TITLE I OF ERISA, OR A
"GOVERNMENTAL PLAN" WITHIN THE MEANING OF SECTION 3(3) OF ERISA; (B) BORROWER IS
NOT SUBJECT TO STATE STATUTES REGULATING INVESTMENTS AND FIDUCIARY OBLIGATIONS
WITH RESPECT TO GOVERNMENTAL PLANS; AND (C) ONE OR MORE OF THE FOLLOWING
CIRCUMSTANCES IS TRUE:
(I)
EQUITY INTERESTS IN BORROWER ARE
PUBLICLY OFFERED SECURITIES, WITHIN THE MEANING OF 29 C.F.R. §2510.3-101(B)(2);
(II)
LESS THAN TWENTY-FIVE PERCENT (25%) OF
EACH OUTSTANDING CLASS OF EQUITY INTERESTS IN BORROWER ARE HELD BY "BENEFIT PLAN
INVESTORS" WITHIN THE MEANING OF 29 C.F.R. §2510.3-101(F)(2); OR
(III)
BORROWER QUALIFIES AS AN "OPERATING COMPANY"
OR A "REAL ESTATE OPERATING COMPANY" WITHIN THE MEANING OF 29 C.F.R.
§2510.3-101(C) OR (E).
5.2.13
TRANSFERS.
UNLESS SUCH ACTION IS PERMITTED BY THE
PROVISIONS OF THIS SECTION 5.2.13, BORROWER AGREES THAT IT WILL NOT (I) SELL,
ASSIGN, CONVEY, TRANSFER OR OTHERWISE DISPOSE OF ITS INTERESTS IN THE PROPERTY
OR ANY PART THEREOF, (II) PERMIT ANY OWNER, DIRECTLY OR INDIRECTLY, OF AN
OWNERSHIP INTEREST IN THE PROPERTY, TO TRANSFER SUCH INTEREST, WHETHER BY
TRANSFER OF STOCK OR OTHER INTEREST IN BORROWER OR ANY ENTITY, OR OTHERWISE,
(III) INCUR INDEBTEDNESS (OTHER THAN THE INDEBTEDNESS PERMITTED PURSUANT TO THE
TERMS OF THIS AGREEMENT), (IV) MORTGAGE, HYPOTHECATE OR OTHERWISE ENCUMBER OR
GRANT A SECURITY INTEREST IN THE PROPERTY OR ANY PART THEREOF, (V) SELL, ASSIGN,
CONVEY, TRANSFER, MORTGAGE, ENCUMBER, GRANT A SECURITY INTEREST IN, OR OTHERWISE
DISPOSE OF ANY DIRECT OR INDIRECT OWNERSHIP INTEREST IN BORROWER, OR PERMIT ANY
OWNER OF AN INTEREST IN BORROWER TO DO THE SAME, OR (VI) FILE A DECLARATION OF
CONDOMINIUM WITH RESPECT TO THE PROPERTY (ANY OF THE FOREGOING TRANSACTIONS, A
"TRANSFER").
FOR PURPOSES HEREOF, A "TRANSFER" SHALL NOT INCLUDE (A) ANY
ISSUANCE, SALE OR TRANSFER OF INTERESTS IN SOLE MEMBER OR ANY SUCCESSOR ENTITY
RESULTING FROM ANY MERGER PERMITTED HEREUNDER, (B) A TRANSFER BY DEVISE OR
45
DESCENT OR BY OPERATION OF LAW UPON THE DEATH OF A MEMBER OR PARTNER OF
BORROWER, OR (C) THE MERGER OF THE SOLE MEMBER WITH ANY OF THE FOLLOWING
ENTITIES:
INLAND AMERICAN REAL ESTATE TRUST, INC., INLAND RETAIL REAL ESTATE
TRUST, INC., A MARYLAND CORPORATION, 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 BY
MERGER; PROVIDED, HOWEVER, LENDER SHALL RECEIVE NOT LESS THAN THIRTY (30) DAYS
PRIOR WRITTEN NOTICE OF SUCH PROPOSED TRANSFER AND, IN CONNECTION WITH A MERGER
HEREINABOVE DESCRIBED, THE NET WORTH OF THE ENTITY SURVIVING THE MERGER SHALL
NOT BE LESS THAN THE NET WORTH OF THE SOLE MEMBER IMMEDIATELY PRIOR TO SUCH
MERGER AND THE ENTITY SURVIVING THE MERGER SHALL BE PUBLICLY TRADED.
(A)
ON AND AFTER THE CLOSING DATE, LENDER SHALL
NOT WITHHOLD ITS CONSENT TO A TRANSFER OF THE PROPERTY AS PART OF A SINGLE
TRANSACTION, PROVIDED THAT THE FOLLOWING CONDITIONS ARE SATISFIED:
(1)