Exhibit 10.163


 


CONTRIBUTION
AGREEMENT


 


THIS
CONTRIBUTION AGREEMENT is made and entered into as of the 10th
day of December, 2007 by and between Inland American ST Portfolio, L.L.C., a
Delaware limited liability company (“ST”)
and Inland American ST Florida Portfolio, L.L.C., a Delaware limited liability
company (“ST Florida”) and
collectively together with their successors and assigns, are hereinafter
referred to as are hereinafter sometimes individually referred to as a “Contributor”, and collectively, the “Contributors”).


 


WITNESSETH:


 


WHEREAS,
LaSalle Bank National Association, (the “Lender”)
is concurrently herewith making a certain loan to the Contributors in the
original aggregate principal amount of TWO HUNDRED EIGHTY ONE MILLION ONE
HUNDRED SIXTY EIGHT THOUSAND FORTY SIX AND NO/100 DOLLARS ($281,168,046) (the “Loan”). The Loan is being made pursuant to
that certain Loan and Security Agreement of even date herewith by and among
Contributors and Lender (the “Loan Agreement”).
Unless otherwise defined herein, all capitalized terms used herein shall have
the meanings indicated in the Loan Agreement. The Loan is evidenced and/or
secured by the Loan Documents, which include, but are not limited to, the Loan
Agreement, the Note, and the Mortgage.


 


WHEREAS,
each Contributor will receive direct and indirect benefits from the
availability of the Loan, and from the ability to access the collective credit
resources of Contributors; and


 


WHEREAS,
the Contributors desire to allocate certain direct benefits they will obtain
under the Loan and the Loan Documents for purposes of providing a fair and
equitable arrangement to make contributions when payments are made by any
Contributor (a “Funding Contributor”)
in an amount disproportionate to direct benefits obtained by such Funding
Contributor, as further described herein.


 


NOW,
THEREFORE, in consideration of the premises and the covenants
hereinafter contained, and to induce each Contributor to enter into the Loan
Documents, it is agreed as follows.


 


1.         Allocated Loan Amount. For purposes of
this Contribution Agreement, the “Allocated Loan Amount” of any Contributor as
of any date of determination shall be the amount of loan proceeds benefiting
each Contributor as reflected in Exhibit A attached hereto. Each
Contributor hereby represents, warrants, and certifies to the other Contributor
and Lender that it believes, as of the date hereof, the Allocated Loan Amounts
are true and correct and accurately reflect value to such Contributor which was
in the case of each Contributor applied to acquire properties for such
Contributor or for other corporate or company purposes.


 


2.         Contribution. Each Contributor shall be
liable to repay when due its Pro Rata Share (as hereinafter defined) of all
sums due under the Loan Documents (such sums, the “Loan


 

















 


Obligations”).
In the event any Funding Contributor shall pay more than its Pro Rata Share of
any Loan Obligations, then the Funding Contributor shall be entitled to
contribution from, and be reimbursed on demand (subject to Section 4
below) by, the other Contributor for the amount of such excess payment (an “Excess Payment”), in the manner and to the
extent set forth in this Contribution Agreement. As used herein, “Pro Rata Share” shall equal the ratio of (a) the
Allocated Loan Amount for a Contributor to (b) the outstanding principal
balance of the Loan. In the event an Excess Payment is made by a Funding
Contributor with respect to the payment of a Loan Obligation, the Contributor
who has not paid its Pro Rata Share of such payment shall be obligated to do so
on demand (subject to Section 4 below) and the resulting
contribution (a “Contribution Payment”)
shall be allocated to the Funding Contributor so that the aggregate of all
Contribution Payments shall be sufficient to repay the Funding Contributor the
amount of its Excess Payment. Any amount payable as contribution under this
Contribution Agreement shall be determined as of the date on which the related
payment or distribution is made by a Funding Contributor.


 


3.         Preservation of Rights. This
Contribution Agreement shall not limit any right which any Contributor may have
against any other person which is not a party hereto.


 


4.         No Impairment: Subordination. This
Contribution Agreement is intended only to define the relative rights of the
Contributors, and nothing set forth in this Contribution Agreement is intended
to or shall impair the obligations of the Contributors, jointly or severally,
to pay to the Lender the Loan Obligations as and when the same shall become due
and payable in accordance with the terms of the Loan Documents. Until such time
as the Loan Obligations are discharged in accordance with the terms and
provisions of the Loan Agreement and the other Loan Documents, any and all
rights of contribution and reimbursement hereunder or provided by law shall be
subordinate to the Loan, and the Funding Contributor shall not enforce any such
rights until such Loan shall have been finally paid in full.


 


5.         Equitable Allocation. If, as a result
of any reorganization, recapitalization or other organizational change in any
of the Contributors, or as a result of any amendment, waiver or modification of
the terms and conditions governing the Loan Obligations, or for any other
reason, the contributions under this Contribution Agreement becomes
inequitable, prior to the full repayment of the Loan the parties hereto shall,
after first obtaining Lender’s written consent thereto, promptly modify and
amend this Contribution Agreement to provide for an equitable allocation of
contributions. Any of the foregoing modifications and amendments shall be in
writing and signed by all parties hereto and acknowledged by Lender.


 


6.         Asset of Party to Which Contribution is Owing.
Each of the parties hereto acknowledges that the right to contribution hereunder
shall constitute an asset in favor of the Contributor to which such
contribution is owing.


 


7.         Choice of Law. This Contribution
Agreement and the rights, obligations and liabilities of the parties hereto
shall be governed by, and construed, determined and enforced in accordance
with, the laws of the State of Illinois.


 


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8.         Termination. This Contribution
Agreement shall not be modified or amended without the prior written consent of
the Lender, shall remain in effect, and shall not be terminated until the full
and final indefeasible payment of all of the Loan Obligations, including,
without limitation, full and final termination of all commitments by the Lender
to extend financial accommodations to the Contributors pursuant to the Loan
Documents.


 


9.         Third Party Beneficiary. The Lender is
an intended third party beneficiary of this Contribution Agreement.


 


10.       Counterparts. This Contribution
Agreement may be executed in as many counterparts as may be deemed necessary or
convenient and by the different parties hereto or separate counterparts, and
each of which when so executed, shall be deemed to be an original for all
purposes, but all such counterparts shall constitute but one and the same
instrument.


 


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signature page to follow]


 


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IN
WITNESS WHEREOF, each of the Contributors has executed and
delivered this Contribution Agreement as of the date first above written.


 


	
   

  	
  CONTRIBUTORS:

  
	
   

  	
   

  
	
   

  	
  Inland American ST
  Portfolio, L.L.C., a Delaware

  limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Inland American Real
  Estate Trust, Inc., it sole

  member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Marcia L. Grant

  	
   

  
	
   

  	
   

  	
  Its:

  	
  Marcia L. Grant

  	
   

  
	
   

  	
   

  	
   

  	
  Assistant Secretary

  	
   

  
	
   

  	
   

  
	
   

  	
  Inland American ST
  Florida Portfolio, L.L.C., a

  Delaware limited Liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Inland American Real
  Estate Trust, Inc., it sole

  member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Marcia L. Grant

  	
   

  
	
   

  	
   

  	
  Its:

  	
  Marcia L. Grant

  	
   

  
	
   

  	
   

  	
   

  	
  Assistant Secretary

  	
   

  



 

















 


EXHIBIT A


 


	
  Contributor

  	
   

  	
  Allocated Loan Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ST

  	
   

  	
  $

  	
  168,227,022

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ST FLORIDA

  	
   

  	
  $

  	
  112,941,024