Exhibit 10.164


 


GUARANTY OF
PAYMENT


 


This GUARANTY OF PAYMENT dated as of December 10,
2007 (this “Guaranty”), is executed by INLAND
AMERICAN REAL ESTATE TRUST, INC., a Maryland corporation (the “Guarantor”),
to and for the benefit of LASALLE BANK
NATIONAL ASSOCIATION, a national banking association (the “Lender”).


 


RECITALS:


 


A.        The Lender has agreed to
loan the principal amount of Two Hundred Eighty One Million, One Hundred Sixty
Eight Thousand Forty-Six and 00/100 Dollars ($281,168,046) (the “Loan”)
to Inland American ST Portfolio, L.L.C. and to Inland American ST Florida
Portfolio, L.L.C., each a Delaware limited liability company (together, the “Borrower”)
pursuant to the terms and conditions of that certain Loan and Security
Agreement dated as of even date herewith (the “Loan Agreement”). All
terms not otherwise defined herein shall have the meanings set forth in the
Loan Agreement between the Borrower and the Lender.


 


B.        As a condition precedent to the Lender’s
extension of the Loan to the Borrower and in consideration therefor, the Lender
has required the execution and delivery of (i) this Guaranty by the
Guarantor, (ii) that certain Promissory Note dated even date herewith,
executed by the Borrower and made payable to the order of the Lender (the “Note”),
evidencing the Loan, (iii) various Mortgages, Security Agreement,
Assignment of Leases and Rents and Fixture Filing, Deeds of Trust, Security
Agreement, Assignment of Leases and Rents and Fixture Filing and Deeds to
Secure Debt, Security Agreement, Assignment of Leases and Rents and Fixture
Filing, each dated as of even date herewith, executed by a Borrower to and for
the benefit of the Lender (collectively the “Mortgage”) encumbering the
real property, improvements and personalty described therein (the “Premises”),
and (iv) the other Loan Documents (as defined in the Loan Agreement).


 


C.        The Guarantor is the sole member of the
Borrower and, having a financial interest in the Premises, has agreed to
execute and deliver this Guaranty to the Lender.


 


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


 


AGREEMENTS:


 


1.         Guaranty of Payment.  The Guarantor hereby unconditionally,
absolutely and irrevocably guaranties to the Lender the punctual payment and
performance when due, whether at stated maturity or by acceleration or
otherwise, of the indebtedness and other obligations of the Borrower to the
Lender evidenced by the Note and any other amounts that may become owing by the
Borrower under the Loan Documents (such indebtedness, obligations and other
amounts are hereinafter referred to as “Payment Obligations”). This
Guaranty is a present and continuing guaranty of payment and not of
collectability, and the Lender shall not be required to prosecute collection,
enforcement or other remedies against the Borrower or any other guarantor of
the Payment Obligations, or to enforce or resort to any collateral for the
repayment of the Payment Obligations or other rights or remedies pertaining
thereto, before calling on the Guarantor for payment. If for any reason the
Borrower shall fail or be unable to pay, punctually


 

















 


and fully, any of the
Payment Obligations, the Guarantor shall pay such obligations to the Lender in
full immediately upon demand. One or more successive actions may be brought
against the Guarantor, as often as the Lender deems advisable, until all of the
Payment Obligations are paid and performed in full. The Payment Obligations,
together with all other payment and performance obligations of the Guarantor
hereunder, are referred to herein as the “Obligations”. Capitalized
terms used but not defined herein shall the same meanings given them in the
Loan Agreement.


 


2.       Representations and
Warranties.  The following shall
constitute representations and warranties of the Guarantor, and the Guarantor
hereby acknowledges that the Lender intends to make the Loan in reliance
thereon:


 


(a)       The Guarantor is not in default, and no
event has occurred which, with the passage of time and/or the giving of notice,
would constitute a default, under any agreement to which the Guarantor is a
party, the effect of which could materially adversely impair performance by the
Guarantor of its obligations under this Guaranty. Neither the execution and
delivery of this Guaranty nor compliance with the terms and provisions hereof
will violate any applicable law, rule, regulation, judgment, decree or order,
or will conflict with or result in any breach of any of the terms, covenants,
conditions or provisions of any indenture, mortgage, deed of trust, instrument,
document, agreement or contract of any kind that creates, represents, evidences
or provides for any lien, charge or encumbrance upon any of the property or
assets of the Guarantor, or any other indenture, mortgage, deed of trust,
instrument, document, agreement or contract of any kind to which the Guarantor
is a party or to which the Guarantor or the property of the Guarantor may be
subject.


 


(b)       There are no litigation, arbitration,
governmental or administrative proceedings, actions, examinations, claims or
demands pending, or to the knowledge of the Guarantor, threatened that could
adversely affect performance by the Guarantor of its obligations under this
Guaranty.


 


(c)       Neither this Guaranty nor any statement
or certification as to facts previously furnished or required herein to be
furnished to the Lender by the Guarantor, contains any material inaccuracy or
untruth in any representation, covenant or warranty or omits to state a fact
material to this Guaranty.


 


(d)       Guarantor has the full corporate power
and authority to execute and deliver this Guaranty and to perform its
obligations hereunder; the execution, delivery and performance of this Guaranty
by Guarantor has been duly and validly authorized; and all requisite corporate
action has been taken by Guarantor to make this Guaranty valid and binding upon
Guarantor, enforceable in accordance with its terms.


 


(e)       No approval, authorization, order,
license or consent of, or registration or filing with, any governmental
authority or other person, and no approval, authorization or consent of any
other party is required in connection with this Guaranty.


 


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(f)        This Guaranty constitutes a valid, legal
and binding obligation of Guarantor, enforceable against it in accordance with
the terms hereof subject to bankruptcy, insolvency and similar laws affecting
the enforceability of creditors’ rights generally and to general principals of
equity.


 


(g)       Guarantor has filed all federal state,
county, municipal, and city income and other tax returns required to have been
filed by it and has paid all taxes and related liabilities which have become
due pursuant to such returns or pursuant to any assessments received by it;
Guarantor does not know of any basis for any additional assessment in respect
of any such taxes and related liabilities for prior years.


 


3.       Covenants.  As of the last day of each fiscal quarter, of
Guarantor (i.e., March 31. June 30, and September 30), (i) the
ratio of EBIDTA to Fixed Charges shall not be less than 1.5 to 1, and (ii) the
Consolidated Net Worth of Guarantor shall not be less than $3,000,000,000 plus
75% of the equity contributions or sales of treasury stock received by
Guarantor after September 30, 2007, with Consolidated Net Worth not being
increased by the value of the adviser or any property management companies that
may be acquired in exchange for the issuance of the stock of Guarantor. As used
herein, the following terms shall be defined as follows:


 


“Capitalized
Lease Obligations” shall mean all rental obligations of a Person, as lessee
under a Capital Lease which are or will be required to be capitalized on the
books of such Person.


 


“Consolidated
Net Income” shall mean, with respect to Guarantor and its subsidiaries for
any period, the consolidated net income (or loss) of the Guarantor and its
subsidiaries for such period as determined in accordance with GAAP, excluding
any extraordinary gains and any gains from discontinued operations.


 


“Consolidated
Net Worth” shall mean at any time the total of Tangible Assets minus
Liabilities.


 


“Depreciation”
shall mean the total amounts added to depreciation, amortization, obsolescence,
valuation and other proper reserves, as reflected on the Guarantor’s financial
statements and determined in accordance with GAAP.


 


“EBITDA”
shall mean, for any period, (a) the sum for such period of: (i) Consolidated
Net Income, plus (ii) Interest Charges, plus (iii) federal and state
income taxes (including the Illinois replacement tax), plus (iv) Depreciation,
plus (v) non-cash management compensation expense, plus (vi) all
other non-cash charges, minus (b) [unless
financials/covenants are calculated on a consolidated basis] income
or loss attributable to equity in any Affiliate or subsidiary), in each case to
the extent included in determining Net Income for such period.


 


“Fixed
Charges” means the sum for such fiscal quarter of (i) Interest Charges
plus (ii) required payments of principal of all indebtedness of
Guarantor, and plus (iii) all required distributions and dividends on any
preferred stock of Guarantor.


 


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“Interest
Charges” shall mean, for any period, the sum of: (a) all interest,
charges and related expenses payable with respect to that fiscal period to a
lender in connection with borrowed money or the deferred purchase price of
assets that are treated as interest in accordance with GAAP, plus (b) the
portion of Capitalized Lease Obligations with respect to that fiscal period
that should be treated as interest in accordance with GAAP.


 


“Liabilities”
shall mean at all times all liabilities of Guarantor that would be shown as
such on a balance sheet of Guarantor prepared in accordance with GAAP.


 


“Tangible
Assets” shall mean the total of all assets appearing on a balance sheet of
Guarantor prepared in accordance with GAAP, after deducting all proper reserves
(including reserves for Depreciation) minus the sum of (i) goodwill, patents,
trademarks, prepaid expenses, deposits, deferred charges and other personal
property which is classified as intangible property in accordance with GAAP,
and (ii) any amounts due from shareholders, Affiliates, officers or
employees of Guarantors.


 


4.       Continuing Guaranty.
 The Guarantor agrees that performance of
the Obligations by the Guarantor shall be a primary obligation, shall not be
subject to any counterclaim, set-off, abatement, deferment or defense based
upon any claim that the Guarantor may have against the Lender, the Borrower,
any other guarantor of the Obligations or any other person or entity, and shall
remain in full force and effect without regard to, and shall not be released,
discharged or affected in any way by, any circumstance or condition (whether or
not the Guarantor shall have any knowledge thereof), including without
limitation:


 


(a)       any lack of validity or enforceability of
any of the Loan Documents;


 


(b)       any termination, amendment, modification
or other change in any of the Loan Documents, including, without limitation,
any modification of the interest rate(s) described therein;


 


(c)       any furnishing, exchange, substitution or
release of any collateral securing repayment of the Loan, or any failure to
perfect any lien in such collateral;


 


(d)       any failure, omission or delay on the
part of the Borrower, the Guarantor, any other guarantor of the Obligations or
the Lender to conform or comply with any term of any of the Loan Documents or
any failure of the Lender to give notice of any Event of Default (as defined in
the Loan Agreement);


 


(e)       any waiver, compromise, release,
settlement or extension of time of payment or performance or observance of any
of the obligations or agreements contained in any of the Loan Documents;


 


(f)        any action or inaction by the Lender
under or in respect of any of the Loan Documents, any failure, lack of
diligence, omission or delay on the part of the Lender to perfect, enforce,
assert or exercise any lien, security interest, right, power or remedy


 


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conferred on it in any of
the Loan Documents, or any other action or inaction on the part of the Lender;


 


(g)       any voluntary or involuntary bankruptcy,
insolvency, reorganization, arrangement, readjustment, assignment for the
benefit of creditors, composition, receivership, liquidation, marshalling of
assets and liabilities or similar events or proceedings with respect to the
Borrower, the Guarantor or any other guarantor of the Obligations, as
applicable, or any of their respective property or creditors, or any action
taken by any trustee or receiver or by any court in any such proceeding;


 


(h)       any merger or consolidation of the
Borrower into or with any entity, or any sale, lease or transfer of any of the
assets of the Borrower, the Guarantor or any other guarantor of the Obligations
to any other person or entity;


 


(i)        any change in the ownership of the
Borrower or any change in the relationship between the Borrower, the Guarantor
or any other guarantor of the Obligations, or any termination of any such
relationship;


 


(j)        any release or discharge by operation of
law of the Borrower, the Guarantor or any other guarantor of the Obligations
from any obligation or agreement contained in any of the Loan Documents; or


 


(k)       any other occurrence, circumstance,
happening or event, whether similar or dissimilar to the foregoing and whether
foreseen or unforeseen, which otherwise might constitute a legal or equitable
defense or discharge of the liabilities of a guarantor or surety or which
otherwise might limit recourse against the Borrower or the Guarantor to the
fullest extent permitted by law.


 


5.       Waivers.  The Guarantor expressly and unconditionally
waives (i) notice of any of the matters referred to in Section 4
above, (ii) all notices which may be required by statute, rule of law
or otherwise, now or hereafter in effect, to preserve intact any rights against
the Guarantor, including, without limitation, any demand, presentment and
protest, proof of notice of non-payment under any of the Loan Documents and
notice of any Event of Default or any failure on the part of the Borrower, the
Guarantor or any other guarantor of the Obligations to perform or comply with
any covenant, agreement, term or condition of any of the Loan Documents, (iii) any
right to the enforcement, assertion or exercise against the Borrower, the
Guarantor or any other guarantor of the Obligations of any right or remedy
conferred under any of the Loan Documents, (iv) any requirement of
diligence on the part of any person or entity, (v) any requirement on the
part of the Lender to exhaust any remedies or to mitigate the damages resulting
from any default under any of the Loan Documents, and (vi) any notice of
any sale, transfer or other disposition of any right, title or interest of the
Lender under any of the Loan Documents.


 


6.       Subordination.  The Guarantor agrees that any and all present
and future debts and obligations of the Borrower to the Guarantor are hereby
subordinated to the claims of the Lender and are hereby assigned by the
Guarantor to the Lender as security for the Obligations and the obligations of
the Guarantor under this Guaranty.


 


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7.         Subrogation Waiver.  Until the Obligations are paid in fall and all
periods under applicable bankruptcy law for the contest of any payment by the
Guarantor or the Borrower as a preferential or fraudulent payment have expired,
the Guarantor knowingly, and with advice of counsel, waives, relinquishes,
releases and abandons all rights and claims to indemnification, contribution,
reimbursement, subrogation and payment which the Guarantor may now or hereafter
have by and from the Borrower and the successors and assigns of the Borrower,
for any payments made by the Guarantor to the Lender, including, without
limitation, any rights which might allow the Borrower, the Borrower’s
successors, a creditor of the Borrower, or a trustee in bankruptcy of the
Borrower to claim in bankruptcy or any other similar proceedings that any payment
made by the Borrower or the Borrower’s successors and assigns to the Lender was
on behalf of or for the benefit of the Guarantor and that such payment is
recoverable by the Borrower, a creditor or trustee in bankruptcy of the
Borrower as a preferential payment, fraudulent conveyance, payment of an
insider or any other classification of payment which may otherwise be
recoverable from the Lender.


 


8.         Reinstatement.  The obligations of the Guarantor pursuant to
this Guaranty shall continue to be effective or automatically be reinstated, as
the case may be, if at any time payment of any of the Obligations or the
obligations of the Guarantor under this Guaranty is rescinded or otherwise must
be restored or returned by the Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Guarantor or the Borrower or
otherwise, all as though such payment had not been made.


 


9.         Financial Statements.  The Guarantor represents and warrants to the
Lender that (a) the financial statements of the Guarantor previously
submitted to the Lender are true, complete and correct in all material
respects, disclose all actual and contingent liabilities, and fairly present
the financial condition of the Guarantor, and do not contain any untrue
statement of a material fact or omit to state a fact material to the financial
statements submitted or this Guaranty, and (b) no material adverse change
has occurred in the financial statements from the dates thereof until the date
hereof. The Guarantor covenants and agrees to furnish to the Lender or its
authorized representatives information regarding the business affairs,
operations and financial condition of the Guarantor, including, but not limited
to, (i) promptly when available, and in any event, within one hundred
twenty (120) days after the close of each of its fiscal years, a copy of the
annual audited financial statements of the Guarantor, including balance sheet,
statement of income and retained earnings, statement of cash flows for the
fiscal year then ended and such other information (including nonfinancial
information) as the Lender may reasonably request, in reasonable detail,
prepared and certified without adverse reference to going concern value and
without qualification by an independent auditor of recognized standing,
selected by the Guarantor and reasonably acceptable to the Lender; and (ii) promptly
when available, and in any event, within forty five (45) days following the end
of each fiscal quarter, a copy of the financial statements of the Guarantor
regarding such fiscal quarter, including balance sheet, statement of income and
retained earnings, statement of cash flows for the fiscal quarter then ended
and such other information (including nonfinancial information) as the Lender
may reasonably request, in reasonable detail, prepared and certified as true
and correct by the Guarantor’s treasurer or chief financial officer.


 


Guarantor shall,
contemporaneously with the furnishing of the financial statements pursuant to Section 9,
deliver to the Lender a duly completed compliance certificate (a “Compliance


 


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Certificate”), dated the
date of such financial statements and certified as true and correct by an
appropriate officer of the Guarantor, containing a computation of each of the
financial covenants set forth in Section 3.


 


Guarantor represents and
warrants to Lender that (i) the Guarantor shall at all times maintain a
standard and modern system of accounting, on the accrual basis of accounting
and in all respects in accordance with GAAP, (ii) no change with respect
to such accounting principles shall be made by Guarantor without giving prior
notification to Lender, (iii) the financial statements of the Guarantor
delivered to Lender at or prior to the execution and delivery of this Agreement
and to be delivered at all times thereafter accurately reflect and will fairly
and accurately reflect the financial condition of the Guarantor, (iv) Lender
shall have the right at all times during business hours to inspect the books
and records of the Guarantor and make extracts therefrom, and (v) Guarantor
agrees to advise Lender immediately of any development, condition or event that
may have a Material Adverse Effect on the Guarantor.


 


10.       Transfers; Sales, Etc.  The Guarantor shall not sell, lease, transfer,
convey or assign any of its assets, unless such sale, lease, transfer,
conveyance or assignment will not have a material adverse effect on the
business or financial condition of the Guarantor or its ability to perform its
obligations hereunder. In addition, the Guarantor shall neither become a party
to any merger or consolidation, nor, except in the ordinary course of its
business consistent with past practices, acquire all or substantially all of
the assets of, a controlling interest in the stock of, or a partnership or
joint venture interest in, any other entity.


 


11.       Enforcement Costs.  If: (a) this Guaranty, is placed in the
hands of one or more attorneys for collection or is collected through any legal
proceeding; (b) one or more attorneys is retained to represent the Lender
in any bankruptcy, reorganization, receivership or other proceedings affecting
creditors’ rights and involving a claim under this Guaranty, or (c) one or
more attorneys is retained to represent the Lender in any other proceedings
whatsoever in connection with this Guaranty, then the Guarantor shall pay to
the Lender upon demand all fees, costs and expenses incurred by the Lender in
connection therewith, including, without limitation, reasonable attorney’s
fees, court costs and filing fees (all of which are referred to herein as the “Enforcement
Costs”), in addition to all other amounts due hereunder.


 


12.       Successors and Assigns; Joint and
Several Liability.  This Guaranty
shall inure to the benefit of the Lender and its successors and assigns. This
Guaranty shall be binding on the Guarantor and the heirs, legatees, successors
and assigns of the Guarantor. It is agreed that the liability of the Guarantor
hereunder is several and independent of any other guarantees or other
obligations at any time in effect with respect to the Obligations or any part
thereof and that the liability of the Guarantor hereunder may be enforced
regardless of the existence, validity, enforcement or non-enforcement of any
such other guarantees or other obligations.


 


13.       No Waiver of Rights.  No delay or failure on the part of the Lender
to exercise any right, power or privilege under this Guaranty or any of the
other Loan Documents shall operate as a waiver thereof, and no single or
partial exercise of any right, power or privilege shall preclude any other or
further exercise thereof or the exercise of any other power or right, or be
deemed to establish a custom or course of dealing or performance between the
parties hereto. The rights and remedies herein provided are cumulative and not
exclusive of any rights or


 


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remedies provided by law.
No notice to or demand on the Guarantor in any case shall entitle the Guarantor
to any other or further notice or demand in the same, similar or other
circumstance.


 


14.       Modification.  The terms of this Guaranty may be waived,
discharged, or terminated only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought. No amendment, modification, waiver or other change of any of the terms
of this Guaranty shall be effective without the prior written consent of the
Lender.


 


15.       Joinder.  Any action to enforce this Guaranty may be
brought against the Guarantor without any reimbursement or joinder of the
Borrower or any other guarantor of the Obligations in such action.


 


16.       Severability.  If any provision of this Guaranty 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
Guarantor 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 Guaranty 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.


 


17.       Applicable Law.  This Guaranty is governed as to validity,
interpretation, effect and in all other respects by laws and decisions of the
State of Illinois.


 


18.       Notices.  All notices, communications and waivers under
this Guaranty shall be in writing and shall be (a) delivered in person, (b) mailed,
postage prepaid, either by registered or certified mail, return receipt
requested, or (c) sent by overnight express carrier, addressed in each
case as follows:


 


	
  To
  the Lender:

  	
  LaSalle Bank National Association

  135 South La Salle Street

  Chicago, Illinois 60603

  Attn: National Institutional Real Estate

  (REIT 1 Division)

  
	
   

  	
   

  
	
  With
  a copy to:

  	
  Katten Muchin Rosenman LLP

  525 West Monroe Street

  Chicago, Illinois 60661

  Attn: Marcia W. Sullivan, Esq.

  
	
   

  	
   

  
	
  To
  the Guarantor:

  	
  Inland American Real Estate Trust, Inc.

  2901 Butterfield Road

  Oakbrook, IL 60523

  Attn: Chief Financial Officer

  



 


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  With
  a copy to:

  	
  Inland American Real Estate Trust, Inc. 

  2901 Butterfield Road

  Oakbrook, IL 60523

  Attn: Chief Financial Officer

  



 


or to any other address
as to any of the parties hereto, as such party shall designate in a written
notice to the other parties hereto. All notices sent pursuant to the terms of
this Section shall be deemed received (i) if personally delivered,
then on the date of delivery, (ii) if sent by overnight, express carrier,
then on the next federal banking day immediately following the day sent, or (iii) if
sent by registered or certified mail, then on the earlier of the third federal
banking day following the day sent or when actually received.


 


19.       CONSENT TO JURISDICTION.  TO INDUCE THE LENDER TO ACCEPT THIS GUARANTY,
THE GUARANTOR 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 GUARANTY WILL BE LITIGATED IN COURTS HAVING SITUS IN CHICAGO,
ILLINOIS. THE GUARANTOR HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY
COURT LOCATED WITHIN CHICAGO, ILLINOIS, WAIVES PERSONAL SERVICE OF PROCESS AND
AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL
DIRECTED TO THE GUARANTOR AT THE ADDRESS STATED HEREIN AND SERVICE SO MADE WILL
BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT.


 


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


 


21.       WAIVER OF JURY TRIAL.  THE GUARANTOR AND THE LENDER (BY ACCEPTANCE
HEREOF), 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 UNDER THIS GUARANTY OR UNDER ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH AND AGREES THAT ANY SUCH ACTION OR PROCEEDING WILL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY. THE GUARANTOR AGREES THAT THE GUARANTOR
WILL NOT ASSERT ANY CLAIM AGAINST THE LENDER ON ANY THEORY OF LIABILITY FOR
SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.


 


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22.       Facsimile Signatures.  Receipt of an executed signature page to
this Guaranty by facsimile or other electronic transmission shall constitute
effective delivery thereof.


 


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IN WITNESS
WHEREOF, the Guarantor has executed this Guaranty of Payment as of the date
first above written.


 


 


	
   

  	
  INLAND
  AMERICAN REAL ESTATE

  TRUST, INC., a Maryland corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mary J. Pechous

  
	
   

  	
  Name:

  	
  Mary J. Pechous

  
	
   

  	
  Title:

  	
  Assistant Secretary