EXHIBIT
10.159


 


GUARANTY AGREEMENT
REGARDING PIP REQUIREMENTS


 


THIS
GUARANTY AGREEMENT  REGARDING
PIP REQUIREMENTS (this “Guaranty”) is
executed as of December 17, 2007 by INLAND AMERICAN REAL
ESTATE TRUST, INC., a Maryland corporation, having an office at 2901
Butterfield Road, Oak Brook, Illinois 60523 (“Guarantor”),
for the benefit of BEAR STEARNS COMMERCIAL
MORTGAGE, INC., a New York corporation, having an address at 383
Madison Avenue, New York, New York 10179 (“Bear Stearns”)
and BANK OF AMERICA, N.A., a national
banking association, having an address at Bank of America Corporate Center, 100
North Tryon Street, Charlotte, North Carolina 28255 (“Bank of
America”; Bear Stearns and Bank of America, collectively, “Lender”).


 


W  I  T
N  E  S  S  E  T  H  :


 


WHEREAS, pursuant
to that certain Promissory Note A-1, dated of even date herewith, executed by
the Entities set forth on Schedule I of this Guaranty (individually, “Borrower” and collectively, “Borrowers”),
and payable to the order of Bear Stearns in the original principal amount of
EIGHTY SIX MILLION TWO HUNDRED TWELVE THOUSAND FIVE HUNDRED and NO/100 DOLLARS
($86,212,500.00) (together with all renewals, modifications, increases and
extensions thereof, “Note A-1”),
that certain Promissory Note A-2, dated of even date herewith, executed by
Borrowers, and payable to the order of Bear Stearns in the original principal
amount of EIGHTY SIX MILLION TWO HUNDRED TWELVE THOUSAND FIVE HUNDRED and
NO/100 DOLLARS ($86,212,500.00) (together with all renewals, modifications, increases
and extensions thereof, “Note A-2”),
that certain Promissory Note A-3, dated of even date herewith, executed by
Borrowers, and payable to the order of Bank of America in the original
principal amount of EIGHTY SIX MILLION TWO HUNDRED TWELVE THOUSAND FIVE HUNDRED
and NO/100 DOLLARS ($86,212,500.00) (together with all renewals, modifications,
increases and extensions thereof, “Note A-3”), and
that certain Promissory Note A-4, dated of even date herewith, executed by
Borrowers, and payable to the order of Bank of America in the original
principal amount of EIGHTY SIX MILLION TWO HUNDRED TWELVE THOUSAND FIVE HUNDRED
and NO/100 DOLLARS ($86,212,500.00) (together with all renewals, modifications,
increases and extensions thereof, “Note A-4”; Note
A-1, Note A-2, Note A-3, and Note A-4, collectively, the “Notes”),
Borrowers have become indebted, and may from time to time be further indebted,
to Lender with respect to a loan (“Loan”) which is
secured by the liens and security interests of those certain twenty-seven
mortgages or deeds of trust of even date herewith (the “Mortgages”),
and is further evidenced by that certain Loan Agreement, of even date herewith
between Borrowers and Lender (as the same may hereinafter be amended, modified,
restated, renewed or replaced the “Loan Agreement”)
and further evidenced, secured or governed by other instruments and documents
executed in connection with the Loan (together with the Notes, the Loan
Agreement and Mortgages, the “Loan Documents”);


 


WHEREAS, pursuant
to the applicable Franchise Agreement and/or Management Agreement, certain of
Borrowers are or will be obligated to comply with the property improvement
programs at the related Properties (the “PIP Requirements);
and


 

















 


WHEREAS, Lender is
not willing to make the Loan, or otherwise extend credit, to Borrowers unless
Guarantor unconditionally guarantees payment and performance to Lender of the
Guaranteed Obligations (as herein defined); and


 


WHEREAS, Guarantor
is the owner of a direct or indirect interest in Borrowers, and Guarantor will
directly benefit from Lender’s making the Loan to Borrowers.


 


NOW, THEREFORE, as
an inducement to Lender to make the Loan to Borrowers, and to extend such
additional credit as Lender may from time to time agree to extend under the Loan
Documents, and for other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, the parties do hereby agree as
follows:


 


ARTICLE 1 - NATURE AND SCOPE
OF GUARANTY


 


Section 1.1             Guaranty
of Obligation. Subject to the express
limitations set forth in Section 5.15 below, Guarantor hereby irrevocably
and unconditionally guarantees to Lender and its successors and assigns the
payment and performance of the Guaranteed Obligations as and when the same
shall be due and payable. Guarantor hereby irrevocably and unconditionally
covenants and agrees that it is liable for the Guaranteed Obligations as a
primary obligor.


 


Section 1.2             Definition of Guaranteed
Obligations. As used herein, the term “Guaranteed Obligations” means the payment and performance of
the PIP Requirements in accordance with the time frames and the other
requirements set forth in the applicable Franchise Agreement and/or Management
Agreement.


 


Section 1.3             Nature
of Guaranty. This Guaranty is an irrevocable,
absolute, continuing guaranty of payment and performance and not a guaranty of
collection. This Guaranty may not be revoked by Guarantor and shall continue to
be effective with respect to any Guaranteed Obligations arising or created
after any attempted revocation by Guarantor. The fact that at any time or from
time to time the Guaranteed Obligations may be increased or reduced shall not
release or discharge the obligation of Guarantor to Lender with respect to the
Guaranteed Obligations. This Guaranty may be enforced by Lender and any
subsequent holder of the Notes and shall not be discharged by the assignment or
negotiation of all or part of the Notes.


 


Section 1.4             Guaranteed
Obligations Not Reduced by Offset. The
Guaranteed Obligations and the liabilities and obligations of Guarantor to
Lender hereunder, shall not be reduced, discharged or released because or by
reason of any existing or future offset, claim or defense of any Borrower, or
any other party, against Lender or against payment of the Guaranteed
Obligations, whether such offset, claim or defense arises in connection with
the Guaranteed Obligations (or the transactions creating the Guaranteed
Obligations) or otherwise.


 


Section 1.5             Payment
By Guarantor. If all or any part of the Guaranteed Obligations shall not be
punctually paid when due, Guarantor shall, immediately upon demand by Lender,
and without presentment, protest, notice of protest, notice of non-payment,
notice of intention to accelerate the maturity, notice of acceleration of the
maturity, or any other notice whatsoever, pay in lawful money of the United
States of America, the amount due on the Guaranteed Obligations to Lender at
Lender’s address as set forth herein. Such demand(s) may 


 


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be made at any
time coincident with or after the time for payment of all or part of the
Guaranteed Obligations, and may be made from time to time with respect to the
same or different items of Guaranteed Obligations. Such demand shall be deemed
made, given and received in accordance with the notice provisions hereof.


 


Section 1.6             No
Duty To Pursue Others. It shall not
be necessary for Lender (and Guarantor hereby waives any rights which Guarantor
may have to require Lender), in order to enforce the obligations of Guarantor
hereunder, first to (i) institute suit or exhaust its remedies against
Borrowers or others liable on the Loan or the Guaranteed Obligations or any
other person, (ii) enforce Lender’s rights against any collateral which shall
ever have been given to secure the Loan, (iii) enforce Lender’s rights
against any other guarantors of the Guaranteed Obligations, (iv) join any
Borrower or any others liable on the Guaranteed Obligations in any action
seeking to enforce this Guaranty, (v) exhaust any remedies available to
Lender against any collateral which shall ever have been given to secure the
Loan, or (vi) resort to any other means of obtaining payment or
performance of the Guaranteed Obligations. Lender shall not be required to
mitigate damages or take any other action to reduce, collect or enforce the
Guaranteed Obligations.


 


Section 1.7             Waivers. Guarantor agrees to the provisions of the Loan Documents,
and hereby waives notice of (i) any loans or advances made by Lender to
Borrowers, (ii) acceptance of this Guaranty, (iii) any amendment or
extension of the Notes, the Loan Agreement or of any other Loan Documents,
(iv) the execution and delivery by Borrowers and Lender of any other loan
or credit agreement or of Borrowers’ execution and delivery of any promissory
notes or other documents arising under the Loan Documents or in connection with
the Property, (v) the occurrence of any breach by any Borrower or an Event
of Default, (vi) Lender’s transfer or disposition of the Guaranteed
Obligations, or any part thereof, (vii) sale or foreclosure (or posting or
advertising for sale or foreclosure) of any collateral for the Guaranteed
Obligations, (viii) protest, proof of non-payment or default by any
Borrower, or (ix) any other action at any time taken or omitted by Lender,
and, generally, all demands and notices of every kind in connection with this
Guaranty, the Loan Documents, any documents or agreements evidencing, securing
or relating to any of the Guaranteed Obligations and the obligations hereby
guaranteed.


 


Section 1.8             Payment
of Expenses. In the event that Guarantor
should breach or fail to timely perform any provisions of this Guaranty,
Guarantor shall, immediately upon demand by Lender, pay Lender all costs and
expenses (including court costs and attorneys’ fees) incurred by Lender in the
enforcement hereof or the preservation of Lender’s rights hereunder. The
covenant contained in this Section shall survive the payment and
performance of the Guaranteed Obligations.


 


Section 1.9             Effect
of Bankruptcy. In the event that, pursuant to
any insolvency, bankruptcy, reorganization, receivership or other debtor relief
law, or any judgment, order or decision thereunder, Lender must rescind or
restore any payment, or any part thereof, received by Lender in satisfaction of
the Guaranteed Obligations, as set forth herein, any prior release or discharge
from the terms of this Guaranty given to Guarantor by Lender shall be without
effect, and this Guaranty shall remain in full force and effect. It is the intention
of 


 


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Borrowers and
Guarantor that Guarantor’s obligations hereunder shall not be discharged except
by Guarantor’s performance of such obligations and then only to the extent of
such performance.


 


Section 1.10           Waiver
of Subrogation, Reimbursement and Contribution. Notwithstanding
anything to the contrary contained in this Guaranty, Guarantor hereby
unconditionally and irrevocably waives, releases and abrogates any and all
rights it may now or hereafter have under any agreement, at law or in equity
(including, without limitation, any law subrogating the Guarantor to the rights
of Lender), to assert any claim against or seek contribution, indemnification
or any other form of reimbursement from any Borrower of any or all of the
Guaranteed Obligations for any payment made by Guarantor under or in connection
with this Guaranty or otherwise.


 


Section 1.11           Borrowers. The terms “Borrower” or “Borrowers” as used herein shall
include any new or successor corporation, association, partnership (general or
limited), joint venture, trust or other individual or organization formed as a
result of any merger, reorganization, sale, transfer, devise, gift or bequest
of any Borrower or any interest in any Borrower.


 


ARTICLE 2 - EVENTS AND
CIRCUMSTANCES NOT REDUCING

OR DISCHARGING GUARANTOR’S OBLIGATIONS


 


Guarantor hereby
consents and agrees to each of the following, and agrees that Guarantor’s
obligations under this Guaranty shall not be released, diminished, impaired,
reduced or adversely affected by any of the following, and waives any common
law, equitable, statutory or other rights (including without limitation rights
to notice) which Guarantor might otherwise have as a result of or in connection
with any of the following:


 


Section 2.1             Modifications.
Any renewal, extension, increase, modification, alteration or rearrangement of
all or any part of the Guaranteed Obligations, the Notes, the Loan Agreement,
the other Loan Documents, or any other document, instrument, contract or
understanding between Borrowers and Lender, or any other parties, pertaining to
the Guaranteed Obligations or any failure of Lender to notify Guarantor of any
such action.


 


Section 2.2             Adjustment.
Any adjustment, indulgence, forbearance or compromise that might be granted or
given by Lender to any Borrower or any Guarantor.


 


Section 2.3             Condition
of Borrowers or Guarantor. The insolvency, bankruptcy, arrangement,
adjustment, composition, liquidation, disability, dissolution or lack of power
of any Borrower, Guarantor or any other party at any time liable for the
payment of all or part of the Guaranteed Obligations; or any dissolution of any
Borrower or Guarantor, or any sale, lease or transfer of any or all of the
assets of any Borrower or Guarantor, or any changes in the shareholders,
partners or members of any Borrower or Guarantor; or any reorganization of
Borrowers or Guarantor.


 


Section 2.4             Invalidity
of Guaranteed Obligations. The invalidity, illegality or unenforceability
of all or any part of the Guaranteed Obligations, or any document or agreement
executed in connection with the Guaranteed Obligations, for any reason
whatsoever, including without limitation the fact that (i) the Guaranteed
Obligations, or any part thereof, exceeds the 


 


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amount permitted
by law, (ii) the act of creating the Guaranteed Obligations or any part
thereof is ultra vires, (iii) the officers or representatives executing
the Notes, the Loan Agreement or the other Loan Documents or otherwise creating
the Guaranteed Obligations acted in excess of their authority, (iv) the
Guaranteed Obligations violate applicable usury laws, (v) any Borrower has
valid defenses, claims or offsets (whether at law, in equity or by agreement)
which render the Guaranteed Obligations wholly or partially uncollectible from
any Borrower, (vi) the creation, performance or repayment of the
Guaranteed Obligations (or the execution, delivery and performance of any
document or instrument representing part of the Guaranteed Obligations or
executed in connection with the Guaranteed Obligations, or given to secure the
repayment of the Guaranteed Obligations) is illegal, uncollectible or
unenforceable, or (vii) the Notes, the Loan Agreement or any of the other
Loan Documents have been forged or otherwise are irregular or not genuine or
authentic, it being agreed that Guarantor shall remain liable hereon regardless
of whether any Borrower or any other person be found not liable on the
Guaranteed Obligations or any part thereof for any reason.


 


Section 2.5             Release
of Obligors. Any full or partial release of
the liability of any Borrower on the Guaranteed Obligations, or any part
thereof, or of any co-guarantors, or any other person or entity now or
hereafter liable, whether directly or indirectly, jointly, severally, or
jointly and severally, to pay, perform, guarantee or assure the payment of the
Guaranteed Obligations, or any part thereof, it being recognized, acknowledged
and agreed by Guarantor that Guarantor may be required to pay the Guaranteed
Obligations in full without assistance or support of any other party, and
Guarantor has not been induced to enter into this Guaranty on the basis of a
contemplation, belief, understanding or agreement that other parties will be
liable to pay or perform the Guaranteed Obligations, or that Lender will look
to other parties to pay or perform the Guaranteed Obligations.


 


Section 2.6             Other
Collateral. The taking or accepting of any
other security, collateral or guaranty, or other assurance of payment, for all
or any part of the Guaranteed Obligations.


 


Section 2.7             Release
of Collateral  Any release, surrender, exchange,
subordination, deterioration, waste, loss or impairment (including without
limitation negligent, willful, unreasonable or unjustifiable impairment) of any
collateral, property or security at any time existing in connection with, or
assuring or securing payment of, all or any part of the Guaranteed Obligations.


 


Section 2.8             Care
and Diligence.  The
failure of Lender or any other party to exercise diligence or reasonable care
in the preservation, protection, enforcement, sale or other handling or
treatment of all or any part of such collateral, property or security,
including but not limited to any neglect, delay, omission, failure or refusal
of Lender (i) to take or prosecute any action for the collection of any of
the Guaranteed Obligations or (ii) to foreclose, or initiate any action to
foreclose, or, once commenced, prosecute to completion any action to foreclose
upon any security therefor, or (iii) to take or prosecute any action in
connection with any instrument or agreement evidencing or securing all or any
part of the Guaranteed Obligations.


 


Section 2.9             Unenforceability. The fact that any collateral, security, security interest
or lien contemplated or intended to be given, created or granted as security
for the 


 


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payment of the
Guaranteed Obligations, or any part thereof, shall not be properly perfected or
created, or shall prove to be unenforceable or subordinate to any other
security interest or lien, it being recognized and agreed by Guarantor that
Guarantor is not entering into this Guaranty in reliance on, or in
contemplation of the benefits of, the validity, enforceability, collectibility
or value of any of the collateral for the Guaranteed Obligations.


 


Section 2.10           Offset.
The Notes, the Loan Agreement, the Guaranteed Obligations and the liabilities
and obligations of the Guarantor to Lender hereunder shall not be reduced,
discharged or released because of or by reason of any existing or future right
of offset, claim or defense of any Borrower against Lender, or any other party,
or against payment of the Guaranteed Obligations, whether such right of offset,
claim or defense arises in connection with the Guaranteed Obligations (or the
transactions creating the Guaranteed Obligations) or otherwise.


 


Section 2.11           Merger.
The reorganization, merger or consolidation of any Borrower into or with any
other corporation or entity.


 


Section 2.12           Preference.
Any payment by Borrowers to Lender is held to constitute a preference under
bankruptcy laws, or for any reason Lender is required to refund such payment or
pay such amount to Borrowers or someone else.


 


Section 2.13           Other
Actions Taken or Omitted. Any other
action taken or omitted to be taken with respect to the Loan Documents, the
Guaranteed Obligations, or the security and collateral therefor, whether or not
such action or omission prejudices Guarantor or increases the likelihood that
Guarantor will be required to pay the Guaranteed Obligations pursuant to the
terms hereof, it is the unambiguous and unequivocal intention of Guarantor that
Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding
any occurrence, circumstance, event, action, or omission whatsoever, whether
contemplated or uncontemplated, and whether or not otherwise or particularly
described herein, which obligation shall be deemed satisfied only upon the full
and final payment and satisfaction of the Guaranteed Obligations.


 


ARTICLE 3 - REPRESENTATIONS
AND WARRANTIES


 


To induce Lender
to enter into the Loan Documents and extend credit to Borrowers, Guarantor
represents and warrants to Lender as follows:


 


Section 3.1             Benefit.
Guarantor is an affiliate of Borrowers, is the owner of a direct or indirect
interest in Borrowers, and has received, or will receive, direct or indirect
benefit from the making of this Guaranty with respect to the Guaranteed
Obligations.


 


Section 3.2             Familiarity
and Reliance. Guarantor is familiar with, and has independently reviewed
books and records regarding, the financial condition of the Borrowers and is
familiar with the value of any and all collateral intended to be created as
security for the payment of the Notes or Guaranteed Obligations; however,
Guarantor is not relying on such financial condition or the collateral as an
inducement to enter into this Guaranty.


 


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Section 3.3             No
Representation By Lender. Neither Lender nor any other party has made any
representation, warranty or statement to Guarantor in order to induce the
Guarantor to execute this Guaranty.


 


Section 3.4             Guarantor’s
Financial Condition. As of the date hereof, and after giving effect to this
Guaranty and the contingent obligation evidenced hereby, Guarantor is, and will
be, solvent, and has and will have assets which, fairly valued, exceed its
obligations, liabilities (including contingent liabilities) and debts, and has
and will have property and assets sufficient to satisfy and repay its
obligations and liabilities.


 


Section 3.5             Legality.
The execution, delivery and performance by Guarantor of this Guaranty and the
consummation of the transactions contemplated hereunder do not, and will not,
contravene or conflict with any law, statute or regulation whatsoever to which
Guarantor is subject or constitute a default (or an event which with notice or
lapse of time or both would constitute a default) under, or result in the
breach of, any indenture, mortgage, deed of trust, charge, lien, or any
contract, agreement or other instrument to which Guarantor is a party or which
may be applicable to Guarantor. This Guaranty is a legal and binding obligation
of Guarantor and is enforceable in accordance with its terms, except as limited
by bankruptcy, insolvency or other laws of general application relating to the
enforcement of creditors’ rights.


 


Section 3.6             Survival.
All representations and warranties made by Guarantor herein shall survive the execution
hereof.


 


ARTICLE 4 - SUBORDINATION OF
CERTAIN INDEBTEDNESS


 


Section 4.1             Subordination
of All Guarantor Claims. As used herein, the term “Guarantor Claims” shall
mean all debts and liabilities of Borrowers to Guarantor, whether such debts
and liabilities now exist or are hereafter incurred or arise, or whether the
obligations of Borrowers thereon be direct, contingent, primary, secondary,
several, joint and several, or otherwise, and irrespective of whether such
debts or liabilities be evidenced by note, contract, open account, or
otherwise, and irrespective of the person or persons in whose favor such debts
or liabilities may, at their inception, have been, or may hereafter be created,
or the manner in which they have been or may hereafter be acquired by
Guarantor. The Guarantor Claims shall include without limitation all rights and
claims of Guarantor against any Borrower (arising as a result of subrogation or
otherwise) as a result of Guarantor’s payment of all or a portion of the
Guaranteed Obligations. Upon the occurrence of an Event of Default and during
the continuance thereof or the occurrence of an event which would, with the
giving of notice or the passage of time, or both, constitute an Event of
Default, Guarantor shall not receive or collect, directly or indirectly, from
any Borrower or any other party any amount upon the Guarantor Claims.


 


Section 4.2             Claims
in Bankruptcy. In the event of receivership, bankruptcy, reorganization,
arrangement, debtor’s relief, or other insolvency proceedings involving
Guarantor as debtor, Lender shall have the right to prove its claim in any such
proceeding so as to establish its rights hereunder and receive directly from
the receiver, trustee or other court custodian dividends and payments which
would otherwise be payable upon Guarantor Claims. Guarantor hereby assigns such
dividends and payments to Lender. Should Lender receive, for application upon
the Guaranteed Obligations, any such dividend or payment which is otherwise 


 


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payable to
Guarantor, and which, as between any Borrower and Guarantor, shall constitute a
credit upon the Guarantor Claims, then upon payment to Lender in full of the
Guaranteed Obligations, Guarantor shall become subrogated to the rights of
Lender to the extent that such payments to Lender on the Guarantor Claims have
contributed toward the liquidation of the Guaranteed Obligations, and such
subrogation shall be with respect to that proportion of the Guaranteed
Obligations which would have been unpaid if Lender had not received dividends
or payments upon the Guarantor Claims.


 


Section 4.3             Payments
Held in Trust. In the event that, notwithstanding anything to the contrary
in this Guaranty, Guarantor should receive any funds, payment, claim or
distribution which is prohibited by this Guaranty, Guarantor agrees to hold in
trust for Lender an amount equal to the amount of all funds, payments, claims
or distributions so received, and agrees that it shall have absolutely no
dominion over the amount of such funds, payments, claims or distributions so
received except to pay them promptly to Lender, and Guarantor covenants
promptly to pay the same to Lender.


 


Section 4.4             Liens
Subordinate. Guarantor agrees that any liens, security interests, judgment
liens, charges or other encumbrances upon any Borrower’s assets securing
payment of the Guarantor Claims shall be and remain inferior and subordinate to
any liens, security interests, judgment liens, charges or other encumbrances
upon any Borrower’s assets securing payment of the Guaranteed Obligations,
regardless of whether such encumbrances in favor of Guarantor or Lender
presently exist or are hereafter created or attach. Without the prior written
consent of Lender, Guarantor shall not (i) exercise or enforce any
creditor’s right it may have against any Borrower, or (ii) foreclose,
repossess, sequester or otherwise take steps or institute any action or
proceedings (judicial or otherwise, including without limitation the
commencement of, or joinder in, any liquidation, bankruptcy, rearrangement,
debtor’s relief or insolvency proceeding) to enforce any liens, mortgage, deeds
of trust, security interests, collateral rights, judgments or other
encumbrances on assets of any Borrower held by Guarantor.


 


ARTICLE 5 - MISCELLANEOUS


 


Section 5.1             Waiver.
No failure to exercise, and no delay in exercising, on the part of Lender, any
right hereunder 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. The rights of Lender hereunder shall be in
addition to all other rights provided by law. No modification or waiver of any
provision of this Guaranty, nor consent to departure therefrom, shall be
effective unless in writing and no such consent or waiver shall extend beyond
the particular case and purpose involved. No notice or demand given in any case
shall constitute a waiver of the right to take other action in the same,
similar or other instances without such notice or demand.


 


Section 5.2             Notices.
Any notice, demand, statement, request or consent made hereunder shall be in
writing and shall be deemed to be received by the addressee on the third day
following the day such notice is deposited with the United States Postal
Service first class certified mail, return receipt requested, addressed to the
address, as set forth below, of the party to whom such notice is to be given,
or to such other address as either party shall in like manner designate in
writing. The addresses of the parties hereto are as follows:


 


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  Guarantor:

  	
   

  
	
   

  	
  Inland American Real Estate Trust, Inc.

  
	
   

  	
  2901 Butterfield Road

  
	
   

  	
  Oak Brook, Illinois 60523

  
	
   

  	
  Attention: Lori Foust

  
	
   

  
	
   

  	
  Lender:

  	 

	
   

  	
  Bear Stearns Commercial Mortgage Inc.

  
	
   

  	
  383 Madison Avenue

  
	
   

  	
  New York, New York 100167

  
	
   

  	
  Attention: Christopher Hoeffel

  
	
   

  	
  Facsimile No.: (212) 272-7047

  
	
   

  
	
   

  	
  Bank of America, N.A.

  
	
   

  	
  Bank of America Corporate Center

  
	
   

  	
  100 North Tryon Street

  
	
   

  	
  Charlotte, North Carolina 28255

  
	
   

  	
  Attention:

  
	
   

  	
  Facsimile No.

  
							



 


Section 5.3             Governing
Law. This Guaranty shall be governed in accordance with the State of New
York and the applicable law of the United States of America.


 


Section 5.4             Invalid
Provisions. If any provision of this Guaranty is held to be illegal,
invalid, or unenforceable under present or future laws effective during the
term of this Guaranty, such provision shall be fully severable and this
Guaranty shall be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part of this Guaranty, and the remaining
provisions of this Guaranty shall remain in full force and effect and shall not
be affected by the illegal, invalid or unenforceable provision or by its
severance from this Guaranty, unless such continued effectiveness of this
Guaranty, as modified, would be contrary to the basic understandings and
intentions of the parties as expressed herein.


 


Section 5.5             Amendments.
This Guaranty may be amended only by an instrument in writing executed by the
party or an authorized representative of the party against whom such amendment
is sought to be enforced.


 


Section 5.6             Parties
Bound; Assignment; Joint and Several. This Guaranty shall be binding upon
and inure to the benefit of the parties hereto and their respective successors,
assigns and legal representatives; provided, however, that Guarantor may not,
without the prior written consent of Lender, assign any of its rights, powers,
duties or obligations hereunder. If Guarantor consists of more than one person
or party, the obligations and liabilities of each such person or party shall be
joint and several.


 


Section 5.7             Headings.
Section headings are for convenience of reference only and shall in no way
affect the interpretation of this Guaranty.


 


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Section 5.8             Recitals.
The recital and introductory paragraphs hereof are a part hereof, form a basis
for this Guaranty and shall be considered prima facie
evidence of the facts and documents referred to therein.


 


Section 5.9             Counterparts.
To facilitate execution, this Guaranty may be executed in as many counterparts
as may be convenient or required. It shall not be necessary that the signature
of, or on behalf of, each party, or that the signature of all persons required
to bind any party, appear on each counterpart. All counterparts shall
collectively constitute a single instrument. It shall not be necessary in
making proof of this Guaranty to produce or account for more than a single
counterpart containing the respective signatures of, or on behalf of, each of
the parties hereto. Any signature page to any counterpart may be detached
from such counterpart without impairing the legal effect of the signatures
thereon and thereafter attached to another counterpart identical thereto except
having attached to it additional signature pages.


 


Section 5.10           Rights
and Remedies. If Guarantor becomes liable for any indebtedness owing by any
Borrower to Lender, by endorsement or otherwise, other than under this Guaranty,
such liability shall not be in any manner impaired or affected hereby and the
rights of Lender hereunder shall be cumulative of any and all other rights that
Lender may ever have against Guarantor. The exercise by Lender of any right or
remedy hereunder or under any other instrument, or at law or in equity, shall
not preclude the concurrent or subsequent exercise of any other right or
remedy.


 


Section 5.11           Other
Defined Terms. Any capitalized term utilized herein shall have the meaning
as specified in the Loan Agreement, unless such term is otherwise specifically
defined herein.


 


Section 5.12           Entirety.
THIS GUARANTY EMBODIES THE FINAL, ENTIRE AGREEMENT OF GUARANTOR AND LENDER WITH
RESPECT TO GUARANTOR’S GUARANTY OF THE GUARANTEED OBLIGATIONS AND SUPERSEDES
ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS,
WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF. THIS GUARANTY
IS INTENDED BY GUARANTOR AND LENDER AS A FINAL AND COMPLETE EXPRESSION OF THE
TERMS OF THE GUARANTY, AND NO COURSE OF DEALING BETWEEN GUARANTOR AND LENDER,
NO COURSE OF PERFORMANCE, NO TRADE PRACTICES, AND NO EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC
EVIDENCE OF ANY NATURE SHALL BE USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY
ANY TERM OF THIS GUARANTY AGREEMENT. THERE ARE NO ORAL AGREEMENTS BETWEEN
GUARANTOR AND LENDER.


 


Section 5.13           Waiver
of Right To Trial By Jury. GUARANTOR HEREBY AGREES NOT TO ELECT A TRIAL BY
JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY
JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH
REGARD TO THIS GUARANTY, THE NOTES, THE LOAN AGREEMENT, THE MORTGAGES, OR THE
OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN
CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY 


 


10

















 


 


JURY IS GIVEN
KNOWINGLY AND VOLUNTARILY BY GUARANTOR, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS
PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY GUARANTOR.


 


Section 5.14           Reinstatement
in Certain Circumstances. If at any time any payment of the principal of or
interest under the Notes or any other amount payable by the any Borrower under
the Loan Documents is rescinded or must be otherwise restored or returned upon
the insolvency, bankruptcy or reorganization of any Borrower or otherwise, the
Guarantor’s obligations hereunder with respect to such payment shall be
reinstated as though such payment has been due but not made at such time.


 


Section 5.15           Limitation of Guaranty.
Notwithstanding the foregoing provisions of this Guaranty, Guarantor’s
liability for the Guaranteed Obligations at any given time shall not exceed
$20,000,000.00 in the aggregate.


 


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THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]


 


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EXECUTED as of the
day and year first above written.


 


	
   

  	
  GUARANTOR:

  
	
   

  	
   

  
	
   

  	
  INLAND AMERICAN REAL ESTATE TRUST, 

  INC., a Maryland corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lori J. Foust

  	
   

  
	
   

  	
   

  	
  Name: Lori J. Foust

  
	
   

  	
   

  	
  Title:   Treasurer