Exhibit 10.162


 


PROMISSORY NOTE


 


	
   

  	
   

  	
  No. 

  	
                

  
	
  $281,168,046.00

  	
   

  	
  December 10,
  2007

  
	
  Chicago,
  Illinois

  	
   

  	
  Maturity Date: December 10,
  2008

  



 


1.         AGREEMENT TO PAY. For value received, INLAND AMERICAN ST PORTFOLIO, L.L.C. and INLAND AMERICAN ST FLORIDA PORTFOLIO, L.L.C.,
each a Delaware limited liability company (together, the “Borrower”) hereby
jointly and severally promise to pay to the order of LASALLE BANK NATIONAL ASSOCIATION, a national banking
association, its successors and assigns (the “Lender”), the principal
sum of Two Hundred Eighty One Million One Hundred Sixty Eight Thousand Forty
Six Dollars ($281,168,046) (the “Loan”), on December 10, 2008 (the “Maturity
Date”), at the place and in the manner hereinafter provided, together with
interest thereon at the rate or rates described below, and any and all other
amounts which may be due and payable hereunder from time to time.


 


2.         THE LOAN. Subject to the terms and
conditions of this Note, the Loan Agreement (as hereinafter defined) and the
other Loan Documents (as hereinafter defined), the Lender agrees to make the
Loan to and for the benefit of the Borrower. The Loan and repayments hereunder
shall be evidenced by entries on the books and records of the Lender which
shall be presumptive evidence of the principal amount and interest owing and
unpaid on this Note, or any renewal or extension hereof. The failure to so
record any such amount or any error so recording any such amount shall not,
however, limit or otherwise affect the obligations of the Borrower hereunder or
under any note to repay the principal amount of such liabilities, together with
all interest accruing thereon. The Loan is made pursuant to a Loan and Security
Agreement between Borrower and Lender (as same may be modified or amended from
time to time, the “Loan Agreement”). Capitalized terms not defined herein shall
have the meaning given them in the Loan Agreement.


 


3.         INTEREST RATE.


 


3.1       Interest Prior to
Default.


 


(a)       Interest shall accrue on
the principal balance of this Note outstanding from the date hereof through the
Maturity Date at the Borrower’s option from time to time of (i) a floating
per annum rate of interest (the “Interest Rate”) equal to the Prime Rate
(as hereinafter defined), or (ii) a per annum rate of interest (the “LIBOR
Rate”) equal to LIBOR (as hereinafter defined) for the relevant Interest
Period (as hereinafter defined), plus ninety-five and one-hundredths
percent (0.95%) (the “Applicable Margin”), such LIBOR Rate to remain
fixed for such Interest Period. Changes in the Interest Rate to be charged
hereunder based on the Prime Rate shall take effect immediately upon the
occurrence of any change in the Prime Rate. Any portion of the principal amount
of this Note bearing interest at the Prime Rate is referred to herein as a “Prime


 

















 


Loan”.
Any portion of the principal amount of this Note bearing interest at the LIBOR
Rate is referred to herein as a “LIBOR Loan”.


 


(b)       A request by the Borrower
for a Prime Loan must be received by the Lender in writing no later than 2:00 p.m.
Chicago, Illinois time, on any day other than a Saturday, Sunday or a legal
holiday on which banks are authorized or required to be closed for the conduct
of commercial banking business in Chicago, Illinois (a “Business Day”).
As used herein, “Prime Rate” shall mean the floating per annum rate of
interest most recently announced by the Lender at Chicago, Illinois as its
prime or base rate. A certificate made by an officer of the Lender stating the
Prime Rate in effect on any given day, for the purposes hereof, shall be
conclusive evidence of the Prime Rate in effect on such day. The Prime Rate is
a base reference rate of interest adopted by the Lender as a general benchmark
from which the Lender determines the floating interest rates chargeable on various
loans to borrowers with varying degrees of creditworthiness and the Borrower
acknowledges and agrees that the Lender has made no representations whatsoever
that the Prime Rate is the interest rate actually offered by the Lender to
borrowers of any particular creditworthiness.


 


(c)       LIBOR Rate. The
designation of a LIBOR Loan by the Borrower is subject to the following
requirements:


 


(i)         A request for a LIBOR
Loan (a “LIBOR Loan Request”) must be received by the Lender no later
than 2:00 p.m. Chicago, Illinois time two Business Days prior to the first
day of the Interest Period on which such LIBOR Loan shall be advanced, shall be
irrevocable, and shall state the initial Interest Period and amount of such
LIBOR Loan. Each LIBOR Loan will be in an amount not less than $5,000,000. No
more than five (5) separate LIBOR Loans may be outstanding at any time. A
request for a LIBOR Loan received by the Lender after 2:00 p.m. Chicago,
Illinois on any Business Day time will be processed and funded by the Lender on
the third Business Day thereafter.


 


(ii)       If pursuant to the LIBOR
Loan Request, the initial Interest Period of any LIBOR Loan commences on any
day other than the first Business Day of any month, then the initial Interest
Period of such LIBOR Loan shall end on the first day of the following calendar
month, notwithstanding the Interest Period specified in the LIBOR Loan Request,
and the LIBOR Rate for such LIBOR Loan shall be equal to LIBOR for an interest
period equal to the length of such partial month, plus the Applicable
Margin. Thereafter, each LIBOR Loan shall automatically renew (a “LIBOR
Rollover”) for the Interest Period specified in the LIBOR Loan Request at
the then current LIBOR Rate plus the Applicable Margin unless the
Borrower, in a subsequent LIBOR Loan Request received by the Lender no later
than 2:00 p.m. Chicago, Illinois time on the second (2nd) Business Day
before the expiration of the existing Interest Period, shall elect a different
Interest Period or the conversion of all or a portion of the LIBOR Loan to a
Prime Loan.


 


2

















 


The Borrower may not
elect a LIBOR Rate, and an Interest Period for a LIBOR Loan shall not
automatically renew, with respect to any principal amount which is scheduled to
be repaid before the last day of the applicable Interest Period, and any such
amounts shall bear interest at the Interest Rate, until repaid.


 


(iii)      “LIBOR” shall mean a
rate of interest equal to (A) the per annum rate of interest at which
United States dollar deposits in an amount comparable to the amount of the
relevant LIBOR Loan and for a period equal to the relevant Interest Period are
offered in the London Interbank Eurodollar market at 11:00 a.m. (London
time) two Business Days prior to the commencement of such Interest Period (or
three Business Days prior to the commencement of such Interest Period if banks
in London, England were not open and dealing in offshore United States dollars
on such second preceding Business Day), as displayed in the Bloomberg Financial Markets system (or
other authoritative source selected by the Lender in its sole discretion),
divided by (B) a number determined by subtracting from 1.00 the then
stated maximum reserve percentage for determining reserves to be maintained by
member banks of the Federal Reserve System for Eurocurrency funding or
liabilities as defined in Regulation D (or any successor category of
liabilities under Regulation D), such rate to remain fixed for such Interest
Period, or as LIBOR is otherwise determined by the Lender in its sole and
absolute discretion. The Lender’s determination of LIBOR shall be conclusive,
absent manifest error.


 


(iv)      “Interest Period”
shall mean, with regard to any LIBOR Loan, successive one, two, three, six or
twelve month periods, as selected by the Borrower in its LIBOR Loan Request;
provided, however, that: (A) each Interest Period occurring after the
initial Interest Period of any LIBOR Loan shall commence on the day on which
the preceding Interest Period for such LIBOR Loan expires; (B) 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; (C) whenever the first day of any
Interest Period occurs on a date for which there is no numerically
corresponding date in the month in which such Interest Period terminates, such
Interest Period shall end on the last day of such month, unless such day is not
a Business Day, in which case the Interest Period shall terminate on the first
Business Day of the following month, provided, however, that so long as the
LIBOR Rollover remains in effect, all subsequent Interest Periods shall
terminate on the date of the month numerically corresponding to the date on
which the initial Interest Period commenced; and (D) the final Interest
Period for any LIBOR Loan must be such that its expiration occurs on or before
the Maturity Date. If at any time an Interest Period expires less than one
month before the Maturity Date, such LIBOR Loan shall automatically convert to
a Prime Loan on the last day of the then existing Interest Period, without
further demand, presentment, protest or notice of any kind, all of which are
hereby waived by the Borrower.


 


3

















 


(v)       Notwithstanding anything to
the contrary contained herein, the principal balance of any L1BOR Loan may not
be prepaid in whole or in part at any time. If, for any reason, a LIBOR Loan is
paid prior to the last Business Day of any Interest Period, whether voluntary,
involuntary, by reason of acceleration or otherwise, each such prepayment of a
LIBOR Loan will be accompanied by the amount of accrued interest on the amount
prepaid and any and all costs, expenses, penalties and charges incurred by the
Lender as a result of the early termination or breakage of a LIBOR Loan, plus
the amount, if any, by which (A) the additional interest which would have
been payable during the Interest Period on the LIBOR Loan prepaid had it not
been prepaid, exceeds (B) the interest which would have been recoverable
by the Lender by placing the amount prepaid on deposit in the domestic
certificate of deposit market, the eurodollar deposit market, or other
appropriate money market selected by the Lender, for a period starting on the
date on which it was prepaid and ending on the last day of the Interest Period
for such LIBOR Loan (collectively, the “Make Whole Costs”). The amount
of any such loss or expense payable by the Borrower to the Lender under this
section shall be determined in the Lender’s sole discretion based upon the
assumption that the Lender funded its loan commitment for LIBOR Loans in the
London Interbank Eurodollar market and using any reasonable attribution or
averaging methods which the Lender deems appropriate and practical, provided,
however, that the Lender is not obligated to accept a deposit in the London
Interbank Eurodollar market in order to charge interest on a LIBOR Loan at the
LIBOR Rate.


 


(vi)      If the Lender determines in
good faith (which determination shall be conclusive, absent manifest error)
prior to the commencement of any Interest Period that (A) the making or
maintenance of any LIBOR Loan would violate any applicable law, rule,
regulation or directive, whether or not having the force of law, (B) United
States dollar deposits in the principal amount, and for periods equal to the
Interest Period, of any LIBOR Loan are not available in the London Interbank
Eurodollar market in the ordinary course of business, (C) by reason of
circumstances affecting the London Interbank Eurodollar market, adequate and
fair means do not exist for ascertaining the LIBOR Rate to be applicable to the
relevant LIBOR Loan, (D) the LIBOR Rate does not accurately reflect the
cost to the Lender of a LIBOR Loan, or (E) an Event of Default (as
hereinafter defined) has occurred and is continuing or any event or
circumstance exists which, with the giving of notice or passage of time, would
constitute an Event of Default, the Lender shall promptly notify the Borrower
thereof and, so long as any of the foregoing conditions continue, the Lender
will have no obligation to accept an election by the Borrower for a LIBOR Loan,
and each existing LIBOR Loan, at the Borrower’s option, shall be (1) converted
to a Prime Loan on the last Business Day of the then existing Interest Period,
or (2) due and payable on the last Business Day of the then existing
Interest Period, without further demand, presentment, protest or notice of any
kind, all of which are hereby waived by the Borrower.


 


4

















 


(vii)     If, after the date hereof, a
Regulatory Change (as hereinafter defined) shall, in the reasonable
determination of the Lender, make it unlawful for the Lender to make or
maintain any LIBOR Loans, the Lender will have no obligation to accept an
election by the Borrower for a LIBOR Loan. In addition, at the Borrower’s
option, each existing LIBOR Loan shall be immediately (A) converted to a
Prime Loan on the last Business Day of the then existing Interest Period or on
such earlier date as required by law, or (B) due and payable on the last
Business Day of the then existing Interest Period or on such earlier date as
required by law, all without further demand, presentment, protest or notice of
any kind, all of which are hereby waived by the Borrower. As used herein, “Regulatory
Change” shall mean the introduction of, or any change in any applicable
law, treaty, rule, regulation or guideline or in the interpretation or administration
thereof by any governmental authority or any central bank or other fiscal,
monetary or other authority having jurisdiction over the Lender or its lending
office.


 


(viii)    If any Regulatory Change
(whether or not having the force of law) shall (a) impose, modify or deem
applicable any assessment, reserve, special deposit or similar requirement
against assets held by, or deposits in or for the account of, or loans by, or
any other acquisition of funds or disbursements by, the Lender; (b) subject
the Lender or any LIBOR Loan to any tax, duty, charge, stamp tax or fee, or
change the basis of taxation of payments to the Lender of principal or interest
due from the Borrower hereunder (other than a change in the taxation of the
overall net income of the Lender); or (c) impose on the Lender any other
condition regarding any LIBOR Loan or the Lenders’ funding thereof, and the
Lender shall determine (which determination shall be conclusive, absent
manifest error) that the result of the foregoing is to actually increase the
cost to the Lender of making or maintaining any LIBOR Loans or to reduce the
amount of principal or interest received by the Lender hereunder on any LIBOR
Loan, then the Borrower shall pay to the Lender, on demand, such additional
amounts as the Lender shall from time to time determine are sufficient to
compensate and indemnify the Lender for such increased costs or reduced amounts
(the “LIBOR Indemnification Costs”).


 


3.2       Interest After Default.
From and after the Maturity Date or upon the occurrence and during the
continuance of an Event of Default, interest shall accrue on the unpaid
principal balance during any such period at an annual rate (the “Default
Rate”) equal to five percent (5.00%) plus the Interest Rate
provided, however, in no event shall the Default Rate exceed the maximum rate
permitted by law. The interest accruing under this section shall be immediately
due and payable by the Borrower to the holder of this Note upon demand and
shall be additional indebtedness evidenced by this Note.


 


3.3       Interest Calculation.
Interest on this Note shall be calculated on the basis of a 360 day year and
the actual number of days elapsed in any portion of a month in which interest
is due. If any payment to be made by the Borrower hereunder shall become due on
a day other than a Business Day, such payment shall be made on the next


 


5

















 


succeeding Business Day
and such extension of time shall be included in computing any interest in
respect of such payment.


 


4.        PAYMENT TERMS.


 


4.1       Principal and Interest.
Payments of principal and interest due under this Note, if not sooner declared
to be due in accordance with the provisions hereof, shall be made as follows:


 


(a)       Commencing on January 1,
2008, and continuing on the first day of each month thereafter through and
including the month in which the Maturity Date occurs, except as otherwise
provided herein, all accrued and unpaid interest on the principal balance of
this Note outstanding from time to time shall be due and payable. Interest
accrued on any LIBOR Loan as of the date of termination, breakage or other
disposition shall be due and payable in full on the date of such termination,
breakage or disposition.


 


(b)       The unpaid principal
balance of this Note, if not sooner paid or declared to be due in accordance
with the terms hereof, together with all accrued and unpaid interest thereon
and any other amounts due and payable hereunder or under any of the Loan
Documents shall be due and payable in full on the Maturity Date.


 


4.2       Application of Payments.
Prior to the occurrence of an Event of Default, all payments and prepayments on
account of the indebtedness evidenced by this Note shall be applied as follows:
(a) first, to fees, expenses, costs and other similar amounts then due and
payable to the Lender, including, without limitation any prepayment premium,
exit fee or late charges due hereunder, (b) second, to accrued and unpaid
interest on the principal balance of this Note, (c) third, to the payment
of principal due in the month in which the payment or prepayment is made, (d) fourth,
to any escrows, impounds or other amounts which may then be due and payable
under the Loan Documents, (e) fifth, to any other amounts then due the
Lender hereunder or under any of the Loan Documents, and (f) last, to the
unpaid principal balance of this Note in the inverse order of maturity. Any
prepayment on account of the indebtedness evidenced by this Note shall not
extend or postpone the due date or reduce the amount of any subsequent monthly
payment of principal and interest due hereunder. After an Event of Default has
occurred and is continuing, payments may be applied by the Lender to amounts
owed hereunder and under the Loan Documents in such order as the Lender shall
determine, in its sole discretion.


 


4.3       Method of Payments.
All payments of principal and interest hereunder shall be paid by automatic
debit, wire transfer, check or in coin or currency which, at the time or times
of payment, is the legal tender for public and private debts in the United
States of America and shall be made at such place as the Lender or the legal
holder or holders of this Note may from time to time appoint in the payment
invoice or otherwise in writing, and in the absence of such appointment, then
at the offices of the Lender at


 


6

















 


135 South La Salle
Street, Suite 1225, Chicago, Illinois 60603. Payment made by check shall
be deemed paid on the date the Lender receives such check; provided, however, that
if such check is subsequently returned to the Lender unpaid due to insufficient
funds or otherwise, the payment shall not be deemed to have been made and shall
continue to bear interest until collected. Notwithstanding the foregoing, the
final payment due under this Note must be made by wire transfer or other
immediately available funds.


 


4.4       Late Charge. If any
payment of interest or principal due hereunder (other than payment of principal
at maturity) is not made within five days after such payment is due in
accordance with the terms hereof, then, in addition to the payment of the
amount so due, the Borrower shall pay to the Lender a “late charge” of
five cents for each whole dollar so overdue to defray part of the cost of
collection and handling such late payment. The Borrower agrees that the damages
to be sustained by the holder hereof for the detriment caused by any late
payment are extremely difficult and impractical to ascertain, and that the
amount of five cents for each one dollar due is a reasonable estimate of such
damages, does not constitute interest, and is not a penalty.


 


4.5       Principal Prepayments.
The portion of this Note bearing interest at the Interest Rate may be prepaid,
either in whole or in part, without penalty or premium, at any time and from
time to time upon fourteen (14) days prior notice to the Lender. The portion of
this Note bearing interest at the LIBOR Rate may be prepaid only on the last
day of an Interest Period; provided, however, that the Borrower may prepay a
LIBOR Loan prior to such day so long as such prepayment is accompanied by a
simultaneous payment of the Make Whole Costs described in Section 3.1(c)(v) above,
plus accrued interest on the LIBOR Loan being prepaid through the date
of prepayment.


 


5.         SECURITY. This Note
is secured by the Mortgage (as defined in the Loan Agreement) and the other
Loan Documents (as defined in the Loan Agreement and collectively referred to
as the “Loan Documents”). Reference is hereby made to the Loan Documents
(which are incorporated herein by reference as fully and with the same effect
as if set forth herein at length) for a statement of the covenants and
agreements contained therein, a statement of the rights, remedies, and security
afforded thereby, and all matters therein contained.


 


6.         EVENTS OF DEFAULT.
The occurrence of any one or more of the following events shall constitute an “Event
of Default” under this Note:


 


(a)       the failure by the Borrower
to pay (i) any installment of principal or interest payable pursuant to
this Note within five (5) days after the date when due, or (ii) any
other amount payable to the Lender under this Note, the Mortgage or any of the
other Loan Documents within five (5) days after the date when any such
payment is due in accordance with the terms hereof or thereof; or


 


(b)       the occurrence of any “Event
of Default” under the Loan Agreement or any of the other Loan Documents.


 


7

















 


7.         REMEDIES. At the
election of the holder hereof, and without notice, the principal balance
remaining unpaid under this Note, and all unpaid interest accrued thereon and
any other amounts due hereunder, shall be and become immediately due and
payable in full upon the occurrence of any Event of Default. Failure to
exercise this option shall not constitute a waiver of the right to exercise
same in the event of any subsequent Event of Default. No holder hereof shall,
by any act of omission or commission, be deemed to waive any of its rights,
remedies or powers hereunder or otherwise unless such waiver is in writing and
signed by the holder hereof, and then only to the extent specifically set forth
therein. The rights, remedies and powers of the holder hereof, as provided in
this Note, the Mortgage and in all of the other Loan Documents are cumulative
and concurrent, and may be pursued singly, successively or together against the
Borrower, any Guarantor hereof, the Premises and any other security given at
any time to secure the repayment hereof, all at the sole discretion of the
holder hereof. If any suit or action is instituted or attorneys are employed to
collect this Note or any part hereof, the Borrower promises and agrees to pay
all costs of collection, including reasonable attorneys’ fees and court costs.


 


8.         COVENANTS AND WAIVERS.
The Borrower and all others who now or may at any time become liable for all or
any part of the obligations evidenced hereby, expressly agree hereby to be
jointly and severally bound, and jointly and severally: (i) waive and
renounce any and all homestead, redemption and exemption rights and the benefit
of all valuation and appraisement privileges against the indebtedness evidenced
by this Note or by any extension or renewal hereof; (ii) waive presentment
and demand for payment, notices of nonpayment and of dishonor, protest of
dishonor, and notice of protest; (iii) except as expressly provided in the
Loan Documents, waive any and all notices in connection with the delivery and
acceptance hereof and all other notices in connection with the performance,
default, or enforcement of the payment hereof or hereunder; (iv) waive any
and all lack of diligence and delays in the enforcement of the payment hereof; (v) agree
that the liability of the Borrower and each guarantor, endorser or obligor
shall be unconditional and without regard to the liability of any other person
or entity for the payment hereof, and shall not in any manner be affected by
any indulgence or forbearance granted or consented to by the Lender to any of
them with respect hereto; (vi) consent to any and all extensions of time,
renewals, waivers, or modifications that may be granted by the Lender with
respect to the payment or other provisions hereof, and to the release of any
security at any time given for the payment hereof, or any part thereof, with or
without substitution, and to the release of any person or entity liable for the
payment hereof; and (vii) consent to the addition of any and all other
makers, endorsers, guarantors, and other obligors for the payment hereof, and
to the acceptance of any and all other security for the payment hereof, and
agree that the addition of any such makers, endorsers, guarantors or other
obligors, or security shall not affect the liability of the Borrower, any
guarantor and all others now liable for all or any part of the obligations
evidenced hereby. This provision is a material inducement for the Lender making
the Loan to the Borrower.


 


9.         GENERAL AGREEMENTS.


 


9.1       Business Purpose Loan.
The Loan is a business loan which comes within the purview of Section 205/4,
paragraph (l)(c) of Chapter 815 of the Illinois Compiled Statutes,


 


8

















 


as amended. The Borrower
agrees that the Loan evidenced by this Note is an exempted transaction under
the Truth In Lending Act, 15 U.S.C., §1601, et seq.


 


9.2       Time. Time is of the
essence hereof.


 


9.3       Governing Law. This
Note is governed and controlled as to validity, enforcement, interpretation,
construction, effect and in all other respects by the statutes, laws and
decisions of the State of Illinois, without regard to its conflict of laws
provisions.


 


9.4       Amendments. This
Note may not be changed or amended orally but only by an instrument in writing
signed by the party against whom enforcement of the change or amendment is
sought.


 


9.5       No Joint Venture.
The Lender shall not be construed for any purpose to be a partner, joint
venturer, agent or associate of the Borrower or of any lessee, operator,
concessionaire or licensee of the Borrower in the conduct of its business, and
by the execution of this Note, the Borrower agrees to indemnify, defend, and
hold the Lender harmless from and against any and all damages, costs, expenses
and liability that may be incurred by the Lender as a result of a claim that
the Lender is such partner, joint venturer, agent or associate.


 


9.6       Disbursement. This
Note has been made and delivered at Chicago, Illinois and all funds disbursed
to or for the benefit of the Borrower will be disbursed in Chicago, Illinois.


 


9.7       Joint and Several
Obligations. If this Note is executed by more than one party, the
obligations and liabilities of each Borrower under this Note shall be joint and
several and shall be binding upon and enforceable against each Borrower and
their respective successors and assigns. The portion of this Note secured by
various Mortgages may be limited as set forth in such Mortgages. This Note
shall inure to the benefit of and may be enforced by the Lender and its
successors and assigns.


 


9.8       Severable Loan
Provisions. If any provision of this Note is deemed to be invalid by reason
of the operation of law, or by reason of the interpretation placed thereon by
any administrative agency or any court, the Borrower and the Lender shall
negotiate an equitable adjustment in the provisions of the same in order to
effect, to the maximum extent permitted by law, the purpose of this and the
validity and enforceability of the remaining provisions, or portions or
applications thereof, shall not be affected thereby and shall remain in full
force and effect.


 


9.9       Interest Limitation.
If the interest provisions herein or in any of the Loan Documents shall result,
at any time during the Loan, in an effective rate of interest which, for any
month, exceeds the limit of usury or other laws applicable to the Loan, all
sums in excess of those lawfully collectible as interest of the period in
question shall, without further agreement or notice between or by any party
hereto, be applied upon principal immediately upon receipt of such monies by
the Lender, with the same force and effect as though the payer has specifically
designated such extra sums to be so applied to principal and the Lender had
agreed to accept such


 


9

















 


extra payment(s) as
a premium-free prepayment. Notwithstanding the foregoing, however, the Lender
may at any time and from time to time elect by notice in writing to the
Borrower to reduce or limit the collection to such sums which, when added to
the said first-stated interest, shall not result in any payments toward principal
in accordance with the requirements of the preceding sentence. In no event
shall any agreed to or actual exaction as consideration for this Loan transcend
the limits imposed or provided by the law applicable to this transaction or the
makers hereof in the jurisdiction in which the Premises are located for the use
or detention of money or for forbearance in seeking its collection.


 


9.10     Assignability. The
Lender may at any time assign its rights in this Note and the Loan Documents,
or any part thereof and transfer its rights in any or all of the collateral,
and the Lender thereafter shall be relieved from all liability with respect to
such collateral. In addition, the Lender may at any time sell one or more
participations in the Note. The Borrower may not assign its interest in this
Note, or any other agreement with the Lender or any portion thereof, either
voluntarily or by operation of law, without the prior written consent of the
Lender.


 


10.       NOTICES. All notices
required under this Note will be in writing and will be transmitted in the
manner and to the addresses required by the Mortgage, or to such other
addresses as the Lender and the Borrower may specify from time to time in
writing.


 


11.       CONSENT TO JURISDICTION.
TO INDUCE THE LENDER TO ACCEPT THIS NOTE, THE BORROWER IRREVOCABLY AGREES THAT,
SUBJECT TO THE LENDER’S SOLE AND ABSOLUTE ELECTION, ALL ACTIONS OR PROCEEDINGS
IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE WILL BE LITIGATED IN COURTS
HAVING SITUS IN CHICAGO, ILLINOIS. THE BORROWER HEREBY CONSENTS AND SUBMITS TO
THE JURISDICTION OF ANY COURT LOCATED WITHIN CHICAGO, ILLINOIS, WAIVES PERSONAL
SERVICE OF PROCESS UPON THE BORROWER, AND AGREES THAT ALL SUCH SERVICE OF
PROCESS MAY BE MADE BY REGISTERED MAIL DIRECTED TO THE BORROWER AT THE
ADDRESS STATED IN THE MORTGAGE AND SERVICE SO MADE WILL BE DEEMED TO BE
COMPLETED UPON ACTUAL RECEIPT.


 


12.       WAIVER OF JURY TRIAL.
THE BORROWER AND THE LENDER (BY ACCEPTANCE OF THIS NOTE), HAVING BEEN
REPRESENTED BY COUNSEL, EACH KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS (A) UNDER
THIS NOTE OR ANY RELATED AGREEMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT
OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION WITH THIS NOTE OR (B) ARISING FROM ANY BANKING RELATIONSHIP
EXISTING IN CONNECTION WITH THIS NOTE, AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING WILL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. THE BORROWER
AGREES THAT IT WILL NOT ASSERT ANY CLAIM AGAINST THE LENDER ON ANY THEORY OF
LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.


 


10

















 


13.       WAIVER OF DEFENSES.
OTHER THAN CLAIMS BASED UPON THE FAILURE OF THE LENDER TO ACT IN A COMMERCIALLY
REASONABLE MANNER, THE BORROWER WAIVES EVERY PRESENT AND FUTURE DEFENSE (OTHER
THAN THE DEFENSE OF PAYMENT IN FULL), CAUSE OF ACTION, COUNTERCLAIM OR SETOFF
WHICH THE BORROWER MAY NOW HAVE OR HEREAFTER MAY HAVE TO ANY ACTION
BY THE LENDER IN ENFORCING THIS NOTE OR ANY OF THE LOAN DOCUMENTS. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER GRANTING ANY FINANCIAL
ACCOMMODATION TO THE BORROWER.


 


14.       Customer Identification
- USA Patriot Act Notice; OFAC and Bank Secrecy Act. The Lender hereby notifies
the Borrower that pursuant to the requirements of the USA Patriot Act (Title
III of Pub. L. 107-56, signed into law October 26, 2001) (the “Act”),
and the Lender’s policies and practices, the Lender is required to obtain,
verify and record certain information and documentation that identifies the
Borrower, which information includes the name and address of the Borrower and
such other information that will allow the Lender to identify the Borrower in
accordance with the Act. In addition, the Borrower shall (a) ensure that
no person who owns a controlling interest in or otherwise controls the Borrower
or any subsidiary of the Borrower is or shall be listed on the Specially
Designated Nationals and Blocked Person List or other similar lists maintained
by the Office of Foreign Assets Control (“OFAC”). the Department of the
Treasury or included in any Executive Orders, (b) not use or permit the
use of the proceeds of the Loan to violate any of the foreign asset control
regulations of OFAC or any enabling statute or Executive Order relating
thereto, and (c) comply, and cause any of its subsidiaries to comply, with
all applicable Bank Secrecy Act (“BSA”) laws and regulations, as
amended.


 


15.       EXPENSES AND
INDEMNIFICATION. The Borrower shall pay all costs and expenses incurred by
the Lender in connection with the preparation of this Note and the Loan
Documents, including, without limitation, reasonable attorneys’ fees and time
charges of attorneys who may be employees of the Lender or any affiliate or
parent corporation of the Lender. The Borrower shall pay any and all stamp and
other taxes, UCC search fees, filing fees and other costs and expenses in
connection with the execution and delivery of this Note and the other
instruments and documents to be delivered hereunder, and agrees to save the
Lender harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such costs and expenses.
The Borrower hereby authorizes the Bank to charge any account of the Borrower
with the Bank for all sums due under this section. The Borrower also agrees to
defend (with counsel satisfactory to the Lender), protect, indemnify and hold
harmless the Lender, any parent corporation, affiliated corporation or
subsidiary of the Lender, and each of their respective officers, directors,
employees, attorneys and agents (each, an “Indemnified Party”) from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses and distributions of any
kind or nature (including, without limitation, the disbursements and the
reasonable fees of counsel for each Indemnified Party thereto, which shall also
include, without limitation, reasonable attorneys’ fees and time charges of
attorneys who may be employees of the Lender or any parent or affiliated
corporation of the Lender), which may be imposed on, incurred by, or asserted
against, any Indemnified Party (whether direct, indirect or consequential and
whether based on any federal, state or local laws or regulations, including,
without limitation, securities, environmental laws and commercial laws and
regulations, under common law or in equity, or


 


11

















 


based on contract or
otherwise) in any manner relating to or arising out of this Note or any of the
Loan Documents, or any act, event or transaction related or attendant thereto,
the preparation, execution and delivery of this Note and the Loan Documents,
the making or issuance and management of the Loan, the use or intended use of
the proceeds of the Loan and the enforcement of the Lender’s rights and
remedies under this Note, the Loan Documents, any other instruments and
documents delivered hereunder or thereunder, or under any other agreement
between the Borrower and the Lender; provided, however, that the Borrower shall
not have any obligation hereunder to any Indemnified Party with respect to
matters caused by or resulting from the willful misconduct or gross negligence
of such Indemnified Party. To the extent that the undertaking to indemnify set
forth in the preceding sentence may be unenforceable because it violates any
law or public policy, the Borrower shall satisfy such undertaking to the
maximum extent permitted by applicable law. Any liability, obligation, loss,
damage, penalty, cost or expense covered by this indemnity shall be paid to
such Indemnified Party on demand, and failing prompt payment, together with
interest thereon at the Default Rate from the date incurred by such Indemnified
Party until paid by the Borrower, shall be added to the obligations of the
Borrower evidenced by this Note and secured by the collateral securing this
Note. This indemnity is not intended to excuse the Lender from performing
hereunder. The provisions of this section shall survive the closing of the
Loan, the satisfaction and payment of this Note and any cancellation of the
Loan Documents. The Borrower shall also pay, and hold the Lender harmless from,
any and all claims of any brokers, finders or agents claiming a right to any
fees in connection with arranging the Loan. The Lender hereby represents that
it has not employed a broker or other finder in connection with the Loan. The
Borrower represents and warrants that no brokerage commissions or finder’s fees
are to be paid in connection with the Loan.


 


12

















 


IN WITNESS
WHEREOF, the Borrower has executed and delivered this Promissory Note as of the
day and year first above written.


 


	
   

  	
   

  	
  INLAND
  AMERICAN ST PORTFOLIO, L.L.C., a 

  
	
   

  	
   

  	
  Delaware limited
  liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Inland American Real
  Estate Trust, Inc.,

  
	
   

  	
   

  	
   

  	
  a Maryland corporation,
  its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Mary J. Pechous

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Mary
  J. Pechous

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Assistant
  Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  INLAND
  AMERICAN ST FLORIDA PORTFOLIO,

  
	
   

  	
   

  	
  L.L.C.,
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Inland American Real
  Estate Trust, Inc.,

  
	
   

  	
   

  	
   

  	
  a Maryland corporation,
  its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Mary J. Pechous

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Mary
  J. Pechous

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Assistant
  Secretary

  
								



 


Note