exv10w5






Exhibit 10.5




AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT




dated effective as of November 21, 2008




by and between




AmREIT

as Borrower




and




WELLS FARGO BANK, NATIONAL ASSOCIATION

as Lender




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	ARTICLE 1.
	 	DEFINITIONS	 	 	1	 
	Section 1.1
	 	Definitions	 	 	1	 
	Section 1.2
	 	Accounting Terms and Determinations; Covenant Calculations	 	 	22	 
	Section 1.3
	 	Subsidiaries	 	 	22	 
	Section 1.4
	 	Interpretation Generally; Times	 	 	22	 
	 
	 	 	 	 	 	 
	ARTICLE 2.
	 	CREDIT FACILITY	 	 	22	 
	Section 2.1
	 	Making of Revolving Loan	 	 	22	 
	Section 2.2
	 	Requests for Borrowings	 	 	23	 
	Section 2.3
	 	Funding	 	 	23	 
	Section 2.4
	 	Continuation	 	 	23	 
	Section 2.5
	 	Conversion	 	 	24	 
	Section 2.6
	 	Interest Rate	 	 	24	 
	Section 2.7
	 	Special Provisions for LIBOR Loans	 	 	24	 
	Section 2.8
	 	Capital Adequacy	 	 	26	 
	Section 2.9
	 	Repayment of Loans	 	 	27	 
	Section 2.10
	 	Voluntary Reductions of the Commitment	 	 	28	 
	Section 2.11
	 	Credit Sweep Account	 	 	28	 
	Section 2.12
	 	Funds Transfer Disbursements	 	 	29	 
	Section 2.13
	 	Revolving Note	 	 	30	 
	Section 2.14
	 	Letters of Credit	 	 	30	 
	 
	 	 	 	 	 	 
	ARTICLE 3.
	 	GENERAL LOAN PROVISIONS	 	 	33	 
	Section 3.1
	 	Fees	 	 	33	 
	Section 3.2
	 	Computation of Interest and Fees	 	 	34	 
	Section 3.3
	 	Limitation of Interest	 	 	34	 
	Section 3.4
	 	Statements of Account	 	 	36	 
	Section 3.5
	 	Lender’s Reliance	 	 	36	 
	 
	 	 	 	 	 	 
	ARTICLE 4.
	 	UNENCUMBERED POOL PROPERTIES	 	 	36	 
	Section 4.1
	 	Acceptance of Unencumbered Pool Properties	 	 	36	 
	Section 4.2
	 	Termination of Designation as Unencumbered Pool Property	 	 	37	 
	Section 4.3
	 	Additional Requirements of Unencumbered Pool Properties	 	 	38	 
	 
	 	 	 	 	 	 
	ARTICLE 5.
	 	CONDITIONS	 	 	38	 
	Section 5.1
	 	Conditions Precedent to Effectiveness	 	 	38	 
	Section 5.2
	 	Conditions Precedent to Loans and Issuance of Letters of Credit	 	 	40	 
	 
	 	 	 	 	 	 
	ARTICLE 6.
	 	REPRESENTATIONS AND WARRANTIES	 	 	40	 
	Section 6.1
	 	Existence and Power	 	 	40	 
	Section 6.2
	 	Ownership Structure	 	 	41	 
	Section 6.3
	 	Authorization of Agreement, Revolving Notes, Loan Documents and Borrowings	 	 	41	 
	Section 6.4
	 	Compliance of Agreement, Revolving
Notes, Loan Documents and Borrowing with Laws, etc.	 	 	41	 






ii









 






TABLE OF CONTENTS

(Continued)




	 	 	 	 	 	 	 
	Section 6.5
	 	Compliance with Law; Governmental Approvals	 	 	41	 
	Section 6.6
	 	Indebtedness and Guarantees	 	 	42	 
	Section 6.7
	 	Property Management Agreements and Other Major Agreements	 	 	42	 
	Section 6.8
	 	Absence of Defaults	 	 	42	 
	Section 6.9
	 	Financial Information	 	 	42	 
	Section 6.10
	 	Litigation	 	 	42	 
	Section 6.11
	 	ERISA	 	 	43	 
	Section 6.12
	 	Taxes	 	 	43	 
	Section 6.13
	 	Investment Company Act; Public Utility Holding Company Act	 	 	43	 
	Section 6.14
	 	Full Disclosure	 	 	43	 
	Section 6.15
	 	Insurance	 	 	44	 
	Section 6.16
	 	Not Plan Assets	 	 	44	 
	Section 6.17
	 	Title and Liens	 	 	44	 
	Section 6.18
	 	Unencumbered Pool Properties	 	 	44	 
	Section 6.19
	 	Margin Stock	 	 	44	 
	Section 6.20
	 	Solvency	 	 	44	 
	Section 6.21
	 	Tax Shelter Regulations	 	 	44	 
	 
	 	 	 	 	 	 
	ARTICLE 7.
	 	COVENANTS	 	 	45	 
	Section 7.1
	 	Information	 	 	45	 
	Section 7.2
	 	Payment of Obligations	 	 	47	 
	Section 7.3
	 	Maintenance of Property; Insurance	 	 	48	 
	Section 7.4
	 	Conduct of Business; Maintenance of Existence; Qualification; Amendment of Declaration of Trust	 	 	48	 
	Section 7.5
	 	Compliance with Laws	 	 	49	 
	Section 7.6
	 	Inspection of Property, Books and Records	 	 	49	 
	Section 7.7
	 	Consolidations, Mergers, Acquisitions and Sales of Assets	 	 	49	 
	Section 7.8
	 	Use of Proceeds and Letters of Credit	 	 	49	 
	Section 7.9
	 	Major Agreements	 	 	50	 
	Section 7.10
	 	Major Construction	 	 	50	 
	Section 7.11
	 	Material Events	 	 	50	 
	Section 7.12
	 	ERISA	 	 	50	 
	Section 7.13
	 	ERISA Exemptions	 	 	50	 
	Section 7.14
	 	Negative Pledge	 	 	51	 
	Section 7.15
	 	Listing Status and REIT Status	 	 	51	 
	Section 7.16
	 	Agreements with Affiliates	 	 	51	 
	Section 7.17
	 	New Subsidiaries	 	 	51	 
	Section 7.18
	 	Management	 	 	52	 
	Section 7.19
	 	Concentrations	 	 	52	 
	Section 7.20
	 	No Further Unsecured Indebtedness	 	 	52	 
	Section 7.21
	 	Interest Rate Hedge	 	 	53	 
	 
	 	 	 	 	 	 
	ARTICLE 8.
	 	FINANCIAL COVENANTS	 	 	53	 
	Section 8.1
	 	Minimum Tangible Net Worth	 	 	53	 






iii









 






TABLE OF CONTENTS

(Continued)




	 	 	 	 	 	 	 
	Section 8.2
	 	Ratio of Total Liabilities to Gross Asset Value	 	 	53	 
	Section 8.3
	 	Distributions	 	 	53	 
	Section 8.4
	 	Ratio of EBITDA to Fixed Charges	 	 	53	 
	Section 8.5
	 	Permitted Investments	 	 	54	 
	Section 8.6
	 	Ratio of Unencumbered Net Operating Income to Unsecured Interest Expense	 	 	54	 
	Section 8.7
	 	Ratio of Secured Indebtedness to Gross Asset Value	 	 	54	 
	Section 8.8
	 	Maximum Loan Availability	 	 	55	 
	Section 8.9
	 	Share Repurchases	 	 	55	 
	Section 8.10
	 	Dividend Restrictions	 	 	55	 
	 
	 	 	 	 	 	 
	ARTICLE 9.
	 	DEFAULTS	 	 	55	 
	Section 9.1
	 	Events of Default	 	 	55	 
	Section 9.2
	 	Remedies Upon an Event of Default	 	 	57	 
	Section 9.3
	 	Additional Remedies Upon Certain Default	 	 	57	 
	Section 9.4
	 	Collateral Account	 	 	57	 
	 
	 	 	 	 	 	 
	ARTICLE 10.
	 	MISCELLANEOUS	 	 	58	 
	Section 10.1
	 	Notices	 	 	58	 
	Section 10.2
	 	No Waivers	 	 	59	 
	Section 10.3
	 	Expenses	 	 	60	 
	Section 10.4
	 	Stamp, Intangible and Recording Taxes	 	 	61	 
	Section 10.5
	 	Loan Sales and Participations; Disclosure of Information	 	 	61	 
	Section 10.6
	 	Indemnification	 	 	61	 
	Section 10.7
	 	Successors and Assigns	 	 	62	 
	Section 10.8
	 	Governing Law	 	 	62	 
	Section 10.9
	 	Litigation	 	 	62	 
	Section 10.10
	 	Counterparts; Integration	 	 	63	 
	Section 10.11
	 	Invalid Provisions	 	 	63	 
	Section 10.12
	 	Mandatory Disclosures	 	 	63	 
	Section 10.13
	 	Limitation of Liability of
Trustees, Etc.	 	 	64	 
	Section 10.14
	 	ENTIRE AGREEMENT	 	 	64	 
	Section 10.15
	 	Confidentiality	 	 	64	 
	Section 10.16
	 	USA Patriot Act Notice. Compliance	 	 	65	 
	Section 10.17
	 	Release and Waiver of Claims	 	 	65	 
	Section 10.18
	 	Legal Opinion	 	 	65	 






EXHIBITS




	 	 	 	 	 
	A
	 	—	 	Form of Guaranty
	B
	 	—	 	Form of Revolving Note
	C
	 	—	 	Form of Notice of Borrowing
	D
	 	—	 	Form of Notice of Continuation
	E
	 	—	 	Form of Notice of Conversion
	F
	 	—	 	Form of Opinion






iv









 






TABLE OF CONTENTS

(Continued)




	 	 	 	 	 
	G
	 	—	 	Form of Encumbered Pool Certificate
	H
	 	—	 	Form of Eligibility Certificate
	I
	 	—	 	Transfer Authorization Designation






SCHEDULES




	 	 	 	 	 
	Schedule 2.14(a)
	 	—	 	Outstanding Letters of Credit
	Schedule 4.1
	 	—	 	Unencumbered Pool Properties as of Agreement Date
	Schedule 6.2
	 	—	 	Ownership Structure
	Schedule 6.6
	 	—	 	Indebtedness and Guaranties
	Schedule 6.7
	 	—	 	Property Management Agreements and Other Major Agreements
	Schedule 6.15
	 	—	 	Insurance







v











 





AMENDED AND RESTATED

REVOLVING CREDIT AGREEMENT




     THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this “Agreement”) is entered into
effective as of November 21, 2008, by and between AmREIT, a Texas Real Estate Investment Trust
(“Borrower”) and WELLS FARGO BANK, NATIONAL ASSOCIATION (“Lender”). This Agreement entirely
supercedes, amends, restates and replaces that certain Revolving Credit Agreement between Lender
and Borrower dated October 30, 2007 (the “Original Agreement”).



     WHEREAS, Borrower desires to borrow from Lender, on an unsecured revolving credit basis, loans
in an aggregate principal sum outstanding from time to time not exceeding Thirty-Five Million
Dollars ($35,000,000.00), the proceeds of which shall be used only for the purposes specifically
permitted under the terms of this Agreement; and



     WHEREAS, Lender is willing to make loans to Borrower on such basis for such purposes, subject
to the terms and conditions hereof.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:



ARTICLE 1.

DEFINITIONS




     Section 1.1 Definitions.



     The following terms, as used herein, have the following meanings:



     “Adjusted LIBO Rate” means the rate of interest, rounded upward to the nearest whole
multiple of one-hundredth of one percent (.01%), equal to the lesser of (i) the Maximum Lawful
Rate, or (ii) sum of: (a) the Applicable Margin plus (b) the LIBO Rate, which rate is
divided by one (1.00) minus the Reserve Percentage, as expressed in the following formula:



	 	 	 	 	 
	Adjusted LIBO Rate = Applicable Margin

	 	+
	 	LIBO Rate
	 

	 	 	 	 
	 

	 	 	 	(1 − Reserve Percentage)






     “AFC Inc.” means the retail property so identified on Schedule 4.1, which is not
encumbered by a Lien.



     “Affiliate” means any Person (other than Lender): (a) directly or indirectly
controlling, controlled by, or under common control with, the Borrower; (b) directly or indirectly
owning or holding ten percent (10.0%) or more of any equity interest in the Borrower; or (c) ten
percent (10.0%) or more of whose voting stock or other equity interest is directly or indirectly
owned or held by the Borrower. For purposes of this definition, “control” (including with
correlative meanings, the terms “controlling,” “controlled by” and “under common control with”)
means the possession directly or indirectly of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting securities or by
contract or otherwise. In no event shall Lender be deemed to be an Affiliate of the Borrower.



 









 





     “Applicable Law” means all applicable provisions of local, state, federal and foreign
constitutions, statutes, rules, regulations, ordinances, decrees, permits, concessions and orders
of all governmental bodies and all orders and decrees of all courts, tribunals and arbitrators.



     “Applicable Management Fee Percentage” shall mean, four percent (4.0%) with respect to
multi-tenant Properties and one percent (1%) with respect to single-tenant Properties.



     “Applicable Margin” means the percentage rate set forth in Chart A below corresponding
to the ratio of Total Liabilities to Gross Asset Value as determined in accordance with Section
7.1(c) in effect at such time:



Chart A




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Ratio of Total Liabilities to	 	Applicable Margin for	 	Applicable Margin for
	Level	 	Gross Asset Value	 	LIBOR Loans	 	Base Rate Loans
	 	1	 	 	Less than or equal to .55 to 1.00

	 	 	2.50	%	 	 	2.50	%
	 	2	 	 	Greater than .55 to 1.00 but
less than or equal to 0.60 to
1.00

	 	 	2.75	%	 	 	2.75	%
	 	3	 	 	Greater than 0.60 to 1.00 but
less than or equal to 0.64 to
1.00

	 	 	3.00	%	 	 	3.00	%





The Applicable Margin for Loans shall be determined by Lender based on the ratio of Total
Liabilities to Gross Asset Value as set forth in the Compliance Certificate most recently delivered
by the Borrower pursuant to Section 7.1(c). Any such adjustment to such Applicable Margin shall be
effective as of the first day of the calendar month immediately following the month during which
Borrower delivers to Lender the applicable Compliance Certificate pursuant to Section 7.1(c). If
the Borrower fails to deliver a Compliance Certificate pursuant to Section 7.1(c) the Applicable
Margin shall equal the percentages corresponding to Level 3 Chart A from the date the required
Compliance Certificate was due until the date of receipt by Lender of the required Compliance
Certificate; however the application of such Level 3 Chart A under such circumstances shall not
impair Lender’s ability to declare such failure to deliver the required Compliance Certificate an
Event of Default.




     “Base Rate” means a rate of interest equal to the lesser of (a) the Daily LIBO Rate
and (b) the Maximum Lawful Rate, provided, however, if any of the transactions necessary for the
calculation of interest at the Daily LIBO Rate requested or selected by Borrower, or as otherwise
required hereunder, should be or become prohibited or unavailable to Lender, or, if in Lender’s
good faith judgment, it is not possible or practical for Lender to set the Daily LIBO Rate for a
Base Rate Loan, the Base Rate for such Base Rate Loan shall revert to the lesser of (i) the Maximum
Lawful Rate or (ii) the greater of (a) the Prime Rate plus one percent (1.00%), and (b) the Federal
Funds Rate plus one and one-half percent (1.50%) plus the Applicable Margin. Each change in the
Base Rate shall become effective without prior notice to Borrower automatically as of the opening
of business on the date of such change in the Base Rate.



     “Base Rate Loan” means any portion of the Revolving Loan with respect to which the
interest rate is calculated by reference to the Base Rate.



2









 





     “Business Day” means (a) any day except a Saturday, Sunday or other day on which
commercial banks in San Francisco, California are authorized or required to close and (b) with
reference to LIBOR Loans, any day (except a Saturday, Sunday or other day on which commercial banks
in San Francisco, California are authorized or required to close) on which dealings in Dollar
deposits are carried out in the London interbank market.



     “Capital Expenditures Reserve” means, for any period and with respect to any Property,
an amount equal to the greater of (a) the aggregate square footage of all completed space of such
Property times $.25, times a fraction, the numerator of which is the number of days of such period,
and the denominator of which is 365 and (b) the amount of capital expenditures actually made in
respect of such Property, excluding non-recurring capital expenditures for such period.



     “Capitalized Lease Obligation” means Indebtedness represented by obligations under a
lease that is required to be capitalized for financial reporting purposes in accordance with GAAP,
and the amount of such Indebtedness shall be the capitalized amount of such obligations determined
in accordance with GAAP.



     “Carlsons Restaurants (TGI Fridays)” means those retail properties so identified on
Schedule 4.1, which are not encumbered by a Lien.



     “Collateral Account” means Account Number 4945073278 established by Borrower with
Lender as a special, interest-bearing, deposit account under Lender’s sole dominion and control.



     “Commitment” means, initially, the lesser of (i) Thirty-Five Million and No/100
Dollars ($35,000,000.00) and (ii) the sum of Thirty-Five Million and No/100 Dollars
($35,000,000.00) minus proceeds (net of transaction costs) derived from:



     (a) The sale or issuance by Borrower of Shares, options, warrants or other Equity Interests of
any class or character,



     (b) The sale of Unencumbered Pool Property or any other Property owned by Borrower or any
Subsidiary of Borrower or the sale by Borrower or any Subsidiary of Borrower of any Equity Interest
in a Person owning Unencumbered Pool Property or any such other Property, net of existing Secured
Indebtedness, and



     (c) Indebtedness from the financing of Unencumbered Pool Property or refinancing or financing
of any other Property owned by Borrower or any Subsidiary of Borrower, net of existing Secured
Indebtedness;


provided, however, at such time as the Commitment shall have been reduced to Twenty-Five Million
and No/100 Dollars ($25,000,000.00), then, thereafter, the Commitment shall remain at Twenty-Five
Million and No/100 Dollars ($25,000,000.00).




     “Compliance Certificate” means the certificate described in Section 7.1(c).



     “Consequential Loss” means with respect to (a) Borrower’s payment of all or any
portion of the then-outstanding principal amount of a LIBOR Loan on a day other than the last day
of the Interest Period related thereto or (b) any of the circumstances specified in Section 2.7(d)
and (g)



3









 







upon which a Consequential Loss may be incurred, any loss (excluding loss of anticipated
profits), cost or expense incurred by Lender as a result of the timing of such payment of the LIBOR
Loan or in the redepositing, redeploying or reinvesting the principal amount so paid or affected by
the timing of such LIBOR Loan or the circumstances described in such Section 2.7(d) and (g),
including without limitation, the sum of (i) the interest which, but for the payment or timing of
the LIBOR Loan, Lender would have earned in respect of such principal amount, reduced, if Lender is
able to redeposit, redeploy, or reinvest such principal amount by the interest earned by Lender as
a result of so redepositing, redeploying or reinvesting such principal amount and (ii) any expense
or penalty incurred by Lender on redepositing, redeploying or reinvesting such principal amount.
All determinations of Consequential Loss shall be made by Lender exercising its reasonable
judgment.



     “Contingent Obligation” means, for any Person, any commitment, undertaking, Guarantee
or other obligation constituting a contingent liability that must be accrued under GAAP.



     “Continue,” “Continuation” and “Continued” each refers to the
continuation of a LIBOR Loan from one Interest Period to the next Interest Period pursuant to
Section 2.4.



     “Convert,” “Conversion” and “Converted” each refers to the conversion
of a Base Rate Loan to a LIBOR Loan or a LIBOR Loan to a Base Rate Loan.



     “Courtyard at Post Oak” means those retail properties so identified on Schedule 4.1,
which are not encumbered by a Lien.



     “CVS Pharmacies” means those retail properties so identified on Schedule 4.1, which
are not encumbered by a Lien.



     “Daily LIBO Rate” means the rate of interest, rounded upward to the nearest whole
multiple of one-hundredth of one percent (.01%), equal to the sum of: (a) the Applicable Margin
plus (b) the rate of interest, rounded upward to the nearest whole multiple of
one-sixteenth of one percent (.0625%) that is quoted by Lender from time to time as the London
Inter-Bank Offered Rate for deposits in Dollars at approximately 9:00 a.m., San Francisco time, for
a period of one (1) month (“Daily Rate”) which Daily Rate is divided by one (1.00) minus
the Reserve Percentage, as expressed in the following formula:



	 	 	 	 	 
	Daily LIBO Rate = Applicable Margin

	 	+
	 	Daily Rate
	 

	 	 	 	 
	 

	 	 	 	(1 − Reserve Percentage)





The Daily LIBO Rate shall be adjusted daily to reflect changes in the Daily LIBO Rate as determined
above. Changes in the Base Rate due to a change in the Daily LIBO Rate shall become effective on
the date each such change occurs.




     “Darden (Smokey Bones)” means the retail property so identified on Schedule 4.1, which
is not encumbered by a Lien.



4









 





     “Default” means any condition or event which constitutes an Event of Default or which
with the giving of notice or lapse of time or both would, unless cured or waived, become an Event
of Default.



     “Derivatives Contract” means any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement. Not in limitation of the foregoing, the term
“Derivatives Contract” includes any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association, Inc., any International
Foreign Exchange Master Agreement, or any other master agreement, including any such obligations or
liabilities under any such master agreement.



     “Derivatives Termination Value” means, in respect of any one or more Derivatives
Contracts, after taking into account the effect of any legally enforceable netting agreement
relating to such Derivatives Contracts, (a) for any date on or after the date such Derivatives
Contracts have been closed out and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced in clause (a) the amount(s)
determined as the mark-to-market value(s) for such Derivatives Contracts, as determined based upon
one or more mid-market or other readily available quotations provided by any recognized dealer in
such Derivatives Contracts (which may include Lender).



     “Development Property” means real estate which is then undergoing development or
redevelopment; however, such real property shall cease to be “Development Property” on the earlier
of (i) twelve (12) full months of operations following completion or (ii) achievement of an
Occupancy Rate of 80%. The term “Development Property” shall include real property of the type
described in the immediately preceding sentence to be (but not yet) acquired by the Borrower, any
Subsidiary or any Unconsolidated Affiliate upon completion of construction pursuant to a contract
in which the seller of such real property is required to develop or renovate prior to, and as a
condition precedent to, such acquisition.



     “Dollars” or “$” means the lawful currency of the United States of America.



     “EBITDA” means, with respect to any Person and for any period and without duplication,
the sum of (a) net earnings (loss) of such Person for such period (excluding equity in net earnings
or net loss of Unconsolidated Affiliates) plus (b) depreciation and amortization expense and other
non-cash charges of such Person for such period (but only to the extent deducted in determining net
income (loss) for such period) plus (c) the amortized cash portion of direct financing leases (as
defined by GAAP) but only to the extent deducted in determining net income (loss) for such period
(d) plus interest expense of such Person for such period (but only



5









 







to the extent deducted in determining net income (loss) for such period) plus (e) income and
franchise tax expense of such Person in respect of such period (but only to the extent deducted in
determining net income (loss) for such period) minus (with respect to gains) or plus (with respect
to losses) (f) extraordinary gains or losses of such Person, non-recurring items of income or
expense relating to mergers and potential acquisitions acceptable to Lender in its reasonable
discretion, and gains and losses from sales of assets of such Person for such period plus (g) such
Person’s pro rata share of EBITDA of each of such Person’s Unconsolidated Affiliates (determined in
a manner consistent with the calculation of such Person’s EBITDA) minus (with respect to gains) or
plus (with respect to losses) any net income attributable to partnerships which hold Property in
which partnerships such Person has direct or indirect (through a Subsidiary of such Person)
ownership interest of not greater than fifty percent (50%).



     “Effective Date” means the date this Agreement becomes effective in accordance with
Section 5.1.



     “Effective Rate” means, for each LIBOR Loan, the lesser of (i) the Maximum Lawful Rate
or (ii) the Adjusted LIBO Rate for the applicable Interest Period selected by Borrower with respect
to such LIBOR Loan and set in accordance with the provisions hereof, provided,
however, if Borrower fails to duly and timely give Lender any Notice of Continuation or
Notice of Conversion with respect to any maturing LIBOR Loan, the Effective Rate for such LIBOR
Loan shall be the Daily LIBO Rate until Borrower’s due and timely giving of a Notice of
Continuation or Notice of Conversion for such LIBOR Loan; provided further,
however, if any of the transactions necessary for the calculation of interest at the
Adjusted LIBO Rate requested or selected by Borrower should be or become prohibited or unavailable
to Lender, or, if in Lender’s good faith judgment, it is not possible or practical for Lender to
set the Adjusted LIBO Rate or Daily LIBO Rate for such LIBOR Loan and applicable Interest Period as
requested or selected by Borrower, or as otherwise required hereby, the Effective Rate for such
LIBOR Loan shall revert to the lesser of (i) the Maximum Lawful Rate and (ii) the greater of (a)
Prime Rate plus one percent (1%) and (b) the Federal Funds Rate plus one and one-half percent
(1.50%) plus the Applicable Margin.



     “Eligible Property” means a Property which satisfies all of the following requirements
as determined by Lender: (a) such Property is owned 100% in fee simple by Borrower or a Wholly
Owned Subsidiary of Borrower (however the foregoing is not intended to exclude real estate which is
ground leased by Borrower or a Wholly Owned Subsidiary of Borrower to a tenant which has
constructed and owns the improvements on such ground leased real estate); (b) neither such
Property, nor any interest of Borrower or such Wholly Owned Subsidiary therein, is subject to any
Lien other than Permitted Liens or to any agreement (other than this Agreement or any other Loan
Document) that prohibits the creation of any Lien thereon as security for Indebtedness; (c) if such
Property is owned by a Wholly Owned Subsidiary: (i) none of Borrower’s direct or indirect
ownership interest in such Wholly Owned Subsidiary is subject to any Lien other than Permitted
Liens or to any agreement (other than this Agreement or any other Loan Document) that prohibits the
creation of any Lien thereon as security for Indebtedness and (ii) neither such Wholly Owned
Subsidiary, nor any other Wholly Owned Subsidiary through which Borrower holds any indirect
interest in such Wholly Owned Subsidiary, is subject to any restriction of any kind which would
limit its ability to pay or perform its obligations under the Guaranty required to be delivered
hereunder prior to its obligation to pay dividends or make any



6









 







other distribution on any of such Wholly Owned Subsidiary’s capital stock or other securities
owned by Borrower or any other Wholly Owned Subsidiary of Borrower; (d) such Property has an
Occupancy Rate of at least 80%; and (e) such Property is free of all structural defects, title
defects, environmental conditions or other adverse matters except for defects, conditions or
matters individually or collectively which are not material to the profitable operation of such
Property.



     “Eligible Subsidiary” means any Subsidiary of Borrower other than a Special Purpose
Subsidiary.



     “Eligibility Certificate” means the certificate described in Section 4.1(b)(iv) and in
the Form of Exhibit H.



     “Environmental Laws” means any Applicable Law relating to environmental protection or
the manufacture, storage, disposal or clean-up of Hazardous Materials including, without
limitation, the following: Clean Air Act, 42 U.S.C. § 7401 et seq.; Federal Water Pollution
Control Act, 33 U.S.C. § 1251 et seq.; Solid Waste Disposal Act, 42 U.S.C. § 6901 et seq.;
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq.;
National Environmental Policy Act, 42 U.S.C. § 4321 et seq.; regulations of the Environmental
Protection Agency and any applicable rule of common law and any judicial interpretation thereof
relating primarily to the environment or Hazardous Materials.



     “Equity Interest” means, with respect to any Person, any share of capital stock of (or
other ownership or profit interests in) such Person, any warrant, option or other right for the
purchase or other acquisition from such Person of any share of capital stock of (or other ownership
or profit interests in) such Person, any security convertible into or exchangeable for any share of
capital stock of (or other ownership or profit interests in) such Person or warrant, right or
option for the purchase or other acquisition from such Person of such shares (or such other
interests), and any other ownership or profit interest in such Person (including, without
limitation, partnership, member or trust interests therein), whether voting or nonvoting, and
whether or not such share, warrant, option, right or other interest is authorized or otherwise
existing on any date of determination.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any
successor statute.



     “ERISA Group” means all members of a controlled group of corporations and all trades
or businesses (whether or not incorporated) under common control that are treated as a single
employer under Section 414 of the Internal Revenue Code.



     “ERISA Plan” means any employee benefit plan subject to Title I of ERISA.



     “Event of Default” means the occurrence of any of the events specified in Section 9.1,
whatever the reason for such event and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment or order of any court or any order, rule or
regulation of any governmental or nongovernmental body; provided that any requirement for notice or
lapse of time or any other condition has been satisfied.



7









 





     “Executive Investment Summary” means, to the extent available, the set of information
provided to the investment committee of the Borrower in connection with the acquisition of a
Property. The Executive Investment Summary shall include, at a minimum, the following information
relating to such Property: (a) a description of such Property, such description to include the
age, location, site plan, color photographs (to the extent reasonably available to Borrower) and
current occupancy rate of such Property; (b) the purchase price paid or to be paid for such
Property; (c) the capitalization rate for such Property; (d) a summary of the existing tenants of
such Property; (e) either current operating statements for such Property for the immediately
preceding fiscal year and for current fiscal year through the fiscal quarter most recently ending
(to the extent reasonably available to Borrower) or pro forma operating statements for such
Property (to the extent reasonably available to Borrower); and (f) other demographics and trade
information relating to such Property.



     “Federal Funds Rate” means, for any day, the rate per annum (rounded upward, if
necessary, to the nearest 1/100th of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged by Federal funds
brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is published on such next
succeeding Business Day, the Federal Funds Rate for such day shall be the average rate quoted to
Lender on such day on such transactions as reasonably determined by Lender.



     “FIRREA” means the Financial Institution Recovery Reform and Enforcement Act of 1989,
as amended.



     “Fixed Charges” means, with respect to a Person and for a given period, the sum of (a)
the Interest Expense of such Person for such period, plus (b) the aggregate of all
scheduled principal payments on Indebtedness made by such Person during such period (excluding
balloon, bullet or similar payments of principal due upon the stated maturity of Indebtedness),
plus (c) the aggregate of all preferred dividends paid or accrued by such Person during
such period, plus (d) the Capital Expenditures Reserve for such period.



     “410 and Blanco — Citibank” means the retail property so identified on Schedule 4.1,
which is not encumbered by a Lien.



     “Funds from Operations” means, as of any period for a Person, net income (computed in
accordance with GAAP), excluding gains (or losses) from sale of property and debt restructuring,
plus depreciation and amortization (except for amortization of deferred financing cost), and after
adjustments for unconsolidated partnerships and joint ventures. Adjustments for unconsolidated
partnerships and joint ventures will be calculated to reflect funds from operations on the same
basis. “Funds from Operations” shall not include items which are classified as “extraordinary” in
accordance with GAAP.”



     “GAAP” means, as to a particular Person, such accounting practice as, in the opinion
of the independent accountants of recognized national standing regularly retained by such Person



8









 







and acceptable to Lender, conforms at the time to Generally Accepted Accounting Principles,
consistently applied. “Generally Accepted Accounting Principles” means those principles and
practices (a) which are recognized as such by the Financial Accounting Standards Board, (b) which
are applied for all periods after the date hereof in a manner consistent with the manner in which
such principles and practices were applied to the most recent audited financial statements of the
relevant Person furnished to Lender or where a change therein has been concurred in by such
Person’s independent auditors, and (c) which are consistently applied for all periods after the
date hereof so as to reflect properly the financial condition, and results of operations and
changes in financial position, of such Person. If there is a change in such accounting practice as
to Borrower, then Borrower shall, unless otherwise consented to by Lender, continue to utilize, for
the purpose of this Agreement, the accounting practices applicable to Borrower prior to such
change.



     “Golden Corral” means those retail properties so identified on Schedule 4.1, which are
not encumbered by a Lien.



     “Governmental Approvals” means all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and reports to, all Governmental Authorities.



     “Governmental Authority” means any government (or any political subdivision or
jurisdiction thereof), court, bureau, agency or other governmental authority having jurisdiction
over Borrower or any Subsidiary, or any of its or their business, operations or properties.



     “Gross Asset Value” means, at a given time, the sum (without duplication) of (a) the
sum of the Operating Property Values of Borrower and its Subsidiaries on a consolidated basis at
such time, plus (b) all cash and cash equivalents (excluding tenant deposits) of the
Borrower and its Subsidiaries at such time provided, however, that restricted cash and cash
equivalents, including, without limitation, cash deposited in escrow accounts for taxes and
insurance, shall only be included in Gross Asset Value to the extent a liability corresponding
thereto is included in the determination of Total Liabilities and further provided that accounts
receivable and notes receivable owed to Borrower or any of its Subsidiaries by an Affiliate of
Borrower or any of its Subsidiaries cannot, in the aggregate, contribute more than the Maximum
Intra-Company A/R Amount; plus (c) the current book value of all unimproved real property
(other than Development Property) of Borrower and its Subsidiaries on a consolidated basis held for
development (provided that the aggregate value of all real property held for development shall not
exceed 5% of the Gross Asset Value) plus (d) the current book value of all Development
Property of Borrower and its Subsidiaries on a consolidated basis, plus (e) the contractual
purchase price of properties subject to purchase obligations, repurchase obligations, forward
commitments and unfunded obligations to the extent such obligations and commitments are included in
determining Borrower’s Total Liabilities, plus (f) Borrower’s Ownership Share of the
Operating Property Value of Unconsolidated Affiliates, plus (g) Borrower’s Ownership Share
of the current book value of all unimproved real property (other than Development Property) of
Unconsolidated Affiliates (subject to the percentage limitation set forth in [c] above)
plus (h) Borrower’s Ownership Share of the current book value of all Development Property
of Unconsolidated Affiliates. The “Maximum Intra-Company A/R Amount” means the following amounts
for the respective time periods set forth below:



9









 





	 	 	 	 	 
	 	 	Maximum Intra-Company
	Time Period	 	A/R Amount
	From the Effective Date through December 31, 2008
	 	$	7,500,000.00	 
	From January 1, 2009 through March 31, 2009
	 	$	5,000,000.00	 
	From April 1, 2009 through June 30, 2009
	 	$	2,500,000.00	 
	From July 1, 2009 to October 30, 2009
	 	$	1,000,000.00	 






     “Guarantee” by any Person means any obligation, contingent or otherwise, of such
Person directly or indirectly guaranteeing any Indebtedness or other obligation of any other Person
and, without limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of such Person (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement conditions or otherwise) or (b)
entered into for the purpose of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss in respect thereof
(in whole or in part), provided that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a
corresponding meaning.



     “Guarantor” means all Eligible Subsidiaries of Borrower and each other Person who has
executed and delivered a Guaranty.



     “Guaranty” means the Guaranty executed by each Guarantor in favor of Lender and
substantially in the form of Exhibit A.



     “Hazardous Substances” means all or any of the following: (a) substances that are
defined or listed in, or otherwise classified pursuant to, any applicable Environmental Laws as
“hazardous substances,” “hazardous materials,” “hazardous wastes,” “toxic substances” or any other
formulation intended to define, list or classify substances by reason of deleterious properties
such as ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, “TCLP”
toxicity, or “EP toxicity”; (b) oil, petroleum or petroleum derived substances, natural gas,
natural gas liquids or synthetic gas and drilling fluids, produced waters and other wastes
associated with the exploration, development or production of crude oil, natural gas or geothermal
resources; (c) any flammable substances or explosives or any radioactive materials; (d) asbestos in
any form; and (e) electrical equipment which contains any oil or dielectric fluid containing levels
of polychlorinated biphenyls in excess of fifty parts per million. However, de minimus amounts of
substances which would otherwise be classified as Hazardous Substances and are utilized in the
ordinary course of the use of Properties and in accordance with Applicable Laws are not Hazardous
Substances for the purpose of this Agreement.



     “IHOP Topeka” means the retail property so identified on Schedule 4.1, which is not
encumbered by a Lien.



10









 





     “Indebtedness” means, with respect to a Person, at the time of computation thereof,
all of the following (without duplication): (a) all obligations of such Person in respect of money
borrowed; (b) all obligations of such Person (other than trade debt incurred in the ordinary course
of business), whether or not for money borrowed (i) represented by notes payable, or drafts
accepted, in each case representing extensions of credit, (ii) evidenced by bonds, debentures,
notes or similar instruments, or (iii) constituting purchase money indebtedness, conditional sales
contracts, title retention debt instruments or other similar instruments, upon which interest
charges are customarily paid or that are issued or assumed as full or partial payment for property;
(c) Capitalized Lease Obligations of such Person; (d) all Letter of Credit Liabilities of such
Person; (e) all Off Balance Sheet Liabilities of such Person; (f) net obligations under any
Derivative Contract in an amount equal to the Derivatives Termination Value thereof; and (g) all
Indebtedness of other Persons to the extent (i) such Person has Guaranteed or is otherwise recourse
to such Person or (ii) is secured by a Lien on any property of such Person.



     “Intangible Assets” means, with respect to any Person (to the extent reflected in
determining stockholders’ equity of such Person) (a) deferred charges, (b) the amount of any
write-up in the book value of any assets contained in any balance sheet resulting from revaluation
thereof or any write-up in excess of the cost of such assets acquired, and (c) the aggregate of all
amounts appearing on the assets side of any such balance sheet for franchises, licenses, permits,
patents, patent applications, copyrights, trademarks, trade names, goodwill, treasury stock,
experimental or organizational expenses and other like intangibles. Notwithstanding the foregoing,
“Intangible Assets” shall not include any adjustments required under Financial Accounting Standard
(FAS) 141.



     “Interest Expense” means, for any Person and for any period, without redundancy, all
paid, accrued or capitalized interest expense of such Person (other than capitalized interest
funded from a Reserved Construction Loan) for such period and shall include (a) all paid or accrued
interest expense in respect of Indebtedness and other liabilities which such Person has Guaranteed
or is otherwise obligated whether or not on a recourse basis, (b) such Person’s Ownership Share of
all paid or accrued interest expense for such period of Unconsolidated Affiliates of such Person,
(c) costs related to Derivatives Contracts, and (d) fees and other expenses related to the issuance
of letters of credit.



     “Interest Period” means, with respect to any LIBOR Loan, the period commencing on the
date of the borrowing, Conversion or Continuation of such LIBOR Loan and ending on the last day of
the period selected by Borrower pursuant to the provisions below. The duration of each Interest
Period shall be one (1), three (3) or six (6) months, which in each case Borrower may, in an
appropriate Notice of Borrowing, Notice of Continuation or Notice of Conversion, select. In no
event shall an Interest Period extend beyond the Maturity Date. Whenever the last day of any
Interest Period would otherwise occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding Business Day; provided, however,
that if such extension would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall occur on the next preceding
Business Day. In no event shall an Interest Period have a duration of less than one month, except
as specifically provided above.




11











 





     “Interest Rate Hedge” — A Derivatives Contract which is acceptable to Lender, and
pursuant to which Borrower’s Interest Expense relating to the Indebtedness which is outstanding
under the Commitment is controlled within parameters acceptable to Lender.



     “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended, or any
successor statute.



     “Investment” means, with respect to any Person, any acquisition or investment (whether
or not of a controlling interest) by such Person, whether by means of (a) the purchase or other
acquisition of any Equity Interest in another Person, (b) a loan, advance or extension of credit
to, capital contribution to, Guaranty of Indebtedness of, or purchase or other acquisition of any
Indebtedness of, another Person, including any partnership or joint venture interest in such other
Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions)
of assets of another Person that constitute the business or a division or operating unit of another
Person. Any commitment or option to make an Investment in any other Person shall constitute an
Investment. Except as expressly provided otherwise, for purposes of determining compliance with
any covenant contained in a Loan Document, the amount of any Investment shall be the amount
actually invested, without adjustment for subsequent increases or decreases in the value of such
Investment.



     “Issuing Bank” means Lender or an affiliate of Lender, as the issuer of Letters of
Credit hereunder.



     “Issuing Bank Fees” means the Fees payable to the Issuing Bank pursuant to the last
sentences of Section 3.1(b) and (c).



     “L/C Commitment Amount” means an amount equal to $5,000,000.00.



     “Lending Office” means Lender’s office identified as: Wells Fargo Bank, National
Association, Disbursement and Operations Center, 733 Marquette Avenue, 10th Floor,
Minneapolis, Minnesota 55402, Attention: Jivko Sabev.



     “Letter of Credit” has the meaning set forth in Section 2.13(a).



     “Letter of Credit Documents” means, with respect to any Letter of Credit,
collectively, any application therefor, any certificate or other document presented in connection
with a drawing under such Letter of Credit and any other agreement, instrument or other document
governing or providing for (a) the rights and obligations of the parties concerned or at risk with
respect to such Letter of Credit or (b) any collateral security for any of such obligations.



     “Letter of Credit Liabilities” shall mean, without duplication, at any time and in
respect of any Letter of Credit, the sum of (a) the Stated Amount of such Letter of Credit plus (b)
the aggregate unpaid principal amount of all Reimbursement Obligations of Borrower at such time due
and payable in respect of all drawings made under such Letter of Credit.



     “LIBO Rate” means, with respect to each LIBOR Loan, the rate of interest per annum,
rounded upwards to the nearest whole multiple of 1/16th of 1% (.0625%), quoted by Lender as the
London Inter-Bank Offered Rate for deposits in Dollars at approximately 9:00 a.m., San



12









 







Francisco time, for an Interest Period for purposes of calculating effective rates of interest
for loans or originations making reference thereto for an amount approximately equal to the LIBOR
Loan and for a period of time approximately equal to the applicable Interest Period or the time
remaining in an Interest Period after the date of a Consequential Loss, as appropriate. Each
determination of the LIBO Rate by Lender shall, in absence of demonstrable error, be conclusive and
binding.



     “LIBOR Loan” means any portion of the Revolving Loan with respect to which the
interest rate is calculated by reference to the LIBO Rate for a particular Interest Period.



     “Lien” as applied to the real property of any Person means: (a) any security
interest, encumbrance, mortgage, deed to secure debt, deed of trust, pledge, lien, charge or lease
constituting a Capitalized Lease Obligation, conditional sale or other title retention agreement,
or other security interest, security title or encumbrance of any kind in respect of any property of
such Person, or upon the income or profits therefrom; (b) any arrangement, express or implied,
under which any property of such Person is transferred, sequestered or otherwise identified for the
purpose of subjecting the same to the payment of Indebtedness or performance of any other
obligation in priority to the payment of the general, unsecured creditors of such Person; (c) the
filing of any financing statement under the Uniform Commercial Code or its equivalent in any
jurisdiction; and (d) any agreement by any such person to grant, give or otherwise convey any of
the foregoing.



     “Loan” means a LIBOR Loan or a Base Rate Loan.



     “Loan Documents” means this Agreement, the Revolving Note, each Letter of Credit, each
of the Guaranties, any agreement evidencing the fees referred to in Section 3.1(c) and each other
document or instrument executed and delivered by any Loan Party in connection with this Agreement
or any of the other foregoing documents.



     “Loan Party” means each of Borrower, each Guarantor, and each other Person who
guarantees all or a portion of the Obligations and/or who pledges any collateral security to secure
all or a portion of the Obligations.



     “MacArthur Pads” means those retail pad sites so identified on Schedule 4.1, which pad
sites are not encumbered by a Lien.



     “Major Agreements” means, at any time, (a) each Property Management Agreement with
respect to a Property and (b) any other agreement which in any way relates to the use, occupancy,
operation, maintenance, enjoyment or ownership of a Property, the breach or loss of which would
have a Materially Adverse Effect.



     “Materially Adverse Effect” means a materially adverse effect on (a) the business,
assets, liabilities, financial condition, or results of operations of Borrower and its Subsidiaries
taken as a whole, (b) the ability of any Loan Party to perform its obligations under any Loan
Document to which it is a party, (c) the validity or enforceability of any of such Loan Documents,
(d) the rights and remedies of Lender under any of such Loan Documents or (e) the timely payment of
the principal of or interest on the Revolving Loan or other amounts payable in connection
therewith. Except with respect to representations made or deemed made by Borrower under



13









 







Article 6 or in any of the other Loan Documents to which any Loan Party is a party, all
determinations of materiality shall be made by Lender in its reasonable judgment unless expressly
provided otherwise.



     “Maximum Dividends Per Share” means on a quarterly basis a per share amount for Class
“A” shares of $0.1242, for Class “C” shares of $0.1750, and for Class “D” shares of $0.1625.



     “Maximum Lawful Rate” has the meaning given to such term in Section 3.2(b)
hereof.



     “Maximum Loan Availability” means the lesser of (a) the amount of the Commitment and
(b) the amount, if any, by which the Unencumbered Pool Value divided by 1.67 exceeds all Unsecured
Indebtedness (other than the Commitment) of Borrower and its Subsidiaries.



     “Mortgage” means a mortgage, deed of trust or deed to secure debt or similar security
instrument made by a Person owning an interest in real estate granting a Lien or such interest in
real estate as security for the payment of Indebtedness.



     “Net Operating Income” means, for any Property for the period in question, but without
duplication, the sum of (a) rents and other revenues received in the ordinary course from such
Property (including amounts received from tenants as reimbursements for common area maintenance,
taxes and insurance and proceeds of rent loss insurance but excluding pre-paid rents and revenues
and security deposits except to the extent applied in satisfaction of tenants’ obligations for
rent) minus (b) all expenses paid or accrued related to the ownership, operation or maintenance of
such property, including but not limited to taxes, assessments and the like, insurance, utilities,
payroll costs, maintenance, repair and landscaping expenses, marketing expenses, and general and
administrative expenses (including an appropriate allocation for legal, accounting, advertising,
marketing and other expenses incurred in connection with such property, but specifically excluding
general overhead expenses of Borrower, Interest Expense on Indebtedness and any property management
fees) minus (c) the Capital Expenditures Reserve for such Property as of the end of such period
minus (d) the greater of (i) the actual property management fee paid during such period and (ii) an
imputed management fee determined by multiplying the Applicable Management Fee Percentage times the
gross revenues for such Property for such period, in each case determined in accordance with GAAP;
however, non-cash GAAP adjustments, including, but not limited to, straight line rent and
over/under market rent, will be excluded.



     “Non-ERISA Plan” means any Plan subject to Section 4975 of the Internal Revenue Code.



     “Notice of Borrowing” means a notice in the form of Exhibit C to be delivered to
Lender by Borrower pursuant to Section 2.2.



     “Notice of Continuation” means a notice in the form of Exhibit D to be delivered to
Lender by Borrower pursuant to Section 2.4.



     “Notice of Conversion” means a notice in the form of Exhibit E to be delivered to
Lender by Borrower pursuant to Section 2.5.



14









 





     “Obligations” means, individually and collectively: (a) the Loans; (b) all
Reimbursement Obligations and all other Letter of Credit Liabilities; (c) any and all renewals and
extensions of any of the foregoing and (d) all other indebtedness, liabilities, obligations,
covenants and duties of Borrower owing to Lender and/or the Issuing Bank of every kind, nature and
description, under or in respect of this Agreement or any of the other Loan Documents, whether
direct or indirect, absolute or contingent, due or not due, contractual or tortious, liquidated or
unliquidated, and whether or not evidenced by any promissory note.



     “Occupancy Rate” means, with respect to a Property at any time, the ratio, expressed
as a percentage, of (a) the net rentable square footage of such Property actually occupied by
tenants paying rent pursuant to binding leases as to which no monetary default has occurred and has
been continuing for a period of 90 or more days to (b) the aggregate net rentable square footage of
such Property.



     “Off Balance Sheet Liabilities” means, with respect to any Person, any obligation or
liability that does not appear as a liability on the balance sheet of such Person and that
constitutes (a) any repurchase obligation or liability, contingent or otherwise, of such Person
with respect to any accounts or notes receivable sold, transferred or otherwise disposed of by such
Person, (b) any repurchase obligation or liability, contingent or otherwise, of such Person with
respect to property or assets leased by such Person as lessee and (c) all obligations, contingent
or otherwise, of such Person under any synthetic lease, tax retention operating lease, off balance
sheet loan or similar off balance sheet financing if the transaction giving rise to such obligation
(i) is considered indebtedness for borrowed money for tax purposes but is classified as an
operating lease or (ii) does not (and is not required pursuant to GAAP to) appear as a liability on
the balance sheet of such Person.



     “Operating Property Value” means, as of a given date, the sum of (A) Net Operating
Income for all Properties (excluding Development Properties) on a trailing twelve month basis for
the Borrower and its Subsidiaries, and (B) the Ownership Share of such Person’s Unconsolidated
Affiliates, divided by eight percent (8%). For purposes of determining Operating Property Value
(i) Net Operating Income from Properties acquired, or disposed of, by the Borrower or any
Subsidiary during the trailing twelve months of the Borrower shall be excluded; however, acquired
Property will be included initially at a value equal to the purchase price of such Property for the
fiscal quarter in which it was purchased and will subsequently be valued based on Net Operating
Income by annualizing the trailing Net Operating Income starting in the quarter subsequent to the
quarter in which it was purchased until such time as twelve full months are included, at which time
Net Operating Income for such trailing twelve-month period will be used to determine value (for
example, at the end of the third full operating quarter in which the Property is owned, Net
Operating Income for the preceding nine (9) months would be annualized), (ii) Net Operating Income
from Development Properties shall be excluded, and (iii) with respect to a Property owned by a
Subsidiary that is not a Wholly Owned Subsidiary, only the Borrower’s Ownership Share of the Net
Operating Income of such Property shall be used when determining Operating Property Value.



     “Ownership Share” means, with respect to any Subsidiary of a Person or any
Unconsolidated Affiliate of a Person, the greater of (a) such Person’s relative nominal direct and
indirect ownership interest (expressed as a percentage) in such Subsidiary or Unconsolidated



15









 







Affiliate or (b) such Person’s relative direct and indirect economic interest (calculated as a
percentage) in such Subsidiary or Unconsolidated Affiliate determined in accordance with the
applicable provisions of the declaration of trust, articles or certificate of incorporation,
articles of organization, partnership agreement, joint venture agreement or other applicable
organizational document of such Subsidiary or Unconsolidated Affiliate.



     “PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any
or all of its functions under ERISA.



     “Permitted Distributions” means an amount not exceeding the lesser of (x) the Maximum
Dividend Per Share amount and (y) the “Applicable Distribution Percentage” (set forth below) of
Borrower’s Funds from Operations for the applicable calendar quarter as follows:



	 	 	 
	Calendar Quarter	 	Applicable Distribution Percentage
	 	 	 
	Quarter ending December 31, 2008
	 	150%
	 	 	 
	Quarter ending March 31, 2009
	 	100%
	 	 	 
	Quarter ending June 30, 2009
	 	100%
	 	 	 
	Quarter ending September 30, 2009
	 	100%






     “Permitted Liens” means (a) Liens granted to Lender to secure the Obligations, (b)
pledges or deposits made to secure payment of worker’s compensation (or to participate in any fund
in connection with worker’s compensation insurance), unemployment insurance, pensions or social
security programs, (c) encumbrances consisting of zoning restrictions, easements, or other
restrictions on the use of real property, provided that such items do not materially impair the use
of such property for the purposes intended and none of which is violated in any material respect by
existing or proposed structures or land use, (d) the following to the extent no Lien has been filed
in any jurisdiction or agreed to: (i) Liens for taxes not yet due and payable; or (ii) Liens
imposed by mandatory provisions of Applicable Law such as for materialmen’s, mechanic’s,
warehousemen’s and other like Liens arising in the ordinary course of business, securing payment of
Indebtedness the payment of which is not yet due, (e) Liens for taxes, assessments and governmental
charges or assessments that are being contested in good faith by appropriate proceedings diligently
conducted, and for which reserves acceptable to Lender have been provided, (f) Liens expressly
permitted under the terms of the Loan Documents, and (g) any extension, renewal or replacement of
the foregoing to the extent such Lien as so extended, renewed or replaced would otherwise be
permitted hereunder.



     “Person” means an individual, a corporation, a partnership, a limited liability
company, an association, a trust or any other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.



     “Plan” means at any time an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the Internal Revenue
Code.



16









 





     “Prime Rate” means a base rate of interest which Lender establishes from time to time
and which serves as the basis upon which the effective rates of interest are calculated for those
loans making reference thereto (which rate of interest may not be the lowest rate charged by the
Lender). Any change in an Effective Rate due to a change in the Prime Rate shall become effective
on the day each such change is announced within Lender.



     “Property” means real property improved with one or more operating retail properties.



     “Property Management Agreements” means, collectively, all agreements entered into by
any Person with a Property Manager pursuant to which such Person engages such Property Manager to
advise such Person with respect to the management of a Property.



     “Property Manager” means any Person engaged under a Property Management Agreement to
advise the owner of a Property with respect to the management of such Property.



     “Regulations T, U and X” means Regulations T, U and X of the Board of Governors of the
Federal Reserve System, as in effect from time to time.



     “Reimbursement Obligation” means the absolute, unconditional and irrevocable
obligation of Borrower to reimburse the Issuing Bank for any drawing honored by the Issuing Bank
under a Letter of Credit.



     “REIT” means a Person qualifying for treatment as a “real estate investment trust”
under the Internal Revenue Code.



     “Reserve Percentage” is at any time the percentage announced within Lender as the
reserve percentage under Regulation D for loans and obligations making reference to the Daily LIBO
Rate or to an Adjusted LIBO Rate for an Interest Period or time remaining in an Interest Period
after the date of a Consequential Loss, as appropriate. The Reserve Percentage shall be based on
Regulation D or other regulations from time to time in effect concerning reserves for Eurocurrency
Liabilities as defined in Regulation D from related institutions as though Lender were in a net
borrowing position, as promulgated by the Board of Governors of the Federal Reserve System, or its
successor.



     “Reserved Construction Loan” shall mean a construction loan extended to Borrower or
any Subsidiary for the purpose of financing construction of a Property in respect of which: (a) no
default or event of default exists; (b) interest on such loan has been budgeted to accrue at a rate
of not less than the Base Rate at the time the interest reserve account is established; (c) the
amount of such budgeted interest has been (i) included in the principal amount of such loan and
(ii) segregated into an interest reserve account (which shall include any arrangement whereby loan
proceeds equal to such budgeted interest are reserved and only disbursed to make interest payments
in respect of such loan); (d) absent an event of default or default, such interest can be paid out
of such interest reserve account only for the purpose of making interest payments on such loan; and
(e) the amount held in such interest reserve account in respect of such loan, together with the net
income, if any, from such Property projected by Lender will be sufficient, as determined by Lender,
to pay all Interest Expense on such loan until the date that the Net Operating Income of such
Property is anticipated to be sufficient to pay all Interest Expense on such loan.



17









 





     “Restricted Payment” means cash payments or other distributions on, or in respect of,
any class of stock of, or other equity interest in, a Person, or other payments or transfers made
in respect of the redemption, repurchase or acquisition of such stock or equity interest, other
than any distribution or other payment payable solely in capital stock of such Person.



     “Revolving Credit Termination Date” means the earlier to occur of (a) October 30, 2009
or (b) the date on which the Commitment is terminated pursuant to Section 9.2.



     “Revolving Loan” means the credit facility evidenced by the Revolving Note.



     “Revolving Note” means the promissory note executed by Borrower, payable to the order
of Lender, in the amount of the Commitment and substantially in the form of Exhibit B.



     “Secured Indebtedness” means, with respect to any Person, any Indebtedness of such
Person that is secured in any manner by any Lien on any real property and shall include such
Person’s Ownership Share of the Secured Indebtedness of any of such Person’s Unconsolidated
Affiliates. The term “Secured Indebtedness” shall not include Indebtedness secured by partnership
interests.



     “Share” means a transferable unit of beneficial interest in Borrower.



     “Solvent” means, when used with respect to any Person, that (a) the fair value and the
fair salable value of its assets (excluding any Indebtedness due from any Affiliate of such Person)
are each in excess of the fair valuation of its total liabilities (including all contingent
liabilities); (b) such Person is able to pay its debts or other obligations in the ordinary course
as they mature and (c) that the Person has capital not unreasonably small to carry on its business
and all business in which it proposes to be engaged.



     “Special Purpose Subsidiary” means any “single-asset” or “single pool” Subsidiary of
the Borrower that has been or may hereafter be formed by the Borrower for the exclusive purposes of
obtaining permanent financing from a lender, and owning and operating the assets so financed, and
which is prohibited by such lender from providing any guaranty of other Indebtedness.



     “Stated Amount” means the amount available to be drawn by a beneficiary under a Letter
of Credit from time to time, as such amount may be increased or reduced from time to time in
accordance with the terms of such Letter of Credit.



     “Subsidiary” means, for any Person, any corporation, partnership or other entity of
which at least a majority of the securities or other ownership interests having by the terms
thereof ordinary voting power to elect a majority of the board of directors or other persons
performing similar functions of such corporation, partnership or other entity (without regard to
the occurrence of any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person or by such Person and one or more
Subsidiaries of such Person. “Wholly Owned Subsidiary” means any such corporation, partnership or
other entity of which all of the equity securities or other ownership interests (other than, in the
case of a corporation, directors’ qualifying shares) are so owned or controlled.



18









 





     “Substantial Amount” means, at the time of determination thereof, an amount greater
than or equal to 15% of the sum of (a) total consolidated assets of Borrower and its Subsidiaries,
on a consolidated basis, at such time, plus (b) accumulated depreciation of Borrower and its
Subsidiaries, on a consolidated basis, at such time.



     “Tangible Net Worth” means, for any Person and as of a given date, such Person’s total
consolidated stockholders’ equity, excluding intangible assets, plus, in the case of the
Borrower, increases in accumulated depreciation and amortization accrued after the Effective Date,
minus (to the extent contained in determining stockholders’ equity of such Person): (a)
the amount of any write-up in the book value of any assets reflected in any balance sheet resulting
from revaluation thereof or any write-up in excess of the cost of such assets acquired, and (b) the
aggregate of all amounts appearing on the assets side of any such balance sheet for franchises,
licenses, permits, patents, patent applications, copyrights, trademarks, service marks, trade
names, goodwill, treasury stock, experimental or organizational expenses and other like assets
which would be classified as intangible assets under GAAP, all determined on a consolidated basis.



     “Total Budgeted Costs” means, with respect to any Development Property, all amounts
budgeted with respect to all of the following: (a) acquisition of land and any related
improvements; (b) a reasonable and appropriate reserve for construction interest; (c) a reasonable
and appropriate operating deficit reserve; (d) tenant improvements, (e) leasing commissions and (f)
other hard and soft costs associated with the development or redevelopment of such real property.
With respect to any real property to be developed in more than one phase, the Total Budgeted Cost
shall exclude budgeted costs (other than costs relating to acquisition of land and related
improvements) to the extent relating to any phase for which (i) construction has not yet commenced
and (ii) a binding construction contract has not been entered into by the Borrower, any other
Subsidiary or any Unconsolidated Affiliate, as the case may be. For purposes of this definition,
Total Budgeted Costs shall, with respect to any real property being developed by an Unconsolidated
Affiliate, be equal to the greater of (x) Borrower’s or any Subsidiary’s Ownership Share of such
Unconsolidated Affiliate times the Total Budgeted Costs determined in accordance with the foregoing
or (y) the total amount of Indebtedness related to such real property that Borrower or any
Subsidiary has Guaranteed or is otherwise obligated on a recourse basis.



     “Total Liabilities” means, as to any Person as of a given date, all liabilities which
would, in conformity with GAAP, be properly classified as a liability on a consolidated balance
sheet of such Person as of such date, and in any event shall include (without duplication): (a)
all Indebtedness of such Person, including without limitation, Capitalized Lease Obligations and
reimbursement obligations with respect to any letter of credit, (b) all accounts payable and
accrued expenses of such Person; (c) all purchase and repurchase obligations and forward
commitments of such Person to the extent such obligations or commitments are evidenced by a binding
purchase agreement (forward commitments shall include without limitation (i) forward equity
commitments and (ii) commitments to purchase any real property under development, redevelopment or
renovation); (d) all unfunded obligations of such Person; (e) all lease obligations of such Person
(including ground leases) to the extent required under GAAP to be classified as a liability on a
balance sheet of such Person; (f) all contingent obligations of such Person including, without
limitation, all Guarantees of Indebtedness by such Person; (g) all liabilities of any
Unconsolidated Affiliate of such Person, which liabilities such Person has



19









 







Guaranteed or is otherwise obligated on a recourse basis; and (h) such Person’s Ownership
Share of the Indebtedness of any Unconsolidated Affiliate of such Person, including Nonrecourse
Indebtedness of such Person. For purposes of clauses (c) and (d) of this definition, the amount of
Total Liabilities of a Person at any given time in respect of (x) a contract to purchase or
otherwise acquire unimproved or fully developed real property shall be equal to (i) the total
purchase price payable by such Person under such contract if, at such time, the seller of such real
property would be entitled to specifically enforce such contract against such Person, otherwise,
(ii) the aggregate amount of due diligence deposits, earnest money payments and other similar
payments made by such Person under such contract which, at such time, would be subject to
forfeiture upon termination of the contract and (y) a contract relating to the acquisition of real
property which the seller is required to develop or renovate prior to, and as a condition precedent
to, such acquisition, shall be equal to (i) the maximum amount reasonably estimated to be payable
by such Person under such contract assuming performance by the seller of its obligations under such
contract, which amount shall include, without limitation, any amounts payable after consummation of
such acquisition which may be based on certain performance levels or other related criteria if, at
such time, the seller of such real property would be entitled to specifically enforce such contract
against such Person, otherwise (ii) the aggregate amount of due diligence deposits, earnest money
payments and other similar payments made by such Person under such contract which, at such time,
would be subject to forfeiture upon termination of the contract. For purposes of this definition,
Total Budgeted Costs shall include the Total Budgeted Costs of Development Properties being
developed by third parties with related Indebtedness which such Person Guaranteed or is otherwise
obligated.



     “Type” with respect to the Revolving Loan, refers to whether the applicable portion of
the Revolving Loan is a LIBOR Loan or a Base Rate Loan.



     “Unconsolidated Affiliate” shall mean, in respect of any Person, any other Person in
whom such Person holds an Investment, which Investment is accounted for in the financial statements
of such Person on an equity basis of accounting and whose financial results would not be
consolidated under GAAP with the financial results of such Person on the consolidated financial
statements of such Person.



     “Unencumbered Net Operating Income” means, for any period, the aggregate Net Operating
Income for such period for each Property of Borrower or any Subsidiary which satisfies all of the
following requirements as determined by Lender: (a) such Property is 100% owned in fee simple by
Borrower or a Wholly Owned Subsidiary of Borrower; (b) neither such Property nor any interest of
Borrower or such Subsidiary therein, is subject to any Lien other than Permitted Liens or to any
agreement (other than this Agreement or any other Loan Document) that prohibits the creation of any
Lien thereon as security for Indebtedness; (c) if such Property is owned by a Subsidiary: (i) none
of Borrower’s Ownership Share in such Subsidiary is subject to any Lien other than Permitted Liens
or to any agreement (other than this Agreement or any other Loan Document) that prohibits the
creation of any Lien thereon as security for Indebtedness and (ii) neither such Subsidiary, nor any
other Subsidiary through which Borrower holds any indirect interest in such Subsidiary, is subject
to any restriction of any kind which would limit its ability to pay or perform its obligations
under the Guaranty required to be delivered hereunder prior to its obligation to pay dividends or
make any other distribution



20









 







on any of such Subsidiary’s capital stock or other securities owned by Borrower or any other
Subsidiary of Borrower.



     “Unencumbered Pool Certificate” means a report, certified by the chief financial
officer of Borrower in the manner provided for in Exhibit G, setting forth the calculations
required to establish the Unencumbered Pool Value as of a specified date, all in form and detail
satisfactory to Lender.



     “Unencumbered Pool Properties” means those Eligible Properties that have been approved
pursuant to Article 4 for inclusion when calculating the Maximum Loan Availability.



     “Unencumbered Pool Value” means, at any time, the sum of the following amounts as
determined for each Unencumbered Pool Property: (a) the Net Operating Income of such Unencumbered
Pool Property for the fiscal quarter most recently ended times (b) 4 and divided by (c) the
Applicable NOI Percent.



     The “Applicable NOI Percent” shall be:



     (x) 8.5% with respect to the MacArthur Pads, CVS Pharmacies, Woodlands Plaza, Uptown Plaza,
Courtyard at Post Oak, and Woodlands Ring Road;



     (y) 9.5% with respect to AFC, Inc., Carlsons Restaurant (TGI Fridays), Golden Corral, IHOP
Topeka, Dardin (Smokey Bones) and 410 and Blanco — Citibank; and



     (z) with respect to any additional Unencumbered Pool Properties, the Applicable NOI Percent
shall be either 8.5% or 9.5%, as determined by Lender in its sole discretion.



     “Unsecured Indebtedness” means, with respect to a Person, all Indebtedness of such
Person that is not Secured Indebtedness.



     “Unsecured Interest Expense” means, with respect to a Person and for a given period,
all Interest Expense for such period attributable to the Unsecured Indebtedness of such Person.



     “Unused Fee” means a fee payable by Borrower to Lender in consideration of Lender’s
having the Commitment available to be loaned to Borrower, which Unused Fee shall be calculated and
paid quarterly based on the portion of the Commitment, determined on a daily basis, not borrowed
and outstanding during such preceding calendar quarter.



     “Uptown Plaza” means those retail properties so identified on Schedule 4.1 (other than
the CVS Site located in Uptown Plaza), which are not encumbered by a Lien.



     “Woodlands Plaza” means those retail properties so identified on Schedule 4.1, which
are not encumbered by a Lien.



     “Woodlands Ring Road” means those retail properties so identified on Schedule 4.1,
which are not encumbered by a Lien.



21









 





     Section 1.2 Accounting Terms and Determinations; Covenant Calculations.



     Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements required to be
delivered hereunder shall be prepared in accordance with GAAP.



     Section 1.3 Subsidiaries.



     Unless explicitly set forth to the contrary, a reference to “Subsidiary” shall mean a
Subsidiary of Borrower and a reference to an “Affiliate” shall mean a reference to an Affiliate of
Borrower.



     Section 1.4 Interpretation Generally; Times.



     References in this Agreement to “Sections,” “Articles,” “Exhibits” and “Schedules” are to
sections, articles, exhibits and schedules herein and hereto unless otherwise indicated.
References in this Agreement or any other Loan Document to any document, instrument or agreement
(a) shall include all exhibits, schedules and other attachments thereto, as updated from time to
time, (b) shall include all documents, instruments or agreements issued or executed in replacement
thereof, and (c) shall mean such document, instrument or agreement, or replacement or predecessor
thereto, as amended, modified or supplemented from time to time in accordance with its terms and in
effect at any given time. Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and plural, and pronouns stated in the
masculine, feminine or neuter gender shall include the masculine, the feminine and the neuter.
Unless otherwise indicated, all references to time are references to San Francisco, California
time.



ARTICLE 2.

CREDIT FACILITY




     Section 2.1 Making of Revolving Loan.



     (a) Subject to the terms and conditions set forth in this Agreement including, without
limitation, Section 2.1(b), Lender agrees to permit Borrower to make borrowings under the Revolving
Loan during the period from and including the Effective Date to but excluding the Revolving Credit
Termination Date, in an aggregate principal amount at any one time outstanding up to, but not
exceeding, the lesser of (a) the Maximum Loan Availability and (b) the Commitment. Each borrowing
shall be in an aggregate principal amount of (i) with respect to Base Rate Loans, except with
respect to fundings under the Loan for deposits into the Sweep Account (hereinafter defined)
pursuant to Section 2.11 hereof, $100,000.00 and integral multiples of $50,000.00 in excess of that
amount (except that any such borrowing of Base Rate Loans may be in the aggregate amount of the
unused Commitment) and (ii) with respect to LIBOR Loans, $250,000.00 and integral multiples of
$100,000.00 in excess of that amount. Within the foregoing limits and subject to the other terms
of this Agreement, Borrower may borrow, repay and reborrow the Revolving Loan.



     (b) Notwithstanding any other term of this Agreement or any other Loan Document, at no time
may the aggregate principal amount of all outstanding LIBOR Loans, Base Rate



22









 







Loans and Letter of Credit Liabilities, exceed the lesser of (a) Maximum Loan Availability at
such time or (b) the Commitment.



     Section 2.2 Requests for Borrowings.



     Not later than 10:00 a.m. at least one Business Day prior to a borrowing of Base Rate Loans,
except with respect to fundings under the Loan for deposit into the Sweep Account pursuant to
Section 2.11 hereof, and not later than 10:00 a.m. at least three Business Days prior to a
borrowing of LIBOR Loans, Borrower shall deliver to Lender a Notice of Borrowing. Each Notice of
Borrowing shall specify the principal amount of the Revolving Loans to be borrowed, the date such
amount is to be borrowed (which must be a Business Day), the use of the proceeds of such borrowing,
the Type of the requested borrowing and if such borrowing is to be a LIBOR Loan, the initial
Interest Period for such LIBOR Loan. Each Notice of Borrowing shall be irrevocable once given and
binding on Borrower. Prior to delivering a Notice of Borrowing, Borrower may (without specifying
whether the borrowing will be a Base Rate Loan or a LIBOR Loan) request that Lender provide
Borrower with the most recent LIBO Rate available to Lender. Lender shall provide such quoted rate
to Borrower on the date of such request or as soon as possible thereafter.



     Section 2.3 Funding.



     Promptly after receipt of a Notice of Borrowing, and upon and subject to fulfillment of all
applicable conditions set forth herein, Lender shall make available to Borrower at Lender’s Lending
Office, not later than 11:00 a.m. on the date of the requested borrowing, the proceeds of such
borrowing.



     Section 2.4 Continuation.



     So long as no Event of Default shall have occurred and be continuing, Borrower may on any
Business Day, with respect to any LIBOR Loan, elect to maintain such LIBOR Loan or any portion
thereof as a LIBOR Loan by selecting a new Interest Period for such LIBOR Loan. Each new Interest
Period selected under this Section shall commence on the last day of the immediately preceding
Interest Period. Each selection of a new Interest Period shall be made by Borrower’s giving of a
Notice of Continuation not later than 10:00 a.m. on the third Business Day prior to the date of any
such Continuation by Borrower to Lender. Such notice by Borrower of a Continuation shall be by
telephone or telecopy, confirmed immediately in writing if by telephone, in the form of a Notice of
Continuation, specifying (a) the date of such Continuation, (b) the LIBOR Loan and portion thereof
subject to such Continuation and (c) the duration of the selected Interest Period, all of which
shall be specified in such manner as is necessary to comply with all limitations on Loans
outstanding hereunder. Each Notice of Continuation shall be irrevocable by and binding on Borrower
once given. If Borrower shall fail to select in a timely manner a new Interest Period for any
LIBOR Loan in accordance with this Section, such Loan will automatically, on the last day of the
current Interest Period therefore, Convert into a Base Rate Loan notwithstanding failure of
Borrower to comply with Section 2.5.



23









 





     Section 2.5 Conversion.



     So long as no Event of Default shall have occurred and be continuing, Borrower may on any
Business Day, upon Borrower’s giving of a Notice of Conversion to Lender, Convert the entire amount
of all or a portion of a Loan of one Type into a Loan of another Type. Any Conversion of a LIBOR
Loan into a Base Rate Loan shall be made on, and only on, the last day of an Interest Period for
such LIBOR Loan. Each such Notice of Conversion shall be given not later than 10:00 a.m. on the
Business Day prior to the date of any proposed Conversion into Base Rate Loans and on the third
Business Day prior to the date of any proposed Conversion into LIBOR Loans. Subject to the
restrictions specified above, each Notice of Conversion shall be by telephone or telecopy confirmed
immediately in writing if by telephone in the form of a Notice of Conversion specifying (a) the
requested date of such Conversion, (b) the Type of Loan to be Converted, (c) the portion of such
Type of Loan to be Converted, (d) the Type of Loan such Loan is to be Converted into and (e) if
such Conversion is into a LIBOR Loan, the requested duration of the Interest Period of such Loan.
Each Notice of Conversion shall be irrevocable by and binding on Borrower once given. Each
Conversion from a Base Rate Loan to a LIBOR Loan shall be in an amount of not less than $250,000.00
or integral multiples of $100,000.00 in excess of that amount.



     Section 2.6 Interest Rate.



     (a) All Loans. The unpaid principal of each Base Rate Loan shall bear interest from the date
of the making of such Loan to but not including the date of repayment thereof at a rate per annum
equal to the Base Rate in effect from day to day. The unpaid principal of each LIBOR Loan shall
bear interest from the date of the making of such Loan to but not including the date of repayment
thereof at a rate per annum equal to the Effective Rate for the Interest Period therefor.



     (b) Default Rate. Notwithstanding the immediately preceding subsection (a), or any other
provision of this Agreement to the contrary, effective immediately upon the occurrence and during
the continuance of any Event of Default, the outstanding principal balance of the Loans and all
Reimbursement Obligations, and to the extent permitted by Applicable Law any interest payments on
the Loans not paid when due, shall bear interest payable on demand until paid at the lesser of the
Maximum Rate or the Base Rate from time to time in effect plus four percent (4.0%).



     Section 2.7 Special Provisions for LIBOR Loans.



     (a) Inadequacy of LIBOR Pricing. Anything herein to the contrary notwithstanding, if, on or
prior to the determination of any LIBO Rate for any Interest Period:




     (i) Lender reasonably determines, which determination shall be conclusive, absent
manifest error, that quotations of interest rates for the relevant deposits referred to in
the definition of LIBO Rate are not being provided in the relevant amounts or for the
relevant maturities for purposes of determining rates of interest for LIBOR Loans as
provided herein; or



24









 






     (ii) Lender reasonably determines, which determination shall be conclusive, absent
manifest error, that the relevant rates of interest referred to in the definition of LIBO
Rate upon the basis of which the rate of interest for LIBOR Loans for such Interest Period
is to be determined are not likely adequately to cover the cost to Lender of making or
maintaining LIBOR Loans for such Interest Period;


then Lender shall give Borrower prompt notice thereof and, so long as such condition remains in
effect, Lender shall be under no obligation to, and shall not, make additional LIBOR Loans,
Continue LIBOR Loans or Convert Base Rate Loans into LIBOR Loans and Borrower shall, on the last
day of each current Interest Period for each outstanding LIBOR Loan, either prepay such Loan or
Convert such Loan into a Base Rate Loan in accordance with Section 2.5.




     (b) Number of Interest Periods. Anything herein to the contrary notwithstanding, there shall
not be outstanding at any one time more than six (6) Interest Periods.



     (c) Illegality of LIBOR Loans. If, after the date of this Agreement, the adoption of any
Applicable Law, rule or regulation, or any change therein, or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by Lender with any request or
directive (whether or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for Lender to make, maintain or fund LIBOR
Loans, Lender shall forthwith give notice thereof to Borrower. Before giving any notice pursuant
to this subsection, Lender shall designate a different LIBOR lending office if such designation
will avoid the need for giving such notice and will not be otherwise materially disadvantageous to
Lender (as determined in the reasonable judgment of Lender). Upon receipt of such notice, Borrower
shall Convert all then existing LIBOR Loans to Base Rate Loans, on either (i) the last day of the
then-current Interest Period applicable to such LIBOR Loan if Lender may lawfully continue to
maintain and fund such LIBOR Loan to such day or (ii) immediately if Lender may not lawfully
continue to fund and maintain such LIBOR Loan to such day.



     (d) Consequential Losses. Borrower shall indemnify Lender against any Consequential Loss
incurred by Lender as a result of (i) any failure to fulfill, on or before the date specified for
such Loan in the applicable Notice of Borrowing, the conditions to such Loan set forth herein, or
(ii) Borrower’s requesting that a Base Rate Loan not be Converted into a LIBOR Loan on the date
specified for such Conversion in a Notice of Conversion, (iii) Borrower’s requesting that a LIBOR
Loan not be Continued on the date specified for such Continuation in a Notice of Continuation or
(iv) Borrower’s requesting that a LIBOR Loan not be made on the date specified for such LIBOR Loan
in the Notice of Borrowing. A certificate of Lender establishing the amount due from Borrower
according to the preceding sentence, together with a description in reasonable detail of the manner
in which such amount has been calculated, shall be prima facie evidence thereof.



     (e) Increased Costs for LIBOR Loans. If, after the date hereof, any Governmental Authority,
central bank or other comparable authority, shall at any time impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the Board of Governors of the Federal
Reserve System), special deposit or similar requirement against assets of, deposits



25









 







with or for the account of, or credit extended by Lender or shall impose on Lender (or its
eurodollar lending office) or the interbank eurodollar market any other condition affecting its
LIBOR Loans, the Revolving Note or Lender’s obligation to make LIBOR Loans; and the result of any
of the foregoing is to increase the cost to Lender of making or maintaining LIBOR Loans, or to
reduce the amount of any sum received or receivable by Lender under this Agreement, or under the
Revolving Note, by an amount reasonably deemed by Lender to be material, then, within five days
after demand by Lender, Borrower shall pay to Lender such additional amount or amounts as will
compensate Lender for such increased cost or reduction. Lender will (i) notify Borrower of any
event occurring after the date of this Agreement which will entitle Lender to compensation pursuant
to this subsection as promptly as practicable (but in any event within 120 days) after Lender
obtains actual knowledge of such event, and Borrower shall not be liable for any such increased
costs that accrue between the date such notification is required to be given and the date it was
actually given and (ii) use good faith and reasonable efforts to designate a different lending
office for Lender’s LIBOR Loans if such designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the reasonable opinion of Lender, be materially
disadvantageous to Lender. A certificate of Lender claiming compensation under this Section and
setting forth in reasonable detail the calculation of the additional amount or amounts to be paid
to it hereunder shall be prima facie evidence thereof.



     (f) Effect on Base Rate Loans. If notice has been given pursuant to Section 2.7(a) or (c)
requiring LIBOR Loans of Lender to be repaid or Converted, then unless and until Lender notifies
Borrower that the circumstances giving rise to such repayment no longer apply, all Loans shall be
Base Rate Loans. If Lender notifies Borrower that the circumstances giving rise to such repayment
no longer apply, Borrower may thereafter select LIBOR Loans.



     (g) Payments Not at End of Interest Period. If Borrower makes any payment of principal with
respect to any LIBOR Loan on any day other than the last day of an Interest Period applicable to
such LIBOR Loan, then Borrower shall reimburse Lender on demand the Consequential Loss incurred by
Lender as a result of the timing of such payment. A certificate of Lender setting forth in
reasonable detail the basis for the determination of the amount of Consequential Loss shall be
delivered to Borrower by Lender and shall, in the absence of demonstrable error, be conclusive and
binding. Any Conversion of a LIBOR Loan to a Base Rate Loan on any day other than the last day of
the Interest Period for such LIBOR Loan shall be deemed a payment for purposes of this subsection.



     Section 2.8 Capital Adequacy.



     If, after the date hereof, Lender shall have reasonably determined that either (a) the
adoption of any law, rule, regulation or guideline of general applicability regarding capital
adequacy, or any change therein, or any change in the interpretation or administration thereof by
any Governmental Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or (b) compliance by Lender (or any lending office of Lender) with any
request or directive of general applicability regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on Lender’s capital as a consequence of its or Borrower’s
obligations hereunder to a level below that which Lender could have achieved but for such adoption,
change or compliance (taking into consideration Lender’s policies with respect to



26









 







capital adequacy) by an amount reasonably deemed by Lender to be material, then from time to
time, Lender may notify Borrower, which notice shall include a calculation and a reference to the
law, rule or regulation. Within 120 days thereafter, Borrower shall either (i) pay to Lender such
additional amount or amounts as will adequately compensate Lender for such reduction effective with
the 121st day, or (ii) payoff the Loans. Lender will notify Borrower of any such
determination which will entitle Lender to compensation pursuant to this subsection as promptly as
practicable (but in any event within 120 days) after Lender obtains actual knowledge of the event
or condition prompting Lender to make such determination. A certificate of Lender claiming
compensation under this Section and setting forth the additional amount or amounts to be paid to it
hereunder, together with the description of the manner in which such amounts have been calculated,
shall be prima facie evidence thereof. In determining such amount, Lender may use any reasonable
averaging and attribution methods.



     Section 2.9 Repayment of Loans.



     (a) All accrued and unpaid interest on the unpaid principal amount of each Loan shall be
payable (i) monthly in arrears on the first day of each month, commencing with the first full
calendar month occurring after the Effective Date, (ii) on the Revolving Credit Termination Date
and (iii) on any date on which the principal balance of such Loan is due and payable in full.



     (b) The aggregate outstanding principal balance of Revolving Loan shall be due and payable in
full on the Revolving Credit Termination Date.



     (c) Except with respect to payments under the Sweep Agreement, Borrower may, upon at least one
Business Day’s prior notice to Lender, prepay any Loan in whole at any time, or from time to time
in part in an amount equal to $100,000.00 or integral multiples of $50,000.00 in excess of that
amount, by paying the principal amount to be prepaid. If Borrower shall prepay the principal of
any LIBOR Loan on any date other than the last day of the Interest Period applicable thereto,
Borrower shall pay the amounts, if any, due under Section 2.7(d) and (g).



     (d) If at any time the aggregate principal amount of all outstanding principal balances of
LIBOR Loans and Base Rate Loans, together with the aggregate amount of Letter of Credit
Liabilities, exceeds the aggregate amount of the Commitment, Borrower shall promptly upon demand
pay to Lender the amount of such excess. If at any time the aggregate outstanding principal
balances of LIBOR Loans and Base Rate Loans together with the aggregate amount of all Letter of
Credit Liabilities, exceeds the Maximum Loan Availability, then Borrower shall, within 10 days of
Borrower obtaining actual knowledge of the occurrence of such excess, deliver to Lender a written
plan acceptable to Lender to eliminate such excess (whether by designation of additional Properties
as Unencumbered Pool Properties, by Borrower repaying an appropriate amount of Loans, or
otherwise). If such excess is not eliminated within 30 days of Borrower obtaining actual knowledge
of the occurrence thereof, then the entire outstanding principal balance of all Loans and all
accrued interest thereon, together with an amount equal to all Letter of Credit Liabilities for
deposit into the Collateral Account, shall be immediately due and payable in full.



27









 





     (e) Except to the extent otherwise provided herein, all payments of principal, interest and
other amounts to be made by Borrower under this Agreement, the Revolving Note or any other Loan
Document shall be made in Dollars, in immediately available funds, without setoff, deduction or
counterclaim, to Lender at its Lending Office, not later than 11:00 a.m. on the date on which such
payment shall become due (each such payment made after such time on such due date to be deemed to
have been made on the next succeeding Business Day). All payments to be made by Borrower to the
Issuing Bank under this Agreement or any other Loan Document shall be made in Dollars, in
immediately available funds, without setoff, deduction or counterclaim, to the Issuing Bank, not
later than 11:00 a.m. on the date on which such payment shall become due (each such payment made
after such time on such due date to be deemed to have been made on the next succeeding Business
Day). The parties agree that if Borrower makes any payment due hereunder after 11:00 a.m. but
before 5:00 p.m. on the date such payment is due, such late payment shall not constitute a Default
under Section 9.1(a) but shall nevertheless for all other purposes, including but not limited to,
the calculation of interest and any fees payable pursuant to Section 3.1, be deemed to have been
paid as of the next succeeding Business Day as provided in the applicable parenthetical phrase of
the preceding sentences. If the due date of any payment under this Agreement or any other Loan
Document would otherwise fall on a day which is not a Business Day such date shall be extended to
the next succeeding Business Day and interest shall be payable for the period of such extension.



     Section 2.10 Voluntary Reductions of the Commitment.



     Borrower may terminate or reduce the aggregate unused amount of the Commitment (for which
purpose use of the Commitment shall be deemed to include the aggregate amount of all Letter of
Credit Liabilities) at any time and from time to time without penalty or premium upon not less than
three Business Days prior notice to Lender of each such termination or reduction, which notice
shall specify the effective date thereof and the amount of any such reduction (which in the case of
any partial reduction of the Commitment shall not be less than $100,000.00 and integral multiples
of $50,000.00 in excess of that amount) and shall be irrevocable once given and effective only upon
receipt by Lender; provided, however, that if Borrower seeks to reduce the Commitment below
$5,000,000.00, then the Commitment shall be reduced to zero and except as otherwise provided
herein, the provisions of this Agreement shall terminate. The Commitment, once reduced pursuant to
this Section, may not be increased. Borrower shall pay all interest and other costs on the Loans
accrued to the date of such reduction or termination of the Commitment of Lender.



     Section 2.11 Credit Sweep Account.



     Borrower wishes to establish an automatic debit/credit sweep between the Revolving Loan and
Account No. 4311786339 (the “Sweep Account”). The Sweep Account shall be activated at such time as
Lender, in Lender’s sole and absolute discretion, deems appropriate, by notice thereof to Borrower.
Upon such activation, then, subject to the terms of this Section, the terms of the sweep shall be
governed by that certain Master Agreement for Treasury Management Services Agreement, dated May 18,
2000, by and between Borrower and Lender (the “Sweep Agreement”). Upon activation of the Sweep
Account, Borrower hereby authorizes Lender, at the close of each business day, to make
disbursements from the Loan for deposit into the Sweep Account (which shall be treated as a Base
Rate Loan) and/or to withdraw funds from



28









 







the Sweep Account to pay, in whole or in part, the outstanding principal balance on the
Revolving Loan. Following such activation, Lender may accept changes to these instructions only by
written request from one of the following persons: H. Kerr Taylor and Chad Braun. Borrower hereby
represents (i) that Lender may rely and act upon any written request from any such individuals and
(ii) that the sweep specified above has been duly authorized by all necessary entity approvals.
Borrower further hereby irrevocably grants, pledges and assigns to Lender, as additional security
for the Loan, all monies now or hereafter deposited in the Sweep Account. Finally, notwithstanding
anything in the Sweep Agreement to the contrary, Borrower agrees that Lender may immediately
terminate the sweep relationship upon any Default under the Loan Documents and/or, whether or not
there has been a Default under the Loan Documents, upon seven (7) days prior written notice to
Borrower.



     Section 2.12 Funds Transfer Disbursements.



     If requested by Borrower, Borrower hereby authorizes Lender to disburse the proceeds of any
Loan(s) made by Lender or its affiliate pursuant to the Loan Documents as requested by an
authorized representative of the Borrower to any of the accounts designated in that certain Exhibit
entitled Transfer Authorizer Designation. Borrower agrees to be bound by any transfer request:
(i) authorized or transmitted by Borrower, or, (ii) made in Borrower’s name and accepted by Lender
in good faith and in compliance with these transfer instruction, even if not properly authorized by
Borrower. Borrower further agrees and acknowledges that Lender may rely solely on any bank routing
number or identifying bank account number or name provided by Borrower to effect a wire or funds
transfer even if the information provided by Borrower identifies a different bank or account holder
than named by the Borrower. Lender is not obligated or required in any way to take any actions to
detect errors in information provided by Borrower. If Lender takes any actions in an attempt to
detect errors in the transmission or content of transfer or requests or takes any actions in an
attempt to detect unauthorized funds transfer requests, Borrower agrees that no matter how many
times Lender takes these actions Lender will not in any situation be liable for failing to take or
correctly perform these actions in the future and such actions shall not become any part of the
transfer disbursement procedures authorized under this provision, the Loan Documents, or any
agreement between Lender and Borrower. Borrower agrees to notify Lender of any errors in the
transfer of any funds or of any unauthorized or improperly authorized transfer requests within 14
days after Lender’s confirmation to Borrower of such transfer. Lender will, in its sole
discretion, determine the funds transfer system and the means by which each transfer will be made.
Lender may delay or refuse to accept a funds transfer request if the transfer would: (i) violate
the terms of this authorization; (ii) require use of a bank unacceptable to Lender or prohibited by
governmental authority; (iii) cause Lender to violate and Federal Reserve or other regulatory risk
control program or guideline, or (iv) otherwise cause Lender to violate any applicable law or
regulation. Lender shall not be liable to Borrower or any other parties for (i) errors, acts or
failures to act of others, including other entities, banks, communications carriers or
clearinghouses, through which Borrower’s transfers may be made or information received or
transmitted, and no such entity shall be deemed an agent of the Lender, (ii) any loss, liability or
delay caused by fires, earthquakes, wars, civil disturbances, power surges or failures, acts of
government, labor disputes, failures in communications networks, legal constraints or other events
beyond Lender’s control, or (iii) any special, consequential, indirect or punitive damages, whether
or not (a) any claim for these damages is based on tort or contract or (b) Lender or Borrower knew
or should



29









 







have known the likelihood of these damages in any situation. Lender makes no representations
or warranties other than those expressly made in this Agreement.



     Section 2.13 Revolving Note.



     The obligation of Borrower to repay the Revolving Loan shall, in addition to this Agreement,
be evidenced by the Revolving Note.



     Section 2.14 Letters of Credit.



     (a) Subject to the terms and conditions of this Agreement including, without limitation,
Section 2.1(b), Lender agrees to cause the Issuing Bank to issue for the account of Borrower during
the period from and including the Effective Date to, but excluding, the Revolving Credit
Termination Date one or more letters of credit (each a “Letter of Credit”) in such form and
containing such terms as may be requested from time to time by Borrower and acceptable to the
Issuing Bank and Lender, up to a maximum aggregate Stated Amount at any one time outstanding not to
exceed the L/C Commitment Amount. Lender and Borrower agree that those Letters of Credit which are
described on Schedule 2.14(a) attached hereto and made a part hereof are outstanding as of the date
of this Agreement but shall, for all purposes, be deemed Letters of Credit issued under this
Agreement.



     (b) At the time of issuance, the amount, terms and conditions of each Letter of Credit, and of
any drafts or acceptances thereunder, shall be subject to approval by the Issuing Bank, Lender and
Borrower. Notwithstanding the foregoing, in no event may (i) the expiration date of any Letter of
Credit extend beyond the Revolving Credit Termination Date, (ii) a Letter of Credit have an initial
duration in excess of one year, (iii) a Letter of Credit contain an automatic renewal clause or
(iv) a Letter of Credit be issued within 30 days of the Revolving Credit Termination Date. The
initial Stated Amount of each Letter of Credit shall be at least $100,000.00.



     (c) In connection with the proposed issuance of a Letter of Credit, Borrower shall give Lender
written notice (or telephonic notice promptly confirmed in writing) prior to the requested date of
issuance of a Letter of Credit, such notice to describe in reasonable detail the proposed terms of
such Letter of Credit and the nature of the transactions or obligations proposed to be supported by
such Letter of Credit, and in any event shall set forth with respect to such Letter of Credit (i)
the proposed initial Stated Amount, (ii) the beneficiary, (iii) whether such Letter of Credit is a
commercial or standby letter of credit and (iv) the proposed expiration date. Borrower shall also
execute and deliver such customary applications and agreements for standby letters of credit,
standby letter of credit agreements, applications for amendment to letter of credit, and other
forms as requested from time to time by Lender or the Issuing Bank. Provided Borrower has given
the notice prescribed by the first sentence of this subsection and Borrower has executed and
delivered to Lender and the Issuing Bank the agreements, applications and other forms as required
by the immediately preceding sentence of this subsection, and subject to the terms and conditions
of this Agreement, including the satisfaction of any applicable conditions precedent set forth in
Article 5., Lender agrees to cause the Issuing Bank to issue the requested Letter of Credit on the
requested date of issuance for the benefit of the stipulated beneficiary but in no event prior to
the date five (5) Business Days following the date after which



30









 







each of Lender and the Issuing Bank received the items required to be delivered to it under
this subsection. Upon the written request of Borrower, Lender shall deliver to Borrower a copy of
each issued Letter of Credit within a reasonable time after the date of issuance thereof. To the
extent any term of a Letter of Credit Document is inconsistent with a term of any Loan Document,
the term of the Letter of Credit Document shall control.



     (d) Upon receipt by the Issuing Bank from the beneficiary of a Letter of Credit of any demand
for payment under such Letter of Credit, Lender shall promptly notify Borrower of the amount to be
paid by the Issuing Bank as a result of such demand and the date on which payment is to be made by
the Issuing Bank to such beneficiary in respect of such demand. Borrower hereby unconditionally
and irrevocably agrees to pay and reimburse the Issuing Bank for the amount of each demand for
payment under such Letter of Credit at or prior to the date on which payment is to be made by the
Issuing Bank to the beneficiary thereunder, without presentment, demand, protest or other
formalities of any kind.



     (e) Unless Borrower shall elect to otherwise satisfy such Reimbursement Obligation, such
reimbursement shall, subject to satisfaction of the conditions in Section 5.1 and Section 5.2
hereof and to the Maximum Loan Availability (after adjustment to reflect elimination of the
corresponding Reimbursement Obligation), automatically be made by a borrowing under the Revolving
Loans.



     (f) In examining documents presented in connection with drawings under Letters of Credit and
making payments under such Letters of Credit against such documents, the Issuing Bank shall only be
required to use the same standard of care as it uses in connection with examining documents
presented in connection with drawings under other letters of credit it has issued and making
payments under such other letters of credit. Borrower assumes all risks of the acts and omissions
of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit.
In furtherance and not in limitation of the foregoing, neither the Issuing Bank, nor Lender shall
be responsible (i) for the form, validity, sufficiency, accuracy, genuineness or legal effects of
any document submitted by any party in connection with the application for and issuance of or any
drawing honored under any Letter of Credit even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the validity or
sufficiency of any instrument transferring or assigning or purporting to transfer or assign any
Letter of Credit, or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason; (iii) for failure of the beneficiary
of any Letter of Credit to comply fully with conditions required in order to draw upon such Letter
of Credit; (iv) for errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telex, telecopy or otherwise, whether or not they be in cipher; (v) for
errors in interpretation of technical terms; (vi) for any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any Letter of Credit, or of the
proceeds thereof; (vii) for the misapplication by the beneficiary of any such Letter of Credit, or
the proceeds of any drawing under such Letter of Credit; and (viii) for any consequences arising
from causes beyond the control of the Issuing Bank or Lender. None of the above shall affect,
impair or prevent the vesting of any of the Issuing Bank’s rights or powers hereunder. Any action
taken or omitted to be taken by the Issuing Bank under or in connection with any Letter of Credit,
if taken or omitted in the absence of gross negligence or willful misconduct, shall not create
against the Issuing Bank any liability to Borrower or Lender. In this connection,



31









 







the obligation of Borrower to reimburse the Issuing Bank for any drawing made under any Letter
of Credit shall be absolute, unconditional and irrevocable and shall be paid strictly in accordance
with the terms of this Agreement or any other applicable Letter of Credit Document under all
circumstances whatsoever, including without limitation, the following circumstances: (i) any lack
of validity or enforceability of any Letter of Credit Document or any term or provisions therein;
(ii) any amendment or waiver of or any consent to departure from all or any of the Letter of Credit
Documents; (iii) the existence of any claim, setoff, defense or other right which Borrower may have
at any time against the Issuing Bank, Lender, any beneficiary of a Letter of Credit or any other
Person, whether in connection with this Agreement, the transactions contemplated hereby or in the
Letter of Credit Documents or any unrelated transaction; (iv) any breach of contract or dispute
between Borrower, the Issuing Bank, Lender or any other Person; (v) any demand, statement or any
other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein or made in connection therewith being untrue
or inaccurate in any respect whatsoever; (vi) any non-application or misapplication by the
beneficiary of a Letter of Credit of the proceeds of any drawing under such Letter of Credit; (vii)
payment by the Issuing Bank under the Letter of Credit against presentation of a draft or
certificate which does not strictly comply with the terms of the Letter of Credit; and (viii) any
other act, omission to act, delay or circumstance whatsoever that might, but for the provisions of
this Section, constitute a legal or equitable defense to or discharge of Borrower’s Reimbursement
Obligations.



     (g) The issuance by the Issuing Bank of any amendment, supplement or other modification to any
Letter of Credit shall be subject to the same conditions applicable under this Agreement to the
issuance of new Letters of Credit (including, without limitation, that the request therefor be made
through the Issuing Bank), and no such amendment, supplement or other modification shall be issued
unless either (i) the respective Letter of Credit affected thereby would have complied with such
conditions had it originally been issued hereunder in such amended, supplemented or modified form
or (ii) Lender shall have consented thereto.



     (h) Upon the issuance by the Issuing Bank of any Letter of Credit and until such Letter of
Credit shall have expired or been terminated, the Commitment shall be deemed to be utilized for all
purposes of this Agreement in an amount equal to the Stated Amount of such Letter of Credit plus
any related Reimbursement Obligations then outstanding.



     (i) If on the date (the “Facility Termination Date”) this Agreement is terminated (whether
voluntarily, by reason of the occurrence of an Event of Default or otherwise) any Letters of Credit
are outstanding, Borrower shall, on the Facility Termination Date, pay to Lender an amount of money
equal to the Stated Amount of such Letter(s) of Credit, together with the amount of any fees which
would otherwise be payable by Borrower to Lender or the Issuing Bank in respect of such Letters of
Credit but for the occurrence of the Facility Termination Date for deposit into the Collateral
Account. If at any time the aggregate Stated Amount of all outstanding Letters of Credit shall
exceed the L/C Commitment Amount then in effect, Borrower shall pay to Lender for deposit into the
Collateral Account an amount equal to such excess. If a drawing pursuant to any such Letter of
Credit occurs on or prior to the expiration date of such Letter of Credit, Borrower authorizes
Lender to disburse to the Issuing Bank the monies deposited in the Collateral Account to make
payment to the beneficiary with respect to such drawing. If no drawing occurs on or prior to the
expiration date of any such



32









 







Letter of Credit, Lender shall return to Borrower the monies deposited in the Collateral
Account with respect to such outstanding Letter of Credit on or before the date 10 Business Days
after the expiration date with respect to the Letter of Credit.



     (j) If as a result of the adoption of any Applicable Law or guideline of general applicability
regarding capital adequacy, or any change therein, or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or if as a result of any risk-based capital
guideline or other requirement heretofore or hereafter issued by any Governmental Authority, there
shall be imposed, modified or deemed applicable any tax, reserve, special deposit, capital adequacy
or similar requirement against or with respect to or measured by reference to Letters of Credit and
the result shall be to increase the cost to the Issuing Bank of issuing (or of Lender purchasing
participations in) or maintaining its obligation hereunder to issue (or purchase participations in)
any Letter of Credit or reduce any amount receivable by the Issuing Bank or Lender hereunder in
respect of any Letter of Credit, then, upon demand by the Issuing Bank or Lender, Borrower shall
pay immediately to the Issuing Bank or Lender, as applicable, from time to time as specified by the
Issuing Bank or Lender, such additional amounts as shall be sufficient to compensate the Issuing
Bank or Lender for such increased costs or reductions in amount.



ARTICLE 3.

GENERAL LOAN PROVISIONS




     Section 3.1 Fees.



     (a) Intentionally Deleted.



     (b) On the first day of each January, April, July and October prior to the Revolving Credit
Termination Date, commencing January 1, 2009, and on the Revolving Credit Termination Date with
respect to the period since the last date on which the Unused Fee was paid, Borrower shall pay to
Lender the Unused Fee. If the unused portion of the Commitment is equal to or less than fifty
percent (50%) of the Commitment, the Unused Fee rate shall be 12.5/100% (.125%) of the unused
portion of the Commitment. If the unused portion of the Commitment is greater than fifty percent
(50%) of the Commitment, the Unused Fee rate shall be 20/100% (.20%) of the unused portion of the
Commitment.



     (c) Borrower agrees to pay to Lender such reasonable fees for services rendered by Lender as
shall be separately agreed upon between Borrower and Lender. Borrower agrees to pay to the Issuing
Bank such reasonable fees for services rendered by the Issuing Bank as shall be separately agreed
upon between Borrower and the Issuing Bank from time to time.



     (d) Borrower agrees to pay to Lender a letter of credit fee at a rate per annum equal to the
product obtained by multiplying the then Applicable Margin for LIBOR Loans times the Stated Amount
of each Letter of Credit on the date of issuance of such Letter of Credit and on each anniversary
of the date of issuance thereof until such Letter of Credit has expired. The fee provided for in
the immediately preceding sentence shall be nonrefundable. Borrower shall also pay directly to the
Issuing Bank from time to time on demand all commissions, charges, costs



33









 







and expenses in the amounts customarily charged by the Issuing Bank from time to time in like
circumstances with respect to the issuance of each Letter of Credit, drawings, amendments and other
transactions relating thereto. Borrower shall also pay to Lender, solely for its own account and
on the date of the issuance of such Letter of Credit, a fronting fee in respect of each Letter of
Credit at the rate equal to one-eighth of one percent (0.125%) per annum on the Stated Amount of
such Letter of Credit; provided, however, in no event shall the amount of such fronting fee in
respect of any Letter of Credit be less than $500.00.



     Section 3.2 Computation of Interest and Fees.



     Interest on the Loans and the Letter of Credit Liabilities and all fees shall be computed on
the basis of a year of 360 days and paid for the actual number of days elapsed (including the first
day but excluding the last day of a period).



     Section 3.3 Limitation of Interest.



     (a) It is expressly stipulated and agreed to be the intent of Borrower and Lender at all times
to comply strictly with the applicable Texas law (or applicable United States federal law to the
extent that it permits Lender to contract for, charge, take, reserve or receive a greater amount of
interest than under Texas law) governing the maximum rate or amount of interest payable on the
Revolving Note or the Related Indebtedness. If the applicable law is ever judicially interpreted
so as to render usurious any amount (i) contracted for, charged, taken, reserved or received
pursuant to the Revolving Note, any of the other Loan Documents or any other communication or
writing by or between Borrower and Lender related to the transaction or transactions that are the
subject matter of the Loan Documents, (ii) contracted for, charged or received by reason of
Lender’s exercise of the option to accelerate the maturity of the Revolving Note and/or the Related
Indebtedness, or (iii) Borrower will have paid or Lender will have received by reason of any
voluntary prepayment by Borrower of the Revolving Note and/or the Related Indebtedness, then it is
Borrower’s and Lender’s express intent that all amounts charged in excess of the Maximum Lawful
Rate shall be automatically canceled, ab initio, and all amounts in excess of the Maximum Lawful
Rate theretofore collected by Lender shall be credited on the principal balance of the Revolving
Note and/or the Related Indebtedness (or, if the Revolving Note and all Related Indebtedness have
been or would thereby be paid in full, refunded to Borrower), and the provisions of the Revolving
Note and the other Loan Documents immediately be deemed reformed and the amounts thereafter
collectible hereunder and thereunder reduced, without the necessity of the execution of any new
document, so as to comply with the applicable law, but so as to permit the recovery of the fullest
amount otherwise called for hereunder and thereunder; provided, however, if the Revolving Note has
been paid in full before the end of the stated term of the Revolving Note, then Borrower and Lender
agrees that Lender shall, with reasonable promptness after Lender discovers or is advised by
Borrower that interest was received in an amount in excess of the Maximum Lawful Rate, either
refund such excess interest to Borrower and/or credit such excess interest against the Revolving
Note and/or any Related Indebtedness then owing by Borrower to Lender. Borrower hereby agrees that
as a condition precedent to any claim seeking usury penalties against Lender, Borrower will provide
written notice to Lender, advising Lender in reasonable detail of the nature and amount of the
violation, and Lender shall have sixty (60) days after receipt of such notice in which to correct
such usury violation, if any, by either refunding such excess interest to Borrower or crediting



34









 







such excess interest against the Revolving Note and/or the Related Indebtedness then owing by
Borrower to Lender. All sums contracted for, charged or received by Lender for the use,
forbearance or detention of any debt evidenced by the Revolving Note and/or the Related
Indebtedness shall, to the extent permitted by applicable law, be amortized or spread, using the
actuarial method, throughout the stated term of the Revolving Note and/or the Related Indebtedness
(including any and all renewal and extension periods) until payment in full so that the rate or
amount of interest on account of the Revolving Note and/or the Related Indebtedness does not exceed
the Maximum Lawful Rate from time to time in effect and applicable to the Revolving Note and/or the
Related Indebtedness for so long as debt is outstanding. In no event shall the provisions of
Chapter 346 of the Texas Finance Code (which regulates certain revolving credit loan accounts and
revolving triparty accounts) apply to the Revolving Note and/or the Related Indebtedness.
Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, it
is not the intention of Lender to accelerate the maturity of any interest that has not accrued at
the time of such acceleration or to collect unearned interest at the time of such acceleration.
Borrower and Lender hereby agree that any and all suits alleging the contracting for, charging or
receiving of usurious interest shall lie in Harris County, Texas, and each irrevocably waives the
right to venue in any other county.



     (b) As used herein, the term “Maximum Lawful Rate” shall mean the maximum lawful rate
of interest which may be contracted for, charged, taken, received or reserved by Lender in
accordance with the applicable laws of the State of Texas (or applicable United States federal law
to the extent that it permits Lender to contract for, charge, take, receive or reserve a greater
amount of interest than under Texas law), taking into account all Charges (as herein defined) made
in connection with the transaction evidenced by the Revolving Note and the other Loan Documents.
As used herein, the term “Charges” shall mean all fees, charges and/or any other things of
value, if any, contracted for, charged, received, taken or reserved by Lender in connection with
the transactions relating to the Revolving Note and the other Loan Documents, which are treated as
interest under applicable law. As used herein, the term “Related Indebtedness” shall mean
any and all debt paid or payable by Borrower to Lender pursuant to the Loan Documents or any other
communication or writing by or between Borrower and Lender related to the transaction or
transactions that are the subject matter of the Loan Documents, except such debt which has been
paid or is payable by Borrower to Lender under the Revolving Note.



     (c) To the extent that Lender is relying on Chapter 303 of the Texas Finance Code to determine
the Maximum Lawful Rate payable on the Revolving Note and/or the Related Indebtedness, Lender will
utilize the weekly ceiling from time to time in effect as provided in such Chapter 303, as amended.
To the extent United States federal law permits Lender to contract for, charge, take, receive or
reserve a greater amount of interest than under Texas law, Lender will rely on United States
federal law instead of such Chapter 303 for the purpose of determining the Maximum Lawful Rate.
Additionally, to the extent permitted by applicable law now or hereafter in effect, Lender may, at
its option and from time to time, utilize any other method of establishing the Maximum Lawful Rate
under such Chapter 303 or under other applicable law by giving notice, if required, to Borrower as
provided by applicable law now or hereafter in effect.




35












 





     (d) Notwithstanding anything in the Revolving Note to the contrary, if at any time (i) the
interest rate provided for under the Revolving Note or any other Loan Document (the “Stated
Rate”), and (ii) the Charges computed over the full term of the Revolving Note, exceed the
Maximum Lawful Rate, then the rate of interest payable hereunder, together with all Charges, shall
be limited to the Maximum Lawful Rate; provided, however, that any subsequent reduction in the
Stated Rate shall not cause a reduction of the rate of interest payable hereunder below the Maximum
Lawful Rate until the total amount of interest earned hereunder, together with all Charges, equals
the total amount of interest which would have accrued at the Stated Rate if such interest rate had
at all times been in effect. Changes in the Stated Rate resulting from a fluctuations in the rates
used to calculate the Stated Rate shall be subject to the provisions of this paragraph.



     Section 3.4 Statements of Account.



     Lender will account to Borrower monthly with a statement of Loans, charges and payments made
pursuant to this Agreement and the other Loan Documents, and such account rendered by Lender shall
be prima facie evidence thereof. The failure of Lender to maintain or deliver such a statement of
accounts shall not relieve or discharge Borrower from its obligations hereunder.



     Section 3.5 Lender’s Reliance.



     Neither Lender, nor the Issuing Bank, shall incur any liability to Borrower for acting upon
any telephonic notice permitted under this Agreement which Lender or the Issuing Bank believes
reasonably and in good faith to have been given by an individual authorized to deliver a Notice of
Borrowing, Notice of Conversion, Notice of Continuation, a request for issuance of a Letter of
Credit or an Extension Request on behalf of Borrower.



ARTICLE 4.

UNENCUMBERED POOL PROPERTIES




     Section 4.1 Acceptance of Unencumbered Pool Properties.



     (a) Existing Unencumbered Pool Properties. Subject to compliance with the terms and
conditions of Section 5.1, Lender has accepted the Properties listed on Schedule 4.1 as of the date
hereof as Unencumbered Pool Properties.



     (b) Submission of Additional Properties. If Borrower desires that Lender accept an additional
Property as an Unencumbered Pool Property, Borrower shall so notify Lender in writing. No Property
will be evaluated by Lender unless it is an Eligible Property, and unless and until Borrower
delivers to Lender the following, in form and substance satisfactory to Lender:




     (i) An Executive Investment Summary in a form acceptable to the Lender;




     (ii) An Unencumbered Pool Certificate setting forth (A) on a pro forma basis the
Maximum Loan Availability, assuming that such Property is accepted as an Unencumbered Pool
Property; (B) the Occupancy Rate of such Property, and (C) the



36









 






aggregate Occupancy Rate of all Unencumbered Pool Properties, assuming that such
Property is accepted as an Unencumbered Pool Property; and




     (iii) Copies of most recent environmental report, Borrower’s current title policy and a
current survey applicable to such Property to the extent same are available to Borrower; and




     (iv) An Eligibility Certificate executed by the chief financial officer or controller
of Borrower (which officer shall be authorized to execute such certificate) in the form of
Exhibit H attached hereto.


Following receipt of the foregoing items (i) through (iii) for such Property, Lender will, within
thirty (30) days after receipt of, review such documents and information from Borrower (the “Review
Period”) take one of the following actions: (I) notify Borrower of Lender’s approval of the
Property as an Unencumbered Pool Property or (II) request from Borrower further information
relating to such Property in accordance with the following paragraph. If none of the foregoing
actions is taken by Lender prior to the expiration of the Review Period, Lender shall be deemed to
have accepted such Property as an Unencumbered Pool Property.




     At any time during the Review Period, Lender may request that Borrower furnish additional
information regarding the additional property. If a request is made for such further information
by Lender during the Review Period, Borrower shall promptly (but in any event within ten (10) days
of receipt of such request) deliver the requested information to Lender. Lender shall then have
twenty (20) days (the “Extended Review Period”) after receipt from Borrower of the requested
information to notify Borrower of its acceptance or rejection of such Property. If Lender notifies
the Borrower of its rejection of such Property, such Property shall not be accepted as an
Unencumbered Pool Property under this subsection (b). If Lender fails to notify Borrower prior to
the expiration of the Extended Review Period, Lender shall be deemed to have accepted such Property
as Unencumbered Pool Property.



     Section 4.2 Termination of Designation as Unencumbered Pool Property.



     From time to time Borrower may request, upon not less than 30 days prior written notice to
Lender, that an Unencumbered Pool Property cease to be an Unencumbered Pool Property. Lender shall
grant such request if all of the following conditions are satisfied:



     (a) no Default or Event of Default shall have occurred and be continuing both at the time of
such request and immediately after giving effect to such request; and



     (b) Borrower shall have delivered to Lender an Unencumbered Pool Certificate demonstrating on
a pro forma basis, and Lender shall have determined, that the outstanding principal balance of the
Loans, together with the aggregate amount of Letter of Credit Liabilities, will not exceed the
Maximum Loan Availability after giving effect to such request and any prepayment to be made and/or
the acceptance of any Property as an additional or replacement Unencumbered Pool Property to be
given concurrently with such request.



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     Section 4.3 Additional Requirements of Unencumbered Pool Properties.



     (a) The aggregate Occupancy Rate of all Unencumbered Pool Properties, when determined on a
combined basis, shall at all times equal or exceed 90% and no single Unencumbered Pool Property
shall have an Occupancy Rate of less than 80%.



     (b) A Property shall cease to be an Unencumbered Pool Property if it shall cease to be an
Eligible Property.



     (c) If a tenant of an Unencumbered Pool Property, while paying rent, has not actually occupied
the Property for 90 days, such Tenant’s space shall, for the purpose of determining Occupancy Rate,
be deemed unoccupied.



     (d) The annualized contract rents for the most recently completed quarter from any
single-tenant leasing one or more Unencumbered Pool Property shall not exceed 10% of the total
annualized contract rents for the most recently completed quarter of all the Unencumbered Pool
Properties, except that the foregoing limit shall, as to the CVS Pharmacies, be increased to 20% of
the total annualized contract rents for the most recently completed quarter of all Unencumbered
Pool Properties.



     (e) Any single Unencumbered Pool Property which has an Unencumbered Pool Value that is greater
than 15% of the total value of all Unencumbered Pool Properties shall, for the purposes of
determining Maximum Loan Availability, only be accorded a value in an amount equal to 15% of the
total value of all Unencumbered Pool Properties, except that the foregoing limit shall, as to the
MacArthur Pads, be increased to 25% of the total value of all Unencumbered Pool Properties.



     (f) The aggregate Unencumbered Pool Value of all Unencumbered Pool Properties which are ground
leased to retail tenants shall not exceed thirty percent (30%) of the aggregate Unencumbered Pool
Value of all Unencumbered Pool Properties.



ARTICLE 5.

CONDITIONS




     Section 5.1 Conditions Precedent to Effectiveness.



     The effectiveness of this Agreement and the obligation of Lender to make any Loans to Borrower
or to cause the Issuing Bank to issue any Letters of Credit in accordance with the terms hereof are
subject to the condition precedent that Borrower deliver to Lender each of the following, each of
which shall be in form and substance reasonably satisfactory to Lender:



     (a) counterparts of this Agreement and all other Loan Documents executed by the parties
hereto;



     (b) the Revolving Note executed by Borrower, payable to Lender and complying with the terms of
Section 2.13;



     (c) the Guaranty executed by each Guarantor;



38









 





     (d) an opinion of counsel (which may be an attorney employed by Borrower) to the Loan Parties,
and addressed to Lender in substantially the form of Exhibit F;



     (e) a certified copy of the Bylaws of Borrower;



     (f) a certificate of incumbency signed by the Secretary or Assistant Secretary of Borrower
with respect to each of the officers of Borrower authorized to execute and deliver the Loan
Documents to which Borrower is a party;



     (g) certified copies (certified by the Secretary or Assistant Secretary of Borrower) of all
action taken by Borrower’s Board of Directors to authorize the execution, delivery and performance
of the Loan Documents to which it is a party;



     (h) certified copy (certified by the Secretary or Assistant Secretary of Borrower) of the
Amended and Restated Declaration of Trust of Borrower as filed in Harris County, Texas;



     (i) the articles of incorporation, articles of organization, certificate of limited
partnership or other comparable organizational instrument (if any) of each Guarantor certified as
of a recent date by the Secretary of State of the State of formation of such Guarantor;



     (j) a Certificate of Good Standing or certificate of similar meaning with respect to each
Guarantor issued as of a recent date by the Secretary of State of the State of formation of each
such Guarantor and certificates of qualification to transact business or other comparable
certificates issued by each Secretary of State (and any state department of taxation, as
applicable) of each state in which each such Guarantor is required to be so qualified;



     (k) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other
individual performing similar functions) of each Guarantor with respect to each of the officers of
such Guarantor authorized to execute and deliver the Loan Documents to which such Guarantor is a
party;



     (l) copies certified by the Secretary or Assistant Secretary of each Guarantor (or other
individual performing similar functions) of (i) the by-laws of such Guarantor, if a corporation,
the operating agreement, if a limited liability company, the partnership agreement, if a limited or
general partnership, or other comparable document in the case of any other form of legal entity and
(ii) all corporate, partnership, member or other necessary action taken by such Guarantor to
authorize the execution, delivery and performance of the Loan Documents to which it is a party;



     (m) an Unencumbered Pool Certificate calculated as of the date hereof;



     (n) the fees then due under Section 3.1;



     (o) such other documents and instruments as Lender may reasonably request.



39









 





     Section 5.2 Conditions Precedent to Loans and Issuance of Letters of Credit.



     The obligation of Lender to make any Loans or to cause the Issuing Bank to issue Letters of
Credit is subject to the condition precedent that the following conditions be satisfied in the
judgment of Lender:



     (a) in the case of Loans, timely receipt by Lender of a Notice of Borrowing;



     (b) the proposed use of proceeds of such Loans or proposed use of such Letter of Credit, as
the case may be, set forth in the Notice of Borrowing is consistent with the provisions of Section
7.8.;



     (c) Since the date of the most recent financial statements of Borrower or Guarantors delivered
to Lender, nothing shall have occurred which would or could have a Materially Adverse Effect on
Borrower or any Guarantor;



     (d) immediately before and after the making of such Loans or the issuance of such Letter of
Credit, as applicable, no Default (including without limitation the existence of the condition
described in Section 2.1(b)) or Event of Default shall have occurred and be continuing; and



     (e) the representations and warranties of Borrower and the other Loan Parties contained in
this Agreement and the other Loan Documents to which any of them is a party shall be true in all
material respects on and as of the date of the making of such Loans or issuance of such Letter of
Credit, as applicable, except to the extent such representations or warranties specifically relate
to an earlier date or such representations or warranties become untrue by reason of events or
conditions otherwise permitted hereunder and the other Loan Documents.


The delivery of each Notice of Borrowing, the making of each Loan and the issuance of each Letter
of Credit shall constitute a certification by Borrower to Lender and the Issuing Bank that the
statements in the immediately preceding clauses (b) through (e) are true.




ARTICLE 6.

REPRESENTATIONS AND WARRANTIES




     Borrower represents and warrants, to the best of its knowledge and belief (limited to the
current actual knowledge, after due inquiry, of H. Kerr Taylor and Chad Braun, to Lender and the
Issuing Bank as follows:



     Section 6.1 Existence and Power.



     Borrower is a Texas Real Estate Investment Trust duly formed and validly existing under the
laws of the State of Texas and is qualified as a real estate investment trust under Section 856 of
the Internal Revenue Code. Each of Borrower’s Subsidiaries is a corporation or other applicable
legal entity, duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation. Each of Borrower and its Subsidiaries has all
requisite power and authority and all governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted and is duly qualified and is in good



40









 




standing as a foreign corporation or other applicable legal entity, and authorized to do
business, in each jurisdiction in which the character of its properties or the nature of its
business requires such qualification or authorization except where the failure to be so qualified
or authorized would not have a Materially Adverse Effect.




     Section 6.2 Ownership Structure.



     Schedule 6.2. correctly sets forth the corporate structure and ownership interests of Borrower
and all of its Subsidiaries as of the date hereof, including the correct legal name of Borrower and
each such Subsidiary, and Borrower’s relative equity interest in each such Subsidiary.



     Section 6.3 Authorization of Agreement, Revolving Notes, Loan Documents and
Borrowings.



     Each Loan Party has the right and power, and has taken all necessary action to authorize it,
to borrow hereunder (in the case of Borrower) and to execute, deliver and perform the Loan
Documents to which it is or is to be a party, in accordance with their respective terms and to
consummate the transactions contemplated. Each of the Loan Documents has been (and when executed
and delivered in connection with this Agreement will be) duly executed and delivered by the duly
authorized officers of each Loan Party a party thereto and each is (and each other Loan Document
when executed and delivered in connection with this Agreement will be) a legal, valid and binding
obligation of such Loan Party enforceable against such Loan Party in accordance with its respective
terms, except as the same may be limited by bankruptcy, insolvency, and other similar laws
affecting the rights of creditors generally and the availability of equitable remedies for the
enforcement of certain obligations (other than the payment of principal) contained herein or
therein may be limited by equitable principles generally.



     Section 6.4 Compliance of Agreement, Revolving Notes, Loan Documents and Borrowing with
Laws, etc.



     The execution, delivery and performance of the Loan Documents in accordance with their
respective terms and the borrowing of Loans hereunder do not and will not, by the passage of time,
the giving of notice or otherwise (a) require any Governmental Approval, or violate any Applicable
Law relating to any Loan Party, the failure to possess or to comply with which would have a
Materially Adverse Effect; (b) conflict with, result in a breach of or constitute a default under
the declaration of trust of Borrower, the articles of incorporation, articles of organization,
partnership agreement or other comparable instrument of any other Loan Party, or any indenture,
agreement or other instrument to which any Loan Party is a party or by which it or any of its
properties may be bound and the violation of which would have a Materially Adverse Effect; or (c)
result in or require the creation or imposition of any Lien upon or with respect to any
Unencumbered Pool Property other than Permitted Liens.



     Section 6.5 Compliance with Law; Governmental Approvals.



     Each of Borrower and its Subsidiaries is in compliance with each Governmental Approval
applicable to it and in compliance with all other Applicable Law relating to it, except for
noncompliances which, and Governmental Approvals the failure to possess which, would



41









 




not, singly or in the aggregate, cause a Default or Event of Default or have a Materially
Adverse Effect and in respect of which (if Borrower has actual knowledge of such Applicable Law or
Governmental Approval) adequate reserves have been established on the books of Borrower or such
Subsidiary, as applicable.




     Section 6.6 Indebtedness and Guarantees.



     Schedule 6.6 is a complete and correct listing of all Indebtedness and Guarantees of Borrower
and the other Loan Parties as of the date hereof. Each Loan Party has performed and is in
compliance with all of the terms of such Indebtedness and such Guarantees and all instruments and
agreements relating thereto in all material respects, and no default or event of default, or event
or condition which with the giving of notice, the lapse of time or otherwise, would constitute such
a default or event of default, exists with respect to any such Indebtedness or Guarantees.



     Section 6.7 Property Management Agreements and Other Major Agreements.



     Schedule 6.7 sets forth all Property Management Agreements and other Major Agreements to which
Borrower is a party or otherwise relating to any of the Unencumbered Pool Properties as of the date
hereof. All Property Management Agreements and other Major Agreements are in full force and effect
and to Borrower’s knowledge no default or event of default exists under any of such agreements.



     Section 6.8 Absence of Defaults.



     Neither Borrower nor any Guarantor is in default under its declaration of trust, articles of
incorporation, bylaws, operating agreement, partnership agreement or other organizational or
constituent document, and no event has occurred, which has not been remedied, cured or waived (a)
which constitutes a Default or an Event of Default; or (b) which constitutes, or which with the
passage of time, the giving of notice or otherwise, would constitute, a default or event of default
by Borrower, any Guarantor or any other Loan Party under any material agreement (other than this
Agreement) or judgment, decree or order to which Borrower, any Guarantor or any other Loan Party is
a party or by which Borrower or any of its properties may be bound.



     Section 6.9 Financial Information.



     The consolidated balance sheets of Borrower as of September 30, 2008 and the related
statements of earnings, stockholders’ equity and cash flows for the three month period, then
ending, copies of which have been delivered to Lender, fairly present, in conformity with GAAP, the
financial position of Borrower and its Subsidiaries, on a consolidated basis, as of such date and
its results of operations and cash flows for such fiscal period. Since September 30, 2008, and
with reference to such date, no change has occurred which could or would have a Materially Adverse
Effect.



     Section 6.10 Litigation.



     There is no action, suit or proceeding pending against, or to the knowledge of Borrower
threatened against or affecting, Borrower or any of its Subsidiaries before any court or arbitrator



42









 




or any governmental body, agency or official (a) which would reasonably be expected to have a
Materially Adverse Effect or (b) which in any manner draws into question the validity of any Loan
Document.




     Section 6.11 ERISA.



     No Loan Party maintains, and has at any time maintained, any Plan subject to the provisions of
ERISA and is, and has at any time been, a member of any ERISA Group with any Person that has at any
time maintained any such Plan.



     Section 6.12 Taxes.



     (a) As of the date hereof, no United States Federal income tax returns of the “affiliated
group” (as defined in the Internal Revenue Code) of which Borrower is a member have been examined
and closed. The members of such affiliated group have filed all United States Federal income tax
returns and all other material tax returns which are required to be filed by them and have paid all
taxes due pursuant to such returns or pursuant to any assessment received by any of them except for
taxes being contested in good faith by appropriate proceedings and for which appropriate reserves
have been established. The charges, accruals and reserves on the books of Borrower in respect of
taxes or other governmental charges are, in the opinion of Borrower, adequate.



     (b) Borrower is in compliance with all conditions imposed under the Internal Revenue Code to
allow Borrower to maintain its status as a REIT.



     Section 6.13 Investment Company Act; Public Utility Holding Company Act.



     Neither Borrower nor any of its Subsidiaries is (a) an “investment company” or a company
“controlled” by an “investment company” within the meaning of the Investment Company Act of 1940,
as amended, (b) a “holding company” or a “subsidiary company” of a “holding company,” or an
“affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the
meaning of the Public Utility Holding Company Act of 1935, as amended, or (c) subject to any other
Applicable Law which purports to regulate or restrict its ability to borrow money or to consummate
the transactions contemplated by this Agreement or the other Loan Documents or to perform its
obligations hereunder or thereunder.



     Section 6.14 Full Disclosure.



     All written information furnished by or on behalf of Borrower to Lender or Issuing Bank for
purposes of or in connection with this Agreement and the other Loan Documents or any transaction
contemplated hereby is, and all such information hereafter furnished by or on behalf of Borrower or
any Subsidiary to Lender or Issuing Bank will be, true and accurate in all material respects on the
date as of which such information is stated or certified and does not, and will not, fail to state
any material facts necessary to make the statements contained therein not misleading. Borrower has
disclosed to Lender in writing any and all facts known to Borrower which, to the extent Borrower
can now reasonably foresee, could or would have a Materially Adverse Effect.



43









 





     Section 6.15 Insurance.



     Schedule 6.15 sets forth a true and correct description of the insurance coverage maintained
by or on behalf of each Loan Party currently in effect.



     Section 6.16 Not Plan Assets.



     The respective assets of Borrower and each other Loan Party do not and will not constitute
“plan assets” within the meaning of ERISA, the Internal Revenue Code and the respective regulations
promulgated thereunder, of any ERISA Plan or Non-ERISA Plan. The execution, delivery and
performance of this Agreement, and the borrowing and repayment of amounts thereunder, do not and
will not constitute “prohibited transactions” under ERISA or the Internal Revenue Code.



     Section 6.17 Title and Liens.



     Each of Borrower and its Subsidiaries has good, indefeasible and legal title to, or a valid
leasehold interest in, (a) its respective Properties and (b) its other assets, except in the case
of this clause (b) where the failure to have such title to its other assets could not reasonably be
expected to have a Materially Adverse Effect. Each of the Unencumbered Pool Properties is free and
clear of all Liens except for Permitted Liens.



     Section 6.18 Unencumbered Pool Properties.



     Each of the Unencumbered Pool Properties qualifies as an Eligible Property.



     Section 6.19 Margin Stock.



     Neither Borrower nor any of its Subsidiaries is engaged principally in the business of
extending credit for the purpose of purchasing or carrying “margin stock” within the meaning of
Regulation T, U or X.



     Section 6.20 Solvency.



     Borrower and the other Loan Parties are Solvent and will remain Solvent after giving effect to
the execution and delivery of each Loan Document to which any is a party, the initial disbursement
of Loans hereunder and the payment and accrual of all fees then payable under this Agreement or any
of the other Loan Documents.



     Section 6.21 Tax Shelter Regulations.



     Neither the Borrower, any Guarantor, any non-borrower trustor, nor any Subsidiary of any of
the foregoing intends to treat the Revolving Loan or the transactions contemplated by this
Agreement and other Loan Documents as being a “reportable transaction” (within the meaning of
Treasury Regulation Section 1.6011-4). If the Borrower, or any other Loan Party determines to take
any action inconsistent with such intention, the Borrower will promptly notify the Lender thereof.
If the Borrower so notifies the Lender, the Borrower acknowledges that Lender may treat the
Revolving Loan as part of a transaction that is subject to Treasury Regulation



44









 




Section 301.6112-1, and Lender will maintain the lists and other records, including the identity of
the applicable Loan Party as required by such Treasury Regulation.




ARTICLE 7.

COVENANTS




     Borrower agrees that, so long as Lender has any Commitment hereunder or any Obligation remains
unpaid:



     Section 7.1 Information.



     Borrower will deliver to Lender:



     (a) as soon as available and in any event within 90 days after the end of each fiscal year of
the Borrower, the audited consolidated balance sheet of the Borrower and its Subsidiaries as at the
end of such fiscal year and the related audited consolidated statements of income, retained
earnings, and comprehensive income and cash flows of the Borrower and its Subsidiaries for such
fiscal year, setting forth in comparative form the figures as at the end of and for the previous
fiscal year, all of which shall be certified by (a) the chief financial officer or controller of
the Borrower, in his or her opinion, to present fairly, in accordance with GAAP, the financial
position of the Borrower and its Subsidiaries as at the date thereof and the result of operations
for such period and (b) KPMG or any other independent certified public accountants of recognized
national standing acceptable to Lender whose certificate shall be unqualified and in scope and
substance satisfactory to Lender;



     (b) as soon as available and in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of Borrower, a consolidated balance sheet of Borrower as
of the end of such quarter and the related consolidated statements of funds from Operations or
earnings, stockholders’ equity, cash flows for such quarter and for the portion of Borrower’s
fiscal year ended at the end of such quarter, together with forward looking cash flow projections
for the next four fiscal quarters of Borrower, setting forth in comparative form the figures for
the corresponding quarter and the corresponding portion of Borrower’s previous fiscal year, all
certified (subject to normal year-end adjustments) as to fairness of presentation, GAAP (subject to
absence of full footnote disclosures and other than the statement of funds from operations) and
consistency by the chief financial officer or controller of Borrower (which officer shall be
authorized to so certify such statements);



     (c) simultaneously with the delivery of each set of financial statements referred to in the
immediately preceding clauses (a) and (b), a certificate of the chief financial officer or
controller of Borrower (which officer shall be authorized to execute such certificate) (i) setting
forth in reasonable detail the calculations required to establish whether Borrower was in
compliance with the requirements of Article 8 on the date of such financial statements, (ii)
stating whether any Default or Event of Default is known to Borrower on the date of such
certificate and, if any Default or Event of Default is then known to Borrower, setting forth the
details thereof and the action which Borrower is taking or proposes to take with respect thereto,
and (iii) setting forth a schedule of all Contingent Obligations of Borrower as of the date of such
financial statements;



45









 





     (d) as soon as available and in any event within 45 days after the end of each fiscal quarter
of Borrower, an Unencumbered Pool Certificate setting forth the information to be contained
therein as of the last day of such fiscal quarter;



     (e) within 45 days after the end of each fiscal quarter of Borrower, the Net Operating Income
and occupancy rates for each Unencumbered Pool Property; provided, as to any specific Property,
Lender shall have the right to require Borrower to deliver such information on a monthly basis;



     (f) upon Lender’s request, a current rent roll and detailed operating statement for any
specific Property; provided, however, Lender shall have the right to require Borrower to provide
such information on an ongoing monthly basis as to any specific Property;



     (g) within 45 days after the beginning of each calendar year, a projected cash flow statement
of Borrower and its Subsidiaries, in a form satisfactory to Lender, for such calendar year,
prepared on a quarterly basis and setting forth the estimates and assumptions (including without
limitation, with respect to costs, revenues, general economic conditions, seasonal variations,
financial and market conditions and results of operations) on which such projections are based;



     (h) no later than 30 days before the end of each fiscal year of Borrower, a property budget
for each Unencumbered Pool Property for the coming fiscal year of Borrower;



     (i) promptly upon receipt thereof, copies of all management reports relating to the financial
condition of Borrower submitted to Borrower or its Board of Trustees by Borrower’s independent
public accountants;



     (j) within ten days after H. Kerr Taylor, Chad Braun, Brett Treadwell, or other officer of
Borrower with the rank of Executive Vice President or higher obtains knowledge of any Default or
Event of Default, a certificate of the chief financial officer or controller of Borrower setting
forth the details thereof and the action which Borrower is taking or proposes to take with respect
thereto;



     (k) promptly upon the mailing thereof to the shareholders of Borrower generally, copies of all
financial statements, reports, offering memoranda and proxy statements so mailed;



     (l) promptly upon the filing thereof, notify Lender of the filing of all registration
statements (other than the exhibits thereto and any registration statements on Form S-8 or its
equivalent), reports on Forms 10-K, 10-Q and 8-K (or their equivalents) and all other periodic
reports, if any, which Borrower or any of its Subsidiaries which it directly or indirectly controls
shall file with the Securities and Exchange Commission (or any Governmental Authority substituted
therefor) or any national securities exchange, and, if Lender requests same, provide Lender with a
copy of any such requested filings;



     (m) if requested by Lender, promptly upon the release thereof, copies of all press releases of
Borrower and any of its Subsidiaries which it directly or indirectly controls;



46









 





     (n) promptly upon obtaining knowledge thereof, a description in reasonable detail of (i) any
action, suit or proceeding commenced against Borrower, any of its Subsidiaries or any of the
Unencumbered Pool Properties which is reasonably likely to have a Materially Adverse Effect, and
(ii) any change which would or could have a Materially Adverse Effect on any of the Unencumbered
Pool Properties, including, without limitation, any contract or agreement regarding the sale,
transfer, mortgage or other encumbrance relating thereto or any default of any major tenant under
any lease thereof;



     (o) promptly upon the occurrence of same, written notice of any change in the composition of
Borrower’s board of trustees and of any change in the senior management personnel of Borrower;



     (p) written notice of the acquisition, incorporation or other creation of any Subsidiary after
the date hereof, such notice to be given within 10 Business Days of such acquisition, incorporation
or other creation; and



     (q) from time to time such additional information regarding the financial position or business
of Borrower and its Subsidiaries or any Property as Lender may reasonably request.



     Section 7.2 Payment of Obligations.



     (a) Borrower will pay and discharge, and will cause each Subsidiary to pay and discharge, at
or before maturity, all their respective material obligations and liabilities, including, without
limitation, tax liabilities, except where the same may be contested in good faith by appropriate
proceedings unless the contest thereof would have a Materially Adverse Effect, and will maintain,
and will cause each Subsidiary to maintain, in accordance with GAAP, appropriate reserves for the
accrual of any of the same. Borrower has paid or will pay (or has caused to be paid or will be
caused to be paid) in full (except for such retainages as may be permitted or required by any
Applicable Law to be withheld pending completion of any improvements) all sums by Borrower or its
Subsidiaries owing or claimed from Borrower or such Subsidiaries for labor, material, supplies,
personal property (whether or not a fixture) and services of every kind and character used,
furnished or installed in or on any Pool Property and no claim for same exists or will be permitted
to be created, except where the same may be contested in good faith by appropriate proceedings
unless the contest thereof would have a Materially Adverse Effect, and will maintain, and will
cause each Subsidiary to maintain, in accordance with GAAP, appropriate reserves for the accrual of
any of the same.



     (b) Borrower will utilize the proceeds (net of transaction costs) derived from (i) the sale or
issuance by Borrower of Shares, options, warrants or other Equity Interests of any class or
character, (ii) the sale of Unencumbered Pool Property or any other Property owned by Borrower or
any Subsidiary of Borrower or the sale by Borrower or any Subsidiary of Borrower of any Equity
Interest in a Person owning Unencumbered Pool Property or any such other Property, in each case net
of existing Secured Indebtedness, and (iii) Indebtedness from the financing of Unencumbered Pool
Property or refinancing or financing of any other Property owned by Borrower or any Subsidiary of
Borrower, net of existing Secured Indebtedness to repay the then outstanding principal balance of
the Revolving Note.



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     Section 7.3 Maintenance of Property; Insurance.



     (a) Borrower will keep, and will cause each Subsidiary to keep, all property useful and
necessary in its business in good working order and condition, ordinary wear and tear and insured
casualty losses excepted.



     (b) Borrower will maintain, and will cause each other Loan Party and each Subsidiary to
maintain insurance coverage with financially sound and reputable insurance companies in such
amounts and with respect to such risks as is consistent with insurance maintained by businesses of
comparable type and size in the industry or as may be required by Applicable Law, which insurance
shall be acceptable to Lender. Borrower may cause such insurance to be provided by the tenant of a
Property. In addition to the foregoing, Borrower shall maintain insurance as may be required under
the other Loan Documents. Borrower will deliver to Lender (i) upon request of Lender from time to
time full information as to the insurance carried, (ii) within five days of receipt of notice from
any insurer a copy of any notice of cancellation or material change in coverage from that existing
on the date of this Agreement and (iii) forthwith, notice of any cancellation or nonrenewal of
coverage by Borrower.



     Section 7.4 Conduct of Business; Maintenance of Existence; Qualification; Amendment of
Declaration of Trust.



     (a) Borrower will only engage in the business of acquiring, developing, owning, managing and
operating single-tenant and multi-tenant retail properties, together with related business
activities and investments incidental thereto, as such related activities and investments are
contemplated by the provisions of Section 8.5 of this Agreement.



     (b) Subject to Section 7.7, Borrower will preserve, renew and keep in full force and effect,
and will cause each Subsidiary to preserve, renew and keep in full force and effect their
respective existence and their respective rights, privileges and franchises necessary or desirable
in the normal conduct of business; provided that nothing in this Section shall prohibit (i) the
merger of a Subsidiary into Borrower or the merger or consolidation of a Subsidiary with or into
another Person if the corporation surviving such consolidation or merger is a Subsidiary and if, in
each case, after giving effect thereto, no Default or Event of Default shall have occurred and be
continuing, and (ii) the dissolution of a Subsidiary if (A) Borrower’s board of trustees has
determined that such dissolution is in the best interest of Borrower, (B) such dissolution will not
be materially disadvantageous to Lender and (C) such dissolution will not have a Materially Adverse
Effect.



     (c) Borrower will, and will cause each Subsidiary to, qualify and remain qualified and
authorized to do business in each jurisdiction in which the character of its properties or the
nature of its business requires such qualification or authorization and where the failure to be so
qualified or authorized would have a Materially Adverse Effect.



     (d) Borrower shall not amend, supplement, restate or otherwise modify its declaration of trust
without the prior written consent of Lender unless such amendment, supplement or other modification
(i) is required under or as a result of the Internal Revenue Code or other Applicable Law, (ii) is
required or prudent to maintain Borrower’s status as a REIT, or (iii) does not affect



48









 




the operation or management of Borrower, the rights and obligations of any party thereto or
any other material provision of the document.




     Section 7.5 Compliance with Laws.



     Borrower will comply, and cause each Subsidiary to comply, with all Applicable Laws, including
without limitation, all Environmental Laws and ERISA and the rules and regulations thereunder,
except where compliance therewith is contested in good faith by appropriate proceedings or the
failure to so comply would not have a Materially Adverse Effect.



     Section 7.6 Inspection of Property, Books and Records.



     Borrower will keep, and will cause each Subsidiary to keep, proper books of record and account
in which full, true and correct entries shall be made of all dealings and transactions in relation
to its business and activities; and will permit, and will cause each Subsidiary to permit,
representatives of Lender to visit and inspect any of their respective properties, to examine and
make abstracts from any of their respective books and records and to discuss their respective
affairs, finances and accounts with their respective officers, employees and independent public
accountants in Borrower’s presence prior to an Event of Default, all at such reasonable times
during business hours and as often as may reasonably be desired and with reasonable notice so long
as no Event of Default shall have occurred and be continuing. All inspections of Properties are
subject to the rights of tenants in possession of the Properties.



     Section 7.7 Consolidations, Mergers, Acquisitions and Sales of Assets.



     Borrower shall not, and shall not permit any Subsidiary to (a) consolidate or merge with or
into, acquire a Substantial Amount of the assets of, or make any Investment of a Substantial Amount
in, any other Person without the prior written consent of Lender, which consent may be granted or
denied in Lender’s sole and absolute discretion, (b) acquire any Property without prior written
notice to Lender, (c) incur any additional Secured Indebtedness without prior written notice to
Lender or (d) sell, lease or otherwise transfer, directly or indirectly, and whether by one or a
series of related transactions, a Substantial Amount of its assets (including capital stock or
other securities of Subsidiaries) to any other Person without the prior written consent of Lender,
which consent will not be unreasonably withheld or delayed and (i) after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing; (ii) in the case of a
consolidation or merger by Borrower or a Subsidiary, Borrower or such Subsidiary, as applicable, is
the survivor thereof and (iii) at the time Borrower requests Lender’s consent, Borrower shall have
delivered to Lender a Compliance Certificate, calculated on a pro forma basis, evidencing
Borrower’s continued compliance with the terms and conditions of this Agreement and the other Loan
Documents, including without limitation, the financial covenants contained in Article 8, after
giving effect to such consolidation, merger, acquisition, Investment, sale, lease or other
transfer.



     Section 7.8 Use of Proceeds and Letters of Credit.



     Borrower will only use the proceeds of the Loans made under this Agreement (a) to finance the
repayment of Indebtedness of Borrower, including the making of scheduled amortization payments on
Indebtedness and (b) to provide for capital expenditure, general



49









 




working capital and corporate needs of Borrower. Borrower will not use any proceeds of the
Loans for the purposes of (x) purchasing any Equity Interest in any Person or repurchasing any
Shares issued by Borrower, (y) acquisition, development or redevelopment of any Property or (z)
purchasing or carrying any “margin stock” within the meaning of Regulations T, U and X if such use
would result in a violation of any of Regulations T, U and X. Borrower will use the Letters of
Credit only for the same purposes for which it may use the proceeds of Loans.




     Section 7.9 Major Agreements.



     Borrower shall, and shall cause each other Loan Party to, duly and punctually perform and
comply with any and all material representations, warranties, covenants and agreements expressed as
binding upon Borrower or such other Loan Party under any Major Agreement. Without Lender’s prior
written consent, Borrower shall not do or knowingly permit to be done anything to impair materially
the value of any of the Major Agreements; provided, Borrower may terminate a Major Agreement so
long as Borrower enters into a materially comparable replacement agreement.



     Section 7.10 Major Construction.



     Borrower shall give Lender not less than 60-days’ prior written notice before commencing any
construction, remodeling or demolition project or series of related projects with respect to an
Eligible Property of Borrower or any Subsidiary, the aggregate cost of which will exceed $250,000.
If (a) any such project would reasonably be expected to have a Materially Adverse Effect or (b) the
aggregate cost of such project will exceed $2,000,000, then Borrower or such Subsidiary, as
applicable, shall not commence such project without the prior written consent of Lender, which
approval shall not be unreasonably withheld, conditioned or delayed, and will be deemed granted if
no written denial is received within 60 days after written notice to Lender of the project together
with an adequate description of the project which is reasonably acceptable to Lender.



     Section 7.11 Material Events.



     Borrower shall give Lender not less than 30-day’s prior written notice of any material
acquisitions, dispositions, mergers or asset purchases and shall, with the giving of such notice,
deliver a Compliance Certificate evidencing that Borrower will, after giving effect to such
proposed acquisition, disposition, merger or asset purchase, be in compliance with its covenants
under this Agreement.



     Section 7.12 ERISA.



     Borrower will not and will not permit any Subsidiary to at any time maintain any Plan subject
to the provisions of ERISA and will not at any time be a member of any ERISA Group with any Person
that has at any time maintained any such Plan.



     Section 7.13 ERISA Exemptions.



     Borrower shall not, and shall not permit any of its Subsidiaries to, permit any of its assets
to become or be deemed to be “plan assets” within the meaning of ERISA, the Internal Revenue



50









 




Code and the respective regulations promulgated thereunder, of any ERISA Plan or any Non-ERISA
Plan.




     Section 7.14 Negative Pledge.



     Borrower will not, and will not permit any Subsidiary to, (a) create, assume or suffer to
exist any Lien on any asset of Borrower or any Subsidiary, except for Permitted Liens, without
Lender’s prior written approval which may be granted or withheld in Lender’s sole and absolute
discretion; or (b) create or otherwise cause or suffer to exist or become effective, any consensual
encumbrance or restriction of any kind on the ability of any Subsidiary: (i) if such Subsidiary is
a Loan Party, to pay or perform its obligations under the Guaranty to which it is a party prior to
its obligation to pay dividends or make any other distribution on any of such Subsidiary’s capital
stock or other securities owned by Borrower or any Subsidiary of Borrower; (ii) to pay any
Indebtedness owed to Borrower or any other Subsidiary; (iii) to make loans or advances to Borrower
or any other Subsidiary; or (iv) to transfer any of its property or assets to Borrower or any other
Subsidiary.



     Section 7.15 Listing Status and REIT Status.



     Borrower will maintain its status as an American Stock Exchange listed company until delisted
in accordance with the rules of such exchange and shall at all times be qualified as a real estate
investment trust pursuant to Section 856 of the Internal Revenue Code. Borrower will give notice
to Lender of any such delisting and proof of compliance with the requirements of such exchange as
Lender may reasonably request.



     Section 7.16 Agreements with Affiliates.



     Borrower shall not, and shall not permit any of its Subsidiaries to, enter into any
transaction requiring such Person to pay any amounts to or otherwise transfer property to, or pay
any management or other fees to, any Affiliate other than on terms and conditions (a) substantially
as favorable to Borrower or such Subsidiary as would be obtainable at the time in a comparable
arm’s length transaction with a Person not an Affiliate or (b) which comply with the requirements
of the Statement of Policy for Real Estate Investment Trusts promulgated by the North American
Security Administrators Association, as amended from time to time.



     Section 7.17 New Subsidiaries.



     Upon any Person becoming an Eligible Subsidiary of Borrower after the date hereof, Borrower
shall cause such Eligible Subsidiary to deliver to Lender within 15 days of such event each of the
following items (if not previously delivered to Lender):



     (a) an accession agreement in the form of Annex I to the Guaranty duly executed by such
Eligible Subsidiary;



     (b) the articles of incorporation, articles of organization, certificate of limited
partnership or other comparable organizational instrument (if any) of such Eligible Subsidiary
certified as of a recent date by the Secretary of State of the State of formation of such Eligible
Subsidiary;



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     (c) a Certificate of Good Standing or certificate of similar meaning with respect to such
Eligible Subsidiary issued as of a recent date by the Secretary of State of the State of formation
of such Eligible Subsidiary and certificates of qualification to transact business or other
comparable certificates issued by each Secretary of State (and any state department of taxation, as
applicable) of each state in which such Eligible Subsidiary is required to be so qualified;



     (d) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other
individual performing similar functions) of such Eligible Subsidiary with respect to each of the
officers of such Eligible Subsidiary authorized to execute and deliver the Loan Documents to which
such Guarantor is a party;



     (e) copies certified by the Secretary or Assistant Secretary of such Eligible Subsidiary (or
other individual performing similar functions) of (i) the by-laws of such Eligible Subsidiary, if a
corporation, the operating agreement, if a limited liability company, the partnership agreement, if
a limited or general partnership, or other comparable document in the case of any other form of
legal entity and (ii) all corporate, partnership, member or other necessary action taken by such
Eligible Subsidiary to authorize the execution, delivery and performance of the Loan Documents to
which it is a party;



     (f) an opinion of legal counsel to such Eligible Subsidiary, regarding the due formation and
good standing of such Subsidiary, the enforceability of the Loan Documents to which it is a party,
and such other matters as Lender shall request; and



     (g) such other documents and instruments as Lender may reasonably request.



     Section 7.18 Management.



     Should either Kerr Taylor or Chad Braun cease to be a member of the board of trustees and/or
an executive officer of Borrower, Borrower shall replace such vacancy with a person reasonably
acceptable to Lender within 90 days after the vacancy shall occur.



     Section 7.19 Concentrations.



     At no time shall Borrower and its Subsidiaries, on a consolidated basis, derive more than 15%
of its aggregate Net Operating Income from any single tenant. Any tenant entities whose financial
reporting is, in accordance with GAAP, consolidated shall, for the purposes of the foregoing
covenant, be deemed a “single tenant.”



     Section 7.20 No Further Unsecured Indebtedness.


Borrower shall not incur any additional Unsecured Indebtedness without the prior written consent of
Lender, which consent may be granted or withheld in Lender’s sole discretion.




52









 








     Section 7.21 Interest Rate Hedge.



     At all times when required by Lender Borrower shall have an Interest Rate Hedge in effect.
Any Interest Rate Hedge obtained by Borrower from Lender or any of Lender’s affiliated entities
shall be guaranteed by the Guarantor.



ARTICLE 8.

FINANCIAL COVENANTS




     Borrower agrees that, so long as Lender has any Commitments hereunder or any Obligation
remains unpaid:



     Section 8.1 Minimum Tangible Net Worth.



     Borrower shall not at any time permit the Tangible Net Worth of Borrower and its Subsidiaries,
on a consolidated basis, to be less than (a) $130,000,000.00, plus (b) 90% of the amount of
proceeds in cash or Property (net of transaction costs) received by Borrower from the sale or
issuance by Borrower of Shares, options, warrants or other Equity Interests of any class or
character after December 31, 2008.



     Section 8.2 Ratio of Total Liabilities to Gross Asset Value.



     Borrower shall not permit the ratio of (a) Total Liabilities of Borrower and its Subsidiaries,
on a consolidated basis, to (b) Gross Asset Value of Borrower and its Subsidiaries, on a
consolidated basis to exceed 0.64 to 1.00 at anytime during the term hereof.



     Section 8.3 Distributions.



     If an Event of Default under any of Sections 9.1(a), 9.1(h) or 9.1(i) shall have occurred and
be continuing, Borrower shall not directly or indirectly declare or make, or incur any liability to
make, any Restricted Payments. If any other Event of Default shall have occurred and be
continuing, Borrower shall not directly or indirectly declare or make, or incur any liability to
make, any Restricted Payments except that Borrower may make distributions to its shareholders in
the minimum amount necessary to maintain compliance with Section 7.15. If no Event of Default, or
any Event of Default other than those specified above, shall have occurred and be continuing,
Borrower shall not directly or indirectly declare or make, or incur any liability to make, any
Restricted Payments other than Permitted Distributions.



     Section 8.4 Ratio of EBITDA to Fixed Charges.



     Borrower shall not permit the ratio of (a) EBITDA of Borrower and its Subsidiaries, on a
Consolidated Basis, to (b) the Fixed Charges of Borrower and its Subsidiaries, on a consolidated
basis, for any fiscal quarter, to be less than 1.60 to 1.00 for such quarter. Income which is
classified as interest income, other income and interest income derived by Borrower or any of its
Subsidiaries from an Affiliate shall not, for the purposes of this Section 8.4, contribute more
than $250,000.00 to EBITDA.



53









 





     Section 8.5 Permitted Investments.



     Borrower shall not, and shall not permit any Subsidiary to, make any Investment in or
otherwise own the following items which would cause the value of such holdings of Borrower and its
Subsidiaries, on a consolidated basis, to exceed the following percentages of Gross Asset Value:




     (i) unimproved real estate (excluding Development Property) such that the aggregate
book value of all such unimproved real estate exceeds 5% of Gross Asset Value;




     (ii) Mortgages in favor of Borrower or such Subsidiary, such that the aggregate book
value of Indebtedness secured by such Mortgages exceeds 5% of Gross Asset Value;




     (iii) Investments in Equity Interests (other than Equity Interests in Subsidiaries and
Unconsolidated Affiliates), such that the aggregate value of such Equity Interests exceeds
5% of Gross Asset Value;




     (iv) Development Property, such that the Total Budgeted Costs for all such Development
Properties exceeds 5% of Gross Asset Value;




     (v) Non-retail improved real estate such that the aggregate book value of all such
non-retail improved real estate exceeds 5% of Gross Asset Value;




     (vi) Investments in Subsidiaries (other than Wholly-Owned Subsidiaries) and
Unconsolidated Affiliates such that the aggregate of Borrower’s Ownership Share in such
entities exceeds 5% of Gross Asset Value.


The aggregate of all of the foregoing items shall not exceed 5% of Gross Asset Value. For the
purposes of the determining the value of any of the foregoing items which are non-income producing
(such as unimproved real estate) such items will be valued at the lower of their acquisition cost
or market value (as determined by Lender in its reasonable discretion); however, the value of
Borrower’s interest in joint ventures and preferred stock subsidiaries shall be valued at the
greater of Borrower’s economic interest or nominal interest in such entity.




     Section 8.6 Ratio of Unencumbered Net Operating Income to Unsecured Interest Expense.



     Borrower shall not permit the ratio of (a) Unencumbered Net Operating Income of Borrower and
its Subsidiaries, on a consolidated basis, to (b) Unsecured Interest Expense of Borrower and its
Subsidiaries, on a consolidated basis, for any fiscal quarter to be less than 2.00:1.00 for such
quarter.



     Section 8.7 Ratio of Secured Indebtedness to Gross Asset Value.



     Borrower will not permit the ratio of (a) Secured Indebtedness of Borrower and its
Subsidiaries, on a consolidated basis, to (b) Gross Asset Value to exceed 0.50 to 1.00.



54









 





     Section 8.8 Maximum Loan Availability.



     Borrower will not at any time permit the aggregate principal amount of all outstanding Loans,
together with the aggregate amount of all Letter of Credit Liabilities, to exceed the lesser of (a)
Maximum Loan Availability at such time, or (b) the Commitment.



     Section 8.9 Share Repurchases.



     During the term of this Agreement neither Borrower nor any of its Subsidiaries shall directly
or indirectly purchase, repurchase or otherwise acquire or reacquire any Shares or other Equity
Interest in Borrower or any Subsidiary of Borrower.



     Section 8.10 Dividend Restrictions.



     During the term of this Agreement neither Borrower nor any Subsidiary of Borrower shall,
directly or indirectly, make, pay, declare any dividend (except for Permitted Distributions), in
excess of the dividend declared on September 30, 2008.



ARTICLE 9.

DEFAULTS




     Section 9.1 Events of Default.



     If one or more of the following events shall have occurred and be continuing:



     (a) (i) Borrower shall fail to pay when due any Reimbursement Obligation or any principal of
any Loan or other Obligation, or (ii) Borrower shall fail to pay when due any interest, fees or
other Obligation and such failure under this clause (ii) shall continue for a period of five days
after notice that such payment is due and payable;



     (b) Borrower shall fail to observe or perform any covenant or agreement contained in Section
7.7, Sections 7.12 through 7.15, inclusive, or Section 8.8;



     (c) Borrower shall fail to comply with any of the covenants or agreements contained in Article
8 (other than Section 8.8), and Borrower shall remain in noncompliance with any such Section after
30 days following the first failure following the Effective Date to comply with such Section;



     (d) Borrower shall fail to observe or perform any covenant or agreement contained in this
Agreement (other than those covered by the immediately preceding clauses (a) through (c)) for a
period of 30 days after written notice thereof has been given to Borrower by Lender;



     (e) An Event of Default under and as defined in any Loan Document shall occur and be
continuing or Borrower shall fail to observe or perform any covenant or agreement contained in any
of the Loan Documents and such failure shall continue beyond any applicable period of grace;



55









 





     (f) any representation, warranty, certification or statement made or deemed made by or on
behalf of any Loan Party in this Agreement or in any certificate, financial statement or other Loan
Document delivered pursuant to this Agreement shall prove to have been incorrect or misleading in
any material respect when made or deemed made;



     (g) the maturity of any Indebtedness of Borrower or its Subsidiaries in excess of $500,000.00
in the aggregate shall have been (i) accelerated in accordance with the provisions of any
indenture, contract or instrument providing for the creation of or concerning such Indebtedness or
(ii) required to be prepaid in full prior to the stated maturity thereof;



     (h) Borrower or any other Loan Party shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial
part of its property, or shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding commenced against it, or
shall make a general assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due, or shall take any corporate action to authorize any of the foregoing;



     (i) an involuntary case or other proceeding shall be commenced against Borrower or any other
Loan Party seeking liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days; or an order for relief shall be entered against
any such Person under the federal bankruptcy laws as now or hereafter in effect;



     (j) a judgment or order for the payment of money in excess of $250,000.00 shall be rendered
against Borrower or any other Loan Party and such judgment or order shall continue unsatisfied and
unstayed for a period of sixty days;



     (k) the assets of Borrower or any other Loan Party at any time constitute assets, within the
meaning of ERISA, the Internal Revenue Code and the respective regulations promulgated thereunder,
of any ERISA Plan or Non-ERISA Plan;



     (l) any Guarantor shall fail to comply with any term, covenant, condition or agreement
contained in the Guaranty (after giving effect to any applicable grace or cure periods) or any
Guarantor shall disallow, revoke or terminate or attempt to do any of the foregoing with respect to
the Guaranty; or



     (m) the occurrence of any default or event of default under any Interest Rate Hedge which is
obtained by Borrower from Lender or any of Lender’s affiliated entities and the continuation of
such default or event of default beyond any cure period provided for in such Interest Rate Hedge.



56









 





     Section 9.2 Remedies Upon an Event of Default.



     Upon the occurrence of an Event of Default, and in every such event, Lender may, (i) by notice
to Borrower terminate the Commitments, which shall thereupon terminate, (ii) by notice to Borrower
declare the Loan and all other Obligations and an amount equal to the Stated Amount of all Letters
of Credit then outstanding due, and the Loan and all other Obligations and an amount equal to the
Stated Amount of all Letters of Credit then outstanding shall thereupon become, immediately due and
payable without presentment, demand, protest or notice of intention to accelerate, all of which are
hereby waived by Borrower; and (iii) exercise all rights and remedies available under all of the
Loan Documents. Notwithstanding the foregoing, upon the occurrence of any of the Events of Default
specified in clause (h) or (i) above, without any notice to Borrower or any other act by Lender,
the Commitment shall thereupon immediately and automatically terminate and the Loans and all other
Obligations and an amount equal to the Stated Amount of all Letters of Credit then outstanding
shall become immediately due and payable without presentment, demand, protest, notice of intention
to accelerate or notice of acceleration, or other notice of any kind, all of which are hereby
waived by Borrower.



     Section 9.3 Additional Remedies Upon Certain Default.



     In addition to the other rights and remedies of Lender upon the occurrence and during the
continuance of a Default, upon the occurrence and during the continuance of a Default under Section
9.1(c), Lender shall not be obligated to make any Loans or issue any Letters of Credit.



     Section 9.4 Collateral Account.



     (a) As collateral security for the prompt payment in full when due of all Letter of Credit
Liabilities, Borrower hereby pledges and grants to Lender, for the benefit of the Issuing Bank and
Lender as provided herein, a security interest in all of Borrower’s right, title and interest in
and to the Collateral Account and the balances from time to time in the Collateral Account
(including the investments and reinvestments therein provided for below). The balances from time
to time in the Collateral Account shall not constitute payment of any Letter of Credit Liabilities
until applied by Lender as provided herein. Anything in this Agreement to the contrary
notwithstanding, funds held in the Collateral Account shall be subject to withdrawal only as
provided in this Section.



     (b) Amounts on deposit in the Collateral Account shall be invested and reinvested by Lender in
such investments as Lender shall determine in its sole discretion. All such investments and
reinvestments shall be held in the name of and be under the sole dominion and control of Lender.
Lender shall exercise reasonable care in the custody and preservation of any funds held in the
Collateral Account and shall be deemed to have exercised such care if such funds are accorded
treatment substantially equivalent to that which Lender accords other funds deposited with Lender,
it being understood that Lender shall not have any responsibility for taking any necessary steps to
preserve rights against any parties with respect to any funds held in the Collateral Account.



     (c) If an Event of Default shall have occurred and be continuing, Lender may (and, if
instructed by the Issuing Bank, shall) in its (or their) discretion at any time and from time to
time



57









 




elect to liquidate any such investments and reinvestments and credit the proceeds thereof to
the Collateral Account and apply or cause to be applied such proceeds and any other balances in the
Collateral Account to the payment of any of the Letter of Credit Liabilities then due and payable.




     (d) When all of the Obligations shall have been indefeasibly paid in full and no Letters of
Credit remain outstanding, Lender shall promptly deliver to Borrower, against receipt but without
any recourse, warranty or representation whatsoever, the balances remaining in the Collateral
Account.



     (e) Borrower shall pay to Lender from time to time such fees as Lender normally charges for
similar services in connection with Lender’s administration of the Collateral Account and
investments and reinvestments of funds therein.



ARTICLE 10.

MISCELLANEOUS




     Section 10.1 Notices.



     All notices, requests and other communications to any party under the Loan Documents shall be
in writing (including facsimile transmission or similar writing) and shall be given to such party
as follows:


If to Borrower:



AmREIT

Eight Greenway Plaza, Suite 1000

Houston, Texas 77046

Attention: Mr. Kerr Taylor

Telecopier: (713) 850-0498

Telephone: (713) 850-1400




58









 







With a copy of any notice of default to:



AmREIT

Eight Greenway Plaza, Suite 1000

Houston, Texas 77046

Attention: Mr. Chad Braun

Telecopier: (713) 850-0498

Telephone: (713) 850-1400



If to Lender:



Wells Fargo Bank, National Association

Disbursement and Operations Center

733 Marquette Avenue, 10th Floor

Minneapolis, Minnesota 55402

Attention: Jivko Sabev

Telecopier: (866) 720-0617

Telephone: (612) 667-4507



with a copy to:



Wells Fargo Bank, National Association

1000 Louisiana, 4th Floor

MAC: T5002-042

Houston, Texas 77002-5093

Attention: Real Estate Loan Administration

Telecopier: (713) 739-1077

Telephone: (713) 319-1416



or as to each party at such other address as such party shall designate in a written notice to the
other parties. Each such notice, request or other communication shall be effective (a) if given by
mail, 72 hours after such communication is deposited in the United States Mail, certified with
return receipt requested, postage prepaid, addressed as aforesaid or (b) if given by any other
means (including facsimile), when received at the applicable address provided for in this Section;
provided that notices to Lender under Article 2, and any notice of a change of address for notices,
shall not be effective until received.




     Section 10.2 No Waivers.



     No failure or delay by Lender or the Issuing Bank in exercising any right, power or privilege
under any Loan Document shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies provided in the Loan Documents shall be cumulative and not
exclusive of any rights or remedies provided by law.



59









 





     Section 10.3 Expenses.



     Borrower will pay on demand all present and future reasonable expenses actually incurred by
Persons who are not employees of, and other third parties engaged by:



     (a) Lender in connection with the negotiation, preparation, execution, delivery and
administration of this Agreement, the Revolving Note and each of the other Loan Documents, whenever
the same shall be executed and delivered, including, without limitation, appraisers’ fees,
environment engineers’ fees, search fees, recording fees, mortgage recording taxes, and the
reasonable fees and disbursements of Winstead Sechrest & Minick P.C., counsel for Lender;



     (b) Lender in connection with the review of Properties for acceptance as Unencumbered Pool
Properties and Lender’s other activities under Section 4.1, including reasonable fees and
disbursements of counsel to Lender;



     (c) Lender in connection with the negotiation, preparation, execution and delivery of any
waiver, amendment or consent by Lender relating to this Agreement, the Revolving Note or any of the
other Loan Documents, including the reasonable fees and disbursements of counsel to Lender;



     (d) Lender and Issuing Bank in connection with any restructuring, refinancing or “workout” of
the transactions contemplated by this Agreement, the Revolving Note and the other Loan Documents,
including the reasonable fees and disbursements of counsel to Lender;



     (e) Lender and Issuing Bank, after the occurrence of a Default or Event of Default, in
connection with the collection or enforcement of the obligations of Borrower under this Agreement,
the Revolving Note or any other Loan Document, including the reasonable fees and disbursements of
counsel to Lender and Issuing Bank;



     (f) Subject to any limitation contained in Section 10.6, Lender and Issuing Bank in connection
with prosecuting or defending any claim in any way arising out of, related to, or connected with
this Agreement, the Revolving Note or any of the other Loan Documents, including the reasonable
fees and disbursements of counsel to Lender and Issuing Bank and of experts and other consultants
retained by Lender in connection therewith;



     (g) Lender and Issuing Bank, to the extent not already covered by any of the preceding
subsections, in connection with any bankruptcy or other proceeding of the type described in
Sections 9.1(h) or (i), and the reasonable fees and disbursements of counsel to Lender and Issuing
Bank actually incurred in connection with the representation of Lender and Issuing Bank in any
matter relating to or arising out of any such proceeding, including without limitation (i) any
motion for relief from any stay or similar order, (ii) the negotiation, preparation, execution and
delivery of any document relating to Lender and Issuing Bank and (iii) the negotiation and
preparation of any plan of reorganization of Borrower, whether proposed by Borrower, Lender or any
other Person, and whether such fees and expenses are incurred prior to, during or after the
commencement of such proceeding or the confirmation or conclusion of any such proceeding.



60









 





     Section 10.4 Stamp, Intangible and Recording Taxes.



     Borrower will pay any and all stamp, intangible, registration, recordation, mortgage and
similar taxes, fees or charges and shall indemnify Lender and Issuing Bank against any and all
liabilities with respect to or resulting from any delay in the payment or omission to pay any such
taxes, fees or charges, which may be payable or determined to be payable in connection with the
execution, delivery, recording, performance or enforcement of this Agreement, the Revolving Note
and any of the other Loan Documents or the perfection of any rights or Liens thereunder.



     Section 10.5 Loan Sales and Participations; Disclosure of Information.



     Borrower agrees that Lender may elect, at any time, to sell, assign or grant participations in
all or any portion of its rights and obligations under the Loan Documents, and that any such sale,
assignment or participation may be to one or more financial institutions, private investors, and/or
other entities, at Lender’s sole discretion (“Participant”). Borrower further agrees that Lender
may disseminate to any such actual or potential purchaser(s), assignee(s) or participant(s) all
documents and information (including, without limitation, all financial information) which has been
or is hereafter provided to or known to Lender with respect to: (a) the Properties and their
operation; (b) any party connected with the Loan (including, without limitation, the Borrower and
any Guarantor); and/or (c) any lending relationship other than the Loans which Lender may have with
any party connected with the Loans. In the event of any such sale, assignment or participation,
Lender and the parties to such transaction shall share in the rights and obligations of Lender as
set forth in the Loan Documents only as and to the extent they agree among themselves. In
connection with any such sale, assignment or participation, Borrower further agrees that the Loan
Documents shall be sufficient evidence of the obligations of Borrower to each purchaser, assignee,
or participant, and upon written request by Lender, Borrower shall enter into such amendments or
modifications to the Loan Documents as may be reasonably required in order to evidence any such
sale, assignment or participation. The indemnity obligations of Borrower under the Loan Documents
shall also apply with respect to any purchaser, assignee or participant. Anything in this
Agreement to the contrary notwithstanding, and without the need to comply with any of the formal or
procedural requirements of this Agreement, including this Section, any lender may at any time and
from time to time pledge and assign all or any portion of its rights under all or any of the Loan
Documents to a Federal Reserve Bank; provided that no such pledge or assignment shall release such
Lender from its obligations thereunder.



     Section 10.6 Indemnification.



     Borrower shall and hereby agrees to indemnify, defend and hold harmless Lender and Issuing
Bank and their respective directors, officers, agents and employees (each an “Indemnified Party”)
from and against (a) any and all losses, claims, damages, liabilities, deficiencies, judgments or
expenses reasonably incurred by any of them (except to the extent that it results from their own
gross negligence or willful misconduct) arising out of or by reason of any litigation,
investigations, claims or proceedings which arise out of or are in any way related to: (i) this
Agreement or the transactions contemplated thereby; (ii) the making of Loans; (iii) any actual or
proposed use by Borrower of the proceeds of the Loans or of Letters of Credit; or (iv) Lender’s or
Issuing Bank’s entering into this Agreement, the other Loan Documents or any



61









 




other agreements and documents relating hereto, including, without limitation, amounts paid in
settlement, court costs and the reasonable fees and disbursements of counsel incurred in connection
with any such litigation, investigation, claim or proceeding or any advice rendered in connection
with any of the foregoing and (b) any such losses, claims, damages, liabilities, deficiencies,
judgments or expenses incurred in connection with any remedial or other similar action taken by
Borrower, Lender or Issuing Bank in connection with the required compliance by Borrower or any of
the Subsidiaries, or any of their respective properties, with any federal, state or local
Environmental Laws or other material environmental rules, regulations, orders, directions,
ordinances, criteria or guidelines. If and to the extent that the obligations of Borrower
hereunder are unenforceable for any reason, Borrower hereby agrees to make the maximum contribution
to the payment and satisfaction of such obligations which is permissible under Applicable Law.
Borrower’s obligations hereunder shall survive any termination of this Agreement and the other Loan
Documents and the payment in full of the Obligations, and are in addition to, and not in
substitution of, any other of its other obligations set forth in this Agreement and the other Loan
Documents. Borrower shall not be obligated as provided in this Section to indemnify, defend or
hold harmless any Indemnified Person in respect of any litigation, investigation, claim or
proceeding commenced by any Indemnified Party against another Indemnified Party.




     Section 10.7 Successors and Assigns.



     The provisions of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that Borrower may not assign or
otherwise transfer any of its rights under this Agreement without the prior written consent of
Lender.



     Section 10.8 Governing Law.



     THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF TEXAS.



     Section 10.9 Litigation.



     (a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG BORROWER,
LENDER OR ISSUING BANK WOULD BE BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND THAT A
TRIAL BY JURY COULD RESULT IN SIGNIFICANT DELAY AND EXPENSE. ACCORDINGLY, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, LENDER, ISSUING BANK AND BORROWER HEREBY WAIVE TRIAL BY JURY IN ANY
ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE
COMMENCED BY OR AGAINST BORROWER ARISING OUT OF THIS AGREEMENT, THE NOTES OR ANY OTHER LOAN
DOCUMENT OR BY REASON OF ANY OTHER CAUSE OR DISPUTE WHATSOEVER BETWEEN OR AMONG BORROWER, LENDER OR
ISSUING BANK OF ANY KIND OR NATURE.



62









 





     (b) BORROWER, LENDER AND ISSUING BANK EACH HEREBY AGREES THAT THE FEDERAL DISTRICT COURT OF
THE SOUTHERN DISTRICT OF TEXAS OR, AT THE OPTION OF LENDER, ANY STATE COURT LOCATED IN HARRIS
COUNTY, TEXAS SHALL HAVE NON-EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
BETWEEN OR AMONG BORROWER, LENDER OR ISSUING BANK PERTAINING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT, THE NOTE OR ANY OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM.
BORROWER EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING
COMMENCED IN SUCH COURTS. THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO
PRECLUDE THE BRINGING OF ANY ACTION BY LENDER OR ISSUING BANK OR THE ENFORCEMENT BY LENDER OR
ISSUING BANK OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.
FURTHER, BORROWER IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.



     (c) THE FOREGOING WAIVERS HAVE BEEN MADE WITH THE ADVICE OF COUNSEL AND WITH A FULL
UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS AND ALL
OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS AND THE TERMINATION OF THIS
AGREEMENT.



     Section 10.10 Counterparts; Integration.



     This Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement, together with the other Loan Documents, constitutes the entire
agreement and understanding among the parties hereto and supersedes any and all prior agreements
and understandings, oral or written, relating to the subject matter hereof.



     Section 10.11 Invalid Provisions.



     Any provision of this Agreement or any other Loan Document held by a court of competent
jurisdiction to be illegal, invalid or unenforceable shall not invalidate the remaining provisions
of such Loan Document which shall remain in full force and effect and the effect thereof shall be
confined to the provision held invalid or illegal.



     Section 10.12 Mandatory Disclosures.



     Notwithstanding anything to the contrary set forth herein or in any other written or oral
understanding or agreement to which the parties hereto are parties or by which they are bound, the
parties hereto acknowledge and agree that (i) any obligations of confidentiality contained herein
and therein do not apply and have not applied from the commencement of discussions



63









 




between the parties to the tax treatment and tax structure of the transactions contemplated by
the Loan Documents (and any related transactions or arrangements), and (ii) each party (and each of
its employees, representatives, or other agents) may disclose to any and all parties as required,
without limitation of any kind, the tax treatment and tax structure of the transactions
contemplated by the Loan Documents and all materials of any kind (including opinions or other tax
analyses) that are provided to such party relating to such tax treatment and tax structure, all
within the meaning of Treasury Regulations Section 1.6011-4; provided, however, that each party
recognizes that the privilege each has to maintain, in its sole discretion, with regard to the
confidentiality of a communication relating to the transactions contemplated by the Loan Documents,
including a confidential communication with its attorney or a confidential communication with a
federally authorized tax practitioner under Section 7525 of the Internal Revenue Code, is not
intended to be affected by the foregoing.




     Section 10.13 Limitation of Liability of Trustees, Etc.



     LENDER SHALL LOOK SOLELY TO BORROWER FOR THE ENFORCEMENT OF ANY CLAIM AGAINST BORROWER AND
ACCORDINGLY NEITHER THE BORROWER’S BOARD OF TRUSTEES, OFFICERS, EMPLOYEES, SHAREHOLDERS OF BORROWER
NOR THE INVESTMENT MANAGER OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES OR SHAREHOLDERS SHALL HAVE
ANY PERSONAL LIABILITY FOR OBLIGATIONS ENTERED INTO BY OR ON BEHALF OF BORROWER.



     Section 10.14 ENTIRE AGREEMENT.



     THIS REVOLVING CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES. THIS INSTRUMENT MAY BE AMENDED ONLY BY AN INSTRUMENT IN WRITING EXECUTED BY THE PARTIES
HERETO.



     Section 10.15 Confidentiality.



     Notwithstanding anything to the contrary set forth herein or in any other written or oral
understanding or agreement to which the parties hereto are parties or by which they are bound, the
parties hereto acknowledge and agree that (i) any obligations of confidentiality contained herein
and therein do not apply and have not applied from the commencement of discussions between the
parties to the tax treatment and tax structure of the transactions contemplated by the Loan
Documents (and any related transactions or arrangements), and (ii) each party (and each of its
employees, representatives, or other agents) may disclose to any and all persons as required,
without limitation of any kind, the tax treatment and tax structure of the transactions
contemplated by the Loan Documents and all materials of any kind (including opinions or other tax
analyses) that are provided to such party relating to such tax treatment and tax structure, all
within the meaning of Treasury Regulations Section 1.6011-4; provided, however, that each party
recognizes that the privilege each has to maintain, in its sole discretion, with regard to the
confidentiality of a communication relating to the transactions contemplated by the Loan



64









 




Documents, including a confidential communication with its attorney or a confidential
communication with a federally authorized tax practitioner under Section 7525 of the Internal
Revenue Code, is not intended to be affected by the foregoing.




     Section 10.16 USA Patriot Act Notice. Compliance.



     The USA Patriot Act of 2001 (Public Law 107-56) and federal regulations issued with respect
thereto require all financial institutions to obtain, verify and record certain information that
identifies individuals or business entities which open an “account” with such financial
institution. Consequently, Lender may from time-to-time request, and Borrower shall provide to
Lender, Borrower’s name, address, tax identification number and/or such other identification
information as shall be necessary for Lender to comply with federal law. An “account” for this
purpose may include, without limitation, a deposit account, cash management service, a transaction
or asset account, a credit account, a loan or other extension of credit, and/or other financial
services product.



     Section 10.17 Release and Waiver of Claims.



     In consideration of (i) the amendment and restatement of the Original Agreement, as herein
provided, and (ii) the other benefits received by Borrower hereunder, Borrower and Guarantor, each
for themselves, hereby RELEASE, RELINQUISH and forever DISCHARGE Lender, as well as its
predecessors, successors, assigns, agents, officers, directors, employees and representatives, of
and from any and all claims, demands, actions and causes of action of any and every kind or
character, past or present, which either may have against Lender and its predecessors, successors,
assigns, agents, officers, directors, employees and representatives arising out of or with respect
to (a) any right or power to bring any claim against Lender for usury or to pursue any cause of
action against Lender based on any claim of usury, and (b) any and all transactions relating to the
Loan Documents occurring prior to the date hereof, including any loss, cost or damage, of any kind
or character, arising out of or in any way connected with or in any way resulting from the acts,
actions or omissions of Lender, and its predecessors, successors, assigns, agents, officers,
directors, employees and representatives, including any breach of fiduciary duty, breach of any
duty of fair dealing, breach of confidence, breach of funding commitment, undue influence, duress,
economic coercion, conflict of interest, negligence, bad faith, malpractice, intentional or
negligent infliction of mental distress, tortious interference with contractual relations, tortious
interference with corporate governance or prospective business advantage, breach of contract,
deceptive trade practices, libel, slander or conspiracy, but in each case only to the extent
permitted by applicable law.



     Section 10.18 Legal Opinion.



     Borrower has requested (and Lender has agreed) that the legal opinion required under Section
5.1(d) (the “Opinion”) be delivered on or before November 26th, 2008 in lieu of delivery
contemporaneously herewith. Lender shall not be obligated to make any Loans or issue any Letters
of Credit until receipt by Lender of the Opinion. Failure of Borrower to timely deliver the
Opinion on or before November 26th, 2008 shall constitute an Event of Default hereunder
with no further notice or opportunity to cure.



65









 





     IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated Revolving Credit
Agreement to be duly executed by their respective authorized officers as of the day and year first
above written.



	 	 	 	 	 
	 	BORROWER:



AmREIT,

a Texas Real Estate Investment Trust

 	 
	 	By:  	 	 
	 	 	Name:  	Chad C. Braun 	 
	 	 	Title:  	Vice President	 
	 
	 	
[Signatures Continued on Next Page] 	 



66









 






	 	 	 	 	 



	 	 	 	 	 
	 	GUARANTORS:




AMREIT OPERATING CORPORATION,

a Texas corporation

 	 
	 	By:  	 	 
	 	 	Name:  	Chad C. Braun 	 
	 	 	Title:  	Vice President 	 
	 
	 	AMREIT REALTY INVESTMENT
CORPORATION, a Texas
corporation

 	 
	 	By:  	 	 
	 	 	Name:  	Chad C. Braun 	 
	 	 	Title:  	Vice President 	 
	 
	 	AMREIT CONSTRUCTION COMPANY, LLC,

a Texas limited liability company

 	 
	 	By:  	 	 
	 	 	Name:  	Chad C. Braun 	 
	 	 	Title:  	Vice President 	 
	 
	 	AMREIT SECURITIES COMPANY,

a Texas corporation

 	 
	 	By:  	 	 
	 	 	Name:  	Chad C. Braun 	 
	 	 	Title:  	Vice President 	 
	 
	 	AMREIT CONSTRUCTION MANAGEMENT, LLC, a Delaware
limited liability company

 	 
	 	By:  	 	 
	 	 	Name:  	Chad C. Braun 	 
	 	 	Title:  	Vice President	 
	 
	 	
[Signatures Continued on Next Page] 	 



67









 






	 	 	 	 	 



	 	 	 	 	 
	 	LENDER:



WELLS FARGO BANK, NATIONAL
ASSOCIATION

 	 
	 	By:  	 	 
	 	 	Name:  	Timothy P. Williamson 	 
	 	 	Title:  	Senior Vice President 	 
	 




68











 





FORM OF GUARANTY




     THIS GUARANTY dated as of November 21, 2008, executed and delivered by each of the undersigned
and the other Persons from time to time party hereto pursuant to the execution and delivery of an
Accession Agreement in the form of Annex I hereto (all of the undersigned, together with such other
Persons each a “Guarantor” and collectively, the “Guarantors”) in favor of WELLS FARGO BANK,
NATIONAL ASSOCIATION (“Lender”) under that certain Amended and Restated Revolving Credit Agreement
dated as of November 21, 2008, by and between AmREIT, a Texas Real Estate Investment Trust
(“Borrower”) (as the same may be amended, restated, supplemented or otherwise modified from time to
time in accordance with its terms, the “Credit Agreement”).



     WHEREAS, pursuant to the Credit Agreement, Lender has agreed to extend certain financial
accommodations to Borrower;



     WHEREAS, it is a condition precedent to the effectiveness of the Credit Agreement and the
extension of financial accommodations under the Credit Agreement that the Guarantors execute and
deliver this Guaranty;



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by each Guarantor, each Guarantor agrees as follows:



     Section 1. Guaranty. Each Guarantor hereby absolutely, irrevocably and
unconditionally guaranties the due and punctual payment and performance when due, whether at stated
maturity, by acceleration or otherwise, of all of the following (collectively referred to as the
“Guaranteed Obligations’’): (a) all indebtedness and obligations owing by the Borrower to Lender
or the Issuing Bank under or in connection with the Credit Agreement and any other Loan Document to
which the Borrower is a party, including without limitation, the repayment of all principal of the
Revolving Loan, all Reimbursement Obligations and all other Letter of Credit Liabilities, and the
payment of all interest, Fees, charges, reasonable and actual attorneys fees and other amounts
payable to Lender or the Issuing Bank thereunder or in connection therewith; (b) any and all
extensions, renewals, modifications, amendments or substitutions of the foregoing; (c) all
expenses, including, without limitation, reasonable and actual attorneys’ fees and disbursements
that are incurred by the Lender or the Issuing Bank in the enforcement of any of the foregoing or
any obligation of such Guarantor hereunder and (d) all other Obligations.



     Section 2. Guaranty of Payment and Not of Collection. This Guaranty is a guaranty of
payment, and not of collection, and a debt of each Guarantor for its own account. Accordingly,
neither Lender nor the Issuing Bank shall be obligated or required before enforcing this Guaranty
against any Guarantor: (a) to pursue any right or remedy Lender or the Issuing Bank may have
against Borrower, any other Loan Party or any other Person or commence any suit or other proceeding
against Borrower, any other Loan Party or any other Person in any court or other tribunal, (b) to
make any claim in a liquidation or bankruptcy of Borrower, any other Loan Party or any other
Person; or (c) to make demand of Borrower, any other Loan Party or any other Person or to enforce
or seek to enforce or realize upon any collateral security held by Lender or the Issuing Bank which
may secure any of the Guaranteed Obligations.



Form of Guaranty

Exhibit A

Page A-1




 









 








     Section 3. Guaranty Absolute. Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the documents evidencing the
same, regardless of any Applicable Law now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of Lender or the Issuing Bank with respect thereto. The liability of
each Guarantor under this Guaranty shall be absolute and unconditional in accordance with its terms
and shall remain in full force and effect without regard to, and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance or occurrence whatsoever,
including without limitation, the following (whether or not such Guarantor consents thereto or has
notice thereof):



     (a) (i) any change in the amount, interest rate or due date or other term of any of the
Guaranteed Obligations, (ii) any change in the time, place or manner of payment of all or any
portion of the Guaranteed Obligations, (iii) any amendment or waiver of, or consent to the
departure from or other indulgence with respect to, the Credit Agreement, any other Loan Document,
or any other document or instrument evidencing or relating to any Guaranteed Obligations, or (iv)
any waiver, renewal, extension, addition, or supplement to, or deletion from, or any other action
or inaction under or in respect of, the Credit Agreement, any of the other Loan Documents, or any
other documents, instruments or agreements relating to the Guaranteed Obligations or any other
instrument or agreement referred to therein or evidencing any Guaranteed Obligations or any
assignment or transfer of any of the foregoing;



     (b) any lack of validity or enforceability of the Credit Agreement, any of the other Loan
Documents, or any other document, instrument or agreement referred to therein or evidencing any
Guaranteed Obligations or any assignment or transfer of any of the foregoing;



     (c) any furnishing to the Lender or the Issuing Bank of any additional security for the
Guaranteed Obligations, or any sale, exchange, release or surrender of, or realization on, any
collateral securing any of the Obligations;



     (d) any settlement or compromise of any of the Guaranteed Obligations, any security therefor,
or any liability of any other party with respect to the Guaranteed Obligations, or any
subordination of the payment of the Guaranteed Obligations to the payment of any other liability of
the Borrower or any other Loan Party,



     (e) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to such Guarantor, the Borrower, any other Loan Party
or any other Person, or any action taken with respect to this Guaranty by any trustee or receiver,
or by any court, in any such proceeding;



     (f) any act or failure to act by the Borrower, any other Loan Party or any other Person which
may adversely affect such Guarantor’s subrogation rights, if any, against the Borrower to recover
payments made under this Guaranty;



     (g) any application of sums paid by the Borrower, any other Loan Party or any other Person
with respect to the liabilities of the Borrower to Lender, or the Issuing Bank, regardless of what
liabilities of the Borrower remain unpaid;



Form of Guaranty

Exhibit A

Page A-2




 









 








     (h) any defect, limitation or insufficiency in the borrowing powers of the Borrower or in the
exercise thereof; or



     (i) any other circumstance which might otherwise constitute a defense available to, or a
discharge of, such Guarantor hereunder



     Section 4. Action with Respect to Guaranteed Obligations. Lender and the Issuing Bank
may, at any time and from time to time, without the consent of, or notice to, any Guarantor, and
without discharging any Guarantor from its obligations hereunder take any and all actions described
in Section 3 and may otherwise: (a) amend, modify, alter or supplement the terms of any of the
Guaranteed Obligations, including, but not limited to, extending or shortening the time of payment
of any of the Guaranteed Obligations or the interest rate that may accrue on any of the Guaranteed
Obligations; (b) amend, modify, alter or supplement the Credit Agreement or any other Loan
Document; (c) sell, exchange, release or otherwise deal with all, or any part, of any collateral
securing any of the Obligations; (d) release any Loan Party or other Person liable in any manner
for the payment or collection of the Guaranteed Obligations; (e) exercise, or refrain from
exercising, any rights against the Borrower, any other Loan Party or any other Person; and (f)
apply any sum, by whomsoever paid or however realized, to the Guaranteed Obligations in such order
as the Lender shall elect.



     Section 5. Representations and Warranties. Each Guarantor hereby makes to the Lender
all of the representations and warranties made by the Borrower with respect to or in any way
relating to such Guarantor in the Credit Agreement and the other Loan Documents, as if the same
were set forth herein in full.



     Section 6. Covenants. Each Guarantor will comply with all covenants which the Borrower
is to cause such Guarantor to comply with under the terms of the Credit Agreement or any of the
other Loan Documents.



     Section 7. Waiver. Each Guarantor, to the fullest extent permitted by Applicable Law,
hereby waives notice or acceptance hereof or any presentment, demand, protest or notice or any
kind, and any other act or thing, or omission or delay to do any other act or thing, which in any
manner or to any extent might vary the risk of such Guarantor or which otherwise might operate to
discharge such Guarantor from its obligations hereunder.



     Section 8. Inability to Accelerate Loan. If either Lender or the Issuing Bank is
prevented from demanding or accelerating payment of any of the Guaranteed Obligations by reason of
any automatic stay or otherwise, Lender or the Issuing Bank shall be entitled to receive
from such Guarantor, upon demand therefor, the sums which otherwise would have been due had
such demand or acceleration occurred.



     Section 9. Reinstatement of Guaranteed Obligations. If claim is ever made on Lender
or the Issuing Bank for repayment or recovery of any amount or amounts received in payment or on
account of any of the Guaranteed Obligations, and Lender or the Issuing Bank repays all or part of
said amount by reason of (a) any judgment, decree or order of any court or
administrative body of competent jurisdiction, or (b) any settlement or compromise of any such
claim effected by Lender or the Issuing Bank with any such claimant (including the Borrower or



Form of Guaranty

Exhibit A

Page A-3




 









 







a trustee in bankruptcy for the Borrower), then and in such event each Guarantor agrees that any
such judgment, decree, order, settlement or compromise shall be binding on it, notwithstanding any
revocation hereof or the cancellation of the Credit Agreement, any of the other Loan Documents, or
any other instrument evidencing any liability of the Borrower, and such Guarantor shall be and
remain liable to Lender or the Issuing Bank for the amounts so repaid or recovered to the same
extent as if such amount had never originally been paid to Lender or the Issuing Bank.




     Section 10. Subrogation. Upon the making by any Guarantor of any payment hereunder
for the account or the Borrower, such Guarantor shall be subrogated to the rights of the payee
against the Borrower; provided, however, that such Guarantor shall not enforce any right or receive
any payment by way of subrogation or otherwise take any action in respect of any other claim or
cause of action such Guarantor may have against the Borrower arising by reason of any payment or
performance by such Guarantor pursuant to this Guaranty, unless and until all of the Guaranteed
Obligations have been indefeasibly paid and performed in full. If any amount shall be paid to such
Guarantor on account of or in respect of such subrogation rights or other claims or causes of
action, such Guarantor shall hold such amount in trust for the benefit of Lender and the Issuing
Bank and shall forthwith pay such amount to Lender to be credited and applied against the
Guaranteed Obligations, whether matured or unmatured, in accordance with the terms of the Credit
Agreement or to be held by Lender as collateral security for any Guaranteed Obligations existing.



     Section 11. Payments Free and Clear. All sums payable by each Guarantor hereunder,
whether of principal, interest, Fees, expenses, premiums or otherwise, shall be paid in full,
without set-off or counterclaim or any deduction or withholding whatsoever (including any
withholding tax or liability imposed by any Governmental Authority, or any Applicable Law
promulgated thereby), and if such Guarantor is required by Applicable Law or by any Governmental
Authority to make any such deduction or withholding, such Guarantor shall pay to Lender and the
Issuing Bank such additional amount as will result in the receipt by Lender and the Issuing Bank of
the full amount payable hereunder had such deduction or withholding not occurred or been required.



     Section 12. Subordination. Each Guarantor hereby expressly covenants and agrees for
the benefit of Lender and the Issuing Bank that all obligations and liabilities of the Borrower to
such Guarantor of whatever description, including without limitation, all intercompany receivables
of such Guarantor from the Borrower (collectively, the “Junior Claims”) shall be subordinate and
junior in right of payment to all Guaranteed Obligations. If an Event of Default shall have
occurred and be continuing, then no Guarantor shall accept any direct or indirect payment (in cash,
property, securities by set-off or otherwise) from the Borrower on account of or in any manner in
respect of any Junior Claim until all of the Guaranteed Obligations have been indefeasibly paid in
full.



     Section 13. Avoidance Provisions. It is the intent of each Guarantor, Lender and the
Issuing Bank that in any Proceeding, such Guarantor’s maximum obligation hereunder shall equal, but
not exceed, the maximum amount which would not otherwise cause the obligations of the Guarantor
hereunder (or any other obligations of the Guarantor to Lender and the Issuing Bank) to be
avoidable or unenforceable against the Guarantor in such Proceeding as a result of



Form of Guaranty

Exhibit A

Page A-4




 









 







Applicable Law, including, without limitation, (a) Section 548 of the Bankruptcy Code of 1978,
as amended (the “Bankruptcy Code”) and (b) any state fraudulent transfer or fraudulent conveyance
act or statue applied in such Proceeding, whether by virtue of Section 544 of the Bankruptcy Code
or otherwise. The Applicable Laws under which the possible avoidance or unenforceability of the
obligations of such Guarantor hereunder (or any other obligations of such Guarantor to Lender and
the Issuing Bank) shall be determined in any such Proceeding are referred to as the “Avoidance
Provisions.” Accordingly, to the extent that the obligations of any Guarantor hereunder would
otherwise be subject to avoidance under the Avoidance Provisions, the maximum Guaranteed
Obligations for which such Guarantor shall be liable hereunder shall be reduced to that amount
which, as of the time any of the Guaranteed Obligations are deemed to have been incurred under the
Avoidance Provisions, would not cause the obligations of any Guarantor hereunder (or any other
obligations of the Guarantor to Lender and the Issuing Bank), to be subject to avoidance under the
Avoidance Provisions. This Section is intended solely to preserve the rights of Lender and the
Issuing Bank hereunder to the maximum extent that would not cause the obligations of any Guarantor
hereunder to be subject to avoidance under the Avoidance Provisions, and no Guarantor or any other
Person shall have any right or claim under this Section as against Lender and the Issuing Bank that
would not otherwise be available to such Person under the Avoidance Provisions.




     Section 14. Information. Each Guarantor assumes all responsibility for being and
keeping itself informed of the financial condition of the Borrower and the other Loan Parties, and
of all other circumstances bearing upon the risk of nonpayment of any of the Guaranteed Obligations
and the nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and
agrees that neither Lender nor the Issuing Bank shall have any duty whatsoever to advise any
Guarantor of information regarding such circumstances or risks.



     Section 15. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.



     Section 16. WAIVER OF JURY TRIAL.



     (a) EACH GUARANTOR, LENDER AND THE ISSUING BANK BY ACCEPTING THE BENEFITS HEREOF, ACKNOWLEDGE
THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG ANY GUARANTOR, LENDER AND THE ISSUING BANK WOULD
BE BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND THAT A TRIAL BY JURY COULD RESULT IN
SIGNIFICANT DELAY AND EXPENSE. ACCORDINGLY, THE GUARANTOR, AND LENDER AND THE ISSUING BANK BY
ACCEPTING THE BENEFITS HEREOF, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY WAIVES
TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH
AN ACTION MAY BE COMMENCED BY OR AGAINST SUCH GUARANTOR ARISING OUT OF THIS GUARANTY OR ANY OTHER
LOAN DOCUMENT OR BY
REASON OF ANY OTHER CAUSE OR DISPUTE WHATSOEVER BETWEEN OR AMONG SUCH GUARANTOR, LENDER OR THE
ISSUING BANK OF ANY KIND OR NATURE.



     (b) EACH GUARANTOR, LENDER AND THE ISSUING BANK EACH HEREBY AGREES THAT THE FEDERAL DISTRICT
COURT OF THE SOUTHERN DISTRICT OF



Form of Guaranty

Exhibit A

Page A-5




 









 







TEXAS OR, AT THE OPTION OF LENDER, ANY STATE COURT LOCATED IN HARRIS COUNTY, TEXAS SHALL HAVE
NON-EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG GUARANTOR,
LENDER OR THE ISSUING BANK, PERTAINING DIRECTLY OR INDIRECTLY TO THIS GUARANTY, THE GUARANTEED
OBLIGATIONS OR ANY OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. GUARANTOR
EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING
COMMENCED IN SUCH COURTS. THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO
PRECLUDE THE BRINGING OF ANY ACTION BY LENDER OR THE ISSUING BANK OR THE ENFORCEMENT BY LENDER OR
THE ISSUING BANK OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.
FURTHER, EACH GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.




     (c) THE FOREGOING WAIVERS HAVE BEEN MADE WITH THE ADVICE OF COUNSEL AND WITH A FULL
UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE OBLIGATIONS
AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS AND THE TERMINATION OF
THIS GUARANTY.



     Section 17. Loan Accounts. Lender and the Issuing Bank may maintain books and
accounts setting forth the amounts of principal, interest and other sums paid and payable with
respect to the Guaranteed Obligations, and in the case of any dispute relating to any of the
outstanding amount, payment or receipt of any of the Guaranteed Obligations or otherwise, the
entries in such books and accounts shall constitute prima facie evidence of the outstanding amount
of such Guaranteed Obligations and the amounts paid and payable with respect thereto. The failure
of Lender or the Issuing Bank to maintain such books and accounts shall not in any way relieve or
discharge any Guarantor of any of its obligations hereunder.



     Section 18. Waiver of Remedies. No delay or failure on the part of Lender or the
Issuing Bank in the exercise of any right or remedy it may have against any Guarantor hereunder or
otherwise shall operate as a waiver thereof, and no single or partial exercise by Lender or the
Issuing Bank of any such right or remedy shall preclude other or further exercise thereof or the
exercise of any other such right or remedy.



     Section 19. Termination. This Guaranty shall remain in full force and effect until
indefeasible payment in full of the Obligations and the termination or cancellation of the Credit
Agreement.



     Section 20. Successors and Assigns. Each reference herein to Lender or the Issuing
Bank shall be deemed to include such Person’s respective successors and assigns (including, but not
limited to, any holder of the Guaranteed Obligations) in whose favor the provisions of this
Guaranty also shall inure, and each reference herein to each Guarantor shall be deemed to



Form of Guaranty

Exhibit A

Page A-6



 









 







include such Guarantor’s successors and assigns, upon whom this Guaranty also shall be binding.
Lender and the Issuing Bank may, in accordance with the applicable provisions of the Credit
Agreement, assign, transfer or sell any Guaranteed Obligations, or grant or sell participation in
any Guaranteed Obligations, to any Person without the consent of, or notice to, any Guarantor and
without releasing, discharging or modifying any Guarantor’s obligations hereunder. Each Guarantor
hereby consents to the delivery by Lender or the Issuing Bank to any assignee or participant (or
any prospective assignee or participant) of any financial or other information regarding the
Borrower or any Guarantor. No Guarantor may assign or transfer its obligations hereunder to any
Person.




     Section 21. JOINT AND SEVERAL OBLIGATIONS. THE OBLIGATIONS OF EACH GUARANTOR
HEREUNDER SHALL BE JOINT AND SEVERAL AND ACCORDINGLY, EACH GUARANTOR CONFIRMS THAT IT IS LIABLE FOR
THE FULL AMOUNT OF THE “GUARANTEED OBLIGATIONS” AND ALL OF THE OBLIGATIONS AND LIABILITIES OF EACH
OF THE OTHER GUARANTORS HEREUNDER.



     Section 22. Amendments. This Guaranty may not be amended except in writing signed by
Lender and each Guarantor.



     Section 23. Payments. All payments to be made by any Guarantor pursuant to this
Guaranty shall be made in Dollars, in immediately available funds to Lender at its Lending Office,
not later than 11:00 a.m., on the date one Business Day after demand therefor.



     Section 24. Notices. All notices, requests and other communications hereunder shall
be in writing (including facsimile transmission or similar writing) and shall be given (a) to each
Guarantor at its address set forth below its signature hereto, (b) to Lender or the Issuing Bank at
its address for notices provided for in the Credit Agreement, or (c) as to each such party at such
other address as such party shall designate in a written notice to the other parties. Each such
notice, request or other communication shall be effective (i) if mailed, when received; (ii) if
telecopied, when transmitted; or (iii) if hand delivered, when delivered; provided, however, that
any notice of a change of address for notices shall not be effective until received.



     Section 25. Severability. In case any provision of this Guaranty shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.



     Section 26. Headings. Section headings used in this Guaranty are for convenience only
and shall not affect the construction of this Guaranty.



     Section 27. Definitions.



     (a) For the purposes of this Guaranty:



     “Proceeding” means any of the following: (i) a voluntary or involuntary case concerning any
Guarantor shall be commenced under the Bankruptcy Code of 1978, as amended; (ii) a custodian (as
defined in such Bankruptcy Code or any other applicable bankruptcy laws) is appointed for, or takes
charge of, all or any substantial part of the property of any Guarantor; (iii) any other proceeding
under any Applicable Law, domestic or foreign, relating to bankruptcy,



Form of Guaranty

Exhibit A

Page A-7




 









 







insolvency, reorganization, winding-up or composition for adjustment of debts, whether now or
hereafter in effect, is commenced relating to any Guarantor; (iv) any Guarantor is adjudicated
insolvent or bankrupt; (v) any order of relief or other order approving any such case or proceeding
is entered by a court of competent jurisdiction; (vi) any Guarantor makes a general assignment for
the benefit of creditors; (vii) any Guarantor shall fail to pay, or shall state that it is unable
to pay, or shall be unable to pay, its debts generally as they become due; (viii) any Guarantor
shall call a meeting of its creditors with a view to arranging a composition or adjustment of its
debts; (ix) any Guarantor shall by any act or failure to act indicate its consent to, approval of
or acquiescence in any of the foregoing; or (x) any corporate action shall be taken by any
Guarantor for the purpose of effecting any of the foregoing.




     (b) Terms not otherwise defined herein are used herein with the respective meanings given them
in the Credit Agreement.



     Section 28. ENTIRE AGREEMENT. THIS GUARANTY, TOGETHER WITH THE CREDIT AGREEMENT AND
THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. THIS INSTRUMENT MAY BE AMENDED ONLY BY
AN INSTRUMENT IN WRITING EXECUTED BY THE PARTIES HERETO.



[Signatures on Next Page]




Form of Guaranty

Exhibit A

Page A-8




 









 








     IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this Guaranty as of the
date and year first written above.



	 	 	 	 	 
	 	AMREIT OPERATING CORPORATION,

a Texas corporation

 	 
	 	By:  	
 	 
	 	 	Name:  	Chad C. Braun 	 
	 	 	Title:  	Vice President 	 
	 
	 	Address for Notices:



8 Greenway Plaza, Suite 1000

Houston, Texas 77046

Attention: Chad C. Braun

Telecopier: (713) 860-4924

Telephone: (713) 860-4932





AMREIT REALTY INVESTMENT
CORPORATION,

a Texas corporation

 	 
	 	By:  	
 	 
	 	 	Name:  	Chad C. Braun 	 
	 	 	Title:  	Vice President 	 
	 
	 	Address for Notices:



8 Greenway Plaza, Suite 1000

Houston, Texas 77046

Attention: Chad C. Braun

Telecopier: (713) 860-4924

Telephone: (713) 860-4932

 	 
	 	 	 
	 	 	 
	 	 	 
	 



Form of Guaranty

Exhibit A

Page A-9





 











 





ANNEX I




FORM OF ACCESSION AGREEMENT




     THIS ACCESSION AGREEMENT dated as of ________, ________, executed and delivered by
                        , a (the “New Guarantor”) in favor of (a) WELLS FARGO BANK, NATIONAL ASSOCIATION
(“Lender”) under that certain Amended and Restated Revolving Credit Agreement dated as of November
21, 2008 (as the same may be amended, restated, supplemented or otherwise modified from time to
time in accordance with its terms, the “Credit Agreement”), by and between AmREIT, a Texas Real
Estate Investment Trust (“Borrower”).



     WHEREAS, pursuant to the Credit Agreement, Lender and the Issuing Bank have agreed to make
available to the Borrower certain financial accommodations on the terms and conditions set forth in
the Credit Agreement;



     WHEREAS, the Borrower owns, directly or indirectly, ___% of the issued and outstanding capital
stock of; or other equity interest in, the New Guarantor;



     WHEREAS, the Borrower, the New Guarantor and the other Subsidiaries of the Borrower though
separate legal entities, are mutually dependent on each other in the conduct of their respective
businesses as an integrated operation and have determined it to be in their mutual best interests
to obtain financing from Lender and the Issuing Bank through their collective efforts;



     WHEREAS, the New Guarantor acknowledges that it will receive direct and indirect benefits from
Lender and the Issuing Bank making such financial accommodations available to the Borrower under
the Credit Agreement and, accordingly, the New Guarantor is willing to guarantee the Borrower’s
obligations to Lender and the Issuing Bank on the terms and conditions contained herein, and



     WHEREAS, the New Guarantor’s execution and delivery of this Agreement is a condition to Lender
and the Issuing Bank continuing to make such financial accommodations to the Borrower.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the New Guarantor, the New Guarantor agrees as follows:



     Section 1. Accession to Guaranty. The New Guarantor hereby agrees that it is a
“Guarantor” under that certain Guaranty dated as of November 21, 2008 (the “Guaranty”), made by
each Subsidiary a party thereto in favor of Lender and the Issuing Bank and assumes all obligations
of a “Guarantor” thereunder, all as if the New Guarantor had been an original signatory to the
Guaranty. Without limiting the generality of the foregoing, the New Guarantor hereby:



     (a) irrevocably and unconditionally guarantees the due and punctual payment and performance
when due, whether at stated maturity, by acceleration or otherwise, of all Guaranteed Obligations;



Form of Guaranty

Exhibit A

Page A-10




 









 








     (b) makes to Lender and the Issuing Bank as of the date hereof each of the representations and
warranties contained in Section 5 of the Guaranty and agrees to be bound by each of the covenants
contained in Section 6 of the Guaranty; and



     (c) consents and agrees to each provision set forth in the Guaranty.



     Section 2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.



     Section 3. Definitions. Capitalized terms used herein and not otherwise defined
herein shall have their respective defined meanings given them in the Credit Agreement.



     Section 4. ENTIRE AGREEMENT. THIS ACCESSION AGREEMENT, TOGETHER WITH THE GUARANTY,
CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. THIS INSTRUMENT MAY BE
AMENDED ONLY BY AN INSTRUMENT IN WRITING EXECUTED BY THE PARTIES HERETO.



[Signatures on Next Page]




Form of Guaranty

Exhibit A

Page A-11




 









 








          IN WITNESS WHEREOF, the new Guarantor has caused this Accession Agreement to be duly executed
and delivered under seal by its duly authorized officers as of the date first written above.




	 	 	 	 	 
	 	[NEW GUARANTOR]

 	 
	 	By:  	 	 
	 	 	Name 	 	 
	 	 	Title:  	 	 
	 
	 	ATTEST:

 	 
	 	By:  	 	 
	 	 	Name 	 	 
	 	 	Title:  	 	 
	 
	 	Address for Notices:

 	 
	 	 	 
	 	 	 
	 	 	 
	 	Attention: 	 	 
	 	Telecopier: 	(___) 
	 
	 	Telephone: 	(___) 
	 
	 



	 	 	 	 	 
	Accepted:



WELLS FARGO BANK, NATIONAL

ASSOCIATION, as Lender

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 



Form of Guaranty

Exhibit A

Page A-12





 









 








FORM OF REVOLVING NOTE




					
	$35,000,000.00
	 	Houston, Texas
	 	November 21, 2008






     FOR VALUE RECEIVED, the undersigned, AmREIT, a Texas Real Estate Investment Trust
(“Borrower”), hereby unconditionally promises to pay to the order of Wells Fargo Bank, National
Association (the “Lender”), at its Lending Office at Wells Fargo Bank, National Association,
Disbursement and Operations Center, 733 Marquette Avenue, 10th Floor, Minneapolis,
Minnesota 55402 or at such other address as may be specified by Lender to Borrower, the principal
sum of THIRTY-FIVE MILLION AND NO/100 DOLLARS ($35,000,000.00), or such lesser amount as may be the
then outstanding and unpaid balance of all the Loans made by Lender to the Borrower pursuant to,
and in accordance with the terms of, the Credit Agreement (hereinafter defined).



     The Borrower further agrees to pay interest at said Lending Office, in like money, on the
unpaid principal amount owing hereunder from time to time on the dates and at the rates and at the
times specified in the Credit Agreement.



     This Revolving Note (the “Revolving Note”) shall constitute the “Revolving Note” referred to
in that certain Amended and Restated Revolving Credit Agreement dated as of November 21, 2008 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”),
by and between the Borrower and Lender, and is subject to, and entitled to, all provisions and
benefits thereof. Capitalized terms used herein and not defined herein shall have the respective
meanings given to such terms in the Credit Agreement. The Credit Agreement, among other things,
(a) provides for the making of Loans by Lender to Borrower from time to time in an aggregate amount
not to exceed at any time outstanding the Dollar amount first above mentioned, (b) permits the
prepayment of the Loans by the Borrower subject to certain terms and conditions and (c) provides
for the acceleration of the Loans upon the occurrence of certain specified events.



     It is expressly stipulated and agreed to be the intent of Borrower and Lender at all times to
comply strictly with the applicable Texas law (or applicable United States federal law to the
extent that it permits Lender to contract for, charge, take, reserve or receive a greater amount of
interest than under Texas law) governing the maximum rate or amount of interest payable on this
Revolving Note or the Related Indebtedness (hereinafter defined). If the applicable law is ever
judicially interpreted so as to render usurious any amount (i) contracted for, charged, taken,
reserved or received pursuant to this Revolving Note, any of the other Loan Documents or any other
communication or writing by or between Borrower and Lender related to the transaction or
transactions that are the subject matter of the Loan Documents, (ii) contracted for, charged or
received by reason of Lender’s exercise of the option to accelerate the maturity of this Revolving
Note and/or the Related Indebtedness, or (iii) Borrower will have paid or Lender will have received
by reason of any voluntary prepayment by Borrower of this Revolving Note and/or the Related
Indebtedness, then it is Borrower’s and Lender’s express intent that all amounts charged in excess
of the Maximum Lawful Rate shall be automatically canceled, ab initio, and all amounts in excess of
the Maximum Lawful Rate theretofore collected by Lender shall be credited on the principal balance
of this Revolving Note and/or the Related Indebtedness (or, if this Revolving Note and all Related
Indebtedness have been or would thereby be paid in full,



Form of Revolving Note

Exhibit B

Page B-1



 









 







refunded to Borrower), and the provisions of this Revolving Note and the other Loan Documents
immediately be deemed reformed and the amounts thereafter collectible hereunder and thereunder
reduced, without the necessity of the execution of any new document, so as to comply with the
applicable law, but so as to permit the recovery of the fullest amount otherwise called for
hereunder and thereunder; provided, however, if this Revolving Note has been paid in full before
the end of the stated term of this Revolving Note, then Borrower and Lender agree that Lender
shall, with reasonable promptness after Lender discovers or is advised by Borrower that interest
was received in an amount in excess of the Maximum Lawful Rate, either refund such excess interest
to Borrower and/or credit such excess interest against this Revolving Note and/or any Related
Indebtedness then owing by Borrower to Lender. Borrower hereby agrees that as a condition
precedent to any claim seeking usury penalties against Lender, Borrower will provide written notice
to Lender, advising Lender in reasonable detail of the nature and amount of the violation, and
Lender shall have sixty (60) days after receipt of such notice in which to correct such usury
violation, if any, by either refunding such excess interest to Borrower or crediting such excess
interest against this Revolving Note and/or the Related Indebtedness then owing by Borrower to
Lender. All sums contracted for, charged or received by Lender for the use, forbearance or
detention of any debt evidenced by this Revolving Note and/or the Related Indebtedness shall, to
the extent permitted by applicable law, be amortized or spread, using the actuarial method,
throughout the stated term of this Revolving Note and/or the Related Indebtedness (including any
and all renewal and extension periods) until payment in full so that the rate or amount of interest
on account of this Revolving Note and/or the Related Indebtedness does not exceed the Maximum
Lawful Rate from time to time in effect and applicable to this Revolving Note and/or the Related
Indebtedness for so long as debt is outstanding. In no event shall the provisions of Chapter 346
of the Texas Finance Code (which regulates certain revolving credit loan accounts and revolving
triparty accounts) apply to this Revolving Note and/or the Related Indebtedness. Notwithstanding
anything to the contrary contained herein or in any of the other Loan Documents, it is not the
intention of Lender to accelerate the maturity of any interest that has not accrued at the time of
such acceleration or to collect unearned interest at the time of such acceleration. Borrower and
Lender hereby agree that any and all suits alleging the contracting for, charging or receiving of
usurious interest shall lie in Harris County, Texas, and each irrevocably waive the right to venue
in any other county.




     As used herein, the term “Maximum Lawful Rate” shall mean the maximum lawful rate of interest
which may be contracted for, charged, taken, received or reserved by Lender in accordance with the
applicable laws of the State of Texas (or applicable United States federal law to the extent that
it permits Lender to contract for, charge, take, receive or reserve a greater amount of interest
than under Texas law), taking into account all Charges (as herein defined) made in connection with
the transaction evidenced by this Revolving Note and the other Loan Documents. As used herein, the
term “Charges” shall mean all fees, charges and/or any other things of value, if any, contracted
for, charged, received, taken or reserved by Lender in connection with the transactions relating to
this Revolving Note and the other Loan Documents, which are treated as interest under applicable
law. As used herein, the term “Related Indebtedness” shall mean any and all debt paid or payable
by Borrower to Lender pursuant to the Loan Documents or any other communication or writing by or
between Borrower and Lender related to the transaction or transactions that are the subject matter
of the Loan Documents, except such debt which has been paid or is payable by Borrower to Lender
under the Revolving Note.



Form of Revolving Note

Exhibit B

Page B-2



 









 








     To the extent that Lender is relying on Chapter 303 of the Texas Finance Code to determine the
Maximum Lawful Rate payable on this Revolving Note and/or the Related Indebtedness, Lender will
utilize the weekly ceiling from time to time in effect as provided in such Chapter 303, as amended.
To the extent United States federal law permits Lender to contract for, charge, take, receive or
reserve a greater amount of interest than under Texas law, Lender will rely on United States
federal law instead of such Chapter 303 for the purpose of determining the Maximum Lawful Rate.
Additionally, to the extent permitted by applicable law now or hereafter in effect, Lender may, at
its option and from time to time, utilize any other method of establishing the Maximum Lawful Rate
under such Chapter 303 or under other applicable law by giving notice, if required, to Borrower as
provided by applicable law now or hereafter in effect.



     Notwithstanding anything in this Revolving Note to the contrary, if at any time (i) the
interest rate provided for under this Revolving Note or any other Loan Document (the “Stated
Rate”), and (ii) the Charges computed over the full term of this Revolving Note, exceed the Maximum
Lawful Rate, then the rate of interest payable hereunder, together with all Charges, shall be
limited to the Maximum Lawful Rate; provided, however, that any subsequent reduction in the Stated
Rate shall not cause a reduction of the rate of interest payable hereunder below the Maximum Lawful
Rate until the total amount of interest earned hereunder, together with all Charges, equals the
total amount of interest which would have accrued at the Stated Rate if such interest rate had at
all times been in effect. Changes in the Stated Rate resulting from a fluctuations in the rates
used to calculate the Stated Rate shall be subject to the provisions of this paragraph.



     The holder hereof shall be entitled to the benefits of the other Loan Documents (to the extent
and with the effect as therein provided).



     The Borrower hereby waives presentment, demand, protest and notice of any kind, including
without limitation notice of interest to accelerate and notice of acceleration. No failure to
exercise, and no delay in exercising any rights hereunder on the part of the holder hereof shall
operate as a waiver of such rights.



     Time is of the essence of this Revolving Note.



     THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
TEXAS.



     IN WITNESS WHEREOF, the undersigned has executed and delivered this Revolving Note as of the
date written above.



	 	 	 	 	 
	 	AmREIT,

a Texas Real Estate Investment Trust

 	 
	 	By:  	 	 
	 	 	Name:  	Chad C. Braun 	 
	 	 	Title:  	Vice President 	 



Form of Revolving Note

Exhibit B

Page B-3





 











 





FORM OF NOTICE OF BORROWING




_____________________, 200___




Wells Fargo Bank, National Association

Disbursement and Operations Center

733 Marquette Avenue, 10th Floor

Minneapolis, Minnesota 55402

Attention: Jivko Sabev

Facsimile: (866) 720-0617




Ladies and Gentlemen:




     Reference is made to that certain Amended and Restated Revolving Credit Agreement dated as of
November 21, 2008, as amended (the “Credit Agreement”), by and between AmREIT, a Texas Real Estate
Investment Trust (“Borrower”), and Wells Fargo Bank, National Association (‘Lender’). Capitalized
terms used herein and not otherwise defined herein, have their respective meanings given them in
the Credit Agreement.




	 	1.	 	Pursuant to Section 2.2 of the Credit Agreement, the Borrower hereby
requests that the Lender makes a Loan to the Borrower in an amount equal to
$_____________________.
	 
	 	2.	 	The Borrower requests that the Loan be made available to the Borrower
on _____________________, 200___.
	 
	 	3.	 	The Borrower hereby requests that the requested Loan be of the
following Type:
	 
	 	 	 	[Check one box only]
	 
	 	 	 	o Base Rate Loan

o LIBOR Loan, with an initial Interest Period for a duration of:






	 	[Check one box only] 	 	 o one month

o three months

o six months






	 	4.	 	The proceeds of the Loan will be used for the following:
	 
	 	 	 	 


	 	 	 	 


	 	 	 	 







     The Borrower hereby certifies to Lender that as of the date hereof, as of the date of the
making of the requested Loan, and after making such Loan, (a) no Default or Event of Default shall
have occurred and be continuing and (b) the representations and warranties of the Borrower
contained in the Credit Agreement and the other Loan Documents are and shall be true and correct in
all material respects, except to the extent such representations or warranties



Form of Notice of Borrowing

Exhibit C

Page C-1




 









 







specifically relate to an earlier date or such representations or warranties have become untrue by
reason of events or conditions otherwise permitted under the Credit Agreement or the other Loan
Documents.




	 	 	 	 	 	 	 	 
	 	 	AmREIT,	 
	 	 	a Texas Real Estate Investment Trust	 
	 
	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 
	 

	 	 	 	 
	 	 	 
	 

	 	 	 	Name:	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 





Form of Notice of Borrowing

Exhibit C

Page C-2






 









 








FORM OF NOTICE OF CONTINUATION




_____________________, 200___




Wells Fargo Bank, National Association

Disbursement and Operations Center

733 Marquette Avenue, 10th Floor

Minneapolis, Minnesota 55402

Attention: Jivko Sabev

Facsimile: (866) 720-0617




Ladies and Gentlemen:




     Reference is made to that certain Amended and Restated Revolving Credit Agreement dated as of
November 21, 2008, as amended (the “Credit Agreement”), by and between AmREIT, a Texas Real Estate
Investment Trust (“Borrower”), and Wells Fargo Bank, National Association (the “Lender”).
Capitalized terms used herein, and not otherwise defined herein, have their respective meanings
given them in the Credit Agreement.



     Pursuant to Section 2.4 of the Credit Agreement, the Borrower hereby requests a Continuation
of a LIBOR Loan under the Credit Agreement, and in that connection sets forth below the information
relating to such Continuation as required by such Section of the Credit Agreement:




	 	1.	 	The requested date of such Continuation is _____________________, 200___.
	 
	 	2.	 	The aggregate principal amount of the LIBOR Loan subject to the
requested Continuation is $________________ and the portion of such principal
amount subject to such Continuation is $_____________________.
	 
	 	3.	 	The current Interest Period of the Loan subject to such Continuation
ends on _____________________, 200___.
	 
	 	4.	 	The duration of the Interest Period for the Loan or portion thereof
subject to such Continuation is:






	 	[Check one box only] 	 	 o one month

o three months

o six months





     The Borrower hereby certifies to Lender and the Issuing Bank that as of the date hereof, as of
the proposed date of the requested Continuation, and after giving effect to such Continuation, no
Event of Default shall have occurred and be continuing.



     If notice of the requested Continuation was given previously by telephone, this notice is to
be considered the written confirmation of such telephone notice required by Section 2.4 of the
Credit Agreement.



Form of Notice of Continuation

Exhibit D

Page D-1




 









 








	 	 	 	 	 	 	 	 
	 	 	AmREIT,	 
	 	 	a Texas Real Estate Investment Trust	 
	 
	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 
	 

	 	 	 	 
	 	 	 
	 

	 	 	 	Name:	 	 	 
	 

	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 
	 

	 	 	 	 	 	 





Form of Notice of Continuation

Exhibit D

Page D-2





 









 








FORM OF NOTICE OF CONVERSION




_____________________, 200___




Wells Fargo Bank, National Association

Disbursement and Operations Center

733 Marquette Avenue, 10th Floor

Minneapolis, Minnesota 55402

Attention: Jivko Sabev

Facsimile: (866) 720-0617




Ladies and Gentlemen:




     Reference is made to that certain Amended and Restated Revolving Credit Agreement dated as of
November 21, 2008, as amended (the “Credit Agreement”), by and between AmREIT, a Texas Real Estate
Investment Trust (“Borrower”), and Wells Fargo Bank, National Association (“Lender”). Capitalized
terms used herein, and not otherwise defined herein, have their respective meanings given them in
the Credit Agreement.



     Pursuant to Section 2.5 of the Credit Agreement, the Borrower hereby requests a Conversion of
a Loan of one Type into a Loan of another Type under the Credit Agreement, and in that connection
sets forth below the information relating to such Conversion as required by such Section of the
Credit Agreement:




	 	1.	 	The requested date of such Conversion is _____________________, 200___.
	 
	 	2.	 	The Type of Loan to be Converted pursuant hereto is currently:






	 	[Check one box only] 	 	 o Base Rate Loan

o LIBOR Loan






	 	3.	 	The aggregate principal amount of the Loan subject to the requested
Conversion is $__________________ and the portion of such principal amount subject
to such Conversion is $_____________________.
	 
	 	4.	 	The amount of such Loan to be so Converted is to be converted into a
Loan of the following Type:






	 	[Check one box only]  	 	o Base Rate Loan

o LIBOR Loan, with an initial Interest

Period for a duration of:

	 
	 	[Check one box only]  	 	o one month

o three months

o six months






Form of Notice of Conversion

Exhibit E

Page E-1




 









 








     The Borrower hereby certifies to Lender and the Issuing Bank that as of the date hereof, as of
the proposed date of the requested Conversion, and after giving effect to such Conversion, no Event
of Default shall have occurred and be continuing.



     If notice of the requested Conversion was given previously by telephone, this notice is to be
considered the written confirmation of such telephone notice required by Section 2.5 of the Credit
Agreement.



	 	 	 	 	 	 	 	 
	 	 	AmREIT,	 
	 	 	a Texas Real Estate Investment Trust	 	 
	 
	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 
	 

	 	 	 	 
	 	 	 
	 

	 	 	 	Name:	 	 	 
	 

	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 
	 

	 	 	 	 	 	 





Form of Notice of Conversion

Exhibit E

Page E-2





 









 








FORM OF OPINION




_____________________, 2008




Wells Fargo Bank, National Association

1000 Louisiana, 4th Floor

Houston, Texas 77002-5093





	 	Re: 	 	$35,000,000.00 Revolving Credit Facility





Ladies and Gentlemen:




     We have acted as counsel to AmREIT, a Texas Real Estate Investment Trust (the “REIT”), and
AmREIT Operating Corporation, a Texas corporation and AmREIT Realty Investment Corporation, a Texas
corporation (collectively, “Guarantors”) in connection with the $35,000,000.00 revolving credit
facility provided pursuant to that certain Amended and Restated Revolving Credit Agreement dated as
of October 30, 2007 (the “Agreement”) by and between REIT and Wells Fargo Bank, National
Association (“Lender”). This Opinion Letter (herein so called) is furnished to you as required by
Section 5.1(d) of the Agreement. Capitalized terms used in this Opinion Letter and not defined
herein are defined as set forth in the Agreement.



     Our opinions are limited in all respects to the substantive law of the State of Texas and the
federal law of the United States and we assume no responsibility as to the applicability thereto,
or the effect thereon, of the laws of any other jurisdiction.



I. Documents Reviewed




     A. Documents Reviewed—Loan Documents. As counsel to REIT, we have reviewed the following
documents and instruments (collectively, the “Transaction Documents”):




	 	1.	 	Agreement;
	 
	 	2.	 	Promissory Note, dated as of November 21, 2008, executed by
Borrower and payable to the order of Lender in the maximum principal amount of
$35,000,000.00; and
	 
	 	3.	 	Guaranty executed by Guarantors dated as of November 21, 2008.





     B. Documents Reviewed—Other Documents Examined: In addition to the Transaction Documents,
other documents we have examined in rendering this opinion, and upon which we have relied, include
the following:




	 	1.	 	[LIST ALL ORGANIZATIONAL DOCUMENTS, CERTIFICATES AND
RESOLUTIONS]





Form of Opinion

Exhibit F

Page F-1




 









 








II. Qualifications to Factual Examination;

Reliance on Local Counsel




     We have been furnished with and examined originals or copies, certified or otherwise
identified to our satisfaction, of all such records of REIT, agreements and other instruments,
certificates of officers and representatives of REIT, certificates of public officials, and other
documents, and we have had such discussions with appropriate officers of REIT as we have deemed
necessary or desirable as a basis for the opinions hereinafter expressed. As to questions of fact
material to such opinions, we have, where relevant facts were not independently verified or
established, relied upon certificates of and discussions with officers of REIT.



III. Assumptions




     For purposes of this opinion, we have assumed: (i) the genuineness of all signatures on all
documents (other than REIT and the Guarantors on the Transaction Documents); (ii) the authenticity
of all documents submitted to us as originals; (iii) the conformity to the originals of all
documents submitted to us as copies; (iv) the correctness and accuracy of all facts set forth in
all certificates and reports identified in this opinion; and (v) the due authorization, execution,
and delivery of and the validity and binding effect of the Transaction Documents with regard to the
parties to the Transaction Documents other than REIT.



IV. Opinions




     Based upon and subject to the foregoing and the other qualifications and limitations stated in
this Opinion Letter, we are of the opinion that:



     1. REIT is duly organized and validly existing under the laws of the State of Texas and is a
real estate investment trust under Section 856 of the Internal Revenue Code.



     2. [RECITE ORGANIZATION, EXISTENCE AND GOOD STANDING OPINIONS FOR EACH GUARANTOR]



     3. REIT and the Guarantors have the corporate power and authority to execute, deliver, and
perform their respective obligations under the Transaction Documents to which they are a party.
The Transaction Documents to which either REIT or the Guarantors are a party have been duly
authorized by all necessary corporate action on the part of such Person and have been duly executed
and delivered by such Person.



     4. The Transaction Documents to which REIT or the Guarantors are a party are enforceable
against such Person.



     5. The execution and delivery by REIT and the Guarantors, as applicable, of, and performance
of their agreements in, the Transaction Documents to which either Person is a party do not (i)
violate the trust declaration, articles of incorporation or bylaws of such Person, breach, or
result in a default under, any existing obligation of such Person under any agreement binding on
such Person, or (ii) breach or otherwise violate any existing obligation of such Person.



Form of Opinion

Exhibit F

Page F-2




 









 








     6. The execution and delivery of the Transaction Documents to which either REIT or the
Guarantors are a party, the consummation of the transactions contemplated thereby, and compliance
by such Person with the provisions thereof will not violate any Texas or federal statute or
regulation.



     7. No consent, approval, waiver, license or authorization or other action by or filing with
any governmental authority is required under Texas or federal statutes or regulations in connection
with the execution and delivery by REIT or the Guarantors of the Transaction Documents to which
such Person is a party, except for those already obtained or completed.



     8. The Transaction Documents are not usurious contracts.



V. Enforceability Limitations




     The opinions expressed in paragraph 3 are qualified and may be limited as follows:



     A. The enforceability of the Transaction Documents is subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium, or other similar laws affecting the rights
and remedies of creditors generally.



     B. The enforceability of the Transaction Documents is subject to the effect of general
principles of equity.



     The qualification of any opinion or statement herein by the use of the words “to our
knowledge” or “known to us” means that during the course of representation as described in this
Opinion Letter, no information has come to the attention of the attorneys in this Firm which would
give such attorneys current actual knowledge of the existence of the facts so qualified. Except as
set forth herein, we have not undertaken any investigation to determine the existence of such
facts, and no inference as to our knowledge thereof shall be drawn from the fact of our
representation of any party or otherwise.



     This Opinion Letter (i) has been furnished to Lender at its request, and we consider it to be
a confidential communication which may not be furnished, reproduced, distributed or disclosed to
anyone without our prior written consent, (ii) is rendered solely for Lender’s use in connection
with the above transaction, and may not be relied upon by any other person (other than an assignee
of Lender) or for any other purpose without our prior written consent, (iii) is rendered as of the
date hereof, and we undertake no, and hereby disclaim any, obligation to advise you of any changes
or any new developments which might affect any matters or opinions set forth herein; and (iv) is
limited to the matters stated herein and no opinions may be inferred or implied beyond the matters
expressly stated herein.



	 	 	 	 	 
	 	Very truly yours,

 	 
	 	By:  	 	 
	 	 	 	 
	 	 	 	 
	 



Form of Opinion

Exhibit F

Page F-3





 









 








FORM OF UNENCUMBERED POOL CERTIFICATE





     Reference is made to that certain Amended and Restated Revolving Credit Agreement dated as of
November 21, 2008 (the “Credit Agreement”), by and between AmREIT, a Texas Real Estate Investment
Trust (“Borrower”) and Wells Fargo Bank, National Association (“Lender”). Capitalized terms used
herein, and not otherwise defined herein, have their respective meanings given them in the Credit
Agreement.



     1. Pursuant to Section 4.l(b)(ii) or Section 7.1(d), as applicable, of the Credit Agreement,
the undersigned hereby certifies to Lender that Schedule I attached hereto accurately and
completely sets forth, as of the date hereof: (i) the identity of each Eligible Property as to
which Borrower seeks Lender’s approval as a Pool Property, (ii) assuming the approval of each such
Eligible Property as a Pool Property, (A) on a pro forma basis the Maximum Loan Availability, (B)
the Occupancy Rate of such Property, and (C) the aggregate Occupancy Rate of all Unencumbered Pool
Properties, assuming the approval of each such Eligible Property as a Pool Property.



     The undersigned further certifies to Lender that as of the date hereof (a) no Default or Event
of Default has occurred and is continuing, and (b) the representations and warranties of the
Borrower contained in the Credit Agreement and the other Loan Documents are true and correct in all
material respects, except to the extent such representations or warranties specifically relate to
an earlier date or such representations or warranties become untrue by reason of events or
conditions otherwise permitted under the Credit Agreement or the other Loan Documents.



     IN WITNESS WHEREOF, the undersigned has signed this Unencumbered Pool Certificate on and as of
_____________________, 200___.



	 	 	 	 	 	 
	 

	 	 	 	 	 
	 

	 	 
	 	 	 
	 

	 	Name:	 	 	 
	 

	 	 	 	 	 
	 

	 	Title:
	 	Chief Financial Officer of AmREIT,


a Texas Real Estate Investment Trust	 






Form Of Unencumbered Pool Certificate

Exhibit G

Page G-1





 











 





FORM OF ELIGIBILITY CERTIFICATE




     Reference is made to that certain Amended and Restated Revolving Credit Agreement dated as of
November 21, 2008 (the “Credit Agreement”), by and between AmREIT, a Texas Real Estate Investment
Trust (“Borrower”) and Wells Fargo Bank, National Association (“Lender”). Capitalized terms used
herein, and not otherwise defined herein, have their respective meanings given them in the Credit
Agreement.



     Pursuant to Section 4.1 (b)(iv) of the Credit Agreement, the undersigned hereby certifies to
Lender, with respect to each of the properties listed on Schedule 1 attached hereto, that:



     (a) such property is improved with one or more operating retail properties.



     (b) such property is 100% owned in fee simple by Borrower or by a Wholly Owned Subsidiary
designated as the owner of such property on Schedule 1. Schedule 1 sets forth the capital
structure of each such Wholly Owned Subsidiary.



     (c) (i) neither such property, nor any interest of Borrower or such Wholly Owned Subsidiary
therein, is subject to any Lien other than Permitted Liens or to any agreement (other than the
Credit Agreement or any other Loan Document) that prohibits the creation of any Lien thereon as
security for Indebtedness; (ii) if such property is owned by a Wholly Owned Subsidiary: (A) none
of Borrower’s direct or indirect ownership interest in such Wholly Owned Subsidiary is subject to
any Lien other than Permitted Liens or to any agreement (other than the Credit Agreement or any
other Loan Document) that prohibits the creation of any Lien thereon as security for Indebtedness
and (B) neither such Wholly Owned Subsidiary, nor any other Wholly Owned Subsidiary through which
Borrower holds any indirect interest in such Wholly Owned Subsidiary, is subject to any restriction
of any kind which would limit its ability to pay or perform its obligations under the Guaranty
required to be delivered under the Credit Agreement prior to its obligation to pay dividends or
make any other distribution on any of such Wholly Owned Subsidiary’s capital stock or other
securities owned by Borrower or any other Wholly Owned Subsidiary of Borrower; (iii) such property
has an Occupancy Rate of at least 80%, and (iv) such property is free of all structural defects,
title defects, environmental conditions or other adverse matters except for defects, conditions or
matters individually or collectively which are not material to the profitable operation of such
property.



     (d) if such property were an Unencumbered Pool Property, the aggregate Occupancy Rate of all
Unencumbered Pool Properties as of the date hereof (including all properties listed on Schedule 1),
would not be less than ninety percent (90%).



     (e) (i) Borrower has obtained, with respect to such property, a “Phase I” environmental
assessment



          (ii) Borrower has reviewed such assessments and believes it reasonable to rely upon such
assessments; and



          (iii) such assessments do not (1) identify any contamination or potential contamination that
has resulted in, or that could reasonably be anticipated to result in a materially adverse effect
upon the condition, market value, Net Operating Income or prospects of such



Form of Eligibility Certificate

Exhibit H

Page H-1




 









 







property, (2) recommend that any further material investigation be undertaken, or (3) identify
any potential or actual recognized environmental condition.




     IN WITNESS WHEREOF, the undersigned has signed this Eligibility Certificate on and as of
                                        , 200___.



	 	 	 	 	 
	 	 	 
	 	
 	 
	 
	 	 	 
	 	Name:
 	 	 	 
	 	Printed:
	 	 	 	 
	 	Title: 	Chief Financial Officer of AmREIT,

a Texas Real Estate Investment Trust 	 
	 



Form of Eligibility Certificate

Exhibit H

Page H-2




 









 








Schedule 1

TO ELIGIBILITY CERTIFICATE





	(A)	 	Property Description [For each Property]
	 
	1.	 	Property Name:
	 
	2.	 	Owner: [If not Borrower, set forth capital structure of the owner]
	 
	3.	 	Location: [Including City, State, County and address]
	 
	4.	 	Environmental Information:






	 	a.	 	Date Phase I
prepared: 

	 
	 	b.	 	The Phase I was prepared by: 







	5.	 	Summary of Existing Tenants: [Including Rent Rolls in detail satisfactory to Lender]





Form of Eligibility Certificate

Exhibit H

Page H-3




 









 








TRANSFER AUTHORIZER DESIGNATION

(For Disbursement of Loan Proceeds by Funds Transfer)




	 	 	 	 	 
	o NEW

	 	o REPLACE PREVIOUS DESIGNATION
	 	o ADD
	o CHANGE

	 	o DELETE LINE NUMBER                     	 	 





The following representatives of AmREIT, a Texas Real Estate Investment Trust (“Borrower”) are
authorized to request the disbursement of Loan Proceeds and initiate funds transfers for Loan
Number 5448 dated November 21, 2008 between Wells Fargo Bank, National Association (“Lender”) and
Borrower. Lender is authorized to rely on this Transfer Authorizer Designation until it has
received a new Transfer Authorizer Designation signed by Borrower, even in the event that any or
all of the foregoing information may have changed.




	 	 	 	 	 	 	 
	 	 	 	 	 	 	Maximum Wire
	 	 	Name	 	Title	 	Amount1
	1.
	 	H. Kerr Taylor	 	 	 	$35,000,000.00
	2.
	 	Chad Braun	 	 	 	$35,000,000.00
	3.
	 	 	 	 	 	 
	4.
	 	 	 	 	 	 
	5.
	 	 	 	 	 	 






Beneficiary Bank and Account Holder Information




	 	 	 
	1.
	 	 
	Transfer Funds to (Receiving Party Account Name):
	 	 
	 
	 	 
	Receiving Party Account Number:
	 	 
	 
	 	 
	Receiving Bank Name, City and State:

	 	Receiving Bank Routing (ABA) Number
	 
	 	 
	Maximum Transfer Amount:
	 	 
	 
	 	 
	Further Credit Information/Instructions:
	 	 
	 
	 	 
	2.
	 	 
	Transfer Funds to (Receiving Party Account Name):
	 	 
	 
	 	 
	Receiving Party Account Number:
	 	 
	 
	 	 
	Receiving Bank Name, City and State:

	 	Receiving Bank Routing (ABA) Number
	 
	 	 
	Maximum Transfer Amount:
	 	 








 




			
	1	 	Maximum Wire Amount may not exceed the Loan Amount.




Form of Transfer Authorizer Designation

Exhibit I

Page I-1



 









 












	 	 	 
	Further Credit Information/Instructions:
	 	 
	 
	 	 
	3
	 	 
	Transfer Funds to (Receiving Party Account Name):
	 	 
	 
	 	 
	Receiving Party Account Number:
	 	 
	 
	 	 
	Receiving Bank Name, City and State:

	 	Receiving Bank Routing (ABA) Number
	 
	 	 
	Maximum Transfer Amount:
	 	 
	 
	 	 
	Further Credit Information/Instructions:
	 	 






Date: DATE OF DOCUMENTS




“BORROWER”




AMREIT

a Texas Real Estate Investment Trust




	 	 	 
	By:

	 	 
	 
	Name:	 
	 
	Title:	 






Form of Transfer Authorizer Designation

Exhibit I

Page I-2




 









 








OUTSTANDING LETTERS OF CREDIT



Irrevocable Letter of Credit No. NZS435795 as amended issued April 8, 2002 for the benefit of
General Electric Capital Business Asset Funding Corporation.




Schedule 2.14(a)

Outstanding Letters of Credit

Page 1





 











 





UNENCUMBERED
POOL PROPERTIES AS OF AGREEMENT DATE


	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Date	 	Square	 	Lease
	 	 	 	 	Property	 	City	 	State	 	Acquired	 	Footage	 	Expiration
	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Fee
	 	 	 	 	 	 	 	 	 	 	 	 
	 	1	 	 	MacArthur Pads — Eye masters

	 	Irving
	 	TX
	 	Dec-05
	 	 	4,000	 	 	Dec-09
	 	1	 	 	MacArthur Pads — Deli Management

	 	Irving
	 	TX
	 	Dec-05
	 	 	4,540	 	 	Dec-09
	 	1	 	 	MacArthur Pads — Mattress Giant

	 	Irving
	 	TX
	 	Dec-05
	 	 	5,000	 	 	Feb-10
	 	1	 	 	MacArthur Pads — Mens Warehouse

	 	Irving
	 	TX
	 	Dec-05
	 	 	6,660	 	 	Feb-10
	 	1	 	 	MacArthur Pads — Nextel

	 	Irving
	 	TX
	 	Dec-05
	 	 	4,213	 	 	Feb-10
	 	1	 	 	MacArthur Pads — Pier One

	 	Irving
	 	TX
	 	Dec-05
	 	 	9,028	 	 	Feb-10
	 	1	 	 	MacArthur Pads — Signature Nails

	 	Irving
	 	TX
	 	Dec-05
	 	 	1,604	 	 	Mar-11
	 	1	 	 	MacArthur Pads — Smoothie King

	 	Irving
	 	TX
	 	Dec-05
	 	 	1,422	 	 	Dec-13
	 	1	 	 	MacArthur Pads — Sports Clips

	 	Irving
	 	TX
	 	Dec-05
	 	 	1,275	 	 	Nov-09
	 	1	 	 	MacArthur
Pads — Up in Smoke

	 	Irving
	 	TX
	 	Dec-05
	 	 	1,273	 	 	Dec-09
	 	2	 	 	AFC, Inc.

	 	Atlanta
	 	GA
	 	Jul-02
	 	 	2,583	 	 	Jul-14
	 	3	 	 	Carlson Restaurants — TGI Friday’s

	 	Houston
	 	TX
	 	Dec-03
	 	 	8,500	 	 	Jan-13
	 	4	 	 	Golden Corral #1

	 	Houston
	 	TX
	 	Aug-92
	 	 	12,000	 	 	Nov-12
	 	5	 	 	Golden Corral #2

	 	Humble
	 	TX
	 	Mar-93
	 	 	12,000	 	 	Mar-13
	 	6	 	 	IHOP Corporation

	 	Topeka
	 	KS
	 	Sep-99
	 	 	4,500	 	 	Jul-24
	 	7	 	 	CVS — Uptown Plaza

	 	Houston
	 	TX
	 	Sep-02
	 	 	12,000	 	 	Aug-25
	 	8	 	 	Woodlands Plaza — Kinko’s

	 	The Woodlands
	 	TX
	 	Jan-03
	 	 	2,750	 	 	Mar-13
	 	8	 	 	Woodlands Plaza — DiMassi’s

	 	The Woodlands
	 	TX
	 	Nov-02
	 	 	4,329	 	 	Jan-13
	 	8	 	 	Woodlands Plaza — Rug Gallery

	 	The Woodlands
	 	TX
	 	Feb-04
	 	 	9,977	 	 	Feb-11
	 	9	 	 	Uptown Plaza — The Grotto

	 	Houston
	 	TX
	 	Dec-03
	 	 	8,000	 	 	Sep-12
	 	9	 	 	Uptown Plaza — Nextel

	 	Houston
	 	TX
	 	Dec-03
	 	 	1,600	 	 	Mar-09
	 	9	 	 	Uptown Plaza — Vanessa Riley

	 	Houston
	 	TX
	 	Dec-03
	 	 	1,600	 	 	Sep-08






Schedule 4.1

Unencumbered Pool Properties as of Agreement Date

Page 1




 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Date	 	Square	 	Lease
	 	 	 	 	Property	 	City	 	State	 	Acquired	 	Footage	 	Expiration
	 
	 	9	 	 	Uptown Plaza — EG Geller

	 	Houston
	 	TX
	 	Dec-03
	 	 	1,600	 	 	Nov-14
	 	9	 	 	Uptown Plaza — Omaha Steaks

	 	Houston
	 	TX
	 	Nov-04
	 	 	1,600	 	 	Nov-14
	 	9	 	 	Uptown Plaza — Judith Anne Jewels

	 	Houston
	 	TX
	 	Mar-07
	 	 	1,600	 	 	Jun-12
	 	10	 	 	Courtyard
at Post Oak — Verizon/Washington
Mutual

	 	Houston
	 	TX
	 	Jun-04
	 	 	4,013	 	 	Nov-09
	 	10	 	 	Courtyard at Post Oak — Ninfa’s

	 	Houston
	 	TX
	 	Jun-04
	 	 	7,606	 	 	Nov-09
	 	10	 	 	Courtyard at Post Oak — Desert Gallery

	 	Houston
	 	TX
	 	Jun-04
	 	 	1,978	 	 	Aug-13
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Ground
	 	 	 	 	 	 	 	 	 	 	 	 
	 	11	 	 	CVS — Westheimer & Yorktown

	 	Houston
	 	TX
	 	Jan-03
	 	 	13,824	 	 	Dec-23
	 	12	 	 	Dardin (Smokey Bones)

	 	Peach Tree City
	 	GA
	 	Dec-98
	 	 	6,867	 	 	Dec-l3
	 	13	 	 	410 and Blanco — Citibank

	 	San Antonio
	 	TX
	 	Dec-04
	 	 	4,439	 	 	Jan-21
	 	14	 	 	Woodlands Ring Road — Bank of America

	 	The Woodlands
	 	TX
	 	Feb-07
	 	 	4,251	 	 	Jul-15
	 	14	 	 	Woodlands Ring Road — Circuit City

	 	The Woodlands
	 	TX
	 	Feb-07
	 	 	34,233	 	 	Dec-17
	 	14	 	 	Woodlands Ring Road — Landry’s

	 	Tbe Woodlands
	 	TX
	 	Feb-07
	 	 	13,497	 	 	Sep-25
	 	14	 	 	Woodlands
Ring Road — Brinker (Macaroni Grill)

	 	The Woodlands
	 	TX
	 	Feb-07
	 	 	7,825	 	 	Oct-09
	 	14	 	 	Woodlands Ring Road — TGI Friday’s

	 	The Woodlands
	 	TX
	 	Feb-07
	 	 	6,543	 	 	Oct-09
	 	15	 	 	Carlson Restaurant — TGI Friday’s

	 	Hanover
	 	MD
	 	Sep-03
	 	 	8,500	 	 	Sep-23






Schedule 4.1

Unencumbered Pool Properties as of Agreement Date

Page 2




 









 








OWNERSHIP STRUCTURE




Attached is a complete corporate structure and ownership interests of Borrower and all of its
Subsidiaries as of the date hereto, including the correct legal name of Borrower and each such
Subsidiary, and Borrower’s relative equity interest in each Subsidiary:



Schedule 6.2
Ownership
Structure

Page 1





 











 










Schedule 6.2

Ownership Structure 
Page 2




 









 








AmREIT
Organizational Chart with Related Subsidiaries








Schedule 6.2

Ownership Structure 
Page 3




 









 












Schedule 6.2

Ownership Structure 
Page 4




 









 








INDEBTEDNESS
AND GUARANTEES




AmREIT

Debt Information




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Amount	 	Amount	 	 	 	 	 	 	 	 
	 	 	Outstanding	 	Outstanding	 	 	 	 	 	Annual Debt	 	 
	Description	 	9-30-2008	 	12-31-2007	 	Interest Rate	 	Service	 	Maturity Date
	 
	MacArthur Park
	 	$	13,410	 	 	$	13,410	 	 	 	6.17	%	 	$	827	 	 	 	12/1/2008	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2008
Maturities
	 	$	13,410	 	 	$	13,410	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Credit Facility
	 	$	27,880	 	 	$	30,439	 	 	 	4.29	%	 	$	1,195	 	 	 	10/30/2009	 
	Commerce & Zarzamora
	 	$	2,644	 	 	$	—	 	 	 	5.50	%	 	$	145	 	 	 	9/4/2009	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2009
Maturities
	 	 	30,524	 	 	 	30.439	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Sugarland IHOP
	 	$	1,075	 	 	$	1,110	 	 	 	8.25	%	 	$	138	 	 	 	3/1/2011	 
	Sugar Land Plaza
	 	 	2,236	 	 	 	2,258	 	 	 	7.60	%	 	 	203	 	 	 	11/1/2011	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2011
Maturities
	 	$	3,311	 	 	$	3.368	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	AAA CTL Notes (3)
	 	$	12,447	 	 	$	12,811	 	 	 	7.72% - 7.89	%	 	$	1,110	 	 	 	04/2012-08/2012	 
	5115 Buffalo Spdwy.
	 	 	2,674	 	 	 	2,699	 	 	 	7.58	%	 	 	241	 	 	 	5/11/2012	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2012
Maturities
	 	$	15,121	 	 	$	15,510	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Cinco Ranch
	 	$	8,048	 	 	$	8,158	 	 	 	5.60	%	 	$	601	 	 	 	7/10/2013	 
	Plaza in the Park
	 	 	17,010	 	 	 	17,243	 	 	 	5.60	%	 	 	1,270	 	 	 	7/10/2013	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2013
Maturities
	 	$	25,058	 	 	$	25,401	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Uptown Park
	 	$	49,000	 	 	$	49,000	 	 	 	5.37	%	 	$	2,631	 	 	 	6/1/2015	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2015
Maturities
	 	$	49,000	 	 	$	49.000	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Southbank — Riverwalk
	 	$	20,000	 	 	$	20,000	 	 	 	5.91	%	 	$	1,182	 	 	 	6/1/2016	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2016
Maturities
	 	$	20,000	 	 	$	20,000	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bakery Square
	 	$	3,492	 	 	$	3,704	 	 	 	8.00	%	 	$	571	 	 	 	2/10/2017	 
	Uptown Plaza Dallas
	 	$	19,900	 	 	$	19,900	 	 	 	5.64	%	 	$	783	 	 	 	4/1/2017	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2017
Maturities
	 	$	23,392	 	 	$	23,604	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total
Maturities (2)
	 	$	179,816	 	 	$	180,732	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 








 




			
	(1)	 	Our revolving credit facility is a variable-rate debt instrument, and its outstanding balance fluctuates throughout the year based on our liquidity needs. Annual Debt Service
on this debt instrument assumes that the amount outstanding and the interest rate as of September 30, 2008 remain constant through maturity.
	 
	(2)	 	Total maturities above are $460 thousand and $639 thousand less than total debt as reported in our consolidated financial
statements as of September 30, 2008 and December 31, 2007, respectively, due to the premium recorded on above-market debt assumed in conjunction with certain of our
property acquisitions.
	 
	(3)	 	The associated assets are held for sale as of September 30, 2008 and December 31, 2007.





Schedule 6.6

Indebtedness & Guaranties 
Page 1




 









 








PROPERTY MANAGEMENT AGREEMENTS

AND OTHER MAJOR AGREEMENTS



AmREIT Realty Investment Corporation, as Agent:





	1.	 	Uptown Plaza — Houston, TX — April 1, 2004 — AmREIT
	 
	2.	 	Lake Woodlands Plaza — April 1, 2004 — AmREIT
	 
	3.	 	The Courtyard — June 15, 2004 — AmREIT
	 
	4.	 	MacArthur Pad Sites — April 12, 2006 — AmREIT MacArthur Pad Sites, LP
	 
	5.	 	All AmREIT Properties — April 19, 2006 — AmREIT





Schedule 6.7

Property Management Agreements
and Other Major Agreements
Page
1





 











 







INSURANCE



AmREIT

2008/2009 INSURANCE SUMMARY





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	COVER NOTE/	 	 	 	 	 	 	 	 	 
	COVERAGE	 	POLICY NO.	 	INSURING COMPANY	 	LIMIT/VALUE	 	POLICY TERM	 	Premiums	 
	General Liability
	 	61 UENTW5600	 	Hartford Fire Insurance Co.	 	$     1,000,000   Each Occurrence
	 	4/19/2008 - 4/19/2009	 	$	130,144	 
	 
	 	 	 	 	 	$     2,000,000   General Aggregate
	 	 	 	 	 	 
	 
	 	 	 	 	 	$        300,100   Fire Damage Liability
	 	 	 	 	 	 
	 
	 	 	 	 	 	$            10,00   Medical Expense Limit (Any one person)
	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	Employee Benefits Liability:	 	 	 	 	 	 
	 
	 	 	 	 	 	$     1,000,000   Each Claim
	 	 	 	 	 	 
	 
	 	 	 	 	 	$     1,000,000   Aggregate
	 	 	 	 	 	 
													
	Business Auto Coverage (Non-Owned & Hired Only)
	 	61 UEN TW6600	 	Twin City Fire Insurance Co.	 	$     1,000,000   Each Accident
	 	4/19/2008 - 4/19/2009	 	$	658	 
	
	 	 	 	 	 	$             ACV   Physical Damage
	 	 	 	 	 	 
	 
	 	 	 	 	 	
Physical Damage Deductible:	 	 	 	 	 	 
	 
	 	 	 	 	 	$            1,000   Comp. /Coll.
	 	 	 	 	 	 
													
	Workers’ Compensation
	 	61WERW6451	 	Hartford Underwriters Ins. Co.	 	Statutory WC	 	4/19/2008 - 4/19/2009	 	$	20,602	 
	 
	 	 	 		 	$      1,000,000   Bodily Injury by Accident — Each Accident
	 	 	 	 	 	 
	 
	 	 	 	 	 	$      1,000,000   Bodily Injury by Disease — Policy Limit
	 	 	 	 	 	 
	 
	 	 	 	 	 	$      1,000,000   Bodily Injury by Disease — Each Employee
	 	 	 	 	 	 
													
	Umbrella Liability
	 	UUO (09) 53273162	 	Ohio Casuality Insurance Co.	 	$    26,000,000   Each occurrence Limit, except:
	 	4/19/2008 - 4/19/2009	 	$	33,897	 
	 
	 	 	 	 	 	$    26,000,000   General Aggregate Limit
	 	 	 	 	 	 
													
	Excess Liability (25 x 25)
	 	Q104200284	 	St. Paul Fire  & Marine Ins Co.	 	$    26,000,000   Each Occurrence Limit, except:
	 	4/19/2008 - 4/19/2009	 	$	25,250	 
	 
	 	 	 	 	 	$    25,000,000   General Aggregate Limit
	 	 	 	 	 	 
													
	Excess Liability (25 x 50)
	 	L2099905018	 	St. Paul fire & Marine Ins Co.	 	$    25,000,000   Each Occurrence Limit, except:
	 	4/19/2008 - 4/19/2009	 	$	25,250	 
	 
	 	 	 		 	$    25,000,000   General Aggregate Limit
	 	 	 	 	 	 
													
	Property
	 	MAUD37129938	 	ACE	 	$200,0000,000   Loss Limit	 	4/19/2008 - 4/19/2009	 	$	297,764	 
	 
	 	 	 	 	 	
Equipment Breakdown:	 	 	 	 	 	 
	 
	 	 	 	 	 	$    75,000,000   Combined Property Damage, Loss of Income and Additional Expense
	 	 	 	 	 	 
	 
	 	 	 	 	 	$         250,000   Expediting Expense
	 	 	 	 	 	 
	 
	 	 	 	 	 	$         250,000   Hazardous Substance
	 	 	 	 	 	 
	 
	 	 	 	 	 	$         250,000   Perishable Goods
	 	 	 	 	 	 
	 
	 	 	 	 	 	
SUBLIMITS:	 	 	 	 	 	 
	 
	 	 	 	 	 	$    25,000,000   Per Occurrence in the aggregate for Earthquake (excl. California)
	 	 	 	 	 	 
	 
	 	 	 	 	 	$    25,000,000   Per Occurrence in the aggregate for Flood (excl. zone A & B)
	 	 	 	 	 	 
	 
	 	 	 	 	 	$      2,500,000   Flood zone A & B
	 	 	 	 	 	 
	 
	 	 	 	 	 	$         500,000   Expediting Expense
	 	 	 	 	 	 
	 
	 	 	 	 	 	$      1,000,000   Accounts Receivable
	 	 	 	 	 	 
	 
	 	 	 	 	 	$         300,000   Valuable Papers and Records
	 	 	 	 	 	 





			
	 	 	 
	This summary is merely descriptive in nature and should be used
for reference purposes only. This summary does not amend, extend or after the
coverage afforded by the referenced polices.






1



Schedule 6.15
Insurance
Page 1




 









 




AmREIT

2008/2009 INSURANCE SUMMARY





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	COVER NOTE/	 	 	 	 	 	 	 	 	 
	COVERAGE	 	POLICY NO.	 	INSURING COMPANY	 	LIMIT/VALUE	 	POLICY TERM	 	Premiums	 
	Property continued
	 	 	 	 	 	$    7,000,000   Demolition/Increased Cost of Construction
	 	 	 	 	 	 
	 
	 	 	 	 	$      500,000   Contingent Loss of Business Income or Extra Expense
	 	 	 	 	 	 
	 
	 	 	 	 	$      100,000   Personal Property In Transit
	 	 	 	 	 	 
	 
	 	 	 	 	 	$      100,000   Professional Fees
	 	 	 	 	 	 
	 
	 	 	 	 	 	$   1,000,000   Unintentional Errors & Omissions
	 	 	 	 	 	 
	 
	 	 	 	 	 	$   2,000,000   Newly Acquired Property (90 days)
	 	 	 	 	 	 
	 
	 	 	 	 	 	$   1,000,000   Ingress/Egress - not to exceed 30 days
	 	 	 	 	 	 
	 
	 	 	 	 	 	$ 75,000,000   Boiler & Machinery
	 	 	 	 	 	 
	 
	 	 	 	 	 	
Standard Extensions:	 	 	 	 	 	 
	 
	 	 	 	 	 	$      100,000   Plants, Trees, or Shrubs
	 	 	 	 	 	 
	 
	 	 	 	 	 	$        25,000   Inventory & Appraisal
	 	 	 	 	 	 
	 
	 	 	 	 	 	$      100,000   Expediting Expense
	 	 	 	 	 	 
	 
	 	 	 	 	 	$      100,000   Pollution Clean-Up (Aggregate)
	 	 	 	 	 	 
	 
	 	 	 	 	 	$        25,000   Computer
Virus & Denial of Access Extension
	 	 	 	 	 	 
	 
	 	 	 	 	 	$        50,000   Fungus Cleanup Expense 
	 	 	 	 	 	 
	 
	 	 	 	 	 	
Deductibles:	 	 	 	 	 	 
	 
	 	 	 	 	 	$        10,000   Policy Deductible, COMBINED except
	 	 	 	 	 	 
	 
	 	 	 	 	 	$        50,000   Flood & Earthquake (excl. California)
	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	Named Windstorm:	 	 	 	 	 	 
	 
	 	 	 	 	 	2%
TIV at Each Location - minimum of  $100K - if property is within 30
miles of the coast
	 	 	 	 	 	 
	 
	 	 	 	 	 	1%
TIV at Each Location - minimum of $100K - if property is greater than
30 miles of the coast
	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	Equipment Breakdown:	 	 	 	 	 	 
	 
	 	 	 	 	 	$        10,000   Property Damage
	 	 	 	 	 	 
	 
	 	 	 	 	 	24
hours    Time Element
	 	 	 	 	 	 
	 
	 	 	 	 	 	24
hours    Service Interruption
	 	 	 	 	 	 
	 
	Pollution Legal Liability
	 	37312388	 	Chubb Custom	 	$    5,000,000   per occurrence limit
	 	12/19/07 - 12/19/12	 	$	168,977	 
	 	 	 	Insurance Co/Chubb	 	$    5,000,000   aggregate limit
	 	 	 	 	 	 
	 	 	 	& Son Inc.	 	 	 	 	 	 	 	 
	 
	Fiduciary Liability
	 	68025770	 	Federal Insurance	 	$    1,000,000   Each Loss
	 	4/19/08 - 4/19/09	 	$	2,500	 
	 
	 	 	Company/Chubb & Son	 	$    1,000,000   Policy Limit
	 	 	 	 	 	 
	 
	 	 	Inc.	 	$           1,000   Deductible	 	 	 	 	 	 
	 
	Commercial Crime
	 	81911327	 	Federal Insurance	 	$    1,000,000   Employee Dishonesty
	 	4/19/08 - 4/19/09	 	$	7,631	 
	 
	 	 	Company/Chubb &	 	$    1,000,000   Each - Other Crime Coverages
	 	 	 	 	 	 
	 
	 	 	 	Son Inc.	 	$        25,000   Deductible
	 	 	 	 	 	 







			
	 	 	 
	This summary is merely descriptive in nature and should be used
for reference purposes only. This summary does not amend, extend or after the
coverage afforded by the referenced polices.






2


Schedule 6.15
Insurance
Page 2



 









 




AmREIT

2008/2009 INSURANCE SUMMARY





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	COVER NOTE/	 	 	 	 	 	 	 	 	 
	COVERAGE	 	POLICY NO.	 	INSURING COMPANY	 	LIMIT/VALUE	 	POLICY TERM	 	Premiums	 
	Employment Practices
Liability
	 	EPG0006677              	 	RLI Insurance Company             	 	$    1,000,000   Policy Aggregate
	 	4/19/08 - 4/18/09	 	$	7,600	 
	 	 	 		$         25,000   Deductible —  Indemnifiable Claims
	 	 	 	 	 	 
	 	 	 		 	$                  0   Deductible  —  Non-lndemnifiable Claims
	 	 	 	 	 	 
	 
	Directors
& Officers Liability - REITPlus
	 	9626948                  	 	Illinois National Ins. Co./ AIG   	 	$    2,000,000   Policy Aggregate Limit
	 	12/10/07 - 12/20/08	 	$	46,211	 
	
	 		$       250,000   Deductible
	 	 	 	 	 	 
	 
	 
	Excess
Directors & Officers Liability — Side A  - REITPIus
	 	1415382                 	 	Illinois National Ins. Co./ AIG   	 	$    5,000,000   Excess of
	 	12/10/07 - 12/10/08	 	$	81,931	 
	 	 	 		$    2,000,000   Primary
	 	 	 	 	 	 
	 
	 







			
	 	 	 
	This summary is merely descriptive in nature and should be used
for reference purposes only. This summary does not amend, extend or after the
coverage afforded by the referenced polices.






3



Schedule 6.15
Insurance
Page 3