-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FpdWNj6RiEsAOSrXXWxKC95gdO/rLU2rbDSgKHW9KVEJX4K5u2ia/Cewm/XaTfZM 0V0I2YJ5YcvyAlwcWQrL5A== 0000892626-97-000157.txt : 19970515 0000892626-97-000157.hdr.sgml : 19970515 ACCESSION NUMBER: 0000892626-97-000157 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19970331 FILED AS OF DATE: 19970514 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: BANYAN STRATEGIC REALTY TRUST CENTRAL INDEX KEY: 0000790817 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 363375345 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 000-15465 FILM NUMBER: 97603310 BUSINESS ADDRESS: STREET 1: 150 S WACKER DR STE 2900 STREET 2: SUITE 2900 CITY: CHICAGO STATE: IL ZIP: 60606 BUSINESS PHONE: 3125539800 FORMER COMPANY: FORMER CONFORMED NAME: BANYAN STRATEGIC LAND TRUST DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: VMS STRATEGIC LAND TRUST DATE OF NAME CHANGE: 19910325 10-Q 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form 10-Q [ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended March 31, 1997 OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to . Commission File Number 0-15465 Banyan Strategic Realty Trust (Exact name of Registrant as specified in its charter) Massachusetts 36-3375345 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 150 South Wacker Drive, Chicago, IL 60606 (Address of principal executive offices) (Zip Code) Registrant's telephone number including area code (312) 553-9800 Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. YES X . NO . Shares of beneficial interest outstanding as of May 13, 1997: 10,478,971 PART I - FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS BANYAN STRATEGIC REALTY TRUST CONSOLIDATED BALANCE SHEETS MARCH 31, 1997 AND DECEMBER 31, 1996 (UNAUDITED)
MARCH 31, DECEMBER 31, 1997 1996 ------------- ------------ ASSETS Cash and Cash Equivalents . . . . . . . . . . . . . . . . . . . . . . . $ 5,644,549 $ 3,805,260 Interest Receivable on Investments. . . . . . . . . . . . . . . . . . . 25,426 46,313 Accounts Receivable . . . . . . . . . . . . . . . . . . . . . . . . . . 1,375,550 1,194,425 ------------ ------------ 7,045,525 5,045,998 ------------ ------------ Investment in Real Estate, at cost: Land. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18,225,312 16,956,094 Building. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83,346,687 85,210,415 Building Improvements . . . . . . . . . . . . . . . . . . . . . . . . 4,466,888 5,015,673 ------------ ------------ 106,038,887 107,182,182 Less: Accumulated Depreciation. . . . . . . . . . . . . . . . . . . . (4,721,641) (4,692,455) ------------ ------------ 101,317,246 102,489,727 ------------ ------------ Investment in Real Estate Venture . . . . . . . . . . . . . . . . . . . 4,859,449 5,713,759 Deferred Financing Costs (Net of Accumulated Amortization of $864,591 and $722,925, respectively) . . . . . . . . . . . . . . . 1,268,235 1,326,489 Other Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,184,641 1,958,232 ------------ ------------ Total Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $116,675,096 $116,534,205 ============ ============ BANYAN STRATEGIC REALTY TRUST CONSOLIDATED BALANCE SHEETS MARCH 31, 1997 AND DECEMBER 31, 1996 (CONTINUED) (UNAUDITED) MARCH 31, DECEMBER 31, 1997 1996 ------------- ------------ LIABILITIES AND SHAREHOLDERS' EQUITY Liabilities Accounts Payable and Accrued Expenses . . . . . . . . . . . . . . . . . $ 2,519,078 $ 2,481,253 Accrued Real Estate Taxes . . . . . . . . . . . . . . . . . . . . . . . 800,769 763,238 Mortgage Loans Payable. . . . . . . . . . . . . . . . . . . . . . . . . 49,027,723 48,181,023 Bond Payable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,900,000 10,900,000 Accrued Interest Payable. . . . . . . . . . . . . . . . . . . . . . . . 108,199 237,922 Unearned Revenue. . . . . . . . . . . . . . . . . . . . . . . . . . . . 152,953 248,748 Security Deposit Liabilities. . . . . . . . . . . . . . . . . . . . . . 464,417 473,758 ------------ ------------ Total Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 63,973,139 63,285,942 ------------ ------------ Minority Interest in Consolidated Partnerships. . . . . . . . . . . . . 2,406,627 2,313,825 Shareholders' Equity Shares of Beneficial Interest, No Par Value, Unlimited Authorization; 12,001,620 Shares Issued . . . . . . . . . . 106,694,912 106,694,912 Accumulated Deficit . . . . . . . . . . . . . . . . . . . . . . . . . . (49,033,633) (48,394,525) Treasury Shares at Cost, 1,522,649 Shares . . . . . . . . . . . . . . . (7,365,949) (7,365,949) ------------ ------------ Total Shareholders' Equity. . . . . . . . . . . . . . . . . . . . . . . 50,295,330 50,934,438 ------------ ------------ Total Liabilities and Shareholders' Equity. . . . . . . . . . . . . . . $116,675,096 $116,534,205 ============ ============ Book Value Per Share of Beneficial Interest (10,478,971 Shares Outstanding) . . . . . . . . . . . . . . . . . . . $ 4.80 $ 4.86 ============ ============ The accompanying notes are an integral part of the consolidated financial statements.
BANYAN STRATEGIC REALTY TRUST CONSOLIDATED STATEMENTS OF INCOME AND EXPENSES FOR THE THREE MONTHS ENDED MARCH 31, 1997 AND 1996 (UNAUDITED)
1997 1996 ------------ ----------- REVENUE Rental Income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 5,145,508 $ 4,459,110 Operating Cost Reimbursement. . . . . . . . . . . . . . . . . . . . . . . 618,710 429,415 Miscellaneous Tenant Income . . . . . . . . . . . . . . . . . . . . . . . 96,600 72,181 Interest and Amortized Discount on Mortgage Loans . . . . . . . . . . . . -- 178,496 Income on Investments . . . . . . . . . . . . . . . . . . . . . . . . . . 33,068 37,451 ----------- ----------- Total Revenue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,893,886 5,176,653 ----------- ----------- EXPENSES Operating Property Expenses . . . . . . . . . . . . . . . . . . . . . . . 1,202,673 1,008,816 Repairs and Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . 525,080 497,017 Real Estate Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480,453 459,586 Interest Expense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,200,241 949,995 Ground Lease Expense. . . . . . . . . . . . . . . . . . . . . . . . . . . 213,576 213,874 Depreciation and Amortization . . . . . . . . . . . . . . . . . . . . . . 719,660 558,777 General and Administrative. . . . . . . . . . . . . . . . . . . . . . . . 869,156 761,392 Amortization of Deferred Loan Fees and Financing Costs. . . . . . . . . . 141,666 122,795 ----------- ----------- Total Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,352,505 4,572,252 ----------- ----------- Income Before Minority Interest, Income (Loss) from Operations of Real Estate Venture and Gain on Disposition of Investment in Real Estate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 541,381 604,401 Minority Interest in Consolidated Partnerships. . . . . . . . . . . . . . . (166,743) (102,553) Income (Loss) from Operations of Real Estate Venture. . . . . . . . . . . . 30,363 (38,307) Gain on Disposition of Investment in Real Estate. . . . . . . . . . . . . . 3,788 -- ----------- ----------- Net Income $ 408,789 $ 463,541 =========== =========== Earnings Per Share of Beneficial Interest (10,478,971 and 10,477,138 Weighted Average Number of Shares Outstanding, respectively). . . . . . . $ 0.04 $ 0.04 =========== =========== The accompanying notes are an integral part of the consolidated financial statements.
BANYAN STRATEGIC REALTY TRUST CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY FOR THE THREE MONTHS ENDED MARCH 31, 1997 (UNAUDITED)
Shares of Beneficial Interest ---------------------------- Accumulated Treasury Shares Amount Deficit Shares Total ----------- ----------- ----------- ----------- ----------- Shareholders' Equity, December 31, 1996 . . . . 12,001,620 $106,694,912 $(48,394,525) $(7,365,949) $50,934,438 Net Income. . . . . . . . -- -- 408,789 -- 408,789 Distribution Paid . . . . -- -- (1,047,897) -- (1,047,897) ----------- ------------ ----------- ----------- ----------- Shareholders' Equity, March 31, 1997. . . . . . 12,001,620 $106,694,912 $(49,033,633) $(7,365,949) $50,295,330 =========== ============ ============ =========== =========== The accompanying notes are an integral part of the consolidated financial statements.
BANYAN STRATEGIC REALTY TRUST CONSOLIDATED STATEMENTS OF CASH FLOWS FOR THE THREE MONTHS ENDED MARCH 31, 1997 AND 1996 (UNAUDITED)
1997 1996 ------------ ----------- CASH FLOWS FROM OPERATING ACTIVITIES: NET INCOME. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 408,789 $ 463,541 Adjustments to Reconcile Net Income to Net Cash Provided By Operating Activities: Gain on Disposition of Investment in Real Estate. . . . . . . . . . . . . (3,788) -- Depreciation and Amortization . . . . . . . . . . . . . . . . . . . . . . 861,326 681,572 Net Loss (Income) From Operation of Real Estate Ventures. . . . . . . . . (30,363) 38,307 Minority Interest Participation in Consolidated Partnerships . . . . . . . . . . . . . . . . . . . . . . . 166,743 102,553 Incentive Compensation Expense. . . . . . . . . . . . . . . . . . . . . . 313,098 172,500 Net Change In: Interest Receivable on Mortgage Loans and Investments . . . . . . . . . . 20,887 (123,646) Accounts Receivable . . . . . . . . . . . . . . . . . . . . . . . . . . . (181,125) (294,299) Other Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (99,090) (7,866) Accounts Payable and Accrued Expenses . . . . . . . . . . . . . . . . . . (270,921) 225,980 Accrued Interest Payable. . . . . . . . . . . . . . . . . . . . . . . . . (129,723) 10,022 Accrued Real Estate Tax Payable . . . . . . . . . . . . . . . . . . . . . 34,991 274,175 Unearned Revenue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . (95,795) (47,862) Security Deposit Liability. . . . . . . . . . . . . . . . . . . . . . . . 966 (8,883) ------------ ------------ Net Cash Provided By Operating Activities . . . . . . . . . . . . . . . . . 995,995 1,486,094 ------------ ------------ CASH FLOWS FROM INVESTING ACTIVITIES: Acquisition of Real Estate Assets . . . . . . . . . . . . . . . . . . . . (5,479,160) (29,898) Investment In Real Estate Ventures, Net . . . . . . . . . . . . . . . . . (83,724) (143,890) Additions to Investment in Real Estate. . . . . . . . . . . . . . . . . . (358,204) (364,733) Proceeds From Sale of Investment in Real Estate . . . . . . . . . . . . . 6,141,719 -- Proceeds from Sale of Investment in Real Estate Venture . . . . . . . . . 968,397 -- Payment of Liabilities Assumed at Acquisition of Real Estate Assets . . . 28,763 (230,497) Purchase of Investment Securities . . . . . . . . . . . . . . . . . . . . -- (839,680) Principal Payments on Investment Securities . . . . . . . . . . . . . . . -- 11,152 Principal Collections on Mortgage Loans Receivable. . . . . . . . . . . . -- 9,391 ----------- ------------ Net Cash Provided by (Used In) Investing Activities . . . . . . . . . . . . 1,217,791 (1,588,155) ----------- ------------ BANYAN STRATEGIC REALTY TRUST CONSOLIDATED STATEMENTS OF CASH FLOWS FOR THE THREE MONTHS ENDED MARCH 31, 1997 AND 1996 (CONTINUED) (UNAUDITED) 1997 1996 ------------ ----------- CASH FLOWS FROM FINANCING ACTIVITIES: Proceeds From Mortgage Loans Payable. . . . . . . . . . . . . . . . . . . 6,700,000 -- Distributions to Minority Partners. . . . . . . . . . . . . . . . . . . . (89,888) (86,788) Deferred Financing Costs. . . . . . . . . . . . . . . . . . . . . . . . . (83,412) (171,814) Principal Payments on Mortgage Loans Payable. . . . . . . . . . . . . . . (5,853,300) (61,238) Distribution Paid to Shareholders . . . . . . . . . . . . . . . . . . . . (1,047,897) (1,049,274) ------------ ------------ Net Cash Used In Financing Activities . . . . . . . . . . . . . . . . . . (374,497) (1,369,114) ------------ ------------ Net Increase (Decrease) In Cash and Cash Equivalents. . . . . . . . . . . 1,839,289 (1,471,175) Cash and Cash Equivalents at Beginning of Period. . . . . . . . . . . . . 3,805,260 5,500,215 ------------ ------------ Cash and Cash Equivalents at End of Period. . . . . . . . . . . . . . . . $ 5,644,549 $ 4,029,040 ============ ============ The accompanying notes are an integral part of the consolidated financial statements.
BANYAN STRATEGIC REALTY TRUST NOTES TO CONSOLIDATED FINANCIAL STATEMENTS MARCH 31, 1997 (UNAUDITED) Readers of this quarterly report should refer to Banyan Strategic Realty Trust's (the "Trust") audited consolidated financial statements for the year ended December 31, 1996 which are included in the Trust's 1996 Annual Report and Form 10-K, as certain footnote disclosures which would substantially duplicate those contained in such audited statements have been omitted from this report. 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES PRINCIPLES OF CONSOLIDATION The accompanying consolidated financial statements include the accounts of the Trust, its wholly-owned subsidiaries and its controlled partnerships. All intercompany balances and transactions have been eliminated in consolidation. Investment in Real Estate Venture is accounted for on the equity method. FINANCIAL STATEMENT PRESENTATION Certain reclassifications have been made to the previously reported 1996 consolidated financial statements in order to provide comparability with the 1997 consolidated financial statements. In the opinion of management, all adjustments necessary for a fair presentation have been made to the accompanying consolidated financial statements as of March 31, 1997. All adjustments made to the financial statements, as presented, are of a normal recurring nature to the Trust. Net income for the three months ended March 31, 1996 has been reduced by $162,500 from amounts originally reported to reflect the adjusted incentive compensation earned by the Trust's president which was recorded during the fourth quarter of 1996. This allocation adjustment had no effect on net income for the year ended December 31, 1996. No other allocation adjustments have been made to the 1996 operating results. EARNINGS PER SHARE In February 1997, the Financial Accounting Standards Board issued Statement No. 128, Earnings per Share, which is required to be adopted on December 31, 1997. At that time, the Trust will be required to change the method currently used to compute earnings per share and to restate all prior periods. Under the new requirements for calculating primary earnings per share, the dilutive effect of stock options will be excluded. As the Trust has not issued stock options as of March 31, 1997, management believes there is no material impact of Statement No. 128 on the consolidated financial statements. 2. MORTGAGE LOANS PAYABLE LINE OF CREDIT On December 13, 1994, the Trust executed a loan agreement which provides for a revolving line of credit with American National Bank of Chicago ("ANB") in the amount of $15,000,000. On December 15, 1995, the Trust and ANB entered into an amendment to the aforesaid loan agreement, modifying the revolving line of credit by increasing the amount the Trust was permitted to borrow from $15,000,000 to $30,000,000. On January 7, 1997, the Trust and ANB entered into a further amendment to the loan agreement modifying the line of credit by decreasing the amount that the Trust was permitted to borrow from $30 million to $20 million (the "Modified Line"). As of December 31, 1996, the Trust had utilized approximately $8,400,000 of the $20,000,000 available under the Modified Line. On January 15, 1997, the Trust borrowed $5,500,000 under the Modified Line for the acquisition of the Phoenix Business Park property (see Note 4 for further details). On February 19, 1997, the Trust borrowed $1,200,000 under the Modified Line for general corporate needs of the Trust. On March 11, 1997, the Trust sold its interest in the Hallmark Village Apartments ("Hallmark"). (See Note 5 for details). On March 19, 1997, the Trust used a portion of its share of the Hallmark net sales proceeds to pay down $5,720,000 of the Modified Line. As a result of the above transactions, as of March 31, 1997, the Trust had an outstanding balance of $9,380,000 of the $20,000,000 available under the Modified Line. On April 29, 1997, the Modified Line was revised with ANB increasing the amount that the Trust is permitted to borrow from $20 million to $30 million (the "Amended Line"). Pursuant to the Amended Line, the term was extended from May 31, 1997 to November 30, 1997 and provides for a six month extension, at the Trust's option, until May 31, 1998. Upon expiration, the Amended Line will convert to a one year, interest only, term loan. The Trust paid the bank a one time extension fee of $87,500 at the closing of the Amended line. 3. TRANSACTIONS WITH AFFILIATES Effective January 1, 1997, the Trust began paying employees directly in contrast to the prior practice of paying Banyan Management Corp. on an hourly basis for the services of its personnel. In prior years, these payroll costs along with administrative costs were allocated to the Trust and other entities to which BMC provided administrative services based upon the actual number of hours spent by BMC personnel on matters related to that particular entity in relation to the total number of BMC personnel hours. In 1997, the Trust continues to share certain administrative items such as office rent and office expenses with other companies for which BMC provides services. These costs are shared based on the total hours worked by employees of the Trust relative to total hours worked by employees of BMC and the Trust combined. The Trust's allocable share of costs for the three months ended March 31, 1997 and 1996 aggregated $127,143 and $343,953, respectively. As one of its administrative services, BMC serves as the paying agent for general and administrative costs of the Trust. As of March 31, 1997, the Trust had a net payable due to BMC of $10,352. The net payable is included in accounts payable and accrued expenses in the Trust's Consolidated Balance Sheet. 4. INVESTMENT IN REAL ESTATE PHOENIX BUSINESS PARK On January 15, 1997, the Trust acquired a 100% ownership interest in a three building office/industrial complex known as Phoenix Business Park located in northeast Atlanta, Georgia, for a purchase price of approximately $5,479,000, including liabilities assumed at acquisition of approximately $33,000. The three buildings contain approximately 110,600 square feet of gross leasable area. The Phoenix Business Park property was constructed in 1979 and was 100% occupied with 13 tenants upon acquisition. The acquisition price was funded as a draw on the Trust's line of credit. BUTTERFIELD OFFICE PLAZA On April 30, 1997, the Trust acquired a 100% ownership interest in a three story office building known as Butterfield Office Plaza located in Oak Brook, Illinois (metropolitan Chicago) for a purchase price of $14,950,000, including liabilities assumed at acquisition of approximately $698,000. The office building is situated on 10 acres of land and contains approximately 200,800 square feet of gross leaseable area. The Butterfield Office Plaza was constructed in 1974 and was 92% occupied with fifty tenants upon acquisition. The acquisition price was funded as a draw on the Trust's line of credit. 5. DISPOSITION OF INVESTMENT IN REAL ESTATE On September 28, 1993, BSRT Hallmark Village Limited Partnership, ("BHVLP"), a limited partnership consisting of the Trust, a subsidiary of the Trust and HVA General Partnership, acquired the Hallmark Village Apartments for a purchase price, including liabilities at acquisition, of approximately $6 million. On March 11, 1997, BHLVLP sold the Hallmark property to an unaffiliated third party for a sales price of approximately $6.5 million, after credits made to the purchaser at closing. The Trust received net sales proceeds of approximately $6.1 million of which a portion was used to pay down the Trust's revolving line of credit (see Note 2 above for details). The Trust recognized a gain on disposition of approximately $3,800 as a result of the sale. 6. DISPOSITION OF INVESTMENT IN REAL ESTATE VENTURE On December 11, 1990, the Trust acquired title to the property known as the Victor Building located in Washington D.C. pursuant to an agreement with Banyan Strategic Land Fund II ("BSLFII"). On June 5, 1992, the Trust and BSLFII formed a joint venture (the "Venture"). The Trust has a 53% interest in the Venture while BSLFII owns the remaining 47%. This property consists of 36,100 square feet of undeveloped land in downtown Washington, D.C. plus an approximately 55,900 square foot office building. On March 20, 1997, the Venture sold approximately 3,500 square feet of the Venture's land to the United States General Services Administration on behalf of the United States of America ("GSA") for a purchase price of $1,680,000. GSA also paid the Venture $150,000 as reimbursement of expenses that the Venture incurred in anticipation of this transaction. The Venture received net proceeds of approximately $1,827,000 of which approximately $968,000 is the Trust's share. The Trust recognized no gain or loss on the sale. The Venture obtained all required approvals from various governmental agencies for the modifications necessary to the existing approved design for the proposed building on the Venture's remaining property that had been necessitated by this sale. On March 27, 1997, the Venture entered into a sales contract with an unaffiliated third party to sell the H Street Assemblage. Pursuant to the sales contract, the Venture has agreed to sell the land remaining after the GSA sale for $9,000,000. The purchaser is currently engaging in due diligence which must be concluded by May 27, 1997. The closing is scheduled to take place no later than July 25, 1997. 7. SUBSEQUENT EVENTS DIVIDEND AND DISTRIBUTIONS PAID On April 8, 1997, the Trust declared a cash distribution for the quarter ended March 31, 1997 of $0.10 per share payable May 22, 1997 to shareholders of record on April 22, 1997. ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS GENERAL The Registrant, Banyan Strategic Realty Trust (the "Trust"), is a Massachusetts business trust which owns, through various subsidiaries or partnerships which it controls, interests in industrial, residential, commercial and retail real estate assets located throughout the Midwestern and Southeastern portion of the United States and Washington, D.C. The Trust's current business plan is to invest its cash equivalents and cash proceeds generated by financing secured by existing property interests into additional real estate assets and to manage these real estate assets in a manner which will increase the Trust's cash flow over time. Certain statements in this quarterly report that are not historical fact constitute "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995. Without limiting the foregoing, words such as "anticipates," "expects," "intends," "plans" and similar expressions are intended to identify forward-looking statements. These statements are subject to a number of risks and uncertainties. Actual results could differ materially from those projected in the forward- looking statements. The Trust undertakes no obligation to update these forward-looking statements to reflect future events or circumstances. See the Trust's 1996 Form 10-K for factors affecting the stock price of the Trust. LIQUIDITY AND CAPITAL RESOURCES Cash and cash equivalents consist of cash and short-term investments. The Trust's cash and cash equivalents balance at March 31, 1997 and December 31, 1996 was $5,644,549 and $3,805,260, respectively. The increase in total cash and cash equivalents of $1,839,289 is due to $995,995 of cash provided from operating activities and $1,217,791 of cash provided by investing activities amounts which exceed the $374,497 of cash used in financing activities. Cash Flows From Operating Activities: Net cash provided by operating activities decreased by $485,075 for the three months ended March 31, 1997 to $995,995 from $1,486,094 for the same period in 1996. See Results of Operations below for further discussion of the operations of the Trust's real estate assets. The Trust's objective is to provide cash distributions to its shareholders from cash generated from the Trust's operations. Cash generated from operations is not equivalent to the Trust's net operating income as determined under generally accepted accounting principles. Due to certain unique operating characteristics of real estate companies, the real estate investment trust ("REIT") industry has adopted a standard which it believes more accurately reflects operating property performance. Funds From Operations ("FFO") is defined by the National Association of Real Estate Investment Trusts as net income computed in accordance with generally accepted accounting principles, less extraordinary unusual and nonrecurring items, excluding gains (or losses) from debt restructuring and sales of property plus depreciation and amortization and after adjustments for unconsolidated partnerships and joint ventures in which the REIT holds an interest. The Trust cautions shareholders that the calculation of FFO may vary from entity to entity and as such the presentation of FFO by the Trust may not be comparable to other similarly titled measures of other reporting companies. FFO is not intended to be a measure of the cash generated by a REIT nor the REIT's capacity to pay distributions. However, a REIT's distribution may be analyzed in comparison to FFO in a similar manner as a company that is not a REIT would compare its distribution to net operating income. For the three months ended March 31, 1997 and 1996, the Trust's operations generated FFO of $1,077,530 and $985,508, respectively. FFO increased for the three months ended March 31, 1997 as a result of the Trust's property acquisitions in mid-1996 and 1997. FFO for the three months ended March 31, 1997 and 1996 is calculated as follows: 1997 1996 ---------- ---------- Net Income. . . . . . . . . . . . . . . .$ 408,789$ 463,541 Plus: Depreciation expense. . . . . . . . . . 682,978 544,292 Depreciation included in Operations of Real Estate Ventures. . . . . . . . . . . . . . . 7,619 7,619 Lease Commission Amortization . . . . . 36,681 14,485 Less: Minority Interest Share of Depreciation Expense. . . . . . . . . (63,316) (52,408) Minority Interest Share of Lease Commission Amortization. . . . . . . . . . . . . (3,933) (2,021) Franchise Tax Fees Accrued. . . . . . . . 12,500 10,000 Gain on Disposition of Investment in Real Estate . . . . . . . (3,788) -- ---------- ---------- Funds From Operations . . . . . . . . . .$1,077,530$ 985,508 ========== ========== Cash Flow From Investing Activities: During the three months ended March 31, 1997, the Trust generated $1,217,791 from investing activities compared to utilizing $1,588,155 in investing activities for the same period in 1996. The cash flow provided by investing activities for the three months ended March 31, 1997 was due to approximately $6.1 million in proceeds received from the March 11, 1997 sale of the Trust's interest in the Hallmark Village property and approximately $968,000 received pursuant to the March 20, 1997 sale of a portion of the H Street Assemblage land parcel. These inflows of cash were partially offset by the acquisition of the Phoenix Business Park property in January 1997 for approximately $5.5 million and capital improvements at its various properties in the amount of approximately $363,000. See below for further discussion of the assets purchased or sold during 1997. During the same period in 1996, the Trust purchased investment securities of approximately $840,000, paid capital improvements of approximately $365,000 and paid approximately $230,000 of liabilities assumed at acquisition of real estate. On January 15, 1997, the Trust acquired a 100% ownership interest in a three building office/industrial complex known as Phoenix Business Park located in northeast Atlanta, Georgia, for a purchase price of approximately $5,479,000, including liabilities assumed at acquisition of approximately $33,000. The three buildings contain approximately 110,600 square feet of gross leasable area. The Phoenix Business Park property was constructed in 1979 and was 100% occupied with 13 tenants upon acquisition. The acquisition price was funded as a draw on the Trust's line of credit. On September 28, 1993, BSRT Hallmark Village Limited Partnership, ("BHVLP"), a limited partnership consisting of the Trust, a subsidiary of the Trust and HVA General Partnership, acquired the Hallmark Village Apartments for a purchase price, including liabilities at acquisition, of approximately $6 million. On March 11, 1997, BHLVLP sold the Hallmark property to an unaffiliated third party for a sales price of approximately $6.5 million, after credits made to the purchaser at closing. The Trust received net sales proceeds of approximately $6.1 million of which a portion was used to pay down the Trust's revolving line of credit (See below for details). The Trust recognized a gain on disposition of approximately $3,800 as a result of the sale. On April 30, 1997, the Trust acquired a 100% ownership interest in a three story office building known as Butterfield Office Plaza located in Oak Brook, Illinois (metropolitan Chicago), for a purchase price of $14,950,000, including liabilities assumed at acquisition of approximately $698,000. The office building is situated on 10 acres of land and contains approximately 200,800 square feet of gross leaseable area. The Butterfield Office Plaza was constructed in 1974 and was 92% occupied with fifty tenants upon acquisition. The acquisition price was funded as a draw on the Trust's line of credit. Cash Flow From Financing Activities: For the three months ended March 31, 1997, the Trust utilized cash flow from financing activities of $374,497 compared to utilizing $1,369,114 for the same period in 1996. The cash flow used for financing activities for the three months ended March 31, 1997 was primarily used for principal payments on mortgage loans in the amount of approximately $5.9 million, $5.7 million which represents a paydown of the Trust's line of credit as a result of the sales proceeds received from the Hallmark property sale in March 1997 and the balance represented principal payments in respect to other mortgage loans. In addition, the Trust paid a dividend to shareholders at a total cost to the Trust of approximately $1 million. Partially offsetting these uses was the receipt of $6.7 million of proceeds from mortgage loans payable, which represents draws on the Trust's line of credit used to purchase the Phoenix Business Park property and for general corporate needs of the Trust (See below for details). For the three months ended March 31, 1996, the Trust paid a dividend to shareholders at a total cost to the Trust of approximately $1 million and paid deferred financing costs of approximately $172,000. On December 13, 1994, the Trust executed a loan agreement which provides for a revolving line of credit with American National Bank of Chicago ("ANB") in the amount of $15,000,000. On December 15, 1995, the Trust and ANB entered into an amendment to the aforesaid loan agreement, modifying the revolving line of credit by increasing the amount the Trust was permitted to borrow from $15,000,000 to $30,000,000. On January 7, 1997, the Trust and ANB entered into a further amendment to the loan agreement modifying the line by decreasing the amount that the Trust was permitted to borrow from $30 million to $20 million (the "Modified Line"). As of December 31, 1996, the Trust had utilized approximately $8,400,000 of the $20,000,000 available under the revolving line of credit. On January 15, 1997, the Trust borrowed $5,500,000 under the Modified Line for the acquisition of the Phoenix Business Park property (see below for further details). On February 19, 1997, the Trust borrowed $1,200,000 under the Modified Line for general corporate needs of the Trust. On March 11, 1997, the Trust sold its interest in the Hallmark Village Apartments ("Hallmark"). (See below for details). On March 19, 1997, the Trust used a portion of the Hallmark net sales proceeds to pay down $5,720,000 of the Modified Line. As a result of the above transactions, as of March 31, 1997, the Trust had an outstanding balance of $9,380,000 of the $20,000,000 available under the Modified Line. On April 29, 1997, the Modified Line was revised with ANB increasing the amount that the Trust is permitted to borrow from $20 million to $30 million (the "Amended Line"). Pursuant to the Amended Line, the term was extended from May 31, 1997 to November 30, 1997 and provides for a six month extension, at the Trust's option, until May 31, 1998. Upon expiration, the Amended Line will convert to a one year, interest only, term loan. The Trust paid the bank a one time extension fee of $87,500 at the closing of the Amended Line. The Trust expects to fund its future liquidity needs with the cash flow obtained from its operating properties, cash proceeds derived from mortgage financing either on a long term basis or utilizing the Amended Line secured by the Trust's properties which are encumbered only as security for the line of credit (Colonial Penn, Phoenix Business Park, Lexington, Newtown and Butterfield Office Plaza properties), sale of the H Street Assemblage property and interest earned on the Trust's short-term investments. The Trust believes that these sources, as well as the Trust's cash and cash equivalents, are sufficient to meet the Trust's reasonably anticipated needs for liquidity and capital resources in the near future and to provide cash proceeds for distributions to shareholders. The Trust's ability to make future distributions to its shareholders is dependent upon, among other things: (i) sustaining the operating performance of its existing real estate investments through scheduled increases in base rents under existing leases and through general improvement in the real estate markets where the Trust's properties are located reflected in changes in base rents attributable to new or replacement leases; (ii) the operating performance of future acquisitions and (iii) the Trust's level of operating expenses. RESULTS OF OPERATIONS At March 31, 1997, the Trust owned seven industrial complexes aggregating 1,368,500 square feet of gross leasable area, one apartment complex consisting of 350 units, six commercial office properties consisting of 671,700 square feet of gross leasable area and one retail center which contains 321,800 square feet of gross leasable area. On April 18 and November 19, 1996, the Trust acquired interests in the Midwest Office Center and 6901 Riverport Drive properties, respectively. During June and July of 1996, the Trust sold its interest in the Karfad loan portfolio to an unaffiliated third party. On January 15, 1997, the Trust acquired an interest in the Phoenix Business Park property. On March 11, 1997, the Trust sold its interest in the Hallmark Village Apartments property. On March 20, 1997, the H Street Venture, a partnership between the Trust and Banyan Strategic Land Fund II owning the H Street Assemblage property, sold approximately 3,500 square feet of the venture's land. Subsequent to quarter end, the Trust acquired the Butterfield Office Plaza on April 30, 1997. For further discussion regarding the assets purchased or sold during 1997 see Liquidity and Capital Resources above. Real estate net operating income before interest expense (herein defined as total revenue excluding income on investments less operating property expenses, repairs and maintenance, real estate taxes, ground lease expense and depreciation and amortization) increased from $2,401,132 in 1996 to $2,870,471 in 1997. The Trust's acquisitions during 1996 and 1997 described above, accounted for approximately $549,000 of this increase during 1997. Negatively impacting this increase was the elimination of approximately $178,000 in interest income and amortized discount on mortgage loans which resulted from the sale of the Karfad loans during 1996 as described above. See below for further discussions of the changes in revenues and expenses for the period. Total revenues increased by approximately $717,000 to $5,893,886 from $5,176,653 due primarily to the properties acquired after January 1, 1996 accounting for approximately $715,000 of this increase. On a "same-store" basis (comparing the results of operations of the properties owned during the three months ended March 31, 1997, with the results of operations of the same properties owned during the three months ended March 31, 1996), total property revenues remained relatively stable. Total revenue at the Hallmark Village property decreased by approximately $185,000 due primarily to a decrease in rental income as a result of occupancy at the property decreasing from 82% at March 31, 1996 to 74% at March 31, 1997. In addition, total revenues decreased further due to the Trust's 1996 sale of its interest in the Karfad Loan portfolio resulting in the elimination of interest income and amortized discount of mortgage loans during 1997 as opposed to recording approximately $178,000 during 1996. Offsetting these decreases was an increase in total revenue at the Trust's Lexington property of approximately $108,000 as a result of a new lease signed for approximately 46,900 square feet of gross leaseable area which increased the occupancy by 15% at March 31, 1997 as compared to March 31, 1996. The remaining offsetting increase in total revenues for approximately $255,000 is primarily due to increases in total revenues at the Trust's retail and industrial properties. Total expenses increased by approximately $780,000 to $5,352,505 from $4,572,252 due primarily to the 1996 and 1997 acquisitions mentioned above which accounted for approximately $377,000 of this increase. On a "same- store" basis, interest expense increased by approximately $240,000 as a result of the Trust's execution of mortgage loans during 1996 collateralized by the Florida Power and Light and Woodcrest Office Park properties in the amounts of $6,200,000 and $7,250,000, respectively. General and administrative expenses increased by approximately $138,000 due primarily to an increase in the incentive compensation accrual earned by Mr. Levine, the Trust's president, reflecting an increase in estimated unrealized gain on the Trust's real estate assets. During the three months ended March 31, 1997, the Trust realized net income from the operation of real estate venture of $30,363 compared to a net loss of ($38,307) for the same period in 1996. The net income from operations of real estate venture for the three months ended March 31, 1997 represents the income realized from the Trust's 53% interest in the real estate venture known as the H Street Venture. The H Street Venture owns an approximately 55,900 square foot office building (the "Victor Building") and an adjacent land parcel consisting of 36,100 square feet (the "H Street Assemblage") located in Washington, D.C. On March 20, 1997, the H Street Venture sold approximately 3,500 square feet of the H Street Venture's land to the United States General Services Administration on behalf of the United States of America ("GSA") for a purchase price of $1,680,000. GSA also paid the H Street Venture $150,000 as reimbursement of expenses that the H Street Venture incurred in anticipation of this transaction. The H Street Venture received net proceeds of approximately $1,827,000, of which approximately $969,000 is the Trust's share. The Trust recognized no gain or loss on this sale. The H Street Venture has obtained all required approvals from various governmental agencies for the modifications necessary to the existing approved design for the proposed building on the H Street Venture's remaining property that had been necessitated by this sale. On March 27, 1997, the H Street Venture entered into a sales contract with an unaffiliated third party to sell the H Street Assemblage. Pursuant to the agreement, the H Street Venture has agreed to sell the building and land remaining after the GSA sale for $9,000,000. The purchaser is currently engaging in due diligence which must be concluded by May 27, 1997. The closing is scheduled to take place no later than July 25, 1997. Upon the sale of the H Street Assemblage, it is the Trust's intent to redeploy its portion of all cash proceeds derived from this sale into new real estate investments. The factors discussed above resulted in consolidated net income of $408,789 or $0.04 per share for the three months ended March 31, 1997 as compared to consolidated net income of $463,541 or $0.04 per share for the three months ended March 31, 1996. The Trust paid distributions equal to $0.10 per share on February 20, 1997 and February 20, 1996 for the fourth quarter of 1996 and 1995, respectively. On April 8, 1997, the Trust declared a cash distribution for the first quarter of 1997 of $0.10 per share payable May 22, 1997 to shareholders of record on April 22, 1997. PART II - OTHER INFORMATION ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K (a) The following exhibits are filed as part of this report: Exhibits Exhibit NumberDescription Exhibit (10) Material Contracts (i) Fifth Amendment to Loan Agreement dated March 7, 1997 and Sixth Amendment to Loan Agreement dated April 29, 1997 regarding the Registrant's Revolving Line of Credit with American National Bank of Chicago. (ii) Amended and Restated Note ($20,000,000) dated April 29, 1997 and Note ($10,000,000) dated April 29, 1997 regarding the Registrant's Revolving Line of Credit with American National Bank of Chicago. Exhibit (27) Financial Data Schedule The following exhibits are incorporated by reference from the Trust's Registration Statement on Form S-11 (file number 33-4169), referencing the exhibit number used in such Registration Statement. Exhibit (3)(b)By-Laws dated March 13, 1986. (3)(c) and (3)(d)Amended and Restated Declaration of Trust dated as of August 8, 1986, as amended on March 8,1991 and May 1, 1993. (10) Material Contracts (i) Amended Employment Agreement of Leonard G. Levine dated January 1, 1990. (ii) Second Amended and Restated Employment Contract of Leonard G. Levine dated December 31, 1992. (iii) Amendment to Loan Agreement dated December 1, 1994; Second Amendment to Loan Agreement dated December 21, 1994; Third Amendment to Loan Agreement dated December 18, 1995; and Fourth Amendment to Loan Agreement dated January 7, 1997 regarding the Registrant's Revolving Line of Credit with American National Bank of Chicago. (iv) First Amendment to Note dated December 18, 1995 and Second Amendment to Note dated January 7, 1997 regarding the Registrant's Revolving Line of Credit with American National Bank of Chicago. Exhibit (21) Subsidiaries of the Trust (b) No current reports on Form 8-K were filed during the quarter ended March 31, 1997. SIGNATURES PURSUANT to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned thereunto duly authorized. BANYAN STRATEGIC REALTY TRUST By: /s/ Leonard G. Levine Date: May 13, 1997 Leonard G. Levine, President By: /s/ Joel L. Teglia Date: May 13, 1997 Joel L. Teglia, Vice President and Chief Financial Officer SIGNATURES PURSUANT to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned thereunto duly authorized. BANYAN STRATEGIC REALTY TRUST By: ____________________________ Date: May 13, 1997 Leonard G. Levine, President By: ____________________________ Date: May 13, 1997 Joel L. Teglia, Vice President and Chief Financial Officer EX-10.I 2 EXHIBIT 10 (i) - -------------- FIFTH AMENDMENT TO LOAN AGREEMENT THIS FIFTH AMENDMENT TO LOAN AGREEMENT ("Fifth Amendment") is dated as of March 7, 1997 by and between BANYAN STRATEGIC REALTY TRUST, a Massachusetts business trust ("Borrower"), and AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, a national banking association ("Lender"). WHEREAS, Borrower and Lender entered into a Loan Agreement dated as of December 1, 1994 (the "Original Loan Agreement") relating to a loan made by Lender to Borrower in the maximum principal amount outstanding at any time not to exceed the lesser of (i) $15,000,000, and (ii) sixty percent (60%) of the Collateral Value of all of the Designated Properties and Designated Debt Instruments, as more fully set forth in the Original Loan Agreement; and WHEREAS, Borrower and Lender entered into that certain Amendment to Loan Agreement dated as of December 1, 1994 (the "First Amendment") pursuant to which certain Designated Properties, Designated Debt Properties and Property Owners were withdrawn from the Original Loan Agreement; and WHEREAS, Borrower and Lender entered into that certain Second Amendment to Loan Agreement dated as of December 21, 1994 (the "Second Amendment") pursuant to which a Designated Property and Property Owner were withdrawn from the Original Loan Agreement; and WHEREAS, Borrower and Lender entered into that certain Third Amended Loan Agreement dated as of December 18, 1995 (the "Third Amendment") pursuant to which, among other things, Borrower and Lender increased the amount set forth in subclause (i) of the first Recital paragraph herein from $15,000,000 to $30,000,000; and WHEREAS, Borrower and Lender entered into that certain Fourth Amendment to Loan Agreement dated as of January 7, 1997 (the "Fourth Amendment") pursuant to which, among other things, (a) Borrower and Lender further changed the amount set forth in subclause (i) of the first Recital paragraph herein to $20,000,000 and (b) the Loan Maturity Date was extended to May 31, 1998, and (c) the Loan Conversion Date was extended to May 31, 1997 (the Original Loan Agreement, the First Amendment, the Second Amendment, the Third Amendment and the Fourth Amendment are hereinafter collectively referred to as the "Loan Agreement"); and WHEREAS, Borrower and Lender desire to further amend the Loan Agreement as herein set forth. NOW, THEREFORE, for and in consideration of the mutual covenants herein contained, Borrower and Lender do hereby agree as follows: 1. Definitions. Capitalized terms used in this Fifth Amendment but not otherwise defined herein shall have the meaning ascribed to them in the Loan Agreement. 2. Additional Designated Property; Additional Property Owner. a. The property listed on Exhibit "A" attached hereto and made a part hereof (the "Atlanta Designated Property") shall be considered a Designated Property in addition to the Designated Properties previously identified in the Loan Agreement. Without limiting the generality of the foregoing, and except as specifically set forth herein, all representations, warranties, covenants, agreements and other provisions of the Loan Agreement relating to Designated Properties shall be deemed to be made on and as of the date hereof with respect to the Atlanta Designated Property, as if the Atlanta Designated Property were initially included as a Designated Property in the Loan Agreement. b. BSRT Phoenix Business Park Corp., an Illinois corporation, being the property owner listed on Exhibit "A" hereto ("Atlanta Property Owner") shall be considered a Property Owner in addition to the initial Property Owners identified in the Loan Agreement (and also, therefore, included within the term Borrowing Entities). Without limiting the generality of the foregoing, and except as specifically set forth herein, all representations, warranties, covenants, agreements and other provisions of the Loan Agreement relating to Property Owners shall be deemed to be made on and as of the date hereof with respect to the Atlanta Property Owner as if the Atlanta Property Owner were initially included as a Property Owner in the Loan Agreement. c. The Deed to Secure Debt, Assignment and Security Agreement ("Deed to Secure Debt Assignment and Security Agreement") and Additional Collateral Documents executed pursuant hereto, as they may be amended from time to time, shall be considered a Mortgage and Additional Collateral Documents, respectively, under the Loan Agreement, as amended hereby, in addition to the other Mortgages and Additional Collateral Documents referred to thereunder. Without limiting the generality of the foregoing, all representations, warranties, covenants, agreements and other provisions in the Loan Agreement relating to Mortgages and Additional Collateral Documents shall be deemed to be made on and as of the date hereof with respect to the Deed to Secure Debt, Assignment and Security Agreement and Additional Collateral Documents being executed pursuant hereto. d. After giving effect to the provisions of Section 2a and 2b hereof, the Designated Properties, Designated Debt Properties and the Property Owners shall be as set forth on Exhibit "B" attached hereto and made a part hereof. 3. Deliveries. Concurrent herewith, Borrower will deliver or cause to be delivered to Lender the following documents each in form, substance and execution and showing solely matters satisfactory to Lender: a. A Guaranty with respect to payments due under the Note, as amended concurrent herewith, executed by the Atlanta Property Owner identified on Exhibit "A" hereto. b. A Deed to Secure Debt, Assignment and Security Agreement executed by the Atlanta Property Owner, subject only to the Permitted Title Exceptions. c. UCC Financing Statements d. An Assignment of Leases and Rents, with respect to the Atlanta Designated Property, executed by the Atlanta Property Owner. e. A Pledge of Stock, with respect to the Atlanta Property Owner. f. An Assignment of Licenses and Permits, with respect to the Atlanta Designated Property executed by the Atlanta Property Owner, in favor of Lender and consents thereto by all licensing and permitting authorities. g. An Assignment of Management Contract, with respect to the Atlanta Designated Property, executed by the Atlanta Property Owner in favor of Lender and a consent thereto by the managing agent. h. An Environmental Indemnity, with respect to the Atlanta Designated Property, executed by Borrower and the Atlanta Property Owner. i. An ADA Indemnity, with respect to the Atlanta Designated Property, executed by Borrower and the Atlanta Property Owner. j. A copy of any and all Tenant Leases with the Occupancy Tenants at the Atlanta Designated Property, certified to Lender by Borrower and the Atlanta Property Owner to be true, correct and complete. k. A copy of the Rent Roll for the Atlanta Designated Property, certified to Lender by Borrower and the Atlanta Property Owner to be true, correct and complete. l. Certified resolutions of the Trustees of Borrower authorizing the execution of this Fifth Amendment, the documents provided herein by Borrower and the Atlanta Property Owner and the rendering of full performance therein. m. A certified copy of the Articles of Incorporation and By- Laws of the Atlanta Property Owner, and certified corporate resolutions of the directors thereof, authorizing the execution of the Deed to Secure Debt, Assignment and Security Agreement, Additional Collateral Documents and/or amendments to any or all of the foregoing. n. Copies of all recorded documents affecting the Atlanta Designated Property. o. Such estoppel certificates, subordination and attornment agreements and other certificates, documents and assurances from and with respect to the Occupancy Tenants at the Atlanta Designated Property as Lender may require. p. Such other papers, instructions and documents as the Title Insurer may require for the issuance of title insurance commitments or interim binders, for a mortgage title insurance policy or policies in such forms and amounts, and with such endorsements as Lender reasonably may require. q. Such other documents and instruments as are required pursuant hereto whether as conditions precedent to any of Lender's obligations, or otherwise, or pursuant to any one or more of the Note, Deed to Secure Debt, Assignment and Security Agreement, or any of them, any one or more of the items of Additional Collateral Documents or any amendment to any of the foregoing. 4. Representations and Warranties. Without limitation of any representations and warranties in the Loan Agreement, or of any of the provisions hereof, Borrower hereby represents, warrants and covenants as follows: a. All representations and warranties made by Borrower in the Loan Agreement are true and correct on and as of the date hereof. All such representations and warranties, together with all covenants and agreements of Borrower set forth in the Loan Agreement, are hereby remade on and as of the date hereof. b. The Atlanta Property Owner has good and marketable fee simple title to the Atlanta Designated Property, subject only to such exceptions as are shown on Exhibit "C" attached hereto and made a part hereof. Borrower owns all of the issued and outstanding shares of stock of the Atlanta Property Owner, free and clear of any liens, claims or encumbrances (except to the extent shown on stock certificates of the Atlanta Property owner in respect of customary and mandatory restrictions under federal securities laws). c. Borrower has delivered to Lender true and correct copies of the Tenant Leases relating to the Atlanta Designated Property. Attached hereto as Exhibit "D" and made a part hereof is a true, correct and complete Rent Roll for the Atlanta Designated Property listing with respect to each Tenant Lease the security deposit, rent expiration date and, if applicable, any renewal options, purchase options, rights of first offer or first refusal, termination rights and co-tenancy provisions, other material conditions. d. The representations and warranties made in Paragraph A of Article II of the Original Loan Agreement apply to this Fifth Amendment in the same manner as applicable therein to the Original Loan Agreement, and also apply to the documents being executed pursuant hereto in the same manner as applicable therein to the Note, Reimbursement Agreement, Mortgages and Additional Collateral Documents. The representations and warranties contained in this Fifth Amendment are true as of the date hereof and will be true and will be deemed remade at and as of the date of any disbursement of the proceeds of the Loan, except for the necessary effect of the transactions contemplated by the Loan Agreement as amended by this Fifth Amendment. 5. Waiver. Borrower hereby joins Atlanta Property Owner in waiving the operation of any applicable statute law or regulation having a contrary effect to the provisions of the paragraph immediately preceding paragraph No. 1 of the Deed to Secure Debt Assignment and Security Agreement. 6. Counterparts. This document may be executed in two (2) or more counterparts, all of which taken together shall constitute one (1) original. 7. Headings. Section headings used herein are for reference and convenience only and are not intended to be substantive and shall not be deemed to limit or otherwise affect the interpretations of this Fifth Amendment. 8. Conflict; Inconsistency. Except as amended by this Fifth Amendment, the Loan Agreement shall remain in full force and effect. In the event of any conflict or inconsistency between the terms and provisions of the Loan Agreement and the terms and provisions of this Fifth Amendment, the terms and provisions of this Fifth Amendment shall control to the extent necessary to resolve such conflict or inconsistency. Upon full execution of this Fifth Amendment, any references herein or elsewhere to the Loan Agreement shall be deemed to be references to the Loan Agreement as amended by this Fifth Amendment. 9. Successors; Assigns; Integration; Law. The provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors and assigns. This instrument has been made, executed and delivered in the State of Illinois and shall be governed by and construed in accordance with the laws of the State of Illinois. IN WITNESS WHEREOF the parties have executed this Fifth Amendment as of the day and year first above set forth. LENDER: BORROWER: AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, a national banking association BANYAN STRATEGIC REALTY TRUST, a Massachusetts business trust By: /s/ Marcus K. Babladelis By: /s/ Neil D. Hansen Its: Vice President Its: Vice President EXHIBIT "A" ATLANTA DESIGNATED PROPERTY PROPERTY PROPERTY OWNER Phoenix Business Park BSRT Phoenix Business 2700 Northeast Expressway Park Corp., an Illinois Atlanta, Georgia Corporation EXHIBIT "B" TO FIFTH AMENDMENT TO LOAN AGREEMENT DESIGNATED PROPERTY PROPERTY OWNER Fountain Square Office Building BSRT Fountain Square Corporation, (Colonial Penn Building) an Illinois corporation (Tampa, Florida) Buildings A, C, D & F BSRT Lexington Trust, a Lexington Business Center Massachusetts business trust Lexington, Kentucky ("Kentucky I Property") Building B BSRT Lexington B Corp., Lexington Business Center an Illinois corporation 1300 New Circle Road Lexington, Kentucky ("Kentucky II Property") Newtown Distribution Center BSRT Newtown Trust, a Lexington, Kentucky Massachusetts business trust ("Newtown Property") Phoenix Business Park BSRT Phoenix Business Park Corp., Atlanta, Georgia an Illinois corporation DESIGNATED DEBT PROPERTY PROPERTY OWNER None None EXHIBIT C (a) Taxes for the year 1997 and subsequent years, not yet due and payable. (b) Easements to Georgia Power Company, recorded in the aforesaid records: a. Dated March 11, 1980 and recorded in Deed Book 4256, page 457; b. Dated June 26, 1992 and recorded in Deed Book 7337, page 269; c. Dated February 18, 1992 and recorded in Deed Book 7337, page 271; and d. Dated August 18, 1994 and recorded in Deed Book 8471, page 583. (c) Easement between Consolidated Capital Growth Fund and F.M.I/Equity Shallowford Associates, dated August 11, 1980, recorded September 15, 1980 in Deed Book 4335, page 376, aforesaid records. (d) Attention is directed to the fact that Interstate Highway 85 is a limited access highway, with points of permitted access to the Highway being controlled by the State Highway Department of Georgia. (e) Easement from Century Properties Fund XV to BellSouth Telecommunications, Inc., dated November 16, 1994, recorded November 16, 1994 in Deed Book 8383, page 615, aforesaid records. (f) ALTA/ACSM Land Title Survey prepared for BRST Phoenix Business Park Corp., American National Bank & Trust Company of Chicago and Chicago Title Insurance Company by Planners and Engineers Collaborative, dated August 29, 1994, revised October 25, 1996 discloses the following: a. 50' buffer area along the southerly and southwesterly portion of the subject property; b. 75' building set back line along the westerly and easterly lines of the subject property; c. Building "C" located on the subject property violates the 75' building set back line by approximately 45 feet; d. Building located in the northerly portion of the subject property violates the 75' building set back line by approximately 19 feet; e. 20' side building line along the northeasterly portion of the subject property; f. Curbing in the westerly portion of the property encroaches onto the right of way of Johnson Road; SIXTH AMENDMENT TO LOAN AGREEMENT THIS SIXTH AMENDMENT TO LOAN AGREEMENT ("Sixth Amendment") is dated as of April 29, 1997 by an between BANYAN STRATEGIC REALTY TRUST, a Massachusetts business trust ("Borrower"), and AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, a national banking association ("Lender"). WHEREAS, Borrower and Lender entered into a Loan Agreement dated as of December 1, 1994 (the "Original Loan Agreement") relating to a loan made by Lender to Borrower in the maximum principal amount outstanding at any time not to exceed the lesser of (i) $15,000,000 and (ii) sixty percent (60%) of the Collateral Value of all of the Designated Properties and Designated Debt Instruments, as more fully set forth in the Original Loan Agreement; and WHEREAS, Borrower and Lender entered into that certain Amendment to Loan Agreement dated as of December 1, 1994 (the "First Amendment") pursuant to which certain Designated Properties, Designated Debt Properties and Property Owners were withdrawn from the Original Loan Agreement; and WHEREAS, Borrower and Lender entered into that certain Second Amendment to Loan Agreement dated as of December 21, 1994 (the "Second Amendment") pursuant to which a Designated Property and Property Owner were withdrawn from the Original Loan Agreement; and WHEREAS, Borrower and Lender entered into that certain Third Amended Loan Agreement dated as of December 18, 1995 (the "Third Amendment") pursuant to which, among other things, Borrower and Lender increased the amount set forth in subclause (i) of the first Recital paragraph herein from $15,000,000 to $30,000,000; and WHEREAS, Borrower and Lender entered into that certain Forth Amendment to Loan Agreement dated as of January 7, 1997 (the "Fourth Amendment") pursuant to which, among other things, (a) Borrower and Lender further changed the amount set forth in subclause (i) of the first Recital paragraph herein to $20,000,000 and (b) the Loan Maturity Date was extended to May 31, 1998, and (c) the Loan Conversion Date was extended to May 31, 1997, and whereas, Borrower and Lender entered into that certain Fifth Amendment to Loan Agreement dated March 7, 1997 (the "Fifth Amendment") pursuant to which, among other things, there was reflected the then current Designated Properties and Property Owners (the Original Loan Agreement, as amended by the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment and the Fifth Amendment, is hereinafter referred to as the "Loan Agreement"); and WHEREAS, Borrower and Lender desire to (a) increase the amount set forth in subclause (a) of the fifth Recital paragraph herein from $20,000,000 to $30,000,000, (b) change the date set forth in subclause (b) of the fifth Recital paragraph herein from May 31, 1998 to November 30, 1998, subject to extension to May 31, 1999 as herein provided and (c) further amend the Loan Agreement as herein set forth. NOW, THEREFORE, for and in consideration of the mutual covenants herein contained, Borrower and Lender do hereby agree as follows: 1. Definitions. Capitalized terms used in this Sixth Amendment but not otherwise defined herein shall have the meaning ascribed to them in the Loan Agreement. 2. Two Notes. Concurrent herewith, in addition to the Amended and Restated Note, there is being executed a note made by Borrower payable to the order of Lender in the principal amount of Ten Million Dollars ($10,000,000), bearing interest at the same rate as set forth in the Amended and Restated Note, payable on the same date and dates as the Amended and Restated Note is payable on, or such earlier date as is required therein or in the Loan Agreement (which $10,000,000 note, as the same may hereafter by renewed, restated, replaced, extended or amended from time to time, is hereafter referred to as the "$10,000,000 Note"). In addition to the matters set forth in the Loan Agreement as Events of Default thereunder, the occurrence of a Default under and as defined in either or both of the amended and Restated Note and the $10,000,000 Note shall be an Event of Default under the Loan Agreement, as amended hereby. An Event of Default under and as defined in the Loan Agreement, as amended hereby, shall be deemed to be a Default under each and both of the Amended and Restated Note and the $10,000,000 Note. The indebtedness, obligations and liabilities secured or guaranteed by or otherwise referred to in the Mortgages and Additional Collateral Documents shall include: a. the indebtedness, obligations and liabilities evidenced by the $10,000,000 Note (except for the Mortgages and Additional Collateral Documents executed by the Tampa Property Owner, BSRT Fountain Square Corp.); b. the indebtedness, obligations and liabilities evidenced by the Amended and Restated Note; and c. the obligations and liabilities otherwise secured or guaranteed by or referenced in, the said Mortgages and Additional Collateral Documents. A Default as defined in the Amended and restated Note shall constitute a Default as set forth in the $10,000,000 Note; and a Default as defined in the $10,000,000 Note shall constitute a Default as defined in the Amended and Restated Note. All amounts advanced by Lender to Borrower or otherwise constituting indebtedness of Borrower to Lender shall first be allocated to the Amended and Restated Note and then to the $10,000,000 Note. All amounts paid to Lender in respect of the Loan Agreement shall be allocated and applied, in respect of principal and interest, first to interest on the $10,000,000 Note, second to interest on the Amended and Restated Note, third to principal on the $10,000,000 Note and fourth to principal on the Amended and Restated Note (except that any amounts paid to Lender by or from the Tampa Property Owner (BSRT Fountain Square Corp.) or from foreclosure of or other proceeding against the property owned by it, shall be allocated and applied solely to the Amended and Restated Note). 3. Other Documents. Concurrent herewith Borrower is amending or causing to be amended the Note, the Mortgages and the Additional Collateral Documents, for the purpose of reflecting the foregoing amendments and other agreements. All references in the Loan Agreement to: a. the "Note" are hereafter deemed to be references to (a) the Note as amended and restated by Amended and Restated Note 7 made concurrent herewith by Borrower payable to the order of Lender in the maximum principal amount of $20,000,000, subject to the limitations therein provided, as the same may hereafter be renewed, restated, replaced, extended or amended from time to time, and (b) the $10,000,000 Note, subject to the limitations therein provided, as the same may hereafter be renewed, restated, replaced, extended or amended from time to time. b. the "Mortgages" are hereafter deemed to be references to the Mortgages as amended concurrent herewith, as the same hereafter may be amended from time to time, and all Mortgages which are executed and delivered to Lender concurrent herewith and which from time to time hereafter may be executed and delivered to Lender as security for or relating to the indebtedness and obligations as evidenced by any one or more of the Note and Reimbursement Agreement, as defined above, and the Loan Agreement, as amended hereby, all as same may be amended from time to time; c. the "Reimbursement Agreement" are hereafter deemed to be references to any one or more Reimbursement Agreements hereafter executed or delivered to Lender in respect of any one or more Letters of Credit hereafter issued by Lender in respect to the Loan Agreement, as amended hereby, as the same may hereafter be amended from time to time; and d. the "Additional Collateral Documents" are hereafter deemed to be references to the Additional Collateral Documents as amended concurrent herewith, as the same may hereafter be amended from time to time, and all other mortgages, documents and instruments (other than the Note, Loan Agreement, as amended hereby, Mortgages and Reimbursement Agreement) which are executed and delivered to Lender concurrent herewith and which from time to time hereafter may be executed and delivered to Lender as security for or relating to the indebtedness and obligations evidenced by any one or more of the Note, Loan Agreement and Reimbursement Agreement, as defined above, as same may be amended from time to time. 4. Loan Conversion Date. The definition of "LOAN CONVERSION DATE" set forth in the "DEFINITIONS" section of the Original Loan Agreement, as amended by the Fourth Amendment, is hereby deleted in its entirety and the following substituted therefor: "LOAN CONVERSION DATE. November 30, 1997, or earlier as provided in Paragraph D of Article I hereof. The Loan Conversion Date is nevertheless subject to extension as provided in Paragraph 5 hereof. 5. Loan Maturity Date. The definition of "LOAN MATURITY DATE" set forth in the "DEFINITIONS" section of the Original Loan Agreement, as amended by the Fourth Amendment, is hereby deleted in its entirety and the following substituted therefor: "LOAN MATURITY DATE. November 30, 1998, being the date upon which the final payment of all principal and interest on the Loan is due. Borrower shall have the right to extend the Loan Maturity Date from November 30, 1998 to May 30, 1999 upon written notice (the "Extension Notice") thereof served upon Lender not earlier than October 1, 1997 nor later than November 15, 1997, subject to satisfaction of the following conditions: (a) On or before the date of the Extension Notice, Borrower or its subsidiary shall have completed the disposition of its interest in "H" Street, Washington, DC property pursuant to an arms-length sale to a non-affiliated purchaser, without Borrower having taken any special charge or downward valuation adjustment against that asset (other than normal depreciation and amortization) from the date prior to the date hereof that Borrower last did so to and including the date of said disposition, or as a result thereof. (b) All dividends declared by Borrower, and amounts distributed by Borrower to shareholders for each of the first three (3) fiscal quarters of 1997 shall have been exceeded by the Funds from Operations of Borrower for such fiscal quarter. (c) The Extension Notice shall be accompanied by payment of an extension loan fee of $37,500, representing 1/8 of 1% of the $30,000,000 Loan maximum. (d) The Extension Notice shall be accompanied by a certification of the chief financial officer of Borrower that the conditions set forth in (a) and (b) above have been satisfied. An extension of the Loan Maturity Date as set forth above shall extend the Loan Conversion Date from November 30, 1997 to May 31, 1998. The Loan shall nevertheless be due on such earlier date that the Loan is due in the case of an Event of Default or as otherwise provided herein or in the Note or Reimbursement Agreement." 6. Loan Amount. a. In Paragraph A of Article I of the Original Loan Agreement, as amended by the Third Amendment and Fourth Amendment, the phrase "Twenty Million and no/100 Dollars ($20,000,000)" is hereby deleted and the following substituted therefor: "Thirty Million and no/100 Dollars ($30,000,000)". b. All references in Paragraph F of Article I of the Original Loan Agreement, as amended by the Third Amendment and Fourth Amendment, to the sum of "$20,000,000" shall be deemed to be references to the sum of $30,000,000". c. In Paragraphs A and D of Article I of the Original Loan Agreement, the phrase "Sixty percent (60%) is hereby changed to "Sixty five percent (65%)." 7. Fee. Borrower shall pay to Lender a one time non-refundable commitment and extension fee for the increase of the maximum Loan Amount to $30,000,000 and for the extension of the Loan Maturity Date to May 31, 1999 of One Hundred Twelve Thousand Five Hundred and 00/100 Dollars ($112,500), representing three eighths of one percent (.375%) of the Thirty Million and 00/100 Dollars ($30,000,000) Loan maximum, which shall be due and payable upon execution of this Amendment by Borrower. This fee is in addition to and not in lieu of any Letter of Credit fee, as and when applicable, and the unused facility fee. Pursuant to the terms of the Fourth Amendment, on half (1/2) of the $50,000 commitment fee imposed by the Fourth Amendment (i.e., $25,000) is hereby credited against the said commitment and extension fee herein. Lender is not obligated to grant any additional extensions of the Loan Maturity Date or increase in the maximum Loan Amount. 8. Total Debt to Total Shareholder's Equity. The ration of 1.0:1.0 set forth in Paragraph Q(3) of Article III of the Original Loan Agreement, as amended by the Fourth Amendment, is hereby changed to 2.5:1.0. 9. Additional Designated Property: Additional Property Owner. a. The property listed on Exhibit "A" attached hereto and made a part hereof (the "Illinois Designated Property") shall be considered a Designated Property in addition to the Designated Properties previously identified in the Loan Agreement. Without limiting the generality of the foregoing, and except as specifically set forth herein, all representations, warranties, covenants, agreements and other provisions of the Loan Agreement relating to Designated Properties shall be deemed to be made on and as of the date hereof with respect to the Illinois Designated Property, as if the Illinois Designated Property were initially included as a Designated Property in the Loan Agreement. b. BSRT Butterfield Office Plaza, Inc., an Illinois corporation, being the property owner listed on Exhibit "A" hereto ("Illinois Property Owner") shall be considered a Property Owner in addition to the other Property Owners identified in the Loan Agreement (and also, therefore, included within the term Borrowing Entities). Without limiting the generality of the foregoing, and except as specifically set forth herein, all representations, warranties, covenants, agreements and other provisions of the Loan Agreement relating to Property Owners shall be deemed to be made on and as of the date hereof with respect to the Illinois Property Owner as if the Illinois Property Owner were initially included as a Property Owner in the Loan Agreement. c. The Mortgage and Additional Collateral Documents executed pursuant hereto, as they may be amended from time to time, shall be considered a Mortgage and Additional Collateral Documents respectively, under the Loan Agreement, as amended hereby, in addition to the other Mortgages and Additional Collateral Documents referred to thereunder. Without limiting the generality of the foregoing, all representations, warranties, covenants, agreements and other provisions in the Loan Agreement relating to Mortgages and Additional Collateral Documents shall be deemed to be made on and as of the date hereof with respect to the said Mortgage and Additional Collateral Documents being executed pursuant hereto. d. After giving effect to the provisions of Section 8a and 8b hereof, the Designated Properties and the Property Owners shall be as set forth on Exhibit "B" attached hereto and made a part hereof. 10. Deliveries. Concurrent herewith, Borrower shall deliver or cause to be delivered to Lender the following documents each in form, substance and execution and showing solely matters satisfactory to Lender: a. Amended and Restate Note; and $10,000,000 Note. b. A Guaranty with respect to payments due under the note executed by the Illinois Property Owner identified on Exhibit "A" hereto. c. Mortgage executed by the Illinois Property Owner, subject only to the permitted Title Exceptions. d. UCC Financing Statements. e. An Assignment of Leases and Rents, with respect to the Illinois Designated Property, executed by the Illinois Property Owner. f. A Pledge of Stock, with respect to the Illinois Property Owner. g. An Assignment of Licenses and Permits, with respect to the Illinois Designated Property executed by the Illinois Property Owner, in favor of Lender and consents thereto by all licensing and permitting authorities. h. An Assignment of Management Contract, with respect to the Illinois Designated Property, executed by the Illinois Property Owner in favor of Lender and a consent thereto by the managing agent. i. An Environmental Indemnity, with respect to the Illinois Designated Property, executed by Borrower and the Illinois Property Owner. j. An ADA Indemnity, with respect to the Illinois Designated Property, executed by Borrower and the Illinois Property Owner. k. A copy of any and all Tenant Leases with the Occupancy Tenants at the Illinois Designated Property, certified to Lender by Borrower and the Illinois Property Owner to be true, correct and complete. l. A copy of the Rent Roll for the Illinois Designated Property, certified to Lender by Borrower and the Illinois Property Owner to be true, correct and complete. m. Certified resolutions of the Trustees of Borrower authorizing the execution of this Sixth Amendment, the documents provided herein by Borrower and the Illinois Property Owner and the rendering of full performance therein. n. A certified copy of the Articles of Incorporation and By-Laws of the Illinois Property Owner, and certified corporate resolutions of the directors thereof authorizing the execution of the Mortgage, Additional Collateral Documents and/or amendments to any or all of the foregoing. o. Copies of all recorded documents affecting the Illinois Designated Property. p. Such estoppel certificates, subordination and attornment agreements and other certificates, documents and assurances from and with respect to the Occupancy Tenants at the Illinois Designated Property as Lender may require. q. Such other papers, instructions and documents as the Title Insurer may require for the issuance of title insurance commitments or interim binders, for a mortgage title insurance policy or policies in such forms and amounts, and with such endorsements as Lender reasonably may require. r. Amendment to Documents - For Recording; and Amendment to Documents - Not for Recording, regarding existing documents for each Designated property existing as such prior to this date. s. Such other documents and instruments as are required pursuant hereto whether as conditions precedent to any of Lender's obligations, or otherwise, or pursuant to any one or more of the Note, Mortgage, or any of them, any one or more of the items of Additional Collateral Documents or any amendment to any of the foregoing. 11. Representation and Warranties. Without limitation of any representations and warranties in the Loan Agreement, or of any of the provisions hereof, Borrower hereby represents, warrants and covenants as follows: a. All representations and warranties made by Borrower in the Loan Agreement are true and correct on and as of the date hereof. All such representations and warranties, together with all covenants and agreements of Borrower set forth in the Loan Agreement, are hereby remade on and as of the date hereof. b. The Illinois Property Owner has good and marketable fee simple title to the Illinois Designated Property, subject only to such exceptions as are shown on Exhibit ("C") attached hereto and made a part hereof. Borrower owns all of the issued and outstanding share of stock of the Illinois Property Owner, free and clear of any liens, claims or encumbrances (except to the extent shown on stock certificates of the Illinois Property owner in respect of customary and mandatory restrictions under federal securities laws). c. Borrower has delivered to Lender true and correct copies of the Tenant Leases relating to the Illinois Designated Property. Attached hereto as Exhibit "D" and made a part hereof is a true, correct and complete Rent Roll for the Illinois Designated Property listing with respect to each Tenant Lease the security deposit, rent, expiration date and, if applicable, any renewal options, purchase options, rights of first offer or first refusal, termination rights and co-tenancy provisions, other material conditions. d. The representations and warranties made in Paragraph A of Article II of the Original Loan Agreement apply to this Sixth Amendment in the same manner as applicable therein to the Original Loan Agreement, and also apply to the documents being executed pursuant hereto in the same manner as applicable therein to the Note, Reimbursement Agreement, Mortgages and Additional Collateral Documents. The representations and warranties contained in this Sixth Amendment are true as of the date hereof and will be true and will be deemed remade at and as of the date of any disbursement of the proceeds of the Loan, except for the necessary effect of the transactions contemplated by the Loan Agreement as amended by this Sixth Amendment. 12. Intentionally deleted. 13. Counterparts. This document may be executed in two (2) or more counterparts, all of which taken together shall constitute one (1) original. 14. Headings. Section headings used herein are for reference and convenience only and are not intended to be substantive and shall not be deemed to limit or otherwise affect the interpretation of this Sixth Amendment. 15. Conflict; Inconsistency. Except as amended by this Sixth Amendment, the Loan Agreement shall remain in full force and effect. In the event of any conflict or inconsistency between the terms and provisions of the Loan Agreement and the terms and provisions of this Sixth Amendment, the terms and provisions of this Sixth Amendment shall control to the extent necessary to resolve such conflict or inconsistency. Upon full execution of this Sixth Amendment, any references herein or elsewhere to the Loan Agreement shall be deemed to be references to the Loan Agreement as amended by this Sixth Amendment. 16. Successors; Assigns, Integration; Law. The provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors and assigns. This instrument has been made, executed and delivered in the State of Illinois and shall be governed by and construed in accordance with the laws of the State of Illinois. IN WITNESS WHEREOF the parties have executed this Sixth Amendment as of the day and year first above set forth. LENDER: BORROWER: AMERICAN NATIONAL BANK AND TRUST BANYAN STRATEGIC REALTY TRUST, a COMPANY OF CHICAGO, a national Massachusetts business trust banking association By: By: Its: Its: EXHIBIT "A" ILLINOIS DESIGNATED PROPERTY PROPERTY PROPERTY OWNER Butterfield Office Plaza BSRT Butterfield Office 2625 Butterfield Road Plaza, Inc., an Illinois Oak Brook, Illinois 60521 corporation EXHIBIT "B" TO SIXTH AMENDMENT TO LOAN AGREEMENT DESIGNATED PROPERTY PROPERTY OWNER Fountain Square Office Building BSRT Fountain Square Corporation, (Colonial Penn Building (Tampa, an Illinois corporation Florida) Buildings A, C, D & F BSRT Lexington Trust, a Lexington Business Center Massachusetts business trust Lexington, Kentucky ("Kentucky I Property) Building B BSRT Lexington B Corp., an Lexington Business Center Illinois corporation 1300 New Circle Road Lexington, Kentucky ("Kentucky II Property") Newtown Distribution Center BSRT Newtown Trust, a Lexington, Kentucky Massachusetts business trust ("Newtown Property") Phoenix Business Park BSRT Phoenix Business Park Corp., Atlanta, Georgia an Illinois corporation Butterfield Office Plaza BSRT Butterfield Office Plaza, Oak Brook, Illinois Inc. an Illinois corporation DESIGNATED DEBT PROPERTY DESIGNATED DEBT PROPERTY OWNER None None EXHIBIT "C" PERMITTED TITLE EXCEPTIONS 1. TAXES FOR THE YEARS 1996 AND 1997. TAXES FOR THE YEARS 1996 AND 1997 ARE NOT YET DUE AND PAYABLE. PERMANENT INDEX NUMBER: 06-28-202-017. NOTE: TAXES FOR THE YEAR 1995, AMOUNTING TO $274,312.68 ARE PAID OF RECORD. (AFFECTS EAST 595.85 FEET MEASURED ON NORTH BY EAST 481.92 FEET MEASURED ON SOUTH LYING WEST OF OAK BROOK DEVELOPMENT COMPANY SUBDIVISION NO. 2 IN NORTHEAST 1/4 SECTION 28, TOWNSHIP 39 NORTH, RANGE 11, OF LOT 1 IN BUTLER COMPANY M-1 INC. ASSESSMENT PLAT) 2. GRANT DATE DECEMBER 30, 1965 AND RECORDED FEBRUARY 9, 1966 AS DOCUMENT R66-4660, FROM CHICAGO TITLE AND TRUST COMPANY, A CORPORATION OF ILLINOIS, AS TRUSTEE UNDER TRUST AGREEMENT DATED JUNE 8, 1964 AND KNOWN AS TRUST NUMBER 46960 TO THE COMMONWEALTH EDISON COMPANY, A CORPORATION OF ILLINOIS, FOR A PERPETUAL RIGHT, EASEMENT, PERMISSION AND AUTHORITY TO CONSTRUCT, ERECT, OPERATE, USE, MAINTAIN, RELOCATE, RENEW AND REMOVE OVERHEAD ELECTRIC TRANSMISSION LINES, INCLUDING STEEL POLES, WIRES, CABLES, ANCHORS, UNDERGROUND COUNTERPOLES, AND NECESSARY FIXTURES AND APPURTENANCES ATTACHED THERETO, IN, ON, UNDER, OVER, THROUGH, ALONG AND ACROSS THE PREMISES OF GRANTOR AND AS SHOWN ON THE PLAT OF OAK BROOK INTERNATIONAL OFFICE CENTER SUBDIVISION, RECORDED JANUARY 3, 1972 AS DOCUMENT R72-4. 3. EASEMENT IN FAVOR OF THE COMMONWEALTH EDISON COMPANY, AND ITS SUCCESSORS AND ASSIGNS, TO INSTALL, OPERATE AND MAINTAIN ALL EQUIPMENT NECESSARY FOR THE PURPOSE OF SERVING THE LAND AND OTHER PROPERTY, TOGETHER WITH THE RIGHT OF ACCESS TO SAID EQUIPMENT, AND THE PROVISIONS RELATING THERETO, CONTAINED IN THE GRANT RECORDED AS DOCUMENT R70-7381, AFFECTING THE SLY 10 FEET OF THE LAND. 4. EASEMENT IN FAVOR OF THE COMMONWEALTH EDISON COMPANY, AND ITS SUCCESSORS AND ASSIGNS, TO INSTALL, OPERATE AND MAINTAIN ALL EQUIPMENT NECESSARY FOR THE PURPOSE OF SERVING THE LAND AND OTHER PROPERTY, TOGETHER WITH THE RIGHT OF ACCESS TO SAID EQUIPMENT, AND THE PROVISIONS RELATING THERETO, CONTAINED IN THE GRANT RECORDED AS DOCUMENT R72-56745, AFFECTING THE A 10 FOOT STRIP OF LAND SHOWN ON EXHIBIT "A" ATTACHED THERETO AND MADE A PART THEREOF. 5. COVENANTS AND RESTRICTIONS (BUT OMITTING ANY SUCH COVENANT OR RESTRICTION BASED ON RACE, COLOR, RELIGION, SEX, HANDICAP, FAMILIAR STATUS OR NATIONAL ORIGIN UNLESS AND ONLY TO THE EXTENT THAT SAID COVENANT (A) IS EXEMPT UNDER CHAPTER 42, SECTIONS 3607 OF THE UNITED STATES CODE OR (B) RELATES TO HANDICAP BUT DOES NOT DISCRIMINATE AGAINST HANDICAPPED PERSONS), CONTAINED IN INSTRUMENT RECORDED AS DOCUMENT R71-36695, RELATING TO ARCHITECTURAL CONTROL, SIGNS AND USE TOGETHER WITH SUCH FURTHER PROVISIONS CONTAINED THEREIN. NOTE: SAID INSTRUMENT CONTAINS NO PROVISION FOR A FORFEITURE OF OR REVERSION OF TITLE IN CASE OF BREACH OF CONDITION. 6. THE LAND LIES WITHIN THE HINSDALE SANITARY DISTRICT, WHICH HAS ACCEPTED FEDERAL GRANTS FOR SEWAGE TREATMENT WORKS PURSUANT TO PUBLIC LAW 92-500. FEDERAL LAW REQUIRES A USER CHARGE SYSTEM SEPARATE FROM GENERAL AD VALOREM PROPERTY TAXES. 7. (A) TERMS, PROVISIONS, AND CONDITIONS RELATING TO THE EASEMENT DESCRIBED AS PARCELS 2 AND 3 CONTAINED IN THE INSTRUMENT CREATING SAID EASEMENT. (B) RIGHTS OF THE ADJOINING OWNER OR OWNERS TO THE CONCURRENT USE OF SAID EASEMENT. 8. EASEMENT AGREEMENT RECORDED JANUARY 24, 1968 AS DOCUMENT R68- 2840, IN FAVOR OF NORTHERN ILLINOIS GAS COMPANY AND THE COMMONWEALTH EDISON COMPANY, FOR THE PURPOSE OF INSTALLING AND MAINTAINING ALL EQUIPMENT NECESSARY FOR SERVING THE LAND AND OTHER PROPERTY WITH ELECTRICAL SERVICE, TOGETHER WITH RIGHT TO OVERHANG AERIAL SERVICE WIRES AND THE RIGHT OF ACCESS THERETO, AS DEPICTED ON EXHIBIT "A" ATTACHED THERETO AND MADE A PART THEREOF. 9. EXISTING UNRECORDED LEASES AND ALL RIGHTS THEREUNDER OF THE LESSEES AND OF ANY PERSON OR PARTY CLAIMING BY, THROUGH OR UNDER THE LESSEES PER RENT ROLL ATTACHED, WITH NO RIGHTS OF RENEWAL EXCEPT AS SHOWN THEREON, AND NO RIGHTS OF FIRST REFUSAL, OPTIONS TO PURCHASE OR OTHER PURCHASE RIGHTS. EXHIBIT "D" PROPERTY RENT ROLL AS OF JANUARY 8, 1997 ATLANTA EX-10.II 3 EXHIBIT 10 (ii) - --------------- AMENDED AND RESTATED NOTE $20,000,000.00 Chicago, Illinois Dated: As of April 29, 1997 FOR VALUE RECEIVED, the undersigned, Banyan Strategic Realty Trust, a Massachusetts business trust ("Maker"), hereby promises to pay to the order of American National Bank and Trust Company of Chicago, a national banking association (hereinafter, together with its legal representatives, successors and assigns, referred to as the "Bank" or as the "holder" of this Amended and Restated Note), at its office at 33 North LaSalle Street, Chicago, Illinois 60690, or at such other place as the Bank may from time to time designate in writing, the principal sum of Twenty Million and 00/100 Dollars ($20,000,000.00) (the "Loan Amount"), or so much thereof as shall from time to time have been disbursed to or for the benefit of the Maker or otherwise outstanding and remain unpaid, together with interest at the Agreed Rate (defined below) per annum on the balance of said principal remaining from time to time unpaid, to be paid in lawful money of the United States of America as hereinafter provided. 1. Definitions As used in this Amended and Restated Note, the following terms shall, except where the context otherwise requires, have the following meanings (such definitions to be equally applicable to the singular and plural forms thereof): A. "Advance". An advance of funds pursuant to or in respect of this Amended and Restated Note, the Loan Agreement, the Letter of Credit, the Reimbursement Agreement, the Mortgages or the Additional Collateral Documents. B. "Additional Collateral Documents". As defined in Paragraph 6. C. "Agreed Rate". The agreed rate of interest to be paid hereunder, namely, the Floating Rate for Floating Rate Funds, and the LIBOR Based Rate for LIBOR Based Funds. D. "Banking Day". A day on which banks are open for business in the Interbank Market and in Chicago, Illinois and also on which dealings in U.S. Dollar deposits are carried on in the Interbank Market. E. "Base Rate". The rate of interest announced or published publicly from time to time by the Bank as its prime or base rate of interest. The "Base Rate" is a base reference rate of interest adopted by the Bank as a general bench mark from which the Bank determines the floating interest rates chargeable on various loans to borrowers with varying degrees of creditworthiness, and Maker acknowledges and agrees that the Bank has made no representations whatsoever that the "Base Rate" is the interest rate actually offered by the Bank to borrowers of any particular creditworthiness or that the Bank does not extend credit to some parties at a lower interest rate. F. "Contract". Any contract made by the Bank in the Interbank Market to obtain the deposit with the Bank of the sum required to fund a LIBOR Portion for the respective Contract Period. G. "Contract Payment Date". For each Contract, the date on which it matures, except that if the Contract matures on a day which is not a Banking Day, the date shall be the next succeeding day which is a Banking Day. H. "Contract Period". The term of a Contract, which shall be the period of time of either thirty (30), sixty (60), ninety (90), one hundred twenty (120), one hundred fifty (150), one hundred eighty (180), two hundred seventy (270) days or one (1) year (as available or any other available period expressly agreed to by the Bank and Maker) for which Maker elects to be charged interest on a LIBOR Portion at the LIBOR Based Rate. For any LIBOR Portion in respect of which the Bank chooses not to accept a deposit, the Contract Period thereof shall mean the period for which Maker has elected to be charged at the LIBOR Rate for a LIBOR Portion. Each Contract Period shall be subject to the following additional conditions: (i) each such selection shall be irrevocable for the period so selected; (ii) each Contract Period shall be selected in such a way that no Contract Period shall extend beyond the Maturity Date; (iii) if any Contract Period ends on a day other than a Banking Day, such Contract Period shall be extended to the next succeeding day which is a Banking Day. I. "Conversion Date". For interest computation purposes, and as may be appropriate, the effective date on which: (i) a LIBOR Portion (or a portion of the Loan funds included therein) becomes part or all of the Floating Rate Funds; (ii) the whole or a portion of the Floating Rate Funds becomes a part or all of a LIBOR Portion; or (iii) an expiring LIBOR Portion (or a portion of the Loan funds included therein) is converted into all or part of another LIBOR Portion, either because of the occurrence of the Contract Payment Date of the Contract corresponding to such expiring LIBOR Portion or because of the breakage, early termination, or other disposition of the Contract corresponding to such LIBOR Portion, or otherwise. J. "Default". As defined in Paragraph 5A. K. "Default Interest Rate". Three percent (3%) per annum plus the Floating Rate with respect to Floating Rate-Based Funds, and three percent (3%) per annum plus the LIBOR-Based Rate with respect to any LIBOR Portion. L. "Floating Rate". A daily rate of interest equal to the daily rate equivalent of one quarter of one percent (0.25%) per annum in excess of the Base Rate (computed on the basis of a 360 day year and actual days elapsed). Such rate shall fluctuate hereafter from time to time concurrently with, and in an amount equal to, each increase or decease in the Base Rate, whichever is applicable. M. "Floating Rate Funds". At any time, the portion of the outstanding principal balance of the Loan on which interest is being charged at the Floating Rate. N. "Funding Costs". Any and all costs, expenses, penalties and/or charges incurred by the Bank arising directly from or relating directly to, as the case may be, the early termination, breakage or other disposition of a Contract because of prepayment of a LIBOR Portion prior to the Contract Payment Date of the corresponding Contract or Maker's election to terminate such LIBOR Portion, or otherwise, all as determined by the Bank in its sole discretion. O. "Interbank Market". The interbank market, located in London, England, or, at the Bank's election, located in any other location satisfactory to the Bank, where the Bank, or any branch, subsidiary, parent or affiliate of the Bank, may purchase or sell to other banks deposits of U.S. dollars for fixed periods. P. "Letter of Credit". Any one or more letters of credit from time to time issued by the Bank in respect of the Loan and all subsequent amendments thereto, modifications and extensions thereof and replacements and substitutions therefor. Q. "LIBOR". For each Contract, the rate of interest per annum at which a deposit in U.S. Dollars in the sum equal to the corresponding LIBOR Portion is offered to the Bank in the Interbank Market for the Contract Period two Banking Days prior to the first day of such Contract Period. Each determination of LIBOR by the Bank shall be conclusive and binding for all purposes of this Amended and Restated Note in the absence of manifest error. The use of such offered interest rate to define LIBOR shall not obligate the Bank to accept a deposit in order to charge interest on a LIBOR Portion at the LIBOR Based Rate once Maker elects to be charged interest at such rate on a LIBOR Portion for a definite period. R. "LIBOR Based Funds". At any time, the portion of the outstanding principal balance of the Loan on which interest is being charged at the LIBOR Based Rate. S. "LIBOR Based Rate". For any given LIBOR Portion for its corresponding Contract Period, the rate of interest per annum obtained by adding the sum of (1) the quotient of (a) LIBOR for that Contract Period divided by (b) a percentage equal to 100% minus the Reserve Requirement applicable during such Contract Period (rounded upward, if necessary, to the next higher 1/100 of 1%), plus (2) 2.25% per annum, computed on the actual number of days elapsed and a year computed on the basis of a three hundred sixty (360) day year. T. "LIBOR Portion". Each portion (if there is more than one Contract in existence of the outstanding principal balance of the Loan on which, as a result of Maker's election, Maker is charged interest at the LIBOR Based Rate; each LIBOR Portion shall be in an amount which is an increment of One Hundred Thousand Dollars ($100,000) and no LIBOR Portion shall be less than One Million Dollars ($1,000,000). U. "Loan". The loan evidenced by this Amended and Restated Note issued pursuant to the Loan Agreement. V. "Loan Agreement". That certain loan agreement between Maker and the Bank dated as of December 1, 1994, as amended by (a) Amendment to Loan Agreement dated as of December 1, 1994, (b) Second Amendment to Loan Agreement dated as of December 21, 1994, (c) Third Amendment to Loan Agreement dated as of December 18, 1995, (c) Fourth Amendment to Loan Agreement dated as of January 7, 1997, (e) Fifth Amendment to Loan Agreement dated as of March 7, 1997 and (f) Sixth Amendment to Loan Agreement of even date herewith, as the same hereafter may be amended from time to time. W. "Loan Conversion". As defined in Paragraph 2G. X. "Loan Conversion Date". As defined in Paragraph 2G. Y. "Maturity Date". As defined in Paragraph 2G. Z. "Mortgages". As defined in Paragraph 6A. AA. "Mortgaged Premises". As defined in Paragraph 6A. BB. "Regulation D". Regulation D of the Board of Governors of the Federal Reserve System from time to time in effect, and any successor or other regulation or official interpretation of said Board of Governors relating to reserve requirements applicable to member banks of the Federal Reserve System. CC. "Reimbursement Agreement". Any reimbursement agreements which hereafter from time to time may be executed and delivered to Bank in respect of the Loan, in request of any letters of Credit, and all subsequent amendments thereto and modifications thereof. DD. "Reserve Requirement". With respect to any Contract Period, the reserve percentage applicable two (2) Banking Days before the first day of such Contract Period under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, but not limited to, any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System, with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (as defined in Regulation D or otherwise in such regulations) or with respect to any other category of liabilities which includes deposits by reference to which the interest rate on a LIBOR Portion is determined. EE. "Transfer". As defined in Paragraph 7. 2. Principal and Interest A. Pursuant to the Loan Agreement Maker may borrow from time to time prior to the Loan Conversion Date amounts which, together with all amounts drawn and available to be drawn under the Letter of Credit and together with all other amounts then outstanding hereunder, do not exceed the lesser of (i) $20,000,000, or (ii) an amount which, together with all other amounts outstanding from time to time under the $10,000,000 Note defined in Paragraph 5A(v) hereof, does not exceed sixty-five (65%) of the "Collateral Value" of the "Designated Properties" and "Designated Debt Instruments" (all as defined in the Loan Agreement), based upon and subject to certain standards, restrictions, limitations and requirements as set forth in the Loan Agreement; and as maker repays all or a portion of the outstanding balance thereof, and provided no Event of Default or Potential Event of Default has occurred as defined in the Loan Agreement, and provided that the additional standards, restrictions, limitations and requirements set forth in the Loan Agreement have been complied with, Maker may (until the Loan Conversion Date) borrow on a revolving loan basis additional funds up to the limit of aggregate amount outstanding at any time as set forth above (including certain additions to the Letter of Credit), and the amount so reborrowed shall thereupon be and become part of the principal indebtedness evidenced hereby. B. Subject to the provisions of this Amended and Restated Note governing the manner and method of determining, at any time and from time to time, how the rate of interest on any particular portion of the outstanding principal balance of the Loan shall be computed, charged and paid, the Agreed Rate of interest on the outstanding principal balance of the Loan from time to time remaining unpaid shall be paid at the Floating Rate on Floating Rate Funds, and at the LIBOR Based Rate on each corresponding LIBOR Portion. Loan funds shall always be deemed Floating Rate Funds except to the extent of the aggregate sum of any then existing LIBOR Portions, and except as otherwise expressly provided herein. Prior to a Default, no interest shall be payable on amounts available to be drawn under the Letter of Credit. C. Subject to the provisions of this Amended and Restated Note, Maker shall have the right to select as the applicable rate for the payment of interest on the amount of any Advance a rate based upon the LIBOR or the Floating Rate. The Bank must receive notification of such selection by Maker at least two (2) Banking Days prior to each Advance and if a rate based upon the LIBOR Based Rate is selected by Maker, then Maker must also advise the Bank at the time of such selection of the duration of the initial Contract Period applicable to such Advance. If Maker has not so advised the Bank of its selection of an applicable rate and Contract Period as aforesaid (or if the Bank shall make an Advance other than pursuant to a request of Maker made in accordance with the terms of the Loan Agreement) Maker shall be deemed to have selected a rate based upon the Floating Rate as the applicable rate for such advance. D. Any change in the Agreed Rate resulting from a change from the Floating Rate or the LIBOR Based Rate to any other of the LIBOR Based Rate or the Floating Rate shall be effective on the applicable Conversion Date. E. Interest at the Floating Rate on that portion of the unpaid principal balance of the Loan which are Floating Rate Funds shall be due and payable monthly in arrears, commencing on the first (1st) day of the first (1st) calendar month succeeding the calendar month in which the first (1st) Advance of Floating Rate Funds is made and continuing on the first (1st) day of each month thereafter, with a final payment of all accrued and unpaid interest in respect thereof due on the Maturity Date or any earlier date that the final payment of principal is due or paid. F. Interest at the LIBOR Based Rate on each portion of the unpaid principal balance of the Loan which is a LIBOR Portion shall be due and payable, in arrears, commencing on the first (1st) day of the first (1st) calendar month following the calendar month in which the Contract Period begins, and continuing on the first (1st) day of each month during the Contract Period, and on the last day of such Contract Period, with a final payment of all current and unpaid interest in respect thereof due on the Maturity Date or any earlier date that the final payment of principal is due or paid. Interest on each LIBOR Portion shall also be paid when required as a result of the early termination, breakage or other disposition of the corresponding Contract. G. (i) Effective as of the loan Conversion Date the Loan will be automatically deemed converted (the "Loan Conversion") to a one (1) year term loan with interest on the principal balance from time to time outstanding payable monthly, in arrears, at the Agreed Rate. The Loan Conversion Date will be November 30, 1997, or earlier as provided in the Loan Agreement, subject to extension to May 31, 1998 as provided in the Loan Agreement. (ii) The final date on which the principal balance hereunder, and all accrued and unpaid interest thereon, shall be due and payable shall be November 30, 1998, which shall be deemed the Maturity Date. The Maturity Date shall be subject to extension to May 31, 1999 as provided in the Loan Agreement. The Loan shall nevertheless require certain earlier principal payments as set forth in the Loan Agreement and Reimbursement Agreement. Also, the Loan shall nevertheless be subject to acceleration and payment in full at any earlier time upon the occurrence of any Default hereunder. H. Interest due on any LIBOR Portion on the Contract Payment Date of its covering Contract, or on the date of termination, breakage, or other disposition of its corresponding Contract, or any earlier date as provided herein, and interest due in respect of Floating Rate Funds, and principal payments, must and shall be paid to the Bank and received by the Bank by 10:00 a.m. (Chicago, Illinois time) on the date such payment is due in accordance with the foregoing. I. All payments of principal and interest made on account of the indebtedness evidenced by this Amended and Restated Note shall be made in currency of the United States of America which shall be legal tender for public and private debts at the time of payment in immediately available funds. 3. LIBOR A. Maker shall not have the right to cause the termination, breakage or other disposition for all or any part of any one or more Contracts without the prior express consent of the Bank; and Maker shall cause such termination, breakage or other disposition upon express direction by the Bank. B. Unless otherwise expressly consented to by the Bank in each instance Maker shall cause each LIBOR Contract to be in an amount which is an increment of TEN THOUSAND and 00/100 DOLLARS ($10.000) and which amount is not less than ONE MILLION AND 00/100 DOLLARS ($1,000,000). C. Provided no Default has occurred hereunder, Maker shall have the right to elect, from time to time during the term of the Loan, to convert (1) all or one or more portions (but not less than $1,000,000) of the then outstanding Floating Rate Funds and/or (2) the whole or any one or more portions (but not less than $1,000,000) of any then-existing LIBOR Portion (because the corresponding Contract Payment Date has occurred or Maker has elected to cause the termination, breakage or other disposition of the Contract, as permitted by, and subject to the conditions, including payment of Funding Costs, provided hereinafter) to a new LIBOR Portion, subject to: (1) the Bank's receiving notice of the election not less than two (2) Banking Days prior to the date requested by Maker for commencement of the Contract Period of the new Contract required to cover the new LIBOR Portion; (2) the availability to the Bank of a Contract to cover such new LIBOR Portion effective on the requested date of commencement for the Contract Period; (3) Maker paying any additional costs incurred by the Bank from time to time which is attributable to such new LIBOR Portion; (4) the Bank being able to terminate, break, or otherwise dispose of the existing Contract; (5) If required by the Bank because the Bank is obligated to pay accrued interest on the existing Contract upon its termination, breakage or other disposition, Maker paying all interest accrued on said LIBOR Portion; and (6) Maker paying any Funding Costs incurred by the Bank as a result of the termination, breakage or other disposition of the existing Contract. If, on or before a date two (2) Banking Days before the end of the then current Contract Period for any LIBOR Portion, Lender does not receive a notice of election of a rate based upon the LIBOR Rate and the Contract Period as to such LIBOR Portion, Maker shall be deemed to have elected to convert such advance to Floating Rate Funds at the expiration of the then current Contract Period. D. Without the prior written consent of the Bank, the Contract Periods must be selected so that at no time shall there be more than eight (8) different "Interest Selections" (as such term is hereinafter defined) in effect at the same time with respect to the principal balance outstanding hereunder. For the purposes of this paragraph, an "Interest Selection" shall mean each single applicable interest rate and the corresponding Contract Period (unless the rate is the Floating Rate in which case no Interest Period is selected) in effect from time to time pursuant to the provisions of this Amended and Restated Note. E. To further evidence any LIBOR Portion, Maker shall execute such additional notes as may be requested by the Bank. Any such additional notes shall be in form reasonably satisfactory to the Bank and thereupon this Amended and Restated Note shall be endorsed to reflect the rate allocation of principal to the notes representing the LIBOR Portion and the fact that it is a duplicate of a portion of this Amended and Restated Note. F. Maker from time to time, upon written request from Lender, shall deliver a written acknowledgment in form reasonably satisfactory to Lender and indicating, as of the date thereof: (a) the respective portions of the Loan which bear interest at the Floating Interest Rate, (b) the respective portions of the Loan which bear interest at the LIBOR Based Rate and the respective LIBOR Based Rate(s) applicable thereto, and (c) the respective Conversion Date(s) applicable to any and all LIBOR Portion(s). G. It is understood that the cost to the bank of providing Maker with LIBOR Based Rates may fluctuate as a result of the applicability of, or changes in, any treaty, statute, rules and regulations, or in the interpretation thereof, or any directive, guideline or requirement by a central bank or fiscal authority (whether or not having the force of law), including, without limitation, any reserve or special deposit requirements imposed by the Board of Governors of the Federal Reserve System ("Board"), including, but not limited to, reserve requirements under Regulation D of the Board in connection with Eurocurrency Liabilities (as defined in Regulation D) at the ratios provided for in Regulation D from time to time (collectively, the "Imposition Requirements"). Maker agrees to pay the Bank from time to time such additional amounts as shall be necessary to compensate the Bank for the portion of the cost of providing Maker with LIBOR Based Rates resulting from any and all such Imposition Requirements. It is agreed that for purposes of this paragraph, upon elections of LIBOR Based Rates by Maker, the LIBOR Portion then outstanding shall be deemed to constitute Eurocurrency Liabilities as defined in Regulation D and to be subject to the reserve requirements of Regulation D. Without limiting the generality of the foregoing, if the Bank determines that compliance with any one or more of such Imposition Requirements affects or would affect the amount of capital required or expected to be maintained by the Bank, or any corporation controlling the Bank, and that the amount of such capital is required to be increased by or based upon the Loan or existence of the commitment of the Bank to lend pursuant to the Loan Agreement and all other commitments and loans of this type of the Bank and such other entity, then upon demand by the Bank, Maker shall immediately pay to the Bank from time to time as specified by the Bank, additional amounts sufficient to compensate the Bank in the light of such circumstances, to the extent that such increase in capital is reasonably determined by the Bank to be allocated directly or indirectly to the existence of the commitment to disburse amounts evidence hereby. In addition, in the event that after the date hereof any one or more of the Imposition Requirements shall occur which shall, exclusively as a result of Maker's election of LIBOR Based Rates: 1. subject the Bank to any tax with respect to the LIBOR Portions then outstanding other than any tax on the overall net income of the Bank, imposed by the United States of America or by the jurisdiction in which the Bank has its principal office or any political subdivision or taxing authority therein); or 2. change the basis of taxation of any payment to the Bank of principal of or interest on the LIBOR Portions then outstanding or other fees and amounts payable under this Amended and Restated Note, or any combination of the foregoing; or 3. impose, modify or deem applicable any reserve, deposit or similar requirement against any assets held by, deposits with or for the account of, or loans or commitments by, an office of the Bank; or 4. impose any other costs upon the Bank or impose upon the Bank or the Interbank market any other condition with respect to the Loan or this Amended and Restated Note, and if the result of any of the foregoing shall be increase the actual cost to the Bank of providing Maker with LIBOR Based Rates under this Amended and restated Note or to reduce the amount of any payment (whether of principal, interest or otherwise) received or receivable by the Bank under this Amended and Restated Note, or to require the Bank to make any payment in connection with the LIBOR Portions then outstanding, then in each such case Maker shall pay to the Bank such amounts as shall be necessary to compensate the Bank for such cost, reduction or payment. The Bank shall deliver to Maker from time to time one or more remittance forms setting forth the amounts due to the Bank under this Paragraph, and the changes in the reserve requirements as a result of which such amounts are due and the manner of computing such amounts. Maker shall pay to the Bank the amounts shown as due on any such form within ten (10) days after its receipt of the same. No failure on the part of the Bank to demand compensation under this paragraph on any occasion shall constitute a waiver of its right to demand such compensation on any other occasion. The protection of this paragraph shall be available to the Bank regardless of any possible contention of the invalidity or inapplicability of any law, regulation or other condition which shall give rise to any demand by the Bank for compensation hereunder. A certificate as to any such amounts submitted to the Maker by the Bank pursuant to this Paragraph shall be conclusive and binding for all purposes, absent manifest error. H. If any change after the date hereof in law or regulation or in the interpretation thereof by any governmental authority charged with the administration thereof shall make it unlawful for the Bank to provide Maker with LIBOR Based Rates or to give effect to its obligations as contemplated hereby with respect to providing Maker with LIBOR Base Rates, or if the Bank shall determine that by reason of circumstances affecting the Interbank Market generally adequate and fair means do not or will not exist for determining the LIBOR Based Rate, then, by written notice to Maker, the Bank may declare that the Bank will not thereafter provide Maker with LIBOR Based Rates, whereupon Maker shall be prohibited from electing LIBOR Based Rates unless such declaration is subsequently withdrawn, and interest on all principal from time to time outstanding hereunder shall thereupon be paid at the Floating Rate. I. The Bank may fund all or any portion of any LIBOR Portion as it may see fit, whether by purchasing dollar deposits in the Interbank Market, or otherwise. For purposes of this Amended and Restated Note, it shall be conclusively presumed that the Bank has elected to fund all LIBOR Portions by purchasing such dollar deposits, and the Maker shall be bound to all provisions herein contained concerning LIBOR Based Rates whether or not the Bank has in fact funded any LIBOR Portion in such manner. 4. Prepayment A. The portion of this Amended and Restated Note comprised of Floating Rate Funds may be prepaid, either in whole or in part, without penalty or premium, at any time and from time to time as set forth below. The portion of this Amended and Restated Note comprised of a Libor Portion may be prepaid only on the Contract Payment Date applicable thereto. If Maker shall now or hereafter have a right to prepay such LIBOR Portion by operation of law or otherwise, such prepayment must be accompanied by a simultaneous payment of all Funding Costs, and accrued interest on any covering Contract which the Bank is obligated to pay, attributable to any such LIBOR Portion which is being prepaid in whole or in part. For purposes hereof, upon acceleration of this Amended and Restated Note, the portion of this Amended and Restated Note comprised of a LIBOR Portion having a Contract Payment Date subsequent to the date of acceleration shall nevertheless be due and payable and payment therefor must be accompanied by payment of any such Funding Costs and accrued interest on any covering Contract attributable to any such LIBOR Portion and any foreclosure decree entered with respect to the Loan shall include such Funding Costs and accrued interest. B. Prior to the occurrence of any Default hereunder, subject to the foregoing provisions as to any LIBOR Portions, a prepayment may be made on not less than fifteen (15) days' prior written notice of the principal balance of this Amended and Restated Note, in whole or in part; provided, however, that each prepayment shall be accompanied by a payment of all interest accrued as of that date on the principal balance outstanding hereunder. Any partial prepayment must be made in an amount which is an integral multiple of One Hundred Thousand Dollars ($100,000.00). 5. Default; Default Interest Rate A. The occurrence of any one or more of the following events shall constitute a "Default" hereunder: (i) if Maker shall fail to pay any principal or any interest when due in accordance with the terms of this Amended and Restated Note, (ii) if Maker shall fail to promptly comply with any of its other agreements herein or with any other requirement herein, (iii) if an Event of Default (as defined in the Loan Agreement, the Reimbursement Agreement, any one or more of the Mortgages or any one or more of the Additional Collateral Documents) shall occur, (iv) if a Transfer shall occur, and/or (v) if there shall occur a "Default" as defined in and under that certain note of even date herewith made by Maker payable to the order of Bank in the principal amount of Ten Million and 00/100 Dollars ($10,000,000) (the "$10,000,000 Note"). B. If a Default hereunder shall occur then the entire unpaid principal balance due hereunder shall thereafter bear interest during the period such Default shall continue at the Default Interest Rate. Upon any such Default the Bank is expressly authorized to apply all payments received on any amounts due hereunder or under the terms of any one or more of the Loan Agreement, the Reimbursement Agreement, the Mortgages and any one or more of the Additional collateral Documents, as the Bank may determine. The Bank shall be entitled to receive payment in full of all interest accruing hereon subsequent to the filing of a petition or the taking of any other action commencing a bankruptcy, reorganization, arrangement other similar proceeding or which would accrue but for such proceeding or action. C. If a Default hereunder shall occur then the whole of the principal amount remaining unpaid under this amended and Restated Note, together with all accrued interest thereon, at the election of the Bank and without notice to Maker or any other person or entity, shall become immediately due and payable, together with all costs, fees and expenses incurred by the Bank on account of or in connection with the collection and enforcement of this Amended and Restated Note and in connection with the protection or realization on any security, and all other costs, fees and expenses of the Bank described in Paragraphs 3, 8 and otherwise as provided in this Amended and Restated Note, and the Bank may thereupon exercise any one or more of the following remedies at any time and from time to time singularly, successively or together and in such order and when and as often as the Bank in its sole direction may from time to time may determine; (i) bring an action against Maker for the whole or any part of the indebtedness evidenced by this Amended and Restated Note plus any or all of such costs, fees and expenses, (ii) proceed to foreclose any one or more of the Mortgages, (iii) proceed to exercise any one or more of the other rights and remedies available under any one or more of this Amended and Restated Note, the Mortgages, the Reimbursement Agreement, the Loan Agreement, and/or any one or more of Additional Collateral Documents, (iv) proceed against any guaranty or guarantees, and/or (v) proceed to exercise any other rights and remedies available at law or in equity. 6. Loan Agreement; Collateral This Amended and Restated Note evidences advances of loan proceeds pursuant to the Loan Agreement by and between Maker and the Bank. This Amended and Restated Note is secured and in the future may be secured by certain documents and instruments, including without limitation the following: A. One or more mortgages, deeds of trust and/or deeds to secure debt (collectively the "Mortgages") heretofore, concurrently and/or hereafter granted to the Bank by various mortgagors encumbering certain real estate, the building and improvements and now or hereafter located thereon, and certain other property (collectively, the "Mortgaged Premises"); B. One or more collateral assignments, heretofore, concurrently and/or hereafter granted to the Bank by the Maker or Maker's interest in the partnerships and/or corporations owning various of the Mortgages Premises, one or more pledges and assignments now to hereafter granted to the Bank by Maker or its affiliates of their interests in Designated Debt Instruments (as defined in the Loan Agreement), and certain other documents and instruments creating a security interest in, pledging or otherwise covering certain items of collateral by certain persons and entities, including without limitation, assignments of leases and rents, and security agreements, all as set forth in the Loan Agreement (herein collectively referred to as the "Additional Collateral Documents"). The Bank is entitled to the benefits of the Loan Agreement, the Reimbursement Agreement, the Mortgages and the Additional Collateral Documents and may enforce the agreements, obligations and undertakings of Maker and others (or any of them) contained therein and exercise the rights and remedies provided for thereby, or otherwise in respect thereof, all in accordance with the terms thereof. Maker may not deduct, set off or withhold from any payments of principal or interest under this Amended and Restated Note the amount of any claim made by Maker against the Bank pursuant to any agreement, instrument, document, litigation or settlement. 7. Transfer One or more of the Mortgages provides that it shall be an immediate Event of Default thereunder without notice if without the prior written consent of the mortgages thereunder, the mortgagor thereunder shall create, effect or consent to or suffer or permit any one or more of certain conveyances, sales, assignments, transfer, liens, pledges, mortgages, security interests or other encumbrances or alienations (any of the foregoing hereinafter called a "Transfer") concerning or with respect to certain of (a) the Mortgaged Premises which is the subject thereof, (b) the beneficial interest of any trustee which is the mortgagor thereof, (c) the shares of stock of any corporation which is (i) said mortgagor, (ii) the owner of all or any part of said beneficial interest in said mortgagor or all or any part of the interest in any partnership or joint venture which is the said mortgagor or (iii) the owner of all or any part of the beneficial interest of any trustee mortgagor, or (d) all or any part of the interest of any partner or joint venturer in any partnership or joint venture which is (i) said mortgagor or (ii) the owner of all or any part of the beneficial interest of any trustee mortgagor. The said provisions of the Mortgages are incorporated by reference herein as if fully set forth herein. The Loan Agreement and/or one or more or the Collateral Assignments of the Designated Debt Instruments (as defined in the Loan Agreement), provides that it shall be an immediate Event of Default thereunder without notice if without the prior written consent of the assignee thereunder, the assignor thereunder shall create, effect, or consent to or suffer or permit any certain transfers concerning or with respect to certain of (a) the Designated Debt Instruments which are the subject thereof, (b) the beneficial interest of any person or entity which is the assignor thereof, (c) the shares of stock of any corporation which is (i) said assignor, (ii) the owner of all or any part of said beneficial interest in said assignor or all or any part of the interest in any partnership or joint venture which is the said assignor or (iii) the owner of all or any part of the beneficial interest of any trustee assignor, or (d) all or any part of the interest of any partner or joint venturer in any partnership or joint venture which is (i) said assignor or (ii) the owner of all or any part of the beneficial interest of any trustee assignor. The said provisions of said pledges and assignments are incorporated by reference herein as if fully set forth herein. 8. Costs, Fees and Expenses If at any time or times after the date of this Amended and Restated Note, the Bank (a) employs counsel for advice or other representation (i) with respect to any one or more of this Amended and Restated Note, the Loan Agreement, the Reimbursement Agreement, the Letter of Credit, Mortgages or any Additional Collateral Documents and/or any guaranty or guarantees, or the administration hereof, (ii) to represent the Bank in any litigation, contest, dispute, suit or 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, Maker or any other person or entity) in any way or respect relating to any one or more of this Amended and Restated Note, the Loan Agreement, the Reimbursement Agreement, the Letter of Credit, Mortgages, or any of them, or any Additional Collateral Documents and/or any guaranty or guarantees, or (iii) to enforce any rights of the Bank against Maker; (b) takes any action with respect to the administration of any one or more of this Amended and Restated Note, the Loan Agreement, the Reimbursement Agreement, the Letter of Credit, any one or more of the Mortgages or any of the Additional Collateral Documents and/or any guaranty or guarantees, or to protect, collect, sell, liquidate or otherwise dispose of any collateral securing the obligations of the undersigned hereunder; and/or (c) attempts to or enforces any of Bank's rights or remedies against Maker, then the costs, fees and expenses (including, without limitation, attorneys' fees) incurred by the Bank in any manner or way with respect to any of the foregoing shall be part of the obligations of Maker hereunder, payable by Maker to the Bank on demand. 9. Business Loan Maker represents and agrees that the proceeds of the loan evidences by this Amended and Restated Note will be used solely for business purposes and in accordance with all applicable laws, and that the principal obligation evidenced hereby constitutes a business loan. 10. Application of Payments All payments on account of the indebtedness evidenced by this Amended and Restated Note shall be first applied to accrued and unpaid interest on the unpaid principal balance and the remainder to installments of the outstanding principal balance in the inverse order of the maturity of such installments of principal. From and after the occurrence of a Default hereunder, the Bank is expressly authorized to apply payments made under this amended and Restated Note as the Bank may elect against any or all amounts, or portions thereof, then due and payable hereunder or under the Mortgages, the Reimbursement Agreement, the Loan Agreement or any of the Additional Collateral Documents, the outstanding principal balance due under this Amended and Restated Note, the unpaid and accrued interest due under this Amended and Restated Note, or any combination of the foregoing. 11. Waivers; Amendments A. If the Bank (i) grants any extension of time or forbearance with respect to the payment of any of the indebtedness evidenced hereby or with respect to the performance of any of the other obligations of Maker hereunder or of Maker or others under any one or more of the Loan Agreement, the Reimbursement Agreement, the Letter of Credit, the Mortgages, or any of them, any of the Additional Collateral Documents or any guaranty or guarantees; (ii) takes other or additional security and/or any guaranty or guaranties for the payment hereof; (iii) waives or fails to exercise any right granted herein or under the Mortgages, or any of them, the Loan Agreement, the Letter of Credit, the Reimbursement Agreement, or any one or more of the items of Additional Collateral Documents, or any guaranty or guaranties; (iv) any release, with or without consideration, of the whole or any part of the security and/or any guaranty or guaranties held for the payment of the indebtedness evidenced hereby; (v) amends or modifies in any respect with or without the consent of Maker any of the agreements, obligations, terms, provisions and conditions hereof or of the Mortgages, or any of them, the Loan Agreement, the Reimbursement Agreement, the Letter of Credit, any one or more of the Additional Collateral Documents, or any guaranty or guaranties; (iv) consents to the filing of any map, plat, replat or condominium declaration affecting all or any part of the mortgaged Premises; (vii) consents to the granting of any easement or other right affecting all or any part of the Mortgaged Premises, (viii) or makes or consents to any agreement subordinating the lien of the Mortgages, or any of them or any of the Additional Collateral Documents, then in any such event, such act or omission to act shall not release, discharge, modify, or change or affect (except to the extent of changes referred to in clause (v) above effected with the consent of the Bank) the liability under this Amended and Restated Note, or under the Mortgages, or any of them, the Loan Agreement, the Reimbursement Agreement, any of the Additional Collateral Documents, or any guaranty or guaranties, and any such act or omission to act shall not release Maker hereunder or under the Loan Agreement or Reimbursement Agreement, or mortgagor under any one or more of the Mortgages, or any other person or entity executing any of the Additional Collateral Documents or any guarantor or guarantors of this Amended and Restated Note, under any agreement, obligation, term, provision or condition of this Amended and Restated Note or of the Mortgages, or any of them, or of the Loan Agreement, or the Reimbursement Agreement, or of any of the Additional Collateral Documents or of any guaranty or guaranties, nor preclude the Bank from exercising any right, power, or privilege herein or therein granted or intended to be granted. No right or remedy of the holder of this Amended and Restate Note shall be exclusive of, but shall be in addition to, every other right or remedy now or hereafter existing at law or in equity. No delay in exercising, or omission to exercise, any right or remedy accruing on any default or failure shall impair any such right or remedy, or shall be construed to be waiver of any such right or remedy, or acquiescence in such default or failure, nor shall it affect any subsequent default or failure of the same or a different nature. The rights and remedies of the Bank arising under the agreements, obligations, terms, provisions and conditions contained in this Amended and Restated Note and in the Mortgages, and each of them, the Loan Agreement, the Reimbursement Agreement, all of the Additional Collateral Documents and any guaranty or guaranties, and each of them, shall be separate, distinct and cumulative and none of them shall be in exclusion of the others and no act of the Bank shall be construed as an election to proceed under any of the provisions herein or in such other documents to the exclusion of any other provision, anything herein or otherwise to the contrary notwithstanding, and every such right or remedy may be exercised concurrently or independently, and when as often as the Bank may determine. A waiver in one or more instances of any of the agreements, obligations, terms, provisions or conditions hereof or of the Mortgages, or any of them, the Loan Agreement, the Reimbursement Agreement any of the Additional Collateral Documents or any guaranty or guaranties, shall apply to the particular instance or instances and at the particular time or times only, and no such waiver shall be deemed a continuing waiver, but all of the agreements, obligations, terms, provisions and conditions of this Amended and Restated Note and of such other documents shall survive and continue to remain in full force and effect. B. Without limiting the generality of the provisions of Paragraph 11A hereof, Maker, for itself and for all others who may become liable for all or any part of the indebtedness evidenced hereby, whether primarily or secondarily, and for the heirs, legal representatives, successors and assigns of each and all of the foregoing, expressly, to the fullest extent permitted by law, (i) waives and renounces any and all homestead and exemption rights and the benefit of all valuation and appraisement rights in respect thereof, (ii) waives presentment and demand for payment, demand notice of dishonor, non-payment, notice of protest and diligence in collection, and all other notices in connection with the performance, default or enforcement of the payment and performance hereunder, (iii) consents to any extension of time, release of any party liable for this obligation, release of any security for this Amended and Restated Note, acceptance of other security therefore and any other compromise, settlement, renewal, indulgence or forbearance whatsoever, and any such extension, release, compromise, settlement, renewal, indulgence or forbearance may be made without notice to any party and without affecting the personal liability of Maker or any other party or the lien of the Mortgages, (iv) agrees that the liability of Maker shall be unconditional and without regard to the liability of any other person or entity for the payment hereof and (v) consents to the addition of any and all other makers, indorsers, guarantors, and other obligors for the payment hereof, and to the acceptance of any and all other security for the payment hereof, and agrees that the addition of any such obligors or security shall not affect the liability of Maker for the payment hereof. C. All amounts payable under this Amended and Restated Note are payable without relief from valuation or appraisement laws. 12. Savings Clause A. Maker and the Bank intend and believe that each provision in this Amended and Restated Note comports with all applicable law. However, if any provision in this Amended and Restated Note is found by a court of law to be in violation of any applicable law, and if such court should declare such provision of this Amended and Restated Note to be unlawful, void or unenforceable as written, then it is the intent of all parties hereto that such provision shall be given full force and effect to the fullest possible extent that it is legal, valid and enforceable, that the remainder of this Amended and Restated Note shall be construed as if such unlawful, void or unenforceable provision were not contained, and that the rights, obligations and interests of the Maker and the Bank under the remainder of this Amended and restated Note shall continue in full force and effect; provided, however, that if any provision of this Amended and Restated Note which is found to be in violation of any applicable law concerns the imposition of interest hereunder, the rights, obligations and interests of Maker and the Bank with respect to the imposition of interest hereunder shall be governed and controlled by the provision of the following paragraph. B. Nothing in this Amended and Restated Note or in the Loan Agreement, Reimbursement Agreement, Mortgages or Additional Collateral Documents shall be construed or shall so operate, either presently or prospectively, (a) to require Maker to pay interest at a rate greater than is at any time lawful in such case to contract for but shall require payment of interest only to the extent of such lawful rate, or (b) to require Maker to make any payment or do any such act contrary to law. If it should be held that the interest payable under this Amended and Restated Note or in the Loan Agreement, the Reimbursement Agreement, Mortgages, or any of them, or any of the Additional Collateral Documents is in excess of the maximum permitted by law, the interest chargeable hereunder (whether included in the face amount or otherwise) shall be reduced to the maximum amount permitted by law, and any excess of the said maximum amount permitted by law shall be cancelled automatically and, at the option of the Bank, if theretofore or thereafter paid, shall be either refunded to Maker or credited to the principal balance of this Amended and Restated Note and applied to the payment of the last maturing installment or installments of the indebtedness evidenced hereby (whether or not then due and payable and not to the payment of interest. 13. Applicable Law; Venue A. This Amended and Restated Note and the Loan Agreement, Mortgages, Reimbursement Agreement and Additional Collateral Documents have been negotiated and delivered at Chicago, Illinois and all funds disbursed to or for the benefit of Maker have been disbursed in Chicago, Illinois. The Loan is being administered in Illinois. Maker and the Bank have bargained for and expressly do hereby agree that this Amended and Restated Note shall be governed by and construed under the internal substantive laws of the State of Illinois. ANY LITIGATION BASED ON OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AMENDED AND RESTATED NOTE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE BANK OR MAKER IN RESPECT HEREOF, 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, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT BANK'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. MAKER 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, AND THE COURTS OF ANY SUCH OTHER STATE, FOR THE PURPOSE OF SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. MAKER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY CERTIFIED OR REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE AT THE ADDRESS OF MAKER STATED ABOVE OR AT ANY OTHER ADDRESS OF MAKER WITHIN OR WITHOUT THE STATE OF ILLINOIS. MAKER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE PLACE OR 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. TO THE EXTENT THAT MAKER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, MAKER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AMENDED AND RESTATED NOTE. THE BANK AND MAKER HEREBY VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ALL RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN MAKER AND BANK ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN MAKER AND BANK IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE DOCUMENTS EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR THE TRANSACTIONS RELATED HERETO OR THERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO BANK TO ENTER INTO THE FINANCING TRANSACTIONS WITH MAKER. IT SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY BANK'S ABILITY TO PURSUE ITS REMEDIES. 14. Notices All notices and demands required to be given to or by and/or served upon Maker under this Amended and Restated Note shall be in writing and shall be delivered in person or by United States Registered Mail, return receipt requested, postage prepaid, addressed to Maker in care of In the case of Maker, to: Banyan Strategic Realty Trust 150 South Wacker Drive Suite 2900 Chicago, Illinois 60606 Attention: Robert G. Higgins with a copy to: Shefsky & Froelich 444 North Michigan Avenue 24th Floor Chicago, Illinois 60611 Attention: James M. Teper In the case of Lender, to: American National Bank and Trust Company of Chicago 33 North LaSalle Street Chicago, Illinois 60699 Attention: Peter C. Malecek Vice President with a copy to: Altheimer & Gray 10 South Wacker Drive Suite 4000 Attention: James S. Gray Notices and demands served in the manner aforementioned shall be deemed sufficiently given or served for all purposes under this Amended and Restated Note at the time any such notice or demand shall be delivered, or on the date shown on the return receipt, as the case may be. Maker and/or the Bank may change the address at which notice may be served by notice to the other as above required. Maker hereby authorizes the Bank to effect Adjusted LIBOR Rate selection choices or choices based on telephonic notices made by any person or persons whom the Bank in good faith believes to be authorized to act on behalf of Maker. Maker agrees to confirm to the Bank promptly any telephonic rate selection notice in writing signed by an authorized officer or other person designated by Maker in writing. If the written confirmation differs in any material respect from the action taken by the Bank, the records of the Bank shall govern. Maker hereby agrees to indemnify and hold Lender harmless from any loss or expense the Bank might incur in acting in good faith as provided in this paragraph on the request of any unauthorized person. 15. Assignment Upon any endorsement, assignment, or other transfer of this Amended and Restated Note by the Bank or by operation of law, the term "Bank" as used herein shall mean such endorsee, assignee, or other transferee or successor to the Bank then becoming the holder of this Amended and Restated Note. This Amended and Restated Note shall inure to the benefit of the Bank and its legal representatives, successors and assigns and shall be binding upon Maker and its legal representatives, successors and assigns. The term "Maker" as used herein shall include the respective successors, assigns, and legal representatives of Maker. 16. Time of Essence Time is of the essence hereof and of the performance of each and all of the obligations of Maker hereunder. 17. Headings The seventeen (17) numbered paragraph heading hereunder are for reference and convenience only and are not intended to be substantive and shall not be deemed to limit or otherwise affect the remainder of this Amended and Restated Note. 18. Amendment and Restatement This Amended and Restated Note reevidences and sets forth modified terms with respect to the indebtedness heretofore evidenced by that certain initial Note dated as of December 1, 1994 made by Maker and payable to the order of Bank in the original principal amount of $15,000,000, as said initial Note of December 1, 1994 was amended by First Amendment to Note dated as of December 18, 1995 and by Second Amendment to Note dated as of January 7, 1997 (said initial Note, as so amended, is herein in this paragraph referred to as the "Prior Note"). The Prior Note is being amended and restated hereby. This Amended and Restated Note is not in payment or satisfaction of the Prior Note and is no way intended to constitute a novation of the Prior Note. IN WITNESS WHEREOF, the undersigned has executed this Amended and Restated Note as of the date and year first set forth above. MAKER Banyan Strategic Realty Trust, a Massachusetts business trust By: Its: NOTE $10,000,000.00 Chicago, Illinois Dated: As of April 29, 1997 FOR VALUE RECEIVED, the undersigned, Banyan Strategic Realty Trust, a Massachusetts business trust ("Maker"), hereby promises to pay to the order of American National Bank and Trust Company of Chicago, a national banking association (hereinafter, together with its legal representatives, successors and assigns, referred to as the "Bank" or as the "holder" of this Note), at its office at 33 North LaSalle Street, Chicago, Illinois 60690, or at such other place as the Bank may from time to time designate in writing, the principal sum of Ten Million and 00/100 Dollars ($10,000,000.00) (the "Loan Amount"), or so much thereof as shall from time to time have been disbursed to or for the benefit of the Maker or otherwise outstanding and remain unpaid, together with interest at the Agreed Rate (defined below) per annum on the balance of said principal remaining from time to time unpaid, to be paid in lawful money of the United States of America as hereinafter provided. 1. Definitions. As used in this Note, the following terms shall, except where the context otherwise requires, have the following meanings (such definitions to be equally applicable to the singular and plural forms thereof): A. "Advance". An advance of funds pursuant to or in respect of this Note, the Loan Agreement, the Letter of Credit, the Reimbursement Agreement, the Mortgages or the Additional Collateral Documents. B. "Additional Collateral Documents". As defined in Paragraph 6. C. "Agreed Rate". The agreed rate of interest to be paid hereunder, namely, the Floating Rate for Floating Rate Funds, and the LIBOR Based Rate for LIBOR Based Funds. D. "Banking Day". A day on which banks are open for business in the Interbank Market and in Chicago, Illinois and also on which dealings in U.S. Dollar deposits are carried on in the Interbank Market. E. "Base Rate". The rate of interest announced or published publicly from time to time by the Bank as its prime or base rate of interest. The "Base Rate" is a base reference rate of interest adopted by the Bank as a general bench mark from which the Bank determines the floating interest rates chargeable on various loans to borrowers with varying degrees of creditworthiness, and Maker acknowledges and agrees that the Bank has made no representations whatsoever that the "Base Rate" is the interest rate actually offered by the Bank to borrowers of any particular creditworthiness or that the Bank does not extend credit to some parties at a lower interest rate. F. "Contract". Any contract made by the Bank in the Interbank Market to obtain the deposit with the Bank of the sum required to fund a LIBOR Portion for the respective Contract Period. G. "Contract Payment Date". For each Contract, the date on which it matures, except that if the Contract matures on a day which is not a Banking Day, the date shall be the next succeeding day which is a Banking Day. H. "Contract Period". The term of a Contract, which shall be the period of time of either thirty (30), sixty (60), ninety (90), one hundred twenty (120), one hundred fifty (150), one hundred eighty (180), two hundred seventy (270) days or one (1) year (as available or any other available period expressly agreed to by the Bank and Maker) for which Maker elects to be charged interest on a LIBOR Portion at the LIBOR Based Rate. For any LIBOR Portion in respect of which the Bank chooses not to accept a deposit, the Contract Period, thereof shall mean the period for which Maker has elected to be charged at the LIBOR Rate for a LIBOR Portion. Each Contract Period shall be subject to the following additional conditions: (i) each such selection shall be irrevocable for the period so selected; (ii) each Contract Period shall be selected in such a way that no Contract Period shall extend beyond the Maturity Date; (iii) if any Contract Period ends on a day other than a Banking Day, such Contract Period shall be extended to the next succeeding day which is a Banking Day. I. "Conversion Date". For interest computation purposes, and as may be appropriate, the effective date on which: (i) a LIBOR Portion (or a portion of the Loan funds included therein) becomes part or all of the Floating Rate Funds; (ii) the whole or a portion of the Floating Rate Funds becomes a part or all of a LIBOR Portion; or (iii) an expiring LIBOR Portion (or a portion of the Loan funds included therein) is coverted into all or part of another LIBOR Portion, either because of the occurrence of the Contract Payment Date of the Contract corresponding to such expiring LIBOR Portion or because of the breakage, early termination, or other disposition of the Contract corresponding to such LIBOR Portion, or otherwise. J. "Default". As defined in Paragraph 5A. K. "Default Interest Rate". Three percent (3%) per annum plus the Floating Rate with respect to Floating Rate-Based Funds, and three percent (3%) per annum plus the LIBOR-Based Rate with respect to any LIBOR Portion. L. "Floating Rate". A daily rate of interest equal to the daily rate equivalent of one quarter of one percent (0.25%) per annum in excess of the Base Rate (computed on the basis of a 360 day year and actual days elapsed). Such rate shall fluctuate hereafter from time to time concurrently with, and in an amount equal to, each increase or decease in the Base Rate, whichever is applicable. M. "Floating Rate Funds". At any time, the portion of the outstanding principal balance of the Loan on which interest is being charged at the Floating Rate. N. "Funding Costs". Any and all costs, expenses, penalties and/or charges incurred by the Bank arising directly from or relating directly to, as the case may be, the early termination, breakage or other disposition of a Contract because of prepayment of a LIBOR Portion prior to the Contract Payment Date of the corresponding Contract or Maker's election to terminate such LIBOR Portion, or otherwise, all as determined by the Bank in its sole discretion. O. "Interbank Market". The interbank market, located in London, England, or, at the Bank's election, located in any other location satisfactory to the Bank, where the Bank, or any branch, subsidiary, parent or affiliate of the Bank, may purchase or sell to other banks deposits of U.S. dollars of fixed periods. P. "Letter of Credit". Any one or more letters of credit from time to time issued by the Bank in respect of the Loan and all subsequent amendments thereto, modifications and extensions thereof and replacements and substitutions therefor. Q. "LIBOR". For each Contract, the rate of interest per annum at which a deposit in U.S. Dollars in the sum equal to the corresponding LIBOR Portion is offered to the Bank in the Interbank Market for the Contract Period two Banking Days prior to the first day of such Contract Period. Each determination of LIBOR by the Bank shall be conclusive and binding for all purposes of this Note in the absence of manifest error. The use of such offered interest rate to define LIBOR shall not obligate the Bank to accept a deposit in order to charge interest on a LIBOR Portion at the LIBOR Based Rate once Maker elects to be charged interest at such rate on a LIBOR Portion for a definite period. R. "LIBOR Based Funds". At any time, the portion of the outstanding principal balance of the Loan on which interest is being charged at the LIBOR Based Rate. S. "LIBOR Base Rate". For any given LIBOR Portion for its corresponding Contract Period, the rate of interest per annum obtained by adding the sum of (1) the quotient of (a) LIBOR for that Contract Period divided by (b) a percentage equal to 100% minus the Reserve Requirement applicable during such Contract Period (rounded upward, if necessary, to the next higher 1/100 of 1%), plus (2) 2.25% per annum, computed on the actual number of days elapsed and a year computed on the basis of a three hundred sixty (360) day year. T. "LIBOR Portion". Each portion (if there is more than one Contract in existence) of the outstanding principal balance of the Loan on which, as a result of Maker's election, Maker is charged interest at the LIBOR Based Rate; each LIBOR Portion shall be in an amount which is an increment of One Hundred Thousand Dollars ($100,000) and no LIBOR Portion shall be less than One Million Dollars ($1,000,000). U. "Loan". The loan evidenced by this issued pursuant to the Loan Agreement. V. "Loan Agreement". That certain loan agreement between Maker and the Bank dated as of December 1, 1994, as amended by (a) Amendment to Loan Agreement dated as of December 1, 1994, (b) Second Amendment to Loan Agreement dated as of December 21, 1994, (c) Third Amendment to Loan Agreement dated as of December 18, 1995, (d) Fourth Amendment to Loan Agreement date as of January 7, 1997, (e) Fifth Amendment to Loan Agreement dated as of March 7, 1997 and (f) Sixth Amendment to Loan Agreement of even date herewith, as the same hereafter may be amended from time to time. W. "Loan Conversion". As defined in Paragraph 2G. X. "Loan Conversion Date". As defined in Paragraph 2G. Y. "Maturity Date". As defined in Paragraph 2G. Z. "Mortgages". As defined in Paragraph 6A. AA. "Mortgaged Premises". As defined in Paragraph 6A. BB. "Regulation D". Regulation D of the Board of Governors of the Federal Reserve System from time to time in effect, and any successor or other official interpretation of said Board of Governors relating to reserve requirements applicable to member banks of the Federal Reserve System. CC. "Reimbursement Agreement". Any reimbursement agreements which hereafter from time to time may be executed and delivered to Bank in respect of the Loan, in request of any Letters of Credit, and all subsequent amendments thereto and modifications thereof. DD. "Reserve Requirement". With respect to any Contract Period, the reserve percentage applicable two (2) Banking Days before the first day of such Contract Period under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, but not limited to, any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System, with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (as defined in Regulation D or otherwise in such regulations) or with respect to any other category of liabilities which includes deposits by reference to which the interest rate on a LIBOR Portion is determined. EE. "Transfer". As defined in Paragraph 7. 2. Principal and Interest A. Pursuant to the Loan Agreement Maker may borrow from time to time prior to the Loan Conversion Date amounts which, together with all amounts drawn and available to be drawn under the Letter of Credit and together with all other amounts then outstanding hereunder, do not exceed the lesser of (i) $10,000,000, or (ii) an amount which, together with all other amounts outstanding from time to time under the Amended and Restated $20,000,000 Note defined in Paragraph 5A(v) hereof, does not exceed sixty- five percent (65%) of the "Collateral Value" of the "Designated Properties" and "Designated Debt Instruments" (all as defined in the Loan Agreement), based upon and subject to certain standards, restrictions, limitations and requirements as set forth in the Loan Agreement; and as Maker repays all or a portion of the outstanding balance thereof, and provided no Event of Default or Potential Event of Default has occurred as defined in the Loan Agreement, and provided that the additional standards, restrictions, limitations and requirements set forth in the Loan Agreement have been complied with, Maker may (until the Loan Conversion Date) borrow on a revolving loan basis additional funds up to the limit of aggregate amount outstanding at any time as set forth above (including certain additions to the Letter of Credit), and the amount so reborrowed shall thereupon be and become part of the principal indebtedness evidenced hereby. B. Subject to the provisions of this Note governing the manner and method of determining, at any time and from time to time, how the rate of interest on any particular portion of the outstanding principal balance of the Loan shall be computed, charged and paid, the Agreed Rate of interest on the outstanding principal balance of the Loan from time to time remaining unpaid shall be paid at the Floating Rate on Floating Rate Funds, and at the LIBOR Based Rate on each corresponding LIBOR Portion. Loan funds shall always be deemed Floating Rate Funds except to the extent of the aggregate sum of any then existing LIBOR Portions, and except as otherwise expressly provided herein. Prior to a Default, no interest shall be payable on amounts available to be drawn under the Letter of Credit. C. Subject to the provisions of this Note, Maker shall have the right to select as the applicable rate for the payment of interest on the amount of any Advance a rate based upon the LIBOR Based Rate or the Floating Rate. The Bank must receive notification of such selection by Maker at least two (2) Banking Days prior to each Advance and if a rate based upon the LIBOR Based Rate is selected by Maker, then Maker must also advise the Bank at the time of such selection of the duration of the initial Contract Period applicable to such Advance. If Maker has not so advised the Bank of its selection of an applicable rate and Contract Period as aforesaid (or if the Bank shall make an Advance other than pursuant to a request of Maker made in accordance with the terms of the Loan Agreement) Maker shall be deemed to have selected a rate based upon the Floating Rate as the applicable rate for such advance. D. Any change in the Agreed Rate resulting from a change from the Floating Rate or the LIBOR Based Rate to any other of the LIBOR Based Rate or the Floating Rate shall be effective on the applicable Conversion Date. E. Interest at the Floating Rate on that portion of the unpaid principal balance of the Loan which are Floating Rate Funds shall be due and payable monthly in arrears, commencing on the first (1st) day of the first (1st) calendar month succeeding the calendar month in which the first (1st) Advance of Floating Rate Funds is made and continuing on the first (1st) day of each month thereafter, with a final payment of all accrued and unpaid interest in respect thereof due on the Maturity Date or any earlier date that the final payment of principal is due or paid. F. Interest at the LIBOR Based Rate on each portion of the unpaid principal balance of the Loan which is a LIBOR Portion shall be due and payable, in arrears, commencing on the first (1st) day of the (1st) calendar month following the calendar month in which the Contract period begins, and continuing on the first (1st) day of each month during the Contract Period, and on the last day of such Contract Period, with a final payment of all current and unpaid interest in respect thereof due on the Maturity Date or any earlier date that the final payment of principal is due or paid. Interest on each LIBOR Portion shall also be paid when required as a result of the early termination, breakage or other disposition of the corresponding Contract. G. (i) Effective as of the Loan Conversion Date the Loan will be automatically deemed converted (the "Loan Conversion") to a one (1) year term loan with interest on the principal balance from time to time outstanding payable monthly, in arrears, at the Agreed Rate. The Loan Conversion Date will be November 30, 1997, subject to extension to May 31, 1998 as provided in the Loan Agreement, or earlier as provided in the Loan Agreement. (ii) The final date on which the principal balance hereunder, and all accrued and unpaid interest thereon, shall be due and payable shall be November 30, 1998, which shall be deemed the Maturity Date. The Maturity Date shall be subject to extension to May 31, 1999 as provided in the Loan Agreement. The Loan shall nevertheless require certain earlier principal payments as set forth in the Loan Agreement and Reimbursement Agreement. Also, the Loan shall nevertheless be subject to acceleration and payment in full at any earlier time upon the occurrence of any Default hereunder. H. Interest due on any Libor Portion on the Contract Payment Date of its covering Contract, or on the date of termination, breakage, or other disposition of its corresponding Contract, or any earlier date as provided herein, and interest due in respect of Floating Rate Funds, and principal payments, must and shall be paid to the Bank and received by the Bank by 10:00 a.m. (Chicago, Illinois time) on the date such payment is due in accordance with the foregoing. I. All payments of principal and interest made on account of the indebtedness evidenced by this Note shall be made in currency of the United States of America which shall be legal tender for public and private debts at the time of payment in immediately available funds. 3. LIBOR A. Maker shall not have the right to cause the termination, breakage or other disposition of all or any part of any one or more Contracts without the prior express consent of the Bank; and Maker shall cause such termination, breakage or other disposition upon express direction by the Bank. B. Unless otherwise expressly consented to by the Bank in each instance Maker shall cause each LIBOR Contract to be in an amount which is an increment of TEN THOUSAND AND 00/100 DOLLARS ($10,000) and which amount is not less than ONE MILLION AND 00/100 DOLLARS ($1,000,000). C. Provided no Default has occurred hereunder, Maker shall have the right to elect, from time to time during the term of the Loan, to convert (1) all or one or more portions (but not less than $1,000,000) of the then outstanding Floating Rate Funds and/or (2) the whole or any one or more portions (but not less than $1,000,000) of any then-existing LIBOR Portion (because the corresponding Contract Payment Date has occurred or Maker has elected to cause the termination, breakage or other disposition of the Contract, as permitted by, and subject to the conditions, including payment of Funding Costs, provided hereinafter) to a new LIBOR Portion, subject to: (1) the Bank's receiving notice of the election not less than two (2) Banking Days prior to the date requested by Maker for commencement of the Contract Period of the new Contract required to cover the new LIBOR Portion; (2) the availability to the Bank of a Contract to cover such new LIBOR Portion effective on the requested date of commencement for the Contract Period; (3) Maker paying any additional costs incurred by the Bank from time to time which is attributable to such new LIBOR Portion; (4) the Bank being able to terminate, break, or otherwise dispose of the existing Contract; (5) If required by the Bank because the Bank is obligated to pay accrued interest on the existing Contract upon its termination, breakage or other disposition, Maker paying all interest accrued on said LIBOR Portion; and (6) Maker paying any Funding Costs incurred by the Bank as a result of the termination, breakage or other disposition of the existing Contract. If, on or before a date two (2) Banking Days before the end of the then current Contract Period for any LIBOR Portion, Lender does not receive a notice of election of a rate based upon the LIBOR Rate and the Contract Period as to such LIBOR Portion, Maker shall be deemed to have elected to convert such advance to Floating Rate Funds at the expiration of the then current Contract Period. D. Without the prior written consent of the Bank, the Contract Periods must be selected so that at no time shall there be more than eight (8) different "Interest Selections" (as such term is hereinafter defined) in effect at the same time with respect to the principal balance outstanding hereunder. For the purposes of this paragraph, an "Interest Selection" shall mean each single applicable interest rate and the corresponding Contract Period (unless the rate is the Floating Rate in which case no Interest Period is selected) in effect from time to time pursuant to the provisions of this Note. E. To further evidence any LIBOR Portion, Maker shall execute such additional notes as may be requested by the Bank. Any such additional notes shall be in form reasonably satisfactory to the Bank and thereupon this shall be endorsed to reflect the rate allocation of principal to the notes representing the LIBOR Portion and the fact that it is a duplicate of a portion of this Note. F. Maker from time to time, upon written request from Lender, shall deliver a written acknowledgement in form reasonably satisfactory to Lender and indicating, as of the date thereof: (a) the respective portions of the Loan which bear interest at the Floating Interest Rate, (b) the respective portions of the Loan which bear interest at the LIBOR Based Rate and the respective LIBOR Based Rate(s) applicable thereto, and (c) the respective Conversion Date(s) applicable to any and all LIBOR Portion(s). G. It is understood that the cost to the Bank of providing Maker with LIBOR Based Rates may fluctuate as a result of the applicability of, or changes in, any treaty, statute, rules and regulations, or in the interpretation thereof, or any directive, guideline or requirement by a central bank or fiscal authority (whether or not having the force of law), including, without limitation, any reserve or special deposit requirements imposed by the Board of Governors of the Federal Reserve System ("Board"), including, but not limited to, reserve requirements under Regulation D of the Board in connection with Eurocurrency Liabilities (as defined in Regulation D) at the ratios provided for in Regulation D from time to time (collectively, the "Imposition Requirements"). Maker agrees to pay the Bank from time to time such additional amounts as shall be necessary to compensate the Bank for the portion of the cost of providing Maker with Libor Based Rates resulting from any and all such Imposition Requirements. It is agreed that for purposes of this paragraph, upon election of LIBOR Based Rates by Maker,the Libor Portion then outstanding shall be deemed to constitute Eurocurrency Liabilities as defined in Regulation D and to be subject to the reserve requirements of Regulation D. Without limiting the generality of the foregoing, if the Bank determines that compliance with any one or more of such Imposition Requirements affects or would affect the amount of capital required or expected to be maintained by the Bank, or any corporation controlling the Bank, and that the amount of such capital is required to be increased by or based upon the Loan or existence of the commitment of the Bank to lend pursuant to the Loan Agreement and all other commitments and loans of this type of the Bank and such other entity, then upon demand by the Bank, Maker shall immediately pay to the Bank from time to time as specified by the Bank, additional amounts sufficient to compensate the Bank in the light of such circumstances, to the extent that such increase in capital is reasonably determined by the Bank to be allocable directly or indirectly to the existence of the commitment to disburse amounts evidenced hereby. In addition, in the event that after the date hereof any one or more of the Imposition Requirements shall occur which shall, exclusively as a result of Maker's election of LIBOR Based Rates: 1. subject the Bank to any tax with respect to the LIBOR Portions then-outstanding (other than any tax on the overall net income of the Bank, imposed by the United States of America or by the jurisdiction in which the Bank has its principal office or any political subdivision or taxing authority therein); or 2. change the basis of taxation of any payment to the Bank of principal of or interest on the LIBOR Portions then outstanding or other fees and amounts payable under this Note, or any combination of the foregoing; or 3. impose, modify or deem applicable any reserve, deposit or similar requirement against any assets held by, deposits with or for the account of, or loans or commitments by, an office of the Bank; or 4. impose any other costs upon the Bank or impose upon the Bank or the Interbank Market any other condition with respect to the Loan or this Note, and if the result of any of the foregoing shall be to increase the actual cost to the Bank of providing Maker with LIBOR Based Rates under this Note or to reduce the amount of any payment (whether of principal, interest or otherwise) received or receivable by the Bank under this Note, or to require the Bank to make any payment in connection with the LIBOR Portions then outstanding, then in each such case Maker shall pay to the Bank such amounts as shall be necessary to compensate the Bank for such cost, reduction or payment. The Bank shall deliver to Maker from time to time one or more remittance forms setting forth the amounts due to the Bank under this Paragraph, and the changes in the reserve requirements as a result of which such amounts are due and the manner of computing such amounts. Maker shall pay to the Bank the amounts shown as due on any such form within ten (10) days after its receipt of the same. No failure on the part of the Bank to demand compensation under this paragraph on any occasion shall constitute a wavier of its right to demand such compensation on any other occasion. The protection of this paragraph shall be available to the Bank regardless of any possible condition of the invalidity or inapplicability of any law, regulation or other condition which shall give rise to any demand by the Bank for compensation hereunder. A certificate as to any such amounts submitted to the Maker by the Bank pursuant to this paragraph shall be conclusive and binding for all purposes, absent manifest error. H. If any change after the date hereof in law or regulation or in the interpretation thereof by any governmental authority charged with the administration thereof shall make it unlawful for the Bank to provide Maker with LIBOR Based Rates or to give effect to its obligations as contemplated hereby with respect to providing Maker with LIBOR Based Rates, or if the Bank shall determine that by reason of circumstances affecting the Interbank Market generally adequate and fair means do not or will not exist for determining the LIBOR Based Rate, then, by written notice to Maker, the Bank may declare that the Bank will not thereafter provide Maker with LIBOR Based Rates, whereupon Maker shall be prohibited from electing LIBOR Based Rates unless such declaration is subsequently withdrawn, and interest on all principal from time to time outstanding hereunder shall thereupon be paid at the Floating Rate. I. The Bank may fund all or any portion of any LIBOR Portion as it may see fit, whether by purchasing dollar deposits in the Interbank Market, or otherwise. For purposes of this Note, it shall be conclusively presumed that the Bank has elected to fund all LIBOR Portions by purchasing such dollar deposits, and the Maker shall be bound to all provisions herein contained concerning LIBOR Based Rates whether or not the Bank has in fact funded any LIBOR Portion in such manner. 4. Prepayment A. The portion of this Note comprised of Floating Rate Funds may be prepaid, either in whole or in part, without penalty or premium, at any time and from time to time as set forth below. The portion of this Note comprised of a LIBOR Portion may be prepaid only on the Contract Payment Date applicable thereto. If Maker shall now or hereafter have a right to prepay such LIBOR Portion by operation of law or otherwise, such prepayment must be accompanied by a simultaneous payment of all Funding Costs, and accrued interest on any covering Contract which the Bank is obligated to pay, attributable to any such LIBOR Portion which is being prepaid in whole or in part. For purposes hereof, upon acceleration of this Note, the portion of this Amended and Restated Note comprised of a LIBOR Portion having a Contract Payment Date subsequent to the date of acceleration shall nevertheless be due and payable and payment therefor must be accompanied by payment of any such Funding Costs and accrued interest on any covering Contract attributable to any such LIBOR Portion and any foreclosure decree entered with respect to the Loan shall include such Funding Costs and accrued interest. B. Prior to the occurrence of any Default thereunder, subject to the foregoing provisions as to any LIBOR Portions, a prepayment may be made on not less than fifteen (15) days' prior written notice of the principal balance of this Note, in whole or in part; provided, however, that each prepayment shall be accompanied by a payment of all interest accrued as of that date on the principal balance outstanding hereunder. Any partial prepayment must be made in an amount which is an integral multiple of One Hundred Thousand Dollars ($100,000.00). 5. Default; Default Interest Rate A. The occurrence of any one or more of the following events shall constitute a "Default" hereunder: (i) if Maker shall fail to pay any principal or any interest when due in accordance with the terms of this Note, (ii) if Maker shall fail to promptly comply with any of its other agreements herein or with any other requirement herein, (iii) if an Event of Default (as defined in the Loan Agreement, the Reimbursement Agreement, any one or more of the Mortgages or any one or more of the Additional Collateral Documents) shall occur, (iv) if a Transfer shall occur, and/or (v) if there shall occur a "Default" as defined in and under that certain Amended and Restated Note of even date herewith made by Maker payable to the order of Bank in the principal amount of Twenty Million and 00/100 Dollars ($20,000,000) (the "Amended and Restated $20,000,000 Note"); B. If a Default hereunder shall occur then the entire unpaid principal balance due hereunder shall thereafter bear interest during the period such Default shall continue at the Default Interest Rate. Upon any such Default the Bank is expressly authorized to apply all payments received on any amounts due hereunder or under the terms of any one or more of the Loan Agreement, the Reimbursement Agreement, the Mortgages and any one or more of the Additional Collateral Documents, as the Bank may determine. The Bank shall be entitled to receive payment in full of all interest accruing hereon subsequent to the filing of a petition or the taking of any other action commencing a bankruptcy, reorganization, arrangement or other similar proceeding or which would accrue but for such proceeding or action. C. If a Default hereunder shall occur then the whole of the principal amount remaining unpaid under this Note, together with all accrued interest thereon, at the election of the Bank and without notice to Maker or any other person or entity, shall become immediately due and payable, together with all costs, fees and expenses incurred by the Bank on account of or in connection with the collection and enforcement of this note and in connection with the protection or realization on any security, and all other costs, fees and expenses of the Bank described in Paragraphs 3, 8 and otherwise as provided in this Note, and the Bank may thereupon exercise any one or more of the following remedies at any time and from time to time singularly, successively or together and in such order and when and as often as the Bank in its sole direction may from time to time may determine: (i) bring an action against Maker for the whole or any part of the indebtedness evidenced by this Note plus any or all of such costs, fees and expenses, (ii) proceed to foreclose any one or more of the Mortgages, (iii) proceed to exercise any one or more of the other rights and remedies available under any one or more of this Note, the Mortgages, the Reimbursement Agreement, the Loan Agreement, and/or any one or more of Additional Collateral Documents, (iv) proceed against any guaranty or guarantees, and/or (v) proceeds to exercise any other rights and remedies available at law or in equity. 6. Loan Agreement; Collateral This Note evidences advances of loan proceeds pursuant to the Loan Agreement by and between Maker and the Bank. This Note is secured and in the future may be secured by certain documents and instruments, including without limitation the following: A. One or more mortgages, deeds of trust and/or deeds to secure debt (collectively the "Mortgages") heretofore, concurrently and/or hereafter granted to the Bank by various mortgagors encumbering certain real estate, the buildings and improvements now or hereafter located thereon, and certain other property (collectively, the "Mortgaged Premises"); B. One or more collateral assignments heretofore, concurrently and/or hereafter granted to the Bank by the Maker of Maker's interest in the partnerships and/or corporations owning various of the Mortgaged Premises, one or more pledges and assignments now or hereafter granted to the Bank by Maker or its affiliates of their interests in Designated Debt Instruments (as defined in the Loan Agreement), and certain other documents and instruments creating a security interest in, pledging or otherwise covering certain items of collateral by certain persons and entities, including, without limitation, assignments of leases and rents, and security agreements, all as set forth in the Loan Agreement (herein collectively referred to as the "Additional Collateral Documents"). The Bank is entitled to the benefits of the Loan Agreement, the Reimbursement Agreement, the Mortgages and the Additional Collateral Documents and may enforce the agreements, obligations and undertakings of Maker and others (or any of them) contained therein and exercise the rights and remedies provided for thereby, or otherwise in respect thereof, all in accordance with the terms thereof. Maker may not deduct, set off or withhold from any payments of principal or interest under this Note the amount of any claim made by Maker against the Bank pursuant to any agreement, instrument, document, litigation or settlement. 7. Transfer One or more of the Mortgages provides that it shall be an immediate Event of Default thereunder without notice if without the prior written consent of the mortgagee thereunder, the mortgagor thereunder shall create, effect or consent to or suffer or permit any one or more of certain conveyances, sales, assignments, transfers, liens, pledges, mortgages, security interests or other encumbrances or alienations (any of the foregoing hereinafter called a "Transfer") concerning or with respect to certain of (a) the Mortgaged Premises which is the subject thereof, (b) the beneficial interest of any trustee which is the mortgagor thereof, (c) the shares of stock of any corporation which is (i) said mortgagor, (ii) the owner of all or any part of said beneficial interest in said mortgagor or all or any part of the interest in any partnership or joint venture which is the said mortgagor or (iii) the owner of all or any part of the beneficial interest of any trustee mortgagor, or (d) all or any part of the interest of any partner or joint venturer in any partnership or joint venture which is (i) said mortgagor or (ii) the owner of all or any part of the beneficial interest of any trustee mortgagor. The said provisions of the Mortgages are incorporated by reference herein as if fully set forth herein. The Loan Agreement and/or one or more of the Collateral Assignments of the Designated Debt Instruments (as defined in the Loan Agreement), provides that it shall be an immediate Event of Default thereunder without notice if without the prior written consent of the assignee thereunder, the assignor thereunder shall create, effect, or consent to or suffer or permit any certain Transfers concerning or with respect to certain of (a) the Designated Debt Instruments which are the subject thereof, (b) the beneficial interest of any person or entity which is the assignor thereof, (c) the shares of stock of any corporation which is (i) said assignor, (ii) the owner of all or any part of said beneficial interest in said assignor or all or any part of the interest in any partnership or joint venture which is the said assignor or (iii) the owner of all or any part of the beneficial interest of any trustee assignor, or (d) all or any part of the interest of any partner or joint venturer in any partnership or joint venture which is (i) said assignor or (ii) the owner of all or any part of the beneficial interest or any trustee assignor. The said provisions of said pledges and assignments are incorporated by reference herein as if fully set forth herein. 8. Costs, Fees and Expenses If at any time or times after the date of this Note, the Bank (a) employs counsel for advice or other representation (i) with respect to any one or more of this Note, the Loan Agreement, the Reimbursement Agreement, the Letter of Credit, Mortgages or any Additional Collateral Documents and/or any guaranty or guarantees, or the administration hereof, (ii) to represent the Bank in any litigation, contest, dispute, suit or 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, Maker or any other person or entity) in any way or respect relating to any one or more of this Note, the Loan Agreement, the Reimbursement Agreement, the Letter of Credit, Mortgages, or any of them, or any Additional Collateral Documents and/or any guaranty or guarantees, or (iii) to enforce any rights of the Bank against Maker; (b) takes any action with respect to the administration of any one or more of this Note, the Loan Agreement, the Reimbursement Agreement, the Letter of Credit, any one or more of the Mortgages or any of the Additional Collateral Documents and/or any guaranty or guarantees, or to protect, collect, sell, liquidate or otherwise dispose of any collateral securing the obligations of the undersigned hereunder; and/or (c) attempts to or enforces any of Bank's rights or remedies against Maker, then the costs, fees and expenses (including, without limitation, attorneys' fees) incurred by the Bank in any manner or way with respect to any of the foregoing shall be part of the obligations of Maker hereunder, payable by Maker to the Bank on demand. 9. Business Loan Maker represents and agrees that the proceeds of the loan evidenced by this Note will be used solely for business purposes and in accordance with all applicable laws, and that the principal obligation evidenced hereby constitutes a business loan. 10. Application of Payments All payments on account of the indebtedness evidenced by this Note shall be first applied to accrued and unpaid interest on the unpaid principal balance and the remainder to installments of the outstanding principal balance in the inverse order of the maturity of such installments of principal. From and after the occurrence of a Default hereunder, the Bank is expressly authorized to apply payments made under this Amended and Restated Note as the Bank may elect against any or all amounts, or portions thereof, then due and payable hereunder or under the Mortgages, the Reimbursement Agreement, the Loan Agreement or any of the Additional Collateral Documents, the outstanding principal balance due under this Note, the unpaid and accrued interest due under this Note, or any combination of the foregoing. 11. Waivers; Amendments A. If the Bank (i) grants any extension of time or forbearance with respect to the payment of any of the indebtedness evidenced hereby or with respect to the performance of any of the other obligations of Maker hereunder or of Maker or others under any one or more of the Loan Agreement, the Reimbursement Agreement, the Letter of Credit, the Mortgages, or any of them, any of the Additional Collateral Documents or any guaranty or guarantees; (ii) takes other or additional security and/or any guaranty or guaranties for the payment hereof; (iii) waives or fails to exercise any right granted herein or under the Mortgages, or any of them, the Loan Agreement, the Letter of Credit, the Reimbursement Agreement, or any one or more of the items of Additional Collateral Documents, or any guaranty or guaranties; (iv) any release, with or without consideration, of the whole or any part of the security and/or any guaranty or guaranties held for the payment of the indebtedness evidenced hereby; (v) amends or modifies in any respect with or without the consent of Maker any of the agreements, obligations, terms, provisions and conditions hereof or of the Mortgages, or any of them, the Loan Agreement, the Reimbursement Agreement, the Letter of Credit, any one or more of the Additional Collateral Documents, or any guaranty or guaranties; (vi) consents to the filing of any map, plat, replat or condominium declaration affecting all or any part of the Mortgaged Premises; (vii) consents to the granting of any easement or other right affecting all or any part of the Mortgaged Premises; (viii) or makes or consents to any agreement subordinating the lien of the Mortgages, or any of them, or any of the Additional Collateral Documents, then and in any such event, such act or omission to act shall not release, discharge, modify, change or affect (except to the extent of changes referred to in clause (v) above effected with the consent of the Bank) the liability under this Note, or under the Mortgages, or any of them, the Loan Agreement, the Reimbursement Agreement, any of the Additional Collateral Documents, or any guaranty or guaranties, and any such act or omission to act shall not release Maker hereunder or under the Loan Agreement or Reimbursement Agreement, or mortgagor under any one or more of the Mortgages, or any other person or entity executing any of the Additional Collateral Documents or any guarantor or guarantors of this Note, under any agreement, obligation, term, provision or condition of this Amended and Restated Note or of the Mortgages, or any of them, or of the Loan Agreement, or the Reimbursement Agreement, or of any of the Additional Collateral Documents or of any guaranty or guaranties, nor preclude the Bank from exercising any right, power, or privilege herein or therein granted or intended to be granted. No right or remedy of the holder of this Note shall be exclusive of, but shall be in addition to, every other right or remedy now or hereafter existing at law or in equity. No delay in exercising, or omission to exercise, any right or remedy accruing on any default or failure shall impair any such right or remedy, or shall be construed to be a waiver of any such right or remedy, or acquiescence in such default or failure, nor shall it affect any subsequent default or failure of the same or a different nature. The rights and remedies of the Bank arising under the agreements, obligations, terms, provisions and conditions contained in this Note and in the Mortgages, and each of them, the Loan Agreement, the Reimbursement Agreement, all of the Additional Collateral Documents and any guaranty or guaranties, and each of them, shall be separate, distinct and cumulative and none of them shall be in exclusion of the others and no act of the Bank shall be construed as an election to proceed under any of the provisions herein or in such other documents to the exclusion of any other provision, anything herein or otherwise to the contrary notwithstanding, and every such right or remedy may be exercised concurrently or independently, and when and as often as the Bank may determine. A waiver in one or more instances of any of the agreements, obligations, terms, provisions or conditions hereof or of the Mortgages, or any of them, the Loan Agreement, the Reimbursement Agreement any of the Additional Collateral Documents or any guaranty or guaranties, shall apply to the particular instance or instances and at the particular time or times only, and no such waiver shall be deemed a continuing waiver, but all of the agreements, obligations, terms, provisions and conditions of this Amended and Restated Note and of such other documents shall survive and continue to remain in full force and effect. B. Without limiting the generality of the provisions of Paragraph 11A hereof, Maker, for itself and for all others who may become liable for all or any part of the indebtedness evidenced hereby, whether primarily or secondarily, and for the heirs, legal representatives, successors and assigns of each and all of the foregoing, expressly, to the fullest extent permitted by law, (i) waives and renounces any and all homestead and exemption rights and the benefit of all valuation and appraisement rights in respect thereof, (ii) waives presentment and demand for payment, demand, notice of dishonor, non-payment, protest, notice of protest and diligence in collection, and all other notices in connection with the performance, default or enforcement of the payment and performance hereunder, (iii) consents to any extension of time, release of any party liable for this obligation, release of any security for this Note, acceptance of other security therefor and any other compromise, settlement, renewal, indulgence or forbearance whatsoever, and any such extension, release, compromise, settlement, renewal, indulgence or forbearance may be made without notice to any party and without affecting the personal liability of Maker or any other party or the lien of the Mortgages, (iv) agrees that the liability of Maker shall be unconditional and without regard to the liability of any other person or entity for the payment hereof and (v) consents to the addition of any and all other makers, indorsers, guarantors, and other obligors for the payment hereof, and to the acceptance of any and all other security for the payment hereof, and agrees that the addition of any such obligors or security shall not affect the liability of Maker for the payment hereof. C. All amounts payable under this Note are payable without relief from valuation or appraisement laws. 12. Savings Clause A. Maker and the Bank intend and believe that each provision in this Note comports with all applicable law. However, if any provision in this Amended and Restated Note is found by a court of law to be in violation of any applicable law, and if such court should declare such provision of this Note to be unlawful, void or unenforceable as written, then it is the intent of all parties hereto that such provision shall be given full force and effect to the fullest possible extent that it is legal, valid and enforceable, that the remainder of this Note shall be construed as if such unlawful, void or unenforceable provision were not contained, and that the rights, obligations and interests of the Maker and the Bank under the remainder of this Amended and Restated Note shall continue in full force and effect; provided, however, that if any provision of this Note which is found to be in violation of any applicable law concerns the imposition of interest hereunder, the rights, obligations and interests of Maker and the Bank with respect to the imposition of interest hereunder shall be governed and controlled by the provisions of the following paragraph. B. Nothing in this Amended and Restated Note or in the Loan Agreement, Reimbursement Agreement, Mortgages or Additional Collateral Documents shall be construed or shall so operate, either presently or prospectively, (a) to require Maker to pay interest at a rate greater than is at any time lawful in such case to contract for but shall require payment of interest only to the extent of such lawful rate, or (b) to require Maker to make any payment or do any act contrary to law. If it should be held that the interest payable under this Note or in the Loan Agreement, the Reimbursement Agreement, Mortgages, or any of them, or any of the Additional Collateral Documents is in excess of the maximum permitted by law, the interest chargeable hereunder (whether included in the face amount or otherwise) shall be reduced to the maximum amount permitted by law, and any excess of the said maximum amount permitted by law shall be cancelled automatically and, at the option of the Bank, if theretofore or thereafter paid, shall be either refunded to Maker or credited to the principal balance of this Note and applied to the payment of the last maturing installment or installments of the indebtedness evidenced hereby (whether or not then due and payable) and not to the payment of interest. 13. Applicable Law; Venue A. This Note and the Loan Agreement, Mortgages, Reimbursement Agreement and Additional Collateral Documents have been negotiated and delivered at Chicago, Illinois and all funds disbursed to or for the benefit of Maker have been disbursed in Chicago, Illinois. The Loan is being administered in Illinois. Maker and the Bank have bargained for and expressly do hereby agree that this Note shall be governed by and construed under the internal substantive laws of the State of Illinois. ANY LITIGATION BASED ON OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE BANK OR MAKER IN RESPECT HEREOF, 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, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT BANK'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. MAKER 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, AND THE COURTS OF ANY SUCH OTHER STATE, FOR THE PURPOSE OF SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. MAKER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY CERTIFIED OR REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE AT THE ADDRESS OF MAKER STATED ABOVE OR AT ANY OTHER ADDRESS OF MAKER WITHIN OR WITHOUT THE STATE OF ILLINOIS. MAKER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE PLACE OR 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. TO THE EXTENT THAT MAKER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, MAKER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS NOTE. THE BANK AND MAKER HEREBY VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ALL RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN MAKER AND BANK ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN MAKER AND BANK IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE DOCUMENTS EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR THE TRANSACTIONS RELATED HERETO OR THERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO BANK TO ENTER INTO THE FINANCING TRANSACTIONS WITH MAKER. IT SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY BANK'S ABILITY TO PURSUE ITS REMEDIES. 14. Notices All notices and demands required to be given to or by and/or served upon Maker under this Note shall be in writing and shall be delivered in person or by United States Registered Mail, return receipt requested, postage prepaid, addressed to Maker in care of In the case of Maker, to: Banyan Strategic Realty Trust 150 South Wacker Drive Suite 2900 Chicago, Illinois 60606 Attention: Robert G. Higgins with a copy to: Shefsky & Froelich 444 North Michigan Avenue 24th Floor Chicago, Illinois 60611 Attention: James M. Teper In the case of Lender, to: American National Bank and Trust Company of Chicago 33 North LaSalle Street Chicago, Illinois 60690 Attention: Peter C. Malecek Vice President with a copy to: Altheimer & Gray 10 S. Wacker Drive, Suite 4000 Chicago, Illinois 60606 Attention: James S. Gray Notices and demands served in the manner aforesaid shall be deemed sufficiently given or served for all purposes under this Note at the time any such notice or demand shall be delivered, or on the date shown on the return receipt, as the case may be. Maker and/or the Bank may change the address at which notice may be served by notice to the other as above required. Maker hereby authorizes the Bank to effect Adjusted LIBOR Rate selection choices or choices based on telephonic notices made by any person or persons whom the Bank in good faith believes to be authorized to act on behalf of Maker. Maker agrees to confirm to the Bank promptly any telephonic rate selection notice in writing signed by an authorized officer or other person designated by Maker in writing. If the written confirmation differs in any material respect from the action taken by the Bank, the records of the Bank shall govern. Maker hereby agrees to indemnify and hold Lender harmless from any loss or expense the Bank might incur in acting in good faith as provided in this paragraph on the request of any unauthorized person. 15. Assignment Upon any endorsement, assignment, or other transfer of this Note by the Bank or by operation of law, the term "Bank" as used herein shall mean such endorsee, assignee, or other transferee or successor to the Bank then becoming the holder of this Note. This Note shall inure to the benefit of the Bank and its legal representatives, successors and assigns and shall be binding upon Maker and its legal representatives, successors and assigns. The term "Maker" as used herein shall include the respective successors, assigns, and legal representatives of Maker. 16. Time of Essence Time is of the essence hereof and of the performance of each and all of the obligations of Maker hereunder. 17. Headings The seventeen (17) numbered paragraph headings hereunder are for reference and convenience only and are not intended to be substantive and shall not be deemed to limit or otherwise affect the remainder of this Note. IN WITNESS WHEREOF, the undersigned has executed this Note as of the date and year first set forth above. MAKER Banyan Strategic Realty Trust, a Massachusetts business trust By: /s/ Jay E. Schmidt Its: Vice President EX-27 4
5 "This schedule contains summary financial information extracted from Banyan Strategic Realty Trust's Form 10-Q for the three months ended March 31, 1997 and is qualified in its entirety by reference to such Form 10-Q." 3-MOS DEC-31-1997 MAR-31-1997 5,644,549 0 1,400,976 0 0 7,045,525 106,038,887 4,721,641 116,675,096 3,580,999 10,900,000 50,295,330 0 0 0 116,675,096 0 5,893,886 0 0 4,152,264 0 1,200,241 408,789 0 0 0 0 0 408,789 0.04 0.04
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