Common use of Existing Loans Clause in Contracts

Existing Loans. Promptly following Parent’s request, the Company shall deliver to each of its and the Company Subsidiaries’ lenders under the Existing Loan Documents (and any other party whose consent is required under the Existing Loan Documents) (the “Existing Lenders”) a notice prepared by Parent, in form and substance reasonably approved by the Company, requesting that such Existing Lender deliver to Parent a written statement or documents (the “Assumption Documents”) (i) confirming (A) the amount of the existing Indebtedness under such Existing Loan Document, (B) the date to which interest and principal has been paid, and (C) the amount of any escrows being held by such Existing Lender under the Existing Loan Documents; and (ii) consenting to (A) the assumption of the existing indebtedness under such Existing Loan and the consummation of the Merger and the other transactions contemplated by this Agreement, and (B) the modifications of the Existing Loan Documents that Parent may reasonably request after the date hereof; provided that the Company shall be informed and consent to any such request or modification; provided, further, that, in the event Parent requests Assumption Documents in accordance with this Section 5.21, (x) the receipt of (or failure to receive) such Assumption Documents from all or any portion of the Existing Lenders shall in no event be a condition to Parent’s and Merger Acquisition’s obligations to consummate the transactions contemplated by this Agreement, including the Merger, or otherwise affect Parent’s and Acquisition Sub’s obligations to pay the amounts to be paid by Parent or the Surviving Entity under Section 2.6 and Section 2.7 of the Agreement and the consummation of the Merger shall not be delayed or postponed as a result of the receipt of (or failure to receive) such Assumption Documents from all or any portion of the Existing Lenders and (y) the Assumption Documents will be effective as of or immediately prior to and conditioned on the occurrence of the Effective Time. Parent shall pay all fees and expenses payable in connection with the Assumption Documents, including premiums for any endorsements to or re-date of the title insurance policy previously issued to the Existing Lenders, servicing fees, rating agency fees, assignment and assumption fees, attorneys’ fees and disbursements and processing fees required to be paid to the Existing Lenders as a condition to issuance of the Assumption Documents (collectively, the “Assumption Expenses”). If applicable, Parent shall, promptly upon request by the Company, reimburse the Company for any reasonable out-of-pocket Assumption Expenses incurred by the Company or any of the Company Subsidiaries under this Section 5.21.

Existing Loans. Promptly following Parent’s requestOn the Execution Date, the Company aggregate balance of the loans outstanding under the Second Amended and Restated Credit Agreement is $37,000,000 (the "Existing Loans"). All Existing Loans shall deliver be deemed to be funded under this Agreement as of the Effective Date and shall constitute Loans hereunder for all purposes, and no notice requesting a borrowing thereof shall be required hereunder. All fees accrued on such Existing Loans prior to the Effective Date shall be for the benefit of the administrative agent and the lenders pursuant to the terms of the Second Amended and Restated Credit Agreement. All fees accrued and accruing on such Existing Loans on and after the Effective Date shall be for the benefit of the Lenders pursuant to the terms of this Agreement.. THE ADMINISTRATIVE AGENT Appointment; Nature of Relationship. XX Xxxxxx Chase Bank, N.A. is hereby appointed by each of its the Lenders and the Company Subsidiaries’ lenders LC Issuers as its contractual representative (herein referred to as the "Administrative Agent") hereunder and under each other Loan Document, and each of the Existing Lenders and each of the LC Issuers irrevocably authorizes the Administrative Agent to act as the contractual representative of such Lender and such LC Issuer with the rights and duties expressly set forth herein and in the other Loan Documents (Documents. The Administrative Agent agrees to act as such contractual representative upon the express conditions contained in this Article XI. Notwithstanding the use of the defined term "Administrative Agent," it is expressly understood and agreed that the Administrative Agent shall not have any fiduciary responsibilities to any Lender or any LC Issuer by reason of this Agreement or any other party whose consent Loan Document and that the Administrative Agent is required under merely acting as the Existing contractual representative of the Lenders and the LC Issuers with only those duties as are expressly set forth in this Agreement and the other Loan Documents) (. In its capacity as the “Existing Lenders”) a notice prepared by Parent' and LC Issuers' contractual representative, in form and substance reasonably approved by the Company, requesting that such Existing Lender deliver to Parent a written statement or documents (the “Assumption Documents”) Administrative Agent (i) confirming (A) the amount does not hereby assume any fiduciary duties to any of the existing Indebtedness under such Existing Loan Document, (B) the date to which interest and principal has been paid, and (C) the amount of any escrows being held by such Existing Lender under the Existing Loan Documents; and (ii) consenting to (A) the assumption of the existing indebtedness under such Existing Loan and the consummation of the Merger and the other transactions contemplated by this Agreement, and (B) the modifications of the Existing Loan Documents that Parent may reasonably request after the date hereof; provided that the Company shall be informed and consent to any such request or modification; provided, further, that, in the event Parent requests Assumption Documents in accordance with this Section 5.21, (x) the receipt of (or failure to receive) such Assumption Documents from all or any portion of the Existing Lenders shall in no event be a condition to Parent’s and Merger Acquisition’s obligations to consummate the transactions contemplated by this Agreement, including the Merger, or otherwise affect Parent’s and Acquisition Sub’s obligations to pay the amounts to be paid by Parent or the Surviving Entity under Section 2.6 and Section 2.7 of the Agreement and the consummation of the Merger shall not be delayed or postponed as a result of the receipt of (or failure to receive) such Assumption Documents from all or any portion of the Existing Lenders and (y) the Assumption Documents will be effective as of or immediately prior to and conditioned on the occurrence of the Effective Time. Parent shall pay all fees and expenses payable in connection with the Assumption Documents, including premiums for any endorsements to or re-date of the title insurance policy previously issued to the Existing Lenders, servicing fees, rating agency fees, assignment and assumption fees, attorneys’ fees and disbursements and processing fees required to be paid to the Existing Lenders as a condition to issuance of the Assumption Documents (collectively, the “Assumption Expenses”). If applicable, Parent shall, promptly upon request by the Company, reimburse the Company for any reasonable out-of-pocket Assumption Expenses incurred by the Company or any of the Company Subsidiaries under LC Issuers, (ii) is a "representative" of the Lenders and the LC Issuers within the meaning of the term "secured party" as defined in the Illinois Uniform Commercial Code and (iii) is acting as an independent contractor, the rights and duties of which are limited to those expressly set forth in this Section 5.21Agreement and the other Loan Documents. Each of the Lenders and each of the LC Issuers hereby agrees to assert no claim against the Administrative Agent on any agency theory or any other theory of liability for breach of fiduciary duty, all of which claims each Lender and each LC Issuer hereby waives.

Existing Loans. Promptly following Parent’s requestAt or prior to the applicable Closing, the Company shall deliver to each of its and the Company Subsidiaries’ lenders under the Existing Loan Documents (and any other party whose consent is required under the Existing Loan Documents) (the “Existing Lenders”) a notice prepared by Parent, in form and substance reasonably approved by the Company, requesting that such Existing Lender deliver to Parent a written statement or documents (the “Assumption Documents”) (i) confirming (A) the amount Purchaser Parties shall cooperate with the Seller Parties in connection with the efforts of the existing Indebtedness Seller Parties to cause each lender with respect to any Existing Loan that will continue to encumber any Property or the equity interests in an Equity Entity either (x) owned, directly or indirectly, Equity Entity being acquired, directly or indirectly, by the Purchaser Parties at such Closing or (y) being transferred to the Purchaser Parties at such Closing to release the Seller Parties and each of their applicable Affiliates from any Liability in respect of obligations first arising after the applicable Closing Date pursuant to any recourse obligations, guarantees, indemnification agreements, letters of credit posted by a Seller Party as security or other similar obligations (each, a “Existing Loan Release”), or (ii) in the absence of such release described in clause (i), from and after the applicable Closing and until such time as the applicable Existing Loan encumbering any Property (or the directly or indirect equity interests in the entity owning such Property) has been refinanced or repaid in full, or the applicable lender with respect thereto has otherwise agreed in writing to release the Seller Parties and each of their applicable Affiliates from any further Liability arising under such Existing Loan Documentin respect of obligations first arising on or after the applicable Closing Date pursuant to any recourse obligations, (B) guarantees, indemnification agreements, letters of credit by a Seller Party posted as security or other similar obligations, an Affiliate of the date Purchaser Parties reasonably acceptable to which interest the Seller Parties shall, if applicable, indemnify the Seller Parties and principal has been paid, and (C) the amount each of their respective Affiliates in respect of any escrows being held by such Existing Lender under the Existing Loan Documents; and (ii) consenting to (A) the assumption of the existing indebtedness under such Existing Loan and the consummation of the Merger and the other transactions contemplated by this Agreement, and (B) the modifications of the Existing Loan Documents further Liabilities that Parent may reasonably request after the date hereof; provided that the Company shall be informed and consent to any such request or modification; provided, further, that, in the event Parent requests Assumption Documents in accordance with this Section 5.21, (x) the receipt of (or failure to receive) such Assumption Documents from all or any portion of the Existing Lenders shall in no event be a condition to Parent’s and Merger Acquisition’s obligations to consummate the transactions contemplated by this Agreement, including the Merger, or otherwise affect Parent’s and Acquisition Sub’s obligations to pay the amounts to be paid by Parent or the Surviving Entity under Section 2.6 and Section 2.7 of the Agreement and the consummation of the Merger shall have not be delayed or postponed as a result of the receipt of (or failure to receive) such Assumption Documents from all or any portion of the Existing Lenders and (y) the Assumption Documents will be effective as of or immediately prior to and conditioned on the occurrence of the Effective Time. Parent shall pay all fees and expenses payable in connection with the Assumption Documents, including premiums for any endorsements to or re-date of the title insurance policy previously issued to the Existing Lenders, servicing fees, rating agency fees, assignment and assumption fees, attorneys’ fees and disbursements and processing fees required to be paid to the Existing Lenders as a condition to issuance of the Assumption Documents been so released (collectively, the “Assumption ExpensesExisting Loan Indemnification Obligations”). If applicableIn connection with obtaining any Required Third Party Consent from a lender under an Existing Loan, Parent shallin no event will the Purchaser Parties, promptly upon request by the Company, reimburse the Company for any reasonable out-of-pocket Assumption Expenses incurred by the Company themselves or any of their Affiliates, be required to repay any portion of the Company Subsidiaries under this Section 5.21outstanding principal balance of the Existing Loan, (ii) fund any additional reserves except to the extent specifically required pursuant to the terms of the Existing Loan Documents, (iii) provide any guaranty or indemnity with respect to an Existing Loan other than the replacement of the most recent existing guarantees and indemnities by the Seller Parties in substantially the same form as the most recent existing guarantees and indemnities and only with respect of obligations first arising on or after the applicable Closing Date, and (iv) otherwise amend the Existing Loans to increase the obligations or reduce the rights of the borrower and the guarantors thereunder. From the date hereof until the applicable Closing, without the consent of the Purchaser Parties (which consent may be granted or withheld in the Purchaser Parties sole discretion) make any voluntary prepayment of any Existing Loan.

Existing Loans. Promptly following Parent’s request(a) Each Property is encumbered with certain financing as set forth on Schedule 1.6 (each an “Existing Loan” and collectively the “Existing Loans”). Such notes, deed of trusts and all other documents or instruments evidencing or securing such Existing Loans, including any financing statements, and any amendments, modifications and assignments of the foregoing, shall be referred to, collectively, as the “Existing Loan Documents.” Each Existing Loan shall be considered a “Permitted Encumbrance” for purposes of this Agreement. With respect to each Existing Loan, the Company Operating Partnership at its election shall deliver either (i) assume the Existing Loan at the Closing (subject to obtaining any necessary consents from the holder of each mortgage or deed of trust related to such Existing Loan (in each case a “Lender” and collectively the “Lenders”) prior to Closing), (ii) take title to the applicable Property Interests subject to the lien of the applicable Existing Loan Documents or (iii) cause the Existing Loan to be refinanced or repaid in connection with the Closing; provided, however, that if the Operating Partnership elects to proceed under clauses (i) or (ii) of this sentence with respect to an Existing Loan, (x) at or prior to Closing, Soma Square, TMG and its affiliates (as applicable) shall have been released from any liability pursuant to any recourse obligations, guarantees, indemnification agreements, letters of credit posted as security or other similar obligations with respect to the Existing Loan secured by the Property that is being contributed in connection with the Partnership Interests of Soma Square (the “Soma Square Property,” and such Existing Loan, the “Soma Square Loan”) and which first arises on or after the Closing Date, and (y) the Operating Partnership may nonetheless, at its sole discretion, cause such Existing Loan to be refinanced or repaid after the Closing. The Contributors acknowledge that, from the date of the initial filing of the registration statement (the “Initial Filing Date”) in connection with the Public Offering, the Hxxxxx Contributors and TMG, as applicable, shall each be obligated under the Hxxxxx Contribution Agreement and the Company Subsidiaries’ lenders TMG Contribution Agreement, respectively, to use their commercially reasonable efforts to facilitate, within sixty (60) days from the Initial Filing Date, the consent of the Lenders to the Operating Partnership’s assumption of those Existing Loans which the Operating Partnership intends to assume at the Closing. From and after the Closing and until such time as each Existing Loan has been refinanced or repaid in full, or each Lender has otherwise agreed in writing to release the Contributors and their respective affiliates from any further liability in respect of obligations first arising on or after the Closing Date pursuant to any recourse obligations, guarantees, indemnification agreements, letters of credit posted as security or other similar obligations under the Existing Loan Documents, the Operating Partnership shall, if applicable, indemnify the Contributors and their respective affiliates in respect of any such further liabilities that have not been so released, except to the extent any such liability results from a breach of any obligation relating to any Contributor or affiliate thereof under the Existing Loan Documents (e.g., an obligation not to make or permit transfers, maintain a certain net worth or liquidity, or deliver financials) or from any act or omission constituting fraud, gross negligence, willful misconduct, bad faith or a default under this Agreement by any Contributor. (b) In connection with the assumption of each Existing Loan at the Closing or refinancing or payoff of an Existing Loan at or after the Closing, as applicable, the Operating Partnership shall bear and be responsible for any assumption fee or prepayment premium assessed by the applicable Lender and associated with such assumption, refinancing or payoff prior to maturity, as applicable, and any other party whose consent reasonable fee, charge, legal fees, cost or expense incurred by or on behalf of any Contributor in connection therewith (collectively, “Existing Loan Fees”), and subject to Section 3.5, shall indemnify and hold harmless each Contributor from and against such Contributor’s Allocable Share (as defined in Section 2.6(f) below) of any liability under the Existing Loans arising from and after the Closing (including by reason of the failure to have obtained any necessary consents from each applicable Lender prior to Closing) and any Existing Loan Fees. Any Existing Loan Fees associated with an Existing Loan shall be calculated solely with respect to such Existing Loan and shall not be aggregated or combined with any Existing Loan Fees associated with any other Existing Loan. Nothing contained in this Agreement shall preclude the Operating Partnership from reducing or increasing the indebtedness secured by the Property Interests below or above the amount outstanding on the Existing Loans in connection with any refinancing which may occur concurrently with or after Closing. Each Contributor acknowledges that the Hxxxxx Contributors and TMG, as applicable, shall each be obligated under the Hxxxxx Contribution Agreement and the TMG Contribution Agreement, respectively, to use commercially reasonable efforts (at no cost or expense to the Contributors) along with the Operating Partnership in seeking to obtain approval of the assumption of an Existing Loan or in beginning the process for any refinancing or a payoff of an Existing Loan (such as, without limitation, requesting a payoff statement from the holder(s) of such Existing Loan), as applicable. (c) The Operating Partnership and the Company acknowledge that the Existing Loan Documents require at least thirty (30) days’ prior written notice to the Lender in connection with any prepayment of the Existing Loan. If such prepayment notice is required given by the Operating Partnership or the Company (or by or on behalf of the Contributor at the written request or with the written approval of either of them) but the Closing does not occur for any reason, then (without limitation on Section 1.6(b)) the Operating Partnership and the Company shall indemnify and hold harmless the Contributor from and against its Allocable Share of any liability under the Existing Loan Documents) (or to the “Existing Lenders”) a notice prepared Lender arising by Parent, in form and substance reasonably approved by the Company, requesting that such Existing Lender deliver to Parent a written statement or documents (the “Assumption Documents”) (i) confirming (A) the amount reason of the existing Indebtedness under such Existing Loan Document, (B) the date failure to which interest and principal has been paid, and (C) the amount of any escrows being held by such Existing Lender under prepay the Existing Loan Documents; and (ii) consenting to (A) the assumption of the existing indebtedness under after having given such Existing Loan and the consummation of the Merger and the other transactions contemplated by this Agreement, and (B) the modifications of the Existing Loan Documents that Parent may reasonably request after the date hereof; provided that the Company shall be informed and consent to any such request or modification; provided, further, that, in the event Parent requests Assumption Documents in accordance with this Section 5.21, (x) the receipt of (or failure to receive) such Assumption Documents from all or any portion of the Existing Lenders shall in no event be a condition to Parent’s and Merger Acquisition’s obligations to consummate the transactions contemplated by this Agreement, including the Merger, or otherwise affect Parent’s and Acquisition Sub’s obligations to pay the amounts to be paid by Parent or the Surviving Entity under Section 2.6 and Section 2.7 of the Agreement and the consummation of the Merger shall not be delayed or postponed as a result of the receipt of (or failure to receive) such Assumption Documents from all or any portion of the Existing Lenders and (y) the Assumption Documents will be effective as of or immediately prior to and conditioned on the occurrence of the Effective Time. Parent shall pay all fees and expenses payable in connection with the Assumption Documents, including premiums for any endorsements to or re-date of the title insurance policy previously issued to the Existing Lenders, servicing fees, rating agency fees, assignment and assumption fees, attorneys’ fees and disbursements and processing fees required to be paid to the Existing Lenders as a condition to issuance of the Assumption Documents (collectively, the “Assumption Expenses”). If applicable, Parent shall, promptly upon request by the Company, reimburse the Company for any reasonable out-of-pocket Assumption Expenses incurred by the Company or any of the Company Subsidiaries under this Section 5.21prepayment notice.

Existing Loans. Promptly following ParentA. It is Purchaser’s requestand Sellers’ intent that Purchaser shall (x) assume the applicable Seller’s obligations as borrower under each Existing Loan first arising from and after the date of such assumption, the Company shall deliver to each and (y) take an assignment of its and the Company Subsidiaries’ lenders such Seller’s obligations as borrower under the Existing Loan Documents first arising from and after the date of such assignment (collectively, the “Loan Assumption”). Purchaser shall pay all costs and any other party whose consent is required under expenses of each Loan Assumption including, without limitation, all loan assumption fees, lender review fees, servicer fees and the legal fees and expenses of the Existing Lenders’ counsel, if any, as well as any enforceability or other legal opinions required by the Existing Lender (excluding only authority opinions for the existing borrower and guarantors) (collectively, “Loan DocumentsAssumption Fees”), whether or not Loan Assumption Commitments shall be issued or consummated. Purchaser shall protect, defend, indemnify and hold Sellers and Holdings harmless for any Loan Assumption Fees which obligation shall survive the termination of this Agreement relative to the Property to which such Loan Assumption Fees pertain. Notwithstanding the foregoing, each of the parties shall pay its own legal fees with respect to a Loan Assumption. B. Within five (5) business days following the execution and delivery of this Agreement, Sellers shall take the steps necessary to request that each Existing Lender allow Purchaser or its designee to assume the applicable Existing Loans. Purchaser shall exercise good faith commercially reasonable efforts, in a timely manner, to satisfy the Existing Lenders’ requests for information regarding Purchaser, and Seller shall exercise good faith commercially reasonable efforts, in a timely manner, to obtain from the holder of each of the Existing Loans (the “Existing Lenders”) a notice prepared by Parent), its formal written consent to the Loan Assumptions on the same terms and conditions as set forth in form and substance reasonably approved by the Company, requesting that such Existing Lender deliver to Parent a written statement or documents (the “Assumption Documents”) (i) confirming (A) the amount of the existing Indebtedness under such Existing Loan Document, (B) the date to which interest and principal has been paid, and (C) the amount of any escrows being held by such Existing Lender under the Existing Loan Documents; and (ii) consenting to (A) the assumption of the existing indebtedness under such Existing Loan and the consummation of the Merger and the other transactions contemplated by this Agreement, and (B) the modifications of the Existing Loan Documents that Parent may with such modifications thereto as Purchaser shall reasonably request (but excluding any changes to the economic terms of the Existing Loans) (the “Loan Assumption Commitments”) on or before the date that is two hundred forty (240) days after the date hereof; provided that Effective Date (the Company shall be informed and “Loan Assumption Commitment Outside Date”). Notwithstanding anything herein to the contrary, if an Existing Lender requires Purchaser to provide a replacement non-recourse careveout guaranty as a condition precedent to granting its consent to any such request or modification; provideda Loan Assumption, further, that, in then Purchaser shall provide an affiliate as a replacement non-recourse carveout guarantor. C. The Closing with respect to each Property that is subject to a Loan Assumption shall occur upon the event Parent requests Assumption Documents in accordance with this Section 5.21, later of (x) the receipt of (or failure to receive) such Assumption Documents from all or any portion of the Existing Lenders shall in no event be a condition to Parent’s and Merger Acquisition’s obligations to consummate the transactions contemplated by this Agreement, including the Merger, or otherwise affect Parent’s and Acquisition Sub’s obligations to pay the amounts to be paid by Parent or the Surviving Entity under Section 2.6 and Section 2.7 of the Agreement and the consummation of the Merger shall not be delayed or postponed as a result of the receipt of (or failure to receive) such Assumption Documents from all or any portion of the Existing Lenders First Closing Date and (y) the Assumption Documents will be effective as date that is twenty (20) days after the date of or immediately prior to and conditioned on the occurrence receipt of the Effective Timeapplicable Loan Assumption Commitment. Parent If the Loan Assumption Commitment with respect to any Loan Assumption is not obtained on or before the Loan Assumption Commitment Outside Date, then the Properties that are the subject of any such Loan Assumption shall pay all fees be excluded from the Acquired Assets, in which event the Purchase Price shall be reduced by the allocated Purchase Price for such excluded Properties and expenses payable Sellers and Purchaser shall cause Escrowee to return the allocable portion of the remaining Xxxxxxx Money to Purchaser. Notwithstanding the foregoing, either Sellers or Purchaser may elect to continue pursuing such Loan Assumption by delivering written notice of such election to the other party on or before the Loan Assumption Commitment Outside Date (the “Extension Election”), in connection which event Sellers and Purchaser shall continue to pursue such Loan Assumption in accordance with the Assumption Documents, including premiums for any endorsements to terms of this Section 11. Either Sellers or re-date of the title insurance policy previously issued to the Existing Lenders, servicing fees, rating agency fees, assignment and assumption fees, attorneys’ fees and disbursements and processing fees required to be paid to the Existing Lenders as a condition to issuance of the Assumption Documents Purchaser (collectivelysuch party, the “Assumption ExpensesElecting Party”) may, commencing ninety (90) days after the Effective Date (“Litigation Exercise Period”), elect by written notice of such election to the other party to have Sellers, at the Electing Party’s sole cost and expense, pursue a legal or equitable action against the applicable Existing Lender to cause such Existing Lender to grant its consent to such Loan Assumption. If applicable, Parent shall, promptly upon request Upon any such election by the CompanyElecting Party, reimburse such Electing Party shall use good faith efforts consistent with prudent business judgment to diligently pursue such action against the Company applicable Existing Lender, provided that (i) the counsel for any the Electing Party who shall pursue such action shall be reasonably satisfactory to the other party, and (ii) the non-Electing Party may, in its sole discretion, participate in such action and engage its own counsel (subject to the Electing Party’s reasonable out-of-pocket Assumption Expenses incurred by approval) for such purpose. With respect to a Property for which either party has made an Extension Election, in the Company or any event the applicable Closing has not occurred for such Property for which a Closing is outstanding pursuant to this Section 11(C) as of the Company Subsidiaries under date that is three hundred sixty (360) days after Effective Date, either party shall have the right to terminate this Section 5.21Agreement relative to such Property and the related Acquired Assets, in which event Sellers and Purchaser shall cause Escrowee to return the allocable portion of the remaining Xxxxxxx Money to Purchaser.

Existing Loans. Promptly following Parent’s requestAt or prior to the applicable Closing, (i) the Purchaser Parties shall cooperate with the Seller Parties in connection with the efforts of the Seller Parties to cause each lender with respect to any Existing Loan that will continue to encumber any Property or the equity interests in an Equity Entity either (x) owned, directly or indirectly, Equity Entity being acquired, directly or indirectly, by the Purchaser Parties at such Closing or (y) being transferred to the Purchaser Parties at such Closing to release the Seller Parties and each of their applicable Affiliates from any Liability in respect of obligations first arising after the applicable Closing Date pursuant to any recourse obligations, guarantees, indemnification agreements, letters of credit posted by a Seller Party as security or other similar obligations (each, a "Existing Loan Release"), or (ii) in the absence of such release described in clause (i), from and after the applicable Closing and until such time as the applicable Existing Loan encumbering any Property (or the directly or indirect equity interests in the entity owning such Property) has been refinanced or repaid in full, or the applicable lender with respect thereto has otherwise agreed in writing to release the Seller Parties and each of their applicable Affiliates from any further Liability arising under such Existing Loan in respect of obligations first arising on or after the applicable Closing Date pursuant to any recourse obligations, guarantees, indemnification agreements, letters of credit by a Seller Party posted as security or other similar obligations, an Affiliate of the Purchaser Parties reasonably acceptable to the Seller Parties shall, if applicable, indemnify the Seller Parties and each of their respective Affiliates in respect of any such further Liabilities that have not been so released (collectively, the Company shall deliver "Existing Loan Indemnification Obligations"). In connection with obtaining any Required Third Party Consent from a lender under an Existing Loan, in no event will the Purchaser Parties, for themselves or any of their Affiliates, be required to each repay any portion of its and the Company Subsidiaries’ lenders under outstanding principal balance of the Existing Loan Documents Loan, (and ii) fund any other party whose consent is additional reserves except to the extent specifically required under pursuant to the terms of the Existing Loan Documents, (iii) (provide any guaranty or indemnity with respect to an Existing Loan other than the “Existing Lenders”) a notice prepared by Parent, in form replacement of the most recent existing guarantees and substance reasonably approved indemnities by the Company, requesting that such Existing Lender deliver to Parent a written statement Seller Parties in substantially the same form as the most recent existing guarantees and indemnities and only with respect of obligations first arising on or documents (after the “Assumption Documents”) (i) confirming (A) the amount of the existing Indebtedness under such Existing Loan Document, (B) the date to which interest and principal has been paid-- \\DC - 088650/000238 - 6521921 v16 applicable Closing Date, and (Civ) otherwise amend the amount Existing Loans to increase the obligations or reduce the rights of the borrower and the guarantors thereunder. From the date hereof until the applicable Closing, without the consent of the Purchaser Parties (which consent may be granted or withheld in the Purchaser Parties sole discretion) make any voluntary prepayment of any escrows being held by such Existing Lender under the Existing Loan Documents; and (ii) consenting to (A) the assumption of the existing indebtedness under such Existing Loan and the consummation of the Merger and the other transactions contemplated by this Agreement, and (B) the modifications of the Existing Loan Documents that Parent may reasonably request after the date hereof; provided that the Company shall be informed and consent to any such request or modification; provided, further, that, in the event Parent requests Assumption Documents in accordance with this Section 5.21, (x) the receipt of (or failure to receive) such Assumption Documents from all or any portion of the Existing Lenders shall in no event be a condition to Parent’s and Merger Acquisition’s obligations to consummate the transactions contemplated by this Agreement, including the Merger, or otherwise affect Parent’s and Acquisition Sub’s obligations to pay the amounts to be paid by Parent or the Surviving Entity under Section 2.6 and Section 2.7 of the Agreement and the consummation of the Merger shall not be delayed or postponed as a result of the receipt of (or failure to receive) such Assumption Documents from all or any portion of the Existing Lenders and (y) the Assumption Documents will be effective as of or immediately prior to and conditioned on the occurrence of the Effective Time. Parent shall pay all fees and expenses payable in connection with the Assumption Documents, including premiums for any endorsements to or re-date of the title insurance policy previously issued to the Existing Lenders, servicing fees, rating agency fees, assignment and assumption fees, attorneys’ fees and disbursements and processing fees required to be paid to the Existing Lenders as a condition to issuance of the Assumption Documents (collectively, the “Assumption Expenses”). If applicable, Parent shall, promptly upon request by the Company, reimburse the Company for any reasonable out-of-pocket Assumption Expenses incurred by the Company or any of the Company Subsidiaries under this Section 5.21Loan.

Existing Loans. Promptly following Parent’s request(a) The Property is encumbered with certain financing as set forth on Section 3.3(q) of the Disclosure Letter (each an “Existing Loan” and collectively the “Existing Loans”). Such notes, mortgages, deeds of trust and all other documents or instruments evidencing, governing or securing such Existing Loans, including any financing statements, and any amendments, consolidations, restatements, modifications and assignments of the foregoing, shall be referred to, collectively, as the “Existing Loan Documents.” Each Existing Loan shall be considered a “Permitted Encumbrance” for purposes of this Agreement. With respect to each Existing Loan, the Company Operating Partnership at its election shall either (i) assume the Existing Loan at the Closing (subject to obtaining any necessary consents from the lender related to such Existing Loan (in each case a “Lender” and collectively the “Lenders”) prior to Closing), (ii) take title to the Property Interest subject to the lien of the applicable Existing Loan Documents or (iii) cause the Existing Loan to be refinanced or repaid in connection with the Closing; provided, however, that if the Operating Partnership elects to proceed under clauses (i) or (ii) of this sentence with respect to an Existing Loan, the Operating Partnership nonetheless, at its sole discretion, may cause such Existing Loan to be refinanced or repaid after the Closing. Contributor acknowledges that, from the date of the initial filing of the registration statement on Form S-11 (the “Initial Filing Date”) in connection with the IPO, it shall use its commercially reasonable efforts to facilitate (or, in the case that Contributor is not the borrower under such Existing Loan under which the Property is mortgaged, cooperate with the borrower under each Existing Loan to), within ninety (90) days from the Initial Filing Date, the consent of the Lender to the assumption of each such Existing Loan by the Operating Partnership or any of its Subsidiaries which the Operating Partnership or any of its Subsidiaries intends to assume at the Closing. In addition, Contributor and the Operating Partnership shall use commercially reasonable efforts to cause each Lender related to those Existing Loans which the Operating Partnership intends to assume or take subject to at the Closing, at or before the Closing, to deliver to evidence of such Lender’s release of Contributor, the Principals and each of its and their respective Affiliates from any liability in respect of obligations first arising on or after the Company Subsidiaries’ lenders Closing Date pursuant to any recourse obligations, guarantees, indemnification agreements, letters of credit posted as security or other similar obligations (the “Existing Loan Release”). In the absence of such Existing Loan Release, at or before the Closing, the Operating Partnership shall enter into an indemnification agreement in substantially the form attached hereto as Exhibit C (the “Existing Loan Indemnity Agreement”) with respect to any obligation under the Existing Loan Documents (and any other party whose consent is required under the Existing Loan Documents) (the “Existing Lenders”) a notice prepared by Parentof Contributor, in form and substance reasonably approved by the Company, requesting that such Existing Lender deliver to Parent a written statement or documents (the “Assumption Documents”) (i) confirming (A) the amount each of the existing Indebtedness under such Existing Loan Document, Principals and each of their respective Affiliates. (Bb) the date to which interest and principal has been paid, and (C) the amount of any escrows being held by such Existing Lender under the Existing Loan Documents; and (ii) consenting to (A) In connection with the assumption of the existing indebtedness under such each Existing Loan and or the consummation taking of title to the Property Interest subject to the lien of the Merger applicable Existing Loan Documents at the Closing or refinancing or payoff of an Existing Loan or release of any mortgage encumbering the Property after the Closing, as applicable, the Operating Partnership shall bear and be responsible for any assumption fee or prepayment premium, or other penalty or charge assessed by the other transactions contemplated by this Agreement, and (B) the modifications of applicable Lender pursuant to the Existing Loan Documents that Parent may reasonably request and associated with such assumption, refinancing or payoff prior to maturity or release, as applicable, and all other fees, charges, costs and expenses of any nature whatsoever, including without limitation, reasonable attorneys’ fees, incurred by or on behalf of Contributor in connection therewith (collectively, “Existing Loan Fees”), and shall indemnify and hold harmless Contributor, the Principals and each of their respective Affiliates from and against any liability under the Existing Loans arising from and after the date hereof; provided that Closing (including by reason of the Company shall be informed and consent to any such request or modification; provided, further, that, in the event Parent requests Assumption Documents in accordance with this Section 5.21, (x) the receipt of (or failure to receivehave obtained any necessary consents from each applicable Lender prior to Closing) such Assumption Documents and any Existing Loan Fees. Nothing contained in this Agreement shall preclude the Operating Partnership from all reducing or any portion of increasing the indebtedness secured by the Property Interest below or above the amount outstanding on the Existing Lenders shall in no event be a condition to Parent’s and Merger Acquisition’s obligations to consummate the transactions contemplated by this Agreement, including the Merger, or otherwise affect Parent’s and Acquisition Sub’s obligations to pay the amounts to be paid by Parent or the Surviving Entity under Section 2.6 and Section 2.7 of the Agreement and the consummation of the Merger shall not be delayed or postponed as a result of the receipt of (or failure to receive) such Assumption Documents from all or any portion of the Existing Lenders and (y) the Assumption Documents will be effective as of or immediately prior to and conditioned on the occurrence of the Effective Time. Parent shall pay all fees and expenses payable Loans in connection with any refinancing which may occur concurrently with or after Closing. Contributor shall use commercially reasonable efforts along with the Assumption Documents, including premiums Operating Partnership in seeking to obtain approval of the assumption of an Existing Loan or in beginning the process for any endorsements refinancing or a payoff of an Existing Loan (such as, without limitation, requesting a payoff statement and estoppel from the holder(s) of such Existing Loan), as applicable. Nothing contained in this Agreement shall be deemed to or re-date affect any limitation on the Operating Partnership’s ability to reduce the amount of indebtedness secured by the Property Interest pursuant to the terms of the title insurance policy previously issued to the Existing Lenders, servicing fees, rating agency fees, assignment and assumption fees, attorneys’ fees and disbursements and processing fees required to be paid to the Existing Lenders as a condition to issuance of the Assumption Documents (collectively, the “Assumption Expenses”). If applicable, Parent shall, promptly upon request by the Company, reimburse the Company for any reasonable out-of-pocket Assumption Expenses incurred by the Company or any of the Company Subsidiaries under this Section 5.21Tax Protection Agreement.

Existing Loans. Promptly following Parent’s request(a) The Property is encumbered with certain financing as set forth on Section 3.3(q) of the Disclosure Letter (each an “Existing Loan” and collectively the “Existing Loans”). Such notes, mortgages, deeds of trust and all other documents or instruments evidencing, governing or securing such Existing Loans, including any financing statements, and any amendments, consolidations, restatements, modifications and assignments of the foregoing, shall be referred to, collectively, as the “Existing Loan Documents.” Each Existing Loan shall be considered a “Permitted Encumbrance” for purposes of this Agreement. With respect to each Existing Loan, the Company Operating Partnership at its election shall either (i) assume the Existing Loan at the Closing (subject to obtaining any necessary consents from the lender related to such Existing Loan (in each case a “Lender” and collectively the “Lenders”) prior to Closing), (ii) take title to the Property Interest subject to the lien of the applicable Existing Loan Documents or (iii) cause the Existing Loan to be refinanced or repaid in connection with the Closing; provided, however, that if the Operating Partnership elects to proceed under clauses (i) or (ii) of this sentence with respect to an Existing Loan, the Operating Partnership nonetheless, at its sole discretion, may cause such Existing Loan to be refinanced or repaid after the Closing. Contributor acknowledges that, from the date of the initial filing of the registration statement on Form S-11 (the “Initial Filing Date”) in connection with the IPO, it shall use its commercially reasonable efforts to facilitate (or, in the case that Contributor is not the borrower under such Existing Loan under which the Property is mortgaged, cooperate with the borrower under each Existing Loan to), within ninety (90) days from the Initial Filing Date, the consent of the Lender to the assumption of each such Existing Loan by the Operating Partnership or any of its Subsidiaries which the Operating Partnership or any of its Subsidiaries intends to assume at the Closing. In addition, the Contributor shall cooperate with the borrower under each Existing Loan and the Operating Partnership shall use commercially reasonable efforts to cause each Lender related to those Existing Loans which the Operating Partnership intends to assume or take subject to at the Closing, at or before the Closing, to deliver to evidence of such Lender’s release of Contributor, the Principals and each of its and their respective Affiliates from any liability in respect of obligations first arising on or after the Company Subsidiaries’ lenders Closing Date pursuant to any recourse obligations, guarantees, indemnification agreements, letters of credit posted as security or other similar obligations (the “Existing Loan Release”). In the absence of such Existing Loan Release, at or before the Closing, the Operating Partnership shall enter into an indemnification agreement in substantially the form attached hereto as Exhibit C (the “Existing Loan Indemnity Agreement”) with respect to any obligation under the Existing Loan Documents (and any other party whose consent is required under the Existing Loan Documents) (the “Existing Lenders”) a notice prepared by Parentof Contributor, in form and substance reasonably approved by the Company, requesting that such Existing Lender deliver to Parent a written statement or documents (the “Assumption Documents”) (i) confirming (A) the amount each of the existing Indebtedness under such Existing Loan Document, Principals and each of their respective Affiliates. (Bb) the date to which interest and principal has been paid, and (C) the amount of any escrows being held by such Existing Lender under the Existing Loan Documents; and (ii) consenting to (A) In connection with the assumption of the existing indebtedness under such each Existing Loan and or the consummation taking of title to the Property Interest subject to the lien of the Merger applicable Existing Loan Documents at the Closing or refinancing or payoff of an Existing Loan or release of any mortgage encumbering the Property after the Closing, as applicable, the Operating Partnership shall bear and be responsible for any assumption fee or prepayment premium, or other penalty or charge assessed by the other transactions contemplated by this Agreement, and (B) the modifications of applicable Lender pursuant to the Existing Loan Documents that Parent may reasonably request and associated with such assumption, refinancing or payoff prior to maturity or release, as applicable, and all other fees, charges, costs and expenses of any nature whatsoever, including without limitation, reasonable attorneys’ fees, incurred by or on behalf of Contributor in connection therewith (collectively, “Existing Loan Fees”), and shall indemnify and hold harmless Contributor, the Principals and each of their respective Affiliates from and against any liability under the Existing Loans arising from and after the date hereof; provided that Closing (including by reason of the Company shall be informed and consent to any such request or modification; provided, further, that, in the event Parent requests Assumption Documents in accordance with this Section 5.21, (x) the receipt of (or failure to receivehave obtained any necessary consents from each applicable Lender prior to Closing) such Assumption Documents and any Existing Loan Fees. Nothing contained in this Agreement shall preclude the Operating Partnership from all reducing or any portion of increasing the indebtedness secured by the Property Interest below or above the amount outstanding on the Existing Lenders shall in no event be a condition to Parent’s and Merger Acquisition’s obligations to consummate the transactions contemplated by this Agreement, including the Merger, or otherwise affect Parent’s and Acquisition Sub’s obligations to pay the amounts to be paid by Parent or the Surviving Entity under Section 2.6 and Section 2.7 of the Agreement and the consummation of the Merger shall not be delayed or postponed as a result of the receipt of (or failure to receive) such Assumption Documents from all or any portion of the Existing Lenders and (y) the Assumption Documents will be effective as of or immediately prior to and conditioned on the occurrence of the Effective Time. Parent shall pay all fees and expenses payable Loans in connection with any refinancing which may occur concurrently with or after Closing. Contributor shall use commercially reasonable efforts along with the Assumption Documents, including premiums Operating Partnership in seeking to obtain approval of the assumption of an Existing Loan or in beginning the process for any endorsements refinancing or a payoff of an Existing Loan (such as, without limitation, requesting a payoff statement and estoppel from the holder(s) of such Existing Loan), as applicable. Nothing contained in this Agreement shall be deemed to or re-date affect any limitation on the Operating Partnership’s ability to reduce the amount of indebtedness secured by the Property Interest pursuant to the terms of the title insurance policy previously issued to the Existing Lenders, servicing fees, rating agency fees, assignment and assumption fees, attorneys’ fees and disbursements and processing fees required to be paid to the Existing Lenders as a condition to issuance of the Assumption Documents (collectively, the “Assumption Expenses”). If applicable, Parent shall, promptly upon request by the Company, reimburse the Company for any reasonable out-of-pocket Assumption Expenses incurred by the Company or any of the Company Subsidiaries under this Section 5.21Tax Protection Agreement.