Borrower shall also furnish and Borrower and Borrower Principal consent to Lender furnishing to such Investors or such prospective Investors or such Rating Agency any and all information concerning the Property, the American Express Lease, the financial condition of Borrower or Borrower Principal as may be requested by Lender, any Investor, any prospective Investor or any Rating Agency in connection with any sale or transfer of the Loan or any Participations or Securities. Neither Borrower nor Borrower Principal shall be responsible for any costs incurred by Lender in connection with a Securitization.

ARTICLE 14

INDEMNIFICATIONS

Section 14.1.  General Indemnification

Borrower shall indemnify, defend and hold harmless the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising out of or in any way relating to any one or more of the following: (a) any accident, injury to or death of persons or loss of or damage to property occurring in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (b) any use, nonuse or condition in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent

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property or adjacent parking areas, streets or ways; (c) performance of any labor or services or the furnishing of any materials or other property in respect of the Property or any part thereof; (d) any failure of the Property to be in compliance with any applicable Legal Requirements; (e) any and all claims and demands whatsoever which may be asserted against Lender by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants, or agreements contained in any Lease; (f) the holding or investing of the Reserve Accounts, or (g) the payment of any commission, charge or brokerage fee to anyone which may be payable in connection with the funding of the Loan (collectively, the “Indemnified Liabilities”); provided, however, that Borrower shall not have any obligation to Lender hereunder to the extent that such Indemnified Liabilities arise from the gross negligence, illegal acts, fraud or willful misconduct of Lender.  To the extent that the undertaking to indemnify, defend and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, Borrower shall pay the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all indemnified Liabilities incurred by Lender.

Section 14.2.Mortgage and Intangible Tax Indemnification

Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising out of or in any way relating to any tax on the making and/or recording of the Mortgage, the Note or any of the other Loan Documents, but excluding any income, franchise or other similar taxes.

Section 14.3.ERISA Indemnification

To the extent applicable, Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses (including, without limitation, reasonable attorneys’ fees and costs incurred in the investigation, defense, and settlement of Losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Lender’s sole discretion) that Lender may incur, directly or indirectly, as a result of a default under Section 4.9 or Section 5.19 of this Agreement.

Section 14.4. Survival

The obligations and liabilities of Borrower and Borrower Principal under this Article 14 shall fully survive indefinitely notwithstanding any termination, satisfaction, assignment, entry of a judgment of foreclosure, exercise of any power of sale, or delivery of a deed in lieu of foreclosure of the Mortgage.

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ARTICLE 15

EXCULPATION

Section 15.1. Exculpation

(a)Except as otherwise provided herein or in the other Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to perform and observe the obligations contained herein or in the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or Borrower Principal, except that Lender may bring a foreclosure action, action for specific performance or other appropriate action or proceeding to enable Lender to enforce and realize upon this Agreement, the Note, the Mortgage and the other Loan Documents, and the interest in the Property, the Rents (following an Event of Default) and any other collateral given to Lender created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower or Borrower Principal, as applicable, only to the extent of Borrower’s or Borrower Principal’s interest in the Property, in the Rents and in any other collateral given to Lender. Lender, by accepting this Agreement, the Note, the Mortgage and the other Loan Documents, agrees that it shall not, except as otherwise provided in this Section 15.1, sue for, seek or demand any deficiency judgment against Borrower or Borrower Principal in any such action or proceeding, under or by reason of or under or in connection with this Agreement, the Note, the Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note, the Mortgage or the other Loan Documents; (ii) impair the right of Lender to name Borrower or Borrower Principal as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Mortgage; (iii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Section 12.6 and Article 14 of this Agreement), environmental indemnity, guaranty, master lease or similar instrument made in connection with this Agreement, the Note, the Mortgage and the other Loan Documents; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of the assignment of leases provisions contained in the Mortgage; or (vi) impair the right of Lender to obtain a deficiency judgment or other judgment on the Note against Borrower or Borrower Principal if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided however, Lender shall only enforce such judgment to the extent of the Insurance Proceeds and/or Awards.

(b)Notwithstanding the provisions of this Section 15.1 to the contrary, Borrower and Borrower Principal shall be personally liable to Lender on a joint and several basis for Losses due to:

(i)fraud or intentional misrepresentation by Borrower, Borrower Principal or any other Affiliate of Borrower or Borrower Principal in connection with the execution and the delivery of this Agreement, the Note, the Mortgage, any of the other Loan Documents, or any certificate, report, financial statement or other instrument or document furnished to Lender at the time of the closing of the Loan or during the term of the Loan;

(ii)Borrower’s misapplication or misappropriation of Rents received by Borrower after the occurrence of an Event of Default;

(iii)Borrower’s misapplication or misappropriation of tenant security deposits or Rents collected in advance;

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(iv)the misapplication or the misappropriation of Insurance Proceeds or Awards;

(v)Borrower’s failure to pay Taxes, Other Charges (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms hereof and there exists no impediment to Lender’s utilization thereof), charges for labor or materials or other charges that can create liens on the Property beyond any applicable notice and cure periods specified herein;

(vi)Borrower’s failure to return or to reimburse Lender for all Personal Property taken from the Property by or on behalf of Borrower and not replaced with Personal Property of the same utility and of the same or greater value;

(vii)any act of actual waste or arson by Borrower, any principal, Affiliate, member or general partner thereof or by Borrower Principal, any principal, Affiliate, member or general partner thereof;

(viii)Borrower’s failure following any Event of Default to deliver to Lender upon demand all Rents and books and records relating to the Property; or

(ix)following an Event of Default, the withholding from Rents by American Express of non-resident withholding taxes required under Part XIII of the Income Tax Act (Canada), as same may be amended, supplemented, superseded or replaced or as required by any rules or regulations promulgated by Canadian governmental authorities having jurisdiction.

(c)Notwithstanding the foregoing, the agreement of Lender not to pursue recourse liability as set forth in subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower and Borrower Principal on a joint and several basis in the event (i) of a breach by Borrower or Borrower Principal of any of the covenants set forth in Article 6 hereof, to the extent that such breach is (A) material and (B) is not cured within fifteen (15) days of the earlier to occur of notice from Lender or Borrower’s knowledge of such breach, (ii) of a breach of any of the covenants set forth in Article 7 hereof, (iii) the Property or any part thereof shall become an asset in a voluntary bankruptcy or insolvency proceeding of Borrower, (iv) Borrower, Borrower Principal or any Affiliate, officer, director, or representative which controls, directly or indirectly, Borrower or Borrower Principal files, or joins in the filing of, an involuntary petition against Borrower under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (v) Borrower tiles an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; or (vi) any Affiliate, officer, director, or representative which controls Borrower consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of the Property.

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(d)Nothing herein shall be deemed to be a waiver of any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provision of the U.S. Bankruptcy Code, to the extent applicable, to file a claim for the full amount of the indebtedness secured by the Mortgage or to require that all collateral shall continue to secure all of the indebtedness owing to Lender in accordance with this Agreement, the Note, the Mortgage or the other Loan Documents.

ARTICLE 16

NOTICES

Section 16.1.Notices

All notices, consents, approvals and requests required or permitted hereunder or under any other Loan Document shall be given in writing and shall be effective for all purposes if hand delivered or sent by (a) certified or registered United States mail, postage prepaid, return receipt requested, (b) expedited prepaid overnight delivery service, either commercial or United States Postal Service, with proof of attempted delivery, or by (c) telecopier (with answer back acknowledged provided an additional notice is given pursuant to subsection (b) above), addressed as follows (or at such other address and Person as shall be designated from time to time by any party hereto, as the case may be, in a written notice to the other parties hereto in the manner provided for in this Section):

If to Lender:	Bank of America, N.A.
	Capital Markets Servicing Group
	900 West Trade Street, Suite 650
	NC1-026-06-01
	Charlotte, North Carolina 28255
	Attn: Servicing Manager
	Telephone No: (866) 531-0957
If to Borrower:	Inland Western Markham Corp.
	c/o Inland Real Estate Investment Corporation
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Attention: Roberta Matlin, Vice President
	Facsimile No.: 630-218-4965
With a copy to:	The Inland Real Estate Group, Inc.
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Attention: General Counsel
	Facsimile No.: 630-218-4900
If to Borrower Principal:	Inland Western Retail Real Estate Trust, Inc.
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Roberta Matlin, Vice President
	Facsimile No.: 630-218-4965

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With a copy to:	The Inland Real Estate Group, Inc.
	2901 Butterfield Road
	Oak Brook, Illinois 60523
	Attention: General Counsel
	Facsimile No.: 630-218-4900

A notice shall be deemed to have been given: in the case of hand delivery, at the time of delivery; in the case of registered or certified mail, when delivered or the first attempted delivery on a Business Day; or in the case of expedited prepaid delivery and telecopy, upon the first attempted delivery on a Business Day.

ARTICLE 17

FURTHER ASSURANCES

Section 17.1.  Replacement Documents

Upon receipt of an affidavit of anofficer of Lender as to the loss, theft, destruction or mutilation of the Note or any other Loan Document which is not of public record and, in the case of such mutilation upon surrender and cancellation of such Note or other Loan Document, Borrower will issue in lieu thereof a replacement Note or other Loan Document, dated the date of such lost, stolen, destroyed or mutilated Note or other Loan Document in the same principal amount thereof and otherwise of like tenor.

Section 17.2.  Recording of Mortgage, etc.

Borrower forthwith upon the execution and delivery of the Mortgage and thereafter, from time to time, will cause the Mortgage and any of the other Loan Documents creating a lien or security interest or evidencing the lien hereof upon the Property and each instrument of further assurance to be filed, registered or recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect and perfect the lien or security interest hereof upon, and the interest of Lender in, the Property. Borrower will pay all taxes, filing, registration or recording fees, and all expenses incident to the preparation, execution, acknowledgment and/or recording of the Note, the Mortgage, the other Loan Documents, any note, deed of trust or mortgage supplemental hereto, any security instrument with respect to the Property and any instrument of further assurance, and any modification or amendment of the foregoing documents, and all federal, state, provincial, county and municipal taxes, duties, imposts, assessments and charges arising out of or in connection with the execution and delivery of the Mortgage, any deed of trust or mortgage supplemental hereto, any security instrument with respect to the Property or any instrument of further assurance, and any modification or amendment of the foregoing documents, except where prohibited by law so to do.

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Section 17.3.Further Acts, Etc.

Borrower will, at the cost of Borrower (except with respect to costs incurred by Lender, for which Lender shall be responsible), do, execute, acknowledge and deliver all and every further acts, deeds, conveyances, deeds of trust, mortgages, assignments, security agreements, control agreements, notices of assignments, transfers and assurances as Lender shall, from time to time, reasonably require, for the better assuring, conveying, assigning, transferring, and confirming unto Lender the property and rights hereby mortgaged, deeded, granted, bargained, sold, conveyed, confirmed, pledged, assigned, warranted and transferred or intended now or hereafter so to be, or which Borrower may be or may hereafter become bound to convey or assign to Lender, or for carrying out the intention or facilitating the performance of the terms of this Agreement or for filing, registering or recording the Mortgage, or for complying with all Legal Requirements. Borrower, on demand, will execute and deliver, and in the event it shall fail to so execute and deliver, hereby authorizes Lender to execute in the name of Borrower or without the signature of Borrower to the extent Lender may lawfully do so, one or more financing statements and financing statement amendments to evidence more effectively, perfect and maintain the priority of the security interest of Lender in the Property. Borrower grants to Lender an irrevocable power of attorney coupled with an interest for the purpose of exercising and perfecting any and all rights and remedies available to Lender at law and in equity, including without limitation, such rights and remedies available to Lender pursuant to this Section 17.3.

Section 17.4.  Changes in Tax, Debt, Credit and Documentary Stamp Laws

(a)If any law is enacted or adopted or amended after the date of this Agreement which deducts the Debt from the value of the Property for the purpose of taxation or which imposes a tax, either directly or indirectly, on the Debt or Lender’s interest in the Property, Borrower will pay the tax, with interest and penalties thereon, if any.  If Lender is advised by counsel chosen by it that the payment of tax by Borrower would be unlawful or taxable to Lender or unenforceable or provide the basis for a defense of usury then Lender shall have the option by written notice of not less than one hundred eighty (80) days to declare the Debt immediately due and payable.

(b)Borrower will not claim or demand or be entitled to any credit or credits on account of the Debt for any part of the Taxes or Other Charges assessed against the Property, or any part thereof, and no deduction shall otherwise be made or claimed from the assessed value of the Property, or any part thereof, for real estate tax purposes by reason of the Mortgage or the Debt. If such claim, credit, or deduction shall be required by law, Lender shall have the option, by written notice of not less than one hundred eighty (80) days, to declare the Debt immediately due and payable.

If at any time the United States of America, any State thereof or any subdivision of any such State or Canada, any Province thereof or any subdivision of such Province, shall require revenue or other stamps to be affixed to the Note, the Mortgage, or any of the other Loan Documents or impose any other tax or charge on the same, Borrower will pay for the same, with interest and penalties thereon, if any.

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Section 17.5.Expenses

Borrower covenants and agrees to pay or, if Borrower fails to pay, to reimburse, Lender upon receipt of written notice from Lender for all reasonable costs and expenses (including reasonable, actual attorneys’ fees and disbursements and the allocated coats of internal legal services and all actual disbursements of internal counsel) reasonably incurred by Lender in accordance with this Agreement in connection with (a) the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby and thereby and all the costs of furnishing all opinions by counsel for Borrower (including without limitation any opinions requested by Lender as to any legal matters arising under this Agreement or the other Loan Documents with respect to the Property); (b) Borrower’s ongoing performance of and compliance with Borrower’s respective agreements and covenants contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date, including, without limitation, confirming compliance with environmental and insurance requirements; (c) following a request by Borrower, Lender’s ongoing performance and compliance with all agreements and conditions contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date; (d) the negotiation, preparation, execution, delivery and administration of any consents, amendments, waivers or other modifications to this Agreement and the other Loan Documents and any other documents or matters requested by Lender; (e) securing Borrower’s compliance with any requests made pursuant to the provisions of this Agreement; (f) the filing and recording fees and expenses, title insurance and reasonable fees and expenses of counsel for providing to Lender all required legal opinions, and other similar expenses incurred in creating and perfecting the Lien in favor of Lender pursuant to this Agreement and the other Loan Documents; (g) enforcing or preserving any rights, in response to third party claims or the prosecuting or defending of any action or proceeding or other litigation, in each case against, under or affecting Borrower, this Agreement, the other Loan Documents, the Property, or any other security given for the Loan; and (h) enforcing any obligations of or collecting any payments due from Borrower under this Agreement, the other Loan Documents or with respect to the Property or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” orof any insolvency or bankruptcy proceedings; provided, however, that Borrower shall not be liable for the payment of any such costs and expenses to the extent the same arise by reason of the gross negligence, illegal acts, fraud or willful misconduct of Lender.

ARTICLE 18

WAIVERS

Section 18.1.  Remedies Cumulative; Waivers

The rights, powers and remedies of Lender under this Agreement shall be cumulative and not exclusive of any other right, power or remedy which Lender may have against Borrower or Borrower Principal pursuant to this Agreement or the other Loan Documents, or existing at law or in equity or otherwise. Lender’s rights, powers and remedies may be pursued singularly, concurrently or otherwise, at such time and in such order as Lender may determine in Lender’s sole discretion. No delay or omission to exercise any remedy, right or power accruing upon an Event of Default shall impair any such remedy, right or power or shall be construed as a waiver

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thereof, but any such remedy, right or power may be exercised from time to time and as often as may be deemed expedient. A waiver of one Default or Event of Default with respect to Borrower shall not be construed to be a waiver of any subsequent Default or Event of Default by Borrower or to impair any remedy, right or power consequent thereon.

Section 18.2.  Modification, Waiver in Writing

No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement, or of the Note, or of any other Loan Document, nor consent to any departure by Borrower therefrom, shall in any event be effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given. Except as otherwise expressly provided herein, no notice to, or demand on Borrower, shall entitle Borrower to any other or future notice or demand in the same, similar or other circumstances.

Section 18.3.Delay Not a Waiver

Neither any failure nor any delay on the part of Lender in insisting upon strict performance of any term, condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under the Note or under any other Loan Document, or any other instrument given as security therefor, shall operate as or constitute a waiver thereof, nor shall a single or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege. In particular, and not by way of limitation, by accepting payment after the due date of any amount payable under this Agreement, the Note or any other Loan Document, Lender shall not be deemed to have waived any right either to require prompt payment when due of all other amounts due under this Agreement, the Note or the other Loan Documents, or to declare a default for failure to effect prompt payment of any such other amount.

Section 18.4.Trial by Jury

BORROWER, BORROWER PRINCIPAL AND LENDER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER, BORROWER PRINCIPAL AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF LENDER, BORROWER PRINCIPAL AND BORROWER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER, BORROWER PRINCIPAL AND LENDER.

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Section 18.5.Waiver of Notice

Borrower shall not be entitled to any notices of any nature whatsoever from Lender except with respect to matters for which this Agreement or the other Loan Documents specifically and expressly provide for the giving of notice by Lender to Borrower and except with respect to matters for which Borrower is not, pursuant to applicable Legal Requirements, permitted to waive the giving of notice. Borrower hereby expressly waives the right to receive any notice from Lender with respect to any matter for which this Agreement or the other Loan Documents do not specifically and expressly provide for the giving of notice by Lender to Borrower.

Section 18.6.Remedies of Borrower

In the event that a claim or adjudication is made that Lender or its agents have acted unreasonably or unreasonably delayed acting in any case where by law or under this Agreement or the other Loan Documents, Lender or such agent, as the case may be, has an obligation to act reasonably or promptly, Borrower agrees that neither Lender nor its agents shall be liable for any monetary damages, and Borrower’s sole remedies shall be limited to commencing an action seeking injunctive relief or declaratory judgment. The parties hereto agree that any action or proceeding to determine whether Lender has acted reasonably shall be determined by an action seeking declaratory judgment. Lender agrees that, in such event, it shall cooperate in expediting any action seeking injunctive relief or declaratory judgment.

Section 18.7.  Waiver of Marshalling of Assets

To the fullest extent permitted by law, Borrower, for itself and its successors and assigns, waives all rights to a marshalling of the assets of Borrower, Borrower’s partners and others with interests in Borrower, and of the Property, and agrees not to assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce or affect the right of Lender under the Loan Documents to a sale of the Property for the collection of the Debt without any prior or different resort for collection or of the right of Lender to the payment of the Debt out of the net proceeds of the Property in preference to every other claimant whatsoever.

Section 18.8.  Waiver of Statute of Limitations

Borrower hereby expressly waives and releases, to the fullest extent permitted by law, the pleading of any statute of limitations as a defense to payment of the Debt or performance of its Other Obligations.

Section 18.9.  Waiver of Counterclaim

Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Lender or its agents.

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ARTICLE 19

GOVERNING LAW

Section 19.1.  Choice of Law

This Agreement shall be deemed to be a contract entered into pursuant to the laws of the State and shall in all respects be governed, construed, applied and enforced in accordance with the laws of the State of New York and applicable laws of the United States of America, provided, however, that the Mortgage, General Assignment of Rents and Specific Assignment of Lease shall be governed, construed, applied and enforced in accordance with the laws of the Province in which the real and personal property secured thereby is located and provided that with respect to the security interest in each of the Reserve Accounts, and the Cash Management Account, the laws of the state where each such account is located shall apply.

Section 19.2.  Severability

Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Section 19.3.  Preferences

Lender shall have the continuing and exclusive right to apply or reverse and reapply any and all payments by Borrower to any portion of the obligations of Borrower hereunder. To the extent Borrower makes a payment or payments to Lender, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any Creditors Rights Laws, state or federal law, common law or equitable cause, then, to the extent of such payment or proceeds received, the obligations hereunder or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by Lender.

ARTICLE 20

MISCELLANEOUS

Section 20.1.  Survival

This Agreement and all covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the making by Lender of the Loan and the execution and delivery to Lender of the Note, and shall continue in full force and effect so long as all or any of the Debt is outstanding and unpaid unless a longer period is expressly set forth herein or in the other Loan Documents. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the legal representatives, successors and assigns of such party. All covenants, promises and agreements in this Agreement, by or on behalf of Borrower, shall inure to the benefit of the legal representatives, successors and assigns of Lender.

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Section 20.2.  Lender’s Discretion

Whenever pursuant to this Agreement, Lender exercises any right giver to it to approve or disapprove, or any arrangement or term is to be satisfactory to Lender, the decision of Lender to approve or disapprove or to decide whether arrangements or terms are satisfactory or not satisfactory shall (except as is otherwise specifically herein provided) be in the sole discretion of Lender and shall be final and conclusive.

Section 20.3.  Headings

The Article and/or Section headings and the Table of Contents in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

Section 20.4.  Cost of Enforcement

In the event (a) that the Mortgage is foreclosed in whole or in part, (b) of the bankruptcy, insolvency, rehabilitation or other similar proceeding in respect of Borrower or any of its constituent Persons or an assignment by Borrower or any of its constituent Persons for the benefit of its creditors, or (c) Lender exercises any of its other remedies under this Agreement or any of the other Loan Documents, Borrower shall be chargeable with and agrees to pay all costs of collection and defense, including attorneys’ fees and costs, incurred by Lender or Borrower in connection therewith and in connection with any appellate proceeding or post-judgment action involved therein, together with all required service or use taxes.

Section 20.5.  Schedules Incorporated

The Schedules annexed hereto are hereby incorporated herein as a part of this Agreement with the same effect as if set forth in the body hereof.

Section 20.6.  Offsets, Counterclaims and Defenses

Any assignee of Lender’s interest in and to this Agreement, the Note and the other Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses which are unrelated to such documents which Borrower may otherwise have against any assignor of such documents, and no such unrelated counterclaim or defense shall be interposed or asserted by Borrower in any action or proceeding brought by any such assignee upon such documents and any such right to interpose or assert any such unrelated offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by Borrower.

Section 20.7.  No joint Venture or Partnership; No Third Party Beneficiaries

(a)Borrower and Lender intend that the relationships created hereunder and under the other Loan Documents be solely that of borrower and lender. Nothing herein or therein is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower and Lender nor to grant Lender any interest in the Property other than that of mortgagee, beneficiary or lender.

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(b)This Agreement and the other Loan Documents are solely for the benefit of Lender and Borrower and nothing contained in this Agreement or the other Loan Documents shall be deemed to confer upon anyone other than Lender and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or therein. All conditions to the obligations of Lender to make the Loan hereunder are imposed solely and exclusively for the benefit of Lender and no other Person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lender will refuse to make the Loan in the absence of strict compliance with any or all thereof and no other Person shall under any circumstances be deemed to be a beneficiary of such conditions, any or all of which may be freely waived in whole or in part by Lender if, in Lender’s sole discretion, Lender deems it advisable or desirable to do so.

(c)The general partners, members, principals and (if Borrower is a trust) beneficial owners of Borrower are experienced in the ownership and operation of properties similar to the Property, and Borrower and Lender are relying solely upon such expertise and business plan in connection with the ownership and operation of the Property.  Borrower is not relying on Lender’s expertise, business acumen or advice in connection with the Property.

(d)Notwithstanding anything to the contrary contained herein, Lender is not undertaking the performance of (i) any obligations under the Leases; or (ii) any obligations with respect to such agreements, contracts, certificates, instruments, franchises, permits, trademarks, licenses and other documents.

(e)By accepting or approving anything required to be observed, performed or fulfilled or to be given to Lender pursuant to this Agreement, the Mortgage, the Note or the other Loan Documents, including, without limitation, any officer’s certificate, balance sheet, statement of profit and loss or other financial statement, survey, appraisal, or insurance policy, Lender shall not be deemed to have warranted, consented to, or affirmed the sufficiency, the legality or effectiveness of same, and such acceptance or approval thereof shall not constitute any warranty or affirmation with respect thereto by Lender.

(f)Borrower recognizes and acknowledges that in accepting this Agreement, the Note, the Mortgage and the other Loan Documents, Lender is expressly and primarily relying on the truth and accuracy of the representations and warranties set forth in Article 4 of this Agreement without any obligation to investigate the Property and notwithstanding any investigation of the Property by Lender; that such reliance existed on the part, of Lender prior to the date hereof, that the warranties and representations are a material inducement to Lender in making the Loan; and that Lender would not be willing to make the Loan and accept this Agreement, the Note, the Mortgage and the other Loan Documents in the absence of the warranties and representations as set forth in Article 4 of this Agreement.

Section 20.8.  Publicity

All news releases, publicity or advertising by Borrower or its Affiliates through any media intended to reach the general public which refers to the Loan, Lender, Banc of America Securities LLC, or any of their Affiliates shall be subject to the prior written approval of Lender, not to be unreasonably withheld. Lender shall be permitted to make any news, releases, publicity

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or advertising by Lender or its Affiliates through any media intended to reach the general public which refers to the Loan, the Property, Borrower, Borrower Principal and their respective Affiliates without the approval of Borrower or any such Persons. Borrower also agrees that Lender may share any information pertaining to the Loan with Bank of America Corporation, including its bank subsidiaries, Banc of America Securities LLC and any other Affiliates of the foregoing, in connection with the sale or transfer of the Loan or any Participations and/or Securities created.

Section 20.9.  Conflict; Construction of Documents; Reliance

In the event of any conflict between the provisions of this Agreement and any of the other Loan Documents, the provisions of this Agreement shall control. The parties hereto acknowledge that they were represented by competent counsel in connection with the negotiation, drafting and execution of the Loan Documents and that such Loan Documents shall not be subject to the principle of construing their meaning against the party which drafted same. Borrower acknowledges that, with respect to the Loan, Borrower shall rely solely on its own judgment and advisors in entering into the Loan without relying in any manner on any statements, representations or recommendations of Lender or any parent, subsidiary or Affiliate of Lender. Lender shall not be subject to any limitation whatsoever in the exercise of any rights or remedies available to it under any of the Loan Documents or any other agreements or instruments which govern the Loan by virtue of the ownership by it or any parent, subsidiary or Affiliate of Lender of any equity interest any of them may acquire in Borrower, and Borrower hereby irrevocably waives the right to raise any defense or take any action on the basis of the foregoing with respect to Lender’s exercise of any such rights or remedies. Borrower acknowledges that Lender engages in the business of real estate financings and other real estate transactions and investments which may be viewed as adverse to or competitive with the business of Borrower or its Affiliates.

Section 20.10.  Entire Agreement

This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and all prior agreements among or between such parties, whether oral or written between Borrower and Lender are superseded by the terms of this Agreement and the other Loan Documents.

Section 20.11.  Interest Act (Canada)

Except as otherwise specified in the Note, all natural rates of interest referred to herein are based on a calendar year of 365 or 366 days, as the case may be. Where a rate of interest hereunder is calculated on the basis of a year (the “Deemed Year”) which contains fewer days than the actual number of days in the calendar year of calculation, such rate of interest shall be expressed as a yearly rate for the purposes of the Interest Act (Canada) by multiplying such rate of interest by the actual number of days in the calendar year of calculation and dividing it by the number of days in the Deemed Year.

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Section 20.12.  Maximum Interest Rate

(a)To the extent applicable, in the event that any provision of this Agreement would oblige the borrower to make any payment of interest or any other payment which is construed by a court of competent jurisdiction to be interest in an amount or calculated at a rate which would be prohibited by law or would result in a receipt by the Lender of interest at a criminal rate (as such terms are construed under the Criminal Code (Canada)), then notwithstanding such provision, such amount or rate shall be deemed to have been adjusted nunc pro tunc to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by law or so result in a receipt by the Lender of interest at a criminal rate, such adjustment to be effected, to the extent necessary, as follows:

(i)firstly, by reducing the amount or rate of interest required to be paid pursuant to the terms of the Note; and

(ii)thereafter, by reducing any fees, commissions, premiums and other amounts which would constitute interest for the purposes of Section 347 of the Criminal Code (Canada).

(b)if, after giving effect to all adjustments contemplated thereby, the Lender shall have received an amount in excess of the maximum permitted by such clause, then such excess shall be applied by the Lender to the reduction of the principal balance of the Note and not to the payment of interest or if such excessive interest exceeds such principal balance, such excess shall be refunded to the Borrower.

(c)Any amount or rate of interest referred to in this Section shall be determined in accordance with generally accepted actuarial practices and principles at an effective annual rate of interest over the term of this Agreement on the assumption that any charges, fees or expenses that fall within the meaning of “Interest” (as defined in the Criminal Code (Canada)) shall, if they relate to a specific period of time, be prorated over that period of time and otherwise be prorated over the term of this Agreement and, in the event of dispute, a certificate of a Fellow of the Canadian Institute of Actuaries appointed by the Lender shall be conclusive for the purposes of such determination.

Section 20.13.  Judgment Currency

Any payment made by either party hereto (the “payor”) to the other (the “payee”) on account of any amount payable hereunder (the “payment obligation”) required to be made in a particular currency (the “original currency”), which payment is made in a currency (the “other currency”) other than the original currency (whether made voluntarily or pursuant to any judgment or order of a court or tribunal of any jurisdiction), shall constitute a discharge of the obligations of the payor only to the extent of the amount of the original currency which may be purchased by the payee with such payment in the other currency on the date of payment thereof. If the amount of the original currency which may be so purchased is less than the amount of the payment obligation, the payor shall indemnify and save the payee harmless from and against any loss or damage arising as a result of such deficiency. Such indemnity shall (a) constitute an obligation separate and independent from the other obligations of the payor contained in this agreement; (b) shall give rise to a separate and independent cause of action, and (c) shall

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continue in full force and effect notwithstanding, and shall not be merged in, any judgment or order in respect of any amount due hereunder or under any other judgment or order.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written.

BORROWER:
INLAND WESTERN MARKHAM CORP., a New Brunswick corporation
By:	/s/ Scott Wilton
Name:			Scott Wilton
Its:			Secretary
BORROWER PRINCIPAL:
Acknowledged and agreed to with respect to its obligations set forth in Article 4, Section 12.6, Article 13, Article 15 and Article 18 hereof:
INLAND WESTERN RETAIL REAL ESTATE TRUST INC., a Maryland corporation its
By:		/s/ Valerie Medina
		Name:		Valerie Medina
		Title:		Asst. Secretary

[ADDITIONAL SIGNATURE PAGE TO FOLLOW]

LENDER:
BANK OF AMERICA, N.A., a national banking association
By:	/s/ Lisa K. McGee
	Name:		Lisa K. McGee
	Title:	Vice President

EXHIBIT A

Borrower Equity Ownership Structure

INLAND WESTERN RETAIL
REAL ESTATE TRUST, INC., a
Maryland corporation
(Borrower Principal)

100%

INLAND WESTERN MARKHAM
CORP., a New Brunswick
corporation (Borrower)

EXHIBIT B

Tenant Direction Letter

EX-10.505

Exhibit 10.505

AMENDED AND RESTATED
PROJECT LOAN PROMISSORY NOTE

$761,773.00	Oak Brook, Illinois
	December 7, 2004

THIS AMENDED AND RESTATED PROJECT LOAN PROMISSORY NOTE (hereinafter referred to as this “Note”) is made by and between INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limited liability company (hereinafter referred to as “Maker”), and SKY BANK, with offices at The Times Building, Second Floor, 336 Fourth Avenue, Pittsburgh, Pennsylvania 15222 (hereinafter referred to as “Payee”).

RECITALS

WHEREAS, Coram Property Development LLC, a Delaware limited liability company (hereinafter referred to as “Original Maker”) executed and delivered to Payee that certain Project Loan Promissory Note dated as of June 12, 2003, in the original principal amount of $761,773.00 (hereinafter referred to as the “Original Note”), and the loan evidenced by the Original Note is hereinafter referred to as the “Original Loan”; and

WHEREAS, Maker, Original Maker and Payee have entered into that certain Assignment, Assumption, Modification and Release Agreement of even date herewith (the “Loan Assignment”), pursuant to which Original Maker assigned to Maker, and Maker assumed, all of Original Maker’s rights, liabilities, duties and obligations under the Original Loan, as modified herein and in the Loan Assignment; and

WHEREAS, Maker and Payee have agreed to amend and restate the Original Note, as set forth herein.

NOW, THEREFORE, for good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree that the Original Note is hereby amended and restated as follows:

PROJECT LOAN PROMISSORY NOTE

$761,773.00	Oak Brook, Illinois
	December 7, 2004

FOR VALUE RECEIVED, INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limited liability company (hereinafter referred to as “Maker”), promises to pay to the order of SKY BANK, with offices at The Times Building, Second Floor, 336 Fourth Avenue, Pittsburgh, Pennsylvania 15222 (hereinafter referred to as “Payee”), the principal sum of Seven Hundred Sixty One Thousand Seven Hundred Seventy Three and No/100 Dollars ($761,773.00), or so much thereof as shall be advanced,

lawful money of the United States of America, together with interest from the date hereof, at the rate and on the terms set forth herein, as follows:

A.RATE OF INTEREST.  All capitalized terms used in this Section A and not defined herein shall have the meanings set forth in Sections C and D of this Note. From and including the Date of Closing and through and including the Maturity Date, this Note shall bear interest on the Principal Balance at a rate per annum equal to the LIBOR Rate (as hereinafter defined) plus two and one-quarter percent (2.25%) (hereinafter referred to as the “Interest Rate”), fixed for periods of one (1) month or three (3) months (hereinafter referred to as the “LIBOR Rate Periods”), as selected by Maker.  Interest at the Interest Rate shall accrue on the unpaid Principal Balance based on a year of 365 days and actual days elapsed per calendar month, and shall be calculated based on a year of 365 days.  The term “LIBOR Rate”, as used herein, shall mean the rate per annum identified in the money rates section of the Wall Street Journal (northeastern edition) to be the LIBOR rate, applicable to the respective LIBOR Rate Period which has been selected by Maker.  In the event that the Wall Street Journal is no longer published or ceases to publish the LIBOR Rate, then Payee shall select a comparable replacement daily financial publication of national circulation to determine the LIBOR Rate.  Maker shall deliver to Payee, no later than two (2) business days prior to the expiration of a LIBOR Rate Period, written notice pursuant to which Maker shall select the one (1) month or three (3) month LIBOR Rate Period to follow the existing LIBOR Rate Period. Maker shall not be permitted to select a LIBOR Rate Period which extends beyond the Maturity Date.  In the event that Maker fails to select a LIBOR Rate Period prior to the expiration of an existing LIBOR Rate Period, then the succeeding LIBOR Rate Period shall be deemed to be the same LIBOR Rate Period as the expiring LIBOR Rate Period, unless such expiring LIBOR Rate period extends beyond the Maturity Date, in which case the succeeding LIBOR Rate period shall be the LIBOR Rate Period closest in duration to the expiring LIBOR Rate Period and which does not extend beyond the Maturity Date. Interest shall accrue on the Principal Balance, at the Interest Rate, from and including the day immediately following the last day of the prior LIBOR Rate Period and through and including the last day of the selected LIBOR Rate Period.

Notwithstanding any provision contained in this Note to the contrary, the Interest Rate shall not, at any time during the term of this Note, be less than four and three quarters percent (4.75%).  In the event that sum of the LIBOR Rate plus two and one quarter percent (2.25%) is less than four and three quarters percent (4.75%), then for so long as such sum is less than four and three quarters percent (4.75%), the Interest Rate shall be four and three quarters percent (4.75%) per annum.

B.TERMS OF PAYMENT.

1.Monthly Installments.  Maker shall pay to Payee six (6) consecutive monthly payments consisting of: (i) a fixed principal payment in the amount of One Thousand Nine Hundred Forty Nine and 48/100 Dollars ($1,949.48), plus (ii) interest at the Interest Rate accrued on the Principal Balance (hereinafter individually referred to as “Monthly Installment” and collectively referred to as the “Monthly Installments”), which Monthly Installments shall be due, payable and paid

2

on January 1, 2005 and on the first day of each calendar month thereafter through and including May 1, 2005.

2.Application of Payments.  All payments of Monthly Installments and any partial payment of any Monthly Installment shall be applied first to late fees and charges and any other charges due hereunder, then to interest and then to principal. This Note is one of three (3) promissory notes made or to be made by Maker in connection with loans in the aggregate amount of $20,760,000 to be made by Payee.  Such promissory notes (other than this Note), as they may be renewed or extended, are herein referred to as the “Other Facility Notes”.  All payments under this Note shall be aggregated with payments under the Other Facility Notes and shall be applied proportionately to the obligations under this Note and the Other Facility Notes.

C.MATURITY.  The entire Principal Balance, together with all accrued and unpaid interest thereon and any other unpaid sums, shall be due, payable and paid, without presentment or demand, on June 1, 2005 (referred to herein as the “Maturity Date”).

D.DEFINITIONS.

1.Principal Balance.  The term “Principal Balance”, as used herein, shall mean the outstanding principal amount of this Note and all other sums (excluding interest) required to be paid by Maker pursuant to the terms of this Note and the Mortgage (as that term is hereinafter defined).

2.Date of Closing.  The term “Date of Closing”, as used herein, shall mean December 23, 2004.

E.TAX AND INSURANCE ESCROW.  Maker shall pay to Payee with each Monthly Installment, an amount equal to one-twelfth (1/12th) of the annual real estate taxes and assessments (if any) on the Mortgaged Property and an amount equal to one-twelfth (1/12th) of the annual insurance premiums, as estimated by Payee, to be held by Payee in a non-interest bearing account for payment of said taxes, assessments and insurance premiums.

F.PLACE OF PAYMENT.  The Monthly Installments and all other sums due hereunder and under the Mortgage shall be payable at Sky Bank, P.O.  Box 40, East Liverpool, Ohio 43920, or at such other place as Payee, from time to time may designate to Maker in writing, delivered to Maker at the address set forth in the Mortgage for notices to Maker.

G.PREPAYMENT.  Maker shall have the right to prepay the Principal Balance, in whole or in part, at any time during the term of this Note, without penalty or premium; provided, however,  that any such prepayment is accompanied by payment of all interest accrued on the outstanding Principal Balance of this Note to the date of prepayment, and by payment of all other fees, costs and charges required to be paid by Maker to and for the benefit of Payee.

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Payment of this Note is secured by the Project Loan Mortgage (as that term is defined in the Loan Assignment), which Project Loan Mortgage encumbers the Mortgaged Property (as that term is defined in the Project Loan Assignment).  In addition to the Project Loan Mortgage, payment of this Note is secured by: (i) a first security interest in all furniture, fixtures, machinery, appliances, equipment and other personal property of Maker used in the operation of the Mortgaged Property and Maker’s business conducted therein, as evidenced by the Financing Statements (as that term is defined in the Loan Assignment) and (ii) a first assignment of all leases and rents relating to or arising out of the Mortgaged Property, as evidenced by the Project Loan Assignment (as that term is defined in the Loan Assignment).

All of the agreements, conditions, covenants, provisions and stipulations contained in the Project Loan Mortgage, the Project Loan Assignment and the Financing Statements (collectively referred to herein as the “Loan Documents”) which are to be kept and performed by Maker are hereby made a part of this Note to the same extent and with the same force and effect as if they were fully set forth herein, and Maker covenants and agrees to keep and perform them, or cause them to be kept and performed, strictly in accordance with their terms.

If any Monthly Installment or any other payment due hereunder shall not be paid, in immediately available and collectible funds, within ten (10) days of its due date, Maker shall pay to Payee a late charge of five cents ($.05) for each dollar of such amount so overdue.  It is further understood that the following defaults shall constitute events of default hereunder and are referred to herein as an “Event of Default” or “Events of Default”: (i) a default in the payment, in immediately available and collectible funds, of any Monthly Installment or any monetary sum due hereunder or under the Loan Documents and such default is not fully cured within ten (10) days from the date on which it shall fall due, (ii) a default in the performance of any of the non-monetary agreements, conditions, covenants, provisions or stipulations contained in this Note, or in the Loan Documents and such default is not cured within thirty (30) days after receipt of written notice thereof, or (iii) the occurrence of an Event of Default under the Other Facility Notes; provided, however, that if such default is not susceptible of being cured within thirty (30) days, such thirty (30) day period shall be extended for such additional time as Payee shall reasonably deem necessary for such cure, provided that Maker commences to cure such default during the original thirty (30) day period and diligently prosecutes the curing thereof.  Upon the occurrence of an Event of Default hereunder or under the Mortgage, Payee, at its option and without notice to Maker, may declare immediately due and payable the entire Principal Balance with interest accrued thereon at the Interest Rate to the date of such Event of Default and thereafter at a rate three percent (3%) per annum in excess of the Interest Rate and all other sums due by Maker hereunder or under the Loan Documents, anything herein or in the Loan Documents to the contrary notwithstanding; and payment thereof may be enforced and recovered in whole or in part at any time by one or more of the remedies provided to Payee in this Note or in the Loan Documents.  In such case, Payee may also recover all costs of suit and other expenses in connection therewith, together with reasonable attorney’s fees for collection, together with interest on any judgment obtained by Payee at a rate three percent (3%) per annum, in excess of the Interest Rate from and after the date of any Sheriff’s sale until actual payment is made by the Sheriff to Payee of the full amount due Payee.

4

The remedies of Payee as provided herein, or in the Loan Documents, and the warrants contained herein or in the Mortgage shall be cumulative and concurrent, and may be pursued singularly, successively, or together at the sole discretion of Payee, and may be exercised as often as occasion therefor shall occur; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof.

To the extent permitted under applicable law, Maker hereby waives and releases all errors, defects and imperfections in any proceedings instituted by Payee under the terms of this Note, or of the Loan Documents, as well as all benefit that might accrue to Maker by virtue of any present or future laws exempting the Mortgaged Property, or any other property, real or personal, or any part of the proceeds arising from any sale of any such property from attachment, levy, or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and Maker agrees that any real estate that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued thereon may be sold upon any such writ in whole or in part in any order desired by Payee.

Maker and all endorsers, sureties and guarantors hereby jointly and severally waive presentment for payment, demand, notice of demand, notice of nonpayment or dishonor, protest and notice of protest of this Note, and all other notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, unless specifically required herein or in the Loan Documents, and they agree that the liability of each of them shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by Payee.  Maker and all endorsers, sureties, and guarantors consent to any and all extensions of time, renewals, waivers or modifications that may be granted by Payee with respect to the payment or other provisions of this Note, and to the release of the collateral or any part thereof, with or without substitution and agree that additional makers, endorsers, guarantors, or sureties may become parties hereto without notice to them or affecting their liability hereunder.

Payee shall not be deemed, by any act of omission or commission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by Payee, and then only to the extent specifically set forth in the writing.  A waiver on one event shall not be construed as continuing or as a bar to or waiver of any right or remedy to a subsequent event.

If any term or provision of this Note or the application thereof to any person, property or circumstance shall to any extent be invalid or unenforceable as to the remainder of this Note, then the application of such term or provision to persons, properties and circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and provision of this Note shall be valid and enforceable to the fullest extent permitted by law.

5

Notwithstanding anything to the contrary contained in this Note or in the Loan Documents, the effective rate of interest on the obligation evidenced by this Note shall not exceed the lawful maximum rate of interest permitted to be paid.  Without limiting the generality of the foregoing, if the interest charged under this Note results in an effective rate of interest higher than that lawfully permitted to be paid, then such charges shall be reduced by the sum sufficient to result in an effective rate of interest no greater than the maximum effective rate of interest permitted by law and any amount that would exceed the highest lawful rate already received and held by the Payee shall be applied to a reduction of principal (without premium or penalty) and not to the payment of interest.

Part of the consideration for the loan evidenced by this Note is that the loan (i) is and shall be deemed made under, governed by and construed and enforced in accordance with the internal law of the Commonwealth of Pennsylvania, except to the extent that the procedural laws of the State of New York shall apply to any action commenced by Payee in pursuit of its remedies hereunder or otherwise, as applicable, and (ii) is and shall be enforceable only in the State Courts of said Commonwealth with an action commenced in the Court of Common Pleas of Allegheny County, and/or in the Federal Courts of said Commonwealth with an action commenced in the United States District Court for the Western District of Pennsylvania, except to the extent that any action commenced by Payee in pursuit of its remedies hereunder or otherwise, shall be enforceable in the State Courts and/or Federal Courts of the State of New York, at Payee’s sole discretion.  Maker hereby waives any claim that Pittsburgh, Pennsylvania is an inconvenient forum and any claim that any action or proceeding arising out of or relating to this Note and commenced in the aforesaid Courts lacks proper venue.

Whenever used, the singular number shall include the plural, the plural the singular, the use of any gender shall be applicable to all genders, the words “Payee” and “Maker” shall be deemed to include the respective successors and assigns of Payee and Maker.

The captions preceding the text of the paragraphs or subparagraphs of this Note are inserted only for convenience of reference and shall not constitute a part of this Note, nor shall they in any way affect its meaning, construction or effect.

[SIGNATURES ON FOLLOWING PAGE]

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IN WITNESS WHEREOF, this Note has been duly signed and delivered by the undersigned at the place and as of the day and year first above written.

	INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limited liability company
WITNESS:	By:	INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation and its sole member
/s/ Rose Marie [ILLEGIBLE]		By:	/s/ Valerie Medina
		Name:			Valerie Medina
		Title:		Asst. Secretary

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STATE OF ILLINOIS	)
	)   SS:
COUNTY OF DUPAGE	)

On this 21^st day of December, A.D., 2004, before me, a Notary Public in and for said State, the undersigned officer, personally appeared Valerie Medina, the Asst. Secretary of INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation and the sole member of INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limited liability company, personally known to me, or proved to me on the basis of satisfactory evidence, to be the person whose name is subscribed to the within instrument and acknowledged that he as such officer, being authorized to do so, executed the foregoing instrument as the Asst. Secretary of INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., in its capacity as the sole member of INLAND WESTERN CORAM PLAZA, L.L.C., for the purposes therein contained, and that by his signature on the instrument, INLAND WESTERN CORAM PLAZA, L.L.C. executed the instrument.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

/s/ Elizabeth Ann Irving
	Notary Public

MY COMMISSION EXPIRES: OFFICIAL SEAL
ELIZABETH ANN IRVING
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 11-14-2008

EX-10.506

Exhibit 10.506

AMENDED AND RESTATED
ACQUISITION LOAN PROMISSORY NOTE

$9,447,037.00	Oak Brook, Illinois
	December 7, 2004

THIS AMENDED AND RESTATED ACQUISITION LOAN PROMISSORY NOTE (hereinafter referred to as this “Note”) is made by and between INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limited liability company (hereinafter referred to as “Maker”), and SKY BANK, with offices at The Times Building, Second Floor, 336 Fourth Avenue, Pittsburgh, Pennsylvania 15222 (hereinafter referred to as “Payee”).

RECITALS

WHEREAS, Coram Property Development LLC, a Delaware limited liability company (hereinafter referred to as “Original Maker”) executed and delivered to Payee that certain Amended and Restated Acquisition Loan Promissory Note dated as of June 12, 2003, in the original principal amount of $9,447,037.00 (hereinafter referred to as the “Original Note”), and the loan evidenced by the Original Note is hereinafter referred to as the “Original Loan”; and

WHEREAS, Maker, Original Maker and Payee have entered into that certain Assignment, Assumption, Modification and Release Agreement of even date herewith (the “Loan Assignment”), pursuant to which Original Maker assigned to Maker, and Maker assumed, all of Original Maker’s rights, liabilities, duties and obligations under the Original Loan, as modified herein and in the Loan Assignment; and

WHEREAS, Maker and Payee have agreed to amend and restate the Original Note, as set forth herein.

NOW, THEREFORE, for good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree that the Original Note is hereby amended and restated as follows:

ACQUISITION LOAN PROMISSORY NOTE

$9,447,037.00	Oak Brook, Illinois
	December 7, 2004

FOR VALUE RECEIVED, INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limited liability company (hereinafter referred to as “Maker”), promises to pay to the order of SKY BANK, with offices at The Times Building, Second Floor, 336 Fourth Avenue, Pittsburgh, Pennsylvania 15222 (hereinafter referred to as “Payee”), the principal sum of Nine Million Four Hundred Forty Seven Thousand Thirty Seven and No/100 Dollars ($9,447,037.00), or so much thereof as shall be advanced, lawful

money of the United States of America, together with interest from the date hereof, at the rate and on the terms set forth herein, as follows:

A.RATE OF INTEREST.  All capitalized terms used in this Section A and not defined herein shall have the meanings set forth in Sections C and D of this Note.  From and including the Date of Closing and through and including the Maturity Date, this Note shall bear interest on the Principal Balance at a rate per annum equal to the LIBOR Rate (as hereinafter defined) plus two and one-quarter percent (2.25%) (hereinafter referred to as the “Interest Rate”), fixed for periods of one (1) month or three (3) months (hereinafter referred to as the “LIBOR Rate Periods”), as selected by Maker.  Interest at the Interest Rate shall accrue on the unpaid Principal Balance based on a year of 365 days and actual days elapsed per calendar month, and shall be calculated based on a year of 365 days.  The term “LIBOR Rate”, as used herein, shall mean the rate per annum identified in the money rates section of the Wall Street Journal (northeastern edition) to be the LIBOR rate, applicable to the respective LIBOR Rate Period which has been selected by Maker.  In the event that the Wall Street Journal is no longer published or ceases to publish the LIBOR Rate, then Payee shall select a comparable replacement daily financial publication of national circulation to determine the LIBOR Rate.  Maker shall deliver to Payee, no later than two (2) business days prior to the expiration of a LIBOR Rate Period, written notice pursuant to which Maker shall select the one (1) month or three (3) month LIBOR Rate Period to follow the existing LIBOR Rate Period.  Maker shall not be permitted to select a LIBOR Rate Period which extends beyond the Maturity Date.  In the event that Maker fails to select a LIBOR Rate Period prior to the expiration of an existing LIBOR Rate Period, then the succeeding LIBOR Rate Period shall be deemed to be the same LIBOR Rate Period as the expiring LIBOR Rate Period, unless such expiring LIBOR Rate period extends beyond the Maturity Date, in which case the succeeding LIBOR Rate period shall be the LIBOR Rate Period closest in duration to the expiring LIBOR Rate Period and which does not extend beyond the Maturity Date.  Interest shall accrue on the Principal Balance, at the Interest Rate, from and including the day immediately following the last day of the prior LIBOR Rate Period and through and including the last day of the selected LIBOR Rate Period.

Notwithstanding any provision contained in this Note to the contrary, the Interest Rate shall not, at any time during the term of this Note, be less than four and three quarters percent (4.75%).  In the event that sum of the LIBOR Rate plus two and one quarter percent (2.25%) is less than four and three quarters percent (4.75%), then for so long as such sum is less than four and three quarters percent (4.75%), the Interest Rate shall be four and three quarters percent (4.75%) per annum.

B.TERMS OF PAYMENT.

1.Monthly Installments.  Maker shall pay to Payee six (6) consecutive monthly payments consisting of: (i) a fixed principal payment in the amount of Twenty Four Thousand One Hundred Seventy Six and 30/100 Dollars ($24,176.30), plus (ii) interest at the Interest Rate accrued on the Principal Balance (hereinafter individually referred to as “Monthly Installment” and collectively referred to as the “Monthly Installments”), which Monthly Installments shall be due, payable

2

and paid on January 1, 2005 and on the first day of each calendar month thereafter through and including May 1, 2005.

2.Application of Payments.  All payments of Monthly Installments and any partial payment of any Monthly Installment shall be applied first to late fees and charges and any other charges due hereunder, then to interest and then to principal.  This Note is one of three (3) promissory notes made or to be made by Maker in connection with loans in the aggregate amount of $20,760,000 to be made by Payee.  Such promissory notes (other than this Note), as they may be renewed or extended, are herein referred to as the “Other Facility Notes”.  All payments under this Note shall be aggregated with payments under the Other Facility Notes and shall be applied proportionately to the obligations under this Note and the Other Facility Notes.

C.MATURITY.  The entire Principal Balance, together with all accrued and unpaid interest thereon and any other unpaid sums, shall be due, payable and paid, without presentment or demand, on June 1, 2005 (referred to herein as the “Maturity Date”).

D.DEFINITIONS.

1.Principal Balance.  The term “Principal Balance”, as used herein, shall mean the outstanding principal amount of this Note and all other sums (excluding interest) required to be paid by Maker pursuant to the terms of this Note and the Mortgage (as that term is hereinafter defined).

2.Date of Closing.  The term “Date of Closing”, as used herein, shall mean December 23, 2004.

E.TAX AND INSURANCE ESCROW.  Maker shall pay to Payee with each Monthly Installment, an amount equal to one-twelfth (1/12th) of the annual real estate taxes and assessments (if any) on the Mortgaged Property and an amount equal to one-twelfth (1/12th) of the annual insurance premiums, as estimated by Payee, to be held by Payee in a non-interest bearing account for payment of said taxes, assessments and insurance premiums.

F.PLACE OF PAYMENT.  The Monthly Installments and all other sums due hereunder and under the Mortgage shall be payable at Sky Bank, P.O. Box 40, East Liverpool, Ohio 43920, or at such other place as Payee, from time to time may designate to Maker in writing, delivered to Maker at the address set forth in the Mortgage for notices to Maker.

G.PREPAYMENT.  Maker shall have the right to prepay the Principal Balance, in whole or in part, at any time during the term of this Note, without penalty or premium; provided, however, that any such prepayment is accompanied by payment of all interest accrued on the outstanding Principal Balance of this Note to the date of prepayment, and by payment of all other fees, costs and charges required to be paid by Maker to and for the benefit of Payee.

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Payment of this Note is secured by the Acquisition Loan Mortgage (as that term is defined in the Loan Assignment), which Acquisition Loan Mortgage encumbers the Mortgaged Property (as that term is defined in the Acquisition Loan Assignment).  In addition to the Building Loan Mortgage, payment of this Note is secured by: (i) a first security interest in all furniture, fixtures, machinery, appliances, equipment and other personal property of Maker used in the operation of the Mortgaged Property and Maker’s business conducted therein, as evidenced by the Financing Statements (as that term is defined in the Loan Assignment) and (ii) a first assignment of all leases and rents relating to or arising out of the Mortgaged Property, as evidenced by the Acquisition Loan Assignment (as that term is defined in the Loan Assignment).

All of the agreements, conditions, covenants, provisions and stipulations contained in the Acquisition Loan Mortgage, the Acquisition Loan Assignment and the Financing Statements (collectively referred to herein as the “Loan Documents”) which are to be kept and performed by Maker are hereby made a part of this Note to the same extent and with the same force and effect as if they were fully set forth herein, and Maker covenants and agrees to keep and perform them, or cause them to be kept and performed, strictly in accordance with their terms.

If any Monthly Installment or any other payment due hereunder shall not be paid, in immediately available and collectible funds, within ten (10) days of its due date, Maker shall pay to Payee a late charge of five cents ($.05) for each dollar of such amount so overdue.  It is further understood that the following defaults shall constitute events of default hereunder and are referred to herein as an “Event of Default” or “Events of Default”: (i) a default in the payment, in immediately available and collectible funds, of any Monthly Installment or any monetary sum due hereunder or under the Loan Documents and such default is not fully cured within ten (10) days from the date on which it shall fall due, (ii) a default in the performance of any of the non-monetary agreements, conditions, covenants, provisions or stipulations contained in this Note, or in the Loan Documents and such default is not cured within thirty (30) days after receipt of written notice thereof, or (iii) the occurrence of an Event of Default under the Other Facility Notes; provided, however, that if such default is not susceptible of being cured within thirty (30) days, such thirty (30) day period shall be extended for such additional time as Payee shall reasonably deem necessary for such cure, provided that Maker commences to cure such default during the original thirty (30) day period and diligently prosecutes the curing thereof.  Upon the occurrence of an Event of Default hereunder or under the Mortgage, Payee, at its option and without notice to Maker, may declare immediately due and payable the entire Principal Balance with interest accrued thereon at the Interest Rate to the date of such Event of Default and thereafter at a rate three percent (3%) per annum in excess of the Interest Rate and all other sums due by Maker hereunder or under the Loan Documents, anything herein or in the Loan Documents to the contrary notwithstanding; and payment thereof may be enforced and recovered in whole or in part at any time by one or more of the remedies provided to Payee in this Note or in the Loan Documents.  In such case, Payee may also recover all costs of suit and other expenses in connection therewith, together with reasonable attorney’s fees for collection, together with interest on any judgment obtained by Payee at a rate three percent (3%) per annum, in excess

4

of the Interest Rate from and after the date of any Sheriff’s sale until actual payment is made by the Sheriff to Payee of the full amount due Payee.

The remedies of Payee as provided herein, or in the Loan Documents, and the warrants contained herein or in the Mortgage shall be cumulative and concurrent, and may be pursued singularly, successively, or together at the sole discretion of Payee, and may be exercised as often as occasion therefor shall occur; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof.

To the extent permitted under applicable law, Maker hereby waives and releases all errors, defects and imperfections in any proceedings instituted by Payee under the terms of this Note, or of the Loan Documents, as well as all benefit that might accrue to Maker by virtue of any present or future laws exempting the Mortgaged Property, or any other property, real or personal, or any part of the proceeds arising from any sale of any such property from attachment, levy, or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and Maker agrees that any real estate that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued thereon may be sold upon any such writ in whole or in part in any order desired by Payee.

Maker and all endorsers, sureties and guarantors hereby jointly and severally waive presentment for payment, demand, notice of demand, notice of nonpayment or dishonor, protest and notice of protest of this Note, and all other notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, unless specifically required herein or in the Loan Documents, and they agree that the liability of each of them shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by Payee.  Maker and all endorsers, sureties, and guarantors consent to any and all extensions of time, renewals, waivers or modifications that may be granted by Payee with respect to the payment or other provisions of this Note, and to the release of the collateral or any part thereof, with or without substitution and agree that additional makers, endorsers, guarantors, or sureties may become parties hereto without notice to them or affecting their liability hereunder.

Payee shall not be deemed, by any act of omission or commission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by Payee, and then only to the extent specifically set forth in the writing.  A waiver on one event shall not be construed as continuing or as a bar to or waiver of any right or remedy to a subsequent event.

If any term or provision of this Note or the application thereof to any person, property or circumstance shall to any extent be invalid or unenforceable as to the remainder of this Note, then the application of such term or provision to persons, properties and circumstances other than those as to which it is invalid or

5

unenforceable, shall not be affected thereby, and each term and provision of this Note shall be valid and enforceable to the fullest extent permitted by law.

Notwithstanding anything to the contrary contained in this Note or in the Loan Documents, the effective rate of interest on the obligation evidenced by this Note shall not exceed the lawful maximum rate of interest permitted to be paid.  Without limiting the generality of the foregoing, if the interest charged under this Note results in an effective rate of interest higher than that lawfully permitted to be paid, then such charges shall be reduced by the sum sufficient to result in an effective rate of interest no greater than the maximum effective rate of interest permitted by law and any amount that would exceed the highest lawful rate already received and held by the Payee shall be applied to a reduction of principal (without premium or penalty) and not to the payment of interest.

Part of the consideration for the loan evidenced by this Note is that the loan (i) is and shall be deemed made under, governed by and construed and enforced in accordance with the internal law of the Commonwealth of Pennsylvania, except to the extent that the procedural laws of the State of New York shall apply to any action commenced by Payee in pursuit of its remedies hereunder or otherwise, as applicable, and (ii) is and shall be enforceable only in the State Courts of said Commonwealth with an action commenced in the Court of Common Pleas of Allegheny County, and/or in the Federal Courts of said Commonwealth with an action commenced in the United States District Court for the Western District of Pennsylvania, except to the extent that any action commenced by Payee in pursuit of its remedies hereunder or otherwise, shall be enforceable in the State Courts and/or Federal Courts of the State of New York, at Payee’s sole discretion.  Maker hereby waives any claim that Pittsburgh, Pennsylvania is an inconvenient forum and any claim that any action or proceeding arising out of or relating to this Note and commenced in the aforesaid Courts lacks proper venue.

Whenever used, the singular number shall include the plural, the plural the singular, the use of any gender shall be applicable to all genders, the words “Payee” and “Maker” shall be deemed to include the respective successors and assigns of Payee and Maker.

The captions preceding the text of the paragraphs or subparagraphs of this Note are inserted only for convenience of reference and shall not constitute a part of this Note, nor shall they in any way affect its meaning, construction or effect.

[SIGNATURES ON FOLLOWING PAGE]

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IN WITNESS WHEREOF, this Note has been duly signed and delivered by the undersigned at the place and as of the day and year first above written.

	INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limited liability company
WITNESS:	By:	INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation and its sole member
/s/ [ILLEGIBLE]		By:	/s/ Valerie Medina
		Name:	Valerie Medina
		Title:	Asst. Secretary

7

STATE OF ILLINOIS	)
	)   SS:
COUNTY OF DUPAGE	)

On this 21st day of December, A.D., 2004, before me, a Notary Public in and for said State, the undersigned officer, personally appeared Valerie Medina, the Asst. Secretary of INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation and the sole member of INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limited liability company, personally known to me, or proved to me on the basis of satisfactory evidence, to be the person whose name is subscribed to the within instrument and acknowledged that he as such officer, being authorized to do so, executed the foregoing instrument as the Asst. Secretary of INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., in its capacity as the sole member of INLAND WESTERN CORAM PLAZA, L.L.C., for the purposes therein contained, and that by his signature on the instrument, INLAND WESTERN CORAM PLAZA, L.L.C. executed the instrument.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

/s/ Elizabeth Ann Irving

Notary Public

MY COMMISSION EXPIRES: OFFICIAL SEAL
ELIZABETH ANN IRVING
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 11-14-2008

EX-10.507

Exhibit 10.507

AMENDED AND RESTATED

BUILDING LOAN PROMISSORY NOTE

$10,551,190.00	Oak Brook, Illinois
	December 7, 2004

THIS AMENDED AND RESTATED BUILDING LOAN PROMISSORY NOTE (hereinafter referred to as this “Note”) is made by and between INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limited liability company (hereinafter referred to as “Maker”), and SKY BANK, with offices at The Times Building, Second Floor, 336 Fourth Avenue, Pittsburgh, Pennsylvania 15222 (hereinafter referred to as “Payee”).

RECITALS

WHEREAS, Coram Property Development LLC, a Delaware limited liability company (hereinafter referred to as “Original Maker”) executed and delivered to Payee that certain Building Loan Promissory Note dated as of June 12, 2003, in the original principal amount of $10,551,190.00 (hereinafter referred to as the “Original Note”), and the loan evidenced by the Original Note is hereinafter referred to as the “Original Loan”; and

WHEREAS, Maker, Original Maker and Payee have entered into that certain Assignment, Assumption, Modification and Release Agreement of even date herewith (the “Loan Assignment”), pursuant to which Original Maker assigned to Maker, and Maker assumed, all of Original Maker’s rights, liabilities, duties and obligations under the Original Loan, as modified herein and in the Loan Assignment; and

WHEREAS, Maker and Payee have agreed to amend and restate the Original Note, as set forth herein.

NOW, THEREFORE, for good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree that the Original Note is hereby amended and restated as follows:

BUILDING LOAN PROMISSORY NOTE

$10,551,190.00	Oak Brook, Illinois
	December 7, 2004

FOR VALUE RECEIVED, INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limited liability company (hereinafter referred to as “Maker”), promises to pay to the order of SKY BANK, with offices at The Times Building, Second Floor, 336 Fourth Avenue, Pittsburgh, Pennsylvania 15222 (hereinafter referred to as “Payee”), the principal sum of Ten Million Five Hundred Fifty One Thousand One Hundred Ninety and No/100 Dollars ($10,551,190.00), or so much thereof as shall be

advanced, lawful money of the United States of America, together with interest from the date hereof, at the rate and on the terms set forth herein, as follows:

A.            RATE OF INTEREST.  All capitalized terms used in this Section A and not defined herein shall have the meanings set forth in Sections C and D of this Note.  From and including the Date of Closing and through and including the Maturity Date, this Note shall bear interest on the Principal Balance at a rate per annum equal to the LIBOR Rate (as hereinafter defined) plus two and one-quarter percent (2.25%) (hereinafter referred to as the “Interest Rate”), fixed for periods of one (1) month or three (3) months (hereinafter referred to as the “LIBOR Rate Periods”), as selected by Maker.  Interest at the Interest Rate shall accrue on the unpaid Principal Balance based on a year of 365 days and actual days elapsed per calendar month, and shall be calculated based on a year of 365 days.  The term “LIBOR Rate”, as used herein, shall mean the rate per annum identified in the money rates section of the Wall Street Journal (northeastern edition) to be the LIBOR rate, applicable to the respective LIBOR Rate Period which has been selected by Maker.  In the event that the Wall Street Journal is no longer published or ceases to publish the LIBOR Rate, then Payee shall select a comparable replacement daily financial publication of national circulation to determine the LIBOR Rate.  Maker shall deliver to Payee, no later than two (2) business days prior to the expiration of a LIBOR Rate Period, written notice pursuant to which Maker shall select the one (1) month or three (3) month LIBOR Rate Period to follow the existing LIBOR Rate Period.  Maker shall not be permitted to select a LIBOR Rate Period which extends beyond the Maturity Date.  In the event that Maker fails to select a LIBOR Rate Period prior to the expiration of an existing LIBOR Rate Period, then the succeeding LIBOR Rate Period shall be deemed to be the same LIBOR Rate Period as the expiring LIBOR Rate Period, unless such expiring LIBOR Rate period extends beyond the Maturity Date, in which case the succeeding LIBOR Rate period shall be the LIBOR Rate Period closest in duration to the expiring LIBOR Rate Period and which does not extend beyond the Maturity Date.  Interest shall accrue on the Principal Balance,  at the Interest Rate, from and including the day immediately following the last day of the prior LIBOR Rate Period and through and including the last day of the selected LIBOR Rate Period.

Notwithstanding any provision contained in this Note to the contrary, the Interest Rate shall not, at any time during the term of this Note, be less than four and three quarters percent (4.75%).  In the event that sum of the LIBOR Rate plus two and one quarter percent (2.25%) is less than four and three quarters percent (4.75%), then for so long as such sum is less than four and three quarters percent (4.75%), the Interest Rate shall be four and three quarters percent (4.75%) per annum.

B.            TERMS OF PAYMENT.

1.             Monthly Installments.         Maker shall pay to Payee six (6) consecutive monthly payments consisting of; (i) a fixed principal payment in the amount of Twenty Seven Thousand One and 98/100 Dollars ($27,001.98), plus (ii) interest at the Interest Rate accrued on the Principal Balance (hereinafter individually referred to as “Monthly Installment” and collectively referred to as the “Monthly Installments”), which Monthly Installments shall be due, payable and paid on January

2

1, 2005 and on the first day of each calendar month thereafter through and including May 1, 2005.

2.             Application of Payments.  All payments of Monthly Installments and any partial payment of any Monthly Installment shall be applied first to late fees and charges and any other charges due hereunder, then to interest and then to principal.  This Note is one of three (3) promissory notes made or to be made by Maker in connection with loans in the aggregate amount of $20,760,000 to be made by Payee.  Such promissory notes (other than this Note), as they may be renewed or extended, are herein referred to as the “Other Facility Notes”.  All payments under this Note shall be aggregated with payments under the Other Facility Notes and shall be applied proportionately to the obligations under this Note and the Other Facility Notes.

C.            MATURITY.  The entire Principal Balance, together with all accrued and unpaid interest thereon and any other unpaid sums, shall be due, payable and paid, without presentment or demand, on June 1, 2005 (referred to herein as the “Maturity Date”).

D.            DEFINITIONS.

1.             Principal Balance.  The term “Principal Balance”, as used herein, shall mean the outstanding principal amount of this Note and all other sums (excluding interest) required to be paid by Maker pursuant to the terms of this Note and the Mortgage (as that term is hereinafter defined).

2.             Date of Closing.  The term “Date of Closing”,  as used herein, shall mean December 23, 2004.

E.             TAX AND INSURANCE ESCROW.  Maker shall pay to Payee with each Monthly Installment, an amount equal to one-twelfth (1/12th) of the annual real estate taxes and assessments (if any) on the Mortgaged Property and an amount equal to one-twelfth (1/12th) of the annual insurance premiums, as estimated by Payee, to be held by Payee in a non-interest bearing account for payment of said taxes, assessments and insurance premiums.

F.             PLACE OF PAYMENT.  The Monthly Installments and all other sums due hereunder and under the Mortgage shall be payable at Sky Bank, P.O.  Box 40, East Liverpool, Ohio 43920, or at such other place as Payee, from time to time may designate to Maker in writing, delivered to Maker at the address set forth in the Mortgage for notices to Maker.

G.            PREPAYMENT.  Maker shall have the right to prepay the Principal Balance, in whole or in part, at any time during the term of this Note, without penalty or premium; provided, however, that any such prepayment is accompanied by payment of all interest accrued on the outstanding Principal Balance of this Note to the date of prepayment, and by payment of all other fees, costs and charges required to be paid by Maker to and for the benefit of Payee.

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Payment of this Note is secured by the Building Loan Mortgage (as that term is defined in the Loan Assignment), which Building Loan Mortgage encumbers the Mortgaged Property (as that term is defined in the Building Loan Assignment).  In addition to the Building Loan Mortgage, payment of this Note is secured by: (i) a first security interest in all furniture, fixtures, machinery, appliances, equipment and other personal property of Maker used in the operation of the Mortgaged Property and Maker’s business conducted therein, as evidenced by the Financing Statements (as that term is defined in the Loan Assignment) and (ii) a first assignment of all leases and rents relating to or arising out of the Mortgaged Property, as evidenced by the Building Loan Assignment (as that term is defined in the Loan Assignment).

All of the agreements, conditions, covenants, provisions and stipulations contained in the Building Loan Mortgage, the Building Loan Assignment and the Financing Statements (collectively referred to herein as the “Loan Documents”) which are to be kept and performed by Maker are hereby made a part of this Note to the same extent and with the same force and effect as if they were fully set forth herein, and Maker covenants and agrees to keep and perform them, or cause them to be kept and performed, strictly in accordance with their terms.

If any Monthly Installment or any other payment due hereunder shall not be paid, in immediately available and collectible funds, within ten (10) days of its due date, Maker shall pay to Payee a late charge of five cents ($.05) for each dollar of such amount so overdue.  It is further understood that the following defaults shall constitute events of default hereunder and are referred to herein as an “Event of Default” or “Events of Default”: (i) a default in the payment, in immediately available and collectible funds, of any Monthly Installment or any monetary sum due hereunder or under the Loan Documents and such default is not fully cured within ten (10) days from the date on which it shall fall due, (ii) a default in the performance of any of the non-monetary agreements, conditions, covenants, provisions or stipulations contained in this Note, or in the Loan Documents and such default is not cured within thirty (30) days after receipt of written notice thereof, or (iii) the occurrence of an Event of Default under the Other Facility Notes; provided, however, that if such default is not susceptible of being cured within thirty (30) days, such thirty (30) day period shall be extended for such additional time as Payee shall reasonably deem necessary for such cure, provided that Maker commences to cure such default during the original thirty (30) day period and diligently prosecutes the curing thereof.  Upon the occurrence of an Event of Default hereunder or under the Mortgage, Payee, at its option and without notice to Maker, may declare immediately due and payable the entire Principal Balance with interest accrued thereon at the Interest Rate to the date of such Event of Default and thereafter at a rate three percent (3%) per annum in excess of the Interest Rate and all other sums due by Maker hereunder or under the Loan Documents, anything herein or in the Loan Documents to the contrary notwithstanding; and payment thereof may be enforced and recovered in whole or in part at any time by one or more of the remedies provided to Payee in this Note or in the Loan Documents.  In such case, Payee may also recover all costs of suit and other expenses in connection therewith, together with reasonable attorney’s fees for collection, together with interest on any judgment obtained by Payee at a rate three percent (3%) per annum, in excess of the Interest Rate from and after the date of any Sheriffs sale until actual payment is made by the Sheriff to Payee of the full amount due Payee.

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The remedies of Payee as provided herein, or in the Loan Documents, and the warrants contained herein or in the Mortgage shall be cumulative and concurrent, and may be pursued singularly, successively, or together at the sole discretion of Payee, and may be exercised as often as occasion therefor shall occur; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof.

To the extent permitted under applicable law, Maker hereby waives and releases all errors, defects and imperfections in any proceedings instituted by Payee under the terms of this Note, or of the Loan Documents, as well as all benefit that might accrue to Maker by virtue of any present or future laws exempting the Mortgaged Property, or any other property, real or personal, or any part of the proceeds arising from any sale of any such property from attachment, levy, or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and Maker agrees that any real estate that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued thereon may be sold upon any such writ in whole or in part in any order desired by Payee.

Maker and all endorsers, sureties and guarantors hereby jointly and severally waive presentment for payment, demand, notice of demand, notice of nonpayment or dishonor, protest and notice of protest of this Note, and all other notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, unless specifically required herein or in the Loan Documents, and they agree that the liability of each of them shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by Payee.  Maker and all endorsers, sureties, and guarantors consent to any and all extensions of time, renewals, waivers or modifications that may be granted by Payee with respect to the payment or other provisions of this Note, and to the release of the collateral or any part thereof, with or without substitution and agree that additional makers, endorsers, guarantors, or sureties may become parties hereto without notice to them or affecting their liability hereunder.

Payee shall not be deemed, by any act of omission or commission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by Payee, and then only to the extent specifically set forth in the writing.  A waiver on one event shall not be construed as continuing or as a bar to or waiver of any right or remedy to a subsequent event.

If any term or provision of this Note or the application thereof to any person, property or circumstance shall to any extent be invalid or unenforceable as to the remainder of this Note, then the application of such term or provision to persons, properties and circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and provision of this Note shall be valid and enforceable to the fullest extent permitted by law.

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Notwithstanding anything to the contrary contained in this Note or in the Loan Documents, the effective rate of interest on the obligation evidenced by this Note shall not exceed the lawful maximum rate of interest permitted to be paid.  Without limiting the generality of the foregoing, if the interest charged under this Note results in an effective rate of interest higher than that lawfully permitted to be paid, then such charges shall be reduced by the sum sufficient to result in an effective rate of interest no greater than the maximum effective rate of interest permitted by law and any amount that would exceed the highest lawful rate already received and held by the Payee shall be applied to a reduction of principal (without premium or penalty) and not to the payment of interest.

Part of the consideration for the loan evidenced by this Note is that the loan (i) is and shall be deemed made under, governed by and construed and enforced in accordance with the internal law of the Commonwealth of Pennsylvania, except to the extent that the procedural laws of the State of New York shall apply to any action commenced by Payee in pursuit of its remedies hereunder or otherwise, as applicable, and (ii) is and shall be enforceable only in the State Courts of said Commonwealth with an action commenced in the Court of Common Pleas of Allegheny County, and/or in the Federal Courts of said Commonwealth with an action commenced in the United States District Court for the Western District of Pennsylvania, except to the extent that any action commenced by Payee in pursuit of its remedies hereunder or otherwise, shall be enforceable in the State Courts and/or Federal Courts of the State of New York, at Payee’s sole discretion.  Maker hereby waives any claim that Pittsburgh, Pennsylvania is an inconvenient forum and any claim that any action or proceeding arising out of or relating to this Note and commenced in the aforesaid Courts lacks proper venue.

Whenever used, the singular number shall include the plural, the plural the singular, the use of any gender shall be applicable to all genders, the words “Payee” and “Maker” shall be deemed to include the respective successors and assigns of Payee and Maker.

The captions preceding the text of the paragraphs or subparagraphs of this Note are inserted only for convenience of reference and shall not constitute a part of this Note, nor shall they in any way affect its meaning, construction or effect.

[SIGNATURES ON FOLLOWING PAGE]

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IN WITNESS WHEREOF, this Note has been duly signed and delivered by the undersigned at the place and as of the day and year first above written.

	INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limited liability company
WITNESS:	By:	INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation and its sole member
[ILLEGIBLE]		By:	/s/ Valerie Medina
		Name:	Valerie Medina
		Title:	Asst. Secretary

7

STATE OF ILLINOIS	)
	)   SS:
COUNTY OF DUPAGE	)

On this 21^st day of December, A.D., 2004, before me, a Notary Public in and for said State, the undersigned officer, personally appeared Valerie Medina, the Asst. Secretary of INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation and the sole member of INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limited liability company, personally known to me, or proved to me on the basis of satisfactory evidence, to be the person whose name is subscribed to the within instrument and acknowledged that he as such officer, being authorized to do so, executed the foregoing instrument as the Asst. Secretary of INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., in its capacity as the sole member of INLAND WESTERN CORAM PLAZA, L.L.C., for the purposes therein contained, and that by his signature on the instrument, INLAND WESTERN CORAM PLAZA, L.L.C. executed the instrument.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

/s/ Elizabeth Ann Irving
	Notary Public

MY COMMISSION EXPIRES: OFFICIAL SEAL
ELIZABETH ANN IRVING
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 11-14-2008

EX-10.508

Exhibit 10.508

ASSIGNMENT, ASSUMPTION, MODIFICATION AND
RELEASE AGREEMENT

THIS ASSIGNMENT, ASSUMPTION, MODIFICATION AND RELEASE AGREEMENT (hereinafter referred to as this “Agreement”) is made as of the 7th day of December, 2004, by and between INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limited liability company (hereinafter referred to as “Borrower”).  INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation (hereinafter referred to as “Guarantor”), CORAM PROPERTY DEVELOPMENT LLC, a Delaware limited liability company (hereinafter referred to as “Original Borrower”), LOUIS L. CERUZZI, JR. and TERESE CERUZZI, husband and wife (hereinafter collectively referred to as “Original Guarantors”) and SKY BANK (hereinafter referred to as “Lender”).

WITNESSETH:

WHEREAS, Original Borrower executed and delivered to Lender: (i) that certain Building Loan Promissory Note dated June 12, 2003 (hereinafter referred to as the “Building Loan Note”) in the original principal amount of $10,551,190, (ii) that certain Project Loan Promissory Note dated June 12, 2003 (hereinafter referred to as the “Project Loan Note”) in the original principal amount of $761,773 and (iii) that certain Amended and Restated Acquisition Loan Promissory Note dated June 12, 2003 (hereinafter referred to as the “Acquisition Loan Note”) in the original principal amount of $9,447,037; and

WHEREAS, the Building Loan Note, the Project Loan Note and the Acquisition Loan Note are sometimes hereinafter collectively referred to as the “Note” and the loans evidenced by the Note are hereinafter collectively referred to as the “Loan”; and

WHEREAS, the outstanding principal amount of the Loan as of the date hereof is $20,760,000; and

WHEREAS, as security for the Note, Original Borrower executed and delivered to Lender: (i) that certain Building Loan Mortgage and Security Agreement dated as of June 12, 2003 (hereinafter referred to as the “Building Loan Mortgage”), recorded in the Suffolk County Clerk Records Office in Liber M00020598, page 360, and encumbering certain real property and the improvements thereon erected commonly known as Coram Plaza, situate in the Hamlet of Coram, Town of Brookhaven, Suffolk County, New York, all as more particularly described in the Building Loan Mortgage (hereinafter referred to as the “Mortgaged Property”), (ii) that certain Project Loan Mortgage and Security Agreement dated as of June 12, 2003 (hereinafter referred to as the “Project Loan Mortgage”), recorded in the Suffolk County Clerk Records Office in Liber M00020598, page 361 and encumbering the Mortgaged Property and (iii) that certain Amended, Restated and Consolidated Acquisition Loan Mortgage and Security Agreement dated as of June 12, 2003 (hereinafter referred to as the “Acquisition Loan Mortgage”), recorded in the Suffolk County Clerk Records Office in Liber M00020597, page 864 and encumbering the Mortgaged Property; and

WHEREAS, the Building Loan Mortgage, the Project Loan Mortgage and the Acquisition Loan Mortgage are sometimes hereinafter collectively referred to as the “Mortgage”; and

WHEREAS, as additional security for the Note,  Original Borrower executed and delivered to Lender: (i) that certain Building Loan Assignment of Rents, Leases and Lease Guaranty dated as of June 12, 2003 (hereinafter referred to as the “Building Loan Assignment”), recorded in the Suffolk County Clerk Records Office in Liber D         , page          and encumbering the Mortgaged Property, (ii) that certain Project Loan Assignment of Rents, Leases and Lease Guaranty dated as of June 12, 2003 (hereinafter referred to as the “Project Loan Assignment”), recorded in the Suffolk County Clerk Records Office in Liber D00012290, page 506 and encumbering the Mortgaged Property, and (iii) that certain Acquisition Loan Assignment of Rents, Leases and Lease Guaranty dated as of June 12, 2003 (hereinafter referred to as the “Acquisition Loan Assignment”), recorded in the Suffolk County Clerk Records Office in Liber D00012290, page 507 and encumbering the Mortgaged Property; and

WHEREAS, the Building Loan Assignment, the Project Loan Assignment and the Acquisition Loan Assignment are sometimes hereinafter collectively referred to as the “Assignment”; and

WHEREAS, the lien of the Mortgage is further evidenced by UCC-1 Financing Statements from Original Borrower to Lender (hereinafter collectively referred to as the “Financing Statements”); and

WHEREAS, Lender and Original Borrower entered into those three (3) certain Loan Agreements dated as of June 12, 2003 and evidencing the Loan (sometimes hereinafter collectively referred to as the “Loan Agreement”); and

WHEREAS, Original Guarantors executed and delivered to Lender: (i) that certain Guaranty and Suretyship Agreement dated as of June 12, 2003 (the “Payment Guaranty”) and (ii) that certain Completion Guaranty dated as of June 12, 2003 (the “Completion Guaranty”); and

WHEREAS, Original Borrower and Original Guarantors executed and delivered to Lender that certain Environmental Indemnity Agreement dated as of June 12, 2003 (hereinafter referred to as the “Environmental Indemnity”); and

WHEREAS, the Mortgage, the Assignment and the Financing Statements are hereinafter collectively referred to as the “Loan Documents”; and

WHEREAS, Borrower desires to amend and restate the Note and to substitute in lieu thereof: (i) that certain Amended and Restated Building Loan Promissory Note of even date herewith in the amount of $10,551,190 (hereinafter referred to as the “Restated Building Loan Note”), (ii) that certain Amended and Restated Project Loan Promissory Note of even date herewith in the amount of $761,773 (hereinafter referred to as the “Restated Project Loan Note”) and (iii) that certain Amended and Restated Acquisition Loan Promissory Note of even date

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herewith in the amount of $9,447,037 (hereinafter referred to as the “Restated Acquisition Loan Note”); and

WHEREAS, the Restated Building Loan Note, the Restated Project Loan Note and the Restated Acquisition Loan Note are sometimes hereinafter collectively referred to as the “Restated Note”); and

WHEREAS, Guarantor has executed and delivered to Lender that certain Guaranty Agreement of even date herewith (the “New Guaranty”) pursuant to which Guarantor guaranteed Borrower’s payment of all amounts due and owing under the Restated Note and the Loan Documents; and

WHEREAS, Original Borrower desires to: (i) assign all of its rights, title and interest in and to the Loan and all of its rights, liabilities, duties and obligations under the Loan Documents and the Environmental Indemnity to Borrower and (ii) be released from all such liabilities, duties and obligations; and

WHEREAS, Borrower desires to assume all of Original Borrower’s liabilities, duties and obligations under the Loan Documents and the Environmental Indemnity; and

WHEREAS, Guarantor desires to assume all of Original Guarantors’ liabilities, duties and obligations under the Environmental Indemnity; and

WHEREAS, Lender has: (i) consented to Original Borrower’s assignment of the Loan and all of its rights, liabilities, duties and obligations under the Loan Documents and the Environmental Indemnity to Borrower, (ii) consented to Borrower’s assumption of all of Original Borrower’s liabilities, duties and obligations under the Loan Documents and the Environmental Indemnity, (iii) agreed to release Original Borrower from such liabilities, duties and obligations, (iv) consented to Guarantor’s assumption of Original Guarantors’ liabilities, duties and obligations under the Environmental Indemnity and (v) agreed to release Original Guarantors from all liabilities, duties and obligations under the Environmental Indemnity, the Payment Guaranty and the Completion Guaranty.

NOW THEREFORE, for good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

1.Preambles.  The foregoing preambles are incorporated herein by reference.

2.Assignment. Original Borrower hereby assigns and transfers to Borrower, from and after the date hereof, all of Original Borrower’s rights, title and interest in and to the Loan and all of Original Borrower’s rights, liabilities, duties and obligations under the Loan Documents and the Environmental Indemnity, all as modified hereunder.  Original Guarantors hereby assign and transfer to Guarantor, from and after the date hereof, all of Original Guarantors’ rights, liabilities, duties and obligations under the Environmental Indemnity.

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3.Assumption.  Borrower hereby: (i) accepts the assignment from Original Borrower, (ii) assumes, from and after the date hereof, all of Original Borrower’s liabilities, duties and obligations under the Loan Documents and the Environmental Indemnity, all as modified hereunder, and (iii) agrees to fully and faithfully perform, for the benefit of Lender and as of the date hereof, all of the duties and obligations of Original Borrower under the Loan Documents and the Environmental Indemnity, all as modified hereunder, to the extent and degree as if Borrower had been the original mortgagor under the Mortgage and the original assignor, debtor or other respective obligor under the other Loan Documents and the Environmental Indemnity.  It is understood and agreed that Borrower is not and shall not be responsible for liabilities, duties and obligations under the Loan Documents and the Environmental Indemnity, which, pursuant to the terms of the Loan Documents, were to be performed prior to the date hereof, or which arise out of events which occurred prior to the date hereof.

Guarantor hereby: (i) accepts the assignment from Original Guarantors, (ii) assumes, from and after the date hereof, all of Original Guarantors’ liabilities, duties and obligations under the Environmental Indemnity and (iii) agrees to fully and faithfully perform, for the benefit of Lender and as of the date hereof, all of the liabilities, duties and obligations of Original Guarantors under the Environmental Indemnity, to the extent and degree as if Guarantor had been the original indemnitor under the Environmental Indemnity.  It is understood and agreed that Guarantor is not and shall not be responsible for liabilities, duties and obligations under the Environmental Indemnity, which, pursuant to the terms thereof, were to be performed prior to the date hereof, or which arise out of events which occurred prior to the date hereof.

4.Release.  Lender hereby fully and forever releases Original Borrower, as of the date hereof, from all of Original Borrower’s liabilities, duties and obligations under the Loan Documents and the Environmental Indemnity, which pursuant to the terms of the Loan Documents and the Environmental Indemnity are to be performed on or after the date hereof, or which arise out of events which occur on or after the date hereof.  It is understood and agreed that Original Borrower is not and shall not be released from liabilities, duties and obligations under Paragraph 5 of the Mortgage and under the Environmental Indemnity which, pursuant to the terms of the Loan Documents and the Environmental Indemnity, survive repayment of the Loan, assumption of the Loan or transfer of the Mortgaged Property.

Lender hereby fully and forever releases Original Guarantors, as of the date hereof, from all of Original Guarantors’ liabilities, duties and obligations under the Environmental Indemnity which, pursuant to the terms thereof, are to be performed on or after the date hereof, or which arise out of events which occur on or after the date hereof.  It is understood and agreed that Original Guarantors are not and shall not be released from liabilities, duties and obligations under the Environmental Indemnity which, pursuant to the terms thereof, survive repayment of the Loan, assumption of the Loan or transfer of the Mortgaged Property.

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5.Termination of Loan Agreement.  Lender and Original Borrower hereby agree that the Loan Agreement and all of the parties’ respective rights, duties, liabilities and obligations thereunder are hereby terminated and shall be null and void and of no further force and effect.

6.Termination of Payment Guaranty and Completion Guaranty.  Lender and Original Guarantors hereby agree that the Payment Guaranty and the Completion Guaranty and all of the parties’ respective rights, duties, liabilities and obligations thereunder are hereby terminated and shall be null and void and of no further force and effect.

7.Modification of Loan Documents.

A.References to Note.  The Building Loan Mortgage and the Building Loan Assignment are hereby modified and amended so that all references therein to the term “Note” shall mean the Restated Building Loan Note instead of the Building Loan Note.  The Project Loan Mortgage and the Project Loan Assignment are hereby modified and amended so that all references therein to the term “Note” shall mean the Restated Project Loan Note instead of the Project Loan Note.  The Acquisition Loan Mortgage and the Acquisition Loan Assignment are hereby modified and amended so that all references therein to the term “Note” shall mean the Restated Acquisition Loan Note instead of the Acquisition Loan Note.  In addition, the Mortgage is hereby further amended so that all references therein to the term “Other Facility Notes” shall mean the respective Restated Notes.  The Environmental Indemnity is hereby modified and amended so that all references therein to the term “Note” shall mean the Restated Note instead of the Note.

B.References to Borrower.  The Mortgage, the Assignment and the Environmental Indemnity are hereby modified and amended so that all respective references therein to the terms Borrower, Mortgagor, Assignor and any other respective term for the obligor thereunder shall mean Borrower, as defined in this Agreement.

C.References to Loan Documents.  The Mortgage, the Assignment and the Environmental Indemnity are hereby modified and amended so that all references therein to those Loan Documents shall mean those documents as modified by this Agreement.

D.Borrower’s Address.  The Loan Documents are hereby modified and amended by deleting all references therein to Original Borrower’s address and substituting the following address for Borrower in lieu thereof:

2901 Butterfield Road

Oak Brook, Illinois 60523

Attention:  Steven Grimes,

Principal Financial Officer

E.References to Loan Agreement.  The Mortgage and the Assignment are hereby modified and amended by deleting all references therein to the Loan Agreement.

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8.Full Force and Effect.  The Mortgage, the Assignment and the Environmental Indemnity, as specifically assigned, assumed and modified hereby, shall remain otherwise unaffected and in full force and effect and, except as specifically set forth herein, this Agreement shall not limit, waive or modify any of Lender’s rights or Borrower’s liabilities, duties and obligations thereunder.

9.Declaration of No Set-Offs.  As of the date hereof, Original Borrower and Borrower hereby certify that there are no set-offs, claims or defenses of any kind or nature, which they have or may have against Lender that would reduce any of Borrower’s liabilities, duties and obligations under the Loan Documents.

10.Borrower’s Affirmation and Certification.  Borrower hereby affirms each and every one of Borrower’s liabilities, obligations and duties under the Loan Documents, all as assigned, assumed and modified hereby, and hereby agrees, acknowledges and certifies to Lender: (i) that Borrower is authorized and empowered to execute, acknowledge and deliver this Agreement; (ii) that this Agreement, the Restated Note and all of the Loan Documents constitute the valid and binding obligations of Borrower, legally enforceable in accordance with their respective terms; (iii) that all of the representations and warranties set forth in the Loan Documents are hereby adopted by Borrower as its own (except for representations and warranties relating solely to Original Borrower), are and shall be the representations and warranties of Borrower to the extent and degree as if Borrower had been the original maker of such representations and warranties, and are true and correct in all material respects on and as of the date hereof; and (iv) that the execution and delivery of this Agreement by Borrower will not, to the best of Borrower’s knowledge, information and belief, result in a conflict or be in conflict with, or constitute a default under any instrument, document, decree, order, statute, rule or governmental regulation applicable to Borrower.

11.Guarantor’s Affirmation and Certification.  Guarantor hereby affirms each and every one of Guarantor’s liabilities, obligations and duties under the Environmental Indemnity, all as assigned, assumed and modified hereby, and hereby agrees, acknowledges and certifies to Lender: (i) that Guarantor is authorized and empowered to executed, acknowledge and deliver the New Guaranty and this Agreement, (ii) that, the New Guaranty, this Agreement and the Environmental Indemnity constitute the valid and binding obligations of Guarantor, legally enforceable in accordance with their respective terms and (iii) that the execution and delivery of this Agreement by Guarantor will not, to the best of Guarantor’s knowledge, information and belief, result in a conflict or be in conflict with, or constitute a default under any instrument, document, decree, order, statute, rule or governmental regulation applicable to Guarantor.

12.Fees and Charges.  Borrower shall pay or cause to be paid to Lender, contemporaneously with the execution hereof, such fees and charges as may be required in connection with the transaction evidenced hereby, including without limitation: (i) an assumption fee in the amount of $12,500, (ii) any fees or premiums due in connection with the issuance of a substitute title policy in form and substance satisfactory to Lender and insuring the lien of the Mortgage, (iii) attorneys’ fees for Lender’s counsel, and (iv) recording and notary fees.

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13.Successors and Assigns.  This Agreement and the terms and conditions hereof, shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns.

14.Lien Priority.  Nothing in this Agreement shall alter the lien priority created by the Mortgage.

15.Applicable Law.  This Agreement (i) is and shall be deemed made under, governed by and construed and enforced in accordance with the internal law of the Commonwealth of Pennsylvania, except to the extent that the procedural laws of the State of New York shall apply to any action commenced by Lender in pursuit of its remedies hereunder or otherwise, (ii) is and shall be enforceable only in the State Courts of said Commonwealth with an action commenced in the Court of Common Pleas of Allegheny County, and/or in the Federal Courts of said Commonwealth with an action commenced in the United States District Court for the Western District of Pennsylvania, except to the extent that any action commenced by Lender in pursuit of its remedies hereunder or otherwise shall be enforceable in the State Courts and/or Federal Courts of the State of New York.

16.Modifications.  This Agreement may not be changed, modified or amended, in whole or in part, except in writing, signed by all parties.

17.Captions.  The captions preceding the text of the paragraphs of this Agreement are inserted only for convenience of reference and shall not constitute a part of this Agreement, nor shall they in any way affect its meaning, construction or effect.

18.Counterparts.  This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

19.Note to Recorder.  The Suffolk County Clerk is hereby requested and directed to note the recording of this Agreement in the margins of the Mortgages and the Assignments described in the recitals of this Agreement.

[SIGNATURES SET FORTH ON THE FOLLOWING PAGE]

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IN WITNESS WHEREOF, this Agreement has been duly signed and delivered by the undersigned as of the day and year first above written.

	LENDER:
WITNESS:	SKY BANK
/s/ [ILLEGIBLE]	By:		/s/ John D. Fetsko
			John D. Fetsko, Senior Vice President
	BORROWER:
	INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limited liability company
WITNESS:	By:			INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation and its sole member
/s/ [ILLEGIBLE]				By:		/s/ Valerie Medina
				Name:				Valerie Medina
				Title:			Asst. Secretary
	GUARANTOR:
WITNESS:	INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation
/s/ [ILLEGIBLE]	By:		/s/ Valerie Medina
	Name:				Valerie Medina
	Title:			Asst. Secretary
	ORIGINAL BORROWER:
WITNESS:	CORAM PROPERTY DEVELOPMENT LLC, a Delaware limited liability company
/s/ [ILLEGIBLE]	By:	/s/  Louis L. Ceruzzi, Jr.
		Louis L. Ceruzzi, Jr., President
WITNESS:	ORIGINAL GUARANTORS:
/s/ [ILLEGIBLE]	/s/  Louis L. Ceruzzi, Jr.
	Louis L. Ceruzzi, Jr.
/s/ [ILLEGIBLE]	/s/ Terese Ceruzzi
	Terese Ceruzzi

8

STATE OF ILLINOIS	)
	)   SS:
COUNTY OF DUPAGE	)

On this 21^st day of December, A.D., 2004, before me, a Notary Public in and for said State, the undersigned officer, personally appeared Valerie Medina, the Asst. Secretary of INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation and the sole member of INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limited liability company, known to me, or proved to me on the basis of satisfactory evidence, to be the person whose name is subscribed to the within instrument and acknowledged that he as such officer, being authorized to do so, executed the foregoing instrument as the Asst. Secretary of INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., in its capacity as the sole member of INLAND WESTERN CORAM PLAZA, L.L.C., for the purposes therein contained, and that by his signature on the instrument, INLAND WESTERN CORAM PLAZA, L.L.C. executed the instrument.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

/s/ Elizabeth Ann Irving
	Notary Public

MY COMMISSION EXPIRES: OFFICIAL SEAL
ELIZABETH ANN IRVING
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 11-14-2008

STATE OF ILLINOIS	)
	)   SS:
COUNTY OF DUPAGE	)

On this 21^st day of December, A.D., 2004, before me, a Notary Public in and for said State, the undersigned officer, personally appeared Valerie Medina, the Asst. Secretary of INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation, personally known to me, or proved to me on the basis of satisfactory evidence, to be the person whose name is subscribed to the within instrument and acknowledged that he as such officer, being authorized to do so, executed the foregoing instrument as the Asst. Secretary of INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., for the purposes therein contained, and that by his signature on the instrument, INLAND WESTERN RETAIL REAL ESTATE TRUST, INC. executed the instrument.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

/s/ Elizabeth Ann Irving
	Notary Public

MY COMMISSION EXPIRES: OFFICIAL SEAL
ELIZABETH ANN IRVING
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 11-14-2008

STATE OF CONNECTICUT	)
	)   SS:
COUNTY OF FAIRFIELD	)

On this 23 day of December, A.D., 2004, before me, a Notary Public in and for said State, the undersigned officer, personally appeared LOUIS L. CERUZZI, JR., the President of CORAM PROPERTY DEVELOPMENT LLC, a Delaware limited liability company, personally known to me, or proved to me on the basis of satisfactory evidence, to be the person whose name is subscribed to the within instrument and acknowledged that he assuch officer, being authorized to do so, executed the foregoing instrument as the President of CORAM PROPERTY DEVELOPMENT LLC, for the purposes therein contained, and that by his signature on the instrument, CORAM PROPERTY DEVELOPMENT LLC executed the instrument.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

/s/ Melany Rizzo
	Notary Public

MY COMMISSION EXPIRES: MELANY RIZZO
NOTARY PUBLIC
MY COMMISSION EXPIRES APR. 30, 2005

COMMONWEALTH OF PENNSYLVANIA	)
	)   SS:
COUNTY OF ALLEGHENY	)

On this 22^nd day of December, A.D., 2004, before me, a Notary Public in and for said State, the undersigned officer, personally appeared JOHN D. FETSKO, a Senior Vice President of SKY BANK, personally known to me or proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged that he executed the same as a Senior Vice President of SKY BANK for the purposes therein contained, and that by his signature on the instrument,  SKY BANK executed the instrument.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

/s/ Paul R. Ketter, Jr.
	Notary Public

MY COMMISSION EXPIRES:

Notarial Seal
Paul R. Ketter, Jr., Notary Public
City of Pittsburgh, Allegheny County
My Commission Expires Aug. 10, 2008
Member, Pennsylvania Association Of Notaries

STATE OF CONNECTICUT	)
	)   SS:
COUNTY OF FAIRFIELD	)

On this 23 day of December, A.D., 2004, before me, a Notary Public in and for said State, the undersigned officer, personally appeared LOUIS L. CERUZZI, JR., personally known to me or proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged that he executed the same for the purposes herein contained.

IN WITNESS WHEREOF, I have hereunto set my hand and official seal.

/s/ Melany Rizzo
	Notary Public

MY COMMISSION EXPIRES:

MELANY RIZZO
NOTARY PUBLIC
MY COMMISSION EXPIRES APR. 30, 2005

STATE OF CONNECTICUT	)
	)   SS:
COUNTY OF FAIRFIELD	)

On this 23^rd day of December, A.D., 2004, before me, a Notary Public in and for said State, the undersigned officer, personally appeared TERESE CERUZZI, personally known to me or proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged that she executed the same for the purposes herein contained.

IN WITNESS WHEREOF, I have hereunto set my hand and official seal.

/s/ Melany Rizzo
	Notary Public

MY COMMISSION EXPIRES:

MELANY RIZZO
NOTARY PUBLIC
MY COMMISSION EXPIRES APR. 30, 2005

EX-10.509

Exhibit 10.509

INTERIM SECURED PROMISSORY NOTE
LOAN NO. 754183

$48,427.76 January 26, 2005

1.FOR VALUE RECEIVED, INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limited liability company, as “Borrower” (“Borrower” to be construed as “Borrowers” if the context so requires), hereby promises to pay to the order of PRINCIPAL LIFE INSURANCE COMPANY, an Iowa corporation (as “Lender”), having a principal place of business and post office address at c/o Principal Real Estate Investors, LLC, 801 Grand Avenue, Des Moines, Iowa 50392-1450, or at such other place as Lender may designate, the principal sum of Forty Eight Thousand Four Hundred Twenty Seven and 76/100 Dollars ($48,427.76) (the “Loan Amount”) or so much thereof as shall from time to time have been advanced, together with interest on the unpaid balance of said sum from the Closing Date, at the rate set forth in the Consolidated Note (hereinafter defined).

Reference is made to that certain Consolidated, Amended and Restated Secured Promissory Note (the “Consolidated Note”) of even date herewith in the principal amount of $20,755,300.00 executed by Borrower and payable to the order to Lender.  Capitalized terms not otherwise defined herein shall have the same meaning as set forth in the Consolidated Note.  This Note is one of the Existing Notes as defined in the Consolidated Note.  The Loan Amount shall bear interest prior to the Maturity Date at the rate or rates and shall be payable as set forth in the Consolidated Note.  This Note is secured by, inter alia, the Amended, Restated and Consolidated Mortgage and Security Agreement of even date herewith executed by Borrower in favor of Lender and to be recorded in the County Clerk’s Office of Suffolk County, New York.

2.No privilege is reserved by Borrower to prepay any principal of this Note prior to the Maturity Date, except in strict accordance with the provisions of the Loan Agreement.

3.Borrower agrees that if Lender accelerates the whole or any part of the principal sum evidenced hereby, after the occurrence of an Event of Default or applies any proceeds pursuant to the provisions of the Loan Documents, Borrower waives any right to prepay said principal sum in whole or in part without premium and agrees to pay, as yield maintenance protection and not as a penalty, the Make Whole Premium.

Notwithstanding the above, in the event any proceeds from a casualty or Taking of the Premises are applied to reduce the principal balance hereof, such reduction shall be made without a Make Whole Premium, provided no Event of Default then exists under the Loan Documents.

4.If any payment of principal, interest, Make Whole Premium, or other Indebtedness is not made when due, damages will be incurred by Lender, including additional expense in handling overdue payments, the amount of which is difficult and impractical to ascertain.  Borrower therefor agrees to pay, upon demand, the sum of four cents ($.04) for each one dollar ($1.00) of

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each said payment which becomes overdue (“Late Charge”) as a reasonable estimate of the amount of said damages, subject, however, to the limitations contained in paragraph 6 hereof.

Notwithstanding anything hereinabove to the contrary, the Late Charge assessed on any amount due on the Maturity Date but not then paid, whether or not by acceleration, shall not be four cents for each one dollar as described above, but shall instead be a sum equal to the interest which would have accrued on the principal balance then outstanding from the date the payment is made to the end of the month in which the Maturity Date occurs.  Such Late Charge shall be in addition to interest otherwise accruing under this Note.

5.If any Event of Default has occurred and is continuing under the Loan Documents, the entire principal balance of the Loan, interest then accrued, and Make Whole Premium, and all other Indebtedness whether or not otherwise then due, shall at the option of Lender, become immediately due and payable without demand or notice, and whether or not Lender has exercised said option, interest shall accrue on the entire principal balance, interest then accrued, Make Whole Premium and any other Indebtedness then due, at a rate equal to the Default Rate until fully paid

6.Notwithstanding anything herein or in any of the other Loan Documents to the contrary, no provision contained herein or therein which purports to obligate Borrower to pay any amount of interest or any fees, costs or expenses which are in excess of the maximum permitted by applicable law, shall be effective to the extent it calls for the payment of any interest or other amount in excess of such maximum.  All agreements between Borrower and Lender, whether now existing or hereafter arising and whether written or oral, are hereby limited so that in no contingency, whether by reason of demand for payment or acceleration of the maturity hereof or otherwise, shall the interest contracted for, charged or received by Lender exceed the maximum amount permissible under applicable law.  If, from any circumstance whatsoever, interest would otherwise be payable to Lender in excess of the maximum lawful amount, the interest payable to Lender shall be reduced to the maximum amount permitted under applicable law; and if from any circumstance Lender shall ever receive anything of value deemed interest by applicable law in excess of the maximum lawful amount, an amount equal to any excessive interest shall, at the option of Lender, be refunded to Borrower or be applied to the reduction of the principal hereof, without a Make Whole Premium and not to the payment of interest or, if such excessive interest exceeds the unpaid balance of principal hereof such excess shall be refunded to Borrower.  This paragraph shall control all agreements between Borrower and Lender.

7.Borrower and any endorsers or guarantors waive presentment, protest and demand, notice of protest, demand and dishonor and nonpayment, and agree the Maturity Date of this Note or any installment may be extended without affecting any liability hereunder, and further promise to pay all reasonable costs and expenses, including but not limited to, reasonable attorney’s fees incurred by Lender in connection with any default or in any proceeding to interpret and/or enforce any provision of the Loan Documents.  No release of Borrower from liability hereunder shall release any other maker, endorser or guarantor hereof.

8.This Note is secured by the Loan Documents creating among other things legal and valid encumbrances on and an assignment of all of Borrower’s interest in any Leases of the Premises

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located in the county of Suffolk, state of New York.  Capitalized terms used herein and not otherwise defined shall have those meanings given to them in the Loan Documents.  In no event shall such documents be construed inconsistently with the terms of this Note, and in the event of any discrepancy between any such documents and this Note, the terms hereof shall govern.  The proceeds of this Note are to be used for business, commercial, investment or other similar purposes, and no portion thereof will be used for any personal, family or household use.  This Note shall be governed by and construed in accordance with the laws of the State where the Premises is located, without regard to its conflict of law principles.

9.Notwithstanding any provision to the contrary in this Note or the Loan Documents and except as otherwise provided for below, the liability of Borrower under the Loan Documents shall be limited to the interest of Borrower in the Premises and the Rents.  In the event of foreclosure of the liens evidenced by the Loan Documents, no judgment for any deficiency upon the Indebtedness evidenced by the Loan Documents shall be sought or obtained by Lender against Borrower.  Nothing herein shall in any manner limit or impair (i) the lien or enforcement of the Loan Documents pursuant to the terms thereof or (ii) the obligations of any indemnitor or guarantor, if any.

Notwithstanding any provision hereinabove to the contrary, Borrower shall be personally liable to Lender for:

(a)any loss or damage to Lender arising from (i) the sale or forfeiture of the Premises resulting from Borrower’s failure to pay any of the taxes, assessments or charges specified in the Loan Documents or (ii) Borrower’s failure to insure the Premises in compliance with the provisions of the Loan Documents;

(b)any event or circumstance for which Borrower indemnifies Lender under the Environmental Indemnity;

(c)nonpayment of taxes, assessments, insurance premiums and utilities for the Premises and any penalty or late charge associated with nonpayment thereof;

(d)material failure to manage, operate, and maintain the Premises in a commercially reasonable manner for similar property types in the surrounding geographic area;

(e)any sums expended by Lender in fulfilling the obligations of Borrower as lessor under any Lease of the Premises prior to a sale of the Premises pursuant to foreclosure or power of sale, a bona fide sale (permitted by the terms of paragraph 2(f) of the Mortgage (it being agreed that “Mortgage” as used herein shall be construed to mean “mortgage” or “deed of trust” or “trust deed” as the context so requires) or consented to in writing by Lender) to an unrelated third party or upon conveyance to Lender of the Premises by a deed acceptable to Lender in form and content (each of which shall be referred to as a “Sale” for purposes of this paragraph) or expended by Lender after a Sale of the Premises for obligations of Borrower which arose prior to a Sale of the Premises;

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Borrower’s personal liability for items specified in (c), (d) and (e) above shall be limited to the amount of rents, issues, proceeds and profits from the Premises (“Rents and Profits”) received by Borrower for the twelve (12) months preceding an Event of Default and thereafter; but less any such Rents and Profits applied to (A) payment of principal, interest and other charges when due under the Loan Documents, or (B) payment of expenses for the operation, maintenance, taxes, assessments, utility charges and insurance of the Premises including sufficient reserves for the same or replacements or renewals thereof (“Operation Expense(s)”) provided that (x) Borrower has furnished Lender with evidence reasonably satisfactory to Lender of the Operation Expenses and payment thereof, and (y) any payments to parties related to Borrower shall be considered an Operation Expense only to the extent that the amount expended for the Operation Expense does not exceed the then current market rate for such Operation Expense.

(f)any rents or other income regardless of type or source of payment or other considerations in lieu thereof (including, but not limited to, common area maintenance charges, lease termination payments, refunds of any type, prepayment of rents, settlements of litigation, or settlements of past due rents) from the Premises which Borrower has received or will receive after an Event of Default under the Loan Documents which are not applied to (A) payment of principal, interest and other charges when due under the Loan Documents or (B) payment of Operation Expenses provided that (x) Borrower has furnished Lender with evidence reasonably satisfactory to Lender of the Operation Expenses and payment thereof, and (y) any payments to parties related to Borrower shall be considered an Operation Expense only to the extent that the amount expended for the Operation Expense does not exceed the then current market rate for such Operation Expense;

(g)any security deposits of tenants not otherwise applied in accordance with the terms of the Lease(s), together with any interest on such security deposits required by law or the leases, not turned over to Lender upon conveyance of the Premises to Lender pursuant to foreclosure or power of sale or by a deed acceptable to Lender in form and content;

(h)misapplication or misappropriation of tax reserve accounts, tenant improvement reserve accounts, security deposits, prepaid rents or other similar sums paid to or held by Borrower or any other entity or person in connection with the operation of the Premises;

(i)any insurance or condemnation proceeds or other similar funds or payments applied by Borrower in a manner other than as expressly provided in the Loan Documents;

(j)any loss or damage to Lender arising from any fraud or willful misrepresentation by or on behalf of Borrower, Interest Owner or any guarantor regarding the Premises, the making or delivery of any of the Loan Documents or in any materials or

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information provided by or on behalf of Borrower, Interest Owner or guarantor, if any, in connection with the Loan; and

(k)any loss or damage to Lender arising from the existence of the sanitary sewer lines or any easement relating thereto (either actual or implied) located under the building constructed on the Land.

Notwithstanding anything contained in paragraphs 9(a)(i) and 9(c) hereinabove as it relates solely to taxes, assessments and insurance premiums, to the extent Lender is impounding for taxes, assessments and insurance premiums in accordance with the Loan Documents and Borrower has fully complied with all terms and conditions of the Loan Documents relating to impounding for the same, then Borrower shall not be personally liable for Lender’ s failure to apply any of said impound amounts held by Lender in accordance with the Loan Documents.

Notwithstanding anything to the contrary in the Loan Documents, the limitation on liability contained in the first paragraph of this paragraph 9 SHALL BECOME NULL AND VOID and shall be of no further force and effect in the event of any breach or violation of paragraph 2(f) (due on sale or encumbrance) of the Mortgage, other than (i) the filing of a nonmaterial mechanic’s lien affecting the Premises or a mechanic’s lien affecting the Premises for which Borrower has complied with the provisions of paragraph l(e) of the Mortgage, or (ii) the granting of any utility or other nonmaterial easement or servitude burdening the Premises, or (iii) any transfer or encumbrance of a nonmaterial economic interest in the Premises not otherwise set forth in (i) or (ii).

10.If more than one, all obligations and agreements of Borrower are joint and several.

11.This Note may not be changed or terminated orally, but only by an agreement in writing and signed by the party against whom enforcement of any waiver, change, modification or discharge is sought.  All of the rights, privileges and obligations hereunder shall inure to the benefit of the heirs, successors and assigns of Lender and shall bind the heirs and permitted successors and assigns of Borrower.

12.If any provision of this Note shall, for any reason, be held to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision hereof, but this Note shall be construed as if such invalid or unenforceable provision had never been contained herein.

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

14.AFTER CONSULTING WITH COUNSEL AND CAREFUL CONSIDERATION, BORROWER AND LENDER (BY ITS ACCEPTANCE HEREOF) KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION ARISING OUT OF THIS NOTE OR ANY OTHER INSTRUMENT OR AGREEMENT BY WHICH THIS

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NOTE IS, OR MAY HEREAFTER BE, SECURED, OR OUT OF ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (ORAL OR WRITTEN), OR ACTIONS OF BORROWER OR LENDER. THIS WAIVER IS A MATERIAL INDUCEMENT TO THE LENDER’S ACCEPTANCE OF THIS NOTE.

15.Borrower consents to the personal jurisdiction over Borrower by any federal or state court situated in the State of New York and consents to the laying of venue in any jurisdiction over Borrower by any federal or state court situated in the State of New York.  Borrower irrevocably appoints Gail Gress, having an address c/o Inland Mortgage Corporation, 2901 Butterfield Road, Oak Brook Illinois 60523, as Borrower’s agent for receipt of service of process on Borrower’s behalf in connection with any suit, writ, attachment, execution or discovery of supplementary proceedings in connection with the enforcement of this Note (collectively, an “Action”).  Service in any Action and any notice of sale or other notices required under Article 14 of the New York Real Property Actions and Proceedings Law shall be effected by any means permitted by the court in which any Action is filed, with a copy sent by certified mail, return receipt requested, to Borrower at its address as hereinbefore stated or at such other address as shall be designated from time to time by Borrower.  Borrower or its agent for receipt of process may designate a change of address or may substitute another agent for the service of process who shall be acceptable to Lender in its sole but reasonably discretion, by written notice to Lender by certified mail, return receipt requested, at least ten (10) days before such change of address is to become effective.  In the event of any inconsistencies between the terms and conditions of the foregoing paragraphs and this paragraph, the terms of this paragraph shall control and be binding.

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

INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limited liability company
By:	INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation, Member
	By:	/s/ Valerie Medina
		Name:		Valerie Medina
		Title:	Asst. Secretary

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EX-10.510

Exhibit 10.510

CONSOLIDATED, AMENDED AND RESTATED
SECURED PROMISSORY NOTE
LOAN NO. 754183

$20,755,300.00 January 26, 2005

THIS CONSOLIDATED, AMENDED AND RESTATED NOTE (this “Consolidated Note”) is made as of this          day of January, 2005, by and between, INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limited liability company, as “Borrower” (“Borrower” to be construed as “Borrowers” if the context so requires), having its principal place of business and post office address at 2901 Butterfield Road, Oak Brook, Illinois 60523, and PRINCIPAL LIFE INSURANCE COMPANY, an Iowa corporation (“Lender”), having a principal place of business and post office address at c/o Principal Real Estate Investors, LLC, 801 Grand Avenue, Des Moines, Iowa 50392-1450, or at such other place as Lender may designate.

RECITALS:

A.Lender is now the lawful owner and holder of (i) that certain Amended, Restated Acquisition Loan Promissory Note dated December 7, 2004 in the principal amount of $9,447,037.00, (ii) that certain Amended and Restated Project Loan Promissory Note dated December 7, 2004 in the principal amount of $761,773.00, (iii) that certain Amended and Restated Building Loan Promissory Note dated December 7, 2004 in the principal amount of $10,551,190.00, and (iv) that certain Interim Secured Promissory Note of even date herewith in the principal amount of $48,427.76 (collectively, the “Existing Notes”).

B.The Existing Notes are secured by (i) that certain Amended, Restated and Consolidated Acquisition Loan Mortgage and Security Agreement dated June 12, 2003 and recorded in the Clerk’s Office of Suffolk County, New York in Liber M00020597, page 864, (ii) that certain Project Loan Mortgage and Security Agreement dated June 12, 2003 and recorded in the County Clerk’s Office of Suffolk County, New York in Liber M00020598, page 361, (iii) that certain Building Loan Mortgage and Security Agreement dated June 12, 2003 and recorded in the County Clerk’s Office of Suffolk County, New York in Liber M00020598, page 360, (iv) that certain Assignment, Assumption, Modification and Release Agreement dated December 7, 2004 and recorded in the County Clerk’s Office of Suffolk County, New York, executed by and between Borrower and Sky Bank, and (v) that certain Amended, Restated and Consolidated Mortgage and Security Agreement of even date herewith to be recorded in the Suffolk County Clerk’s Office (the “Existing Mortgages”).

C.There is, as of the date hereof, due, owing and unpaid under the Existing Notes the aggregate principal amount of $20,755,300, together with interest to accrue thereon.

D.Lender and Borrower have agreed to consolidate amend and restate the Existing Notes in their entirety, in the manner hereinafter set forth.

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E.Borrower represents and warrants to Lender that:

(i)There is, as of the date hereof, due and owing under the Existing Notes, the aggregate principal sum of $20,755,300.00, together with interest to accrue thereon and any other costs provided for therein.

(ii)There are no defenses, offsets or counterclaims of any nature against the Existing Notes or the other Loan Documents (defined below), or any sums due thereunder.

(iii)The execution and delivery of this Consolidated Note does not and will not violate the terms of any agreement, indenture or instrument affecting Borrower or any law of any government authority purporting to have jurisdiction over Borrower.

(iv)The Existing Notes are in full force and effect and Borrower agrees and promises to pay the indebtedness evidenced by the Existing Notes in accordance with the terms and provisions of the Existing Notes, as hereby amended and restated in its entirety.

(v)This Consolidated Note docs not (a) create or evidence any new or further principal indebtedness or (b) constitute a novation with respect to the original principal indebtedness evidenced by the Existing Notes.

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto agree that the Existing Notes are hereby consolidated and restated in their entirety as set forth below, so that together they shall hereafter evidence a single indebtedness in the aggregate principal amount of $20,755,300.00, loaned and repayable on the following terms and conditions.

1.FOR VALUE RECEIVED, Borrower hereby promises to pay to the order of Lender, the principal sum of Twenty Million Seven Hundred Fifty Five Thousand Three Hundred and No/100 Dollars ($20,755,300.00) (the “Loan Amount”) or so much thereof as shall from time to time have been advanced, together with interest on the unpaid balance of said sum from January 26, 2005 (the “Closing Date”), at the rate of four and 55/100 percent (4.55%) per annum.

A payment of interest from the Closing Date to and including January 31, 2005 shall be paid on the Closing Date calculated by multiplying the actual number of days elapsed in the period for which interest is being calculated by a daily rate based on the foregoing annual interest rate and a 360-day year.  Thereafter, interest shall be computed on the unpaid balance on the basis of a 360-day year composed of twelve 30-day months.  Beginning on March 1, 2005, interest shall be due and payable in installments of Seventy Eight Thousand Six Hundred Ninety Seven and 18/100 Dollars ($78,697.18), with an installment in a like amount due and payable on the same day of each month thereafter, except that all remaining principal and interest to and including the date of payment and other Indebtedness shall be due and payable on February 1,

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2010 or such earlier date resulting from the acceleration of the Indebtedness by Lender (“Maturity Date”).  All principal and interest shall be paid in lawful money of the United States of America by wire transfer of immediately available funds to Lender at Wells Fargo Bank, Iowa, N.A., 7^th and Walnut Streets, Des Moines, Iowa 50304, for credit to Principal Life Insurance Company, Account No.  3002183449, RE: Loan No.  754183 with reference to Borrower. In the event Borrower fails to make any monthly payment under this Consolidated Note on or before the due date thereof, Borrower agrees to make all subsequent payments by automated clearing house transfer through such bank or financial institution as shall be approved hi writing by Lender, shall be made to an account designated by Lender, and shall be initiated by Lender or shall be made in such other manner as Lender may direct from time to time.  Any other monthly deposits or payments Borrower is required to make to Lender under the terms of the Loan Documents shall be made by the same payment method and on the same date as the installments of interest due under this Consolidated Note.

2.No privilege is reserved by Borrower to prepay any principal of this Consolidated Note prior to the Maturity Date, except in strict accordance with the provisions of the Loan Agreement.

3.Borrower agrees that if Lender accelerates the whole or any part of the principal sum evidenced hereby, after the occurrence of an Event of Default or applies any proceeds pursuant to the provisions of the Loan Documents, Borrower waives any right to prepay said principal sum in whole or in part without premium and agrees to pay, as yield maintenance protection and not as a penalty, the Make Whole Premium.

Notwithstanding the above, in the event any proceeds from a casualty or Taking of the Premises are applied to reduce the principal balance hereof, such reduction shall be made without a Make Whole Premium, provided no Event of Default then exists under the Loan Documents.

4.If any payment of principal, interest, Make Whole Premium, or other Indebtedness is not made when due, damages will be incurred by Lender, including additional expense in handling overdue payments, the amount of which is difficult and impractical to ascertain.  Borrower therefor agrees to pay, upon demand, the sum of four cents ($.04) for each one dollar ($1.00) of each said payment which becomes overdue (“Late Charge”) as a reasonable estimate of the amount of said damages, subject, however, to the limitations contained in paragraph 6 hereof.

Notwithstanding anything hereinabove to the contrary, the Late Charge assessed on any amount due on the Maturity Date but not then paid, whether or not by acceleration, shall not be four cents for each one dollar as described above, but shall instead be a sum equal to the interest which would have accrued on the principal balance then outstanding from the date the payment is made to the end of the month in which the Maturity Date occurs.  Such Late Charge shall be in addition to interest otherwise accruing under this Consolidated Note.

5.If any Event of Default has occurred and is continuing under the Loan Documents, the entire principal balance of the Loan, interest then accrued, and Make Whole Premium, and all

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other Indebtedness whether or not otherwise then due, shall at the option of Lender, become immediately due and payable without demand or notice, and whether or not Lender has exercised said option, interest shall accrue on the entire principal balance, interest then accrued, Make Whole Premium and any other Indebtedness then due, at a rate equal to the Default Rate until fully paid.

6.Notwithstanding anything herein or in any of the other Loan Documents to the contrary, no provision contained herein or therein which purports to obligate Borrower to pay any amount of interest or any fees, costs or expenses which are in excess of the maximum permitted by applicable law, shall be effective to the extent it calls for the payment of any interest or other amount in excess of such maximum.  All agreements between Borrower and Lender, whether now existing or hereafter arising and whether written or oral, are hereby limited so that in no contingency, whether by reason of demand for payment or acceleration of the maturity hereof or otherwise, shall the interest contracted for, charged or received by Lender exceed the maximum amount permissible under applicable law.  If, from any circumstance whatsoever, interest would otherwise be payable to Lender in excess of the maximum lawful amount, the interest payable to Lender shall be reduced to the maximum amount permitted under applicable law; and if from any circumstance Lender shall ever receive anything of value deemed interest by applicable law in excess of the maximum lawful amount, an amount equal to any excessive interest shall, at the option of Lender, be refunded to Borrower or be applied to the reduction of the principal hereof, without a Make Whole Premium and not to the payment of interest or, if such excessive interest exceeds the unpaid balance of principal hereof such excess shall be refunded to Borrower. This paragraph shall control all agreements between Borrower and Lender.

7.Borrower and any endorsers or guarantors waive presentment, protest and demand, notice of protest, demand and dishonor and nonpayment, and agree the Maturity Date of this Consolidated Note or any installment may be extended without affecting any liability hereunder, and further promise to pay all reasonable costs and expenses, including but not limited to, reasonable attorney’s fees incurred by Lender in connection with any default or in any proceeding to interpret and/or enforce any provision of the Loan Documents.  No release of Borrower from liability hereunder shall release any other maker, endorser or guarantor hereof.

8.This Note is secured by the Loan Documents creating among other things legal and valid encumbrances on and an assignment of all of Borrower’s interest in any Leases of the Premises located in the county of Suffolk, state of New York.  Capitalized terms used herein and not otherwise defined shall have those meanings given to them in the Loan Documents. In no event shall such documents be construed inconsistently with the terms of this Consolidated Note, and in the event of any discrepancy between any such documents and this Consolidated Note, the terms hereof shall govern.  The proceeds of this Consolidated Note are to be used for business, commercial, investment or other similar purposes, and no portion thereof will be used for any personal, family or household use.  This Note shall be governed by and construed in accordance with the laws of the State where the Premises is located, without regard to its conflict of law principles.

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9.Notwithstanding any provision to the contrary in this Consolidated Note or the Loan Documents and except as otherwise provided for below, the liability of Borrower under the Loan Documents shall be limited to the interest of Borrower in the Premises and the Rents.  In the event of foreclosure of the liens evidenced by the Loan Documents, no judgment for any deficiency upon the Indebtedness evidenced by the Loan Documents shall be sought or obtained by Lender against Borrower. Nothing herein shall in any manner limit or impair (i) the lien or enforcement of the Loan Documents pursuant to the terms thereof or (ii) the obligations of any indemnitor or guarantor, if any.

Notwithstanding any provision hereinabove to the contrary, Borrower shall be personally liable to Lender for:

(a)any loss or damage to Lender arising from (i) the sale or forfeiture of the Premises resulting from Borrower’s failure to pay any of the taxes, assessments or charges specified in the Loan Documents or (ii) Borrower’s failure to insure the Premises in compliance with the provisions of the Loan Documents;

(b)any event or circumstance for which Borrower indemnifies Lender under the Environmental Indemnity;

(c)nonpayment of taxes, assessments, insurance premiums and utilities for the Premises and any penalty or late charge associated with nonpayment thereof;

(d)material failure to manage, operate, and maintain the Premises in a commercially reasonable manner for similar property types in the surrounding geographic area;

(e)any sums expended by Lender in fulfilling the obligations of Borrower as lessor under any Lease of the Premises prior to a sale of the Premises pursuant to foreclosure or power of sale, a bona fide sale (permitted by the terms of paragraph 2(f) of the Consolidated Mortgage (it being agreed that “Consolidated Mortgage” as used herein shall be construed to mean “mortgage” or “deed of trust” or “trust deed” as the context so requires) or consented to in writing by Lender) to an unrelated third party or upon conveyance to Lender of the Premises by a deed acceptable to Lender in form and content (each of which shall be referred to as a “Sale” for purposes of this paragraph) or expended by Lender after a Sale of the Premises for obligations of Borrower which arose prior to a Sale of the Premises;

Borrower’s personal liability for items specified in (c), (d) and (e) above shall be limited to the amount of rents, issues, proceeds and profits from the Premises (“Rents and Profits”) received by Borrower for the twelve (12) months preceding an Event of Default and thereafter; but less any such Rents and Profits applied to (A) payment of principal, interest and other charges when due under the Loan Documents, or (B) payment of expenses for the operation, maintenance, taxes, assessments, utility charges and insurance of the Premises including sufficient

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reserves for the same or replacements or renewals thereof (“Operation Expense(s)”) provided that (x) Borrower has furnished Lender with evidence reasonably satisfactory to Lender of the Operation Expenses and payment thereof, and (y) any payments to parties related to Borrower shall be considered an Operation Expense only to the extent that the amount expended for the Operation Expense does not exceed the then current market rate for such Operation Expense.

(f)any rents or other income regardless of type or source of payment or other considerations in lieu thereof (including, but not limited to, common area maintenance charges, lease termination payments, refunds of any type, prepayment of rents, settlements of litigation, or settlements of past due rents) from the Premises which Borrower has received or will receive after an Event of Default under the Loan Documents which are not applied to (A) payment of principal, interest and other charges when due under the Loan Documents or (B) payment of Operation Expenses provided that (x) Borrower has furnished Lender with evidence reasonably satisfactory to Lender of the Operation Expenses and payment thereof, and (y) any payments to parties related to Borrower shall be considered an Operation Expense only to the extent that the amount expended for the Operation Expense does not exceed the then current market rate for such Operation Expense;

(g)any security deposits of tenants not otherwise applied in accordance with the terms of the Lease(s), together with any interest on such security deposits required by law or the leases, not turned over to Lender upon conveyance of the Premises to Lender pursuant to foreclosure or power of sale or by a deed acceptable to Lender in form and content;

(h)misapplication or misappropriation of tax reserve accounts, tenant improvement reserve accounts, security deposits, prepaid rents or other similar sums paid to or held by Borrower or any other entity or person in connection with the operation of the Premises;

(i)any insurance or condemnation proceeds or other similar funds or payments applied by Borrower in a manner other than as expressly provided in the Loan Documents;

(j)any loss or damage to Lender arising from any fraud or willful misrepresentation by or on behalf of Borrower, Interest Owner or any guarantor regarding the Premises, the making or delivery of any of the Loan Documents or in any materials or information provided by or on behalf of Borrower, Interest Owner or guarantor, if any, in connection with the Loan; and

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(k)any loss or damage to Lender arising from the existence of the sanitary sewer lines or any easement relating thereto (either actual or implied) located under the building constructed on the Land.

Notwithstanding anything contained in paragraphs 9(a)(i) and 9(c) hereinabove as it relates solely to taxes, assessments and insurance premiums, to the extent Lender is impounding for taxes, assessments and insurance premiums in accordance with the Loan Documents and Borrower has fully complied with all terms and conditions of the Loan Documents relating to impounding for the same, then Borrower shall not be personally liable for Lender’s failure to apply any of said impound amounts held by Lender in accordance with the Loan Documents.

Notwithstanding anything to the contrary in the Loan Documents, the limitation on liability contained in the first paragraph of this paragraph 9 SHALL BECOME NULL AND VOID and shall be of no further force and effect in the event of any breach or violation of paragraph 2(f) (due on sale or encumbrance) of the Consolidated Mortgage, other than (i) the filing of a nonmaterial mechanic’s lien affecting the Premises or a mechanic’s lien affecting the Premises for which Borrower has complied with the provisions of paragraph l(e) of the Consolidated Mortgage, or (ii) the granting of any utility or other nonmaterial easement or servitude burdening the Premises, or (iii) any transfer or encumbrance of a nonmaterial economic interest in the Premises not otherwise set forth in (i) or (ii).

10.If more than one, all obligations and agreements of Borrower are joint and several.

11.This Note may not be changed or terminated orally, but only by an agreement in writing and signed by the party against whom enforcement of any waiver, change, modification or discharge is sought, All of the rights, privileges and obligations hereunder shall inure to the benefit of the heirs, successors and assigns of Lender and shall bind the heirs and permitted successors and assigns of Borrower.

12.If any provision of this Consolidated Note shall, for any reason, be held to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision hereof, but this Consolidated Note shall be construed as if such invalid or unenforceable provision had never been contained herein.

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

14.AFTER CONSULTING WITH COUNSEL AND CAREFUL CONSIDERATION, BORROWER AND LENDER (BY ITS ACCEPTANCE HEREOF) KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION ARISING OUT OF THIS NOTE OR ANY OTHER INSTRUMENT OR AGREEMENT BY WHICH THIS NOTE IS, OR MAY HEREAFTER BE, SECURED, OR OUT OF ANY

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COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (ORAL OR WRITTEN), OR ACTIONS OF BORROWER OR LENDER.  THIS WAIVER IS A MATERIAL INDUCEMENT TO THE LENDER’S ACCEPTANCE OF THIS NOTE.

15.Borrower consents to the personal jurisdiction over Borrower by any federal or state court situated in the State of New York and consents to the laying of venue in any jurisdiction over Borrower by any federal or state court situated in the State of New York. Borrower irrevocably appoints Gail Cress, having an address c/o Inland Mortgage Corporation, 2901 Butterfield Road, Oak Brook Illinois 60523, as Borrower’s agent for receipt of service of process on Borrower’s behalf in connection with any suit, writ, attachment, execution or discovery of supplementary proceedings in connection with the enforcement of this Consolidated Note (collectively, an “Action”).  Service in any Action and any notice of sale or other notices required under Article 14 of the New York Real Property Actions and Proceedings Law shall be effected by any means permitted by the court in which any Action is filed, with a copy sent by certified mail, return receipt requested, to Borrower at its address as hereinbefore stated or at such other address as shall be designated from time to time by Borrower.  Borrower or its agent for receipt of process may designate a change of address or may substitute another agent for the service of process who shall be acceptable to Lender in its sole but reasonably discretion, by written notice to Lender by certified mail, return receipt requested, at least ten (10) days before such change of address is to become effective. In the event of any inconsistencies between the terms and conditions of the foregoing paragraphs and this paragraph, the terms of this paragraph shall control and be binding.

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IN WITNESS WHEREOF, Borrower has caused this Consolidated, Amended and Restated Secured Promissory Note to be duly executed and delivered as of the date first set forth above.

INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limited liability company
By:	INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation, Member
	By:	/s/ Valerie Medina
		Name:		Valerie Medina
		Title:	Asst. Secretary

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EX-10.511

Exhibit 10.511

LOAN AGREEMENT
LOAN NO 754183

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

RECITALS

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

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

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

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

ARTICLE I
CERTAIN DEFINITIONS

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

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

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

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

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

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

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

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

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

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

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

“Governmental Authority” means any national, federal, state, regional or local government, or any other political subdivision of any of the foregoing, in each case with jurisdiction over Borrower, the Premises, or any Person with jurisdiction over Borrower, the Premises exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Taking” has the meaning provided in the Mortgage.

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

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

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

ARTICLE II
GENERAL TERMS

Section 2.1Loan Commitment: Disbursement to Borrower: Prepayment.

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

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

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

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

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

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

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

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

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

(E)Loan Prepayment.

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

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

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

ARTICLE III
REPRESENTATIONS AND WARRANTIES

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

Section 3.1.Representations and Warranties Relating to Borrower.

(A)Organization.

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

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

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

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

(C)Enforceability.  The Loan Documents and Environmental Indemnity constitute the legal, valid and binding obligations of Borrower and the other parties to the Loan Documents and Environmental Indemnity (other than Lender), enforceable against each such party in accordance with their respective terms, except as may be limited by (i) bankruptcy, insolvency, reorganization or other similar laws affecting the rights of creditors generally, and (ii) general principles of equity (regardless of whether considered in a proceeding in equity or at law).  Such Loan Documents and Environmental Indemnity are, as of the date hereof, not subject to any right of rescission, set-off, counterclaim or defense by Borrower or any other party to the Loan Documents and Environmental Indemnity (other than Lender), including the defense of usury, nor will the operation of any of the terms of the Note, the Mortgage, or such other Loan Documents and Environmental Indemnity, or the exercise of any right thereunder, render the Mortgage unenforceable against Borrower, in whole or in part, or subject to any right of rescission, set-off, counterclaim or defense by Borrower, including the defense of usury, and Borrower nor any other party to the Loan Documents and Environmental Indemnity (other than Lender) have asserted any right of rescission, set-off, counterclaim or defense with respect thereto.

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

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

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

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

(H)Investment Company Act; Public Utility Holding Company Act.  Borrower is not and, until the Indebtedness is paid in full, Borrower will not be (i) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended, (ii) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended, or (iii) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

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

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

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

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

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

Section 3.2.Representations and Warranties Relating to The Premises.

(A)Title Issues.

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

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

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

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

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

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

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

(B)Status of the Premises.

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

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

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

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

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

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

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

(C)Status of the Leases and Rents.

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

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

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

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

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

ARTICLE IV
DEFAULTS AND REMEDIES

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

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ARTICLE V
SPECIAL PROVISIONS

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

(A)Within 90 days after the end of each fiscal year for Borrower, detailed analytical financial reports for Borrower covering the full and complete operation of the Premises, prepared in accordance with the Approved Accounting Method, including, without limitation, a balance sheet, income and expense statements (including monthly income and expense amounts for each of the preceding twelve (12) months);

(B)Within 15 days after any written request by Lender, Borrower shall furnish to Lender, for the most recently completed fiscal year, a combined or consolidated federal income tax return filed for Borrower and IWRREC.  Said information shall be subject to Lender’s review;

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

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

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

Section 5.2.Reserves and Cash Management.

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

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

Section 5.3Security Agreement.

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

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

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

Section 5.5Transfer of Loan by Lender.

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

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

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

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

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

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

ARTICLE VI
MISCELLANEOUS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

REMAINDER OF PAGE INTENTIONALLY BLANK

(Signatures on next page)

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SIGNATURE PAGE OF LENDER TO
LOAN AGREEMENT

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

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SIGNATURE PAGE OF BORROWER TO
LOAN AGREEMENT

INLAND WESTERN CORAM PLAZA, L.L.C., a Delaware limited liability company
By:	INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation, Member
	By:	/s/ Valerie Medina
		Name:		Valerie Medina
		Title:	Asst. Secretary

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EX-10.512

Exhibit 10.512

GUARANTY
LOAN NO. 754183

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

RECITALS:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5

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

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

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

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

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

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

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

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

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

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

(REMAINDER OF PAGE INTENTIONALLY BLANK
SIGNATURES ON NEXT PAGE)

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SIGNATURE PAGE OF GUARANTOR
TO GUARANTY

42-1579325

(Guarantor’s Identification Number)

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

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EX-31.1

This certification is filed as Exhibit 31.1

CERTIFICATION

Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

I, Robert D. Parks, certify that:

1.I have reviewed this annual report on Form 10-K of Inland Western Retail Real Estate Trust, Inc.;

2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and we have:

a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c)Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d)Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

	/s/ Robert D. Parks
By:	Robert D. Parks
	Chief Executive Officer
Date:	March 7, 2005

EX-31.2

This certification is filed as Exhibit 31.2

CERTIFICATION

Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

I, Steven P. Grimes, certify that:

1.I have reviewed this annual report on Form 10-K of Inland Western Retail Real Estate Trust, Inc.;

2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and we have:

a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c)Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by this report based on such evaluation; and

d)Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

	/s/ Steven P. Grimes
By:	Steven P. Grimes
	Principal Financial Officer
Date	March 7, 2005

EX-31.3

This certification is filed as Exhibit 31.3

CERTIFICATION

Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

I, Lori J. Foust, certify that:

1.I have reviewed this annual report on Form 10-K of Inland Western Retail Real Estate Trust, Inc.;

2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and we have:

a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c)Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by this report based on such evaluation; and

d)Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

	/s/ Lori J. Foust
By:	Lori J. Foust
	Principal Accounting Officer
Date	March 7, 2005

EX-32.1

Exhibit 32.1

Certification Pursuant to
18 U.S.C. Section 1350, as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002

In connection with the Annual Report on Form 10-K of Inland Western Retail Real Estate Trust, Inc. (the “Company”) for the year ended December 31, 2004 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), Robert D. Parks, as Chief Executive Officer of the Company, Steven P. Grimes, as Principal Financial Officer, and Lori J. Foust, as Principal Accounting Officer of the Company, each hereby certifies, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that, to his or her knowledge:

(1)The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2)The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

	/s/ Robert D. Parks
Name:	Robert D. Parks
	Chief Executive Officer
Date:	March 7, 2005
	/s/ Steven P. Grimes
Name:	Steven P. Grimes
	Principal Financial Officer
Date:	March 7, 2005
	/s/ Lori J. Foust
Name:	Lori J. Foust
	Principal Accounting Officer
Date:	March 7, 2005