Exhibit
10.45


 


LOAN AGREEMENT

LOAN NO 754867


 


THIS LOAN AGREEMENT, made as of February 27, 2006, is by and
between PRINCIPAL COMMERCIAL FUNDING, LLC, a Delaware limited liability
company, with an address at 801 Grand Avenue, Des Moines, Iowa 50392-1450 (“Lender”),
and MB KEENE MONADNOCK, L.L.C., a Delaware limited liability company, with an
address at 2901 Butterfield Road, Oak Brook, Illinois 60523 (“Borrower”).


 


RECITALS


 


A.            Borrower desires to obtain a loan
(the “Loan”) from Lender in the original principal amount of
$26,785,000.00 (the “Loan Amount”);


 


B.            Lender is willing to make the Loan
on the condition that Borrower, among other things, joins in the execution and
delivery of this Agreement; and


 


C.            Lender and Borrower contemplate that
all or any portion of Lender’s interest in the Loan, the Loan Documents and the
Environmental Indemnity may be assigned, in whole or in part, by Lender,
including without limitation, in connection with a Securitization Transaction.


 


NOW,
THEREFORE, in consideration of the making of the Loan by Lender, and the
covenants, agreements, representations and warranties set forth in this
Agreement, the parties hereby covenant, agree, represent and warrant as
follows:


 


ARTICLE I


CERTAIN DEFINITIONS


 


“Account
Collateral” has the meaning set forth in Section 5.3(A) of this
Agreement.


 


“Affiliate(s)”
means any person or Entity directly or indirectly controlling, controlled by,
or under common control with Borrower or any person or Entity owning a material
interest in Borrower, either directly or indirectly.


 


“Agreement”
means this Loan Agreement, as the same may from time to time hereafter be
modified, supplemented or amended.


 


“Approved
Accounting Method” has the meaning set forth in Section 5.1 of this
Agreement.


 


“Assignment
of Leases” means that certain Assignment of Leases and Rents, dated the
date hereof, executed by Borrower and delivered to Lender as security for the
Loan, as the same may be modified, supplemented or amended.


 


“Code”
has the meaning set forth in Section 3.1(F) of this Agreement.


 


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“Collateral” means, collectively, the Premises, the Account
Collateral and all proceeds and products of the foregoing, all whether now
owned or hereafter acquired, and all other property which is or hereafter may
become subject to a lien in favor of Lender.


 


“Entity”
means a (a) corporation, (b) limited or general partnership, (c) limited
liability company, or (d) trust.


 


“Environmental
Indemnity” means that certain Environmental Indemnity Agreement, dated the
date hereof, executed by Borrower and delivered to Lender in connection with
the Loan, as the same may be modified, supplemented or amended.


 


“ERISA”
has the meaning set forth in Section 3.1(G) of this Agreement.


 


“Event of
Default” or “Events of Default” has the meaning set forth in the
Mortgage.


 


“Governmental
Authority” means any national, federal, state, regional or local
government, or any other political subdivision of any of the foregoing, in each
case with jurisdiction over Borrower, the Premises, or any Person with
jurisdiction over Borrower, the Premises exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government.


 


“Guarantor”
means, individually and collectively, Minto Builders (Florida), Inc., a
Florida corporation.


 


“Indebtedness”
has the meaning set forth in the Mortgage.


 


“Interest
Owner(s)” means any person or entity owning an interest (directly or
indirectly) in Borrower.


 


“Investor”
has the meaning set forth in Section 5.5(A) of this Agreement.


 


“Leases”
has the meaning provided in the Assignment of Leases.


 


“Lockout
Date” means the earlier of:  (i) the
date which is one (1) year after the date of the Securitization
Transaction; or (ii) the date which is two (2) years after the date
of the first full debt service payment under the Note.


 


“Material
Adverse Effect” means a material adverse effect upon (i) the business
or the financial position or results of operation of Borrower, (ii) the
ability of Borrower to perform, or of Lender to enforce, any of the Loan
Documents or Environmental Indemnity or (iii) the value of (x) the
Collateral taken as a whole or (y) the Premises.


 


“Mortgage”
means the mortgage, deed of trust, trust deed or deed to secure debt as
applicable, dated the date hereof, executed by Borrower and delivered to Lender
as security for the Loan, as the same may be modified, supplemented or amended.


 


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“Note” means and refers to the Secured Promissory Note evidencing
the Loan, dated as of the date hereof, made by Borrower to Lender, as such
promissory note may be modified, amended, supplemented, extended or
consolidated in writing, and any note(s) issued in exchange therefor or in
replacement thereof.


 


“Person”
means any individual, corporation, limited liability company, partnership,
joint venture, estate, trust, unincorporated association, or any other Entity,
any federal, state, county or municipal government or any bureau, department or
agency thereof and any fiduciary acting in such capacity on behalf of any of
the foregoing.


 


“Premises”
has the meaning set forth in the Mortgage.


 


“Property
Reserves” has the meaning set forth in Section 5.2(B) of this
Agreement.


 


“Rating
Agency(ies)” shall mean each statistical rating agency that has assigned a
rating to any participation interest, certificate or security issued in
connection with a Securitization Transaction.


 


“Rents”
has the meaning provided in the Assignment of Leases.


 


“Securitization
Transaction” has the meaning set forth in Section 5.5(A) of this
Agreement.


 


“Security
Deposits” means all security deposits held or to be held with respect to
the Premises, pursuant to the applicable Leases.


 


“Single-Purpose
Entity” means a corporation, limited partnership, limited liability
company, or business trust which, at all times until the Indebtedness is paid
in full (i) will be organized solely for the purpose of owning the
Premises, (ii) will not engage in any business unrelated to the ownership
of the Premises, (iii) will not have any assets other than those related
to the Premises, (iv) will not engage in, seek or consent to any
dissolution, winding up, liquidation, consolidation or merger, and, except as
otherwise expressly permitted by the Loan Documents, will not engage in, seek
or consent to any asset sale, transfer of partnership, membership, shareholder,
beneficial interests, or amendment of its limited partnership agreement,
articles of incorporation, articles of organization, certificate of formation,
operating agreement, trust agreement, or trust certificate (as applicable), (v) will
not fail to correct any known misunderstanding regarding the separate identity
of such Entity, (vi) without the unanimous consent of all of the partners,
directors, members, beneficial owners and trustees, as applicable, will not
with respect to itself or to any other Entity in which it has a direct or
indirect legal or beneficial ownership interest (a) file a bankruptcy,
insolvency or reorganization petition or otherwise institute insolvency
proceedings or otherwise seek any relief under any laws relating to the relief
from debts or the protection of debtors generally; (b) seek or consent to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator,
custodian or any similar official for such Entity or all or any portion of such
Entity’s properties; (c) make any assignment for the benefit of such
Entity’s creditors; or (d) take any action that might cause such Entity to
become insolvent, (vii) will maintain its accounts, books and records
separate from any other person or Entity, (viii) will maintain its books,
records, resolutions and agreements as official


 


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records, (ix) has
not commingled and will not commingle its funds or assets with those of any
other person or Entity, (x) has held and will hold its assets in its own name,
(xi) will conduct its business in its name, (xii) will maintain its financial
statements, accounting records and other Entity documents separate from any
other person or Entity, (xiii) will pay its own liabilities out of its own
funds and assets, (xiv) will observe all corporate, limited liability company
and partnership formalities, as applicable, including any regarding the
maintenance of minimum capital to the extent required by the laws of the
jurisdiction in which such Entity is organized, (xv) has maintained and will
maintain an arms-length relationship with its Affiliates, (xvi) if such Entity
owns the Premises, will have no indebtedness other than the Indebtedness and
commercially reasonable unsecured trade payables in the ordinary course of
business relating to the ownership and operation of the Premises which are paid
within sixty (60) days of the date incurred, (xvii) will not assume or
guarantee or become obligated for the debts of any other person or Entity or
hold out its credit as being available to satisfy the obligations of any other
person or Entity, except for the Indebtedness, (xviii) will not acquire
obligations or securities of its partners, members, trustees, beneficial owners
or shareholders, (xix) will allocate fairly and reasonably shared expenses,
including, without limitation, shared office space and use separate stationery,
invoices and checks, (xx) will not pledge its assets for the benefit of any
other person or Entity, (xxi) will hold itself out and identify itself as a
separate and distinct Entity under its own name and not as a division or part
of any other person or Entity, (xxii) will not make loans to any person or
Entity, (xxiii) will not identify its partners, members, shareholders,
trustees, beneficiaries or any Affiliates of any of them as a division or part
of it, (xxiv) will not enter into or be a party to, any transaction with its
partners, members, shareholders, beneficiaries, trustees or its Affiliates
except in the ordinary course of its business and on terms which are
intrinsically fair and are no less favorable to it than would be obtained in a
comparable arms-length transaction with an unrelated third party, (xxv) will
pay the salaries of its own employees from its own funds, (xxvi) if such Entity
is a limited liability company, limited partnership, or business trust then
such Entity shall continue and not dissolve whether as a consequence of bankruptcy
or insolvency of one or more of the members, general partners, or trustees, as
applicable, or otherwise, for so long as a solvent managing member, general
partner, or trustee, as applicable, exists and, subject to applicable law,
dissolution of the Entity shall not occur so long as the Entity remains owner
of the Premises subject to the Mortgage and such Entity’s organizational
documents shall contain such provision, (xxvii) if such Entity is a limited
liability company with two (2) or more members, it may be organized and
existing under the laws of any state, and (xxviii) if such Entity is a limited
liability company with only a single member then it must be organized and
existing under the laws of the state of Delaware, and upon the occurrence of
any event that causes the member to cease to be a member of the limited
liability company (other than (a) upon an assignment by the member of all
of its limited liability company interest in the limited liability company and
the admission of the transferee pursuant to the operating agreement, or (b) the
resignation of the member and the admission of an additional member of the
limited liability company), each person acting as a Special Member pursuant to
the operating agreement shall, without any action of any person and
simultaneously with the member ceasing to be a member of the limited liability
company, automatically be admitted to the limited liability company as a
Special Member and shall continue the limited liability company without
dissolution.  No Special Member may
resign from the limited liability company or transfer its rights as Special
Member unless a successor Special Member has been admitted to the limited
liability company as Special Member by executing a counterpart to the operating
agreement; provided, however, the Special Members shall automatically cease to
be members of the limited


 


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liability
company upon the admission to the limited liability company of a substitute
member.  Each Special Member shall be a
member of the limited liability company that has no interest in the profits,
losses and capital of the limited liability company and has no right to receive
any distributions of limited liability company assets.  Pursuant to Section 18-301 of the
Delaware Limited Liability Company Act (the “Act”), a Special Member shall not
be required to make any capital contributions to the limited liability company
and shall not receive a limited liability company interest in the limited
liability company.  A Special Member, in
its capacity as Special Member, may not bind the limited liability
company.  Except as required by any
mandatory provision of the Act, each Special Member, in its capacity as Special
Member, shall have no right to vote on, approve or otherwise consent to any
action by, or matter relating to, the limited liability company, including,
without limitation, the merger, consolidation or conversion of the limited
liability company.  The member shall not,
so long as any obligation to the Lender is outstanding, amend, alter, change or
repeal the definition of “Special Member” or any sections that relate to
Special Members of the operating agreement without the unanimous written
consent of all member(s) and Special Members. 
For so long as any obligation to Lender is outstanding, notwithstanding
any other provision of the operating agreement and any provision of law that
otherwise empowers the limited liability company or any member or any other
person to the contrary, no member nor any other person so authorized shall
permit the limited liability company, without the prior unanimous written
consent of the member and all Special Members, to take any bankruptcy-related
action.  As long as any obligation to Lender
is outstanding, the member shall cause the limited liability company at all
times to have at least one Special Member who will be appointed by the
member.  In the event of a vacancy in the
position of Special Member, the member shall, as soon as practicable, appoint a
successor Special Member.  One or more
additional members of the limited liability company may be admitted to the
limited liability company with the written consent of the member; provided,
however, that, notwithstanding the foregoing, so long as any obligation
to the Lender remains outstanding, no additional member may be admitted to the
limited liability company unless permitted by the Loan Documents.  The member shall agree that the operating
agreement constitutes a legal, valid and binding agreement of the member, and
is enforceable against the member by the Special Members, in accordance with
its terms.  In addition, the Special
Members shall be intended beneficiaries of the operating agreement.  For purposes hereof the term “Special
Member” means a person or Entity who is not a member of the limited
liability company but has agreed to act as a Special Member under the terms of
the operating agreement with only the rights and duties expressly set forth in
the operating agreement and only upon the occurrence of certain events that
cause the member to cease to be a member of the limited liability company.


 


“State”
means the state or commonwealth where the Premises is located.


 


“Taking”
has the meaning provided in the Mortgage.


 


“Tax and
Insurance Escrows” has the meaning set forth in Section 5.2(A) of
this Agreement.


 


“Title
Insurance Policy” means a loan policy of title insurance for the Premises
issued by Chicago Title Insurance Company with
respect to the Premises in an amount (not less than the Loan Amount) acceptable
to Lender and insuring the first priority lien in favor of Lender created by
the Mortgage, in each case acceptable to Lender in Lender’s discretion.


 


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“UCC” means, with respect to any Collateral, the Uniform Commercial
Code in effect in the jurisdiction in which the relevant Collateral is located.


 


ARTICLE II


GENERAL TERMS


 


Section 2.1             Loan
Commitment; Disbursement to Borrower; Prepayment.


 


(A)          The Loan.  Subject to, and upon the terms and conditions
set forth herein, Lender hereby agrees to make the Loan to Borrower on the
Closing Date, in the Loan Amount, which Loan will mature on the Maturity Date.


 


(B)           Disbursement to
Borrower.  Borrower may request and
receive only one borrowing in respect of the Loan, which will not be subject to
future advances and any amount borrowed and repaid in respect of the Loan may
not be reborrowed.  Borrower shall, on
the Closing Date, receive the Loan Amount, subject to the direction given by Borrower
as to the application of Loan proceeds.


 


(C)           The Note and
Other Loan Documents.  The Loan shall
be evidenced by the Note (made in the Loan Amount) and evidenced or secured by
the other Loan Documents executed and delivered in connection with the
Loan.  The Note shall bear interest as
provided in the Note, and shall be subject to the payment of interest and the
repayment and prepayment of the Indebtedness as provided for herein.  The Note shall be entitled to the benefits of
this Agreement and shall be secured by the Mortgage and the other Loan
Documents given to further secure the Loan.


 


(D)          Make Whole Premium.  In the event an Event of Default and
acceleration occur, Borrower shall pay to Lender a “Make Whole Premium.”  The Make Whole Premium shall be the greater
of one percent (1%) of the outstanding principal amount of the Loan or a
premium calculated as provided in subparagraphs (i)-(iii) below:


 


(i)            Determine
the “Reinvestment Yield.”  The
Reinvestment Yield will be equal to the yield on the U.S. Treasury Issue*
published one week prior to the date of prepayment and converted to an
equivalent monthly compounded nominal yield.


 






*At this time there is not a U.S. Treasury Issue for this prepayment
period.  At the time of prepayment,
Lender shall select in its sole and absolute discretion a U.S. Treasury Issue
with similar remaining time to maturity as the Note.


 


(ii)           Calculate
the “Present Value of the Loan.” 
The Present Value of the Loan is the present value of the payments to be
made in accordance with the Note (all installment payments and any remaining
payment due on the Maturity Date) discounted at the Reinvestment Yield for the
number of months remaining from the date of prepayment to the Maturity Date.


 


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(iii)          Subtract
the amount of the prepaid proceeds from the Present Value of the Loan as of the
date of prepayment.  Any resulting
positive differential shall be the premium.


 


Notwithstanding anything in this Section 2.1(D) to the
contrary, during the last month prior to the Maturity Date, the Make Whole
Premium shall not be subject to the one percent (1%) minimum and shall be
calculated only as provided in (i) through (iii) above.


 


(E)           Loan Prepayment.


 


(i)            Except
as otherwise provided in Section 2.1(E) (ii) below, Borrower
shall not have the right or privilege to prepay all or any portion of the
unpaid principal balance of the Note until the date which is one (1) month
prior to the Maturity Date.  From and
after such date, provided there is no Event of Default, the principal balance of
the Note may be prepaid, at par, in whole but not in part, upon: (a) not
less than 15 days prior written notice to Lender specifying the date on which
prepayment is to be made, which prepayment must occur no later than the fifth
day of such month unless Borrower pays to Lender all interest that would have
accrued for the entire month in which the Note is prepaid absent such
prepayment.  If prepayment occurs on a
date other than a scheduled monthly payment date, Borrower shall make the
scheduled monthly payment in accordance with the terms of the Note, regardless
of any prepayment; (b) payment of all accrued and unpaid interest on the
outstanding principal balance of the Note to and including the date on which
prepayment is to be made; and (c) payment of all other Indebtedness then
due under the Loan Documents.  Lender
shall not be obligated to accept any prepayment of the principal balance of the
Note unless it is accompanied by all sums due in connection therewith;


 


(ii)           In
addition to the Loan Prepayment rights set forth in paragraph 2.1 (E)(i) hereinabove,
after the Lockout Date but prior to the date which is one (1) month prior
to the Maturity Date, Borrower may prepay the principal balance of the Note,
provided there is no Event of Default, in whole but not in part, upon (a) not
less than 30 days prior written notice to the Lender specifying the date on
which prepayment is to be made, which prepayment must occur no later than the
fifth day of any such month unless Borrower pays to Lender all interest that
would have accrued for the entire month in which the Note is prepaid, absent
such prepayment.  If prepayment occurs on
a date other than a scheduled monthly payment date, Borrower shall make the
scheduled monthly payment in accordance with the terms of the Note regardless
of any prepayment; (b) payment of all accrued and unpaid interest on the
outstanding principal balance of the Note to and including the date on which
prepayment is made, (c) payment of all other Indebtedness then due under
the Loan Documents, and (d) payment of a Make Whole Premium.  Lender shall not be obligated to accept any
prepayment of the principal balance of the Note unless it is accompanied by all
sums due in connection therewith.


 


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ARTICLE III


REPRESENTATIONS AND WARRANTIES


 


In order to induce Lender to make the Loan to Borrower and in
consideration of Lender’s reliance thereon, Borrower hereby represents,
warrants and covenants, as follows:


 


Section 3.1.            Representations
and Warranties Relating to Borrower.


 


(A)          Organization.


 


(i)            Borrower
is and, until the Indebtedness is paid in full, will continue to (a) be a
duly organized and validly existing Entity in good standing under the laws of
the state of its formation, (b) if applicable, be duly qualified as a
foreign Entity in each jurisdiction in which the nature of its business, the
Premises or any of the other Collateral makes such qualification necessary or
desirable, (c) have the requisite Entity power and authority to carry on
its business as now being conducted, (d) have the requisite Entity power
to execute, deliver and perform its obligations under the Loan Documents and
Environmental Indemnity, and (e) comply with the provisions of all of its
organizational documents and the Legal Requirements of the state of its
formation.


 


(ii)           Borrower,
until the Indebtedness is paid in full, will continue to be a Single-Purpose
Entity.


 


(B)           Authorization.  The execution, delivery and performance of
the Loan Documents and Environmental Indemnity and the borrowing evidenced by
the Note (i) are within the applicable powers of the Borrower and each
other party to the Loan Documents and Environmental Indemnity (other than
Lender); (ii) have been authorized by all requisite action; (iii) have
received all necessary approvals and consents, corporate, governmental or
otherwise; (iv) will not violate, conflict with, result in a breach of or
constitute (with notice or lapse of time or both) a default under any provision
of law, any order or judgment of any court or Governmental Authority, the
articles of incorporation, by-laws, partnership, operating or trust agreement,
or other governing instrument of Borrower or any other party to the Loan
Documents or the Environmental Indemnity (other than Lender), or any indenture,
agreement or other instrument to which Borrower or any other party to the Loan
Documents and Environmental Indemnity (other than Lender) is a party or by
which each such party or any of their respective assets or the Premises is or
may be bound or affected; (v) will not result in the creation or
imposition of any lien, charge or encumbrance whatsoever upon any of such party’s
assets, except the liens and security interests created by the Loan Documents;
and (vi) will not require any authorization or license from, or any filing
with, any Governmental Authority or other body (except for the recordation of
the Mortgage and any other Loan Document intended to be recorded in the
appropriate land records in the State and except for UCC filings relating to
the security interest created hereby).


 


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(C)           Enforceability.  The Loan Documents and Environmental
Indemnity constitute the legal, valid and binding obligations of Borrower and
the other parties to the Loan Documents and Environmental Indemnity (other than
Lender), enforceable against each such party in accordance with their
respective terms, except as may be limited by (i) bankruptcy, insolvency,
reorganization or other similar laws affecting the rights of creditors
generally, and (ii) general principles of equity (regardless of whether
considered in a proceeding in equity or at law).  Such Loan Documents and Environmental
Indemnity are, as of the date hereof, not subject to any right of rescission,
set-off, counterclaim or defense by Borrower or any other party to the Loan
Documents and Environmental Indemnity (other than Lender), including the
defense of usury, nor will the operation of any of the terms of the Note, the
Mortgage, or such other Loan Documents and Environmental Indemnity, or the
exercise of any right thereunder, render the Mortgage unenforceable against
Borrower, in whole or in part, or subject to any right of rescission, set-off,
counterclaim or defense by Borrower, including the defense of usury, and
Borrower nor any other party to the Loan Documents and Environmental Indemnity
(other than Lender) have asserted any right of rescission, set-off,
counterclaim or defense with respect thereto.


 


(D)          Financial
Condition.  (i) Borrower is solvent
and no bankruptcy, reorganization, insolvency or similar proceeding under any
state or federal law with respect to Borrower has been initiated, (ii) Borrower
has not entered into this Loan transaction with the intent to hinder, delay or
defraud any creditor, (iii) Borrower has received reasonably equivalent
value for the making of the Loan and (iv) Borrower has no known contingent
liabilities which could have a Material Adverse Effect.


 


(E)           Litigation.  There are no actions, suits or proceedings at
law or in equity by or before any Governmental Authority now pending and served
or, to the knowledge of Borrower, threatened against Borrower or the Premises,
that would have a Material Adverse Effect.


 


(F)           Not
Foreign Person.  Borrower is not a “foreign
person” within the meaning of §1445(f)(3) of the Internal Revenue Code of
1986, as amended, and as it may be further amended from time to time, any
successor statutes thereto, together with applicable U.S. Department of
Treasury regulations issued pursuant thereto in temporary or final form (the “Code”).


 


(G)           ERISA.  As of the date hereof and until the
Indebtedness is paid in full: (i) Borrower is not and will not be an “employee
benefit plan” as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), which is subject to
Title I of ERISA, (ii) the assets of Borrower do not and will not
constitute “plan assets” of one or more such plans for purposes of Title I of
ERISA, (iii) Borrower is not and will not be a “governmental plan” within
the meaning of Section 3(32) of ERISA, (iv) transactions by or with
Borrower are not and will not be subject to state statutes applicable to
Borrower regulating investments of and fiduciary obligations with respect to
governmental plans, (v) Borrower has made and will continue to make all
required contributions to all employee benefit plans, if any, established for
or on behalf of Borrower or to which Borrower is required to contribute (vi) Borrower
has and will continue to administer each such plan, if any, in accordance with
its terms and the applicable provisions


 


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of ERISA and any other federal or state law; and (vii) Borrower
has not and will not permit any liability under Sections 4201, 4243, 4062 or
4069 of Title IV of ERISA or taxes or penalties relating to any employee
benefit plan or multi-employer plan to become delinquent or assessed,
respectively, which would have a Material Adverse Effect.


 


(H)          Investment
Company Act; Public Utility Holding Company Act.  Borrower is not and, until the Indebtedness
is paid in full, Borrower will not be (i) an “investment company” or a
company “controlled” by an “investment company,” within the meaning of the
Investment Company Act of 1940, as amended, (ii) a “holding company” or a “subsidiary
company” of a “holding company” or an “affiliate” of either a “holding company”
or a “subsidiary company” within the meaning of the Public Utility Holding
Company Act of 1935, as amended, or (iii) subject to any other federal or
state law or regulation which purports to restrict or regulate its ability to
borrow money.


 


(I)            Agreements.  Borrower is not a party to any agreement or
instrument or subject to any restriction which is likely to have a Material Adverse
Effect.  Borrower is not in default in
any respect in the performance, observance or fulfillment of any of the
material obligations, covenants or conditions contained in any indenture,
agreement or instrument to which it is a party or by which Borrower or the
Premises is bound.


 


(J)            Location
of Chief Executive Offices and Borrower’s Trade Names.  The location of Borrower’s principal place of
business and chief executive office is 2901 Butterfield Road, Oak Brook,
Illinois 60523 , and Borrower has
no other places of business.  Borrower
does not conduct its business “also known as”, “doing business as” or under any
other name.  Borrower shall not change
its principal place of business or chief executive office or conduct its
business under any other name, without first notifying Lender in writing at
least thirty (30) days prior to any such change.


 


(K)          No
Defaults.  No default or Event of
Default exists under or with respect to any Loan Document.


 


(L)           Labor
Matters.  Borrower is not a party to
any collective bargaining agreements.


 


(M)         Intellectual
Property.  All trademarks, trade
names and service marks that Borrower owns or has pending, if any, or under
which Borrower is licensed, if any, are in good standing and uncontested.  There is no right under any trademark, trade
name or service mark necessary to the business of Borrower as presently
conducted or as Borrower contemplates conducting its business.  To the best of Borrower’s knowledge, Borrower
has not infringed, is not infringing, and has not received notice of
infringement with respect to asserted trademarks, trade names and service marks
of others.  To Borrower’s knowledge,
there is no infringement by others of trademarks, trade names and service marks
of Borrower.


 


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Section 3.2.            Representations
and Warranties Relating to The Premises.


 


(A)          Title Issues.


 


(i)            Borrower
owns good, indefeasible, marketable and insurable fee simple title to the
Premises, free and clear of all liens, other than the Permitted Encumbrances
applicable to the Premises, and until the Indebtedness is paid in full Borrower
shall not permit any liens (other than the Permitted Encumbrances, any title
matters or exceptions approved in writing by Lender subsequent to the date hereof,
taxes which are not yet due or delinquent, or any lien that is contested by
Borrower in accordance with and subject to paragraph 1(e) of the Mortgage)
to attach to the Premises.  Borrower has
good title to the Premises and has the right to mortgage, grant, bargain, sell,
pledge, assign, warrant, transfer and convey the same.  There are not now, and until the Indebtedness
is paid in full, there will not be any outstanding options or agreements to
purchase or rights of first refusal affecting the Premises.  The Permitted Encumbrances do not and, until
the Indebtedness is paid in full, will not materially and adversely affect (a) the
ability of Borrower to pay in full all sums due under the Note or any of its
other obligations in a timely manner (b) the use of the Premises for the
use currently being made thereof, the operation of the Premises as currently
being operated or the value of the Premises, or (c) the value or
marketability of the Premises.


 


(ii)           No
Taking has been commenced or, to Borrower’s knowledge, is contemplated with
respect to all or any portion of the Premises or for the relocation of roadways
providing access to the Premises.


 


(iii)          All
costs and expenses of any and all labor, materials, supplies and equipment used
in the construction of the Improvements have been paid in full.  Borrower has paid in full for, and is the
owner of, all furnishings, fixtures and equipment (other than tenants’
property) used in connection with the operation of the Premises, free and clear
of any and all security interests, liens or encumbrances, except the lien and
security interest created by the Loan Documents securing the Loan.


 


(iv)          The
Premises is and, until the Indebtedness is paid in full, will be assessed for
real estate tax purposes as one or more wholly independent tax lot or lots,
separate from any adjoining land or improvements not constituting a part of
such lot or lots, and no other land or improvements is and, until the
Indebtedness is paid in full, will be assessed and taxed together with the Premises
or any portion thereof.


 


(v)           Except
as disclosed in the Title Insurance Policy, there are no pending or, to the
knowledge of Borrower, proposed special or other assessments for public
improvements or otherwise affecting the Premises, nor, to the knowledge of
Borrower, are there any contemplated improvements to the Premises that may
result in such special or other assessments and until the Indebtedness is paid
in full, Borrower shall not permit any taxes, assessments, fees, water, sewer
or other charges by Governmental Authorities relating to the Premises to become
delinquent.


 


11

















 


(vi)          The
Mortgage creates a valid and enforceable first mortgage lien on the Premises as
security for the repayment of the Indebtedness, subject only to the Permitted
Encumbrances, any title matters or exceptions approved in writing by Lender
subsequent to the date hereof, and taxes which are not yet due or
delinquent.  Each Loan Document securing
the Loan establishes and creates a valid, effective, and enforceable lien on
and a security interest in, or claim to, the rights and property described
therein.  All personal property and
fixtures covered by each such Loan Document are subject to a UCC financing
statement filed and/or recorded, as appropriate, or irrevocably delivered to an
authorized agent of the company issuing the Title Insurance Policy for such
recordation or filing in all places necessary to perfect a valid first priority
lien with respect to the rights and property that are the subject of each such
Loan Document to the extent governed by the UCC.


 


(B)           Status of the
Premises.


 


(i)            No
portion of the Improvements is located in an area identified by the Secretary
of Housing and Urban Development or the Federal Emergency Management Agency or
any successor thereto as an area having special flood or seismic hazards, or,
if now or hereafter located within any such area, Borrower has obtained and
will maintain the applicable flood hazard and/or earthquake insurance
prescribed in the Mortgage.


 


(ii)           Borrower
has obtained and, until the Indebtedness is paid in full, will maintain all
necessary certificates, licenses, permits and other approvals, governmental and
otherwise, necessary for the operation of the Premises; and the conduct of its
business and all required zoning, building code, land use, environmental and
other similar permits or approvals, all of which are and, until the
Indebtedness is paid in full, will remain in full force and effect and not
subject to revocation, suspension, forfeiture or modification.


 


(iii)          As
of the date hereof, and until the Indebtedness is paid in full: (a) the
Premises and the present and contemplated use, occupancy, operation and
construction thereof are and will remain in full compliance with all covenants
and restrictions and all applicable licenses, permits and other approvals and
all zoning ordinances, building codes, land use and environmental laws and
other similar laws, (b) none of the Improvements lie or will lie outside
of the boundaries of the Land or the applicable building restriction lines to
the extent that such would have a Material Adverse Effect, (c) no
improvements on adjoining properties (now or will) materially encroach upon the
Land.


 


(iv)          The
Premises is served by all utilities required for the current or contemplated
use thereof.  All utility service is
provided by public utilities and the Premises has accepted or is equipped to
accept such utility service.  The
Premises is served by public water and sewer systems.  All of the foregoing utilities are located in
the public right-of-way abutting the Premises, and all such utilities are
connected so as to serve the Premises either (a) without passing over
other property or, (b) if such utilities pass over other property, they do
so pursuant to valid easements.


 


(v)           All
public roads and streets necessary for service of and access to the Premises
for the current or contemplated use thereof have been completed, are
serviceable and all-weather and are physically and legally open for use by the
public.


 


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(vi)          The
Premises is free from (a) damage caused by fire or other casualty; and (b) material
structural defects; and all building systems contained therein are in good
working order in all material respects, subject to ordinary wear and tear.


 


(vii)         Any
and all liquid and solid waste disposal, septic and sewer systems located on
the Premises are in a good and safe condition and repair and in compliance with
all Legal Requirements.


 


(C)           Status of the
Leases and Rents.


 


(i)            No
Prior Assignment.  As of the date
hereof, (i) Lender is the assignee of Borrower’s interest under the
Leases, and (ii) there are no prior assignments of the Leases or any
portion of the Rents due and payable or to become due and payable which are
presently outstanding.


 


(ii)           Security
Deposits.  As of the date hereof,
Borrower is in compliance with all applicable Legal Requirements relating to
all Security Deposits.


 


(iii)          Leases.  (a) Borrower is the sole owner of the entire
lessor’s interest in the Leases; (b) the Leases are the valid, binding and
enforceable obligations of Borrower and the applicable tenant or lessee
thereunder; (c) the terms of all alterations, modifications and amendments
to the Leases are reflected in the certified rent roll delivered to and
approved by Lender; (d) none of the Rents reserved in the Leases have been
assigned or otherwise pledged or hypothecated other than to Lender; (e) none
of the Rents have been collected for more than one (1) month in advance; (f) the
premises demised under the Leases have been completed and the tenants under the
Leases have accepted the same and have taken possession of the same on a
rent-paying basis; (g) there exists no offset or defense to the payment of
any portion of the Rents; (h) except for the lease in favor of Price
Chopper Operating Co. of New Hampshire, Inc. dated December 18, 2003,
no Lease contains an option to purchase, right of first refusal to purchase,
expansion right, or any other similar provision; and (i) no Person has any
possessory interest in, or right to occupy the Premises, except under and
pursuant to a Lease; and (j) all leasing broker fees and commissions payable by
Borrower with respect to the Lease(s) have been paid in full, in cash or other
form of immediately available funds.


 


Section 3.3             Full
and Accurate Disclosure.  No
statement of fact made by or on behalf of Borrower in the Loan Documents, the
Environmental Indemnity or in any other document or certificate delivered to
Lender by Borrower contains any untrue statement of a material fact or omits to
state any material fact necessary to make statements contained herein or
therein not misleading.  There is no fact
presently known to Borrower which has not been disclosed to Lender which will
have a Material Adverse Effect, nor as far as Borrower can foresee, might have
a Material Adverse Effect.


 


Section 3.4.            Survival
of Representations and Warranties. 
Borrower agrees that (A) all of the representations and warranties
of Borrower set forth in this Agreement, in the other Loan Documents and
Environmental Indemnity delivered as of the date hereof are made as of the


 


13

















 


date hereof
(except as expressly otherwise provided) and (B) all representations,
warranties and covenants made by Borrower shall survive the delivery of the
Note and continue for so long as any Indebtedness remains owing, provided,
however, that the representations and warranties set forth in the
Environmental Indemnity shall survive in perpetuity and shall not be subject to
the limitation of liability provisions set forth in the Note.  All representations, warranties, covenants
and agreements made in this Agreement or in the other Loan Documents shall be
deemed to have been relied upon by Lender notwithstanding any investigation
heretofore or hereafter made by Lender or on its behalf.


 


ARTICLE IV


DEFAULTS AND REMEDIES


 


Section 4.1.            Remedies.  Upon the occurrence of an Event of Default,
all or any one or more of the rights, powers and other remedies available to
Lender against Borrower under this Agreement, the Note, the Mortgage or any of
the other Loan Documents, or at law or in equity may be exercised by Lender at
any time and from time to time, without notice or demand, whether or not all or
any portion of the Indebtedness shall be declared due and payable, and whether
or not Lender shall have commenced any foreclosure proceeding or other action
for the enforcement of its rights and remedies under any of the Loan Documents
with respect to the Premises or all or any portion of the Collateral.  Any such actions taken by Lender shall be
cumulative and concurrent and may be pursued independently, singly,
successively, together or otherwise, at such time and in such order as Lender may
determine in its discretion, to the fullest extent permitted by law, without
impairing or otherwise affecting the other rights and remedies of Lender
permitted by law, equity or contract or as set forth herein or in the other
Loan Documents.


 


ARTICLE V


SPECIAL PROVISIONS


 


Section 5.1.            Financial
Reporting.  Borrower shall keep adequate books and records of
account in accordance with generally accepted accounting principles or in
accordance with other methods of accounting acceptable to Lender in its sole discretion,
consistently applied (“Approved Accounting Method”) and shall furnish to
Lender the following, which shall be prepared, dated and certified by Borrower
as true, correct and complete in the form required by Lender, unless otherwise
specified below:


 


(A)          Within
120 days after the end of each fiscal year for Borrower, detailed analytical
financial reports for Borrower covering the full and complete operation of the
Premises, prepared in accordance with the Approved Accounting Method,
including, without limitation, a balance sheet, income and expense statements
(including monthly income and expense amounts for each of the preceding twelve
(12) months);


 


(B)           Within
forty-five (45) days after any written request by Lender, Borrower shall
furnish to Lender, for the most recently completed fiscal year, a combined or
consolidated federal income tax return filed for Borrower (if any such tax
return is filed by Borrower) and MBREIT. 
Said information shall be subject to Lender’s review;


 


14

















 


(C)           Within
forty-five (45) days after any written request by Lender, a detailed budget in
a format and with content reasonably acceptable to Lender, to include, without
limitation, a comparison showing corresponding information for Borrower’s
preceding fiscal year;


 


(D)          Within
one hundred twenty (120) days after the end of each fiscal year of Borrower, a
detailed rent roll stating the leasing status of the Premises as of the end of
such year identifying the lessee (and assignee, subtenants and licensees, if
any) and location of demised premises; square footage leased; base and
additional rental amounts including any increases; rental concessions,
allowances, abatements and/or rental deferments; pass-through amounts; purchase
options; commencement and expiration dates; early termination dates; renewal
options and annual renewal rents; total net rentable area of the Premises; the
existence of any affiliation between Borrower and tenant; a detailed listing of
tenant defaults; and within fifteen (15) days of Lender’s request, a listing of
sales volumes attained by lessees of the Premises under percentage leases for
the immediately preceding year and an aged accounts receivable report;


 


(E)           Within
thirty (30) days after the end of each fiscal quarter of Borrower, the reports
described in Sections 5.1 (A) and (D) above, prepared on both a
quarterly and year-to-date basis.  Said
reports may be internally prepared by Borrower;


 


Section 5.2.            Reserves and Cash Management.


 


(A)          Upon
the occurrence of an Event of Default, Borrower shall deposit with and pay to
Lender, on each payment date specified in the Note, sums calculated by Lender
for payment of: (i) the estimated taxes and assessments assessed or levied
against the Premises, and (ii) the estimated premiums for insurance
required by the Loan Documents, excluding commercial general liability
insurance (collectively, the “Tax and Insurance Escrows”).  Lender shall use the Tax and Insurance
Escrows to pay the taxes, assessments and premiums when the same become
due.  Borrower agrees it is liable for
any taxes, assessments and/or insurance premiums identified as being paid for
by Borrower on Lender’s written Tax and Insurance Escrow analysis previously
provided to Borrower and Borrower agrees to make
any such payments when the same become due. 
Borrower shall procure and deliver to Lender, in advance, statements for
such charges.  If the total payments made
by Borrower under this Section exceed the amount of payments actually made
by Lender for taxes, assessments and insurance premiums, such excess shall be
credited by Lender on subsequent deposits to be made by Borrower.  If, however, the Tax and Insurance Escrows
are insufficient to pay the taxes, assessments and insurance premiums when the
same shall be due and payable, Borrower will pay to Lender any amount necessary
to make up the deficiency, within five (5) business days before the date
when payment of such taxes, assessments and insurance premiums shall be
due.  If at any time Borrower shall
tender to Lender, in accordance with the provisions of the Note and the other
Loan Documents, full payment of the entire Indebtedness, Lender shall, in
computing the amount of such Indebtedness, credit to the account of Borrower
any balance remaining in the Tax and Insurance Escrows.  If there is an Event of Default resulting in
a public sale of the Premises, or if Lender otherwise acquires the Premises
after an Event of Default, Lender shall apply,


 


15

















 


at the time of commencement of such proceedings, or at the time the
Premises is otherwise acquired, the then remaining balance in the Tax and
Insurance Escrows as a credit toward any delinquent or accrued taxes and then,
in such priority as Lender elects, to the other Indebtedness.


 


Section 5.3             Security Agreement.


 


(A)          Pledge
of Accounts.  To secure the full and
punctual payment and performance of all of the Indebtedness, Borrower hereby
assigns, conveys, pledges and transfers to Lender and grants to Lender a first
and continuing lien on and security interest in and to all of Borrower’s right,
title and interest in (i) the Tax and Insurance Escrows; (ii) all
funds from time to time deposited or held in any of the foregoing, all
investments made with respect thereto and all interest, if any, earned thereon;
(iii) all other amounts required under the Loan Documents to be deposited
with and/or held by Lender, including but not limited to insurance proceeds and
proceeds payable to Borrower pursuant to a Taking; and (iv) to the extent
not covered by the clauses (i) –(iii) above, all products and
proceeds of any or all of the foregoing (collectively, the “Account
Collateral”).  Borrower agrees that
the Account Collateral shall not constitute any deposit or account of the
Borrower or moneys to which the Borrower is entitled upon demand, or upon the
mere passage of time or sums to which Borrower is entitled to any interest or crediting of interest by virtue of
Lender’s mere possession of such deposits. 
Lender shall not be required to segregate any Account Collateral and may
hold such deposits in its general account or any other account and may
commingle such deposits with any other moneys of Lender or moneys which Lender
is holding on behalf of any other person or entity.


 


(B)           Lender
Appointed Attorney-In-Fact.  Borrower
hereby irrevocably constitutes and appoints Lender as Borrower’s true and
lawful attorney-in-fact, with full power of substitution, at any time after the
occurrence of an Event of Default to execute, acknowledge and deliver any
instruments and to exercise and enforce every right, power, remedy, option and
privilege of Borrower with respect to the Account Collateral, and do in the
name, place and stead of Borrower, all such acts, things and deeds for and on
behalf of and in the name of Borrower with respect to the Account Collateral,
which Borrower could or might do or which Lender may deem necessary or
desirable to more fully vest in Lender the rights and remedies provided for
herein with respect to the Account Collateral and to accomplish the purposes of
this Agreement.  The foregoing powers of
attorney are irrevocable and coupled with an interest.  Beyond the exercise of reasonable care in the
custody thereof, Lender shall not have any duty as to any Account Collateral or
any income thereon in Lender’s possession or control or in the possession or
control of any agents for, or of Lender, or the preservation of rights against
any Person or otherwise with respect thereto, it being understood that so long
as Lender exercises reasonable care, Lender shall not be liable or responsible
for any loss, damage or diminution in value by reason of the act or omission of
Lender, or Lender’s agents, employees or bailees.


 


Section 5.4             Assignment
and Assumption of the Loan.  Borrower
shall not Transfer all or any portion of the Premises nor shall any of the
Interest Owners Transfer all or any


 


16

















 


portion of
their equity held in Borrower to another Person(s) except as may be expressly
permitted in the Mortgage.


 


Section 5.5             Transfer of Loan by Lender.


 


(A)          Lender
may, at any time, sell, transfer or assign the Note, the other Loan Documents
and the Environmental Indemnity, and any or all servicing rights with respect
thereto, or grant participations therein or issue mortgage pass-through
certificates or other securities evidencing a beneficial interest in a rated or
unrated public offering or private placement (each, as designated by Lender, a “Securitization
Transaction”).  Lender may forward to
each purchaser, transferee, assignee, servicer, participant, investor in such
Securitization Transaction or any Rating Agency (as hereinafter defined) rating
such Securitization Transaction (collectively, the “Investor”) and each
prospective Investor and the advisor of each of the foregoing, all documents
and information which Lender now has or may hereafter acquire relating to the
Indebtedness and to Borrower, Guarantor and the Premises, whether furnished by
Borrower, Guarantor or otherwise, as Lender determines necessary or desirable.


 


(B)           Borrower
agrees that it shall cooperate with Lender and use Borrower’s reasonable
efforts to facilitate the consummation of any Securitization Transaction,
including, without limitation, by:  (i) promptly
and reasonably providing such information as may be requested in connection
with the preparation of a private placement memorandum, prospectus or a
registration statement required to privately place or publicly distribute the
securities in a manner which does not conflict with federal or state securities
laws; (ii) providing within 10 days of Lender’s request the reports
described in Section 5.1.(D) above and monthly income information for
each of the preceding 12 months; and (iii) permitting Lender, or its
designees to inspect the Premises during normal business hours upon reasonable
advance notice from Lender requesting same and to discuss with Borrower or its
agents information and documentation with respect to the operation and
management of the Premises.  Lender shall
make reasonable efforts to ensure that the lessees’ business operations are not
disrupted.


 


(C)           At
any time, upon request of Lender, Borrower shall issue one or more separate (or
component) notes (the “Component Notes”) with revised interest rates to replace
the Note, the aggregate weighted average coupon rate of which shall, as of the
issuance of the Component Notes, equal the initial interest rate on the
Loan.  Each Component Note may have a
different interest rate. Borrower shall also be obligated to enter into such
amendments to other Loan Documents as are necessary to reference the Component
Notes.  Notwithstanding the foregoing,
Borrower shall only be required to issue such Component Notes as long as:


 


(i)                                     at and at all
times after the issuance of such Component Notes, the aggregate weighted
average coupon rate of the revised interest rates of the Component Notes equals
the aggregate weighted average coupon rate of the Loan as if the Note had never
been replaced;


 


17

















 


(ii)                                  there shall be no
negative economic effect upon Borrower’s debt service payments; and


 


(iii)                               such replacement shall
be at no cost and expense to Borrower (including that Lender shall reimburse
Borrower for its reasonable attorneys’ fees in reviewing the Component Notes).


 


(D)          Lender
agrees that any costs and expenses incurred by Lender under this Section 5.5
shall be the responsibility of and paid for by Lender.


 


Section 5.6             Insurance
Requirements.  Borrower shall at all
times keep or cause to be kept in full force and effect the insurance required
by the Mortgage.


 


Section 5.7             Management
of Premises.  If the Premises are
managed by Borrower or an affiliate of Borrower, then upon the occurrence of an
Event of Default, Lender may request, upon thirty (30) days prior written
notice to Borrower, that Borrower select a successor manager not affiliated
with Borrower to manage the Premises . 
If a successor manager is required pursuant hereto, Borrower shall
immediately seek to appoint a successor manager acceptable to Lender in Lender’s
reasonable discretion which successor manager shall be a reputable management
company having at least seven (7) years’ experience in the management of
commercial properties with similar uses as the Premises and in the jurisdiction
in which the Premises is located and shall not be paid management fees in
excess of fees which are market fees in the surrounding geographic area.


 


ARTICLE VI


MISCELLANEOUS


 


Section 6.1             No
Liability of Lender.  Borrower acknowledges
and agrees that Lender’s acceptance or approval of any action of Borrower or
any other matter requiring Lender’s approval, satisfaction, acceptance or
consent pursuant to this Agreement, the other Loan Documents or the
Environmental Indemnity, including any report certificate, financial statement,
appraisal or insurance policy, will not be deemed a warranty or representation
by Lender of the sufficiency, legality, effectiveness or other import or effect
of such matter.


 


Section 6.2             No
Third Parties Benefited.  This
Agreement is between and for the sole benefit of Borrower and Lender, and
Lender’s successors and assigns, and creates no rights whatsoever in favor of
any other Person and no other Person will have any rights to rely hereon.


 


Section 6.3             Time
is of the Essence.  Time is of the
essence of each of Borrower’s obligations under this Agreement.  The waiver by Lender of any default or Event
of Default under this Agreement will not be deemed a waiver of any subsequent
default or Event of Default.


 


Section 6.4             Binding
Effect; No Borrower Assignment.  This
Agreement will be binding upon and inure to the benefit of Borrower and Lender
and their respective heirs, executors, administrators, successors and assigns,
provided however Borrower may not assign its rights or interests in this
Agreement without the prior consent of Lender, which may be withheld in Lender’s
discretion as provided in the Mortgage.


 


18

















 


Section 6.5             Execution
in Counterparts.  This Agreement may
be executed in counterparts, each of which shall be deemed an original, and
such counterparts when taken together shall constitute but one agreement.


 


Section 6.6             Integration;
Amendments; Consents.  This
Agreement, together with the other Loan Documents and the Environmental
Indemnity, constitutes the entire agreement of the parties with respect to the
Loan, and supersedes any prior negotiations or agreements, and supersedes any
loan application submitted by Borrower to Lender and any commitment letter for
the Loan delivered by Lender to Borrower. 
No modification, extension, discharge, termination or waiver of any
provision of this Agreement or the other Loan Documents will be effective
unless in writing, signed by the Person against whom enforcement is sought, and
will be effective only in the specific instance for which it is given.


 


Section 6.7             Governing
Law.  The Loan will be deemed to have
been made in the State, and this Agreement, the other Loan Documents and the
Environmental Indemnity will be governed by and construed and enforced in
accordance with the laws of the State without regard to the State’s conflicts
of laws principles.  Borrower and Lender
each unconditionally and irrevocably waives any right to assert that the law of
any other jurisdiction governs this Agreement, the other Loan Documents, and
the Environmental Indemnity.


 


Section 6.8             Jurisdiction.  Borrower irrevocably (a) agrees that any
suit, action or other legal proceeding arising out of or relating to this
Agreement, the Note, the Mortgage, the other Loan Documents and the
Environmental Indemnity may be brought in a court of record in the State or in
the Courts of the United States located in the State, (b) submits to the
jurisdiction of each such court in any such suit, action or proceeding and (c) waives
any objection which it may have to the laying of venue of any such suit, action
or proceeding in any of such courts and any claim that any such suit, action or
proceeding has been brought in an inconvenient forum.  Borrower irrevocably consents to the service
of any and all process in any such suit, action or proceeding by service of
copies of such process to Borrower at its address provided in the
Mortgage.  Nothing in this Section 6.8
will affect the right of Lender to serve legal process in any other manner
permitted by law or affect the right of Lender to bring any suit, action or
proceeding against Borrower or Borrower’s assets in the courts of any other
jurisdiction.


 


Section 6.9             Severability
of Provisions.  If a court of
competent jurisdiction finds any provision of this Agreement, the other Loan
Documents or the Environmental Indemnity to be invalid or unenforceable as to
any Person or circumstance in any state, such finding will not render that
provision invalid or unenforceable as to any other Person or circumstance or in
any other state.  Where permitted by
Legal Requirements, any provision found invalid or unenforceable will be deemed
modified to the extent necessary to be within the limits of enforceability or
validity; however, if such provision cannot be deemed so modified, it will be
deemed stricken and all other provisions of this Agreement in all other
respects will remain valid and enforceable.


 


Section 6.10           Preferences.  Lender will have no obligation to marshal any
assets for the benefit of Borrower or any other Person or in satisfaction of
any or all of the Indebtedness.  Lender
will have the continuing and exclusive right to apply or reverse and reapply
any and all payments by Borrower to any portion of the Indebtedness.  To the extent Borrower makes a payment to
Lender or Lender receives any proceeds from the Collateral, which payment or
proceeds or any part thereof are subsequently invalidated, declared to be fraudulent
or preferential, set aside or required to be repaid to a trustee, receiver or
any other Person under any bankruptcy, insolvency


 


19

















 


or other law,
or for equitable cause, then, to the extent of such payment or proceeds
released by Lender, the Indebtedness will be revived and continue in full force
and effect, as if such payment or proceeds had not been received by Lender.


 


Section 6.11           Joint
and Several Obligations.  If this
Agreement is executed by more than one Person as Borrower, the Indebtedness
will be joint and several obligations.


 


Section 6.12           No
Joint Venture or Partnership. 
Borrower and Lender intend that the relationship created under this
Agreement, the other Loan Documents and the Environmental Indemnity be solely
that of borrower and lender.  Nothing is
intended to create a joint venture, partnership, tenancy-in-common, or joint
tenancy relationship between Borrower and Lender nor to grant to Lender any
interest in the Premises other than that of mortgagee or secured party.


 


Section 6.13           Waiver
of Counterclaim.  Borrower hereby
waives, to the extent permitted by applicable law, the right to assert any
counterclaim, other than a compulsory counterclaim, in any action or proceeding
brought against Borrower by Lender under any of the Loan Documents or the
Environmental Indemnity.


 


Section 6.14           Liability;
Loan Recourse Limitation.  Borrower’s
obligations under this Loan Agreement are subject to the provisions of
paragraph 9 of the Note.


 


Section 6.15           Headings,
etc.  The headings and captions of
various paragraphs of this Agreement are for convenience of reference only and
are not to be construed as defining or limiting, in any way, the scope or
intent of the provisions hereof.


 


Section 6.16           Capitalized
Terms.  Capitalized terms used herein
and not otherwise defined shall have those meanings given to them in the other
Loan Documents.


 


IN WITNESS
WHEREOF, Borrower and Lender have hereunto caused this Agreement to be executed
on the date first above written.


 


REMAINDER OF PAGE INTENTIONALLY BLANK


(Signatures on next page)


 


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SIGNATURE PAGE OF LENDER TO

LOAN AGREEMENT


 


	
   

  	
   

  	
  PRINCIPAL
  COMMERCIAL FUNDING, LLC, a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  PRINCIPAL
  REAL ESTATE

  INVESTORS, LLC, a Delaware limited

  liability company, its authorized signatory

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Jennifer
  Krambeck

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Jennifer
  Krambeck

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Closing
  Consultant

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Patrice
  K. Davis

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Patrice K.
  Davis

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Director—Closing

  	
   

  
								



 


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SIGNATURE PAGE OF BORROWER TO

LOAN AGREEMENT


 


	
   

  	
   

  	
  MB KEENE
  MONADNOCK, L.L.C., a Delaware limited

  liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  MINTO
  BUILDERS (FLORIDA), INC., a Florida

  corporation, Sole Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  	
  /s/Valerie
  Medina

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Valerie
  Medina

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Assistant Secretary

  	
   

  
								



 


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