Exhibit 10.161


 


LOAN AND SECURITY AGREEMENT


 


This LOAN AND
SECURITY AGREEMENT dated as of December 10, 2007 (the “Agreement”), is
executed by and between INLAND AMERICAN ST PORTFOLIO, L.L.C., a Delaware
limited liability company (“Inland ST”) and INLAND AMERICAN ST FLORIDA
PORTFOLIO, L.L.C., a Delaware limited liability company (“Inland FL”; Inland ST
and Inland FL are each a “Borrower” and together the “Borrowers”), which have
their chief executive office located at 2901 Butterfield Road, Oakbrook,
Illinois 60523, and LASALLE BANK NATIONAL ASSOCIATION, a national banking
association (the “Bank”), whose address is 135 South La Salle Street, Chicago,
Illinois 60603.


 


R  E  C
I  T  A  L  S:


 


A.       Borrowers desire to borrow
funds from the Bank to pay a portion of the purchase price under the Purchase
Contract (hereinafter defined).


 


B.        Pursuant to Borrowers’
request, the Bank is willing to extend such financial accommodations to
Borrowers under the terms and conditions set forth herein.


 


NOW THEREFORE, in
consideration of the premises, and the mutual covenants and agreements set
forth herein, Borrowers agree to borrow from the Bank, and the Bank agrees to
lend to Borrowers, subject to and upon the following terms and conditions:


 


A  G  R  E
E  M  E  N  T  S:


 


Section 1.      DEFINITIONS.


 


1.1       Defined Terms. For
the purposes of this Agreement, the following capitalized words and phrases
shall have the meanings set forth below.


 


“Affiliate”
of any Person shall mean (a) any other Person which, directly or
indirectly, controls or is controlled by or is under common control with such
Person, (b) any officer or director of such Person, and (c) with
respect to the Bank, any entity administered or managed by the Bank, or an
Affiliate or investment advisor thereof and which is engaged in making,
purchasing, holding or otherwise investing in commercial loans. A Person shall
be deemed to be “controlled by” any other Person if such Person possesses,
directly or indirectly, power to direct or cause the direction of the
management and policies of such Person whether by contract, ownership of voting
securities, membership interests or otherwise.


 


“Allocated Loan
Amount” shall mean, with respect to each Individual Property, the amount
set forth with respect to such Individual Property on Schedule I.


 


“Asset
Disposition” shall mean the receipt by Borrowers of insurance proceeds or
condemnation proceeds resulting from destruction or damage of or taking of any
Collateral other than any Collateral which is restored or replaced in
accordance with the terms of this Agreement.


 

















 


“Assignment of
Rents” shall mean assignments of rents and leases, each executed by a
Borrower, as the same be amended, restated, replaced, supplemented or otherwise
modified from time to time.


 


“Bankruptcy
Code” shall mean the United States Bankruptcy Code, as now existing or
hereafter amended.


 


“Business Day”
shall mean 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.


 


“Capital Lease”
shall mean, as to any Person, a lease of any interest in any kind of property
or asset, whether real, personal or mixed, or tangible or intangible, by such
Person, as lessee, that is, or should be, in accordance with Financial
Accounting Standards Board Statement No. 13, as amended from time to time,
or, if such statement is not then in effect, such statement of GAAP as may be
applicable, recorded as a “capital lease” on the financial statements of such
Person prepared in accordance with GAAP.


 


“Capital
Securities” shall mean, with respect to any Person, all shares, interests,
participations or other equivalents (however designated, whether voting or
non-voting) of such Person’s capital, whether now outstanding or issued or acquired
after the date hereof, including common shares, preferred shares, membership
interests in a limited liability company, limited or general partnership
interests in a partnership or any other equivalent of such ownership interest.


 


“Cash
Equivalent Investment” shall mean, at any time, (a) any evidence of
Debt, maturing not more than one year after such time, issued or guaranteed by
the United States government or any agency thereof, (b) commercial paper,
maturing not more than one year from the date of issue, or corporate demand
notes, in each case (unless issued by the Bank or its holding company) rated at
least A-l by Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc. or P-l by Moody’s Investors Service, Inc.,
(c) any certificate of deposit, time deposit or banker’s acceptance,
maturing not more than one year after such time, or any overnight Federal Funds
transaction that is issued or sold by the Bank or its holding company (or by a
commercial banking institution that is a member of the Federal Reserve System
and has a combined capital and surplus and undivided profits of not less than
$500,000,000), (d) any repurchase agreement entered into with the Bank, or
other commercial banking institution of the nature referred to in clause (c),
which (i) is secured by a fully perfected security interest in any
obligation of the type described in any of clauses (a) through (c) above,
and (ii) has a market value at the time such repurchase agreement is
entered into of not less than 100% of the repurchase obligation of the Bank, or
other commercial banking institution, thereunder, (e) money market
accounts or mutual funds which invest exclusively in assets satisfying the
foregoing requirements, and (f) other short term liquid investments
approved in writing by the Bank.


 


“Change in
Control” shall mean Guarantor shall cease to own and control, directly or
indirectly, at least 100% of the outstanding Capital Securities of Borrowers.


 


“Closing Date”
shall mean the date hereof.


 


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“Collateral”
shall have the meaning set forth in Section 6.1 hereof.


 


“Contingent
Liability” and “Contingent Liabilities” shall mean, respectively,
each obligation and liability of Borrowers and all such obligations and
liabilities of Borrowers incurred pursuant to any agreement, undertaking or
arrangement by which a Borrower: (a) guarantees, endorses or otherwise
becomes or is contingently liable upon (by direct or indirect agreement,
contingent or otherwise, to provide funds for payment, to supply funds to, or
otherwise to invest in, a debtor, or otherwise to assure a creditor against
loss) the indebtedness, dividend, obligation or other liability of any other
Person in any manner (other than by endorsement of instruments in the course of
collection), including any indebtedness, dividend or other obligation which may
be issued or incurred at some future time; (b) guarantees the payment of
dividends or other distributions upon the shares or ownership interest of any other
Person; (c) undertakes or agrees (whether contingently or otherwise): (i) to
purchase, repurchase, or otherwise acquire any indebtedness, obligation or
liability of any other Person or any property or assets constituting security
therefor, (ii) to advance or provide funds for the payment or discharge of
any indebtedness, obligation or liability of any other Person (whether in the
form of loans, advances, stock purchases, capital contributions or otherwise),
or to maintain solvency, assets, level of income, working capital or other
financial condition of any other Person, or (iii) to make payment to any
other Person other than for value received; (d) agrees to lease property
or to purchase securities, property or services from such other Person with the
purpose or intent of assuring the owner of such indebtedness or obligation of
the ability of such other Person to make payment of the indebtedness or
obligation; (e) to induce the issuance of, or in connection with the
issuance of, any letter of credit for the benefit of such other Person; or (f) undertakes
or agrees otherwise to assure a creditor against loss. The amount of any
Contingent Liability shall (subject to any limitation set forth herein) be
deemed to be the outstanding principal amount (or maximum permitted principal
amount, if larger) of the indebtedness, obligation or other liability
guaranteed or supported thereby.


 


“Debt”
shall mean, as to any Person, without duplication, (a) all indebtedness of
such Person; (b) all borrowed money of such Person (including principal,
interest, fees and charges), whether or not evidenced by bonds, debentures,
notes or similar instruments; (c) all obligations to pay the deferred
purchase price of property or services; (d) all obligations, contingent or
otherwise, with respect to the maximum face amount of all letters of credit
(whether or not drawn), bankers’ acceptances and similar obligations issued for
the account of such Person, and all unpaid drawings in respect of such letters
of credit, bankers’ acceptances and similar obligations; (e) all
indebtedness secured by any Lien on any property owned by such Person, whether
or not such indebtedness has been assumed by such Person (provided, however, if
such Person has not assumed or otherwise become liable in respect of such
indebtedness, such indebtedness shall be deemed to be in an amount equal to the
fair market value of the property subject to such Lien at the time of
determination); (f) the aggregate amount of all Capitalized Lease
Obligations of such Person; (g) all Contingent Liabilities of such Person,
whether or not reflected on its balance sheet; (h) all Debt of any
partnership of which such Person is a general partner; and (i) all
monetary obligations of such Person under (i) a so-called synthetic,
off-balance sheet or tax retention lease, or (ii) an agreement for the use
or possession of property creating obligations that do not appear on the
balance sheet of such Person but which, upon the insolvency or bankruptcy of
such Person, would be characterized as the indebtedness of such Person (without
regard to accounting treatment). Notwithstanding the foregoing, Debt shall not


 


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include trade payables
and accrued expenses incurred by such Person in accordance with customary
practices and in the ordinary course of business of such Person.


 


“Debt Service”
shall mean principal and interest payments on the entire amount of the Loan
calculated using a 30 year amortization schedule with an interest rate equal to
the greatest of (a) the actual Interest Rate on the Loan as of the last
day of a fiscal quarter, calculated on a weighted average basis, (b) 6.5%,
or (c) the U.S. Treasury Securities Rate plus 2%.


 


“Default Rate”
shall have the meaning given such term in the Note.


 


“Employee Plan”
includes any pension, stock bonus, employee stock ownership plan, retirement,
profit sharing, deferred compensation, stock option, bonus or other incentive
plan, whether qualified or nonqualified, or any disability, medical, dental or
other health plan, life insurance or other death benefit plan, vacation benefit
plan, severance plan or other employee benefit plan or arrangement, including
those pension, profit-sharing and retirement plans of a Borrower described from
time to time in the financial statements of a Borrower and any pension plan,
welfare plan, Defined Benefit Pension Plans (as defined in ERISA) or any
multi-employer plan, maintained or administered by a Borrower or to which a
Borrower is a party or may have any liability or by which a Borrower is bound.


 


“Environmental
Report” shall have the meaning set forth in Section 3.1 hereof.


 


“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended from
time to time.


 


“Event of
Default” shall mean any of the events or conditions which are set forth in Section 11
hereof.


 


“GAAP”
shall mean generally accepted accounting principles set forth from time to time
in the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S.
accounting profession), which are applicable to the circumstances as of the
date of determination, provided, however, that interim financial statements or
reports shall be deemed in compliance with GAAP despite the absence of
footnotes and fiscal year-end adjustments as required by GAAP.


 


“Guarantor”
shall mean Inland American Real Estate Trust, Inc.


 


“Guaranty”
shall have the meaning set forth in Section 3.1 hereof.


 


“Improvements”
means all buildings and structures on the Land, including, without limitation,
site improvements.


 


“Indemnified
Party” and “Indemnified Parties” shall mean, respectively, each of
the Bank and any parent corporation, Affiliate or Subsidiary of the Bank, and
each of their respective officers, directors, employees, attorneys and agents,
and all of such parties and entities.


 


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“Independent
Director” shall mean a director of a corporation or a manager of a limited
liability company who is not at the time of initial appointment, or at any time
while serving as a director or manager, as the case may be, of such an entity,
and has not been at any time during the preceding five (5) years: (a) a
stockholder, director (with the exception of serving as the Independent
Director), officer, employee, partner, attorney or counsel of a Borrower or any
Affiliate of either of them; (b) a customer, supplier or other person who
derives any of its purchases or revenues from its activities with a Borrower or
any Affiliate of either of them; (c) a Person controlling or under common
control with any such stockholder, director, officer, partner, customer,
supplier or other Person (other than a fee for its services of being an
Independent Director); or (d) a member of the immediate family of any such
stockholder, director, officer, employee, partner, customer, supplier or other
person. As used in this definition, the term “control” means the possession,
directly or indirectly, of the power to direct or cause the direction of
management, policies or activities of a Person, whether through ownership of
voting securities, by contract or otherwise.


 


“Individual
Property” shall mean each of the two hundred eighteen (218) individual
properties comprising the Premises. The location of each Individual Property is
identified on Schedule I attached hereto.


 


“Intellectual
Property” shall mean the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United
States, multinational or foreign laws or otherwise, including copyrights,
patents, service marks and trademarks, and all registrations and applications
for registration therefor and all licensees thereof, trade names, domain names,
technology, know-how and processes, and all rights to sue at law or in equity
for any infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.


 


“Interest
Period” shall mean successive one, two, three, six or twelve month periods,
beginning and ending as provided in this Agreement.


 


“Interest Rate”
shall have the meaning given such term in the Note.


 


“Investment”
shall mean, with respect to any Person, any investment in another Person,
whether by acquisition of any debt or equity security, by making any loan or
advance, by becoming obligated with respect to a Contingent Liability in
respect of obligations of such other Person.


 


“Land”
shall mean that certain parcels of real estate encumbered by the Mortgages,
together with all Improvements now or hereafter located thereon and all
easements and other rights appurtenant thereto.


 


“Leases”
shall mean all leases for use of any part of the Premises but shall exclude
subleases. The Leases are listed in the Rent Roll attached hereto as Schedule
IV.


 


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


 


“LIBOR”
shall have the meaning given such term in the Note.


 


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“LIBOR Loan”
or “LIBOR Loans” shall have the meaning given such terms in the Note.


 


“LIBOR Rate”
shall have the meaning given such term in the Note.


 


“Lien”
shall mean, with respect to any Person, any interest granted by such Person in
any real or personal property, asset or other right owned or being purchased or
acquired by such Person (including an interest in respect of a Capital Lease)
which secures payment or performance of any obligation and shall include any
mortgage, lien, encumbrance, title retention lien, charge or other security
interest of any kind, whether arising by contract, as a matter of law, by
judicial process or otherwise.


 


“Loan”
shall mean the $281,168,046 loan made by the Bank to Borrowers.


 


“Loan Documents”
shall mean each of the agreements, documents, instruments and certificates set
forth in Section 3.1 hereof, and any and all such other
instruments, documents, certificates and agreements from time to time executed
and delivered by Borrowers, the Guarantor or any of their Subsidiaries for the
benefit of the Bank pursuant to any of the foregoing, and all amendments, restatements,
supplements and other modifications thereto.


 


“Management
Agreement” shall mean, collectively, with respect to the Premises, the
management agreements entered into by and between Borrowers and the Manager,
pursuant to which the Manager is to provide management and other services with
respect to the Premises.


 


“Manager”
shall mean Inland American Office Management, LLC, a Delaware limited liability
company.


 


“Material
Adverse Effect” shall mean (a) a material adverse change in, or a
material adverse effect upon, the assets, business, properties, prospects,
condition (financial or otherwise) or results of operations of Borrowers taken
as a whole, (b) a material impairment of the ability of Borrowers to
perform any of the Obligations under any of the Loan Documents, or (c) a
material adverse effect on (i) any substantial portion of the Collateral, (ii) the
legality, validity, binding effect or enforceability against Borrowers of any
of the Loan Documents, (iii) the perfection or priority of any Lien granted
to the Bank under any Loan Document, or (iv) the rights or remedies of the
Bank under any Loan Document.


 


“Mortgage”
shall mean, collectively, with respect to the Premises, those certain first
priority Mortgages/Deeds of Trust/Deed to Secure Debt, Security Agreement and
Fixture Filing, each executed and delivered by a Borrower as security for the
Loan and encumbering the Premises, as the same may be amended, restated,
replaced, supplemented or otherwise modified from time to time.


 


“Net Cash
Proceeds” shall mean with respect to any Asset Disposition, the aggregate
cash proceeds (including cash proceeds received pursuant to policies of
insurance or by way of deferred payment of principal pursuant to a note,
installment receivable or otherwise, but only as and when received) received by
Borrowers pursuant to such Asset Disposition net of the direct costs relating
to such sale, transfer or other disposition (including sales commissions and
legal fees).


 


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“Net Cash Flow”
shall mean, for any period, shall mean all rental income (including minimum
rent, additional rent, escalation and pass through payments) actually received
in such period arising from the ownership and operation of the Premises
(excluding tenant security deposits, and rent paid during such period by any
tenant for more than one month of rental obligations) less the sum of all
costs, taxes, expenses and disbursements of every kind, nature or description
actually paid or due and payable during such period in connection with the
leasing, management, operation, maintenance and repair of the Premises and of
the personal property, fixtures, machinery, equipment, systems and apparatus
located therein or used in connection therewith, but excluding (i) non-cash
expenses, such as depreciation and amortization costs, (ii) state and
federal income taxes, (iii) the non-current portion of capital
expenditures determined in accordance with generally accepted accounting
principles, (iv) debt service payable on the Loan, and (v) principal
and interest payments on other loans permitted in writing by the Bank. In
determining Net Cash Flow, extraordinary items of income, such as those
resulting from casualty or condemnation or lease termination payments of
tenants, shall be deducted from income.


 


“Non-Excluded
Taxes” shall have the meaning set forth in Section 2.3(a) hereof.


 


“Note”
shall mean the Note executed jointly and severally by Borrowers evidencing the
Loan, as the same may be amended, restated, replaced, supplemented or otherwise
modified from time to time.


 


“Obligations”
shall mean the Loan, as evidenced by the Note, all interest accrued thereon
(including interest which would be payable as post-petition in connection with
any bankruptcy or similar proceeding, whether or not permitted as a claim
thereunder), any fees due the Bank hereunder, any expenses incurred by the Bank
hereunder, including without limitation, all liabilities and obligations under
this Agreement, under any other Loan Document, any reimbursement obligations of
Borrowers in respect of any and all liabilities and obligations owed by
Borrowers to the Bank from time to time, howsoever created, arising or
evidenced, whether direct or indirect, joint or several, absolute or
contingent, now or hereafter existing, or due or to become due, together with
any and all renewals, extensions, restatements or replacements of any of the
foregoing.


 


“Obligor”
shall mean Borrowers, Guarantor, any accommodation endorser, any third party
pledgor, or any other party liable with respect to the Obligations.


 


“Obsolete
Collateral” shall have the meaning set forth in Section 9.12
hereof.


 


“Organizational
Identification Number” means, with respect to each Borrower, the
organizational identification number assigned to such Borrower by the
applicable governmental unit or agency of the jurisdiction of organization of
such Borrower.


 


“Other Taxes”
shall mean any present or future stamp or documentary taxes or any other excise
or property taxes, charges or similar levies which arise from the execution,
delivery, enforcement or registration of, or otherwise with respect to, this
Agreement or any of the other Loan Documents.


 


“Permitted
Liens” shall mean (a) Liens for Taxes, assessments or other
governmental charges not at the time delinquent or thereafter payable without
penalty or being contested in


 


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good faith by appropriate
proceedings and, in each case, for which it maintains adequate reserves in
accordance with GAAP and in respect of which no Lien has been filed; (b) Liens
arising in the ordinary course of business (such as (i) Liens of carriers,
warehousemen, mechanics and materialmen and other similar Liens imposed by law,
and (ii) Liens in the form of deposits or pledges incurred in connection
with worker’s compensation, unemployment compensation and other types of social
security (excluding Liens arising under ERISA) or in connection with surety
bonds, bids, performance bonds and similar obligations) for sums not overdue or
being contested in good faith by appropriate proceedings and not involving any
advances or borrowed money or the deferred purchase price of property or
services, which do not in the aggregate materially detract from the value of
the property or assets of Borrowers or materially impair the use thereof in the
operation of Borrowers’ business and, in each case, for which it maintains
adequate reserves in accordance with GAAP and in respect of which no Lien has
been filed; (c) easements, rights of way, restrictions, minor defects or
irregularities in title and other similar Liens not interfering in any material
respect with the ordinary conduct of the business of Borrowers; and (d) Liens
granted to the Bank hereunder and under the Loan Documents.


 


“Person”
shall mean any natural person, partnership, limited liability company,
corporation, trust, joint venture, joint stock company, association,
unincorporated organization, government or agency or political subdivision
thereof, or other entity, whether acting in an individual, fiduciary or other
capacity.


 


“Premises”
shall mean the Land and the Project.


 


“Prepayment
Date” shall have the same meaning set forth in Section 2.1
hereof.


 


“Project”
shall mean the improvements, consisting of bank buildings and office buildings,
on the Land.


 


“Prime Loan”
or “Prime Loans” shall have the meaning given such terms in the Note.


 


“Prime Rate”
shall have the meaning given such term in the Note.


 


“Prohibited
Transfer” shall have the meaning set forth in Section 9.12.


 


“Purchase Contract”
means the Purchase and Sale Agreement dated September 27, 2007 between
SunTrust Bank and Inland Real Estate Acquisitions, Inc.


 


“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 Bank or
its lending office.


 


“Special
Purpose Entity” means a corporation, limited partnership, limited liability
company, or Delaware statutory trust which at all times on and after the
Closing Date:


 


(a)       is organized solely for the
purpose of (A) acquiring, developing, owning, holding, selling, leasing,
transferring, exchanging, managing and operating the Premises, entering into
this Agreement with the Bank, refinancing the Premises in connection with


 


8

















 


a permitted repayment of
the Loan, and transacting lawful business that is incident, necessary and
appropriate to accomplish the foregoing; or (B) acting as a general
partner of the limited partnership that owns the Premises, a member of the
limited liability company that owns the Premises or the beneficiary or trustee
of a Delaware statutory trust that owns the Premises;


 


(b)       is not engaged and will not
engage in any business unrelated to (A) the acquisition, development,
ownership, management or operation of the Premises, (B) acting as general
partner of the limited partnership that owns the Premises, (C) acting as a
member of the limited liability company that owns the Premises, or (D) acting
as the beneficiary or trustee of a Delaware statutory trust that owns the
Premises, as applicable;


 


(c)       does not have and will not
have any assets other than those related to the Premises or its partnership
interest in the limited partnership, the member interest in the limited
liability company or the beneficial interest in the Delaware statutory trust
that owns the Premises or acts as the general partner, managing member or
beneficiary or trustee thereof, as applicable;


 


(d)       has not engaged, sought or
consented to any dissolution, winding up, liquidation, consolidation, merger,
sale of all or substantially all of its assets, transfer of partnership,
membership or beneficial or trustee interests (if such entity is a general
partner in a limited partnership, a member in a limited liability company or a
beneficiary of a Delaware statutory trust) or amendment of its limited
partnership agreement, articles of incorporation, articles of organization,
certificate of formation, operating agreement or trust formation and governance
documents (as applicable) with respect to the matters set forth in this
definition;


 


(e)       if such entity is a
corporation, has at least one (1) Independent Director, and has not caused
or allowed and will not cause or allow the board of directors of such entity to
take any action related to a bankruptcy or insolvency proceeding or a voluntary
dissolution without the unanimous affirmative vote of 100% of the members of
its board of directors, including the Independent Director;


 


(f)        if such entity is a
corporation, has at least one (1) Independent Director, and has not caused
or allowed and will not cause or allow the board of directors of such entity to
take any action related to a bankruptcy or insolvency proceeding or a voluntary
dissolution without the unanimous affirmative vote of 100% of the members of
its board of directors, including the Independent Director;


 


(g)       if such entity is a limited
liability company and such limited liability company has more than one member,
such limited liability company has as its manager that Special Purpose Entity
that is a corporation and that owns at least 1.0% (one percent) of the equity of
the limited liability company;


 


(h)       if such entity is a limited
liability company and such limited liability company has only one member, such
limited liability company (a) has been formed under Delaware law, and (b) has
either a corporation or other person or entity that shall become


 


9

















 


a member of the limited
liability company upon the dissolution or disassociation of the member, and (c) has
a board of directors with not less than one (1) Independent Director, and (d) will
not cause or allow its board of directors to take any action related to a
bankruptcy or insolvency proceeding or a voluntary dissolution without the
unanimous affirmative vote of 100% of the members of its board of directors,
including the Independent Director;


 


(i)        if such entity is (a) a
limited liability company, has articles of organization, a certificate of
formation and/or an operating agreement, as applicable, (b) a limited
partnership, has a certificate of limited partnership and a limited partnership
agreement, (c) a corporation, has a certificate or articles of
incorporation and bylaws, as applicable, or (d) a Delaware statutory
trust, has organizational documents that, in each case, provide that such
entity will not: (1) dissolve, merge, liquidate, consolidate; (2) except
as permitted herein, sell all or substantially all of its assets or the assets
of a Borrower (as applicable) except as permitted herein; (3) engage in
any other business activity, or amend its organizational documents with respect
to the matters set forth in this definition without the consent of the Bank; or
(4) without the affirmative vote of all directors of the corporation (that
is such entity or the general partner or managing or co-managing member or
manager of such entity), file a bankruptcy or insolvency petition or otherwise
institute insolvency proceedings with respect to itself or to any other entity
in which it has a direct or indirect legal or beneficial ownership interest;


 


(j)        has not entered into or
been a party to, and will not enter into or be a party to, any transaction with
its partners, members, beneficiaries, shareholders or Affiliates except (A) in
the ordinary course of its business and on terms which are intrinsically fair,
commercially reasonable and are no less favorable to it than would be obtained
in a comparable arm’s-length transaction with an unrelated third party and (B) in
connection with this Agreement;


 


(k)       is solvent and pays its
debts and liabilities (including, as applicable, shared personnel and overhead
expenses) from its assets as the same become due, and is maintaining adequate
capital for the normal obligations reasonably foreseeable in a business of its
size and character and in light of its contemplated business operations;


 


(1)       has not failed and will not
fail to correct any known misunderstanding regarding the separate identity of
such entity;


 


(m)      will file its own tax
returns; provided, however, that Borrowers’ assets and income may
be included in a tax return of Guarantor if inclusion on such tax return is in
compliance with applicable law;


 


(n)       has maintained and will
maintain its own resolutions and agreements;


 


(o)       has not commingled and will
not commingle its funds or assets with those of any other Person and (b) has
not participated and will not participate in any cash management system with
any other Person, except with respect to a custodial account maintained by the
Manager on behalf of Affiliates of Borrowers and, with respect to


 


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funds in such custodial
account, has separately accounted, and will continue to separately account for,
each item of income and expense applicable to the Premises and Borrowers;


 


(p)       has held and will hold its
assets in its own name;


 


(q)       has conducted and will
conduct its business in its name or in a name franchised or licensed to it by
an entity other than an Affiliate of Borrowers;


 


(r)        has maintained and will
maintain its balance sheets, operating statements and other entity documents
separate from any other Person and has not permitted and will not permit its
assets to be listed as assets on the financial statement of any other entity
except as required or permitted by applicable accounting principles acceptable
to the Bank, consistently applied; provided, however, that (i) any
such consolidated financial statement shall contain a note indicating that it
maintains separate balance sheets and operating statements for Borrowers and
the Premises, or (ii) if such Person is controlled by Inland American Real
Estate Trust, Int., then such Person may be included in the consolidated
financial statement of Inland American Real Estate Trust, Inc., provided
such consolidated financial statement contains a note indicating that it
maintains separate financial records for each Person controlled by Inland
American Real Estate Trust, Inc.;


 


(s)       has maintained and will
maintain separate books and records for the Premises;


 


(t)        has a sufficient number of
employees in light of its contemplated business operations, which may be none;


 


(u)       has observed and will
observe all partnership, corporate, limited liability company or Delaware
statutory trust formalities, as applicable;


 


(v)       has and will have no Debt
(including loans (whether or not such loans are evidenced by a written
agreement) between Borrowers and any Affiliates of Borrowers and relating to
the management of funds in the custodial account maintained by the Manager)
other than (i) the Loan, (ii) liabilities incurred in the ordinary
course of business relating to the ownership and operation of the Premises and
the routine administration of Borrowers, which liabilities are not more than
sixty (60) days past the date incurred (unless disputed in accordance with
applicable law), are not evidenced by a note and are paid when due, and which
amounts are normal and reasonable under the circumstances, and (iii) such
other liabilities that are permitted pursuant to this Agreement;


 


(w)      has not and will not assume
or guarantee or become obligated for the debts of any other Person or hold out
its credit as being available to satisfy the obligations of any other Person
except as otherwise permitted pursuant to this Agreement;


 


(x)        has not and will not
acquire obligations or securities of its partners, members, beneficiaries or
shareholders or any other Affiliate;


 


11

















 


(y)       has allocated and will
allocate fairly and reasonably any overhead expenses that are shared with any
Affiliate, including, but not limited to, paying for shared office space and
services performed by any employee of an affiliate;


 


(z)        has not maintained or
used, and will not maintain or use, invoices and checks bearing the name of any
other Person, provided, however, that Manager, on behalf of such
Person, may maintain and use invoices and checks bearing Manager’s name;


 


(aa)     has not pledged and will not
pledge its assets for the benefit of any other Person except as permitted or
required pursuant to this Agreement;


 


(bb)     has held itself out and identified
itself and will hold itself out and identify itself as a separate and distinct
entity under its own name or in a name franchised or licensed to it by an
entity other than an Affiliate of Borrowers and not as a division or part of
any other Person, except for services rendered by Manager under the Management
Agreement, so long as Manager holds itself out as an agent of Borrowers;


 


(cc)     has maintained and will
maintain its assets in such a manner that it will not be costly or difficult to
segregate, ascertain or identify its individual assets from those of any other
Person;


 


(dd)     has not made and will not
make loans to any Person or hold evidence of indebtedness issued by any other
person or entity (other than cash and investment-grade securities issued by an
entity that is not an Affiliate of or subject to common ownership with such
entity);


 


(ee)     has not identified and will
not identify its partners, members, beneficiaries or shareholders, or any
Affiliate of any of them, as a division or part of it, and has not identified
itself and shall not identify itself as a division of any other Person;


 


(ff)       does not and will not have
any of its obligations guaranteed by any Affiliate except as otherwise required
in the Loan Documents; and


 


(gg)     has complied and will comply
with all of the terms and provisions contained in its organizational documents.
The statement of facts contained in its organizational documents are true and
correct and will remain true and correct.


 


“State”
shall mean, with respect to the Premises, the State or Commonwealth in which
any Individual Properties is located.


 


“Subsidiary”
and “Subsidiaries” shall mean, respectively, with respect to any Person,
each and all such corporations, partnerships, limited partnerships, limited
liability companies, limited liability partnerships, joint ventures or other
entities of which or in which such Person owns, directly or indirectly, such
number of outstanding Capital Securities as have more than fifty percent
(50.00%) of the ordinary voting power for the election of directors or other
managers of such corporation, partnership, limited liability company or other
entity. Unless the context otherwise requires, each reference to Subsidiaries
herein shall be a reference to Subsidiaries of Borrowers.


 


12

















 


“Survey”
shall mean a survey of the Individual Property in question prepared by a
surveyor licensed in the State and satisfactory to the Bank and the company or
companies issuing the Title Insurance Policy, and containing a certification of
such surveyor satisfactory to the Bank.


 


“Taxes”
shall mean any and all present and future taxes, duties, levies, imposts,
deductions, assessments, charges or withholdings, and any and all liabilities
(including interest and penalties and other additions to taxes) with respect to
the foregoing.


 


“Tenant”
shall mean SunTrust Bank.


 


“Title
Insurance Company” shall mean First American Title Insurance Company.


 


“Title
Insurance Policy” shall mean collectively, with respect to each Individual
Property, the ALTA mortgagee title insurance policies in the form (acceptable
to the Bank) issued with respect to each Individual Property and insuring the
lien of the Mortgage encumbering each Individual Property.


 


“UCC” shall
mean the Uniform Commercial Code in effect in the state of Illinois from time
to time.


 


“Unmatured
Event of Default” shall mean any event which, with the giving of notice,
the passage of time or both, would constitute an Event of Default.


 


“Voidable
Transfer” shall have the meaning set forth in Section 13.21
hereof.


 


“U.S. Treasury
Securities” shall mean actively traded U.S. Treasury bonds, bills and notes
scheduled to mature on a date 10 years after the date of determination or, if
more than one issue of U.S. Treasury securities is scheduled to mature on or
about such date, then the U.S. Treasury security maturing closest to such date.


 


1.2       Accounting Terms.
Any accounting terms used in this Agreement which are not specifically defined
herein shall have the meanings customarily given them in accordance with GAAP.
Calculations and determinations of financial and accounting terms used and not
otherwise specifically defined hereunder and the preparation of financial
statements to be furnished to the Bank pursuant hereto shall be made and
prepared, both as to classification of items and as to amount, in accordance
with sound accounting practices and GAAP as used in the preparation of the
financial statements of Borrowers on the date of this Agreement. If any changes
in accounting principles or practices from those used in the preparation of the
financial statements are hereafter occasioned by the promulgation of rules,
regulations, pronouncements and opinions by or required by the Financial
Accounting Standards Board or the American Institute of Certified Public
Accountants (or any successor thereto or agencies with similar functions),
which results in a material change in the method of accounting in the financial
statements required to be furnished to the Bank hereunder or in the calculation
of financial covenants, standards or terms contained in this Agreement, the
parties hereto agree to enter into good faith negotiations to amend such
provisions so as equitably to reflect such changes to the end that the criteria
for evaluating the financial condition and performance of Borrowers will be the
same after such changes as they were before such changes; and if the parties
fail to agree on


 


13

















 


the amendment of such
provisions, Borrowers will furnish financial statements in accordance with such
changes, but shall provide calculations for all financial covenants, perform
all financial covenants and otherwise observe all financial standards and terms
in accordance with applicable accounting principles and practices in effect
immediately prior to such changes. Calculations with respect to financial
covenants required to be stated in accordance with applicable accounting
principles and practices in effect immediately prior to such changes shall be
reviewed and certified by Borrowers accountants.


 


1.3       Other Terms Defined in
UCC. All other capitalized words and phrases used herein and not otherwise
specifically defined herein shall have the respective meanings assigned to such
terms in the UCC, to the extent the same are used or defined therein.


 


1.4       Other Interpretive
Provisions.


 


(a)       The meanings of defined
terms are equally applicable to the singular and plural forms of the defined
terms. Whenever the context so requires, the neuter gender includes the
masculine and feminine, the single number includes the plural, and vice versa,
and in particular the word “Borrowers” shall be so construed.


 


(b)       Section and Schedule
references are to this Agreement unless otherwise specified. The words “hereof,
“herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement.


 


(c)       The term “including” is not
limiting, and means “including, without limitation”.


 


(d)       In the computation of
periods of time from a specified date to a later specified date, the word “from”
means “from and including”; the words “to” and “until” each mean “to but
excluding”, and the word “through” means “to and including”.


 


(e)       Unless otherwise expressly
provided herein, (i) references to agreements (including this Agreement
and the other Loan Documents) and other contractual instruments shall be deemed
to include all subsequent amendments, restatements, supplements and other modifications
thereto, but only to the extent such amendments, restatements, supplements and
other modifications are not prohibited by the terms of any Loan Document, and (ii) references
to any statute or regulation shall be construed as including all statutory and
regulatory provisions amending, replacing, supplementing or interpreting such
statute or regulation.


 


(f)        To the extent any of the
provisions of the other Loan Documents are inconsistent with the terms of this
Agreement, the provisions of this Agreement shall govern.


 


(g)       This Agreement and the
other Loan Documents may use several different limitations, tests or
measurements to regulate the same or similar matters. All such limitations,
tests and measurements are cumulative and each shall be performed in accordance
with its terms.


 


14

















 


Section 2.      COMMITMENT OF THE BANK.


 


2.1       Loan.


 


(a)       Commitment. Subject
to the terms and conditions of this Agreement and the other Loan Documents, and
in reliance upon the representations and warranties of Borrowers set forth
herein and in the other Loan Documents, the Bank agrees to make the Loan. The
Loan shall be available to Borrowers in a single principal advance on such date
as the conditions set forth in Section 3 shall have been satisfied.
The Loan shall be used by Borrowers to pay a portion of the purchase price of
the Premises. The Loan may be prepaid in whole or in part at any time without
penalty (subject to Section 2.2), but shall be due in full on the
Maturity Date, unless the credit extended under the Loan is otherwise
accelerated, terminated or extended as provided in this Agreement.


 


(b)       Loan Interest and
Payments. Except as otherwise provided in this Section 12.1(b),
the principal amount of the Loan outstanding from time to time shall bear
interest at the applicable Interest Rate. From and after maturity, or after the
occurrence and during the continuation of an Event of Default, interest on the
outstanding principal balance of the Loan, at the option of the Bank, may
accrue at the Default Rate and shall be payable upon demand from the Bank.


 


(c)       Loan Interest and
Principal Payments. The outstanding principal balance of the Loan shall be
repaid in full, together with accrued interest due on the Maturity Date.


 


(d)       Mandatory Prepayment.
Borrowers shall make a prepayment (a “Mandatory Prepayment”) of the outstanding
principal amount of the Loan until paid in full, concurrently with the receipt
by Borrowers of any Net Cash Proceeds from any Asset Disposition, in an amount
equal to 100% of such Net Cash Proceeds.


 


(e)       Optional Prepayments.


 


(i)        Provided that no Event of
Default then exists under this Agreement or the Loan, Borrowers may voluntarily
prepay the principal balance of the Loan, but only in whole at any time on or
after the date hereof, subject to the following conditions:


 


(A)      Not less than fourteen (14)
days prior to the date upon which Borrowers desire to make such prepayment,
Borrowers shall deliver to the Bank written notice of its intention to prepay
the Loan, which notice shall state the prepayment amount and the prepayment
date (the “Prepayment Date”); and


 


(B)       Borrowers shall pay to the
Bank all accrued and unpaid interest on the Loan through the date of such
prepayment on the principal balance being prepaid and all Make Whole Costs (as
defined in the Note); and


 


15

















 


(C)       Borrowers comply with all
of the terms and conditions set forth in Schedule II.


 


2.2       Late Charge. If any
payment of interest or principal due hereunder (other than payment of principal
at maturity) is not made within five (5) days after such payment is due in
accordance with the terms hereof, then, in addition to the payment of the
amount so due, Borrowers shall pay to the Bank 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. Borrowers agree that the damages to be sustained by
the Bank 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.


 


2.3       Taxes.


 


(a)       All payments made by
Borrowers under this Agreement shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any governmental authority, excluding net income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on the Bank as a result of a
present or former connection between the Bank and the jurisdiction of the
governmental authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely
from the Bank having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement or any other Loan
Document). If any such non-excluded taxes, levies, imposts, duties, charges,
fees, deductions or withholdings (collectively, “Non-Excluded Taxes”) or Other
Taxes are required to be withheld from any amounts payable to the Bank
hereunder, the amounts so payable to the Bank shall be increased to the extent
necessary to yield to the Bank (after payment of all Non-Excluded Taxes and
Other Taxes) interest or any such other amounts payable hereunder at the rates
or in the amounts specified in this Agreement, provided, however, that
Borrowers shall not be required to increase any such amounts payable to the
Bank with respect to any Non-Excluded Taxes that are attributable to the Bank’s
failure to comply with the requirements of subsection 2.3(c).


 


(b)       Borrowers shall pay any
Other Taxes to the relevant governmental authority in accordance with
applicable law.


 


(c)       At the request of Borrowers
and at Borrowers’ sole cost, the Bank shall take reasonable steps to (i) contest
its liability for any Non-Excluded Taxes or Other Taxes that have not been
paid, or (ii) seek a refund of any Non-Excluded Taxes or Other Taxes that
have been paid.


 


(d)       Whenever any Non-Excluded
Taxes or Other Taxes are payable by Borrowers, as promptly as possible
thereafter Borrowers shall send to the Bank a certified copy of an original
official receipt received by Borrowers showing payment thereof. If Borrowers
fail to pay any Non-Excluded Taxes or Other Taxes when due to the appropriate
taxing authority or fails to remit to the Bank the required receipts or other


 


16

















 


required documentary
evidence or if any governmental authority seeks to collect a Non-Excluded Tax
or Other Tax directly from the Bank for any other reason, Borrowers shall
indemnify the Bank on an after-tax basis for any incremental taxes, interest or
penalties that may become payable by the Bank.


 


(e)       The agreements in this Section shall
survive the satisfaction and payment of the Obligations and the termination of
this Agreement.


 


2.4       Loan to Constitute
Single Obligation. The Loan shall constitute one general obligation of
Borrowers, and shall be secured by Bank’s priority security interest in and
Lien upon all of the Collateral and by all other security interests, Liens,
claims and encumbrances heretofore, now or at any time or times hereafter
granted by Borrowers to Bank, subject, in certain cases, to the limitations set
forth in certain Mortgages.


 


Section 3.      CONDITIONS OF BORROWING.


 


Notwithstanding
any other provision of this Agreement, the Bank shall not be required to
disburse or make the Loan, if any of the following conditions shall have
occurred.


 


3.1       Loan Documents.
Borrowers shall have failed to execute and deliver to the Bank any of the following
Loan Documents, all of which must be reasonably satisfactory to the Bank and
the Bank’s counsel in form, substance and execution:


 


(a)       Loan Agreement. Two
copies of this Agreement duly executed by Borrowers.


 


(b)       Note. A Note duly
executed by Borrowers, in the form prepared by and acceptable to the Bank.


 


(c)       Guaranty. A Guaranty
dated as of the date of this Agreement, executed by the Guarantor to and for
the benefit of the Bank, in the form prepared by and acceptable to the Bank
(the “Guaranty”).


 


(d)       Environmental Indemnity.
An agreement from Guarantor and Borrower to the Bank, indemnifying the Bank for
all risks, liabilities, costs and expenses associated with environmental
matters at the Premises.


 


(e)       Contribution Agreement.
A Contribution Agreement between Borrowers in form and substance satisfactory
to the Bank.


 


(f)        Real Estate Documents.
With respect to each parcel of real property owned by Borrowers, a duly
executed Mortgage and Assignment of Rents providing for a fully perfected Lien,
in favor of the Bank, in all right, title and interest of Borrowers in such
real property, together with:


 


(i)        a Title Insurance Policy,
issued by the Title Insurance Company, insuring the Bank’s Lien on such real
property and containing such endorsements as the Bank may reasonably require
(it being understood that the amount of


 


17

















 


coverage, exceptions to
coverage and status of title set forth in such policy shall be acceptable to
the Bank);


 


(ii)       copies of all documents of
record concerning such real property as shown on the commitment for the Title
Insurance Policy;


 


(iii)      certificates of insurance in
form reasonably satisfactory to the Bank for all insurance policies required to
be maintained with respect to such real property by this Agreement or any other
Loan Document;


 


(iv)      an ALTA survey certified to
the Bank and the Title Insurance Company, meeting such standards as the Bank
may reasonably establish and otherwise reasonably satisfactory to the Bank;


 


(v)       a certificate of insurance
in form reasonably satisfactory to the Bank for a flood insurance policy
concerning such real property, if required by the Flood Disaster Protection Act
of 1973;


 


(vi)      an appraisal, prepared by an
independent appraiser engaged directly by the Bank, of the Premises, which
appraisal shall satisfy the requirements of the Financial Institutions Reform,
Recovery and Enforcement Act, if applicable, and shall indicate a loan-to-value
ratio of not more than 75%;


 


(vii)     certified copies of all
Leases and such evidence as to the validity thereof, absence of defaults
thereunder, good standing and financial ability of the parties thereto to
perform, and such subordination, non-disturbance and attornment agreements from
tenants under Leases and holders of concessions or encumbrances with respect to
any portion of the Premises, all as the Bank may require. In addition,
Borrowers shall deposit all security deposits required under Leases with the
Bank in an account in Borrowers’ name, which account is pledged to the Bank
pursuant to the Assignment of Rents;


 


(viii)    if requested by the Bank,
copies of the most recent real estate tax bills for the Land and evidence
satisfactory to the Bank that the Land is separately assessed for real estate
taxing purposes;


 


(ix)       (i) letters or other
evidence with respect to the Premises from the appropriate municipal
authorities (or other Persons) concerning applicable zoning and building laws, (ii) an
ALTA 3.1 zoning endorsement to the Title Insurance Policy, if available or (iii) other
evidence of zoning compliance, in each case in substance reasonably
satisfactory to the Bank;


 


(x)        a current certified rent
roll of the Premises, reasonably satisfactory in form and substance to the
Bank;


 


(xi)       a certified copy of the Management
Agreement with respect to the Premises which shall be satisfactory in form and
substance to the Bank.


 


18

















 


(xii)      such financial statements
relating to the ownership and operation of the Premises, in form and substance
reasonably satisfactory to the Bank.


 


(g)       Environmental Report.
A written report (“Environmental Report”) prepared at Borrower’s sole cost and
expense by an independent professional environmental consultant approved by the
Bank in its sole and absolute discretion. The Environmental Report shall be
subject to the Bank’s approval in its sole and absolute discretion. If the
Environmental Report reveals contamination or conditions warranting further
investigation in order to establish baseline data, the Bank may require, in its
sole and absolute discretion, a written report based on additional testing and
investigation in order to define the source and extent of the contamination or
to establish baseline data, as well as to provide relevant detailed information
on the area’s geological and hydrogeological conditions. Any additional
Environmental Report prepared pursuant to this requirement shall be subject to
the Bank’s approval, in its sole and absolute discretion.


 


(h)       Search Results; Lien Terminations.
Copies of UCC search reports dated such a date as is reasonably acceptable to
the Bank, listing all effective financing statements which name Borrowers,
under their present names and any previous names, as debtors, together with (i) copies
of such financing statements, (ii) payoff letters evidencing repayment in
full of all existing Debt to be repaid with the Loan, the termination of all
agreements relating thereto and the release of all Liens granted in connection
therewith, with UCC or other appropriate termination statements and documents
effective to evidence the foregoing (other than Permitted Liens), and (iii) such
other UCC termination statements as the Bank may reasonably request.


 


(i)        Organizational and
Authorization Document. Copies of (i) the Articles of Organization
(Certificate of Formation) and Operating Agreement of each Borrower; (ii) resolutions
of the members of Borrowers approving and authorizing such Person’s execution,
delivery and performance of the Loan Documents to which it is party and the
transactions contemplated thereby; (iii) signature and incumbency
certificates of the managers of each Borrower, executing any of the Loan
Documents, each of which Borrowers hereby certify to be true and complete, and
in full force and effect without modification, it being understood that the
Bank may conclusively rely on each such document and certificate until formally
advised by Borrowers of any changes therein; and (iv) good standing
certificates in the state of formation of Borrowers and in each other State.


 


(j)        Insurance. Evidence
satisfactory to the Bank of the existence of insurance required to be
maintained pursuant to Section 8.16, together with evidence that
the Bank has been named as a lender’s loss payee and as an additional insured
on all related insurance policies.


 


(k)       Borrower’s Attorney’s
Opinion. An opinion of Borrower’s counsel addressing such issues as the
Bank may request, including the following propositions and questions of law:


 


19

















 


(i)        that each Borrower is duly
organized, validly existing and in good standing to do business in the state of
its organization and in the State;


 


(ii)       that each Borrower has all
necessary legal right, power and authority to conduct its business, to enter
into and perform its obligations under this Agreement and the Loan Documents;


 


(iii)      that all necessary
corporate, shareholder, membership, partnership approvals, resolutions and
directions have been obtained for the execution of this Agreement and the Loan
Documents;


 


(iv)      that the execution and
delivery of this Agreement and the Loan Documents, the performance thereunder
by Borrower will comply with all applicable law and will not violate or
conflict with the instruments under which Borrower is organized or any
applicable contracts or agreements;


 


(v)       that the Loan Documents and
this Agreement have been duly and validly executed and delivered, are
enforceable in accordance with their respective terms (subject to bankruptcy
laws and laws pertaining to the exercise of creditors’ rights generally) and
are subject to no defenses of any kind;


 


(vi)      that the making of the Loan,
the charging of all interest and fees due thereunder do not violate any usury
or consumer credit laws; and


 


(vii)     that if permitted by the laws
of the State, Borrowers have effectively waived in the Mortgage any rights of
redemption from a decree or order foreclosing the Mortgage on behalf of itself
and all persons claiming through Borrowers.


 


(1)       Additional Documents.
Such other certificates, financial statements, schedules, resolutions, opinions
of counsel, notes and other documents which are provided for hereunder or which
the Bank shall require.


 


3.2       Event of Default.
Any Event of Default, or Unmatured Event of Default shall have occurred and be
continuing.


 


3.3       Material Adverse Effect.
The occurrence of any event having a Material Adverse Effect upon Borrowers or
Guarantor.


 


3.4       Litigation. Any
litigation or governmental proceeding shall have been instituted against Borrowers
or any of their officers or shareholders having a Materially Adverse Effect
upon Borrowers or Guarantor.


 


3.5       Representations and
Warranties. Any representation or warranty of Borrowers contained herein or
in any Loan Document shall be untrue or incorrect in any material respect.


 


20
















 


3.6       Commitment Fee. Borrowers shall
have failed to pay to the Bank a commitment fee in the amount of One Million
Two Hundred Sixty-Five Thousand Two Hundred Fifty-Six Dollars ($1,265,256)
payable on or before the execution of this Agreement with the Bank.


 


3.7       Equity. Borrowers shall have
failed to contribute a cash equity investment in the Premises of not less than
$93,722,682.


 


Section 4.      NOTE EVIDENCING LOAN.


 


4.1       Note. The Loan shall be evidenced
by the Note. At the time of the initial disbursement of the Loan, or a
repayment made in whole or in part thereon, a notation thereof shall be made on
the books and records of the Bank. All amounts recorded shall be, absent
demonstrable error, conclusive and binding evidence of (i) the principal
amount of the Loan advanced hereunder, (ii) any accrued and unpaid
interest owing on the Loan and (iii) all amounts repaid on the Loan. The
failure to record any such amount or any error in recording such amounts shall
not, however, limit or otherwise affect the obligations of Borrowers under the
Note to repay the principal amount of the Loan, together with all interest
accruing thereon.


 


Section 5.      MANNER OF BORROWING.


 


5.1       Borrowing Procedures. The Loan may
be advanced either as a Prime Loan or as LIBOR Loans, provided, however, that
at any time, Borrowers may identify no more than five (5) LIBOR tranches.
The Loan shall be made available to Borrowers upon any written, verbal,
electronic, telephonic or telecopy loan request which the Bank in good faith
believes to emanate from a properly authorized representative of Borrowers,
whether or not that is in fact the case. Each such request shall be effective
upon receipt by the Bank, shall be irrevocable, and shall specify the date,
amount and type of borrowing and, in the case of a LIBOR Loan, the initial
Interest Period therefor. Borrowers shall select Interest Periods so as not to
require a payment or prepayment of any LIBOR Loan during an Interest Period for
such LIBOR Loan. The final Interest Period must be such that its expiration
occurs on or before the Maturity Date. The proceeds of the Loan shall be made
available at the office of the Bank by means requested by Borrowers and
acceptable to the Bank, including, without limitation, deposit in an escrow
with the Title Insurance Company. Borrowers hereby irrevocably confirm, ratify
and approve all such advances by the Bank and does hereby indemnify the Bank
against losses and expenses (including court costs, attorneys’ and paralegals’
fees) and shall hold the Bank harmless with respect thereto.


 


5.2       Discretionary Disbursements. The
Bank, in its sole and absolute discretion, may immediately upon notice to
Borrowers, disburse any or all proceeds of the Loan made or available to
Borrowers pursuant to this Agreement to pay any fees, costs, expenses or other
amounts required to be paid by Borrowers hereunder and not so paid. All monies
so disbursed shall be a part of the Obligations, payable by Borrowers on demand
from the Bank.


 


Section 6.      SECURITY FOR THE OBLIGATIONS.


 


6.1       Security for Obligations. As
security for the payment and performance of the Obligations, Borrowers do
hereby pledge, assign, transfer, deliver and grant to the Bank, for their own
benefit and as agent for its Affiliates, a continuing and unconditional first
priority security


 


21

















 


interest in and to any
and all property of Borrowers, of any kind or description, tangible or
intangible, wheresoever located and whether now existing or hereafter arising
or acquired, including the following (all of which property, along with the
products and proceeds therefrom, are individually and collectively referred to
as the “Collateral”):


 


(a)       all real and personal property described
in the Mortgages and all rents assigned under the Assignment of Rents;


 


(b)       all property of, or for the account of,
Borrowers now or hereafter coming into the possession, control or custody of,
or in transit to, the Bank or any agent or bailee for the Bank or any parent,
Affiliate or Subsidiary of the Bank or any participant with the Bank in the
Loan (whether for safekeeping, deposit, collection, custody, pledge,
transmission or otherwise), including all earnings, dividends, interest, or
other rights in connection therewith and the products and proceeds therefrom,
including the proceeds of insurance thereon; and


 


(c)       the additional property of Borrowers,
whether now existing or hereafter arising or acquired, and wherever now or
hereafter located, together with all additions and accessions thereto, substitutions,
betterments and replacements therefor, products and Proceeds therefrom, and all
of Borrowers’ books and records and recorded data relating thereto (regardless
of the medium of recording or storage), together with all of Borrowers’ right,
title and interest in and to all computer software required to utilize, create,
maintain and process any such records or data on electronic media.


 


6.2       Financing Statements. Borrowers
shall, at the Bank’s request, at any time and from time to time, execute and
deliver to the Bank such financing statements, amendments and other documents
and do such acts as the Bank deems necessary in order to establish and maintain
valid, attached and perfected first priority security interests in the
Collateral in favor of the Bank, free and clear of all Liens and claims and
rights of third parties whatsoever, except Permitted Liens. Borrowers hereby
irrevocably authorize the Bank at any time, and from time to time, to file in
any jurisdiction any initial financing statements and amendments thereto
without the signature of Borrowers that (a) indicate the Collateral (i) is
comprised of all assets of Borrowers or words of similar effect, regardless of
whether any particular asset comprising a part of the Collateral falls within
the scope of Article 9 of the Uniform Commercial Code of the jurisdiction
wherein such financing statement or amendment is filed, or (ii) as being
of an equal or lesser scope or within greater detail as the grant of the
security interest set forth herein, and (b) contain any other information
required by Section 5 of Article 9 of the Uniform Commercial Code of
the jurisdiction wherein such financing statement or amendment is filed
regarding the sufficiency or filing office acceptance of any financing
statement or amendment, including (i) whether Borrowers are an
organization, the type of organization and any Organizational Identification
Number issued to Borrowers, and (ii) in the case of a financing statement
filed as a fixture filing or indicating Collateral as as-extracted collateral
or timber to be cut, a sufficient description of the real property to which the
Collateral relates. Borrowers hereby agree that a photocopy or other
reproduction of this Agreement is sufficient for filing as a financing
statement and Borrowers authorize the Bank to file this Agreement as a
financing statement in any jurisdiction. Borrowers agree to furnish any such
information to the Bank promptly upon request. Borrowers further ratify and
affirm their authorization for any financing statements and/or amendments


 


22

















 


thereto, executed and
filed by the Bank in any jurisdiction prior to the date of this Agreement. In
addition, Borrowers shall make appropriate entries on its books and records
disclosing the Bank’s security interests in the Collateral.


 


6.3       Preservation of the Collateral.
Subject to the terms of the Leases and the rights of the Tenant thereunder, the
Bank may, but is not required, to take such actions from time to time as the
Bank deems appropriate to maintain or protect the Collateral. The Bank shall
have exercised reasonable care in the custody and preservation of the
Collateral if the Bank takes such action as Borrowers shall reasonably request
in writing which is not inconsistent with the Bank’s status as a secured party,
but the failure of the Bank to comply with any such request shall not be deemed
a failure to exercise reasonable care; provided, however, the Bank’s
responsibility for the safekeeping of the Collateral shall (i) be deemed
reasonable if such Collateral is accorded treatment substantially equal to that
which the Bank accords its own property, and (ii) not extend to matters
beyond the control of the Bank, including acts of God, war, insurrection, riot
or governmental actions. In addition, any failure of the Bank to preserve or
protect any rights with respect to the Collateral against prior or third
parties, or to do any act with respect to preservation of the Collateral, not
so requested by Borrowers, shall not be deemed a failure to exercise reasonable
care in the custody or preservation of the Collateral. Borrowers shall have the
sole responsibility for taking such action as may be necessary, from time to
time, to preserve all rights of Borrowers and the Bank in the Collateral
against prior or third parties. Without limiting the generality of the
foregoing, where Collateral consists in whole or in part of securities,
Borrowers represent to, and covenant with, the Bank that Borrowers have made
arrangements for keeping informed of changes or potential changes affecting the
securities (including rights to convert or subscribe, payment of dividends,
reorganization or other exchanges, tender offers and voting rights), and
Borrowers agree that the Bank shall have no responsibility or liability for
informing Borrowers of any such or other changes or potential changes or for
taking any action or omitting to take any action with respect thereto.


 


6.4       Other Actions as to any and all
Collateral. Borrowers further agree to take any other action reasonably
requested by the Bank to ensure the attachment, perfection and first priority
of, and the ability of the Bank to enforce, the Bank’s security interest in any
and all of the Collateral, including (a) causing the Bank’s name to be
noted as secured party on any certificate of title for a titled good if such
notation is a condition to attachment, perfection or priority of, or ability of
the bank to enforce, the Bank’s security interest in such Collateral, (b) complying
with any provision of any statute, regulation or treaty of the United States as
to any Collateral if compliance with such provision is a condition to
attachment, perfection or priority of, or ability of the Bank to enforce, the
Bank’s security interest in such Collateral, (c) obtaining governmental
and other third party consents and approvals, including any consent of any
licensor, lessor or other Person obligated on Collateral, (d) obtaining
waivers from mortgagees and landlords in form and substance satisfactory to the
Bank, and (e) taking all actions required by the UCC in effect from time
to time or by other law, as applicable in any relevant UCC jurisdiction, or by
other law as applicable in any foreign jurisdiction. Borrowers further agree to
indemnify and hold the Bank harmless against claims of any Persons not a party
to this Agreement concerning disputes arising over the Collateral.


 


23

















 


Section 7.      REPRESENTATIONS AND WARRANTIES.


 


To induce the Bank
to make the Loan, Borrowers make the following representations and warranties
to the Bank, each of which shall survive the execution and delivery of this
Agreement:


 


7.1       Borrower Organization and Name.
Each Borrower is a limited liability company duly organized, existing and in
good standing under the laws of the State of Delaware, with full and adequate
power to carry on and conduct its business as presently conducted. Borrowers
are duly licensed or qualified in all foreign jurisdictions wherein the nature
of their activities require such qualification or licensing, except for such
jurisdictions where the failure to so qualify would not have a Material Adverse
Effect. The Organizational Identification Number of Inland ST is 4453250 and
the Organizational Identification Number of Inland FL is 4458125. The exact
legal names of Borrowers are as set forth in the first paragraph of this
Agreement, and neither Borrower currently conducts, nor has it during the last
five (5) years conducted, business under any other name or trade name.


 


7.2       Authorization. Each Borrower has
full right, power and authority to enter into this Agreement, to make the
borrowings and execute and deliver the Loan Documents as provided herein and to
perform all of its duties and obligations under this Agreement and the other
Loan Documents. The execution and delivery of this Agreement and the other Loan
Documents will not, nor will the observance or performance of any of the
matters and things herein or therein set forth, violate or contravene any provision
of law or of the articles of organization of Borrowers. All necessary and
appropriate action has been taken on the part of Borrowers to authorize the
execution and delivery of this Agreement and the Loan Documents.


 


7.3       Validity and Binding Nature. This
Agreement and the other Loan Documents are the legal, valid and binding
obligations of Borrowers, enforceable against Borrowers in accordance with
their terms, subject to bankruptcy, insolvency and similar laws affecting the
enforceability of creditors’ rights generally and to general principles of
equity.


 


7.4       Consent; Absence of Breach. The
execution, delivery and performance of this Agreement, the other Loan Documents
and any other documents or instruments to be executed and delivered by
Borrowers in connection with the Loan, and the borrowings by Borrowers
hereunder, do not and will not (a) require any consent, approval,
authorization of, or filings with, notice to or other act by or in respect of,
any governmental authority or any other Person (other than any consent or
approval which has been obtained and is in full force and effect); (b) conflict
with (i) any provision of law or any applicable regulation, order, writ,
injunction or decree of any court or governmental authority, (ii) the
articles of organization of either Borrower, or (iii) any material
agreement, indenture, instrument or other document, or any judgment, order or
decree, which is binding upon Borrowers or any of their properties or assets;
or (c) require, or result in, the creation or imposition of any Lien on
any asset of Borrowers, other than Liens in favor of the Bank created pursuant
to this Agreement.


 


7.5       Ownership of Properties; Liens. To
Borrower’s knowledge, Borrowers have good and indefeasible fee simple title to
the real property comprising part of the Premises and good title to the balance
of the Premises, free and clear of all Liens whatsoever except the Permitted


 


24

















 


Liens and the Liens
created by the Loan Documents. To Borrower’s knowledge, the Mortgages, when
properly recorded in the appropriate records, together with any Uniform
Commercial Code financing statements required to be filed in connection
therewith, will create (a) a valid, perfected lien on the Premises,
subject only to Permitted Liens and Liens created by the Loan Documents and (b) perfected
security interests in and to, and perfected collateral assignment of, all
personalty (including the Leases), all in accordance with the terms thereof, in
each case subject only to any applicable Permitted Liens, such other Liens as
are permitted pursuant to the Loan Documents and the Liens created by the Loan
Documents. To Borrower’s knowledge, there are no claims for payment for work,
labor or materials affecting the Premises which are due and unpaid under the
contracts pursuant to which such work or labor was performed or materials
provided which are or may become a lien prior to, or of equal priority with,
the Liens created by the Loan Documents.


 


7.6       Equity Ownership. All issued and
outstanding Capital Securities of Borrowers are duly authorized and validly
issued, fully paid, non-assessable, and free and clear of all Liens and such
securities were issued in compliance with all applicable state and federal laws
concerning the issuance of securities. As of the date hereof, there are no
pre-emptive or other outstanding rights, options, warrants, conversion rights
or other similar agreements or understandings for the purchase or acquisition
of any Capital Securities of Borrowers.


 


7.7       Intellectual Property. Borrowers
own and possess or has a license or other right to use all Intellectual
Property, as are necessary for the conduct of the businesses of Borrowers,
without any infringement upon rights of others which could reasonably be
expected to have a Material Adverse Effect upon Borrowers, and no material
claim has been asserted and is pending by any Person challenging or questioning
the use of any Intellectual Property or the validity or effectiveness of any
Intellectual Property nor do Borrowers know of any valid basis for any such
claim.


 


7.8       Financial Statements. All
financial statements of Guarantor submitted to the Bank have been prepared in
accordance with sound accounting practices and GAAP on a basis, except as
otherwise noted therein, consistent with the previous fiscal year and present
fairly the financial condition of Guarantor and the results of the operations
for Guarantor as of such date and for the periods indicated. Since the date of
the most recent financial statement submitted by Guarantor to the Bank, there
has been no change in the financial condition or in the assets or liabilities
of Guarantor having a Material Adverse Effect on Guarantor.


 


7.9       Litigation and Contingent Liabilities.
There is no (a) litigation or arbitration proceeding pending or (b) to
Borrower’s knowledge, demand, charge, claim, petition or governmental
investigation or proceeding pending, or threatened, against Borrowers or
Guarantor, which, if adversely determined, which might reasonably be expected
to have a Material Adverse Effect upon Borrowers or Guarantor. Other than any
liability incident to such litigation or proceedings, Borrowers have no
material guarantee obligations, contingent liabilities, liabilities for taxes,
or any long-term leases or unusual forward or long-term commitments, including
any interest rate or foreign currency swap or exchange transaction or other
obligation in respect of derivatives, that are not fully-reflected or fully
reserved for in the most recent audited financial statements delivered pursuant
to subsection 8.6(a) or fully-reflected


 


25

















 


or fully reserved for in
the most recent quarterly financial statements delivered pursuant to subsection
8.6(b).


 


7.10     Event of Default. No Event of
Default or Unmatured Event of Default exists or would result from the
incurrence by Borrowers of any of the Obligations hereunder or under any of the
other Loan Document, and Borrowers are not in default (without regard to grace
or cure periods) under any other contract or agreement to which it is a party.


 


7.11     Adverse Circumstances. No condition,
circumstance, event, agreement, document, instrument, restriction, litigation
or proceeding (or threatened litigation or proceeding or basis therefor) exists
which (a) would have a Material Adverse Effect upon Borrowers or
Guarantor, or (b) would constitute an Event of Default or an Unmatured
Event of Default.


 


7.12     Solvency, etc. As of the date
hereof, and immediately prior to and after giving effect to the making of the
Loan and the use of the proceeds thereof, (a) the fair value of each
Borrower’s assets is greater than the amount of its liabilities (including
disputed, contingent and unliquidated liabilities) as such value is established
and liabilities evaluated as required under the Section 548 of the
Bankruptcy Code, (b) the present fair saleable value of each Borrower’s
assets is not less than the amount that will be required to pay the probable
liability on its debts as they become absolute and matured, (c) each
Borrower is able to realize upon its assets and pay its debts and other
liabilities (including disputed, contingent and unliquidated liabilities) as
they mature in the normal course of business, (d) neither Borrower intends
to, and does not believe that it will, incur debts or liabilities beyond its
ability to pay as such debts and liabilities mature, and (e) neither
Borrower is engaged in business or a transaction, and is not about to engage in
business or a transaction, for which its property would constitute unreasonably
small capital.


 


7.13     ERISA Obligations. All Employee
Plans of Borrowers meet the minimum funding standards of Section 302 of
ERISA and 412 of the Internal Revenue Code where applicable, and each such
Employee Plan that is intended to be qualified within the meaning of Section 401
of the Internal Revenue Code of 1986 is qualified. No withdrawal liability has
been incurred under any such Employee Plans and no “Reportable Event” or “Prohibited
Transaction” (as such terms are defined in ERISA), has occurred with respect to
any such Employee Plans, unless approved by the appropriate governmental
agencies. Borrowers have promptly paid and discharged all obligations and
liabilities arising under the Employee Retirement Income Security Act of 1974 (“ERISA”)
of a character which if unpaid or unperformed might result in the imposition of
a Lien against any of its properties or assets.


 


7.14     Labor Relations. Except as could not
reasonably be expected to have a Material Adverse Effect, (i) there are no
strikes, lockouts or other labor disputes against Borrowers or threatened, (ii) hours
worked by and payment made to employees of Borrowers have not been in violation
of the Fair Labor Standards Act or any other applicable law, and (ii) no
unfair labor practice complaint is pending against Borrowers or threatened
before any governmental authority.


 


7.15     Security Interest. This Agreement
and the Mortgages create a valid security interest in favor of the Bank in the
Collateral and, when properly perfected by filing or recording in the
appropriate jurisdictions, or by possession or Control of such Collateral by
the Bank or


 


26

















 


delivery of such
Collateral to the Bank, shall constitute a valid, perfected, first-priority
security interest in such Collateral.


 


7.16     Lending Relationship. The
relationship hereby created between Borrowers and the Bank is and has been
conducted on an open and arm’s length basis in which no fiduciary relationship
exists, and Borrowers have not relied and is not relying on any such fiduciary
relationship in executing this Agreement and in consummating the Loan.


 


7.17     Business Loan. The Loan, including
interest rate, fees and charges as contemplated hereby, (i) is a business
loan within the purview of 815 ILCS 205/4(l)(c), as amended from time to time, (ii) are
an exempted transaction under the Truth In Lending Act, 12 U.S.C. 1601 et
seq., as amended from time to time, and (iii) does not, and when
disbursed shall not, violate the provisions of the Illinois usury laws, any
consumer credit laws or the usury laws of any state which may have jurisdiction
over this transaction, Borrowers or any property securing the Loan.


 


7.18     Taxes. Borrowers have timely filed
all tax returns and reports required by law to have been filed by it and has
paid all taxes, governmental charges and assessments due and payable with
respect to such returns, except any such taxes or charges which are being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books, are insured against or bonded over to the satisfaction of the Bank and
the contesting of such payment does not create a Lien on the Collateral which
is not a Permitted Lien. There is no controversy or objection pending, or to
the knowledge of Borrowers, threatened in respect of any tax returns of
Borrowers. Borrowers have made adequate reserves on its books and records in
accordance with GAAP for all taxes that have accrued but which are not yet due
and payable.


 


7.19     Compliance with Regulation U. No
portion of the proceeds of the Loan shall be used by Borrowers, or any
Affiliate of Borrowers, either directly or indirectly, for the purpose of
purchasing or carrying any margin stock, within the meaning of Regulation U as
adopted by the Board of Governors of the Federal Reserve System or any
successor thereto.


 


7.20     Governmental Regulation. Borrowers
are not, or after giving effect to any loan, will not be, subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act,
the ICC Termination Act of 1995 or the Investment Company Act of 1940 or to any
federal or state statute or regulation limiting its ability to incur
indebtedness for borrowed money.


 


7.21     Intentionally Deleted.


 


7.22     Place of Business. The principal
place of business and books and records of Borrowers are set forth in the
preamble to this Agreement. Neither Borrower shall change the place of its organization
without the prior written consent of the Bank, which consent will not be
unreasonably withheld or delayed.


 


7.23     Complete Information. This Agreement
and all financial statements, schedules, certificates, confirmations,
agreements, contracts, and other materials and information heretofore or
contemporaneously herewith furnished in writing by Borrowers to the Bank for
purposes of,


 


27

















 


or in connection with,
this Agreement and the transactions contemplated hereby is, and all written
information hereafter furnished by or on behalf of Borrowers to the Bank
pursuant hereto or in connection herewith will be, true and accurate in every
material respect on the date as of which such information is dated or certified,
and none of such information is or will be incomplete by omitting to state any
material fact necessary to make such information not misleading in light of the
circumstances under which made (it being recognized by the Bank that any
projections and forecasts provided by Borrowers are based on good faith
estimates and assumptions believed by Borrowers to be reasonable as of the date
of the applicable projections or assumptions and that actual results during the
period or periods covered by any such projections and forecasts may differ from
projected or forecasted results).


 


7.24     Compliance with Laws. To Borrower’s
knowledge, the Land, the present use and occupancy of the Premises and the use
and occupancy of the Premises does not violate or conflict with any applicable
law, statute, ordinance, rule, regulation or order of any kind, including,
without limitation, environmental laws, zoning, building, land use, noise
abatement, occupational health and safety or other laws, any building permit or
any condition, grant, easement, covenant, condition or restriction, whether
recorded or not, and if a third party is required under any covenants,
conditions and restrictions of record or any other agreement to consent to the
use and/or operation of the Premises, Borrowers have obtained such approval
from such party.


 


7.25     Compliance. To Borrowers’ knowledge,
Borrowers and the Premises and the use thereof comply in all material respects
with all applicable legal requirements, including, without limitation, building
and zoning ordinances and codes. Borrowers are not in default or violation of
any order, writ, injunction, decree or demand of any Governmental Authority.
There has not been committed by Borrowers or, to Borrowers’ knowledge, any
other Person in occupancy of or involved with the operation or use of the
Premises any act or omission affording the federal government or any other
Governmental Authority the right of forfeiture as against the Premises or any
part thereof or any monies paid in performance of Borrowers’ obligations under
any of the Loan Documents.


 


7.26     Condemnation. No Condemnation or
other proceeding has been commenced or, to Borrower’s knowledge, is
contemplated with respect to all or any portion of the Premises or for the
relocation of roadways providing access to the Premises.


 


7.27     Separate Lots. Except as set forth
in Schedule 7.27, each Individual Property is comprised of one (1) or more
parcels which constitute a separate tax lot or lots and does not constitute a
portion of any other tax lot not a part of such Individual Property.


 


7.28     Assessments. There are no pending,
or to Borrowers’ knowledge, proposed special or other assessments for public
improvements or otherwise affecting the Premises, nor are there any
contemplated improvements to the Premises that may result in such special or
other assessments.


 


7.29     Certificate of Occupancy; Licenses.
To Borrower’s knowledge, all certifications, permits, licenses and approvals,
including without limitation, certificates of completion and occupancy permits
required to be obtained for the legal use, occupancy and operation of the


 


28

















 


Premises as a bank or
office facility have been obtained and are in full force and effect, and to
Borrowers’ knowledge, all certifications, permits, licenses and approvals,
including without limitation, certificates of completion and occupancy permits
required to be obtained by any Person other than Borrowers for the legal use,
occupancy and operation of the Premises as a bank or office facility, have been
obtained and are in full force and effect (all of the foregoing certifications,
permits, licenses and approvals are collectively referred to as the “Licenses”).
Borrowers shall and shall cause all other Persons to, keep and maintain all
licenses necessary for the operation of the Premises as a bank or office
facility. Except as set forth in the zoning report furnished to the Bank or the
Title Insurance Policy, to Borrowers’ knowledge, the use being made of the
Premises is in conformity with all certificates of occupancy issued for the
Premises.


 


7.30     Physical Condition. To Borrowers’
knowledge, the Premises, including, without limitation, all buildings,
improvements, parking facilities, sidewalks, storm drainage systems, roofs,
plumbing systems, HVAC systems, fire protection systems, electrical systems,
equipment, elevators, exterior sidings and doors, landscaping, irrigation
systems and all structural components, are in good condition, order and repair
in all material respects; there exists no structural or other material defects
or damages in the Premises, whether latent or otherwise, and Borrowers have not
received notice from any insurance company or bonding company of any defects or
inadequacies in the Premises, or any part thereof, which would adversely affect
the insurability of the same or cause the imposition of extraordinary premiums
or charges thereon or of any termination or threatened termination of any
policy of insurance or bond.


 


7.31     Boundaries. To Borrowers’ knowledge,
all of the improvements which were included in determining the appraised value
of the Premises lie wholly within the boundaries and building restriction lines
of the Premises, and no improvements on adjoining properties encroach upon the
Premises, and no easements or other encumbrances upon the Premises encroach
upon any of the improvements, so as to affect the value or marketability of the
Premises except those which are insured (either by endorsement or by omission
from Schedule B of the applicable Title Insurance Policy) against by title
insurance.


 


7.32     Leases. The Premises is not subject
to any Leases other than the Leases described on the Rent Roll attached as Schedule
IV hereto. No Person has any possessory interest in the Premises or right
to occupy the same except under and pursuant to the provisions of the Leases.
The current Leases are in full force and effect and to Borrowers’ knowledge
after inquiry, there are no defaults thereunder by either party and there are
no conditions that, with the passage of time or the giving of notice, or both,
would constitute defaults thereunder. No rent (including security deposits) has
been paid more than one (1) month in advance of its due date. To the best
of Borrowers’ knowledge, all work to be performed by the landlord under each
Lease has been performed as required and has been accepted by the applicable
tenant, and any payments, free rent, partial rent, rebate of rent or other
payments, credits, allowances or abatements required to be given by Borrowers
to any tenant has already been received by such tenant. There has been no prior
sale, transfer or assignment, hypothecation or pledge of any Lease or of the
rents received therein which is outstanding. To Borrowers’ knowledge after
inquiry, except as permitted pursuant to the terms of the Leases, no tenant has
assigned its Lease or sublet all or any portion of the premises demised
thereby, nor does anyone except such tenant and its employees occupy such
leased premises. Except as provided pursuant to the express provisions of the
Leases provided to the Bank in connection with Closing, no tenant under any
Lease has a


 


29

















 


right or option pursuant
to such Lease or otherwise to purchase all or any part of the leased premises
or the building of which the leased premises are a part. No tenant under any
Lease has any right or option for additional space in the Improvements.


 


7.33     Filing and Recording Taxes. All
transfer taxes, deed stamps, intangible taxes or other amounts in the nature of
transfer taxes required to be paid by any Person under applicable legal
requirements currently in effect in connection with the acquisition of the
Premises by Borrowers have been paid or are simultaneously being paid. All mortgage,
mortgage recording, stamp, intangible or other similar tax required to be paid
by any Person under applicable legal requirements currently in effect in
connection with the execution, delivery, recordation, filing, registration,
perfection or enforcement of any of the Loan Documents, including, without
limitation, the Mortgages, have been paid.


 


7.34     Special Purpose Entity/Separateness.


 


(a)       Until the Loan has been paid in full,
each Borrower hereby represents, warrants and covenants that each Borrower is,
shall be and shall continue to be a Special Purpose Entity.


 


(b)       The representations, warranties and
covenants set forth in Section 7.34(a) shall survive for so
long as any amount remains payable to the Bank under this Agreement or any
other Loan Document.


 


7.35     Management Agreement. The Management
Agreement is in full force and effect and, to Borrowers’ knowledge, there is no
default thereunder by any party thereto and no event has occurred that, with
the passage of time and/or the giving of notice would constitute a default
thereunder.


 


7.36     Illegal Activity. To Borrowers’
knowledge, no portion of the Premises has been or will be purchased with
proceeds of any illegal activity.


 


Section 8.      AFFIRMATIVE COVENANTS.


 


8.1       Compliance with Bank Regulatory Requirements;
Increased Costs. If the Bank shall reasonably determine that any Regulatory
Change, or compliance by the Bank or any Person controlling the Bank with any
request or directive (whether or not having the force of law) of any
governmental authority, central bank or comparable agency has or would have the
effect of reducing the rate of return on the Bank’s or such controlling Person’s
capital as a consequence of the Bank’s obligations hereunder to a level below
that which the Bank or such controlling Person could have achieved but for such
Regulatory Change or compliance (taking into consideration the Bank’s or such
controlling Person’s policies with respect to capital adequacy) by an amount
deemed by the Bank or such controlling Person to be material or would otherwise
reduce the amount of any sum received or receivable by the Bank under this
Agreement or under the Note with respect thereto, then from time to time, upon
demand by the Bank (which demand shall be accompanied by a statement setting forth
the basis for such demand and a calculation of the amount thereof in reasonable
detail), Borrowers shall pay directly to the Bank or such controlling Person
such additional amount as will compensate the Bank for such increased cost or
such reduction, so long as such amounts have accrued on or after


 


30

















 


the day which is one
hundred eighty days (180) days prior to the date on which the Bank first made
demand therefor.


 


8.2       Borrower Existence. Each Borrower
shall at all times (a) preserve and maintain its existence and good
standing in the jurisdiction of its organization, (b) preserve and
maintain its qualification to do business and good standing in each
jurisdiction where the nature of its business makes such qualification
necessary, and (c) continue as a going concern in the business which such
Borrower is presently conducting.


 


8.3       Payment of Taxes and Liabilities.
Borrowers shall pay or cause to be paid and discharge, prior to delinquency and
before penalties accrue thereon, all property and other taxes, and all
governmental charges or levies against it or any of the Collateral, as well as
claims of any kind which, if unpaid, could become a Lien on any of its
property; provided that the foregoing shall not require Borrowers to pay any
such tax or charge so long as either shall contest the validity thereof in good
faith by appropriate proceedings and shall set aside on its books adequate
reserves with respect thereto in accordance with GAAP and, in the case of a
claim which could become a Lien on any of the Collateral, such contest
proceedings stay the foreclosure of such Lien or the sale of any portion of the
Collateral to satisfy such claim or the Tenant contests same in accordance with
the terms of the Leases.


 


8.4       Maintain Premises. Borrowers shall
at all times maintain, preserve and keep or cause Tenant to maintain, preserve
and keep, in accordance with the terms of the Leases, the Collateral, in good
repair, working order and condition, normal wear and tear excepted, and shall
from time to time make all needful and proper repairs, renewals, replacements,
and additions thereto so that at all times the efficiency thereof shall be
fully preserved and maintained. Subject to the rights of Tenant under the Leases,
Borrowers shall permit the Bank to examine and inspect Collateral at all
reasonable times.


 


8.5       ERISA Liabilities; Employee Plans.
Borrowers shall (i) keep in full force and effect any and all Employee
Plans which are presently in existence or may, from time to time, come into
existence under ERISA, and not withdraw from any such Employee Plans, unless
such withdrawal can be effected or such Employee Plans can be terminated
without liability to Borrowers; (ii) make contributions to all of such
Employee Plans in a timely manner and in a sufficient amount to comply with the
standards of ERISA; including the minimum funding standards of ERISA; (iii) comply
with all material requirements of ERISA which relate to such Employee Plans; (iv) notify
the Bank immediately upon receipt by Borrowers of any notice concerning the
imposition of any withdrawal liability or of the institution of any proceeding
or other action which may result in the termination of any such Employee Plans
or the appointment of a trustee to administer such Employee Plans; (v) promptly
advise the Bank of the occurrence of any “Reportable Event” or “Prohibited
Transaction” (as such terms are defined in ERISA), with respect to any such
Employee Plans; and (vi) amend any Employee Plan that is intended to be
qualified within the meaning of Section 401 of the Internal Revenue Code
of 1986 to the extent necessary to keep the Employee Plan qualified, and to
cause the Employee Plan to be administered and operated in a manner that does
not cause the Employee Plan to lose its qualified status.


 


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8.6       Financial Statements. Borrowers
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 except
as noted, and shall furnish to the Bank or its authorized representatives such
information regarding the business affairs, operations and financial condition
of Borrowers, including:


 


(a)       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 (i) the annual reviewed financial statements of
Borrowers, including consolidated 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 Bank may
reasonably request, in reasonable detail, prepared and certified by an
independent auditor of recognized standing, selected by Borrowers and
reasonably acceptable to the Bank and (ii) a consolidating balance sheet
of Borrowers as of the end of each of its fiscal years and consolidating
statements of earnings and cash flows for Borrowers for each of its fiscal
years, certified as true and correct by Borrowers’ treasurer or chief financial
officer;


 


(b)       promptly when available, and in any
event, within forty five (45) days following the end of each fiscal quarter, a
copy of the consolidated and consolidating financial statements of Borrowers 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 Bank may request,
in reasonable detail, prepared and certified as true and correct by Borrowers’
treasurer or chief financial officer; and


 


(c)       Borrowers shall furnish to the Bank,
within ten (10) Business Days after the Bank’s request (or as soon
thereafter as may be reasonably possible), financial information from any
tenant designated by the Bank (to the extent such financial information is
required to be provided under the applicable Lease and same is received by
Borrowers after request therefor).


 


No change with respect to
such accounting principles shall be made by Borrowers without giving prior
notification to the Bank. Borrowers represent and warrant to the Bank that the
financial statements delivered to the Bank at or prior to the execution and
delivery of this Agreement and to be delivered at all times thereafter
accurately reflect and will accurately reflect the financial condition of
Borrowers. The Bank shall have the right at all times during business hours to
inspect the books and records of Borrowers and make extracts therefrom.


 


8.7       Supplemental Financial Statements.
Borrowers shall immediately upon receipt thereof, provide to the Bank copies of
interim and supplemental reports if any, submitted to Borrowers by independent
accountants in connection with any interim audit or review of the books of
Borrowers.


 


8.8       Notice of Proceedings. Borrowers,
promptly upon becoming aware, shall give written notice to the Bank of any
litigation, arbitration or governmental investigation or proceeding not
previously disclosed by Borrowers to the Bank which has been instituted or, to


 


32

















 


the knowledge of
Borrowers, is threatened against either Borrower or to which any of its
properties is subject which might reasonably be expected to have a Material
Adverse Effect.


 


8.9       Notice of Event of Default or Material
Adverse Effect. Borrowers shall, immediately after the commencement
thereof, give notice to the Bank in writing of the occurrence of any Event of
Default or any Unmatured Event of Default, or the occurrence of any condition
or event having a Material Adverse Effect.


 


8.10     Further Assurances. Borrowers shall
take such actions as are necessary or as the Bank may reasonably request from
time to time to ensure that the Obligations under the Loan Documents are
secured by substantially all of the assets of Borrowers, in each case as the
Bank may determine, including (a) the execution and delivery of security
agreements, pledge agreements, mortgages, deeds of trust, financing statements
and other documents, and the filing or recording of any of the foregoing, and (b) the
delivery of certificated securities and other collateral with respect to which
perfection is obtained by possession.


 


8.11     Banking Relationship. Borrowers
covenant and agree, at all times during the term of this Agreement, to utilize
the Bank as its primary bank of account and depository for all financial
services, including all receipts, disbursements, cash management and related
service.


 


8.12     Fixtures and Personal Property.
Except for a security interest granted to the Bank, Borrowers agree that all of
the personal property, fixtures, attachments, furnishings and equipment
delivered in connection with the operation of the Premises will be kept free
and clear of all chattel mortgages, vendor’s liens, and all other liens,
claims, encumbrances and security interests whatsoever, and that Borrowers will
be the absolute owner of said personal property, fixtures, attachments and
equipment. Borrowers, on request, will furnish the Bank with satisfactory
evidence of such ownership, and of the terms of purchase and payment therefor.


 


8.13     Patriot Act. The Bank hereby
notifies Borrowers 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 Bank’s policies and practices, the Bank is required to obtain, verify
and record certain information and documentation that identifies Borrowers,
which information includes the name and address of Borrowers and such other
information that will allow the Bank to identify Borrowers in accordance with
the Act. In addition, Borrowers shall (a) ensure that no person who owns a
controlling interest in or otherwise controls Borrowers or any subsidiary of
Borrowers 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.


 


8.14     Leasing Matters. Any Leases with
respect to the Premises written after the Closing Date shall be subject to the
prior written approval of the Bank, which approval may be given or withheld in
the sole discretion of the Bank. Borrowers shall furnish the Bank with executed
copies of all Leases. All renewals of Leases and all proposed Leases shall
provide for rental rates comparable to existing local market rates (unless such
rental rates are otherwise set


 


33

















 


forth in the Leases
executed prior to the Closing Date). All proposed Leases shall be on
commercially reasonable terms and shall not contain any terms which would
materially affect the Bank’s rights under the Loan Documents. All Leases shall
provide that they are subordinate to the Mortgage encumbering the Premises and
that the tenant thereunder agrees to attorn to the Bank or any purchaser at a
sale by foreclosure or power of sale. Borrowers (i) shall observe and
perform the obligations imposed upon the lessor under the Leases in a
commercially reasonable manner; (ii) shall enforce the terms, covenants
and conditions contained in the Leases upon the part of the tenant thereunder
to be observed or performed in a commercially reasonable manner and in a manner
not to impair the value of the Premises involved except that no termination by
Borrowers or acceptance of surrender by a tenant of any Lease shall be
permitted without the written’ consent of the Bank which consent may be withheld
in the sole discretion of the Bank; (iii) shall not collect any of the
rents more than one (1) month in advance (other than security deposits); (iv) shall
not execute any other assignment of lessor’s interest in the Leases or the
rents (except as contemplated by the Loan Documents); (v) shall not alter,
modify or change the terms of the Leases in a manner inconsistent with the
provisions of the Loan Documents without the prior written consent of the Bank,
which consent may be withheld in the sole discretion of the Bank; (vi) shall
not consent to approve any assignment or, unless such consent is not required
under the Lease, subletting under any Lease; and (vii) shall execute and
deliver at the request of the Bank all such further assurances, confirmations
and assignment in connection with the Leases as the Bank shall from time to
time reasonably require.


 


8.15     Alterations. Subject to the rights
of the tenant to make alterations pursuant to the terms of Section 6.2 of
the Leases, Borrowers shall obtain the Bank’s prior written consent to any
alterations to any Improvements, which consent shall not be unreasonably
withheld or delayed except with respect to alterations that may have a Material
Adverse Effect on Borrowers’ financial condition, the value of the Premises or
the Net Cash Flow. Notwithstanding the foregoing, the Bank’s consent shall not
be required in connection with any alterations that will not have a material
adverse effect on Borrowers’ financial condition, the value of the Premises or
the Net Cash Flow, provided that such alterations that require landlord’s
consent under Section 6.2 of the Lease shall also require the Bank’s
consent. To the extent that tenant is require to furnish the Borrowers a bond
under Section 6.2, the Bank shall be named as a dual obligee on such bond.


 


8.16     Insurance.


 


(a)       Borrowers shall at all times keep all
buildings, improvements, fixtures and articles of personal property now or
hereafter situated on the Premises insured against loss or damage by fire and
such other hazards as may reasonably be required by the Bank, in accordance
with the terms, coverages and provisions described on Schedule III attached
hereto and made a part hereof, and such other insurance as the Bank may from
time to time reasonably require. Unless Borrowers provide the Bank evidence of
the insurance coverages required hereunder, the Bank may purchase insurance at
Borrowers’ expense to cover the Bank’s interest in the Premises. The insurance
may, but need not, protect Borrowers’ interest. The coverages that the Bank
purchases may not pay any claim that Borrowers makes or any claim that is made
against Borrowers in connection with the Premises. Borrowers may later cancel
any insurance purchased by the Bank, but only after providing the Bank with evidence
that Borrowers have obtained insurance as


 


34

















 


required by this
Agreement. If the Bank purchases insurance for the Premises, Borrowers will be
responsible for the costs of such insurance, including, without limitation,
interest and any other charges which the Bank may impose in connection with the
placement of the insurance, until the effective date of the cancellation or
expiration of the insurance. The costs of the insurance may be added to the Loan.
The cost of the insurance may be more than the cost of insurance Borrowers may
be able to obtain on their own. Notwithstanding the foregoing, on the condition
the Minimum Credit Rating Requirement (as defined in the Leases) is satisfied,
the insurance coverage maintained by the Tenant under the Leases shall satisfy
the conditions of Section 8.16(a).


 


(b)       Borrowers shall not take out separate
insurance concurrent in form or contributing in the event of loss with that
required to be maintained hereunder unless the Bank is included thereon as the
loss payee or an additional insured as applicable, under a standard mortgage
clause acceptable to the Bank and such separate insurance is otherwise
acceptable to the Bank.


 


(c)       In the event of loss, Borrowers shall give
prompt notice thereof to the Bank. If such loss exceeds $250,000 (the “Threshold”)
and the Minimum Credit Rating Requirement is not met, then the Bank shall
receive such payment for loss from each insurance company concerned as
escrowee. Borrowers shall cause the Tenant to promptly rebuild or restore the
affected Individual Property in accordance with Section 7.2 of the Leases.
The Bank shall have the right, at its option and in its sole discretion, to
apply any insurance proceeds received by the Bank pursuant to the terms of this
section, after the payment of all of the Bank’s expenses, either (i) on
account of the Loan, irrespective of whether such principal balance is then due
and payable, or (ii) to the restoration or repair of the property damaged
as provided in subsection (d) below; Borrowers shall repair, restore or
rebuild the damaged or destroyed portion of the Premises so that the condition
and value of the Premises are substantially the same as the condition and value
of the Premises prior to being damaged or destroyed. In the event of
foreclosure of the applicable Mortgage, all right, title and interest of
Borrowers in and to any insurance policies then in force shall pass to the
purchaser at the foreclosure sale.


 


8.17     Condemnation.


 


If all or any part
of the Premises are damaged, taken or acquired, either temporarily or
permanently, in any condemnation proceeding, or by exercise of the right of
eminent domain and the applicable Lease is terminated pursuant to Section 7.1(a) of
the Lease, the amount of any award or other payment for such taking or damages
made in consideration thereof, to the extent of the full amount of the
remaining unpaid Loan, is hereby assigned to the Bank, who is empowered to
collect and receive the same and to give proper receipts therefor in the names
of Borrowers and the same shall be paid forthwith to the Bank. Such award or
monies shall be applied on account of the Loan, irrespective of whether such
Loan is then due and payable. In the event of a condemnation or taking that
does not result in the termination of the applicable Lease, the Borrower shall
cause the Tenant to promptly commence and diligently complete the restoration
of the affected Individual Property in accordance with Section 7.1 of the
affected Lease. Notwithstanding the provisions of this section to the contrary,
if any condemnation or taking of less than an entire Individual Property
occurs, subject to the terms of Section 7.1 of the


 


35

















 


affected Lease, then the
award or payment for such taking or consideration for damages resulting
therefrom may be collected and received by Borrowers for payment to the Tenant
as reimbursement for the cost of restoration, with any remainder paid to the
Bank for application to the Loan.


 


8.18     Contests.


 


Notwithstanding
anything to the contrary herein contained, Borrowers shall have the right to
contest by appropriate legal proceedings diligently prosecuted any Taxes
imposed or assessed upon the Premises or which may be or become a lien thereon
and any mechanics’, materialmen’s or other liens or claims for lien upon the
Premises (each, a “Contested Liens”), and no Contested Lien shall constitute an
Event of Default hereunder, if, but only if:


 


(a)       Borrowers shall forthwith give notice of
any Contested Lien to the Bank at the time the same shall be asserted and
Borrowers shall have received notice thereof from Tenant;


 


(b)       The provisions of Section 4.4 of the
applicable Lease are complied with;


 


(c)       Borrowers shall cause the Tenant to
diligently prosecute the contest of any Contested Lien by appropriate legal
proceedings; and


 


(d)       Borrowers shall pay each such Contested
Lien and all lien amounts together with interest and penalties thereon (i) if
and to the extent that any such Contested Lien shall be determined adverse to
Borrowers, or (ii) forthwith upon demand by the Bank if, in the opinion of
the Bank, and notwithstanding any such contest, the Premises shall be in
jeopardy or in danger of being forfeited or foreclosed; provided that if
Borrowers shall fail so to do, the Bank may, but shall not be required to, pay
all such Contested Liens and lien amounts and interest and penalties thereon
and such other sums as may be necessary in the judgment of the Bank to obtain
the release and discharge of such liens; and any amount expended by the Bank in
so doing shall be so much additional Loan bearing interest at the Default Rate
until paid, and payable upon demand.


 


Section 9.      NEGATIVE COVENANTS.


 


9.1       Debt. Borrowers shall not, either
directly or indirectly, create, assume, incur or have outstanding any Debt
(including purchase money indebtedness), or become liable, whether as endorser,
guarantor, surety or otherwise, for any debt or obligation of any other Person,
except:


 


(a)       the Obligations under this Agreement and
the other Loan Documents;


 


(b)       obligations of Borrower for Taxes,
assessments, municipal or other governmental charges; and


 


(c)       obligations of Borrowers for accounts
payable, other than for money borrowed, incurred in the ordinary course of
business.


 


36

















 


9.2       Encumbrances. Borrowers shall not,
either directly or indirectly, create, assume, incur or suffer or permit to
exist any Lien or charge of any kind or character upon any asset of Borrowers,
whether owned at the date hereof or hereafter acquired, except for Permitted
Liens.


 


9.3       Investments. Borrowers shall not,
either directly or indirectly, make or have outstanding any Investment, except:


 


(a)       Cash Equivalent Investments; and


 


(b)       bank deposits in the ordinary course of
business.


 


provided, however, that
any Investment which when made complies with the requirements of the definition
of the term “Cash Equivalent Investment” may continue to be held
notwithstanding that such Investment if made thereafter would not comply with
such requirements.


 


9.4       Transfer; Merger; Sales. Borrowers
shall not, whether in one transaction or a series of related transactions, (a) be
a party to any merger or consolidation, or purchase or otherwise acquire all or
substantially all of the assets or any Capital Securities of any class of, or
any partnership or joint venture interest in, any other Person.


 


9.5       Issuance of Capital Securities.
Borrowers shall not issue any Capital Securities.


 


9.6       Distributions. If an Event of
Default under Sections 11.1 or 11.7 exists, Borrowers shall not (a) make
any distribution or dividend (other than stock dividends), whether in cash or
otherwise, to any of its equityholders, (b) purchase or redeem any of its
equity interests or any warrants, options or other rights in respect thereof, (c) pay
any management fees or similar fees to any of its equityholders or any
Affiliate thereof, except pursuant to the Management Agreement, (d) or set
aside funds for any of the foregoing.


 


9.7       Transactions with Affiliates.
Borrowers shall not, directly or indirectly, enter into or permit to exist any
transaction with any of its Affiliates or with any director, officer or
employee of Borrowers other than transactions in the ordinary course of, and
pursuant to the reasonable requirements of, the business of Borrowers and upon
fair and reasonable terms which are fully disclosed to the Bank and are no less
favorable to Borrowers than would be obtained in a comparable arm’s length
transaction with a Person that is not an Affiliate of Borrowers.


 


9.8       Inconsistent Agreements. Borrowers
shall not enter into any agreement containing any provision which would (a) be
violated or breached by any borrowing by Borrowers hereunder or by the
performance by Borrowers of any of their Obligations hereunder or under any
other Loan Document, or (b) prohibit Borrowers from granting to the Bank a
Lien on any of its assets.


 


9.9       Use of Proceeds. Neither Borrower
shall use any portion of the proceeds of the Loan, either directly or
indirectly, for the purpose of purchasing any securities underwritten by
LaSalle Bank Financial Services, Inc. or any other Affiliate of the Bank.


 


9.10     Intentionally Deleted.


 


37

















 


9.11     Business Activities; Change of Legal
Status and Organizational Documents. Borrowers shall not (a) engage in
any line of business other than the businesses engaged in on the date hereof
and businesses reasonably related thereto, (b) change their names, its Organizational
Identification Numbers, if they have one, their type of organization, their
jurisdictions of organization or other legal structures, or (b) permit
their charters, bylaws or other organizational documents to be amended or
modified in any way which could reasonably be expected to materially adversely
affect the interests of the Bank.


 


9.12     Restrictions on Transfer.


 


(a)       Borrowers, without the prior written
consent of the Bank, shall not effect, suffer or permit any Prohibited Transfer
(as defined herein). Any conveyance, sale, assignment, transfer, lien, pledge,
mortgage, security interest or other encumbrance or alienation (or any
agreement to do any of the foregoing) of any of the following properties or
interests listed in clauses (i) through (v) below shall constitute a “Prohibited
Transfer.” For purposes hereof, a “Prohibited Transfer” shall not include (A) any
issuance, sale or transfer of interests in Inland American Real Estate Trust, Inc.
or any successor entity resulting from any merger permitted hereunder, (B) the
merger of the Inland American Real Estate Trust, Inc. with any of the
following entitles: Inland Real Estate Corporation, a Maryland corporation,
Inland Real Estate Investment Corporation, a Delaware corporation, Inland
Western Retail Real Estate Trust, Inc., a Maryland corporation, any other
real estate investment trust sponsored by Inland Real Estate Investment
Corporation, or any other entity composed entirely of any of the foregoing;
provided, however, (i) Lender shall receive not less than thirty (30) days’
prior written notice of any such proposed merger, (ii) the net worth of
the entity surviving such merger shall equal or exceed the net worth of the
Inland American Real Estate Trust, Inc. immediately prior to such merger, and
(iii) immediately following such merger, the entity surviving the merger
shall be publicly traded:


 


(i)         The Premises or any part thereof or
interest therein, excepting only sales or other dispositions of Collateral (“Obsolete
Collateral”) no longer useful in connection with the operation of the
Premises, provided that prior to the sale or other disposition thereof, such
Obsolete Collateral has been replaced by Collateral of at least equal value and
utility which is subject to the lien hereof with the same priority as with
respect to the Obsolete Collateral and excepting sales or dispositions of
collateral permitted under Section 2.6 of the Leases in connection with
Alterations (as defined in the Leases);


 


(ii)        Any shares of capital stock of a
corporate Borrowers, a corporation which is a general partner or managing
member/manager in a partnership or limited liability company Borrowers, or a
corporation which is the owner of substantially all of the capital stock of any
corporation described in this subsection (other than the shares of capital
stock of a corporate trustee or a corporation whose stock is publicly traded on
a national securities exchange or on the National Association of Securities
Dealers’ Automated Quotation System);


 


38

















 


(iii)       All or any part of the membership
interests in a limited liability company Borrower or a limited liability
company which is a general partner of a partnership Borrowers;


 


(iv)      All or any part of the general partner or
joint venture interest, as the case may be, of a partnership Borrowers or a
partnership which is a manager of a limited liability company Borrowers or the
conversion of a partnership Borrowers to a corporation or limited liability
company; or


 


(v)       If there shall be any Change in Control
(by way of transfers of stock, partnership or member interests or otherwise) in
any partner, member, manager or shareholder, as applicable, which directly or
indirectly controls the day to day operations and management of Borrowers or
the Guarantor;


 


in each case whether any
such conveyance, sale, assignment, transfer, lien, pledge, mortgage, security
interest, encumbrance or alienation is effected directly, indirectly (including
the nominee agreement), voluntarily or involuntarily, by operation of law or
otherwise; provided, however, that the foregoing provisions of this section
shall not apply (i) to liens securing the Loan, (ii) to the lien of
current taxes and assessments not in default, (iii) to any transfers of
the Premises, or part thereof, or interest therein, or any beneficial
interests, or shares of stock or partnership or joint venture interests, as the
case may be, by or on behalf of an owner thereof who is deceased or declared
judicially incompetent, to such owner’s heirs, legatees, devisees, executors,
administrators, estate or personal representatives, or (iv) to Leases
permitted by the terms of the Loan Documents, if any.


 


(b)       In determining whether or not to make the
Loan, the Bank evaluated the background and experience of Borrowers and their
members in owning and operating property such as the Premises, found them
acceptable and relied and continues to rely upon same as the means of
maintaining the value of the Premises which is the Bank’s security for the
Note. Borrowers and their members are well experienced in borrowing money and
owning and operating property such as the Premises, were ably represented by a
licensed attorney at law in the negotiation and documentation of the Loan and
bargained at arm’s length and without duress of any kind for all of the terms
and conditions of the Loan, including this provision. Borrowers recognize that
the Bank is entitled to keep its loan portfolio at current interest rates by
either making new loans at such rates or collecting assumption fees and/or
increasing the interest rate on a loan, the security for which is purchased by
a party other than the original Borrowers. Borrowers further recognize that any
secondary junior financing placed upon the Premises (i) may divert funds
which would otherwise be used to pay the Note; (ii) could result in
acceleration and foreclosure by any such junior encumbrances which would force
the Bank to take measures and incur expenses to protect its security; (iii) would
detract from the value of the Premises should the Bank come into possession
thereof with the intention of selling same; and (iv) would impair the Bank’s
right to accept a deed in lieu of foreclosure, as a foreclosure by the Bank
would be necessary to clear the title to the Premises. In accordance with the
foregoing and for the purposes of (a) protecting the Bank’s security, both
of repayment and of value of the Premises; (b) giving the Bank the full
benefit of its bargain and contract with Borrowers; (c) allowing the Bank
to raise the


 


39

















 


interest rate and collect
assumption fees; and (d) keeping the Premises free of subordinate
financing liens, Borrowers agree that if this section is deemed a restraint on
alienation, that it is a reasonable one.


 


Section 10.    FINANCIAL COVENANTS.


 


10.1     Debt Service Coverage. As of the end
of each fiscal quarter of Borrowers, Borrowers shall maintain a ratio of (a) Net
Cash Flow, to (b) Debt Service for such period of not less than 1.15 to
1.00.


 


Section 11.    EVENTS OF DEFAULT.


 


Borrowers, without
notice or demand of any kind, shall be in default under this Agreement upon the
occurrence of any of the following events (each an “Event of Default”).


 


11.1     Nonpayment of Obligations. Any
amount due and owing on the Note or any of the Obligations, whether by its
terms or as otherwise provided herein, is not paid within five (5) days of
the applicable due date.


 


11.2     Misrepresentation. Any oral or
written warranty, representation, certificate or statement of any Obligor in
this Agreement, the other Loan Documents or any other agreement with the Bank
shall be false in any material respect when made or at any time thereafter, or
if any financial data or any other information now or hereafter furnished to
the Bank by or on behalf of any Obligor shall prove to be false, inaccurate or
misleading in any material respect.


 


11.3     Nonperformance. Borrowers fail to
perform or cause to be performed any other obligation or observe any other
condition, covenant, term, agreement or provision required to be performed or
observed by Borrowers under Sections 8.16, 9.2, 9.6 or 9.12 of this Agreement,
or Borrowers fail to perform or cause to be performed any other obligation or
observe any other condition, covenant, term, agreement or provision required to
performed or observed by Borrowers under the Note, this Agreement or any of the
other Loan Documents; provided, however, that if such failure by its nature can
be cured, then so long as the continued operation and safety of the Premises,
and the priority, validity and enforceability of the liens created by the
Mortgage or any of the other Loan Documents and the value of the Premises are
not impaired, threatened or jeopardized, then Borrowers shall have a period (“Cure
Period”) of thirty (30) days after Borrowers obtain actual knowledge of such
failure or receives written notice of such failure to cure the same and an
Event of Default shall not be deemed to exist during the Cure Period, provided
further that if Borrowers commence to cure such failure during the Cure Period
and is diligently and in good faith attempting to effect such cure, the Cure
Period shall be extended for thirty (30) additional days, but in no event shall
the Cure Period be longer than ninety (90) days in the aggregate.


 


11.4     Default under Loan Documents. A
default under any of the other Loan Documents, all of which covenants,
conditions and agreements contained therein are hereby incorporated in this
Agreement by express reference, shall be and constitute an Event of Default
under this Agreement and any other of the Obligations.


 


40
















 


11.5       Default
under Other Debt. Any default by any Obligor in the payment of any Debt for
any other obligation beyond any period of grace provided with respect thereto
or in the performance of any other term, condition or covenant contained in any
agreement (including any capital or operating lease or any agreement in
connection with the deferred purchase price of property) under which any such
obligation is created, the effect of which default is to cause or permit the
holder of such obligation (or the other party to such other agreement) to cause
such obligation to become due prior to its stated maturity or terminate such
other agreement.


 


11.6       Other
Material Obligations. Any default in the payment when due, or in the
performance or observance of, any material obligation of, or condition agreed
to by, any Obligor with respect to any material purchase or lease of goods or
services where such default, singly or in the aggregate with all other such
defaults, might reasonably be expected to have a Material Adverse Effect.


 


11.7       Bankruptcy,
Insolvency, etc. Any Obligor becomes insolvent or generally fails to pay,
or admits in writing its inability or refusal to pay, debts as they become due;
or any Obligor applies for, consents to, or acquiesces in the appointment of a
trustee, receiver or other custodian for such Obligor or any property thereof,
or makes a general assignment for the benefit of creditors; or, in the absence
of such application, consent or acquiescence, a trustee, receiver or other
custodian is appointed for any Obligor or for a substantial part of the
property of any thereof and is not discharged within sixty (60) days; or any
bankruptcy, reorganization, debt arrangement, or other case or proceeding under
any bankruptcy or insolvency law, or any dissolution or liquidation proceeding,
is commenced in respect of any Obligor, and if such case or proceeding is not
commenced by such Obligor, it is consented to or acquiesced in by such Obligor,
or remains undismissed for sixty (60) days; or any Obligor takes any action to
authorize, or in furtherance of, any of the foregoing.


 


11.8       Judgments.
The entry of any final judgment, decree, levy, attachment, garnishment or other
process involving $250,000 or more, or the filing of any Lien against any
Obligor which is not fully covered by insurance, and such judgment or other
process shall not have been, within thirty (30) days from the entry thereof, (i) bonded
over to the satisfaction of the Bank and appealed, (ii) vacated, or (iii) discharged.


 


11.9       Change in
Control or Prohibited Transfer. The occurrence of any Change in Control or
Prohibited Transfer.


 


11.10     Collateral
Impairment. The entry of any judgment, decree, levy, attachment,
garnishment or other process, or the filing of any Lien against, any of the Collateral
or any collateral under a separate security agreement securing any of the
Obligations and such judgment or other process shall not have been, within
thirty (30) days from the entry thereof, (i) bonded over to the
satisfaction of the Bank and appealed, (ii) vacated, or (iii) discharged,
or the loss, theft, destruction, seizure or forfeiture, or the occurrence of
any material deterioration or impairment of any of the Collateral or any of the
collateral under any security agreement securing any of the Obligations, or any
material decline or depreciation in the value or market price thereof (whether
actual or reasonably anticipated), which causes the Collateral, in the sole
opinion of the Bank acting in good faith, to become unsatisfactory as to value or
character, or which causes the Bank to reasonably believe that it is insecure
and that the likelihood for


 


41

















 


repayment of the
Obligations is or will soon be impaired, time being of the essence. The cause
of such deterioration, impairment, decline or depreciation shall include, but
is not limited to, the failure by Borrowers to do any act deemed reasonably
necessary by the Bank to preserve and maintain the value and collectability of
the Collateral.


 


11.11     Material
Adverse Effect. The occurrence of any development, condition or event which
has a Material Adverse Effect on Borrowers.


 


11.12     Guaranty.
There is a discontinuance by the Guarantor of the Guaranty, or the Guarantor
shall contest the validity of such Guaranty.


 


11.13     Lease
Default or Termination. A monetary or material non-monetary default occurs
under any Lease and is not cured within any cure or grace period, or any Lease
terminates.


 


Section 12.      REMEDIES.


 


Upon the
occurrence of an Event of Default, the Bank shall have all rights, powers and
remedies set forth in the Loan Documents, in any written agreement or
instrument (other than this Agreement or the Loan Documents) relating to any of
the Obligations or any security therefor, as a secured party under the UCC or
as otherwise provided at law or in equity. Without limiting the generality of
the foregoing, the Bank may, at its option upon the occurrence of an Event of
Default, declare its commitments to Borrowers be terminated and all Obligations
to be immediately due and payable, provided, however, that upon the occurrence
of an Event of Default under Section 11.7, all commitments of the
Bank to Borrowers shall immediately terminate and all Obligations shall be
automatically due and payable, all without demand, notice or further action of
any kind required on the part of the Bank. Each Borrower hereby waives any and
all presentment, demand, notice of dishonor, protest, and all other notices and
demands in connection with the enforcement of Bank’s rights under the Loan
Documents, and hereby consents to, and waives notice of release, with or
without consideration, of either Borrower, the Guarantor of any Collateral,
notwithstanding anything contained herein or in the Loan Documents to the
contrary. In addition to the foregoing:


 


12.1       Possession
and Assembly of Collateral. The Bank may, without notice, demand or legal
process of any kind, take possession of any or all of the Collateral (in
addition to Collateral of which the Bank already has possession), wherever it
may be found, and for that purpose may pursue the same wherever it may be
found, and may at any time enter into any of Borrowers’ premises where any of
the Collateral may be or is supposed to be, and search for, take possession of,
remove, keep and store any of the Collateral until the same shall be sold or
otherwise disposed of and the Bank shall have the right to store and conduct a
sale of the same in any of Borrowers’ premises without cost to the Bank. At the
Bank’s request, Borrowers will, at Borrowers’ sole expense, assemble the
Collateral and make it available to the Bank at a place or places to be
designated by the Bank which is reasonably convenient to the Bank and
Borrowers.


 


12.2       Sale of
Collateral. Except with respect to Collateral that is subject to Mortgages,
which shall govern disposition of such Collateral, the Bank may sell any or all
of the Collateral at public or private sale, upon such terms and conditions as
the Bank may deem proper, and the


 


42

















 


Bank may purchase any or
all of the Collateral at any such sale. Borrowers acknowledge that the Bank may
be unable to effect a public sale of all or any portion of the Collateral
because of certain legal and/or practical restrictions and provisions which may
be applicable to the Collateral and, therefore, may be compelled to resort to
one or more private sales to a restricted group of offerees and purchasers.
Borrowers consent to any such private sale so made even though at places and upon
terms less favorable than if the Collateral were sold at public sale. The Bank
shall have no obligation to clean-up or otherwise prepare the Collateral for
sale. The Bank may apply the net proceeds, after deducting all costs, expenses,
attorneys’ and paralegals’ fees incurred or paid at any time in the collection,
protection and sale of the Collateral and the Obligations, to the payment of
the Note and/or any of the other Obligations, returning the excess proceeds, if
any, to Borrowers. Borrowers shall remain liable for any amount remaining
unpaid after such application, with interest at the Default Rate. Any
notification of intended disposition of the Collateral required by law shall be
conclusively deemed reasonably and properly given if given by the Bank at least
ten (10) calendar days before the date of such disposition. Each Borrower
hereby confirms, approves and ratifies all acts and deeds of the Bank relating
to the foregoing, and each part thereof, and expressly waives any and all
claims of any nature, kind or description which it has or may hereafter have
against the Bank or its representatives, by reason of taking, selling or
collecting any portion of the Collateral. Borrowers consent to releases of the
Collateral at any time (including prior to default) and to sales of the
Collateral in groups, parcels or portions, or as an entirety, as the Bank shall
deem appropriate. Borrowers expressly absolve the Bank from any loss or decline
in market value of any Collateral by reason of delay in the enforcement or
assertion or nonenforcement of any rights or remedies under this Agreement.


 


12.3       Standards
for Exercising Remedies. To the extent that applicable law imposes duties
on the Bank to exercise remedies in a commercially reasonable manner, Borrowers
acknowledge and agree that it is not commercially unreasonable for the Bank (a) to
fail to incur expenses reasonably deemed significant by the Bank to prepare
Collateral for disposition or otherwise to complete raw material or
work-in-process into finished goods or other finished products for disposition,
(b) to fail to obtain third party consents for access to Collateral to be
disposed of, or to obtain or, if not required by other law, to fail to obtain
governmental or third party consents for the collection or disposition of
Collateral to be collected or disposed of, (c) to fail to remove liens or
encumbrances on or any adverse claims against Collateral, (d) to exercise
collection remedies against other Persons obligated on Collateral directly or
through the use of collection agencies and other collection specialists, (e) to
advertise dispositions of Collateral through publications or media of general
circulation, whether or not the Collateral is of a specialized nature, (f) to
contact other Persons, whether or not in the same business as Borrowers, for
expressions of interest in acquiring all or any portion of the Collateral, (g) to
hire one or more professional auctioneers to assist in the disposition of
Collateral, whether or not the collateral is of a specialized nature, (h) to
dispose of Collateral by utilizing internet sites that provide for the auction
of assets of the types included in the Collateral or that have the reasonable
capability of doing so, or that match buyers and sellers of assets, (i) to
dispose of assets in wholesale rather than retail markets, (j) to disclaim
disposition warranties, including any warranties of title, (k) to purchase
insurance or credit enhancements to insure the Bank against risks of loss,
collection or disposition of Collateral or to provide to the Bank a guaranteed
return from the collection or disposition of Collateral, or (l) to the
extent deemed appropriate by the Bank, to obtain the services of other brokers,
investment bankers, consultants and other professionals to assist the Bank in
the collection or disposition of any of the Collateral.


 


43

















 


Borrowers acknowledge
that the purpose of this section is to provide non-exhaustive indications of
what actions or omissions by the Bank would not be commercially unreasonable in
the Bank’s exercise of remedies against the Collateral and that other actions
or omissions by the Bank shall not be deemed commercially unreasonable solely
on account of not being indicated in this section. Without limitation upon the
foregoing, nothing contained in this section shall be construed to grant any
rights to Borrowers or to impose any duties on the Bank that would not have
been granted or imposed by this Agreement or by applicable law in the absence
of this section.


 


12.4       UCC and
Offset Rights. The Bank may exercise, from time to time, any and all rights
and remedies available to it under the UCC or under any other applicable law in
addition to, and not in lieu of, any rights and remedies expressly granted in
this Agreement or in any other agreements between any Obligor and the Bank, and
may, without demand or notice of any kind, appropriate and apply toward the
payment of such of the Obligations, whether matured or unmatured, including
costs of collection and attorneys’ and paralegals’ fees, and in such order of
application as the Bank may, from time to time, elect, any indebtedness of the
Bank to any Obligor, however created or arising, including balances, credits,
deposits, accounts or moneys of such Obligor in the possession, control or
custody of, or in transit to the Bank. Borrower, on behalf of themselves and
each Obligor, hereby waives the benefit of any law that would otherwise
restrict or limit the Bank in the exercise of its right, which is hereby
acknowledged, to appropriate at any time hereafter any such indebtedness owing
from the Bank to any Obligor.


 


12.5       Additional
Remedies. The Bank shall have the right and power to:


 


(a)     instruct Borrowers, at their
own expense, to notify any parties obligated on any of the Collateral to make
payment directly to the Bank of any amounts due or to become due thereunder, or
the Bank may directly notify such obligors of the security interest of the
Bank, and/or of the assignment to the Bank of the Collateral and direct such
obligors to make payment to the Bank of any amounts due or to become due with
respect thereto, and thereafter, collect any such amounts due on the Collateral
directly from such Persons obligated thereon;


 


(b)    enforce collection of any of
the Collateral, by suit or otherwise, or make any compromise or settlement with
respect to any of the Collateral, or surrender, release or exchange all or any
part thereof, or compromise, extend or renew for any period (whether or not
longer than the original period) any indebtedness thereunder;


 


(c)     take possession or control of
any proceeds and products of any of the Collateral, including the proceeds of
insurance thereon;


 


(d)    extend, renew or modify for
one or more periods (whether or not longer than the original period) the Note,
any other of the Obligations, any obligation of any nature of any other obligor
with respect to the Note or any of the Obligations;


 


(e)     grant releases, compromises
or indulgences with respect to the Note, any of the Obligations, any extension
or renewal of any of the Obligations, any security therefor, or to any other
obligor with respect to the Note or any of the Obligations;


 


44

















 


(f)     make an election with respect
to the Collateral under Section 1111 of the Bankruptcy Code or take action
under Section 364 or any other section of the Bankruptcy Code; provided,
however, that any such action of the Bank as set forth herein shall not, in any
manner whatsoever, impair or affect the liability of Borrowers hereunder, nor
prejudice, waive, nor be construed to impair, affect, prejudice or waive the
Bank’s rights and remedies at law, in equity or by statute, nor release,
discharge, nor be construed to release or discharge, Borrowers, Guarantor or
other Person liable to the Bank for the Obligations; and


 


(g)    at any time, and from time to
time, accept additions to, releases, reductions, exchanges or substitution of
the Collateral, without in any way altering, impairing, diminishing or affecting
the provisions of this Agreement, the Loan Documents, or any of the other
Obligations, or the Bank’s rights hereunder, under the Note or under any of the
other Obligations.


 


Borrowers hereby ratify
and confirm whatever the Bank may do with respect to the Collateral and agrees
that the Bank shall not be liable for any error of judgment or mistakes of fact
or law with respect to actions taken in connection with the Collateral.


 


12.6       Attorney-in-Fact.
Each Borrower hereby irrevocably makes, constitutes and appoints the Bank (and
any officer of the Bank or any Person designated by the Bank for that purpose),
from and after the occurrence of, and during the continuance of an Event of
Default, as such Borrower’s true and lawful proxy and attorney-in-fact (and
agent-in-fact) in such Borrower’s name, place and stead, with full power of
substitution, to execute such financing statements and other documents and to
do such other acts as the Bank may require to perfect and preserve the Bank’s
security interest in the Collateral. Each Borrower hereby acknowledges that the
constitution and appointment of such proxy and attorney-in-fact are coupled
with an interest and are irrevocable. Each Borrower hereby ratifies and
confirms all that such attorney-in-fact may do or cause to be done by virtue of
any provision of this Agreement.


 


12.7       No
Marshaling. The Bank shall not be required to marshal any present or future
collateral security (including this Agreement and the Collateral) for, or other
assurances of payment of, the Obligations or any of them or to resort to such
collateral security or other assurances of payment in any particular order. To
the extent that it lawfully may, Borrowers hereby agree that it will not invoke
any law relating to the marshaling of collateral which might cause delay in or
impede the enforcement of the Bank’s rights under this Agreement or under any
other instrument creating or evidencing any of the Obligations or under which
any of the Obligations is outstanding or by which any of the Obligations is
secured or payment thereof is otherwise assured, and, to the extent that it
lawfully may, Borrowers hereby irrevocably waive the benefits of all such laws.


 


12.8       Application
of Proceeds. The Bank will within three (3) Business Days after
receipt of cash or solvent credits from collection of items of payment,
proceeds of Collateral or any other source, apply the whole or any part thereof
against the Obligations secured hereby. The Bank shall further have the
exclusive right to determine how, when and what application of such payments
and such credits shall be made on the Obligations, and such determination shall
be conclusive upon Borrowers. Any proceeds of any disposition by the Bank of
all or any part of


 


45

















 


the Collateral may be
first applied by the Bank to the payment of expenses incurred by the Bank in
connection with the Collateral, including attorneys’ fees and legal expenses as
provided for in Section 13 hereof.


 


12.9       No Waiver.
No Event of Default shall be waived by the Bank except in writing. No failure
or delay on the part of the Bank in exercising any right, power or remedy
hereunder shall operate as a waiver of the exercise of the same or any other
right at any other time; nor shall any single or partial exercise of any such
right, power or remedy preclude any other or further exercise thereof or the
exercise of any other right, power or remedy hereunder. There shall be no
obligation on the part of the Bank to exercise any remedy available to the Bank
in any order. The remedies provided for herein are cumulative and not exclusive
of any remedies provided at law or in equity. Borrowers agree that in the event
that Borrowers fail to perform, observe or discharge any of its Obligations or
liabilities under this Agreement or any other agreements with the Bank, no
remedy of law will provide adequate relief to the Bank, and further agrees that
the Bank shall be entitled to temporary and permanent injunctive relief in any
such case without the necessity of proving actual damages.


 


12.10     Multiple
Mortgages. Borrowers acknowledge that the Mortgages, Assignment of Rents
and other Loan Documents create liens on collateral located in multiple
counties and states. Borrowers agree that the Bank may proceed, at the same
time or at different times, to foreclose any or all liens against such
collateral (or sell such collateral under power of sale) by any proceeds
appropriate in the county and state where such collateral lies, and that no
event of enforcement taking place in any county or sate where such collateral
lies, and that no event of enforcement taking place in any county or state
pursuant to any of the mortgages or other Loan Documents shall preclude or bar
enforcement in any other county or state. Any foreclosure or other appropriate
remedy brought in any county or state in which collateral is located may be
brought and prosecuted as to any part of such Collateral without regard to the
fact that foreclosure proceedings or other appropriate remedies have or have
not been instituted elsewhere on any other part of the Collateral for the Loan.


 


Section 13.      MISCELLANEOUS.


 


13.1       Obligations
Absolute. None of the following shall affect the Obligations of Borrowers
to the Bank under this Agreement or the Bank’s rights with respect to the
Collateral:


 


(a)     acceptance or retention by
the Bank of other property or any interest in property as security for the
Obligations;


 


(b)    release by the Bank of any
Borrower, the Guarantor all or any part of the Collateral or of any party
liable with respect to the Obligations;


 


(c)     release, extension, renewal,
modification or substitution by the Bank of the Note or the compromise of the
liability of the Guarantor of the Obligations; or


 


(d)    failure of the Bank to resort
to any other security or to pursue either Borrower or any other obligor liable
for any of the Obligations before resorting to remedies against the Collateral.


 


46

















 


13.2       Entire
Agreement. This Agreement and the other Loan Documents (i) are valid,
binding and enforceable against Borrowers and the Bank in accordance with their
respective provisions and no conditions exist as to their legal effectiveness; (ii) constitute
the entire agreement between the parties with respect to the subject matter
hereof and thereof; and (iii) are the final expression of the intentions
of Borrowers and the Bank. No promises, either expressed or implied, exist
between Borrowers and the Bank, unless contained herein or therein. This
Agreement, together with the other Loan Documents, supersedes all negotiations,
representations, warranties, commitments, term sheets, discussions,
negotiations, offers or contracts (of any kind or nature, whether oral or
written) prior to or contemporaneous with the execution hereof with respect to
any matter, directly or indirectly related to the terms of this Agreement and
the other Loan Documents. This Agreement and the other Loan Documents are the
result of negotiations among the Bank, Borrowers and the other parties thereto,
and have been reviewed (or have had the opportunity to be reviewed) by counsel
to all such parties, and are the products of all parties. Accordingly, this
Agreement and the other Loan Documents shall not be construed more strictly
against the Bank merely because of the Bank’s involvement in their preparation.


 


13.3       Amendments;
Waivers. No delay on the part of the Bank in the exercise of any right,
power or remedy shall operate as a waiver thereof, nor shall any single or
partial exercise by the Bank of any right, power or remedy preclude other or
further exercise thereof, or the exercise of any other right, power or remedy.
No amendment, modification or waiver of, or consent with respect to, any
provision of this Agreement or the other Loan Documents shall in any event be
effective unless the same shall be in writing and acknowledged by the Bank, and
then any such amendment, modification, waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.


 


13.4       WAIVER OF
DEFENSES. EACH BORROWER WAIVES EVERY PRESENT AND FUTURE DEFENSE, CAUSE OF
ACTION, COUNTERCLAIM OR SETOFF WHICH SUCH BORROWER MAY NOW HAVE OR
HEREAFTER MAY HAVE TO ANY ACTION BY THE BANK IN ENFORCING THIS AGREEMENT.
PROVIDED THE BANK ACTS IN GOOD FAITH, EACH BORROWER RATIFIES AND CONFIRMS
WHATEVER THE BANK MAY DO PURSUANT TO THE TERMS OF THIS AGREEMENT. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE BANK GRANTING ANY FINANCIAL
ACCOMMODATION TO BORROWERS.


 


13.5       FORUM
SELECTION AND CONSENT TO JURISDICTION. ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT (OTHER THAN THE MORTGAGES), SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED THAT NOTHING IN
THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE BANK FROM BRINGING
SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION. EACH BORROWER
HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF
THE STATE OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE.
EACH BORROWER


 


47

















 


FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. EACH BORROWER HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.


 


13.6       WAIVER OF
JURY TRIAL. THE BANK AND EACH BORROWER, AFTER CONSULTING OR HAVING HAD THE
OPPORTUNITY TO CONSULT WITH COUNSEL, EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE IRREVOCABLY, ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, THE NOTE, ANY
OTHER LOAN DOCUMENT, ANY OF THE OTHER OBLIGATIONS, THE COLLATERAL, OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY
LENDING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, OR ANY
COURSE OF CONDUCT OR COURSE OF DEALING IN WHICH THE BANK AND BORROWERS ARE
ADVERSE PARTIES, AND EACH AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY. THIS PROVISION IS A MATERIAL INDUCEMENT
FOR THE BANK GRANTING ANY FINANCIAL ACCOMMODATION TO BORROWERS.


 


13.7       Assignabilitv.
The Bank may at any time assign the Bank’s rights in this Agreement, the other
Loan Documents, the Obligations, or any part thereof and transfer the Bank’s
rights in any or all of the Collateral, and the Bank thereafter shall be
relieved from all liability with respect to such Collateral. In addition, the
Bank may at any time sell one or more participations in the Loan. Borrowers may
not sell or assign this Agreement, or any other agreement with the Bank or any
portion thereof, either voluntarily or by operation of law, without the prior
written consent of the Bank. This Agreement shall be binding upon the Bank and
Borrowers and their respective legal representatives and successors. All
references herein to Borrowers shall be deemed to include any successors,
whether immediate or remote. In the case of a joint venture or partnership, the
term “Borrower” shall be deemed to include all joint venturers or partners
thereof, who shall be jointly and severally liable hereunder.


 


13.8       Confirmations.
Borrowers and the Bank agree from time to time, upon written request received
by it from the other, to confirm to the other in writing the aggregate unpaid
principal amount of the Loan then outstanding under the Note.


 


13.9       Confidentiality.
The Bank agrees to use commercially reasonable efforts (equivalent to the
efforts the Bank applies to maintain the confidentiality of its own
confidential information) to maintain as confidential all information provided
to it by Borrowers, including all information designated as confidential,
except that the Bank may disclose such information (a) to Persons employed
or engaged by the Bank in evaluating, approving, structuring or administering
the Loan; (b) to any assignee or participant or potential assignee or
participant that


 


48

















 


has agreed to comply with
the covenant contained in this Section 13.9 (and any such assignee
or participant or potential assignee or participant may disclose such
information to Persons employed or engaged by them as described in clause (a) above);
(c) as required or requested by any federal or state regulatory authority
or examiner, or any insurance industry association, or as reasonably believed
by the Bank to be compelled by any court decree, subpoena or legal or
administrative order or process; (d) as, on the advice of the Bank’s
counsel, is required by law; (e) in connection with the exercise of any
right or remedy under the Loan Documents or in connection with any litigation
to which the Bank is a party; (f) to any nationally recognized rating
agency that requires access to information about the Bank’s investment
portfolio in connection with ratings issued with respect to the Bank; (g) to
any Affiliate of the Bank who may provide banking products to Borrowers, or (h) that
ceases to be confidential through no fault of the Bank.


 


13.10     Binding
Effect. This Agreement shall
become effective upon execution by Borrowers and the Bank. If this Agreement is
not dated or contains any blanks when executed by Borrowers, the Bank is hereby
authorized, without notice to Borrowers, to date this Agreement as of the date
when it was executed by Borrowers, and to complete any such blanks according to
the terms upon which this Agreement is executed.


 


13.11     Governing
Law. This Agreement, the Loan
Documents and the Note shall be delivered and accepted in and shall be deemed
to be contracts made under and governed by the internal laws of the State of
Illinois (but giving effect to federal laws applicable to national banks)
applicable to contracts made and to be performed entirely within such state,
without regard to conflict of laws principles.


 


13.12     Enforceability. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by, unenforceable or invalid under any jurisdiction, such provision
shall as to such jurisdiction, be severable and be ineffective to the extent of
such prohibition or invalidity, without invalidating the remaining provisions
of this Agreement or affecting the validity or enforceability of such provision
in any other jurisdiction.


 


13.13     Survival
of Borrower Representations.
All covenants, agreements, representations and warranties made by Borrowers
herein shall, notwithstanding any investigation by the Bank, be deemed material
and relied upon by the Bank and shall survive the making and execution of this
Agreement and the Loan Documents and the issuance of the Note, and shall be
deemed to be continuing representations and warranties until such time as
Borrowers have fulfilled all of their Obligations to the Bank, and the Bank has
been indefeasibly paid in full in cash. The Bank, in extending financial
accommodations to Borrowers, is expressly acting and relying on the aforesaid
representations and warranties.


 


13.14     Extensions
of Bank’s Commitment. This
Agreement shall secure and govern the terms of (i) any extensions or
renewals of the Bank’s commitment hereunder, and (ii) any replacement note
executed by Borrowers and accepted by the Bank in its sole and absolute discretion
in substitution for the Note.


 


49

















 


13.15     Time
of Essence. Time is of the essence in making payments of all amounts due
the Bank under this Agreement and in the performance and observance by Borrowers
of each covenant, agreement, provision and term of this Agreement.


 


13.16     Counterparts;
Facsimile Signatures. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts and
each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Agreement. Receipt
of an executed signature page to this Agreement by facsimile or other
electronic transmission shall constitute effective delivery thereof. Electronic
records of executed Loan Documents maintained by the Bank shall deemed to be
originals thereof.


 


13.17     Notices.
Except as otherwise provided herein, Borrowers waive all notices and demands in
connection with the enforcement of the Bank’s rights hereunder. All notices,
requests, demands and other communications provided for hereunder shall be in
writing and addressed as follows:


 


	
  To Borrowers:

  	
   

  	
  Inland American ST Portfolio, L.L.C.

  
	
   

  	
   

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

  
	
   

  	
   

  	
  c/o Inland American Real Estate Trust, Inc.

  
	
   

  	
   

  	
  2901 Butterfield Road

  
	
   

  	
   

  	
  Oak Brook, IL 60523

  
	
   

  	
   

  	
  Attention: Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Inland American Real Estate Trust, Inc.

  
	
   

  	
   

  	
  2901 Butterfield Road

  
	
   

  	
   

  	
  Oak Brook, IL 60523

  
	
   

  	
   

  	
  Attention: General Counsel

  
	
   

  	
   

  	
   

  
	
  To the the Bank:

  	
   

  	
  LaSalle Bank National Association

  
	
   

  	
   

  	
  135 South LaSalle Street

  
	
   

  	
   

  	
  Chicago, Illinois 60603

  
	
   

  	
   

  	
  Attention: National Institutional Real Estate (REIT
  1 Division)

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  LaSalle Bank National Association

  
	
   

  	
   

  	
  135 South LaSalle Street

  
	
   

  	
   

  	
  Chicago, Illinois 60603

  
	
   

  	
   

  	
  Attention: Group Head, Commercial Real Estate

  
	
   

  	
   

  	
   

  
	
  And to

  	
   

  	
  LaSalle Bank National Association

  
	
   

  	
   

  	
  135 South LaSalle Street

  
	
   

  	
   

  	
  Chicago, Illinois 60603

  
	
   

  	
   

  	
  Attention: Manager, Real Estate Administration

  
	
   

  	
   

  	
   

  
	
  With copy to:

  	
   

  	
  Katten Muchin Rosenman LLP

  
	
   

  	
   

  	
  525 West Monroe Street

  
	
   

  	
   

  	
  Chicago, Illinois 60661

  
	
   

  	
   

  	
  Attention: Marcia W.
  Sullivan, Esq.

  



 


50

















 


or, as to each party, at
such other address as shall be designated by such party in a written notice to
each other party complying as to delivery with the terms of this subsection.
All notices addressed as above shall be deemed to have been properly given (i) if
served in person, upon acceptance or refusal of delivery; (ii) if mailed
by certified or registered mail, return receipt requested, postage prepaid, on
the third (3rd) day following the day such notice is deposited in any post
office station or letter box; or (iii) if sent by recognized overnight
courier, on the first (1st) day following the day such notice is delivered to
such carrier. No notice to or demand on Borrowers in any case shall entitle
Borrowers to any other or further notice or demand in similar or other
circumstances.


 


13.18     Release
of Claims Against Bank. In consideration of the Bank making the Loan,
Borrowers and all other Obligors do each hereby release and discharge the Bank
of and from any and all claims, harm, injury, and damage of any and every kind,
known or unknown, legal or equitable, which any Obligor may have against the
Bank from the date of their respective first contact with the Bank until the
date of this Agreement, including any claim arising from any reports
(environmental reports, surveys, appraisals, etc.) prepared by any parties
hired or recommended by the Bank. Borrowers and all other Obligors confirm to
Bank that they have reviewed the effect of this release with competent legal
counsel of their choice, or have been afforded the opportunity to do so, prior
to execution of this Agreement and the Loan Documents and do each acknowledge
and agree that the Bank is relying upon this release in extending the Loan to
Borrowers.


 


13.19     Costs,
Fees and Expenses. Borrowers shall pay or reimburse the Bank for all
reasonable costs, fees and expenses incurred by the Bank or for which the Bank
becomes obligated in connection with the negotiation, preparation,
consummation, collection of the Obligations or enforcement of this Agreement,
the other Loan Documents and all other documents provided for herein or
delivered or to be delivered hereunder or in connection herewith (including any
amendment, supplement or waiver to any Loan Document), or during any workout,
restructuring or negotiations in respect thereof, including reasonable
consultants’ fees and attorneys’ fees and time charges of counsel to the Bank,
which shall also include attorneys’ fees and time charges of attorneys who may
be employees of the Bank or any Affiliate of the Bank, plus costs and expenses
of such attorneys or of the Bank; search fees, costs and expenses; and all
taxes payable in connection with this Agreement or the other Loan Documents,
whether or not the transaction contemplated hereby shall be consummated. In
furtherance of the foregoing, Borrowers 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 Agreement, the Note and the other Loan
Documents to be delivered hereunder, and agrees to save and hold the Bank
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. That
portion of the Obligations consisting of costs, expenses or advances to be
reimbursed by Borrowers to the Bank pursuant to this Agreement or the other
Loan Documents which are not paid on or prior to the date hereof shall be
payable by Borrowers to the Bank on demand. If at any time or times hereafter
the Bank: (a) employs counsel for advice or other representation (i) with
respect to this Agreement or the other Loan Documents, (ii) to represent
the Bank in any litigation, contest, dispute, suit or


 


51

















 


proceeding or to
commence, defend, or intervene or to take any other action in or with respect
to any litigation, contest, dispute, suit, or proceeding (whether instituted by
the Bank, Borrowers, or any other Person) in any way or respect relating to
this Agreement, the other Loan Documents or Borrowers’ business or affairs, or (iii) to
enforce any rights of the Bank against Borrowers or any other Person that may
be obligated to the Bank by virtue of this Agreement or the other Loan
Documents; (b) takes any action to protect, collect, sell, liquidate, or
otherwise dispose of any of the Collateral; and/or (c) attempts to or
enforces any of the Bank’s rights or remedies under the Agreement or the other
Loan Documents, the costs and expenses incurred by the Bank in any manner or
way with respect to the foregoing, shall be part of the Obligations, payable by
Borrowers to the Bank on demand.


 


13.20     Indemnification.
Each Borrower agrees to defend (with counsel satisfactory to the Bank),
protect, indemnify, exonerate and hold harmless each 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 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 any Indemnified Party), 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
securities laws, environmental laws, commercial laws and regulations, under
common law or in equity, or based on contract or otherwise) in any manner
relating to or arising out of this Agreement or any of the Loan Documents, or
any act, event or transaction related or attendant thereto, the preparation,
execution and delivery of this Agreement and the Loan Documents, including the
making or issuance and management of the Loan, the use or intended use of the
proceeds of the Loan, the enforcement of the Bank’s rights and remedies under
this Agreement, the Loan Documents, the Note, any other instruments and
documents delivered hereunder, or under any other agreement between Borrowers
and the Bank; provided, however, that Borrowers shall not have any obligations
hereunder to any Indemnified Party with respect to matters determined by a
court of competent jurisdiction by final and nonappealable judgment to have
been 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, Borrowers 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 each
Indemnified Party on demand, and failing prompt payment, together with interest
thereon at the Default Rate from the date incurred by each Indemnified Party
until paid by Borrowers, shall be added to the Obligations of Borrowers and be
secured by the Collateral. The provisions of this Section shall survive
the satisfaction and payment of the other Obligations and the termination of
this Agreement.


 


13.21     Revival
and Reinstatement of Obligations. If the incurrence or payment of the
Obligations by any Obligor or the transfer to the Bank of any property should
for any reason subsequently be declared to be void or voidable under any state
or federal law relating to creditors’ rights, including provisions of the
Bankruptcy Code relating to fraudulent conveyances, preferences, or other
voidable or recoverable payments of money or transfers of property
(collectively, a “Voidable Transfer”), and if the Bank is required to repay or
restore, in whole or in part, any such Voidable Transfer, or elects to do so
upon the reasonable advice of its


 


52

















 


counsel, then, as to any
such Voidable Transfer, or the amount thereof that the Bank is required or
elects to repay or restore, and as to all reasonable costs, expenses, and
attorneys fees of the Bank, the Obligations shall automatically shall be revived,
reinstated, and restored and shall exist as though such Voidable Transfer had
never been made.


 


13.22     Customer
Identification - USA Patriot Act Notice. The Bank hereby notifies Borrowers
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 Bank’s
policies and practices, the Bank is required to obtain, verify and record
certain information and documentation that identifies Borrowers, which
information includes the name and address of Borrowers and such other
information that will allow the Bank to identify Borrowers in accordance with
the Act.


 


13.23     Joint
and Several Obligation. All obligations of Borrowers under this Agreement,
the Note and the other Loan Documents to which Borrowers are a party are joint
and several.


 


53

















 


IN WITNESS
WHEREOF, Borrowers and the Bank have executed this Loan and Security Agreement
as of the date 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

  	
   

  



 


	
   

  	
  Agreed
  and accepted:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LASALLE
  BANK NATIONAL ASSOCIATION,

  a national banking association

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
  Name: 

  	
   

  	
   

  
	
   

  	
  Title: 

  	
   

  	
   

  



 

















 


IN WITNESS
WHEREOF, Borrowers and the Bank have executed this Loan and Security Agreement
as of the date 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:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   Title:

  	
   

  	
   

  



 


 


	
   

  	
  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:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   Title:

  	
   

  	
   

  



 


	
   

  	
  Agreed
  and accepted:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LASALLE
  BANK NATIONAL ASSOCIATION, 

  a national banking association

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Michael
  Glandt

  	
   

  
	
   

  	
  Name: 

  	
   MICHAEL GLANDT

  	
   

  
	
   

  	
  Title: 

  	
   OFFICER

  	
   

  



 

















 


AMENDMENT

TO

LOAN AND SECURITY AGREEMENT


 


THIS AMENDMENT TO
LOAN AND SECURITY AGREEMENT (this “Amendment”) is dated as of December 14,  2007, by and among INLAND AMERICAN ST
PORTFOLIO, L.L.C., a Delaware limited liability company (“Inland ST”)
and INLAND AMERICAN ST FLORIDA PORTFOLIO, L.L.C., a Delaware limited liability
company (“Inland FL”; Inland ST and Inland FL are each a “Borrower”
and together the “Borrowers”), which have their chief executive office
located at 2901 Butterfield Road, Oakbrook, Illinois 60523, and LASALLE BANK
NATIONAL ASSOCIATION, a national banking association (the “Bank”), whose
address is 135 South La Salle Street, Chicago, Illinois 60603. Capitalized
terms used herein but not otherwise defined herein shall have the respective
meanings ascribed to such terms in the Loan and Security Agreement (as
hereinafter defined).


 


WITNESSETH:


 


WHEREAS, Borrowers
and the Bank are parties to that certain Loan and Security Agreement dated as
of December 10, 2007 (as amended, restated, amended and restated,
supplemented or otherwise modified and in effect from time to time, including
pursuant to the terms of this Amendment, the “Loan and Security Agreement”),
pursuant to which the Bank agreed to make certain loans and other financial
accommodations to or for the account of Borrowers; and


 


WHEREAS, Borrowers
have requested that the Bank amend the Loan and Security Agreement; and


 


WHEREAS, the Bank
has agreed to amend the Loan and Security Agreement, on the terms and subject
to the conditions hereinafter set forth;


 


NOW, THEREFORE, in
consideration of the premises set forth above, the terms and conditions
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the respective parties hereto
hereby agree as follows:


 


1.        Amendment to Loan and
Security Agreement. The Loan and Security Agreement is hereby amended
as follows:


 


1.1      Paragraph (v) in
the definition of “Special Purpose Entity” set forth in Section 1.1
of the Loan and Security Agreement is hereby deleted and replaced in its
entirety with the following (of which, item (iii) represents an new
exception):


 


(v)       has and will have no Debt
(including loans (whether or not such loans are evidenced by a written
agreement) between Borrowers and any Affiliates of Borrowers and relating to
the management of funds in the custodial account maintained by the Manager)
other than (i) the Loan, (ii)


 

















 


liabilities incurred in
the ordinary course of business relating to the ownership and operation of the
Premises and the routine administration of Borrowers, which liabilities are not
more than sixty (60) days past the date incurred (unless disputed in accordance
with applicable law), are not evidenced by a note and are paid when due, and
which amounts are normal and reasonable under the circumstances, (iii) any
swap or hedging agreements entered into by Borrowers with the Bank, and (iv) such
other liabilities that are permitted pursuant to this Agreement;


 


1.2      The following shall be
added to the Loan and Security Agreement as a new Section 11.14:


 


11.14    Default under Hedging Agreements. Any
default by Borrowers in the payment of any amounts owed under any swap or
hedging agreements entered into by Borrowers or in the performance or
observation of, any material obligation of, or condition agreed to by,
Borrowers thereunder, beyond any period of grace provided with respect thereto.


 


2.        Reference to and Effect
on the Loan and Security Agreement and the Other Loan Documents.


 


2.1      Upon the effectiveness
of this Amendment, each reference in the Loan and Security Agreement to “this
Agreement”, “hereunder”, “hereof, “herein” or words of like import, and each
reference in each of the other Loan Documents to the “Loan and Security
Agreement” shall in each case mean and be a reference to the Loan and Security
Agreement as amended hereby.


 


2.2      Except as expressly set
forth herein, (a) the execution and delivery of this Amendment shall in no
way affect any of the respective rights, powers or remedies of the Bank with
respect to any Default or Event of Default nor constitute a waiver, amendment
or other modification of any term or provision of the Loan and Security
Agreement or any of the other Loan Documents, and (b) all of the
respective terms and provisions of the Loan and Security Agreement, the other
Loan Documents and all other documents, instruments, amendments and agreements
executed and/or delivered by any Borrower pursuant thereto or in connection
therewith shall remain in full force and effect and are hereby ratified,
confirmed and reaffirmed in all respects. The execution and delivery of this
Amendment by the Bank shall in no way obligate the Bank, at any time hereafter,
to consent to any other amendment or modification of any term or provision of
the Loan and Security Agreement or any of the other Loan Documents, whether of
a similar or different nature.


 


3.        Reaffirmation, Etc..
Each Borrower, in its respective capacities under each of the Loan Documents to
which it is a party (including the capacities of obligor, grantor, mortgagor,
pledgor, guarantor, indemnitor and assignor, as applicable, and each other
similar capacity, if any, in which such Borrower has granted Liens on all or
any part of the properties or assets of such Borrower, or otherwise acts as an
accommodation party, guarantor, indemnitor or surety with respect to all or any
part of the Obligations),


 


2

















 


hereby: (a) except
as otherwise expressly set forth herein, agrees that the terms and provisions
hereof shall not affect in any way any payment, performance, observance or
other obligations or liabilities of such Borrower under the Loan and Security
Agreement or any of the other Loan Documents, all of which obligations and
liabilities shall remain in full force and effect and extend to the loans,
extensions of credit and other Obligations provided for thereunder, and each of
which obligations and liabilities are hereby ratified, confirmed and reaffirmed
in all respects; and (b) to the extent such Borrower has granted Liens on
any of its properties or assets pursuant to any of the Loan Documents to secure
the prompt and complete payment, performance and/or observance of all or any
part of the Obligations, acknowledges, ratifies, confirms and reaffirms such
grant of Liens, and acknowledges and agrees that all of such Liens are intended
and shall be deemed and construed to secure to the fullest extent set forth
therein all now existing and hereafter arising Obligations.


 


4.        JURY TRIAL. EACH
BORROWER AND THE BANK HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION
OR PROCEEDING ARISING OUT OF THIS AMENDMENT OR ANY TRANSACTIONS RELATED HERETO.


 


5.        GOVERNING LAW. THE
RIGHTS AND DUTIES OF EACH BORROWER AND THE BANK UNDER THIS AMENDMENT SHALL BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO
CONFLICT OF LAW PRINCIPLES.


 


6.        Severability.
In case any provision in or obligation under this Amendment shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision
or obligation in any other jurisdiction, shall not in any way be affected or
impaired thereby.


 


7.        Headings. Section headings
in this Amendment are included herein for convenience of reference only and
shall not constitute a part of this Amendment for any other purpose.


 


8.        Counterparts.
This Amendment may be executed or otherwise authenticated in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed or otherwise authenticated and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. Any such counterpart which may be delivered by facsimile, email or
similar electronic transmission shall be deemed the equivalent of an originally
signed counterpart and shall be fully admissible in any enforcement proceedings
regarding this Amendment.


 


Remainder of Page Intentionally
Left Blank

- Signature Pages Follow –


 


3

















 


IN
WITNESS WHEREOF,  the
parties hereto have caused this Amendment to be duly executed and delivered by
their proper and duly authorized officers as of the date first set forth above.


 


 


	
   

  	
  BORROWER:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  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/ Marcia L.
  Grant

  	
   

  
	
   

  	
   

  	
   

  	
   Name:

  	
  Marcia L. Grant

  	
   

  
	
   

  	
   

  	
   

  	
   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/ Marcia L.
  Grant

  	
   

  
	
   

  	
   

  	
   

  	
   Name:

  	
  Marcia L. Grant

  	
   

  
	
   

  	
   

  	
   

  	
   Title:

  	
  Assistant Secretary

  	
   

  



 


	
   

  	
  BANK:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LASALLE
  BANK NATIONAL

  ASSOCIATION, a national banking

  association

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Michael
  Glandt

  	
   

  
	
   

  	
  Name: 

  	
   MICHAEL GLANDT

  	
   

  
	
   

  	
  Title: 

  	
   OFFICER

  	
   

  



 

















 


Joinder


 


The undersigned,
Guarantor of the indebtedness and obligations under the Loan and Security
Agreement pursuant to that certain Guaranty, hereby (i) acknowledges and
approves all of the provisions of this Amendment, and (ii) ratifies and
affirms that the Guaranty is in full force and effect following the execution
and delivery of this Amendment in accordance with its terms and that Guarantor
remains bound thereby.


 


 


	
   

  	
  INLAND
  AMERICAN REAL

  ESTATE TRUST, INC., a Maryland

  corporation

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Marcia L.
  Grant

  	
   

  
	
   

  	
  Name: 

  	
   Marcia L. Grant

  	
   

  
	
   

  	
  Title: 

  	
   Assistant
  Secretary