Exhibit
10.112


 


LOAN AGREEMENT


LOAN NO 755096


 


THIS
LOAN AGREEMENT, made as of June             ,
2006, is by and between PRINCIPAL LIFE INSURANCE COMPANY, an Iowa corporation (“Lender”),
and INLAND AMERICAN CUMBERLAND, L.L.C., a Delaware limited liability company (“Borrower”).


 


RECITALS


 


A.            Borrower desires to obtain a loan
(the “Loan”) from Lender in the original principal amount of $11,531,000.00
(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, Inland American Real Estate Trust, Inc.,
a Maryland 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) years 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.


 


“Make
Whole Premium” means the greater of one percent (1%) of the outstanding
principal amount of the Loan or a premium calculated as provided in
subparagraphs (1)-(3) below:


 


(1)           Determine the “Reinvestment Yield.”  The Reinvestment Yield will be equal to the
yield on the *U.S. Treasury
Issue (“Primary Issue”) published one week prior to the date of
prepayment and converted to an equivalent monthly compounded nominal yield. In
the event there is no market activity involving the Primary Issue at the time
of prepayment, the Lender shall choose a comparable Treasury Bond, Note


 


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or
Bill (“Secondary Issue”) which the Lender reasonably deems to be similar
to the Primary Issue’s characteristics (i.e., rate, remaining time to maturity,
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.


 


(2)           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.


 


(3)           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.


 


“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.


 


“Note”
means and refers to the 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.


 


“Open
Period” means the period beginning with the payment date in that month
which is one month prior to the Maturity Date.


 


“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.


 


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“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 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 


 


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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
provisions, (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 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 


 


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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.


 


“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.


 


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(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)          Loan Prepayment.


 


(i)            Except
as otherwise provided in Section 2.1(D) (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 Open Period. 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 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, Borrower shall have the right to
prepay all or any portion of the unpaid principal balance after the Lockout
Date in accordance with the terms in 2.1(D)(i) above provided, however that
such prepayment which is prior to the Open Period will require the payment of
the Make Whole Premium.


 


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:


 


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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).


 


(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 


 


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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 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


 


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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, except the right of
first refusal to purchase as set forth in paragraph 20 of the lease with The
Stop & Shop Supermarket Company dated December 21, 2001. 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.


 


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(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.


 


(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 right
of first refusal to purchase as set forth in paragraph 20 of the lease with The
Stop & Shop Supermarket Company dated December 21, 2001, 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.


 


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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 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);


 


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(B)           Within
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 IARETI. Said information shall be subject to Lender’s review;


 


(C)           Within
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
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
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


 


15

















 


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, 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


 


16

















 


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 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:


 


17

















 


(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;


 


(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.


 


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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.


 


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.


 


19

















 


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 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 LIFE
  INSURANCE COMPANY, an 

  Iowa corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  PRINCIPAL REAL
  ESTATE 

  INVESTORS, LLC, a Delaware limited 

  liability company, its authorized signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  



 


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SIGNATURE PAGE OF
BORROWER TO


LOAN AGREEMENT


 


 


	
   

  	
  INLAND AMERICAN CUMBERLAND, L.L.C., a 

  Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Inland American Ceruzzi Cumberland Member, 

  L.L.C., a Delaware limited liability company, Sole 

  Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Inland American Cumberland Member II,

  L.L.C., a Delaware limited liability 

  company, Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
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  Inland American Real Estate Trust, 

  Inc., a Maryland corporation, Sole 

  Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
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