Common use of Special Purpose Entity/Separateness Clause in Contracts

Special Purpose Entity/Separateness. (a) Until the Debt has been paid in full, Borrower hereby represents, warrants and covenants that each of Borrower and Principal is, shall be and shall continue to be a Special Purpose Entity. Notwithstanding anything to the contrary contained herein, it is understood and agreed that in no event shall any direct or indirect member, partner or other interest-holder in Borrower or Principal be required to make any additional capital contributions or loans or otherwise provide funds to Borrower or Principal for any reason, including in order for it to be a “Special Purpose Entity” hereunder. (b) The representations, warranties and covenants set forth in Section 4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document. (c) Any and all of the stated facts and assumptions made in any Insolvency Opinion, including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects, and Borrower will have complied and will comply with all of the stated facts and assumptions made with respect to it in any Insolvency Opinion. Each Affiliate of Borrower with respect to which an assumption is made or a fact stated in any Insolvency Opinion will have complied and will comply with all such assumptions and facts in each case with respect to it in any such Insolvency Opinion. Borrower covenants that in connection with any Additional Insolvency Opinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made therein. (d) Borrower covenants and agrees that (i) Borrower shall provide Lender with five (5) days’ prior written notice prior to the removal of an Independent Director of any of Borrower and (ii) no Independent Director shall be removed other than for Cause. (e) The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that except for duties to Borrower as set forth in the Organizational Documents (including duties to the member and Borrower’s creditors solely to the extent of their respective economic interests in Borrower, but excluding (i) all other interests of the member, (ii) the interests of other Affiliates of Borrower, and (iii) the interests of any group of Affiliates of which Borrower is a part), the Independent Directors shall not have any fiduciary duties to the member, any officer or any other Person bound by the applicable Borrower’s or Principal’s Organizational Documents; provided, however, the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that to the fullest extent permitted by law, including Section 18-1101(e) of the Delaware limited liability company Act, an Independent Director shall not be liable to Borrower, the member or any other Person bound by the applicable Borrower’s or Principal’s Organizational Documents for breach of contract or breach of duties (including fiduciary duties), unless the Independent Director acted in bad faith or engaged in willful misconduct. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that all right, power and authority of the Independent Directors shall be limited to the extent necessary to exercise those rights and perform those duties specifically set forth in the applicable Borrower’s or Principal’s Organizational Documents. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that notwithstanding any other provision of the applicable Borrower’s or Principal’s Organizational Documents to the contrary, each Independent Director, in its capacity as an Independent Director, may only act, vote or otherwise participate in those matters referred to in Section 9(d)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically required by the applicable Organizational Documents, and such Independent Director’s act, vote or other participation shall not be required for the validity of any action taken by the board of directors of such Borrower or Principal unless, pursuant to the provisions of Section 9(d)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically provided in the applicable Organizational Documents, such action would be invalid in the absence of the affirmative vote or consent of such Independent Director. (f) Any amendment or restatement of any organizational document of Borrower was accomplished in accordance with, and was permitted by, the relevant provisions of said document prior to its amendment or restatement from time to time. (g) Any assignment of limited liability company interests in Borrower, and the admission of the assignee as a member of Borrower, was accomplished in accordance with, and was permitted by, the limited liability company agreement of Borrower as in effect at such time.

Special Purpose Entity/Separateness. (a) Until Except as disclosed in the Debt has been paid in fullrespective “prior acts” certificates delivered to Lender on the Closing Date, Borrower hereby representsBorrower, warrants Mezzanine A Borrower, Mortgage Borrower, Operating Lessee, Operating Lessee GP and covenants that North Beach Company are each of Borrower and Principal is, shall be and shall continue to be a Special Purpose Entity. Notwithstanding anything to the contrary contained herein, it is understood and agreed that in no event shall any direct or indirect member, partner or other interest-holder in Borrower or Principal be required to make any additional capital contributions or loans or otherwise provide funds to Borrower or Principal for any reason, including in order for it to be a “Special Purpose Entity” hereunder. (b) The representations, warranties and covenants set forth in Section 4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document. (c) Any and all of the stated facts and assumptions made in any Insolvency Opinion, including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects, and Borrower Borrower, Mortgage Borrower, Operating Lessee, Operating Lessee GP and North Beach Company will have complied and will comply with all of the stated facts and assumptions made with respect to it in any Insolvency Opinion, in each case as of the date of such Insolvency Opinion. Each Affiliate of Borrower To Borrower’s knowledge each entity other than Borrower, Mortgage Borrower, Operating Lessee, Operating Lessee GP or North Beach Company with respect to which an assumption is made or a fact stated in any Insolvency Opinion will have complied and will comply with all such of the assumptions made and facts in each case stated with respect to it in any such Insolvency Opinion. Borrower covenants that , in connection with any Additional each case as of the date of such Insolvency Opinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made thereinOpinion. (d) Borrower covenants and agrees that (i) Borrower shall provide Lender hereby represents with five (5) days’ prior written notice prior respect to the removal of an Independent Director of any of Borrower and (ii) no Independent Director shall be removed other than for Cause. (e) The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that except for duties to Borrower as set forth in the Organizational Documents (including duties to the member and Borrower’s creditors solely to the extent of their respective economic interests in itself, Mortgage Borrower, but excluding (i) all other interests of the memberOperating Lessee, (ii) the interests of other Affiliates of Borrower, Operating Lessee GP and (iii) the interests of North Beach Company that any group of Affiliates of which Borrower is a part), the Independent Directors shall not have any fiduciary duties to the member, any officer or any other Person bound by the applicable Borrower’s or Principal’s Organizational Documents; provided, however, the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that to the fullest extent permitted by law, including Section 18-1101(e) of the Delaware limited liability company Act, an Independent Director shall not be liable to Borrower, the member or any other Person bound by the applicable Borrower’s or Principal’s Organizational Documents for breach of contract or breach of duties (including fiduciary duties), unless the Independent Director acted in bad faith or engaged in willful misconduct. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that all right, power and authority of the Independent Directors shall be limited to the extent necessary to exercise those rights and perform those duties specifically set forth in the applicable Borrower’s or Principal’s Organizational Documents. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that notwithstanding any other provision of the applicable Borrower’s or Principal’s Organizational Documents to the contrary, each Independent Director, in its capacity as an Independent Director, may only act, vote or otherwise participate in those matters referred to in Section 9(d)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically required by the applicable Organizational Documents, and such Independent Director’s act, vote or other participation shall not be required for the validity of any action taken by the board of directors of such Borrower or Principal unless, pursuant to the provisions of Section 9(d)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically provided in the applicable Organizational Documents, such action would be invalid in the absence of the affirmative vote or consent of such Independent Director. (f) Any amendment or restatement of any organizational document of Borrower was Borrower, Mortgage Borrower, Operating Lessee, Operating Lessee GP and North Beach Company, as applicable, has been accomplished in accordance with, and was permitted by, the relevant provisions of said such document prior to its amendment or restatement from time to time. (ge) Borrower hereby represents with respect to itself, Mezzanine A Borrower, Mortgage Borrower, Operating Lessee, Operating Lessee GP and North Beach Company: (i) [intentionally omitted] (ii) [intentionally omitted] (iii) its business has been limited solely to, (A) acquiring, owning, holding and managing the Pledged Collateral, (B) entering into financings and refinancings of the Pledged Collateral and (C) transacting any and all lawful business that was incident, necessary and appropriate to accomplish the foregoing; (iv) [intentionally omitted] (v) it has not engaged in any business other than as set forth in (i), (ii), (iii) or (iv) above, applicable; (vi) it has not entered into any contract or agreement with any of its Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing of Borrower, Mortgage Borrower, Operating Lessee, Operating Lessee GP or North Beach Company, except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s length transaction with an unrelated party, except as may have been expressly permitted pursuant to the terms of any prior financings; (vii) it has not made (a) any loans or other extensions of credit to any Person or (b) acquired or held evidence of indebtedness issued by any other Person or entity, in either of the case of (a) or (b), other than (1) extensions of credit such as security deposits made in the ordinary course of business relating to the ownership and operation of the Pledged Collateral made to an entity that is not an Affiliate of or subject to common ownership with such entity or (2) cash and investment grade securities issued by an entity that is not an Affiliate of or subject to common ownership with such entity; (viii) it has paid its debts and liabilities from its assets as the same have become due. (ix) it has done or caused to be done all things necessary to observe organizational formalities and preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; (x) except as expressly permitted under the Loan Documents and except as expressly permitted pursuant to the terms of any prior financing, it has maintained all of its books, records, financial statements and bank accounts separate from those of any other Person and Borrower’s assets have not been listed as assets on the financial statement of any other Person. Borrower has filed its own tax returns (except to the extent that it has been a tax disregarded entity not required to file tax returns under applicable law). Borrower has maintained its books, records, resolutions and agreements as official records; (xi) it has been, and at all times has held itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing), has corrected any known misunderstanding regarding its status as a separate entity, has conducted its business in its own name, has not identified itself or any of its Affiliates as a division or part of the other and has maintained and utilized separate stationery, invoices and checks; (xii) except as expressly permitted under the Loan Documents and except as expressly permitted pursuant to the terms of any prior financing, it has not commingled its assets with those of any other Person and has held all of its assets in its own name; (xiii) except as expressly permitted pursuant to the terms of any prior financing, and except for obligations under the Loan Documents and guarantees or obligations that have been released or discharged or that will be released or discharged as of the closing of the Loan, it has not guaranteed or become obligated for the debts of any other Person and has not held itself out as being responsible for the debts or obligations of any other Person; (xiv) it has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or any of constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing; (xv) except pursuant to prior financings that have been repaid, it has not granted a security interest or lien in, to or upon, or pledged or otherwise encumbered any of its assets for the benefit of any other Person other than with respect to loans secured by the Properties and no such security interest, lien, pledge or other encumbrance remains outstanding except in connection with the Loan; (xvi) it has maintained adequate capital in light of its contemplated business operations; (xvii) it has maintained a sufficient number of employees in light of its contemplated business operations and has paid the salaries of its own employees from its own funds; (xviii) except as set forth in the definition of Special Purpose Entity in Section 1.1, it has not owned any subsidiary or any equity interest in any other Person. (xix) it has not made loans to any other person that have not been released or discharged nor has it bought or held evidence of indebtedness issued by any other person or entity; (xx) reserved; (xxi) it has not incurred any Indebtedness that is still outstanding other than Indebtedness that is permitted under the Loan Documents; (xxii) except as set forth in the Insolvency Opinion, it is not now, nor has ever been, party to any lawsuit, arbitration, summons, or legal proceeding that is still pending or that resulted in a judgment against it that has not been paid in full; (xxiii) it has no material contingent or actual obligations not related to the Pledged Collateral; (xxiv) it is and has since its formation been duly formed, validly existing, and in good standing in the state of its formation and in all other jurisdictions where it is qualified to do business; (xxv) it has not had any of its obligations guaranteed by an Affiliate, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the Loan) or guarantees that are expressly contemplated by the Loan Documents; (xxvi) [intentionally omitted] (xxvii) to Borrower’s knowledge, has no judgments or liens of any nature against it except for tax liens not yet delinquent; (xxviii) is in compliance in all material respects with all laws, regulations, and orders applicable to it and, except as otherwise disclosed in this Agreement, has received all material permits necessary for it to operate; (xxix) is not involved in any material dispute with any taxing authority; (xxx) has paid all taxes which it owes except as permitted pursuant to this Agreement; (xxxi) has no material contingent or actual obligations not related to the Pledged Collateral; and (xxxii) none of the current owners of equity interests in Borrower is affiliated with any of the former owners of equity interests in Borrower. (f) Any assignment of limited liability company interests in Borrower, Mezzanine A Borrower, Mortgage Borrower, Operating Lessee, Operating Lessee GP and North Beach Company, and the admission of the assignee as a member of Borrower, was Mezzanine A Borrower, Mortgage Borrower, Operating Lessee, Operating Lessee GP and North Beach Company, as applicable, were accomplished in accordance with, and was were permitted by, the limited liability company agreement of Borrower Borrower, Mezzanine A Borrower, Mortgage Borrower, Operating Lessee, Operating Lessee GP or North Beach Company, as applicable, as in effect at such time.

Special Purpose Entity/Separateness. (a) Until the Debt has been paid in full, Borrower hereby represents, warrants and covenants that each of Borrower and Principal is, shall be and shall continue to be a Special Purpose Entity. Notwithstanding anything to the contrary contained herein, it is understood and agreed that in no event shall any direct or indirect member, partner or other interest-holder in Borrower or Principal be required to make any additional capital contributions or loans or otherwise provide funds to Borrower or Principal for any reason, including in order for it to be a “Special Purpose Entity” hereunder. (b) The representations, warranties and covenants set forth in Section 4.1.30(a4.1.30 (a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document. (c) Any and all of the stated facts and assumptions made in any Insolvency Opinion, including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects, and Borrower will have complied and will comply with all of the stated facts and assumptions made with respect to it in any Insolvency Opinion. Each Affiliate of Borrower with respect to which an assumption is made or a fact stated in any Insolvency Opinion will have complied and will comply with all such assumptions and facts in each case with respect to it in any such Insolvency Opinion. Borrower covenants that in connection with any Additional Insolvency Opinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made therein. (d) Borrower covenants and agrees that (i) Borrower shall provide Lender with five (5) days’ prior written notice prior to the removal of an Independent Director of any of Borrower and (ii) no Independent Director shall be removed other than for Cause. (e) The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that except for duties to Borrower as set forth in the Organizational Documents (including duties to the member and Borrower’s creditors solely to the extent of their respective economic interests in Borrower, but excluding (i) all other interests of the member, (ii) the interests of other Affiliates of Borrower, and (iii) the interests of any group of Affiliates of which Borrower is a part), the Independent Directors shall not have any fiduciary duties to the member, any officer or any other Person bound by the applicable Borrower’s or Principal’s Organizational Documents; provided, however, the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that to the fullest extent permitted by law, including Section 18-1101(e) of the Delaware limited liability company Act, an Independent Director shall not be liable to Borrower, the member or any other Person bound by the applicable Borrower’s or Principal’s Organizational Documents for breach of contract or breach of duties (including fiduciary duties), unless the Independent Director acted in bad faith or engaged in willful misconduct. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that all right, power and authority of the Independent Directors shall be limited to the extent necessary to exercise those rights and perform those duties specifically set forth in the applicable Borrower’s or Principal’s Organizational Documents. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that notwithstanding any other provision of the applicable Borrower’s or Principal’s Organizational Documents to the contrary, each Independent Director, in its capacity as an Independent Director, may only act, vote or otherwise participate in those matters referred to in Section 9(d)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically required by the applicable Organizational Documents, and such Independent Director’s act, vote or other participation shall not be required for the validity of any action taken by the board of directors of such Borrower or Principal unless, pursuant to the provisions of Section 9(d)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically provided in the applicable Organizational Documents, such action would be invalid in the absence of the affirmative vote or consent of such Independent Director. (f) Any amendment or restatement of any organizational document of Borrower was accomplished in accordance with, and was permitted by, the relevant provisions of said document prior to its amendment or restatement from time to time. (g) Any assignment of limited liability company interests in Borrower, and the admission of the assignee as a member of Borrower, was accomplished in accordance with, and was permitted by, the limited liability company agreement of Borrower as in effect at such time.

Special Purpose Entity/Separateness. (a) Until the Debt Except as disclosed on Schedule 4.1.30, each Loan Party has at all times been paid in full, Borrower hereby represents, warrants and covenants that each of Borrower and Principal is, shall be and shall continue to be is a Special Purpose Entity. Notwithstanding anything to the contrary contained herein, it is understood and agreed that in no event shall any direct or indirect member, partner or other interest-holder in Borrower or Principal be required to make any additional capital contributions or loans or otherwise provide funds to Borrower or Principal for any reason, including in order for it to be a “Special Purpose Entity” hereunder. (b) The representations, representations and warranties and covenants set forth in Section 4.1.30(a) 4.1.30 shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document. (c) Any and all of the stated facts and assumptions made in any Insolvency Opinion, including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects, and Borrower each Loan Party will have complied and will comply with all of the stated facts and assumptions made with respect to it in any Insolvency Opinion, in each case as of the date of such Insolvency Opinion. Each Affiliate of Borrower To Borrower’s and Operating Lessee’s knowledge, each entity other than the Loan Parties with respect to which an assumption is made or a fact stated in any Insolvency Opinion will have complied and will comply with all such of the assumptions made and facts in each case stated with respect to it in any such Insolvency Opinion. Borrower covenants that , in connection with any Additional each case as of the date of such Insolvency Opinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made thereinOpinion. (d) Borrower covenants Each Loan Party hereby represents with respect to itself and agrees each other Loan Party that (i) Borrower shall provide Lender with five (5) days’ prior written notice any amendment or restatement of any organizational document of any Loan Party has been accomplished in accordance with, and was permitted by, the relevant provisions of such document prior to the removal of an Independent Director of any of Borrower and (ii) no Independent Director shall be removed other than for Causeits amendment or restatement from time to time. (e) Any amendment or restatement of any Loan Party’s organizational documents was accomplished in accordance with, and was permitted by, the relevant provisions of applicable law and the relevant provisions of said document prior to its amendment or restatement from time to time. (f) Each Loan Party that is a limited liability company and Principal has at all times had at least one member and each Loan Party that is a limited partnership has at all times had one general partner and one limited partner that were different Persons, as applicable. (g) Any payments made pursuant to the Loan Documents to or for the benefit of any Borrower or any Mezzanine Borrower shall constitute distributions to or at the discretion of the applicable equity owner of such entity. (h) The Organizational Documents for each Borrower and Principal Loan Party that is a Delaware limited liability company shall provide that except for duties to Borrower any Loan Party as set forth in the Organizational Documents (including duties to the member and Borrowerany Loan Party’s creditors solely to the extent of their respective economic interests in Borrowersuch Loan Party, but excluding (i) all other interests of the member, (ii) the interests of other Affiliates of Borrowera Loan Party, and (iii) the interests of any group of Affiliates of which Borrower a Loan Party is a part), the Independent Directors shall not have any fiduciary duties to the member, any officer or any other Person bound by the applicable Borrower’s or PrincipalLoan Party’s Organizational Documents; provided, however, the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing. The Organizational Documents for each Borrower and Principal Loan Party’s that is a Delaware limited liability company shall provide that to the fullest extent permitted by law, including Section 18-1101(e) of the Delaware limited liability company Limited Liability Company Act, an Independent Director shall not be liable to Borrower, the member or any other Person bound by the applicable Borrower’s or PrincipalLoan Party’s Organizational Documents for breach of contract or breach of duties (including fiduciary duties), unless the Independent Director acted in bad faith or engaged in willful misconduct. The Organizational Documents for each Borrower and Principal Loan Party that is a Delaware limited liability company shall provide that all right, power and authority of the Independent Directors shall be limited to the extent necessary to exercise those rights and perform those duties specifically set forth in the applicable Borrower’s or PrincipalLoan Party’s Organizational Documents. The Organizational Documents for each Borrower and Principal Loan Party that is a Delaware limited liability company shall provide that notwithstanding any other provision of the applicable Borrower’s or PrincipalLoan Party’s Organizational Documents to the contrary, each Independent Director, in its capacity as an Independent Director, may only act, vote or otherwise participate in those matters referred to in Section 9(d)(iii9(j)(iii) of the applicable Borrower’s or PrincipalLoan Party’s Organizational Documents or as otherwise specifically required by the applicable Organizational Documents, and such Independent Director’s act, vote or other participation shall not be required for the validity of any action taken by the board of directors of such Borrower or Principal unless, pursuant to the provisions of Section 9(d)(iii9(j)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically provided in the applicable Organizational Documents, such action would be invalid in the absence of the affirmative vote or consent of such Independent Director. The Organizational Documents of each Loan Party that is not a Delaware limited liability company shall contain terms and provisions similar to the terms and provisions set forth in this subclause (h) to the extent permitted by applicable law. (fi) Any amendment Without limiting the foregoing in this Section 4.1.30, each Loan Party and except as set forth on Schedule 4.1.30 (i) has since the date of its formation been duly formed, validly existing and in good standing in the state of its incorporation or restatement of formation and in all other jurisdictions where it is qualified to do business, (ii) subject to its right to contest taxes in good faith by appropriate proceedings, is not involved in any organizational document of Borrower was accomplished dispute with any taxing authority which is reasonably likely to have a material adverse effect on any Individual Property or the Loan Parties (taken as a whole), (iii) is not now and has never been, party to any lawsuit, arbitration, summons or legal proceeding that resulted in accordance witha judgment against it that has not been paid in full, and was permitted by(iv) has all times since the date of its formation been a single purpose, bankruptcy remote entity and complied with the relevant provisions of said document prior to separateness covenants set forth in its amendment or restatement from time to timerespective Organizational Documents. (g) Any assignment of limited liability company interests in Borrower, and the admission of the assignee as a member of Borrower, was accomplished in accordance with, and was permitted by, the limited liability company agreement of Borrower as in effect at such time.

Special Purpose Entity/Separateness. (a) Until the Debt has been paid in full, Borrower hereby represents, warrants and covenants that each of Borrower and Principal isNLO Pledgor LLC, a Delaware limited liability company, shall be and shall continue to be a Special Purpose Entity. Notwithstanding anything to the contrary contained herein, it is understood and agreed that in no event shall any direct or indirect member, partner or other interest-holder in Borrower or Principal be required to make any additional capital contributions or loans or otherwise provide funds to Borrower or Principal for any reason, including in order for it to be a “Special Purpose Entity” hereunder. (b) The representations, warranties and covenants set forth in Section 4.1.30(a4.1.30 (a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Documentuntil repayment in full of the Debt. (c) Any and all of the stated facts and assumptions made in any Insolvency Opinion, including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects, and Borrower will have complied and will comply with all of the stated facts and assumptions made with respect to it in any Insolvency Opinion. Each Affiliate of entity other than Borrower with respect to which an assumption is made or a fact stated in any Insolvency Opinion will have complied and will comply with all such of the assumptions made and facts in each case stated with respect to it in any such Insolvency Opinion. Borrower covenants that in connection with any Additional Insolvency Opinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made therein. (d) Borrower covenants and agrees that (i) Borrower shall provide Lender with five fifteen (515) days’ prior written notice prior to the removal of an Independent Director of Xxxxxxxx (other than to the extent resulting from the death, disability, resignation (unless such resignation is requested or demanded by any Borrower Party) or incapacity of Borrower the applicable Independent Director), and (ii) no Independent Director shall be removed other than for CauseXxxxx. (e) The Organizational Documents organizational documents for each Borrower and Principal that is a Delaware limited liability company NLO Pledgor LLC shall provide that except for duties to Borrower such Person as set forth in the Organizational Documents organizational documents (including duties to the member and Borrowersuch Person’s creditors solely to the extent of their respective economic interests in Borrowersuch Person, but excluding (i) all other interests of the member, (ii) the interests of other Affiliates of Borrowersuch Person, and (iii) the interests of any group of Affiliates of which Borrower such Person is a part), the Independent Directors shall not have any fiduciary duties to the member, any officer or any other Person bound by the applicable Borrower’s or Principal’s Organizational Documentsorganizational documents; provided, however, the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing. The Organizational Documents organizational documents for each Borrower and Principal that is a Delaware limited liability company NLO Pledgor LLC shall provide that to the fullest extent permitted by law, including Section 18-1101(e) of the Delaware limited liability company Limited Liability Company Act, an Independent Director shall not be liable to Borrowersuch Person, the member or any other Person bound by the applicable Borrower’s or Principal’s Organizational Documents organizational documents for breach of contract or breach of duties (including fiduciary duties), unless the Independent Director acted in bad faith or engaged in willful misconduct. The Organizational Documents organizational documents for each Borrower and Principal that is a Delaware limited liability company NLO Pledgor LLC shall provide that all right, power and authority of the Independent Directors shall be limited to the extent necessary to exercise those rights and perform those duties specifically set forth in the applicable Borrower’s or Principal’s Organizational Documentsorganizational documents. The Organizational Documents organizational documents for each Borrower and Principal that is a Delaware limited liability company NLO Pledgor LLC shall provide that notwithstanding any other provision of the applicable Borrower’s or Principal’s Organizational Documents organizational documents to the contrary, each Independent Director, in its capacity as an Independent Director, may only act, vote or otherwise participate in those matters referred to in Section 9(d)(iiiclause (x) of the applicable Borrower’s or Principal’s Organizational Documents definition of “Special Purpose Entity” or as otherwise specifically required by the applicable Organizational Documentsorganizational documents, and such Independent Director’s act, vote or other participation shall not be required for the validity of any action taken by the member or board of directors of such Borrower or Principal Person unless, pursuant to the provisions of Section 9(d)(iii9(c)(iii) of the applicable Borrower’s or Principal’s Organizational Documents operating agreement or as otherwise specifically provided in the applicable Organizational Documentsorganizational documents, such action would be invalid in the absence of the affirmative vote or consent of such Independent Director. (f) Any amendment If, at any time during the term of the Loan, Senior Lender is not requiring the Borrower Parties (as defined in the Senior Loan Agreement) to comply with the provisions of Section 4.1.30 of the Senior Loan Agreement or restatement of any organizational document of Borrower was accomplished the Senior Loan has been refinanced or otherwise repaid in full in accordance with, and was permitted by, with the relevant provisions of said document prior to its amendment or restatement from time to time. (g) Any assignment of limited liability company interests in Borrower, and the admission terms of the assignee Senior Loan Documents, then Borrower covenants and agrees with Lender that such Borrower Parties (as a member defined in the Senior Loan Agreement) shall continue to comply with Section 4.1.30 of Borrower, was accomplished in accordance with, the Senior Loan Agreement and was permitted by, the limited liability company agreement of Borrower as in effect at such timeprovisions and all related defined terms shall be incorporated by reference herein.

Special Purpose Entity/Separateness. (a) Until Except as disclosed in the Debt has been paid in fullrespective “prior acts” certificates delivered to Lender on the Closing Date, Borrower hereby representsBorrower, warrants Mortgage Borrower, Operating Lessee, Operating Lessee GP and covenants that North Beach Company are each of Borrower and Principal is, shall be and shall continue to be a Special Purpose Entity. Notwithstanding anything to the contrary contained herein, it is understood and agreed that in no event shall any direct or indirect member, partner or other interest-holder in Borrower or Principal be required to make any additional capital contributions or loans or otherwise provide funds to Borrower or Principal for any reason, including in order for it to be a “Special Purpose Entity” hereunder. (b) The representations, warranties and covenants set forth in Section 4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document. (c) Any and all of the stated facts and assumptions made in any Insolvency Opinion, including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects, and Borrower Borrower, Mortgage Borrower, Operating Lessee, Operating Lessee GP and North Beach Company will have complied and will comply with all of the stated facts and assumptions made with respect to it in any Insolvency Opinion, in each case as of the date of such Insolvency Opinion. Each Affiliate of Borrower To Borrower’s knowledge each entity other than Borrower, Mortgage Borrower, Operating Lessee, Operating Lessee GP or North Beach Company with respect to which an assumption is made or a fact stated in any Insolvency Opinion will have complied and will comply with all such of the assumptions made and facts in each case stated with respect to it in any such Insolvency Opinion. Borrower covenants that , in connection with any Additional each case as of the date of such Insolvency Opinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made thereinOpinion. (d) Borrower covenants and agrees that (i) Borrower shall provide Lender hereby represents with five (5) days’ prior written notice prior respect to the removal of an Independent Director of any of Borrower and (ii) no Independent Director shall be removed other than for Cause. (e) The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that except for duties to Borrower as set forth in the Organizational Documents (including duties to the member and Borrower’s creditors solely to the extent of their respective economic interests in itself, Mortgage Borrower, but excluding (i) all other interests of the memberOperating Lessee, (ii) the interests of other Affiliates of Borrower, Operating Lessee GP and (iii) the interests of North Beach Company that any group of Affiliates of which Borrower is a part), the Independent Directors shall not have any fiduciary duties to the member, any officer or any other Person bound by the applicable Borrower’s or Principal’s Organizational Documents; provided, however, the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that to the fullest extent permitted by law, including Section 18-1101(e) of the Delaware limited liability company Act, an Independent Director shall not be liable to Borrower, the member or any other Person bound by the applicable Borrower’s or Principal’s Organizational Documents for breach of contract or breach of duties (including fiduciary duties), unless the Independent Director acted in bad faith or engaged in willful misconduct. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that all right, power and authority of the Independent Directors shall be limited to the extent necessary to exercise those rights and perform those duties specifically set forth in the applicable Borrower’s or Principal’s Organizational Documents. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that notwithstanding any other provision of the applicable Borrower’s or Principal’s Organizational Documents to the contrary, each Independent Director, in its capacity as an Independent Director, may only act, vote or otherwise participate in those matters referred to in Section 9(d)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically required by the applicable Organizational Documents, and such Independent Director’s act, vote or other participation shall not be required for the validity of any action taken by the board of directors of such Borrower or Principal unless, pursuant to the provisions of Section 9(d)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically provided in the applicable Organizational Documents, such action would be invalid in the absence of the affirmative vote or consent of such Independent Director. (f) Any amendment or restatement of any organizational document of Borrower was Borrower, Mortgage Borrower, Operating Lessee, Operating Lessee GP and North Beach Company, as applicable, has been accomplished in accordance with, and was permitted by, the relevant provisions of said such document prior to its amendment or restatement from time to time. (ge) Borrower hereby represents with respect to itself, Mortgage Borrower, Operating Lessee, Operating Lessee GP and North Beach Company: (i) [intentionally omitted] (ii) [intentionally omitted] (iii) its business has been limited solely to, (A) acquiring, owning, holding and managing the Pledged Collateral, (B) entering into financings and refinancings of the Pledged Collateral and (C) transacting any and all lawful business that was incident, necessary and appropriate to accomplish the foregoing; (iv) [intentionally omitted] (v) it has not engaged in any business other than as set forth in (i), (ii), (iii) or (iv) above, applicable; (vi) it has not entered into any contract or agreement with any of its Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing of Borrower, Mortgage Borrower, Operating Lessee, Operating Lessee GP or North Beach Company, except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s length transaction with an unrelated party, except as may have been expressly permitted pursuant to the terms of any prior financings; (vii) it has not made (a) any loans or other extensions of credit to any Person or (b) acquired or held evidence of indebtedness issued by any other Person or entity, in either of the case of (a) or (b), other than (1) extensions of credit such as security deposits made in the ordinary course of business relating to the ownership and operation of the Pledged Collateral made to an entity that is not an Affiliate of or subject to common ownership with such entity or (2) cash and investment grade securities issued by an entity that is not an Affiliate of or subject to common ownership with such entity; (viii) it has paid its debts and liabilities from its assets as the same have become due. (ix) it has done or caused to be done all things necessary to observe organizational formalities and preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; (x) except as expressly permitted under the Loan Documents and except as expressly permitted pursuant to the terms of any prior financing, it has maintained all of its books, records, financial statements and bank accounts separate from those of any other Person and Borrower’s assets have not been listed as assets on the financial statement of any other Person. Borrower has filed its own tax returns (except to the extent that it has been a tax disregarded entity not required to file tax returns under applicable law). Borrower has maintained its books, records, resolutions and agreements as official records; (xi) it has been, and at all times has held itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing), has corrected any known misunderstanding regarding its status as a separate entity, has conducted its business in its own name, has not identified itself or any of its Affiliates as a division or part of the other and has maintained and utilized separate stationery, invoices and checks; (xii) except as expressly permitted under the Loan Documents and except as expressly permitted pursuant to the terms of any prior financing, it has not commingled its assets with those of any other Person and has held all of its assets in its own name; (xiii) except as expressly permitted pursuant to the terms of any prior financing, and except for obligations under the Loan Documents and guarantees or obligations that have been released or discharged or that will be released or discharged as of the closing of the Loan, it has not guaranteed or become obligated for the debts of any other Person and has not held itself out as being responsible for the debts or obligations of any other Person; (xiv) it has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or any of constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing; (xv) except pursuant to prior financings that have been repaid, it has not granted a security interest or lien in, to or upon, or pledged or otherwise encumbered any of its assets for the benefit of any other Person other than with respect to loans secured by the Properties and no such security interest, lien, pledge or other encumbrance remains outstanding except in connection with the Loan; (xvi) it has maintained adequate capital in light of its contemplated business operations; (xvii) it has maintained a sufficient number of employees in light of its contemplated business operations and has paid the salaries of its own employees from its own funds; (xviii) except as set forth in the definition of Special Purpose Entity in Section 1.1, it has not owned any subsidiary or any equity interest in any other Person. (xix) it has not made loans to any other person that have not been released or discharged nor has it bought or held evidence of indebtedness issued by any other person or entity; (xx) reserved; (xxi) it has not incurred any Indebtedness that is still outstanding other than Indebtedness that is permitted under the Loan Documents; (xxii) except as set forth in the Insolvency Opinion, it is not now, nor has ever been, party to any lawsuit, arbitration, summons, or legal proceeding that is still pending or that resulted in a judgment against it that has not been paid in full; (xxiii) it has no material contingent or actual obligations not related to the Pledged Collateral; (xxiv) it is and has since its formation been duly formed, validly existing, and in good standing in the state of its formation and in all other jurisdictions where it is qualified to do business; (xxv) it has not had any of its obligations guaranteed by an Affiliate, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the Loan) or guarantees that are expressly contemplated by the Loan Documents; (xxvi) [intentionally omitted] (xxvii) to Borrower’s knowledge, has no judgments or liens of any nature against it except for tax liens not yet delinquent; (xxviii) is in compliance in all material respects with all laws, regulations, and orders applicable to it and, except as otherwise disclosed in this Agreement, has received all material permits necessary for it to operate; (xxix) is not involved in any material dispute with any taxing authority; (xxx) has paid all taxes which it owes except as permitted pursuant to this Agreement; (xxxi) has no material contingent or actual obligations not related to the Pledged Collateral; and (xxxii) none of the current owners of equity interests in Borrower is affiliated with any of the former owners of equity interests in Borrower. (f) Any assignment of limited liability company interests in Borrower, Mortgage Borrower, Operating Lessee, Operating Lessee GP and North Beach Company, and the admission of the assignee as a member of Borrower, was Mortgage Borrower, Operating Lessee, Operating Lessee GP and North Beach Company, as applicable, were accomplished in accordance with, and was were permitted by, the limited liability company agreement of Borrower Borrower, Mortgage Borrower, Operating Lessee, Operating Lessee GP or North Beach Company, as applicable, as in effect at such time.

Special Purpose Entity/Separateness. (a) Until the Debt has been paid in full, Borrower hereby represents, warrants and covenants that each of Borrower and Principal is, shall be each SPE Constituent Entity is and shall continue to be will remain a Special Purpose Entity. Notwithstanding anything to the contrary contained herein, it is understood and agreed that in no event shall any direct or indirect member, partner or other interest-holder in Borrower or Principal be required to make any additional capital contributions or loans or otherwise provide funds to Borrower or Principal for any reason, including in order for it to be a “Special Purpose Entity” hereunder. (b) The representations, representations and warranties and covenants set forth in Section 4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document. (c) Any amendment or amendment and all restatement of any of Borrower’s or any of SPE Constituent Entity’s organizational documents on or prior to the Closing Date has been accomplished in accordance with, and was permitted by, the relevant provisions of each such organizational document (as the same existed prior to such amendment or amendment and restatement). (d) All of the stated facts and assumptions made in any the Insolvency Opinion, including, but not limited to, any exhibits attached thereto, are true and correct and any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects, correct. Borrower and Borrower will each SPE Constituent Entity have complied and will comply with all of the stated facts and assumptions made with respect to it Borrower and each SPE Constituent Entity in the Insolvency Opinion. Borrower and each SPE Constituent Entity have complied with all of the stated facts and assumptions made with respect to Borrower in any Additional Insolvency Opinion. Each Affiliate of entity other than Borrower and each SPE Constituent Entity with respect to which an assumption is made or a fact stated in any the Insolvency Opinion will and any Additional Insolvency Opinion have complied and will comply with all such of the assumptions made and facts in each case stated with respect to it in the Insolvency Opinion and any such Additional Insolvency Opinion. Borrower covenants that in connection with any Additional Insolvency Opinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made therein. (d) Borrower covenants and agrees that (i) Borrower shall provide Lender with five (5) days’ prior written notice prior to the removal of an Independent Director of any of Borrower and (ii) no Independent Director shall be removed other than for Cause. (e) The Organizational Documents for each Borrower and Principal each SPE Constituent Entity hereby represents from the date of such entity’s formation (including, if applicable, since the date of formation of such entity’s predecessor by merger) to the date of this Agreement that it: (i) has not entered into any contract or agreement with any of its Affiliates, constituents, or owners, or any guarantors of any of its obligations or any Affiliate of any of the foregoing (individually, a “Related Party” and collectively, the “Related Parties”), except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party; (ii) has paid all of its debts and liabilities from its assets except with respect to prior debt that has been repaid in full; (iii) has done or caused to be done all things necessary to observe all organizational formalities applicable to it and to preserve its existence; (iv) has maintained all of its books, records, financial statements and bank accounts separate from those of any other Person; (v) has not had its assets listed as assets on the financial statement of any other Person; (vi) has filed its own tax returns (except to the extent that it has been a tax-disregarded entity not required to file tax returns under applicable law) and, if it is a corporation, has not filed a consolidated federal income tax return with any other Person; (vii) has been, and at all times has held itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other Related Party); (viii) has corrected any known misunderstanding regarding its status as a separate entity; (ix) has conducted all of its business and held all of its assets in its own name; (x) has not identified itself or any of its Affiliates as a division or part of the other; (xi) has maintained and utilized separate stationery, invoices and checks bearing its own name; (xii) has not commingled its assets with those of any other Person and has held all of its assets in its own name other than with other co-borrowers as may have been permitted under cash management systems with respect to prior debt that has been repaid in full; (xiii) has not guaranteed or become obligated for the debts of any other Person, except (A) in connection with the debt that has been repaid in full and (B) with respect to other Borrowers, in connection with this Loan; (xiv) has not held itself out as being responsible for the debts or obligations of any other Person, except with respect to the co-borrowers in connection with this Loan or prior debt that has been repaid in full or the other Borrower in connection with this Loan; (xv) has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Party; (xvi) has not pledged its assets to secure the obligations of any other Person except in connection with prior debt that has been repaid in full and no such pledge remains outstanding except with respect to the other Borrowers pursuant to the Loan Documents; (xvii) has maintained adequate capital in light of its contemplated business operations; (xviii) has maintained a sufficient number of employees in light of its contemplated business operations and has paid the salaries of its own employees from its own funds; (xix) has not owned any subsidiary or any equity interest in any other entity, except for any SPE Constituent Entity that is a Delaware general partner that was formed prior to the date hereof, with respect to its interest in the relevant limited liability company shall provide partnership; (xx) has not incurred any indebtedness that is still outstanding other than indebtedness that is permitted under the Loan Documents; and (xxi) has not had any of its obligations guaranteed by an Affiliate, except for duties guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the Loan) or except for (A) the Guaranty, (B) with respect to Borrower as set forth in the Organizational Documents (including duties other Borrowers pursuant to the member and Borrower’s creditors solely to the extent of their respective economic interests in Borrower, but excluding (i) all other interests of the member, (ii) the interests of other Affiliates of BorrowerLoan Documents, and (iiiC) the interests of any group of Affiliates of which Borrower is a part), the Independent Directors shall not have any fiduciary duties to the member, any officer or any other Person bound by the applicable Borrower’s or Principal’s Organizational DocumentsTI Guaranties; provided, however, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that to the fullest extent permitted by law, including Section 18-1101(e) obligations of the Delaware limited liability company Actguarantors under the TI Guaranties, an Independent Director shall not be liable to Borrowerif any, the member or any other Person bound by the applicable Borrower’s or Principal’s Organizational Documents for breach of contract or breach of duties (including fiduciary duties), unless the Independent Director acted in bad faith or engaged in willful misconduct. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that all right, power and authority of the Independent Directors shall be were limited to less than $25,000,000 and the extent necessary to exercise those rights TI Guaranties arose only upon the occurrence of specific, contingent events and perform those duties specifically set forth were limited in the applicable Borrower’s or Principal’s Organizational Documents. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that notwithstanding any other provision of the applicable Borrower’s or Principal’s Organizational Documents to the contrary, each Independent Director, in its capacity as an Independent Director, may only act, vote or otherwise participate in those matters referred to in Section 9(d)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically required by the applicable Organizational Documents, and such Independent Director’s act, vote or other participation shall not be required for the validity of any action taken by the board of directors of such Borrower or Principal unless, pursuant to the provisions of Section 9(d)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically provided in the applicable Organizational Documents, such action would be invalid in the absence of the affirmative vote or consent of such Independent Directorscope. (f) Any amendment With respect to any consents, waivers or restatement of any organizational document of Borrower was accomplished in accordance with, and was permitted by, the relevant provisions of said document prior amendments to its amendment or restatement from time to time. (g) Any assignment of limited liability company interests in Borrower, and the admission of the assignee as a member of Borrower, was accomplished in accordance with, and was permitted by, the limited liability company agreement of any limited liability company Borrower, or limited partnership agreement of any limited partnership Borrower, that were required to effect any assignment of a limited liability company interest in such limited liability company Borrower or assignment of a partnership interest in such limited partnership Borrower, as the case may be, or for the admission of an assignee as a member of a limited liability company Borrower, or as a partner of a limited partnership Borrower, has been obtained or accomplished in accordance with such limited liability company agreement or partnership agreement, as applicable, as in effect at the time of such timeassignment, and that any conditions to assignment of any limited liability company interest in a limited liability company Borrower or any partnership interest in a limited partnership Borrower, as the case may be, or for the admission of an assignee as a member of a limited liability company Borrower or as a partner of a limited partnership Borrower, as applicable, have been satisfied or waived. (g) Each Borrower that is a limited liability company has had at all times at least one member. (h) Each Borrower that is a limited partnership has had at all times at least one general partner and one limited partner that were different Persons.

Special Purpose Entity/Separateness. (a) Until the Debt has been paid in full, Borrower hereby represents, warrants and covenants that (i) Borrower is, shall be and shall continue to be a Special Purpose Entity and (ii) each of Mortgage Borrower and Principal is, shall be and shall continue to be a Special Purpose Entity. Notwithstanding anything to the contrary contained herein, it is understood and agreed that in no event shall any direct or indirect member, partner or other interest-holder in Borrower or Principal be required to make any additional capital contributions or loans or otherwise provide funds to Borrower or Principal for any reason, including in order for it to be a “Special Purpose Entity” hereunder. (b) The representations, warranties and covenants set forth in Section 4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document. (c) Any and all of the stated facts and assumptions made in any Insolvency Opinion, including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects, and Borrower and Principal will have complied and will comply with all of the stated facts and assumptions made with respect to it in any Insolvency Opinion. Each Affiliate of entity other than Borrower and Principal with respect to which an assumption is made or a fact stated in any Insolvency Opinion will have complied and will comply with all such of the assumptions made and facts in each case stated with respect to it in any such Insolvency Opinion. Borrower covenants that in connection with any Additional Insolvency Opinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made therein. (d) Borrower covenants and agrees that (i) Borrower shall provide Lender with five thirty (530) days’ prior written notice prior to the removal of an Independent Director of any of Borrower and (ii) no Independent Director shall be removed other than for Causeand/or Principal. (e) The Organizational Documents for each Anything contained herein to the contrary notwithstanding, if Borrower and Principal that is a Delaware limited liability company shall provide that except for duties meeting all of the requirements applicable to Borrower as a single-member limited liability company set forth in the Organizational Documents subsection (including duties to the member and Borrower’s creditors solely to the extent of their respective economic interests in Borrower, but excluding (i) all other interests of the member, (ii) the interests of other Affiliates of Borrower, and (iii) the interests of any group of Affiliates of which Borrower is a part), the Independent Directors shall not have any fiduciary duties to the member, any officer or any other Person bound by the applicable Borrower’s or Principal’s Organizational Documents; provided, however, the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that to the fullest extent permitted by law, including Section 18-1101(ex) of the Delaware limited liability company Act, an Independent Director shall not be liable to Borrower, the member or any other Person bound by the applicable Borrower’s or Principal’s Organizational Documents for breach definition of contract or breach of duties (including fiduciary duties), unless the Independent Director acted in bad faith or engaged in willful misconduct. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that all right, power and authority of the Independent Directors shall be limited to the extent necessary to exercise those rights and perform those duties specifically set forth in the applicable Borrower’s or Principal’s Organizational Documents. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that notwithstanding any other provision of the applicable Borrower’s or Principal’s Organizational Documents to the contrary, each Independent Director, in its capacity as an Independent Director, may only act, vote or otherwise participate in those matters referred to Special Purpose Entity in Section 9(d)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically required by the applicable Organizational Documents1.1 hereof, and such Independent Director’s act, vote or other participation then Principal shall not be required for the validity of any action taken by the board of directors of such Borrower or Principal unless, pursuant to the provisions of Section 9(d)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically provided in the applicable Organizational Documents, such action would be invalid in the absence of the affirmative vote or consent of such Independent Directora Special Purpose Entity. (f) Any amendment or restatement of any organizational document of Borrower was accomplished in accordance with, and was permitted by, the relevant provisions of said document prior to its amendment or restatement from time to time. (g) Any assignment of limited liability company interests in Borrower, and the admission of the assignee as a member of Borrower, was accomplished in accordance with, and was permitted by, the limited liability company agreement of Borrower as in effect at such time.

Special Purpose Entity/Separateness. (a) Until the Debt has been paid in full, Borrower hereby represents, warrants and covenants that each of Borrower and Principal is, shall be and shall continue to be a Special Purpose Entity. Notwithstanding anything to the contrary contained herein, it is understood and agreed that in no event shall any direct or indirect member, partner or other interest-holder in Borrower or Principal be required to make any additional capital contributions or loans or otherwise provide funds to Borrower or Principal for any reason, including in order for it to be a “Special Purpose Entity” hereunder. (b) The representations, warranties and covenants set forth in Section 4.1.30(a4.1.30 (a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document. (c) Any and all of the stated facts and assumptions made in any Insolvency Opinion, including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects, and Borrower and Principal will have complied and will comply with all of the stated facts and assumptions made with respect to it in any Insolvency Opinion. Each Affiliate of entity other than Borrower and Principal with respect to which an assumption is made or a fact stated in any Insolvency Opinion will have complied and will comply with all such of the assumptions made and facts in each case stated with respect to it in any such Insolvency Opinion. Borrower covenants that in connection with any Additional Insolvency Opinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made therein. (d) Borrower covenants and agrees that (i) Borrower shall provide Lender with five fifteen (515) days’ prior written notice prior to the removal of an Independent Director of any of Borrower and (ii) no Independent Director shall be removed other than for Causeand/or Principal. (e) The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that except for duties to Borrower as set forth in the Organizational Documents (including duties to the member and Borrower’s creditors solely to the extent of their respective economic interests in Borrower, but excluding (i) is and has always been duly formed, validly existing and in good standing in the state of its incorporation or formation and in all other interests jurisdictions where it is qualified to do business; (ii) has not had and does not have any judgments or liens of any nature against it (except for Liens for Taxes not yet due); (iii) has been and is in compliance with all Legal Requirements and has received and maintains all Licenses; (iv) is not the subject of, or currently involved in any capacity in, any pending or threatened litigation; (v) is not, and has not been, involved in any dispute with any taxing authority; (vi) has paid all Taxes and Other Charges; (vii) has never owned any property other the applicable Property; (viii) is not now and has not ever been a party to any lawsuit, arbitration, summons or legal proceeding; (ix) has not failed to provide Lender with complete financial statements that reflect a fair and accurate view of its financial condition; and (x) has no material contingent or actual obligations not related to the applicable Property. (i) Prior Lender is the current holder of the memberPrior Loan, (ii) the interests of other Affiliates Prior Loan has been indefeasibly satisfied in full on or before the date hereof, (iii) none of Borrower, Principal, nor Guarantor have any remaining liabilities or obligations in connection with the Prior Loan (other than environmental and other limited and customary indemnity obligations), (iiiiv) Prior Lender has released all collateral and security for the Prior Loan as of the date hereof, (v) the interests of any group of Affiliates of which Borrower is a part)Swap, the Independent Directors shall not have any fiduciary duties if any, relating to the memberPrior Loan, any officer has been terminated on or any other Person bound by before the applicable Borrower’s or Principal’s Organizational Documents; provideddate hereof, however, the foregoing shall not eliminate the implied contractual covenant (vi) all obligations of good faith and fair dealing. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that to Guarantor under such Swap, if any, have been satisfied in full on or before the fullest extent permitted by lawdate hereof, including Section 18-1101(e(vii) of the Delaware limited liability company Act, an Independent Director shall not be liable to Borrower, the member or any other Person bound by the applicable Borrower’s or Principal’s Organizational Documents for breach of contract or breach of duties (including fiduciary duties), unless the Independent Director acted in bad faith or engaged in willful misconduct. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that all right, power and authority of the Independent Directors shall be limited to the extent necessary to exercise those rights and perform those duties specifically set forth in the applicable Borrower’s or Principal’s Organizational Documents. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that notwithstanding any other provision of the applicable Borrower’s or Principal’s Organizational Documents to the contrary, each Independent Director, in its capacity as an Independent Director, may only act, vote or otherwise participate in those matters referred to in Section 9(d)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically required by the applicable Organizational Documents, and such Independent Director’s act, vote or other participation shall not be required for the validity of any action taken by the board of directors of such Borrower or Principal unless, pursuant to the provisions of Section 9(d)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically provided in the applicable Organizational Documents, such action would be invalid in the absence of the affirmative vote or consent of such Independent Director. (f) Any amendment or restatement of any organizational document of Borrower was accomplished in accordance with, and was permitted by, the relevant provisions of said document prior to its amendment or restatement from time to time. (g) Any assignment of limited liability company interests in Borrower, and the admission of the assignee as a member none of Borrower, was accomplished Principal, nor Guarantor have any remaining liabilities or obligations in accordance withconnection with such Swap, if any, and (viii) either no collateral or security was permitted byprovided in connection with such Swap, if any, or all such collateral or security given in connection therewith has been released as of the limited liability company agreement of Borrower as in effect at such timedate hereof.

Special Purpose Entity/Separateness. (a) Until the Debt has been paid in full, Borrower hereby represents, warrants and covenants that each of Each Borrower and each Principal is, shall be has at all times been and shall continue to be is a Special Purpose Entity. Notwithstanding anything to the contrary contained herein, it is understood and agreed that in no event shall any direct or indirect member, partner or other interest-holder in Borrower or Principal be required to make any additional capital contributions or loans or otherwise provide funds to Borrower or Principal for any reason, including in order for it to be a “Special Purpose Entity” hereunder. (b) The representations, warranties and covenants set forth in Section 4.1.30(a) 4.1.30 shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document. (c) Any and all of the stated facts and assumptions made in any Insolvency Opinion, including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects, and Borrower and Principal, will have complied and will comply with all of the stated facts and assumptions made with respect to it in any Insolvency Opinion, in each case as of the date of such Insolvency Opinion. Each Affiliate of To Borrower’s knowledge, each entity other than Borrower and Principal with respect to which an assumption is made or a fact stated in any Insolvency Opinion will have complied and will comply with all such of the assumptions made and facts in each case stated with respect to it in any such Insolvency Opinion. Borrower covenants that , in connection with any Additional each case as of the date of such Insolvency Opinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made thereinOpinion. (d) Borrower covenants and agrees that (i) Borrower shall provide Lender hereby represents with five (5) days’ prior written notice prior respect to the removal of an Independent Director of any of Borrower and (ii) no Independent Director shall be removed other than for Cause. (e) The Organizational Documents for each Borrower itself and Principal that is a Delaware limited liability company shall provide that except for duties to Borrower as set forth in the Organizational Documents (including duties to the member and Borrower’s creditors solely to the extent of their respective economic interests in Borrower, but excluding (i) all other interests of the member, (ii) the interests of other Affiliates of Borrower, and (iii) the interests of any group of Affiliates of which Borrower is a part), the Independent Directors shall not have any fiduciary duties to the member, any officer or any other Person bound by the applicable Borrower’s or Principal’s Organizational Documents; provided, however, the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that to the fullest extent permitted by law, including Section 18-1101(e) of the Delaware limited liability company Act, an Independent Director shall not be liable to Borrower, the member or any other Person bound by the applicable Borrower’s or Principal’s Organizational Documents for breach of contract or breach of duties (including fiduciary duties), unless the Independent Director acted in bad faith or engaged in willful misconduct. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that all right, power and authority of the Independent Directors shall be limited to the extent necessary to exercise those rights and perform those duties specifically set forth in the applicable Borrower’s or Principal’s Organizational Documents. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that notwithstanding any other provision of the applicable Borrower’s or Principal’s Organizational Documents to the contrary, each Independent Director, in its capacity as an Independent Director, may only act, vote or otherwise participate in those matters referred to in Section 9(d)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically required by the applicable Organizational Documents, and such Independent Director’s act, vote or other participation shall not be required for the validity of any action taken by the board of directors of such Borrower or Principal unless, pursuant to the provisions of Section 9(d)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically provided in the applicable Organizational Documents, such action would be invalid in the absence of the affirmative vote or consent of such Independent Director. (f) Any amendment or restatement of any organizational document of Borrower was has been accomplished in accordance with, and was permitted by, the relevant provisions of said such document prior to its amendment or restatement from time to time. (ge) Borrower and Principal each hereby represents as follows: (i) its business has been limited solely to (A) in the case of Borrower (other than Holdings Borrower), acquiring, developing, owning, holding, selling, leasing, transferring, exchanging, managing and operating the Properties, entering into and performing its obligations under the Loan Documents with Lender, refinancing the Properties in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, (B) in the case of Caribe Borrower, managing the Prior Management Asset , (C) in the case of any Principal, acting as a general partner of the limited partnership that owns the related Individual Property or as member of the limited liability company that owns the related Individual Property and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing and (D) in the case of Holdings Borrower, holding direct and indirect interests in the Individual Borrowers and Principals; (ii) intentionally omitted; (iii) it has not engaged in any business other than as set forth in (i) above, except that the Caribe Borrower previously owned the Prior Management Asset; (iv) it has not entered into any contract or agreement with any of its Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing of Borrower, except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s length transaction with an unrelated party, except as may have been expressly permitted pursuant to any prior financings; (v) except as expressly permitted pursuant to the terms of any prior financing and except for guarantees or obligations, in each case, that have been released or discharged or that will be released or discharged as of the closing of the Loan, it has not (a) made any loans or other extensions of credit to any Person or (b) acquired or held evidence of indebtedness issued by any other Person or entity, in either of the case of (a) or (b), other than (1) extensions of credit such as security deposits made in the ordinary course of business relating to the ownership and operation of an Individual Property made to an entity that is not an Affiliate of or subject to common ownership with such entity or (2) cash and investment grade securities issued by an entity that is not an Affiliate of or subject to common ownership with such entity; (vi) it has paid its debts and liabilities from its assets as the same have become due or such debts and liabilities have been repaid or discharged as of the date hereof; (vii) it has done or caused to be done all things necessary to observe organizational formalities and preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; (viii) except as expressly permitted under the Loan Documents and except as expressly permitted pursuant to the terms of any prior financing, it has maintained all of its books, records, financial statements and bank accounts separate from those of any other Person and Borrower’s, to the extent applicable, assets have not been listed as assets on the financial statement of any other Person. Borrower has filed its own tax returns (except to the extent that it has been a tax disregarded entity not required to file tax returns under applicable law). Borrower has maintained its books, records, resolutions and agreements as official records; (ix) it has been, and at all times has held itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing), has corrected any known misunderstanding regarding its status as a separate entity, has conducted its business in its own name, has not identified itself or any of its Affiliates as a division or part of the other and has maintained and utilized separate stationery, invoices and checks; (x) except as expressly permitted under the Loan Documents and except as expressly permitted pursuant to the terms of any prior financing, it has not commingled its assets with those of any other Person and has held all of its assets in its own name; (xi) except as expressly permitted pursuant to the terms of any prior financing, and except as expressly permitted under the Loan Documents and except for guarantees or obligations that have been released or discharged or that will be released or discharged as of the closing of the Loan, it has not guaranteed or become obligated for the debts of any other Person and has not held itself out as being responsible for the debts or obligations of any other Person; (xii) it has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or any of constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing; (xiii) except pursuant to prior financings that have been repaid or otherwise discharged, it has not granted a security interest or lien in, to or upon, or pledged or otherwise encumbered any of its assets to secure the obligations for the benefit of any other Person other than with respect to loans secured by the Properties and no such security interest, lien, pledge or other encumbrance remains outstanding except in connection with the Loan with respect to the obligations or the other Borrowers; (xiv) it has maintained adequate capital in light of its contemplated business operations; (xv) it has maintained a sufficient number of employees in light of its contemplated business operations and has paid the salaries of its own employees from its own funds; (xvi) except as set forth on Schedule 4.1.30, it has not owned any subsidiary or any equity interest in any other Person; (xvii) it has not made loans to any other person that have not been released or discharged nor has it bought or held evidence of indebtedness issued by any other person or entity; (xviii) reserved; (xix) it has not incurred any Indebtedness that is still outstanding other than Indebtedness that is permitted under the Loan Documents; (xx) it is not now, nor has ever been, party to any lawsuit, arbitration, summons, or legal proceeding that resulted in a judgment against it that has not been paid in full; (xxi) reserved; (xxii) it is and has since its formation been duly formed, validly existing, and in good standing in the state of its formation and in all other jurisdictions where it is qualified to do business; (xxiii) it has not had any of its obligations guaranteed by an Affiliate, except pursuant to prior financings that have been repaid or otherwise defeased and guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the Loan); (xxiv) except as set forth on Schedule 4.1.30, none of the Tenants holding leasehold interests with respect to the Property is Affiliated with Borrower; (xxv) to Borrower’s knowledge, except as set forth in the Title Insurance Policies, Borrower has no judgments or liens of any nature against it except for Permitted Encumbrances and tax liens not yet due or delinquent or which are contested in good faith by appropriate proceedings; (xxvi) is in compliance in all material respects with all laws, regulations, and orders applicable to it and, except as otherwise disclosed in this Agreement, has received all material permits necessary for it to operate; (xxvii) is not involved in any material dispute with any taxing authority other than any disputes for taxes that are being contested in good faith by appropriate proceedings; (xxviii) except as set forth in the Title Insurance Policies, has paid all taxes which it owes except as permitted pursuant to this Agreement other than any taxes that are being contested in good faith by appropriate proceedings; (xxix) has no material contingent or actual obligations not related to the Properties owned directly or indirectly by such entity; and (xxx) has no material continuing obligations or other liabilities with respect to the Prior Management Asset. (f) Any assignment of limited liability company interests in Borrower, Borrower and Principal and the admission of the assignee as a member of BorrowerBorrower or Principal, as applicable was accomplished in accordance with, and was permitted by, the limited liability company agreement of Borrower or Principal, as in effect at such time.

Special Purpose Entity/Separateness. (a) Until the Debt has been paid in full, Borrower hereby represents, warrants and covenants that each of Borrower and Principal is, each SPE Constituent Entity shall each be and shall continue to be a Special Purpose Entity. Notwithstanding anything Borrower shall cause Mortgage Borrower and each Mortgage SPE Constituent Entity to the contrary contained herein, it is understood be and agreed that in no event shall any direct or indirect member, partner or other interest-holder in Borrower or Principal be required to make any additional capital contributions or loans or otherwise provide funds to Borrower or Principal for any reason, including in order for it continue to be a “Special Purpose Entity” hereunderEntity (Mortgage Loan). (b) The representations, warranties Borrower and covenants set forth in Section 4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document. (c) Any and all of the stated facts and assumptions made in any Insolvency Opinion, including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respectseach SPE Constituent Entity will, and Borrower will have complied cause each Mortgage Borrower and will each Mortgage SPE Constituent Entity to, comply with all of the stated facts and assumptions made with respect to it such Person in the Insolvency Opinion. Borrower and each SPE Constituent Entity will, and Borrower will cause each Mortgage Borrower and each Mortgage SPE Constituent Entity to, comply with all of the stated facts and assumptions made with respect to such Person in any Additional Insolvency Opinion. Each Affiliate of Borrower entity other than Borrower, Mortgage Borrower, each Mortgage SPE Constituent Entity and each SPE Constituent Entity with respect to which an assumption is made or a fact stated in any the Insolvency Opinion will have complied and any Additional Insolvency Opinion will comply with all such of the assumptions made and facts in each case stated with respect to it in the Insolvency Opinion and any such Additional Insolvency Opinion. Borrower covenants that that, in connection with any Additional Insolvency Opinion delivered in connection with this Agreement Opinion, it shall provide an updated certification regarding compliance with the facts and assumptions made therein. (d) Borrower covenants and agrees that (ic) Borrower shall provide Lender with five thirty (530) days’ prior written notice prior to the removal of an Independent Director or Independent Manager of Borrower, Mortgage Borrower, any of Mortgage SPE Constituent Entity or any SPE Constituent Entity and Borrower and (ii) no shall not remove any such Independent Director shall be removed other than for Cause. or Independent Manager without Cause (e) The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that except for duties to Borrower as set forth defined in the Organizational Documents (including duties to the member and Borrower’s creditors solely to the extent of their respective economic interests in Borrower, but excluding (i) all other interests of the member, (ii) the interests of other Affiliates of Borrower, and (iii) the interests of any group of Affiliates of which Borrower is a part), the Independent Directors shall not have any fiduciary duties to the member, any officer or any other Person bound by the applicable Borrower’s or Principal’s Organizational Documents; provided, however, the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that to the fullest extent permitted by law, including Section 18-1101(e) of the Delaware limited liability company Act, an Independent Director shall not be liable to Mortgage Borrower, the member such SPE Constituent Entity or any other Person bound by the applicable Borrower’s or Principal’s Organizational Documents for breach of contract or breach of duties (including fiduciary dutiessuch Mortgage SPE Constituent Entity, as applicable), unless the Independent Director acted in bad faith or engaged in willful misconduct. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that all right, power and authority of the Independent Directors shall be limited to the extent necessary to exercise those rights and perform those duties specifically set forth in the applicable Borrower’s or Principal’s Organizational Documents. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that notwithstanding any other provision of the applicable Borrower’s or Principal’s Organizational Documents to the contrary, each Independent Director, in its capacity as an Independent Director, may only act, vote or otherwise participate in those matters referred to in Section 9(d)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically required by the applicable Organizational Documents, and such Independent Director’s act, vote or other participation shall not be required for the validity of any action taken by the board of directors of such Borrower or Principal unless, pursuant to the provisions of Section 9(d)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically provided in the applicable Organizational Documents, such action would be invalid in the absence of the affirmative vote or consent of such Independent Director. (f) Any amendment or restatement of any organizational document of Borrower was accomplished in accordance with, and was permitted by, the relevant provisions of said document prior to its amendment or restatement from time to time. (g) Any assignment of limited liability company interests in Borrower, and the admission of the assignee as a member of Borrower, was accomplished in accordance with, and was permitted by, the limited liability company agreement of Borrower as in effect at such time.

Special Purpose Entity/Separateness. (a) Until Except as disclosed in the Debt has been paid in fullrespective “prior acts” certificates delivered to Lender on the Closing Date, Borrower hereby representsBorrower, warrants Operating Lessee, Operating Lessee GP and covenants that North Beach Company are each of Borrower and Principal is, shall be and shall continue to be a Special Purpose Entity. Notwithstanding anything to the contrary contained herein, it is understood and agreed that in no event shall any direct or indirect member, partner or other interest-holder in Borrower or Principal be required to make any additional capital contributions or loans or otherwise provide funds to Borrower or Principal for any reason, including in order for it to be a “Special Purpose Entity” hereunder. (b) The representations, warranties and covenants set forth in Section 4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document. (c) Any and all of the stated facts and assumptions made in any Insolvency Opinion, including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects, and Borrower Borrower, Operating Lessee, Operating Lessee GP and North Beach Company will have complied and will comply with all of the stated facts and assumptions made with respect to it in any Insolvency Opinion, in each case as of the date of such Insolvency Opinion. Each Affiliate of Borrower To Borrower’s knowledge, each entity other than Borrower, Operating Lessee, Operating Lessee GP or North Beach Company with respect to which an assumption is made or a fact stated in any Insolvency Opinion will have complied and will comply with all such of the assumptions made and facts in each case stated with respect to it in any such Insolvency Opinion. Borrower covenants that , in connection with any Additional each case as of the date of such Insolvency Opinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made thereinOpinion. (d) Borrower covenants hereby represents with respect to itself, Operating Lessee, Operating Lessee GP and agrees North Beach Company that (i) Borrower shall provide Lender with five (5) days’ prior written notice prior to the removal of an Independent Director of any of Borrower and (ii) no Independent Director shall be removed other than for Cause. (e) The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that except for duties to Borrower as set forth in the Organizational Documents (including duties to the member and Borrower’s creditors solely to the extent of their respective economic interests in Borrower, but excluding (i) all other interests of the member, (ii) the interests of other Affiliates of Borrower, and (iii) the interests of any group of Affiliates of which Borrower is a part), the Independent Directors shall not have any fiduciary duties to the member, any officer or any other Person bound by the applicable Borrower’s or Principal’s Organizational Documents; provided, however, the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that to the fullest extent permitted by law, including Section 18-1101(e) of the Delaware limited liability company Act, an Independent Director shall not be liable to Borrower, the member or any other Person bound by the applicable Borrower’s or Principal’s Organizational Documents for breach of contract or breach of duties (including fiduciary duties), unless the Independent Director acted in bad faith or engaged in willful misconduct. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that all right, power and authority of the Independent Directors shall be limited to the extent necessary to exercise those rights and perform those duties specifically set forth in the applicable Borrower’s or Principal’s Organizational Documents. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that notwithstanding any other provision of the applicable Borrower’s or Principal’s Organizational Documents to the contrary, each Independent Director, in its capacity as an Independent Director, may only act, vote or otherwise participate in those matters referred to in Section 9(d)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically required by the applicable Organizational Documents, and such Independent Director’s act, vote or other participation shall not be required for the validity of any action taken by the board of directors of such Borrower or Principal unless, pursuant to the provisions of Section 9(d)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically provided in the applicable Organizational Documents, such action would be invalid in the absence of the affirmative vote or consent of such Independent Director. (f) Any amendment or restatement of any organizational document of Borrower was Borrower, Operating Lessee, Operating Lessee GP and North Beach Company, as applicable, has been accomplished in accordance with, and was permitted by, the relevant provisions of said such document prior to its amendment or restatement from time to time. (ge) Borrower hereby represents with respect to itself, Operating Lessee, Operating Lessee GP and North Beach Company: (i) its business has been limited solely to, in the case of Borrower (A) acquiring, owning, holding, leasing, financing, operating and managing the Property, (B) entering into financings and refinancings of the Property and (C) transacting any and all lawful business that was incident, necessary and appropriate to accomplish the foregoing; (ii) its business has been limited solely to, (A) in the case of Operating Lessee (I) leasing, operating and managing the Property, and (II) transacting any and all lawful business that was incident, necessary and appropriate to accomplish the foregoing and (B) in the case of Operating Lessee GP, owning the general partnership interests in and managing Operating Lessee; (iii) its business has been limited solely to, in the case of North Beach Company, (A) acting as leasing and sale agent for the condo-hotel units at the North Beach Property and (B) transacting any and all lawful business that was incident, necessary and appropriate to accomplish the foregoing; (iv) it has not engaged in any business other than as set forth in (i), (ii) or (iii) above, applicable; (v) it has not entered into any contract or agreement with any of its Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing of Borrower, Operating Lessee, Operating Lessee GP or North Beach Company, except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s length transaction with an unrelated party, except as may have been expressly permitted pursuant to the terms of any prior financings; (vi) it has not made (a) any loans or other extensions of credit to any Person or (b) acquired or held evidence of indebtedness issued by any other Person or entity, in either of the case of (a) or (b), other than (1) extensions of credit such as security deposits made in the ordinary course of business relating to the ownership and operation of the Property made to an entity that is not an Affiliate of or subject to common ownership with such entity or (2) cash and investment grade securities issued by an entity that is not an Affiliate of or subject to common ownership with such entity; (vii) it has paid its debts and liabilities from its assets as the same have become due. (viii) it has done or caused to be done all things necessary to observe organizational formalities and preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; (ix) except as expressly permitted under the Loan Documents and except as expressly permitted pursuant to the terms of any prior financing, it has maintained all of its books, records, financial statements and bank accounts separate from those of any other Person and Borrower’s, Operating Lessee’s, Operating Lessee GP’s or North Beach Company’s , to the extent applicable, assets have not been listed as assets on the financial statement of any other Person. Borrower Operating Lessee, Operating Lessee GP and North Beach Company to the extent applicable, has each filed its own tax returns (except to the extent that it has been a tax disregarded entity not required to file tax returns under applicable law). Borrower Operating Lessee, Operating Lessee GP and North Beach Company, to the extent applicable, has maintained its books, records, resolutions and agreements as official records; (x) it has been, and at all times has held itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing), has corrected any known misunderstanding regarding its status as a separate entity, has conducted its business in its own name, has not identified itself or any of its Affiliates as a division or part of the other and has maintained and utilized separate stationery, invoices and checks; (xi) except as expressly permitted under the Loan Documents and except as expressly permitted pursuant to the terms of any prior financing, it has not commingled its assets with those of any other Person and has held all of its assets in its own name; (xii) except as expressly permitted pursuant to the terms of any prior financing, and except for obligations under the Loan Documents and guarantees or obligations that have been released or discharged or that will be released or discharged as of the closing of the Loan, it has not guaranteed or become obligated for the debts of any other Person and has not held itself out as being responsible for the debts or obligations of any other Person; (xiii) it has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or any of constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing; (xiv) except pursuant to prior financings that have been repaid, it has not granted a security interest or lien in, to or upon, or pledged or otherwise encumbered any of its assets for the benefit of any other Person other than with respect to loans secured by the Properties and no such security interest, lien, pledge or other encumbrance remains outstanding except in connection with the Loan; (xv) it has maintained adequate capital in light of its contemplated business operations; (xvi) it has maintained a sufficient number of employees in light of its contemplated business operations and has paid the salaries of its own employees from its own funds; (xvii) except as set forth in the definition of Special Purpose Entity in Section 1.1, it has not owned any subsidiary or any equity interest in any other Person. (xviii) it has not made loans to any other person that have not been released or discharged nor has it bought or held evidence of indebtedness issued by any other person or entity; (xix) reserved; (xx) it has not incurred any Indebtedness that is still outstanding other than Indebtedness that is permitted under the Loan Documents; (xxi) except as set forth in the Insolvency Opinion, it is not now, nor has ever been, party to any lawsuit, arbitration, summons, or legal proceeding that is still pending or that resulted in a judgment against it that has not been paid in full; (xxii) it has no material contingent or actual obligations not related to the Properties; (xxiii) it is and has since its formation been duly formed, validly existing, and in good standing in the state of its formation and in all other jurisdictions where it is qualified to do business; (xxiv) it has not had any of its obligations guaranteed by an Affiliate, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the Loan) or guarantees that are expressly contemplated by the Loan Documents; (xxv) none of the Tenants holding leasehold interests with respect to the Property is Affiliated with Borrower, Operating Lessee, Operating Lessee GP, or North Beach Company; (xxvi) to Borrower’s knowledge, except as set forth in the Title Insurance Policies, has no judgments or liens of any nature against it except for tax liens not yet delinquent; (xxvii) is in compliance in all material respects with all laws, regulations, and orders applicable to it and, except as otherwise disclosed in this Agreement, has received all material permits necessary for it to operate; (xxviii) is not involved in any material dispute with any taxing authority; (xxix) except as set forth in the Title Insurance Policies, has paid all taxes which it owes except as permitted pursuant to this Agreement; (xxx) has no material contingent or actual obligations not related to the Properties; and (xxxi) none of the current owners of equity interests in Borrower, Operating Lessee, Operating Lessee GP or North Beach Company is affiliated with any of the former owners of equity interests in Borrower Operating Lessee, Operating Lessee GP or North Beach Company. (f) Any assignment of limited liability company interests in BorrowerBorrower Operating Lessee, Operating Lessee GP and North Beach Company, and the admission of the assignee as a member of Borrower, was Borrower Operating Lessee, Operating Lessee GP and North Beach Company, as applicable, were accomplished in accordance with, and was were permitted by, the limited liability company agreement of Borrower Operating Lessee, Operating Lessee GP or North Beach Company, as applicable, as in effect at such time.

Special Purpose Entity/Separateness. (a) Until the Debt has been paid in full, Borrower hereby represents, warrants and covenants that each of (i) Borrower is, shall be and shall continue to be a Special Purpose Entity, and (ii) Principal is, shall be and shall continue to be a Special Purpose Entity. Notwithstanding anything to the contrary contained herein, it is understood and agreed that in no event shall any direct or indirect member, partner or other interest-holder in Borrower or Principal be required to make any additional capital contributions or loans or otherwise provide funds to Borrower or Principal for any reason, including in order for it to be a “Special Purpose Entity” hereunder. (b) The representations, warranties and covenants set forth in Section 4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document. (c) Any and all of the stated facts and assumptions made in any Insolvency Opinion, including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects, and Borrower and Principal will have complied and will comply with all of the stated facts and assumptions made with respect to it in any Insolvency Opinion. Each Affiliate of entity other than Borrower and Principal with respect to which an assumption is made or a fact stated in any Insolvency Opinion will have complied and will comply with all such of the assumptions made and facts in each case stated with respect to it in any such Insolvency Opinion. In addition to the foregoing, Borrower covenants that in connection with any Additional Insolvency Opinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made therein. (d) Borrower covenants hereby represents, warrants and agrees that (ibeing hereinafter referred to as the “Backward-Looking Special Purpose Entity Representations and Warranties”) Borrower shall provide Lender with five (5) days’ prior written notice prior to the removal Closing Date: (i) Each Borrower and Principal has always been (A) since the date of an Independent Director its formation in Delaware, duly formed, validly existing and in good standing under the laws of the state of Delaware, and (B) duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with the Property and its business and operations, with requisite power and authority, and all material rights, licenses, permits and authorizations, governmental or otherwise, necessary to own the Property and to transact the business in which it has been engaged. (ii) Neither Borrower nor Principal has ever had any judgments or liens of any nature against it except for tax liens not yet delinquent, Permitted Encumbrances, and liens which have been released on or prior to the Closing Date. (iii) Each of Borrower and (ii) no Independent Director shall be removed other than Principal has always been in material compliance with all laws, regulations, and orders applicable to it and has always had, all material permits necessary for Causeit to operate. (eiv) The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that except for duties to Borrower Except as set forth in the Organizational Documents (including duties to the member and Borrower’s creditors solely to the extent of their respective economic interests in Borroweron Schedule VIII attached hereto, but excluding (i) all other interests of the member, (ii) the interests of other Affiliates of Borrower, and (iii) the interests neither Borrower nor Principal is aware of any group of Affiliates of which Borrower is pending or threatened litigation, nor has ever been a part)party to any material lawsuit, the Independent Directors shall not have any fiduciary duties to the memberarbitration, any officer or any other Person bound by the applicable Borrower’s or Principal’s Organizational Documents; providedsummons, however, the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that to the fullest extent permitted by law, including Section 18-1101(e) of the Delaware limited liability company Act, an Independent Director shall not be liable to Borrower, the member or any other Person bound by the applicable Borrower’s or Principal’s Organizational Documents for breach of contract or breach of duties (including fiduciary duties), unless the Independent Director acted in bad faith or engaged in willful misconduct. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that all right, power and authority of the Independent Directors shall be limited to the extent necessary to exercise those rights and perform those duties specifically set forth in the applicable Borrower’s or Principal’s Organizational Documents. The Organizational Documents for each Borrower and Principal that is a Delaware limited liability company shall provide that notwithstanding any other provision of the applicable Borrower’s or Principal’s Organizational Documents to the contrary, each Independent Director, in its capacity as an Independent Director, may only act, vote or otherwise participate in those matters referred to in Section 9(d)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically required by the applicable Organizational Documents, and such Independent Director’s act, vote or other participation shall not be required for the validity of any action taken by the board of directors of such Borrower or Principal unless, pursuant material legal proceeding except as disclosed in writing to the provisions of Section 9(d)(iii) of the applicable Borrower’s or Principal’s Organizational Documents or as otherwise specifically provided in the applicable Organizational Documents, such action would be invalid in the absence of the affirmative vote or consent of such Independent DirectorLender. (fv) Any amendment or restatement of Neither Borrower nor Principal has been, except as disclosed in writing to Lender, nor is involved in, any organizational document of Borrower was accomplished in accordance withdispute with any taxing authority (other than any Property Tax appeals), and was permitted by, Borrower has paid all taxes due to any taxing authority before the relevant provisions of said document prior to its amendment or restatement from time to timedelinquency thereof. (gvi) Any assignment To the extent financial statements of limited liability company Borrower have been provided to Lender by or on behalf of Borrower in connection with the Loan, to Borrower’s knowledge, the latest set of each such financial statements fairly and accurately reflects the current financial condition of the subject of such statement, as of the date of such statement, in all material respects. (vii) Borrower has never owned any real property other than the Property and has never engaged in any business except the ownership and operation of such Property; Principal has never owned any property or assets other than the interests in Borrower, Borrower and the admission of proceeds thereof. (viii) Borrower has no material contingent or actual obligations unrelated to the assignee as a member of Borrower, was accomplished in accordance with, Property and was permitted by, the limited liability company agreement of Borrower as in effect at such timePrincipal has no material contingent or actual obligations.